Saturday, November 14, 2009

Does Popular Intellectualism Overlap With Academic Dilettantism? And What Does It Imply for the Future of Teaching Lawyers?

Posted by Jeff Lipshaw

I'm stealing some thunder because we get our Sunday supplements to the New York Times on Saturday Images-3 morning, so I can't presently link to the online version of the Book Review (do your best with the link I've given you).  The cover review is Steven Pinker (left) on Malcolm Gladwell's (right) new book, What the Dog Saw, which is an anthology of his New Yorker articles.  It's interesting Images-2 because Pinker is an academic with some reputation as a public (or popular) intellectual; Gladwell is a journalist who popularizes otherwise arcane academic or intellectual topics, particularly in mathematics, statistics, and the social sciences.  (Maybe they are bonded by their views on hair.)

Pinker's primary critique of Gladwell is simply that when he gets very far below the surface, he also gets it wrong.  There's some pretty good logic to this: if the non-expert misses the point of what the expert is saying about the particular problem, the non-expert is likely to propose a solution to the problem that is either wrong or naive.  One example Pinker points out is Gladwell's treatment of the predictive value of certain data for success in professions like teaching.  I liked the way Pinker put the point on a subject I've thought and written about a lot: the extent to which all judgments come down to a irreducible leap from what is known to what is not.  I think that's Gladwell's "blink" moment as well.  But Pinker rightly observes that does not mean that you give up on data or expertise.  Says Pinker, "[G]iven the technology you have, there is an optimal threshold for a decision, which depends on the relative costs of missing a target and issuing a false alarm."  There's still great mystery in the science and philosophy of that instance of decision, but the right answer is not to consign all decision-making to a dartboard.  Gladwell seems to be suggesting you throw the predictive data out because it might be wrong ("teaching ought to be open to anyone with a pulse and a college degree").  [Ed. note:  smart ass remark about current state of many faculties deleted.]

If you don't read the Editor's "Up Front," at page 4, however, you'll miss Pinker's equally well-taken critique of academic expertise.  He observes that academic experts (I would offer "often" but not "always") lack perspective.  "They suffer from 'the curse of knowledge':  the inability to imagine what it's like not to know something that they know.  That makes them underestimate the sophistication of readers and write in motherese rather than explaining concepts from the ground up."  (Motherese, I just learned, is an academic term for the way parents talk to children, including heightened pitch, exaggerated intonation, and increased repetition of words and clauses.  The best example I can remember offhand of witnessing misplaced motherese is when during his opening statement, a pompous opposing trial lawyer, explaining the problem with an industrial boiler, said (and I quote), "for you ladies on the jury, think of the boiler as a teapot.")

I think there are two interesting implications here, one about academic interdisciplinarity, on which I posted a week ago, and one on the future of law schools, which is presently a hot topic, having been addressed by Gerding, Ribstein, Gerding again, and others.  As to the first, the Pinker-Gladwell exchange suggests a continuum with polar extremes of narrow and deep academic specialization, at one end, and broad and shallow familiarity, at the other.  Both Pinker and Gladwell move toward the center of the continuum, albeit, I'd argue, from the opposite poles (Pinker trying to explain language and thought from an academic standpoint; Gladwell trying to do the same from a popular standpoint).  I think there's another place in the continuum, and that's where there's an attempt at intermediation between one narrow but deep academic specialty and another, in the hope or expectation that there is useful intellectual grist somewhere in the middle.  For example, I go back to Goedel's Proof.  Is it no more than a spectacular advance in symbolic logic, or does it have explanatory power in epistemology?   David Chalmers's view is that consciousness is an inherent part of the physical universe, down to particles (I'm not sure if that's fair, but it's close).  Roger Penrose thinks there's an explanation of consciousness somewhere in quantum theory.  And we haven't even gotten to the subject of "law and . . . "!  Louis Menand's comment once again comes to mind:  "The academic profession in some areas is not reproducing itself so much as cloning itself. If it were easier and cheaper to get in and out of the doctoral motel, the disciplines would have a chance to get oxygenated by people who are much less invested in their paradigms."

As to law schools training lawyers, and particularly for those of us thinking about how to educate transactional lawyers (not to mention jump-starting the development of wise judgment abilities for all lawyers), Larry Ribstein's comments strike at this same issue.   What does Larry hold up as the current state of affairs?  Pretty fairly, in my mind, that law schools teach "how to litigate and give individualized advice."  (Compare what business school teaches.)  So how do you teach a business lawyer?  Larry's on to something:  "a convergence of legal education with technology and business training;" "use disciplines such as history, psychology and economics to get potentially profitable insights into contracts and litigation;" "learn to speak the languages of the other disciplines in their firms, and these other disciplines will have to learn some law."  Joe Tomain at Cincinnati offers a CLE program to Ohio lawyers in "law and leadership" that draws on works in the humanities and history (e.g., Plato's Republic, Sophocles's Antigone; The Prince by Machiavelli); every time I mention something like that to the managing partner of a law firm, he or she immediately responds enthusiastically.

But, to quote the Ghostbusters, who ya gonna call to teach this stuff?  It has to be somebody working that line between Pinker and Gladwell - not talking in motherese, but also not shying away from dipping into other disciplines in which he or she is not "narrow but deep."

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