Rodell's Pursuance of Happiness

-- By ChihIFang - 17 Apr 2010

Introduction

Felix Cohen, Jerome Frank, and Thurman Arnold – all representatives of American legal realism movement. Fred Rodell is another. At various points of this course, I wondered when, or if ever, we will read Rodell’s works. It seems to fit the one of the main purposes of the course, as I understand it, to debunk today’s legal profession’s institutional structure. Moreover, Rodell believed that the primary goal of legal education is to help future lawyers to use their minds and that the purpose of legal writing is to explain and persuade in simple, non-bullshit terms – both of which run parallel to the themes of Eben’s class.

But we did not read Rodell’s works, so I read them on my own (it was more interesting than covenants and mens rea anyways). Rodell did not publish much in the first place. His essay “Goodbye to Law Review” succinctly and humorously answered why. He referred to legal scholarship as “qualitatively moribund while quantitatively mushroom-like.” I was attracted to Rodell’s writing because somewhere along my 1L year I have lost sight of what the law is. This essay explores three themes I took away from Rodell’s writings and their influences on me.

The Fundamental Hypocrisy of the Law

Rodell’s book Woe Unto You, Lawyers! pointed out the fundamental hypocrisy of the law: the law deals with very practical matters - matters that influence the society and its everyday occurrences - yet it is approached and taught in an extremely impractical way. In classrooms, we read a case, find the holding, discuss its rationale, and apply it to the next case. The law is taught as though it is theoretical and logically coherent. In opinions, decisions are made buttressed by precedents that have wildly different implications. The law is applied as if it was a one-size-fits-all t-shirt, stretched only by different sitting justices. The effect this hypocrisy has on law students is obvious, as can be demonstrated through my own experience.

I entered law school with no legal background. And today if one were to ask me what the law is, I would say its full of contradictions. For some reading the cases might satisfy their naïve optimism or infuriate their idealistic bubble, for me it just leaves me more confused about the law than I was ten months ago. There is no one-size-fits-all. Liberties are considered alongside the social climate to avoid backlashes, and as Jerome Frank stated, some judicial decisions are made based on the presiding judge’s breakfast.

Yet the more I dwell on this confusion, the more I believe, for me, the contradiction might be the most attractive component of the law. The contradictions I face stem from judicial flexibility. No matter how formalistic the opinions are written or to what degree they are following the doctrine of stare decisis, the law is flexible because it is intimately connected with concurrent practical considerations. Rodell, as a legal realist, saw the law as a tool to serve social purposes and to balance competing societal interests. I believe that is achievable, precisely because the law is flexible.

The Only Excuse for Law's Existence

The law responds to changing societal expectations through its flexibility. Rodell wrote that the only excuse for the law’s existence is its role as the “only alternative to force as a mean of solving the myriad problems of the world.” Because the law is flexible and can adapt to the practical needs of the society, lawyers are empowered to use legal assets to respond to emerging and existing problems. Accordingly, legal education ought to teach one how to think for oneself and for the society at large.

I associate the idea of thinking for oneself with Eben’s idea of the internal contradiction of our social conditions. We are shaped by our social surroundings; but at the same time, we need to have awareness of our actions, especially those actions induced by our surroundings. Furthermore, law is an extremely social profession and lawyers interact with people from various backgrounds. Hence, it is essential to learn the experiences of other human beings. Approaching any problem or situation (legal ones included) from a unilateral perspective will result in stunted solutions. The capacity to empathize adds to the effectiveness of a lawyer’s ability to see-and-respond and to engender our capabilities to think for the society at large.

The constructive channel and work-product that can result from thinking for the society are unique for each individual, as every person has a different cause and passion one wants to press for. I personally have not figured out for what purpose I want to apply my law degree to. But for any purpose to be meaningful, it ought to be one that serves the society rather than individual gains. The overarching theme of all such constructive channels is to place the society as its priority, not any particular individual.

Pursuit of Happiness Over Tangible Rewards

Yet even as I am writing this essay I cannot help but think this is all talk. It is easy to say that one can disregard real world constraints and pursue some lofty societal aim. Which brings me back to my original condition of absurdity – why am I in law school? Other professions (i.e. plumbing) can produce equally lucrative tangible rewards, at least in monetary terms. The fulfillment in practicing law can only stem from the work-product itself. The pursuit of happiness as a lawyer, for me, would then be the removal of a societal absurdity.

The legal institution and its representative members did not embrace Rodell's personal philosophy--after all, he did refer to the law as "a fat man walking down the street in a high hat." In a dedication to Rodell's life, his student Charles Allan Wright described Rodell as someone who was "more interested in pursuing happiness than tangible rewards." That, I think, sums up where our legal education should guide us.

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