This set of thoughts just came together for me this morning, so forgive me if they are as yet poorly formed.
What I was thinking was this. A lot of us get into law school based in part on our personal statement. Strong LSAT scores and GPAs are necessary prerequisites, but not sufficient in and of themselves to garner admission. What separates students with similar numeric indicators may well be the quality of their personal statement (and possibly their letters of recommendation).
I remember quite well the personal statement I wrote for my law school applications. It was personal to the point of being intimate, somewhat shocking, and very provocative. It vibrated with feminist fervor, not presented pedantically, but through a personal story.
Indeed, as a young feminist, my studies and my instincts convinced me of the power of personal narrative in the service of finding truth and fairness. It was through personal narrative that we could begin to partially understand “the other,” a necessary prerequisite for justice. (Needless to say, this is a key insight of critical studies in general, including Critical Race Theory.)
But whether one is a feminist/crit or not, the fact that law school applications generally require a personal statement compels prospective law students to look at themselves, understand themselves, and narrate themselves. To describe how they are unique, and how they will make a unique contribution to the field of law.
I was reminded of this when I recently started looking at the admissions fora on “Top Law Schools,” a website that a colleague told me about, where law students and prospective law students come together to talk about schools and the admissions process with the security of anonymity. A number of students had posted their personal statements for comment by others. To a one the short essays were compelling, engagingly written, and committed to finding meaning through subjective, personal experience.
And what struck me is how this urgency of self and subjectivity and personal narrative must fall away from the very first day of law school.
Law school is not about the self in part because it is about the client. This is not always readily apparent to 1Ls, but the reason they are being taught to abandon their instinctive sense of justice is so that they can craft succesful arguments that resonate with the purportedly objective, rational system of the laws (and powerful legal actors, including judges). And they will make these arguments, of course, on behalf of their clients.
It is also not about the self in the sense that Elizabeth Mertz observed the implicit values orientation of legal education, which I described in an earlier post as follows:
In learning to speak [the] language [of law] 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.
Mastering the skill of thinking like a lawyer necessitates a certain distancing from the unique, subjective self.
We get into law school by articulating our uniqueness, and then begin shedding that uniqueness the moment we cross the threshold of legal education.
I still remember clearly—and have written about this previously—sitting in my first year torts class, and the class being asked to determine and justify the proper rule of law for a particular torts case. And the intellectual task was to suppress your instinct to identify with or care about the plaintiff’s story, but to instead consider objectively what rule of law best allocated costs across society. We were taught to think of parties not as humans, but as “least cost avoiders.” The perspective of the individual had to yield to the need for social order.
I am not saying that this approach is wrong, but I am saying that it is shocking and disorienting, at least to some of us.
There are exceptions to this rule. One of the reasons I enjoyed my clinical experience (representing individuals applying for asylum) so much was that we were permitted—indeed required—to focus on our client as an individual, to tease out the details of their (often excruciatingly painful) stories, to understand them on a personal level. This intellectual practice felt familiar and right to me. But, needless to say, it did not have much of a place in other classes, where a more traditional form of legal analysis was required. As a student, I not only fought the hypo, I rebelled against the entire way of thinking, to my own detriment.
As a teacher now, I focus on teaching students a very strict, very logical and formulaic pattern of legal analysis. This is because, at the end of the day, I actually believe that this is the language that lawyers must speak in. When I look at some of the United States Supreme Court’s worst decisions on issues of human/civil rights (easy targets being Plessy v. Ferguson and Bowers v. Hardwick), I see failures of logic, not failures of empathy. Failures of empathy are certainly there, but if our arguments rely on judges having empathy for even the most dispossessed, marginal client—that strategy is surely folly. Judges understand logic. We are capable of arguing with logic.
And I also believe that logical argument can incorporate personal narrative to great success. Developing a relevant, persuasive personal narrative is an expert skill in terms of working with facts, and can make the difference in a given case. But it must be wed to principles that, while not objective, are at least agreed upon and thus the starting point for dialogue.
I suppose what I try to do differently when I teach is to explain why we need to downplay—or at least find the proper place for—personal perspective, and instead become fluent in the language of law. It is ultimately to serve the ends of justice. Something I did not understand when I was a student myself.