Proust’s Nightmare (Mertz’s Proposition 3)

Proust 1

“In my most desperate moments, I have never conceived of anything more horrible than a law office.”

Marcel Proust, quoted by Alain de Botton in How Proust Can Change Your Life at 12.

One look at Proust’s deep-set, moody eyes and it is apparent that this is a man with the soul of a poet—a man exquisitely sensitive to the human condition and devoted to describing said condition with nuance and detail.  I venture to guess that, had he ever tried, Proust would not have thrived in law school.  (An unlikely occurrence in light of the sentiment expressed above and the fact that, according to de Botton, Proust could not even hold down an unpaid internship at a library.)

I will go so far as to say that none of us who venture into the hallowed halls of law school and emerge on the other side are as sensitive as Proust.  Still, I would think that all of us have some Proust in us—some aspect of a poetic soul that desires nothing more than to lay back on a settee and observe life swirling around us.  Much like this:

proust 5

(One begins to wonder if Proust always wore this expression.)

Taking into account that Proust was prone to hyperbole, it still seems important to ask: What was it about the law office that filled Proust with horror?

And, to the extent we all have a bit of Proust’s sensitivity within us, do we experience a similar reaction on some level?

The organizing questions of this blog are: (1) Are law students and lawyers thriving on a personal and professional level, and (2) if not, why not, and what can be done about?

At this stage I am gathering anecdotal evidence and other, more systematic support for the conclusion that law students and lawyers are not thriving.  This is an issue that has been well-documented elsewhere and I am particularly interested in examining the same phenomena as they are evidenced here at DU Law.

Then, following in the footsteps of Prof. Larry Krieger and others involved in the movement to humanize legal education, I aim to examine ways in which we can improve the experience of law school—in that sense, bringing the practical recommendations of the movement to our community here at DU Law.

The first part of this effort is a review of Elizabeth Mertz’s important book, The Language of Law School.

To review and simplify the material covered in the last two posts:

Elizabeth Mertz’s observation of legal education in first-year classrooms led her to the following conclusions:

First, regardless of where you attend law school, you will be expected to learn to read, think and speak “like a lawyer.”

In so doing, you will adopt a world view where form matters more than substance, external authority matters more than an internal sense of morality, and statements in legal texts matter more than the social consensuus of your particular community.  (Mertz’s Proposition 1.)

The main vehicle for teaching you to “think like a lawyer” is the case method.  Under the case method, you are assigned a series of cases to read for each class in your first semester of law school.  You stumble through the cases, trying to understand their meaning.  When you offer up your understanding in class, your professor corrects you and tries to guide you instead to his or her interpretation of the case—a practice sometimes known as the Socratic method and at other times referred to as “hiding the ball.”  (Mertz’s Proposition 2.)

Mertz’s third proposition strikes more at the heart of the ideology of legal education:

Although apparently neutral in form, in fact the filtering mechanism of legal language taught to students is not neutral.  Legal training focuses students’ attention away from a systematic or comprehensive consideration of social context and specificity.  Instead, students are urged to pay attention to more abstract categories and legal (rather than social) contexts, reflecting a quite particular, culturally driven model of justice.

Mertz at 5.

In exposing the agenda of legal language and thought, Mertz gives us some insight into the source of Proust’s horror.  From a poetic standpoint, to be human is to be unique, complex, and specific—worthy of individual attention.  Stated somewhat extremely, from the standpoint of law, humans are interchangable “reasonable persons” much as treasured objects are interchangable “widgets.”

Such militantly abstract thinking is, quite bluntly, utterly destructive of poetic sensitivity, sensitive individuality, and difference.  It is no wonder the Proust inside of us shrinks in horror in the face of it.


5 responses to “Proust’s Nightmare (Mertz’s Proposition 3)

  1. Have you considered that the problem isn’t law school, or the nature of the practice of law, but that people poorly suited to the practice of law, the sensitive poets, are nonetheless finding their way into the law school classroom?

    After all, it would be wee bit unwieldly for every law student/lawyer to be taught or encouraged to recreate the law in his or her own image, and it would likely not serve clients well for the lawyer to be internally satsified with his or her effort, though failing to serve the interests of the client. Ultimately, the service of a lawyer is externally judged.

    • susannahpollvogt

      Hi shg – excellent comment. Truth be told, this is exactly the type of viewpoint I want to explore and understand. Let me offer a concise response here and my interest in continuing this discussion.

      (1) My suspicion is that law schools are admitting more and more students from diverse academic backgrounds—more literature, philosophy, and critical studies majors.

      (2) For my own part, I used to joke that I was admitted to law school in part to fill a quota for feminists, but that the joke was really on me. Because my critical theory background left me at sea in the intellectual climate of law school. I was, in a sense, “poorly suited” to the practice of law. At the same time, while I struggled to find my voice as a lawyer, I can point to very concrete additions I made to the field as a practitioner due, at least in part, to the very sensitivities that made me “poorly suited” to be a conventional law student or lawyer.

      (3) Recreating the law in one’s own image is too much. But isn’t there a middle ground?

      (4) Stated another way, we absolutely need a common language of law—as you point out, if for no other reason than to serve our clients. But shouldn’t a language that is vital and democratic continue to evolve and receive at least some input from its diverse speakers?

      (5) Ultimately, one way of describing the problem is as being at the intersection of sensitive students and a rigid institution. Should there be give on both sides? That’s the sort of pedagogical middle-ground that I’m looking for. I agree that a standardless, “Free to Be You and Me” approach to legal education would be a disaster. But I hope to demonstrate here that this is not what the advocates of humanizing legal education, including myself, are striving for.

  2. As a practical matter of client service (and this comes from a litigator), the only standard that matters is that of the judge/jury. No matter how fascinating my own thoughts (at least to me), their vitality depends on how well they fly with the decision maker. I’ve yet to find a client willing to risk the loss of his freedom in order to indulge my moral or intellectual compass.

    Clients can be funny that way.

    You ask if there’s a middle ground. My experience is that there isn’t. It’s the judge’s way or the highway. If we don’t serve our client’s interests ahead of our own, then what are we doing in the well?

    • susannahpollvogt

      As a former full-time and now part-time litigator, I couldn’t agree with you more that the client’s interests are foremost, and being able to persuade the judge and/or jury is necessary to serve the client’s interests. I see no conflict between that principle and the goals of the movement to humanize legal education. In fact—and this will be the subject of future posts—some of the empirical research suggests that these humanizing efforts (which I have not described here yet) result in better performance, as well as greater personal integrity and ethics, on the part of attorneys.

  3. I certainly look forward to any ideas that help improve performance as well as personal integrity on the part of attorneys. We could use a good dose of both.

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