At the outset of today’s post, I would like to thank Prof. Larry Krieger for taking the time to visit my blog and to provide me with additional resources to better understand the movement to humanize legal education. As I delve into the subject in more depth, be sure to check out the comprehensive set of links and resources on the blog roll to the right.
Today’s post marks the inauguration of a new type of discussion on the blog: “Law Student and Lawyer Stories.” As I read the literature underlying and related to the movement to humanize legal education, I continually have moments of recognition in experiences I myself have had. Things that I thought were wrong at the time but where I couldn’t articulate exactly what was bothering me about them. These are the types of stories I want to collect here.
I will get the ball rolling with the story below, but my hope is that this is a category in which I can encourage students and others to contribute their own posts, as well as comments.
I am in the midst of reviewing and commenting on Elizabeth Mertz’s study of the intellectual and personal transformation students undergo in their first year of law school, reported in her book, “The language of Law School.” One of Mertz’s primary observations from her systematic study of the language used in first-year contracts classes is that students are taught to focus not on content and morality, but on form and authority. (Mertz at 4) Thus, learning to think like a lawyer means no longer asking “what’s fair” but asking “what the law says you can or can’t do.” (Mertz at 10)
Notice the shift between intrinsic values (your internal moral compass) to extrinsic authority (an external guide over which you have no influence or control). The shift deprives you of agency but also relieves you of accountability. How many times do lawyers or judges concede, “I know it’s not fair but that’s what the law says.”
As if “the law” were a disembodied voice residing somewhere above the sphere of human activities. As if the law weren’t really something we created and we can change. This would be a democratic and empowering view of the law—precisely the type of view that Mertz finds is discouraged when we learn to “think like a lawyer.” In a sense, we learn not only that our clients are powerless before the law, but that we are as well.
This dynamic—of referring not to our own moral sense but to an external authority to resolve human conflict—perfectly describes the first (but certainly not the last) time I earned the reputation in my law firm as being someone who was “difficult to work with.”
The occasion was a Summer Associate training session at one of Denver’s pre-eminent law firms. I was, at the time, a summer associate. The subject of the training was sexual harassment. Having been involved in different types of organizations over the years with all manner of personnel training, I thought I knew pretty much what to expect. But this training was different.
Instead of discussing the respect we should show our co-workers, what behavior was OK and not OK, how to be sensitive to power dynamics, or who we should talk to if we felt we were being harassed by a more sernior attorney, the presenters—partners in the law firm’s Employment group—explained in detail the state of federal sexual harassment case law, which amounted to a description of what you can get away with before your conduct is actionable.
I was stunned. During the session I asked, “Shouldn’t our standard for how we treat each other be higher than what the law permits?” In response I received blank stares of non-recognition. It reminded me so much of law school—the perplexed expression I would see on my professors’ faces when I asked about how these legal rules affected human dignity. The utter lack of intellectual connection because my questions were so far outside the relevance of what we were discussing. Questions of fairness were naive and irrelevant—two of the greatest sins of legal discourse.
Now, as a law professor, I try to at once accurately describe the rigidity of legal thought, while acknowledging questions of fairness and the human impact of the law. But ultimately, with the passage of time and experiences, I have learned to think like a lawyer. I’m not convinced that I do a great job of escaping my training, which was, after all, hard-sought.