LAW SCHOOLS AND JUSTICE

Alvin Esau, Professor of Law, University of Manitoba

(Revised version of a talk given at the Annual Meeting of the Canadian Association of Law Teachers at Windsor, Ontario, June 6, 1988.)

I. INTRODUCTION

Law schools, whatever other objectives they may have, are places where students are educated for the practice of law. We know too that law schools have struggled to actualize the idea that the best education for the practice of law is not a narrow focus on imparting information about legal concepts and helping students to acquire a set of functional legal skills, but rather that the most practical education is a wide focus on understanding the law, legal institutions, and lawyering in relationship to the philosophical, economic, political, and social forces that constitute the legal enterprise in the first place. There are still students, lawyers, judges, and even some law professors who would prefer that law schools not take their university setting seriously, and that they should instead just narrowly present the law as if it were a cake to be eaten, rather than deconstructing the cake into the ingredients of milk, eggs, flour, and so forth to understand how cakes are made. For some, "theory" and "higher learning" is still just optional icing on the cake, rather than the ingredients of the cake itself.

Often lost in this debate about how best to provide an education for the practice of law is any talk about justice. What has the law school got to do with justice? In my view, law schools should be institutions devoted to justice education, and also places that embody justice in terms of relationships between students, staff, applicants, alumni and the wider community. If we believe that the practice of law should really be a vocation of justice, and that lawyers should be ministers of justice (in secular religion terminology), than the law school must take justice seriously and stop treating it as mere icing on the cake of doctrine, skills, and even explanatory theory. I make this statement the way I make the statement that I actually believe in God and real human experiences of God and that this belief is the ground for meaning in my life. The statement about justice in law school and the statement about belief in God are alike in that failure is often the reality for me rather than fulfillment of the belief. I sometimes go through long periods of disbelief and even cynicism about my teaching of law or writing about law as having anything much to do with justice (or the existence of God).

Despite my own feelings of failure after ten years of teaching to contribute much of anything to the law school as a forum for justice education, I want to make some remarks about three matters having to do with law schools and justice: The critical teaching of law, the contextualization of law schools, and the law school as a caring community. Obviously there are many aspects of this subject that I have left out. For example, I am not directly going to deal with the publication of scholarly research by law professors, which is a crucial aspect of law schools and justice. Legal academics can serve to create a more just legal system by writing about the injustices they see in the law and providing suggestions for reform. Furthermore, legal academics do not just exert their influence indirectly by what they teach their students who then go forth and act in the world, but rather legal academics are often directly involved in law reform commissions, government tribunals, law society deliberations, courts, and law firms, and the like. However, in my remarks today I want to concentrate on some factors of justice in relationship to the role of the law school in the education of students for the practice of law.

II. CRITICAL

obviously if we are going to take justice questions seriously in law schools, we must teach law critically. I mean by this that we must as teachers and students constantly evaluate the law, legal institutions, and lawyering practices that we are studying. Evaluation means that we have some standards of value, some standards of good and bad, worse and better, that we measure the law against. If we present the law as a bundle of rules, principles, and concepts that are simply there and given, without critical evaluation of them, we teach our students to focus on legality and not on morality and justice. We are suppose to be interested in justice and yet we have very little to say about it. The evaluative measure of law becomes law itself, which is no measure at all, but rather the collapse of justice into mere legality. Rather than evaluating law in terms of standards of justice, we turn the tables and measure justice by the standards of law. Uncritical legal education simply reinforces the status quo.

The uncritical study of law has a direct impact on how students will come to view not just law but also lawyering. The lack of moral discourse in law schools means that students can more easily adopt the ideology that it is right to do anything for your client, however harmful to others or to society, so long as you stay within the law. Students can easily adopt the ideology that the prime task of the lawyer and the legal profession is to know the law and apply it, rather than adopting the ideology that the prime task of the lawyer and the legal profession is to struggle to make our law just. Students can more easily adopt the ideology of separating their personal morality from the role morality of lawyering.

Students can more easily believe that the existing legal norms are fine, good, or the best we can have, by uncritically assuming the legitimacy of common law evolution, or "democratic" legislative authority. The perception that legal education does have the effect of killing what reformist ideals entering law students have, has not been proven or disproven by social-science surveys of law students, but I think the perception is a true one nevertheless.

This point about the need for critical evaluation of the law and how the study of law directly relates to lawyering ideology is obvious and has been made endlessly. So why is it that we often feel we are still failing miserably at achieving a critical understanding of our subject? Perhaps we are still slaves to the "coverage" mentality, where we must roar through the whole field of doctrine, leaving little time for any evaluation of it. Perhaps we fall into the trap of viewing conventional legal reasoning and the presentation of legal doctrine as somehow "hard" and intellectually acceptable to the students, while policy and morality arguments are "soft" and completely subjective and resisted by students as a waste of classroom time. Perhaps we have lost our own sense of vision for what should be, for what values should be advanced in the law, or at least we lack the courage to explicitly present our views.

However, another factor that sometimes limits the law teacher from embarking seriously into evaluative discourse is the fear that somehow he or she will now be accused of impermissible indoctrination. This fear is just a simplistic avoidance mechanism.

We all know that values are considered to be culturally bound, subjective and relative, but we still must make commitments to visions of the self and society; we still must make choices, and we still have a community of moral discourse in which we confront others and are in turn confronted by them about what is right and wrong. I view my task as a teacher to be truthful about the subject of law as I see it. I am not there to train students to uncritically conform to expectations set by the profession. Training in conformity is not education. If I believe that students should be critical of law and lawyering, than the place to start is for me to be explicit about what I view as good or bad in the law and why I think so. What interests do I think the law is advancing at the expense of other interests? What and whose are the values that shape the law and how does the law in turn shape our collective values? To be truthful to your vision of things does not mean you must be disrespectful to those who have a different vision, but it does mean, it seems to me, that you present your vision rather than pretending that law is somehow ever neutral and apolitical. It is the teacher who does not critically examine the moral issues always present in the legal doctrine who might be said to be engaged in the "indoctrination" of the whole conventional value scheme contained in the doctrine.

The movement to more critical teaching can actually make the law school a more pluralistic and open forum and result in less "indoctrination" than is the current practice of largely uncritical legalism based on conventional liberal ideology. We are experiencing some very interesting times in legal scholarship with the fragmentation of the liberal consensus and the rise of Critical legal studies, Feminist legal studies, and the post-modern Judeo-Christian legal studies movements. Law schools should have professors who do not all conform to the old liberal consensus, but who represent different points of view. It is ironic to me that the legal establishment which is wedded to pluralistic liberal individualism is sometimes now trying to bar the door to the new voices in legal education, and at the same time, some of the new voices that actually are questioning the virtue of liberal pluralism must appeal to it for legitimacy of place in legal education.

I am willing to admit that there is more going on than this fairly uncontroversial picture of law teachers with different ideologies being truthful and letting the chips fall where they may. This picture is not so controversial because it conforms nicely to our conventional ideology. Each individual is morally autonomous and speaks his or her mind respectful of everybody else's right to agree or disagree, but we do not really try to influence anybody, especially given our power as a teacher, because that might violate the student's individual moral autonomy. Expression is valued, asking the right questions is valued, stimulating discussion is valued, but the exercise of influence is dismissed as impermissible. I believe that there is truth to the view that the way we treat our students is a model for the way that our students as lawyers treat clients. We know that lawyers sometimes dominate and manipulate clients, so we properly avoid such behaviour toward our students. But I think we have actually missed the boat when in reaction to impermissible hierarchy, domination and manipulation in the lawyer-client relationship we move to an uncritical acceptance of certain extreme conceptions of individual autonomy instead.

I value community as much as I do individual autonomy. In many respects we find our individual selves only in relationships with others. Communities shape us and we shape the community and we do not just focus on our own freedom and responsibility but we focus also on the shape and quality of the overall community. We care what others are doing in the community and not just with our own freedom to do what we want. This means that moral discourse is more than isolated individuals expressing individual opinions as

if they were simply discussing preferences for certain styles of clothes. Moral discourse in community includes real confrontation and real caring about what we all think and do, even if we ultimately affirm the right of the individual person to make their own decisions. In this context I believe that we should honestly affirm that we not only express our evaluations of the law, but we also attempt to influence others in our community; those who read our writing, other lawyers, judges, and law professors, and the students we teach. To say this means of course that we are open to be influenced by others in turn.

My point is that we can still be respectful of each other's autonomy while not denying that we exercise influence over each other. We should be properly concerned about the authoritarianism, the power and control that lawyers exercise over clients, and that law professors exercise over students. But at the same time, let us not deny influence or seek not to have it. I admit that for those of us who are highly critical of the present legal arrangements and lawyering institutions and practices in our society, it is easier to accept and acknowledge this influence because we are in the minority. Our influence seems to be very small. Our influence is but a counterweight to the overwhelming majority opinion. We are even marginalized by being called the prophets crying in the wilderness. We hardly need to fear that we are pressing our case too strongly.

Another problem that arises whenever we talk about a more critical legal education is that we inevitably begin to debate the nature of law in the first place. If we understand that legal discourse is not ever autonomous from political and moral discourse, we cannot avoid the critical questions. If we assume that in fact the legal enterprise does not and should not operate with a coherent distinction between law as it is separable from moral questions of what it ought to be, we cannot avoid the exploration of values in legal education. But I want to address those teachers of law who may lean more in the direction of formalism in the sense that they view law as a mass of rules and principles with a distinct legal pedigree that can be found and applied with a considerable degree of certainty and predictability to human affairs. There are of course also harder cases where the pre-existing law does not determine the result without recourse to so called extralegal factors. The teacher who leans in the formalist direction, may actually think that he or she may teach law by simply explaining what the law is and exploring the boundaries of where the law ends and where the open questions begin. The teacher does not suggest to the students that the questions of what the law ought to be are unimportant, but says that the course does not deal with this. It is something for the students to consider on their own time, while the course is simply about learning the law that we have.

Such a position it seems to me has a direct ideological impact on students, not just about the nature of law, but also about the nature of lawyering. The teacher is approaching the subject with a classic role differentiation mentality. There is a purported separation of the personal and the professional. The teacher's own story and own values and visions are separated out and treated as irrelevant to the task of explaining the law as it exists.

The student's own values and visions are also excluded in effect by suggesting that the law can be studied and applied through a process of reasoning that excludes moral and emotional matters. The message to the student is that lawyering is like that. You adopt a role morality as a lawyer that need not be connected in some fundamental way with your own or ordinary morality. The student already starts the process of wearing the legal mask over his or her real self in law school, instead of finding ways in which lawyering can be deeply expressive of his or her own visions of self and society.

While I reject much of the formalist model of law, my point is that even the formalist teacher should teach law critically, even though that seems a contradiction in terms given my different view of the nature of law. Rather than turning to policy in the classroom only when you have a so called hard case, it is obvious that the law that you consider to be present with clarity and predictability is still a law that expresses a value, that brings about a state of affairs in the world. The values expressed by the law and the states of affairs that the law brings about should be critically evaluated. This is not only essential if we are to take issues of justice seriously, but it also helps remove the pervasive sense of alienation that students can have when they bifurcate the study of law from their own deepest aspirations. The terrible sense alienation that comes from excluding feeling and emotion and turning exclusively to dry rationality in the study of law. The ultimate death of real caring in the student, as law and lawyering become unconnected with visions of the self and society. Caring only comes when we have a relationship to the subject that matters to us in some fundamental way. What ends up mattering is marks and marketability, not understanding and justice.

Finally, in talking about the critical study of law we must turn to clinical legal education. Even though I have no experience with clinical teaching, I do teach a course in professional responsibility and I am concerned about how that course correlates with my student's clinical experiences. It seems to me that clinical programs and skills courses can actually provide uncritical socialization into conventional patterns of behaviour, rather than critical education about lawyering, despite the prominence given to education for professional responsibility as a motivation for such programs. Indeed, the great educative power of these courses as we acknowledge the strength of learning by doing, means that the clinical program can be particularly influential for good or bad.

I will ask some questions rather than imply that in fact our clinical programs are taught uncritically. My point is that such courses could by approached with as little evaluative content as one finds in substantive law courses. For example, the student may really face the ethical problem of having a client whose goal is not just, who should really loose the case and not win, but do we really accept any other options about lawyering in the clinical setting, other than ultimately persuading the conscientious student to accept the conventional liberal due process model of client autonomy within an adversary system and the lawyer's amoral role of zealously advancing the client's goal, rather than taking personal moral responsibility for the ends of advocacy? Or perhaps we do talk about the justice of providing legal services to those who are poor in a system where legal services are allocated disproportionately to the powerful in our society, but then when it comes to the means of lawyering rather than the ends, do we teach every trick in the book as if lawyering for those we love justifies the instrumental use of questionable tactics? Do we teach skills critically or do we teach them instrumentally? Do we critically evaluate the values embedded in different ways of interviewing, counselling, negotiating and advocating, and evaluate the ends to which skills are used? Do we critically evaluate the structures and styles of different law firm communities and practice settings?

So my first point is that if legal education is going to have something to do with education about justice, we must teach law critically- constantly evaluating whether legal practices are just or not. In terms of being critical, I do not want to leave the impression that critical must be equated with negative. I want rather to say here that by critical I mean evaluative. More than likely, we will not just be subversive in the sense that we view some legal practices as wrong, but we will also be conservative in the sense that we have a positive evaluation of some practices that we think should be conserved. The point is that we should be subversive or conservative rather than simply being conformists by teaching law uncritically.

III. CONTEXT

Another way in which legal education fails to take justice seriously is to teach law without contextualizing it. This point is obviously directly linked to the previous discussion of critical teaching. We tend to divorce law from the concrete consequences of the law and the social settings in which law is derived and applied, and often misapplied or not applied at all. This lack of contextualization may lead students to view law as an abstract, almost game like, process of intellectual argumentation rather than seeing law as a fundamental part of the construction of our actual world in which law is used for evil ends as well as good ones. The lack of contextualization for legal study helps to feed the attitude that lawyering involves the uncritical service of individual interests rather than the taking of moral responsibility for the social impacts of our work as lawyers in terms of what interests we advance and what interests we do not serve. One of the attractions of the clinical program is that students are exposed to contextual aspects of law and lawyering generally absent in much of the rest of the law school experience. However we need to contextualize law and lawyering throughout the curriculum and extra-curriculum of law school, and not just leave this for the clinic.

While much more could be said about contextualization, I want to consider for a moment, not so much the contextualization of law but the contextualization of the law school itself. To a degree, the campus context of most law schools is itself worthy of note in terms of our failure to take justice seriously. I have always been attracted to the campus. Whenever I visit a city, I go first to the university and walk through the campus and perhaps browse through the bookstore. My wife does not quite understand why I do this in priority to visiting the art galleries, the museums, the zoo, the shopping areas, the parks, and other more obvious spots of interest to tourists. Probably I am drawn to the campus because it often strikes me as a kind of garden of eden that we can stay in despite the fact that we have bitten the fruit of the forbidden tree, which is the feeling I got recently when I visited the beautiful campus of the University of Washington in Seattle. Lecture halls, labs, and libraries, well tended lawns and gardens, students and staff lounging about at lunch time. This is a world that somehow gives me a sense of comfort and belonging, in a way that I never get in the downtown world of office towers. I am a professor after all, and not a downtown lawyer. But I often have an experience of the so called "ivory tower" isolation of my life on campus. After visiting the campus in Seattle, I drove along Martin Luther King street through a ghetto and this was not a garden of eden but more like a jungle. When I visited Columbia University in New York I got the sense that the campus was an armed camp in the middle of the Bronx with steel gates and bars and security guards protecting every entrance to the garden in the midst of a jungle war zone.

So I spend my time at the campus and I live near the campus and most of my friends are connected to this same world. We do not live in opulence, but we have a comfortable income and we have a privileged life. A life in which we read, write, reflect and teach, and we do this basically on our own terms, on our own schedules, and according to our own interests, at least if we have tenure.

But the campus does not just exist for itself, but rather it exists for the betterment of self and society. Life in the garden can easily desensitize us to the reality of the jungle world, despite our pretensions of being especially well informed as students and scholars. When we think about law schools and justice we must, it seems to me, find ways of bringing the reality of the jungle into the garden if we are going to contribute at all to the making of a better world.

What I am suggesting is that most of us do not adopt some grand theory of justice so that we can articulate in a coherent way what a just community would look like. Indeed the concept of justice seems to be particularly riddled with complexity and perplexity. Rather we start negatively with the experience of specific injustices rather than positively with a general theory of justice. Justice is not so much an ideal state that we conceive but rather justice is the continual struggle of making and hearing complaints about wrongs that are done, and responding with ideas and actions about what to do about these wrongs. Justice is not even rooted in having good rules that govern society, but rather justice is relational, rooted in how we treat one another. Good rules are not the root of justice but rather the result of justice rooted in right relationships. Law then must be rooted in love. Justice involves both the systemic and the personal. Justice is something we give each other and not just something that we get or not from the government.

Thus, it seems to me that the experience of wrongs done, the listening to the cries of the victims, the telling of stories, the awareness of our own relationships and complicity, is essential in the bringing of the jungle to the garden or in coming to see that the garden has its own jungles. In our comfortable garden we need to hear the cries of the victims and only then can we take seriously the question of how these injustices might be dealt with and what role law has in the upholding or the removing of injustices. In the law school environment, however important it is for students to be exposed to Mill, Rawls, Nozick, or other justice theorists, it is more important for students to actually be exposed to the reality of exploitation and domination through exposure to the actual cries of the victims of racism, sexism, economic and educational deprivation, violence, and so forth. The study of court decisions, however compelling the facts may be at times, remains largely a study of abstractions, rather than the story of real live human beings.

There may be a host of ways that the jungle could be brought to the garden or ways that we place our students into the jungle. I only make a very modest suggestion here. I like the idea of a law school day devoted to recollections of the treatment of the Japanese Canadians during the Second World War and the contemporary demands for at least some compensation for that unjust treatment. I like the idea of a law school day devoted to the history and persistence of patriarchy in our society, or a day devoted to the exploration of injustice in South Africa, or a day devoted to the stories of crime victims and the stories of convicts, and so forth. Perhaps such special days devoted to panels, films, discussions, and readings on selected issues will have the effect of trivializing some of the issues rather than bringing the student's mind and emotions to them, but I think it is worth a try. Most of our students are privileged and often blind to the structural web of injustices in our society and world and they are prone, I believe, to view the deprivations of others as being simply a result of misfortune rather than unfair, unjust actions and conditions in which law plays a central role. It is first the recollection and reality of injustice that must be presented if we are to acquire any sense of responsibility and resolve to do anything as lawyers to serve justice rather than just manipulate law on behalf of those who already live in gardens. Presenting "high" theories of justice that stretch your head is a worthy part of law school education, part of our life in the garden, but I believe that exposure somehow to the "low" reality of the screams of the victims in the jungle that tear at your heart may in the end provide the more important education that law schools should help provide.

So my second point is that to take justice seriously, we need not only more normative-evaluative discourse, but also more data, if you will- an expanded sphere of what it is we are looking at in law school. Not just appellate decisions, doctrinal and theoretical- interdisciplinary perspectives, but also stories- films, novels, biography, and real people. Justice is about life, and is not a subject bounded by a bundle of legal rules and principles.

IV. COMMUNITY

If justice is rooted in relationships, than obviously the law school itself is not just a place where education about justice takes place, but is itself a place where justice is done or not. Much can be said about this dealing with everything from admissions policy to alumni relations, but I will comment on only a few aspects of law school as a caring community in terms of staff, students, and society generally.

If justice is to be taken seriously; if we are to treat people with respect and care, than the law school itself must foster a greater sense of community. While I hardly view law schools as anything like the organic community of Mennonites in which I grew up, and indeed while I actually resist the idolatry and narrowness that comes from attempts to form holistic communities around something so partial as professional commonality, I find at the same time that law schools are too isolating and alienating. Perhaps when a new school is born there is a sustained sense of togetherness for a time, but after decades you may end up with basically the lone ranger model. I teach my courses, write my stuff, have a few friends, remain cordial to those I run into, but is there any real commitment and concern for the law school as a whole? Often we do not know what others teach, what others think or write, or what students as a whole go through. We have stopped caring about much more than our own subject matter and our own scholarly career. Some law professors have even stopped caring about that, as they settle into a routine of drawing a pretty hefty salary for the bare minimal contribution of showing up for class.

I think we really lack collective responsibility for the whole law school experience which we shirk off to Deans to worry about. Indeed we fear community because real community will create a host of conflicts to deal with creatively and with justice. We want cordiality and the absence of conflicts; the nice placidity of being left alone to do our own thing. Is it any wonder then that when our students graduate they often have no continuing commitment or identification as alumni to the law school? They were given no real power and responsibility for its shape when they were law students and law school is seen as a stage for the pursuit of individual careers rather than a fundamental part of the legal system.

A more caring community among the professors must set the stage for a more caring community between students and between students and staff. When I started to teach, I thought that I would really get to know my students in a more holistic way rather than simply knowing most of their names by the end of the term. What a failed vision that has been in the crunch of trying to get prepared for the next class and get through it! We want our students when they are lawyers to treat the client as a person and not simply as a legal problem coming into the law office. Yet our lack of holistic concern for our own students as persons feeds into the narrow legalistic conception of what lawyering involves.

How is it possible to have any more holistic relationships with students in the context of large classes and within the time demands of all the other duties we have? It seems to me that one small matter that could be improved is that we need at least to know more about each other if we are going to start treating each other with more concern for the whole person. When I started to teach, I could go to the files and find a transcript of the student's prelaw educational program. That did not tell me much about the student, but at least I knew that someone had majored in math or whatever. Apparently now even these transcripts are unavailable to anyone but the central university admissions officers. My suggestion is that we should require an autobiographical essay from everybody entering law school and from all the teachers, with an explicit demand that such an essay would be shared not just with the teachers but with all the other students who are entering law school. Is this an invasion of privacy within the typical liberal individualist mentality of our world, or is this a legitimate step in the direction of fostering a caring community in law school? A place where we come to see that sensitivity to others and self understanding are part of the lawyering process.

A caring community in law school can be a paradigm for the care we need to have as lawyers for the community outside of the law school and the profession. If we are going to take justice seriously, we must examine the way in which rank leads to remoteness from those who we are to serve, and the way in which rank cuts us off from truly listening to the stories of injustice in our society. The hierarchy and oppression that may be involved in the way we treat our students legitimates the hierarchy and oppression in society generally. I think law schools feed into and foster the pervasive sense of superiority and status that professionals often have over the so called laity, and also the stratification of the profession within itself. Pride of place rather than solidarity with others cuts off the root of justice. Elitism geared in the direction of special social responsibility is often the message, but the reality is an elitism that is self-servingly content to conserve inequality.

In this regard my own story can be told with some shame. My parents were poor immigrants who came in their youth to Canada in 1926 in a flight from the ravages of civil war, famine, and religious persecution in Russia. My parents never had a high school education. My father was a farmer for most of his life and then he became a clerk in a store. There were seven children in the family and my mother not only looked after us but cleaned other people's houses to supplement the family income. We always managed and we were taught to work hard and do all things well. We all went on to university. The family now contains a teacher of music, a teacher of theology, a teacher of law, an elementary school teacher, a professional historian, and so forth. This is a very typical story, a story involving the different places in society of countless first and second generation Canadians. There are many aspects of my life that I cannot deny are in fact better than my parent's situation. Better in terms of life options, in terms of fulfillment of talents, and certainly better in terms of economic security. There is a sense of some kind of a climb up one rung in the ladder of life, but that sense also holds within it the seeds of poison.

When I was accepted into law school, and much more so when I graduated from law school in my extreme youth (a plea of mitigation), I actually do have to admit that I thought of myself as in a superior class as compared to most of the rest of my fellow human beings. I even considered myself to have earned this superior status rather than falling into it by some process of birth or luck. I was somebody now. A member of a profession that had power and status in society. I expected deference from lower mortals. My identity was partly wrapped up in this sense of rank. If the bank teller or the travel agent or the secretary treated me like an ordinary schmuck, I would say I was a lawyer and just watch the deference flow. Despite our being told that the public image of lawyers is really quite negative in terms of perceptions of what we do and how we do it, we all know that our society nevertheless has a deeply rooted ladder of status on which certain professions like law are highly placed. This sense of rank really feeds into remoteness from and removal from those who are on the lower rungs. The law school experience did nothing but reinforce the perception that we were superior creatures. Everything from the hubris of the law teachers to the protection of the law library carrels from being used by mere mortals other than law students spoke of special privilege.

Many law students move from law school into the large or medium sized law firms where this sense of superiority may be particularly reinforced. They now have an office in the upper floors of a highrise and look down at the world, they dress nice, have tastefully and expensively furnished offices, eat lunches at the best restaurants. The whole working environment speaks of wealth and power and privilege. Despite being at the lowest end of the pole when they enter as articling students, they already feel that they have made it, that they are part of the olympian class compared to the common folk on the Portage Ave. bus. I noticed when I was at Harvard, that this process already took place for most students in second year of law school as they were wined and dined, escorted through the impressive displays of offices and private club affiliations, and courted by an array of perks during the hiring process.

Law teachers are in a strange position in terms of all this talk of rank between the profession and others, and within the profession itself. Law teachers in Canada do not rank very highly in the overall stratification of the legal profession itself. Furthermore,

law teachers are defensive about their status within the university given that most of us do not have a doctorate which is a kind of badge of rank that seems important within the university setting. It may be that this defensiveness actually makes us more status oriented. We think of the law school as a special and superior place within the university and seek special privileges of salary, teaching load, freedom from regulation, and so forth, rather than really identifying ourselves with the larger university.

What I am saying is that the attitude I had when I graduated from law school is an attitude that I continue to see in many students and that we help to perpetuate in law school. An attitude of superiority that legitimates the idea that we deserve more power than others, that we deserve the highest incomes, that we deserve to be deferred to. You might say that everyone has a legitimate and basic need for self-esteem and that the pride of attaining a law degree, even the pride in the ideals of lawyering, is quite affirmable. But we also desperately need a good dose of the "great reversal" which is at the core of Jesus's teaching about the Kingdom of God. The first shall be last. The real lords and leaders shall be the servants and slaves. The weak and humble shall know power and wholeness. Pride and self-righteousness cut us off from the love of neighbor and it is this love that sums up all the law and the prophets.

How might the law school environment foster a sense of identification with others rather than superiority over them? This is a question I pose rather than answer. I think that part of the answer includes the need to broaden legal education itself by admitting more students and hiring more professors who have themselves come from a situation of being more likely the victims of injustice as women, poor persons, natives, or whatever, rather than confining legal education overwhelmingly to the children of middle or upper class privilege. Still, my own children are very middle class and then some, and yet I do not want them to be labelled as insensitive to justice issues just because they were born to a privileged class. So we should not assume that the rank and remoteness of lawyers is necessarily associated with the class backgrounds of law students to begin with.

Another factor that could be looked at is the way that the law school fails to provide much of any opportunity to understand the variety of legal practice contexts available upon graduation. Who do you want to serve as a lawyer and how do you provide a service to the community by your lawyering? Students seem to go through the articling interview process at the law school with little sense of what kind of law they want to practice or in what context they want to practice it. Instead of this, there seems to be a kind of hierarchy of prestige related to the size of the firm or whatever, and students then rank the offers they receive on this scale. Less conventional practice settings that are more likely geared to helping the less powerful rather than the most powerful, like public interest law departments, legal aid offices, government services of various kinds, and small storefront lawyers or small town lawyers, and so forth, are often not part of the interview process or the positions that are available are filled, not because of a genuine commitment to the justice of practicing law in that setting, but by default in not getting an offer for a more prestigious position. The law school needs to provide students with insights into different sorts of practice settings. We might start at least with a series of special lectures and panels about practice in smaller communities, practice in the large law firm, practice in the legal aid office, and so forth. We need to at least provide alternatives to the view that the best lawyers and the best lawyering is done in corporate and commercial large law firms.

Many aspects of what we do in law school are implicated in this sense of fostering rank. One small matter, for example, deals with our evaluation of students, and the imposition of the grading curve. If I teach a small seminar course to 10 students, it must be conceivable that the subject matter might actually become so interesting to the students and that my teaching might actually become so stimulating, that the students all might perform to the level of an A. Yet if this happened, I likely would not be allowed to give them all A's, because they must be graded against each other, rather than against some external standard of actual performance apart from the ranking of one against the other. The use of the mandatory curve is a message to the students, not just about competition and hierarchy, but also about marketability and marks. We become more interested in marks than we are about the material to be learned, because the law school ranks everybody by marks as one of the primary ways in which jobs after law school are given out. The law school can also focus on marketability rather than educational value by joining forces with the profession to emphasize certain courses in the curriculum as marketable ones, as ones that an employer finds attractive on a resume, while other courses are devalued as being too "soft" or too "policy oriented", and so forth.

So my third point is that the law school itself should be a place where justice in not just the topic of study but rather that justice must be experienced in the school itself in terms of the character of the community in relationships of staff, students, and the larger society.

V. CONCLUSION

I have only touched upon a few of the issues involved in taking to heart the belief that law schools should be communities of justice and for justice. Beliefs are easier to articulate than to act on. My remarks are not aimed at other targets than myself. My teaching has been uncritical and uncontextual, and I have not done much to foster a caring community within the law school. I am also prone to set the ideals aside and just get on with whatever is passable and popular. Like so many other children of the sixties, I am tempted to resign myself to the apparent futility of seriously battling for social change and accept instead the apparent benefits of just finding meaning in life in the strength of family, friends, and my own freedom from want to do whatever I will. Yet I can't seem to let go. It is as if there was a God and he/she was exerting some kind of gravitational pull to prevent me from escaping the call to justice. The prophet Amos after listing a host of injustices perpetrated on the poor, the sojourners, the widows and orphans, and the needy in his society, a society that celebrated its prosperity, power, and wise social principles, said:

Take away from me the noise of your songs;
to the melody of your harps I will not listen.
But let justice roll down like waters,
and righteousness like and everflowing stream.