Legal Education:
A Critical Review
Ty Herrington
Independent Research
Summer 1985
Profe~sor
Benson
f}(J?h7
Legal Education:
A Critical Review
After three years of struggling to squeeze through law
school, I am left with a feeling of dissatisfaction and even
anger with what I have learned in and through law school and
law related areas.
education
[
lhave
am disappointed with the lack of legal
I
received
..,..
(although
J..
attended
what
is
considered to be one of the better law schools in my state) •
[
am also disappointed with what I
have viewed to be the
effects of the law school process upon fellow students and
upon practicing attorneys in general.
'The two purposes of this paper are first,
and
evaluate
the
process
of
legal
to research
education
(which
is
characteristic not only of my school, but of most others),
and
second,
to beg
for
reform of the
typical
law school
approach to legal education.
Out of fairness,
I
compiled an uncommonly
must warn the reader that I
have
low grade point average in my law
school career and that I am aware that a common psychological tool used to justify inadequacies in oneself is to place
the
blame
for
from oneself.
inferior
achievements on
a
However,
the
have done on this
research
I
source external
topic is comprised of articles and studies written by law
review
(all
students,
high
professors,
achievers
in
terms
and
of
professor-psychologists
the
academic
standards
required by law school systems), and their writings mimic my
own observations and hypotheses regarding legal education.
OO?f;R
2
I
can only hope that use of these scholarly sources will
generate enough credibility to command notice from an open
and objective mind.
My hypothesis is comprised of five segments of a self
perpetuating circle.
First,
and
also
last
in
the
circle,
is
that
there
exists an established hierarchy and status quo within legal
systems.
the
In making this statement,
system of
I
am not concerned with
statutory and precedential
with the actors within the legal system,
law itself,
i.e.,
but
attorneys,
judges, clerks, law students, law professors, and law school
administrators.
Second, the law school process makes an offer of this
established hierarchy and status quo.
Third,
the most frightening aspect of the process, is
the acceptance of that hierarchy by law students, not solely
by conscious choice, but mostly without criticism, analysis,
and without thought.
Step
four,
entwined
with
step
three,
is
that
the
process of acceptance is subtly coerced through primarily
inhumane teaching methods which disregard values and ethics.
The
resulting
step
five
is
also
step one;
that
the
graduating law students often become attorneys who serve a
role within the established legal hierarchy and support the
legal status quo.
3
Duncan
Kennedy,
in
his
article
"Legal
Education
As
Training for Hierarchy" from David Kairy's The Politics of
Law--A
Progressive
Critique
(Pantheon
Books,
New
York,
1982), deals with my hypothesized step one specifically.
As
a law professor at Harvard Law School, Kennedy has had ample
opportunity
process.
to
He
observe
begins
and
by
reflect
stating
upon
that
the
what
law
occurs
school
in
law
school is " • . . ideological training for willing service in
the hierarchies of the corporate welfare state" (id. at 40).
He states that not only is the subject of law taught in law
school, but intertwined is the idea that elevated possibilities in life as a lawyer are available.
the
nonsense of teaching
II
law as
a
Kennedy feels that
higher calling is
. random but biased and motivated error"
not
(id. at 40).
According to Kennedy, what is taught is that ". . . it is
natural,
efficient and
fair
for
law firms,
the bar as
a
whole, and the society the bar services to be organized in
their actual patterns of hierarchy and dominance"
40).
( id.
at
Kennedy says that students act within the channels cut
for them and accept the "responsibility" for sustaining the
status quo.
Kennedy
feels
that
although many
students
begin
the
first year experience expecting to learn how the law is used
as
a
tool against the dominators,
process
that
dominator.
separates
themselves
they soon succumb to a
into
the
category
of
Kennedy feels that few parents would object to
fMt?70
4
their sons or daughters becoming lawyers and even consider
this to be a "step up" in the world.
school
He describes the law
experience as one dominated by professors who
white, male,
are
straight and middle class in manner, and that
if by chance there are women or black professors, they tend
to follow the patterns and mannerisms of their white male
counterparts.
The classroom experience itself, which will
be described in more detail later in this paper, involves a
pseudo-participation that makes the student acutely aware of
how he or she stacks up against his or her peers,
Kennedy.
allows
states
The commonly applied Socratic method of teaching
for
an endless basis of comparison.
Kennedy also
states that there is an established hierarchy among professors, the more elevated status going to the "tougher" less
policy-oriented,
professors
more
(less
conservative
compassionate
and
both
less
towards
compassionate
students
and
toward the litigants in the cases dealt with in class).
The
comparisons
allowed
in
the
classroom
heighten competitiveness among students and I
tend
to
have myself
seen examples of personal affronts in and out of the classroom related to comparison of classroom performance, both by
professors and students.
attention,
Subtle rewards of mild agreement,
or lack-of abrasiveness are often imparted upon
students
who
take
students
who
react
a
tough
more
"legal"
view
compassionately
of
to
issues,
a
case
and
fact
situation are often belittled for their "ideological" view
5
of justice and are very often laughed at by the professor
and students alike.
These
declaring
actions
that
and
the
attitudes
process
as
are
such
often
justified
by
causes
students
to
"toughen up" and become "lawyer-1 ike. "
In my opinion, the
process is often misused by egotistical professors (who were
treated the same way when they were in law school) .
These
professors seem to treat the process as a tool to damage the
tender egos of often young and vulnerable
students whose
whole self concept has been molded around their past high
academic
achievements.
experience
all
or
This
even
is
most
of
not
my
to
say
that
professors
in
my
treated
students in this manner, but as Professor Kennedy states in
his article, the softer, more sympathetic, more liberal and
more
egalitarian
professors
maintain
a
low
hierarchical
position on the law school steps.
According
hierarchy
is
to
part
Professor
of
a
Kennedy,
process
that
the
helps
formation
to
hierarchical patterns in post law school life.
formulate
He states
that,
One can distinguish in a rough way between two
aspects of legal education as a reproducer of
hierarchy.
A lot of what happens is the inculcation through a formal curriculum and the classroom experience of a set of political attitudes
toward the economy and society in general, toward
law, and toward the possibilities of life in the
profession.
These have a general ideological
significance, and they have an impact on the lives
even of law students who never practice law. Then
fttlm
of
6
there is a complicated set of institutional
practices that orient students to willing participation in the specialized hierarchical roles of
lawyers.
Students begin to absorb the more
general ideological message before they have much
in the way of a conception of life after law
school.
Id. at 44.
Kennedy feels that there are constant implicit messages
during
law school
that tell
students that hard objective
analysis is the "right" way to solve problems.
He states
that,
This whole body of implicit messages is
nonsense.
Teachers teach nonsense when they
persuade students that legal reasoning is distinct, as a method for reaching correct results,
from ethical and political discourse in general
(i.e., from policy analysis).
It is true that
there is a distinctive lawyers' body of knowledge
of the rules in force. It is true that there are
distinctive lawyers' argumentative techniques for
spotting gaps, conflicts, and ambiguities in the
rules, for arguing broad and narrow holdings of
cases, and for generating pro and con policy
arguments.
But these are only argumentative
techniques.
There is never a "correct legal
solution" that is other than the correct ethical
and political solution to that legal problem.
Id. at 47.
It
body
of
is
implicit
analytical
that
lawyers
knowledge
with
"their"
should hold a
particular
high rank
in
society's hierarchy.
Robert Redmount and Thomas Shaffer (Dean of Notre Dame
Law School) ,
in their article
Toward A Humane Perspective"
"Learning the Law Thoughts
(51 Notre Dame Lawyer 956-73,
7
July
1976),
tell
cooperative
the
barrier
same
is
insular,
self
protective
itself.
Legal
education
story.
the
They
hallowed
character
trains
"Another
traditions
of
its
state,
the
own
and
the
organized
bar
allies"
( id.
at
959) , and "Because the organized bar has a vested interest
in the maintenance of the practice of law in a
manner that are comfortably safe, and familiar,
change
and
practice
most
are
innovation
disfavored"
in
(id.
educational
at
960).
form and
almost all
policies
These
and
statements
reflect a definite leaning towards maintenance of an established legal hierarchy and the maintenance of a legal status
quo.
The second and third steps in the circular process of
"learning to love the law" are components of the establishment of hierarchy and the status quo.
Already alluded to is
the hypothesis that the legal system makes an "offer" of its
system
of
hierarchy
and
students
unanalytical, and uncritical way.
accept
in
a
blinded,
Professor Kennedy states
that .. It would be an extraordinary first year student who
could, on his own, develop a theoretically critical attitude
toward the system.
Entering students just don't know enough
to figure out where the teacher is judging, misrepresenting,
or
otherwise
distorting
(Kairys, id. at 48).
legal
thinking
or
legal
reality"
Part of this thoughtless acceptance of
the legal hierarchy comes through step four,
a process of
treatment
described
in
the
classroom
that
00774
has
been
as
8
inhumane by Duncan Kennedy as a Harvard law professor and as
a Yale law review student; Robert
s.
Shaffer,
Leonard
law
school
deans;
and
Redmount and Thomas L.
Eron
and
Jerold
Auerbach, legal scholars.
Duncan Kennedy questioned the legal education system as
a law student at Yale University in his article "How the Law
School Fails:
A Polemic"
Action, 71 (1970)).
(1 Yale Review of Law and Social
He describes his professors as smug and
overly self confident, whose attitudes imparted an air of
self
satisfaction.
He
felt
that
students
were
treated
hostilely and with contempt through words as well as through
subtle
actions.
atmosphere
wanted
of
His
classrooms
fear whose
were
rulers were
encompassed
seen
as
by
people
an
who
Kennedy states that
to harm students emotionally.
students were often unable to deal with professors as men
and tend to idealize the professors'
downgrade
Kennedy
themselves.
logic and actions and
saw
many
professors
as
aggressive people who think they have to be "tough" in order
to control the classroom.
Most apparent to Kennedy as
a
student was the aura of group submission before the professor.
Students
accepted
"the
importance of what they are
about and lay themselves bare to the mercy of the professor."
Self doubt becomes the norm in a classroom situation
where students are never given credit for hours of hard work
put
into
study,
for valiant attempts
selves open to abuse)
(while
laying them-
at a "right" answer in class, or for
(}()?75
9
subjecting
themselves
to
constant
criticism
and
negative
feedback from their peers as well as professors.
The law student begins to experience self doubt and his
or her sense of self security is greatly undermined.
This
makes the student "hungry" for praise of any kind and more
vulnerable to following the path of thinking that elicits
praise.
This pattern of thinking as described in step one
is more often than not the "tough" analytical "legal" way of
thinking.
becomes
In
this
maleable
way,
to
the
the
student's
professor's
way
of
thinking
formative
Socratic
teaching method.
Robert
article
S.
"Legal
Redmount
and
Education:
Thomas
The
L.
Shaffer,
Classroom
in
their
Experience"
(52
Notre Dame Lawyer 190-218, December 1976), describe the same
frustration
among
students
as
did
Duncan
Kennedy.
They
describe a process in which students are given only part of
an answer and are expected to puzzle the rest out on their
own.
The student is told that he will not understand the
law before he even begins to study, and the subject matter
remains so far beyond his understanding that "the law" takes
on an air of almost mystical quality.
Much of what is done
is through a process of self training.
they must look up
Shaffer and
~nd
Students are told
research law, but are not told how.
Redmount describe how a
professor will
often
hold a student out to the class to demonstrate a model of
ignorance and incompetence.
This process continues until a
10
student begins to "learn to think like a lawyer."
load
in
been,
law
school
is
staggering.
The \-lork
Student comments
have
"I am not protesting studying sixty hours a week.
I
am objecting to eating, drinking, and living the law," and
"I did not realize how much law school would become my life.
It
occupies
nearly
every
hour
of my day"
( id.
at
194) .
Shaffer and Redmount feel that one of the real problems of
legal
education ·may
be
the
lack
of
hurnani ty.
They
had
videotaped several law school classes and the following are
transcriptions of two interplays:
1.
A Traditional Class Discussion (in Trusts and
Estates).
The
professor begins
the
class,
without
fanfare, by asking a student to "give" a "case."
(This means the student is asked to describe the
litigation which culminated in an opinion from an
appellate court, which opinion is reprinted in the
student's
textbook.)
The student recites at
length (three or four minutes) , without interruption, and ends by enumerating several grounds,
asserted in the litigation, for finding a will
invalid:
p:
None of those
were they?
S:
No.
P:
Okay. Let's get to the important problem.
What was the-(Interrupting.)
The important problem was
whether the trust instrument could be
incorpprated into a will by reference.
S:
arguments
were
important,
The fact that the student interrupted here--and,
in fact,
interrupted one of the professor's
questions--is an indication of how much the
"Socratic method" has eroded. Can you imagine (if
11
you've seen the movie)
Professor Kingsfield?
P:
s.
P:
S:
P:
S:
P:
S:
P:
S:
P:
S:
P:
March:
a
student
interrupting
What does that mean?
In other words, if--ah.
(Long pause.)
What was the relationship between the two
instruments: Were there two instruments,
or was there just one piece of paper?
(Pause.)
One instrument was a trust and the other
was a will.
So there were two instruments?
Yes.
And did one make any reference to the
other?
I think that the residuary clause made a
reference to the trust-The residuary clause meaning-(Interrupting.)
No, no--to the will.
Yeah.
What was the reference it made?
Uh.
It made a reference that she could
add or change the term of the-You said the reference was in the residuary clause. Did the residuary clause give
her the power to change the terms of the
trust?
(Very long pause.) March, do you
want to help him out?
What did the
residuary clause do?
(Answers. And the professor repeats the
answer with approval, then pursues details
of the case with March.)
The classical style permits this diversion to a
second student, and would approve of the second
student's being supported--as a way to keep the
first student on his toes in the future.
This
professor deviated substantially, however, by not
then returning to the first student with a new
question. This deviation ill served the important
objective of analytical training and the effective
use of intimidation. This professor also deviated
in allowing himself to become interested in the
subject-matter discussion, often to the point of
some enthusiasm.
He tended to follow these
12
enthusiastic exchanges with several minutes
uninterrupted explanation. For example:
P:
Potter:
P:
Potter:
P:
Potter:
P:
Potter:
P:
Potter:
P:
March:
P:
Third
Student:
p:
of
Mr. Potter, the question is:
Why the
document incorporated by reference does
not have to follow the wills statute.
I think, in a later case, it talks about
when you have a will, a new will, or a
codicil, what you are in fact doing is
republishing everything that
has
gone
before, that you are trying to incorporate. When, you know-No, no, no, no.
Let's not use the word
"incorporate" here.
I'd like you to talk
about what kind of will-(Interrupting.)
So, in other words-Do not use the word "incorporate."
So, in other words, if you have a will
that you're making right now, and you have
a past one that is invalid, because,
maybe, you didn't have enough witnesses.
. So, you have a new document.
(Shouting.) Why?
An old document plus a new one in the new
one.
What does that sound like to you?
That sounds like-March, what does that sound like to you?
You're retaking the, uh-No, no.
It's integration!
Who says that?
Where' s the brave young
man who said that?
(Silence. The professor explains the doctrine of integration
in an excited, argumentative tone.)
The principal hallmark of "Socratic" law teaching
was that the professor was forbidden to answer
questions; he .was expected to lead the student to
find the answer or, failing that, to grumbling
frustration.
Few modern teachers (at least in the
four schools we considered) are able to endure the
no-answer test, although some of them try:
13
S:
P:
Post:
P:
Post:
P:
Post:
P:
Post:
P:
Post:
P:
Atkins:
P:
Post:
P:
Post:
P:
Post:
P:
Post:
P:
Post:
P:
Simon:
P:
I don't understand the difference between
incorporation by reference and integration
and-So, that's what you're supposed to be
finding out.
Okay. You incorporate by reference, and
therefore it is part of the will? I-That's what Mr. Atkins (another student in
the class) told me.
You mean-Mr. Atkins told me that, and everyone
seemed to vote yes on that one.
You mean . . . (She explains her question)
That's what Mr. Atkins told me.
What do
you think?
Well, is Mr. Atkins right?
What do you think?
Well, I would say that-You mean he • s not?
Are you suggesting
that you can incorporate by reference
without integrating that into the will?
Well, you can't.
(Laughs.)
Miss
Post
says
you
can.
(Laughter.)
You mean that you can . • . . (Explains.)
That's what the court said in this case.
(Begins to discuss case.)
The case says that?
Well . . .
Can you give me the name of the case?
It is-No.
I will give you the name of the case
and then you can give me the facts. Turn
the page.
Let me see now, what page are
we on?
(Laughter.)
(Identifies case and
page.)
And what did the court say there?
(Very loudly.) The court said no incorporation by reference, didn't they?
Yeah.
Yeah . . Why did they say that, Miss Simon?
Why did they say "no incorporation by
reference"?
They said "inter vivos": they said it is
no good on its own.
(Pounding desk.)
Why did they say no
incorporation by reference?
14
Simon:
Okay, okay. Answer my question!
(Pause.)
(A third student begins to answer.)
This was the only traditional "Socratic" class
session among those we recorded and is, in that
respect, atypical of those we recorded. There is
here a good deal of interaction between teacher
and student (very little among students).
The
teacher walks a thin line between encouraging the
student to think (which he does with questions)
and badgering the student.
The difference is
between support and intimidation; the device is
brusque, abrupt, rapid-fire questions which could
lend themselves to intimidation.
The thinking
which is encouraged seems to us to indoctrinate
the student into a style or method of behavior.
It aims at behavior more than it aims at information.
It indoctrinates toward behavior more than
it inspires curiosity or inquiry.
The professor
is in control here.
He abrogates irrelevant or
incorrect behavior.
He punishes (or attempts to
punish)
inept or incorrect surmise by curtly
moving his attention elsewhere.
He reinforces
certain emotional or intellectual emphasis in what
students say, according to his own agenda for the
development of the class.
He wheels and deals
while the student struggles to hold on.
(Or, at
least, some students, those who spoke up, struggled to hold on.) Until one becomes accustomed to
this scene, and inured to it, as these students
most likely have, the atmosphere may become tense.
At best, given the students' relative level of
acceptance of this teaching style, the process is
entertaining.
At worst, it becomes boring and
painful and loses the appeal that might come from
personal interest, inquiry, and challenge.
Id. at 201-204.
Another videotaped example is the follo'.-Ting:
Professor:
Student:
Professor:
Student:
What's a trial?
An adversary proceeding.
For what purpose?
To discover the truth.
(Silence for 5
seconds then laughter.)
15
Professor:
Student:
Professor:
(After pause.)
Who cares what the
truth is? (Laughter.)
I care.
(Louder laughter.)
Well in your conversation with God you
can take those questions further.
Brown, what's the purpose of at trial?
Id. at 210.
It is apparent that part of the teaching method is to
confuse the student and make him or her lose self confidence.
The lack of positive feedback in light of tremendous
effort on the part of the student causes extreme tension and
stress.
Self doubt creeps into the law student's psyche and
he or she yearns for positive feedback.
student
begins
to
"think
like
a
At this point, the
lawyer."
Redmount
Shaffer comment that,
The aura and mystery surrounding the classroom experience, as Llewellyn contemplated it, and
its resulting accountabilities, are not as enigmatic as they may seem. At least they are not if
one turns an ear to psychological explanation, and
chooses to listen to it.
In many respects, the
traditional
law-school
teaching
methodology
(commonly called "Socratic") is not unfamiliar.
It may be associated with military basic training,
or with a kind of interrogation familiar to
constabulary and intelligence operatives.
First,
the mentor creates consternation, if not confusion, by assuring the learner that he will learn
and then the learner is rudely reminded of how
little he understands.
A subtle application of
aggression creates pain and induces fear.
(Students of behavioral conditioning will recognize
the process.)
However,
the demeanor of the
teacher (administrator of pain) is not entirely or
even consistently negative; he blends into the
process an offering of assurance and support. He
mixes a benign manner which says that he seeks to
help
more
than to hurt.
He
suggests
and
and
16
demonstrates that the result will be worth the
pain·
The student is supposed to learn both to
fear and to seek, but most of all he is supposed
to become dependent upon the mentor; he is
divested of his own mental and emotional bearings.
Given the reward system in this traditional
classroom, the student becomes eager to please; he
seeks to avoid the pain of humiliation and he
seeks the pleasure of praise (and grades) .
His
goals are survival and dignity; the only means to
these lie in the approbation of the mentor.
The
urgency to survive makes other interests, feelings, and values remote if not irrelevant.
In
time, pride develops in becoming successful, and
even an arrogance of intelligence and exclusivity
develops.
One not only learns to think like a
lawyer, but one also learns what it is to feel
like a lawyer, to be, perhaps, on the other side
of a dependence relationship.
The process is
11
roughly what psychologists call identification. 11
Fierce pride and confidence are its characteristics,
but among the effluvia are arrogance,
combativeness,
narrowness,
and,
deep
within
perhaps,
some
suppressed
self-revulsion
and
self-doubt.
Id. at 196-7.
As I read analytical law review articles and studies, I
began to be reminded of another form of learning a new way
of
thinking.
I
was
shocked to
find
similarities
in the
methods of training lawyer-like thought to the indoctrination
techniques
associated
with
religious
cults.
The
following are excerpts from a book by Will~ Appel entitled
Cults In America (Holt, Rinehart & Winston, New York, 1983).
First the individual is isolated from his
past life, cut off from his former position and
occupation as well as from those with whom he has
emotional ties. Isolation is physical--separation
(Jf)?R:J
17
from home,
symbolic.
family,
and place of work--as well as
Humiliation and guilt are the basic tools in
the psychological dismembering of the former self.
There they were subjected to a program of
hard physical labor, while at the same time they
had to learn an enormous mass of ideological
material.
These dual requirements made relaxation, privacy, and objective reflection impossible, gradually producing a state of exhaustion in
the trainees.
The debilitating effect of unrelieved pressure was .compounded by the institution
of "study" groups to help trainees learn the new
material.
In essence these study groups were
forced confessionals, ·wher·e the high priests and
acolytes of the new order pressured the convert to
renounce his past life and accept a reformed
identity.
It usually took about six months to
produce a breakdown in the trainee. By then, the
combination of prolonged exhaustion, the tension
of constant self-questioning and peer critic ism,
the pervasive atmosphere of uncertainty (poor
students often just disappeared, giving rise to
rumor and anxiety), and the sense of helplessness
aggravated by unrelenting pressure would bring
about an emotional collapse.
Once the subject's
resistance had been broken, the need for some sort
of order predisposed him to accept new ideas.
In short, love, at first given so unconditionally, becomes a reward to be earned through
proper behavior. The criteria become increasingly
stringent.
The effort to try to learn the
required response to gain approval, combined with
a lack of sleep, inadequate nutrition, and constant, strenuous activity that allows no time for
rest or reflection, begins to take a toll.
The
guests lose tpeir critical faculties.
Exhausted
and emotionally overwrought, they find it easier
to lie low, keep quiet, and not provoKe the anger
and disapproval of the group by asking questions
and expressing doubts about the world view they
are being asked to embrace.
Id. at 77, 81 and 85.
18
Although
I
in no way mean to imply that there is a
conscious effort on the part of legal educators to "brainwash"
or
that
the
rigors
and
outcome of
law
school
are
anywhere near as stringent, it is enough to take notice of
the similarities between the processes and to question the
"rightness" of the teaching methods presently used.
reading
about
these
indoctrination
"learning to love the law"
techniques,
takes on a
After
the
term
slightly different
significance.
The
stages;
final
step
five
is
practicing attorneys
a
result
within a
of
the
legal
preceding
system whose
trouble areas are often those that require humaneness
dealing
with
clients)
and who
fit
within
a
(in
professional
hierarchy similar to the hierarchy impressed upon them in
law school.
Jerold Auerbach, in "What Has The Teaching of Law To Do
With Justice?"
1978),
(53 New York University Law Review, 457-474,
complains
that
in
trying
to
think
like
lawyers,
attorneys, law professors, and law students put process over
substance.
He
feels
that
looking
at
law
as
more
a
scientific than substantive area of study causes lawyers to
think analytically at the price of thinking humanely.
doing such,
law becomes a mere application of rules,
In
and
morality may become validly divorced from it.
Thomas Shaffer and Robert Redrnount echo that statement
in their statement that,
(J(J?Rf)
19
.
.we believe that the context of learning law
1s
1n~e~lectually
competitive and emotionally
desens1t1zed.
The
impact
of
this
emotional
climate and learning environment blunts human
sensibility.
The disposition to help clients, as
distinguished from finding and implementing the
law for clients, is reduced.
There is a larger
reward for aggression than for empathy. The young
lawyer is rewarded for heeding his traditional
image of fighter and champion of causes.
If he
purports to counsel clients it is mostly in a
narrow, paternal way; he gives advice but fails to
employ mutual _sensibilities that are the essence
of a shared -and supportive human relationship.
This relationship, we think, is often the real
goal and basic need of the client in search of
counsel.
Finally, and most critically, legal education
seems to lack the consciousness that learning is
an intimate personal and psychological experience.
The accumulated clinical insight of generations of
psychological,
psychoanalytic,
and
psychiatric
experience illuminates as well as complicates our
understanding of human behavior, but it is lost on
those who tune themselves out, who protect themselves
from
involvement
with
other
persons.
Tuning out on the personal experiences of students
in learning is a doubtful luxury that, in any
event, teachers can ill afford.
The failure to
accord dignity and sensitivity to students as
individuals and as learners compounds the learning
task.
It frustrates learning because it does not
recognize the importance of motivating and supporting the student.
The student has intrinsic
mechanisms which spawn interest and curiosity, and
fear and doubt, and concern and decency.
The
teacher plays on these dispositions and tendencies; in doing so he helps or harms the student,
both as a person and as a learner.
He sets a
precedent,
knowingly
or
not,
for
the . ~o~ng
lawyer•s professional behavior by the sens1t1v1ty
or insensitivity he shows in the critical human
relationship of education.
He has th~se i~flu­
ences whether he realizes it or not; h1s fa1lure
20
to recognize
worse.
them
probably
makes
his
influence
Legal Education, id. at 964-5.
And in their article "thoughts Toward A Humane Perspective"
(id. at 959), they state that,
It is the lack of humanism more than the lack of
technique which shames legal education.
Without
the cultivation of self-consciousness and people
consciousness,
as
well
as
law-consciousness,
preparation for the practice of law becomes
sterile, and inadvertently the practice itself
£ . ends
t.-o become sterile.
Lawyers are often
insensitive to the society they purport to serve.
Id. at 969.
Andrew S. Watson, M.D.
tionshi;ps
for
his
article
researched lawyer-client rela"Some
Psychological Aspects
Teaching Professional Responsibility"
Education 1-23,
of
( 16 Journal of Legal
1963), and found that law school fails to
develop the humaneness needed in order to deal with clients
adequately.
The lack of humaneness in law school education
is even reflected in terms of who a young lawyer will have
as clients.
Duncan Kennedy states from "Legal Education As
Training For Hierarchy,"
Law schools channel their students into jobs in
the hierarchy of the bar according to their own
standing in the hierarchy of schools.
Students
confronted with the choice of what to do after
they graduate experience themselves as largely
helpless:
they have no "real" alternative to
taking a job in one of the conventional firms that
hires
from
their
school.
Partly,
faculties
21
generate this sense of student helplessness by
propagating myths about the character of the
different kinds of practice. They extol the forms
tha~ are accessible to their students; they subtly
den1grate or express envy about the jobs that will
be beyond their students' reach; they dismiss as
ethically and socially suspect the jobs their
students won 1 t have to take.
Id. at 51.
From the same article, he sums up the total process:
Law teachers model for students how they are
supposed to think, feel, and act in their future
professional roles.
Some of this is a matter of
teaching by example, some of it a matter of more
active learning from int·eractions that are a kind
of clinical education for lawyerlike behavior.
This training is a major factor in the hierarchical life of the bar.
It encodes the message of
the legitimacy of the whole system into the
smallest details of personal style, daily routine,
gesture,
tone of voice,
facial expression--a
plethora of 1 i ttle p' s and q 1 s for everyone to
mind.
Partly, these will serve as a language--a
way for the young lawyer to convey that she knows
what the rules of the game are and intends to play
by them.
What 1 s going on is partly a matter of
ritual oaths and affirmations--by adopting the
mannerisms, one pledges one's troth to inequality.
And partly it is a substantive matter of value.
Hierarchical behavior will come to express and
realize the hierarchical selves of people who were
initially only wearers of masks.
Law teachers enlist on the side of hierarchy
all the vulnerabilities students feel as they
begin to understand what lies ahead of them.
In
law school, students have to come to grips with
implications of their social class and sex and
race in a way that is different from (but not
necessarily less important than the experience of
college.
People discover that preserving their
class status is extremely important to them, so
important that no alternative to the best law job
00?~
22
they can get seems possible to them.
or they
discover.that they want to rise, or that they are
trapped 1n a way they hadn't anticipated. People
change the way they dress and talk; they change
their opinions and even their emotions.
None of
this is easy for anyone, but progressive and left
students have the special set of humiliations
involved in discovering the limits of their
commitment and often the instability of attitudes
they thought were basic to themselves.
Another kind of vulnerability has to do with
one's own competence. Law school wields frightening instruments of judgment, including not only
the grading system but also the more subtle
systems of teacher approval in class, reputation
among fellow students, and out-of-class faculty
contact and respect.
Left students sometimes
begin law school with an apparently unshakable
confidence in their own competence and with a
related confidence in their own left analysis.
But even these apparently self-assured students
quickly find that adverse judgments--even judgments that are only imagined or projected onto
others--count and hurt.
They have to decide
whether this responsiveness in themselves is
something to accept, whether the judgments in
question have validity and refer to things they
care about, or whether they should reject them.
They have to wonder whether they have embarked on
a
subtle
course of acconunodating themselves
intellectually in order to be in the ball park
where people win and lose teacher and peer
approval. And they have, in most or at least many
cases, to deal with actual failure to live up to
their highest hopes of accomplishment within the
conventional system of rewards.
Id. at 53-4.
Although not by any means an exhaustion of all sources
of explanation and realizing that a rather one-sided presentation of views has been made, I hope the reader might take
away
at
least
a
new angle with which
{Jf)?R9
to view the
legal
23
education process.
It is my hope that this type of critical
evaluation serves not to destroy positive portions of the
educational system, but to help form a foundation from which
to build a positive process of reform.