The Movement to Humanize Legal Education: Introduction to the Literature of the Movement

One of the primary purposes of this blog is to summarize and comment on the existing literature related to the movement to humanize legal education.

An important starting point in this endeavor is Elizabeth Mertz’s 2007 book, “The Language of Law School.”  Mertz, a Senior Research Fellow at the American Bar Foundation, based the book on the conclusions arising out of her systematic study of the intellectual and personal transformation experienced by law students as they move forward through their education.

These conclusions, which will be explored in the next series of posts, are quite stunning and, on some level, counter-intuitive.  Perhaps most significant is Mertz’s conclusion that traditional modes of legal education diminish students’ capacities to assess the law from a moral perspective.  This despite the fact that the legal profession is supposed to be shaped and guided by a rigorous ethical standard.  True, individual moral values and professional ethics are not the same thing, yet it is difficult to imagine individuals following any particular ethical code in the absence of a personal moral commitment.

Let’s begin with Mertz’s own summary of the conclusions she reached through her study:

[B]oth in content and form, U.S. law school classrooms are perpetuating a vision of law and human conflict that in effect erases certain key aspects of social experience.  In sum, the language of U.S. law works to create an erasure or cultural invisibility, as well as an amorality, that are problematic in a society seeking to be truly democratic.

Mertz, 1-2.

This is how I would translate Mertz’s statement:

(1) There is a conceptual language and way of thinking that is common to law school classrooms.

(2) In learning to speak that language and “think like a lawyer,” law students must embrace an abstract, professional identity that is divorced from any sense of identity that is different or particular to a given community.

(3) In divorcing themselves from their identity and their community, law students also divorce themselves from the source of their morality and values, and instead embrace an amoral, “objective” view of human conflict.

(4) In this manner, even law students from diverse backgrounds are not empowered or given the voice to bring knowledge and understanding from their diverse backgrounds to the study of law.  Rather, the law imposes its knowledge and understanding of the world on law students in a one-way interaction.  Thus, law is an authoritarian rather than a democratic structure.

And this is how I would translate her contention into plain language:

(1) When you go to law school, you are expected to check your identity at the door.

(2) Students who succeed in law school do so in part because they are able to do this.

(3) Students who are unable or unwilling to leave their identity behind will struggle to speak and think “like a lawyer” and will have difficulty relating to their professors and other attorneys.

(4) While legal education might initially invite diversty in the door, it does not support diversity in practice, but instead seeks to homogenize it.

As always, I look forward to your comments.

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6 responses to “The Movement to Humanize Legal Education: Introduction to the Literature of the Movement

  1. Professor Pollvogt,

    I really like your starting this blog. I have so many thoughts your blog brings to mind that I will try to bring in specific comments as you post more in the future. As for this and previous posts, I have to say that I had not yet heard about Humanizing Legal Education but I think this is a timely and important thing to get out in the open.

    Thanks for your efforts.

  2. Marianne LaBorde

    This blog post reminds of a scene in my first year of law school. Although not as thought provoking or interpretive as Professor Pollvogt’s writings suggest, I hope this anecdote adds thoughtful fuel to the fire. I am currently a third year law student. My first year fall semester of law school consisted of civil procedure first thing in the morning 8am with a brilliant woman professor with red horned-rim glasses (I did not go to DU my first year) who spoke in the Socratic method even in her dreams. She would ask us every week or so about how we thought our minds were changing. She would prod us to think of our conversations with others, our interactions with family and friends, and our observations of the world around us so that we could recognize the way in which our ‘brains were changing to think like a lawyer.’ I felt lost at this; I had no idea how my conversations with my mom were different, or if I was less polite to my friends. I felt like I was left out of this magical ‘lawyer club’ because people would speak up and announce to the class the ways in which their thinking about the world had changed and how they couldn’t be patient with ‘stupid people’ anymore.

    To this day, I’m not sure my mind has changed. Maybe that’s bad? I know my writing is different; I cannot watch the local news for being overwhelmed with legal issues; and I might approach problem solving techniques in issue, rule, analysis, conclusion format. But does that mean that I am different?

    To that end, I love the Socratic method. It is the height of intellectual and social challenge. I don’t think it’s the only way, but I think it is what has been passed down from history of law students, and is an essential part of the law school experience.

    • susannahpollvogt

      A very interesting comment Marianne—your observation that by not sensing yourself going through this transformation, you were somehow not part of the club.

  3. This post reminds me of a question posed to my employment law class. We were discussing employment at will. One of the reasoning behind the this law was that this is what people expected, both employers and employees. But, then our professor asked if this was true? Could we recall our days before law school and remember if this was our belief: that we could be fired at anytime for any reason by our employer? This made me laugh, because that time seems like a lifetime ago (or maybe it just reminded me of someone that I used to be). I’m glad to say that I do recall the person that I was before law school but it is all too sad that I have to be reminded to look back at that person.

    While I actually do enjoy law school and even the Socratic method, I do wish that it embraced and encouraged the diverse ideas and experiences of those that begin this journey. I think that that it has become the idea of the legal profession that one must be able to look at a case objectively in order to see all angles of possible issues that ultimately dehumanizes it.

    However, I do think that the pendulum is at least at the beginning stages of swinging toward more humanization of law school and the profession. Many times during my past 2 years of law school I have heard professors, adjuncts,guest speakers and my own employers, repeat over and over again that the way to succeed in this profession is to always remember that people are people. Regardless if they are clients, peers, supervisors or judges, they all carry that human element. Understand that and then you are more half way there.

  4. susannahpollvogt

    You and your professor raise an interesting point: what is “reasonable”/a “reasonable expectation” is surely defined differently by those who have been trained in the law and those who have not. This is not surprising in and of itself, but it seems intellectually dishonest to suppose that we can purport to speak for the majority of the population on this point. This mode of reasoning is at its heart profoundly un-democratic.

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