Saturday, June 04, 2005

Reflections on Law in the Ivory Tower

Howdy from Benbrook, Texas -- my temporary residence until I get my new digs in Austin. Before 42 and I head off to study for the Texas Bar Exam, I think the time's right for me to offer some reflections on law in the Ivory Tower.

Almost all law schools require that their applicants submit a short "personal statement" along with their GPAs, LSAT scores and letters of recommendation. It's supposed to be reflective - to take the admissions committees beyond the numbers and to help them see the flesh and blood person behind them. Almost four years ago, in the summer of 2001, I drafted a personal statement that reflected on my undergraduate experience.

The interplay between the "intensely traditionalist, Bible-centered culture" of my upbringing and "culturally-critical, radical instruction I received in my Liberal Arts courses" stimulated, panicked and devastated me. It shredded my unexamined cultural assumptions and forced me to ask the "big questions." For the first time, I questioned such givens as Capitalism, Democracy and Christianity, and I formulated answers that were truly my own....

My undergraduate experience at a massive state school changed me forever. My graduate experience at an intimate ivy league law school has not had the same effect. Although a J.D. is often viewed as a professional degree, law schools like those 42 and I attended groom their students more for life in academia than for life in the courtroom. Our law professors styled themselves practical philosophers and our classes addressed the "big questions": How legitimate is the market economy and the existing distribution of resources? (Federal Income Tax, Property) What are the purposes of punishment and boundaries of personal responsibility? (Criminal Law) What is the definition of Democracy and how should majority rule be limited? (Federal Jurisdiction) What is Equality? (Constitutional Law)

But, in truth, my law school's practical philosophers - Socratic as they may have been - never seriously threatened my moral foundation. Law and Economics, the overwhelmingly dominant scholarly paradigm, struck me as morally absurd on its face. L&E not only takes the quite problematic position that all persons will strive only to maximize their own self-interests, it also has the audacity to normatively declare such selfishness as the only "rational" course. L&E fundamentally assumes that anything that marginally increases the Gross Domestic Product is good, while anything that hinders our lockstep towards this goal is bad. "Efficiency" is the only value. L&E is utilitarianism at its worst. I was shocked when one of my first-year professors dismissed a student's objection that a certain law hurt the poor as "merely distributional effects." But I have heard Jesus' call to serve others and to concern myself most with those least privileged echoing deeply within my soul. I could not be misled by the mechanical application of neo-classical Economics to Law.

More alluring were those modern descendants of Critical Legal Studies such as Critical Race Theory, Feminist Theory, and Antisubordinationism. I was engaged by professors who taught that the Constitution could be read as a document mandating distributive justice and intrigued by judges who argued that the Equal Protection Clause required equal marital rights for same-sex couples. In the end, however, I decided that Critical Legal Studies was merely a pale, hopelessly pretentious reflection of what Jesus said long ago:

"The Spirit of the Lord is upon me, because he has anointed me to bring good news to the poor. He has sent me to proclaim release to the captives and recovery of sight to the blind, to let the oppressed go free...."

"I was hungry and you gave me food, I was thirsty and you gave me something to drink, I was a stranger and you welcomed me, I was naked and you gave me clothing, I was sick and you took care of me, I was in prison and you visited me' ... "Truly I tell you, just as you did it to one of the least of these who are members of my family, you did it to me.'"

When I entered law school, these were the foundations of my moral/policital philosophy. Neither the seductive empiricism of L&E nor the superficial intellectual refinement of CLS have shaken them.

My legal education has bolstered my researching, writing and reasoning abilities. It has provided me with doctrinal and theoretical frameworks. It will provide me with a license to practice law. These are indeed powerful tools in our society. But they are no more than tools.


At 9:01 PM, Anonymous John said...

While I share your overall assesment of the value of the law school experience I feel like you are giving law and economics short shrift. What it is really is the study of incentive effects as applied to the law. The same methods generally are used in evolutionary biology and behavioral economics. The ideas you seem to be rejecting are by no means at the center of law and economics. Just because it has economics in the name does not tie it to things like the gross domestic product. In actuality it draws no ultimate conclusions at all. When used correctly it is just saying how do or might people respond to rule or ruling x, or what might some behavioral explanation be for why we have rule or ruling x. It is an empirical tool, nothing more, nothing less. Like any such tool the methods and assumptions used should be constantly examined and tested, but the study of incentive effects has offered many useful insights in numerous fields.

Deciding that redistributional goals are of paramount importance in society is not inconsistent with the use of law and economics. It is a fact that such analysis is often used to argue in favor of a utilitarian system of law, but as anyone who has taken any economics knows utility is in the eye of the beholder. As a free-market libertarian myself I dislike utilitarianism, but I dont reject a perfectly valid and useful tool because someone else draws conclusions with which I disagree.

Anyway, good luck on the bar I hope the Texas tapes are better than the NY ones. Tell 42 I said hey.

At 4:24 PM, Anonymous Jamal said...

I have to agree with John on this one, Josh. Law and economics is more a methodology than a theory. Many law and economics scholars (e.g. Ian Ayres) reject the obviously problematic position that people are entirely *selfish*, though I think you too quickly reject the idea that people do not strive to maximize their own self-interests. One whose utility function is dominated by the happiness of others, say, has a strong taste for altruism, and we may be able to draw (probabilistic) conclusions about such a person's behavior if we know about that taste. Law and economics scholars not only reject the idea that selfishness drives all people, but they reject the idea that we can generalize about what drives all people. They are precisely concerned with individual preferences.

As to the assumption that anything that increases GDP is good, this is a normative position on economic policy that is not at all related to being a law and economics scholar, and indeed is not very popular even among law and economics scholars. While Posner famously once defended the utilitarian wealth-maximization position, even he has since abandoned it.

And as for the ills of utilitarianism, while I don't want to characterize your own views, it is certainly true that many a person has defended pro-distributional goals on utilitarian grounds.

I hope you're enjoying Texas!


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