Edgar Cahn’s Unasked Questions

In the last issue of the Record, I wrote that we would be continuing the conversation on the questions raised by the Shake ‘Em Up HLS Conference hosted by Ralph Nader last month. One of the speakers at the conference, Edgar Cahn, explicitly raised those questions in his talk entitled, “Legal Education: Unasked Questions, Unwelcome Answers. Where Next?” His starting point was the mission statement of Harvard Law School: “To educate leaders who contribute to the advancement of justice and the well being of society.”

Cahn asked many questions about this statement, from “What is justice?” to “What do we do when an entire system we study perpetuates injustice?” I don’t have answers to either of those questions, and I’m not bold enough to even attempt the first one, but the second question troubles me.

First, it seems beyond doubt that our legal system perpetuates injustice. I take it as given that our society is unequal, unfair and unjust, with tremendous poverty and suffering alongside unparalleled wealth. The question, for me, is whether the legal system exacerbates or mitigates that injustice. To avoid circularity, let’s ignore the fact that the legal system entails the background rules that make the inequality possible and focus our attention on the part that we are trained to obsess over in law schools: the adjudication of disputes.

Unfortunately, the answer still seems too easy. The vast majority of Americans cannot afford legal representation, while the very richest can count the services of lawyers as one of the many advantages of their wealth. A system of plea-bargaining and chronic un- derfunding of criminal defense ensures that many of the more than nine in ten Americans who are convicted of crimes without a day in court have not had the information and support anyone would need to make a life-altering decision. The proliferation of arbitration clauses shifts the balance of power further from consumers to corporations. It is hard to avoid the conclusion that the legal system, giving tools to the powerful and depriving the powerless, is on balance exacerbating rather than mitigating the inequalities in our society.

Even a system that has many benefits must be suspect if those benefits are so inadequately distributed, especially if we view those benefits as fundamental rights and not luxuries. So I return to Cahn’s question. What should we do when we are studying that system? At the very least we should not blind ourselves to its injustices – the clues are there in every course we take and it is incumbent upon us to connect them.

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