Document Type

Article

Publication Title

Buffalo Law Review

Abstract

The American legal profession has long been organized along hierarchical lines, and in many instances, status inequalities between attorneys are based on perceived differences in attorneys' educational credentials. Relying upon the theories of French sociologist Pierre Bourdieu, this essay will discuss how American legal educational institutions operate to reproduce the stratification within the legal profession and within society as a whole.

American law schools are not equalizing institutions that erase all class differences among students to create a profession that awards all of its members a monolithic class status. By allocating professional status based on a system of educational tiers, ranks, and evaluation procedures, American law schools tend to replicate the stratified structure within the legal profession in a way that mirrors pre-existing differences among groups of students. The resulting status differences are then explained in objective terms of merit and intelligence (the 'myth of merit'), an explanation that causes law students to internalize a worldview for the legal profession that does not question how its divisional structures are created or maintained. Because the ideology of merit does not allow oppositional questions about the hierarchies within the profession, the stratification continues intact, generation after generation. Moreover, legal education's reliance on putatively objective explanations for its outcomes is quite similar to the way that the American common law tradition relies on formal, abstract, and objective heuristics to determine legal results, a process that obscures the fact that our system often produces unfair outcomes that favor dominant groups. Thus, in a way, the rationalist myths within legal education are part of a broader mechanism by which American law produces attitudes and values that help perpetuate our existing societal structure.

From a cultural standpoint, American law schools contribute to existing class differences between lawyers and non-lawyers with lessons that promote the practice of law as an elite upper-class profession. Bourdieu's conclusions about how class-based cultural preferences evolve can be applied to the legal profession to show how the legal profession maintains its aristocratic, high-status image through the outward display of symbolic goods and manners, creating an aura of taste, distinction and high culture. Law schools promote this imagery of the law profession as an upper-class culture of the law by teaching students how to exhibit outward behaviors that symbolize upper-class ideals. Learning how to maneuver through the cultural aspects of the legal profession can be quite alienating to those students who are not already familiar with the required aristocratic manners and styles.

The first part of this essay provides a foundational summary of Bourdieu's theories, which explain how social institutions, such as educational institutions, systematically replicate existing hierarchical structures within modern democratic societies. The second part of the essay discusses how Bourdieu's theories might be applied to American legal education, from the standpoint of its institutional structures as well as its culture. Part three offers a reflective critique that asks whether law teachers might be contributing to the status inequalities within the legal profession and society as a whole. Part four concludes with some thoughts on developing oppositional strategies, specifically focusing on the experiences of students at lower status schools. The challenge here is to develop a critical pedagogy that teaches students how to master the rules of the law game while concurrently developing a critical discourse designed to show how these rules tend to reinforce the inequality within the legal profession and society.

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First Page

1155

Last Page

1224

Publication Date

12-2008

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