Legal academia and the problem of bad faith

The godfather of critical legal studies, Duncan Kennedy, once described the problem of bad faith in judging as the half-conscious denial of its ideological element:   "The ideological element is a kind of secret, like a family secret . . . that affects all the generations as something that is both known and denied." The cls project was (is?) an attempt -- one that seems to have been largely unsuccessful -- to get legal academics to acknowledge consciously that the possibility of politically neutral judging was an illusion. 

But bad faith -- the half-conscious rejection of something that is at the same time both known and not known -- is endemic to legal academia in another way: one that is crucial to the law school's legitimation of the legal system.  Legal academics are professors of law because they don't want to be lawyers. Of course this has always been true to greater and lesser extents, but it's now become true in a particularly stark and disturbing way.  This is an unusual position for people teaching at research universities to find themselves in. 
Most academics at research universities engage in two kinds of teaching: the general edification of undergraduates, and the professional training of graduate students who, in theory at least, are being prepared to replace their professors.  Law school professors aren’t doing either of these things. Instead, they’re preparing (sort of) people to do something they wouldn’t do if you paid them a whole lot more than what they’re getting paid now. The reasons for this stark disjunction between the professional identity of legal academics (which is structured around fleeing the practice of law) and their functional role (which at least in theory involves preparing people to spend the rest of their lives practicing law) are not very mysterious.

There's a mountain of evidence that the contemporary practice of law has become, for most attorneys, somewhere between very unpleasant and deeply excruciating.  As a commentator at Lawyers, Guns, and Money put it recently:

Academics tend to miss the sheer drudgery and asswork involved in being a lawyer; the only reason people do it is because they believed at one point they’d be millionaires. If you are reasonably likely to make as much money being a nurse, no one will go to law school. I don’t know why so many reformers think there’s a bunch of potential lawyers in Los Angeles waiting in the wings to get yelled at by judges for $60k a year – their entire career.

 Even the academics that practiced for a long time tended to have surprisingly, uh, delicate careers; I don’t think many of them were hired to handle appearances day after day. Being an attorney is pure ass, and the only reason people do it is the idea of riches. A lot of attorneys don’t get to riches, but if you’re 45, w/ 20 years in on your job, you don’t have a lot of choice.

Like most law professors today, I barely practiced law (The average time spent in practice by tenure-track law faculty these days is around three years, with the "practice" in question usually consisting of junior associate drone work at a mega-firm.  It's not much of an exaggeration to say that the sum total of what such people learned about the practice of law is that they wanted to escape it as soon as possible. And of course, as the commentator notes, these people had what are usually considered the "good" legal jobs).

Law school hiring committees are bombarded with resumes from partners at big firms who would love to be considered for a tenure track slot.  On the other hand, how often does a tenured law professor quit to join a law firm? About as often as federal judges do. Here's Richard Posner's amusing analysis of Chief Justice Roberts' claim that there's a crisis of under-compensation among federal judges (The original blog post link doesn't appear to work, so this quote is taken from Volokh's site):

The most serious omission in Chief Justice Roberts's report is the other compensation that judges receive besides their salaries. Most judges who want to can teach a course or a seminar at a law school and receive another $25,000 in pay ....The federal judicial pension is extremely generous--a judge can retire at age 65 with only 15 years of judicial service (or at 70 with 10 years), and receive his full salary for life.... The health benefits are also good. Above all, a judgeship confers very substantial nonpecuniary benefits. The job is less taxing than practicing law, more interesting (though this is partly a matter of taste), and highly prestigious. Judges exercise considerable power, not only over the litigants in the cases before them but also in shaping the law for the future, and power is a highly valued form of compensation for many people. Judges are public figures, even if only locally, to a degree that few even very successful lawyers are. And judges are not at the beck and call of impatient and demanding clients, as even the most successful lawyers are.

Law professors lack the power of federal judges, but some of them enjoy salaries that have now become twice as large as those of the federal judiciary,* and their other conditions of employment are even more pleasant than those which, as Posner points out in his relentlessly empirical way, ensure that federal judges almost never quit the bench to return to the practice of law.  (Note that almost all federal judges and tenured law professors apparently find the best -- in the sense of the highest-paying and most prestigious -- jobs in private practice less preferable than their current positions.  Let's not even discuss the jobs that the vast majority of attorneys actually do).

For most attorneys, law practice features mass quantities of two elements that in most jobs tend to exclude each other.  Boring jobs are usually not particularly stressful, and stressful jobs tend not to be boring, but the contemporary practice of law often somehow manages to combine large amounts of stress and boredom at the same time.  It's no wonder that lawyers seem to suffer from much higher than average rates of substance abuse, depression, suicide, and other symptoms of deep personal unhappiness.  (And these are the people who have jobs! As the old vaudeville punch line has it, second prize is two weeks in Philadelphia).

On top of all this, the subset of lawyers who appear by comparison to like their careers -- so-called "cause" lawyers doing public interest work -- are now competing for jobs that are for that very reason even harder to get than big firm associate positions, and which pay salaries that aren't close to sufficient to service $150,000 law school debt loads while also paying the rent and buying groceries.

Meanwhile, being a law professor is a cushier gig than ever before, even, or I should say especially, for legal academics who are "working hard."  After all, as an extremely distinguished professor at an elite law school put it to me a few days ago, "I think the idea of calling what I do a job, or work, is a misnomer. First of all because I love it. I am doing exactly what I would be doing if I were independently wealthy, except for grading papers and faculty meetings." Precisely. How many practicing lawyers could say anything even remotely similar about their jobs? 

Law professors are getting paid (and very well) to send people off to do jobs that they themselves wouldn't exchange for their present jobs for almost any amount of money.  Except of course, increasingly, their students are suffering a much worse fate -- massive debt, no job, and a resume tainted by a JD degree that, to many non-legal employers, might as well be a volunteer summer internship with Al Qaeda.  The legitimation function of legal education requires orthodox legal educators to celebrate the practice of law as a noble enterprise -- yet it is an enterprise that law professors, on the whole, want nothing to do with, especially in any of the forms in which it will be experienced (endured) by the vast majority of their students. 

That is a recipe for another version of the bad faith -- the half-conscious denial of a truth too painful to confront -- that Kennedy places at the heart of the legal system.


*Elsewhere Posner notes that for many years the salaries of senior Harvard Law faculty were designed to mirror those of federal judges. Needless to say those days are long gone.

Cross-posted at LGM.