Legal Education and the Reproduction of Hierarchy: A Polemic Against the System, by Duncan Kennedy

Duncan Kennedy is an anarchist, which is why it's so surprising to find out where he works: Harvard Law. In 1980, still a relatively green professor, he self-produced one of the most burning critiques of law school and its role in an unjust society ever written. It received an incredible amount of attention once it was put out; it's probably unique in the fact that such a self-published, xeroxed polemic was the subject of several law review articles.

Although it's pushing 30 years, the content is still incredibly informative, and, I can personally attest, is still remarkably accurate in its description of life and struggle in law school. This is a must-read for anyone interested in transforming higher ed, and an ABSOLUTE must-read for any lefty thinking about entering law school.

Unfortunately the book isn't available online (though I've been told that it's been OCR'd and is floating around someplace), and since its reprinting, NYU Press owns the rights to it. However, I was able to get my hands on a copy long enough to transcribe one of the neatest sections of the book. At the end, Kennedy wraps it all up with what he calls his "Utopian Proposal":

From Legal Education and the Reproduction of Hierarchy: A Polemic Against the System:


A final aspect of study group practice is utopian thinking. By this I mean not the attempt to discover an ideal form of social arrangement which would put an end to historical struggle and uncertainty, but a practice of formulating demands so as to reveal the hidden ideological presuppositions of institutional life. An effective utopian proposal honors all the "practical" constraints that center-liberal administrators appeal to when asked to explain the way their institutions work, so that it cant be dismissed as flatly impossible, or beyond the capacities of those who would have to carry it out.

At the same time, an effective utopian proposal has no chance at all of being adopted (at least in the near future) because it violates the unspoken conservative norms that guide administration in fact, if not in name. It should represent small scale and middle term, rather than "final" programmatic thinking, based on a rough assumption that the world outside the institution in question remains unchanged, and subject to revision in every detail as the process of left study and action clarifies our thinking about how we might actually change things if we had some measure of power. This kind of work has value in the rhetorical battle against those who alternately portray the left as hopelessly visionary and as practically unoriginal. But its deeper importance is as an aspect of the life of the group. People ought to quarrel and then try tentatively for closure about what to do about whether a given proposal would make things better or make them even worse. It helps in figuring out what's really wrong with the way things are, even if there is little chance of carrying out any radical change in the short run. 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. But it is never too early to start building a much sharper consensus about what we would do if we could.

What follows is an example of this kind of thinking: a summary of a proposal to the Harvard curriculum committee written in 1980. It is addressed to an elite private law school, and doesn't confront the overall organization of legal education. (For example, it doesn't take up the idea of random assignment of teachers and equalization of financial resources as a way to abolish the hierarchy of schools.) But even with these allowances, it already seems to me dated and inadequate, mainly because it doesn't pay enough explicit attention to the modelling of hierarchy through teacher-student and studentstudent relationships. I offer it not as a blueprint, but as a contribution to a dialogue that is already under way, and that will gain depth and sharpness with the growth of our power.

UTOPIAN PROPOSAL

A. The New Model Curriculum
A required program to be taken in a prescribed sequence over two years and one summer, covering all basic doctrinal areas and skills, clinical experience and interdisciplinary study, followed by a diversified third year.

  1. The Rules/Skills Course: An aggregate of three semesters of programmed instruction in doctrine, including learning rule systems and learning the skills of case manipulation, rule manipulation and pro/con policy argument, conveyed through "cases and materials," computer learning machine exercises, facilitation classes run by faculty members, video-taped lecture series, and tutorial.
  2. The Clinical Program: A required sequence of clinical experiences, spaced over the two years, and aggregating one semester and one two-month summer stint, covering most practical and ethical aspects of law practice, using simulations, extensive legal writing, small scale experience in hearing-type settings, and two months in the school's large Legal Clinic modelled after a university teaching hospital.
  3. The Legal Decision Course: A required course running parallel to the rules/skills course, meeting three or four hours a week, covering materials in history, jurisprudence, economics, sociology of law and the legal profession, social psychology, social theory and political philosophy, closely integrated with both doctrinal and clinical study, and taught so that each student is exposed to two formally distinguished "streams," one representing the left and the other the right political tendencies in approaching the materials.
  4. The Third Year: A third year resembling what we have now, with no formal requirements and great faculty flexibility in deciding what to teach, but with the addition of three options, each of which could take up some or all of a student's time: a Research Institute, advanced work in the Clinic, and concentration in one or more practice specialties or conceptually defined fields of study.

B. The Law School as a Counterhegemonic Enclave
This is a set of proposals designed to reduce illegitimate hierarchy and alienation within the school, and to reduce or reverse the school's role in promoting illegitimate hierarchy and alienation in the bar and the country at large.

  1. Admissions: There should be a test designed to establish minimal skills for legal practice and then a lottery for admission to the school; there should be quotas within the lottery for women, minorities and working class students. There should be a national publicity campaign about our goal of modifying the social composition of the bar.
  2. Hierarchy among Students: A program designed to reduce disparities in educational attainment of students while at law school, through a combination of redesign of the curriculum (see the NMC above) and investment of large sums of money and resources in students at the bottom of the academic hierarchy. Abolition of current law review selection system; modification of the grading system to eliminate perverse incentives; new forms of feedback at all levels.
  3. Channeling of Students: A program to give students accurate information about hierarchical and moral realities of different kinds of practice, combined with training designed to give them technical, social and psychological resources necessary for real freedom of choice between large law firms and other kinds of work. Overhaul of the placement system to equalize the chances of competitors of large firms, even at the price of making our graduates less attractive to the large firms. Studies aimed to discover possibilities for viable publicly oriented and small scale practice, including development of proposals for curricular or statutory reform where necessary.
  4. Faculty hierarchy: Hire most qualified women, minority and working class candidates until those groups occupy a reasonable number of faculty positions. Abolish the distinction between tenured and untenured faculty--all tenured or none tenured. Democratize hiring through an elected appointments committee with representation of all groups in the school. Develop a program to reduce existing disparities in teaching and scholarly capacity of different faculty members, analogous to the attack on disparities among students.
  5. General School Hierarchy: Equalize all salaries in the school (including secretaries and janitors), regardless of educational qualifications, "difficulty" of job, or "social contribution." Encourage (without violating the NLRA) the formation of unions of employees at all hierarchical levels. Faculty should push for: (a) everyone should have some version of the faculty's unscheduled work experence, or the faculty should have less of that experience; (b) the division of labor should be reduced by adding functions within existing job classifications and reducing the total number of kinds of jobs; (c) every person should spend one month per year performing a job in a different part of the hierarchy from his or her normal job, and over a period of years everyone should be trained to do some jobs at each hierarchical level.