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Saturday, January 12, 2019

Moyn and His Critics on Law Schools and Democracy

I've meant for a while to write a post on Samuel Moyn's interesting Chronicle piece on whether law schools are "good for democracy." Unfortunately, I have other (and past-due) obligations and this has made it difficult. Moyn's piece, it seems to me, calls for either a long post--my specialty, and perhaps the only kind of post I write anymore, but one I don't have time for--or a mere aggregating post, offering links to the piece and to criticisms of it. I tried to split the difference, but unsuccessfully. So here is a long but still incomplete response. For present purposes, my central goals have less to do with whether or how much I agree with Moyn, but 1) to clear some ground, and 2) to suggest that the criticisms of his piece demonstrate its value, and perhaps say something about law schools and their politics and situation within the social firmament. 

In his op-ed, Moyn argues that insofar as law schools exist not only for the basic task of training lawyers, but also to "advance or even incarnate certain ideals of political and social justice," then "law schools, and especially elite law schools, are failing to advance those ideals. Law schools allow you to do well. But it is harder to establish that they allow for doing good."

Among other things, he takes as an example law school clinics, asking "whether the clinical revolution is actually about changing the world," at least for individual students, as opposed to things like finding a way to "harmonize" "social-justice work...with elite credentialing for power and wealth." He argues that law schools "need to consider how to reset their missions for those students no longer able to suspend disbelief about how their ideals and their training fit together." Crucially, he asks, "What if the truth of law schools is that their main social function, aside from producing the next round of elites, is that they buy off those who initially doubt that perpetuating elites is what law schools ought to be doing?" And he responds to this question by suggesting, among other things, that law schools, or at least elite law schools, should pay more "attention to what it means for legal elites to serve the democratic conversation about how the people rules itself. Rather than burnishing the credentials of law and its royal judicial stewards, we should insist on the centrality of the people in a democratic legal order. If elite students are forced into a dilemma about how to preserve their sense of justice even as they embrace extraordinary privilege, it is, first and foremost, because society allows law schools to endlessly reproduce elite ascendancy. But the institutions themselves can force some change from within, in part by explaining to the people how the law rules them."

Whether I agree with all of it or not, I always enjoy Moyn's writing. Its value, to me, is evident not least in the fact that it draws what I would call the right adversaries. In showing this, we must first dispense with two sets of adversaries or critics Moyn drew for this piece--those who objected that Moyn was talking only about elite law schools, and those who objected to his use of clinics as an example. We are then left with the interesting fact, one not uncommon with respect to Moyn's writing, that his op-ed drew negative responses from what we might, both usefully and uselessly, call both the left and the right. In reality, it is more accurate to say that Moyn's piece was most likely to draw negative responses from establishment liberals or progressives and from establishment conservatives. For people whose orientation is more genuinely "left" or "right" and less establishment oriented, his piece is likely to draw at least chimes of recognition, if not agreement.  

The first set of adversaries to dispense with is those, especially those who believe that law schools are primarily or solely here to train lawyers, who argue that Moyn's piece has little relevance for the vast body of law schools. I think this is slightly overstated: among other things, insofar as law schools of any and every type and "rank" insist on hiring from a small cadre of elite-trained candidates who often have experienced, internalized, and continue to embody and argue for the kinds of visions they absorbed from Yale and other elite institutions, some of the questions he discusses are likely to filter through the broader body of law schools. But in any event, it should be noted that Moyn is clear that 1) his piece is fundamentally about elite law schools, for better or worse, and 2) that law schools' "primary task will always be the production of lawyers for the bar"--although he notes, correctly in my view for some or many schools, that this is "a core commitment with which other agendas will necessarily fit uncomfortably." Moyn can be criticized for a narrow focus on elite law schools if one wishes, but he is not unaware of this limitation in his piece and doesn't pretend he's addressing the whole universe of American law schools.

The second and perhaps largest body of critical reactions came from those who did not much care for Moyn's use of clinics as a critical example. One example of this is Steven Lubet's Faculty Lounge response to Moyn.  Lubet writes, inter alia, that Moyn "seems to disdain the work of clinicians," and that "every clinician I know spends a good deal of time considering the social impact of their work, and none of them are concerned with alibis or grubby scrambles, much less laundering injustice." To his credit, Lubet adds a response from Moyn, in which Moyn says that "this piece isn’t about clinics, except (explicitly) as a passing example of how people in elite settings have to grapple with their consciences," and similarly that his op-ed "is more about the psychological/spiritual functions of clinics for students, regardless of instructor intent." Lubet takes this response seriously but considers it insufficient and says a simple apology would have been preferable. (He notes his concern in particular that in using clinics as an example, Moyn "focuse[s] on one of  the most vulnerable programs at the law school." Even taking that as true, I don't consider this criticism especially apt. Intellectuals and academics--and I think Moyn qualifies as the former, even if I doubt I do--should write without concern for fear or favor. Afflicting or comforting either the comfortable or the afflicted should be by-products of what they write, not a reason not to write or to seek out harmless or inconsequential examples. And I frankly doubt that an op-ed in the Chronicle of Higher Education--especially the current and not very good version of the Chronicle--will do much to push legislatures in one direction or the other compared to whatever direction they were already heading.) 

I credit Moyn's response more strongly, I think, than Lubet does. In reading the piece, I took clinics to be only an example, not a target, of Moyn's argument. And I thought it clear that in discussing clinics, he was indeed not referring to the instructors, but to the students, and more specifically to the psychological function of law clinics for elite law students. I do think that some elite law students are determined to do public interest work full-time, or to use clinics to get an education in doing full-time practical legal work, assisting clients of whatever sort with their legal problems (you know, lawyering), without any particular regard for a broader social purpose. For them, the "psychological/spiritual" point Moyn makes may be less relevant. But for others, specifically elite students who will end up at big firms while doing some pro bono work, and who can or do indeed use this work to preserve a specific sense of self--as a just person who does justice, despite having implicit or explicit negative or ambivalent feelings about working for Biglaw, but whose clinical past and pro bono present demonstrates that he or she is really a good person whose wealth and privileges, and those passed on to his or her children, are washed clean by moral desert--I think Moyn's point rings true. Some may be uninterested in a "psychological/spiritual" observation of this kind or think it trivial. I am not one of those: I think it is a useful, important, and under-examined issue with respect to the sociology and class status of law schools, certainly elite schools but likely many more of them. Regardless, I thought his aim was clear and that this was not an attempt to undermine clinical programs or criticize from stem to stern. Those reactions that amount to a simple displeasure or wounded amour-propre about any piece that mentions law clinics and does so in a non-positive way are understandable but, to the extent that they are a simple reaction of this kind, less important. The more thoughtful criticisms of his use of clinics as an example have value, but I think they ultimately miss the mark. 

On the flip side, there are more substantial and, for lack of better words, both "political" and "institutional" defenses of law schools against Moyn's piece, or criticisms of Moyn's piece that are themselves critical of law schools for political reasons. What I found interesting was the extent to which these criticisms came from both liberals and conservatives. For an example of the former, one that I think makes some good points even if I think it may soft-soap others, see the response of Dean Margaret Raymond of the University of Wisconsin's law school. I do think Raymond makes some good points. Not least, I appreciate that she does not respond by demonizing big-firm legal practice (or small-firm legal practice that is about simple and valuable things like forming corporations, helping small businesses, defending employers against wrongful dismissal cases, or what have you) while denying that any of her graduates do this sort of thing: "Some of our graduates go on to BigLaw practice, of course, and good for them." She is right, too--depending on how high one defines the bar--that her graduates "are not queued up to take their preordained place in an elite hierarchy." (Much depends on how one sets the bar. It's certainly less true of Wisconsin grads than Yale grads, if you're thinking about the very top of the elite hierarchy. It's certainly true that her school's graduates' place in that hierarchy is less "preordained." On the other hand, the median private-sector salary of a Wisconsin grad, according to 2017 data, was $115,ooo. That's not townhouse-in-Georgetown rich or elite, but it, as well as the knowledge base and social capital it includes, may well suffice to place those graduates in a professional-managerial class that is already worlds apart from average American life.) Whether her assertion that her students (0r students elsewhere) are "neither naïve nor resigned to 'endlessly reproduce elite ascendancy'" is a different question that I can't answer. I think Moyn may overstate, even as to some of his own school's students, and that Raymond may understate, even as to students at non-elite law schools other than those at the very bottom rungs. But, without meaning to downplay the aspects of Raymond's letter that I appreciated or to ascribe motives to her, one might see in her response a kind of "all is well" sentiment that one could characterize as the liberal or left, but still fundamentally establishment-oriented and establishment-protective, reaction to Moyn's piece.

Then there are conservative responses to Moyn's piece. They are, on the whole, more interesting than the ones I have seen from either clinicians or liberals. For John McGinnis, the problem with Moyn's piece is that it is filled with and emblematic of "the embedded left-liberal assumptions of the legal academy." For Yuval Levin, who I think is much more favorable toward Moyn's piece (and certainly more favorable than many others who reacted to it), many of Moyn's criticisms are apt, but he seeks to deepen the disease rather than move toward a proper cure--namely, the revival of "a genuinely academic culture in the law schools." An extended and interesting passage from his piece is useful here:  

The deepest problem with the distorted and distorting emphasis of today’s elite legal education, which Moyn well describes, is not that it keeps would-be lawyers from becoming effective activists for progressive social change (although it does do that) but that it keeps them from becoming effective lawyers in our democratic republic. And it does that especially by neglecting to subject them to a strong professional code—a self-understanding that is fundamentally professional and institutional, and so subsumes their individual ambitions beneath clear, legitimating responsibilities and channels it toward the service of their fellow citizens.

That’s what a profession does for its members, and especially for its elite and privileged members. It restrains and protects them, it gives them purpose and genuine belonging, and it provides them with a valued place in a larger social order so that they need not always be suspected of working to undermine it for the benefit of their class or of themselves.

Lawyers have a distinct place in our particular social order, as interpreters of the legal frameworks of democratic life, as careful reformers of those frameworks, and as agents of fellow citizens in need of prudent counsel. A professional code that accustoms elites to serve as agents of others and that holds them to a standard that has more to do with integrity than with raw intellect would be one useful way to help humble those elites and to legitimate their standing and their privileges.

I happen to be quite sympathetic to these points in many respects, and those who are increasingly or suddenly interested in the role of things like virtue, honor, office, and duty in public service ought to find some common cause with French, despite other political disagreements. But I also think there are good reasons why many have lost faith in elites altogether, even if they also think that elites and establishments can provide useful norms and the sane and stabilizing effects of professionalism, as against arbitrariness, incompetence, and a failure of decent and dependable governance. I see nothing wrong with some tension and ambivalence about these questions, or with scrutinizing and questioning establishments and established hierarchies and the ways in which they reproduce themselves, even as one sees their value when compared with a more free-for-all environment. In the end, thought, one can appreciate what French writes, but still observe that one result of this vision is, as with Raymond's letter, the legitimation of the status and sense of moral desert of those who occupy the establishment.

Wherever I come out on these questions, I think Moyn's piece is valuable for psychoanalyzing and critiquing the establishment and not defending it. (Indeed, one point of disagreement for me is that I think Moyn's piece goes too far in his resignation about, or even defense of, what he calls "a certain amount" and I would call a substantial degree of "hypocrisy and rationalization" on the part of elites.) The relationship between "doing good" and "doing well" is a fraught and perhaps impossible or irreconcilable one that just happens to be the cornerstone of what I think of as the modern, post-SAT meritocracy. It rests substantially not on doing good as an end in itself for which things like comfort and one's own ambitions can and should be sacrificed, but on feeling and believing that one is "doing good," that this is a natural and necessary part of or complement to "doing well," and that (although few would put it to themselves this way) it effectively serves as a kind of moral laundering of one's place (and, as or more important, one's children's place) in a privileged elite.

Most of the publicity about mandatory arbitration at law firms had to do with how that affected summer and permanent associates, not staff--who, if one buys the arguments against mandatory arbitration, are far more in need of championing than lawyers, especially lawyers with the kinds of elite credentials that get them these jobs in the first place. In fairness, although that publicity was so oriented toward law schools that I at first thought staff had simply been ignored, they are mentioned explicitly in at least some of the public letters and petitions on this subject. But it is perhaps not incidental that most of the public focus was on the well-being of (elite) lawyers and law students, not, say, receptionists and mailroom staff. Similarly, many of the arguments about which cases or issues big-firm associates insist that their firms either take on or refuse to take on have the effect of building and preserving a certain sense of self, while leaving in place most of what brings them a very lucrative practice, a comfortable and prestigious life, and a mountain of social capital. These kinds of compromises, which are not seen as compromises but as bold stands for "justice," seem--let us assume incidentally, but perhaps not wholly unconsciously--to result in a few loud pronouncements and protests without going so far as to actually disturb the pleasant and advantageous elements of "proximity to power and prestige."

More openness about this might lead to little--if it is little--beyond a clearer sense of self-knowledge and the reduction of a certain amount of illusion about oneself. It might lead legal elites to acknowledge to themselves just how much of their time and effort is spent "reconcil[ing their] politics with [their] self-interest," to quote Moyn. As he writes, "[i]f law schools and law students were more open about their elitist compromises, there could be more discussion of how all of their members manage their consciences."

The answers to this discussion might vary. It might be that rather than follow Moyn's suggested path, more elite students would more openly acknowledge that they are engaged in what is by their lights a morally questionable enterprise, in which their politics cannot be reconciled with their self-interest. Some might alter their politics rather than their self-interest or, perhaps more accurately, acknowledge that their self-interest drives their actions far more than they care to admit, and that their politics--the justice issues they focus on and especially or tellingly those they spend less or no time on--are, as a matter of revealed preferences, more conventional and establishment-serving, and less radical or disruptive, than their self-presentation or self-image suggests. They could thus reduce the cognitive dissonance by recognizing more openly the degree to which their politics really are elite-oriented and conservative. Or they could adopt a more disenchanted and mundane, although perhaps still professionally oriented, view of law schools' "mission:" taking the training of practicing lawyers as the real core of legal education. acknowledging that the seeming focus on grander missions is more of a comforting illusion or cosmetic element than a reality or core element of legal education, and returning law schools to a less encompassing and more technical function. Or, as Moyn might wish (although his fairly forgiving treatment of "a certain amount of hypocrisy and rationalization" suggests some undefined and convenient limits here), they could adopt the more dramatic and political "mission" more wholly and radically, accept that doing so really does entail a loss of proximity to power and prestige, admit that that they can't and perhaps shouldn't have both, and seek radical justice over proximity to power and prestige.

I don't think all law schools, elite or otherwise, can or must reach the same conclusions or adopt the same missions and concomitant reforms. I have my own preferences, but think there is room for more than one answer and more than one model. But at least this discussion would lead to more honesty--including honesty with oneself, especially among legal elites--about the kinds of institutions they attend and are headed toward, about their real nature and the real nature and consequences of their individual choices, and about how much, or how little, depending on one's perspective, is at stake. I doubt I share Moyn's answers on these questions. But I like the questions he asks and how he asks them. 

  

Posted by Paul Horwitz on January 12, 2019 at 11:39 AM in Paul Horwitz | Permalink

Comments

I have two problems with the Moyn piece.

First, he is basing his argument on the Foucaultian notion that all institutions are power structures. The problem with this notion is similar to the problem with Marxism. For Marx, everything is class struggle. While class struggle is a component of society, there are many, many other factors that also influence society. If Marx had recognized that class struggle was just one influence, he might have created a system of thought that was not as vulnerable to attack as Marx's is. The same is true of Foucault and power. Institutions do possess and use power, but there are many other factors that influence institutions. Concerning Moyn, law schools do have power and exert that power, but they have many other functions than preserving the status quo. For example, they educate lawyers, which to some critics make them trade schools.

Second, for Moyn's argument to be true, humans would have to be "blank slates," whose minds are easily molded as Skinner and some anthropologists thought. Chomsky's notion of a universal moral grammar underlying all human languages debunked Skinner's theory. Chomsky didn't just do a "thought experiment" as postmodernists usually perform, but he backed up his theory with scientific experiments. Chomsky and others have expanded his notion to show that there is a universal morality underlying all human behavior. Donald Brown produced a list of hundreds of human traits that are common to all cultures. (See the appendix to Steven Pinker's The Blank Slate.) Thus, law schools do not have as nearly as much influence on its students, as Moyn apparently thinks.

In sum, students come to law school with a well-established character they have obtained from innate human nature and the experiences they have had throughout their lives. Law schools act upon their students' moralities and characters, but not any where to the extent implied by Moyn's piece. If they came into school to do social justice or work in public law, it is very unlikely that law school will change them. What might change them is the reality of crushing debt and the realization that they have to earn a living. If Professor Moyn wants more students to go into public service, he should fight to lower the costs of law school.

Posted by: Scott Fruehwald | Jan 13, 2019 11:41:58 PM

You still have two references to French in the paragraph following the Levin block-quote.

Posted by: Asher | Jan 12, 2019 9:20:19 PM

I did! Thank you for pointing it out. I'm leaving the comment here but correcting it in the post.

Posted by: Paul Horwitz | Jan 12, 2019 4:06:54 PM

Great post. But aren’t you misattributing Yuval Levin’s response to David French?

Posted by: Steve Haines | Jan 12, 2019 3:31:25 PM

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