Reproducing the Right Sort of Hierarchy
Published with documentation in Duncan Kennedy, The Reproduction of Hierarchy (NYU Press 2003)
In my youth almost a half-century ago, I attended a school dedicated to the subordination of its students. The teachers made incessant demands on their students. Inadequacies in their performances were publicly observed without pity, and often in the most insulting terms.
We students at that school were almost randomly selected. We did not choose to go there and indeed most of us did not want to go to school at all. Certainly none of us relished the incessant demands and insults. We were forced to do what had to be done when it had to be done, and we gradually acquired the habit of prompt obedience.
But we acquired other traits as well. The teachers’ seeming inhumanity had at least three redemptive consequences. The most obvious was that it demonstrated their conviction that their work, and hence the work they demanded of their students, was important and possible. They could not have all been that grouchy had they been taking their tasks lightly or had they expected that we would fail if we tried hard enough.
Secondly, their gruffness conferred on most of us a valuable sense of survivorship. Most of us succeeded at least marginally at the seemingly important feats required, and they were not easy. Especially for those of us who were not very good students in that school, minimal success was a considerable gratification. To use a term not then known, most of us acquired a new measure of self-esteem derived not from praise by others but from achievement permitting self-praise. In part, this was because failure was obviously possible; a few students who could not achieve minimum standards were sent home.
Finally, the teachers’ hateful conduct created among the students a sense of interdependency -- they provided their students with a common adversary against whom we could and did respond together. We formed bonds of mutual trust. We became artificial siblings. This was extraordinary, given that our backgrounds of race and class were as different as can be imagined, and that the school had only very recently been racially desegregated.
I was twenty-four years old when I attended that school, and I was a lawyer. Most of my fellow students were nineteen or twenty. My special brothers included a black operator of a shoe shine stand at the Corpus Christi railroad station, an Hispanic grocery clerk from San Antonio, a black warehouse guard from Oakland, and a Japanese-American from Redding who had lived for four years in an internment camp. There were also in my immediate circle a butcher from Las Vegas and a guy who aspired to be a professional golfer. One of them may well have been gay; we did not ask and he did not tell. The school was, of course, basic infantry training, and almost all of us had been selected by our local draft boards. It was my buddy from Corpus Christi who pushed me over the barricade that I was not strong enough to climb. He saved me from additional humiliation and stress, a kind deed I could never have repaid.
From my present perspective, I would have to say that basic infantry training was the most effective educational institution I ever had the opportunity to observe. The Phillips Exeter Academy (from which I was quite appropriately expelled) and the Harvard Law School (from which I was not expelled) made strong impressions on me, and the other schools I attended were also pretty good. But neither Exeter nor Harvard achieved in years what the United States Army did in weeks to make adults out of almost all of us involuntary selectees. I have, alas, not kept up with my military brothers, but I am as certain as one can be about such matters that they met the chances of life with measurably greater competence and composure than they would have absent what the Army did to and for them in eight short weeks. Happily, I know almost for certain that none of them was ever in military combat.
My respect for what the Army did is not linked to any militaristic impulses on my part. I was grateful that the Army thought me unpromising as an infantryman, and later trained me to type and fill out forms. I was never happier than the day I left active duty as a soldier. But passage of a half-century has not erased my affection for my military buddies, nor has my distaste for the military enterprise prevented me from continuing to admire the drill sergeants (perhaps especially the black WAC) who did their work with such spirit and effect.
In varying degrees, hierarchy is indispensable to all human endeavors entailing organized collaboration. Most that are worthwhile do. One can draw a picture without hierarchy, but one cannot play in an orchestra. An infantry unit without hierarchy is a mob and one organized by young Kennedy would in military combat have been a suicide pact. Could there be a ballet troupe, a basketball team, a hospital, or an industrial organization of whatever kind in a leftist heaven that excluded hierarchy? Many of our most valued freedoms depend on restraints imposed by hierarchs of one kind or another, and there is therefore nothing inherently wrong with reproducing it. Everything depends on the purpose of a hierarchy, and the fitness of its methods to that purpose.
Neither the Yale Law School that the adolescent Kennedy attended, nor the Harvard Law School of which he was a member when he protested its reproduction of hierarchy, was reproducing hierarchy for its own sake. They were striving to fit their students for professional work in a world filled will all kinds of hierarchies, many bad but many good. They were, among other objectives, trying to fit their students with the moral and intellectual strength and self-confidence enabling them to exercise prudent professional judgment in distinguishing good from bad and to withstand sometimes horrific stress they would experience in vigorously contested circumstances of whatever sort. Most law teachers then supposed, whether correctly or not, that treating adult students as immature persons needing emotional nurture and intellectual succor was not the way to prepare them for the moral and intellectual combat that pervades the work of American lawyers. If some of their students found the stress of managing their own professional development objectionable and left the school to pursue a different career, that was not a cause for regret but an indication that the schools were serving their students (perhaps especially the former students who left) and the public well.
In Kennedy’s time as a student, the Republic that the faculty expected its students to serve was deeply troubled by the ongoing war in Viet Nam. The recriminations by students of their faculty tells us more about their maturity and moral state than it tells us about the faculty. “Never trust anyone over thirty” was a slogan of those times. Teaching anything (left law, right law, or mathematics) in that environment was an uphill struggle.
The problem of student mistrust was compounded by the arrival in law schools in numbers first of students of color, and then of women, many of whom were quick to suppose that teachers were motivated by an ambition to humiliate them. It is possible that many of the women were “hard-wired” to need and thus demand mentoring relationships that law teachers of that time were not equipped to supply. As a consequence of the efforts of law teachers to accommodate student mistrust and demands for nurture, law school became almost everywhere less stressful, and students were less frequently required to participate actively and competitively in their own instruction.
If Kennedy’s teachers were right in their assumptions that they were not merely instructing students in law but were preparing them for professional work as lawyers, and that professional work is in almost all its forms competitive and stressful, and often laden with moral ambiguities, the reforms effected in response to the mistrust of their students may have been counterproductive. Law school graduates may have been less well prepared than they might have been for the professional work they sought opportunities to perform. And they may have had less moral autonomy of the sort enabling them to withstand the corruption and moral squalor that is the stuff of human conflict with which lawyers must deal.
I do not contend that the particular lawyers who later helped the accountants shred Enron documents would have performed more admirably had they been better educated in law school. I reject the arrogant utterance of Professor Felix Frankfurter that “lawyers are what the law schools make them.” The opposite would be far more accurate. Steven Pinker has recently published a thorough refutation of the widely shared premise that our children, or even our law students, are blank slates on whom we can write a message of our choosing. Mostly, students, even law students, get their morals from their peers. If Enron’s lawyers grew up among neighbors and attended schools and universities with fellow students who measure one another by such superficialities as their annual earnings, without regard for their professional integrity or the worthiness of the services they perform, no professional school can do very much to change that. Nevertheless, Kennedy’s teachers may not have been wrong to suppose that moral education is possible. And moral education may be the most important and enduring consequence of good professional training in law.
If law teachers today sought to prepare their students to withstand the moral squalor they are certain to encounter in performing legal services, how might they pursue that goal? They might seek to foster in their students the gratification that comes from earned self-respect derived from surviving rigorous demands with little help from intellectual and moral nursemaids, in the hope that the moral and intellectual autonomy thus developed might be put, at least sometimes, to good public use. Would a law school guided by such aims resemble basic infantry training? Maybe a little.
Or maybe it would bear more resemblance to the law school that featured the teaching of Edward “Bull” Warren, whose legendary antics recorded in the lore of the Harvard Law School provided the anecdotes in Paper Chase. The school in which he taught took form in the late 19th century in response to the idea of Charles Eliot, Harvard’s President, who predicted that if law school were made long and hard, the most promising professional students would be attracted by the challenge and opportunity to elevate themselves within the social and professional hierarchy. In the academic marketplace of the 19th century, Eliot’s idea was a resounding success. Accordingly, The Bull’s students were attracted by his sometimes brutal manners. He wrote an autobiography entitled Spartan Education in which he expressed the aim of providing his students with the moral and emotional toughness needed to perform important professional service. It was no part of Warren’s objective to train students to be weak subordinates in morally corrupt hierarchies, as the young Kennedy seems to have supposed that his teachers were doing. Students who survived The Bull were more likely, The Bull thought, to insist on thinking for themselves. His students might also have shared a sense that what they had achieved was important, and perhaps not merely to themselves. And they might have tended to bond with their classmates as co-professionals.
I have actually known quite a few of Bull Warren’s students because my father was one of them, and over the years I met many of his classmates. I never had occasion to discuss with any of them their reactions to The Bull. I wonder how he might have scored on student evaluations of his teaching. All his students whom I met except my father were in their seniority when I met them. Some were rather pompous, self-seeking persons who might, as best I could tell, have been the sort of lawyers who would have shredded Enron documents without a blink, at least if well paid to do so. But others that I knew were morally formidable and autonomous persons who would have participated in such a desperate act only after exercising independent and critical moral judgment and reaching the unlikely conclusion that the world would be a better place if the documents were shredded.
My assessment is not based merely on my intuitive reading of their characters. Dean Acheson, for one, had the moral starch in 1937 to resign as Undersecretary of the Treasury because of his belief that President Roosevelt’s monetary policy was morally reprehensible. In 1948, he (with Secretary Marshall) gave President Truman the very unwelcome advice that recognition of a Zionist state would result in a permanent state of undeclared war between the United States and the Moslem world. In 1949, he improvidently stood up for Alger Hiss. In 1951, he stood up to Joseph McCarthy. My father’s roommate, Claude Cross, practiced in Boston for many years, and exhibited his moral toughness when he undertook the defense of Alger Hiss. One may question Cross’s judgment if he lied on his client’s behalf, but one cannot question his moral toughness. Raeburn Green practiced in Saint Louis, advising business clients, and in 1950 defended members of the Communist Party against diverse criminal charges. Kenneth Royall practiced in Raleigh representing business interests until he was activated as a colonel in the JAG Corps. A few months later, he was assigned to defend German saboteurs, and he took their case to civil courts and to the Supreme Court of the United States in direct defiance of his commander-in-chief. He also took a stand against Senator McCarthy. Joe Welch, pro bono publico, took on McCarthy in the famous Senate hearings. What Acheson, Cross, Green, Royall, and Welch did in these events was to put their careers at risk to do what they perceived to be the right thing. Other members of that Class of 1917 (including my father) performed other less noted acts that were public services sometimes rendered at substantial cost to themselves.
No one can say that any of these courageous public acts were a consequence of the teaching of The Bull. But it is possible that they learned in law school to look out for their own moral standards without close guidance from mentors, and gained confidence in their ability to do so. I am sure that many of them practiced law with moral courage, and we can say that The Bull’s teaching, so despicable to young Kennedy and others of his generation, had that result as its aim. Maybe it even had some of that effect. I doubt that teachers who would have gratified the young Kennedy with entertaining lectures would have been likely to have done better in training students to stand on their own moral and intellectual feet.
I wonder what the mature Kennedy would propose today in lieu of his Utopian proposal of 1983. One of the realities with which he would have to deal is troubling change in that part of the profession advising large corporate enterprise such as Enron. Lawyers in such organizations are increasingly subordinates in hierarchies that are sometimes uncaring. While members of the Class of 1917 were often called by their clients for broad advice, today’s partners less frequently have the kind of stable relationship with their clients that results in that kind of consultation. It may well be, for example, that no independent lawyer (i.e., one who had not been subordinated by his or her corporate managers) was ever invited to give advice about the antics of Enron’s executives. Even The Bull could not hope to do much about that.
Moreover, the utopian planner today would need to confront the destructive force of law school rankings that have a paralyzing effect on the freedom of most law schools to do anything that might diminish their relative standings. Virtually every measurement of law schools employed in rankings counts expenditures, and virtually all available funds must be spent to protect schools rankings. Also, their shared preoccupation with such matters must reinforce in students a sense that it is affect and not substance that matters.
I have elsewhere proposed my own Utopian law school for the 21st century. It would have as its aim a result not so very different from Kennedy’s “left law school.” My proposal requires an elite university with an endowment that its trustees might be willing to invest in the creation of a morally independent legal profession of lawyers unwilling to surrender their autonomy to mindless or greedy hierarchs. My Utopian law school would simply foreswear tuition, proclaiming that it would conduct the best three-year program it could without charging students for it. Classes would be large, and services other than classroom teaching would be minimal. In order to assure their moral independence in shaping their careers, students would be enjoined to borrow no money and to live within their current means, however modest those might be. But the university might proclaim that its law school is a contribution to the Republic, much in the tradition envisioned by the 18th century founders of American university legal education, and maintained by the University of Michigan in the time of Thomas Cooley. Their graduates would be instructed to repay any indebtedness they felt they owed to the university by serving the public interest as they might best identify that interest.
My Utopia Law School would not do well in the rankings provided by US News & World Report because it could not compete in the expenditure of money. Imaginably, it might nevertheless attract adult students who were seriously committed to their own moral values and were willing and able to manage their own intellectual affairs. Their commitments and moral standards might even be reinforced by the moral ambience created by their classmates. Its graduates might actually prove to have special value to the causes they chose to serve. But even Utopia would not be immune to the charge that it was reproducing hierarchy because it would hope to shape its students as hierarchs serving benign causes of their choosing.