Playing the Game in Law School

-- By GeorgeMenz - 22 Feb 2024

The Theodicy of Law Students

The socially conscious student at an elite university finds himself in a bind. At the same time, he wants to believe that he is smart; he wants to believe that he is good; but he also wants to receive the material comfort and abundance to which he feels entitled. The demolition of his self-conception is a Scylla to the Charybdis which he faces if he does not do what is expected of him. Both are creatures of myth, of course, and both are, in the final analysis, illusory dangers. A student believes he understands the artifice of legal reasoning; he believes that he can dissect any judge’s opinion to reveal the biases and class interests which motivated it; but when the time comes for him to sit and take an exam, the odds that he will defy his professor’s written instructions and apply this analysis, rather than the analysis he has been trained to do in the previous fifteen weeks, is close to nil. Resolving this contradiction may require great effort, or it may be taken care of with very little thought. The latter option probably describes the larger class. The question never arises and there is no need to provide an answer. (It is the blissful ignorance which allows, for instance, so many people to believe they have a moral obligation to help those in need while still making the trip from their subway stop to their welcome mat without dispensing a single quarter.)

Paradoxes of Self-Conception

But pose the question and those in this group may become uncomfortable. They will try to provide justifications, some of which sound almost Kantian: the divide between the public and private exercise of reason. Functionally, the justification is this: Of course I know the question and its premises are nonsensical, that this is all just a matter of metaphysical blather disguising deep-seated biases and class interests, but if I say so in my exam answer my professor will not in fact be impressed at my genius but will simply roll her eyes and give me the lowest grade in the class, and that will limit my options when I graduate, which means I won’t be able to do all the great life- and civilization-saving work which I plan to do one day. There is a mercenary logic to this.

No, it's bullshit based on a false dichotomy. Of course I am not impressed by a student who offers callow externalism only (Marxisé, econodwarfish, or otherwise). But someone who can work the internalist angles, demonstrating knowledge of the moves, while also creatively marshalling other perspectives in order to achieve by synthesis a clear personal voice is worthy of the highest praise. In the traditional law school exam context, that means writing one kind of response to the issue-spotter, and something completely different for the policy question, with some form of piquancy in whatever capstone comes third. (Hence the presence of a poetry question in the final position on every Property exam I ever gave.) That's the purpose of my prefatory walk in the cemetery before sitting down to write any exam: to plan a strategy for my voice, to interrupt responsive thinking and instead let the music come.

This is another version, as you see, of the crap dichotomy between doing good and doing well that everywhere infects the bureaucrats' approach to law school, and which "the student" (your preferred dissociative way of referring to a living you) ingests at every "mandatory" meeting you are fool enough to attend.

But it contains the implicit admission that, while they recognize what they are doing is nonsense, they are willing to put up with it for a material benefit, which raises the question: what else will they put up with? What else will they be willing to ignore? The problem is almost theodical. In order to preserve a coherent identity they must sacrifice one of the pillars on which they believed that identity rested.

But "coherent identity" is a myth, certainty is illusion, and repose is not destiny of man. There is no sacrifice once we have learned that we do not need to sacrifice ourselves to be our selves. Learn this now, emotionally as well as intellectually, and there are no limits.

Perhaps, so hobbled, they will return to their blissful un-dogmatic slumber and rest without troubling dreams.

There is, of course, a second paradox: consider the student who recognizes the first paradox, and thinks himself above it, while behaving in more-or-less exactly the same manner as those who haven’t achieved the same cognizance. Both are, in a sense, losers: aware at least nominally of the artifice but unable to rise beyond it, and therefore consigned to do what they do not want to do, what they think is beneath them, to eke out what meager rewards the system will offer.

Source Problems

Perhaps the problem is that students learn the critique before they learn the thing which is being critiqued. As a result, they become as dogmatically tied to the critique as their predecessors were to the ur-text. Charitably one might say that the acquiescence of socially conscious law students to the doctrines they profess to abhor, at least within the suspended space of the exam room, is an implicit acknowledgement of this fact: to be effective critics of legal theory, they must also have a strong command of the same. But observation does not bear this out. They cut corners wherever they can, to ease their path and minimize the extent to which they must engage with the material.

It seems that most law students consider the enterprise they have undertaken as being of immense consequence, but do not take the daily work which comprises that enterprise very seriously. Perhaps it would be better if it were the reverse: if they took reading, writing, and thinking about the law very seriously, but considered the prospect of becoming a lawyer with playful detachment. Is this myopic? Legal interpretation, after all, takes place on a field of violence and death. It would be another form of intellectual arrogance to deny this fact. But what no one can deny is that the law is a game, in a Wittgensteinian sense. A well-formed sentence in the law does not mean the same thing in other linguistic contexts. Legal education is an education in learning how to play the game. All substantive education takes place elsewhere.

A Way Forward?

Is this perhaps overly reductive? Does limiting the function of law in this way reduce the legal debates which consume so much intellectual effort to the modern equivalent of postulating how many angels can fit on the head of a pin? Certainly not. Legal scholarship and debate are core mechanics of the game; without them the effective terms of the game—those combinations of words which can sentence a human being to death or redeem his sentence—would never be sufficiently codified. What legal scholars, law students, and practicing lawyers must do is recognize that they are acting within such a circumscribed space, a state of play, and chew on this fact, for what it means to them and how it will inform their attitude toward their work. The things that matter, too, are elsewhere.

I think the finest route to improvement is for the text to stop holding its author at arms' length. I understand the value of dissociation at a time like this, but it stands in the way of the learning you want to do, in my opinion. Let's see what happens if you write in the first rather than the third person, so that inner conflict is no longer "paradox," and becomes instead a sign of human being. I know full well why this is difficult, but as I have tried to suggest above and before, this is where the big game is to hunt.