Thursday, December 17, 2009
Posted by Jeff Lipshaw
I've been asked to teach our six credit contracts course here next year, and have been puzzling (far ahead of time) about book adoption and teaching philosophy. Contracts is the often the bane of the first year experience, and I am thinking about hitting the reasons head on.
I spent 26 years in practice, as a law firm litigator and then transactional partner, and then as the general counsel of two different companies. I have written fairly extensively on contract theory (perhaps teaching the course will be impetus to combining my various pontifications into a book), but I am generally disdainful of contract doctrine as a means of explaining what is actually going on in the business world. (See my article Models & Games, for example.) Although there are some admirable contracts casebooks out there that attempt to do so, if I don't use one, it will be a result of my concern that pushing traditional contract doctrine into a real business setting is a square peg in a round hole (the metaphor is apt for all sorts of reasons). You don't really teach the business world, and you don't really teach traditional doctrine.
No, were it not for the bar exam and inertia (i.e., Langdell was a contracts teacher), we probably wouldn't bother with most of contract law as we presently teach it. Or, as I have often said, practice is 5% doctrine and 95% interpretation; the course is usually 95% doctrine and 5% interpretation.
I've concluded instead that the way to approach the subject (and relieve some student angst at the same time) is to reject at the outset the idea that what they are learning maps on the real world. It is more helpful to think of contract law as most casebooks begin - with the idea of the objective law of contracts, or, as we say more explicitly in areas like partnership, the default rules upon which the legal consequences of a binding promise will be imposed on parties after the fact when indeed there is no subjective evidence of an intent to be bound at all, or legally, or on what specific terms. (As I have made clear in the past, I'm a skeptic on subjective intent altogether when even the interpretation of the contract is the subject of colorable litigation positions.) Hence, teaching the subject, by my way of thinking, requires a jurisprudential approach, one that says "what you are about to learn is a particular way of modeling human interaction." Said with more jargon, contract law may or may not map well onto the reality of private ordering, and the mistake most students make is to try to make the map work. No - an integrated law of contracts, if one exists, is a figment of the Langdellian or Willistonian or even the Corbinian or Llewellynian imagination, a way of trying to make unified sense of the whole of private ordering, whether that sense-making is by way of formalism or contextualism (or efficiency or the promise principle, to bring the debate forward in time).
Put otherwise, if the reality of private ordering is metropolitan Boston, contract doctrine is a map, based on the mapmaker's view of what is important. But you could have a road map of major highways, a topographic map, a detailed street map, a map of population densities, etc. This is merely one map, or several competing maps. (Think about the classical view of offer and acceptance, for example, versus the UCC's view. Does either one really map onto a singular underlying reality of the making of an agreement? Even "the meeting of the minds" is a metaphor (and, in my view, an unfortunate one)). (I think the Macaulay/Macneil relational contract school falters on this point, by the way. It gives up on the map altogether and tries to go straight to the reality of the relationship. That may explain the relationship, but it may not make for the best way to explain the law. I have a similar reaction to Omri Ben-Shahar's longstanding proposals (now with Lucian Bebchuk) on liability arising out of preliminary negotiations - we're trying to fine tune the map (or model) beyond its usefulness as a model.)
Finally, the difficulty with putting aside whatever sense of reality we might have, and reconstructing the rules of the model (or game?) on their own is a little like trying to master the rules of cricket without making analogies to baseball, or the rules of rugby without making analogies to American or international football. Let's say you are playing cricket, and you do something that cause the other team to cry "foul!" You have to make your argument why what you did was legal in cricket terms, not baseball terms. That doesn't mean there couldn't have been other ways to play cricket, or that the world would be better off if we interpreted the rules of cricket differently, but to win the argument we have to fashion it in a way that appears to be consistent with cricket. Contract law is the set of rules making up the objective contract litigation game, and some arguments based on those rules are cricket, and some are not.
Anyway, that's my current thinking. Responsible opposing (or helpful) views are always welcome.
Tuesday, December 15, 2009
Posted by Jeff Lipshaw
As those of you who tune in for what the ABA Journal quaintly refers to as my "off-topic" posts may be aware, I decided this summer to learn English style riding (horse, that is). Let me make this clear. Other than perhaps a ride on a carnival pony when I was little, my backside and a saddle had never been in any kind of intimate contact. (If you have spent much time in Ann Arbor, you'll appreciate the following Carnak style joke from one of our Christmas skits in the Dykema office. Answer divined by Carnak (waiving sealed envelope near forehead): "Gallup Park." Question (upon the opening of the envelope): "What does Jeff think are the gear shifting markings on a horse?") [Joke explanation for the uninitiated: Gallup Park is a municipal park that follows along the Huron River near the University of Michigan Medical Center.]
There are all sorts of analogies I could make here in terms of the learning process, but here I am about 17 lessons into this, and skiing is perhaps the best one. Just as you progress in the mechanics of skiing from snowplow to stem christie to parallel turns (at least the way we used to get taught), and accordingly gain the ability to ski steeper slopes (from green to blue to black), in riding you progress "walk-trot-canter" (that oversimplifies it, but not unduly so). It's hard to get too scared in a walk, but when a perky horse starts to trot for the first time, and you need to steer, control the pace, sit correctly, keep your heels down, keep your hands down and quiet, squeeze your upper legs, and keep your knees relaxed and your lower legs still, a certain panic may set in. It's like pointing your skis down the fall line the first time, and then losing it as you begin to pick up speed and panic.
So today was a watershed because I cantered for the first time. It's a little faster than a fast trot, but that's not the issue. It just feels really different. I was taught to get into the canter from a "two-point" position, which means that I'm trotting around the outside of the ring with my butt off the saddle, my back flat and looking up and outward (sort of leading with the chest, as it were), and my hands holding both the reins and the horse's mane. I then give the horse a kick aftwards (to the back) with the outside leg (which I understand is telling the horse to lead with the inside leg, which is correct), and then . . . holy moses (or words to that effect) - I AM GOING TO FALL OFF THE FREAKING HORSE! The natural tendency, akin to the fall line panic, is to curl forward which is exactly the wrong thing to do. If you relax, look up, and get "taller", it feels pretty smooth and controlled. The problem the first time is you don't know what it is going to feel like. I can report success, however. I did a nice canter down the long side of the ring, and then when I was later trotting in a two point (tapering off at the end of the lesson), the horse started to canter and I actually laughed as I brought her back to a trot and to a walk.
One of my rationalizations for spending all this time and money (other than the fact that I really enjoy it) was better to understand learning from a student's perspective. What really jumped out at me today was the relationship between fear and learning. Often what you need to do is counter-intuitive, or counter to natural self-preservation instincts. The first time is the hardest because you don't know what to expect, and the unknown is the most fearsome. This takes me back over thirty-three years, but I can recall just how terrified I was of getting called on in John Kaplan's criminal law class (I had never before spoken aloud in class among all these incredible smart fellow students and the professor who seemed to be able to tie minds in knots), or the fear before taking the first set of exams in the first semester (which, by the way, were after the holidays just to make it worse).
The fear sits out front like a barrier. (Think of the vibrations Chuck Yeager experienced before getting to Mach 1.) I don't think there is a significant difference between fear of physical injury and fear of embarrassment or public failure. I am far and widely known as a physical coward (think Woody Allen). You must push through it, because control, calmness, and the ability to function return on the other side.
Sunday, November 15, 2009
Posted by Jeff Lipshaw
[I posted this as a comment to the thread over at PrawfsBlawg that Dan Markel started for those going through the AALS recruitment process, and decided to repost it here. Over here, think of it as Jeopardy! - you can guess the question from my answer.]
FWIW, from somebody who has been arguing in courts of appeal, making presentations in business, sitting on panels, and giving academic talks for over 30 years. And listening to a lot of them.30 minutes is too long. Plan for 15 to 20. At 30 minutes, people will either be squirming or interrupting. Trust me, there's nothing so critical in your talk that you need those extra minutes. You only think there is. When you think you've cut to the bone, cut again. The audience will never know.
Re giving a 60 page paper in 15-20 minutes, a couple points. First, can you really not get your thesis across in 15-20 minutes? There's a real problem if you can't. Second, even if you are in the center of the constitutional law strike zone, you aren't giving this paper to people who know this subject like you do, or even know anything about your area. This is an exercise in interdisciplinarity. Consider that you are giving your talk to a roomful of very intelligent laypeople, and think of all the detail filling those 60 pages as layers that you might draw on to amplify your basic points when it comes time for questions. Think of this like oral argument - you have just a few minutes to get across the problem you're addressing, the current state of intellectual play, your contribution, and why it matters. Don't get lost in the trees.
As to reading papers. Oy vey. Reading a paper, it seems to me, is at one of the rungs of hell, the only things lower being (1) reading the paper off tiny note cards in a meek monotone, and (2) reading verbatim the overly dense bullet points on a Power Point.
As to Powerpoint, much less is much more. Personally, I wouldn't use it unless there is something diagrammatic that simply needs to be viewed communally. Very brief outlines are helpful, but I think handouts are better for that, particularly if you have the text of a statute you are discussing.
As to the podium, nothing wrong with using notes. But don't use the podium like a crutch or a barrier. Step to the side from time to time. Particularly when it's time for Q & A, move out from behind the podium and get closer to the audience. Relax. Have fun. Be the master of your domain. My experience in a number of callbacks is that the audience wants you to succeed (very much) - nobody is comfortable witnessing a disaster, and the hope is always that you are the best thing since sliced bread. Even when you get challenging questions, it's because you have caused some mental gears to be engaged. View every question as an opportunity to be a teacher!
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 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 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."
Thursday, November 12, 2009
Posted by Alan Childress
Two recent posts from the Law of Criminal Defense Blog caught my eye and I share them with you below. (This is in addition to recommending Bill's nice and provocative post here this morning on outcomes in legal education -- which btw has been picked up by the ABA Journal here [they do that to Mike's posts all the time, too] and has good comments after, including several "Go Henderson"s.).
In one post, the blog (by John Wesley Hall, Jr.) reports on "a rare look at an appeal from a denial of CJA fees appealed to the Circuit Court and applying the" circuit's written guidelines. That court was the Ninth Circuit; it held that the trial judge's "48% reduction of CJA counsel's second interim fee request was within the court's discretion based on the judge's observation of the trial not matching the trial preparation."
I am indisputably interested in issues of federal appellate deference and standards of review, to be sure, but also what caught my eye is the decision below was by "Judge Quackenbush." I immediately thought of Groucho's doctor-character in A Day at the Races, but that was actually Hackenbush. But my comedic instincts were not wrong. Turns out he was originally Quackenbush but "MGM’s legal department discovered at least a dozen legitimate U.S. doctors named Quackenbush, so, for legal reasons and to Groucho’s dismay, the name was changed to Hackenbush." More famous litigation lore, perhaps, is the Warner Brothers' rumored threat to sue the Marx Brothers for their film title A Night in Casablanca, to which Groucho wrote a letter to WB threatening to sue them for using the word “Brothers”: “Professionally, we were brothers before they ever were.”
In another post, Hall comments on a trial judge's chastising of Sidley Austin "for dripping sarcasm in their brief." Hall's reminder: "You're going to win or lose without it [sarcasm], either on the facts and law or the fact the judge hates defense lawyers and defendants, and sarcasm is just unprofessional."
Hall also links to an article on lawyers AS criminal defendants, by Leslie Levin, new in the Georgetown Journal of Legal Ethics.
[Posted by Bill Henderson]
Over the last few years, the topic of outcome (or output) measures has been a recurring theme at various association meetings and conferences surrounding legal education. Some of this discussion is motivated by Department of Education initiatives that want to establish a clear linkage between educational cost and economic returns. Some schools, however, believe that their fortunes will rise when they can be judged on three years of education (e.g., bar passage rates, employment, student satisfaction) rather than the input measures that drive the U.S. News Rankings.
It is hard to imagine a more impossible task than faculty from 190+ law schools reaching a "consensus" on outcomes measures. Yet, consensus is not required. The ABA Section on Legal Education and Admission to the Bar, through its authority to accredit law schools, can require law schools to measure, collect, and report information that the Section determines is in the public interest. In 2007, the Section created a "Special Committee on Output Measures" and asked it to "define appropriate output measures and make specific recommendations as to whether the Section should adopt those measures a part of the [Accreditation] Standards."
So what happened? The Special Committee's 76-page single-spaced Final Report, issued in July 2008, made little headway in defining output measures or making specific recommendation regarding accreditation. In a nutshell, the Committee recommended that the Standards be amended so that each law school would be free to define and measure its own outcomes. In theory, these new Standards could be given teeth by the rigor of the outcome measures (or lack thereof) embodied in a school's self-study report and strategic plan (two processes already required under the accreditation process). This excerpt from the Final Report puts the best possible spin on the Committee's recommendation:
In truth, the Committee's approach turns the purpose of outcome measures on its head. In the broader discussion in higher education, outcome measures are sought because they enable an apples-to-apples assessment of the effectiveness of an educational institution. Indeed, the entire process is meant to facilitate comparisons. Why? Because meaningful comparative information levels the playing field between those providing education (the schools) and those financing it (the students/citiizens). When outcome information is readily available, it changes behavior and alters powerful norms, including over-reliance on US News. In the absence of apples-to-apples outcome information, the market adapts as it does now--by focusing on the basis of inputs (revenues, books, number of faculty, LSAT scores, UGPA, etc.). It is the opaqueness of legal education that creates a vacuum needed for the US News rankings, which are nearly perfectly correlated with student entering credentials.
The Committee shrinks from the task of defining specific, comparable outcomes because it knows (at least implicitly or subconsciously) that the very process of creating meaningful outputs creates a large number of winners and losers among law schools. Yet, by refusing to act as regulator that serves the public interest, the ABA Section on Legal Education and Admission to the Bar makes law schools the winner and law students the losers.
If we evaluate outcome measures from the perspective of law students rather than law schools, there are at least three pieces of information that the Section should collect and publish annually in a format that facilitates school-to-school comparisons:
- Bar Passage. Working in conjunction with the Law School Admissions Council (LSAC) and the National Conference of Bar Examiners (NCBE), the Section should construct a database that compares scores on the Multistate Bar Exam after controlling for entering credentials, jurisdiction, and law school attended. Preliminary evidence suggests large variations--above and beyond entering credentials--in law schools' ability to get their students over the bar exam hurdle. See Henderson Letter to Special Committee (January 30, 2008). This information is crucial to diversifying the bar because minority students historically have significantly lower bar passage rates. Both educators and students need to know which schools are most effective at erasing this gap. Principled objections to the bar exam as an outcome (so often voiced by professors) need to be squared with the practical realities faced by students.
- Employment Outcomes. How many graduates are working in non-legal settings? What are the salary ranges and distributions within legal and non-legal practice settings? Is there any evidence that some schools have better placement records as a result of curricular initiatives? Remarkably, no one in legal education knows the answers to these questions. Schools should be required to submit a list of the employers and job titles for all of its graduates, and the Section should then code and compile these lists in a way that reveals the full range of outcomes, thus enabling meaningful school-to-school comparisons. The lists themselves need not be published; the binning process would capture the useful information while also ensuring student anonymity. There is a high probability that the current ABA coding system (e.g., "academia", "business") contains outcomes that make $120K in legal education look like a bad investment. The Section should follow up with these graduates to better understand their circumstances, including the decision-making process that the graduates relied upon.
- Debt Loads. Because of the scholarship process used by virtually all law students, tuition is a misleading indicator of law school cost. Debt is a more accurate measure. But means and medians are not enough; students need to see full distributions. Specifically, they should have access to a histogram of a school's debt loads at graduation. And not just law school debt, but also total educational debt and consumer debt.
If the Section focused on the above approach, they will not need to develop the thousand-flowers-bloom approach embodied in the Special Committee's Final Report. In a market will better information, law schools will find and leverage their own competitive advantage in order to survive--and let's be honest, some schools won't. From a societal perspective that is okay. The Section on Legal Education and Admission to the Bar needs to wake up to the fact that is is regulator with a fiduciary responsibility to law students, not law schools.
Friday, November 6, 2009
Posted by Jeff Lipshaw
I've just pre-ordered a copy of Louis Menand's new book The Marketplace of Ideas, part of the "Issues of our Time" series edited by Henry Louis Gates, Jr., based on the taste I got from the excerpt in the November-December 2009 issue of Harvard Magazine (the alumni journal - I am not an alum, but I am married to one, and it keeps me humble - she left the article lying on my desk ). Menand is the Bass professor of English at Harvard, and the author of the thoroughly engaging intellectual history The Metaphysical Club, about the Boston "reading group" consisting of Charles Sanders Peirce, Oliver Wendell Holmes, Jr., William James, etc. The excerpt is about the "Ph.D." problem in the humanities, and does this sound familiar on the subject of legal academics, primarily motivated by their scholarship, teaching professionals-to-be who could care less about those arcanities?
Doctoral education is the horse that the university is riding to the mall. People are taught—more accurately, people are socialized, since the process selects for other attributes in addition to scholarly ability—to become expert in a field of specialized study; and then, at the end of a long, expensive, and highly single-minded process of credentialization, they are asked to perform tasks for which they have had no training whatsoever: to teach their fields to non-specialists, to connect what they teach to issues that students are likely to confront in the world outside the university, to be interdisciplinary, to write for a general audience, to justify their work to people outside their discipline and outside the academy. If we want professors to be better at these things, then we ought to train them differently.
And on the subject of intellectual regeneration and foment:
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. And the gap between inside and outside academia, which is partly created by the self-sorting, increases the hostility of the non-academic world toward what goes on in university departments, especially in the humanities.
The wonderful irony here is that one of the suggestions is that getting a Ph.D. be more akin to getting a J.D., with the requirement of passage not a pre-publication dissertation, but a peer-reviewed article! Which, of course, is exactly the opposite of the direction often advocated for legal academics!
In any case, food for thought!
Tuesday, October 27, 2009
We received the following press release from the National Institute for Trial Advocacy:
* * *
In response to ongoing changes in the legal profession and in an effort to provide new insight into the best ways to improve legal training at all stages of a lawyer’s career, the National Institute for Trial Advocacy today released a free white paper titled “The Future of Legal Education: A Skills Continuum.”In announcing the white paper’s release, NITA President Laurence M. Rose noted “Although the need for improved training in the essential skills of lawyering, rather than pure legal scholarship, has been discussed for decades, in today’s environment changing the way skills are taught has gone from theoretical nicety to economic necessity.”
Drawing on insights from leading lawyer development professionals, the paper presents “specific, tangible steps that can be taken by law schools, law firms, bar associations and other continuing legal education providers,” says Caren Ulrich Stacy, founder of Lawyer Development Strategies LLC, and chair of NITA’s law firm advisory panel.
With skills as the common thread, the paper’s recommendations seek to stimulate discussion and research across all aspects of legal education. “Understanding the skills which clients value most in today’s legal practice will help law schools, legal employers and other legal education providers in future decisions regarding how we recruit, train and compensate lawyers,” added Rose.
The full white paper is available at www.NITA.org.
Friday, October 16, 2009
Posted by Alan Childress
Here is the hot-off-presses Newsletter of the AALS Section on Professional Responsibility. Thanks are owed again to the generosity of the AALS section officers, both for the time and effort it took to write such a useful newsletter and for allowing us to link to it. You can find it in pdf here: Download AALSNewsletterSum09.
Thanks especially to Randy Lee at Widener, its general editor, and Laurel Terry at Penn State, the section chair this year, as well as all the scholarly contributors from profs at various schools. For example, as always, Fred Zacharias (San Diego) has an excellent summary of recent scholarship in the field. In her chairperson's intro, Professor Terry not only notes the new listserv but also invites you to attend a section dinner at The Palace Cafe in New Orleans during the AALS annual meeting. Dinner is Friday night, Jan. 9, 2010, at 7:30 pm. Just give her a heads up, as explained on page 3 of the newsletter. She chose a great menu, with three entree options. She especially noted that she is welcoming attendance at the meal by those who teach legal ethics who may not have it as their main subject and may not be active in the section. See you there!
Monday, October 5, 2009
Monday, September 21, 2009
The Maine Supreme Judicial Court recently announced a hearing on the application of Husson University to permit its juris doctor graduates to sit for the bar:
On September 1, 2009, Husson University filed an application for an order establishing that Husson’s Juris Doctor graduates are eligible to sit for the Maine Bar Examination and to be admitted to the Maine Bar.
The Court has issued an order requiring Husson to answer questions propounded by the Court; permitting interested persons to file memoranda commenting on the application; and setting a public hearing on the application.
The Court will hold the public hearing on the application on Tuesday, December 1, 2009, at 10:30 a.m. at the new Penobscot Judicial Center, 78 Exchange Street, Bangor.
A copy of all documents relating to the proceedings on the application will be posted on the website of the Maine Judicial Branch at http://www.courts.state.me.us, and will be available for inspection between 8:00 a.m. and 4:00 p.m. weekdays at the office of the Clerk of the Supreme Judicial Court, 205 Newbury Street, First Floor, Portland.
Husson University is represented by Peter L. Murray, Esq., Murray, Plumb & Murray, 75 Pearl Street, Portland, Maine 04101.
Dated: September 17, 2009
The Maine Public Broadcasting Network has a report:
Husson University wants to open a law school to satisfy a demand for younger lawyers in the most rural parts of the state.
"Across northern Maine the numbers are something like more than half are 50 or older, and Hancock County I think it's something like 60 percent of the lawyers are over the age of 55," says Micheal Mullane, Dean of the Husson University Law School, which has just started accepting applications.
In order to be eligible for American Bar Association accreditation, the school will have to demonstrate that it can attract students. But last year, the Maine Supreme Judicial Court said graduates of Husson's law school would not be eligible to take the state bar exam because the school's existing faculty and curriculum were not sufficent to prepare students.
"We have addressed recommendations of the court. We have hired highly credentialed faculty with extensive experience teaching in law schools," says Husson President Bill Beardsley. "We've incorporated American Bar Association and Carnegie Foundation recommendations related to law curriculum. We've proposed a court-appointed review commission to carry out periodic assessments of our performance, the costs of which would be borne by the university. Finally, in September we'll be filing a substantive change notification related to the law program with NEASC, our accreditors."
Beardsley says he hopes those changes will be enough to persuade the Maine Supreme Court to allow Husson Law graduates to sit for the Maine Bar Exam. The school has re-petitioned the court. And Beardsley says he hopes in five years, the school will gain American Bar Association accreditation.
If approved, Husson would open Maine's only private law school. Dean Mullane says the school will set up a legal clinic in which students will hone practical skills, and there will also be courses on being a self-employed lawyer, a common form of practice in this part of the state.
"The other thing we're going to make a serious attempt at doing is making sure not only do our students have the knowledge and the skills necessary to go out and practice on a single-shingle operation, but that they have the self-confidence to do so," Mullane says.
Husson hopes to accept its first law school students in 2010. It estimates the class will have about 30 students.
Friday, September 4, 2009
Posted by Jeff Lipshaw
This wasn't my rationale for taking lessons in riding a horse this past summer, and continuing now that we are back in the Boston area, but what has occurred to me is the benefit to a teacher of being a student in a discipline as to which the teacher-student is an utter neophyte. (I'm not sure I had any rationale - I've tended to a midlife crisis every five years or so since I was 35, and if I can get through this one just by riding a horse I will have done pretty well.) Suffice it to say that other than a pony ride when I was five years old, and sitting on a merry-go-round, I had never gotten up on one. I've now had six hours of lessons with four different instructors (all excellent, by the way) at two different stables, and here are some random thoughts not so much about riding as about my reactions to be taught something.
1. I am incredibly insecure. Tell me every once in a while that I'm not a complete disaster. Indeed, it's encouraging to get at least as much praise for what I'm doing right as the corrections I need.
2. I feel pretty stable up there, but every once in a while the horse does something I've not experienced before, and it is a little scary (e.g., steps on a stone, bucks her head a little and sneezes, etc.). It helps to say something to the instructor and be reassured that nothing unusual or wrong is going on.
3. I'm not a natural athlete - I'm analytical to a fault and can be affected by what is known as "paralysis by analysis." I'm trying to translate what is a matter of athletic feel into my own sensory and linguistic images, and I can only absorb small bites at a time. And it helps to keep repeating the point over and over.
4. Sometimes we miscommunicate, or I interpolate an instruction from earlier into a new lesson. For example, you steer the horse both with how you move the reins and the pressure you apply with your legs. When I am trying to ride on the very outside of the ring, I have to press a little with the leg away from the fence to keep the horse from moving toward the center of the ring. We then started steering in figure 8s around cones, and now I want to apply pressure with the leg in the direction I actually want the horse to turn. But that was opposite to the previous instruction where I was using counter pressure to keep the horse in a line. I just didn't hear it well. The solution was to recognize that I was confused, stop, and say "I'm confused."
5. I'm also not a naturally relaxed athlete (something that keeps my handicap in golf high), and my inclination is to try too hard, get real tense, and create resistance to what I'm actually trying to do. A friend with whom I played golf over the summer (he's 67 and a 4-handicap, as well as a first rate tennis player) said, "in these sports, we always have a lot more time than we think we do." Take a deep breath. Don't panic. Sit tall. Don't overthink the problem.
6. Posting is the process of raising and lowering your lower body in the same rhythm as the horse's walk or trot (I assume canter as well, but I've not cantered yet). It is a physical movement not natural, I think, to men (and I can't say for women). The closest analog is to Pilates - small moves that engage your abs, inner thigh, and butt (sorry!). You know it when you do it, but it's not easy. It really helped one day when another rider was in the ring, and I could watch her.
My current instructor is Meg Howes at Verrill Farm Stable in Concord, Massachusetts, and she's a really good teacher!
Tuesday, September 1, 2009
Of Pedagogical Epiphanies and the "On Call" List - Will the Deontological Prevail Over the Consequential in Class Participation?
Posted by Jeff Lipshaw
As previously noted, I ditched the seating chart in favor of tent cards with students' names. I am also having classes recorded and posted as MP3s on TWEN. The quality of the discussion yesterday on a normally discussion-proof topic - the establishment of the agency relationship - was the best in the four consecutive semesters I've now taught the class. This is notwithstanding my extreme laissez-faire attitude about laptops in the classroom. Could it be students are backing off transcription-style note-taking because of the MP3 backup? I do not perceive any fall-off in attendance (given my laissez-faire attitude toward attendance-taking, I can't be sure of that either). This is not an apples to apples comparison as I have taught the class alternately at 10 a.m. and 4 p.m., and the 10 a.m. class seems to have more energy generally, merely on account of time of day. But hope springs eternal.
Normally, by the third class, I've circulated an "on-call" list. This has its own history. My first experience teaching upper-level students was a three-credit class on Sales at Wake Forest in the fall of 2005. I'm willing to go public and say that it was (euphemistically) a learning experience, or more honestly, a disaster. Among other things (like coming to grips with how much you have to learn to teach a subject you thought you already knew!), I was still struggling with my own resistance to calling on people, particularly in the upper-levels, as an artifact of Socratic-style power relationships within the classroom. The result, however, was that most students weren't prepared, and my attempt to elicit dialogue (still my preferred method) by way of guilt-inducing doleful puppy-dog stares out at the assembled multitude only spurred on a few, and always the same, volunteers, leading to some comments in the evaluations to the effect that I seemed to favor just a few students. So I went to the "on-call" list as a compromise, first with a threat of grade-dinging if the students were absent or unprepared, and evolving into a kind of early-warning system to the students that I might call on them, but without either carrot or stick because (a) I didn't keep track of attendance, (b) I don't really do Socratic - I just pose questions and move on quickly if nobody knows the answer, and (c) I never punished anybody.
Yesterday, before class, I was trying to decide if the "on-call" list was now inconsistent with the other laissez-faire methodologies, and, as I explained to the class, I decided that the form into which it had evolved was not inconsistent, but the name was. That is, I know a lot more than the students do, but the class is more interesting if we have other voices than mine doing the teaching. I'm the director in a way; the students, if well-directed, help me teach, making it kind of a shared experience, rather than either lecture or Socratic brain teaser. So I've decided to rename it the "Co-Teaching List," which I think more aptly reflects the voluntary, team-oriented spirit of what I'm trying to do. In short, will students contribute to the success of the class as a matter of duty or obligation versus fear of adverse consequence? Or is my idealism once again getting the best of me?
Sunday, August 23, 2009
Posted by Jeff Lipshaw
First class blues are the order of the day across the law prof blawgosphere; we start tomorrow. I'm teaching the same class for the fourth semester in a row, and last spring I wrote the teachers' manual for the book (Ribstein & Lipshaw, Unincorporated Business Entities, 4th Edition - get it while it's hot), so getting prepped substantively isn't a big deal. Instead, I've been mostly fiddling with the logistics of the class. For example, I like to have my class outline written out in front of the class, and I'm willing to use PowerPoint for that limited purpose, but heretofore I've always been in classrooms in which the screen blocks the whiteboard, which is my preferred graphic medium. This year, I have side whiteboards, so I can dispense with the laborious pre-class writing out of the outline on the board.
FWIW, here's the (slightly redacted) text on the TWEN home page for the course:
Feel free to stop by or call to set up an appointment at any time. I tend to be around a lot. My cell phone is ***-***-****, and I trust your good judgment as to where and when to call it.
I taught this course in the Spring, 2009 semester, and you can expect a lot of similarities. The main difference is that we used a course pack version of the casebook manuscript of Ribstein & Lipshaw, Unincorporated Business Entities, 4th, and now the book is available. We incorporate the statutes into the book itself, so you don't have to buy a separate supplement. As to my measly portion of the measly royalty on the price of the book (about $5 per book after taxes), I will make a contribution in that amount to some worthy cause, and let you know what it is during the semester.
This is often the first encounter many students have with the business world. Much of what the cases say can be difficult without an understanding of the context. We will spend part of the first day's class into a class exercise that deals with the business motivations that underlie using the doctrine we will spend the rest of the term exploring. During the case discussions themselves, we will spend a lot of time, therefore, unpeeling the facts, and understanding context. If you are ever struggling with that (or anything else), please do not be shy about letting me know.
I have decided this semester to experiment with the logistics of the class in two ways:
(a) I am having the IT department record and make ALL classes available via an MP3 posted on TWEN. I think there's still a significant value to you, me, and others in coming to class (particularly if you are on call), but I want to remove some of the note-taking (particularly the "transcription" kind) pressure. If you take notes, concentrate on engaging with what's important - you can always go back and pick up details later. (Note: I mentioned this to a former student the other day, and she posed the natural question - "will it mean people don't come to class?" That, of course, like all decisions in your life is yours to make. I asked if she would have come to class, to which her response was "I wouldn't want to miss the show.")
(b) I've decided to do away with one of the hallmarks of "teacher power," the seating chart, and instead go with tent cards (I think Professor Glannon does this in his Civ Pro classes) so we all know each other's names. I recognize that in a typical day you have more on your minds than bringing the tent cards to class, so I will collect them and keep them in a box that I bring with me. Also, one of my quirks is that I have, in the past, had everybody fill out an index card with some basic information. I'm going to ask you to do it instead on the inside of the tent card. I'm also thinking that I would like to take ten minutes to go around the room and have people introduce themselves (likely on the third day of class, once drop/add is over).
Finally, I'm not sure what it is about law students, or students in general, that often causes them not to avail themselves of all the resources that might enhance the odds of great success, but keeping track of what I put here on TWEN is one of those resources. Near the beginning of class on Monday, August 24, I'm going to ask the question, "What is the secret word?" If you immediately shout out "equestrian," (that's random, but I took up horse riding this summer), you will know that you already have a leg up on your less assiduous classmates who didn't read down to the very bottom of this message.
Saturday, August 22, 2009
Posted by Jeff Lipshaw
Paul Lippe, who has been an agent provocateur (or thought leader, as they say) on the subject of legal education, has a follow up to his original Am Law Daily commentary to which our Bill Henderson linked a while back. Follow the link and read it for yourself, but I'm not sure if the comments are available if you aren't a member of Paul's Legal OnRamp, so here's mine if you want to hit the "back" button on the browser after you read his column:
* * *
Like Ray [Campbell, visiting professor at Penn State Law School, who also commented - UPDATE: see his original comments below the fold], I'm a former Big Law partner, and I was the VP & GC of a Fortune 850, NYSE company. I'm less likely than Ray (based on his comments) to try to argue that today's paradigm of legal scholarship has anything more than a passing relevance to the in-the-trenches practice of law. But that's not really the point. Practitioners have to understand that we started down a particular path over a hundred years ago when C.C. Langdell came up with the idea that law could be derived inductively from the reading of cases, akin to the scientific method in other disciplines. (There's a social science term called "path dependency" and it has to do with how hard it is to get off a particular path once you are on it; as an example, if you take a job at the beginning of your career with Weil,Gotshal, you've created different path dependencies for future choices than if you take a job with Sooem & Servem in Elko, Nevada.) Law became a subject for instruction in research universities, not merely for the training of lawyers, and with that developed a community of legal scholars, developing, indeed evolving, their own standards for what constituted advancement in knowledge. For a long time, that had to do mainly with legal doctrine, and academic energy devoted itself to the great treatises, and the great doctrinal advances like the UCC.
The problem with comparing law to medicine (as I did, and to which Paul links) is that while the practice of medicine is both art and science, the science is still hard science, and, moreover, the linkage between cutting edge theoretical research and its practical application is far more intuitive. For example, my son has his name on a paper that deals with work on the very subtle science of diabetic neuropathy in cells - how at a molecular and cellular level does the glucose cause the problems it does? Even if the research isn't directed at a cure, we can understand it in the web of scientific research that leads to useful advances and human flourishing.
That's far harder to do in law, and one only needs to scan the titles of the last 2,000 or so papers uploaded onto SSRN to confirm the hypothesis. Moreover, there's a lot of work produced and in spotty quality because of two structural features of academic law as it has moved down its particular path: (a) the sheer number of law professors compared to other disciplines, because the training of professionals subsidizes the theoretical pursuits; and (b) the plethora of student-edited (and non-peer-reviewed) journals. In short, law as academic discipline is still finding its place in the world. Given a hundred years of path dependence, however, "solving" the problem of legal education isn't going to occur without some acknowledgment of the academic paradigm. For example, we could certainly, as a logical possibility, move to a world in which most lawyers are trained in vocational institutes, and make theoretical "law and..." part of more traditional humanities and social science Ph.D. programs. But I suspect that most lawyers like their ties to the status of research universities that spawned most of them.
Monday, June 29, 2009
Posted by Jeff Lipshaw
An op-ed by Paul Lippe (no relation) at the Am Law Daily on what law schools ought to do to cure THE PROBLEM has gotten a fair amount of buzz in the blogosphere, including from our own Bill Henderson.
Here's my quick reaction:
1. The descriptions of Phases I to III (reading law; Langellian case method; "law and ...") seem accurate to me.
2. This statement strikes me as a relatively fair generalization:
Even in 1981, when I went to law school, the faculty generally held law firms in low regard, and clients were presumed unethical without the constant guidance of lawyers (when I spoke to a law school dean the other day, she immediately equated client with "Enron"). It's nuts for law school to be primarily about understanding appellate decision making and not at all about understanding clients.
This is particularly the case when discussing the politically-infused area of corporate governance. I still marvel at individuals in various institutions (academia, Congress, state governors, corporations) who have no compunction about calling the motives of other individuals in other institutions into question (i.e. conflicted, greedy, short-sighted, etc.) without stepping back and looking at their own. For example, I'm still not convinced that faculty governance has any moral superiority over corporate governance, and clearly Governor Sanford's recent escapade tarnishes the purity of the bully political pulpit. I'm willing to accept a middle ground, which is that none of us embodies an Archimedean moral fulcrum. Or to quote Robert Burns: "O wad som' pow'r the giftie gie us, to see oursels as ithers see us."
3. Mr. Lippe says:
-A much more empirical approach to practice, forcing much deeper inquiry, rather than just trotting out hypotheticals and issue-spotting--e.g., if choosing AAA arbitration is the right dispute resolution clause, do we know that a higher percentage of deals with no arbitration clause ended in a contentious dispute?
This statement strikes me as not fully thought out, but certainly an area in which inquiring minds ought to be engaged (I try to be, as evidenced in this recent piece about legal "cures" to social problems). First, I'm not sure we've fully probed the empirical foundations of statements of this sort enough to use them as the basis for advice. You have a rare form of cancer. Overall, the cure rate with the best treatment is 20%. We can at least make some fairly reliable predictions as a result of natural science, to get at real cause-and-effect. As a general matter, that's far more challenging when we draw social science conclusions. Second, the analogy to medicine highlights the issue. Is the information a helpful piece of data in deciding whether to take the treatment? My son, Matthew, starts med school in six weeks, with a beginning unit that touches on evidence-based medicine. My guess is that data is helpful, but not ultimately dispositive, in making forward-looking judgments about care.
Tuesday, June 9, 2009
Posted by Jeff Lipshaw
The AALS asked me to give the "junior faculty" perspective on a panel here in Long Beach assessing the state of the basic business associations course. As I noted, it's a strange "junior-ness" as I'm going to be attending my 30th law school reunion in the fall. Of those thirty years, twenty-six were as litigator and deal lawyer, in-house and outside lawyer, soldier, general, and diplomat, so I've seen a lot of different perspectives. My co-author, Larry Ribstein, moderated, and Usha Rodriques has done yeoman's duty in summarizing the rest of the panel; here's a snapshot of what I had to say (for what it's worth).
Two major differences between the way practicing lawyers and academic lawyers think about business association law have to do with how it's organized (as a practical matter) and how it's conceived (as a theoretical matter).
As to organization, business law isn't practiced by doctrinal area, but it tends classically to be taught that way. Issues arise in context; clients rarely come in and say "I have an issue in agency that needs work." It's teaching the context the doctrinal silos impact that is the real challenge.
To give a sense of the cluelessness most students entering the basic BA course feel (as I did thirty-two years ago with my freshly-minted history degree), I asked the audience to consider the game of Flog, as to which substantial legal doctrine had developed. The course is Flog Law. Aspects of the game techniques as to which doctrine has developed include equipment and techniques or "moves" such as the long hurl, the short hurl, and the "roll." All teaching is done by means of discussing what the other player's rights are if you wrongly perform the act to which the doctrine applies. For example, if a player incorrectly performs the long hurl, he or she is penalized two dribbets. The student is not taught explicitly, and must figure out on his or her own what it means to win the game of Flog. The obvious conclusion from this method of teaching has to be that winners in Flog are those who catch the most mistakes made by the other player. So you finish the Flog Law class, graduate, go out into the world and advise Flog players, who immediately get mad at you because it turns out Flog players have a completely different objective: using the few strokes to get the ball in the hole (spell Flog backwards).
Compare this to teaching the litigation game. I graduated in 1979 with civ pro, federal jurisdiction, evidence, and a clinical trial practice course, and I pretty much understood what I was going to be doing as a litigator for the next ten years. You know what it means to succeed. Teaching the business law game, it seems to me, means first giving students some idea of what it means to succeed. We would accomplish that far better if we substituted for the stroll through doctrinal categories a functional approach: how concerns about liability to third parties, management of the enterprise (rights and duties of owners and managers), finance and taxes, and ownership and transfer, all generally the domain of lawyers, fit into the business game.
As to the conception of business law and lawyering, I noted that the data of the world doesn't just organize itself; there is a relationship between the observer and the observed in which the observer brings something to the party. The predominant approach within the academy is to be, as Ronald Gilson observed, entomologists studying the beetles, and Usha had it right: entomologists telling the beetles how to BE beetles. It means academic conceptions of the law and its role are retrospective, objective, litigious, and analytical, while the practice conceptions of transactional law are forward-looking, subjective, transactional, and strategic/tactical. Moreover, what academic business law usually leaves out is the integration of doctrine, and the law itself, into the business (or Flog) game, which means dealing with (a) the exercise of good judgment, and (b) the limits of the law as means to the ends of the game.
Finally, I should note that I met face-to-face Charles Whitehead, the beetle-turned-entomologist to whom Ronald Gilson was actually referring!
Wednesday, April 22, 2009
Posted by Jeff Lipshaw
We're heading into our last couple days of classes, and I saw a colleague (who will remain nameless) bouncing his way down the hallway with a disgustingly cheerful air, and what we used to refer to as a "%^&( eating grin." I asked him why he was so happy, and he said "it's my favorite time of the year." Immediately, a little Andy Williams in a devil costume popped up on my shoulder, singing the following:
The 3Ls are cramming
And take-home examming, with 1Ls in fear.
It's the most wonderful time of the year
It's the hap-happiest season of all
With the summer approaching and no class encroaching
At least until fall,
It's the hap- happiest season of all
There'll be stipends for writing
With no deans to be fighting,
And grading will all have been done.
There'll be times of clairvoyance;
We're free from annoyance when
Faculty meetings are none.
It's the most wonderful time to stay here
There'll be much profound thinking
On essays we're inking
When students steer clear
It's the most wonderful time of the year
There'll be federal granting
And no colleagues ranting
In committees to which we belong
We'll be teaching in Florence
And free from abhorrence
Of everything we know is wrong.
It's the most wonderful job you can get.
While the law firms are bleeding
And markets receding
The one thing we never forget
It's the most wonderful job
It's the most wonderful job
It's the most wonderful job you can get.
Thursday, April 16, 2009
Posted by Alan Childress
Maybe it is actually too late for some of the more useful exam-taking tips (like listen and engage during the course, and study hard), but I thought I would point to some good advice for test-takers in law schools right now who are about to enter that Matrix once again. (Of course, grading them is often like seeing a cat arch his back again and saying "Whoooa, deja vu." And a few exams remind me more of Bill & Ted's Excellent Adventure. Which makes me wonder what happened to the actor who played Bill? Oh, turns out Alex Winter played "Bill S. Preston, Esq.," and then went on to several projects as either actor, producer or director. My bad.)
One much-linked source is Jeff Lipshaw's classic post here at LPB on exam-taking: Beyond IRAC. Add to that this new post on discourse.net listing advice from two other law profs. One explains pithily what we mean by applying the law rather than being conclusory, and about time budgeting (that skipping one question cannot be salvaged by excellence elsewhere). Another points out you should be "answering the question rather than trying to show how much you know or how much work you have done - relevance is crucial"; I often find that first-years, especially, want to prove to me they learned the whole course on every question, when my question may be (likely is) more focused than that.
Read also the comments to this post, as a debate ensues over the value of outlining advice from Getting To Maybe, and other readers post a few more good tips. One notes that a lot of exam tip sources such as Getting To Maybe are like diet books--you know the hard part so just do it. I would add an analogy to reading lots of golf instruction books. At some point the best advice is to take practice exams and then follow that by taking practice exams. Repeat.
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!)