Learning About Learning The Law

-- By JenniferDoxey - 10 May 2012

1. Choice-less-ness.

Taking seriously the premise that law school is an imagination test, what might we hope to have imagined by now?

The first thing to look at is the thing that we don't look at directly: the parameters of what can and cannot be thought about seriously in law school. The things we've discussed in class touch on these boundaries: one studies obsessively for exams, one outlines meticulously, one does Law Review, EIP, a prestigious clerkship, one wants to work at a top firm.... These are the outlines of a legal career that happens by default - not default in the sense of automatic, certainly, but default because in some way pre-programmed, unselected, and maybe undesired. Whoever the 'one' is, they simply haven't envisioned certain alternatives.

This isn't the only area where we're governed by pre-selected herd instinct. We permit our lives to be programmed because it is 'inevitable' that they will become so.

One 'inevitability' we allow by default is the downhill slide into corporate control. We neglect to imagine that we have other choices besides branded clothing, online news outlets, Youtube advertisements. We spend our free time on Facebook after a long (or short) day of studying, because that's what people do. We buy Apple products because they're supposed to be the best, and people want to buy what's best. We mechanically assume that there is only this, either our current modern lifestyle or some sort of ascetic Luddite cave-life. Projects of 'authenticity' crop up like weeds, promising full engagement with the world and delivering only what we can put into them. The market becomes a catch-all excuse for our societal choices - "it would be nice if things were different, but that's the way the world is." Like the internet, the world of politics and law must be responsive, efficient, and expertly tailored to our 'authentic needs'; where it falls short, we cannot accept it.

The parallels within the legal profession are abundant. This type of world works best for the risk-averse - the people Edgar Allen Poe called "your mere doubters by profession — an unprofitable and disreputable tribe."

2. Not the case.

But there is more than only the world as it is given to us. It isn't the case that there is no possible modern world beyond the technological industrial mess we've been thrown into by the free market. It's just the only world that we see by default. It isn't the case that there is no legal profession for CLS students beyond EIP, 2L summers, and so on. If this is the only viable route I can see for my career, then the failure is one of imagination, not potential.

In Asimov's short story "Profession," the protagonist (George) struggles with a similar dilemma. The premise of the story is straightforward: each adolescent is fitted with 'tapes' that in a matter of seconds implant all the knowledge he'll need for his profession, be it as metallurgist, computer scientist, engineer, etc. George's problem is that the computer rejects him - his brain functions are not compatible with any known profession, so he never receives the taped knowledge base for anything. He languishes in a home for the 'feeble-minded' for months until he finally rejects the destiny that the computer chose for him. He runs away, he's followed, he's caught; the twist on this Orwellian paradigm is that the computer didn't reject George because he was defective; he's fundamentally creative, which made him unsuited to 'taped' professions.

One of the characters summarizes the George's final realization: It's not helpful to tell someone "You can create; do so." It's much better to say "You cannot do anything" and wait for him to say "I am going to create something whether you like it or not."

In this sense, I think the looming adversarial presence of the default legal career route is actually a good thing. None of us can realistically succeed at everything; sooner or later we won't make Law Review or whatever. But Asimov's point is that failure creates the conditions for original thought. The premise of the story, that only a select few are destined to be creative thinkers, challenges the reader to prove (like George) that he is one of those few, that he will create regardless of whether a computer or anyone else says that he can. As a law student, nothing makes me more eager to 'fight the system' than being told that there is no alternative to it.

3. Other worlds, other choices.

So what sort of vision of law and the legal profession might we hunger for now, maybe without even realizing it? For me, it would have to include a legal education that more powerfully engages the imagination. If law is about more than economic calculations, why not try to come to some consensus on what that 'more' should look like? What about law as morality, as aesthetics, as history, as story-telling, as pure politics... We frequently admit that the law includes these things, yet since answers to these questions are not operational, we constantly divert our attention to law as economics.

With due respect to the fact that justice is a serious business, why not learn to play with the law a little bit, handling legal concepts like one would play with Lego bricks or sidewalk chalk? Wouldn't this be more fruitful pedagogy than the so-called Socratic format, with its focus on the 'right' answers?

Economics is a powerful discourse. But restricting our understanding to one single discourse is a mistake. It's a mistake to feel locked in by the boundaries of this discourse, or of what is normally acceptable in law school, occasionally peeking through the keyhole at a vision of justice and lawyering and legal education I don't yet see reflected in my present but that I want for my future. Instead of searching for some key of 'right' answers, my instinct is that it's a trick question - the door is already unlocked.

Many good things are here. But the draft is diffuse. In fact, the three numbered parts point in different directions. The best route to improvement, I think, is to bind the pieces together around a single central idea, probably one of those presently contained in part 3. The discussion of Asimov may well remain, but I have an intuition it will be shorter. Your idea, not his story, should be in the reader's mind all the way along.

I would like to continue re-writing my papers over the summer, if possible. Thanks!