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Rights Discourse as Kennedy Describes It

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Rights Discourse as Kennedy Describes It

The reading for this exercise is still Duncan Kennedy's chapter on hierarchy.

  1. Which of the following statements best describe Kennedy's attitude towards his law students?

    1. Kennedy expects any Harvard student to be able to recognize and resist the puffed up bull frogs of the academy hierarchy.

      Not so. On p. 61 he recognizes that: "It would be an extraordinary first-year student who could, on his own, develop a theoretically critical attitude toward this system."

    2. Kennedy believes that students are entitled to tough exams that will allow them to excel competitively.

      Not so. On p. 65, Kennedy says that "A more rational system would emphasize the way to learn law rather than rules, and skills rather than answers,' making students less competitive and more equal.

    3. Kennedy believes that even at Harvard most students are weak, lazy, incompetent, and insecure.

      Not so. On p. 65 Kennedy explicitly excoriates law school and "the educational system as a whole" for giving such an impression to its students. Note that he said "as a whole." That includes us, folks.

    4. Kennedy believes that most liberal students rely on rights discourse to deny the hierarchical arrogance of the law school and defend their liberal beliefs.

      True. On p. 62 he notes that this is a fallacy that assumes an adversarial system. The "rights" framework is, he says, "a part of the problem rather than of the solution.

    5. There are no "real" liberal students at Harvard.

      Not so. He discusses the liberal issue on pp. 61-2.

  2. Briefly explain "rights discourse." (Like 25 words or less, please.) p. 62

    Rights discourse is that legal doctrine that says that the legal system should guard peoples' rights and protect "human rights over mere property rights." the difficulty with this doctrine is that it is an ideal that has never been met. Says Kennedy: "The system fails to enforce the rights formally recognized."

    Kennedy says that "rights discourse" will not support the liberal students' expectations because the very concept of rights presupposes the wicked little unstated assumption that "the world is and should be divided between a state sector that enforces rights and a private sector" in which individuals are free to pursue their individual interests. But that is the social infrastructure pattern that has produced inequality and unequal access. It is the juxtaposition, as though they are not interdependent, of a state and a private sector. Kennedy maintains it is that very interdependence we need to recognize, in order to be able to grasp the concept of democratic workers controlling work schedules, profitability, planning, instead of leaving it in the hands of either the state or the private sector.

  3. Does Kennedy agree with Alfie Kohn that grades are detrimental? p.63 and for Kohn on grades.

    Yes. On p. 63 he says "Most of the process of differentiating students into bad, better, good could simply be dispensed with without the slightest detriment to the quality of legal services."


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