Law in Contemporary Society

Trusting the Process

-- By TanyaSehgal - 18 May 2009

I had intended on writing this paper on the ways that elite schools subtly move their students into the more "prestigious" career paths, and the way the profession as a whole have an arbitrary hierarchy of what types of lawyering are desirable. I wanted to talk about the way that personal injury lawyers are derogatorily called “ambulance chasers” because they make their money off of their client’s pain and suffering, a strange argument considering that many lawyers make their money off of conflicts that presuppose some amount of suffering. Even though we have a varied first year curriculum, it sometimes seems like there is no place to go if torts turns out to be a student’s favorite. I was going to mention there is a set of messaging (seen, for example, in the Legal Practice Workshop’s choice of assignment – the appellate brief and the firm memo) that simply overlooks entire sectors of law practice without mentioning why. We are told that we should be on a journal and consider clerkships with little discussion of whether not it is a good fit. Our interests and our selves are defined by our identity as elites.

As I tried to flesh out the above paper, to give it some kind of point, I became terribly bored with the topic. With my last 1L final 72 hours behind me, I can no longer muster up the interest to rail against the system. Is this feeling, the apathy that sets in immediately after you know that you no longer have to deal with it, the exact thing that allows law school to remain unchanged, despite the fact that every year 1Ls are frustrated (horrified, even) by the exact same things? Or, are the feelings that I had during the year, part of the process of discovering what I believe in? Is 1L the way it is by design? Will I one day move from apathy to appreciation?

In class, Professor Moglen asked us to reserve judgment about his teaching methods in recognition of the fact that sometimes the best time to evaluate something is not as it is unfolding but at some point in the future. In reflecting on past education experiences, Professor Moglen’s point rings true. The best education comes when the lesson reveals itself through an environment manipulated by the teacher to have the student figure out the desired result. This can only happen if the student doesn’t know what he is to learn upfront or at least, why the lesson has to come in the form in which it is being presented. The process is like a scaled up science experiment – it would be easy for the teacher to simply tell the student the scientific principles, but the lesson is much more deeply comprehended when the student conducts an experiment that demonstrates why the result the way it is. It would be more direct to simply state the point of certain phenomenon, but it might be more effective to hide the purpose until the end, or perhaps never even reveal it all. Our role as students, then, is to be trust those who are attempting to educate us.

Maybe the first year of law school is the way it is in order to simulate the conditions of what it is like to practice law, and to give us a somewhat controlled environment in which we can practice how we want to approach such conditions. Perhaps the point of the exams, the cold calling, and the jumping through hoops, is to push us to be ourselves in the face of stress and profound pressure to follow the herd. Until three days ago, I thought it would be simpler, more compassionate, and more constructive for law school to be positive environment with more affirmations and hand holding. But perhaps such an approach would leave us ill-suited to deal with these issues when they inevitably face us later down the road. Maybe law school rejects taking a more positive approach for the same reasons that Professor Moglen does.

That said, Professor Moglen and the law school have very different motivations. Professor Moglen seeks to make us better, more fulfilled lawyers, and the law school seeks to be the best business it can by attracting the best applicants and performing well on the factors set forth by US News and World Report. Assuming, for the sake of argument, that the law school is not designed to promote student welfare at all, I’m not sure that matters. If the first year of law school has the effect of creating a simulating a reality that many of us will one day have to confront, than maybe approaching it with a spirit of trust instead of a desire to reform will be more fruitful. There are still lessons to be learned, and if having gone through this deepens a conviction to avoid environments like this in the future, then it will have served its purpose. Maybe my feeling of apathy could be better characterized as acceptance or faith even, that something useful happened here.

On the other hand, maybe I’m being na´ve. If most people come out of this process so broken down that they can’t bring themselves to leave environments like this (Battered Law Students Syndrome, perhaps) than it would be indefensible to say that my lack of desire to think about how to reform law school is a good thing.

To be honest, I’m just not sure which it is. Does this make us stronger or not? I can only speak anecdotally about the experiences of me and my friends, and lately I’ve been seeing a trend where people are taking control over their education (Fuck This Stupid Rule) and thinking hard about what they want. I, for one, am taking my time on this paper instead of scrambling to finish the writing competition whose object is a prize I don’t want. And that’s something.

  • I do too. And I think the effort has also resulted in improvements that can be seen very clearly from the first draft of the first essay to this one. At all levels I think we can see where you've derived value from the experience.

  • There are a couple of places along the way in your analysis where I feel something personal should be said. In the first place, I would draw a distinction between pedagogy that helps students to learn for themselves what the experience of learning is about, in which people grow into what they learn rather than absorbing what's presented, and mystification for the sake of appearances, to make a guild more powerful and its rituals more impressive. Law school pedagogy is sometimes of the second kind, particularly in the first year, and this is a drawback rather than a feature. Pedagogy of the first kind is perfectly consistent with explaining what's going on, presenting ideas for consideration in a straightforward way, and so forth.

  • That said, I don't think one can say, "on the one hand Professor Moglen wants what's good for us, while the law school just wants to make money." The law school, and its governing faculty in particular, want to provide the best educations they can for students, subject to all the endless disagreements about what the best is. Teachers in their classrooms consider themselves autonomous agents pursuing the welfare of the community as best they can, in my experience, so no one is acting as though the business interests of the school as a whole were dominant in any classroom at any time. Similarly, although I have indicated my dissent from many of the policies implemented by the school, I do regard myself as a governing partner in the place, and therefore responsible for its failings. I am trying, in this course and in other ways, to make a contribution to the way lawyers are trained that can be adopted by this law school's faculty, or by any teachers anywhere who want to do a better job, and which—without being adopted or otherwise endorsed by anybody else—can serve as one repository of information about what's possible. I consider us, you and me and everyone else in the room, to be undertaking that experiment together.

  • Now, as to your feeling of apathy. I think it's letdown. Intense experiences, in my experience, are often followed by a trough, in which overstimulated cognitive and evaluative processes relax. Reduction of stress is a chemical process just as complicated and potentially perilous as stress buildup, in the same way that descending a mountain can be harder than going up. Mild or not-so-mild depression often results. Learning to cope with troughs after peaks is a skill important to develop once it becomes possible, after the endocrine flood that occurs as one goes from puberty to young adulthood. So you might look at the biological and intrapsychic layers as well as the socio-political ones in order to get a full picture of what's going on.

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r3 - 08 Jan 2010 - 22:43:32 - IanSullivan
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