Backwardness of law Civilization Legal education

The Chain of Judicial Command

Legal education typically assumes that in a world in which laws are clear, laws must be followed. If you don’t like the law, t’row de bums out. If a judge does not like the law, the same: the judge must still obey, until the people t’row de bums out. The legislative process is the only socially healthy way to change the law.

And yet, one finds in that most authoritarian, rule-bound of all cultures, the military, an understanding of the importance of having people not follow the rules, even in combat situations in which you might think that the chain of command would be most important.

I have:

Colonel Edson D. Raff was the kind of midlevel combat commander who saw what needed to be done and went ahead and did it without waiting for orders, the kind of innovative, aggressive commander any general would give a million dollars for — if he didn’t have him court-martialed and shot.

Orr Kelly, Meeting the Fox: The Allied Invasion of Africa, From Operation Torch, to Kasserine Pass, to Victory in Tunisia 113 (2002).


The company commander contacted the battalion commander by radio and asked for instructions. As he did so, his company spontaneously rose up, as one man, and assaulted the hill. The assault was such a surprise — as much to the American commanders as to the Italians — that the hill fell to the Americans almost immediately. The spontaneous assault was one of those rare battlefield phenomena where soldiers, acting without orders, see what needs to be done and do it.

Orr Kelly, Meeting the Fox: The Allied Invasion of Africa, From Operation Torch, to Kasserine Pass, to Victory in Tunisia 271 (2002).

I have never read anything like this written of a judge taking orders from a legislature. It is never said. But do judges in fact go ahead and do “it without waiting for orders?” Why, yes, they do. All the time. There is a culture of silence about this, as if judicial disobedience were a more worrisome thing than a lack of discipline on the battlefield. I would have thought, given the stakes, that it would be the other way around.

When judges do “it without waiting for orders” in the right way, and help us win the battle for justice thereby, they make a valuable contribution to our society, a contribution that makes them worth at least $900,000, if not the million that should go to the maverick who through inspired disobedience helps us to succeed on the battlefield. If we can talk about the fact and contribution of disobedience at war, we ought to be able to talk about the fact and contribution of disobedience in adjudication.

In other words, the law in action quite often fails to reflect the law on the books, not only because the law may have gaps, conflicts, and ambiguities, but because judges flout it. And that’s not necessarily a bad thing.

Legal education

Disobedience in the Law School Curriculum

The study of disobedience should be a core part of the law school curriculum.  Instead, law schools pretend that all rules get followed, or, at least, that all rules should be followed.  So teaching the rules is for them enough.  This is ridiculous.  Not only is it fact that many rules don’t get followed by courts and other government administrators, or get selectively or imperfectly enforced, it is also the case that this can be a good thing.  Congress cannot see the future or adjudicate in advance every case to which its rules will be applied.  So implementing its intent often involves disobeying the letter of its laws.  A good lawyer must be able to predict what rules will get enforced and what rules will not get enforced and know how to argue for and against enforcement.  Indeed, a great deal of legal practice involves no more than this.  Yet a lawyer receives zero training for this in today’s law schools.

Is teaching lawyers disobedience dangerous or immoral because they may use it to pervert justice rather than achieve it?  The fact that the law is non self executing and imperfectly enforced means that lawyers have much discretion in their behavior.  And where there is discretion there is ambit for ethics and morality.  But if law schools have no course directed to disobedience they certainly do not teach lawyers how to exercise their discretion in a moral fashion.  If we pretend that all lawyers should follow the law when we know that they do not and sometimes should not, then we miss the opportunity to teach them when it is morally right for them to do so and when it is morally wrong.  If you deny the reality of disobedience, then there is no hope of addressing it.

What a lawyer needs is a course on cultural attitudes toward disobedience.  When does it get noticed, when not?  What does it do to the social and political standing of the client?  When is it required as a moral matter and when not?  When is it advisable as a business matter and when not?  How do you identify rules that are likely to be enforced and when not?

I recall reading somewhere that planners call dirt paths that appear in parks “desire lines” because they show you where park users wish to have paved roads.  We might sometimes think of areas of disobedience as legal desire lines, reflecting areas in which the public desires non enforcement.  And often gets it, if, for example, the sheer volume of disobedience overwhelms enforcers.   A good course in disobedience  might teach lawyers how to identify legal desire lines to which enforcers have acquiesced and help guide clients through them.  Assuming, of course, as a moral or policy matter, we think that the public’s desire should be respected.

Legal education

The Law School Crisis Is a Keynesian Crisis

Dear Dean Chemerinsky,

I enjoyed your Op-Ed with Carrie Menkel-Meadow in the Times today and agree with its conclusion that the crisis in law school enrollments doesn’t call for reform to legal education.  But I think there’s a better economic argument for why that is the case.

Everyone agrees that the drop in enrollments is driven by a drop in demand for lawyers.  If that drop in demand had come about because some competitor to law schools were producing better lawyers, then it would be reasonable to think that law schools need to improve their product in order to compete.  But here’s the thing: law schools as a group have no competitors.  The only way to become a lawyer is to go to law school.  And, in aggregate, employers who need to hire lawyers have to hire the lawyers law schools produce, regardless of quality.  They have nowhere else to turn.

So the drop in demand for legal services simply isn’t driven by a lack of competitiveness; it’s got nothing to do with the quality of legal education.  It’s got a lot to do instead with the weak economy and with a lack of commitment on the part of the government to ensuring access to justice for all Americans.  If medicine were not heavily subsidized by the government, medical schools would be in the same pickle as law schools.  You would have MDs working at Starbucks while trauma patients bleed to death in the streets.  Instead, today we have JDs working at Starbucks while desperate homeowners try to defend against foreclosure pro se.

The solution to the problem is for law schools to go to Washington and demand more subsidization of legal services for regular Americans.  The enrollments crisis is a Keynesian crisis.  Unemployment due to lack of demand.  As in all such crises the solution is not to blame the worker (or, in this case, the law school).  Instead, the solution is government stimulus; a stimulus that in the case of the legal market can bring about more justice in addition to saving law schools from themselves.