Friday, August 17, 2012

Deification, Demonization, Order, Chaos, Justification, and Rationalization in Legal Education

Posted by Jeff Lipshaw

My co-author, Marcia McCormick (left) Mmccor20, a Saint Louis University law professor affected by the recent deanship resignation and replacement debacle, has some wise thoughts about false dichotomies implicit in the current "discussion" over the cost and form of legal education.   

But Marcia was being thoughtful, and judging by some of the comments, no good deed goes unpunished.   Here's some support for her view, and if it's unduly reasonable, I'll just have to take my punishment too.

One of the false dichotomies I've observed over the course of a long career in and out of academia (more out than in - twenty-six years of law firm and in-house, managing, hiring, firing, etc.) is the view that the world divides up neatly into gods and demons.  Marcia's post highlights and critiques the perfect storm of deification and demonization when in the face of increasingly scarce resources (see Jerry's post), (a) there's a good old-fashioned turf war, (b) in law school, (c) at a time when all of the contending protagonists and antagonists feel the warm glow of victimization and justification.

Why turf war?  Marcia refers to warring dualistic tropes, and my take is that each one is tied to a particular fight over turf. To paraphrase James Carville, it's the scarce resources, [pejorative]! Education may not be "business," but it is an institution governed by pretty basic economics, and cash does fuel the engine.  Everybody (including me) has a stake, and when the scarce resources are getter scarcer (corporate legal budgets, good lawyer jobs, raises, summer stipends, full-time tenure track jobs, etc.), it's awfully hard to separate out one's adaptive and atavistic instincts for survival from one's dispassionate assessments.  Campaign rhetoric isn't meant to be subtle; it's meant to rally the troops.  And objectivity is a nice ideal, but don't tell that to somebody in a metaphoric foxhole just trying to survive the battle.  (I'm putting aside real foxholes and their physical equivalents, though even that dichotomy may get blurred.)

Why law school?  No profession and no academic discipline conflates the "is" and the "ought" like law.  (There's great work being done on the "is" of legal education, by the way, whether by my co-bloggers here, or by people like Brian Tamanaha.)   The question is what conclusions we derive from it.  I'd like to stamp on every law student's orientation folder the phrase "Justice ≠ Truth."  That is, we all have our own idealization of a perfectly just world in which everything is as it ought to be.   In many ways, we define ourselves by how we account for the gap between what everybody would agree is true, and what each of us individually thinks is just. 

That's the problem of both natural and human evil.  How do you explain babies dying in tsunamis?   How do you explain Aurora?   How do you explain unanticipated shifts in supply and demand?  But, as they say, stuff happens, much of which seems to be unjust, and law is one human institution (vendettas, perp walks, and anonymous internet postings, for example, being others) that attempts in its own way to redress some of the stuff that seems unjust.  (See this recent post on PrawfsBlawg for a nice example of how one person's idea of justice can be another person's outrage.)   

Why the warm glow of justification and rationalization?   This is Marcia's point about law school being a place in which we teach students a particular method for finding order in chaos.  Legal argumentation is a perfectly acceptable way of translating your adaptive and atavistic instincts about your turf (whether you are defending yours or invading another's) into something idealized, like justice.   [Redress of injustice] + [turf war] ⇒ [lawyer as warrior].   One of my law firm mentors, a great commercial trial lawyer, used to observe that the usual characterizations of plaintiff and defendant didn't matter when two firms were suing each other.  "No matter which side you are representing," he would say, "your job is to establish that the other side was the ***ker, and your side was the ***kee."  Why?  Because that's consistent with the way, despite all of our modern trappings, we really want to see the world - populated by gods and demons so that all of the random **** makes sense.  (See my friend and colleague Gabe Teninbaum's Michigan State Law Review article, Reductio ad Hitlerum: Trumping the Judicial Nazi Card.)

Some thoughts.  Here are the couple paragraphs from Marcia's post I think are so profound:

I think there is great value in legal scholarship. The public benefits by getting legal and government structures that make real people's lives better. Students benefit from the scholar's ability to turn chaos into order and communicate both the chaos and the order to someone who hasn't done the same work. The students have to start with order and see how it is constructed from chaos and how to explain that before they can learn to do the same thing, which really, is what lawyers do for their clients.
Teaching, of course, is vital, but teaching requires learning, and learning is not something that occurs within the teacher. Learning occurs inside the head of the student, and students have to learn, not just information, but more importantly to perform a process that is fluid and adaptable, and to master a number of difficult skills, internal and external. We can't just open the top of a student's head and pour in the learning. Most of the law professors I know and have worked with take this very seriously and constantly work at ways to accomplish this for their students who have different needs and abilities, but we don't talk much publicly on how we do that.

The ability to learn is what mediates the perfect storm of self-interest, advocacy, and justification. But that's a higher order process because it means thinking about why you are thinking what you are thinking.  Or, in other words, it means having a disposition in which you are at least sometimes amenable to the possibility that the way you are putting order to chaos may be affecting your conclusions.  

110919.WLRK015.webAnd don't tell me that's just theoretical mumbo-jumbo.  In an essay I posted recently, I referred without naming them to a couple of the best lawyers with whom I had ever negotiated.  I'll out one of them now.  I was recalling, among others, David A. Katz of Wachtell Lipton, when I wrote this:  "Some of the best negotiators I have ever met (their names would not surprise you) would turn to their clients and say out loud words to the effect, 'Do you understand what their concern is?  That’s a good point.  We need to figure out a way to accommodate it.'"  

To do what David did, not only do you have to be able to turn chaos into order by taking the multitudinous data life presents and squeeze them into an algorithm like [duty + breach + cause + damage ⇒ recovery], but to hold that algorithm in mind while you simultaneous understand that there are other ways, from other perspectives, of organizing the same data.   That's what I write about, and it's what I try to teach.

In a different place, I wrote this:

There is, moreover, a link between judgment, learning, and leadership. For academics (and legal ones particularly), the challenge is discovering that “scholarship” is just a term of art for a particular product of people who ply their trade in academia. F. Scott Fitzgerald’s often-misquoted dictum is deeply insightful. He says first: “The test of a first-rate intelligence is the ability to hold two opposing ideas in mind at the same time and still retain the ability to function.” Being truly able to learn means that you have to will yourself to understand why someone would hold an idea that is opposed to yours; thus, in that moment of learning, you hold both ideas. Somebody can be a “scholar” for fifty years and never have one of those epiphanies.

When I was hiring lawyers to be general counsel to an organization, my view was that I could always teach a skill.  And, on a regular basis, I hired litigators and patent lawyers who had never seen a business negotiation or managed an acquisition or counseled a CEO.  But I'm still not sure I could teach David's "skill" to a person who didn't have the inclination to be a learner in the first place. 

But even counseling as David did is easy compared to seeing alternative forms of order in chaos when you have skin (or turf) in the game yourself, the stakes are high, and somebody seems destined to lose.  

Which is why I presume all forensic dichotomies, particularly those in which gods are on one side and demons the other, come with a presumption of falsity.

[Cross-posted at Legal Profession Blog.]

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Thanks, Jeff, for this very thoughtful post. A lot of what has been lost in our discussions of the crisis facing legal education today is the distinction between what is and what ought to be. Many people take the is and stop there to say "get rid of it" and punish the demons instead of taking a real look at what ought to be. And the turf battles get conflated. It's easy to make one turf battle look like another, a battle between the law school and university, for example, and make it look like a turf battle between faculty and students, which also might be lurking in the mix.

Posted by: Marcia | Aug 17, 2012 6:59:35 AM

Jeff, I think everyone who participates in discussions about legal education has to beware of creating false dichotomies. There are some people who criticize the type of teaching law schools do, some people who criticize the type of scholarship that law professors do, and some people who criticize the cost of law school. As one would expect, there are also people who promote two of these criticisms and some who endorse all three. The critics are far from homogeneous.

My strongest criticisms focus on the cost of law school. (I also have some ideas about how we could teach much better than we do--including how we could teach your friend David's skill--but those ideas are largely independent of my financial critique.) I am always puzzled, when I criticize the cost of law school, that other professors start defending their scholarship. I sense a little of that dichotomy here, in your post and Marcia's.

I have no problem with the scholarship law professors do; I think I do a fair amount of it myself. But I am dead certain that we could do the scholarship without charging such high fees for law school. I grew up as the daughter of a Columbia law professor who did quite a lot of scholarship. So did his colleagues in the 60s, 70s, and 80s (not just at Columbia, but at other schools--just as we do today, he stayed in touch with former classmates and co-clerks at other schools).

They did that scholarship with lower salaries, higher teaching loads, no summer research grants, and no computers. Everything was researched in libraries (that often prohibited even faculty from removing the books), written on notecards, typed on typewriters, and retyped by the law review. It took an unbelievable time to produce a book or article then compared to what it takes today.

And yet it got done. With the technologies available to us, we should be able to produce much more (and/or more thoughtful) scholarship than previous generations--even if we had the same salaries, teaching hours, and other support that they had. Technology alone has given scholars a huge dividend. To me, a commitment to scholarship has does not answer the cost question.

I also have to note that I'm not sure law schools today have declining resources compared to twenty-five years ago. Public schools have less government support, but more endowments and alumni giving. Private schools seem to have more of the latter as well. Even the revenues that central universities rake off from law schools may be lower percentage-wise than they were a generation ago; my father used to complain a lot about the law school subsidizing Columbia's other programs.

I don't have final answers on this--it's a question I'm researching! But I think the question of revenues today versus earlier times is a research question rather than a foregone conclusion.

Posted by: Deborah J Merritt | Aug 17, 2012 1:26:53 PM

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