Wednesday, February 28, 2018
By Jeremiah Ho
RebLaw 2018 took place at Yale Law School a few weeks ago. For those who might not be familiar with the yearly RebLaw conference, it is one of the largest student-run public interest conferences in the United States. The philosophy behind the conference is influenced by Gerald Lopez’s Rebellious Lawyering. And the conference’s mission is to build awareness amongst law students, practitioners, and activists of social change movements and to challenge hierarchies of race, gender, class, and expertise within legal practice and education.
At the University of Massachusetts School of Law, where I teach, the several students who attended this year’s RebLaw conference had also decided to organize a series of social justice and public interest events in the week gearing up to their conference trip to Yale. They called it “Justice Week” and they held various events ranging from a roundtable discussion featuring public interest lawyers from Massachusetts to a movie showing of “Vincent Who?” followed by a question-and-answer discussion on the issues surrounding Asian Americans and the justice system.
In between these events, I was asked to teach a workshop on how legal pedagogy replicates and sustains hierarchy in law schools and legal culture. At first, I was apprehensive. This was a tall order for a one-hour lunchtime event. But then I saw fervor of my students and saw an opportunity to have an honest conversation about what law schools do sustain intellectual and cultural hierarchy. In the last year especially, I have been concerned about how to connect my teaching of law with a duty that is more moral and meaningful. So I jumped right in and assigned two readings, Duncan Kennedy’s classic Legal Education as Training for Hierarchy and Shari Motro’s recent article in the Yale Journal of Law and Humanities, Scholarship against Desire.
Often the discussion about teaching law students to think critically revolves around the “Thinking like a lawyer” phrase, attributed to Christopher Langdell at Harvard in the 1870s. As Robin West and others have noted, most commonly that idea of thinking critically in law schools is siphoned within the context of learning doctrine. Despite some innovations, we still rely very heavily on Landgell’s formalist pedagogy to teach law—pedagogy that draws from 19th century perspectives of science and objectivity, and from Langdell’s heuristic that “law is complete” or that “law is a science.” Thus, our classroom investigations of the law through a body of cases, our lecture explorations animated by the Socratic method, and our adherence to doctrinal courses over clinical ones in the curriculum create a distorted view for our students about what law itself is and how it is connected to the human experience by being a vehicle for certain ends, such as justice. Our students spend a lot of time trying to learn the rule of law inductively and develop analytical skills that are contextually in service of the doctrinal aspects of law. In the law classroom, often the law takes shape in that 19th century form; if it’s complete and scientific, according to Langdell and his pedagogy, then the law resembles some animal perfected by some Darwinian journey that our students, like scientists, must ferret it out amongst the casebooks they purchase. But beyond that, our pedagogy leaves very little room to help students conceptualize the law. They end up accepting the law’s completeness. Thus, a good deal of American legal education ends up being rigorous but not intellectual, legalistic but not political, and analytical but not creative and personal.
The goal of my workshop was to get law students to see that the version of law and lawyering they have been exposed to has its perceptual limitations. The Duncan Kennedy piece is very good at giving language to observations about law schools—observations that, for better or worse, students often accept and take for granted. If law school is hierarchical, then who gets to be at the top of that hierarchy and what kinds of values and norms are replicated in furtherance of sustaining that hierarchy? If Langdell and his white-Anglo, male, “learned” 19th century objectivity propagated how we teach and have taught law for the last 140 years, then what does it mean for hierarchy when that same pedagogy remains? What does this mean for other voices and experiences in the law and its furtherance of justice?
What we have seen in the uptick in the last year with social and political developments, such as the #MeToo movement, are various responses to hierarchy. Meanwhile, events such as the passing of federal tax reforms that promote financial inequality are examples of embattled approaches of continued dominance by those who are invested in holding onto positions at the top of our society. I think law schools need to respond by broadening and challenging students to conceptualize the law differently than how it has been taught. Otherwise, Kennedy is right, we are training our students to think about the law critically but only in the sandbox and not out in the field. They don’t realize that the law is within them and that they bring the law to life. For instance, what kind of methodical and creative legal thinking would it take to link the debate surrounding gun rights and legislation, which has resided as a Second Amendment issue, with violation of human rights? Do we teach or at least encourage that in law schools?
The solution in regard to pedagogy that would destabilize the hierarchy set in law schools is what I gleamed from Shari Motro’s piece, Scholarship against Desire, where she rages against the hierarchical and assimilative nature of law faculty culture by weaving authenticity into her scholarly work and her law teaching. Whether concrete solutions to change our pedagogy wholesale to reflect a different conception of law, I’m not yet sure because I’m not convinced that there is just one overarching conception of law. Rather, I see pluralism. And thus, I assigned Motro’s work to challenge students—not just those interested in human rights or public interest—to bring their authenticity to the forefront of their studies and work. Pluralism is sustained by authenticity of experience. And law, after all, furthers human experiences.
At a time in which many social issues are rising to the forefront—some ripening very rapidly to be changed—I feel as if law schools are not doing enough to teach future legal thinkers and problem-solvers to explore the possibilities of law, rather than its probabilities. I see this domestically in the U.S. as a challenge to the forward momentum of human rights thinking on issues in which lawyers have input or agency. I also hope myself to be thinking about ways to address this issue as someone in the academy.