256. The conservatism of American law schools

A few months ago Christina Hoff Summers wrote an op-ed for my local newspaper  in which she criticized the "political fervor of the faculty" of the UNM law school.  ("Fervor" sounds a bit energetic to me, but maybe Summers has a fervor-inducing quality I lack.)  She reported that a "2004 study by the New Mexico Federation of College Republicans found that 100 percent of the full-time professors at the law school were registered Democrats."

The law schools dean responded with an op-ed piece of her own that said exactly the right things – that is, the things that a dean is obligated to say on such occasions.   (The dean didnt dispute that the faculty was 100% Democratic, though she didnt admit it, either.)

The interesting thing about the exchange of op-eds wasnt its entirely predictable content but the terms on which it was conducted.  Summers charged that the law school had a "strict liberals only hiring policy."  She said the dean "and her faculty seem not to question the ethics of running a public, taxpayer-supported law school as if it were a re-education camp for the political left." 

The dean, in her riposte, insisted instead that "we hire professors who will challenge students to broaden their views and perspectives, to move beyond narrow thinking."

Both these statements seem to me false – for the same reason.  And before explaining why I should add that I dont think theres anything unique about the UNM Law School.  (Though I will say that from most angles its building is not nearly as hideous-looking as that picture.) 

There are few substantive differences between American law schools, U.S. News standings notwithstanding.   (The idea that reading a torts casebook within the moneyed walls of Yale imparts greater wisdom than reading the same casebook in the hallowed barns of the University of Northern South Dakota at Hoople is a fantasy cherished by those engaged in hocking their future to pay Ivy League student loans, for obvious reasons – the weird thing is that its cherished by those at UNSDH, too.)

The actual teachers move around from law school to law school, and the curriculum is standardized.   Literally the same class will be taught at Syracue (# 100) one year and at USD (# 50) next year, if the heliophilic assistant professor plays his cards right.  The star professors make their contribution merely by gracing the campus, like rhododendrons.   So the generalizations Im about to make are, I think, equally applicable to all American law schools.

The thing about American law schools is that theyre conservative places.  Extremely conservative places.  All of em.

In the early 1980s, Duncan Kennedy made his scholarly name by criticizing "hierarchy" in the law.  Everyone listened to him because he was a professor at Harvard Law.  The irony was too thick for anyone to move their position even a fraction of an inch.  It was like swimming in a pool of Jell-O.

Law schools are in the business of teaching people to submit to hierarchy.  Thats what they do.  It begins as the prospective lawyer chooses where to apply.  You literally cant begin your legal education until you figure out where you fit on the scale.   Youre just wasting your money if you try to get above yourself.

Law professors teach obedience to arbitrary power – thats the meta-lesson of the narcissistically-misnamed "Socratic method."  (See post 188.)  All American law schools employ the "case method" – a 19th-century pedagogical tool that should not be confused with the case method of business schools.  Business students study reality.  Law students, by contrast, study words. 

Specifically, law students study the words of appellate judges as found in their published opinions.  The underlying assumption is that the proper study of law students is the exercise of power by the powerful.   The typical chronological arrangement of cases teaches that every day, in every way, the law is getting better – that the legal tradition cannot be improved upon, yet will improve itself.

As taught in law schools, the published opinions of judges are assumed to be accurate reflections of the judges process of ratiocination, so that by studying what is written one can learn the way in which the problem was approached and resolved.  That, in turn, rests on the assumption that understanding the judges reasoning will explain the result reached in the case. 

But those assumptions would make sense only if (a) all judges are honest and unswayed by emotion, antipathy toward disrespectful lawyers, ties of friendship, and so on; (b) all judges are always prepared to be completely open about what they are thinking and feeling; and (c) all judges have the literary skill necessary to translate that openness into prose.

Of course, no one actually believes any of those assumptions, much less all of them.  Which means that the case method is flattery directed toward judges.  Its a method for teaching students the insincere arts of the courtier – kissing up.

In all these mutually-reinforcing ways, law school is an institutionalized "disposition …  to preserve what is established", an academic "philosophy based on tradition and social stability, stressing established institutions, and preferring gradual development to abrupt change".  And that, of course, is the dictionary definition of conservatism. 

Moreover, law school is vocational training.  Most law professors, I think, prefer to think in grander terms, but as a part-time teacher of paralegal students at something that until last year was called a Technical-Vocational Institute, Im the last person to imply something negative by that term.  If a law school doesnt train its students to be functioning lawyers, it doesnt have much excuse for existing. 

But the vocation theyre teaching is to serve the government – the existing power structure.  Many lawyers, like federal judges, like to pretend theres a difference between judges and "the government."  Judges do it to disguise from themselves their role in preventing democracy.  (See post 13 and post 39.)  Lawyers do it because they dont like to think of themselves as courtiers, fawning on the satrap of the moment.  But fawn is what lawyers do best.  If it please the court – I mean, Court.

Judges are the government.  They are the power structure.  Law schools  in America fulfill something of the role of Frances École Polytechnique, training the next generation of technocrats.  They teach law students how to make themselves useful to the powerful, so that they can one day accede to power themselves.

Theres more.  For four centuries now, law has been the only area of intellectual effort in which arguments from authority are treated seriously.  And not only are they treated seriously in American law, but they are the best arguments of all.  Law isnt a social science; its pre-scientific.  You cant get much more conservative than outright retrogression.

Still more: you dont get to be a professor at a law school unless you yourself enrolled in a law school at the top of the school hierarchy, and then clawed your way to the top of the hierarchy of students.  "It is vastly easier for the graduate of a fourth-tier law school to become a partner at an elite law firm than it is to be hired as a tenure-track assistant professor at even a non-elite American law school."  (The peculiar thing is that the professor who wrote those words was deploring the inability of law professors to free themselves from received notions of hierarchy.)

You dont get to be a law professor, in short, unless you buy unquestioningly into the status quo, to the point where youre prepared to sacrifice your youth to rising within the existing power structures.  Instead of having sex, drinking, enjoying time with friends, reading for fun, going to concerts or ball games, you devoted the prime of your life to reading law books in a library carrel when you werent cultivating established professors for purposes of future references.   Law professors are, by a process of self-selection enforced by hiring committees, people incapable of rebellion.  They are, in temperament, the most conservative people on the planet.

So Christina Hoff Summers is wrong.  Law faculties might be 100% Democratic, and they might be enthusiastic – nay, fervid! – about identity politics.  But thats only because those are safe, predictable, highly conventional things to do.  And the law school dean who says that her faculty challenges students to open their minds is wrong, too.  The faculty is training students to be conventional, to adapt to the status quo, to pay power the respect it demands – without first pausing to wonder whether it deserves it. 

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