Regard critique sur la formation en droit

1. 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

2. 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?

3. “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.

4. “Battle of the Study Groups”:A Legal Education Utopia for McGill INSTRUCTIONS: • Move into the group corresponding to your number: • The Lefty Agitators • Posner + Scalia = Love • The Pragmatics • 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.

5. 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

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

7. Values andNon-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...

8. 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 world • Take a few minutes and think about it

9. 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: • Social order and the law • Legal education • Law students

10. 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 legalprecedent); Ontario racist-contract 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)

11. 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

12. 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.

13. “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 systemdoes as opposed to what the law says or ought to say

14. 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.

15. 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.

16. 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”

17. 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.

18. 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.

19. Lon Fuller • 1902-1978 • Stanford law & undergraduate • Prof at Harvard for 30+ years • Legal pluralist • Pragmatist orientation • Focus on law and morality

20. 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’

21. 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

22. 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

23. 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

24. What Llewellyn thinks I should do What Kennedy thinks I should do What Fuller thinks I should do What I actually do What my parents think I should do What I think I should do

25. Why should lawyers be in a privileged position of power to shape social ordering? If they should, what responsibilities does that entail?

26. Duncan Kennedy . Duncan Kennedy . Duncan Kennedy . 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 • 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

27. 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

28. “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.

29. 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

30. 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

31. 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

32. 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

33. 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

34. 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.”

35. 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.”

36. Kennedy:The Law School Experience (7) • Overall result: “Double surrender” • ... “to a passivizing classroom experience and to a passiveattitude 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

37. 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

38. 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

39. Kennedy: Law Students (3) • IN OTHER WORDS, like... Wide-eyed innocents being led like lambs to the slaughter

40. 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?

41. 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?

42. Comparison:Critical Approaches,Critical Conclusions

43. 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?

44. 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?