Steve Sachs Duke


Wednesday, January 12, 2005


In Training for Hierarchy: Cleaning out some old email, I discovered an essay that a friend forwarded me several months ago when she found I was headed to law school. Entitled "Legal Education as Training for Hierarchy" (PDF / HTML transcription), it was written by Harvard law professor Duncan Kennedy in 1982, and is still a worthwhile read. On my reading, Kennedy attempts to make three points of note:

  • first, that there is no such separate discipline as "legal reasoning," and attempts by law professors to instill it in their students are misleading and politically biased;

  • second, that common forms of left-wing thought--especially the discourse of rights--"are likely to hinder rather than assist" in the struggle to maintain autonomous political beliefs; and

  • third, that the confrontational and curmudgeonly style of legal education (as well as the horrific recruiting process to follow) drills into students an acceptance of hierarchy and an unwillingness to challenge the system.

Let's take these in reverse order. I'm not well equipped to discuss the third point, mainly because the nature of legal education may have changed a great deal in 20 years--and also because Yale has a singularly non-confrontational approach. (Prof. Richard Brooks, one of the world's nicest men, teaches a very different first-year contracts class than Kennedy's.) In my first semester, I don't have a single professor who employs the Socratic method, and the professor best known for peppering his first-year class with questions, Owen Fiss, is anything but reactionary. Even the recruiting process has been somewhat defanged; the students aren't all competing for the same high-powered corporate jobs, but are pursuing diverse goals in different fields. Maybe this will change come clerkship time, but for the moment, it seems that system-challenging seems to be part of the atmosphere at a place like Yale. (Moreover, it may be perfectly possible to accept one's place in a certain kind of hierarchy--the hierarchy of law schools, of class rank, of prestigious jobs--and still be unwilling to accept wider social hierarchies or the political status quo. Otherwise, the "limousine liberal" stereotype wouldn't exist.)

On the second point, Kennedy argues that the widespread adoption of rights discourse further entrenches legal hierarchies:

This wouldn't be so bad if the problem with legal education were that the teachers misused rights reasoning to restrict the range of the rights of the oppressed. But the problem is much deeper than that. Rights discourse is internally inconsistent, vacuous or circular. Legal thought can generate equally plausible rights justifications for almost any result. Moreover, the discourse of rights imposes constraints on those who use it that make almost impossible its functioning effectively as a tool of radical transformation. Rights are by their nature 'formal', meaning that they secure to individuals legal protection for, as well as from, arbitrariness - to speak of rights is precisely not to speak of justice between social classes, races or sexes. Rights discourse, moreover, simply presupposes or takes for granted that the world is and should be divided between a state sector that enforces rights and a private world of 'civil society’ in which atomised individuals pursue their diverse goals. This framework is, in itself, a part of the problem rather than of the solution. It makes it difficult even to conceptualise radical proposals such as, for example, decentralised democratic worker control of factories.

Kennedy's choice of example is odd, to say the least. There are plenty of problems with rights-talk (some of which Kennedy describes in other writings), but an alleged inability to conceptualize "democratic worker control of factories" isn't one of them. Robert Nozick, of all people--one of the foremost defenders of rights and rights-talk, and someone committed to a very different kind of politics than Kennedy--explored such proposals extensively in Anarchy, State and Utopia. (See his discussion of exploitation in chapter 8.) And the remarkable failure of this example might imply that rights discourse is hardly as inflexible, or as antithetical to notions of social justice, as the article implies. After all, if rights justifications can be generated for "almost any result," why are the results required by social justice excluded?

The most important argument in the essay, though, is the first point, which doubts the existence of legal reasoning as a distinct means of resolving legal questions. Kennedy describes the law school curriculum as follows:

First, there are the ground rules of late-nineteenth-century laissez-faire capitalism. Teachers teach them as though they had an inner logic, as an exercise in legal reasoning, with policy (for example, commercial certainty in the contracts course) playing a relatively minor role. Then there are the second- and third-year courses which expound the moderate reformist programme of welfare capitalism and the administrative structure of the modern regulatory state. These courses are more policy-oriented than first-year courses, and also much more ad hoc. Teachers teach students that limited interference with the market makes sense and is as authoritatively grounded in statutes as the rules of laissez-faire are grounded in natural law. But each problem is discrete, enormously complicated, and understood in a way that guarantees the practical impotence of the reform programme. Finally, there are peripheral subjects, such as legal philosophy or legal history and clinical legal education. These are presented as not truly relevant to the hard, objective, serious, rigorous analytic core of law.
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 (that is 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. Put another way, everything taught, except the formal rules themselves and the argumentative techniques for manipulating them, is policy and nothing more. It follows that the classroom distinction between the unproblematic, legal case and the policy-oriented case is a mere artifact: each could as well be taught in the opposite way. And the curricular distinction between the nature of contract law as highly legal and technical, by contrast, say with environmental law, is equally a mystification.

This kind of skepticism about legal reasoning is rarely heard in a law school classroom. When the Supreme Court renders a 5-4 decision on a politically controversial topic, there are plenty of people who argue that the justices have abandoned legal reasoning for political decisionmaking. But Kennedy's argument doesn't claim that judges merely fail to adhere to the legal standard; rather, there's nothing else they can do--the legal standard doesn't exist, and all legal decisions are inherently ethical and political ones.

At first glance, Kennedy's complete denial of legal reasoning is counterintuitive. When a court dismisses an action barred by the statute of limitations, it certainly seems to apply something like legal reasoning. Or, at least, it doesn't seem that it's making an individualized policy judgment based on "the correct ethical and political solution to that legal problem." No matter how sympathetic the parties in the case, the court applies what looks like a distinct and correct "legal solution."

Perhaps, one might argue, this claim takes too narrow a view of ethics and politics. Perhaps the judgment to dismiss is indeed a policy decision: one that takes into account, among other values to be served, the predictability and stability of the legal system. On this account, the court considers the various reasons in favor of granting the plaintiff relief, and then concludes that continued fidelity to the statute (or to precedent, or to accepted doctrine, etc.) carries greater weight in its ethical/political calculus. In many cases, judges' commitments to these values will trump other considerations of utility or equity, thus leading to the automatic and inflexible application of principles. In others, such application seems so inconsistent with justice or other values that judges will seek to distinguish the case at hand, so that a contrary decision can be rendered without upsetting the whole. And in still others, the principles themselves are sufficiently vague and ill-defined that little effort is needed to reconcile them with the desired result; the policy choices can be snuck in through the back door.

This account of judicial decisionmaking is plausible, not least because it is in some sense irrefutable; so long as the ethical/political calculus is sufficiently broadbased, and the potential values to be pursued sufficiently open-ended, any process for rendering decisions could be so described. What this value-balancing approach cannot do, however--or, at least, cannot do on its own--is give content to the notions of predictability and stability it incorporates. Which decisions would destabilize the system, and which would render it more predictable? Which would be more consistent with previously recognized rules--whether embodied in custom, doctrine, precedent, or statutory text--and which would be less? These questions must be meaningful, if all of the values that might motivate a decision are to be brought under the same ethical/political roof; and yet they seem very different from the kinds of value questions we encounter in daily life, the ones that usually go under the names of "ethical" and "political." If we don't want to call their investigation "legal reasoning," we can give it another name: "Predictability and Stability Studies," let's say. And then we can go on to build a "Predictability and Stability" school in New Haven, where idealistic students are peppered with unfriendly questions before they are hired as Predictability and Stability consultants at Skadden, Arps.

In other words, if Kennedy's account is sufficiently general to describe what lawyers and judges actually do, it will have to accept the existence of something very similar to what currently goes by the name of "legal reasoning"--or risk a distortion of lived experience. If legal reasoning did not exist, we would have to invent it.

Alternatively, perhaps Kennedy meant to focus his critique only on those foundational decisions, so often the focus of first-year classes on private law, that lay down a new rule or that change the common law in a substantial way. Yet these decisions quite explicitly disclaim any origins in the mere analysis of legal concepts. As I study for my Contracts exam, the parol evidence rule doesn't appear as an immaculately conceived scion of Reason, but rather as an unhappy compromise between giving effect to the wishes of the parties and avoiding fraud or mistake. The same goes for the "mailbox rule," which treats the Postal Service as an agent of the offeror for the purposes of acceptance. In this semester, at least, we've been taught the vision of Erie instead of the vision of Swift; laws are made, not discovered, and the common law is that branch of law which has been made by judges. When the California Supreme Court decides to abolish the distinction between licensees and invitees, or when a jurisdiction decides to move from a contributory-negligence regime to one attributing comparative fault, the reasoning involved is quite clearly not the same kind as that involved in construing a statute or applying past precedent. And we rely on legal reasoning itself in order to see that there has been a change in the previous standard, that the old doctrine and the new are inconsistent.

Indeed, could it ever have been taught thus? Legal realism is nothing new; Holmes and Brandeis are much closer in time to the "late-nineteenth-century laissez-faire" world Kennedy envisions than they are to today's court. And few professors today would claim that an entire legal system could be created without attention to ethical or political values, even if they're ready to make the non-relativist claim that a particular value system is correct.

As a result, I don't find Kennedy's skepticism about legal reasoning very compelling, nor do I think that law school's emphasis on rights discourse, even if it's ultimately ill-founded, is inherently supportive of hierarchy. Nor, for that matter, does Yale strike me as a deeply hierarchical place--especially for an institution that often grants entry to the halls of power. Of course, maybe I've merely imbibed the hierarchy for so long that I can no longer see it; or maybe, as Kennedy writes in his concluding paragraph, I've fallen victim to "false consciousness." But I've heard that capitalism's running dogs are fed well, and for the moment I'm willing to take my chances.




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