Richard Posner and his cat: Is law school the way it is because of this man? (But not because of his cat, we believe.)
This is a short (and therefore busy) week, so it may be unwise for me to point you toward a long article. But I suspect it will reward your time investment.
It is titled “The real reason law schools are raking in cash,” and I thank the New Hampshire Bar Association for pointing me toward it.
Pressed for time? The story’s deck provides a hint of the theme: “The profession’s in crisis, but the schools don’t care. They’re steeped in a toxic, hyper-capitalist worldview.”
No, this ain’t take-to-the-ramparts class warfare, but it is a very nuanced examination of the process of changing minds that we have called “law school.” And anyone who has been through the lawyer-manufacturing process may recognize the steps that author Benjamin Winterhalter dissects.
After explaining the odd economic dynamics of today’s legal profession—student employment is down, their debt is up, and school coffers remain full—he offers his analysis about what he calls an “obvious question about the discrepancy—the gulf between the continuing financial success of American law schools and the grim financial realities of their graduates—that no one seems to be asking.”
“That question, the one that is so obvious that even thinking about it is deeply painful, is this: Why aren’t law schools ashamed of themselves? Where is their sense of pity, of remorse, of human decency? After all, aren’t the very ideals that law schools purport to teach about—justice, fairness, equality—fundamentally and exactly opposed to this sort of naked capitalist exploitation? In the standard liberal vision of a functioning democracy, isn’t the rule of law supposed to be our salvation from the savagery of the free market?”
That is a substantial shot across the bow of American law schools, one that requires some hefty evidence to support. If we require a prime mover of this alleged discrepancy, the author is prepared to offer one:
“[L]aw school’s indifference to student suffering results not from an inexplicable love of torturous methods of instruction, nor from the inevitability of natural human selfishness, but from a profound ideological commitment to a particular version of neoliberal capitalism.”
Who is in the vanguard of that “ideological commitment”? Winterhalter points to former professor now judge Richard Posner as an undisputed leader. He is the most well-known proponent of the law and economics philosophy, which urges us to understand that the law’s primary question and concern should be whether “the rules” promote economic efficiency. That belief system, Winterhalter claims, “is now so deeply ingrained in the teaching at U.S. law schools that it is regarded as dogma.”
The outcome of that hegemonic thinking, he argues, is significant. It affects not just the quality of the law and policy that results. But it also affects the way law school graduates view themselves.
“For most students, the ideological training “takes”—like a plant in new soil. So when they find themselves enduring tough economic times, they assume that, other than grab hold of their bootstraps, there is nothing they can do. As they learned so many times in law school, the market wants what it wants, and it seems—at least at the present moment—not to want them. Since the market, the organ of social judgment, the grumbling gut of a hungry nation, has spoken, there is nothing for them to do but listen. To try, in other words, to make the best of it, all while sensing—if the plant has truly put down roots—the unavoidable conclusion of the law-and-econ doctrines: they deserve their fates.”
That is a powerful indictment. Read his whole essay here.
This may be one of the most unique examinations I’ve read of the truism that law school gets us to think like lawyers. It’s often remarked upon wryly, as if that thinking then does some disservice to those who must live and work amongst attorneys. Winterhalter says it does that, but it harms law graduates, as well.
What do you think of this analysis? Is Winterhalter on to something when it comes to law schools?
Why so down in the mouth, legal profession? For an answer, let’s look to the field of dentistry.
If you are seeking a more concise examination of the state of the legal profession, I’ve got that for you too. Head over to the Wall Street Journal, where an author suggests that legal education is about where dental education was three decades ago: oversubscribed and underemployed. As the author says, “In the 1980s, dozens of dental schools were forced to shrink their class sizes and several shut down.”
There’s even a fun quiz. Find it here.