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Monday, October 17, 2005

College Debate and the Legal Academy

Paul's post about brilliant teaching candidates reminded me of a question I've been kicking around for a while: what role does debate play in shaping the legal academy?  I've heard the subject brought up once or twice, but I haven't heard too many folks talk about it.  I wonder how many legal academics participated in some form of extracurricular debate in high school or college.  It seems like a natural activity for those interested in the discussion of ideas, particularly political and legal ones.

In college there are two debate camps: policy and parliamentary.  I didn't do policy, but I watched it a few times, and I have to say I found it fascinating.  Policy debaters talk in a mesmerizing but hard-to-follow monologue in which the aim is to get out as much information as quickly as possible.  So they talk really really fast.  They support their points with "evidence" culled from all sorts of sources.  In my day each piece of evidence had its own index card, although I imagine technology has rendered these obsolete.  The topics are wonky issues of national policy: for example, this year's National Debate Tournament topic is "Resolved: The United States Federal Government should substantially increase diplomatic and economic pressure on the People's Republic of China in one or more of the following areas: trade, human rights, weapons nonproliferation, Taiwan."  Two-person teams then develop more narrowly-tailored propositions from this topic and debate their proposals with other teams.  Success is often dependent on the quality of the team's research -- not only on its own narrower topic but also for counter-evidence against other possible topics.

Parliamentary debate, on the other hand, has no national topic.  At any particular tournament, debaters are given "resolutions" each round which are often nothing more than hoary aphorisms.  The government team (again, two person teams) has almost complete freedom to propose whatever they want.  However, proposing teams are penalized if their topic is boring, confusing, or too unfair for the other side to debate.  Even though the government team seems to have a huge advantage, it is generally easier to be the opposition, because it is easier to find some flaw in almost any proposal.  (And if there isn't a flaw, then it's a truism!)  Parliamentary debaters are not encouraged to research particular topics in advance; instead, success is based on the team's ability to think logically and speak persuasively.  But a general, jack-of-all-trades knowledge is certainly helpful, and cleverness is quite respected.  (The American Parliamentary Debate Association site is here.)

As a law professor, I've often thought that policy debate is natural preparation for writing law review articles: both require intense research on a fairly narrow topic, and both place a premium on documentation of that research -- either through notecards or footnotes.  Parliamentary debate, on the other hand, primes one to think quickly on one's feet, and to speak persuasively -- both skills that come in handy at a job talk.  However, perhaps parliamentary debate encourages too much of the glibness that Paul discusses.  And policy debate seems to place too much reverence on evidentiary documentation -- so much so that it can lead to absurd results.  Both kinds of debate encourage combativeness and a tendency to seek the flaw in any argument.  While worthy skills, in excess they may promote too much of an adversarial atmosphere and combat for combat's sake.  I'd be interested to hear whether these thoughts resonate with folks and, if so, what that means for legal academia.

Posted by Matt Bodie on October 17, 2005 at 12:04 AM in Life of Law Schools | Permalink

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Comments

I'd also like to speak up for parliamentary debate. I competed on the APDA circuit for four years in college and found it a tremendously rewarding experience. It greatly strengthens one's critical thinking skills under enormous time pressure. For example, the leader of the opposition team would be required to listen to an eight-minute speech on a subject he or she may have never heard of before, and then immediately respond with an eight-minute speech of his or her own. If you've never done this, let me assure you that doing it well is extremely hard. A good response requires a broad range knowledge as well the ability to focus like a laser on the core structural flaws in an argument. These are skills that I have to draw on every day in the classroom when engaging students in discussion. They are also the basic critical thinking skills that are useful in writing law review articles, which in this respect shouldn't really differ from the thinking engaged in by advocates. If I haven't thought of and carefully considered the best possible arguments against assertions made in my law review articles, I simply am not doing my job properly.

Posted by: Carlton Larson | Oct 17, 2005 2:24:20 PM

Matt is certainly right that debaters become academics, but not only legal academics. I did mostly NDT in college, but also some CEDA (in the pre-merger days) and some APDA toward the end of college years. Austan Goolsbee, who debated APDA at Yale, is now a Chicago econ professor in the Business School. Michael Tomz, who debated NDT at Georgetown, is now a Political Science professor at Stanford. There are a raft of NDT debaters who teach communications, including Kevin Kuswa from Georgetown, who is at Richmond, although communications department spots are basically a home for those who direct the college NDT debate programs. There are, of course, also former NDT debaters in law schools other than those already mentioned, including Shaun Martin from Dartmouth who is at San Diego.

My sense is that the best NDT debaters could do the more glib job talk style when necessary (e.g., they were before District VII judges, who placed a premium on style and "telling a story"), the best APDA debaters could be more serious and less comedy routine-oriented when they had to (e.g., Princeton tournaments), and the best CEDA debaters could be more structured and outcome focused when they were in front of NDT judges (as seen during the transition days).

NDT, however, was better preparation for the type of skills that will get you a job and secure you tenure(research, writing, structuring an argument). Not only did NDT debaters get training during the year from professional coaches and judges, but competitors typically went to summer debate institutes when they were in high school (and sometimes college) to learn how to research and to learn about the topics. APDA was largely confined to the top east coast schools where very bright people go and are likely to produce some academics. It may have made some people comfortable speaking in front of an audience, but it did not impart much in the way of other skills that the competitors didn't already have. There were no coaches, little training, and the judges were students at the host school who were often hung over from the party the night before. Doesn't mean it wasn't a fun and valuable activity, but it gave the advantage to those who were predisposed to be good at it. CEDA, unlike APDA and, to some extent, NDT, was largely confined to schools unlikely to usually serve as a breeding ground for academics (Cornell is perhaps one exception). Thus, even if taught a nice mix of skills, there aren't as many former CEDA folks in academics for a reason. Of course, the changes in the last decade may have blurred some of the distinctions between CEDA and NDT.

Posted by: Steve | Oct 17, 2005 1:18:28 PM

Matt's point about sophistry tracks my instinct that debate skills are more akin to practice than academic work. To expand on my earlier point, policy debate requires disingenuousness on two levels. First, you're required to express an opinion on a predetermined topic rather than one of your own choosing. I always felt a bit foolish when debating because it often required me to take a strong position on something I didn't really care (or know anything) about. Similarly, law practice typically requires a similar profession of belief in causes not of one's choosing (because they're determined by clients). There are exceptions of course--pro bono work is usually one.

Second, it's often essential in policy debate to advocate (and advocate well) arguments you disagree with. It's not at all uncommon to argue your affirmative case in one round and then take the opposite position on the same subject matter in a following round. This skill is also critical in law practice--lawyers adopt their clients' interests, which often entails making arguments you think are unconvincing or even morally objectionable.

I'm not sure what the longstanding objection of philosophers to sophistry is, but I suspect that it arises out of this disingenuousness. Many arguments succeed in debate (and, to a lesser extent, law practice) not because they're true or right, but because they're clever or tricky. I'm reminded of a topicality debate on the "prisons and jails" topic where an affirmative team whose case reduced overcrowding only in prisons prevailed because they successfully defended the position (based on a definition in CJS) that "and" means "or".

Posted by: Dave | Oct 17, 2005 11:35:21 AM

I've always said that I learned from (parliamentary) debating most of the skills I use in lawyering, and in academic writing. Certainly I learned far more there than I learned from my Harvard instructors, many of whom had at best an infirm grasp of argumentative writing, and an even looser handle on how to teach it. Debating taught me how to structure an argument and how to craft it for maximum persuasiveness. But, probably more importantly, it taught me how to think analytically about a problem -- to recognize how each piece of a claim related to the others, spot the key assumptions, and consider whether those assumptions were valid or no.

Most critically, I think any form of debate, if done well, promotes the central lawyerly skill, which we parliamentary debaters called "clash." It's the capacity to present arguments that recognize the merit of what the other side said, and respond in ways that either meet those merits head on or show why they fail to resolve the real dispute. That's a skill that is very easy to take for granted until you see its absence (say, in lots of briefs written by relatively unskilled craftspersons).

So if there is a "glibness" or "reverence" downside to either discipline, I think it is well worth it. So send your kids to debate camp! And, by the way, the best parliamentary debaters usually can distinguish the merely glib from the genuinely thoughtful (which, alas, is not to say that all debate judges can...)

Finally, I think it is worth mentioning some words of wisdom from Mike Dorf, a national champion parliamentary debater in his day. I told him that his willingness to talk about his debate experiences was a great relief to those of us who feared that revisiting our debate glory was, in a word, lame. Sayeth Dorf: "Brian, just because I do it does not mean it is not lame."

Posted by: BDG | Oct 17, 2005 11:23:44 AM

I knew that Scott Moss was a debater because during his (excellent) presentation at MLEA this weekend, he spun his pen around his fingers the whole time. Only debaters know how to do that. I don't know why. Anyway, I think that the debate club -- academic link is similar to the moot court -- appellate lawyer link. Yes, the skills you use are the same, but the setting and scoring places more emphasis on style v. substance. In LD debates, debaters can basically say whatever they want for evidence, whether they are mistaken or lying, and judges have no time to factcheck. So, confidence wins the day. In many moot court rounds, getting facts wrong doesn't hurt nearly as much as stammering, silences, and getting frustrated.

Posted by: Christine Hurt | Oct 17, 2005 10:54:04 AM

I also want to chime in quick, because I think that Parli is getting unfairly dissed here. While Matt may be correct about APDA, there is another, larger, parliamentary debate community that covers all but the East Coast, the NPDA. They tend to have much more focused topics (although some hoary aphorisms do crop up) and it encourages research. I would recommend both www.parlidebate.org (the NPDA's website) and npte.debateaddict.com (the home of the National Parliamentary Tournament of Excellence, and NDT-type parli tournament) for further reading.

I myself did both policy and parli and have found all the skills useful in my teaching career (although I've yet to make the jump to law teaching). Being able to think quickly on your feet has been very useful, as were the research skills I learned over in policy. But anyone doing NPDA-style parli without doing research is just plain doing it wrong.

Posted by: Alan | Oct 17, 2005 10:45:21 AM

I can't say anything about the legal accademy but my strong impression is that in philosophy debat isn't thought very highly of, largely since it's sophistical- the arguments don't matter nearly as much as the rhetorical approach, and that's looked down on by philosophers, and has been since Socrates. I have quite a bit of sympathy with this view, though the defense that it can help teach research skills might make me somewhat less skeptical. This sort of rhetorical sill might be desirable for practicing lawyers but it's not something I'd value very highly in researchers or teachers.

Posted by: Matt | Oct 17, 2005 10:41:17 AM

It's funny this post should appear today. Just this weekend I started a blog (legaldebate.blogspot.com) to encourage interaction between high school policy debaters and law professors who are former debaters. There are plenty, including Larry Tribe, Erwin Chimerinski, Rebecca Tushnet, Neal Katyal, Ken Casebeer, Don Dripps, Ernie Young, Frank Cross, Ryan Goodman, and plenty more that I'm forgetting. There are also many lecturers/folks coming on the market, including myself, Lesley Wexler, Nita Farahany, and more.

I think policy debate prepares participants for a career in legal academia. Debaters begin reading law review articles starting as freshmen in high school. We have a huge head start into the literature on a wide variety of arguments, including critical race theory, critical legal studies, and feminist jurisprudence. We become accustomed to thinking like academics -- reading hundreds of articles and books in the process of shaping an articulate argument. And many of us view a stack of research with glee rather than dread. It naturally follows that many of us will end up as law prawfs.

Posted by: Lindsay Harrison | Oct 17, 2005 10:23:33 AM

I am not a law professor, but am currently on the market. I also was a policy debater for the University of Iowa and, subsequent to that, a coach for Iowa and Dartmouth College. I wanted to add one wrinkle to your description of policy debate. Over the last decade, the activity has been undergoing an enormous amount of change. The emphasis on technical ability (read: speed) has been lessened and arguments have taken a distinctively critical turn. While many teams still emphasize traditional policy discussion with strong evidentiary support, arguments from Lacan, Zizek, marxists, critical race theorists, Said, and other radical scholars are also very prominent.

I'm not sure if this transition supports or undermines your larger point, but I think it has given modern debaters a greater breadth of knowledge than their predecessors. Whether that translates to their ability to be legal scholars is an open question.

Posted by: Corey Rayburn | Oct 17, 2005 9:15:54 AM

Guilty as charged--I did high school and college policy debate, and while I had a love-hate relationship with the activity (as many of its participants do), I found it to be fantastic training for school, law, and life in general.

One thing that interests me about Matt's post is that I always assumed that debaters (and here I'm talking about policy debaters--no opinion about parlie) would be better lawyers than professors. The difference is that debate is about winning rather than truth-seeking; you're given a side to represent and required to come up with the winning argument, whether or not you personally agree with (or like it).

Academia is different in this respect; when you write a paper you're doing it because you think your core idea is right. There are, as Matt pointed out, a host of other reasons that debate would be good training for being a law prof, but I think these apply to law practice as well. Thus I think debaters--at least those who are attracted to the adversarial nature of the activity--would be more naturally inclined to being lawyers than to being law profs.

Posted by: Dave | Oct 17, 2005 9:10:57 AM

Funny you should mention this -- I just was at a conference where I reacquainted myself with a high school friend. He ran my high school's parliamentary debate club and student newspaper the year after I did those same things -- and we're both law profs now. Of course, I get many extra geek points because I also was president of the bridge club and "mathletes," the math club....

Posted by: Scott Moss | Oct 17, 2005 8:51:15 AM

Poor Isaac--he's spent too much time around Sunny Xu. Though she's still Policy at heart. :-)

But I'm wandered all over the debate spectrum in my time. I was a Congress and LD debater in High School (but in LD my judges always asked if I did Policy), and in college I'm trying Parly while trying to start up an LD program (we don't have time for policy). I hope debate is useful for law teaching, since it's what sparked my desire to teach in the first place! But I think you're right overall--debate strikes me as almost tailor made to produce future academics (indeed, Policy debate seems to prepare one for little else).

Posted by: David Schraub | Oct 17, 2005 2:17:41 AM

Those Parli. debaters are insane sophists. But the best are whip-smart -- in that they leap to attack. Though they are very obnoxious in class.

Posted by: Isaac | Oct 17, 2005 1:55:21 AM

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