"Well, yes, but no court would ever consider that."
Anonymous East Coast
Law Professor
Law school training has a certain centralizing,
homogenizing, tendency. This tendency - I will call it centrism - can
be seen in the celebration and institution of moderation, reasonableness,
good judgment, avoidance of extremes, passive acquiescence, judicial minimalism,
the passive virtues, balancing, and the middle of the bell curve. Centrism
pulls to the center, not because the center has any particular content,
but because, well . . . it is the center. Described in this way, law school
centrism exerts influence on any political spectrum one might imagine
as being in place (no matter how skewed to the left or the right this
spectrum might be).
Centrism is not just (nor perhaps even mainly) an ideology. It is not
just a constellation of beliefs that are invoked repeatedly as the prisms
or templates or frames through which law is described and experienced.
Centrism is also a set of practices, institutional norms and behaviors.
As such, the effects of centrism are registered not only in the realm
of ideological beliefs, but intellectual style, psychological orientation,
the presentation of self and so on and so forth.
What follows is a brief description of a few related law school training
processes that combine in various ways to yield this centralizing and
homogenizing effect. Law school training, of course, has broadening and
even polarizing tendencies, but here, I wish to focus on its narrowing
effects, which strike me as generally undernoticed and socially important.
For the most part, law school teaching is organized around the review,
dissection and assimilation of judicial opinions. For the student, this
will mean reading (or at least, assuming responsibility for) approximately
10,000 cases1
over a three-year period.
There are many justifications for this massive exposure to case law, some
of which are even persuasive. But opening up thought processes and stimulating
imagination are not among them. Those are not the ends to which judicial
opinions are written. On the contrary: The sine qua non of the judicial
opinion - one of the things that makes it an opinion as opposed to say,
a poem or an essay - is that it is supposed to shut down thought. The
judicial opinion is organized in terms of that crucial moment where the
court declares: "It is so ordered," or "judgment reversed" or some such
thing. An opinion brings into play a whole network of canonical meanings,
performances, power relations, institutional mechanisms and genuflections
that lead most of the relevant readers (for instance, the parties) to
actually heed the order and do something fairly close to what the opinion
seems to require.
These opinions, strategic though they may be, do have moments of intellectual
curiosity and imaginative openness. And indeed, upon first coming to law
school, the law student may often be surprised to discover - through the
reading of a judicial opinion no less - that a problem once thought simple
is in fact complicated, ethically ambivalent and perhaps, even tragic.
The student may learn something about the vulnerabilities and orientations
of his or her own beliefs.
Some of the best judicial opinions do indeed traffic in thoughtfulness
and self-reflection, and they do so in ways that are often far more sophisticated
and more serious than, say, analytical moral philosophy. There is much
to be learned from judicial opinions. Nonetheless, it is important to
remember what these texts are designed to do and what role they play.
The moment of openness and imagination is in service of the moment of
closure, not the other way around. If judges seek out complexity and edification
(and often they do), it is not because these things are valued for their
own sake. They seek out complexity and edification, all the better to
bring about a successful closure that will put the issues to rest.
In the study of law and in law school training this dialectic of openness
and closure is repeated in a homologous set of well-entrenched, recurrent
tensions, including:
- Legal formalism v. Legal realism
- Law as professional school v. Law as graduate school
- Neutral decisionmaking v. Contextual decisionmaking
- Theory v. Anti-theory
- Law as rules v. Law as judgment
- Law as science v. Law as craft
- Formalization of law v. Deformalization of law
- Legal dogmatics v. Legal rhetoric
Law students and law professors often take explicit
"stances" on these oppositions - arguing in favor of a move towards one
side or the other or striving to subsume or envelop one within the other2.
Indeed, a great deal of law school discussion occurs within the terms
described by these oppositions. In taking stances within these oppositions,
law students internalize the tension. No law student or law professor
is ever fully at one end or the other. On the contrary, they are torn
to varying degrees between the pull of one side and the other. Later,
as lawyers and judges, the law students will become the walking-talking
sites through which these tensions a re mediated.
Significantly, the poles of the tensions are not accorded symmetrical
value. In law school, the ideal of law is, by and large, associated with
formalism, theory, science and neutrality. By contrast, their opposed
members arrive on the scene in a supporting or critical role. Legal realism,
contextualism, deformalization and anti-theory arrive on the scene of
legal education as protestant tendencies, as efforts to moderate and reform
the legal ideal.
In the law student, the tensions are reproduced as a movement from openness
to closure:
- From relatively wide-ranging class discussions to the black letter
issue-spotting exam;
- From reading the cases (first semester) to reading the outlines (thereafter);
- From critique of the case law to assimilation of the doctrine;
- From class participation to passive listening;
- From passive listening to solitaire;
- From open-ended job futures to interviewing with firms on campus.
These movements are in turn a mimesis of the movement
from college to law school. Having learned to become open via the mushy
thinking of undergraduate education, the student then learns to be closed
via the hardheaded rigor of law school. In college the student has been
groomed in the great humanistic texts. But in law school, this openness
(mushy headed thinking/tolerance) will effectively be brought towards
closure (rigor/narrowness).
The effect is to centralize and homogenize the law student's intellectual
possibilities. Once the tensions, asymmetry and all, have been internalized,
the law student becomes a kind of human funnel - the medium that regulates
the traffic between openness and closure. This capacity will, of course,
be immensely useful in practice. Indeed, one of the crucial tasks of lawyering
and judging is to organize the chaos of facts into the ordered patterns
of law. Judges and lawyers often deal with intractable social economic
and political disputes. Their ability to translate these intractable and
often very messy disputes into a uniform language is what enables resolution.
The movement from openness to closure is not the only tendency in law
school: there are obviously broadening tendencies as well. However, it
is difficult to resist the sense that the broadening effects are peripheral
- affecting only a limited number of law students, and then not very profoundly.
At many law schools, jurisprudence is a small elective course. It is often
viewed by other law professors as 1) the repository for all the failed
theories of law expounded in the last 2000 years (with special attention
to the Hart/Dworkin debates4
); and/or 2) a specialized province where some of the minor analytical
kinks in the nearly perfected edifice of American law can be worked out;
and/or 3) specialized provinces where certain client groups (ethnic minorities,
women, analytical philosophers, and gays) are enabled to theorize their
limited partial perspectives on law.
All this is by way of saying that in the American law schools a particular
school of jurisprudence has already won out. The triumph of this school
of thought is so complete, so pervasive, that it is not even seen as a
school of jurisprudence, but as "law," pure and simple. I will call the
school that has won out "Case law positivism," which is an unsteady amalgam
of beliefs about law:
Law is principally what courts say it is. Or to put it
conversely: By and large, it is law
if the courts
have announced it as such.
Courts find law in or construct law from artifactual
forms known as doctrines, rules, policies,
principles, opinions and holdings
- all of which
can be moderately modified by reference
to
each other.
Judges interpret these artifactual forms to produce a
normatively right result. Sometimes
they
succeed. Sometimes they fail. Unless
the result is
normatively very, very wrong, what
the judges
say is law.
Law is limited in scope and substance by realpolitick
considerations (e.g., the expenditure
of the
court's capital) and the identity
of judicial
personnel (e.g., the Rehnquist Court).
In certain situations (particularly in constitutional law
or in other subject matters residing
in the vicinity
of the grundnorm) it is permissible
to appeal
to natural law-like considerations
(but only
sparingly).
Law is relatively determinate at the core/center, but
there is some uncertainty/vagueness/
indeterminacy at the periphery/ penumbra.
In the
latter cases, it is politics, good
judgment,
common sense, realpolitick, etc. that
help
produce a decision.
Now, this is a very crude vision of law, and few legal professionals would
admit that it is their view of law. Nonetheless, I think this is a fair
account of the unconscious, default image of law often operative among many
law students and law professors.
Among the many reasons that this crude view of law is not generally recognized
is that attention is directed elsewhere. This crude vision of law is often
manifested in a highly evolved, extremely intricate, complicated version
- otherwise known as "court watching." Many legal academics are court watchers.
They dutifully monitor the output of the courts in a particular subject
matter area: bankruptcy, first amendment, etc. Since there is so much material
to learn, master and integrate, this enterprise is extremely time-consuming
and difficult. If one is going to engage in court watching and try to organize/reduce
the output of the courts into something that looks like a body of knowledge,
it will help considerably to have a simplified understanding of the identity
of law. Uniform units of analysis (doctrine, policy, principle), uniform
objectives (deterrence, compensation, retribution) and uniform argument
types (rule/standards, rule/exception) are extremely helpful.
If, as a law professor or law student, one is focused on mastering the growing
corpus of cases, one may (helpfully) fail to notice that amidst the tremendous
intricacy and variegation, the underlying jurisprudential vision is often
fairly crude. Court watchers cannot be faulted for this: If one is going
to engage in court watching, it is difficult to imagine how anyone could
perform such an encyclopedic endeavor without a simplifying/simplified jurisprudential
vision.
Still, the automatic default status of case law positivism has a centralizing
and homogenizing effect - politically, ethically, psychologically and intellectually.
It takes real effort for both law professor and student to realize that
case law positivism is not simply and obviously "law" but merely one vision
of law among others.
There is an important intellectual and political significance to the dominance
of case law positivism. Not only does case law positivism effectively canonize
a certain jurisprudential vision, but it generally marks out the boundaries
within which classroom discussion will occur. For instance, given the present
case law and composition of the United States Supreme Court, a constitutional
law teacher might well counterpose Roe v. Wade5
with Planned Parenthood of Southern Pennsylvania v. Casey6.
By contrast, it is extremely unlikely that much class time will be spent
criticizing the opinion in Roe v. Wade for curtailing the woman's right
to choose in the third trimester. The bounds of class discussion are thus
often set by stereotypical devices such as:
- Majority opinion v. Dissenting opinion
- Present opinion v. Previous opinion
- Majority rule v. Minority
- Rule Rule v. Exception
The disputes before the courts - in light of their
probable beliefs - largely define the intellectual, aesthetics and political
spectra within which classroom arguments occur.
One would think, given the centralizing effects
of law school training, that at the center of the discipline of law one
would find a solid core. After all, that is one of the enduring images
of case law positivism. But paradoxically, this is not the case at all.7
Law is not an academic discipline in ordinary senses of the term. Law
does not have great learned texts, in the sense in which literature might
claim to have The Odyssey or Don Quixote. Law does not have a shared method,
in the sense in which economics might claim to have econometrics. Law
does not have enduring problems of great significance, in the way in which
philosophy might claim to address some of the enduring dilemmas of human
existence.8
These observations may seem a bit harsh on law, but it is difficult to
believe that any of the texts of the law (The Constitution, The Concept
of Law9,
or Palsgraf v. The Long Island Railroad Co.10
) measure up. One is at a loss to find anything in law that could count
as shared or established methods, and as for great enduring problems,
it is difficult to find any particular to law that are all that great:
Judicial review? The problem of legal change?
So what is this "discipline" of law? What we have are interrelated legal
communities (law schools, courts, etc.) where we talk and enact ourselves
into the beliefs and practices that we are. These beliefs and practices
turn out to be largely ad hoc, understandably parasitic on common folk
understandings and foreign domains of expertise and not particularly coherent
(in any theoretical sense). These beliefs and practices are regularized
through techniques of formalization, reductionism, deference, hierarchy,
colonization and the like. And all of these beliefs and practices are
supported through a professional cartel (lawyers) endowed with state power.
These features of law amount to something. All of this is not nothing.
But it does not obviously transform law into a serious "discipline."
If we describe law in this way, it becomes difficult to discern what might
be at the core - other than, well . . . a belief in "coreness," Yet, if
we press again and ask about this coreness, there does not seem to be
much there there. The core (such as it may be) is an amalgamation of reasonableness,
greatest common denominatorhoods, bits of folk wisdom, overlapping consensus,
shared belief - all presented in a formal idiom that lends the whole thing
the appearance of knowledge.11
Why do we - law professors and law students - put up with this? It is
precisely because of the infirmity of the core. For law student and law
professor, the realization that the core may well be empty is a prospect
too dispiriting to behold. The tacit compact of the law professor and
law student is that each will submit to case law positivism and to the
Ten Thousand Cases because coming face to face with the infirmity of the
core is just too damned scary.
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