More than twenty-five years ago a furious little academic kerfuffle broke out when Paul Carrington, who at the time was dean of the Duke law school, suggested in the pages of the Journal of Legal Education that certain law professors had "a substantial ethical problem as teachers of professional law students." That ethical dilemma arose, in Carrington's view, because these professors were "nihilists," who supposedly disbelieved in even the possibility of principled legal decision making, because they thought "law is a mere deception by which the powerful weaken the resistance of the powerless."
People who hold such beliefs, Carrington argued, cannot inculcate the faith that law is something above and beyond mere politics by other means -- a faith which, according to Carrington, law students need to acquire in order to be competent and ethical attorneys. "When the university accepted a duty to train professionals," Carrington asserted, "it also accepted a duty to constrain teaching that knowingly dispirits students or disables them from doing the work for which they are trained." If we accept that premise, he said, then it follows that "the legal nihilist who must profess that principle does not matter has an ethical duty to depart the law school, perhaps to seek a place elsewhere in the academy."
Carrington's essay made clear that he believed those law faculty who had lost faith in the law were thereby disqualified from teaching in law schools. Another way of phrasing Carrington's point, perhaps, is that while there was room for atheists in departments of religion, they should be excluded from seminaries. The social function of law schools, on this view, is to produce priests of the law, who need to have a certain sort of faith in the law in order to do the job they're being trained to do. People who don't have this faith, therefore, lack a crucial qualification for maintaining teaching positions in law schools (although not in other university departments, where people can study law without the professional burden of having to produce cadres of true believers).
This essay naturally evoked howls of outrage that Carrington was attacking academic freedom, because he was in effect claiming there was no place for critical legal studies in the legal academy. (Apparently the proximate cause of Carrington's essay was his outrage over Roberto Unger's provocative remark in the pages of the Harvard Law Review that, when the Crits had gotten to Harvard Law School, they had found the faculty full of "priests who had lost their faith and kept their jobs.")
Carrington's suggestion -- that there might be a fundamental contradiction, as it were, between the professionalization function of the law school and academic freedom -- was extremely unpleasant to contemplate, so soon after it was agreed never to speak of it again. CLS was defanged and domesticated (it was discovered to be a less polite version of legal realism and of course we are all realists now), the potential ethical quandary Carrington raised was tactfully forgotten, and everyone lived happily ever afterwards.
Which is too bad, because the issues Carrington raised were valid ones. It is in fact quite plausible that there's a deep contradiction between the law school's self-appointed professionalization mission and broader academic values. If some types of academic inquiry undermine the training of lawyers, then law schools have to choose between academic values and the demands of professionalization. Now what I would suggest is that law schools as they are currently constituted do in fact undermine law students' faith in the law, although not in the way Carrington feared.
Carrington was afraid that certain lines of critical inquiry would lead to what he labeled "nihilism" -- that is, to the belief that law was nothing but a mystified version of power politics, and that this belief would corrode or destroy the ability of those exposed to it to engage in ethical practice. This fear turned out to be seriously overblown. An hour spent in the typical law school classroom or reading the pages of almost any law review should calm anxieties that we have dangerous amounts of potentially subversive critical thought inside law schools today (at least on one side of the podium anyway).
What we have instead are dangerous amounts of boredom and cynicism, topped off with unhealthy doses of depression and despair. Here's a question: How many law graduates, especially recent law graduates, have a more positive view of law and the legal system than they did before they entered law school? I think it's fair to say that almost literally no one ever has this experience. If, as Carrington suggests, it's the law school's primary job to nurture rather than corrode faith in law and the legal system, then the law school is failing spectacularly.
Why does the law school fail? That is the question this blog has tried to explore. Consider what law students actually learn in law school. They learn that, at the level of appellate court decision making, legal doctrine is so manipulable that the law is formally indeterminate -- which is to say the extant legal rules can't decide the typical appellate case without the decision makers resorting to circular argument, axiomatic reasoning based on propositions that aren't actually axiomatic, the selective invocation of contradictory canons of interpretation, and so forth.
They learn that what passes for "policy analysis" in judicial opinions is almost always little more than amateurish speculation that wouldn't withstand ten seconds of serious criticism from actual experts regarding the policies in question.
They learn that it's quite possible for law professors to spend years discussing appellate court opinions without mentioning or perhaps even noticing either the indeterminacy of doctrinal reasoming or the emptiness of most judicial policy analysis.
They learn that their grades are usually based on a single "issue spotting" examination that bears only a very loose relationship to anything they may have learned in class.
They learn that how hard they study bears only a very loose relationship to what grades they receive on those mysterious tests.
They learn that lightly disguised toadying to higher authority is rewarded, and that criticism of such authority is strongly discouraged, unless it happens to be a higher authority that the evaluator dislikes.
They learn that most of their teachers know little or nothing about the practice of law.
They learn that as a consequence they are learning almost nothing about the practice of law.
They learn that most lawyers who have jobs as lawyers hate their jobs.
They learn that despite being told almost everyone would get a job, there are no jobs.
They learn that in the United States of America it is possible to borrow enormous amounts of money without having any reasonable prospect of ever paying it back.
They learn that almost any other form of debt will be forgiven before the debt they've incurred will be forgiven, and that in America today it's possible to wake up one fine morning at the age of 25 and find yourself an indentured servant for the next 25 years.
These are hard lessons, and one thing these lessons aren't going to produce is a more robust and feverent faith in the legal system than those who learn them had before they underwent such enlightenment as the contemporary law school now provides. All of which is to say that the legitimation function of law school -- the task of producing lawyers who believe in the legal system -- isn't functioning too well right now.
Ultimately, despite Carrington's fears, it's just not true that lawyers need to have a deep and abiding faith in what they're doing in order to do it. Judging from the comments I've gotten, the only people these days in our legal system who seem to have a lot of faith in that system are law professors. And I get the distinct sense a lot of them are faking it as well -- that Unger's nearly three-decade-old wisecrack about priests who have lost their faith but kept their jobs may well now be more true now than ever before.