Bar Review: Frolic or Detour

There is a legal doctrine from tort law, delightfully called “frolic and detour.” Frolic and detour sets certain limits to when an employer can be held liable for an employee’s conduct. Imagine you’re a FedEx driver out on your route when you pull into a Dunkin’ Donuts parking lot to grab a coffee and you accidentally hit someone’s car. The coffee run was a reasonable bit of self-care, something most employers should expect their perennially sleep-deprived workers to do. And it was a quick and slight divergence from your work-prescribed route. So the odds are that the courts would see it as just a detour and FedEx will still be liable for the accident. But what if you take a break and head south out of Boston until you get to your favorite coffee shop in Panama City? In the eyes of the law, you’re on a frolic and FedEx is off the hook if you get into a fender bender on your way through Mexico.

The last bar review of the semester is this Thursday. Bar review takes place at most law schools around the country, with slight variations. The basic idea is that students come together, often on a Thursday night, to socialize at a bar somewhere off campus. This final bar review was announced to my 1L section with the reminder that bar review is a privilege, not a right, and that what we do now has implications for our careers down the line. The warning reflects the fact that any event revolving around alcohol presents serious legal, social, and reputational risks. While the announcement was clear that bar review is a privilege, not a right, it made me wonder whether it is also an unnecessary frolic, and not a valuable detour from our legal education.

My answer to that question comes by way of another detour, this time not for coffee but for sociological insight. In his seminal study on the sociology of religion, Emile Durkheim described a community’s life as alternating between two phases. One phase of life is spent scattered in small groups, striving for survival. This mode of experience is laborious, largely passionless, and sustained for long periods of time. In the other phase, the community comes together for brief periods to celebrate or engage in ritual. These gatherings are marked by freedom from the demands of reason and the daily grind of survival. In this collective experience, “[e]very emotion expressed resonates without interference in consciousnesses that are wide open to external impressions, each one echoing the others.”[1] This phenomenon came to be known in sociology as “collective effervescence” and it has helped to analyze everything from the religious practices of indigenous Australians (the focus of Durkheim’s original  study) to the nightlife subcultures of young Danish partyers.

I see more than a passing resemblance between law school (at least the first year) and the community dynamics Durkheim described. The individual focus, reason, and self-control required to realize a law student’s goals can limit the kind of socially and emotionally porous experience that characterizes Durkheim’s second phase of community life. Reason, which legal education advances as the essential lawyerly virtue, can be atomizing and exhausting. So it makes sense that there would be a powerful thirst both for moments of powerful community and for an escape from the confines of rationality.

I’m not trying to offer an apology for alcohol abuse in the legal profession. It’s something that needs to be better addressed. Fortunately, our Law Student Association is taking steps to introduce more opportunities for students to socialize in settings where alcohol is not central. But to think that bar review is only important as a gathering, and that alcohol is merely incidental or even detrimental to it, underestimates law students’ (and really everyone’s) need to escape occasionally from the tyranny of reason.[2] If bar review seems to subvert the ideal of the punctilious law student, that subversion is likely by design, not defect. Bar review is not a frivolous frolic, but a necessary detour from the law student’s prescribed trajectory of professional formation. It gives expression to a way of being in community that classes, study groups, and officially-sanctioned extracurriculars don’t.

So, as we approach the last bar review of 2019, I hope my classmates will be safe, responsible, and respectful, if not necessarily professional. As the days get shorter, finals approach, and the tension mounts, a little detour through collective effervescence can be an important part of individual expression and community life.

[1] Emile Durkheim, The Elementary Forms of Religious Life. Trans. Karen E. Fields. The Free Press, 1995. Pp. 217-218.

[2] There’s a fascinating and long history of humanity’s search for different states of mind. Psycho-active substances (including Peyote, Ayahuasca, Kykeon, not to mention wine and beer) have been part of that, but so have practices of meditation, chanting, fasting, whirling, running, and myriad other means of shaping consciousness.

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