“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.
(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.