Legal Reasoning

[majorporcupine]

Well, I for one really like my law school.  My professors challenge me and my classmates are the best.  I'm looking forward to a lucrative and successful career as a lawyer.

[fedhex]

Okay.

[Bravo]

After my first year of law school I've come to the conclusion that our legal system is fundamentally sick. In essence, though, I believe that is because the legal system is a product of our sick culture, a culture whose metaphysical axioms -- if they were taken seriously -- would require people to believe that choosing between the morality of Socrates and that of Hitler is no different from choosing between Coke and Pepsi.

In its more manifestations, what Americans call the "rule of law" can come to resemble a form of mental illness. Can anyone who followed the O.J. Simpson affair dismiss such an idea out of hand? I believe what (usually) keeps the madness of law from becoming the madness of lawyers is a necessary -- and indeed a therapeutic -- inauthenticity. In fact, inauthenticity is essential to authentic legal thought. After all, lawyers make claims not because they believe them to be true, but becuase they believe them to be legally efficacious. If they happen to be true, then all the better; but the lawyer who is concerned primarily with the truth value of the statements he makes on behalf of clients is soon going to find himself unable to fulfill his professional obligation to represent those clients.

Not only intellectual inauthenticity, but also emotionally ..

Lawyers are often impelled by their professional obligations to become something akin to emotional prostitutes; that is, to be persons whose public personae require the simulation of inauthentic affective states as a condition of their compensation. In the context of ongoing litigation the most common of these simulated emotions is outrage: a lawyer trying a case must always be ready to express what seems like genuine outrage at the drop of the proverbial hat.

Perhaps because so many politicians are lawyers, or perhaps simply because everyone has seen facets of the lawyerly persona exhibited in so many different contexts of social conflict, various dramaturgical requirements of the adversary system are now being assimilated gradually into all forms of public conversation. In particular, the simulation of outrage has become a seemingly permanent part of the broader political culture. National television programs featuring supposedly sophisticated political commentary, such as "Crossfire," "The McLaughlin Group," and "The Capital Gang," provide examples of how lawyerly rhetoric and its accompanying emotional simulation have become key elements in the dramatic logic of public political discourse.

[JC]

By Avi Klein
-
 
Alger Hiss once remarked to his son that "three years at Lewisburg penitentiary is a good corrective to three years at Harvard [Law School]." It is hard to know exactly what he meant by this — Hiss (codename: Advokat) was, after all, a communist spy — but he was neither the first nor the last lawyer to suspect there was something fundamentally wrong with legal education. As Hiss's behavior suggests, law school has the ability — some might say the intention — to engender greed and intellectual myopia, sometimes from the very first day. Young, creative, ambitious men and women, fresh from four years of liberal arts education, enter law school eager to make a change in the world. They leave as dedicated corporate functionaries, consumed with money and prestige, and fearful of upsetting the legal establishment. Law school breaks people. It is experienced as a trauma, an assault. If law school changes people, it is rarely for the better.

What neither of these two styles of book manages to do, however, is seriously discuss what it is exactly that makes law school so unpleasant. To understand law school — and therefore the grassroots of the legal profession — one has to first grasp the economics supporting it. Litowitz, a professor at Ohio Northern University with a short career in corporate law, stakes out space few practicing attorneys are willing even to survey: The system, Litowitz observes, is designed and sustained by corporate law firms in order to create just the right number of lawyers to fulfill corporate demand, but not so many that the fees of established lawyers are at risk of competition. At the same time, by failing to adequately teach these same lawyers how to actually practice law, and by saddling them with huge debts in the process, the legal establishment scares young lawyers into cowering submissively before the awesome power of the organized bar and the licensing authorities.

Law students leave the real world behind sometime around orientation, learning instead to construct their lives around their grades and careers, often to a point of absurdity.

Public opinion of lawyers is shared by lawyers themselves. "Attorney self-loathing," Litowitz reports, "is a specific response both to the conditions under which lawyers are educated, licensed and regulated and to the economic cauldron into which they are thrown." Students worry that they aren't smart enough, that they aren't competent enough, that they won't earn the grades they need to pay off the average $80,000 of debt the average law student accrues. They begin to hate what they are becoming, yet fear alternative paths. Although only ten percent of incoming law students report mental health problems, forty percent of graduates do.

The self-hatred begins in law school classrooms, where the Socratic method — "a ritual of subjugation that purposely disables a student" — is still used, even if it has softened a touch since Turow's experience in the 1970s. Each answer solicits a further question, until the student is forced either into a mistake or into admitting in front of his peers that he is ignorant. "There is a strong element of sadism in the Socratic interchange," Litowitz writes. "It uses fear and shame as a motivating force, which is easier than motivating people with ideas and worthy goals." Instead of learning out of intellectual interest, students study as an insurance policy against being called upon.

If the Socratic method was actually an effective pedagogical device, the costs might be worth the benefits. But, as Litowitz explains, it has absolutely no merit other than as a way to establish a power differential between the would-be lawyer and the already established one. Socrates himself didn't use it to teach — it was just a conversational tool he used on his friends. After all, the teacher is the one who is supposed to explain things to the students, not the other way around. This is especially true with the law, which is intrinsically complicated to such an extent that students need a professor who makes the subject less complicated, not more. Is it really necessary to raise the anxiety levels of ninety students just to teach the parol evidence rule?

By using the Socratic method and emphasizing the case study approach — law school textbooks are mainly compilations of appellate decisions, not original teaching material — law professors fail their students both intellectually and professionally. At graduation, the student knows much about appellate court opinions on various complex matters, but to the exclusion of any practical knowledge of how to actually practice. Students know the difference between a 'fee simple absolute' and a 'fee simple subject to condition subsequent,' but they don't know the first thing about how to write a will that takes these concepts into account. Contracts classes rarely involve looking at one. One can even graduate law school without learning how to format a word processor to include line numbers on the margins. Compare this to medical school, where graduates have spent two years in hospital rotations assisting in surgery and delivering babies, and it is easy to call the typical recent law graduate a licensed fraud.

[JC]

If there was a conspiracy to commit such a fraud, it would begin with law school and end with the bar exam. Developed in the 1910s in the same fervor of WASP anti-Semitism that motivated the Ivy League to overhaul its admissions procedures, the bar exam has served ever since to boost lawyer salaries while reducing the numbers of skilled lawyers available. Although there is absolutely no evidence that the ability to pass the bar is related to how well someone practices law, there is an aggressive psychological element not unlike fraternity hazing that helps perpetuate the system. The bar exam is a rite of passage by which the hopeful lawyer-to-be shows his willingness to do anything to please the state bar authorities in exchange for a license. This humiliation is complete with a bar disclosure form that rivals the CIA's in its comprehensive invasiveness. In Maryland, applicants must present themselves at a character interview — a smilingly impolite episode that permits a senior attorney to inquire after a new lawyer's finances and mental health. The message is that the bar made your career on arbitrary grounds, and it can break it the same way.

Each state has its own exam, though most supplement a day of essay writing with the Multistate Bar Examination (MBE), a two hundred question multiple-choice exam testing common law disciplines including torts, contracts and property. To pass the bar it is necessary to have at your fingertips an overwhelming stockpile of one-sentence rules about miscellaneous legal subjects. If lawyers practiced like doctors, instant recall would be worth examining. But they don't. When you hire a lawyer, most of what you pay for is his research ability, not his immediate knowledge, and very few corporate lawyers handle any of the issues being tested. Even so, students are placed through a wringer in which they must dedicate 2 months of study, paying thousands of dollars for preparation courses, all under the absurd presumption that their "competence" is being tested.

Of course, what makes a competent lawyer one year may make an incompetent lawyer the next. When scores on the MBE started to rise in the 1990s bar examiners were not delighted: instead they raised the passing cutoff point to ensure that an even greater number of students would fail. As a rule, the more popular a state is, the more difficult the exam. Although there was no evidence lawyer quality was suffering, the Florida bar now fails twice as many first time takers as it did ten years ago, all in order to avoid putting the people of Florida at risk. The Sunshine State, not coincidentally, is also a popular retirement home for East Coast attorneys who might be tempted to set up small practices for extra income.

This is all particularly absurd when one considers that most jurisdictions require out-of-staters to retake the MBE to be admitted. If John Roberts decided to leave the Supreme Court and retire to Virginia, keeping a small office for occasional appellate work, he would still have to go for two days next July and sit in a hot auditorium filling in multiple-choice bubbles about constitutional law. (That would be the least of his indignities: Test-takers in Virginia are required to wear both business suits and sneakers or other quiet shoes—Adidas poking out beneath their Brooks Brothers trousers in a Paul Bremer-inspired look.)

One additional distasteful characteristic of the bar exam is that it artificially deflates the number of minority attorneys. First-time bar passage rates for African-Americans are only 61%, compared to 90% for whites. While law schools have aggressively developed affirmative action programs for both students and faculty, the bar associations have not succeeded in meeting the needs of minority communities. The effect is especially pernicious because, according to a University of Michigan study, minority lawyers are far more likely than their white classmates to pursue public interest jobs.

For many young corporate attorneys, the firm is a sweatshop, and their own labor is merely legal-ruled piecework. The law is crowded — interesting — and full of despair, wrote Archibald MacLeish to his parents after a few disappointing years as a lawyer. It offers its own rewards, but none other. To his friend Dean Acheson he wrote, "If I correctly analyze my emotions, I am attracted to the law by considerations the most superficial imaginable." Lawyers suffer high rates of mental illness, job dissatisfaction, alcoholism and drug abuse, and divorce. Sandra Day O'Connor calls them "a profoundly unhappy lot." Mitigating all this personal unhappiness, of course, are the fat paychecks lawyers receive each month — it is hard to feel too sorry for them. The real losers here are the millions of Americans who can't afford the legal representation they need. The incarcerated may receive a court-appointed attorney, but a person in a dispute with a landlord, or on the wrong end of a collections agent, will be lucky to find a law school clinic to assist him. In the end, such a person will always fall victim to rapacious interests that can afford a legion of intimidating legal shock-troopers. We are used to thinking that America has too many lawyers. The truth is, the lawyers we have are just the wrong kind.



Avi Klein, an intern at The Washington Monthly, is licensed to practice law in Maryland. He never has.

[arcanismajor]

In Orwell's Nineteen Eighty-Four there is a particularly chilling scene in which, after the director of the Ministry of Love has subjected Winston Smith to intense physical tortures, he employs another strategy in the process of Smith's gradual re-education.

^{"This time it will not hurt," [O'Brien] said. "Keep your eyes fixed on mine."
   At this moment there was a devastating explosion, or what seemed like an explosion.... A terrific, painless blow had flattened [Smith] out. Also something had happened inside his head ... somewhere or other there was a large patch of emptiness, as though a piece had been taken out of his brain.
   "It will not last," said O'Brien. "Look at me in the eyes.... Just now I held up the fingers of my hand to you. You saw five fingers. Do you remember that?"
   "Yes."
   O'Brien held up the fingers of his left hand, with the thumb concealed.
   "There are five fingers there. Do you see five fingers?"
   "Yes."
   And he did see them, for a fleeting instant ... there had been a moment -- he did not know how long, thirty seconds, perhaps -- of luminous certainty, when each new suggestion of O'Brien's had filled up a patch of emptiness and become absolute truth, and when two and two could have been three as easily as five, if that were what was needed ...
   "You see now," said O'Brien, "that it is at any rate possible."}

Compare this passage to Karl Llewellyn's famous description of the student's first year of law school: "The hardest job of the first year is to lop off your commonsense, to knock your ethics into temporary anesthesia. Your view of social policy, your sense of justice -- to knock these out of you along with woozy thinking, along with ideas all fuzzed along their edges."

Bot of course when we undertake the resolution of hard issues it will always be the case that the relevant legal concepts, the demands of social policy, and the ideal of justice will by necessity appear to sensitive interpreters to be "fuzzed along their edges." That very same formal, empirical, and ethical fuzziness is, after all, what makes hard issues hard. A successful legal education therefore both sharpens and desensitizes the adept's sense of analytical complexity, sharpening it so that the advocate can identify various plausible arguments, and then deadening it for the purpose of making and (especially) deciding between such arguments. This  characteristic doubleness of the legal mind produces the doubleness of the literal sophomore -- of the brilliant simpleton who understands and exploits and at appropriate times forgets -- the evidentiary problems, conceptual incommensurabilities, and ethical dilemmas that always characterize legal issues. To be trained to think like a lawyer is to be taught how to evoke all the chaotic complexity of law, and then how to repress the intolerable doubt that same evocation can produce by going on to achieve the "luminous certainty" required of the advocate or judge.   

Well, in the cold calculus of the utilitarian the American law school is a classic barrier to entry, designed to maintain a professional cartel. From a democratic viewpoint it is a seminary for the production of a mystifying priestcraft, whose obscurantist incantations help legitimate the power of the social and cultural elite. In academic terms it is a mostly fraudulent operation that teaches neither theory nor practice, but instead functions as the equivalent of a foreign service academy that would show its charges Goldfinger several hundred times before sending them forth to conduct trade talks with Austria.

Shouldn't then law school be abolished altogether? After all, no other legal system in the world requires 3 years of postgraduate schooling before one can undertake the most routine matter of client representation or courtroom advocacy. Indeed, the maverick presidential candidate Morry Taylor made a pledge to close down American law schools for 10 years, a major proposal of his quixotic campaign. Why not make the study of law an undergraduate program, or a college major followed by some sort of postgraduate apprenticeship -- this would surely be a quintessentially rationalist response to an institution that survives, and even thrives, because it fills a deep cultural need for the maintenance of some atavistic set of rituals that will obscure the inescapably troublesome and often tragic relationship between moral belief, political science and social power.

Given the rhetorical requirements of legal argument, and the practical exigencies of legal decision making, it isn't an exaggeration to say that the tasks of preparing persons to undertake zealous legal representation and render legal judgment are to some extent incompatible with maintaining strict standards of intellectual honesty. Such is the fate of, e.g., those who must prepare others to wield social power arbitrarily, and yet who must at the same time legitimate that use of power by claiming legal arguments and the decisions that flow from them are impelled by "the law," or "legal principles," or "reason" itself.

But there is no reason why that fate needs to be replicated in all other areas of social life.

Corporate culture in modern times has demonstrated a general preference for 'pragmatism', and this is an occasional source of hostility toward learning. The idea here is that education is a costly and useless distraction from the more important business of making money. Reading and writing are solitary ventures, and according to this viewpoint these activities do little to make a person more affable or conventional and do not foster an aptitude for marketing or acumen for investment in profitable ventures. It is feared that intellectuals may acquire ethical and political ideas that may impede business or make its practices distasteful. Scientific and technological learning may be given a grudging respect; but the arts, literature, philosophy, and similar cultural pursuits are all considered a waste of time at best and subversive at worst. Those who pursue them are supposed to inhabit an 'ivory tower' of academia, full of grand plans whose practice is seen as impossibly flawed.

According to this view, education should be a sort of apprenticeship, rather than being done on the model of classical education based on Greek and Latin grammar and literature. The educational philosophy of John Dewey, founded on these assumptions, has had some influence on education in the USA, although it must be said that Dewey was also a philosopher and an atheist - two qualities guaranteed to raise suspicions among anti-intellectuals.

[andthensome]

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[mejosis]

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[gondola]

The post by Avi is simply marvellous! Thanks jc for posting it here!

[www]

Indeed, gondola!