Nelson, J --- "The Discipline of Law Schools: The Making of Modern Lawyers" [2004] LegEdDig 55; (2004) 13(2) Legal Education Digest 9

Review Article: The Discipline of Law Schools: The Making of Modern Lawyers, P C Kissam, Carolina Academic Press, 2003, 280pp

Dr John Nelson

[2004] LegEdDig 55; (2004) 13(2) Legal Education Digest 9

Philip Kissam, in this book on the impact of the modern law school on the professional formation of lawyers, commences with the following startling assertion, Law schools, as they educate and train lawyers, use routine practices and habits that in the aggregate fail to serve the best interests of lawyers and society. (p.3) He contends that the academic discipline of law rests on certain ‘routines, habits and tacit knowledge’, which must be studied in order to comprehend American legal education and the law and lawyers that American law schools produce. He states that the purpose of his book is to expose the discipline of law schools, to encourage reflections about the discipline and the lawyer’s situation and to suggest alternative practices that might counter the discipline’s negative effects.

Amongst the routine practices which Kissam excoriates is the discipline’s promotion of the method of analysis at the cost of devaluing other intellectual methods that in legal practices will complement and at times compete with the analytical method. He also deplores the discipline’s emphasis on teaching instrumentalist habits of reading and writing that both empower and limit future lawyers at the expense of more reflective, critical and imaginative ways of reading, writing and thinking about law. He disparages what he calls the ‘many unresolved contradictory messages’ about law and lawyering generated by the discipline through its diverse curriculum, fragmented casebooks, the multiple levels of analysis and relentless competition of arguments that occur in the case method classroom, as well as the uncertainties of classroom work and final examinations.

The tendency of the discipline to support conservative values, particularly the emphasis on property rights and the maintenance of legal order in important parts of the curriculum, is also criticised. Finally, Kissam maintains that the discipline produces a self-image and predispositions that are best attained by law students through the adoption of intellectually, socially and politically conservative attitudes and behaviour that tend to avoid open-ended, risk-taking deliberations. The image thus symbolises conceptions of the self and ethics that tend to detach the self from others and substantially restrict the domain of ethical questions that may be raised about the law, lawyering and legal education. (p.11)

In the first three chapters of the book the author seeks to identify the routine practices of the discipline of law and their tacit consequences. Chapter 1 analyses the standard practices of law schools in order to identify how certain distinctive methods, such as large classes, the case method, final examinations, conventional legal scholarship and the law school placement process, result in powerful habits and tacit lessons that insidiously influence law school work and instruct future lawyers in a particular vision of the law and the nature of legal practice. Kissam claims that of all these practices two are the most influential: the dramaturgical techniques of the large case method classroom; and the special intensity, gravity and gamesmanship of the law school final examinations.

Chapter 2 analyses two pervasive structures of the discipline — the particular spatial and temporal relationships of law school life which he maintains tend to create or reinforce the discipline’s lessons. Kissam points out that architecture can influence social behaviour by expressing ideals, organising habits or relationships and conditioning the ways in which persons present themselves to others. In this context law school buildings construct and symbolise professional importance, professional autonomy and a formalist sort of expertise. The physical features of law schools he highlights are the buildings, the amphitheatre classrooms, courtrooms and clinics, faculty offices and the law library. Under temporal relationships he maintains that law school time is organised by the special rhythms of student time and faculty time, which, while they may often be in conflict, generate timetables that regulate the routine work of law schools.

Chapter 3 canvasses what Kissam labels the disciplinary techniques of law, which are more subtle and less tangible and largely impervious to change. These techniques include the invisibility of law school persons to each other as persons, a distinctive emotional style of coolness or impersonality, a collection of pervasive rituals, symbols and myths that nourishes powerful disciplinary images, an examinatorial regime, a special confessional technology, and the ordinary discourse of law schools. His contention is that these techniques reinforce each other and the lessons of the discipline while tacitly excluding or subjugating other ways of thinking about law, lawyers and legal education.

The major reform movements that have inhabited the discipline of law and emerged in law schools during the last decades are the subject of chapter 4. Kissam asserts that these ideas and practices have helped disguise the discipline and its conservative values by presenting law schools and the law as progressive and always capable of improving, when at the same time they promise change and even subversion of the discipline. Therefore the chapter asks how these movements are changing the discipline and how these reforms themselves have been affected by and incorporated within the discipline. The reforms considered are classified for analysis as either professional (legal writing programs; clinical education; professional ethics) or academic and political (law and economics; law and society movement; law and literature; critical legal studies; feminist jurisprudence; critical race theory).

Chapter 5 considers the organisational environment of the discipline, particularly the connections between law schools and such external institutions as the American legal profession, corporate law firms, the judicial system, research universities, the State and American culture, and how these connections explain aspects of the discipline. It defines and analyses the external constraints on the discipline which are seen as general in nature, enabling the discipline to operate in large measure without specific determination or control by insiders or outsiders. The conclusion drawn is that law schools often do not serve their constituencies with optimum efficiency and are able to operate with partial but significant autonomy in order to serve their own interests and those of law school inhabitants.

Finally, in chapter 6, Kissam explores the relationships between the discipline and different conceptions of ethics. The objective is to assess how the discipline constructs or influences the ethical frameworks of law students, lawyers and law professors, to evaluate the discipline and its effects, to try to understand the ethical choices that persons are likely to make about the discipline, and to suggest some changes that could make legal education more effective and democratic. Not surprisingly, he discovers that the discipline of law generates and rewards particular conceptions of the self and ethics that help keep the discipline in place. These tacit conceptions support the generally conservative approach of lawyers to questions of legal ethics, legal theory and legal change, in particular by redefining ethical questions about law and legal education as mere technical questions and thus disguising the ethics of the discipline. They also enshrine the notion of the overriding purpose for legal education being the acquisition of doctrinal knowledge and the skill of doctrinal analysis, with the basic methods of accomplishing this purpose being the core curriculum, the case method, the final examination/grading/class ranking system, and the traditional institutions of legal scholarship.

Kissam’s dissertation on the tendencies and predispositions of the discipline of law and how they manifest themselves in the hands of American law schools, lawyers and legal education is a scholarly and thought-provoking work. It makes assertions and draws conclusions about the self-perpetuating and self-serving practices of law schools which many legal academics and administrators will find unpalatable and indeed somewhat sinister, with its implications of entrenched conspiracies at work. Nonetheless, it does draw welcome attention to the need to keep under constant review the habitual practices and their consequences, both intended and unintended, of institutions like law schools if they are to serve the needs of all their constituencies.