Wednesday, March 25, 2009
Posted by Jeff Lipshaw
I know there are a lot of practitioners who read this blog for Mike Frisch's seemingly endless supply of lawyers behaving badly, and whose eyes glaze over when "Posted by Jeff Lipshaw" appears in the RSS feed. Having survived (if not thrived) over more than a quarter century's law practice, out-house and in-house, I managed to get past my own cynicism, particularly of litigation practice (but for clients, judges, and opposing lawyers, it was wonderful), just in time to experience the cynicism that exists about legal education. My figurative hat is therefore doffed to editors of the Georgetown Law Journal, who accepted Pierre Schlag's (Colorado) unique thirty-three pages on the emptiness of current legal scholarship, and then got several people, most notably, in my book, Richard Posner to comment. (HT, Concurring Opinions.) (Robin West also has a response, which is the subject of Dan Markel's post over at PrawfsBlawg.)
Schlag may be an acquired taste (if you think law reviews are extended legal briefs, and largely empty, you need to mock the style, which he does), but his point is that legal scholarship, by and large, is the equivalent of air guitar or spam. He's sympathetic to what judges have to do to get their jobs done (and the five or six treatise writers who can help them), but comes down hard on the other 6,994 law professors. I admit, I find this riff on Robert Cover's iconic (and, in my view, Kabbalistic) take on law to be appealing:
One can think here of judicial discourse as a very elaborate, centuries-old mechanism designed to reduce pluralistic messes into singular conclusions. As Robert Cover put it, judges are jurispathic actors. “Confronting the luxuriant growth of a hundred legal traditions, they assert that this one is law and destroy or try to destroy all the rest.” The parties are compelled to “translate” their stories and claims in the idioms of law. They are compelled to adopt law’s ontology, its categories, its networks of causality and symbolic associations. The stories and the claims must conform to the formal limits of the law itself, to
its language, to the authoritative doctrines, policies, principles.
* * *
The upshot is somewhat dispiriting: To the extent that legal thinkers pattern their thinking and writing on judicial discourse, the intellectual limitations will be severe. The reason is simple: Often the social and economic disputes that judges deal with are intractable. Nonetheless, judges must render a decision and must make it seem authoritative. Just how does this happen? How does one start with an intractable dispute and end up with a confident conclusion for one side rather than the other? A tentative answer: not by any intellectually respectable means. But then again, judges do not primarily answer to intellectual respectability. As legal actors responsible to the community and to individuals, they must also answer to moral and political responsibility.
When legal academics imitate judicial discourse, they operate within a linguistic universe that is designed in important ways to avoid, stifle, and shut down intellectual edification. Intelligence can be brought to bear in elaborating the discourse of judges. But it is important to understand that, as a structural matter, there is only so much one can do within this discourse. To put it too strongly: It is like talking with a really bright kindergartner. She really is bright. But she also really is a kindergartner.
Posner's first reaction is that Schlag's piece is "crazy," but comes around to the conclusion that it makes a number of valid points. Now I think I understand Judge Posner's frustration with philosophy, and his preference for pragmatism: philosophers have been circling around the same set of dialectics for many centuries, and there appears to be no sign that any major breakthrough is on the horizon. (He doesn't cite this as an example of the dew loop, but it's my favorite: the screaming match, accompanied by real hate among some of the participants, whether human consciousness is ultimately reducible - scientifically speaking - or not. My view: it either is or isn't, but either position you take is for the time being a matter of faith, either in reducibility or non-reducibility, which is itself non-reducible). But Judge Posner doesn't advocate striking philosophy or English from the curriculum; they are disciplines the study of which helps hone the rational mind. There just isn't going to be a lot of earth-shaking scholarship coming out of those disciplines - maybe one or two great works per generation.
The analogy to law, as I understand Judge Posner, is that what most law professors (those who can't find truly worthy scholarly projects - note that, while agreeing generally with Schlag on the aridity of most scholarship, Judge Posner is more sanguine than Schlag on there being something to study) should do is probably akin to what great teachers in small colleges do: teach their subject and don't worry too much about being scholars.
I would not have objected had Schlag urged a major reallocation of legal academic resources from interdisciplinary research and teaching to Langdellian “normal science.” He thinks the needs of Langdellism can be satisfied by half a dozen professors in each field; the remaining ninety-five percent of the legal professoriat would do no scholarship, but just teach, do consulting, or practice law. I certainly would not object to a reallocation of substantial academic resources from constitutional law and constitutional theory to Langdellism.
What would be really helpful, observes Judge Posner, follows on what Schlag points out: judges don't have enough time to think about the right answers, and academics who do should concentrate on helping them.
These pieces are just a lot of fun to read, and scream out something about the emperor's clothes.
Well, I'd expound more on this, but I need to get back to checking galley proofs for my own exercise in Langdellism, the fourth edition of Ribstein & Lipshaw, Unincorporated Business Entities. (Get it while it's hot!)