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dreams
January 2009 
Indoctrinating Hierarchy
L'el
[Pedagogy and] grading as practiced teaches the inevitability and also the justice
of hierarchy, a hierarchy that is at once false and unnecessary.
It is unnecessary because it is largely irrelevant to what students will do as
lawyers. Most of the process of differentiating students into bad, better and good
could simply be dispensed with without the slightest detriment to the quality of
legal services. It is false, first, because insomuch as it does involve the measuring
of the real and useful skills of potential lawyers, the differences between students
could be “leveled up” at minimal cost, whereas the actual practice of legal
education systematically accentuates differences in real capacities. If law schools
invested some of the time and money they now put into Socratic classes in
developing systematic skills training, and committed themselves to giving
constant, detailed feedback on student progress in learning those skills, they could
graduate the vast majority of all the law students in the country at the level of
technical proficiency now achieved by a small minority in each institution.
Law schools convey their factual message to each student about his or
her place in the ranking of students along with the implicit corollary that
place is individually earned, and therefore deserved. The system tells you that you
learned as much as you were capable of learning, and that if you feel incompetent
or that you could have become better at what you do, it is your own fault.
Opposition is sour grapes. Students internalize this message about themselves and
about the world, and so prepare themselves for all the hierarchies to follow.
practice skills. Students who have no practice skills tend to exaggerate how
difficult it is to acquire them. There is a distinct lawyers’ mystique of the
irrelevance of the “theoretical” material learned in school, and of the crucial
importance of abilities that cannot be known or developed until one is out in the
“real world” and “in the trenches”. Students have little alternative to getting
training in this dimension of things after law school. It therefore seems hopelessly
impractical to think about setting up your own law firm, and only a little less
impractical to go to a small or political or unconventional firm rather than to one
of those that offer the standard package of postgraduate education. Law schools
are wholly responsible for this situation, They could quite easily revamp their
curricula so that any student who wanted it would have a meaningful choice
between independence and servility.
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