Consider the Law School

Justin Pen hopes his lecturers don’t read this.

law-school-burning

law-school-burning

The Sydney Law School is the jewel in the University’s sandstone crown. It is ranked tenth in the world under the QS World University Rankings. It has produced five prime ministers, two judges of the International Court of Justice and is only one justice shy of laying a majority claim to the High Court. But in spite of all the pomp and prestige, it’s worth considering: what does Sydney Law School actually teach its students?

Of the ‘Priestley  11’, an assortment of subjects that Australian students must cover to work as legal practitioners, only three  courses taught at Sydney University (Criminal Law, The Legal Profession, and Civil and Criminal Procedure) explicitly assess the law’s impact on marginal groups. Issues surrounding access to justice receive a fleeting glance in the first subject every student studies, Foundations of Law, and are then chiefly ignored.

Indigenous perspectives are sorely lacking in ‘Real Property’. Subjects such as ‘Torts’, ‘Contracts’ and ‘Torts and Contracts II’ provide detailed scaffolding on the historic development of the law, comparisons to international jurisdictions, and the litany of rules, caveats and exceptions – but fail to inform students that legal safeguards are accessible only to those that can afford them.

Worse still, the Law School remains silent on the implications that entrenched maldistribution has on the already dispossessed. What capacity does the legal system actually have for providing real or transformative justice when access and expertise is so stacked against the most vulnerable? What is the value of a legal system that effectively protects the economic and property rights of the ‘Haves’ to the detriment of the ‘Have Nots’?

These are questions that are either side-stepped – “I’m sorry, that’s not within the scope of this course” – or answered with a cold, albeit honest, shrug – “whoever has the deepest pockets wins.”

Associate Dean Fiona Burns defends the Law School’s curriculum. “The central role and duty of the Law School is to equip students with the necessary knowledge, skills and qualities for accreditation to practise law,” she tells me.

She further contends that social justice issues are available, through optional or extra-curricular, avenues. “The Law School offers a wide range of electives and other student focused activities (such as internships and participation in moots) to enable reflection on social and economic issues.”

That law schools diminish progressive outcomes is, unfortunately, inevitable. It follows the trend of universities succumbing to financial pressures, and of students becoming C.V. slates. Following successive cuts to higher education, university administrators have mobilised staff and students to conform to quantifiable, standardized, and ultimately marketable indicia. This process has reduced a legal education – from a forum on politics, power and the law – to a vocational degree. The object of a five-year legal education is a six-figure corporate job.

The effects of a myopic legal education are additionally insidious when wealth and career are conflated with happiness and identity. In 2009, research by the University of Sydney Brain and Mind Research Institute revealed that 35 per cent of law students reported “high” or “very high” levels of distress. These levels of distress are nearly triple those of the general population. The Australian Law Student Association’s publication, Depression in Australian Law Schools, identifies “perfectionism and pessimism” as key contributors to mental illness. It’s no surprise then that a culture of competition is incubated in the classroom. Peers compete for marks, clerkships and grad offers.

Status-hungry shoppers are known to sociologists as conspicuous consumers. Correspondingly, hyper-competitive law students are conspicuous careerists.

A potential panacea has arrived in the form of the Critical Legal Students Network (CLSN) and Radical Lawyers’ Network (RLN). CLSN is a fortnightly discussion group started by fourth-year LLB students Oscar Monaghan, Jim Clifford, Judy Zhu and fifth-year student Ellen O’Brien. The group aims to create space for reflection, education, and networking amongst members with a focus on “transformative social change,” Monaghan tells me. Similarly, recent UTS law graduate Chris Gall informs me his vision for RLN is to “create decentralized groups of legal students and professionals” that will “organize around their own projects and draw upon support from other groups in the networks.”

CLSN and RLN draw strongly on the intellectual and methodological traditions of the Critical Legal Studies movement. Challenging the basic assumptions of objectivity and equality before the law, they examine the power of race, class, gender, socioeconomic status, and sexuality in modern legal systems.

Both networks reject the orthodox ‘black letter’ approach adopted by orthodox law schools, which focuses on a technical understanding of the legal system and presents its rules as neutral or objective. Gall rebuts the framework, asserting that it fails to ask: “who wins, who loses… and how we could do things better?” Monaghan, too, is skeptical of black letter pedagogy. “Divorcing the study of law from the study of power provides only the veneer of understanding,” he says. Rather, CLSN and RLN both advocate for holistic understandings of the law and its intersection with race, class, gender and ability.

Sydney University Law Society (SULS) President James Higgins agrees with the contention that the law school’s black letter approach is insufficient. “Most law schools aren’t necessarily in the business of producing reformist lawyers,” he observes. “Sydney, in particular, has a history of its graduates taking the commercial law path.”

“Change is often slow in large institutions, but I think Sydney is moving in the right direction and will continue to do so with the involvement of passionate students and staff,” he adds.

The intransigence of Sydney Law School is not an exceptional phenomenon. Gall is similarly critical of UTS Law. Subjects that carry critical perspectives are relegated to “the fringes of legal education, usually taught as optional electives,” he says, “and usually [cover] too much content in too little time.”

The content of a legal education is not even its sole limitation. Down south, the University of Melbourne’s eponymous ‘Melbourne Model’ further stratifies enrolment on financial capacity. In a controversial move in 2008, Vice Chancellor Glyn Davies compressed the university’s 96 undergraduate courses into just six programs, placing a greater emphasis on expensive post-graduate education.

At Melbourne, a law degree is offered only through the cost-prohibitive Juris Doctor (JD) program. The JD requires students to complete and finance prior studies; the three-year course costs $110,162. By comparison, Sydney Law School’s most expensive undergraduate program, the five-year B. Economics/B.  Law, costs $50,425. In 2011, only half of Melbourne University’s JD students held Commonwealth Supported Places (CSPs) leaving the other half to pay full fees.

Dean Spade, a Seattle-based lawyer and activist, asserts that even the work of the noblest legal practitioners ultimately amounts to little more than bureaucratic muck-raking. In his essay For Those Considering Law School, Spade contends that social change “doesn’t come from the top – from elites granting change through legislation or courts.” On a practical level, he suggests that students “need to form [their] own reading groups and other support spaces to learn what is not taught.”

The emergence of student networks like CLSN and RLN certainly demonstrate that top-tier law schools have a lot to learn and to teach.