Wednesday, July 14, 2010

"The Best Traditions of the Bar" (and Academia)

Posted by Jeff Lipshaw

Eejhead_bw_100Over at PrawfsBlawg, Eric Johnson (North Dakota, left) asked readers to comment on the Harvard Law Review's practice of not attributing student notes to the authors.  Most commenters recited the justification I recall hearing years ago about the the level of editorial involvement making it not truly the author's own work. 

I posted a comment over there that I thought was worth bringing here.  I should be clear, while I'm analytically skeptical about social norms and customs, it doesn't mean that I don't like them.  Rumpole (the fictional junior barrister, "Old Bailey" hack, alter ego of the late John Mortimer) used to mock "the best traditions of the Bar," such as the most important thing in one's pupillage at the Inns being not so much the training, but the socialization at the dinners one is required to attend.  It isn't a worthwhile trip to London for me if I don't have a chance to wander through the Temples. And I would have gladly worn a barrister's wig and starched collar in another life.

Nevertheless, as it relates to Eric's question (or, more properly, the responses), I always try to take with a grain of salt the post hoc rationalist justifications for a social norm or practice, as though the norm or practice were actually begun with a process of reasoned analysis. I'm particularly suspicious when the rationalization relates to academic customs. Regalia, for example, was once functional - you could keep warm in it, hide your lunch, and most importantly your spirits. Many of the inexplicable aspects of the NCAA's or the Olympic's regulation of amateur athletics only make sense if you understand their genesis not as rules but as social custom in a particular time and place (the same one that created the notion of "gentlemen's Cs".)

I didn't go to Harvard, but a far more "nouveau" institution, one founded by a mere robber baron striver after the Victorian era had passed. From a different perspective, the "collective exercise of humility" (one proffered explanation of the HLR "no-author" policy) may have been instead an artifact of the Victorian "code" about striving and professionalism. I've just finished David McCullough's biography/social history of the young Theodore Roosevelt, his family, and their era. The chapter on Roosevelt's time at Harvard may be worth the price of admission. Here's a quote from a Roosevelt contemporary in the Class of 1880, and think about whether it, and not some more noble justification, is the source of both the custom and its durability at Harvard:
If you asked me to define in one word the 'temper' of the Harvard I knew, I should say it was patrician, strange as that word may sound to American ears. . . .

This code, unwritten yet all pervading and all powerful, is difficult to define. Over and above the copybook virtues, it insisted upon a composure of manner, a self-suppression and a sense of noblesse oblige that were in happy contrast with the blatant self-assertions, the unbridled enthusiasms and misconceived doctrines of equality that were characteristic of the country in general. It gave its approval to those who understood that modesty was compatible with manliness, who knew how to combine self-respect with respect for authority and for the opinions of others, and who were firmly convinced that it was truer sport to lose the game by playing fair than to win it by trickery.

I think I am not exaggerating this influence in the college life. . . .
Plus ça change, plus c'est la même chose!

http://lawprofessors.typepad.com/legal_profession/2010/07/i-always-try-to-take-with-a-grain-of-salt-the-post-hoc-rationalist-justifications-for-a-social-norm-or-practice-as-though-th.html

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