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Friday, January 25, 2008

On the Philip Morris Comment and Talking "Out of School"

Dan asks whether anything could be said in defense of the student comment on the Philip Morris case, or whether anyone can at least provide a more even-handed critique of it than some of the pile-on comments over at the VC.  It must be Friday, because I've been thinking about this on and off all afternoon.  Let me say something sort of in its defense.  I'll set aside for now whether I agree or disagree with the author's substantive views and very evident politics; I'll also set aside the possibility that the comment invited a pile-on simply because it is of unusually poor quality.  In other words, let me offer the sort of ambivalent defense of the piece that leaves open the possibility that the comment is both substantively wrong and poorly written.  With friends like these. . . .

Like most constitutional law teachers, I view my job in the classroom substantially as being one of teaching students how to talk about constitutional law in a language that will be comprehensible, meaningful, and potentially persuasive to the relevant official interpretive community.  Whether I happen to be a textualist, an originalist, an advocate of living constitutionalism, etc. is not important; what matters is that I convey to my students a sense of how to employ and combine a variety of arguments that are at least legible and audible to the interpretive community.  The outcomes may change from term to term; but the language and forms of argument used to reach them are (fairly) consistent.  Students are thus best served not by memorizing particular case outcomes, but by learning the conventional modalities of constitutional argument, to use the term that's been lurking in the background.  Whether or not "we are all ___ now" as constitutional law scholars, in the classroom we are all Philip Bobbitt now. 

As valuable and liberating as this "language" can be, it also carries the risk of all language: that it will constrain, obscure, or deaden one's understanding of the world.  This is an age-old complaint about legal education in general, of course, and it certainly applies to constitutional law.  To slightly repurpose the famous words of Arthur Allen Leff, one can so absorb the conventional modalities of constitutional argument that one comes to neglect brute moral realities: that "napalming babies is bad," that "starving the poor is wicked," that "there is in the world such a thing as evil."  There is something to be said, I think, for rejecting the constraints of our language every now and then, or at least for learning its limits: for remembering just how small is the stage on which lawyers strut when compared to human misery, God, or, well, you name it. A barbaric yawp, or a cry of "wake up," is good for us every now and then, I think. 

We might think of the Philip Morris comment more charitably in that light.  The case comments in the HLR Supreme Court issue follow a lock-step convention that can come to numb one's senses and sensibilities.  ("[X] is an issue that has long divided the legal community.  Last Term, the Supreme Court finally considered this issue, and concluded that [Y].  Although the Court commendably said [Z], its failure to say [A] will have unfortunate consequences.  Here's what I would do once the President has the good sense to confirm me to the Court.")  There's something refreshing about seeing the Philip Morris comment in these surroundings; it's like setting loose Little Richard in the middle of a cotillion or bringing a mutt to a dog show -- or performing "Super Freak" at a child beauty pageant.

I hope that will serve as a more full-throated defense, Dan.  That having been said, I must add that my "defense" is, in this instance, a little hypothetical and half-hearted.  I also think the comment is poor on substance and style, politically jejune, tendentious on the facts (and law), equally predictable and conventional in its own way, and all the other criticisms that everyone at VC has already heaped upon it and that Dan is too polite to rehearse in his own post.  And it seems to me to be importantly misguided even if one agrees with its politics.  Even if one shares the author's view that the Constitution fundamentally serves to mask and/or advance "hierarchy and capitalism" and that the Court is insensitive to certain fundamental harms -- in fact, especially if one agrees with these propositions -- surely it is futile to obsess about the Constitution's rights provisions and how the Court interprets them, to believe that they are at the heart of the problem and will be at the heart of the solution, when one should be thinking about more fundamental structural problems and extrajudicial solutions.  So I give the comment partial points for its ill-mannered refusal to speak in the same language as its fellows in the same issue, but take them back for its failure to offer a substitute language that is any more successful and any less conventional in its own way.

Posted by Paul Horwitz on January 25, 2008 at 05:21 PM in Constitutional thoughts | Permalink

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Comments

Appologies for the typos and grammatical lapses in that last comment. My editing kung fu wears off after 1am.

I have to say, this is my new favorite thing I've ever read in HLR, even if the rambling is not on purpose.

Posted by: Corey | Jan 31, 2008 5:10:00 AM

Well as a former articles editor and publisher of polemical writing, I have to say I love to see this sort of thing. My proudest moment in law school was looking at the last page of our volume and seeing my closing block quote of Dostoevsky--on loving others and elevating happiness and empathy over rationality. It wasn't Harvard so no one blogged on it but it is great to know I can always run a Lexis search and find some radical populism with my name all over it. (82 Ind. L.J. 1125).

One gets on review, reads everything from 120 page tax policy reports to articles titles "F---," and somehow, tracking the standard case note format, or following the limitations of Volokh's "What is a Note?" article just feels like a silly exercise. One finds a critical edition of "Legal Education and the Reproduction of Hierarchy" in the library and starts to have hope, but then the pile of submissions convinces you that CLS is dead and the only people who could revive the spirit are busy at each other's throats. For me, I figured even if I reached the top of my class, no one would give a prof job to someone from my school, so my note ws my one shot to rage against the dying of the light.

I don't know the motivations of this student, but I have to assume that they are competent, and so I guess I hope this piece is an earnest attempt to reject all pretense at formal convention and appeal to our better natures.

Posted by: Corey | Jan 31, 2008 5:05:42 AM

You know, having gone back and reread Paul's post after writing my comment (which was largely a response to Dan and the VC folks), I might just as well have said "I agree with Paul."

Posted by: Andrew Siegel | Jan 28, 2008 11:51:13 AM

Come on--aren't we piling a little heavily on the student? Sure, part of the point of being on Law Review is to learn what legal scholarship sounds like and how to communicate in its (stiffled) lingua franca. Granted he/she flunks that test. But, so what? The history of the rights provisions of the Constitution are certainly susceptible to the critique that they have been utilized more often to entrench inequality than to fight it. I'm sure that argument is raised as a meta-challenge in most constitutional law classes and results in a productive discussion. What's the big deal if a student wants to use his Law Review comment to ruffle some feathers and spark a similar scholarly conversation?

Posted by: Andrew Siegel | Jan 28, 2008 11:39:37 AM

Nothing to disagree with in this post... Sure, law students should be wary of the way that a constant diet of legalese can desensitize them to the real world.

But really, so what? World poverty is a real problem and one that should probably be a higher priority for some people than it is, but I can think of few worse ways to make that argument than in the form of a juvenile, self-righteous rant commenting on a case that has very little to do with world poverty.

Posted by: KRS | Jan 28, 2008 11:05:00 AM

Leff's essay is about as "beautiful" as legal scholarship can get. This student's essay in some ways actually damages progressive ideas (although the author's politics are, I'm sure, further left than mine) by opening them to derision as "jejune" and bereft of intellectual weight.

Btw, in your haste you implied that the President acts singlehandedly in placing lawyers on the Court.

Posted by: Calvin John TerBeek | Jan 27, 2008 3:54:16 PM

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