Law Schools Are Bad for Democracy

Yale Law School, where I teach, was roiled by the confirmation process of Brett Kavanaugh. The usual disagreements about the politics of the day that are healthy in any community were exacerbated by a sense that this was not just one more confirmation fight but an epic battle over the future of the country. Students, in particular, denounced the school for its complicity with elite power and the nonchalance of its commitment to institutional and national justice. And when the accelerant of personal-misconduct charges was thrown into the blaze, the school began a period of self-examination.

This dispute raised a lurking question: What is law school for? How does it serve the individual aspirations of some of our most gifted young people, and the high ideals for social justice that many of them care about? "Elite institutions get so satisfied," my colleague Harold Hongju Koh observed in The New York Times, in the midst of the controversy. "Who are we? What do we stand for? Are we being true to our values? It’s a constant struggle for defining the identity of the institution as times change."

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Some might be forgiven for thinking that there is an obvious answer to the question of what law schools, even elite ones, are for. Their purpose is to make lawyers, especially practicing lawyers. And for faculty members lucky enough to teach at such schools, they are not just for schooling but also for scholarship.

Such easy answers do get at the core of what law schools are supposed to be about and therefore how they ought to be organized. But they also miss a lot. Many students believe that they are doing something more than enrolling in a trade school to solve other people’s legal problems for (often tremendous) pay. Students are also hoping to advance or even incarnate certain ideals of political and social justice — ideals that professors, too, often talk about. The Kavanaugh crisis exposed a longstanding worry that law schools, and especially elite law schools, are failing to advance those ideals. Law schools allow you to do well. But it is harder to establish that they allow for doing good.

The question is not new. It has been a half-century since Duncan Kennedy, then a Yale law student and later a long-serving Harvard Law School professor (recently retired), accused law schools of functioning mainly to reproduce social hierarchy. No one has satisfactorily faced his challenge. Doubts still swirl around elite institutions and within the souls of many of their denizens. And with democracy in open crisis, now seems as good a time as any to ask again what law schools are for, to answer as realistically as possible, and to work to change what they can offer to their society, their world, and their own students.

Power players and grizzled veterans often do not understand how profoundly newcomers or outsiders to elite law schools — I count myself a little of both, but I mean first-year students — are prone to worry about why they are there. Students engage in constant self-questioning: Can I reconcile my politics with my self-interest? Am I really devoting myself to a career that will lead to systemic change, or to one that will reproduce hierarchy instead? The ethical struggles of elite law students might seem the pinnacle of first-world problems, but they are real nonetheless.

And while the question of whom law school really serves can haunt individual consciences, it drives rationalization at the institutional level, too. Every year, law schools produce glossy booklets and press releases advertising their social virtue. Nowhere is this image management more troubling than when it mystifies the real function of law schools in reorienting the hopes and even reshaping the personalities of the young people who enter them. Having entertained inchoate dreams about social transformation, the students themselves are transformed the most, especially when they accept a set of beliefs about how the world is likeliest to change — through a politics of marginal legal reform by insiders to the system. That is, if the world can change at all.

Data show that large numbers of students entering law school say that they hope to work in the public interest, but then end up working for large firms instead — though debate rages about when precisely they defect and why. Debt burden is one explanation, but informal expectation and institutional pressures are probably more to blame. And the realities of this "public-interest drift" fit very poorly with the self-advertised rationales about how legal training in its current form serves social justice.

To take one example among many, consider the clinical revolution that has transformed American law schools. Today, unlike just a few decades ago, almost no students are interested in high theory as a mode of (or a rationalization for) elite training. Instead, they sign up in droves for clinics that provide access to social-justice practice. The schools call it "experiential learning." Students might try to get people out of jail or bring a case to an international human-rights court.

Rarely asked, however, is whether the clinical revolution is actually about changing the world. For individuals, it might help provide an alibi for the grubby scramble for advantage. If your social-justice work harmonizes so easily with elite credentialing for power and wealth, is it good for society? Or even for you? One can question the institution’s rationalizations, too. Clinical activism can serve to launder and legitimate injustice. Before it was censured by its community for celebrating the nomination of its alumnus, Yale Law School praised itself for the work of its clinics in litigating the travel ban, even though Kavanaugh got his seat on a court that ratified President Trump’s policy. On balance, what was gained? Students got a stint fighting evil, and the school got a press release, but it is not obvious that much self-congratulation is in order.

The creditable desire among students for hands-on experience in law schools typically reinforces a familiar but troubling image of how lawyers can make change: by convincing judges to do the right thing. At elite law schools like Yale, the Kavanaugh nomination served as a flash point because the judiciary is still so central to the implied politics of legal education, which depend on a belief that change happens when lawyers convince judges to make it happen. Events have now put this belief to its harshest test in a century.

Law school allows for doing well. But does it allow for doing good?

It is not just that, from the first day of law school, students are taught to think about the law from the perspective of the judiciary (rather than the legislature or the people), by reading cases and pondering whether judges decided them correctly. It is not just that, habituated to compete with one another and in doubt about what to do with their legal training, students quickly prioritize clerking for the higher judiciary after law school as the sweetest plum, or at least the most tangible prize. It is not just that, in their increasingly routine clinical self-assignments, students are taught that systemic reform comes, if at all, through seeking friendly judges who will not merely reproduce injustice in an otherwise hostile environment. It is not just that judges visiting campus are treated like the princes of law’s empire (as the philosopher Ronald Dworkin adoringly called them), with obsequies paid and red carpets rolled out whether they are good or bad.

Rather, now more than ever, the fear is that none of these conventions of law-school life are justifiable given the increasingly obvious fact that a judicially oriented politics makes little difference, except to the right. Earl Warren’s Supreme Court is a distant memory, and it is not even clear how much change it made in the first place. With Anthony Kennedy’s departure, the days are gone when one justice on the Supreme Court might switch sides on occasion and allow for the preservation of whatever gains a judicialized progressivism once allowed.

With an increasingly Trumpified federal judiciary, it is harder to believe that there will be many silver linings in lower courts’ rulings. Even as strategic legal activism explodes among conservatives, it becomes more and more difficult for others to pretend that the system produces enough liberal results to justify learning to eke them out.

To respond to this disheartening situation, law schools will need to consider how to reset their missions for those students no longer able to suspend disbelief about how their ideals and their training fit together.

The point is not to reorient law schools entirely. Their primary task will always be the production of lawyers for the bar — a core commitment with which other agendas will necessarily fit uncomfortably. Law schools will never be staging grounds for fundamental social change when they are organized to advise private dispute resolution and administer extant forms of public justice.

And a certain amount of hypocrisy and rationalization is the essence of most people’s ethical lives in all times and places, especially when those people are at the top of unjustifiable hierarchies. "The important thing," a moralist once remarked, "is not to be cured, but to live with one’s ailments." Ethically pure law schools are not an option. An age in which American elites have remedied some exclusions while leaving many others intact or even more entrenched, and in which "meritocracy" is a rationalization for unprecedented elite ascendancy, is one we have to inhabit indefinitely. Sure, it is hypocritical when Yale Law students, each and every one of whom chose to enroll because the institution is at the top of the rankings, indict the school’s proximity to power and prestige. But nobody is above hypocrisy.

Judges visiting campus are treated like the princes of law's empire, with obsequies paid and red carpets rolled out.

Yet to observe that there are constraints on the reimagination of law schools is not to deny any possibility for change. There are two especially imperative fixes, one focused inward and the other outward.

The first involves how law schools prove to their newest entrants that the institutions really are the pluralistic spaces they nervously claim to be, rather than factories for mass conversion of pliant subjects into large-firm lawyers. In particular, if law schools and law students were more open about their elitist compromises, there could be more discussion of how all of their members manage their consciences. And schools simply need to find better ways to send annual waves of trained lawyers into legal practice — including large-law firm practice, where many students understandably seek the highest salaries — while counteracting the undertow that often sweeps the less willing or the uncertain toward the same outcome.

And for the sake of our national life, law schools must take up the duty of inculcating in their students and in the public a critical attitude toward the operations of "the rule of law" in general — including a critical attitude toward the routine exaltation of the judiciary.

In the first year, law-school curricula still revolve around the mystique of common-law judging, and the priority of private law subjects such as contracts, property, and torts. When institutions do require a public-law course beyond civil procedure in the first year — as Yale does with constitutional law — such courses often amount to little more than an analysis of judges and their capacity to damn and save the American polity. It’s no wonder that so many students, having entered with unclear plans, begin at the end of the first year to dream of clerking for a judge when they graduate, and not only because it will afford them such rich dividends on the large firm market. (Nowadays, firms will pay you a $400,000 bonus if you join them directly from a Supreme Court clerkship.)

As dusk turns to night for progressive activism in the courts, law schools need to pivot away from judicially oriented activism to make room for a new kind of engagement with the public. What is lacking in public discussions about law school is attention to what it means for legal elites to serve the democratic conversation about how the people rules itself. Rather than burnishing the credentials of law and its royal judicial stewards, we should insist on the centrality of the people in a democratic legal order. If elite students are forced into a dilemma about how to preserve their sense of justice even as they embrace extraordinary privilege, it is, first and foremost, because society allows law schools to endlessly reproduce elite ascendancy. But the institutions themselves can force some change from within, in part by explaining to the people how the law rules them.

Rather than romanticizing it as a source of hope, law schools ought to be committed to figuring out why so many of our fellow citizens are disgusted by what "the rule of law" is providing them. Instead of suffusing the legal system with legitimacy, in short, law schools must help demystify it so that the law’s disservice to the interests of ordinary people is clearer to them. Eventually, law schools should produce advisers for citizens who are committed to challenging current forms of elite power. They might become idea factories for legislative reform if and when those citizens win. It is a lesson in humility for lawyers themselves, but the truth is that the law forges dependable tools for social improvement only when democracy takes the lead rather than being treated as a wayward force that legal elites must help contain for the sake of order and sanity.

"The serious law student," one of my own teachers, the Harvard Law professor Roberto Unger, wrote two generations ago, "does not want merely to have a job." She hopes, instead, to "find a realistic version of … transformative commitment." As Unger worried, however, this fateful choice to hedge your bets typically reveals itself as both a self-fulfilling prophecy and a raw deal you cannot refuse. "With each move forward," he explained, "the opportunities for deviation seem narrower and the risks greater. In exchange for the equation of realism with surrender, the social order promises an endless series of rewards." With your dream of changing the world dismissed as a juvenile distraction, you resolve to enjoy your life on top.

What if the truth of law schools is that their main social function, aside from producing the next round of elites, is that they buy off those who initially doubt that perpetuating elites is what law schools ought to be doing? If law schools faced this haunting question more routinely, they might resolve to demystify the law as a first step to reinvigorating democratic life. This would matter not just for the ethical conundrums of a handful of elites, but also to the country and the world.

Samuel Moyn is a professor of law and of history at Yale University.