A Tocquevillian Take on Moyn and Law Schools

2 January 2019

Last month, Samuel Moyn declared in The Chronicle of Higher Education that law schools might be bad for democracy. He seems to have struck a nerve. Moyn, a prominent human rights theorist and Professor of Law and History at Yale, contends that American law schools are carrying out an increasingly schizophrenic mission (check out the Tocqueville21 roundtable on Moyn’s latest book here). The obvious answer to Moyn’s question concerning what law schools are for is that they exist to produce successful lawyers. But this response makes those at the upper echelon of the American legal academy uneasy. It exposes their mission as, at once, too elitist and too mercenary. Moyn observes that students want to “believe that they are doing more than enrolling in a trade school.” And law professors like himself hope that their scholarship amounts to more than an academic justification of “unjustifiable hierarchies.”

Moyn doesn’t mention Tocqueville, but he puts his finger on a classic Tocquevillian paradox: what the Frenchman called the “legal spirit in the United States.” Famously, Tocqueville celebrated lawyers for performing an important counter-majoritarian function (Democracy in America I.2.8). In common law countries like England and America, Tocqueville said, the lawyer acquires an “occult body of knowledge,” even coming to resemble “an Egyptian priest.” For Tocqueville, the sphinxlike character of the law was salutary in a democracy precisely because it is not available to all citizens. Lawyers represent a privileged, anti-revolutionary class, which exists to temper the despotic tendencies that Tocqueville associated with an unchecked democratic majority.

The contemporary legal academy that Moyn describes, however, is more reticent about its counter-majoritarian power—even as this power intensifies. Many are sheepish to admit that, in all likelihood, top law students are being primed for either Big Law or the higher judiciary. Graduates of Yale often do both, transitioning from a prestigious federal clerkship to a white-shoe firm (Moyn quotes the $400,000 firm bonus for Supreme Court clerks). For Moyn, the fact that the “first year, law-school curricula still revolve around the mystique of common-law judging”—what Tocqueville praised as a priestly craft— only encourages students to revere the judiciary and obsess over clerkships. Regardless of their path after law school, Moyn explains, graduates are trained to “think about the law from the perspective of the judiciary (rather than the legislature or the people).”

Law schools have tried to atone for the elitist and ethereal nature of the law by sponsoring a variety of hands-on “clinics.” Moyn reports that:

students sign up in droves for clinics that provide access to social-justice practice. The schools call it ‘experiential learning.’ Students might try to get people out of jail or bring a case to an international human-rights court. Rarely asked, however, is whether the clinical revolution is actually about changing the world. For individuals, it might help provide an alibi for the grubby scramble for advantage. If your social-justice work harmonizes so easily with elite credentialing for power and wealth, is it good for society? Or even for you?

In a sense, Moyn’s objection is that law schools are performing their counter-majoritarian function too well; students learn that the scramble to the top is permissible—even noble—so long as it’s presented in a sufficiently democratic light. But the cognitive dissonance that Moyn sees in this “clinical revolution” was already present among Tocqueville’s nineteenth-century lawyers. As Tocqueville put it, “If lawyers are naturally drawn by their tastes to the aristocracy and the prince, they are naturally drawn to the people by their interests.” With lawyers as the “natural liaison” between the people and the aristocracy (and today’s American “aristocracy” includes a good number of lawyers), we shouldn’t be surprised that law students develop a personal and civic interest in pro bono work at the same time that they fantasize about their starting salaries.

Yet if Tocqueville remains right about the basic psychology of the law, what are we to do about it? After all, the attorneys Tocqueville observed developed their aristocratic temperament without ever setting foot in a T14 law school. Is the problem today that we’re no longer comfortable with counter-majoritarianism, or just that law schools are a disingenuous place to go about checking democracy’s excesses? The tension exists in the larger society as well. Americans love to kvetch about lawyers, while secretly hoping their kids will go to law school.

Moyn admits he doesn’t have many immediate solutions for reforming the schools at the top rung of the U.S. News rankings. But I agree with him that less hypocrisy and more humility would help steer us away from judicial activism, on both sides. Moyn wants more reflection on the legal profession’s purpose and calls upon faculty to “help demystify” the law (in other words, to make it less the realm of the Egyptian priest). To apply Tocqueville’s terms, Moyn is encouraging lawyers to consciously reduce their “liaison” role. Instead of righteously traveling between the clinic and the court, their goal should be asking how the chasm between the people and the elites became so large to begin with.

I’m perhaps more Tocquevillian than Moyn in my belief that democracy requires tools to curb the majority and that the law should safeguard individual rights, even when the collective benefits are unclear. However, I’m equally suspicious of our legal aristocracy. Moyn is surely right that law schools need to start with an honest conversation that acknowledges how the law does (and doesn’t) serve the interests of ordinary citizens. If Tocqueville was correct that the power of the law eventually “envelopes the whole of society,” this is a conversation worth having.


Photo Credit: Stepnout, Yale Law School Courtyard, via Flickr, CC BY 2.0.


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