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On bullshit and law schools

[ 73 ] December 13, 2011 |

25 years ago a Princeton philosophy professor named Harry Frankfurt published an interesting essay called “On Bullshit.” The essay distinguished between the liar and the bullshitter as follows: The liar believes that A is the case, but he wants to convince you both that Z is the case, and that he believes Z is the case. The bullshitter, by contrast, wants to convince you that Z is the case and that he believes Z is the case, but he is indifferent as to whether Z is the case or not:

The fact about himself that the liar hides is that he is attempting to lead us away from a correct apprehension of reality; we are not to know that he wants us to believe something he supposes to be false. The fact about himself that the bullshitter hides, on the other hand, is that the truth-values of his statements are of no central interest to him; what we are not to understand is that his intention is neither to report the truth nor to conceal it. This does not mean that his speech is anarchically impulsive, but that the motive guiding and controlling it is unconcerned with how the things about which he speaks truly are.

Frankfurt points out that bullshit is endemic to any situation in which people are playing roles in which they are more or less required to fake the possession of authoritative knowledge that they do not in fact possess:

Bullshit is unavoidable whenever circumstances require someone to talk without knowing what he is talking about. Thus the production of bullshit is stimulated whenever a person’s obligations or opportunities to speak about some topic are more excessive than his knowledge of the facts that are relevant to that topic. This discrepancy is common in public life, where people are frequently impelled — whether by their own propensities or by the demands of others — to speak extensively about matters of which they are to some degree ignorant. (Emphasis supplied).

The analytical distinction Frankfurt is drawing between lying and bullshitting seems especially germane to legal academic life in its current form. To put it more bluntly, the contemporary American law school is based on bullshit. How? Let me count –some of — the ways: (In what follows I am going to paint with a broad brush, which is to say I will make generalizations that will be valid to greater and lesser extents in regard to particular individual cases. So before you get to that, please note pointing out general statements aren’t accurate in every individual case in order to dismiss the value of making general statements is itself a classic form of rhetorical bullshit).

(1) Our modal law professor is a man or woman who knows very little about the actual practice of law in any form, given that he or she spent very little time — increasingly, at more elite schools, literally no time — practicing law before entering the legal academy. This fact means that to a significant extent the leaders of our profession (let us call our hypothetical specimen Professor Leader) have to spend much of their time in class bullshitting. This is a natural consequence of the fact that the rhetorical posture of Prof. Leader requires him to represent to his students that is teaching them how to be lawyers. But Prof. Leader knows nothing about being a lawyer. Hence, he must bullshit — he does not lie to his students about how to be a lawyer (doing so would require him to know how to be a lawyer, while attempting to deceive his students regarding the substance of that knowledge); rather, he “talks without knowing what he is talking about.”

(2) The materials that still dominate legal academic pedagogy — appellate court opinions — contain extremely high levels of bullshit. What is the adversary system but a system for producing a situation in which putative authority figures, i.e., judges, are given almost unlimited “opportunities to speak extensively about matters of which they are to some degree ignorant?” I teach a case in my Legislation class — Smith v. Wade — in which what the Supreme Court is supposedly determining is whether in 1871 Congress intended to adopt the common law rule regarding the requisite mental state for the recovery of punitive damages in a tort action. This is a nonsense question on all sorts of levels, including the assumption that there was such a thing as a common law rule on this matter, that Congress knew what it was and intended to apply it to what would become Section 1983, that the Supreme Court can determine the supposed facts of these supposed matters more than a century later, and that doing so is a sensible way to proceed in this case (which involves the question of whether the plaintiff, who as a teenager was gang raped by fellow inmates while held in a juvenile reformatory, should be able to recover the princely sum of five thousand dollars in punitive damages against the state of Missouri).

The majority opinion consists of a bunch of pseudo-historical analysis of dozens of 19th century tort cases, while one dissent consists of an equally bogus critique of the same historical record. But my favorite part of the case is another dissent, in which Justice O’Connor, points out that both the majority and dissent are a bunch of bullshit:

When a significant split in authority existed, it strains credulity to argue that Congress simply assumed that one view, rather than the other, would govern. Particularly in a case like this one, in which those interpreting the common law of 1871 must resort to dictionaries in an attempt to translate the language of the late 19th century into terms that judges of the late 20th century can understand, see ante at 461 U. S. 39-41, n. 8; 461 U. S. 61-64, nn. 3, 4, and in an area in which the courts of the earlier period frequently used inexact and contradictory language, see ante at 461 U. S. 45-47, n. 12, we cannot safely infer anything about congressional intent from the divided contemporaneous judicial opinions. The battle of the string citations can have no winner.

OK, so now what? What sort of “test” shall we deploy in this sort of circumstance? I bet you can guess:

Once it is established that the common law of 1871 provides us with no real guidance on this question, we should turn to the policies underlying § 1983 to determine which rule best accords with those policies. In Fact Concerts, we identified the purposes of § 1983 as preeminently to compensate victims of constitutional violations and to deter further violations. 453 U.S. at 453 U. S. 268. See also Robertson v. Wegmann, 436 U. S. 584, 436 U. S. 590-591 (1978); Carey v. Piphus, supra, at 435 U. S. 254-257, and n. 9. The conceded availability of compensatory damages, particularly when coupled with the availability of attorney’s fees under § 1988, completely fulfills the goal of compensation, leaving only deterrence to be served by awards of punitive damages. We must then confront the close question whether a standard permitting an award of unlimited punitive damages on the basis of recklessness will chill public officials in the performance of their duties more than it will deter violations of the Constitution, and whether the availability of punitive damages for reckless violations of the Constitution in addition to attorney’s fees will create an incentive to bring an ever-increasing flood of § 1983 claims, threatening the ability of the federal courts to handle those that are meritorious.

Yes, you guessed it, it’s time to “balance the interests.” Behold:

Although I cannot concur in JUSTICE REHNQUIST’s wholesale condemnation of awards of punitive damages in any context, or with the suggestion that punitive damages should not be available even for intentional or malicious violations of constitutional rights, I do agree with the discussion in 461 U. S. Since awards of compensatory damages and attorney’s fees already provide significant deterrence, I am persuaded that the policies counseling against awarding punitive damages for the recklessness of public officials outweigh the desirability of any incremental deterrent effect that such awards may have.

What’s missing from this analysis? In a word, everything. JUSTICE O’CONNOR (why are the names and honorifics of these people printed in ALLCAPS in the U.S. Reports anyway? To emphasize their superior ontological status? To elicit shock and awe in the interpreters of these texts? It is a deep and abiding mystery) provides us with no facts, or method, or theory, or really anything whatsoever to bolster her apparently completely ungrounded “policy analysis.” But, under the circumstances — appellate court litigation — how could she?

Again, let us recall Frankfurt’s dictum: Bullshit is unavoidable whenever circumstances require someone to talk without knowing what he is talking about. The “Socratic method” consists largely of people pretending to be lawyers analyzing texts written (well not actually written, but at least signed) by lawyers pretending to be [historians, economists, sociologists, semioticians, moral philosophers, fill-in-the-blank]. In other words these are almost ideally synergistic conditions for the production of bullshit masquerading as something else (a redundancy, as bullshit is by definition something pretending to be something it isn’t).

(3) Legal scholarship is produced under pseudo-academic conditions that form a fertile breeding ground for (very heavily footnoted) bullshit. Consider how legal academic publication almost always takes place. People who generally possess no formal academic training beyond what they received in law school (that is, none) write “law review articles.” In the vast majority of cases, these articles consist of “doctrinal analysis,” i.e., treating appellate court opinions (see (2) supra) as texts that deserve to be taken seriously on their own terms. We are already, in other words, knee-deep in bullshit.

But it gets worse. Who is doing the evaluating of the supposed cogency of this analysis? Law students, that’s who. So people who, incredibly enough, are even more ignorant than law professors about the actual legal system are charged with undertaking the equivalent of academic peer review for the purposes of legal scholarship. That contemporary research universities tolerate this charade can best be explained by examining the average law school’s balance sheet, which will reveal that a nice chunk of the revenue generated by the school’s operations is mulcted by central administrators in an example of what medieval Vikings called “raiding,” but contemporary academic bureaucrats refer to as “cross-subsidization.”

Now it’s true that, at our more exalted law schools, larger and larger percentages of the faculty are people with advanced degrees in fields other than law (a solid third of the tenure-track faculty at top ten schools now hold Ph.Ds in this or that.). While this may improve the quality and broaden the subject matter of the legal scholarship produced by these faculties, it only exacerbates both the sheer absurdity of constructive or literal (there are now several dozen law professors at top ten schools who don’t hold law degrees) non-lawyers supposedly teaching people how to be lawyers, and especially of a publication system in which law students are supposed to be the academic gatekeepers evaluating the latest application of behavioral economics or sociological regression analysis or literary theory to the cases and controversies they study in their law school classes.

(4) Given all the foregoing, it perhaps shouldn’t surprise us that the attitude of legal academia toward the supposed employment and salary data that law schools publish has been a systematic indifference to the continual broadcast of enormous quantities of complete bullshit, in the most precise technical sense of the term. The employment numbers are, to speak precisely, bullshit, in that nobody (or more exactly nobody in a position to do something about this) really knows the extent to which they’re false, because nobody in that position wants to know. The “96% employed with an average salary of $145,000″ claims aren’t lies, exactly, because in order to lie one must, somewhat paradoxically, care about the truth. Those claims aren’t lies: they’re bullshit, because the people who make those claims don’t know what the real numbers are and don’t care. Frankfurt points out that this attitude may ultimately be more dangerous to the pursuit of truth than a simple willingness to lie:

Both in lying and in telling the truth people are guided by their beliefs concerning the way things are. These guide them as they endeavor either to describe the world correctly or to describe it deceitfully. For this reason,telling lies does not tend to unfit a person for telling the truth in the same way that bullshitting tends to. Through excessive indulgence in the latter activity, which involves making assertions without paying attention to anything except what it suits one to say, a person’s normal habit of attending to the ways things are may become attenuated or lost. Someone who lies and someone who tells the truth are playing on opposite sides, so to speak, in the same game. Each responds to the facts as he understands them, although the response of the one is guided by the authority of the truth, while the response of the other defies that authority and refuses to meet its demands. The bullshitter ignores these demands altogether. He does not reject the authority of the truth,as the liar does, and oppose himself to it. He pays no attention to it at all. By virtue of this, bullshit is a greater enemy of the truth than lies are.*

*It’s worth noting that the central fact about himself that bullshitter must hide, perhaps even to himself (the latter state would be an example of meta-bullshit) — that “the truth-values of his statements are of no central interest to him” — captures the mental state in which, as a practical matter, many attorneys are often required to place themselves. For example many litigators could hardly do their jobs if they were much concerned with “the truth-values of their [legal arguments].” More generally, how many lawyers and especially judges find that professional necessity requires them to “speak extensively about matters of which they are to some degree ignorant” on a regular basis? These facts raise questions about the requirements and limitations of role morality, and perhaps even more interesting questions about the extent to which such facts affect the prevalence of bullshit in the legal educational system. Of course there’s no real intellectual or practical reason why legal academics need replicate the mental states of advocates or judges in themselves, yet the fact remains that the standard model of legal education in America pushes law professors to talk and think like lawyers with imaginary clients and judges deciding imaginary cases. But those are questions for another day.

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  1. LKS says:

    And all these years, I thought the definition of bullshit included deliberate lying. I guess we’ll have to change the name of that eponymous kitchen table poker variant.

    I’m so glad we have lawyers to straighten the rest of us out on these important semantical distinctions.

    • rea says:

      Harry Frankfurt wasn’t a lawyer.

    • Lindsay Beyerstein says:

      Frankfurt’s definition is useful because there’s so much more to bullshit than lying. Even if you want to stick to the traditional definition of lying as a subspecies of bullshit, it’s clear that lying only a tiny fraction of the overall bullshit burden in society.

      You can call someone a bullshitter without implying that they’re a liar, or even that what they said is false. What they said might be meaningless or trivially true or even God’s honest relevant truth repeated by someone who neither knows nor cares whether what they’re saying is accurate.

      • LKS says:

        I don’t dispute that one type of bullshitting is what Frankfurt says. What I dispute is his arbitrary exclusion of deliberate lying from his definition.

        • The Shaggy DA says:

          I’m calling bullshit on this comment.

        • brent says:

          But its not arbitrary. He is making a very specific and easy to understand distinction between two types of statements. He is using two different words to describe those statements on the way to his larger point about the why the distinction is important. You can, of course, disagree with his choice of terms, although I have no idea why you think that disagreement is especially important or germane, but they are anything but arbitrary. His whole point is that there are different types of dishonesty. His choice of words is entirely necessary to make that point whether you think he is correct or not.

          • Vardibidian says:

            Actually, the claim in the article is that his description of bullshitting, which is essentially indifference to truth, is the one in common use. He gives several examples, almost all of them terrible.

            Having said that, the article remains interesting and useful because of the distinction that can be made, and the terms can be useful for differentiating that difference, despite it not being a difference in how the words are or ever have been used in the English language.

  2. merl says:

    Every sea story begins with “this is no bullshit”. That is the tipoff that you’re about to hear pure bullshit.

  3. actor212 says:

    I was half expecting some reference to Stanley Fish’s column in the NYTimes today.

  4. norbizness says:

    That’s funny; I heard that a bullshitter wants to convince you that Z might be the case and that person Q believes Z is the case, but he is increasingly angry with you as the argument goes on as to whether Z is the case or not.

    I mean, I don’t care or anything, but I’m pretty sure that’s the case.

  5. rea says:

    I’m curious–what methodology would you have used to resolve the issue O’Connor and the rest of the Court flubbed? Bearing in mind that the issue has to be resolved–it’s not permissible to say that the meaning of the law is indeterminable, because that doesn’t decide the case…

    • CJColucci says:

      I was going to make roughly the same point, and ask the same question.

      • Paul Campos says:

        I don’t think there’s a methodology available that would allow someone in position of an appellate court judge to decide hard cases (i.e., all non-frivolous appellate appeals) in an intellectually rigorous manner. As I said in the OP, “how could she?”

        The judge, in other words, is in a position where he or she is expected, for the purposes of social legitimation, to produce a certain amount of bullshit masquerading as serious formal and policy analysis. My point here is merely that it’s not desirable for academics to mimic this role while pretending to be, as it were, the judges of the judges.

        • rea says:

          The judge, in other words, is in a position where he or she is expected, for the purposes of social legitimation, to produce a certain amount of bullshit masquerading as serious formal and policy analysis

          This is where you are being unfair to practically the whole appellate bench. The law provides a series of rules by which problems like these can be resolved. But the law ain’t physics, and at some point, proper application of those rules is simply an exercise of judgment (hell, that’s why they call it “judgment”). A judge who (a) operates within the rules, and (b) makes judgment calls which are within the realm of principled decision making (even if we disagree with them) is not engaged in “bullshit” as Frankfurt defined it.

          Here, O’Connor employed the rules of statutory construction to get her to a point where she had to make a judgment call. She identified the point at which she had to make her judgment call, and made it. I wouldn’t have made the same call if I’d been in her place, but I can’t say she was outside the realm of principled decision-making.

          A lot of your problem with her decision seems to be that she boiled the whole case down to a stark, simple choice between two competing policy concerns, and then announced which one she thought was more important in this situation. She didn’t dress her decision up in a lot of extraneous “facts, methods or theories,” other than those she used to get herself up to the point of making her judgment call. Her failure to do so doesn’t show that she ws bullshitting, in the Frankfurt sense of being indifferent to the truth; on the contrary, it shows that she was quite open and upfront about what she was doing, and had to do to decide the case.

          And of course, this kind of judgment call occurs primarily at the Supreme Court level. The overwhelming majority of appeals resovled by state and federal intermediate appellate courts are indeed susceptible of resolution by rigorous analysis, to the extent that any decision made by human beings about the conduct of human beings can be said to be susceptible.

          So, no, the law isn’t all bullshit.

          • L2P says:

            I would have to disagree. O’Connor says (essentially) that this cause of action doesn’t have punitive damages because (a) we have nothing to guide us in the law, and (b) as a policy matter we get plenty of deterrence without punitives.

            Is (b) true? We have no effing idea. There is ZERO evidence in the record that compensatory damages and attorneys fees is a good substitute for punitives. There is ZERO evidence that the any relevant legislature thought so (it’d be great if there were legislative findings, eh?). She pulled that out of her ass.

            That’s why this is bullshit. It would also have been bullshit to rule the other way, of course. If you’re going to ground your determinations on factual matters, but have no record for them, it’s just bullshit.

            For example, when Kennedy says (essentially) “Women often regret having abortions, so mandatory waiting periods are cool,” that’s bullshit. There’s no evidence for that. He just thinks it’s true. Our jurisprudence is not the better because we take one line of reasoning, call it “policy,” and say that it’s “non-bullshit” because it’s all prettified and everything. That’s crap.

            I for one don’t like having a bunch of old men running my life on their ossified bullshit because they have Harvard law degrees.

            • rea says:

              There is ZERO evidence in the record that compensatory damages and attorneys fees is a good substitute for punitives.

              That’s really not a question that can be settled by an evidentiary inquiry.

              • L2P says:

                Really?

                You can test that hypotheses a number of different ways. You can look at lawsuits with punitives and without, compare to wrongdoing, and compare to number of lawsuits. Or you can compare jurisdictions with and without lawsuits, and do the same. Or you can review behavioral economics (or do your own studies) and gather evidence of it.

                Or you can just admit that it’s just bullshit.

            • rea says:

              I for one don’t like having a bunch of old men running my life on their ossified bullshit because they have Harvard law degrees.

              Odd reaction to an opinion by a woman who graduated from Stanford (and who had a great deal of difficulty finding a lawyer job upon graduation due to her gender).

  6. c u n d gulag says:

    For the definition as it pertains to politics:
    Mitt Romney is a flip-flopping liar.

    Newt Gingrich is a flip-flopping bullshit artist.

    • Hogan says:

      And Frank Luntz manufactures bullshit in bulk.

      • c u n d gulag says:

        Hogan,
        Yup, Luntz is the China of bullshit!

        The Republicans are the middlemen.

        FOX News and talk radio are the WalMart.

        And the “What’s The Matter With Kansas” crowd, the consumers.

      • Lindsay Beyerstein says:

        Frank Luntz is a perfect example of a Frankfurtian bullshit artist because he’s literally indifferent to the truth. He spends his life testing different formulations of the same talking point to see if one resonates better with votes than the other, like “death tax” vs. “estate tax.” He openly marveled at the different the wording makes.

        He also advised the GOP to play up the “uncertainty” surrounding global warming, even as he admitted that the science was firming up and there was a limited window of time during which to remind the public that there was remaining uncertainty. So, he knows that global warming is real and that everyone will believe it’s real in a few years, so he advises his clients to exploit uncertainty while they still can instead of, say, lying and saying that global warming is for sure not happening.

    • Yeah, I kept expecting Newt to show up in there.

  7. L2P says:

    Very nice, as always.

    I’d be a little more careful about this:

    “For example many litigators could hardly do their jobs if they were much concerned with “the truth-values of their statements.””

    IMO, most litigation isn’t in the area where the litigator isn’t concerned about what the truth is. If the facts clearly point towards the other side being right, the case generally settles.

    Usually, cases that go to trial tend to be more of a “there’s two sides to every story” dispute. Even in criminal law where the BRD standard gives a lot of cases where we’re pretty sure of what the truth is, the disputes are stuff like “are you sure you could see that guy clearly from 30 feet away?” or “how could he possibly have driven 5 miles in 20 minutes at noon?” sort of issues. I’ve rarely seen, past the initial pleading stage, lawyers flogging a clearly dead horse.

    Legal arguments are another matter. Those are all, as you point out, bullshit, so why not take a chance on it?

    • Paul Campos says:

      Nice point. I should have said “the truth value of their legal arguments.”

    • Alex says:

      This is a good point. A good litigator knows when his case is bullshit; it is the bad or stupid ones who either don’t care or don’t realize it and take their clients to destruction. Falling in love with your case (or your bullshit, as it may be) is a fatal flaw in a lawyer.

  8. ChrisCicc says:

    “talks without knowing what he is talking about.”

    Sounds like most liberals to me!

    But in all seriousness, you’re dead on in what you wrote. The old saying “those who can’t do, teach” is pervasive throughout academia, but legal academia seems to take this to a new level.

    • wengler says:

      ‘Slogans are fun.

      Let’s govern by them.’

      -Republican strategy 1980-present

    • Linnaeus says:

      The old saying “those who can’t do, teach” is pervasive throughout academia

      I never really understood the supposed truth value of this statement, given that even most “doers” have to have been taught by someone, often someone whose job it is specifically to teach.

      • ChrisCicc says:

        Teachers only provide a baseline, they teach us how to learn. Everyone has to learn on the job and in life far more than they did in school.

        Also, my college had about 90% of professors or so that were industry veterans. It was a business school. Most business schools are like this. Most business school heavily lean conservative. Coincidence?

        • jeer9 says:

          My lower skill General students always tell me that street smarts are what really matter and that Honors kids have their heads up their asses when it comes to real life, learning on the job experience. The nerds are pretty clueless.

          On the other hand, I suspect most of Wall Street is populated by savvy businessmen with degrees from top tier schools, and there’s no question we’ve benefited enormously of late from their skills and leadership.

          It’s a complicated world, though, and conservative political points are best made by simplification. While one hopes the simpleton’s expression is merely a facade, the recent spate of debates seems to indicate that the dim-wittedness goes right to the core.

          Coincidence? Or verification of Mill’s quip?

        • Linnaeus says:

          Everyone has to learn on the job and in life far more than they did in school.

          I don’t think this is wrong, but I don’t think it supports the “teaching” vs. “doing” dichotomy (a false one, in my view). Teaching is a kind of doing, and success in one area of endeavor doesn’t, in of itself, make you a good teacher.

          Also, my college had about 90% of professors or so that were industry veterans. It was a business school. Most business schools are like this. Most business school heavily lean conservative. Coincidence?

          Again, I’m not sure what this tells us other than business schools lean conservative. I can think of “doers” in other fields who don’t.

        • Adam says:

          Your logic is bullshit and easily refuted, because you’ve confused correlation and cause. If you had pursued a degree in a scientific field, you would’ve found that your professors were practitioners and that they were mostly liberal.

          • ChrisCicc says:

            A) watch the language
            B) the people you refer to are actually research scientists and engineers who teach on the side. Many do it only because they are required to in their research contracts.
            C) I work in the scientific field every day (self-taught at that) with government, private, and education scientists and engineers and am very familiar with all aspects of the industry.

      • dave says:

        The saying is, in fact, an activists’ slogan – it means act if you are capable of acting, and if incapacitated, find a way to pass on your experience.

        The notion that it should be parsed to indicate that ‘teaching’ is the opposite of ‘doing’ merely demonstrates the general ineducability of those who use it in that sense.

        • Furious Jorge says:

          I always marvel at conservatives’ open hostility toward education and educators.

          Then I remember what, exactly, they’re trying to do to this country, and suddenly it all makes sense again.

          • ChrisCicc says:

            Hostility to education? If rich conservatives were so against education, why do they spend more money than anyone on education for their own children?

            You confuse our tiredness with teachers unions, bad teachers that can’t get fired, etc with us not caring about education. That is your ignorance and your mistake. Being a unionized teacher does not require merit, nor does keeping your job or getting raises. Does that make you proud of the system we have?

        • Linnaeus says:

          I didn’t know that it was an activists’ slogan. You learn something new every day.

        • ChrisCicc says:

          Actually, no. While it may have origins in Bernard Shaw’s Maxims for Revolutionists, and while the original saying may mean what you say it does, the modern saying has a new meaning. Anyone who uses this phrase nowadays is not referring to the original, most don’t even know it.

          That said, I believe the original “He who can, does, he who cannot, teaches” actually means to Bernard Shaw what we take it to mean in modern times, not what you believe.

  9. Barry says:

    In the end, it simply comes down to lying.

  10. News Nag says:

    Before the fold, I was so sure that this post was about Gingrich, who actually is both a liar and a bullshitter simultaneously. I’d like to see Frankfurt explain that one!

  11. Discussion Question says:

    Let’s try this argument in reverse.

    The purpose of torts class is to teach the students about tort law. If the professor is a practicing lawyer, who knows a lot about the practice of law but knows relatively little about the law of torts, she is being required to function outside of her knowledge zone. The result is large amounts of bullshit. Therefore, practicing lawyers should not be allowed to reach tort law.

    Why doesn’t this argument work?

    • Hogan says:

      So a faculty consisting entirely of people who know only how to practice law would be as bad as a faculty consisting entirely of people who do not know at all how to practice law? So what? Who’s proposing the thing you’re arguing against?

      Discuss.

    • L2P says:

      Dude, who said practicing lawyers know little about the law they practice?

      The difference IMX between practicing lawyers and law professors is that law professors can tell you the cite and holding of dozens of cases and statutes addressing a single issue going back for 70 years, what the judges thought about them, and how they synthesize into a legal doctrine that future judges should apply if they were as smart as the law professor.

      Practicing lawyers can tell you generally how the law is applied, cite you the current relevant cases and statutes, and tell you how a judge is currently going to rule on a given set of facts. If they’ve been practicing long enough, they can map out how the law has changed since they’ve practiced.

      If you think that a practicing DA can’t tell you exactly what the current law is on search and seizure, for example, you’re high.

      • Discussion Question says:

        I agree the argument doesn’t work, because the purpose of law school is both to teach student the substantive law AND to teach practical lawyering skills. Students need to learn both.

        So I’m basically saying what Alex says below: there is room in the system for professors who just teach the law, and don’t claim to teach practical skills, because learning the law is part of being a lawyer. I don’t buy the notion that it’s impossible to teach the law if you don’t have practice experience.

        But certainly, law schools as organizations need to teach practical skills as well as substantive law, and this is not something that they have not historically done well.

      • Discussion Question says:

        who said practicing lawyers know little about the law they practice?

        Isn’t that why we have CLE requirements? Because we found out that many practicing lawyers didn’t know the law all that well, and had to be encouraged to learn it?

        • L2P says:

          We have CLE requirements because a bunch of people make a ton of money from putting them on, and the ABA likes the press of saying lawyers continually hone their skills.

          Nobody’s “practice of law” is better because of 4 hours of “substance abuse” training, 4 hours of “workplace discrimination” training, and 20 hours of crap like “issues in electronic discovery” or whatever bizarre thing you took a seminar on. They might be better people and all, but nobody cares.

  12. Alex says:

    Very interesting post, but unless you’re a law professor and went to law school, you’re obviously bullshitting!

    A bit over generalized. Many professors make no pretense about teaching you how to practice (and barely attempt to convey their contempt for the idea) while others have extensive practice. My labor law professor, for example, was Gen Counsel for the Steelworkers for years, while my Con law professor litigated Times v. Sullivan.

    The one thing law school should do in preparing people to be lawyers is teach them how to bullshit.

  13. Jonathan says:

    Shorter Paul Campos:

    Hang the lawyers.

    Thank you for the tl;dr version of what pretty much every non-lawyer in our society knows. Our society would be better off without the legal profession.

  14. C.S. says:

    . . . larger and larger percentages of the faculty are people with advanced degrees in fields other than law . . . [which] may improve the quality and broaden the subject matter of the legal scholarship produced . . .

    Having read my fair share of peer reviewed history and philosophy, I’d say that’s a pretty questionable assumption.

    Also, the statement that “the rhetorical posture of Prof. Leader requires him to represent to his students that is teaching them how to be lawyers” is bullshit. It is not required by either the profession or the position, and in my experience – which, yes, is anecdotal – law school professors go out of their way to inform students that the things they will learn in law school generally, and in their class in particular, are not to be taken as instructive on how to practice law.

  15. Sophia says:

    Early on in my legal education and exposure to actual practitioners, I noticed that the more successful lawyers were people who had embraced an epic narrative in which to practice law. Realists either burned out or used networking skills to produce a decent traffic practice (still getting by on the less than epic narrative of “fuck you, I’m performing a valuable service and earning an honest buck”).

    Reading Paul’s posts on this subject, I can’t help but think he’s still stuck in an epic narrative.

  16. stevo67 says:

    Claude Raines’ character in Lawrence of Arabia had a great line near the end of the movie when he remonstrated Lawrence for his naive belief that the Arabs would become fully independent after the end of the war:

    “The difference between a man who tells lies, such as myself, and a man who tells half-lies, like you, is that the man who tells lies has put the truth in his back pocket, while the man who tells half-lies never knew where it was to begin with.”

  17. Bijan Parsia says:

    The current version of your (1) one is a bit problematic, e.g., this

    Our modal law professor is a man or woman who knows very little about the actual practice of law in any form,

    just doesn’t follow from

    given that he or she spent very little time — increasingly, at more elite schools, literally no time — practicing law before entering the legal academy.

    I understand that “They’ve never been lawyers! Isolated wankers!!!!” line is (pretty effective) shorthand for “Their understanding of the actual practice of law is nil”, but, obviously, there are many ways to get a very good understanding of the practice of law without being a practicing lawyer. One could, for example, study it. (Not “the law”, but “how lawyer’s practice law,” e.g., by some sociology.) This is true in most fields for which experiential knowledge (and know how) are critical. To take a simple example, someone could be a very useful instructor of presentation issues in oral argument by having a background as, say, an actor. But they have to connect what they know to the pedagogic goals they are aiming for, e.g., survey data about loudness of voice and jury outcomes.

    Contrariwise, someone with a ton of experience who isn’t able to distinguish anecdote from data will also tend to be an instructional bullshitter.

    I don’t at all doubt that there’s a correlation but it’s a bit of an argumentative and rhetorical weak spot to appeal exclusively to it.

    • R Johnston says:

      Law school is a fun academic exercise if you enjoy academic exercises. Law school is brutally annoying at best if you’re there to become a lawyer or for any reason other than you enjoy academics and are interested in law.

      Perhaps this reflects something about law professors and law schools.

      Personally, I had fun in law school and hated being a lawyer.

      • Bijan Parsia says:

        Whether law school per se is useful for training lawyers is at least partially independent of whether having a faculty consisting largely of non-practitioners is the reason and even more independent of whether some particular faculty member or class is useless.

        For example, a practitioner who only worked on one sort of case in one general situation is probably less overall useful than someone who’s never practiced but attends a wide variety of trials as an observer.

        Compare with medicine. Some medicine is learned by doing and by mentoring, but there are risks involved. Experience is not the only or often the best form of evidence for a practice.

        I suspect that a major reason to want/need active practitioners is for their connections.

  18. MNP says:

    I went to a school where a great many of the professors practiced law either while teaching or alternated (1 year on, 1 year off). It wasn’t an elite school, being in the midwest but if you were there to learn to actually practice law in the midwest, you could do worse.

  19. Anonymous says:

    So I looked this Campos guy up on wikipedia and it seems that

    1. He wrote a book in 2004 called The Obesity Myth/The Diet Myth that casts doubt on the connection between obesity and poor health

    2. he has degrees in English and law.

    3.

  20. Anonymous says:

    So I looked Prof. Campos up and it seems that

    1. He wrote something in 2004/05 called The Obesity Myth/The Diet Myth that casts doubt on the connection between obesity and poor health.

    2. He has degrees in English and law.

    3. The conclusions he draws from his review of the scientific literature on obesity and health (at least based on the Amazon write up and reviews} just happen to coincide with his apparent disdain for liberal smartypantses.

    So why shoudn’t I assume under pretty much every single thing he says in this column that his book is bullshit?

  21. JeffryHouse says:

    The “judgment call” dilemma of Justice O’Connor, above, had previously been called “Legal Indeterminancy” by legal theoretician Carl Schmitt in the twentieth century. In the final analysis, every difficult legal question presents this indeterminacy, which cannot be resolved factually.

    Therefore, he said originally, legal questions must simply be decided through subjective will. The decider simply decides, and that is that.

    Later, in the Nazi period, he acknowledged that, absent any real basis for a legal decision, a jurist could decide any legal question on the basis of “race”; hence the need for only Aryans as judges. Other negatives also flowed from this doctrine.

  22. Jim says:

    The final block quote seems like a perfect description of Romney vs. Gingrich.

  23. [...] On bullshit and law schools : Lawyers, Guns & Money [...]

  24. [...] Paul Campos writes: Legal scholarship is produced under pseudo-academic conditions that form a fertile breeding ground for (very heavily footnoted) bullshit. Consider how legal academic publication almost always takes place. People who generally possess no formal academic training beyond what they received in law school (that is, none) write “law review articles.” In the vast majority of cases, these articles consist of “doctrinal analysis,” i.e., treating appellate court opinions (see (2) supra) as texts that deserve to be taken seriously on their own terms. We are already, in other words, knee-deep in bullshit. [...]

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