regard critique sur la formation en droit llewellyn, fuller et kennedy animateurs: jennifer...

Regard critique sur Regard critique sur la formation en la formation en

droitdroitLlewellyn, Fuller et KennedyLlewellyn, Fuller et Kennedy

Animateurs: Jennifer Anderson, Egbert de Groot, Kate Animateurs: Jennifer Anderson, Egbert de Groot, Kate GoddardGoddard

Fondements du droit canadien, 27 février 2013Fondements du droit canadien, 27 février 2013

Kennedy’s Utopia

Recall: Utopian thinking criticized by Critical Race Theorists among others

Problems:

Practicable/realistic?

Assumptions of self-evidence?

Ignores plurality of viewpoints?

Assumes the correctness of majoritarian dominance?

What happens when diverse utopian What happens when diverse utopian perspectives collide?perspectives collide?

PREMISE:PREMISE:

McGill has four Kennedy-style “study groups” McGill has four Kennedy-style “study groups” dedicated to shaking up the status quo in the dedicated to shaking up the status quo in the Faculty of Law.Faculty of Law.

They will each submit a utopia to Faculty They will each submit a utopia to Faculty Council in the hopes of advancing their values Council in the hopes of advancing their values and vision.and vision.

““Battle of the Study Groups”:Battle of the Study Groups”:A Legal Education Utopia for A Legal Education Utopia for

McGillMcGill

INSTRUCTIONS:INSTRUCTIONS:Move into the group corresponding to your number:Move into the group corresponding to your number:1.1. The Lefty AgitatorsThe Lefty Agitators2.2. Posner + Scalia = LovePosner + Scalia = Love3.3. The PragmaticsThe Pragmatics4.4. The FacultyThe Faculty

Using the group “profiles” provided as a starting point, Using the group “profiles” provided as a starting point, develop a FIVE-POINT UTOPIA that reflects your group’s develop a FIVE-POINT UTOPIA that reflects your group’s values and priorities.values and priorities.

You have 10 mins to develop your 5 points and write You have 10 mins to develop your 5 points and write them on the board. Each group will then have 2 minutes them on the board. Each group will then have 2 minutes to present them to the class. to present them to the class.


McGillMcGill

PART 2:

“It is crucial to form coalitions based on a relatively vague consensus that things should be different, and it is a mistake to carry programmatic thinking

to the point of hardness where it excludes potential allies.”

– Duncan Kennedy


McGillMcGill

PREMISE: Faculty Council is willing to consider the proposals of the battling study groups... BUT it wants to be sure that the changes have a broad base of support.

Which of the other groups’ proposals is YOUR GROUP willing to accept?

INSTRUCTIONS:You have 5 minutes

In your group, choose a total of THREE PROPOSALS FROM THE OTHER GROUPS that you accept.

Put a star on the board next to the three proposals you select.


McGillMcGill

In the utopia exercise, your values were “assigned”

But where do they come from in reality? What informs our actions and reactions?

Complex web of experiences, attributes, etc.Some are easy to recognize

By othersBy ourselves

And others we may never stop to consider...

Values andNon-Neutral Thinking :

Values andNon-Neutral Thinking :The Invisible Knapsack

Peggy McIntosh (American feminist/anti-racism activist)

“White privilege is like an invisible weightless knapsack of special provisions, maps, passports, codebooks, visas, clothes, tools and blank checks”

For our purposes: Extending the concept of the knapsack:

Not just resources of privilege, and not necessarily weightless

A collection of “baggage” we carry around and use to make our way in the worldTake a few minutes and think about it

Critical Perspectiveson Legal Education

Llewellyn, The Bramble Bush (1930)

Fuller, “The Lawyer as an Architect of Social Structures” (1952)

Kennedy, “Legal Education and the Reproduction of Hierarchy” (1982)

Three Connecting Themes:(1)Social order and the law

(2)Legal education(3)Law students

Links to Previous ReadingsLinks to Previous Readings

Throughout our presentation, consider the earlier readings on these themes, Throughout our presentation, consider the earlier readings on these themes, e.g.:e.g.:

Social Order and the Law:Social Order and the Law:Hay (Hay (law as ideology in creation of power structureslaw as ideology in creation of power structures); Kafka (); Kafka (law as law as mythical domain of the powerfulmythical domain of the powerful); Kronman (); Kronman (continuity through legalcontinuity through legal precedentprecedent); Ontario racist-contract cases / South African judiciary debate ); Ontario racist-contract cases / South African judiciary debate ((law as a tool to preserve status quo vs. to achieve progresslaw as a tool to preserve status quo vs. to achieve progress); the ); the Hart/Fuller Debate (Hart/Fuller Debate (law in the unjust societylaw in the unjust society); Glenn, Geertz, Jutras, and ); Glenn, Geertz, Jutras, and others (others (law constituting and constitutive of its societal contextlaw constituting and constitutive of its societal context))

Legal Education:Legal Education:Arthurs and Macdonald (Arthurs and Macdonald (critique of Canadian legal educationcritique of Canadian legal education); Jutras ); Jutras ((transsystemia as “bilingualism”transsystemia as “bilingualism”); Kasirer (); Kasirer (learning the other in order to learning the other in order to better know oneselfbetter know oneself); McKinnon (); McKinnon (mainstreaming feminism in law schoolmainstreaming feminism in law school))

Students:Students:Blackett (Blackett (mentoring underrepresented studentsmentoring underrepresented students); Van Praagh (); Van Praagh (holding holding onto one’s voice in legal educationonto one’s voice in legal education); Plato’s ); Plato’s CritoCrito ( (the original the original “brutalized” student“brutalized” student); Foucault (); Foucault (learning to destabilize oneself – learning to destabilize oneself – complicating that which is too easy)complicating that which is too easy)

Perspectives Perspectives

Each of the three authors was reactionary and took Each of the three authors was reactionary and took positions against the established/dominant positions against the established/dominant discourse.discourse.

Llewellyn (1930): Llewellyn (1930): Realism vs. Formalism Realism vs. Formalism (Conceptualism)(Conceptualism)

Fuller (1952): Fuller (1952): Natural Law vs. Positive Law / Natural Law vs. Positive Law / RealismRealism

Kennedy (1982): Kennedy (1982): Critical Legal Studies vs. Critical Legal Studies vs. several millennia of Western thoughtseveral millennia of Western thought

Karl Llewellyn:Karl Llewellyn:The Bramble Bush The Bramble Bush

Initially published in 1930, the version we read is from Initially published in 1930, the version we read is from 1950 and includes the foreword which is a rebuttal to 1950 and includes the foreword which is a rebuttal to criticismcriticism

Context: Prevailing Legal FormalismContext: Prevailing Legal Formalism““[Law as] a set of rule of external conduct, enforced by [Law as] a set of rule of external conduct, enforced by external constraint, laid down by the state, addressed to the external constraint, laid down by the state, addressed to the man on the street”man on the street”

Thirteen words which (unfairly?) characterized Llewellyn’s Thirteen words which (unfairly?) characterized Llewellyn’s view of the law:view of the law:““What these officials do about dispute, is to my mind, the law What these officials do about dispute, is to my mind, the law

itself”itself”

Can be thought of as a system of Can be thought of as a system of peoplepeople and how they and how they solve disputes, as opposed to a system of solve disputes, as opposed to a system of rulesrules. .

““What these officials do about What these officials do about dispute, is to my mind, the law dispute, is to my mind, the law

itself”itself”Officials:Officials: judges, sheriffs, clerks, jailers, lawyers, etc… judges, sheriffs, clerks, jailers, lawyers, etc…

Do:Do: focus on the final outcome of a multitude of cases focus on the final outcome of a multitude of cases

Disputes:Disputes: prevention as well as settlement prevention as well as settlement

Why do disputes need to get settled?Why do disputes need to get settled?

““so there may be peace for the disputants; for other persons so there may be peace for the disputants; for other persons who’s ears and toes disputants are disturbing” andwho’s ears and toes disputants are disturbing” and

put the problem to rest by achieving a solution which (a) “is put the problem to rest by achieving a solution which (a) “is bearable to the parties” and (b) “not disgusting to the bearable to the parties” and (b) “not disgusting to the lookers on”lookers on”

Note focus on what the Note focus on what the legal systemlegal system doesdoes as opposed to as opposed to what the law says or ought to saywhat the law says or ought to say

Llewellyn’s View of Law Llewellyn’s View of Law SchoolSchool

Learning rules is only the shell and not the Learning rules is only the shell and not the substance.substance.

Students should focus on learning and studying a Students should focus on learning and studying a multitude of concrete instances for rules to mean multitude of concrete instances for rules to mean anything.anything.

Past behaviour of officials will indicate what they Past behaviour of officials will indicate what they are going to do in the future.are going to do in the future.

In many areas prediction is not certain. These are In many areas prediction is not certain. These are opportunities for lawyers to make officials do what opportunities for lawyers to make officials do what they want them to do.they want them to do.

Llewellyn’s View of Law Llewellyn’s View of Law StudentsStudents

Students come to law school with “a pleasant haze” of what Students come to law school with “a pleasant haze” of what courts do, what lawyers do, the relationship between the courts do, what lawyers do, the relationship between the two, and what a law school does.two, and what a law school does.

The “sophisticated youth of the 20The “sophisticated youth of the 20thth century” harbour a century” harbour a cynical outlook towards authoritycynical outlook towards authority

Llewellyn subverts this barrier to hierarchy drawing Llewellyn subverts this barrier to hierarchy drawing attention to it by using humour/ridicule to get students to attention to it by using humour/ridicule to get students to pay attentionpay attention

A law school turns the “vacuum in student’s heads” into (a) A law school turns the “vacuum in student’s heads” into (a) dispute resolution prediction craftsmen and (b) dispute resolution prediction craftsmen and (b) manipulators of officials.manipulators of officials.

The first craft of law a man must learn is the craft of the law The first craft of law a man must learn is the craft of the law student.student.

Criticism Criticism

If you take the 13 words as philosophy, it leads to:If you take the 13 words as philosophy, it leads to:Disbelief in rules, their existence and desirabilityDisbelief in rules, their existence and desirability

To approve and exult brute force and arbitrary power To approve and exult brute force and arbitrary power and unfettered tyrannyand unfettered tyranny

To disbelieve in ideals, such as justiceTo disbelieve in ideals, such as justice

Lawyers are only able to “get for his client what he Lawyers are only able to “get for his client what he can actually get, and no more”can actually get, and no more”

““Rights which cannot be realized are worse than Rights which cannot be realized are worse than useless; they are traps of delay, expense and useless; they are traps of delay, expense and heartache”heartache”

Llewellyn's RebuttalLlewellyn's Rebuttal

Oversimplification of a “very partial statement” by Oversimplification of a “very partial statement” by the “unhappy words.” The words were intended as the “unhappy words.” The words were intended as a tool.a tool.

The law has an “inherent drive, patent or latent, The law has an “inherent drive, patent or latent, throbbing or faint-pulsed, impatient or sluggish but throbbing or faint-pulsed, impatient or sluggish but always present to make the system, its detail and always present to make the system, its detail and its officials more closely realize an ideal of justice.”its officials more closely realize an ideal of justice.”

The words fail to take proper account of the The words fail to take proper account of the conscious shaping of the law by the institution, and conscious shaping of the law by the institution, and the unconscious questing for the ideal by the the unconscious questing for the ideal by the machinery of law.machinery of law.

Know-your-audience Know-your-audience disregardeddisregarded

Input: Input: empirical data (case law) empirical data (case law) the facts of your casethe facts of your case

Output: Output: forecast of behaviour of systemforecast of behaviour of system

Assumptions:Assumptions:past behaviour = future past behaviour = future

behaviourbehaviourfacts fit within the empirical facts fit within the empirical

datadataCareful:Careful:

if precedent setting case, if precedent setting case, change in change in rules (procedures, rules (procedures, statute) or people statute) or people (judges, lawyers, (judges, lawyers, clerks, etc…) clerks, etc…) model may breakdown.model may breakdown.

Lon FullerLon Fuller• 1902-19781902-1978

• Stanford law & Stanford law & undergraduateundergraduate

• Prof at Harvard Prof at Harvard for 30+ yearsfor 30+ years

• Legal pluralistLegal pluralist

• Pragmatist Pragmatist orientationorientation

• Focus on law and Focus on law and moralitymorality

Fuller: Order and Fuller: Order and Social StructureSocial Structure

Lawyer as ‘architect of social structure’.Lawyer as ‘architect of social structure’.

Architect or engineer?Architect or engineer?

Debate with Hart (as seen in January)Debate with Hart (as seen in January)

What does a lawyer do? What does a lawyer do?

Critique of realismCritique of realism Law ‘as it is’ vs. law ‘as it should be’Law ‘as it is’ vs. law ‘as it should be’

Fuller’s critique of Fuller’s critique of RealismRealism

“Realism considered that this area of inquiry lay beyond its jurisdiction. A neglect of this area

tended, in turn, to encourage extreme positions about social change; on the one hand, a belief that

society is a thing wholly man-made that may be shaped in any direction desired, on the other, a determinism denying any creative role to the human will. Realism did not, in other words,

recognize the middle ground where man creates within the limits of compulsions he cannot remove

but must understand.”Fuller. p. 291

Fuller on Law, Society and Fuller on Law, Society and Law SchoolLaw School

Rejected realist approach because Rejected realist approach because thought it turned lawyers into thought it turned lawyers into masters of technique without masters of technique without regard to the ends they serve. regard to the ends they serve.

Law is not a means to an end that Law is not a means to an end that originates outside itself. originates outside itself. “Eunomics”“Eunomics”

Extremely functionalist view of law Extremely functionalist view of law schoolschool

Ex: drawing up a contractEx: drawing up a contractLaw as relationshipsLaw as relationshipsSimultaneous focus on means & Simultaneous focus on means & endsendsProblem is consistent: that of Problem is consistent: that of human organizationhuman organization

Fuller on Law Students:Fuller on Law Students:Study of eunomics (“good order”)Study of eunomics (“good order”)

Assumption that students come in with liberal-Assumption that students come in with liberal-arts background and knowledge of morals.arts background and knowledge of morals.

Focus on how lawyers create or modify the Focus on how lawyers create or modify the structure – not how the structure impacts structure – not how the structure impacts them.them.

No criticism on the existence of an No criticism on the existence of an order/hierarchy itselforder/hierarchy itself

What Llewellyn thinks I should do

What Llewellyn thinks I should do What Fuller thinks I

should do What Fuller thinks I

should do What Kennedy thinks I

should doWhat Kennedy thinks I

should do

What my parents think I should do

What my parents think I should do What I think I should doWhat I think I should do

What I actually doWhat I actually do

Why should lawyers be in a Why should lawyers be in a privileged position of power to privileged position of power to shape social ordering? If they shape social ordering? If they

should, what responsibilities does should, what responsibilities does that entail?that entail?

Duncan Kennedy Duncan Kennedy ..

Professor at Harvard since the early 1970sProfessor at Harvard since the early 1970s

Background:Background:Economics at HarvardEconomics at Harvard

2 years working for CIA in 1960s in operation to control 2 years working for CIA in 1960s in operation to control National Student AssociationNational Student Association

Yale Law School – graduated 1970Yale Law School – graduated 1970

Clerked at the Supreme CourtClerked at the Supreme Court

Career:Career:Started teaching at Harvard law in 1972 (immediately after Started teaching at Harvard law in 1972 (immediately after clerkship) – obtained tenure in 1976clerkship) – obtained tenure in 1976

Essentially no legal practice experience – never called to the Essentially no legal practice experience – never called to the barbar

While a professor at Harvard, spent a year working as a While a professor at Harvard, spent a year working as a paralegalparalegal


Professor at Harvard since the early 1970sProfessor at Harvard since the early 1970s

Background:Background:Economics at HarvardEconomics at Harvard

2 years working for CIA in 1960s in operation to control 2 years working for CIA in 1960s in operation to control National Student AssociationNational Student Association

Yale Law School – graduated 1970Yale Law School – graduated 1970

Clerked at the Supreme CourtClerked at the Supreme Court

Career:Career:Started teaching at Harvard law in 1972 (immediately after Started teaching at Harvard law in 1972 (immediately after clerkship) – obtained tenure in 1976clerkship) – obtained tenure in 1976

Essentially no legal practice experience – never called to the Essentially no legal practice experience – never called to the barbar

While a professor at Harvard, spent a year working as a While a professor at Harvard, spent a year working as a paralegalparalegal



Critical Stance:Critical Stance:

One of the main founders of Critical Legal StudiesOne of the main founders of Critical Legal Studies

Very influential “Crit”Very influential “Crit”

Areas of focus include contract law and legal educationAreas of focus include contract law and legal education

Practiced what he preached: Involved in internal law Practiced what he preached: Involved in internal law school reform at Harvard and participated in “softening” of school reform at Harvard and participated in “softening” of Socratic approachSocratic approach


““Legal Education and the Legal Education and the Reproduction of Hierarchy”Reproduction of Hierarchy”

One of Kennedy’s best known worksOne of Kennedy’s best known works

Can be seen as direct inspiration for other writers who critiqued Can be seen as direct inspiration for other writers who critiqued the legal education processthe legal education process

E.g. “Making Docile Lawyers”; Manderson & Turner (2006) E.g. “Making Docile Lawyers”; Manderson & Turner (2006) “Coffee House: “Coffee House: HabitusHabitus and Performance Among Law and Performance Among Law Students.”Students.”

Produced as a self-published “pamphlet”Produced as a self-published “pamphlet”

‘‘I was influenced… by the I was influenced… by the ideology of the pamphlet itselfideology of the pamphlet itself, , my own ideology of the time, affirming the desirability and my own ideology of the time, affirming the desirability and possibility of the possibility of the “revolution of civil society,”“revolution of civil society,” carried out carried out without official media, “interstitially”without official media, “interstitially” rather than from rather than from above or below the institutions where we work.’above or below the institutions where we work.’

The article we read is a shorter version published in the The article we read is a shorter version published in the Journal of Journal of Legal EducationLegal Education, 1982, 1982

In 20In 20thth anniversary reprint, he asserted that the force of the anniversary reprint, he asserted that the force of the hierarchy he describes in LEHR is even more rigid now.hierarchy he describes in LEHR is even more rigid now.

Kennedy: Order & Kennedy: Order & HierarchyHierarchy

Society is rigidly hierarchical and inequitableSociety is rigidly hierarchical and inequitable

Prevailing order is motivated by biased interestsPrevailing order is motivated by biased interests

Non-neutral forces that create hierarchy and power Non-neutral forces that create hierarchy and power structures need to be “trashed,” i.e. deconstructedstructures need to be “trashed,” i.e. deconstructed

Rejection of viewpoints that characterize Llewellyn and Rejection of viewpoints that characterize Llewellyn and Fuller Fuller recognize what/who is being privileged recognize what/who is being privileged

““Law is an aspect of the Law is an aspect of the social totalitysocial totality, not just the , not just the tail of tail of the dogthe dog.”.”

People struggle for power through law, and since People struggle for power through law, and since outcomes of struggle are not preordained, there is no outcomes of struggle are not preordained, there is no “inherent logic” to legal outcomes“inherent logic” to legal outcomes

The legal profession and practice of law both bolster and rely The legal profession and practice of law both bolster and rely on this hierarchical social orderon this hierarchical social order

The legal education experience acclimatizes students to The legal education experience acclimatizes students to the hierarchy the hierarchy trains them to perpetuate it trains them to perpetuate it

Kennedy:Kennedy:The Law School Experience The Law School Experience

(1)(1)Harvard in the 1970s? Yale in the 1960s? Schools today?Harvard in the 1970s? Yale in the 1960s? Schools today?

More like high school than undergraduate experienceMore like high school than undergraduate experience

Loss of autonomyLoss of autonomy

Most Most professors are authoritarian, intimidating, largely professors are authoritarian, intimidating, largely homogeneoushomogeneous

Socratic method is humiliating and destabilizingSocratic method is humiliating and destabilizing

Student interaction is “Student interaction is “pseudo-participationpseudo-participation””

Creates “Creates “a classroom arrangement that suggests at once the a classroom arrangement that suggests at once the patriarchal familypatriarchal family and a and a Kafka-like riddle stateKafka-like riddle state””

““Softer,” policy-oriented teachers not viewed as positively Softer,” policy-oriented teachers not viewed as positively deemed by students to be lacking in “rigour” deemed by students to be lacking in “rigour”

Likewise, “peripheral” subjects (legal philosophy, history) Likewise, “peripheral” subjects (legal philosophy, history) treated as unimportant – “treated as unimportant – “finishing schoolfinishing school” in social art of ” in social art of being a lawyerbeing a lawyer


(2)(2)Approach to teaching is purposely inadequateApproach to teaching is purposely inadequate

Idea that legal reasoning is distinct from policy analysis is Idea that legal reasoning is distinct from policy analysis is a sham a sham students are bullied into overlooking obvious students are bullied into overlooking obvious logical fallacieslogical fallacies

Social problems presented as being too complicated for Social problems presented as being too complicated for reform efforts to workreform efforts to work

““Cold” cases intended to bore students with rigid Cold” cases intended to bore students with rigid application of rulesapplication of rules

““Hot” cases intended to invoke emotional response, only Hot” cases intended to invoke emotional response, only to show that students do not have good intuition for the to show that students do not have good intuition for the lawlaw

Skills teaching divorced from “substance”Skills teaching divorced from “substance”

WhyWhy??

Professors rely on ineptitude of their students for their Professors rely on ineptitude of their students for their own survivalown survival


(3)(3)

Grading teaches hierarchyGrading teaches hierarchy

Focused on relative ranking – each student is assigned a Focused on relative ranking – each student is assigned a “place”“place”

““Students generally experience these grades as almost Students generally experience these grades as almost totally totally arbitraryarbitrary – unrelated to how much you worked, – unrelated to how much you worked, how much you liked the subject, how much you thought how much you liked the subject, how much you thought you understood going into the exam, and what you you understood going into the exam, and what you thought about the class and the teacherthought about the class and the teacher.”.”

This ranking determines which articling positions are This ranking determines which articling positions are available to each student – firms are ranked tooavailable to each student – firms are ranked too

Yet irrelevant to being a lawyerYet irrelevant to being a lawyer


(4)(4)Career trajectories function as self-fulfilling Career trajectories function as self-fulfilling prophesiesprophesies

Professors provide cues about the merits of different Professors provide cues about the merits of different career pathscareer paths

The “family medicine” of law?The “family medicine” of law?

Training is focused on the needs/expectations of the Training is focused on the needs/expectations of the careers most graduates have gone into in the past careers most graduates have gone into in the past incapacitatesincapacitates students from moving in other directions students from moving in other directions

““Alternative” career paths are riskyAlternative” career paths are risky

Result: Because skills teaching is so poor, students have no Result: Because skills teaching is so poor, students have no choice but to obtain further training at a firm... and feel choice but to obtain further training at a firm... and feel grateful that someone will take them in and help themgrateful that someone will take them in and help them


(5)(5)Interpersonal relationships serve as a model for Interpersonal relationships serve as a model for professional hierarchyprofessional hierarchy

Model for...Model for...

Law firms: Professors are visibly preoccupied with their Law firms: Professors are visibly preoccupied with their school’s status and rankingschool’s status and ranking

Associates at a firm: Associates at a firm:

Professors compete with each other for tenureProfessors compete with each other for tenure

Students approach each other with “surface norm of Students approach each other with “surface norm of noncompetitiveness and cooperation” concealing distrustnoncompetitiveness and cooperation” concealing distrust

Students who are minorities in the school (female, black, Students who are minorities in the school (female, black, lower SES) experience indirect pressure to conformlower SES) experience indirect pressure to conform

to become as white, male, and upper-middle-class as to become as white, male, and upper-middle-class as possiblepossible

““On one level, all of this is just On one level, all of this is just high schoolhigh school replayed; replayed; on another, it’s about on another, it’s about how to make partnerhow to make partner..””


(6)(6)Interpersonal relationships serve as a model for Interpersonal relationships serve as a model for professional hierarchy (cont’d)professional hierarchy (cont’d)

Model for...Model for...

Junior associate / senior associate relationship: Student to Junior associate / senior associate relationship: Student to professor relationship characterized by deference, thick skin, professor relationship characterized by deference, thick skin, and ego-strokingand ego-stroking

Lawyer / assistant relationship: Students watch professors Lawyer / assistant relationship: Students watch professors treat their assistants with petulance, condescension, treat their assistants with petulance, condescension, perfectionism, and sometimes harassmentperfectionism, and sometimes harassment

““[H]umane relations in the workplace are a matter of the [H]umane relations in the workplace are a matter of the superior’s gracesuperior’s grace rather than of rather than of human needhuman need and and social justicesocial justice.”.”


(7)(7)Overall result: “Double surrender”Overall result: “Double surrender”

... “... “to a to a passivizingpassivizing classroom experience and to a classroom experience and to a passivepassive attitudeattitude toward the content of the toward the content of the legal systemlegal system””

Students fall into grooves that they wear down even deeper, by Students fall into grooves that they wear down even deeper, by reaffirming the system and seeking to reproduce it for those reaffirming the system and seeking to reproduce it for those who come after them.who come after them.

““Training for subservience is training for domination Training for subservience is training for domination as well.as well. Nothing could be more natural and, if you’ve served Nothing could be more natural and, if you’ve served your time, more fair, that that you as a group should do as your time, more fair, that that you as a group should do as you have been done to, for better and for worse. But you have been done to, for better and for worse. But it it doesn’t have to be that waydoesn’t have to be that way, and remember, , and remember, you saw it you saw it first in law schoolfirst in law school.”.”

Professors must take responsibility for the perpetuation of the Professors must take responsibility for the perpetuation of the hierarchyhierarchy

Kennedy: Law Students (1)Kennedy: Law Students (1)

Kennedy’s focus is on left-wing students of various descriptionsKennedy’s focus is on left-wing students of various descriptions

Ultimate goal: to organize into a “Ultimate goal: to organize into a “left wing bourgeoisie left wing bourgeoisie intelligentsiaintelligentsia” that can one day lead popular movements to ” that can one day lead popular movements to radically transform societyradically transform society

On one hand, he recognizes the On one hand, he recognizes the diversitydiversity of the student body: of the student body:

Ethnicity/race, gender, socio-economic statusEthnicity/race, gender, socio-economic status

PoliticsPolitics

Idealistic adherents of rights discourse who believe law is Idealistic adherents of rights discourse who believe law is a progressive force for social changea progressive force for social change

Anti-establishment radicals who distrust the law as a Anti-establishment radicals who distrust the law as a weapon of the powerful, but believe that it can be co-weapon of the powerful, but believe that it can be co-opted to be used against themopted to be used against them

Secret “conflicting” motivationsSecret “conflicting” motivations

Social mobilitySocial mobility

Character buildingCharacter building


BUT:BUT:

In other key respects, Kennedy’s students are In other key respects, Kennedy’s students are undifferentiated, homogeneousundifferentiated, homogeneous

They are all...They are all...

Unsophisticated in their politics and understanding of the Unsophisticated in their politics and understanding of the worldworld

Unable to counteract the destabilizing or alienating Unable to counteract the destabilizing or alienating experiences in which they are placedexperiences in which they are placed

Unaware of what they should be questioning in their Unaware of what they should be questioning in their experienceexperience

Lacking in agency to break new ground, make their own Lacking in agency to break new ground, make their own decisionsdecisions

Passively internalizing the messages they receivePassively internalizing the messages they receive

Helpless in the face of the forces of hegemony with which Helpless in the face of the forces of hegemony with which they are confrontedthey are confronted


being led likelambs to the slaughterWide-eyed innocents

IN OTHER WORDS, like...IN OTHER WORDS, like...

Kennedy: Critiquing the Kennedy: Critiquing the “Crit”“Crit”

Is this legitimate?Is this legitimate?Is this how 22-year-olds with university degrees Is this how 22-year-olds with university degrees are typically described?are typically described?

Is this you? Do you think it was your parents at Is this you? Do you think it was your parents at that age?that age?

Assuming it Assuming it isis legitimate, what does it say about legitimate, what does it say about Kennedy’s own goal of moulding these students Kennedy’s own goal of moulding these students into a left-wing force for social rebellion?into a left-wing force for social rebellion?

Is this less manipulative or hegemonic from his Is this less manipulative or hegemonic from his position as professor?position as professor?

In the context of the Utopias we established and the baggage/background you bring to

law school, how do you feel about what these authors said?

SynthesisSynthesis

Comparison:Comparison:Critical Approaches,Critical Approaches,Critical ConclusionsCritical Conclusions

Kennedy focuses on law school as the root of Kennedy focuses on law school as the root of hierarchical learning, but is that realistic?hierarchical learning, but is that realistic?

Do we really “see it in law school first”?Do we really “see it in law school first”?

Is there any value in learning to function in the Is there any value in learning to function in the hierarchies that are in place? If so, for whom?hierarchies that are in place? If so, for whom?

More generally:More generally:What do you think of these depictions of law What do you think of these depictions of law school? How does it relate to your experiences school? How does it relate to your experiences here at McGillhere at McGill

How does the transsystemic approach of How does the transsystemic approach of McGill impact our views on the ordering of McGill impact our views on the ordering of legal systems?legal systems?

Discussion Questions (1)Discussion Questions (1)

Discussion Questions (2)Discussion Questions (2)

Are the changes that students undergo during Are the changes that students undergo during law school caused only by law school? Do you law school caused only by law school? Do you think you would change if you went to school think you would change if you went to school modelled after one of the utopias?modelled after one of the utopias?

For the past 6 weeks, the For the past 6 weeks, the QuidQuid has discussed has discussed brutalization as pedagogy in law school. Do brutalization as pedagogy in law school. Do you agree that this is a brutalizing experience? you agree that this is a brutalizing experience? And if so, does it limit or counteract the effect And if so, does it limit or counteract the effect of the contents of your “knapsack”?of the contents of your “knapsack”?

Is law school here to make you happy?Is law school here to make you happy?

regard critique sur la formation en droit llewellyn, fuller et kennedy animateurs: jennifer...

Documents

legal education utopia

faculty of law

law students

legal education llewellyn

mcgill slide

natural law

hay law

law itse