In the following reflection, Professor César Rosado Marzán discusses his current paper on Chilean judges and recent debates about law school. For more of Professor Rosado Marzán’s schoalrship, visit his SSRN and Bepress pages.
Some say that globalization and workers’ rights are incompatible. If this is so, then I have to grapple with a fact that I have found in my scholarly research: Chile’s labor judges are today more responsive to workers claims than ever before. Yes, Chile, land of Milton Friedman’s Chicago Boys, has a new crop of young, dynamic labor judges that take their protective role of workers extremely seriously. How come?
Globalization has spurred at least two strands of parallel ideologies. The first is market fundamentalism – free markets will make us all freer and richer and hence better off. We know this one.
The second one has been a commitment towards individual rights and liberties, including human rights. Wisconsin law professor Alexandra Huneeus has described how the newer crop of Chilean judges damned the culprits of human rights abuses of the Pinochet dictatorship with particular vehemence to cleanse the judiciary of its own past collaboration with the dictatorship.
In my fieldwork, I observed similar behaviors among labor judges. These judges make clear to lawbreaking employers the penalties that they will incur if found liable in court, pushing employers to settle workers claims in court so that workers can leave the courtroom feeling that justice was served.
The sociological reality of Chile’s pioneering judges is fascinating: Having studied in law schools still fettered by old habits, they learned human rights law in study circles that met in private homes and cafés. They devoured law review articles, many times published in other countries, books and anything that they could get their hands on to expand their legal knowledge.
The labor judges, having also received less than subpar training in labor law, the antithesis of Pinochet’s Chile, also set up their own courses by inviting younger law professors, sometimes trained internationally, to give classes to them. These classes normally start after the judges have had full, grueling days of hearings and writing opinions. These judges take their new roles very seriously. There is scarcely a minute to waste.
So does globalization threaten workers’ rights? To the extent governments pass laws to relax regulations and unfetter markets, yes. But to the extent workers challenge such policies and take claims to progressive judges, then not quite. Globalization is a contentious, dynamic process with many contradictions.
This brings me back to law school in the United States. For some years there have been discussions about a crisis in legal education. That law school is too expensive. That students have too much debt. That students can’t find jobs. Is there a crisis? Sure there is. Does this mean law schools are about to close down or that we must turn into some sort of trade school, kill research and tenured professorships? No.
First, the crisis is a general economic crisis rooted in the logic of capitalism and the failure of deregulation; it is not just a law school crisis. Compare our crisis with that of banks, factories, hospitals, and state and local governments and we are all but alone in facing challenges. These challenges call for new ways to deal with complex social problems to help carry the United States forward. What better place but law schools, law reviews and research to generate these ideas? Who better but new crops of lawyers to become the standard bearers of these ideas out there in the real world?
Sure, our students need jobs to be able to do all these great things. True. But we must note that many students do not go to law school with the expectation that a job will be happily waiting for them upon graduation. Paying work is out there but it will take effort to find it. It is not always advertised as an “associate lawyer” position in a downtown law firm. The high paying, easy-to-get-job phenomenon happened to a segment of elite students during our time of “irrational exuberance,” but those days are over for good. Prospective students who have such an impression about law school and the profession are probably not best suited for this enterprise. As the Chilean judges show us, law is a vocation that requires significant sacrifice, nerves of steel, personal investment and entrepreneurship, perhaps unlike other demanding professions. Nothing comes easy in the law.
Yes, we should do all we can to facilitate job matching for our students. We must also find ways to lower the cost of education not just of law school, but also of all formal education in the United States. It is one of our pressing 21st century challenges.
We can start by sticking to idea that education, including law school, is more than just an “industry.” (Education is an internationally recognized human right, by the way). We produce more than lawyers for a market.
We advocate for justice and we impassion and train those who will exercise it. Particularly as the going gets tough, we can’t drop this important role handed to us. To the extent that we continue with our mission to justly tackle the problems of the day, law schools will remain a place that many look up to. Calls to turn the professariat into a precarious occupation, kill research (and, hence, the generation of new ideas) and, in essence, suck the spirit out of law schools, are deeply wrong-headed. We would be putting our own heads on the chopping block.
If we drop the ball, our prospective students will find other ways to train themselves. They may even find a living room or a café and a group of like-minded individuals to learn from. The thirst for justice is never-ending in this modern and not always fair, globalized world that we live in. We can either fill that void for justice and contribute to our country’s future, or adhere to market fundamentalisms, becoming a pivotal part of the very problem that assails us.
Leave a Reply