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Ideology and legitimation

[ 24 ] January 30, 2012 |

“Ideology” can mean a number of things. I’m using it here in the sense of the received consciousness of a particular social order, which legitimates that order and helps reproduce it. The lawyer and sociologist David Riesman aptly described how ideological modes of thought produce a kind of “sincere” mental state that allows someone to habitually believe his own propaganda. A dominant ideology generates a set of views that distort social reality in a particular way: in a way which advances the economic interests of the dominant group, without the members of the group becoming conscious of the fact that they believe what they believe because it is in their self-interest to believe it.

A simple example might be how the ideology of free enterprise capitalism in early 21st century America creates a sincere belief in the mind of a hedge fund manager that paying himself a salary of one billion dollars, which is then taxed at a lower rate than the salary of the average American full-time worker, is wealth maximizing for society as a whole, and therefore by definition a good thing.

An unavoidable difficulty that arises when one points out that in many respects contemporary American legal education functions as a scam is that this observation creates a defensive reaction, which involves claiming that it isn’t a scam because no one consciously intends that it be one. Now this claim about the scam’s lack of intentionality is for the most part true. I very much doubt that, even now, more than a small minority of people in legal academia understand themselves to be participating in a scam, and the size of the subset of people within that group who intend that it should be one may well be literally zero.

The overwhelming majority of legal academics would most sincerely and vehemently deny that law school is a scam. Now if, despite this deeply sincere belief, law school functions as a scam anyway, then what we’re dealing with is what can be called a legitimated scam. A legitimated scam is a scam which is not understood to be such by those profiting from it, but which is interpreted as being something else altogether. It will be seen that what a legitimated scam requires is an ideology — a set of beliefs that allow those who profit from the structure of the enterprise to misunderstand the nature of that structure, in a way that allows them to behave in a fashion that advances their own interests, while at the same time believing (again, with all sincerity) that the purpose of their behavior is something else.

This is what makes the law school scam fundamentally different, as a qualitative matter, from something like Bernie Madoff’s Ponzi scheme. Madoff, assuming he hadn’t become what the mental health profession would characterize as delusional, did not understand himself to be doing anything other than ripping off his customers. He was not, in other words, functioning under any ideological misapprehensions. He was simply stealing from people, and he knew it (some of the people from whom he was stealing surely suspected what he was doing, in which case they, too, were stealing from fellow participants in the scam).

By contrast, the law school scam depends crucially on ideological misapprehension: on the maintenance of a sincere and widespread belief among those of us who profit from it that it is something other than what it is. Here I will list a few of the specific beliefs which help maintain this more general faith:

(1) Law school turns law students into critical thinkers. Critical thinking is valuable for its own sake, and has value for those graduates who go on to do something other than practice law.

(2) A law degree is a versatile credential, which is considered desirable by non-legal employers, such as the Pittsburgh Steelers, who might make you president of the organization.

(3) Law graduates are having trouble getting jobs as lawyers because of the overall state of the economy, and complaints about under- and unemployment will return to historic (translation: acceptable) levels as soon as the general economy has recovered, because in a complex modern economy there will always be a high demand for legal services.

(4) Law graduates, like other disaffected young people, have an entitlement mentality, and believe that a law degree entitles them to a six-figure starting salary.

(5) Legal jobs are available for those graduates who are willing to do lower-paying government and public interest work, or who don’t mind moving from Atlanta to Nebraska.

(6) The Income-Based Repayment program makes law school a good investment.

(7) Tuition is so high because legal education is inherently expensive.

(8) Subsidizing the production of 10,000 law review articles a year is a good use of tuition revenues.

(9) Prospective law students who undertake due diligence regarding employment prospects prior to enrolling are consciously assuming the risk of ending up with massive educational debts and no job. Those who do not undertake such research are barred from complaining by the doctrine of contributory negligence.

(10) Law school isn’t any more of a “scam” than higher education in general, or for that matter the post-industrial American economy.

Within minutes of posting this, readers came up with a couple of terrific additions that I can’t resist adding (there are no doubt many more).

(11) Law school, and the availability of loans for law school is an important part of the social mobility and egalitarianism that makes this country such a wonderful place. Any student, from any background, attending any school could conceivably become a great lawyer, and to deny people that opportunity is wrong.

(12) Yale Law School is awesome.

Once subjected to serious scrutiny, these beliefs are revealed to run a gamut from the irrelevant, to the highly questionable, to the obviously preposterous. An ideology functions by ensuring, to the extent possible, that such scrutiny doesn’t occur. It does so by raising these sorts of beliefs into the realm of the taken for granted, the commonsensical, the things that “serious people” don’t question or for that matter even think about. That legal education in its present form is, despite whatever problems it may have, a fundamentally Good Thing is a belief that can’t be questioned as long as one functions, even marginally, within the ideological structure of American legal academia.

Indeed, it has been pointed out that questioning that belief ought by itself to disqualify one from performing the professionalization function that is the law school’s primary reason for being. In other words, go be a sociologist if you want to ask questions like that (David Riesman, who graduated at the top of his HLS class and clerked for Brandeis, did just that, as not surprisingly he found legal academia less than congenial to his intellectual interests).

In short, ideology patrols the borders of acceptable thought in a way that is designed to maintain the status quo, without those either benefiting from or being harmed by that status quo becoming aware of that design. Thus “design” should be understood here to be a metaphor for the unconscious circulation of social power, rather than a description of a conscious conspiracy. Conscious conspiracies to defraud, after all, are, as any law professor could tell you, illegal. Unconscious ones, on the other hand, tend to be much more successful.

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  1. actor212 says:

    You’re really looking to defend that 2011 Lawyer of the Year Award, aintcha?

  2. Watusie says:

    Slightly OT, but another example would be Rick Santorum taking his sick daughter to a hospital (not a church) and then proclaiming it is a “miracle” when she gets better.

  3. Amok92 says:

    It would have been cool if you just linked to Instapundit for point # 1 so people can see this “critical thinkng” at work.

    • UberMitch says:

      Heh, indeed

    • R Johnston says:

      A lack of critical thinking in the law isn’t a matter of anecdote; it’s a matter of empirical data.

      The single most dejecting thing about actual legal practice is how it absolutely requires the turning off of the brain. Legal argument is absurdly stylized and is antithetical to logical argument. It is amazing how frequently you encounter lawyers who don’t merely turn off their brains but who are literally incapable of understanding that one plus two equals three and who can’t be convinced to settle a case or, as a judge, to decide a case, based on such a premise or it’s obvious equivalent.

      That’s not, by the way, in any way a misuse of the word “literally.” You’d think, for example, that you wouldn’t be able to find a judge who can’t be made to understand that nine months is greater than ninety days; you’d be wrong. When I had a judge decide a case against me based on the inability to understand that 90 + 180 = 270 and then my supervisors didn’t think the decision was worth appealing, that’s when I knew I had to get out of legal practice or face the certainty of one day ending up jailed on a contempt of court charge.

      Lawyers, as a category of people, systematically overrate their critical thinking ability to a greater extent than do members of any other category of people I can think of. And, as a former law review editor, I feel confident in noting that this is as much of a problem in legal scholarship as it is in broader legal practice. I read a whole lot of law review articles by a whole lot of Ivy League professors and encountered few if any that exhibited engagement in actual critical thinking.

      • asdfsdf says:

        “When I had a judge decide a case against me based on the inability to understand that 90 + 180 = 270″

        That sounds like quite a story.

        • R Johnston says:

          Short version:

          Client defendant defaulted long before I worked there. After a default, plaintiff has 90 days to submit a proposed judgment based on that default. After that the law requires the plaintiff to submit an affidavit alleging some legally valid reason for the failure to timely submit a proposed judgment, otherwise the default will be voided and the plaintiff barred from refiling.

          Three years after obtaining a default judgment decision against the client, plaintiff finally files a proposed judgment with the court. Plaintiff does this through an attorney, without any affidavit alleging cause. The court rejects the proposal out of hand for the failure to include an affidavit.

          Approximately nine months, or 270 days, later, plaintiff again files a proposed judgment with the court, through the same attorney, this time including an affidavit. The only reason included in the affidavit for the failure to file within ninety days of the original decision is that the plaintiff at the time of the original case was pro bono, lacking an attorney, and didn’t know any better. The affidavit alleges no reason at all for the failure to refile within the past 270 days during which the plaintiff has been continuously represented on this specific matter by the same attorney.

          The court ruled that the affidavit was sufficient and enforced the plaintiffs proposed judgment.

          270 days is, of course, more than 90 days, so that even if the court found the affidavit to allege sufficient cause for the failure to file within three years, no cause at all was alleged for at least 180 days after the plaintiff’s excuse had expired.

          The court I dealt with also completely ignored the fact that the original complaint was completely without without substantive merit, not to mention procedurally barred having been filed a decade past the expiration of the statute of limitations with a court that explicitly had no jurisdiction to actually hear the matter even if it had been timely filed and that should have ruled against the plaintiff in the first place even in the event of a default.

          Still, despite all this, my supervisors didn’t think much of appealing the matter. For some reason, I was bitter and disillusioned after that experience.

  4. Dave says:

    O’course, using ‘ideology’ in the sense it is used here is, in itself, merely a demonstration of the ideological power of the concept of an underlying ‘social reality’ which is available for unambiguous analysis in a way which confirms the prejudices of the user of the term ‘ideology’.

    In other words, being the product of a circular and self-confirming process, it is very useful as a charge to fling at people whose patterns of thought you choose to disagree with, but entirely bogus as any kind of ‘objective’ or ‘rational’ analytical tool.

    But don’t let that bother you.

    • Paul Campos says:

      O’course, using ‘ideology’ in the sense it is used here is, in itself, merely a demonstration of the ideological power of the concept of an underlying ‘social reality’ which is available for unambiguous analysis in a way which confirms the prejudices of the user of the term ‘ideology’.

      This purported concept is actually not in any way entailed by the concept of ideology. But claims of logical circularity and self-confirmation are often handy devices for trying to shut down criticism.

    • anonymous says:

      Your complaint, read literally, regards the “ideological power of the concept of an underlying ‘social reality’ which is available for unambiguous analysis….”

      Who will liberate us from the tyranny of the social constructivists?

  5. Jeffrey Beaumont says:

    #1 would presumably be true, were law school free or inexpensive.

  6. BruceJ says:

    “A simple example might be how the ideology of free enterprise capitalism in early 21st century America creates a sincere belief in the mind of a hedge fund manager that paying himself a salary of one billion dollars, which is then taxed at a lower rate than the salary of the average American full-time worker, is wealth maximizing for society as a whole, and therefore by definition a good thing.”

    Actually the ideology of free enterprise capitalism in early 21st century America creates a sincere belief in the mind of that hedge fund manager that his $1 billion salary taxed at half the rate of the average American full time worker is utterly irrelevant. It is a good thing because he has a billion dollars taxed at 15%; his ideology says that the rest of society doesn’t count: “I got mine, Jack! Fuck off!”

    in an earlier time he would have been a Robber Baron, or a Crusader burning, raping, and pillaging his way to Jerusalem and back.

    Within this context it doesn’t matter that law school is largely a scam…he got his out of it. If he didn’t it doesn’t matter, he got his.

    The world is divided into two parts: himself and the marks.

    This is the essence of the Randian cult.

  7. Murc says:

    I think you’re pushing the definition of “scam” here, Paul. When most people think of the word “scam” they think of a deliberate con, legal or otherwise. It requires INTENT, is what I’m saying. An enterprise that is engaged in by people who don’t actually believe in any way they’re scamming people isn’t really a scam, I don’t think. “Scam” is a loaded term, implying bad faith on the part of the people engaged in it.

    When someone says ‘oh, these people are engaged in a scam’ I’m not sure the default assumption people reach is that while the enterprise itself is a scam, the people involved might or might not be consciously aware of it. They think “Bernie Madoff.” They think “Harold Hill.”

    • L2P says:

      Maybe.

      On the other hand, consider most New Age medicines, Chiropractors, any number of herbal remedies that lack any evidence that they do anything helpful at all. Lots of people would, and do, call that sort of thing a scam. The sincerity of the people pushing the remedy isn’t really the difference between a scam and a non-scam. The usefulness of the product is.

      Except to the believers, who of course simply believe and don’t think it a scam at all.

      • Bijan Parsia says:

        Yeah, I think there’s room for scams wherein the scammers are deluded to various degrees or who use a variety of epistemic tricks to keep them from manifesting a recognizably scamtastic intent.

        I think the term is particularly apt when the beneficiaries of the scam should reasonably know better. It may have a salutary shocking effect.

    • RodeoBob says:

      An enterprise that is engaged in by people who don’t actually believe in any way they’re scamming people isn’t really a scam, I don’t think. “Scam” is a loaded term, implying bad faith on the part of the people engaged in it.

      …this invites the question of what term would you use to describe an enterprise that charges exorbitant fees for a credential that has poor employment possibilities and weak earning power proportional to it’s acquisition cost?

      If I ran a culinary academy, charged $100,000 tuition for a cooking credential, and 50% of my graduates went on to earn $25,000/year as line cooks, (with the other 50% earning less or being unemployed) what term would you consider “acceptable” to describe that enterprise?

      Scam? Rip-off? Cheat?

      Yes, these are loaded terms! Given the evidence (tuition costs, employment rates, starting salaries, etc. etc. etc.) it’s clear that somewhere there is bad faith. The point of this post is that all the persons involved on the instutional side have found ways to rationalize away that bad faith.

      • Murc says:

        …this invites the question of what term would you use to describe an enterprise that charges exorbitant fees for a credential that has poor employment possibilities and weak earning power proportional to it’s acquisition cost?

        Assuming that all people involved in the enterprise are operating in good faith, I’d describe that as a horrifically bad and destructive business model.

        Yes, these are loaded terms! Given the evidence (tuition costs, employment rates, starting salaries, etc. etc. etc.) it’s clear that somewhere there is bad faith.

        Except that’s precisely the opposite, I think, of what Paul was arguing. He was saying that a scam can be a scam regardless of questions of either intent or of faith. Someone who actually believes their rationalizations is operating in GOOD faith, or at least with good intent.

        • RodeoBob says:

          Assuming that all people involved in the enterprise are operating in good faith, I’d describe that as a horrifically bad and destructive business model.

          So using a charged word like “scam” is undesirable, but using a phrase like “horrifically bad” is better because… it doesn’t imply bad faith? It just implies… badness?

          “Bad” does seem to imply “unsuccessful” or “undesirable to the enterprise”, and you would use it to describe a business model that seen revenues (tuition) rise year-over-year without a meaningful decrease in demand. It’s “bad” to the students in debt and by extension it’s bad to the taxpayers who subsidize and guarantee the loans, but to the rest of the stakeholders, it’s profitable and successful.

          You would describe a business model as “destructive” when it has proven sustainable for decades? If it really was “destructive”, wouldn’t we see a decrease in demand for the service? If it was truly destructive, wouldn’t the market have provided a lower-cost or higher-quality alternative?

          So, you would describe the business model for law schools, many for-profit colleges, Amway, and a host of other ongoing, successful, profitable enterprises as “horrifically bad” and “destructive”, despite their profitability for the shareholders and their ongoing sustained existence?

          You keep using that word. I do not think it means what you think it means.

    • Paul Campos says:

      Murc, I am pushing the definition of scam here, for a couple of reasons. First it’s quite possible for something to function as a scam from the perspective of its victims even if the beneficiaries are acting in good faith. From the victims’ perspective, the good faith of the beneficiaries is if anything an impediment to reform. “It is difficult to get a man to understand something if his salary depends on his not understanding it.”

      Second, the outraged reaction which is a natural consequence of people who are operating in “good faith,” i.e., in ideologically-determined ignorance of the actual social conditions upon which their employment depends, being told that what they’re doing is a scam can in turn be used to raise consciousness. “OK, so you’re outraged that I’m calling this a scam. If somebody was intentionally doing X and Y and Z and profiting from it would you call that a scam? Yes? Well what if they were doing it unintentionally, and then became aware that X and Y and Z were in fact the consequences of their actions? Is it a scam now?” Etc.

      • Murc says:

        Fair enough, Paul.

        I’m a bit of a language nerd, and this struck me as enough of a gray area to require some unpacking. And I will freely admit that my own position is rather weaker than I’d like; L2P upthread makes the strong point that if you say “New Age medicine is a scam”, most people will understand that you’re not calling every crystal-seller a con artist. This is as opposed to the more generic “Person X is engaged in a scam” statement, where, assuming you believe the statement, will usually lead to the assumption that Person X is actively engaged in lies and deceit.

        I personally also distrust using terms that are loaded in ways that, while technically true, require the construction of an edifice around them to justify their usage. That’s a common rhetorical tactic, but it’s purpose is to get the loaded term to associate with something it wouldn’t be commonly be associated with.

        However, your point re: using the outrage sparked by a claim that pushed the usual boundaries in order to raise consciousness is well-taken indeed.

        I apologize for thread-jacking a little bit.

      • rea says:

        I’ll be, well, legalistic, and point out that a wilful and wanton indifference to the fact that the natural and probable consequences of one’s acts is to inflict harm is the equivalent of an intent to inflict harm.

  8. Allison says:

    Law school comprised 3 of the most enjoyable years of my life. It was, in essence, a $150,000 “life experience”: bonding with peers made intense and meaningful by the extreme pressure of the environment, and learning some new skills and having them tested in high-stress situations.

    I could have reaped the same benefits by joining the military after college. Why in the hell didn’t I do that instead?

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