Confession

The author (right) as she appeared her first year of teaching in law school.

The author (right) as she appeared as a TA in law school, circa 1997.

So I have been thinking about hierarchy (a word that is difficult to spell) and authority in the law profession and, of course, here at law school.

Previously, I confessed that, as a TA in law school, I made a good number of my 1Ls cry.  When it first happened I was a little surprised but really this result was predictable.

Up until the time when they handed in their first assignment, they saw me as someone they could talk to about the difficulty and fear of law school, and as someone who would guide them in their efforts to accomplish a task that was seemingly mundane and yet shrouded in mystery: writing a “memo.”  Then they handed in their first draft, and the hammer fell.  Or, more precisely, the red pen.

I was unleashed on these exceptionally bright yet still vulnerable human beings with no training in how to effectively teach them.  In figuring out how to teach, all I had to draw on were my own experiences at the hands of my professors and at the hands of a bright, warm young woman who was my TA when I was in my first year of law school.  About a third of the way through the semester, she had transformed from a person you could turn to for support and understanding into a fearful, red-pen wielding enforcer.  A transformation I was about to replicate.

When the time came to mark up the 1Ls’ first drafts, I was like a woman possessed—possessed, specifically, by the critical, unforgiving spirit of those who had trained me in the art of legal writing up until that point.  Don’t get me wrong—precision is important; legal writing must be correct before it can be persuasive.  But like most things, it’s a matter of tone.  My tone was not educational.  I didn’t simply point out the types of things they needed to pay attention to and guide them to the correct standards.  My tone was reprimanding.  I was chastising them for not having figured it all out already.

Why did I take this approach?  Because it was what I had learned was the correct way of transferring the knowledge and values of legal education.  But why had I been taught that?  Why were fear and, to a certain extent, shame the preferred emotional states accompanying legal education?

I think this returns back to one of the central myths or belief systems of legal education: that the law must entirely possess and transform the minds and souls of its practitioners, such that when you enter law school, you must be broken down and stripped of your identity, so that you can be re-made in the law’s own image.  It’s a form of hazing where your attachment to the values of the new institution is all the more deep and thorough because you acquired them in a context of powerlessness and humiliation.  It’s a form of Stockholm Syndrome, where you develop a love for your captor not despite the fact that he wields power over you, but because of it.  The extremes of power and powerlessness are exaggerated, so that the desirability of being in power is clear.  You shed the former, powerless self and emulate those with power.

When we convince students that they know nothing, and that their instinctive ideas about “right” and “wrong” are entirely off the mark, we strip them of the intellectual assuredness that they have relied on rather successfully up until this point in life.

I am certain that these values are present to greater and lesser extents at different law schools, in different classrooms, and among different professors.  I suspect that these dynamics may be more vital at so-called “first-tier” law schools, which are close to the center of power within the profession, and where there is a greater investment in tradition and the established hierarchies of the law.

I also believe that these values are in the cross-hairs of the movement to humanize legal education, and the pressing question is whether what is rigorous and powerful about a legal education can persist if we insist that “thinking like a lawyer” is just a professional skill, not a way of life—if we insist that we should retain our native values, rather than allowing the values of the law thoroughly colonize our conscience.

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