Law in Contemporary Society

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PieroZanonFirstEssay 3 - 04 Jun 2024 - Main.PieroZanon
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The Ideology of Competition
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Legal education in the United States, particularly at institutions like Columbia Law School, is widely regarded for its rigorous academic training. This curriculum is undoubtedly beneficial for future appellate litigators, judges, and professors, who require a deep understanding of legal theory and principles. However, these individuals represent a minority of law students. The majority, who will enter private commercial practice, find that law schools often fail to teach them the practical aspects of practicing law and understanding law firms' business models. This gap in education has profound implications for students, who are expected to make employment decisions with minimal practical experience.
 
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From the outset, law students are immersed in doctrinal classes that emphasize legal theory and principles. These courses, while essential for a foundational understanding of the law, do little to prepare students for the realities of legal practice. As students complete their first semester, they are encouraged to apply for internships and summer associate positions at law firms. This early recruitment process is problematic for several reasons. Firstly, students at this stage have limited exposure to different areas of law. The curriculum in the first year is heavily focused on core subjects like Contracts, Torts, and Civil Procedure, which provide no insight into the day-to-day workings of a law firm or the various legal specializations. Consequently, students make career choices based on incomplete information, often leading to dissatisfaction and burnout when they enter practice.
 
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A critical aspect of legal practice that law schools neglect is the structure and business model of law firms. Understanding how law firms operate, including billing practices, client relations, and the hierarchical structure, is crucial for new lawyers. This knowledge impacts not only how they perform their jobs but also how they navigate their careers within these firms. Law students are generally unaware of the pressures of billable hours, the importance of client acquisition, and the internal politics that influence promotions and job stability. This lack of understanding can lead to a disconnect between students' expectations and the realities of their careers. By the time students graduate, they have committed to employers and career paths without a clear understanding of what lies ahead. The current system's demand for early recruitment exacerbates the problem. By the end of their first year, students are often committed to summer associate positions that could lead to full-time offers. This early commitment is based on limited information and experience. As a result, students may find themselves locked into career paths that do not align with their interests or strengths.
 
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In November of 2022 I obtained what I had obsessed over for the most part of that year. After a sleepless night awaiting my Law School Admission Test results, I turned on my phone and frantically logged into the website. To my elation, the score was exactly what I hoped for. I was now ready to apply to the universities I believed offered the best legal education. I felt as if I had won the ultimate competition. Throughout my undergraduate studies, I had internalized the competitive nature of the law school admission process. When I permanently moved to the U.S. from Italy, where universities are open for everyone to enroll, the prospect of competing with my peers was appealing. Finally, I thought, I had found a place in which I could distinguish myself on the basis of dedication and intellect. Competition seemed to be valuable per se.

Yet, once the shallow joy of a test score faded away and acceptance offers trickled in, I began feeling hollow. Did I waste months studying for a test simply to prove that I could win the prize? Was I unreflectively chasing some abstract notion of prestige? I needed answers, or at least plausible explanations. Some came from French anthropologist René Girard, who formulated a mimetic theory of desire. The theory, in its basic form, proposes that our desires are not innate or original to us but are mimetic, meaning they are imitated or borrowed from others. We desire objects, statuses, or goals not because of their intrinsic value but because others desire them. As people imitate each other's desires, they become rivals competing for the same objects or goals. This competition can escalate, leading to conflict and violence. (https://iep.utm.edu/girard/)

The journey of an ambitious law school applicant, law student, and practicing attorney seems to fit squarely in Girard’s worldview. At first, as the world around the applicant desires a spot in the nation’s best ranked law schools, she comes to internalize the righteousness of picking one school over the other based on nebulous prestige. Once enrolled, the herd once again pushes her towards a few “elite” outcomes: a corporate firm, and a clerkship. Predictably, both the former and the latter have their own pecking order. Some law firms are more desirable because considered inherently “more prestigious”; the same applies to clerkships. After having completed these Olympic games, the newly-minted lawyer will begin jockeying for the desired promotion as a partner, vying to defeat her competitors along the way.

But what if one decides to rebel to this vicious cycle? Barack Hussein Obama sent waves of shock around Harvard Law School when he decided to pass on a federal clerkship to join a small and unknown Chicago civil rights firm. The students at Harvard thought that Obama, who had been president of the Law Review, was making a “catastrophic mistake.” A partner at Sidley Austin simply called him “crazy.” (Garrow, David J. 2017. Rising Star: The Making of Barack Obama.) It would be far too easy to dismiss those students and law firm partners as blatantly misguided given Obama’s later success. However, something more sinister and ominous happens when young students are talked out of their dreams to follow a pre-established track. Had Barack Obama been more sensitive to social cues, the country might still be waiting for its first African-American President.

I don't know why it follows that If Barack Obama had taken one route at the start of his career rather than another, he would not have become President. That doesn't seem evident to me. He might well not have married a lawyer he met on the first job and instead married someone else, raised different children, and so on. But as a lesson about the life or death importance of law school employment this strikes me as law student anxiety fantasy rather than historical insight.

In the context of a group of students and ambitious professionals, competition can be defined as a zero-sum contest where participants, homogeneous in skill and potential, engage in a rivalry for limited coveted positions. I believe that in certain sectors of the U.S. economy, i.e. white-collar jobs and education, competition functions as an ideology. First, it has a dogmatic dimension, it is assumed as good practice and almost never questioned. Second, it is propagandized, it is encouraged without acknowledging its complexity and nuances. Third, it is mythologized. Myths and narratives around winners of academic and professional competitions are constantly created to bolster its legitimacy and coherence. Finally, competition creates exclusivity, it promotes a sense of superiority and exclusiveness for those that compete, often casting shame on those that do not. The most troubling aspect is that the more one competes, the more vicious the competition becomes. For instance, one can easily see how gaining admission into law school is not nearly as fiercely competitive as obtaining a federal clerkship. The same comparison can be made between a clerkship and an appointment to a high government position. The latter involves a vast more profound degree of viciousness, as the latest Supreme Court confirmation hearings have demonstrated. Simply put, one who enters a certain line of work can expect to compete with her colleagues in perpetuity and with escalating degree.

I don't think that's true at all, if we are applying the mode of introspection and giving priority to personal experience, as we seem to be doing. I've not been in competition with anyone over anything, so far as I can remember, since about the age of 28 or so. In my work as a lawyer, I did exactly what I wanted, and competed neither for clients nor for money. As an academic I followed no rules and imitated no one. I invented all my courses wherever possible, forsook "scholarly publication" in most of my fields of interest in preference to other modes of public education, eschewed endowed professorial titles, was happy to be paid far less than my peers, in return for the freedom to ignore all instructions, inducements, promises and threats, and to proceed precisely as I saw fit, which included attacking some of the greatest economic and political powers in the society, including my own university.

Perhaps it would be consistent with that evidence (from a couple of plainly non-representative individuals only) to say that there are two ideologies, of competition and of freedom, that they are not the same, and that their conflicting resonance is an important theme in our intellectual and cultural history.

Abandoning these competitive dynamics is incredibly hard, because students and professionals end up defining their identities in terms of these standard badges of success.

No, I think. "Might end up" is the most one could say, and so put it would not support the claim.

For some, however, the opportunity costs of remaining within this system are enormous. During my time at the American Enterprise Institute in Washington, D.C. I had the pleasure of meeting a former appellate litigator. He had achieved substantial financial success in his life, and was the embodiment of the prestige career ladder. A Yale Law School graduate, a Supreme Court clerk, a partner at a top D.C. firm. “All my life” he told me “I simply did the next competitive thing. Three years ago, I realized I did not even like practicing law.” To me this sounded particularly disturbing. Here you had an astoundingly intelligent man, who could have contributed to society in many different ways. Yet, he spent thirty years competing for something he did not enjoy. Yes, the money was good.

You haven't established that he did it for the money, or that the discovery that he didn't want to practice anymore meant that he had never wanted to practice. Your are forcing onto the account an interpretation of growth as defeat which once again seems to me to have more to do with projecting law student anxiety than with an actual psychological insight.

But was it worth it? It is paradoxical that in this American competitive scheme, the more prestigious the academic outcome, the fewer the opportunities. Law schools should be a beacon that expands our horizons, not a gate that narrows them.

Good. Then let us try a draft in which you attempt to deal not with your own or others' regrets, nor with mimetic desire, but with actual imagination—a word that ostentatiously does not occur in this draft. Let's hear what you want your future practice to be about and why. Then let us establish whether competition or freedom (or neither) is the motivating engine of your imagined practice choices. Not the past, not others' regrets, your future and its hopes.
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Law firms, particularly large ones, take advantage of this system. They recruit young, impressionable students who are eager to secure prestigious positions. Once inside the firm, these students are often overworked and underprepared, leading to high turnover rates and job dissatisfaction. The "keep your options open" ideology, prevalent in law schools, contributes to a class of professionals with low job satisfaction and a lack of conviction about their career paths. To address these issues, legal education needs reform. One proposal is to integrate experiential learning into the first year of law school. Combining doctrinal classes with practical experiences, such as clinical work, internships, and simulation courses, would provide students with a more comprehensive understanding of the legal profession. This approach would help students identify their interests and strengths early on, allowing them to customize the remaining two years of law school. Additionally, delaying the recruitment process until the final semester of law school would enable students to gain a fuller picture of their career options. By this time, students would have completed a more diverse set of courses and practical experiences, giving them a better foundation to choose their career paths. Another potential reform is incorporating mandatory courses on the business of law firms into the curriculum. These courses should cover topics like firm economics, client management, and professional ethics. Such knowledge is indispensable for young lawyers, equipping them to navigate their careers more effectively.
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Legal education is one of the most ossified industries, and therefore, substantial reform is unlikely. However, the American Bar Association is currently considering a proposal to allow fully online law schools to obtain accreditation. I wonder whether the absence of a required physical location might help future law schools drastically lower tuition and help students immerse in the communities where they want to practice, with in-person internships throughout the three years of law school. The more academically inclined will still be able to access a more traditional legal education at institutions like Columbia, but there should be an alternative to the current one-size-fits-all model. By providing flexible, cost-effective, and practically oriented legal education options, we can help lawyers be better prepared for their careers and more satisfied in their professional lives. This approach would cater to the diverse needs of law students, ultimately benefiting the legal profession as a whole.
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Revision 3r3 - 04 Jun 2024 - 18:29:18 - PieroZanon
Revision 2r2 - 30 Mar 2024 - 15:52:28 - EbenMoglen
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