Law Schools and Democracy

Published December 18, 2018

National Review Online

At the Chronicle of Higher Education, Yale law professor Samuel Moyn offers a thoughtful and engaging critique of the ethic of today’s elite law schools. It merits serious reflection, and I hope you will indulge me a few scattered reactions, which won’t pretend to add up to a real response.

Moyn writes from the Left, and he’s concerned that in institutions like his law school, progressive-minded students enter with dreams of changing the world but are channeled toward a way of thinking about their place in the world that prioritizes shallow careerism and then justifies it through a vision of social change overly focused on the judiciary.

There is a lot to think about in his essay, but I was struck in particular by his powerful descriptions of the intense guilt that many progressive elites-in-training experience as they are shaped by a legal education. He writes:

Power players and grizzled veterans often do not understand how profoundly newcomers or outsiders to elite law schools — I count myself a little of both, but I mean first-year students — are prone to worry about why they are there. Students engage in constant self-questioning: Can I reconcile my politics with my self-interest? Am I really devoting myself to a career that will lead to systemic change, or to one that will reproduce hierarchy instead? The ethical struggles of elite law students might seem the pinnacle of first-world problems, but they are real nonetheless.

This describes an unease characteristic of every democratic elite—a privileged class in a society that defines its ideal of itself as the absence of privilege and classes. And it has generally been answered by an elite code of conduct that demands some form of service from those who have privilege and humbles their pride by constraining their freedom of action. Today’s elite institutions, as Moyn notes, generally fail to do this. Our elite understands itself as a meritocracy, and so as deserving of its advantages. But the idea of merit at the core of this meritocracy is generally technocratic: Merit is demonstrated by test scores and a glittering resume and is then put to use in various forms of management and administration.

This kind of elite implicitly substitutes intellect for character as its measure of worth, and it cannot escape the (correct) intuition that this is an unjustifiable substitution. It therefore comes to demand of its elite institutions some assurances that the power they deploy is used for good. In our time this has meant that those institutions have had to take on an exaggerated parlance of social justice, not to say redemption of sin, that accuses the larger society (often with reason) of horrible wrongs and portrays the ethic and the work of elite institutions (rarely with reason) as means of righting that wrong.

One result of this tendency is the opening of an ever-larger gap between elites and the larger society. The democratic public gradually loses respect for elites who fail to hold themselves to any plausibly legitimate standard while those elites lose patience with a public that refuses to define itself as a question to which elite mores would be an answer.

Another result is a growing loss of confidence among elites, as the paths laid out for them for achieving or retaining worldly success seem increasingly disconnected from any genuine pursuit of justice or of virtue. They tend to respond to that mismatch by demanding that their institutions address it by becoming means for the transformation of the world into an arena for putting into effect their vision of social justice—a place where getting a Yale law degree would also be a way of making things better for everyone.

This is not necessarily unreasonable. But it could be accomplished by our legal culture in at least two very different ways: by changing the world or by changing how law students think about making it better. The former would turn a rising generation of elite lawyers into energetic enemies of the social order while the latter would turn that generation of elite lawyers into humble agents of their fellow citizens, broadly speaking. There is a case to be made for either one, and which appeals more depends more or less on what you think of our existing social order.

But as Moyn perceptively notices, elite law schools have tended to straddle these options by inculcating in their students a vision of social change rooted in judicial usurpation of democratic prerogatives. The law schools can change the world to better fit progressive assumptions by advancing an ideal of social change carried out by judges. Students are taught to think about the law from the perspective of judges, to idolize senior federal judges who are on the right team, and to look upon the larger public as acted upon more than as legitimately acting. But this attempt to bridge the chasm doesn’t work, and, from Moyn’s point of view, looks all the more unlikely to succeed as the federal judiciary falls further into the hands of conservatives.

There is a warning to conservatives implicit in this argument. Since a right-leaning judiciary looks to be the only thing being built in the Trump years (which are otherwise an orgy of demolition, deserved and undeserved) and so the only thing likely to endure when they are over, conservatives will find themselves increasingly tempted by a vision of political and social change with judges at its center. You would think decades of warning against the implications of such a vision while liberals had more power in the courts would have sunk in sufficiently to inoculate us against such an attitude. But you might be surprised.

In any case, Moyn warns his fellow progressives that the era of their counting on judges ought surely to be over. And he suggests that in its place the elite law schools need to help train lawyers to think about the law more democratically, and so to look for ways to play transformative roles in legislation and administration and in civic life in general.

That seems right, but it still describes a role for the elite lawyer that is fundamentally that of a social activist. Moyn recognizes that shaping such a role will always be secondary to the professional function of the law schools. He writes:

The point is not to reorient law schools entirely. Their primary task will always be the production of lawyers for the bar — a core commitment with which other agendas will necessarily fit uncomfortably. Law schools will never be staging grounds for fundamental social change when they are organized to advise private dispute resolution and administer extant forms of public justice.

This is true, but it seems to me to grant too little to the potential of the legal profession as a profession to help close some of the gap between today’s guilt-ridden elites and resentful public. The deepest problem with the distorted and distorting emphasis of today’s elite legal education, which Moyn well describes, is not that it keeps would-be lawyers from becoming effective activists for progressive social change (although it does do that) but that it keeps them from becoming effective lawyers in our democratic republic. And it does that especially by neglecting to subject them to a strong professional code—a self-understanding that is fundamentally professional and institutional, and so subsumes their individual ambitions beneath clear, legitimating responsibilities and channels it toward the service of their fellow citizens.

That’s what a profession does for its members, and especially for its elite and privileged members. It restrains and protects them, it gives them purpose and genuine belonging, and it provides them with a valued place in a larger social order so that they need not always be suspected of working to undermine it for the benefit of their class or of themselves.

Lawyers have a distinct place in our particular social order, as interpreters of the legal frameworks of democratic life, as careful reformers of those frameworks, and as agents of fellow citizens in need of prudent counsel. A professional code that accustoms elites to serve as agents of others and that holds them to a standard that has more to do with integrity than with raw intellect would be one useful way to help humble those elites and to legitimate their standing and their privileges.

There is particular value in this for lawyers. Moyn’s colleague at Yale Law School, Anthony Kronman, wrote a great book on this subject about a quarter-century ago. But there is great value in it well beyond the law as well, as a form of institutionalism that might begin to point beyond our outwardly smug and inwardly guilt-ridden meritocracy toward a more sustainable and unifying mode of thinking about the relationship between elites and a larger public in our democracy. Thinking about ourselves and our roles through the institutions that form us would help get at a great deal of what is troubling modern America.

The goal of such a reorientation would not be progressive transformation but something more like conservative renewal, so it isn’t what Moyn is after in the end. But it could coexist with the kind of rethinking Moyn points to, because what he describes would help revive a genuinely academic culture in the law schools.

Recovering the distinct purposes and characters of our different institutions, rather than seeing them all as interchangeable platforms for screaming at each other about the culture war, is the essence of what a renewal of American civic life would require. A university, including its professional schools, is fundamentally an institution of teaching and learning, pursued in a variety of ways. A culture of social activism has always coexisted with a culture of professional formation and a culture of liberal learning in American higher education—all of them pursued through forms of teaching and learning, and therefore functioning as genuinely academic cultures. And I take Moyn to be gesturing toward a recovery of that tense and productive coexistence, even if the academic culture in which he is at home is different from mine.

We probably disagree about how and why that overarching academic character of higher education has been diminished. My sense is that it has happened because the culture of social activism has run amok, and particularly because it has taken over the ethic of university administrators, which has led to a profound disorientation on many elite campuses—a loss of focus on the academic character and purpose of the university. The culture of social activism is increasingly disconnected from teaching and learning and has become instead a coercive culture of administration.

I assume Moyn must place the fault elsewhere. But that is no reason not to be struck by the honesty and acumen of what he has to say, to recommend his essay to you, and to give thought to whether somehow, someday, some common ground might emerge for well-meaning people to take on the festering social crisis that now sets the tone for our politics and culture.

— Yuval Levin is the editor of National Affairs and a fellow at the Ethics and Public Policy Center.

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