David Bernstein at VC brought up an essay by New York Law School prawf Rebecca Roiphe about two things, the role law is now believed to play in the society and why Jews are blamed for it. The gravamen of the post is about Jews, and it’s certainly worth reading. But as David highlighted, there is the dogma behind it that has seized control of how law is viewed by academics and students that is independently worthy of some discussion.

Many, if not most, students have bought into academic lessons peddled in the 1980s and ’90s as an outgrowth of what’s often called critical legal theory. Among them:

• Law is not a neutral institution designed to ensure the peaceful resolution of disputes in a diverse society.
• Neutrality is not an unachieved but noble goal.
• Legal institutions are just a vicious guise that allows the powerful to exploit the weak.
• The law is not a flawed but worthy process to improve, but an evil institution to weaponize or dismantle.

The lecture halls in our law schools are now filled with professors and students who believe these things. In their view, the profession is no longer an essential gatekeeper of the rule of law, a key component of the American founding. Instead, it’s a part of the problem: a white, racist, oppressive clique that uses its claims of fairness to mask its oppression of the powerless.

This kind of thinking is a big problem for Jews.

As Roiphe notes, she had no idea what ideological views her deans or prawfs held when she went to law school. Nor did I. I’m sure they had them, but they neither shared them nor gave us the impression that it mattered. In crim law, for example, there was no bias for prosecutors or defense lawyers, and we understood that both were necessary for a functioning system.

More importantly, we understood that a functioning system was necessary for a functioning society or there would be far more blood in the streets than there would be otherwise. Were we wrong? The lesson was meant to make us as tough, smart and resilient as we could be so we could possess the skills and perform the function for our clients. It was never about us. It was always about the client. Our role was to be worthy of holding the clients’ life in our hands.

I don’t mean to glorify a strict Socratic method, which can be demoralizing. We were all interchangeable, called on by our last names, and sometimes mocked if we couldn’t answer the question correctly. This wasn’t always a fun experience, but it was competitive. Merit mattered. The hazing ritual of the first year of law school cut us all down to size, but no one group had a monopoly on success.

Was it supposed to be “fun”? Was court always going to be fun? What use would we be if we broke down and sobbed every time a judge said “denied”? Feeling badly was about us. Taking a punch and getting back up to fight was about the client. Wasn’t that something we needed to learn?

Law school is a kinder place now. Many professors are careful to deliver trigger warnings when topics are uncomfortable. Some semesters, I get an email stating that a student requires an accommodation that makes it such that the student cannot be called on to speak in class. One year, a student showed up to the first day of class with a Yorkie dressed in a tutu. Good thing I resisted the impulse to ask her to leave, because, as it turned out, it was a support dog.

There are arguments to justify why this is good and right. Humiliating students in class using the Socratic method is cruel and unnecessary, it’s argued. Not every lawyer goes to court and has to be toughened up for battle, it’s argued. What’s wrong with showing students the courtesy of sensitivity toward their personal issues, whether it touches on a subject that will cause them pain (or at least that they will say causes them pain) or an educational issue that requires specialized methods of instruction that assume the method of instruction isn’t part of the lesson along with the substance of the law.

Some of these changes are good. All students should feel free to contribute to the classroom dialogue. But just as we are taking new steps to make sure students feel welcome, a new group has grown silent: those whose views don’t correspond to the majority’s. They sit quietly, afraid of social ostracization and the professor’s retribution.

The tacit implication here is that making students feel welcome is more important than turning students into lawyers, and that law is more worthy a pursuit for the sake of a functioning society than achieving the “right” outcome according to the whoever is in charge of deciding who is good and evil at any moment, no matter what.

If neither students nor prawfs believe that the law, as a mechanism for addressing our relationships to one another and resolving disputes when those relationships conflict, serves a societal purpose, then why are they there? Why are they learning to participate in a system that perpetuates what they perceive as evil? Why are they teaching a system that perpetuates evil? How can they teach such a system? How can they learn it?

The old saw that there are two sides to every story, or three if you’re of a cynical bent, wasn’t merely a platitude for simpletons, but a reminder that reasonable minds may differ. When cases are spewed all over the twitters in the snarkiest terms, there is usually no doubt who is right and who is wrong. The expression is so loaded that the bad guy is clear and teed up for the humiliation and outrage he so richly deserves.

In the real world, this is rarely the case, and both sides have their points, their facts and their arguments. It may not be that we can’t pick a side, but we can at least appreciate that they have some cause to believe they are in the right, or have been wronged, or deserve the opportunity to make their case in a fair and impartial setting. This is what lawyers were once taught to do, make that case for the clients, knowing that at the end there would be a winner and loser, and yet doing the best we could whether we agreed with our client or not.

This kind of thinking is good for everyone. At least that’s what we used to think.