by Miguel Suarez Medina
Associate Editor, Vol. 25
Current law students are a major component of a law school’s recruitment process. Admissions offices depend on student participation, particularly students of color, to help convince talented candidates to apply and eventually attend. Michigan Law is no expectation. Most people I know who participate in these efforts happily do so. As Admission Co-Chair for the Latino Law Students Association (“LLSA”), I enjoy answering questions from applicants from across the country. Most students ask about job placement, rigor of the subject matter, and finances. Few will ask pointed questions about the curriculum.
I recently had the opportunity to talk to an admitted applicant. They (using gender-nonspecific pronouns) wanted to know how race was interwoven into our curriculum. They were concerned that law might be taught at Michigan devoid of any critical analysis on how race, gender, and overall power structures intersect with the law—particularly during the first year.
The question caught me off guard. Current students, particularly our peers of color, constantly grapple with this question. I thanked them for their question. I explained how all law schools maintain, more or less, the same 1L curriculum. I elaborated that we are constantly asking ourselves how legal instruction can better emphasize how race and gender impacts the law. I gave examples of when professors during my 1L year dedicated, albeit very limited, time to discuss these issues. I also attempted to encourage them by explaining that during your first year, you learn the doctrine so to equip oneself with the tools to challenge the doctrine. I don’t think there is a law student that doesn’t see the importance of learning doctrine for doctrine’s sake. That is, to learn the law as a set of logical notions and assertions, whose development form what we are told is legal doctrine.
Race is woefully absent from, what it seems, all law schools’ curriculums. As a 1L, I remember sitting through my classes quite frustrated how it seemed that we were being trained only to learn legal principles so to a distill a doctrine without asking how and why the doctrine came to be. Sure, it came up in Constitutional Law, but that’s mostly, I contend, because it’s the only 1L course where it is literally impossible to not discuss race and gender—i.e. slavery and suffrage.
Apparently, it didn’t have to be this way. This semester I am taking Professor Novak’s Modern Legal American History class. He told us about Christopher Columbus Langdell.[i] He was the Dean of Harvard Law School in the late 19th century and basically invented the case method, which is the study of case law to derive doctrine. He also introduced the Socratic style of teaching into law school instruction. He successfully promoted the idea that law is a science and that the case method is the most effective way to teach it. In short, that the law is a logical, coherent, and objective system stemming from an abstract foundation. While in Europe law students took courses in sociology, economics, history, and philosophy, U.S.-trained students were taught to apply “logic” in order to determine how any given case would be decided. In practice, law was (and often still is) taught in a sociopolitical vacuum where notions of race, gender, and power structures have no place, or if they are acknowledged, such notions square logically with the outcome of any given case. So … we largely owe all this to Christopher Columbus.
It’s been refreshing to take Professor Novak’s class where our readings challenge the legal origins of things like the Bill of Rights, corporate law, realism, and more. I can certainly see how it’s important to have a basic understanding of orthodox doctrine in order to understand the arguments presented in the assigned texts. Though I have a hard time accepting that first year law students aren’t equipped to learn the doctrine while, on a constant basis, studying it through a critical lens where race and gender are at the forefront, undermining a lot of the “logic” underpinning case law.
I remember learning about Iqbal in my first semester Civil Procedure class. Reading how detained people were treated left some of us jarred. I don’t recall the specifics, but one student asked if the professor thought Javaid Iqbal being Pakistani-American had any impact on the Court’s holding. The professor acknowledged the student’s concern but cautioned us against being legal realists with something along the lines that we weren’t quite ready yet. I’m halfway done with law school and revisiting that day frustrates me. How can anyone believe that the Court wasn’t influenced by the same fear of Middle Eastern and Muslim people living amongst us that swept the nation during the aftermath of September 11? The Court was willing to capitulate, with a non-obvious 5-4 decision, by greatly altering the Rule 8 pleading standard, making it easier to dismiss federal civil litigation cases and placing an immense burden on plaintiffs.
Are the concerns about race in Iqbal that different from the Slaughter-House Cases, in which the Reconstruction era Court maimed the 14th Amendment? Despite the written records of Radical Republicans who drafted the 14th Amendment, the Court narrowed the Privileges and Immunities Clause. Was the Court not animated by the fear of millions of newly freed Black people asserting their rights and the implication this had for White Supremacy? In another 5-4 decision, the Court denied Black citizens federal protection from Southern and Northern states’ repression against them. Adding insult to injury, the 5-4 Lochner Court read into the 14th Amendment—an Amendment born out of the devastating Civil War to end slavery—a liberty to contract that thwarted progressive workers’ legislation in the name of economic deregulation.
I’ve come to realize how fragile doctrine truly is. It bends, more often than I feel is openly acceptable to admit, to the tides of society. What more proof is needed than the Civil War? The Union violently fractured in two because the Founding Fathers failed in their Constitution to reconcile the illogical absurdity of slavery with the supposed revolutionary ideals of the Deceleration of Independence. Finding a single, unifying theory or principle to coherently explain our nation’s legal development is a quixotic endeavor.
It’s rather demoralizing that the Legal Academy, even within Michigan Law classrooms, places so little emphasis on how current events and social dynamics impact legal doctrine. It’s exhausting to sit through the fetishization of doctrine, while Black and Brown people are being killed and their rights trampled upon by the police and the state. Irrespective of what the doctrine would lead us to believe, for marginalized populations, including many of our classmates, the realty on the ground is different. It’s easy to condemn the past (Dred Scott, Plessy, Korematsu, etc.), but where is such critical discussion from our professors on current legal decisions – some of which threaten us directly?
Don’t get me wrong. I’m grateful to be at Michigan Law and the education I’ve received. I look forward to becoming a lawyer and working within the confines of orthodox legal doctrine, all while hopefully challenging it. (Though it was reassuring to hear a restructuring partner ask our Bankruptcy professor if he agreed that the Bankruptcy Code was just a list of suggestions and not rules.) I also, more or less, accept that the courts will often not be the setting for meaningful social change. At the end of my phone call with the admitted student, I whole heartedly wished for them to join us. However, as an Admissions liaison, particularly for prospective students of color, I should point out what is listed on Admissions’ website:
“Michigan Law is unusually interdisciplinary among top law schools. Now, interdisciplinarity is sometimes derided as highly impractical, purely theoretical training, but that’s wildly misguided. Law doesn’t arise in a vacuum: Learning how to approach legal problems through the lens of diverse intellectual and professional perspectives is key to success as an advocate and counselor.” [ii]
In addition to Professor Novak’s class, I am also taking Professor Scott’s Law in Slavery and Freedom, Professor Beny’s Critical Issues in Law and Development, and Professor Eve Primus’s Criminal Procedure. All these classes, to varying degrees, ask us to challenge the notion of doctrinal purity. I am also halfway done with law school. It shouldn’t take this long to be encouraged to actively think about these issues. If we contend to be different than other top law schools, then our professors need to do better in teaching the doctrine effectively without making race and gender subservient to a supposed logical evolution of the law. It is my sincere hope that Michigan Law will be a leader in this regard.
[i] Novak, W 2020, Introduction, lecture notes, Modern Legal American History, University of Michigan Law School, delivered January 16, 2020.
[ii] Message from Admissions , Univ. of Mich. Law Sch. (Mar. 2, 2020), https://www.law.umich.edu/prospectivestudents/admissions/Pages/MessagefromAdmissions.aspx.