Categorizing Law School Underperformance, Part 400-and-Something

I have written previously about trying to categorize the reasons why students underperform in law school.  If we understand the root causes of underperformance, and especially how multiple causes can interact, we can better develop remedies.  One cause of underperformance stands out to me, and I struggle with it:  Sometimes students underperform because they just feel like the cases are wrong.  The legal rule to which they tacitly agree by “enacting” it into their outline does not comport with their own sense of justice.  This struggle then leads to difficulty in integrating the knowledge into a cogent cognitive schema of what the law IS. 

After many sleepless nights trying to figure this out, here is my approach.

When a student struggles with this issue, I explain that there is a great big, foundational question about what law IS.  Is a law “right” because it is God-given (Aquinas/ Natural Law)?  Because it is the product of rational analysis (Langdellian Formalism)?  Because it was enacted or recognized by a proper legal authority (Positivism)?  Or just because those in power say it is right (Crit Theory)?  Unfortunately, legal education rarely introduces students to this idea, and they get the impression that what they read in the cases is the only valid outcome.  Because important judges have concluded that a legal rule ought to be a rule, students interpret this as an implicit statement that the rule is irrefutably valid.  How can it possibly be law if it is not “right”?

I try to help students reconcile this by discussing three lenses for conceptualizing the question of “what is law?”  The first lens is Formalism, the idea that judges apply neutral and objective logic to discern in a scientific fashion what legal rule is rationally correct.  The second is Legal Realism, which pushed back on Formalism in the early 20th century by holding that judges are not neutral and logical arbiters of validity but instead are influenced by personal beliefs and other external factors.  This idea negates the “seamless web” of Formalism because different judges with different beliefs and biases render different outcomes, thus creating inconsistencies.  The next group is the Crits.^[1]  Starting in the '60s and extending into the '90s and beyond, this group held that law is neither science nor the product of idiosyncratic but good faith adoption of external influences, but instead is simply a façade to mask the reality that law is a tool of oppression.

I suggest to students that what they are feeling might be because they are Legal Realists or Crits at heart. When they read cases that purport to state what the law is, neutrally and logically, legal education implies that these rules are right as a matter of rationality and, tacitly, that they are morally right.  As Realists or Crits, some students internally reject this, but that rejection feels like confusion. 

The problem for many students is that legal education does not explain any of this.  Instead, we silently put forth a Formalist framework and ignore the fact that students may struggle with the implication that these rules with which they fundamentally disagree are nonetheless morally right.  By denying them even an opportunity to appreciate the contradictions inherently exposed by a Realist or Crit analysis, we create a mental and moral crisis in the student that acts as a block to the integration of knowledge into memory.

For instance, take the Torts case book standard of Volunteers of America v. Hughes.  There, the court held that an impoverished immigrant woman consented to inoculation to which she objected.  The court took this position even though government officials coerced her into that consent by refusing to admit her to the United States and pointing out that she did not have funds to return to her native country. 

To justify this conclusion, the Formalist points to the fact that the plaintiff ostensibly consented by staying aboard for the shot so as to achieve her goal of entering the counry.  But the Crit recognizes that consent is not genuine if it is coerced and that the plaintiff being an immigrant woman instantiates the notion that law treats people differently based upon race, nationality, sex, and other identities.  When the professor moves on from Hughes without noting the dilemma, the student connects the dots to how the case implicates a woman’s right to choose what happens to her own body.  “How can this case possibly be ‘right’?  Did I understand it wrong?  Everybody else seems to get this case.  Why am I not getting it?  Am I even cut out for law school?”

So, what can academic support faculty do?  First, I tell the student about Formalism, Realism, and Crit Theory and ask them whether this rings a bell.  It often does, so I explain that, no, you are not alone.  Hundreds of law review articles take up your exact argument.  Super smart law professors have written entire Crit casebooks, which shows that you are thinking at an advanced level.  You are not misunderstanding this; you are recognizing the same contradictions others have noticed.  You are far from alone.

But the last step is the one with which I struggle.  How can students perform well in law school if they fundamentally disagree with what they are taught?  “Am I sacrificing my moral compass to get a law degree?”  To answer these questions, I suggest that the student pretend to be a Formalist for the sole purpose of exams.  Go ahead and use your IRAC.  Go ahead and write the rule as if it is valid and analyze it as such.  Fit your Crit ideas somewhere in the essay, particularly with professors who might seem open to them, but otherwise, fake it ‘til you make it (and can later break it).  Pretend to be a Formalist for now so that you can get access to the profession and fight against the Formalist rules.  

I have seen some success with this approach.  Having knowledge of the Matrix helps students perform better in it and later break it.  So, in a consequentialist way, my approach seems justifiable.  I see a lot of “ah ha” moments when the student realizes that their struggle is not because they cannot understand law but because legal education cannot move past its Formalist foundations.  We can write all the law review articles we want, but if we keep teaching our students solely from a Formalist lens without even acknowledging the dilemma, we fortify the façade Crit Theory seeks to dismantle.

With all that said, my last step with the student is perhaps the most important one.  That is, I insist that whatever you do, do not jettison your internal sense of justice because you think you must do so.  You do not and should not.

Louis Schulze (FIU Law)

[1]  I hesitate to type that word because, as an employee of the State of Florida, writing the word “Crit,” I’m sure, is verboten.  Just for the irony, I will say that those legal rules are not “right” just because they passed through the allegedly proper legal authoritarians authorities (Positivism), but are in fact wrong under just about any other jurisprudential lens.