Posted: May 21st, 2022

Public Law essay

Legal Education and the Reproduction of Hierarchy
Author(s): Duncan Kennedy
Source: Journal of Legal Education , December 1982, Vol. 32, No. 4 (December 1982), pp.
591-615
Published by: Association of American Law Schools
Stable URL: https://www.jstor.org/stable/42897806
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Education
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591
Legal Education and the Reproduction
of Hierarchy
Duncan Kennedy
Law schools are intensely political places, in spite of the fact that the
modern law school seems intellectually unpretentious, barren of theoret-
ical ambition or practical vision of what social life might be. The trade-
school mentality, the endless attention to trees at the expense of forests,
the alternating grimness and chumminess of focus on the limited task at
hand – all these are only a part of what is going on. The other part is
ideological training for willing service in the hierarchies of the corporate
welfare state.
To say that law school is ideological is to say that what teachers teach
along with basic skills is wrong, is nonsense, about what law is and how it
works; that the message about the nature of legal competence and its
distribution among students is wrong, is nonsense; that the ideas about
the possibilities of life as a lawyer that students pick up from legal educa-
tion are wrong, are nonsense. But all this is nonsense with a tilt; it is biased
and motivated rather than random error. What it says is that it is natural,
efficient, and fair for law firms, the bar as a whole, and the society the bar
services to be organized in their actual patterns of hierarchy and domina-
tion.
Because students believe what they are told, explicitly and implicitly,
about the world they are entering, they behave in ways that fulfill the
prophecies the system makes about them and about that world. This is the
link-back that completes the system: students do more than accept the
way things are, and ideology does more than damp opposition. Students
act affirmatively within the channels cut for them, cutting them deeper,
giving the whole a patina of consent, and weaving complicity into
everyone’s life story.
In this article, I take up in turn the initial first-year experience, the
ideological content of the law-school curriculum, the noncurricular prac-
tices of law schools that train students to accept and participate in the
hierarchical structure of life in the law, and the problem of deciding what
Duncan Kennedy is Professor of Law, Harvard Law School. This article is a somewhat longer version of
a chapter that will appear in a book on law, sponsored by the National Lawyers Guild and the
Conference on Critical Legal Studies, entitled The Politics of Law (New York: Pantheon, 1982). It is
reprinted here by permission of Pantheon Books and David Kairys.
©1982 by Duncan Kennedy. Cite as 32 J. Legal Educ. 591 (1982).
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592 Journal oj Legal Education
implications for political practice we can draw from the analysis of the
existing structure of hierarchy. The next part suggests ways in which
progressive or left students who are determined not to let law school
demobilize them can deal with the experience. A final section gives an
example of a Utopian proposal for the transformation of one law school.
I. Ideology and Hierarchy in Legal Education
A. The First-Year Experience
A surprisingly large number of law students go to law school with the
notion that being a lawyer means something more, something more
socially constructive than just doing a highly respectable job. There is the
idea of playing the role an earlier generation associated with Brandeis, the
role of service through law, carried out with superb technical competence
and also with a deep belief that in its essence law is a progressive force,
however much it may be distorted by the actual arrangements of capi-
talism. There is a contrasting, more radical notion, that law is a tool of
established interests, that it is in essence superstructural, but that it is a
tool which a coldly effective professional can sometimes turn against the
dominatore. In the first notion the student aspires to help the oppressed
and transform society by bringing out the latent content of a valid ideal; in
the second the student sees herself as part technician, part judo expert,
able to turn the tables exactly because she never lets herself be mystified
by the rhetoric that is so important to other students.
Then there are the conflicting motives, which are equally real for both
types. People think of law schools as extremely competitive, as a place
where a tough, hard-working, smart style is cultivated and rewarded.
Students enter law school with a sense that they will develop that side of
themselves. Even if they disapprove, on principle, of that side of them-
selves, they have had other experiences in which it turned out that they
wanted and liked aspects of themselves that on principle they disapproved
of. How is one to know that one is not “really” looking to develop oneself
in this way as much as one is motivated by the vocation of social transfor-
mation?
There is also the issue of social mobility. Almost everyone whose
parents were not members of the professional/technical intelligentsia
seems to feel that going to law school is an advance, in terms of the family
history. This is true even for children of high-level business managers, so
long as their parents’ positions were due to hard work and struggle rather
than to birth into the upper echelons. It is rare for parents actively to
disapprove of their children going to law school, whatever their origins. So
taking this particular step has a social meaning, however much the student
may reject it, and that social meaning is success. The success is bitterThis content downloaded from
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Reproduction of Hierarchy 593
sweet if one feels one should have gotten into a better school, but both
the bitter and the sweet suggest that one’s motives are impure.
The initial classroom experience sustains rather than dissipates ambiv-
alence. The teachers are overwhelmingly white, male, and deadeningly
straight and middle class in manner. The classroom is hierarchical with a
vengeance, the teacher receiving a degree of deference and arousing fears
that remind one of high school rather than college. The sense of auton-
omy one has in a lecture – with the rule that you must let the teacher
drone on without interruption, balanced by the rule that he can’t do
anything to you – is gone. In its place is a demand for pseudo-
participation in which one struggles desperately, in front of a large
audience, to read a mind determined to elude you. It is almost never
anything like as bad as The Paper Chase or One-L, but it is still humiliating
to be frightened and unsure of oneself, especially when what renders one
unsure is a classroom arrangement that suggests at once the patriarchal
family and a Kafka-like riddle-state. The law-school classroom at the
beginning of the first year is culturally reactionary.
But it is also engaging. You are learning a new language, and it is
possible to learn it. Pseudo-participation makes one intensely aware of
how everyone else is doing, providing endless bases for comparison.
Information is coming in on all sides, and things that you knew were out
there but you didn’t understand are becoming intelligible. The teacher
offers subtle encouragements as well as not-so-subtle reasons for alarm.
Performance is on one’s mind, adrenalin flows, success has a nightly and
daily meaning in terms of the material assigned. After all, this is the next
segment: one is moving from the vaguely sentimental world of college, or
the frustrating worid of ofFicework or housework, into something that
promises a dose of “reality,” even if it’s cold and scary reality.
It quickly emerges that neither the students nor the faculty are as
homogeneous as they at first appeared. Some teachers are more authori-
tarian than others; some students other than oneself reacted with horror to
the infantilization of the first days or weeks. There even seems to be a
connection between classroom manner and substantive views, with the
“softer” teachers also seeming to be more “liberal,” perhaps more sympa-
thetic to plaintiffs in the torts course, more willing to hear what are called
policy arguments, as well as less intimidating in class discussion. But there
is a disturbing aspect to this process of differentiation: in most law
schools, it turns out that the tougher, less policy-oriented teachers are the
more popular. The softies seem to get less matter across, they let things
wander, and one begins to worry that their niceness is at the expense of a
metaphysical quality called “rigor,” thought to be essential to success on
bar exams and in the grown-up worid of practice. Ambivalence reasserts
itself. As between the conservatives and the mushy centrists, enemies who
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594 Journal of Legal Education
scare you but subtly reassure you may seem more attractive than allies no
better anchored than yourself.
There is an intellectual experience that somewhat corresponds to the
emotional one: the gradual revelation that there is no purchase for left or
even for committed liberal thinking on any part of the smooth surface of
legal education. The issue in the classroom is not left against right but
pedagogical conservatism against moderate, disintegrated liberalism. No
teacher is likely to present a model of either left pedagogy or vital left
theoretical enterprise, though some are likely to be vaguely sympathetic to
progressive causes, and some may even be moonlighting as left lawyers.
Students are struggling for cognitive mastery and against the sneaking
depression of the preprofessional. The actual intellectual content of the
law seems to consist of learning rules, what they are and why they have to
be the way they are, while rooting for the occasional judge who seems
willing to make them marginally more humane. The basic experience is of
double surrender: to a passivizing classroom experience and to a passive
attitude toward the content of the legal system.
The first step toward tjiis sense of the irrelevance of liberal or left
thinking is the opposition in the first-year curriculum between the tech-
nical, boring, difficult, obscure legal case, and the occasional case with
outrageous facts and a piggish judicial opinion endorsing or tolerating the
outrage. The first kind of case – call it a “cold” case – is a challenge to
interest and understanding, even to wakefulness. It can be on any subject,
so long as it is of no political or moral or emotional significance. Just to
understand what happened and what’s being said about it, you have to
learn a lot of new terms, a little potted legal history, and lots of rules, none
of which is carefully explained by the casebook or the teacher. It is difficult
to figure out why the case is there in the first place, whether one has
grasped it, and what the teacher will ask and what one should respond.
The other kind of case- the “hot” case – usually involves a sympathetic
plaintiff, say an Appalachian farm family, and an unsympathetic defendant,
say a coal company. On first reading, it appears that the coal company has
screwed the farm family, say by renting their land for strip mining, with a
promise to restore it to its original condition once the coal has been
extracted, and then reneging on the promise. And the case should include
a judicial opinion that does something like awarding a meaningless few
hundred dollars to the farm family, rather than making the coal company
do the restoration work. The point of the class discussion will be that your
initial reaction of outrage is naive, nonlegal, irrelevant to what you’re
supposed to be learning, and maybe substantively wrong into the bargain.
There are “good reasons” for the awful result, when you take a legal and
logical “large” view, as opposed to a knee-jerk passionate view, and if you
can’t muster those reasons, maybe you aren’t cut out to be a lawyer.
Most students can’t fight this combination of a cold case and a hot case.
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Reproduction of Hierarchy 595
The cold case is boring, but you have to do it if you want to become a
lawyer. The hot case cries out for a response, seems to say that if you can’t
respond you’ve already sold out, but the system tells you to put away
childish things, and your reaction to the hot case is one of them. Without
any intellectual resources, in the way of knowledge of the legal system and
of the character of legal reasoning, it will appear that emoting will only
isolate and incapacitate you. The choice is to develop some calluses and
hit the books, or admit failure almost before you’ve begun.
B. The Ideological Content of Legal Education
One can distinguish in a rough way between two aspects of legal educa-
tion as a reproducer of hierarchy. Much of what happens is the inculcation
through a formal curriculum and the classroom experience of a set of
political attitudes toward the economy and society in general, toward law,
and toward the possibilities of life in the profession. These have a general
ideological significance, and they have an impact on the lives even of law
students who never practice law. Then there is a complicated set of institu-
tional practices that orient students to willing participation in the special-
ized hierarchial roles of lawyers. In order to understand these, one must
have at least a rough conception of what the world of practice is like.
Students begin to absorb the more general ideological message before
they have much in the way of a conception of life after law school, so I will
describe this formal aspect of the educational process first. I will then try to
sketch in the realities of professional life that students gradually learn
about in the second and third year, before describing the way in which the
institutional practices of law schools bear on those realities.
Law students sometimes speak as though they learned nothing in
school. In fact, they learn skills, to do a list of simple but important things.
They learn to retain large numbers of rules organized into categorical
systems (e.g., requisites for contract, rules about breach). They learn
“issue spotting,” which means identifying the ways in which the rules are
ambiguous, in conflict, or have a gap when applied to particular fact
situations. They learn elementary case analysis, meaning the art of gener-
ating broad holdings for cases, so they will apply beyond their intuitive
scope, and narrow holdings for cases, so that they won’t apply where it at
first seemed they would. And they learn a list of balanced, formulaic,
pro/con policy arguments that lawyers use in arguing that a given rule
should apply to a situation in spite of a gap, conflict, or ambiguity or that a
given case should be extended or narrowed. These are arguments like
“the need for certainty” and “the need for flexibility,” “the need to
promote competition” and the “need to encourage production by letting
producers keep the rewards of their labor.”
One should neither exalt these skills nor denigrate them. By compar-
ison with the first-year students’ tendency to flip-flop between formalism
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596 Journal of Legal Education
and mere equitable intuition, they represent a real intellectual advance.
Lawyers actually do use them in practice. And when properly, consciously
mastered, they have “critical” bite. They are a help in thinking about
politics, public policy, and ethical discourse in general, because they show
the indeterminacy and manipulability of ideas and institutions that are
central to liberalism.
On the other hand, law schools teach these rather rudimentary, essen-
tially instrumental skills in a way that almost completely mystifies them for
almost all law students. The mystification has three parts. First, the schools
teach skills through class discussions of cases in which it is asserted that
law emerges from a rigorous analytical procedure called “legal reasoning,”
which is unintelligible to the layman but somehow both explains and
validates the great majority of the rules in force in our system. At the same
time, the class context and the materials present every legal issue as
distinct from every other, as a tub on its own bottom, so to speak, with no
hope or even any reason to hope that from law study one might derive an
integrating vision of what law is, how it works, or how it might be changed
(other than in an incremental, case-by-case, reformist way).
Second, the teaching of skills in the mystified context of legal reasoning
about utterly unconnected legal problems means that skills are taught
badly, unselfconsciously, to be absorbed by osmosis as one picks up the
knack of “thinking like a lawyer.” Bad or only randomly good teaching
generates and then accentuates real differences and imagined differences
in student capabilities. But it does so in such a way that students don’t
know when they are learning and when they aren’t and have no way of
improving or even understanding their own learning processes. They
experience skills training as the gradual emergence of differences among
themselves, as a process of ranking that reflects something that is just
“there” inside them.
Third, the schools teach skills in isolation from actual lawyering expe-
rience. “Legal reasoning” is sharply distinguished from law practice, and
one learns nothing about practice. This procedure disables students from
any future role but that of apprentice in a law firm organized in the same
manner as a law school, with older lawyers controlling the content and
pace of depoliticized craft training in a setting of intense competition and
no feedback.
1. The Formal Curriculum: Legal Rules and Legal Reasoning. The intel-
lectual core of the ideology is the distinction between law and policy.
Teachers convince students that legal reasoning exists, and is different
from policy analysis, by bullying them into accepting as valid in particular
cases arguments about legal correctness that are circular, question-
begging, incoherent, or so vague as to be meaningless. Sometimes these
are just arguments from authority, with the validity of the authoritative
premise put outside discussion by professorial fiat. Sometimes they are
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Reproduction of Hierarchy 597
policy arguments (e.g., security of transactions, business certainty) that are
treated in a particular situation as though they were rules that everyone
accepts but that will be ignored in the next case when they would suggest
that the decision was wrong. Sometimes they are exercises in formal logic
that wouldn’t stand up for a minute in a discussion between equals (e.g.,
expectations damages represent the will of the parties).
Within a given subfield, the teacher is likely to treat cases in three
different ways. There are the cases that present and justify the basic rules
and ideas of the field. These are treated as cursory exercises in legal logic.
Then there are cases that are anomalous – “outdated” or “wrongly
decided” because they don’t follow the supposed inner logic of the area.
There won’t be many of these, but they are important because their
treatment persuades students that the technique of legal reasoning is at
least minimally independent of the results reached by particular judges
and is therefore capable of criticizing as well as legitimating. Finally, there
will be an equally small number of peripheral or “cutting edge” cases the
teacher sees as raising policy issues about growth or change in the law.
Whereas in discussing the first two kinds of cases the teacher behaves in
an authoritarian way supposedly based on his objective knowledge of the
technique of legal reasoning, here everything is different. Because we are
dealing with “value judgments” that have “political” overtones, the discus-
sion will be much more free-wheeling. Rather than every student
comment being right or wrong, all student comments get pluralist accept-
ance, and the teacher will reveal himself to be either a liberal or a conser-
vative, rather than merely a legal technician.
The curriculum as a whole has a rather similar structure. It is not really a
random assortment of tubs on their own bottoms, a forest of tubs. First,
there are contracts, torts, property, criminal law, and civil procedure. The
rules in these courses are the ground-rules of late nineteenth-century
laissez-faire capitalism. Teachers teach them as though they had an inner
logic, as an exercise in legal reasoning with policy (e.g., promissory
estoppel in the contracts course) playing a relatively minor role. Then
there are second- and third-year courses that expound the moderate
reformist program of the New Deal and the administrative structure of the
modern regulatory state (with passing reference to the racial egalitar-
ianism of the Warren Court). These courses are more policy oriented than
first-year courses, and also much more ad hoc. Teachers teach students
that limited interference with the market makes sense and is as authorita-
tively grounded in statutes as the ground rules of laissez faire are
grounded in natural law. But each problem is discrete, enormously
complicated, and understood in a way that guarantees the practical impo-
tence of the reform program. Finally, there are peripheral subjects, like
legal philosophy or legal history, legal process, and clinical legal education.
These are presented as not truly relevant to the “hard,” objective, serious,
32 Journal of Legal Ed. No.4- 5
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598 Journal of Legal Education
rigorous, analytic core of law; they are a kind of playground or a finishing
school for learning the social art of self-presentation as a lawyer.
This whole body of implicit messages is nonsense. Teachers teach
nonsense when they persuade students that legal reasoning is distinct as a
method for reaching correct results from ethical and political discourse in
general (i.e., from policy analysis). It would be an extraordinary first-year
student who could, on his own, develop a theoretically critical attitude
toward this system. Entering students just don’t know enough to figure
out where the teacher is fudging, misrepresenting, or otherwise distorting
legal thinking and legal reality. To make matters worse, the two most
common kinds of left-wing thinking the student is likely to bring with her
are likely to hinder rather than assist in the struggle to maintain some
intellectual autonomy from the experience. Most liberal students believe
that the left program can be reduced to guaranteeing people their rights,
and to bringing about the triumph of human rights over mere property
rights. In this picture, the trouble with the legal system is that it fails to put
the state behind the rights of the oppressed or that the system foils to
enforce the rights formally recognized. If one thinks about law this way,
one is inescapably dependent on the very techniques of legal reasoning
that are being marshalled in defense of the status quo.
This wouldn’t be so bad if the problem with legal education were that
the teachers misused rights reasoning to restrict the range of the rights of
the oppressed. But the problem is much deeper than that. Rights
discourse is internally inconsistent, vacuous, or circular. Legal thought can
generate equally plausible rights justifications for almost any result.
Moreover, the discourse of rights imposes constraints on those who use it
that make it almost impossible for it to function effectively as a tool of
radical transformation. Rights are by their nature “formal,” meaning that
they secure to individuals legal protection for arbitrariness- to speak of
rights is precisely not to speak of justice between social classes, races, or
sexes. Rights discourse, moreover, simply presupposes or takes for
granted that the world is and should be divided between a state sector that
enforces rights and a private world of “civil society” in which atomized
individuals pursue their diverse goals. This framework is, in itself, a part of
the problem rather than of the solution. It makes it difficult even to
conceptualize radical proposals such as, for example, decentralized demo-
cratic worker control of factories.
Because it is logically incoherent and manipulable, traditionally individ-
ualist, and willfully blind to the realities of substantive inequality, rights
discourse is a trap. As long as one stays within it, one can produce good
pieces of argument about the occasional case on the periphery where
everyone recognizes value judgments have to be made. But one is without
guidance in deciding what to do about fundamental questions and fated
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Reproduction of Hierarchy 599
to the gradual loss of confidence in the persuasiveness of what one has to
say in favor of the very results one believes in most passionately.
The other left stance is to undertake the Procrustean task of reinter-
preting every judicial action as the expression of class interest. One may
adopt a conspiracy theory, in which judges deliberately subordinate
“justice” (usually just a left liberal-rights theory) to the short-run financial
interests of the ruling class, or a much more subtle thesis about the “logic”
or “needs” or “structural prerequisites” of a particular “stage of monopoly
capitalism.” But however one sets out to do it, there are two difficulties.
The first is that there is just too much drek, too much raw matter of the
legal system, and too little time to give everything you have to study a
sinister significance. It would be a full-time job just to give instrumental
Marxist accounts of the cases on consideration doctrine in first-year
contracts. Just exactly why is it that late nineteenth-century capitalism
needed to render an uncle’s promise to pay his nephew a handsome sum,
if he didn’t smoke ’til age 21, a legal nullity? Or was it the other way
around: that capitalism needed such promises to be enforceable?
The second difficulty is that there is no “logic” to monopoly capitalism,
and law cannot be usefully understood, by someone who has to deal with
it in all its complexity, as “superstructural.” Legal rules the state enforces,
and legal concepts that permeate all aspects of social thought, constitute
capitalism as well as responding to the interests that operate within it. Law
is an aspect of the social totality, not just the tail of the dog. The rules in
force are a factor in the power or impotence of all social actors (though
they certainly do not determine outcomes in the way liberal legalists
sometimes suggest they do). Because it is part of the equation of power
rather than simply a function of it, people struggle for power through law,
constrained by their limited understanding and limited ability to predict
the consequences of their maneuvers. To understand law is to understand
this struggle as an aspect of class struggle and as an aspea of the human
struggle to grasp the conditions of social justice. The outcomes of struggle
are not preordained by any aspea of the social totality, and the outcomes
within law have no “inherent logic” that would allow one to predia
outcomes “scientifically” or to reject in advance specific attempts by
judges and lawyers to work limited transformations of the system.
Left liberal-rights analysis submerges the student in legal rhetoric but,
because of its inherent vacuousness, can provide no more than an
emotional stance against the legal order. The instrumental Marxist
approach is highly critical of law but also dismissive. It is no help in
coming to grips with the particularity of rules and rhetoric, because it
treats them, a priori, as mere window dressing. These theories feil left
students because they offer no base for the mastery of ambivalence. What
is needed is to think about the law in a way that will allow students to enter
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600 Journal of Legal Education
into it, to criticize without utterly rejecting it, and to manipulate it without
self-abandonment tp an alien system of thinking and doing.
2. Student Evaluation. Law schools teach a small number of useful skills.
But they teach them only obliquely. It would threaten the professional
ideology and the academic pretensions of teachers to make their students
as good as they can be at the relatively simple tasks that they will have to
perform in practice. But it would also upset the process by which a hierar-
chical arrangement analogous to that of law-school applicants, law schools,
and law firms is established within a given student body.
To teach the repetitive skills of legal analysis effectively, one would have
to isolate the general procedures that make them up and then devise large
numbers of factual and doctrinal hypothetical with which students could
practice those skills, knowing what they were doing, and learning in every
single case whether their performance was good or bad. As legal educa-
tion now works, on the other hand, students do exercises designed to
discover what the “correct solution” to a legal problem might be; those
exercises are treated as unrelated to one another; and students receive no
feedback at all except a grade on a single examination at the end of the
course. Students generally experience these grades as almost totally
arbitrary – unrelated to how much you worked, how much you liked the
subject, how much you thought you understood going into the exam, and
what you thought about the class and the teacher.
This is silly, looked at as pedagogy. But it is more than silly when looked
at as ideology. The system generates a rank ordering of students based on
grades, and students learn that there is little or nothing they can do to
change their place in that ordering or to change the way the school
generates it. Grading as practiced teaches the inevitability and also the
justice of hierarchy, a hierarchy that is at once false and unnecessary.
It is unnecessary because it is largely irrelevant to what students will do
as lawyers. Most of the process of differentiating students into bad, better,
and good could simply be dispensed with, without the slightest detriment
to the quality of legal services. It is false, first, because in so much as it
does involve the measuring of the real and useful skills of potential
lawyers, the differences between students could be “leveled up” at
minimal cost, whereas the actual practice of legal education systematically
accentuates differences in real capacities. If law schools invested some of
the time and money they now put into Socratic classes into developing
systematic skills training and committed themselves to giving constant,
detailed feedback on student progress in learning those skills, they could
graduate the vast majority of all the law students in the country at the level
of technical proficiency now achieved by a small minority in each institu-
tion.
In communicating class-rank information to each student, law schools
convey the implicit corollary that place is individually earned and therefore
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Reproduction of Hierarchy 601
deserved. The system tells each student that he learned as much as he was
capable of learning. If he feels incompetent or that he could have done
better, it is his own fault. Opposition is sour grapes. Students internalize
this message about themselves and about the world and s

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