Law in Contemporary Society

The Iron Law School of Oligarchy

-- By RyRavenholt - 25 May 2015

Functioning as Lawyers

After finishing the first year of law school, a simple question occurred to me, why was I forced to take the classes that I did? Learning black letter law now seems relatively pointless to our potential practice. The answer frequently given is that these courses teach us to think like lawyers. It is not clear, however, why contract law teaches legal thought better than any other area. The real function of first year classes seems not to be teaching us to think like a lawyer but to facilitate our socialization into the modern role of lawyers as functionaries of an oligarchic economy. The subjects required in the first year and the method in which they are taught work to restrict creative or radical thinking by normalizing the economic legal structures and relegating possible answers to approved solutions.

Imposed Economics

The fact that courses dealing with wealth constitute a majority of the first year may not seem odd at first. Historically contracts, property, and tort law has served an introductory role. But their dominance is not inherent in their nature, there is nothing that makes laws dealing with economic structure more essential than criminal law or international law or regulatory law or the infinite other alternatives. What is inherent in these areas of law is the protection of unequal distribution of wealth. While different policy decisions might decrease inequality, history has shown that legal regimes of economic protection have always facilitated the accumulation of wealth by a minority and the defense of their holdings from forces that might seek to deprive them of it. The effect then of first year class selection is to force an economic outlook on potential lawyers. It provides the initial push directing students towards thinking and acting in the service of these systems. The first year class selection forces students to become involved in and surrounded by the rules that protect the unequal distribution of wealth.

Questionable Playing Fields

Of course many students do not come to law school to defend the wealthy, so it would be na´ve to say that mere exposure to case law would convert them into servants of capital. And while many might leave law school with a desire to attack inequality or to avoid economic law altogether, the method in which these introductory classes are taught serves to stifle any creative approach to legal thinking about wealth. The main means by which the economic courses defend their orthodoxy is through questions. It is by asking questions that these courses define the legal playing field. Every time you are asked whether there is consideration, if there was proximate cause, if there was the necessary modicum of creativity, it is being ingrained in your head that these are the important questions to ask. The emphasis on elements and their satisfaction is almost a compulsory loss of the forest for the trees. Any creative understanding of the larger application of the law or its societal causes and effects are forcibly sacrificed in the pursuit of a checklist. A proponent of this method can argue that these are the important elements because that is what the law demands. While in actual practice it will of course be necessary to argue specific elements, it is hard to see why they are necessary now. We are not learning these elements so that we can remember them years from now when they become pertinent. Arguing a point is a useful talent to have, but the first year approach forces two answers on you and asks you to argue for one or the other, when then creative argument should already be searching for a third answer.

Easy Altruism

First year education also stifles creativity and radical approaches by channeling altruistic feelings into orthodox approaches. Many students do want to help the disenfranchised and the poor. Many students do see injustice and want to do something to fix it. First year teaching handles this altruism by giving it a means to express itself. Students are encouraged to come up with policy arguments defending miniscule points. A grand arena is erected where students can defend the benefits of standards over rules or judicial decision making over jury deliberation. Critiques of institutional forces are replaced by approved methods and feelings of altruism are severed from creative approaches by the constant feeding of low hanging fruit. This is not to say that these arguments are not important. They are however, often only tile pieces in a larger mosaic.

When the Market Demands

Defenders of the first year approach may point to the job market after law school and argue that economic law courses are necessary because most students will be taking economic law jobs. This argument, however, is dangerous both because of its circularity and its bluntness. First of all not all lawyers will make a career in economic law, yet each is subject to first year curriculum. Second, creating economic lawyers because people will be employed as economic lawyers seems an absurd justification. How much first year law courses influence students to become defenders of the economic structure is an interesting question, but it seems a waste to take such concentrated potential and force it towards facilitating oligarchic wellbeing. Law school should not be a machine forced into producing what the firms demand, but a means of creating independent lawyers.

Hindsight

The first year of law school is supposed to be hard, what they fail to tell you is that it is at many times quite boring. The disappointment of those who come to law school hungry and leave unsatisfied seems avoidable. Of course the creative law student will find enjoyment and ideas within these courses even if they are not enthralled by the subject, but it seems a waste to require stretches of the imagination to enjoy the first year. What an ideal first year course load would be, that is a question for each student to ask.

In a rather rigidly unequal society—which this one actually is, regardless of its history, ideology and self-perception—one could not teach people to be lawyers without teaching them the mechanisms by which that inequality is maintained. But the real reason the first year of law school works as it does, which you haven't discussed or analyzed, is that it's the simplest way to mobilize a disproportionate quantity of the available teaching services for first-year students. The first year is the most expensive to mount, because this is where the small classes taught by supposedly-professional teachers are. Upper-year classrooms, where students choose to enroll, are larger and inexpensive to offer, if you can fill the empty seats created by choice: this is the purpose of transfers and LLMs, who pay full tuition though they do not receive the expensive first-year teaching allocation at any point in their time. Clinics are also expensive, but students who take them do not otherwise fully load the curriculum, and we can, by rationing the number of clinical instructors allowed on the faculty, protect our margin.

Your real recommendation, when you get down to it, is choice. The economics now run in your favir, which is why the idea of 1L-only elective courses is being replaced by a limited opening to the full curriculum. The more you demand that, the higher the profitability on your first year, so long as you are offered seats in upper-class courses that would otherwise go unsold.

What would be better for you, however, would be if you were choosing not among all the offerings in law school, but among offerings geared to the needs of your first year in law school that also reflected your social and professional interests and your psychological needs as a developing professional. To create such a flexible but also rigorous and effective professional training curriculum would be a major challenge to highly skilled educators giving their utmost priority to the invention of better teaching: that 's not law professors. So you are advocating the destruction of curricular coherence in the interest of individual self-education, because among the bad choices available, that's the best. I agree, reluctantly, and have tried to create a course that would afford students seeking that outcome the best preparation I could offer them at the most strategically important moment in their law school careers. Closer reflection on what you are doing and can do, what you need help with, and how it could be provided to you, would in that sense be far more valuable to me as a teacher, as well as you as a student, than a general analysis of one part of a complex synthetic phenomenon.


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r3 - 29 Jun 2015 - 21:52:00 - MarkDrake
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