Now my sense is that until about 15 minutes ago the number of law professors who were talking about these issues in any sort of serious and sustained way could be counted on the fingers of one hand (Bill Henderson and Brian Tamanaha certainly were, while people like Douglas Berman and Gerald Magliocca have been engaged with the issue as well). Still, I certainly never intended to give the impression that I was the first person in the legal academy to raise these issues. (Indeed, as I've noted a couple of times, until about 18 months ago I was embarrassingly clueless about many of the most basic economic facts regarding law school budgets, student debt loads, and the employment situation for recent graduates, even at my own school).
Still the world-weary "there's nothing new here" response from some precincts of legal academia reminds me how J.S. Mill says somewhere that every successful idea elicits three reactions from the purveyors of the conventional wisdom: First, it is so clearly wrong that there's no point in refuting it. Then it's declared to be against religion. Finally, it is obviously true, banal, not worth repeating, and in fact everyone has been saying much the same thing for many years now (In the postmodern academy this entire process can sometimes take place in a matter of weeks).
In a crisis of the magnitude to which legal academia is suddenly awakening (one which, of course, law school graduates have been keenly aware of for years now, including well before the present recession, as many of the comments on this blog attest) there is a place for dispensing with intellectual circumlocution, and simply saying things in a straightforward fashion, even though toes will be stepped on and egos will be bruised. This blog could have said things like:
A careful analysis of the pragmatic value and intellectual cogency of much contemporary legal scholarship suggests that the institutional investments made for the sake of its production may not be fully warranted, given the problematic relationship between the cost and benefits of academic work produced under the circumstances in which the offerings found in the standard publication venues for that scholarship are generated, as well as the arguably suboptimal selection process that governs the editorial decisions which determine the ultimate content of those venues.This sentence -- which is admittedly a parody, but not a very gross one -- can be reduced to six words: "Most law review articles are worthless." The former sentence has the virtue of making readers sleepy before they get too insulted, which explains why you're likely to find something like it, or very much like it, in the typical critique of the contemporary law school.
Anyway, I noticed that this morning's post elicited a dust-up in the comments regarding the vitriol unleashed by one poster in particular against law school faculty and administrators. I was asked (by a law professor from the sound of it) to moderate the comments so as to not expose readers to that kind of thing. I've decided for the time being not to do so, because I think it's important for those of us who enjoy the various privileges of this very pleasant world in which we live to have at least a little exposure to some of the sensations of helpless rage and genuine despair that many of our students and former students must endure every day. In recent days, I've gotten emails from law students, recent graduates, practicing lawyers, and former lawyers, from all around the country, and all I can say is that I find it difficult to believe the person who asked me to censor the unruly commentator has even begun to understand what the young people who trusted their futures to us are dealing with.
Law in general and law school in particular is already too full of fake politeness, fear-induced groveling, craven appeasement of dubious authority figures, unappetizing obsessions with hierarchical status, and other forms of soul-crushing inauthenticity. Like minor aristocrats surrounded by court flatterers, we've lost sight of the deep anger -- and is it not a just anger? -- hidden behind the faces of those who, for the moment, feel they must still curry our favor.
The title of this post is an allusion to Orwell, and I'll end with a quote from his great essay on Charles Dickens:
The one thing that everyone who has read A Tale of Two Cities remembers is the Reign of Terror. The whole book is dominated by the guillotine — tumbrils thundering to and fro, bloody knives, heads bouncing into the basket, and sinister old women knitting as they watch. Actually these scenes only occupy a few chapters, but they are written with terrible intensity, and the rest of the book is rather slow going. But A Tale of Two Cities is not a companion volume to The Scarlet Pimpernel. Dickens sees clearly enough that the French Revolution was bound to happen and that many of the people who were executed deserved what they got. If, he says, you behave as the French aristocracy had behaved, vengeance will follow. He repeats this over and over again. We are constantly being reminded that while ‘my lord’ is lolling in bed, with four liveried footmen serving his chocolate and the peasants starving outside, somewhere in the forest a tree is growing which will presently be sawn into planks for the platform of the guillotine, etc., etc., etc. The inevitability of the Terror, given its causes, is insisted upon in the clearest terms:
It was too much the way... to talk of this terrible Revolution as if it were the only harvest ever known under the skies that had not been sown — as if nothing had ever been done, or omitted to be done, that had led to it — as if observers of the wretched millions in France, and of the misused and perverted resources that should have made them prosperous, had not seen it inevitably coming, years before, and had not in plain terms recorded what they saw.And again:
All the devouring and insatiate monsters imagined since imagination could record itself, are fused in the one realization, Guillotine. And yet there is not in France, with its rich variety of soil and climate, a blade, a leaf, a root, a spring, a peppercorn, which will grow to maturity under conditions more certain than those that have produced this horror. Crush humanity out of shape once more, under similar hammers, and it will twist itself into the same tortured forms.In other words, the French aristocracy had dug their own graves.