|
Law in Contemporary Society
|
|
What's a Lawyer, Anyways?-- By SpencerBecerra - 11 Mar 2022 Law school presents a binary: you either get rich or save the world. This false choice manifests in the dual archetypes of the white shoe corporate killer and the justice-seeking social justice warrior. To further elevate these forms, law school imbues mystique in the work we do and puts us as a remove from “laymen”. Of course, hundreds of students may not picture themselves as either of the two common archetypes, and thus lose a sense of self or doubt that they’re really cut out to become an attorney. Furthermore, the mystique that law school works diligently maintains damages our ability to connect to clients and society in general, a negative outcome for anyone hoping to positively interact with the world. I believe that by applying a combination of legal-realist instruction coupled with a practical outlook on one’s choices as an attorney, first-year law students will develop a more nuanced concept of which avenues are available to us as we grow our practices. First, I will define “mystique” as I understand it. When a 1L first begins to read law, we encounter a host of exotic-sounding words and modes of thought, supposedly impenetrable to the outsider, and are told that we are being trained to be amongst a special class of citizens tasked with stewarding these lofty concepts. In the casebook, the dramas of reality are distilled and obscured, and to the law student the client is hardly a real entity. It is not easy for a first-year student, still watching the dancing shadows from within Plato’s cave, to perceive just how different things may be if the mystique of law school vanished. But I can see at least one reason why the school has an interest in maintaining this status quo: tuition is expensive, and mystique reinforces the idea that we really are special, and thus can either change the world or make pile of money. For many, mystique and the promise it brings may be the most alluring thing about law school, whether because they inherited golden handcuffs from quasi-rich parents, or have never known true material comfort, or really want to have the ear of the judiciary to effect grand social change that simply would not be possible without a law license. The problem with this framing, then, is that you are left with two essential justifications for spending the time and money to go to school. Once the people making up these two broad categories of 1Ls enter school, they are immediately put on either team private practice/big law, or team public interest/government, each with their own microcultures, career services advisors, and theories about what a lawyer should actually do in the world. Both projections are thoroughly shrouded in the mist of the law, wielding their arcane wisdom to either be the most sought-after attorney in the Financial District, or a protector of the weak against reactionary trolls and other horribles. I believe that these ideals, while perhaps inspirational to some, reflect a skewed vision of how students like us can enter the professional world. Consequently, many who struggle to fit themselves into either of these boxes fall into a spiral of insecurity and doubt as to what it is they want. The remedy, then, is to introduce a perception of choice, with legal realism providing foundations in the curriculum. Imagine a case pitting a nursing home against Medicaid recipients whose transfer-eligible status is up for review, along with their corresponding level of benefits. The threshold question is whether the nursing home qualifies as a state actor in that context. While privately employed physicians make these choices, they do so within the boundaries of government regulations as employees of one of the most strictly overseen institutions in the United States. Consider also that nursing homes provide shelter and community for the elderly, services commonly associated with the state. These are the circumstances of Blum v. Yaretsky, a 1982 case which helped lay the foundation for modern §1983 jurisprudence. While the majority, asking whether the nursing homes were “entwined”, “coerced”, or performing a “public function” did not find state action, Justice Marshall’s dissent highlights the facts provided above and serves as a prime example of how legal realism can activate creativity and move away from the mystical conception of law so dominant in 1L. I believe that legal realism has two major implications for first year law students. Firstly, it encourages us to think creatively about what a thing does rather than try to fit everything into a predetermined box. Secondly, it appeals more easily to what is at this point a layman’s mind. A first-year law student would be better trained in the problem-solving skills that employers so cherish by learning things on terms that they already know first, then introducing the probably unavoidable, arcane elements of the profession later. Indeed, realism is introduced in a way which makes it at first difficult to spot or distinguish among formalistic elements. Furthermore, a realist perspective may better equip law students to tackle the kinds of issues that most actual lawyers face-i.e., ones that never see a courtroom, much less make it to a court of appeals and then a casebook. In embracing a realist mode of thought, law students may also see their options come into sharper focus. Not everyone wishes to be placed on team big law or team public interest; some may want nothing more than to become solo practitioners or start up a firm with a few like-minded individuals, tackling niche issues within their communities. I see realism as a gateway for being able to attain not only the intellectual skills needed to tackle every-day problems as a lawyer, but as a mindset through which one can expand the imagination of what a lawyer does. This process could ultimately shatter the mystique generated by law school and humanize law students, law professors, and lawyers in general, strengthening our social bonds with each other and ultimately with the clients we rely on.Some actual contact with the literature you are applying would be useful. Who said what that leads where? So far as the relationship of realistic thinking to professional choice is concerned, why not start with Holmes, whose points we discussed? Way too many words are spent on side issues, such as defining mystique, placing filigree around the false dichotomy of doing well and doing good, and the facts of Blum v. Yaretsky. They distract both the reader and you from your central idea, whatever that is. Cutting should make room for the clearer statement of that idea. So far it appears that anti-formalism in legal thinking will draw students' attention more to what their future practices actually do. This is a good start, but something more than that plus rhetoric about "shattering the mystique" is needed to give the reader a useable view of your idea. You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:
|
|
