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A Network for Critical Analysis of Law and Economic Inequality
ClassCrits, Inc. Bylaws
ClassCrits XI Program
Fisher Page Abstract
Daria Fisher Page
Daria Fisher Page
Clinical Associate Professor/University of Iowa College of Law
Visiting Associate Professor/Georgetown University Law Center
(contact: firstname.lastname@example.org, 202.297.4385)
ClassCrits at Ten: Mobilizing for Resistance, Solidarity and Justice
JUNIOR SCHOLAR WORK-IN-PROGRESS PROPOSAL
Bigger Fish, Smaller Ponds: Contemplating the Lure of Expertise and the Problem of Specialization
“Students act affirmatively within the channels cut for them, cutting them deeper, giving the whole a patina of consent, and weaving complicity into everyone’s life story.”1
As part of my clinic’s orientation every semester, we do an activity designed by Jane Aiken in which students talk about their goals – personal, professional, social justice – for thirty years, three years, and three months in the future. Some talk about having a family; others about helping their community; and, occasionally, a few will cop to longing to make partner at a law firm. Despite the breadth of responses, there is a common thread: thirty, if not three, years from today, they all want to be experts in their field. “What field?,” I ask, though by now I know the answer I almost always get. “I don’t know. I’m not sure. Whatever I end up doing.” When pushed to explain what makes someone an expert, they describe a person in charge, at the top of her particular food chain, recognized by others as the best, to whom others ask their questions. In short, my students typically don’t know what they want to do, why, or for whom; they only know they want to be the very best at it – or at least be perceived as the very best.
By itself, the goal of reaching “expertise” is a noble one. It is certainly not out of reach for young people who have typically over-achieved, whether purposefully or accidentally, for most of their academic lives. But true expertise, as best understood, is the product of a lifelong journey of challenging, tedious, work, sometimes calculated as the result of 10,000 hours or at least 10 years of “deliberate practice.” It is a distinctly vulnerable journey, one of repeated failure, learning, and refinement, which demands sustained concentration and effort, and a high tolerance for discomfort, “at the edge of [one’s] competence.”2 And it is a journey rarely, if ever, seen as a part of law students’ education.
It would be one thing if my students’ desire for expertise reflected a decision to embrace this journey -- even if that desire was set with some degree of ignorance or lack of appreciation for the difficulty of the journey. But my impression is that what my students want from their envisioned expertise is precisely the opposite of the particular ardors of the expert’s journey. The expertise they want—the sooner, the better—is desired precisely because it is a safe harbor from vulnerability and doubt. It is a shield to fend off challenges, both internal and external. Who can blame them? A third-year law student longs to be
1 Duncan Kennedy, LEGAL EDUCATION AND THE REPRODUCTION OF HIERARCHY: A POLEMIC AGAINST THE SYSTEM ii (1983).
2 Catherine C. Chase, Motivating Persistence in the Face of Failure, in EXPERTISE AND SKILL ACQUISITION: THE IMPACT OF WILLIAM G. CHASE 60 (James J. Staszewski, ed., 2013).
the one answering the questions, not asking them; to be the actor, not the acted upon; to be the authority, by some standard, and not the bumbling novice. Students’ vision of the end product is so concrete, yet so at odds with the nature of the actual undertaking, that they are ill-prepared for the risk-taking and appreciation for failure the process requires.
Students are equally responding to the culture, and inherent pressures, of the profession. The fastest way to become an “expert” is to limit (and further limit) your field of knowledge – specialization allows us all to “become a bigger fish in a smaller pond.”3 Specialization and sub-specialization – once considered the death knell of the legal profession4 – are now imperceptibly woven into what it means to be a lawyer. While there are obvious merits to the deep dive, they are always in tension with the balkanization of any field.5 The website of a large law firm lists forty-three practice areas, from Executive Compensation and ERISA to Pulp and Paper.6 Where law schools used to have a single law review, now a school may publish as many as thirteen different journals, focused on topics ranging from national security to critical race theory.7 To increase the odds of employment, law schools encourage students to identify their area of practice early and to pursue a certificate signaling their “special competence”8 in a specific, narrow subject.
This paper will first consider whether expertise, as it is currently tethered to specialization, is the value that we, as educators, want to inculcate in students. While there is some consensus that expertise and specialization are profitable and lead to a higher perception of authority and status – entrenching unnecessary hierarchies9 – it is less clear that such emphasis leads to better lawyering. I will look at the history of the rise of legal specialization in the twentieth century in comparison to the oft-critiqued rise of specialization in medicine in the nineteenth century10. While legal and other scholarship has tread and retread how to become an expert and the benefits of expertise, including accuracy and efficiency,11 a
3 Larry Alton, Five Reasons Modern Businesses are Turning to Specialization, FORBES, Dec. 2016.
4 Charles W. Joiner, Specialization in the Law: Control it or it Will Destroy the Profession, 41 A.B.A. J. 1105 (Dec. 1955).
5 See, e.g., Katherine Baicker & Amitabh Chandra, The Productivity of Physician Specialization: Evidence from the Medicare Program, 94 AMERICAN ECONOMIC REVIEW 357 (May 2004). “Our results demonstrate that areas with relatively more medical specialists have much higher spending per Medicare beneficiary but do not produce higher-quality care, higher patient satisfaction, or lower mortality, even when the underlying risk and demographics of the populations they serve are taken into account.” Id. at 358.
6 Cleary Gottlieb: Our Practice, https://www.clearygottlieb.com/ (last visited May 31, 2017).
7 Georgetown Law: Office of Journal Adminstration, https://www.law.georgetown.edu/academics/law-journals/ (last visited May 31, 2017).
8 Georgetown Law: J.D. Certificate Programs, https://www.law.georgetown.edu/admissions-financial-aid/jd-admissions/jd-certificate-programs/index.cfm (last visited May 31, 2017).
9 Outside the confines of legal education, we hypothesize that expertise – more readily available through specialization – and society’s perception of expertise, has played a key role in our current political moment and the rise of Trump. Tom Nichols, How America Lost Faith in Expertise and Why That’s a Giant Problem, FOREIGN AFFAIRS, Feb. 13, 2017. While many in the legal academy are actively engaged in fighting the Trump regime, few have assessed their role in contributing to the growth of expertise for the sake of expertise, as well as the public perception of expertise, which laid the foundation for his election.
10 George Weisz, The Emergence of Medical Specialization in the Nineteenth Century, 77 BULLETIN OF THE HISTORY OF MEDICINE 536 (2003). “Now a specialty is a necessary condition for every-body who wants to become rich and famous rapidly. Each organ has its priest, and for some, special clinics exist.” Id. at 544.
11 See, e.g., James J. Staszewski, ed., EXPERTISE AND SKILL ACQUISITION: THE IMPACT OF WILLIAM G. CHASE (2013); K. Anders Ericsson & Jacqui Smith, eds., TOWARD A GENERAL THEORY OF EXPERTISE: PROSPECTS AND LIMITS (1991). See also Jeffrey W.
significantly smaller body of scholarship weighs in on the potential consequences of expertise, for lawyers, clients, and communities – rigidity, insularity, fragmentation, stereotyping, and the devaluation of curiosity and experimentation.12 This paper will look at these consequences in greater depth and through the lens of rebellious lawyering13.
This paper will then ask, if we do intend to teach towards a goal of expertise, are we teaching law and lawyering in a way that achieves or facilitates that learning outcome? Given what we know from the scientific literature about how experts are made, the presumptive answer is no. I will argue that we teach students to value only the veneer of expertise, and give them little in the way of tools and practices to ever reach real expertise, as a specialist or a generalist.
Stempel, Two Cheers for Specialization, 61 BROOK. L. REV. 67 (1995); Chad M. Oldfather, Judging, Expertise, and the Rule of Law, 89 WASH. U. L. REV. 847 (2012)
12 See Antionette Sedillo Lopez, Learning Through Service in a Clinical Setting: The Effect of Specialization on Social Justice and Skills Training, 7 CLINICAL L. REV. 307 (2001); JoNel Newman, Re-Conceptualizing Poverty Law Clinical Curriculum and Legal Services Practice: The Need for Generalists, 34 FORDHAM URB. L.J. 1303 (2007).
13 See, e.g., Gerald P. López, A Rebellious Philosophy Born in East L.A., in A COMPANION TO LATINO/A STUDIES (Juan Flores & Renato Rosaldo, eds., 2007). “In the reigning approach to organizational and human behavior, experts rule… The rebellious vision challenges the reigning approach along virtually every dimension.” Id. at 243.