-- By LaurenManalang - 27 Feb 2009

Law Is As Law Does: Frustrations With Continuing Inequality

In many ways, I am dissatisfied with what the law does. Even when it does something I agree with, these gains are often stripped away by other societal forces. Brown v Board is a perfect example of this-- a clear unequivocal civil rights victory. Nothing can take that away. But anyone who has worked with students in LA, Oakland, or countless other urban centers, can tell you that the situation, while certainly improved, is nowhere near where advocates hoped it would be. Our schools are still segregated and educational opportunities are still wildly unequal across racial demographics. http://www.mindfully.org/Reform/2005/American-Apartheid-Education1sep05.htm One illustration: in 2006, UCLA's class of incoming freshmen had a black student population of 2%. That’s 100 black students out of a freshmen class of nearly 5,000, at a public university of a state which prides itself on being one of the most, if not the most, racially diverse in the country. http://www.magazine.ucla.edu/features/admissions-crisis/index.html Of course, many societal factors are at work here, not to mention subsequent laws (most notably, Prop 13 and Prop 209) that worked against the goals of Brown v Board. But if these results are the answer to the question "What does the law do?" then it's no wonder that I am increasingly less impressed with what the law does.

• Until Prop 209, UCLA was managing to attract a respectable black enrollment, however. No one would have suggested that the situation was fine, but the problem was different not in degree but in kind from the problem created by 209's prohibition on efforts to solve the historical problem. So it would be sensible, if this is the right illustration, to give a narrower definition of the overall problem. Brown isn't about law school, after all, and the remedy set necessary to deal with public primary school integration isn't the problem of dealing with supposedly-meritocratic professional school admissions. There, one could hardly say that there are equally clear and simple victories being eroded. All the way back to DeFunis and Bakke the situation has been anything but simple.

What Creates Change In Society?

Which leaves me thinking, perhaps the law is not the most effective way to “create a change in society using words.”

• Indeed. But this is definitional. Because law is not the strongest form of social control, by any means, it is evidently not the most effective way most of the time. But we don't use it because it's the most effective. Sometimes we use it because it is relatively robust at doing one particular job—restraining official power. Sometimes we use it because someone else will otherwise use it to our disadvantage, so we have to make our change through it, defensively. Mostly we use it because what we need to change is created or sustained by law, so law is inevitably a part, though usually only a part, of what we need to change.

• It might be more useful to define being a lawyer as making change using words, rather than asking how we use words in law only. I am not teaching only about law, or only about words used in legal documents, which you and I are not at the moment writing, or trying to learn how to write. Instead we are asking how lawyering works, an inquiry which I am only laying some groundwork for, because in my judgment law school is or should always be about how lawyering works, and the class we are having together is simply an introduction to the inquiry.

To go back to the bars discussed on the first day of class, if society is the influence of minds on minds, then this suggests that the most effective way to create change in society would be to change people’s minds.

• I defined social psychology, unoriginally, as the influence of minds on minds. See, e.g. Elliot Aronson, The Social Animal 6 (1972)(venerable but still useful general introduction to social psychology). Tautologically, indeed, the study of social influence is about how to make things happen in society using (inter alia) words.

Yet the law, even at its best, does not really do this. If anything, laws are passed only because people’s minds have already been changed, often by other societal actors. I am certainly not the only person to point this out, and I suspect it’s a widely held belief in our society. Note sujin’s point about Brown. This is why the law, relying as it does on legal fictions and other forms of transcendental nonsense that people may find difficult to connect to their personal experience, can get us to obey rules but it is not in and of itself effective in convincing people that these rules are actually fair. Over time, a reliance on rule-changing alone does not yield societal change. It must be accompanied with a consistent trend of changing people's minds, convincing people that these rules serve a just purpose. In the example of California's educational system, the failure has been that of allowing people to forget that racial inequality still exists and that this is a problem that is both symptom and cause of a segregated educational system.

Changing Other People's Minds

But how to change people’s minds? It is easiest to convince people of a point if you can connect your argument to something they have seen or touched or experienced themselves. This is more powerful than using logic in isolation. More specifically, logic is only helpful in as much as it allows people to draw a connection from a problem in society to something with which they have had personal experience (this defined as one's own life events as well as significant experiences through historical study or personal interaction). The differences in what people have experienced account for the differences in how persuasive a particular argument will be to them.

To illustrate, I offer the example of arguing with a 5 year old. Try to use logic to argue with a child. In the end you may get the kid to follow a rule (the goal of most lawyers), but it is unlikely you will convince her that the rule should be followed because it is right (the goal of a lawyer interested in social justice). The only way to really change the child’s mind is to connect your argument to something the she has actually seen/touched/experienced.

• The subjects of the development of moral and logical reasoning in children are large and complex in their own right. A standard theory of persuasion among adults will neither necessarily apply to, nor be well-informed by, what the state of the brain, the person and the mind are at age 5. Understanding how children develop their moral and ethical reasoning systems is what Piaget set out to do, followed by a horde of inventive and insightful psychologists, whose thinking isn't part of our background in this essay, and which one would have to talk about in order to make this illustration reflect what we have learned rather than what we think we know. There are branches of law (well-represented by some of their most reflective and experienced practitioners on this faculty) where really strong intellectual and empathetic understanding of children as developing human beings is required. But although I understand that the use of the "inner five-year-old" has become an important metaphor for you in structuring this piece, I think the comparison raises as many problems as it can possibly be putting to solving, and I think in the next revision it should go.

The mechanics of arguing with adults is not so different. Certainly adults have a larger set of personal experiences to draw upon than children do, and we have further developed logic skills. We have all read more than enough books to be able to support our positions. No matter what those positions are, we have economic theories to back them up. After law school, we will have legal jargon/transcendental nonsense to back them up as well. Yet listening to arguments in class, my thoughts often go back to this point-- arguments are so much more effective when they cut through the rhetorical acrobatics originally offered and instead provide examples that connect directly to something that the listener has experienced. This is, of course, harder to do depending on the topic and just how different the speaker’s set of personal experiences is from the listener’s. But whenever it does occur, the benefits (evidenced by the nonverbal cues Eben cites as proof of an engaged audience--decreased paper shuffling, heightened attention, peoples' hands/mouths positioned as if to respond) are readily apparent.

• But math classes also exist, and philosophy. Physicists in the US think that physics can be talked about calmly, as a mostly mathematical pursuit would seem to suggest. Physicists in Russia famously regard physics as a subject to be discussed anything but sotto voce, with more than vehemence. Different styles of argument, with different levels of appeal to experiential reality, are found convincing in different settings, both across and within disciplines of inquiry. Legal rhetoric—let alone the larger including category of all rhetoric designed to have social influence in oppositional or confrontational settings—too varies in its degree of connection to reality. The constructive recommendation of legal realism, which was largely dismissed around our classroom as some sort of unnecessary subversion, deconstruction without recommendation, was to lessen the distance between the language of the law and the language of common social experience, which is what you are recommending here.

Changing Our Minds

To use another example, our collective experiences before we came to law school greatly effect how persuasive we find the argument to do something innovative with our law degrees. There are those of us who have met people who are more than satisfied in traditional big law jobs and so have a ready example of how that path can lead to satisfaction. (link to JosephAvery? ) There are those of us who are aware that, by the very nature of who we are, obtaining a law degree is innovative in and of itself (link to JStHill? ) and must now deal with the personal and political consequences of that reality. There are those of us who came from other types of work, hoping the law will provide some innovative path. There are those of us whose experiences encompass all of the above. Yet notice, in all of these different sets of experiences, the most salient argument is the one regarding an experience they all share -- our varied interactions within this supposed "meritocracy" have shaped our beliefs. And though I don't know how people will end up deciding on this question of what to do with their law degrees, I do feel that it is their personal experiences that will be the deciding factors in that decision.

• Perhaps that could be true in a way you don't intend here. If we are not unitary in our experiences, but multiple—if we all have experienced our lives from multiple internal perspectives, then your statement is true without having any predictive value. We have lived lives that would be consistent with many outcomes, many choices that aren't really choices, and what is actually undetermined is how far we progress in the internal re-association of those several selves, how successful we are in breaking down the divisions among our self states, encouraging mutual awareness and eventual convergent growth. I've tried occasionally to explain, mostly without much in this group, why I think the evidence for that understanding of our intrapsychic architecture is strong enough to justify considering the consequences of such a view for our understandings of social psychology, persuasion, social engineering, law.

Another example: Prop 8

A recent discussion of California's Prop 8 provides another example of how arguments/laws succeed or fail depending on their ability to connect with an audience's personal experience. The invited speaker provided a well organized, nuanced argument that was free of the vitriol so often deployed in these types of discussions. She drew what seemed like a very clear line from her explanations of why the government takes an interest in marriage, to the role marriage plays in raising healthy children, and that ultimately, the cause of healthy children was best served if marriage was forever legally defined as between a man and a woman. After she had reached the end of the links of her chain of logic I could not help but wonder: if this woman had ever known a happy, well adjusted child who had been raised by a gay couple, would she still be able to argue her points with such conviction? Here, the difference in personal experience between speaker and audience was quite obvious. The students present were ultimately unconvinced by argument, not because it was poorly argued (in fact, a few thanked her for presenting it so clearly), but because of their personal experiences as a generation raised in an era where discrimination based on sexual orientation is actively opposed.

• That's a waffle. Your argument should be completed by a sentence that says that the students disagreed because they had known happy, well-adjusted children raised by gay couples, in other words, because of their personal experience. But you don't say that. You also don't say that the students disagreed because they had access to information that showed children did as well in homes with stable homosexual marriages as in homes with stable heterosexual marriages, and better than in homes with unstable or broken heterosexual marriages. In other words, that they were convinced by data. You don't say that students didn't agree with her, because they asked her whether under her logic she also believed that divorce should be prohibited when there are minor children who would be affected by it, and whether single people should be required to marry in order to adopt. In other words you don't say whether students were persuaded by logic. What you do say is that students didn't agree with her because they had been raised in families and communities, "in an era," where most people disagreed with her or kept silent, so in disagreeing with the speaker they were giving voice to the received wisdom of their herd. That last sentence doesn't argue for you, it implies pretty decisively against you.

Rethinking What The Law Does: The Law Is What It Is Doing.

In this scenario, we have a clear example of something the law can do. By changing this rule, the law would not change anyone’s minds. Not immediately anyway. What it would do, however, is create more opportunities for future generations to have more personal experiences that would affirm the equality of a gay or lesbian couple to a heterosexual couple. Just as it was used in civil rights cases before and after Brown, the law can create and protect an environment in which social change is more possible than it was in the previous environment. Just as in Brown, this rule-change alone will not result in equality or even justice. But it would be a step in the right direction.

• I think this is precisely correct. This is the heart of your essay.

This is a rather slow and painful process for creating change in society. But it does work, albeit slowly, painfully and not always in a straight line. And here we come to my biggest gripe of all with the law. I have long viewed the law as a dealer of compromise, something that functioned from the back end. More about correcting injustice than about creating justice. This to me, seemed like not enough. And of course, it’s not. I realize too, that it is unrealistic to want one thing to have that much power. Ultimately, the law is only one tool that must be used in concert with other human tools. Looking at what the law does as a results-oriented question is frustrating, but looking at what the law is doing as a results-in-context question is less so. It is a difference in perspective, one that allows the law to be a tool instead of a frustration. Taking the law for what it is doing -- which I currently see as creating opportunities for new personal experiences--the law can be a powerful part of a larger tide that changes people’s minds. I am hoping that somewhere in the course of all this learning, I will experience that possibility more and more.

• Perfect. This is the idea, and if instead of labeling it "*what* the law is doing" and instead thinking of it as "*one* thing a mature view of the law can see that it is doing," so that you're not compelled to imply more than what you actually with exemplary modesty really state ("this is how I am thinking right now about what the law is doing"), I think you have the core of a superb essay. Paring back at the explanation of how the law feels when it feels like a frustration can be easily enough done. Even if you want to keep one or two of your illustrations, convinced that you need to touch the ground to be strong, you can make them lighter and more graceful, as the last grafs are.

• I don't think you need to be worried about others seeing that you are linking their work. That's what a wiki is for. You should make this paper visible to everyone, in my view, at your earliest convenience. Good work should not be hidden.

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You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" on the next line:

# * Set ALLOWTOPICVIEW = TWikiAdminGroup, LaurenManalang

Note: TWiki has strict formatting rules. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of that line. If you wish to give access to any other users simply add them to the comma separated list