Law schools do a great disservice to a profession that could potentially transform social
justice in this country. Legal andragogy2
is devoid of any critical analysis of the social policies that inhere in law
or meaningful discussion of the role of lawyers in society. Rather, law school teaches students to do legal reasoning
in a moral vacuum. As a result, graduates see the vocation of law as fee-for-service in which the lawyer cannot make
autonomous choices and does not feel responsible for the end to which those services are put. The law school curriculum
discourages altruistic values with its conservative view of the lawyer's role as a passive representative of the client's
wishes. It discourages activist tendencies since activism is perceived as incompatible with the dominant conception of
lawyering as neutral and apolitical.
Legal andragogy should teach that the choices lawyers make - about where to work, about who to represent, even about what
reasoning to employ - have important moral and political
implications3. While law schools
teach that the nature of the attorney/client relationship must be neutral and apolitical, the law school experience is
anything but. It serves as a de-moralizer in which students learn that it is not lawyerly to stand up for what one
believes. Rarely does the law school agenda suggest that students can elect not to work for large corporations whose
investments or practices may run counter to their personal values. Students inclined to work for corporate firms graduate
without the tools to recognize the negative social impact (for example on human rights or the environment) of corporate
work. Students already aware of social issues are strongly discouraged from doing work that addresses them. Anxiety to
conform, and to learn how to think like a lawyer, renders students especially vulnerable to becoming less driven by their
convictions.
When law students graduate, this drive to conform--frequently to a definition of success not necessarily their own--has
deprived them of exposure to 'people's lawyering'4
and thus models and techniques which can prepare them to work toward
creating a more just society. This is not surprising given that only a few law students are exposed first-hand to the
faces of indigency or political injustice before they graduate. The American Bar Association (ABA) criticized the
traditional law school curriculum in its 1992 MacCrate Report as rendering law students unable to provide competent
representation of clients after graduation, and of only providing limited instruction in four fundamental values of the
legal profession--one of which includes striving to promote justice, fairness and
morality5. Yet, part of being a
lawyer means accepting responsibility for society's neediest, not only because each person has the right to redress legal
grievances through the adjudicative process, but also because meaningful access to the legal system requires the
assistance of a lawyer6.
The inadequacies of the current legal andragogy are reflected in part in a high level of job dissatisfaction among young
practitioners. The ABA's Young Lawyers Division in 1995 found that only 21% of recent graduates were "very satisfied"
with practicing law7 . A study of
lawyers by the Johns Hopkins School of Public Health in 1990 revealed that lawyers show the highest levels of depressive
symptoms of all professions studied. With a national attrition rate for large law firms is at 68% over six
years8 , "[d]isillusionment runs
rampant among attorneys who believe they have no personal life and are just cogs in the business machinery of the major
law firms."9
The present law school curriculum follows a scientific model in its approach to law as a subject of study. Legal
reasoning, according to the dominant paradigm, should not be influenced by feelings or moral
considerations10.
Doctrinal neutrality, or objectivity, as law professors refer to it, is exclusively a methodology used to guide
legal analysis, rather than a process of practical problem
solving11. This scientific model, introduced
to law school pedagogy by Christopher Columbus Langdell in the late nineteenth
century12, remains the model according to
which first year law students are almost universally
taught13.
Under this scientific model, law is broken down into doctrinal areas such as torts, contracts, property and criminal
law, with each area being taught separately. In their first year of instruction, when their very conception of law
is being formed, students are rarely exposed to any courses directly addressing ethics or
justice14. Within each course, students
learn both the rules of law applicable to an area (so-called black letter law) and the techniques
judges use to reach decisions - the concepts that guide legal reasoning itself (such as stare decisis and the plain
meaning rule). Using actual decisions as a model, students learn the techniques lawyers must use to make arguments
that will persuade judges to rule in their favor.
It does become apparent that the lawyer has choices to make. Law students are taught that they can argue both sides
of a dispute. There are multiple interpretations of how general legal principles apply to specific fact-patterns.
There can even be disagreement as to which principles of legal reasoning may be applied. Students are even taught
that considerations of social policy enter into judges' reasoning, and that they must choose whether to make social
policy arguments and which ones to make. But the lawyer's choices are purely strategic - the lawyer merely chooses
what to say to win the argument. The lawyer has no influence over legal doctrine, the relevant social policies, or
the principles guiding legal reasoning. The lawyer has no choice to promote particular doctrines or policies. The
lawmakers determine what the doctrine is. The courts determine when social policy arguments are relevant and which
social policy arguments are relevant. As legal doctrine (including the doctrine of legal reasoning itself) is presented
to law students, its moral or political implications appear to be completely irrelevant to the lawyer's job. If they
want to present persuasive (read winning) arguments, lawyers must simply adhere to the rules as laid down by the
lawmakers.
Nowhere is law school's lesson that moral considerations are irrelevant to the practice of law more apparent than
in the law school course dedicated to legal ethics or professional responsibility. Rather than being an analysis
of the ethical dimension of law - of how legal doctrine implicates moral questions - legal ethics is taught as
another area of legal doctrine, like torts or property. Legal ethics courses study the rules of professional
responsibility and teach future lawyers how to recognize when their actions may be addressed by these rules. In
essence, legal ethics courses teach law students to treat questions of professional responsibility as problems to
solve in the course of representing clients16.
The question "What can a lawyer do for the good of society?" never arises in a course on professional responsibility.
Rather, the pertinent question is "What can I get away with without getting in trouble with the disciplinary
board?"17
Legal education could be structured differently. Legal education could view law not as a set of principles and
techniques to be used to fulfill clients' wishes, but as an instrument for achieving a social order and for realizing
values18. This alternative view considers law
not as a set of rules, but as a social phenomenon, and it views the task of legal andragogy not as merely teaching the
principles by which courts make decisions, but as a critical evaluation of those principles which has a particular
interest in advancing social justice. Law students trained as legal technicians do not know how to question or even
identify the moral or political implications of legal doctrine. Law students trained as critical thinkers, under an
"enlightened" legal pedagogy, have the tools to expose popular myths about the law, and to direct their careers as
lawyers toward improving society19.
Ingrained pressure to conform to the status quo and students' resulting
vision of themselves as "employees", willing to take direction from long-established
institutional norms, rather than as leaders, results in young attorneys
essentially relinquishing their own professional development20.
By emphasizing technical aspects of the legal profession, law school andragogy
fosters a denial of the potential of its graduates' work significance, a
process of "ideological desensitization."21
Law school perpetuates a kind of dependency on institutions, rather than encouraging self-thinking and direction,
[a]nd it also teaches them that if they are willing to accept
extreme dependency and vulnerability for a probationary term, later institutions
will (probably) take care of them almost no matter what. The terms of
the bargain are relatively clear. The institution will set limited, defined
tasks and specify minimum requirements in their performance. The student/associate
has no other responsibilities than performance of those tasks. The institution
takes care of all the contingencies of life, both within the law (supervision
and backup from other firm members; firm resources and prestige to bail
you out if you make a mistake) and in private life … In exchange, you
renounce any claim to control your work setting or the actual content
of what you do, and agree to show the appropriate form of deference to
those above and condescension to those below.
By comparison, the alternatives are risky. Law school does not train you to run a small law business,
to realistically assess the outcome of a complex process involving many different actors, or to enjoy the
feeling of independence and moral integrity that comes of creating your own job to serve your own
goals22.
While law schools tout their respective public interest programs, and purport to value applicants who boast a commitment
to societal betterment, the number of graduates who actually take jobs in the public interest is in the low single digits.
The National Association for Law Placement's employment figures for the 1996 graduating class from the nation's
ABA-accredited law schools reveals that only 2.5% of graduates listed public interest as their initial employment upon
graduation23. Private practice and business
and industry totaled 69.9%. Judicial clerkships and other government totaled 22.8%. Academic and military ranked
1.3% and 1.2% respectively.
Students hoping to use their law degree to work for social change are in for a letdown in law school when they find that
there is little support, especially financial assistance, for those hoping to work in public interest. Relatively few
public interest scholarships, or supplemental income opportunities, exist for summer public interest placements, which
may reinforce students' desire to work in that field. And Loan Repayment Assistance Programs (LRAP) are rarely of any
real assistance. Georgetown graduates indicate their resulting disappointments: "Public interest work is undervalued
and under- emphasized in every conceivable way at Georgetown."24
And, "I am…frustrated by the fact that I thought Georgetown and LRAP would enable me to do the work I came to law school
to do, to provide legal representation to those who would otherwise have limited access to the protection of the laws
that is everyone's right."25
A second-year student at Benjamin N. Cardozo School of Law notes that a significant factor in her decision to
attend Cardozo was the claim in admissions literature that Cardozo was one of the best public interest law schools
in the country26. When she arrived, she found
that while there was a Public Interest Law Students Association (meaning there were students involved in public interest
work on and off campus who were dedicated to making sure students had an outlet for progressive ideas) it was apparent
that public interest was not a serious priority to the law school administration.
Despite the existence of progressive professors, students and staff members, she noted that "One-Ls are continuously
bombarded with rhetoric about the importance of grades, rank and the Socratic method over contributing ideas or skills
applicable in a world where all things are not equal and all methods of social classification are neither fair nor just,
logical nor reasonable. The law school machine prepares most students for a world of corporate domination, wielding them
the skills to do the legal work that maintains the status quo."27
The moral neutrality of the law school andragogy deprives future lawyers of potentially endless opportunities for a long
and enjoyable career practicing law in a way that is personally and professionally meaningful. Some of the most rewarding
legal work consists of helping others work in the frontlines to right social injustices. René Saucedo, an attorney at La
Raza Centro who has organized resistance to INS raids in the San Francisco Bay area, describes the rewards of being what
she calls a "radical woman lawyer."28
Working with women who experienced INS raids, they filed a housing discrimination case and pressured the local police
chief, using the local press, to stop collaboration with the INS. The police chief yielded to their demands. A similar
victory occurred in San Francisco, in which undocumented immigrant women organized and persuaded the Board of Supervisors
to pass landmark legislation, declaring itself an "INS Raid Free Zone," including in that legislation that the Mayor
communicate directly to the INS that it is not welcome in San Francisco29.
"My role as a radical woman lawyer in efforts of resistance is to contribute knowledge, to share information, to create
dialogue to find effective strategies, and overall, to be supportive of other women's ideas and plans of action.
Resistance is sometimes frightening but it almost always works, eventually."30
While a large number of incoming students plan altruistic careers, few actually follow this path after graduation.
Law school andragogy shifts both perceptions of what constitutes altruism and how it can be accomplished. By placing
great emphasis on corporate and commercial law concerns, interviews and job placements, law schools limit the concept
of how lawyers can serve society. Given the real financial and perceived psychological rewards that accompany joining
prestigious law firms, even the most altruistic students frequently deviate from a planned path of public interest law.
One decade ago, sociologists studied students from working class backgrounds
at Harvard Law School and argued that a shift among entering students who
planned to pursue public service jobs in which few graduated with such aspirations
was due to a re-socialization process rather than because of monetary demands
or job availability31.
From the welcoming speech, a dominant moral code was revealed in which no
part of the legal profession has a monopoly on good doing32.
Public service law is redefined, so that pro bono work sponsored by elite
corporate or firm employers is seen as the most effective way to promote
social change33.
First-year students in the working class study reported higher levels of
stress than their classmates, in part due to fears of academic shortfalls.
Nearly all those entering working class students interested in pursuing
public interest said they felt inferior in the first year34.
They sought to rebuild their esteem by changing their behavior. Nervous
about law school and anxious to succeed, they do this by adopting the values
of the elite environment. They are rewarded by feeling accepted and belonging,
as well as by economic confidence associated with firm jobs. The process
of fitting in is finalized when these working class students are offered
high paying summer jobs. These students gradually believe that effective
social change happens largely through an elite position with its accompanying
resources - they can have it all and still maintain their ideals35.
Law schools can prepare students for the profession and for working for
justice by giving them alternatives to working for the big firm, and by
teaching them that just as "professionals" are held to a higher standard,
that standard includes taking responsibility for the kind of work they pursue.
The legal andragogy should foster autonomous thinking and action and implement
a hybrid system of teaching that includes the Socratic method, problem solving,
integrated research, and writing into each course, clinical education program
and professional mentoring program. As well, students should participate
in changing the law school agenda, much as they should later work to redress
injustices in society.
A possible model for accomplishing these objectives might look like this:
Create Culture that Rewards Rather than Punishes Activism: Students
should be given academic credit for initiating or participating in actions
that directly help local communities. For example, students may invite lawyers
to conduct trainings at law schools on how to serve as legal observers at
local events, such as actions by pro-life demonstrators in front of abortion
clinics or larger anti-globalization demonstrations. Students who attend
trainings and serve as legal observers for several local events during a
semester would receive one or two academic credits by presenting a paper
outlining key points learned at the training and put into practice at documented
rallies. Learning how to serve as a neutral observer collecting information
on incidents in order to be a credible witness in a potential criminal court
case, and to adapt to the circumstances of each event, provides more real-life
training in one or two hours than is often gleaned in an entire semester.
Observers gain critical skills by learning how to talk with those who have
been arrested, and to inform them of their rights, including the right to
remain silent. Learning to make clear that they are not speaking for protestors
and that evidence to be collected is to be used in the defense of protestors
rather than to incriminate them, forces legal observers to think on their
feet and is excellent preparation for legal practice.
Students can work during winter and spring breaks with asylum seekers, detainees, and other non-citizens seeking
immigration status in South Florida or on the U.S./Mexico border by volunteering with agencies at the forefront
in the fight for immigrants' rights. Arranged through the National Immigration Project of the National Lawyers
Guild (NIPNLG), participating students employ advocacy skills in a context quite different from a clinic or
classroom. In addition, NIPNLG has joined efforts with the Detention Watch Network (DWN) to provide a greater
diversity of opportunities for students who wish to work for the rights of immigrants by creating the Immigration
Detainee Defense Initiative Directory. Students should encourage law schools to give academic credit for such
work and to aggressively promote such endeavors in school literature.
Professors Provide Examples of Alternatives to Corporate Jobs. Professors
should explain that graduates can work to improve society by advancing the
goals of political and social movements, or by working as a public defender
or for a nonprofit legal services organization. Non-corporate work doesn't
have to be not-for-profit work--other opportunities include pro-labor firms,
plaintiff side firms, or private practice for non-corporate clients36.
Some statistics reveal that plaintiff attorneys actually make more money
than corporate lawyers when considering class action judgments37.
Personal injury firms, "long denigrated as 'ambulance chasers,' bear a certain
Robin Hood quality when you consider that insurance companies make obscene
profits by short-changing plaintiffs on legitimate claims."38
Working for the government, for example, is rife with opportunities to work to preserve and/or enforce the rights of
the people or to enforce the relatively few regulations imposed on
corporations39. Such regulatory agencies
as the Environmental Protection Agency, the Securities and Exchange Commission and the Federal Trade Commission not
only require attorneys to enforce regulations but also to propose changes40,
which allows a certain amount of creative
thinking. And attorneys can defend employees' rights by working for administrative agencies such as the National
Labor Relations Board and the Equal Employment Opportunity Commission, or their state
equivalents41. For those with
a prosecutorial bent, working for the U.S. Attorney's white-collar crime division can be progressive. State
prosecutors offices afford opportunities for oversight, such as diversion programs created to lift the weight of
prison overcrowding42.
Clinical Experience in Public Interest a Requirement for Graduation. Working in law school clinics serving low
income clients shows law students that the legal profession can be their own mode of civic involvement, as well as a
means of providing others access to justice43.
Such work sensitizes students to the burdens of poverty and fosters
a commitment to serving the indigent community after law school44.
Pro bono placements can legitimize the practice of working with underserved communities and reveal how rewarding such
practice can be45.
Professor David Dominguez describes a clinical seminar in which students learn the art of "redemptive
lawyering."46 According to Professor
Dominguez, in both legal andragogy and society at large, lawyers are predominantly conceived as "problem solvers."
Lawyers step in to usher people through an arcane judicial system designed to handle disputes that could not be resolved
privately. Professor Dominguez argues that instead of merely solving problems, lawyers could empower community
organizations to tap their own resources as advocates and problem-solvers by building relationships with other
organizations, government service providers and businesses. Redemptive lawyering "seeks to cut the legal system down
to size" by creating "a responsible network of caring relationships and effective
collaboration."47 Rather than viewing the
lawyer as someone who reacts when someone calls on her to settle a dispute, redemptive lawyering views the lawyer as
an instrument in building a civic community less dependent on the legal system and more reliant on its own networks
to fulfill people's needs.
In Professor Dominguez's seminar, students established ties between, for example, church representatives, police
officers, and agents of public and private family treatment programs. The students encouraged these groups to
collaborate in managing the issues facing the community as a whole, and thus to free themselves of the paralysis
imposed by the adversarial legal system48.
Law School Administration Commits to Hybrid Model of Teaching. The Socratic method has value for helping students
think on their feet, avoid intimidation, develop some competency in public speaking, and learn how to analyze and speak
about caselaw. This should be combined with the other frequently used problem solving method of teaching, in which
students apply rules of law to written fact patterns, more along the lines of how practicing attorneys work.
Most important, perhaps, is making legal writing and research a part of each course, in addition to the introductory
course required in all schools. Writing forces students to think analytically, to express themselves cogently and
envision a real-life audience more similar to real life than the classroom environment offers. It helps them develop
their own unique means of communication, thereby helping foster a sense of autonomy.
Because law professors already serve as role models for students, and because most students develop professionally
in their first legal job, law schools should institute a formal mentoring program. In the early days of legal education,
apprenticeship in an attorney's office provided an alternative to law school before taking the bar exam. This "real world"
experience would serve students, and the legal profession, well.
Students Participate in Making Changes. Students should supplement
their legal studies by working to effect positive systemic changes in their
law schools49.
They can do this in several areas: admissions; financial aid/loan repayment
assistance; student government; faculty/academic committees/ alumni/public
relations; career planning and faculty diversity50.
It is essential that progressive students become involved in learning about
the admissions process to ensure that the right questions are asked and
that the students, faculty and staff understand how its admissions process
works. Loan repayment programs are critical to ensure that students opting
to pursue public interest careers can be assisted in meeting their debt
obligations. Student government is a highly effective way in which to promote
changes in the curriculum, from allocating student activities funds to speaking
as the "legitimate" voice of the student body when dealing with administration.
Students need to work to ensure that this voice is reflective of the range
of interests and people comprising the student body. Faculty and Academic
committees are influential places to decide what courses are required and
what new faculty will be hired. Often these committees are unaware that
they can play a role in promoting public issues. Involvement with alumni
affairs can be a means of promoting a more diverse, public-interest-oriented
agenda, as many alumni might be interested in helping to fund such initiatives.
These alumni can also wield some influence with the law school administration that seeks their continued financial
support. They can also help with public relations to highlight the law school within the community. The Career
Planning Office will likely be very open to working with students to help make available public interest employment
opportunities, through expanding the Office's resources and contacting public interest alumni. Students can also
maintain pressure on law school faculty and administrators to recruit faculty from diverse
backgrounds51.
Students should send requests for information to the law school dean to
evaluate the extent to which the school provides information and resources
necessary for students to grasp the fundamental values of the legal profession
and to make well-informed decisions about a range of rewarding practice
options52.
Examples of what to include in the requests for information are: written
material describing how faculty teaches the importance of self-development
and the obligation of students to take positions that are in line with personal
values and professional aspirations; a list of fundamental skills with a
course catalogue indexing courses by the skills taught; the years of experience
of all tenured faculty in representing individuals in "personal plight issues"
stated as a number and as an average; the name of the person whose full-time
responsibility is to advise students on budgeting and financial planning,
aside from a student loan office staff member; the percentage of career
services budget for on-campus interviewing and the percentage for career
counseling; any written policies covering the percentage of faculty work
week devoted to preparing for class, teaching, and advising students versus
the percentage devoted to research and writing; any policies that detail
the responsibility of faculty to mentor and guide students into law practices
by recommending courses and referring to positions, along with the weight
given to such advising when considering tenure decisions53.
Career Services Work One-on-One with Students to Find or Create Jobs That Will Best Suit Their Needs. Law school
career development centers should encourage students to think creatively about designing their own public interest jobs.
One lawyer describes how she created an organization devoted to stop "patient dumping" in California. "When I began law
school I never imagined that, two years out, I would consider fundraising to have become one of my most valuable s
kills…since the current resources devoted to public interest work do not begin to match the needs in the communities,
students should recognize that finding their own funding is an especially effective route to take. Raising money has
enabled me to set up an organization to do exactly the kind of advocacy work I hoped to do on issues of access to health
care."54 She notes that after identifying a
need, or a cause they care about, students need to focus, be visionary about how to fill it, build allies, and organize
coalitions.
Schools should balance the corporate influence by incorporating into career development resources references to effective
efforts of lobbying, advocacy and grassroots legal organizations and alternative bar associations. The career center
should invite guest speakers who have experience in these efforts. Guests should talk about their practice, significant
cases they have worked on and the challenges and rewards they experience in their day-to-day practices.
The Columbia University Law School Chapter of the National Lawyers Guild took seriously the issue of researching law
firms and prepared a guide for other students to use in deciding if firms measure up to the values of the students
applying for jobs. A committee of eleven Guild members researched the ten largest firms in New York City and documented
their research techniques, focusing on three areas of concern that they deemed to merit attention: a) clients the firm
has represented, b) specific cases the firm has taken, and c) pro bono programs.
The guide encourages students to ask whether the clients the prospective firm serves are the kinds of organizations they
would want to benefit from their talents, and whether students would feel comfortable working on the cases the firm
handles. Included is The Multinational Monitor's list of the ten worst corporations of 2000 and results of the committee
members' research to determine which firms represented those corporations. The authors note that pro bono programs vary
considerably from firm to firm and urge students to ask prospective employers if they will actually get to do both the
type and amount of pro bono work that they want to do. They recommend that when researching pro bono opportunities,
students should consider whether pro bono hours are billable, whether they are limited (officially or unofficially),
who the pro bono clients are, and who in the firm actually does pro bono. The authors advise that: "By making pro bono
work a priority in choosing our employment, we can and should demand that firms value pro bono clients as much as their
corporate ones."55
The career development center at all law schools should conduct comparable research and make similar information and
guidance available for law students.
The existing law school curriculum and method of teaching is harmful both
to young lawyers' ability to make autonomous decisions about the way in
which they practice law, and to how justice is administered in this society.
The dominant paradigm discourages students from thinking autonomously about
what they can do as lawyers, and instead encourages them to adhere to a
status quo model that may espouse values contrary to their own. This model
is detrimental to the student, the profession of lawyering and the larger
society.
A better andragogy integrates multiple teaching models--socratic, legal reasoning, clinical, professional mentoring,
legal research and writing--and instills in students the value of thinking and functioning autonomously. A more effective
law school curriculum incorporates a critical analysis of the moral and political content of law. By giving students a
wide range of models of how law can be practiced, as well as the tools to comprehend the social import of their work and
the power they possess, students, the legal profession, and society at large will benefit.
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