Week 8: Kennedy, Schulhofer, Seron etc. -- Lawyers!

"Legal Education and the Reproduction of Hierarchy" - Duncan Kennedy

This was easily the most interesting of my three articles. The article gives what is essentially an overview of the law school system of education and how crappy it is. Kennedy outlines the ways that law school education reinforces and reproduces preexisting hierarchies. He then provides a few solutions for how to fix the system.

I quite enjoyed this piece. Kennedy is unapologetic in his reaming of the entire system of law school education. I have never had any real desire to be a lawyer (and this article makes me even more leery of the whole system), but I had certain presuppositions about the reality of law school. It's seen as this great, WASPish establishment. When you hear someone has been to Harvard, you automatically respect them more. Law school is something that is practically unattainable and amazing (reminds anyone of the idea of Before the Law, of law as distant and awe-inspiring?).

So I was surprised to hear that, as Kennedy puts it, law school is more like high school than college. What really struck me was that law school has what he refers to as a trade school mentality. The whole article reminded me of "The Banking School of Education" (I can't remember who wrote it right now...) and how students in school are seen as receptacles to be filled with information. This is why in grade school you do a lot of memorizing and learn a lot of meaningless stuff that is presented to us without context. In the same way, law students are placed into a strict hierarchical framework, are taught not to really think critically about the reality of law, and have law presented to them without any sort of context.

However, I'm not sure how I feel about the end of Kennedy's article, in which he basically says "get your pitchforks, guys!" He talks about essentially overhauling the law school system, which I think should certainly be done, but it would be nice to provide a few more examples of how. For my part, I think law school students should definitely be taught more about the fluid, changing nature of law and should view law from a historical context. Only then do you realize that law isn't some distant and unchangeable thing--that it was created by people and can thus be changed by them.


"A Wake-Up Call from the Plea-Bargaining Trenches" - Stephen J. Schulhofer

Schulhofer's article is essentially a critical look at the reality of plea-bargaining. He outlines misconceptions that plea-bargaining is for the most part beneficial to to plaintiffs, using an example from David Lynch. He also gives a critical analysis of Lynch's paper and offers real solutions for how the legal system can be repaired.

This was an interesting article, though I can't help but think that Schulhofer is just another "academic in an ivory tower" who has just as distant a view as the other guys. Like Kennedy, I found his analysis to be more legitimate than his solutions, and I wasn't really interested in his critique of David Lynch at all. I was intrigued to find out that plea-bargaining really isn't a fair system, due to conflicts of interest between the attorney and the client and due to unequal distribution of information. It occurs to me that this should have been obvious, as just about every other aspect of law is unfair in one way or another, but oh well.

If I'm reading Schulhofer's solutions section properly, though, it looks like he basically wants to slowly do away with plea-bargaining. This is way too much of an idealistic, academic approach without full realization of the realities of the people actually involved. This is disregarding all of the people who don't have the time or money to go through a whole trial. Plea-bargaining, despite its flaws, does provide an alternate outlet for plaintiffs. Instead of doing away with the system, we should remedy it. It likely wouldn't be very difficult to force an equal distribution of information, at the very least.


"The Impact of Legal Counsel on Outcomes for Poor Tenants in NYC's Housing Court: Randomized" - Seron et. al.

This article was an analysis of a system in New York that provided low-income housing tenants with legal counsel in housing cases, and its effects on the tenants concerned. Seron and the others found that, essentially, the system worked--there was an increase in the number of tenants who managed to reach final judgment and that it in general improved tenants chances in court.

I found this article to be incredibly redundant and obvious. Knowledge is power, so providing people with knowledge will of course make them more powerful. Obviously, providing low-income individuals with legal counsel will improve their chances. Well-informed tenants will better be able to bring claims against landlords, and will be better able to fight claims against them. There's nothing really new here, although it would be interesting to see this sort of system implemented on a larger scale. I doubt it's possible, but imagine if everyone had equal access to competent lawyers and to knowledge about the ins and outs of the court system?