This week’s post is by Professor of Law and Director of the Lawyering Program at City University of New York School of Law, Eduardo Capulong. He is a past co-chair of the American Association of Law Schools Section on Clinical Legal Education. He has also served on the boards of the Montana ACLU, Society of American Law Teachers, National Lawyers Guild (San Francisco), International Endowment for Democracy, Center on Juvenile and Criminal Justice, and Asian American Legal Defense and Education Fund. But many know him as a Professor of Law and inaugural Associate Dean for Clinical and Experiential Education at the University of Montana. He returned to New York in 2019.
No less than Columbus’ namesake founded U.S. legal education. Christopher Columbus Langdell devised the “case method”—the formalistic “science” of “discovering” law from appellate court opinions through the process of “legal reasoning.” As dean of Harvard Law School in the late nineteenth century, Langdell institutionalized the case method during the eras of Reconstruction, Redemption, and Jim Crow, cementing the cast of the modern legal curriculum in segregated law schools as newly-freed Blacks struggled for racial equality post-Emancipation.
The case method remains the hallmark of law school. Today, as in Langdell’s time, “thinking like a lawyer” means analyzing the human condition “objectively” and “impartially”, from what Kimberle Crenshaw calls a “norm of perspectivelessness.” Now, as then, students study doctrine—contracts, property, torts, criminal law, and civil procedure in the first year—in technocratic fashion, shorn of the social struggles, politics, and values of which law is part and from which it issues. Now, as then, with neutrality, rationality, and adherence to precedent as virtues, law students learn little, if at all, about systemic racism and the foundational role of law and lawyering in its construction and perpetuation. Instead, the law school norm is white—as well as male, heterosexual, upper-class-identified, able-bodied, and politically conservative. Law students are schooled in myths of color-blindness and individual merit that simultaneously obscure race and exceptionalize racism into a system of individual rights and liabilities. Law school, in other words, remains a training ground for white supremacy.
Scholars—critical race theorists, in particular—have sought to overthrow this state-of-affairs for decades. Race, racism, and the law are mutually constitutive, they argue: we can’t understand one without the other. As Ian Haney Lopez put it,
law not only constructs race, but race constructs law: racial conflicts distort the drafting and implementation of laws; skew the development, character and mission of legal bureaucracies; alter how various communities, including Whites, understand and interact with legal institutions; and twist the self-conception of legal actors, from lawmakers to lawyers, cops to judges.
Yet law schools have been impervious. Race and racism continue to be marginal to the core curriculum. When these issues arise, as they inevitably do, they are often deemed as irrelevant, indeed inimical to doctrinal rigor and a threat to doctrinal coverage. Whatever discussion may ensue is often superficial and mismanaged, in part because 8 of 10 full-time law professors are white and many of us are race-illiterate, ourselves the product of the Langdellian method. The last time legal education underwent a major transformation was during the civil rights movement, when law students’ demand for educational relevance led to the proliferation of clinical legal education. Where the Langdellian doctrinal curriculum is white-normative, clinical legal education today represents the opposite—literally. In schools across the country, law clinics represent immigrants, civil rights plaintiffs, and the disproportionate number of BIPOC people who are criminal defendants, among many others disfranchised by racism.
The movement for Black lives offers a similar opportunity today. Law schools (and law firms) across the country have denounced anti-Black police violence and asserted opposition to systemic racism. We should follow up on that sentiment by examining our own role in the production and legitimation of white supremacy, securing a permanent place for the study of race and racism in the core curriculum, and developing lawyering practices to end them. Our own reckoning will succeed only if we teach law and lawyering as antiracist practice—as abolition and reparations as much as anti-Black violence, segregation and carceralism; as Native resistance as much as settler colonialism; as multiracial labor solidarity as much as racial capitalism; as self-determination as much as imperialism. Our students deserve no less. I’m proud to say that we are beginning to do this at my institution. Unanimous in our belief that Black Lives Matter, the entire CUNY Law School faculty and administration are undertaking concrete plenary efforts in this regard. We are also part of an all-New York City law school network pursuing similar goals and are holding a virtual conference to discuss these issues on July 9 and 10.
Race and racism are legal constructs. If law is an essential institution of a truly post-racial society, then law schools have a significant role to play in dismantling them and reconstructing genuine human equality. Langdell’s monument may not deserve the same fate as his namesake’s statues—antiracist lawyers still do need skills in legal reasoning to practice in existing institutions, after all. But it requires serious reexamination.
Please note, this piece was originally published in Jurist earlier this year, and is republished with the permission of the Author, Eduardo Capulong.