Bourdieu and American legal education: How law schools reproduce social stratification and class hierarchy

Buffalo Law Review

Volumn 56, Issue 4, 2008, Pages 1155-1224

  Jewel, Lucille A ^a  

^a Atlanta's John Marshall Law School   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 62449174295     PISSN: 00239356     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (528)

1. GEORGE BERNARD SHAW, PYGMALION (PENGUIN BOOKS 2003).
2. See, e.g., FRANCES KAHN ZEMANS & VICTOR G. ROSENBLUM, THE MAKING OF A PUBLIC PROFESSION 42 (1981) ("FOR while the law in comparison with other occupations carries with it relatively high social status, the legal profession is far from monolithic.");
3. RONIT DINOVITZER & BRYANT C. GARTH, LAWYER SATISFACTION IN THE PROCESS OF STRUCTURING LEGAL CAREERS, 41 L. & SOC'Y REV. 1, 2 (2007) ("DECADES OF work on the legal profession have confirmed that there are hierarchies in the profession that every lawyer knows.");
4. RONIT DINOVITZER ET AL., AFTER THE JD: FIRST RESULTS OF A NATIONAL STUDY OF LEGAL CAREERS 42 (2004), http://www.nalpfoundation.org/ webmodules/articles/articlefiles/87. AFTER-JD-2004-web.pdf (detailing significant economic differences between lawyers, mapped by practice area and geographic location).
5. See also JOHN P. HEINZ ET AL., URBAN LAWYERS: THE NEW SOCIAL STRUCTURE OF THE BAR (2005).
6. URBAN LAWYERS contains the results of a detailed sociological study of the CHICAGO BAR conducted in 1995. This study followed up on a previous study of the CHICAGO legal profession conducted in 1975.
7. See JOHN P. HEINZ & EDWARD O. LAUMANN, CHICAGO LAWYERS: THE SOCIAL STRUCTURE OF THE BAR (RUSSELL SAGE FOUND. 1982). THE data collected by this study illustrates the social and economic striations within the CHICAGO BAR.
8. ANOTHER way to describe the stratification within the legal profession is to view it in terms of what type of clients attorneys represent. See, e.g., RANDOLPH N. JONAKAIT, THE TWO HEMISPHERES OF LEGAL EDUCATION AND THE RISE AND FALL OF LOCAL LAW SCHOOLS, 51 N.Y.L. SCH. L. REV. 863, 868 (2006-07)
9. (citing HEINZ ET AL., supra note 2, at 868). THE attorneys at the top of the hierarchical structure of lawyers represent large corporations.
10. See id. at 864. ATTORNEYS AT THE bottom primarily represent personal clients.
11. See id. ATTORNEYS who have corporations for clients receive substantially more income in the form of higher legal fees than attorneys who represent individual clients.
12. See id.
13. See PIERRE BOURDIEU, OUTLINE OF A THEORY OF PRACTICE 182-83 (RICHARD NICE trans., CAMBRIDGE UNIV. PRESS 1977). FOR instance, attorneys who work at large law firms, representing corporate clients, are viewed as having much more prestige than attorneys who engage in individual client representation.
14. See also HEINZ ET AL., supra note 2, at 77-97.
15. DAVID SWARTZ, CULTURE AND POWER: THE SOCIOLOGY OF PIERRE BOURDIEU 189-90 (1997).
16. PIERRE BOURDIEU & JEAN-CLAUDE PASSERON, REPRODUCTION IN EDUCATION, SOCIETY AND CULTURE 163 (SAGE PUBL'N LTD. 2d prtg. 1990).
17. See id. at 31-35.
18. SWARTZ, supra note 5, at 190.
19. See LOÏC J.D. WACQUANT, TOWARD A SOCIAL PRAXEOLOGY: THE STRUCTURE AND LOGIC OF BOURDIEU'S SOCIOLOGY, in AN INVITATION TO REFLEXIVE SOCIOLOGY 1, 2 (PIERRE BOURDIEU & LOÏC J.D. WACQUANT eds., 1992).
20. See id. at 4.
21. BOURDIEU, supra note 4, at 182-83.
22. PIERRE BOURDIEU, DISTINCTION: A SOCIAL CRITIQUE OF THE JUDGEMENT [sic] of TASTE (RICHARD NICE trans., HARVARD UNIV. PRESS 1984).
23. BOURDIEU & PASSERON, supra note 6.
24. WACQUANT, supra note 9.
25. ELLIOT B. WEININGER, FOUNDATIONS OF PIERRE BOURDIEU'S CLASS ANALYSIS, in APPROACHES TO CLASS ANALYSIS 82, 82-118 (ERIK OLIN WRIGHT ed., CAMBRIDGE UNIV. PRESS 2005).
26. SWARTZ, supra note 5.
27. PIERRE BOURDIEU & PATRICK CHAMPAGNE, OUTCASTS ON the INSIDE, in THE WEIGHT OF THE WORLD: SOCIAL SUFFERING IN CONTEMPORARY SOCIETY 421, 422-24 (PIERRE BOURDIEU ET AL. eds., PRISCILLA PARKHURST FERGUSON ET AL. trans., STANFORD UNIV. PRESS 1999).
28. PIERRE BOURDIEU, THE FORCE OF THE LAW: TOWARD A SOCIOLOGY OF THE JURIDICAL FIELD, 38 HASTINGS L.J. 805, 806 (RICHARD TERDIMAN trans., 1987).
29. See BOURDIEU & PASSEEON, supra note 6, at 11;
30. SWARTZ, supra note 5, at 39;
31. WEININGER, supra note 15, at 86. THE task of demarcating classes and class locations has been identified as more of a MARXIST approach to class analysis, where individuals are placed in a class based on their occupation and relationship with the means of production.
32. See, e.g., ERIK OLIN WRIGHT, CLASS COUNTS: COMPARATIVE STUDIES IN CLASS ANALYSIS (CAMBRIDGE UNIV. PRESS 1997).
33. See BOURDIEU, supra note 12, at 114.
34. See WACQUANT, supra note 9, at 17. A field is an arena of play, analogous to a battlefield, where players compete to establish control over the types of capital contained in the field, such as cultural and legitimate authority.
35. See id.
36. See WEININGER, supra note 15, at 89.
37. See BOURDIEU, supra note 12, at 114.
38. See id. at 114-15.
39. See id.
40. See id. at 114;
41. SWARTZ, supra note 5, at 43, 74, 78.
42. See BOURDIEU, supra note 12, at 115.
43. See id.
44. See id. at 114.
45. See SWARTZ, supra note 5, at 39 ("[Bourdieu] accepts from historical materialism the primacy of class conflict and material interests as fundamental pillars of social inequality in modern societies.").
46. See Wacquant, supra note 9, at 18 & n.33.
47. See BOUEDIEU, supra note 4, at 164-65. The concept of objectification, which Bourdieu sometimes referred to as misrecognition, has been analogized to the Marxist concept of false consciousness.
48. See SWARTZ, supra note 5, at 39.
49. See BOURDIEU, supra note 4, at 82, 190-91.
50. See id. at 190-92.
51. See id. at 182.
52. Id. at 183.
53. See id. at 183-84.
54. See id. at 179, 190-92.
55. In the Kabylia societies that Bourdieu studied, gifts did not have as much economic value as symbolic value. See id. at 192-93. "[A] present in which what counts is not so much what you give as the way you give it⋯."
56. Id.
57. See id. at 182.
58. Such a question draws upon the implicit assumption within law and economics theory, that outcomes are a product of actors making rational choices in order to maximize profits and utility. See, e.g., Russell B. Korobkin & Thomas S. Ulen, Law and Behavioral Science: Removing the Rationality Assumption from Law and Economics, 88 CAL. L. REV. 1051, 1055 (2000) (explaining the concept of rational choice within the law and economics theory). The idea within liberal individualism that "individuals exist separate from and prior to their social environment and have the ability to choose their values and ends" is another premise that underlies rational choice theory. Susan D. Carle, Theorizing Agency, 55 AM. U. L. REV. 307, 325 (2005).
59. See BOURDIEU, supra note 4, at 191-92.
60. See id. at 164-65;
61. SWARTZ, supra note 5, at 39.
62. See BOURDIEU, supra note 4, at 77 (explaining that the habitus causes persons to believe they are choosing a course of action even where such outcomes are inevitable). For a description of how habitus operates to produce a sense of choice in attorneys, see Dinovitzer & Garth, supra note 2, at 3 (explaining that individual "choices and expectations that reproduce patterns of stratification, so long as we recall that the 'dispositions that incline them toward this complicity are themselves the effect, embodied, of domination"') (citation omitted).
63. See David Gartman, Culture as Class Symbolization or Mass Reification? A Critique of Bourdieu's Distinction, 97 AM. J. SOC. 421, 422 (1991).
64. See, e.g., Carle, supra note 41, at 370-71 (explaining the view that Bourdieu's theory does allow for some agenic control). Bourdieu himself argued that the habitus concept has some room for agency, since in some instances, "[t]he lines of action suggested by habitus may very well be accompanied by a strategic calculation of costs and benefits." Pierre Bourdieu & Loïc J.D. Wacquant, The Purpose of Reflexive Sociology (The Chicago Workshop), in AN INVITATION TO REFLEXIVE SOCIOLOGY, supra note 9, at 61, 131. Though Bourdieu denied that he engaged in structural determinism, he did not develop any detail of how agency is practiced in the habitus model.
65. See, e.g., Pierre Bourdieu, Forms of Capital, in THE SOCIOLOGY OF ECONOMIC LIFE 96, 98-99 (Mark Granovetter & Richard Swedberg eds., 2d ed. 2001).
66. See Bourdieu & Wacquant, supra note 46, at 124-25 (explaining that the attributes of a rational choice actor "can only be acquired under definite social and economic conditions").
67. See infra Part II.
68. BOURDIEU, supra note 4, at 189-90.
69. See id. at 188;
70. Bourdieu, supra note 18.
71. Bourdieu, supra note 18, at 831.
72. Id. at 850.
73. See id. at 844, 848.
74. See generally id. at 839-50.
75. Bourdieu based his theories on the ethnographic research conducted on French secondary and post-secondary education. However, he recognized that his theories would apply to American secondary and post-secondary schools, which are stratified into tiers, much like French schools. See BOURDIEU & PASSERON, supra note 6, at xi.
76. Bourdieu defined "arbitrary" as something that "cannot be deduced from a universal principle, whether physical, biological or spiritual."
77. Id. at 8. That groups are organized one way over another is arbitrary when you look at the way that groups are organized in the "sum total of present or past cultures or, by imaginary variation, to the universe of possible cultures."
78. Id.
79. See id. at 5-11.
80. See id. at 27.
81. See id. at 31-35.
82. See id. at 20-21, 167.
83. See id. at 152-53.
84. See id. at 123-26.
85. See id. at 26, 60.
86. See id. at 123-26.
87. See id. at 41-42.
88. Id. at 118;
89. See id. at 116-17, 123-26.
90. See id. at 11-15.
91. Id. at 118;
92. See id. at 158-59.
93. Id. at 73.
94. Id. at 163-64.
95. Id. at 119, 162;
96. See id. at 130.
97. Id. at 130.
98. See id. at 162.
99. See id. at 153-59, 167.
100. See id. at 158-59.
101. See id. at 158-59.
102. See id. at 165.
103. See id. at 4-19, 208-10.
104. See also Bourdieu & Champagne, supra note 17, at 421.
105. See BOURDIEU, supra note 12, at 133.
106. See also William C. Kidder, The Bar Examination and the Dream Deferred: A Critical Analysis of the MBE, Social Closure, and Racial and Ethnic Stratification, 29 L. & Soc. INQUIRY 547, 548-49 (2004) (describing Bourdieu as a social closure theorist).
107. See BOURDIEU, supra note 12, at 133.
108. See BOURDIEU & PASSERON, supra note 6, at 4-19, 208-10.
109. See id. at 167.
110. See Bourdieu & Champagne, supra note 17, at 423-25.
111. See id.
112. See id.
113. See Weininger, supra note 15, at 92.
114. See BOURDIEU, supra note 12, at 167-77.
115. See id. at 174-75.
116. See id.
117. See id. at 72.
118. See id. at 77.
119. The bodily experience may be "as profoundly unconscious as the quiet caress of beige carpets or the thin clamminess of tattered, garish linoleum, the harsh smell of bleach or perfumes as imperceptible as a negative scent."
120. Id.
121. See id. at 176.
122. See id.
123. See id. at 177.
124. Id. at 249.
125. Id. at 71.
126. See id. at 252-53.
127. Id. at 252.
128. See id. at 253.
129. See Wacquant, supra note 9, at 14;
130. Weininger, supra note 15, at 117-18.
131. Wacquant, supra note 9, at 14.
132. See BOURDIEU & PASSERON, supra note 6, at 12.
133. See Wacquant, supra note 9, at 7-9.
134. See BOURDIEU & PASSERON, supra note 6, at 12.
135. See id.
136. Robert Con Davis, A Manifesto for Oppositional Pedagogy: Freire, Bourdieu, Merod and Graff, in REORIENTATIONS: CRITICAL THEORIES AND PEDAGOGIES 249 (Bruce Henricksen & Thaïs E. Morgan eds., 1990).
137. See BOURDIEU, supra note 4, at 188-89.
138. See id.
139. See Weininger, supra note 15, at 117-18. Bourdieu argued that sociologists must be willing to critique their own culture.
140. Id. The same idea can be applied to educators.
141. See Wacquant, supra note 9, at 7-9.
142. Id. at 9.
143. Id. at 23.
144. See id. at 23-24.
145. Id. at 24 (citation omitted).
146. See BOURDIEU & PASSERON, supra note 6, at 165.
147. See infra Part VI.
148. See ELIZABETH MEETZ, THE LANGUAGE OF LAW SCHOOL: LEARNING TO 'THINK LIKE A LAWYER" 4-6, 212-14 (2007) (explaining the process by which the law employs abstract and formalistic legal reasoning, which emphasizes procedure and precedent, at the expense of social context and moral issues);
149. supra notes 4-20 and accompanying text (explaining Bourdieu's theory of how the law emphasizes neutrality and objectivity in order to instill public faith in the system, a process that tends to obscure how legal outcomes often favor dominant groups).
150. ROBERT GRANFIELD, MAKING ELITE LAWYERS: VISIONS OF LAW AT HARVARD AND BEYOND 26-27 (1992).
151. See JEROLD S. AUERBACH, UNEQUAL JUSTICE: LAWYERS AND SOCIAL CHANGE IN MODERN AMERICA 102-24 (1976). While Robert Stevens takes a more measured approach to legal education history than Auerbach's indignant view, both authors agree that xenophobia and class-based fear played a large role in these exclusionary practices.
152. See also RANDALL COLLINS, THE CREDENTIAL SOCIETY: AN HISTORICAL SOCIOLOGY OF EDUCATION AND STRATIFICATION 148-59 (1979);
153. ROBERT STEVENS, LAW SCHOOL LEGAL EDUCATION IN AMERICA from the 1850s to the 1980s 99-101 (1983).
154. See COLLINS, supra note 120, at 149-50. A slight exception to this rule would be the appearance of a few elite proprietary law schools during this period, such as the Litchfield School.
155. See STEVENS, supra note 120, at 3, 23.
156. See STEVENS, supra note 120, at 20.
157. The University of Georgia, in announcing the establishment of a law school marketed themselves as follows: [I]t is not those only who intend to devote themselves to the law, that we invite to attend our school. There is in our State a large number of young men who intend to devote themselves to the honorable employment of cultivating the estates they inherit from their fathers. To them a knowledge of the general principles of law is of inestimable value.
158. Id. at 21 (quoting Announcement, Univ. of Ga. Law Dep't. (June 1, 1859)).
159. For instance, at a Yale faculty meeting in 1923, it was proposed that the school not use grades as a basis for admission because doing so would allow admission of foreign students rather than students of "old American" stock.
160. Id. at 101.
161. See id. at 74.
162. See COLLINS, supra note 120, at 155;
163. GRANFIELD, supra note 120, at 33;
164. STEVENS, supra note 120, at 75.
165. See AUERBACH, supra note 120, at 88;
166. STEVENS, supra note 120, at 75;
167. JOSEPH T. TINNELLY, PART-TIME LEGAL EDUCATION 5, 12 (1957).
168. The adjective "white shoe" derives from the "white buck shoes that were a fashion requirement within elite social organizations in the 1950s." Investopedia Dictionary, http://www.investopedia.com/terms/w/ whiteshoe.asp (last visited Oct. 11, 2008). Historically, the term "white-shoe" conveyed class envy and a gentle ridicule of the educated effete. The wealthy could afford special shoes for boating, tennis, and other genteel pursuits, and in the summer they wore white bucks - perhaps with a bow tie and a seersucker suit - to the exclusive Wall Street firms where they worked. Elizabeth Chambliss, The Shoe Still Fits: The White Buck Is Gone From Elite Law Firms, But The Snobbery It Represented Lives On, 4 LEGAL AFF. 18 (2005).
169. See AUERBACH, supra note 120, at 24, 26-27. Apparently, John Foster Dulles was rejected from a job at Sullivan & Cromwell because his law degree, from George Washington University, was not acceptable.
170. Id. at 25-26. Even a successful Jewish graduate of Harvard or Columbia would not be accepted as an associate at the emerging white shoe firms, which refused to hire non-WASP graduates of the elite schools.
171. Id. at 25-27.
172. See id. at 5, 62;
173. STEVENS, supra note 120, at 92.
174. See AUERBACH, supra note 120, at 41-42;
175. TINNELLY, supra note 127, at 12. In her historical accounts of class issues within turn of the century legal institutions, Susan Carle described a few of the "ethical" complaints leveled against immigrant and working class attorneys. Susan D. Carle, Lawyers' Duty to Do Justice: A New Look at the History of the 1908 Canons, 24 LAW & SOC. INQUIRY 1, 8 (1999) [hereinafter Carle, Justice] (quoting an ABA committee report which bemoaned "the shyster, the barratrously inclined, the ambulance chaser, the member of the Bar with a system of runners, [who] pursue their nefarious methods with no check save the rope of sand of moral suasion");
176. Susan D. Carle, How Should We Theorize Class Interests in Thinking About Professional Regulation?: The Early NAACP as a Case Example, 12 CORNELL J.L. & PUB. POL'Y 571, 584 (2004) [hereinafter Carle, Class Interests]. Here Carle quotes one ethicist who stated that "the ambitious and intellectual capacity of Oriental immigrants, with no apparent conception of English or Teutonic ideals."
177. Id. (quoting Charles A. Boston, A Code of Legal Ethics, in 20 THE GREEN BAG 224, 228 (Sydney R. Wrightington ed., 1908)).
178. AUERBACH, supra note 120, at 48-49 (citing Isidor J. Kresel, Ambulance Chasing, Its Evils and Remedies Therefor, in 52 NEW YORK STATE BAR ASSOCIATION: PROCEEDINGS OF THE FIFTY-SECOND ANNUAL MEETING 323, 337 (1929)). This concern over fitness for the practice of law ultimately led to the creation of character and fitness requirements for state bar applicants.
179. See id. The character examination would "eliminate those who lacked proper antecedents, home environment, education, and social contacts."
180. Id. at 49.
181. See id. at 26.
182. See id. at 48-49. A leading lawyer characterized the contingency fee system as "the great blot on the history of the American bar" because the lure of money encouraged "undesirable persons" to enter the profession.
183. Id. at 48 (quoting REGINALD HEBER SMITH, JUSTICE AND THE POOR 86 (1919)).
184. See id. at 41.
185. Id.
186. See id. The ideal of the passive, virtuous attorney was ultimately canonized in the ABA's Code of Professional Conduct, which outlawed attorney advertising and direct solicitation of clients.
187. Id. at 42-43. Susan Carle has written a detailed historical account that seeks to reconcile class issues with the adoption of the first Code of Professional conduct, in 1908.
188. See, e.g., Carle, Justice, supra note 131. Carle studied the issue again, in her study of class issues within the NAACP.
189. See Carle, Class Interests, supra note 131, at 575-76. Professor Carle agrees, in part, with Auerbach's position that elite attorneys drafted the Code of Professional Conduct in response to nativist fears and in an effort to maintain their class privileges.
190. See id. at 584-85. But ultimately, she points to historical documents showing that the debates surrounding the Code of Professional Responsibility were more nuanced and full-bodied than the overarching class theory that Auerbach posited.
191. See id. at 584-90.
192. See COLLINS, supra note 120, at 152-53;
193. STEVENS, supra note 120, at 92-103. The project of raising education standards for admission to the bar was carried out in part by the nation's first local bar associations, which were country-club like social organizations, formed for the purpose for drawing together the best elements of the profession.
194. See AUERBACH, supra note 120, at 62-63.
195. The American Bar Association was founded with the same ideals in mind. ERWIN N. GRISWOLD, LAW AND LAWYERS IN THE UNITED STATES 23 (1965) ("[The ABA's] objectives were chiefly social, and it was a rather exclusive organization, open only to those who were regarded as leaders of the bar in their communities.").
196. See also Amy R. Mashburn, Professionalism As Class Ideology: Civility Codes and Bar Hierarchy, 28 VAL. U. L. REV. 657, 669-70 (1997).
197. See AUERBACH, supra note 120, at 97-101;
198. COLLINS, supra note 120, at 155;
199. TINNELLY, supra note 127, at 8-11.
200. See AUERBACH, supra note 120, at 99-101. Auberbach points out that the professionalism arguments of this time period were thinly veiled antisemitic and nativist rants.
201. Id. at 99.
202. See STEVENS, supra note 120, at 113, 114-15 (quoting JOSEF REDLICH, THE COMMON LAW AND THE CASE METHOD IN AMERICAN UNIVERSITY LAW SCHOOLS 70 (1914)). Another force in the conflict between the night schools and the university schools was the role that relatively new university law professors played to establish their professional identity and control within the education marketplace.
203. See generally John Henry Schlegel, Between the Harvard Founders and the American Legal Realists: The Professionalization of the American Law Professor, 35 J. LEGAL EDUC. 311 (1985). Joining forces with the ABA and AALS to advocate for higher standards was a way for Langdellian university law professors to drive out the practitioner professor incumbents.
204. See id. at 321-22.
205. See STEVENS, supra note 120, at 115;
206. Warren A. Seavey, The Association of American Law Schools in Retrospect ⋯ 3 J. LEGAL EDUC. 153, 153-67 (1950).
207. See Seavey, supra note 142, at 162-63, 166-67.
208. See STEVENS, supra note 120, at 177-78.
209. See, e.g., David Brooks, Bobos in Paradise, in SOCIAL STRATIFICATION: CLASS, RACE, and GENDER IN SOCIOLOGICAL PERSPECTIVE 304-10 (David B. Grusky ed., 2007) (celebrating the changes in the New York Times Weddings and Celebrations pages from the 1950s to the present, wherein coverage moved from limited reports of WASP weddings to more diverse coverage of highly credentialed nuptials).
210. There is a strong relationship, of course, to socio-economic disadvantage and race. Years of violence and apartheid have created severe socio-economic disadvantages that obstruct the ability of many poor African Americans to succeed in the education game. See, e.g., William Julius Wilson, The Sources of Poverty and the Underclass, in SOCIAL STRATIFICATION, supra note 145, at 340-49;
211. Douglas S. Massey & Nancy A. Denton, American Apartheid: Segregation and the Making of the Underclass, in SOCIAL STRATIFICATION, supra note 145, at 349-59. The segregation and discrimination continues to occur, but dominators express their discriminatory intent in terms of class, not race.
212. See Wilson, supra, at 346-47. For instance, in one study, employers (both black and white) expressed negative feelings about employing inner-city blacks because of perceptions that the applicants would not have proper language skills.
213. See id. One of the major problems of a class analysis that does not account for race is that a color-blind class analysis ignores inquiry into the violent, discriminatory roots of class disadvantage. Because it is not illegal to discriminate against someone based on their class, blame is diffused. Moreover, if intentional discrimination or segregation is still occurring, it is easily masked in terms of class rather than color.
214. See GRANFIELD, supra note 120, at 123;
215. PHILLIP C. KISSAM, THE DISCIPLINE OF LAW SCHOOLS 19-23 (2003).
216. Richard Buckingham et al., Law School Rankings, Faculty Scholarship, and Associate Deans for Faculty Research 7 (Suffolk Univ. Law Sch. Research Paper, Working Paper No. 07-23, 2007), available at http://ssrn.com/ absract=965032 (citing Paul D. Carrington, On Ranking: A Response to Mitchell Berger, 53 J. LEGAL EDUC. 301, 301 (2003)).
217. Schlegel, supra note 141, at 319 (finding that a review of the faculty announcements in that publication reveals a "nascent pecking order" where provincial state law schools - Montana and North Dakota - were at the bottom and Chicago, Michigan, Columbia, and Harvard were at the top).
218. See David C. Yamada, Same Old, Same Old: Law School Rankings and the Affirmation of Hierarchy, 31 SUFFOLK U. L. REV. 249, 251-56 (1997). Although there are other law school rankings systems, the most prominent is the ranking system conducted by the U.S. News and World Report. Id. at 251.
219. See Law Rankings, 2008 EDITION: AMERICA'S BEST GRADUATE SCHOOLS: U.S. NEWS AND WORLD REPORT 44,44-47 (2007).
220. See Jonakait, supra note 3, at 876-77 (citing William D. Henderson & Andrew P. Morriss, Student Quality as Measured by LSAT Scores: Migration Patterns in the U.S. News Rankings Era, 81 IND. L.J. 183, 194 (2006)).
221. When a group of NYU professors were asked, in 1954, to list the top-rated law schools in the country, they named: Harvard, Yale, Columbia, Pennsylvania, Michigan, Stanford, California, Minnesota, Tulane, and Chicago. Yamada, supra note 150, at 250.
222. See Id.
223. See KLSSAM, supra note 147, at 270.
224. See supra note 130 and accompanying text.
225. See, e.g., WILLIAM M. SULLIVAN ET AL., EDUCATING LAWYERS 90 (2007) (explaining that legal academia disincentivizes innovation in teaching because it conflicts with factors [such as scholarship] that contribute to a law school's standings and prestige);
226. Michael Hunter Schwartz, Teaching Law by Design: How Learning Theory and Instructional Design Can Inform and Reform Law Teaching, 38 SAN DIEGO L. REV. 347, 360-61 & n.144 (2001) (citing Editorial, How U.S. News Ranks Graduate Programs, U.S. NEWS & WORLD REPORT, Apr. 10, 2000, at 59). In his influential article on learning theory and legal education, Schwartz explains: "[The] emphasis on scholarship derives from law schools' aspirations for upward mobility within the law school hierarchy. Law schools enhanced their prestige based, in significant part, on faculty publications; teaching skill or effectiveness is not considered in the [U.S. News and World Report] rankings."
227. Id. at 360.
228. See also Jon M. Garon, Take Back The Night: Why An Association of Regional Law Schools Will Return Core Values To Legal Education and Provide An Alternative To Tiered Rankings, 38 U. TOL. L. REV. 517 (2007);
229. Laurel Terry, Taking Kronman and Glendon One Step Further: In Celebration of "Professional Schools," 100 DICK. L. REV. 647-48 (1996).
230. See Garon, supra note 157, at 523.
231. See also Posting of Michael Dorf to Dorf on Law, http://michaeldorf.org/2007/09/did-chemerinsky-dodge-bullet.html (Sept. 16, 2007, 12:01 EST) ("The schools that have made [practical skills training] central to their curriculum, e.g., CUNY, Northeastern, have had some local success, but that has not translated into moving themselves [sic] schools up in the pecking order or getting the innovations widely adopted.").
232. See STEVENS, supra note 120, at 92, 96;
233. Jonakait, supra note 3, at 864-65 (citing HEINZ ETAL., supra note 2). In line with historic trends, corporate law firm work continues to carry a higher level of symbolic status and prestige, whereas personal client representation continues to be marginalized.
234. See HEINZ ET AL., supra note 2, at 81-87 (explaining that the attorneys surveyed for the studies ranked corporate work as having the highest prestige and personal client representation as having the lowest prestige).
235. See DINOVITZER ET AL., supra note 2, at 20 ("The more selective the law school, the more likely it is to educate the children of relative privilege, and the less selective schools are notably more accessible to the less privileged students.");
236. Heinz ET al., supra note 2, at 50 ("[P]ersons with prestigious law degrees ⋯ are more likely to have a privileged socioeconomic background, to have been born into an upper-class or upper-middle-class family, and to have useful social connections.");
237. Dinovitzer & Garth, supra note 2, at 33-35.
238. With respect to how law school attended determines practice area, see David Wilkins et al., Urban Law School Graduates in Large Law Firms, 36 Sw. U. L. REV. 433, 497 (2007) ("Compared to elite graduates, urban graduates are m00000ore likely to work as solo practitioners ⋯ They are also much less likely to work in large firms."). With respect to salary differentials, the median salaries for recent graduates of third-tier and fourth-tier schools was $60,000 and $56,341, respectively, whereas the median salary for graduates from a top ten school was $135,000. Jonakait, supra note 3, at 878 (citing DINOVTTZER ET AL., supra note 2). See also Joyce Sterling et al., The Changing Social Role of Urban Law Schools, 36 Sw. U. L. Rev. 389, 414 (2007) (explaining that data from the After the JD study indicates that graduates from elite law schools make substantially more money than graduates from non-elite schools).
239. Wilkins et al., supra note 161, at 444-45. Graduates of lesser status schools are being hired by the large law firms, but law firms employ a "sliding scale" for credentials.
240. See Id. at 454, 461. As the law school's status decreases, the required academic and extra-curricular credentials (G.P.A., class rank, and law review) increase.
241. See Id.
242. Id. at 502.
243. See also Sterling et al., supra note 161, at 409-10.
244. Wilkins et al., supra note 161, at 458.
245. See Id. at 404-05 ("In general, law schools are comprised of relatively few individuals from highly disadvantaged backgrounds.").
246. See Id. at 409-10.
247. But see ZEMANS & ROSENBLUM, supra note 2, at 95 (finding a statistically significant relationship between the prestige of a law school and a student's social background [measured by the occupation of the father] but not finding a statistically significant relationship between an attorney's social background and the prestige of her law practice and setting).
248. See Wilkins et al., supra note 161, at 497.
249. See Id. at 492.
250. See Id. at 482 (explaining that a graduate from a top law school has a twenty-one percent chance of becoming partner at a large law firm, while a graduate from a non-elite school has an eight percent chance). Another study indicated that in a pool of large law firms, seventy percent of all partners graduated from one of thirteen top schools.
251. Id.
252. Similar to the LSAT, Charles Langdell's casebook method (of which the law school exam is a product) also arose out of the desire to use objective principles to "winnow[] out large numbers of students, allowing only the 'fittest' and the most able (who also happened to be the most affluent and Anglo-Saxon) to survive." Daria Roithmayr, Deconstructing the Distinction Between Bias and Merit, 84 Cal. L. Rev. 1449, 1481 (1997) (citing Stevens, supra note 120, at 55).
253. See AUERBACH, supra note 120, at 27.
254. See Id. at 27, 30.
255. See Id. at 27-28. While the newly emerging corporate law firms used academic merit to make hiring decisions, the process was not a pure meritocracy.
256. Id. For the most part, academically talented black, Jewish, and female law school graduates were excluded from these law firms.
257. Id. at 29-30.
258. While some of the more elite schools have abolished the class-rank system, the lower-status schools continue to employ the system. See, e.g., Anthony Ciolli, The Legal Employment Market: Determinants of Elite Firm Placement and How Law Schools Stack Up, 45 JURIMETRICS J. 413, 433 (2005) (explaining that Yale and University of California-Berkeley follow an honors/pass/fail system that does not utilize traditional class ranks).
259. See Duncan Kennedy, Legal Education and the Reproduction of Hierarchy: A Polemic Against the System 81 (2004);
260. KISSAM supra note 147, at 52;
261. Douglas A. Henderson, Uncivil Procedure: Ranking Law Students Among Their Peers, 27 U. MICH. J.L. REFORM 399, 405-06 (1994) (quoting Steve H. Nickles, Examining and Grading in American Law Schools 30 ARK. L. Rev. 411, 411-12 (1997)).
262. See KISSAM, supra note 147, at 52.
263. See also John M. Conley, Tales of Diversity: Lawyers' Narratives Of Racial Equity in Private Firms, 31 LAW & SOC. INQUIRY 831, 841-42 (2006).
264. See David B. Wilkins, A Systematic Response to Systemic Disadvantage: A Response To Sander, 57 STAN. L. REV. 1915, 1929 n.53 (2005).
265. See, e.g., KLSSAM, supra note 147, at 52-53.
266. In her article "Boalt-ing" Opportunity?: Deconstructing Elite Norms in Law School Admissions, 6 GEO. J. ON POVERTY L. & POL'Y 199, 217 (1999), Abiel Wong explains that when the casebook method was first introduced, students with less formal educations were at a major disadvantage.
267. Id. "Because the case-method was completely removed from any real-life experience, less-advantaged, self-taught individuals were placed at a substantial disadvantage in law schools emphasizing abstract, hypothetical teaching, vis-à-vis wealthier students with more formalized education."
268. Id. Arguably, these disadvantages continue to exist today, where there are major differences in the rigor and quality of education opportunities in America.
269. See also Richard Delgado, Rodrigo's Tenth Chronicle: Merit and Affirmative Action, 83 GEO. L.J. 1711, 1719, 1724-25 (1995) (arguing that merit-based academic success depends on access to cultural and educational capital, which the objective criteria tend to ignore).
270. See Pamela Edwards, The Culture of Success: Improving the Academic Success Opportunities For Multicultural Students in Law School, 31 NEW ENG. L. REV. 739, 750 (1996) (citing Linda F. Wightman, Women in Legal Education: A Comparison of the Law School Performance and Law School Experiences of Women and Men, LSAC RESEARCH REPORT SERIES (1996)). The evidence for this thesis also exists anecdotally and by analogy to the experiences of students studying for the bar exam.
271. See, e.g., Kristin Booth Glen, Thinking Out of the Bar Exam Box: A Proposal to "MacCrate" Entry to the Profession, 23
272. PACE L. REV. 343, 495 n.657 (2003) [hereinafter Glen, Thinking Out of the Bar Exam Box];
273. Kristin Booth Glen, When and Where We Enter: Rethinking Admission to the Legal Profession, 102
274. COLUM. L. REV. 1696, 1701 nn.13-14 (2002) [hereinafter Glen, When and Where We Enter].
275. See Nancy H. Kaufman, A Survey of Law School Grading Practices, 44 J. LEGAL EDUC. 415, 416 (1994).
276. See, e.g., Bourdieu, supra note 47, at 96, 98-99 (explaining within the context of education the role that cultural capital plays in the cultivation of talent and academic achievement).
277. See Bourdieu & Champagne, supra note 17, at 423-25.
278. See Amir Efrati, Hard Case: Job Market Wanes for U.S. Lawyers, WALL ST. J., Sept. 24, 2007, at A1, available at http://online.wsj.com/ public/article-print/SB119040786780835602.html; Barbara Ehrenreich, CEOs vs. Slaves, THE NATION, May 29, 2007, http://www.thenation. com/doc/20070611/ehrenreich.
279. See, e.g., Black Sheep of Philly Contract Attorneys, http://blacksheepcontractatty.blogspot.com (last visited Oct. 11, 2008);
280. My Attorney Blog, The Life of a Contract Attorney in Temp Town, Washington D.C., http://www.myattorneyblog.com (last visited Oct. 11, 2008);
281. Temporary Attorney: The Sweatshop Edition, http://temporaryattorney. blogspot.com (last visited Oct. 11, 2008).
282. See also Julie Triedman, Slaves of New York, THE AM. LAW., Mar. 2006, at 19, 19. Workers must obtain permission to use the bathroom and are not allowed to leave the premises to, for instance, walk outside to get a cup of coffee, unless it is during the forty-five minute lunch time allocation.
283. See Id.
284. See also Posting of helpme123 to Temporary Attorney: The Sweatshop Edition, http://temporaryattorney.blogspot.com (Jan. 28, 2008, 00:16 EST) [hereinafter Posting of helpme123] (detailing the work requirements for a document review job at a major New York law firm).
285. See Posting of helpme123 to Temporary Attorney: The Sweatshop Edition, http://temporaryattorney.blogspot.com (July 14, 2008, 2:20 EST) (describing the smell of overflowing bathrooms in the basement document review workspace as that of "an open sewer");
286. Triedman, supra note 185, at 19 (describing temporary attorneys working twelve hour days in "windowless basement room[s] littered with dead cockroaches" with "six or seven" blocked exits).
287. See Id.
288. See also Posting of helpme123, supra note 185.
289. See Arin Greenwood, Attorney at Blah, WASH. CITY PAPER, Nov. 19, 2007, available at http://www. washingtoncitypaper.com/display.php?id=34054.
290. See Id.;
291. Efrati, supra note 184, at A1, A11.
292. See Daniel Brook, Are Your Lawyers in New York or New Delhi, LEGAL AFF., May/June 2005, http://www.legalaffairs. org/issues/May-June-2005/scene-brook-mayjun05.msp; Arin Greenwood, Inside India's Hottest Legal Outsourcing Firm: Manhattan Work at Mumbai Prices, 93 A.B.A. L.J. 36, 40 (2007), http://abajournal.com/magazine/manhattan-work-at- mumbai-prices/.
293. For an in-depth look at globalization, outsourcing, and its effect on the legal profession, see Jayanth K. Krishnan, Outsourcing and the Globalizing Legal Profession, 48 WM. & MARY L. REV. 2189 (2007).
294. See COLLINS, supra note 120, at 153-54.
295. See, e.g., Christian C. Day, Law Schools Can Solve the "Bar Pass Problem" - "Do The Work!", 40 CAL. W. L. REV. 321, 335 (2004).
296. Erwin N. Griswold, In Praise of Bar Examinations, 60 A.B.A. J. 81, 82-83 (1974) (citing BENJAMIN N. CARDOZO, LAW AND LITERATURE AND OTHER ESSAYS AND ADDRESSES 160-62 (1931)).
297. COLLINS, supra note 120, at 153-56.
298. See Id. at 156.
299. Id. But see Daniel R. Hansen, Do We Need The Bar Examination? A Critical Evaluation of the Justifications For the Bar Examination and Proposed Alternatives, 45 CASE W. RES. L. REV. 1191, 1200 (1995) (citing STEVENS, supra note 120, at 21) (Hansen argues that the written bar examination arose to replace oral examination procedures; there was no specific intent to exclude students from less-elite law schools).
300. See supra text accompanying notes 80-86. In addition to the bar examination, the evolution of modern fitness standards might also be seen as a status closure mechanism designed to limit the supply of attorneys in order to halt salary erosion.
301. See Kidder, supra note 80, at 548-49, 555. Class rank may also function as a status closure device because it reserves access to the legal profession's most valuable economic benefits - the exorbitant salaries paid by the elite law firms - to those students who meet the rigid credential requirement of a high class rank.
302. See Id. at 547-63.
303. See Id. at 552, 556-63.
304. See Id. at 581-82. Regardless of the reasons for the higher standards, Professor Kidder argues that those higher standards have a disparate impact and create unfair results for bar applicants of color.
305. Id. at 581-82.
306. See Jayne W. Barnard & Mark Greenspan, Incremental Bar Admission: Lessons From the Medical Profession, 53 J. LEGAL EDUC. 340, 355 (2003) (explaining that the understanding for law students was that licensure was merely the first step toward professional competence; professional competence came later, after training and mentoring from law firm partners and senior associates bridged the gap between licensure and practice competence).
307. In recent years, the large law firms are allocating less resources and time to mentoring young associate attorneys. See Id.
308. See, e.g., a.b.a., LEGAL EDUCATION AND PPROFESSIONAL DEVELOPMENT - an EDUCATIONAL CONTINUUM, REPORT OF THE TASK FORCE ON LAW SCHOOLS AND THE PROFESSION: NARROWING THE GAP 277-78 (1992) [hereinafter The MacCrate Report] (explaining that the traditional bar examination does not assess many of the fundamental lawyering skills necessary for the successful practice of law);
309. Barnard & Greenspan, supra note 203, at 354-55 (arguing that although licensure suggests that new lawyers are fit to open an office and begin practicing law, the reality is that solo and small-firm lawyers are ill-equipped to handle that responsibility).
310. See The MacCrate Report, supra note 205, at 278 ("[T]he examination influences law schools, in developing their curricula, to overemphasize courses in the substantive areas covered by the examination at the expense of courses in the area of lawyering skills.").
311. See also infra Part VI (discussing how law teachers are often constrained to present the law conservatively, in a form that will be rewarded by the bar examiners).
312. See Glen, When and Where We Enter, supra note 180, at 1701 nn.13-14 (citing LINDA F. WIGHTMAN, LSAC NATIONAL LONGITUDINAL BAR PASSAGE STUDY 37-38 (LSAC Research Rep. Series 1998));
313. Hansen, supra note 197, at 1206 (positing that bar passage rates correlate to LSAT scores).
314. In fact, this is the position of the National Council of Bar Examiners (NCBE) in explaining disparities in bar performance between white and ethnic applicants.
315. See also STEPHEN P. KLEIN, SUMMARY OF RESEARCH ON the MULTISTATE BAR EXAMINATION 38 (GANSK 1993);
316. Kidder, supra note 80, at 565 (citing Stephen P. Klein, Bar Examinations: Ignoring the Thermometer Does Not Change the Temperature, N.Y. St. B.J. 28-33 (Oct. 1989)). Professor Kidder's view is that the NCBE has overly de-emphasized the disparate impact that the bar examination has had on persons of color.
317. See Glen, Thinking Out of the Bar Exam Box, supra note 180, at 494;
318. Glen, When and Where We Enter, supra note 180, at 1704.
319. See Glen, Thinking Out of the Bar Exam Box, supra note 180, at 494.
320. See Id. at 495 n.57 (At CUNY, we have often surmised that paying for the bar review course ⋯ and supplying childcare and similar substitutes for our graduates' familial work and community responsibilities would be the most effective strategy for raising bar pass rates. Our own lack of resources has, however, made this hypothesis impossible to test.);
321. Glen, When and Where We Enter, supra note 180, at 1703-04 (explaining anecdotal evidence that graduates of CUNY Law School who must work fulltime, take care of children, and study for the bar may have a higher likelihood of failing the bar exam than students who have no child-care responsibilities and are able to study full-time for the bar exam).
322. In describing the exclusionary history and effect of the bar examination, I am not proposing here that states should eradicate the bar examination altogether. Rather, my hope would be that state admissions authorities would embrace alternative methods of evaluation, which take a more holistic approach and which genuinely seek to measure and assess an applicant's ability to practice law, as it is actually practiced and experienced. See, e.g., Barnard & Greenspan, supra note 203, at 355 (proposing a bar admissions process, focusing on practice and doctrine, that would be administered in pieces, throughout law school);
323. Kristin Booth Glen, In Defense of the PSABE, and Other "Alternative" Thoughts, 20 GA. ST. U. L. REV. 1029, 1031 (2004) (proposing a Public Service Bar Alternative Exam that would be a "true performance test" where applicants would have to demonstrate minimum competence in core lawyering skills over a ten to twelve week period of time);
324. Hansen, supra note 197, at 1231-35 (proposing bar admission requirements that would include an "intensive supervised research project" and a mandatory clerkship).
325. See BOURDIEU & PASSERON, supra note 6, at 167.
326. The myth of merit, as it appears in educational institutions, originated in the work of Max Weber. See MAX WEBER, 2 ECONOMY AND SOCIETY 998-1001 (Univ. Cal. Press 1978).
327. See Wacquant, supra note 9, at 18 & n.33.
328. See BOURDIEU, supra note 4, at 164-65.
329. For instance, reminiscing about his days at Harvard Law School between 1903-1906, Felix Frankfurter celebrated Harvard's "democratic" class-blind and color-blind academic ranking system, without taking into account that at the time, Harvard's admissions requirement of a college degree barred ninety-six percent of the American population from the chance to excel academically.
330. See AUERBACH, supra note 120, at 28-29 (citing FELIX FRANKFURTER, FELIX FRANKFURTER REMINISCES 26-27 (Reynal & Co. 1960)). Frankfurter also glossed over the fact that even if a Jewish student (like himself) excelled academically, the chances were slim that the student would be able to use his credentials to get in the door at most Wall Street law firms, which refused to hire Jews.
331. See Id. Although law schools no longer make exclusionary admissions decisions based on race, sex, or class, modern law school admissions criteria and ranking mechanisms have the same limiting effect.
332. There is empirical evidence that applicants from lower socio-economic backgrounds do not score as well on the LSAT as applicants from higher socioeconomic backgrounds. See Linda F. Wightman, The Threat to Diversity in Legal Education: An Empirical Analysis of the Consequences of Abandoning Race as a Factor in Law School Admission Decisions, 72 N.Y.U. L. REV. 1, 42-43 (1997). Professor Wightman posits that the difference in performance might be related to "differences in educational opportunity."
333. Id. at 42.
334. See Kirsten Edwards, Found! The Lost Lawyer, 70 FORDHAM L. REV. 37, 45 (2001) (enumerating the socio-economic factors that correlate with academic achievement in high school and college, which lead to acceptance at an elite law school);
335. Wong, supra note 179, at 232-33 (positing that higher LSAT scores can be had by those who can afford to pay for commercial LSAT preparation courses).
336. See BOURDIEU & PASSERON, supra note 6, at 172-173 n.22;
337. Bourdieu & Champagne, supra note 17, at 424.
338. See BOURDIEU & PASSERON, supra note 6, at 210.
339. See Id.;
340. Bourdieu & Champagne, supra note 17, at 421.
341. BOURDIEU & PASSERON, supra note 6, at 167.
342. See BOURDIEU, supra note 4, at 192.
343. See Id.
344. See MERTZ, supra note 119. Professor Mertz's book contains the results of a linguistic study on the socializing effect of legal language. A central theme that emerges from Professor Mertz's study is that the common law method of legal analysis used in the United States, which students learn in law school, requires mastery of a core legal language.
345. Id. at 4. When used to solve legal problems, this core language privileges technical form and levels of legal authority over social contexts and moral issues.
346. Id. at 4-6, 212-14. The core legal language taught at American law schools also tends to situate legal actors equally and erase and ignore social differences.
347. Id. Although the dominant method of legal analysis has been used to achieve liberating results (such as the case with the 1950s and 1960s Civil Rights litigations), it also causes some viewpoints to become invisible and others to dominate.
348. Id. at 212-14.
349. See Id. at 4-6, 212-14.
350. Id. at 5.
351. Pointing out the problem is in line with Bourdieu's belief that academics should critique and study the educational institutions they are a part of in order to uncover and demystify the invisible ways that our institutions operate to maintain the structures of our society.
352. See, e.g., Wacquant, supra note 9, at 14;
353. Weininger, supra note 15, at 117-18.
354. See, e.g., KENNEDY, supra note 175, at 54.
355. See also GRANFIELD, supra note 120, at 109-142;
356. Mary O'Brien & Sheila McIntyre, Patriarchal Hegemony and Legal Education, 2 CAN. J. WOMEN & L. 69, 79 (1986).
357. The famous De Tocqueville quote speaks for itself: In America there are no nobles or literary men, and the people are apt to mistrust the wealthy; lawyers consequently form the highest political class and the most cultivated portion of society⋯. If I were asked where I place the American aristocracy, I should reply without hesitation that it is not among the rich, who are united by no common tie, but that it occupies the judicial bench and the bar. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 288 (1954).
358. See supra notes 80-81 and accompanying text.
359. The analogy here is to the concept that groups reinforce their image displaying purchases and behaviors that create a bodily experience. See BOURDIEU, supra note 12, at 77.
360. See ELLEN JOAN POLLOCK, TURKS AND BRAHMINS: UPHEAVAL AT MILBANK, TWEED: WALL STREET'S GENTLEMEN TAKE off THEIR GLOVES 45-46 (1990) (describing how the law firm's culture of aristocratic manners and styles were passed down from generation to generation);
361. Chambliss, supra note 128, at 18.
362. See Bourdieu, supra note 18, at 830 (explaining how the law uses "ascetic and simultaneously aristocratic attitudes" in order to transform "conflicts of personal interest into rule-bound exchanges of rational arguments between equal individuals").
363. See BOURDIEU, supra note 12, at 174-75, 249.
364. See Id. at 169-77.
365. KENNEDY, supra note 175, at 80. However, I disagree with Professor Kennedy's characterization of the law culture as "middle class."
366. See, e.g., MERTZ, supra note 119, at 21-22 (the teacher's use of language in the law classroom brings students to a "new social identity");
367. Michael Hunter Schwartz, Teaching Law By Design: How Learning Theory and Instructional Design Can Inform and Reform Law Teaching, 38 SAN DIEGO L. REV. 347, 351 (2001) (The theory behind the Socratic method assumes "professor's comments, questions, and corrections ⋯ not only will help the selected student, but will rub off on all the students in the class").
368. GRANFIELD, supra note 120, at 116-18.
369. See also Peter Gabel, Commentary, The Spiritual Foundation of Attachment to Hierarchy, in LEGAL EDUCATION AND THE REPRODUCTION OF HIERARCHY 154, 160 (2004) ("Lower-middle class students learn not to wear an undershirt that shows, and that certain patterns and fabrics in clothes will stigmatize them no matter what their grades.").
370. See K.C. Worden, Overshooting the Target: A Feminist Deconstruction of Legal Education, 34 AM. U. L. REV. 1141, 1148-49 (1985).
371. See also BARBARA EHRENREICH, BAIT AND SWITCH: THE (FUTILE) PURSUIT OF THE AMERICAN DREAM 103-04 (Owl Books 2005) (explaining that acceptable professional business attire should enable one to "pass as a hereditary member of the upper-middle class").
372. See BOURDIEU & PASSERON, supra note 6, at 20-21, 167.
373. See Id. at 130, 162.
374. See, e.g., Delgado, supra note 179, at 1722-23 ([T]he interview, or job test, rewards the candidate who has the greatest store of cultural capital, the one who soaked up cultural knowledge so easily at his father's or mother's knee. The household had the right kind of music and books. The dinner table conversation taught precisely the mannerisms, conversational patterns, and small talk skills that the employer finds comforting, familiar, and reassuring.)
375. See, e.g., supra notes 94-101 and accompanying text.
376. Bell Hooks, in writing about class in the undergraduate context, explains the fear that if non-advantaged students shows any aspect of their vernacular culture in the classroom they will be "placed ⋯ always in the position of [the] interloper." Bell Hooks, Confronting Class in the Classroom, in THE CRITICAL PEDAGOGY READER 142, 145 (Antonia Darder et al. eds., RoutledgeFalmer 2003). Many non-advantaged students experience "psychic turmoil" in trying to negotiate the conflict between what they view as their true selves and the way they must present themselves in elite settings.
377. Id.
378. See BOURDIEU, supra note 12, at 174-75.
379. See Id. at 176-77;
380. BOURDIEU & PASSERON, supra note 6, at 123-26 (although Bourdieu was writing about French citizens in the 1970s, the description also correlates with American perceptions of a cultured or distinguished speaking style).
381. See also NELSON W. ALDRICH, OLD MONEY: THE MYTHOLOGY OF AMERICA'S UPPER CLASS 88 (1996) (describing Theodore Roosevelt's upper-class "cultured" words as "cool and gracious" whereas Huey Long's lower-class speaking style involved shouting and over-gesticulation). Bell Hooks, writing about her undergraduate classroom experiences, explains that [1]oudness, anger, emotional outbursts, and even something as seemingly innocent as unrestrained laughter were deemed unacceptable, vulgar disruptions of classroom social order. These traits were also associated with being a member of the lower classes. If one was not from a privileged class group, adopting a demeanor similar to that of the group could help one to advance. Hooks, supra note 246, at 143.
382. One of the respondents, identified as working-class, in Granfield's study of students at Harvard University stated that if she were from the middle class, she would not have lapses of grammatical errors. GRANFIELD, supra note 120, at 113.
383. See, e.g., MERTZ, supra note 119, at 4-6, 212-14 (explaining the process by which the law employs abstract and formalistic legal reasoning, which emphasizes procedure and precedent, at the expense of social context and moral issues);
384. Bourdieu, supra note 18, at 819-20 (explaining how the law receives its force from "syntactic traits" that emphasize the passive and impersonal, establishing impartiality and objectivity).
385. See BOURDIEU & PASSERON, supra note 6, at 21, 31-35;
386. Bourdieu & Champagne, supra note 17, at 424;
387. Wacquant, supra note 9, at 24.
388. See, e.g., Wacquant, supra note 9, at 14;
389. Weininger, supra note 15, at 117-18.
390. See Weininger, supra note 15, at 118 (citation omitted).
391. See Garon, supra note 157, at 519-26 (Dean Garon explains how the U.S. News and World Report grants high status to those institutions that engage in "elitist" scholarship while devaluing schools that try to introduce alternative student-oriented models of legal education);
392. Terry, supra note 157, at 667-75 (Professor Terry argues that instead of holding all law schools to the standard of research institutions, law schools should be ranked on two different tracks - research institutions and teaching institutions).
393. See KISSAM, supra note 147, at 10-11.
394. See Garon, supra note 157, at 524 (Dean Garon argues that faculty who pursue "elitist standards of scholarship" in their own self interest and their institutional self-interest, do so at the expense of quality teaching and student learning).
395. See, e.g., Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 BUFF. L. REV. 205 (1979);
396. George S. Swan, The Thirteenth Amendment Dimensions of Roe v. Wade, 4 J. Juv. L. 1 (1980) (analogizing the unborn to slaves).
397. This view is supported by Professor Leiter's increasingly popular weblog rankings, which rank law schools based on faculty reputation, scholarly output, and scholarly impact. See, e.g., Bryan Leiter, Bryan Leiter's Law School Rankings, http://www.leiterrankings.com/faculty/index.shtml (last visited Oct. 11, 2008). Despite any criticisms that might be leveled against Leiter's system, elite legal scholars of all persuasions are represented in his ranking system.
398. See also KISSAM, supra note 147, at 127, 162, 184. Kissam's thesis is that radical reform-oriented legal theories do not succeed in changing the structure of legal education because institutional structures mitigate the power of these theories "by fragmenting, marginalizing and infiltrating them, by enfolding them within itself and by ensuring that reforms serve rather than subvert the discipline's values and practices."
399. Id. at 126. Implicit in Kissam's critique is that reform-based legal theories lack teeth, in part, because radical theorists are corrupted when they use their work to elevate their own institutional status.
400. See Id.
401. See Garon, supra note 157, at 524;
402. Terry, supra note 157, at 670-71.
403. See Terry, supra note 157, at 670-71.
404. See also Posting of Michael Dorf to Dorf on Law, http://michaeldorf.org/2007/09/did-chemerinsky-dodge-bullet.html (Sept. 16, 2007, 00:01 EST) ("The schools that have made [practical skills training] central to their curriculum, e.g., CUNY, Northeastern, have had some local success, but that has not translated into moving themselves schools [sic] up in the pecking order or getting the innovations widely adopted.").
405. As discussed, supra, the pejorative designation of a "trade school" dates back to the turn of the century and was used to disparage students at part-time night schools. STEVENS, supra note 120, at 113, 114-15. The appellation survives in the present and is used to insult low-tier schools that emphasize teaching and skills training.
406. See Terry, supra note 157, at 668-69 nn.61-62.
407. See KISSAM, supra note 147, at 11 (explaining that the dominant model of legal education in the United States is designed to train new associates for corporate law firm jobs, but fails to even meet this limited goal). Professor Kissam further explains that the entrenched form of legal training "subordinates valuable teaching methods that address a broader set of legal skills and different models of lawyers that are important to sectors of the legal profession such as the representation of personal clients, public agency work and small general practice law firms."
408. Id.
409. For the conservative view of what scholarship should be, see Harry Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 MICH. L. REV. 34 (1992). In this article, Judge Edwards argues that "many law schools - especially the so-called 'elite' ones - have abandoned their proper place, by emphasizing abstract theory at the expense of practical scholarship and pedagogy.
410. Id. at 34. For the progressive response to Edwards' critique, see Derrick Bell & Erin Edmonds, Students As Teachers, Teachers As Learners, 91 MICH. L. REV. 2025 (1993). In this article, the authors justify what Judge Edwards calls "impractical theory" as helpful for students who "are committed to careers in public service or law reform." Students, they argue, need exposure to non-traditional legal theories so that they can "write briefs that effectively challenge the many injustices that now threaten our society in ways so dire, so dangerous, that few in policymaking positions are willing even to contemplate, much less attempt, much-needed reform."
411. Id. at 2026.
412. Although Judge Edwards does not explicitly say that law schools should prepare students for large law firm practice, his belief that students should master "basic doctrinal skills" reflects the traditional view that a Langdellian legal education, steeped in doctrine, effectively prepares students for large firm practice. Edwards, supra note 263, at 38;
413. see KISSAM, supra note 147, at 11 (arguing that the dominant model of legal education is designed to train "new associates for corporate law firms who are technically adept at productive doctrinal analysis").
414. See, e.g., Bell & Edmonds, supra note 263, at 2026.
415. See AUERBACH, supra note 120, at 82-85 ("[T]he cry for reform, trumpeted by law teachers, enhanced the prerogatives of those who fully accepted the basic contours of the social system and trained young men for success within it.").
416. Posting of Daniel Solove to Legal Affairs Debate Club, http://www.legalaffairs.org/webexclusive/debateclub-2yr0905.msp (Sept. 20, 2005, 12:51 EST).
417. See Id. The contrast between the normative concept of what attorneys will be doing and the realities of a low-status practice becomes especially visible when we look at what may be an emerging underclass of temporary attorneys, some of whom are reportedly required to sign their name in front of a supervisor in order to take a bathroom break.
418. See Triedman, supra note 185, at 13;
419. Posting of helpme123 to Temporary Attorney, supra note 185.
420. See supra text accompanying notes 201-04.
421. See also Jonakait, supra note 3, at 879-80 ("[T]he large-firm preference for elite school graduates continues, and it can be expected to increase further.");
422. David E. Van Zandt, Merit at the Right Tail: Education and Elite Law School Admissions, 64 TEX. L. EEV. 1493, 1493-94 (1996) (reviewing ROBERT KLITGAARD, CHOOSING ELITES (1985)).
423. See, e.g., Georgetown Law School, Office of Public Interest and Community Service, Fellowship Planning Timeline, http://www.law.georgetown.edu/ opics/fellowships/timeline.html (last visited Oct. 11, 2008) ("Many students are surprised to learn that, despite the huge disparity in salaries, public interest jobs are harder to obtain than large law firm jobs.");
424. The University of Chicago Law School, Public Service and Public Interest Opportunities, http://www.law.uchicago.edu/careersvcs/public-service.html (last visited Oct. 11, 2008) ("[E]ven unpaid [summer] positions can be hard to get, because public interest employers are not equipped to handle an inflow of 50 to 100 summer associates in the way that large law firms can.").
425. For the 2006-2007 academic year, the median debt load for private law school graduates was $87,906; the debt load for public law school graduates was $57,170. American Bar Association Lawyer Statistics, Average Amount Borrowed, http://www.abanet.org/legaled/statistics/charts/ stats%20-%2020.pdf Oast visited Oct. 11, 2008).
426. For instance, the minimum yearly salary required to make payments on an $80,145 debt load is $42,493. George B. Shepherd, No African-American Lawyers Allowed: The Inefficient Racism of the ABA's Accreditation of Law Schools, 53 J. LEGAL EDUC. 103, 136 tbl. (2003).
427. See, e.g., BOURDIEU, supra note 4, at 182-83 (defining symbolic prestige in cultural, rather than economic terms).
428. But see HEINZ ET AL., supra note 2, at 95-96. In the Urban Lawyers survey, when participants were asked to rank practice areas in terms of prestige, public defenders and other lawyers for impoverished clients received a low prestige rank.
429. Id. However, in a slightly different survey question, responders gave "civil rights/civil liberties" work a higher prestige rank.
430. Id. at 84. Notwithstanding the somewhat ambiguous nature of the survey results, my argument is that reform traditions at the elite law schools have stamped these career choices with a certain amount of honor, if not prestige.
431. The lawyer demographic statistics compiled by the American Bar Association (last updated for the year 2000) indicate that of the 74% of attorneys in private practice, 48% are solo practitioners. American Bar Association Lawyer Demographics, http://www.abanet.org/marketresearch/Lawyer- Demographics-2007.pdf Oast visited Oct. 11, 2008). The After the J.D. study found that 32% of all recent graduates had entered into a sole practice. DINOVITZER ET AL., supra note 2, at 27. With respect to small-firm practice, a recent NALP survey indicated that 71% of the graduates of the class of 2006 went into practice at law firms with 50 attorneys or less. Press Release, NALP, A Picture Worth 1,000 Words (2007), http://www.nalp.org/content/index.php?pid=522. However, there are other data sources that indicate that the percentage of attorneys entering into sole practice, particularly in urban areas, is shrinking.
432. See HEINZ ET AL., supra note 2, at 100, fig.5.1 (indicating that the percentage of sole practice attorneys practicing in Chicago has diminished from 21% in 1975 to 15% in 1995).
433. See, e.g., Brian Leiter's Law School Rankings, Where Tenure Track Faculty Went To Law School, 2000-02, http://www.leiterrankings.com/ faculty/2000faculty-education.shtml (last visited Oct. 11, 2008).
434. See supra notes 126-28 and accompanying text.
435. See BOURDIEU & PASSERON, supra note 6, at 8.
436. Hooks, supra note 246, at 147;
437. see also BOURDIEU, supra note 4, at 188-89.
438. See BOURDIEU, supra note 4, at 188-89.
439. MERTZ, supra note 119, at 219.
440. Thurgood Marshall's legal education is but one example of the liberating effect that a legal education can have. In discussing the legacy of Brown v. Board of Education, David Wilkins aptly pointed out the race/class divide between Thurgood Marshall and John W. Davis. David B. Wilkins, From "Separate Is Inherently Unequal" To "Diversity Is Good For Business": The Rise of Market-Based Diversity Arguments and the Fate of the Black Corporate Bar, 117 HARV. L. REV. 1548, 1548-49 (2004). Harvard educated Davis, "as the senior partner of the Wall Street law firm Davis, Polk, Wardwell, Sunderland & Kiendl[,] ⋯ epitomized the power and prestige of the [white] elite corporate bar in the years following World War II."
441. Id. at 1548. Far apart from Davis's world of "corporate titans, elite standing, and sumptuous fees" stood the Howard educated Thurgood Marshall, who struggled as a solo practitioner before being hired as the NAACP's second full-time attorney.
442. Id. at 1549 & n.8.
443. See also, JUAN WILLIAMS, THURGOOD MARSHALL: AMERICAN REVOLUTIONARY (1998). Juan Williams relates a revealing conversation with Justice Marshall that demonstrates the potential for breaking out of the hierarchal mold of "top-tier" school thinking: Q: Do you ever feel like these guys (colleagues on the court) have had a better education? A: No, I don't see anybody, I don't think so. Do they have SJD's? I don't think anybody here, no. But they're from better law schools. They're from Harvard, I'm from Howard. It didn't compare with Harvard. Q: Do you wish you had a better education to compete with these guys? A: Oh no, no. I know as many cases as they do⋯. Interview by Juan Williams with Thurgood Marshall, http://www.thurgoodmarshall. com/interviews/justices.htm (last visited Oct. 11, 2008).
444. See Jonakait, supra note 3, at 864, 887-901.
445. See, e.g., Garon, supra note 157, at 522-26;
446. Terry, supra note 157, at 667-75. I agree with Dean Garon that the rankings system should begin recognizing and rewarding different models of legal education. I do not agree, however, with Professor Terry's idea that legal education should divide itself into two tracks or even two ranking systems - one for practical education and one for academic/research education. Formally separating legal education into two tracks would exacerbate the existing status differences within the law and may take us down the path of de jure stratification, as envisioned by Alfred Reed in 1921.
447. See, e.g., ALFRED ZANTZINGER REED, TRAINING FOR THE PUBLIC PROFESSION OF THE LAW 419 (1921).
448. In fact, law firms are already struggling with the legal profession's decline in status among younger attorneys, who view status in terms of "ideas of flexibility and creativity, concepts alien to seemingly everyone but art students even a generation ago." Alex Williams, The Falling Down Professions, N.Y. TIMES, Jan. 6, 2008, §9, at 1, available at http://www.nytimes.com/2008/01/06/fashion/06professions.html?-r= 1&oref=slogin.
449. See, e.g., HEINZ ET AL., supra note 2, at 58-59;
450. Jonakait, supra note 3, at 864, 875.
451. See Jonakait, supra note 3, at 903-04;
452. see also HEINZ ET AL., supra note 2, at 81-97;
453. ZEMANS & ROSENBLUM, supra note 2, at 94.
454. See Mary Nell Trautner, How Social Hierarchies Within the Personal Injury Bar Affect Case Screening Decisions, 51 N.Y.L. SCH. L. REV. 215, 216 (2006-07) ("Plaintiffs' personal injury lawyers are commonly portrayed as greedy 'ambulance chasers' who will take any case regardless of merit.");
455. see also John Fabian Witt, Op-Ed., First Rename All the Lawyers, N.Y. TIMES, Oct. 24, 2006, at A29 (concluding that although the personal injury tort lawyers' association changed its name from the Association of American Trial Attorneys to the American Association for Justice [in order to improve their image], "some will say that the trial lawyers are still chasing ambulances").
456. See Gabriel J. Chin & Scott C. Wells, Can a Reasonable Doubt Have an Unreasonable Price? Limitations on Attorney's Fees in Criminal Cases, 41 B.C. L. REV. 1, 51-52 n.254 (1999) (collecting sources reporting that most attorneys view criminal defense work as having low status and low prestige).
457. See also, HEINZ ET AL., supra note 2, at 93-97 (indicating that the lawyers surveyed in the study gave a low prestige rank to criminal defense work). On the other hand, certain types of criminal defense work, capital cases, for instance, might be considered prestigious because of its association with reform oriented public service.
458. See supra note 270 and accompanying text.
459. There is a conflict, within western educational institutions, between teaching students to become participants in a democratic society and training students to function in "relatively authoritarian work regimes." See MERTZ, supra note 119, at 25. To the extent that law professors are uncomfortable with our role of preparing students for the "authoritarian work regime" of a large firm corporate practice, training students to enter alternative practice models in which they have more autonomy and control over their work presents a more satisfying role.
460. See Wilkins, supra note 281, at 1604 n.240 (explaining that lawyers working at smaller, minority-owned law firms are more likely "to serve black individuals and small black businesses, to mentor young black lawyers (including ones in other institutions), and otherwise to be an important presence in the black community").
461. See Carroll Seron, The Status of Legal Professionalism at the Close of the Twentieth Century: Chicago Lawyers and Urban Lawyers, 32 LAW & SOC. INQUIRY 581, 602-03 (2007).
462. In a comment written in response to Duncan Kennedy's Legal Education and the Reproduction of Hierarchy: A Polemic Against the System, Peter Gabel argues that "the only plausible explanation for why law students don't spontaneously resist and reject their assimilation to a hierarchy that 'maims' them and deprives them of their authentic selfhood is that the reproduction of hierarchy is the reproduction of our own social alienation, to which, absent some liberating social movement that frees us for a more authentic form of social connection, we have no choice but to succumb." Gabel, supra note 240, at 161-62.
463. See Wacquant, supra note 9, at 23-24.
464. See ZEMANS & ROSENBLUM, supra note 2, at 30-31 (explaining that one of the most popular reasons that students give for attending law school is the prospect of an above average income and the social prestige that comes from being an attorney);
465. Dinovitzer & Garth, supra note 2, at 38-39 (explaining that students at low-status schools view law school as a means for social mobility).
466. See, e.g., LANI GUINIER ET AL., BECOMING GENTLEMEN: WOMEN, LAW SCHOOL, and INSTITUTIONAL CHANGE (1997). The title of Professor Guinier's book derives from advice a male professor gave a first-year class: "To be a good lawyer, behave like a gentleman."
467. Id. at 29.
468. In his commentary to Kennedy's polemic, Peter Gabel warns that we should not expect students to resist hierarchy as soon as they learn about it because students may be more inclined to avoid the social suffering that might occur in an act of resistance. Gabel, supra note 240, at 163.
469. See PAULO FREIEE, EDUCATION FOR CRITICAL CONSCIOUSNESS 16-20 (Myra Bergman Ramos ed. & trans., 1994).
470. It is also possible to change the law school institution from the outside. Franklin Snyder has proposed that the emergence of non-hierarchical web-based discourse through law blogs and Social Science Research Network (SSRN) might actually lead to a "breaking down of caste." Franklin G. Snyder, Late Night Thoughts on Blogging While Reading Duncan Kennedy's Legal Education and the Reproduction of Hierarchy in an Arkansas Motel Room, 11 NEXUS 111, 121-24 (2006).
471. See FREIRE, supra note 297, at 18-19. The Bourdieu corollary to Freire's magical or naïve understanding of reality is the habitus, where one does not question the external structures which are embodied in her internal structures, but rather, because of objectification, accepts the world the way it is as the natural way, as a matter of course.
472. See BOURDIEU, supra note 4, at 80. Freire himself developed a way to develop critical consciousness while also successfully teaching Brazilian students how to read and write.
473. See FREIRE, supra note 297, at 41-58.
474. See BOURDIEU & PASSERON, supra note 6, at 12.
475. Lori H. Lefkovitz, The Subject of Writing Within the Margins, in REORIENTATIONS, CRITICAL THEORIES AND PEDAGOGIES 168, 172 (Bruce Henricksen & Thais E. Morgan eds., 1990).
476. See generally Bourdieu, supra note 18, at 848 (explaining how the operation of the law allows dominant groups to "impose an official representation of the social world which sustains their own world view and favors their interests"). Professor Penelope Pether has also written about how the process of judicial authorship impoverishes American law, through the institutional hierarchy created by judges, "elbow" law clerks, and staff attorneys. Penelope Pether, Sorcerers, Not Apprentices: How Judicial Clerks and Staff Attorneys Impoverish U.S. Law, 39 ARIZ. ST. L.J. 1 (2007). Specifically, Professor Pether points out how the court's bureaucratic and hierarchical structures create ingrained habitus that privileges certain types of cases (corporate and complex civil litigation) over others (criminal and pro-se appeals).
477. Id. at 53-54.
478. Palsgraf v. Long Island R.R. Co., 248 N.Y. 339 (1928);
479. JOHN T. NOONAN, JR., PERSONS AND MASKS OF THE LAW: CARDOZO, HOLMES, JEFFERSON, and WYTHE as MAKERS OF THE MASKS 111-51 (1976).
480. See G. EDWARD WHITE, TORT LAW IN AMERICA: AN INTELLECTUAL HISTORY 98-99, 125 (2003).
481. See Id. at 138.
482. See NOONAN, supra note 303, at 112-13. Jerome Frank also critiqued Cardozo for using "a private time-machine to transport himself back into 18th Century England" in order to translate "himself into a past alien speech environment." Anon Y. Mous, The Speech of Judges: A Dissenting Opinion, 29 VA. L. REV. 625, 631 (1943) (Jerome Frank). Cardozo's language allowed him to promote his prose as reasoned analysis when, in Judge Posner's view, it was really a "substitution of words for thought." RICHARD A. POSNER, CARDOZO: A STUDY IN REPUTATION 119 (1990).
483. See NOONAN, supra note 303, at 125-28.
484. See Id. at 128-29, 139, 144.
485. MERTZ, supra note 119, at 5.
486. Id.
487. See, e.g., MERTZ, supra note 119 and accompanying text (explaining the process by which law internalize abstract and formalistic legal reasoning, which emphasizes procedure and precedent, at the expense of social context and moral issues);
488. Bourdieu, supra note 18, at 819-20 (explaining how the law receives its force from "syntactic traits" that emphasize the passive and impersonal, establishing impartiality and objectivity).
489. See NOONAN, supra note 303, at 143.
490. See also RICHAED POLENBEEG, THE WORLD OF BENJAMIN CARDOZO 24-31 (1997).
491. See generally COLLINS, supra note 120, at 152-53 (detailing upper-class attorneys' xenophobic and class-based fears of corrupt ethnic attorneys affiliated with the urban political machines that had risen to power around the turn of the century). Jerome Frank seems to think that Cardozo could have crafted his judicial writing style in reaction to the embarrassment of his father's corruption trial.
492. See Mous, supra note 306, at 625, 630.
493. While one judge (Jerome Frank) was not impressed with Cardozo, another was enamored of his style. See, e.g., POSNER, supra note 306, at 42 (celebrating the economy of the Palsgraf statement of facts as "refreshing and ⋯ in striking contrast to the flaccid prolixity of ordinary judicial prose").
494. John Henry Schlegel, But Pierre, If We Can't Think Normatively, What Are We to Do?, 57 U. MIAMI L. REV. 955, 962 (2003).
495. See generally Jerome Frank, Why Not A Clinical Lawyer-School?, 81 U. PA. L. REV. 907 (1933) (pointing out the chasm between the type of knowledge learned in law school and what lawyers learn from practice).
496. See NOONAN, supra note 303, at 122.
497. See Id. at 124.
498. See Id. at 125.
499. See, e.g., Janeen Kerper, Creative Problem Solving vs. the Case Method: A Marvelous Adventure in Which Winnie-The-Pooh Meets Mrs. Palsgraf, 34 CAL. W. L. REV. 351, 368 (1998) (criticizing Ms. Palsgrafs attorney for not asking more context based questions that would have developed a more context based case theory).
500. Schlegel, supra note 315, at 965-66.
501. See, e.g., supra notes 123-24 and accompanying text.
502. Schlegel, supra note 315, at 963-64. Schlegel reminds us that the law's "institutions, assumptions, and circumstances" are upper-middle-class institutions.
503. Id. at 964.
504. See Paul T. Hayden, Putting Ethics to the (National Standardized) Test-Tracing the Origins of the MPRE, 71 FOBDHAM L. REV. 1299, 1303 (2003).
505. See supra text accompanying notes 142-44.
506. See AUERBACH, supra note 120, at 40-42, 48-52 (explaining that many jurisdictions adopted ethics codes in response to perceived threats that immigrant attorneys practicing in urban areas were lowering the status of the legal profession as a whole).
507. See Id. at 43.
508. See also Amy R. Mashburn, Professionalism as Class Ideology: Civility Codes and Bar Hierarchy, 28 VAL. U. L. REV. 657, 672 (1994) (explaining that "the ABA's ethics codes replicate [] the hierarchy and prestige strata of the legal profession by codifying the self-serving judgments of those who had (and still have) power in the ABA").
509. ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION 13-14 (1993).
510. See, e.g., HEINZ ET AL., supra note 2, at 221-22 (citing KRONMAN, supra note 328, at 363-64).
511. In the 1973 movie, The Paper Chase, actor John Houseman portrayed fictional Harvard law professor, Charles Kingsfield, a bow-tie wearing curmudgeon who used the Socratic method to browbeat his students. THE PAPER CHASE (Twentieth Century Fox Corp. 1973). Despite having been created over 25 years ago, the Kingsfield character still resonates, which is perhaps a testament that legal education has not changed much since the 1970s. To this day, many law students will express fear that their professor will go "Professor Kingsfield" on them in class.
512. See, e.g., MERTZ, supra note 119, at 209-10 (collecting sources supporting the theory that elite schools favor more critical and theoretical pedagogies than less elite schools).
513. See also HEINZ ET AL., supra note 2, at 57 (explaining a study of curricular offerings at Chicago area law schools indicating that the most elite schools offered the most interdisciplinary courses).
514. See Joan Howarth, Teaching in the Shadow of the Bar, 31 U.S.F. L. Eev. 927, 928 (1997) (explaining how "bar exams determine the curriculum that schools teach ⋯ [by creating a] canon of legal education, making certain courses central and exiling others to the periphery");
515. Society of American Law Teachers Statement on the Bar Exam, 52 J. LEGAL EDUC. 446, 448-49 (2002) (generally discussing how the bar exam affects student choices in structuring their education, leading students to take subjects tested on the bar examination at the expense of clinical courses and interdisciplinary courses).
516. See also supra text accompanying note 203 (discussing how the bar examination leads law schools to deemphasize practical skills instruction that would be useful for lawyers entering sole or small firm practice). By way of example, property law teachers must teach the antiquated property-rights subjects (the Rule Against Perpetuities, Shelley's case, etc.) at the expense of subjects (redlining practices) that are more aligned to social justice issues.
517. See Howarth, supra note 332, at 928-29.
518. See Id.;
519. see also HEINZ ET AL., supra note 2, at 57 (explaining a study of curricular offerings at Chicago area law schools indicating that the most elite schools offered the most interdisciplinary courses).
520. MERTZ, supra note 119, at 54-59. Professor Mertz's exhaustive review and analysis of recordings from eight first-year contracts classrooms showed, quite specifically, the ways that professors use subtle conversational cues to reward students who approached a case from the "correct" perspective, which emphasized abstract precedential and procedural authority, and punish students who spoke about cases in a way that emphasized the "irrelevant" social contexts or narrative concepts from a case.
521. Id.
522. For instance, when my colleague, Jeffrey Van Detta, taught labor law using a nontraditional collaborative problem solving approach, the students developed a deep understanding of the law and produced analyses that had a higher level of sophistication and quality than that seen in the traditionally taught course. Jeffrey A. Van Detta, Collaborative Problem-Solving Responsive to Diverse Learning Styles: Labor Law as an Active Learning Experience, 240 N.C. CENT. L. J. 46, 46-49, 75-78 (2001).
523. Skills and clinical training is, in fact, one area that Professor Mertz identifies as having a possibility of achieving a counterbalance, by encouraging other kinds of legal discussions beyond the casebook method. MERTZ, supra note 119, at 220-21. The liberating potential that clinical and skills teachers might bring to bear within legal education is an idea that can be traced back to Jerome Frank and the Legal Realists movement.
524. Id. at 26. Although clinical and skills education have been incorporated into modern law school curricula, the continuing resonance of Frank's ideas is perhaps testament to how little our legal educational model has changed. That clinical and skills teachers continue to occupy, in the academy, a lower class than doctrinal casebook method teachers is an important subject, but it is outside the scope of this Essay.
525. Susan Bryant, 77ie Five Habits: Building Cross-Cultural Competence in Lawyers, 8 CLINICAL L. REV. 33, 88-89 (2001).
526. Elizabeth Mertz suggests, in the context of teaching students how to talk about the law, that teachers help students reach "a more self-conscious understanding of the limitations of legal language for apprehending social phenomena, training students to be wary of the hubris that inheres in law's aspiration of universal translation across so many diverse social realms." MERTZ, supra note 119, at 208.
527. See BOURDIEU, supra note 4, at 169-70.
528. This is similar to Peter Gabel's urge to generate a resistance as a "morally compelling, spiritual activity rather than merely an intellectual/political revolt of free individuals against a surrounding false consciousness." Gabel, supra note 240, at 165.