Podcast with Etienne C. Toussaint: The Purpose of Legal Education

This podcast accompanies the article The Purpose of Legal Education.

Transcript

Speakers: Taylor Graham, Etienne C. Toussaint

00:02

As law schools in the United States develop anti racist curricula and expand their experiential learning programs,  the debate continues as to whether and how the purpose of legal education converges with societal efforts to reckon with America's legacy of white supremacy. In most law school doctrinal courses today, colorblindness and objectivity trump critical legal discourse on issues of race, gender or sexuality. Across the country, a growing coalition of law students are organizing disorientation programs to challenge the doctrinally conservative, racially homogenous, and socially hierarchical culture of legal education.

00:40

Welcome to the California Law Review podcast. Our goal is to provide an accessible and thought-provoking overview of the scholarship we publish. Today we will be discussing The Purpose of Legal Education, a piece by University of South Carolina School of Law Professor, Etienne C. Toussaint, published in issue on volume 111, in February of 2023. Professor Toussaint, thank you so much for joining us to discuss your article. Thank you so much for the gracious invitation. It's a tremendous honor to join you in conversation today. And I look forward to unpacking these complex issues and questions together.

01:17

To begin with, can you summarize your main argument in this piece?

01:21

Sure. This article is my attempt to wrestle with what appears at first glance to be a very simple question. What is the purpose of law school? By way of background for the benefit of our listeners, this question has actually been rigorously debated throughout much of law schools history as an institution of professional education. Some legal scholars have argued that law schools exist primarily to teach law students legal theory, in preparation for substantive lawyering skills offered by clerkships and entry level legal positions. Other scholars argue that law schools should also integrate substantive lawyering skills training throughout the curriculum to enable the early development of professional responsibility and learning judgment. And still others have emphasized the need for law schools to provide pro bono legal services to indigent members of their local communities through law school clinics, coupled with debate on law and legislative reform, through legal scholarship, and even student activism. There's a sense that this is ultimately a debate about the delicate balance between theory and practice in the context of legal education. My contribution in this article to this long standing debate is to suggest that the so called theory practice divide and legal education has been somewhat of a distraction from a much deeper challenge that has and continues to face law schools in the United States. Therefore, I preface my main argument with a more nuanced revision of the original question, what would the balance between theory and practice look like in a law school founded on challenging the underlying neoliberal assumptions of modern the US law and political economy? In other words, does legal education's purpose demand more than training in black letter law and practical lawyering skills? This question suggests that beyond teaching students about theory and practice, the purpose of law school might also be to equip students with the knowledge, resources and platforms to interrogate the very meaning of legal theory and law and practice. Building upon this context, I then argue and seek to demonstrate in the article that a study of the way legal systems and political and economic institutions furthers racism, economic oppression, or social injustice more generally, must be viewed as fundamental to the very purpose of legal education. As a result, anti-racist, democratic and movement Loring principles, among other theories, advocated by progressive legal scholars in recent history, many of which engage critical theories of law, I believe should not be viewed merely as aspirational goals for public interest lawyers, or social justice law courses, nor as fodder for political debate. Instead, they should be viewed as necessary components of a core law school curriculum.

04:17

Professor, what motivated you to write this article?

04:21

The easy answer would be to point to the efforts of former President Donald Trump during the summer months of 2020 to discredit a growing discourse on racism in our country that had emerged after the tragic killing of George Floyd and others, and a new flurry of Black Lives Matter protests that emerged nationwide. Trump attacked calls for diversity training, and he pointed toward critical race theory and the 1619 project as divisive on American propaganda, a kind of secret program of the left to destroy our nation. At this point, many Americans

04:59

myself and likely many law students were presumably confused because few people had ever taken a course in critical race theory, much less had an understanding of this relationship to legal education, or education in general across our country. So in part, this article was birthed in response to that confusion, which continues to cast a dark shadow over political debates, as states like Florida seek to limit how we engage with the darkest corners of our nation's history. However, if I'm being honest, which I believe is sorely needed, and legal academy, I started thinking about this article's question, what is the purpose of law school, as a law student.

05:40

In a recently published article, called The Miseducation of Public Citizens, I discuss my own experience as a law student wrestling with the tension of law and society that might lead one to ask, what does it mean to be a good lawyer if my personal moral views of the law conflict with my professional ethical duties? To provide some context, I was born and raised in the South Bronx in New York City, the son of black immigrants from the Caribbean, the neighbor of black and Hispanic working class folks in my neighborhood, a child of the early hip-hop generation in the 1980s, and 1990s. And like many New York City residents, I was intimately familiar with the subway. In fact, I took the subway to and from high school in Manhattan throughout my teenage years. So as a 1L student, I was very intrigued when I read the case People v. Goetz for my criminal law class. In that case, the New York Court of Appeals was trying to make sense of the notion of reasonableness in the usage of deadly force for self defense on a New York City subway train.

06:47

The facts are pretty straightforward. Bernard Goetz, a white man, had shot and wounded four unarmed black teenagers on a subway train. His argument in court was that he feared that he would be maimed when they had asked him for $5 because he had been robbed before, and so he shot them in self defense.

07:05

It wasn't the law itself that confounded me. Although I had that and still have a lot of criticisms regarding how we approach the issue of self defense and criminal law. What I could not figure out as a 1L student, was what this case was trying to teach me about lawyering, especially as a black man, who very well have could have been one of those black teenagers on that train perceived as a threat to law in order.

07:39

Instead, the next day after reading the case, I was subjected to a classroom experience. It really failed to reckon with the racial anxieties embedded in the case, and in many ways hindered my learning process. For example, when the unarmed black teenager Trayvon Martin was killed by a white vigilante George Zimmerman during my third year of law school, I really wasn't prepared to think critically about the moral implications of the doctrine of self defense against the backdrop of anti-black racism on display in that case, I also didn't have a clear answer for what my duty should be as a public citizen, as I headed to work for an international law firm in Washington DC, even as Black Lives Matter protests were erupting around the country.

08:22

And more recently, in 2020, when Kyle Rittenhouse, a 17-year-old white teenager, killed two men and wounded another with a semi-automatic AR-15 rifle while attending a protest against police violence in Kenosha, Wisconsin. The same claim arose again, self defense. And once again, I was confounded with the same question that had plagued me as a student: what does it mean to be a lawyer committed to justice when the law seemingly facilitates injustice? And how do you teach students to reckon with that question? So ultimately, this article for me is an initial effort now in my status as a law professor, to begin to think seriously about that question, and to think about what it means for me as I step into the classroom, and try to guide students on a journey to learn what the law is all about.

09:16

This article argues that the anti racist, democratic,  and movement lawyering principles advocated by progressive legal scholars should not be viewed merely as aspirational ideas for social justice law courses, but rather should be viewed as endemic to the fundamental purpose of legal education. Could you outline as specifically as possible how legal education can be changed to better fight against racism, economic oppression, or social injustice?

09:42

So this is a difficult question, one that I think law schools around the country are wrestling with. In the article that I previously mentioned, The Miseducation of Public Citizens, I discuss in detail several pedagogical principles that I believe can guide law professors toward addressing that question.

10:09

Legal education, I believe must shift from framing law school as a study of what law is toward also including a study of what the law can and perhaps should become.

11:05

Accordingly, by weaving into classroom discourse  concepts, like critical race theory, queer legal theory, and other types of critical outsider jurisprudence, by weaving in concepts from democratic theory, and other critical theoretical frames to evaluate cases like that of People v. Goetz, law professors can sharpen their students' understanding of the normative choices that are being made in the way that we frame law, and contextualize the winners and losers of legal cases.

11:39

They also can sharpen, I believe, their student's understanding of the relationship between law and the moral, economic, political and social dimensions of modern political discourse. Because ultimately, the law is not neutral and the evolution of law is, in fact inherently political.

12:02

In the article, you identify an existential identity crisis plaguing legal education, and feelings of disorientation among law students and law faculty alike, who find their lived experiences and cultural identities in conflict with dominant legal discourse. Why do you think this disorientation is so prevalent among law school students and

12:23

I think that's a great question. So to be sure, there are certainly many people outside of the law school building that are experiencing a sense of disorientation between what the law says, the principles upon which our constitution stands -- principles like liberty and equality-- and what the law does, the violence and tragedies inflicted upon marginalized communities who endure inequitable access to critical resources such as affordable housing, or access to democracy, via voting, or access to safe communities without over policing, etc. So, there is a kind of national disorientation that we all feel to a certain degree, that stems from a much deeper existential crisis that speaks to very to the very question of what it means to be an American, and a nation built from the wealth of a slave society upon the land of dispossessed indigenous nations.

13:22

However, as you noted, in your question, I do identify in this article, a very specific existential existential crisis within law schools. And to me that stems from the fact that law students and law professors have lives outside of the law school building where they can see firsthand what the law does, they can witness the injustices of law, and they may even come face to face with the harms of policing, or pollution, or even discrimination. Yet inside of the law school building, equipped with the language of law, and coming to face with a deeper understanding of the way law constitutes the culture that shapes our social system, law professors and law students are empowered to change what the law says. Or at the very least, they're empowered to influence what the law does. So the question then becomes, what does it mean to be a good lawyer when you are equipped with the tools to change the language of law in a world where the language of law inflicts so much harm upon so many people?

14:59

the lawyer's role, and by extension, the purpose of law schools as they wrestle with this existential crisis.

14:59

The article includes a quote from Charles Hamilton Houston that suggests many law students question whether they are "becoming a social engineer, or merely another parasite on society." How can law students strive to become the former and not the latter?

15:26

So I love this quote, because I think it's honest.

15:30

You know, some law students are made to believe that they are merely market tacticians, learning unique skills that will position them to fit square pegs into square holes, and be paid handsomely for it by the highest bidder in the marketplace. But when one attains and in-depth knowledge of the language of law, and the relationship between law and political society, a few key insights emerge. First, one discovers that law in many ways constitutes our social reality, such that the very concept of law is enmeshed with the concept of society. Hence, the scholarly movement that preceded critical legal studies was called Law and Society. Secondly, one realizes through a study of legal history, that laws can change. Thus thinking about law as a widget, and the lawyer as a tactician who is skilled in manipulating the widget, is a flawed mental model. Instead, the law is more appropriately viewed as a set of rules that governs a socio-political system. Much like physics, is a kind of science that seeks to describe a set of rules that governs the operation of the ecological systems and physical systems in our built environment. And of course, rules can change, which means that our socio-political system can also change. Indeed, the very project of reconstruction, initiated by the Reconstruction Amendments in the 19th century was a project the rewriting the rules of the law to transform the function of our socio political system.

17:10

That to me, someone who studied mechanical engineering in college, is in fact a kind of social engineering. As an engineer, one can build machines and systems that kill or as an engineer, one can build machines and systems that save lives.

17:28

So similarly, I think lawyers, as social engineers, as it were, have a choice to make. And it begins with learning how the rules of law shaped the operation of our socio political systems, and then deciding what kinds of machines, what kinds of systems do we want to build as lawyers with the law as our tool.

17:53

There's growing social and political pressure for law schools to become anti-racist by more intentionally engaging racial justice in the classroom. How should law schools pursue such goals? So I think this is a really important question. And I'm glad to see that more law schools are trying to engage the concept of anti-racism, which is very different than the concept of diversity.

18:22

with looking at who is actually inside of the classroom, which is to say, what is the demographic makeup of law students, and law faculty, and staff and law schools considered under the phrase, "inclusion." And I think that's the question of what is being read inside of the law classroom.

19:37

As we all know, the typical law school classroom emphasizes legal cases and legal cases throughout the United States history has primarily been authored by white males. And although judges strive to present a neutral and unbiased position they

20:26

leaving certain groups off the page entirely. And in fact, the effort to be neutral or quote, unquote, colorblind, in the writing of law has often left out of legal opinions a discussion about issues of culture or race that may impact how certain communities receive and engage with law. And so increasingly, law schools are adding other materials into the curriculum, whether it's

21:36

And I think that goes to the question of, of legal pedagogy with many schools are really thinking intentionally about, and to me, it's more than simply diversifying the way that students are engaged within the classroom, which is to say, shifting beyond a pure socratic method and integrating small group problems, or experiential activities. That to me, that is merely scratching the surface and really just speaks to the theory-practice divide. Even more, I think law professors must take efforts to break down the traditional hierarchies that exist inside of the classroom and allow it to become more of a collaborative space where students have a more engaged role in the teaching and learning process. I think that, too, can break down

23:13

and also the way that they engaged racialized communities outside of the law schools walls, right? To what extent are they reaching outside of law school and inviting members of the community in to be a part of the conversation, right? To what extent is their legal scholarship intentionally trying to address issues that are facing marginalized communities around the law school's walls in their community? So I think those are just some of the ways that leading law schools today are trying to address the issue of anti-racism and being more intentional about engaging it in their classrooms. Can you describe for our listeners, what movement lawyering means and how it can help law students form greater awareness of the scope of their calling as public citizens? So I'm really excited about this question. Because I think movement lawyering is really important for students to learn for more students to learn about. Movement lawyering is a development in legal theory and lawyering practice that ultimately represents an alternative mode of advocacy, and more specifically, a kind of public interest advocacy. It focuses on building the power of non-elite constituencies, and it does so through integrated legal and political strategies. The history of public interest lawyering, particularly in the fields of civil rights and poverty law, kind of shows a steady shift away from focusing primarily on the courtroom as a space for legal advocacy.

24:55

More and more critical legal scholars are viewing this kind of shift, this kind of decay of liberal legalism as a way of recognizing the importance of engaging communities in the process of lawyering and dismantling the traditional hierarchies that exist between lawyers and the clients that they serve. And so in many ways, movement lawyering

25:28

is a way for lawyers to make a commitment to social movements. So it challenges the traditional schemas of law's relationship to society, which is to say, the notion that laws job is to function upon society, as opposed to recognizing laws relationship within society, and to work with society to construct the kind of democracy that we want to see.

26:13

to sort of think about what alternative possibilities there can be for democracy, for community development.

26:23

scholars who are writing about movement law are thinking about law, they're thinking about justice, they're thinking about social change. But they're thinking about these concepts in relation to existing social movements, in relation to local organizing, in relation to community-based

26:44

movements. And to be sure, some of these efforts rely upon litigation-centric campaigns. But also, lawyers in this capacity are, are mobilizing their clients by integrating their legal knowledge into advocacy and organizing strategies. They're working with communities to think about how to build community power, whether it's creating community-based organizations, whether it's advocating for

27:13

legislation that can give community institutions more power, such as via community benefits agreement or something like that end, whether it's mobilizing labor campaigns to challenge the efforts of corporations to take steps that might harm local communities. And all of these efforts kind of draw on the long scholarship of movement lawyering that has developed in the mid- to late-twentieth-century, scholars like Joe Lopez, that are challenging us to think about lawyering practice through the lens of cultural studies, through the lens of race and ethnicity, through the lens of political economy, and ultimately, through the lens of cultural history. I noticed that there were lyrics from the musical artists, Drake, at the very beginning of the article, would you be willing to share the story behind that? Yeah, I'd love to.

28:11

So at the beginning of the article, I include before the introduction, lyrics from Future and Drake's song, Life is Good. And the lyrics that I include are, "working on the weekend, like usual, way off in the deep end, like usual."

28:32

And for me, beginning, a law review article with a hip-hop quote,

28:47

the voices of hip-hop, and the voices of communities into scholarship in an intentional way, to me, I think that's an important part of recognizing that democratic discourse is not something that merely happens between lawyers or members of a kind of elite class of thinkers. But it's also something that is happening in communities, in culture in music.

29:14

And so I think it's important for us as scholars to recognize that even non-lawyers are thinking about these issues in very tangible ways, right thinking about the meaning of work, thinking about the meaning of their time and their rights and what they're owed. So I always integrate hip-hop, to the extent that I can, into my law review articles, not just because I grew up in the Bronx, but I think that it's a special kind of democratic discourse. And to be sure, it has its shortcomings, and in many ways, has been commoditized in a variety of ways and wrestles with its own shortcomings, yet, I think it ultimately reflects a medium by which members of the community

30:11

reflects in a sense, how I come to this topic of the purpose of legal education, which was, I went to law school to become a lawyer. And I learned after graduating from law school and heading to a big law firm, that part of working in Big Law was working on the weekend like usual. And

30:38

that work, and that lack of work-life balance, and recognizing that that type of work environment and to be sure, you know, there certainly are law firms that do excellent work. But I think it's important to recognize that there are law firms that, in fact, help our system of corporate capture, as it were to continue to churn, that kind of work can be draining. And it can push young lawyers to feel as if they're in the deep end, so to speak, that they're lost and they're trying to get a grasp on what it means to be a public citizen when you're working for an institution that seems to be turning their eye away from the social movements that are happening. And in fact, I found myself sitting in my law office, while Black Lives Matter protests were happening outside my window, and very much felt like I was in the deep end,

31:41

working on the weekend, and really trying to make sense of how I had got there. And so for me, in that lyric, even though I'm certain Drake didn't mean it in that respect,for me, it's a way to think about what the project of lawyering is, what it should be, and what it means to be a public citizen in relationship to the issues that are plaguing everyday folks in the communities around us. Professor Toussasint, thank you so much for joining us and discussing your article. I just want to thank the California Law Review. I really appreciate the efforts that your law review, your institution, has taken over the years to amplify the voices of scholars who care about communities in an intentional way. And I think the California Law Review has really established yourself as a leader in terms of law reviews, and by extension, law schools who are committed

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to teaching a kind of law that prioritizes marginalized communities that prioritizes working toward a vision of democracy that can uplift everyone. I think it's important work. And I think it's worthy of applause. And I think more law schools, and more law reviews, should should really take a lesson from the work that you all are doing. And so I applaud you and I applaud your colleagues, for just continuing to uplift scholars, and uplift important issues that needs to be discussed. So thank you.

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We hope you've enjoyed this episode of The California Law Review podcast. If you would like to read Professor Toussaint’s article, you can find it in Volume 111, Issue One of the California Law Review at californialawreview.org. For updates on new episodes and articles, please follow us on Twitter. You can find a list of the editors who worked on this volume of the podcast in the show notes. See you in the next episode.