Thursday, August 6, 2009
Posted by Jeff Lipshaw
For the last month, I've been guest-blogging over at PrawfsBlawg, which I think has a slightly different demographic than we have over here. What follows is a cross-post (in large part) of a comment I made over there to some thoughtful remarks from Paul Horwitz on how early-career law professors ought to manage their ambitions in authorship, the coin of the realm, as it were, for professors. Paul's comments are constructive and measured, as he considers the possibility of writing to a golden mean somewhere between the too-ambitious and therefore unsuccessful "grand theory of everything" (i.e., the philosophy of "audace, toujour audace", and writing too small, which might brand you as a practitioner or "small thinker." My comment to that post follows here after the fold, because I think there are generalizations that apply to any career, as well as some commentary on the present measures of success in the legal academy.
As someone of whom it has been said he sometimes needed to be tamed, I certainly concur in the idea of "toujour audace," (although I have to admit the only other time I can recall anybody using that phrase was George C. Scott as Patton). I think there are at least three conceptual issues when dealing with authorship as a matter of early legal academic careerism.
1. I don't think the "audace" problem is really one of a grand theory of everything. The issue is really that the "golden mean" for a young practitioner turned scholar sans Ph.D. (i.e., the not-as-ubiquitous but still prevalent mode of entry) is a narrow target indeed. Aim too low and it's a CLE piece. Aim too high and it's a naive stab at inter-disciplinarity (not so much a grand theory of everything, but a misplaced cross-theory). The sweet spot is a doctrinal piece that tends to theory, but good theory that isn't embarrassing if read by an full-fledged expert in that theory. All I can say is I just came in from playing golf, and that's the equivalent of threading a shot through a narrow gap in the trees. (Theory: hiring a Ph.D./J.D. either widens the target or reduces the likelihood of the hiree missing the shot. Given where the "law and ..." academy sits nowadays, it's no wonder that Ph.D. hiring is increasing.)
2. Real ground-breaking innovation in thought is a lot like real ground-breaking innovation in anything. It's serendipitous and mysterious. It involves all the complexities and subtleties of the advance of knowledge in any scientific or humanities (or business) community, which is that it's a social process as well as a logical or inductive process. The line between a stupid idea and a ground-breaking idea, when looked at ex ante versus ex post, is pretty fine, and doesn't always have to do with the merits of the idea as much as who endorses it and sells it. Nobody who makes a living submitting non-blind articles along with their CVs to student editors of law reviews will doubt the importance of heuristics. Is somebody who advances a new and weird idea in the face of this a naive fool or an idealistic hero? I don't know.
3. As everybody knows, I attended my son's white coat ceremony at Michigan last week. There's no doubt, for better or worse, that elite schools act as filters. When the students introduced themselves, the names of their undergrad schools were overwhelming Michigan, Stanford, Harvard, Northwestern, Princeton, Cornell, Berkeley, Washington, Notre Dame. Occasionally there was a William Jewell College or a Grand Valley State, but it was very much an elite (or elitist) gathering. (I don't pass judgment on this or the schools at any level, except to say that it's probably the case that I got good grades and scores and school admissions in the usual "prestige" paradigm when I thought like my teachers, and my students get good grades when they think like me.) Nevertheless, one of the messages to the entering class of Michigan med students was that some of them are going to be in the middle of the class and some at the bottom. That is, no matter how select the group, somebody's going to be mediocre. The hard truth for entering law professors is the same. Despite the fact that most all were superstars at the previous level, once again, there will be a sorting out (fairly or unfairly as the case may be) with some superstars, some flame-outs, and a lot of people doing middling work that is sufficient as the basis for a career, but probably forgotten not long after it's written.
I just subscribed to the Journal of Applied Philosophy, and read an essay by the great Kant scholar Onora O'Neill, in which she discussed the difficulty, philosophically speaking, of applied ethics and practical judgment, of which this is a subset. The problem is that we know we can't reduce judgments to algorithms that ensure success, but we're also pretty sure, intuitively, that there are non-specific principles that underlie good judgments. She calls reflective equilibrium the best halfway house yet proposed. I'm more convinced that we can adopt heuristics that minimize the likelihood of failure, sort of like the bromide that you never ask a question in cross-examination to which you don't know the answer. That will ensure you don't make a terrible mistake, but it also eliminates the inspirational success. It seems to me that there will be a continuum on a polarity between careerism and intellectual idealism, and all sorts of factors, including personality, life circumstances, social abilities, etc. will affect where each individual ends up. It seems to me that a happy life is working on what you can control, and either (a) putting the randomness of the world out of mind or (b) taking a lot of Xanax.