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Professor Wotherspoon seems somewhat peeved by the imminent - ah - demise of the Angelina. Do you think the Ministry of Defence could run to a replacement.

Critical Legal Studies and argumentation theory

To browse Academia. Skip to main content. By using our site, you agree to our collection of information through the use of cookies. To learn more, view our Privacy Policy. Log In Sign Up. Download Free PDF. Legal Educ. Steve Sheppard. Download PDF. A short summary of this paper. The quiet did not last long and, in the years since, Kennedy's polemic has been a persistent lightning rod of notjust crit lit, but law school lit generally.

Decades later, we are still appraising Kennedy's work, whether with applause or catcalls. Polemics might seem easy to write, but the truth is that they are hard work. A polemic is no mere exercise of passion. It must be an argument against an orthodoxy. A Polemic Against the System does both in captivating style. The purpose of the present article is to explore one source of that captivation, the notion of hierarchy Kennedy tapped, and then to assess the conclusions drawn from it-his call for active resistance to hierarchy.

Kennedy's argument is well known, and a symposium considering the manifesto is hardly the place for a long-winded recitation.

Still, a brief sum- mary will help those readers who haven't read the other symposium pieces in this issue or the lovely commemorative edition with critiques from NYU Press, but are just hitting this essay through some mischance of a computer search engine.

The rest of you might as well just skip the short part I and go to part II, where the path of Kennedy's law is less heavily trod. There we encounter the background to the polemic, the tools for the assault, by considering the state of the theory of hierarchies, particularly at the time Kennedy wrote.

Steve Sheppard is an associate professor of law at the University of Arkansas-Fayetteville. The notion of the polemic as a device in rhetoric is ancient, most closely associated with the Socratic school of Megara founded by Euclid, known as Eristics and sometimes called the Megarians.

The Eristics synthesized Eleatic metaphysics with Socratic principles, supporting a claim that there is no division between the actual and the possible, and so the good is the only form of being. The second edition of the Oxford English Dictionarysupplies an example of the earliest English usage of polemic apropos of Kennedy's purposes.

From this domain is grounded, in part III, a different argument of hierar- chy, one that accepts Kennedy's most trenchant observations of the injustice of the hierarchies of the law but reaches the opposite conclusion, no matter how unfashionable. A law student who would pursue justice need not reject the hierarchies of the law. A law student who would pursue justice must-and can-conquer the hierarchies of the law.

His essay describes "the ways in which legal education contributes to the reproduction of illegitimate hierarchy in the bar and in society" as well as ways students and teachers can become part of a "left activist practice of social transformation. What teachers teach about the law and lawyering is biased nonsense. The only valid response is to destroy these hierarchies. He presents at least four hierarchies within law schools, and four more, nurtured in the law schools but manifested in the legal profession and the law itself.

Kennedy's Hierarchies Each of Kennedy's hierarchies exhibits four essential features, three of which he identifies, and one of which he implies. The implication is that each hierarchy exists in some discernible organization-some unit or relationship that makes it distinct from others such as a unit comprising a lawyer and client, or a single law firm, or the bar as a whole, or the profession as it regards its clients or as it regards society. Each organization or relationship is hierar- chical, and each hierarchy exists either in an organic unit of people or among people in specific relationships.

Kennedy describes three aspects of all of his hierarchies. First, each organization differentiates various roles, with special- izations allocated to each role. There is an unequal distribution of rewards among roles, with shares better for some than others.

Second, each hierarchy is located within a cultural framework that gives significance to the various roles and rewards. And third, hierarchies are functionally related, incorporat- ing smaller hierarchies within larger and sharing certain values and rewards among one another Hereafter page references will be in parentheses in the text.

Kennedy goes further in his theory of hierarchies, depicting them not as pyramids but as diamond shapes, with their population greatest in the middle rather than the bottom.

Any given hierarchy has variances in tastes, capacities, and values among people in the same stratum. Hierarchies are organized in small operational cells, each crossing various strata of the larger hierarchy, and each cell mirroring the larger hierarchy in organization.

The cells are coherently and analogously organized, and the whole is organized complexly and fundamentally supported by the threat of violence to support its ideology HeinOnline -- 55 J. In chapter 7 Kennedy notes that one of the reasons he likes "hierarchy" is that it is a vague concept, open to great theoretical play but useless in "hard-edged theory.

Kennedy does not believe that hierarchy is the root of all evil. Law Schools and Hierarchy The first third of the polemic is a series of case studies, or at least Kennedy's observations on cases. The law schools, the faculty, the faculty and students, and the students themselves form the hierarchies of legal education. A hierarchy ranks the schools, with some schools more powerful and influential, wealthier, and more desirable than others.

That hierarchy "firmly establishes that law schools exist on a scale of rank," admittedly ambiguous as to some but clearly rejecting most from the elite The law professors' hierarchy among themselves is at first subtle but still quite influential.

In a ranking that might surprise some professors, Kennedy describes the ranking with "rigorous" and less policy-oriented professors, whose teaching is valuable on the bar exam, more popular and valuable than the "softies" and "mushy centrists" The hierarchy most fundamental, though, is of faculty over students.

This hierarchy, in which the students accept without question the teachers' views as truth, makes possible many others The dominance of the faculty over the students enables the creation of a hierarchy among the law school's student body, based on grades and other merit badges, especially law review membership 27, This student hierarchy is created and maintained by brainwashing far beyond the effects of grades alone.

Students, as Kennedy sees them, are both indoctrinated to the internal hierarchies of the law school and prepared for the external hierar- chies of the law, through the personal modeling of faculty obsessed with their own status and fostering a culture of deference and acceptance that is furthered by the students themselves , The professorial oli- garchs foist as essential education what is an oblique exposure to a formal curriculum of legal rules and reasoning, shot through with an ideological inculcation of arbitrarily "right" and "wrong" answers that may be identified only through acceptance of misleading professorial opinion , These answers must be parroted in a scheme of examinations that are useless for any purposes other than reinforcing hierarchical values: those students most ably embracing the teachers' opinions are the most rewarded His example of an evil not seemingly based on hierarchy is sexual jealousy But most animal behaviorists argue that access to sex is often determined by hierarchies.

See, e. Are we really so different? The Hierarchiesof the Law Kennedy sees that hierarchies within legal education are more than invidi- ous in themselves. They embrace and enable a range of hierarchies beyond their walls, and ideologies essential to professional hierarchies-the agenda of center-liberal laws; the best and worst forms of professional fulfillment; the acceptable and unacceptable methods of professional behavior. All are en- abled by the arbitrary choices of faculty and by the manipulation of students to 5 accept them while still in law school.

The agenda of center-liberal laws arises from the errors of legal education. These errors-the ideas that cases have a right analysis or agreement of criticism, that the important courses are the hard courses, not the playground courses of legal philosophy or legal history, or clinical legal education, even the idea that contract law is distinct in the curriculum from environmental law-"these errors have a bias in favor of the central-liberal program" This bias is, for Kennedy, the apparently inevitable result of hierarchy and domination "which is implicit in the adoption of rules of property, contract, and tort" appearing to be the result of legal reasoning, rather than politics and economics.

This resulting program is legal education supporting a "limited reform of the market economy and pro forma gestures toward racial and sexual equality. The best and worst forms of professional fulfillment are both heralded and channeled according to the hierarchy the school establishes among the stu- dents. The best students, particularly those selected from the best schools, are sent to the best jobs; the worst students, and those who went to the worst schools, are sent to the worst jobs.

As Kennedy sees it, the process both reinforces the strengths and downplays the weaknesses of the law school curriculum, by hyping the benefits of a career in a large firm and ignoring the benefits of a career in neighborhood law practice or legal services But best and worst are ranked through the industry of legal education not only by how a student did in law school, but also by social background and by law school Thus, among the elect, the most exalted beneficiaries of legal education are prepared both professionally and emotionally only for one of the large 5.

Kennedy describes three means by which law schools contribute to legal hierarchy or to use my word, the "enablement" in chapters 4 and 5. Law schools train students to accept hierarchies in school that mirror those of the profession, indoctrinate students to a legal ideology, and rank students into groups for professional recruitment. That ranking of students he calls "structuring," and he goes to some rather interesting extremes to show that it is ultimately based on violence These firms will offer a position "providing marginally important services to businesses in their dealings among themselves and with consumers and stray victims" Firms, though, are subject to a hierarchy, within which each is "ranked just as law schools are.

So they "lord it over those below them, and so forth to the bottom" The lesser strata of legal employment follow. Thejobs remaining after the firms have skimmed the cream are either plaintiffs work or "arranging the private affairs" of the middle or upper classes presumably wills and trusts The acceptable and unacceptable methods of professional behavior taught to students commenced, for Kennedy, in grade school. In exchange for money and security, the lawyer will surrender control over work and affections, agreeing "to show the appropriate form of defer- ence to those above This work itself is "drudge work" solving puzzles in a macho battle of wills in which winning is all.

The only fulfillment comes in achieving the goals of other people. And although Kennedy admits that the lawyer also exercises skill, makes money, and gains the respect of others, he reminds us that this is far less than any dream of pursuing a career of unambiguous goodness Kennedy's Resistance It might go without saying at this stage that Kcnncdy thinks legal hierar- chies are bad things.

It is essential to his project to sec why he thinks so. It is not just that the contingent valuations of organizations are irrational or self 6. This might exaggerate his point, but only slightly. He says, "Law school, as an extension of the educational system as a whole, teaches students they are weak, lazy, incompetent, and insecure" Having set out this dystopian view of law practice, Kennedy admits to its slight exaggeration, even allowing that a student who is determined to find a meaningful job, by which he means one that is politically progressive, can indeed do so, so long as the student is willing to relocate and to wait.

He also admits that some lawyers, apparently in the most pernicious roles in the hierarchy writ large, have meaningful jobs that benefit others The legal hierarchy he has encountered is worse: it is an unneccesary evil Kennedy argues more deeply that hierarchy itself is to be hated, even in any aspect that is necessary owing to the divisions of labor in a complex task.

Legal Education and Hierarchy : A Reply to Duncan

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The chapter addresses the origins of the Critical Legal Studies movement with a view to reconstructing the conditions for its emergence as a movement of radical reform. The questions discussed include: What are the consequences of the indeterminacy thesis? Are there limits to a deconstructivist approach? What is the audience addressed by this particular strand of scholarship? Can a critical project be at the core of a discipline and be turned into its very identity? Issues of style and a certain tendency by its adherents to be self-referential and use cryptic language are also examined. Finally, the impact of critical theory on the self-image of the profession of international lawyers is highlighted.

If one were to ask law teachers nowadays what distinguishes academic legal education from professional and vocational training, they probably will refer to the capacity of critical thinking. As law teachers at the university we want students to develop a critical attitude. But what exactly does it mean to be critical and why is it important to be critical? How can a critical attitude be promoted and developed? In legal theory the notion of critical thinking seems to be annexed by followers of the Critical Legal Studies movement. This is certainly one way of being critical, but the notion of critique is a distinctively modern notion that contains other possibilities of being critical as well.

link-back that completes the system: students do more than accept the a chapter that will appear in a book on law, sponsored by the National Lawyers Guild and I. Ideology and Hierarchy in Legal Education Reproduction of Hierarchy.

Legal Education and the Reproduction of Hierarchy - Duncan

Critical Legal Studies poses a direct and expressed challenge to the basic tenets of American legal education and scholarship. Critical Legal Studies postulates that law is not a scientific exercise involving the application of objective principles, but rather a creative process involving the selection of conflicting rules which has the effect of reinforcing the existing political order. In an effort to explain the contribution of Critical Legal Studies to argumentation theory, this essay briefly discusses the role of legal reasoning in the American legal system, describes and critiques Legal Positivism, lays the intellectual foundation for Critical Legal Studies, and considers the implications that this conception of jurisprudence has for argumentation theory. This is a preview of subscription content, access via your institution.

BJu Tijdschriften

To browse Academia. Skip to main content. By using our site, you agree to our collection of information through the use of cookies. To learn more, view our Privacy Policy. Log In Sign Up. Download Free PDF. Legal Educ.

This essay develops the concept of vulnerability in order to argue for a more responsive state and a more egalitarian society. Vulnerability is and should be understood to be universal and constant, inherent in the human condition. The vulnerability approach is an alternative to traditional equal protection analysis; it represents a post-identity inquiry in that it is not focused only on discrimination against defined groups, but concerned with privilege and favor conferred on limited segments of the population by the state and broader society through their institutions.

This well-known 'underground' classic critique of legal education is available for the first time in book form. This edition contains commentary by leading legal educations. In Harvard law professor Duncan Kennedy self-published a biting critique of the law school system called Legal Education and the Reproduction of Hierarchy. This controversial booklet was reviewed in several major law journals—unprecedented for a self-published work—and influenced a generation of law students and teachers. In this well-known critique, Duncan Kennedy argues that legal education reinforces class, race, and gender inequality in our society. However, Kennedy proposes a radical egalitarian alternative vision of what legal education should become, and a strategy, starting from the anarchist idea of workplace organizing, for struggle in that direction.

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