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Tuesday, July 10, 2007

Piled Higher and Deeper

You might remember this old saw (which plays on the description of a Masters Degree as "more sh-t").  There is I think some help here on what one of the commentators to my earlier post noted, i.e., that teaching and scholarship in any  field requires mechanisms to distance the teacher/scholar from the matrix like grip of practice "reality" in that field, and the tools to turn those insights into researchable claims.  Whether its sociology, economics, political science, or turtles all the way down, there is something about piling it higher and deeper that helps in the distancing (and in the tool kit assembling as well).  As Michael Heise would remind us, the PhD is just a proxy for that distancing.  I would argue that the underlying dynamic arises from the fact that graduate PhD programs thrive (or not) on the existence of a strong culture of mentoring and individualized supervision that helps assure that those piles aren't in the end composed of sh-t.  In a subsequent post I will try to argue that law schools lack that culture now and should develop internal Phd programs like JSP as a way to grow it.

Of course mentoring and supervision is not all you need to produce a PhD.  As I tell JSP students, the dissertation is like the death zone on Everest.  We Sherpas don't go there (at least not for you, we go there on our own).  If you get in trouble we'll try to bring some hot tea and sharper ice axes up to you; but if you go there, in some fundamental way, you go alone.

Why is this important to law school teaching, and worth paying the big bucks for (although I'm not sure PhDs can be blamed for inflating law school tuition as much as demand side dynamics)?  It all goes back to our old friend the indeterminacy problem.  If you think that in the end the work of law is a process of fitting complex but ultimately fully determined factual situations, with complex but ultimately fully determinable rules; if law is like a really hard jigsaw puzzle (a ten thousand piece puzzle of the Beatles White Album), then old lawyers should beat young PhD/JD's hands down as the best law teachers.

I think that lawyers get paid for something a bit different then puzzle solving, call it  for now, part puzzle solving and part cultural performance art;  in this model, the lawyer draws on a palette  of truth shaping  knowledges available in the particular historical society to make the puzzle pieces determined in a way that fits them together.  From that perspective at least, its clear that law school  ought to provide something more than courses in careful cataloging of puzzle pieces. 

In a more homogeneous and hierarchical society, lawyers could probably get most  of this cultural skill from their own class backgrounds, and have the rest imparted by their employers.  In a multicultural, multi-hierarchy society  like ours at this point in history, where the credible knowledge shaping discourses run a wide gamut from Economics, to Feminism to Christianity (just to name three), nobody can expect to come from their family background with the skills to successfully work those discourses, nor to be trained in that by their work colleagues.  A good undergraduate education helps (a lot) but it doesn't help you apply it to law.  If law professors are skilled in both wielding discourses like these to work complex law puzzles, and teaching others how to, than PhD's in fields like Economics, and yes, Cultural Studies, at least when they have been shaped by a sustained and deliberate focus on law, legal institutions, discourses, etc., ought to be a good predictor of that skill (but clearly not the only one).

It should be obvious, if you have followed me up to now, why I think law schools ought to hire people with lots of different kinds of PhDs (and other skill shaping experiences).  In a subsequent post I want to argue that some of these ought to be from interdisciplinary programs like JSP.

Posted by Jonathan Simon on July 10, 2007 at 11:56 AM | Permalink


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As someone who practiced law for quite a few years before moving to the academy, I feel obligated to offer a dissenting view.

Perhaps pursuit of a PhD ultimately generates greater scholarly detachment than the practice of law. I am unwilling to concede the point; to my eye, most of the scholarship I read these days from lawprofs who never practiced, whether they obtained PhDs or otherwise, reflects the impassioned advocacy of a ideological zealot rather than detached scholarship, but many will disagree with that assessment. Even so, surely increased scholarly detachment from the practice of law will produce scholarship of less use to the bench and bar; and there is considerable empirical evidence of this trend. But even if one is not bothered by this trend in the scholarship, what are we to make of the claim that the detached scholar is able to transmit the skills that students will need to practice law?

Professor Simon writes that "lawyers get paid for something a bit different then puzzle solving, call it for now, part puzzle solving and part cultural performance art." As far as I can tell from his bio, Professor Simon has never practiced law, so I am not sure what expertise backs his claim about the nature of a lawyer's marketable skill. My own view is that the chief marketable skill is the ability to manipulate doctrine on behalf of a client. It is far from clear to me that post-graduate but non-law education is likely to prepare an aspiring law professor to transmit that skill.

Larry Rosenthal
Chapman University School of Law

Posted by: Lawrence Rosenthal | Jul 10, 2007 5:42:47 PM

Your comments prompted me to think of other legal educational experiences that might impart that scholarly detachment. In my opinion, the single biggest practical contribution that the Ph.D. graduate experience makes to a student's professional development (other than the accumulation of a knowledge base) is that (ideally) by the time of the dissertation defense the student can separate self from scholarship--learning how not to lose the passion behind an argument, but to recognize and respond to very helpful critiques and to learn effective revision tactics. Optimally, anyone who completes a dissertation will have gone through a rigorous revision process that exposes argumental weaknesses, thus strangling much of the ideological zealotry and absolutism that might otherwise be present. Before I embarked on writing and defending my dissertation, however, I had the pleasure of clerking for a judge who wielded a very eloquent pen and who was a master mentor. There was very much the same individual supervision in my relationship with my judge as in my relationship with my dissertation advisor. In addition, both writing experiences were characterized by similar "night on the mountain" introspective sojourns. This perhaps explains to a degree the value of the clerkship credential.

Posted by: Jody Madeira | Jul 11, 2007 12:53:49 AM

"My own view is that the chief marketable skill is the ability to manipulate doctrine on behalf of a client."

Hmmm, that may definitely be true litigation-oriented areas. But I'll add that for transactional lawyers, more often than not the client wants to know the right answer -- billion dollar acquisitions cannot be planned using just "arguments." Thus, I would say that one marketable skill which law schools should pass along (but which they generally don't seem to) is an ability to actually determine what the law *is*. That is a challenging task in many areas (like tax/bankruptcy/erisa/environmental etc. etc.) but clients still demand opinion letters containing reasoned analyses of the law and which provide a firm *conclusion*. There's definitely more to practice than just making arguments for your client.

Law schools should teach students how to determine what the law *is*, which requires an ability to examine numerous legal texts(e.g. treaties, statutes, constitutions, regulations, agency decisions, cases, congressional committees). It's a shame that that that skill has often been cast aside in favor of inquiries regarding the "larger" nature of the law.

(Larry - I should add that I didn't read your comment as providing a sweeping generalization of all law practice, but instead thought your point was worth elaborating upon.)

Posted by: andy | Jul 11, 2007 6:35:22 AM

But what if the answer to the question of what the law "is" amounts in part to the very stability of certain discourses external to "law" as such? The way Church of England Christianity clearly did for English criminal law through the 19th century at least, for one example. If a lawyer needs to discern the stability of such discourses, at least visibly better than her non-lawyer competitors, it seems to me she would want courses in law schools that did more than stare at cases and isolate "legal" trends.

Posted by: Jonathan Simon | Jul 11, 2007 9:41:08 AM

"the law "is" amounts in part to the very stability of certain discourses external to "law" as such"

Can you expand on that point? I am not saying that "law and..." has no place, and the law often depends on other areas (for example, the Sherman Act demands economic analysis, since it refers to "restraints of trade"). But, I question the extent that "external discourses" have on an actual client problem, save perhaps constitutional law and criminal law. I just can't imagine a discussion with a client going like this:

Client: "Will this merger qualify for tax-free treatment, and will the securities issued in connection with the merger qualify for a registration exemption from the Securities Act"?

Attorney: "The answer to that depends in part to the very stability of certain discourses external to 'law' as such."

And, most of us who prefer that law schools teach law do not dismiss the value of social sciences. Rather, we just prefer that they are taught in the appropriate place. I have no doubt that economics, physics, literature, etc. have made wonderful contributions to the advancement of humanity. But teaching law students about "ex ante" and "ex post" incentives, rather than how to interpret the UCC or draft a contract, is shameful.

Posted by: andy | Jul 11, 2007 10:03:57 AM

Consider one example from trial level decision making in the criminal law context. Lets say I'm a woman who just killed her sleeping abusive husband in say 1979 or so, by the way he just raped me before he went to sleep but its not against the law to do that in my state.

I would hope my lawyer in deciding whether to put on an actual self defense claim (rather than wagering on a mitigation defense like provocation or accepting a plea) would bring a sophisticated understanding of the emerging scientific discourse on battered women's syndrome. Hopefully this understanding would encompass the empirical and theoretical strength of the emerging "expertise" on battered women, but also its relationship to other cultural assumptions about women and their husbands that are probably at work in very different ways in both the case law of the state (should it go to appeal) and in the jury pool.

To take a constitutional law example (see Reva Siegel's work generally on the cultural interaction of constitutional jurisprudence), The Chair of the JT Chiefs, Peter Pace, essentially got fired (or not rehired) because of his public statement that homosexuality was immoral. When Chief Justice Burger hinged much of his reasoning in Bowers on the same statement of faith, he more or less got away with it (although his reputation has subsequently suffered greatly since).

Consider the successful defense of the partial birth abortion ban that focused on the protection of the mother, rather then on traditional police power morality or protection of fetus arguments.

Good trial and appellate lawyers, from my reading of their work and results (true I've never been one), try to work the interplay between legal doctrine and these changing cultural values. I would guess their are important analogies in transactional law (although I know far less about it). I think courses in criminal law or constitutional law that integrate analysis of how legally salient cultural knowledge is changing into the study of case law, legislative processes, and the administration of justice, would be just as valuable, and reach many more law students, than specialty seminars in "law and" topics.

Posted by: Jonathan Simon | Jul 11, 2007 11:57:03 AM

I do not believe that law is an autonomous discipline. I fully agree that aspiring lawyers should know about other disciplines. Indeed, I had thought that this was the justification for requiring an undergraduate degree as a prerequisite to law school. But the practice of law requites intensely practical judgments -- especially because of the indeterminacy of the law. What a client will most want (and need) if considering going to trial on a battered woman defense or taking a plea bargain, for example, is an accurate assessment of the likelihood that the defense will prevail. The ability to exercise this kind of practical judgment -- coupled with the ability to present the defense in the most persuasive way -- is what produces success in the practice of law. That is what I meant, in my prior post, by the ability to manipulate doctrine on behalf of a client. That ability, in turn, requires experience of the world, as Holmes tried to teach us. Cloistering oneself in a PhD program is not likely to produce an ability to transmit these kinds of practical skills.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Jul 11, 2007 1:44:04 PM

Well, you are all kind of wrong, and all kind of right. Andy is right in saying that much of law practice is NOT manipulating doctrine, but I can tell you categorically that transactional practice is NOT what saying the "is," or issuing "opinions" with conclusions (at least if one has engaged in any extended negotiation). Some of the practice is manipulating doctrine, or at least engaging in traditional analogical legal reasoning about why a particular result should occur when arguing to a judge in an unsettled area in which the judge has no particular predisposition. And I'm never quite sure how I would "teach" somebody to draft a contract, as though giving birth to it. The creation of a contract, unless you are writing boilerplate in a back room somewhere, is an iterative process that combines listening, interpreting, predicting, negotiating, and counseling.

You can practice as a one-trick pony, and many lawyers do: doctrine manipulator, jury swayer, boilerplate drafter. Larry is right in believing practical reasoning is critical (I concur as long time practitioner); Jonathan is right in believing a theoretical orientation contributes (I concur as long time philosopher); both are wrong in finding a false dichotomy.

Posted by: Jeff Lipshaw | Jul 11, 2007 4:57:55 PM

"Andy is right in saying that much of law practice is NOT manipulating doctrine, but I can tell you categorically that transactional practice is NOT what saying the "is," or issuing "opinions" with conclusions (at least if one has engaged in any extended negotiation)."


Yes, I should qualify that I was thinking about transactions relating to corporate tax planning. I do think that much of that practice is about issuing opinions (or "opinions," if for some reason one prefers to put that word in quotations marks).

As far as matters with which I do not have personal experience (e.g. engaging in extended negotiations), I admit I am unqualified to speak. I would, however, gladly add that negotiating skills are something law schools should teach.

And, the more general objection, I hasten to add, is not whether PhD's have a place or not. Rather, it's whether law schools should actively seek PhD's and make them a larger part of the faculty (and "law and..." a larger part of their coursework). I don't find "Critical Geogender Ontology" itself troubling, but I do find the academy's increased attention on that and similar areas of study (and decreased attention on the law) distressing. I hardly think I am unjustified in making that criticism, even if I am not qualified to discuss the nuances of practicing law with the same authority that you are.

Posted by: andy | Jul 11, 2007 10:34:32 PM

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