January 3, 2021

Lies My Law School Told Mein praise of bad propaganda

One of the great downsides of attending the University of Texas School of Law was having Lino Graglia for Constitutional Law. The wider world knows Lino for defending racially segregated school busing, and for missing a chance at the Fifth Circuit bench. Law students know him best for teaching poorly, extemporizing random walks through his own idiosyncratic opinion, and for shooting occasionally racist and discriminatory remarks from the hip, sometimes in class.

One of the great upsides of having a Lino Graglia in your first year of law school is that it forces awareness that, as with high school, law school is not entirely benign. The material, and more importantly the framing and foregone conclusions of the material, aren’t necessarily for your benefit, as a student, or for the benefit of your clients, as a lawyer-to-be. Other interests are at work, which have identified lawyers as influential and law school as a choke point through which they must pass, when they’re still relatively malleable. You have to learn this stuff, and produce it on the exam at the end of the semester, to get out of here.

Thus, as for the citizens of a crumbling Soviet Union who knew there was “no pravda [truth] in Pravda [the newspaper]”, while their American peers trusted Walter and The New York Times, material conditions weren’t great, but a healthy if impotent skepticism prevailed. When the professor assigns a casebook that nobody else uses, written by a fellow traveler from a law school you’d never heard of, filled with typos, formatting errors, and partisan editorializing, at a premium price, it’s hard to ignore who’s benefiting, and who’s not.

Other signs didn’t have to be worked out. You know Antonin Scalia’s zinger-leaden, trash-talk dissents were written to sway law students. He said so. And it took no great leap of imagination to see the same motive behind Ginsburg, Kozinski, or Posner, writing with their posses or in lonely dissent, whether they said so or not. You knew there was a Federalist Society, an American Constitution Society, a lot of Republicans in the former, and a lot of Democrats in the latter. You could see their collective faces brighten and dim at key points in class discussion.

In the end, the only slants you really couldn’t recover from were those that skimmed over important material, or simply omitted it. But that happened more often by indifference, laziness, or happenstance than by malice. As I recall, my first-year Civil Procedure professor, Linda Mullenix, skipped the Erie doctrine. She also used the same closely guarded multiple choice test, year after year. The only chance you had was to buy the test preparation book she herself had written, many years earlier. I believe I got an A in that class, and I’ve not the faintest idea why. I chalked it up to karmic compensation for a computer crash during the Contracts final. Not slanted. Just bad.

Lest I leave the Web with the wrong impression, I did in fact enjoy a number of intelligent, dedicated, and effective teachers at Texas Law. But I count myself fortunate for having the majority of the bad ones early on, to knock the shine off. In the end, there’s something far more pedagogically sound about letting students see the profs aren’t entirely on their side, by seeing though relatively clumsy examples, rather than simply announcing the fact on opening day. The trap, of course, is believing all the agendas must be so obvious.

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