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Regard critique sur la formation en droit

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Regard critique sur la formation en droit
Regard critique sur la
formation en droit
Llewellyn, Fuller et Kennedy
Animateurs: Jennifer Anderson, Egbert de Groot, Kate Goddard
Fondements 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?
“Battle of the Study Groups”:
A Legal Education Utopia for McGill
What happens when diverse utopian perspectives collide?
PREMISE:
McGill has four Kennedy-style “study groups”
dedicated to shaking up the status quo in the Faculty
of Law.
They will each submit a utopia to Faculty Council in
the hopes of advancing their values and vision.
“Battle of the Study Groups”:
A Legal Education Utopia for McGill
INSTRUCTIONS:
Move into the group corresponding to your number:
1. The Lefty Agitators
2. Posner + Scalia = Love
3. The Pragmatics
4. The Faculty
Using the group “profiles” provided as a starting point, develop a
FIVE-POINT UTOPIA that reflects your group’s values and
priorities.
You have 10 mins to develop your 5 points and write them on the
board. Each group will then have 2 minutes to present them to the
class.
“Battle of the Study Groups”:
A Legal Education Utopia for McGill
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
“Battle of the Study Groups”:
A Legal Education Utopia for McGill
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.
Values and
Non-Neutral Thinking :
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 others
By ourselves
And others we may never stop to consider...
Values and
Non-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 world
Take a few minutes and think about it
Critical Perspectives
on 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 Readings
Throughout our presentation, consider the earlier readings on these themes, e.g.:
Social Order and the Law:
Hay (law as ideology in creation of power structures); Kafka (law as mythical domain
of the powerful); Kronman (continuity through legal precedent); Ontario racistcontract cases / South African judiciary debate (law as a tool to preserve status
quo vs. to achieve progress); the Hart/Fuller Debate (law in the unjust society);
Glenn, Geertz, Jutras, and others (law constituting and constitutive of its societal
context)
Legal Education:
Arthurs and Macdonald (critique of Canadian legal education); Jutras
(transsystemia as “bilingualism”); Kasirer (learning the other in order to better know
oneself); McKinnon (mainstreaming feminism in law school)
Students:
Blackett (mentoring underrepresented students); Van Praagh (holding onto one’s voice
in legal education); Plato’s Crito (the original “brutalized” student); Foucault
(learning to destabilize oneself – complicating that which is too easy)
Perspectives
Each of the three authors was reactionary and took positions
against the established/dominant discourse.
Llewellyn (1930): Realism vs. Formalism
(Conceptualism)
Fuller (1952): Natural Law vs. Positive Law / Realism
Kennedy (1982): Critical Legal Studies vs. several
millennia of Western thought
Karl Llewellyn:
The Bramble Bush
Initially published in 1930, the version we read is from 1950
and includes the foreword which is a rebuttal to criticism
Context: Prevailing Legal Formalism
“[Law as] a set of rule of external conduct, enforced by external
constraint, laid down by the state, addressed to the man on the
street”
Thirteen words which (unfairly?) characterized Llewellyn’s
view of the law:
“What these officials do about dispute, is to my mind, the law itself ”
Can be thought of as a system of people and how they solve
disputes, as opposed to a system of rules.
“What these officials do about dispute,
is to my mind, the law itself ”
Officials: judges, sheriffs, clerks, jailers, lawyers, etc…
Do: focus on the final outcome of a multitude of cases
Disputes: prevention as well as settlement
Why do disputes need to get settled?
“so there may be peace for the disputants; for other persons who’s
ears and toes disputants are disturbing” and
put the problem to rest by achieving a solution which (a) “is
bearable to the parties” and (b) “not disgusting to the lookers on”
Note focus on what the legal system does as opposed to what the
law says or ought to say
Llewellyn’s View of Law School
Learning rules is only the shell and not the substance.
Students should focus on learning and studying a multitude
of concrete instances for rules to mean anything.
Past behaviour of officials will indicate what they are going
to do in the future.
In many areas prediction is not certain. These are
opportunities for lawyers to make officials do what they want
them to do.
Llewellyn’s View of Law
Students
Students come to law school with “a pleasant haze” of what courts
do, what lawyers do, the relationship between the two, and what a
law school does.
The “sophisticated youth of the 20th century” harbour a cynical
outlook towards authority
Llewellyn subverts this barrier to hierarchy drawing attention to it
by using humour/ridicule to get students to pay attention
A law school turns the “vacuum in student’s heads” into (a) dispute
resolution prediction craftsmen and (b) manipulators of officials.
The first craft of law a man must learn is the craft of the law
student.
Criticism
If you take the 13 words as philosophy, it leads to:
Disbelief in rules, their existence and desirability
To approve and exult brute force and arbitrary power and
unfettered tyranny
To disbelieve in ideals, such as justice
Lawyers are only able to “get for his client what he can
actually get, and no more”
“Rights which cannot be realized are worse than useless;
they are traps of delay, expense and heartache”
Llewellyn's Rebuttal
Oversimplification of a “very partial statement” by the
“unhappy words.” The words were intended as a tool.
The law has an “inherent drive, patent or latent, throbbing or
faint-pulsed, impatient or sluggish but always present to
make the system, its detail and its officials more closely
realize an ideal of justice.”
The words fail to take proper account of the conscious
shaping of the law by the institution, and the unconscious
questing for the ideal by the machinery of law.
Know-your-audience
disregarded
Input:
empirical data (case law)
the facts of your case
Output:
forecast of behaviour of system
Assumptions:
past behaviour = future behaviour
facts fit within the empirical data
Careful:
if precedent setting case, change in
rules (procedures, statute) or people
(judges, lawyers, clerks, etc…)
model may breakdown.
Lon Fuller
•
1902-1978
•
Stanford law &
undergraduate
•
Prof at Harvard for
30+ years
•
Legal pluralist
•
Pragmatist
orientation
•
Focus on law and
morality
Fuller: Order and Social
Structure
Lawyer as ‘architect of social structure’.
Architect or engineer?
Debate with Hart (as seen in January)
What does a lawyer do?
Critique of realism
Law ‘as it is’ vs. law ‘as it should be’
Fuller’s critique of Realism
“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 Law
School
Rejected realist approach because
thought it turned lawyers into masters
of technique without regard to the
ends they serve.
Law is not a means to an end that
originates outside itself. “Eunomics”
Extremely functionalist view of law
school
Ex: drawing up a contract
Law as relationships
Simultaneous focus on means & ends
Problem is consistent: that of human
organization
Fuller on Law Students:
Study of eunomics (“good order”)
Assumption that students come in with liberal-arts
background and knowledge of morals.
Focus on how lawyers create or modify the structure –
not how the structure impacts them.
No criticism on the existence of an order/hierarchy
itself
What Llewellyn thinks I
should do
What Fuller thinks I
should do
What Kennedy thinks I
should do
What I actually do
What my parents think I
should do
What I think I should do
Why should lawyers be in a privileged
position of power to shape social
ordering? If they should, what
responsibilities does that entail?
Duncan Kennedy
.
Professor at Harvard since the early 1970s
Background:
Economics at Harvard
2 years working for CIA in 1960s in operation to control National Student
Association
Yale Law School – graduated 1970
Clerked at the Supreme Court
Career:
Started teaching at Harvard law in 1972 (immediately after clerkship) –
obtained tenure in 1976
Essentially no legal practice experience – never called to the bar
While a professor at Harvard, spent a year working as a paralegal
Duncan Kennedy
.
Critical Stance:
One of the main founders of Critical Legal Studies
Very influential “Crit”
Areas of focus include contract law and legal education
Practiced what he preached: Involved in internal law school reform at
Harvard and participated in “softening” of Socratic approach
“Legal Education and the
Reproduction of Hierarchy”
One of Kennedy’s best known works
Can be seen as direct inspiration for other writers who critiqued the legal
education process
E.g. “Making Docile Lawyers”; Manderson & Turner (2006) “Coffee
House: Habitus and Performance Among Law Students.”
Produced as a self-published “pamphlet”
‘I was influenced… by the ideology of the pamphlet itself, my own ideology
of the time, affirming the desirability and possibility of the “revolution of
civil society,” carried out without official media, “interstitially” rather
than from above or below the institutions where we work.’
The article we read is a shorter version published in the Journal of Legal
Education, 1982
In 20th anniversary reprint, he asserted that the force of the hierarchy he
describes in LEHR is even more rigid now.
Kennedy: Order & Hierarchy
Society is rigidly hierarchical and inequitable
Prevailing order is motivated by biased interests
Non-neutral forces that create hierarchy and power structures need to
be “trashed,” i.e. deconstructed
Rejection of viewpoints that characterize Llewellyn and Fuller 
recognize what/who is being privileged
“Law is an aspect of the social totality, not just the tail of the dog.”
People struggle for power through law, and since outcomes of struggle
are not preordained, there is no “inherent logic” to legal outcomes
The legal profession and practice of law both bolster and rely on this
hierarchical social order
The legal education experience acclimatizes students to the hierarchy
 trains them to perpetuate it
Kennedy:
The Law School Experience (1)
Harvard in the 1970s? Yale in the 1960s? Schools today?
More like high school than undergraduate experience
Loss of autonomy
Most professors are authoritarian, intimidating, largely homogeneous
Socratic method is humiliating and destabilizing
Student interaction is “pseudo-participation”
Creates “a classroom arrangement that suggests at once the patriarchal family
and a Kafka-like riddle state”
“Softer,” policy-oriented teachers not viewed as positively  deemed by
students to be lacking in “rigour”
Likewise, “peripheral” subjects (legal philosophy, history) treated as
unimportant – “finishing school” in social art of being a lawyer
Kennedy:
The Law School Experience (2)
Approach to teaching is purposely inadequate
Idea that legal reasoning is distinct from policy analysis is a sham 
students are bullied into overlooking obvious logical fallacies
Social problems presented as being too complicated for reform efforts
to work
“Cold” cases intended to bore students with rigid application of rules
“Hot” cases intended to invoke emotional response, only to show that
students do not have good intuition for the law
Skills teaching divorced from “substance”
Why?
Professors rely on ineptitude of their students for their own survival
Kennedy:
The Law School Experience (3)
Grading teaches hierarchy
Focused on relative ranking – each student is assigned a “place”
“Students generally experience these grades as almost totally arbitrary –
unrelated to how much you worked, how much you liked the subject, how
much you thought you understood going into the exam, and what you
thought about the class and the teacher.”
This ranking determines which articling positions are available to
each student – firms are ranked too
Yet irrelevant to being a lawyer
Kennedy:
The Law School Experience (4)
Career trajectories function as self-fulfilling prophesies
Professors provide cues about the merits of different career paths
The “family medicine” of law?
Training is focused on the needs/expectations of the careers most
graduates have gone into in the past  incapacitates students from
moving in other directions
“Alternative” career paths are risky
Result: Because skills teaching is so poor, students have no choice but to
obtain further training at a firm... and feel grateful that someone will
take them in and help them
Kennedy:
The Law School Experience (5)
Interpersonal relationships serve as a model for professional hierarchy
Model for...
Law firms: Professors are visibly preoccupied with their school’s status
and ranking
Associates at a firm:
Professors compete with each other for tenure
Students approach each other with “surface norm of
noncompetitiveness and cooperation” concealing distrust
Students who are minorities in the school (female, black, lower SES)
experience indirect pressure to conform
 to become as white, male, and upper-middle-class as possible
“On one level, all of this is just high school replayed; on another, it’s
about how to make partner.”
Kennedy:
The Law School Experience (6)
Interpersonal relationships serve as a model for professional hierarchy
(cont’d)
Model for...
Junior associate / senior associate relationship: Student to professor
relationship characterized by deference, thick skin, and ego-stroking
Lawyer / assistant relationship: Students watch professors treat their
assistants with petulance, condescension, perfectionism, and sometimes
harassment
“[H]umane relations in the workplace are a matter of the superior’s grace
rather than of human need and social justice.”
Kennedy:
The Law School Experience (7)
Overall result: “Double surrender”
... “to a passivizing classroom experience and to a passive attitude toward the
content of the legal system”
Students fall into grooves that they wear down even deeper, by reaffirming
the system and seeking to reproduce it for those who come after them.
“Training for subservience is training for domination as well. Nothing could be
more natural and, if you’ve served your time, more fair, that that you as a group
should do as you have been done to, for better and for worse. But it doesn’t have to
be that way, and remember, you saw it first in law school.”
Professors must take responsibility for the perpetuation of the hierarchy
Kennedy: Law Students (1)
Kennedy’s focus is on left-wing students of various descriptions
Ultimate goal: to organize into a “left wing bourgeoisie intelligentsia”
that can one day lead popular movements to radically transform society
On one hand, he recognizes the diversity of the student body:
Ethnicity/race, gender, socio-economic status
Politics
Idealistic adherents of rights discourse who believe law is a
progressive force for social change
Anti-establishment radicals who distrust the law as a weapon of the
powerful, but believe that it can be co-opted to be used against them
Secret “conflicting” motivations
Social mobility
Character building
Kennedy: Law Students (2)
BUT:
In other key respects, Kennedy’s students are undifferentiated,
homogeneous
They are all...
Unsophisticated in their politics and understanding of the world
Unable to counteract the destabilizing or alienating experiences in
which they are placed
Unaware of what they should be questioning in their experience
Lacking in agency to break new ground, make their own decisions
Passively internalizing the messages they receive
Helpless in the face of the forces of hegemony with which they are
confronted
Kennedy: Law Students (3)
IN OTHER WORDS, like...
Wide-eyed innocents being led like lambs to the slaughter
Kennedy: Critiquing the “Crit”
Is this legitimate?
Is this how 22-year-olds with university degrees are typically
described?
Is this you? Do you think it was your parents at that age?
Assuming it is legitimate, what does it say about Kennedy’s
own goal of moulding these students into a left-wing force
for social rebellion?
Is this less manipulative or hegemonic from his position
as professor?
Synthesis
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?
Comparison:
Critical Approaches,
Critical Conclusions
Discussion Questions (1)
Kennedy focuses on law school as the root of
hierarchical learning, but is that realistic?
Do we really “see it in law school first”?
Is there any value in learning to function in the hierarchies
that are in place? If so, for whom?
More generally:
What do you think of these depictions of law school? How
does it relate to your experiences here at McGill
How does the transsystemic approach of McGill
impact our views on the ordering of legal systems?
Discussion Questions (2)
Are the changes that students undergo during law
school caused only by law school? Do you think you
would change if you went to school modelled after one
of the utopias?
For the past 6 weeks, the Quid has discussed
brutalization as pedagogy in law school. Do you agree
that this is a brutalizing experience? And if so, does it
limit or counteract the effect of the contents of your
“knapsack”?
Is law school here to make you happy?
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