A running debate within the Legal Academy was whether law school was a “trade school,” teaching students the nuts and bolts of the law and how to use them in a workmanlike fashion, or a philosophy grad degree, where students were asked to ponder the mysteries of legal thought and worry more about Hobbes than perpetuities. It always struck me as a silly debate, since a “craftsman” at law needed to be able to use theories and philosophy as tools of persuasion, which is how one crafts a good argument, so the obvious answer is both.
The deans of 150 law schools have decided that there’s too much dead time in their programs, not enough to teach their young charges now that messy classes like Evidence and maybe even Crim Pro really aren’t necessary first year subjects since, as the sophists argue, not everybody defends the accused or tries cases. So if students matriculating at law school need no longer learn, you know, law, what then should they be taught?
Preparing law students to be lawyers requires that they should be educated with respect to
bias, cultural awareness, and anti-racism. Such skills are essential parts of professional competence, legal practice, and being a lawyer. We believe that every law school should develop such training and education for its students.
Requires? That’s a strong word for people who think Evidence is an elective. Do they mean in the sense that students, entering with a mind filled with mush, should be made aware of every ideological ploy to be used against them so they can crush it with facts and logic? I suspect not, and I suspect the purpose of claiming anti-racism training is an “essential parts of professional competence” is instead meant to argue that they seek to instill an ideological orthodoxy bearing no connection to the practice of law because the ABA, the genuises who came up with the lawyer social justice speech code, Rule 8.4(g), will be thrilled to embrace it.
For those whose knee-jerk reaction is that lawyers should lead in the battle to end discrimination, and how could anyone who isn’t a racist argue that anti-racism is bad, consider a few things.
First, discrimination on the basis of race, inter alia, is unlawful under many conditions. Whether that’s controversial or not, it’s the law, and it’s the law for everyone, not just for lawyers. There is nothing about not engaging in discrimination that’s unique to law or lawyers. To the extent not discriminating is a “required” value, it applies to the guy who owns the gas station just as much as the gal who runs a law firm. There’s nothing lawyerish about it.
Second, teaching “anti-racism” isn’t the same as not discriminating on the basis of race. Anti-racism is discrete ideology, promoted by Ibram X. Kendi’s book, How to be an Anti-Racist, that requires one to dedicate one’s purpose to eradicating disparate impacts through the imposition of counter-racism. The only way to be anti-racist is to be racist in favor of black people, and if one isn’t anti-racist, one is racist.
Third, lawyers represent clients. Sometimes in courtrooms. Sometimes in boiler rooms. The job is to do so with legal competence, to know when to object or when to include a choice of jurisdiction clause. Their duty is to represent the client’s interests. Are they to be taught to ignore the client in favor of the cause? If the client wants a clause fixing venue in a district in Texas that’s known to be more accommodating to corporations and less so to the marginalized, should the lawyer refuse? Should the lawyer try to sneak in a different clause to fix venue in a more woke jurisdiction? Should the lawyer “advise” the client that it’s being racist and should reconsider their existence?
At Volokh Conspiracy, Josh Blackman seems generally nonplussed at the demand, his law dean being one of the demanders.
In the abstract, I don’t have any objections to mandatory training I disagree with. For example, we are all required to take Title IX training. I think various aspects of the Title IX regime violate federal law, and other aspects violate the Due Process and Equal Protection Clauses. But I don’t have an issue with clicking through an online presentation, and certifying my attendance.
But implicit-bias training is very different. It does not merely seek to convey information. It is designed to extract information, and use that information to force a person reconsider his or her own approach to society. And, students and faculty will not merely need to certify their completion of the course. I fear the reports of these tests may provide basis for further counseling, remediation, and re-education.
While Josh’s point as to implicit bias testing is sound, and he explains at length why the tests are scientific nonsense (although replication, like objectivity, is a racist concept), but his expectation that what the deans are asking for, and what the ABA might give, might be too limited. Will it be the child-like click-through tests of the past, or will it be full-blown ideological indoctrination? If the deans are demanding that it be a requirement, an “essential part of professional competence, legal practice, and being a lawyer,” whereas teaching actual law is optional, the thrust is to create an army of social justice warriors in pinstripe suits whose primary loyalty is to the cause.
As Dick the Butcher said in Shakespeare’s Henry VI, Part 2, Act IV, Scene 2:
The first thing we do, let’s kill all the lawyers.
This was the first step toward achieving totalitarianism, get rid of the people who would have the ability to oppose it. The law deans have come up with a less bloody solution: indoctrinate them to their preferred ideology while still in school so when they become lawyers, they will lack the capacity to challenge the orthodoxy and be so fundamentally indoctrinated that they can’t think or understand differently.