“What was the holding of the case?” A harsh silence filled the space as students nervously waited for the cold call to end. They flipped between the 30-some assigned pages of their casebook in discomfort, desperate to pass the time. Only clicks of pens and the occasional cough dared cut the tense air. But the professor was unresponsive to the silence. Like the laws they represented, they remained steadfast and unflinching in repetition of their routine: “What was the holding of the case?”
To the U.S. law student, this scenario may be equally representative of their legal education in 2020 via Zoom, in 2000 in person, or in 1870 at the case method’s very inception by Harvard Law School’s Dean, Christopher Columbus Langdell. What has remained constant in the 150 years of innovation, social change, and global movement toward liberation since then has been the legal industry’s reluctance, if not inability, to respond to said change. Why have our methods for legal education remained largely the same if our general understanding of how students learn and our perspectives toward the law have shifted dramatically since 1870?
This absence of justification extends to the larger legal industry (defined here as the socio-legal institutions that formalize the law as a profession, such as law schools, legal employers, bar examiners/associations, and other legal organizations). While the structures that organize the legal field profess their commitment to defending liberty and delivering justice, such a vision is hardly exemplified within the profession:
There remains a stark contrast between the lived experiences of Black and white attorneys;
Rampant misogynoir pervades legal academia;
Institutions accept that the “law school experience” has a negative effect on students’ mental health but provide no meaningful structural change to legal education;
Industry leaders remain indifferent to the racism and sexism perpetuated by the bar exam;
Reports continue to emerge of the widely documented systemic barriers that people who identify as Black, Indigenous, and People of Color (BIPOC) face in entering the legal profession.
The legal field is structurally dependent on these instances of gatekeeping and provides little rationale for why this is the case. But when Bar Associations do more barring than supporting of their own membership, it becomes evident that gatekeeping was the rationale all along. And this disparity—a chasm between what the law claims to do and how it operates as a profession—is perhaps the greatest lie of the legal industry.
“Interlocked Crises” and The Lie of the Law
A great deal of work has underscored the traumatic and devastating effects of the “interlocked crises” of anti-Black racism, state-sanctioned violence, and the COVID-19 pandemic. An additional subset of voices has called on the legal industry to address their role in ignoring and thereby exacerbating these crises. But our analysis of the profession must move beyond a general critique of passive indifference and must instead name the central role of the industry: gatekeeping. With the demonstrated and inevitable failure of online bar exams being juxtaposed against a rejection of diploma privilege by some employers, students are left to wonder what the purpose of exclusionary mechanisms, like the bar exam, are in the first place. Why am I here paying thousands of dollars’ worth of loans each year for a legal education when what really matters to employers is the bar exam? This discrepancy is highlighted by reports of celebrities foregoing law school and financing their own bar preparation. What becomes abundantly clear is that the dominant narrative of pursuing a legal career mistakes capital and power for an imagined experience of “hard work” and “dedication.” This fable erases the fact that such an experience is anything but universal and romanticizes hardship so as to validate the “prestige” of this profession.
But why would legal institutions cling to an outdated ethos and model for structuring the law as a career? Are we not the profession of fairness? An examination of the bar exam’s racist and xenophobic history readily reveals that the American Bar Association’s (ABA) concern over the “quality of immigrant and mixed-race applicants” underlies their continued interest in gatekeeping the legal profession. Whether via Zoom, in a pre-COVID-19 lecture hall, or in the 1870s, law students have forever been expected to navigate a field rife with racism, sexism, classism, anti-LGBTQIA discrimination, exclusionary policies, and systemic oppression while simultaneously being gaslit into doubting their own experiences. How could an industry in the business of justice possibly discriminate? The answer: by cloaking that discrimination in anonymity and false neutrality. When C.C. Langdell implemented an anonymous grading system at Harvard Law to mitigate biased evaluations and class-based favoritism, what resulted was a legal education system unable to name its own violence. The same holds true for the industry.
Anonymity has been the Band-Aid and lie that the law has clung to in order to avoid reckoning with its primary role as gatekeeper. By claiming neutrality as to identity, the law has defaulted on the justice owed to millions, and the heightened structural violence of this year has forced many to finally become aware of this. Even the very notion of 2020 as a “nightmare” places front and center who these interlocking systems of violence have been novel for; our language centers the white gaze—looking out in terror at a world upended—and ignores that for BIPOC such crises pre-date this year by centuries. So, let’s be intentional. Stating that the law has a “race” problem is not enough: the law has a white supremacy problem. This socio-political moment and global uprising for liberation have laid bare the U.S. legal industry’s mechanics of oppression, demanding that each of us ask:
If we cannot ensure that COVID-19 will not exacerbate existing oppression and inequalities in bar exam passage, why administer the bar exam online?
Why is there a bar exam in the first place?
If “diploma privilege” is that insufficient for some employers, why have law schools at all? Why not fully redistribute funds to an apprenticeship model?
For whom is a perpetual delay to bar exams even a feasible option (financially, emotionally, and otherwise)? When did a loan-based life raft between graduation and bar examination become a serious suggestion by administrators for students without generational wealth? For whom is a loan even possible and who will likely be denied?
If financial capital can bypass the need for law school, why are students paying so much money to still feel underprepared for a bar exam?
The answers to these questions, however, threaten to crumble the rotted soil upon which the very colonial institutions of the law rest: stare decisis or (within the context of the industry) “we’ve always done it this way.” And such strict adherence to the replication of a system that was never intended to serve BIPOC, women, LGBTQIA folks, first generation students, non-traditional students, and students holding multiple marginalized identities does nothing but actively inhibit change. In my first year of law school, I was equally exhausted and staggered by the number of times I heard “I never thought of that” from administrators, faculty, and staff when faced with critiques of industry gatekeeping. What percent of the legal industry’s salary is dedicated to not questioning its own role as gatekeeper? And how much of their salary could account for the missing value of our legal education?
The Missing Value of Legal Education
Looking specifically to education as an institution within the legal industry, the COVID-19 pandemic has highlighted the failures of a system that has gone largely unchanged for 150 years. A recent report that only 1/6 of all ABA-Accredited law schools will deliver courses fully online merely begins to paint the picture of the industry-wide practice of trading an individual’s well-being for antiquated traditions. Put more directly: The administrative decision to try and replicate a “normal” law school experience ignores the traumas that Black students specifically, and BIPOC students more generally, have and will undoubtedly face. The failures of our model of legal education as mirrored across the industry have never been more transparent, bursting at the seams with calls for accountability and reflection on the law’s complicity in maintaining systemic oppression. As a BIPOC law student, I am frequently forced to wonder: “Who is this model for—who does this model of legal education serve?” But the answer has always been clear.
What we have seen in the past few months is a reactionary push from legal entities to distance themselves from publicly broadcasted anti-Black racism and state violence. But the U.S. legal industry, as co-conspirator to the project of settler colonialism and both the drafter and beneficiary of the institution of chattel slavery, is itself a form of violence. And this much is evidenced by a number of questions for the profession that remain unanswered by design:
Why continue using the LSAT as a metric for law school admission if there were serious concerns with this form of testing before COVID-19 and if its appearance of reliability has only decreased during this time period?
Additionally, if the LSAT has previously resulted in outcomes that are informed by and perpetuate systemic racism, why would we not expect these hierarchies to be exacerbated?
COVID-19 as a health and logistic concern for education has not gone away. So why have our grading practices and approaches to law school returned to “normal”?
What does it even mean for something (like a law review or journal) to be “prestigious” during a time of constant trauma and normalized violence? Who is unaffected by this moment and for whom is law school/review still a top priority?
If there is already a demonstrated persistence of white supremacy within law school structures like law review, who does further gatekeeping serve during a pandemic that disproportionately affects BIPOC?
If there is an ever-growing call for education beyond the “traditional” 1L curriculum and instances of institutional movement away from such a model, what is the rest of the industry waiting for?
Why are calls for one-time-only diploma privilege during a global pandemic seen as “extreme” when what is truly extreme is the approximately $26.6 million financial incentive that the NCBE has to keep the bar exam? For that matter, what does it mean that diploma privilege is directly tied to a history of white privilege and “keeping pure the Anglo-Saxon race”?
And, above all, who are all of these interlocking structures for? Who do they benefit and who will they always fail?
This moment of magnified intersecting violence and power has demystified many of the structures that are central to the legal industry and framework of the law. No, you do not need a law degree to sit for the bar. You just need enough money. No, there is no oversight for what was just tweeted. Yes, you still have to take a four-hour exam that is not indicative of when you’ll practice—but this time it’s online, ignores that you may not have Wi-Fi, and will likely crash. No, there is no accountability for the violence that was just inflicted.
The metaphoric (and sometimes literal) “404 Error” message that looms over an increasingly digitized legal industry prompts each of us to grapple with the apolitical, acontextual, ahistorical, and atonal response to its own implosion. So, may this piece force you—the reader—to reflect: What is your role in gatekeeping and oppression? Who are you accountable to in your work and how does your work still uphold systems of oppression? Understand that the “remedy” here is not a better LSAT or a better bar exam or more friendly hurdles. They as gatekeeping mechanisms must be dismantled and eliminated altogether. It is irresponsible and devoid of understanding to ask BIPOC to enter the war room that is whiteness and to make white supremacist institutions less violent. For 150 years now, the law has taught students to glance back and imagine the present using tools from the past. What would it mean for the law to be prospective in approach and to use the present to reimagine the future—to not just add a Zoom link to the common law and call it “innovation”? Would it unravel the doctrinal case method? Would we finally move from false objectivity to context-conscious work? Would the very underpinnings of the legal industry unravel? Hopefully. And hopefully you see now, too, that an all-out crash won’t be coming—it’s already here.
Antonio Coronado is a second-year student at Northeastern University School of Law. Antonio comes to Northeastern with experiences in tenants’ rights advocacy, Latinx student support services, and a Master of Arts in Communication from the University of Arizona. Antonio seeks to center the lived experiences of Queer and Trans* BIPOC in his work and in every effort toward collective liberation. At Northeastern, Antonio is the Co-Chair of the Latin American Law Students Association, a member of Queer Caucus’ leadership, an outgoing member of NUSL’s Committee Against Institutional Racism, and an Associate Editor of the Northeastern University Law Review.