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I found this account of the law school experience by Professor Duncan Kennedy of Harvard Law to be relevant to our discussions in class, thought I’d share. | | | Very interesting. Reading Kennedy, and thinking about our discussions in class, I am starting to feel that many of the skills I developed during my undergraduate degree are being pushed aside. Law school is focused on undoing what was done – subverting critical thought, inquisitorial natures, and activist proclivities developed in undergrad. During my liberal arts education, I was encouraged (albeit, perhaps not often enough) to think radically and engage in critical analysis. However, as Kennedy states, the casebook method of learning and adherence of legal formalism precludes this. We are taught that our “reaction to the hot case is childish” and are directed to restrain emotion and overt ‘political’ enthusiasm and ignore our gut reactions to what we may see as reprehensible moral wrongs. In doing so, we are trading the “equitable intuition” instilled in many of us at liberal arts colleges in favor of the rigid, black-and-white ‘logic’ supposedly valued by THE LAW. | |
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< | In addition to being taught to curb our emotional reactions and political ideals, we are forced, as Kennedy highlights, to distinguish law from policy - to focus only on the often “circular, question-begging, incoherent, or so vague as to be meaningless” transcendental nonsense that we are meant to obtain from our reading of cases. These legal fictions we are meant to distill and memorize are not grounded in reality, but exists in a nebulous, intangible vacuum that we – soon to be ‘professionals’ – call THE LAW. I was also taught in undergrad – and still believe - that law cannot be divorced from policy; that the inputs breathing life into the law, dictating its creation and form, and the outputs instilling it with meaning, consequence and effect ARE political. If we want to know what the law really is, we need to consider what defines, creates and impacts its formation and to determine the tangible effects it has on society. | >
> | In addition to being taught to curb our emotional reactions and political ideals, we are forced, as Kennedy highlights, to distinguish law from policy - to focus only on the often “circular, question-begging, incoherent, or so vague as to be meaningless” transcendental nonsense that we are meant to obtain from our reading of cases. These legal fictions we are meant to distill and memorize are not grounded in reality, but exist in a nebulous, intangible vacuum that we – soon to be ‘professionals’ – call THE LAW. I was also taught in undergrad – and still believe - that law cannot be divorced from policy; that the inputs breathing life into the law, dictating its creation and form, and the outputs instilling it with meaning, consequence and effect ARE political. If we want to know what the law really is, we need to consider what defines, creates and impacts its formation and to determine the tangible effects it has on society. | | | The casebook method of learning prohibits free thought and practical skill development. As Eben has pointed out, we spend hours reading each week but we do not retain or remember - we listen yet we do not hear. When asked recently in an interview what my favorite law school class is, I said Legal Practice Workshop. Unfortunately, I think, not enough attention is paid to this style of learning. LPW is ungraded (God forbid), and consequently, we as students – indoctrinated to be obsessed with the hierarchy of grades – tend to take it less seriously than our other classes and pay less attention. We are also not given enough feedback or direction on our work, or REALLY taught how to improve our legal analysis or writing abilities. The result is that the only (potentially) practical skills we are learning fall by the way side and are not honed and cultivated as they could and should be. As Kennedy says, “if law schools invested some of the time and money they now put into Socratic classes in developing systematic skills training, and committed themselves to giving constant, detailed feedback on student progress in learning those skills, they could graduate the vast majority of all law students in the country at the level of technical proficiency now achieved by a small minority in each institution”. I think that classes that push us to hone in on our intuitions, investigate and provide basis for our judgments, and justify our conclusions and assumptions with facts and examples, would be more useful than reading and regurgitating cases from 19th century England. It would be interesting to see what would happen if we had more classes like LPW, that at least – on the surface - aim to encourage self-direction, novel legal argument and reasoned analysis. |
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