Direction

Charting a Path Forward

The Practice Area Conundrum

A First Pass

Conclusion

This draft seems to me to take the third-person approach about as far as it can carry you. You have taken the effort to collect across a broad range of sources and to synthesize your interpretations. The draft is clearly committed to a project that I can easily recognize, for it is that of the course. We can agree that this draft is proof of highly successful learning, and has much to teach.

In making writing better, it's always good to start by defining the reader for whom we are trying to make this writing more effective. Because lawyers should always speak and write to a purpose, the exercise of defining the reader is all but required. If I am the reader, this draft achieves its purpose and needs nothing. If our colleagues are the readers, if the purpose is to address those who have already chosen to be here, then movement from the third person to the second person plural promises a path of much improvement. The current draft veers towards "we" for some sentences, both at midpoint and at the end, but the tone there is not actually collegial, rather more appropriate to manifesto. Perhaps the next version should think the same thoughts and bring them forward for a readership consisting of law students who wouldn't be reading if they weren't already inclined to the discussion and who are already possessed as you are of the best questions I know how to ask on the subject. You could then drop citations to me and Mishi, as more about who than about what, and for the intended purpose unnecessary. But you might start a really productive discussion.

It's also possible, despite the adept assembly of sources with which to teach others, that the real reader of the next draft is yourself: that the movement should be from third person to first person singular. Is it tine to start asking how, having taken this learning aboard, you want to begin defining the practice for which you are preparing yourself and the demands on law school that you need to place in order to be properly prepared?

Finding Freedom

-- By ArjanHeir - 26 Feb 2021

Introduction

For the legal realist, legal things are what they do (Holmes). What do law schools do? At the level of greatest generality, law schools teach law. That is, they teach students to become conversant in legalese (Moglen). They teach students how to extract, synthesize, and manipulate legal rules from cases, as pioneered by Christopher C. Langdell (Kimball).

These skills, along with the Columbia name on the degree, are sufficient preparation for a legal practice. At least it is sufficient preparation insofar as the legal practice that awaits is the type of prestigious, lucrative career that the students and law school administration presume graduates want. During law school, internal direction is insidiously supplanted by external direction. The law school sells the skills and credentials to make it possible for the students to sell their time on Wall Street. Although the system functions as intended, with 352 of 431 graduates in the Class of 2019 obtaining employment at law firms (Columbia Law School), something goes awry. Lawyers end up feeling depressed, unsatisfied, and trapped (Eaton et al.).

The problem is that this one-size-fits-all method cannot possibly satisfy the “intellectual, moral, material, and political needs” of every, or even most, lawyers who pass through this school (Moglen). Fortunately, freedom from these golden handcuffs is attainable, and begins in law school.

Delayed Gratification? Rather, No Gratification

Law school and legal practice are akin to a prolonged “marshmallow test.” Shoda et al.’s 1990 study found that a child’s ability to delay gratification correlated with her social and academic abilities later in life, and this idea has become entrenched into popular psychology. (Recent research has cast doubt on these findings. The correlation between the childhood ability to delay gratification and later achievement is not significant when socioeconomic factors are controlled (Calarco; Watts et al.).) 1Ls at Columbia Law School are well trained in the art of delaying gratification, for many years of hard work and sacrifice cumulated in the arrival of a shiny acceptance letter in early 2020.

The gratification of acceptance soon fades. It unsurprisingly does not last past Legal Methods as hedonic adaptation occurs, a subconscious process by which humans’ subjective happiness soon returns to equilibrium despite material changes in their objective circumstances (Brickman and Campbell). Our position of good fortune and privilege are no longer impressed upon our minds as we enter the “CLS bubble.” Instead, we become fixated on the signposts of “success” that are placed before us. We intuit that everybody is supposed to strive to be a Kent Scholar, editor of the Law Review, partner at Cravath, and so on. A paradox results. We delay satisfaction in the present not for greater satisfaction in the future, but for a future of increased dissatisfaction. Law school and legal practice become a war of attrition. Clearing one hurdle only grants the opportunity to face another, even larger one. The test is to determine who is willing to withstand the drains on time, wellbeing, and happiness in order to collect the gold stars.

The Thirst for Comparison

Exactly who dictates what we should aim for and why they have this power over us remains unquestioned. Conventional wisdom dictates that these signals are for the benefit of employers, namely, judges and law firm partners. The extent to which, if at all, employers care about indicators of “success” is debatable and, for my purposes, irrelevant. It is sufficient to note that the prevailing belief among students is that employers care, and this belief guides behavior. Regardless, this is not the entire story.

A certain type of person arrives at Columbia Law School, or, in pandemic times, logs onto Columbia’s Zoom School of Law. The Office of Admissions selects those with histories of academic and professional success, people who are used to positive comparisons vis-à-vis their peers. Yet, law school frustrates our unattractive desires for recognition, prestige, and others’ approval. Humans have an innate desire to compare themselves to others, and comparison can sometimes be informative. However, incessant and obsessive comparison is pernicious, as evidenced by the harmful effects of social media on mental health. Sherlock and Wagstaff. Law school and legal practice create an environment conducive to asinine comparisons, from the grades on the transcript to the name of the law firm where one summers.

Getting Off the Hamster Wheel

If law school creates an environment conducive to comparisons, is a revolution of the system required? No. While systemic changes may be helpful, they are by no means necessary. Treating wide-scale reforms as the only solution misses the point. It, once again, paints a picture of students as helpless subjects on which the law school acts. We do not lack agency.

Unlike social media, whose faulty design incites the spread of misinformation through a system of 160-character messages and idealized images (Moglen and Choudhary), law school does not have to be this way. Law school can be “the mechanism through which every brain can learn whatever it wants,” however it wants (Moglen and Choudhary). CLS is not short of diverse opportunities and diverse people which enable us to forge our own paths. However, forging one’s own path necessarily entails departing from the pre-determined path, the one with identifiable milestones and a dreaded yet desired endpoint. Our desires to be compared to others and to meet the mysterious employers’ expectations are ultimately self-imposed. We can choose to get off the hamster wheel and not value ourselves and our experiences only to the extent that we can match the accolades than our peers and will impress employers.

Moving Forward

Justice Brandeis wrote, “It is the function of speech to free men from the bondage of irrational fears” (Whitney v. California). So too can dialogue free us from conducting our lives in accordance with irrational goals and desires. The difficulty, of course, is developing the creativity to envision and create the law school experience and legal practice that we truly desire.

Word Count: 986 (References excluded)

References

Brickman, Philip, and Donald T. Campbell. “Hedonic Relativism and Planning the Good Society,” in Mortimer Herbert Appley’s Adaptation-Level Theory: A Symposium (1971). No electronic version available.

Calarco, Jessica. “Why Rich Kids Are So Good at the Marshmallow Test,” The Atlantic (2018).

Columbia Law School. “Employment Statistics” (accessed Feb. 24, 2021).

Eaton, William W., James C. Anthony, Wallace Mandel, and Roberta Garrison. “Occupations and the Prevalence of Major Depressive Disorder,” Journal of Occupational Medicine (1990).

Holmes, Oliver Wendell, Jr. “The Path of the Law,” Harvard Law Review (1897).

Kimball, Bruce A. “The Proliferation of Case Method Teaching in American Law Schools,” History of Education Quarterly (2006).

Moglen, Eben. Law and Contemporary Society Class Audios (2021).

Moglen, Eben, and Mishi Choudhary. “Social Media is Flawed by Design,” Times of India (2021).

Sherlock, Mary, and Danielle L. Wagstaff. “Exploring the Relationship Between Frequency of Instagram Use, Exposure to Idealized Images, and Psychological Well-Being in Women,” Psychology of Popular Media Culture (2018).

Shoda, Yuichi, Walter Mischel, and Philip K. Peake. “Predicting Adolescent Cognitive and Self-Regulatory Competencies from Preschool Delay of Gratification,” Developmental Psychology (1990).

Watts, Tyler W., Greg J. Duncan, and Haonan Quan. “Revisiting the Marshmallow Test,” Psychological Science (2018).

Whitney v. California, 274 U.S. 357 (1927) (Brandeis, J., concurring).

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