Killing Justice

Some Members of the Justice League of America

I am in the process of reviewing literature for a piece I am working on and hoping to publish that will examine the intersection between the movement to humanize legal education and the goal of supporting and retaining diversity in law school student bodies.  On a related but somewhat more philosophical plane, I am interested in mapping how the discourse of law school shapes the self.

A theme that appears repeatedly throughout the literature on humanizing legal education is the notion that legal education demands that we fragment our selves to learn to “think like a lawyer.”  In short, “thinking like a lawyer” means deftly sifting through that which is relevant (the law as established by precedent; facts for which there is evidentiary support) and that which is irrelevant (emotional responses to a particular scenario; our native or intuitive sense of justice and fairness).  Thus, values and beliefs that we acquired prior to law school are deemed unreliable guides in solving the types of problems we will face as lawyers, and we are asked to abandon those parts of ourselves.

This theme in the literature caused me to think about what I consider to be a classic move by 1L faculty (in my experience as a law student): setting out a fact pattern where there is an obvious injustice, allowing students to become outraged, and then going on to explain that the law offers no remedy to the situation, or that the wronged individual will not prevail under the applicable rules.  Thus, we are encouraged—if not required—to develop the ability to separate out and distinguish between our intuitive response to human conflict (the response of a layperson) and the analysis demanded by legal precedent.

For me, the above dynamic played out in my first-year torts class, taught by Judge Guido Calabresi.  As I recall, the scenario began with an immigrant woman walking down a city street.  There was work being done on the street resulting in a treacherous hole in the sidewalk.  There was a warning sign but the woman, not being an English-speaker, failed to heed it and was terribly injured.

(Note: the above may bear no resemblance to the actual fact pattern used that day.  It is, however, a faithful portrayal of my recollection of it.)

The point of the story was that the defendant need not anticipate every possible plaintiff with every possible disability, but only the actions of a “reasonable man,” who was presumably fluent in English.  I was joined by the other feminists and students of post-structuralism in the class (I think there were three of us total?) in openly mocking the idea that there could be any stable, knowable concept of a “reasonable man” that was not culturally inflected and/or corrupted by structures of privilege.

But that really wasn’t the point of the lesson, and it quickly became clear that our protests fell into the category of the irrelevant.  The point was to know and accept that this is what the law is, and it is the word of the law that is relevant, not something as unruly and malleable as an individual’s sense of justice.  Law was to be understood as a system for effective conflict-resolution that greased the wheels of society’s functioning and, in particular, the wheels of commerce.

This was my first introduction to a horrible world in which injuring people and breaking promises were sometimes deemed virtuous as “efficient” or “cost-effective” behaviors.

The Costs of Accidents

But I don’t mean to suggest that this pointed disabusing is exclusive to followers of the school of Law and Economics.  Rather, it is part of the transition from subjective to objective concerns, from justice to reason, from unformed human to sharp-thinking lawyer.

***

This set of ideas also caused me to recall a situation I faced during my own first year of teaching in law school.  I was teaching legal writing, and had chosen a novel tort claim for us to analyze in our writing project.  Shortly into the semester, one of my students very politely e-mailed me and asked if we could perhaps work on a different problem, because he was a Christian Scientist and it violated his beliefs to visualize injury to the body.

I was quite taken aback.  His position was clearly sincere and in a sense entirely valid.  He should not be required to violate his religious beliefs as a condition of receiving his education.  But his request for accommodation also ran directly counter to many of the foundational assumptions about law and legal education.  For example, it would be theoretically possible for this student to determine at the outset of law school that he wanted to practice real estate law, and to limit his studies to courses that would advance his knowledge in that area.  In that case, he might avoid struggling with the stories and visions of bodily injury that are the stuff of so much of tort law.

But we insist (for many good reasons) that law students be exposed to the full breadth of the first-year curriculum.  Part of this mandates learning, thinking and speaking about a number of morally inflected issues in a context where there is essentially one right approach and one right answer: that which the law dictates.  Of course, that’s what we’re all here for.  To learn the law.  Not to refine our sense of individual or community morality.

My student’s dilemma is an example of legal education demanding a distancing from one’s identity—in this case, a religious or spiritual identity—to complete the curriculum.  And I don’t imagine that other graduate studies would make a similar demand.  Unlike many subjects, law touches openly on social, moral, and political issues.  But the law pretends to have no position with respect to these institutions itself.  It is a removed arbiter of conflict, unbiased by any personal affiliation on the part of its practitioners.  This is a useful fiction in many ways, but perhaps a harmful one in other ways that we have not explored sufficiently.

So the quest is to find the balance between appropriately teaching students to speak a common, public language while not insisting that they entirely cut-off those parts of themselves that are inconsistent with the studiously detached and acontextual professional values of the lawyer.

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