A Jeanne Site
California State University, Dominguez Hills
University of Wisconsin, Parkside
Latest update:October 25, 1998
Faculty on the Site.
The reading for this exercise is still Duncan Kennedy's chapter on 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."
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.
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.
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.
Not so. He discusses the liberal issue on pp. 61-2.
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.
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."