« Sunday Book Blog | Main | "O young academic politician, know thyself!" »

Sunday, February 17, 2008

Have law students gotten more cynical?

This post is based only on anecdotal evidence, but I wonder if other prawfs have felt like students have gotten more cynical, and more inclined toward positivist accounts of law & judging, than before?  I've always thought I was more on the cynical side, and joined that view with a postmodernist understanding of how rhetoric (including that of "reason") can be deployed.   I love Philip Bobbitt's work in Constitutional Interpretation and Constitutional Fate, almost Talmudic in how it sees each issue from every side, and shows how every form of constitutional argumentation can be used for just about any substantive position.  (Here's an interesting exchange on that subject on Concurring Opinions.)

But, again just based on my own experience, it seems like my students are more cynical and positivistic than I ever was.  Recently, when asked if Supreme Court justices were trying to "do the law" on First Amendment issues or justify a substantive result they wanted, not a single member of one of my classes argued for the former.  I've seen this time and again in other contexts -- sometimes I find it hard to persuade students that legal reasoning is anything more than rationale.  Have others had this experience?  Or am I just getting old and crotchety?

re

Posted by Jay Michaelson on February 17, 2008 at 05:04 PM in Teaching Law | Permalink

TrackBack

TrackBack URL for this entry:
https://www.typepad.com/services/trackback/6a00d8341c6a7953ef00e5505516998833

Listed below are links to weblogs that reference Have law students gotten more cynical?:

Comments

It might have something to do with the fact that a great many law students are political science majors, and much of the leading theory in political science on the courts these days focuses on the attitudinal model of decision making.

Posted by: Alan | Feb 21, 2008 9:48:52 AM

There is certainly a difference between thinking that the supreme court has no allegiance to the rule of law other than as political cover for their own ideological goals and approving of it. The former is unavoidable common sense. The latter is depressing.

I subscribe to the Vincent Bugliosi viewpoint.

Posted by: Colin | Feb 20, 2008 4:16:14 PM

I agree that, right or wrong, there's nothing cynical about seeing a particular phenomenon. Cynicism, like idealism, breeds in the gap between is and ought: if the "traditional" con law curriculum teaches a false 'ought,' students seeing a dissonant 'is' might feel--or be called--cynical. Put another way, it's not obvious what "do[ing] the law" even means in the S. Ct. context. I have trouble imagining the argument that it means slavish adherence to doctrine, as it largely does for other courts (per Jason).

Posted by: 2L | Feb 19, 2008 8:21:40 AM

How fitting, MichaelB, that your position entails a cynical belief about the motivations of law students.

Posted by: Paul Gowder | Feb 18, 2008 11:49:36 PM

I suspect that it's at least partly self-interest amongst law students. If an opinion contains a long, complicated discussion of a difficult issue... it's a lot of work to figure it out. If on the other hand, it's just Scalia and Stevens going another round on whether "liberal" or "conservative" is the right answer, no need to bother thinking about the content.

Posted by: MichaelB | Feb 18, 2008 8:18:46 PM

Is that a problem? Seems like it's only a problem if it's false.

This is the second time in as many weeks I've heard someone say "X is cynical about Y, and that's bad," when I believe that cynicism about Y is true. It's hard to know what to make of those arguments when you hold that belief. Is it ever bad for people to hold a true belief? (The previous time was about electoral politics, and was in defense of the Obama line about "hope" and "change," etc.)

I suppose there're some conceivable cases where reality is belief dependent, such that if X stopped being cynical about Y, cynical beliefs about Y would cease to be true. But an argument is owed to establish that either electoral politics or judicial decision making is one of those cases.

Posted by: Paul Gowder | Feb 18, 2008 6:12:58 PM

Many of my students this past quarter not only believed that the Justices were doing nothing more than reasoning from their own moral perspective but that they should do that. They were the opposite of Learned Hand - they didn't seem to mind being ruled by a bevy of Platonic guardians.

Posted by: David S. Cohen | Feb 17, 2008 9:14:54 PM

Maybe I'm just proof that law students are cynical, but my reaction to "sometimes I find it hard to persuade students that legal reasoning is anything more than rationale" was "why are you trying so hard?"

Further: I wonder if a big part of the problem is the heavy study of Supreme Court decisions, to the exclusion of lower courts. Judge Harry Edwards, when he argues that judges aren't just making political decisions, takes care to exclude the Supreme Court from this determination: they're special in his eyes, and he's probably right. Decisions from the Courts of Appeals strike me, even in hard cases, as much more honestly trying to reason from existing precedent to come to the "right" answer in the case before them.

Posted by: Jason | Feb 17, 2008 6:11:10 PM

I wouldn't be surprised if students--and everybody else--was more cynical. As David Strauss remarked seven years ago, "this is the Bush v. Gore generation of law students."

Posted by: TJ | Feb 17, 2008 5:52:32 PM

I don't know whether students have become more cynical or not but I'm curious why you equate cynicism with positivism. (I'm also unsure in what sense you mean positivism here- I'm going to assume you mean legal positivism and not logical positivism.) Why should positivism be thought of as cynical at all? None of the major theorists of positivism (Hart, Kelsen, Raz, Colman, etc.) seem especially cynical about the law to my mind. If I wanted a cynical view it would probably be realism of some sort (a view that probably depends on positivism in some way, as Brian Leiter has shown, but that certainly isn't co-extensive with or reducible to positivism.) I guess it's tangential to your question but I'm curious about what you see here.

Posted by: Matt | Feb 17, 2008 5:32:13 PM

The comments to this entry are closed.