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Please stop hitting me, Professor Kagan


As Glenn Greenwald points out, skepticism about the Kagan appointment issuing from anyone left of Miguel Estrada (who by the way thinks Kagan is a terrific pick) has been met with the sort of response engendered by essentially tribal loyalties. “Our” team’s captain has made his decision, and now it’s time for everybody to get dutifully on message. All this is natural and predictable; what I find more interesting is the extent to which the tribalism of legal academia is playing a role in the support for Kagan. It’s hardly surprising that Kagan’s friends and colleagues from Harvard and Chicago are leading the charge in her behalf. What’s more notable is the number of conservative legal academics, including Stephen Bainbridge, Eugene Volokh, Charles Fried, and Glenn Reynolds, who are either enthusiastically supportive or at least not opposed to Obama’s pick.

Update: Ken Starr thinks she’s a great pick as well.

One particularly striking feature of the Kagan nomination is the extent to which it threatens to throw an unflattering light on various aspects of legal academia. It’s no doubt coming as a surprise to lots of people in other precincts of academia that it’s possible to get tenure at two of America’s top universities while publishing as little as Kagan has published, especially given that nothing she’s ever published was subjected to a genuine peer review process prior to publication. (Her articles in the Chicago and Harvard law reviews were chosen by Chicago and Harvard law school students, some of them who were in her classes at the time. Her two pieces in the Supreme Court Review were chosen by members of her own current faculty in the first instance, and her former faculty colleagues in the second). This, of course, is not primarily a criticism of Kagan herself, but of the system which has produced her — a system which among other things rewards puerile obsessions with structurally phony citation counts as a substitute for actually reading and evaluating what somebody has written.

Yet the advice to hate the game not the player rings hollow when the time comes to decide whether a particular player should be promoted to a different league altogether. Speaking of that game, consider this vignette about Kagan’s teaching:

As a professor, Kagan was one of the last of a dying breed: a purely Socratic law school professor. With Kagan, there was no panel. There was no back-benching. She would just randomly call your ass to the carpet, and you had best be prepared.

Here’s the thing about the Socratic method: it freaking blows when people are not prepared. Sure, it’s horribly embarrassing for the person who is stumbling through, trying to answer questions based on cases he or she hasn’t read. But it really just slows the whole class down. Yes, 5% of us didn’t read International Shoe, but 95% of us did; can you focus on the ones who did their homework?

I hated the Socratic method, and while many people in my section were so terrified of Kagan that they did their Civ Pro reading before anything else, I quickly fell into the habit of not doing my Civ Pro reading. Hell, we were just going to spend half of class rehashing what people already read the night before. In my 1L mind, I was being efficient.

So it came that one Friday morning I was cold-called. I wasn’t even in the ballpark of being prepared. But I didn’t want to waste everybody’s time. So I responded: “Professor Kagan, honestly I didn’t get to all of the reading for today’s class. Sadly, I think I need to pass on this one.”

Bzzt. Wrong answer:

PROFESSOR KAGAN: Well, Mr. Mystal, did you manage to remember your casebook?
1L ELIE: Yes. But like I said, I didn’t …
PROFESSOR KAGAN: Do you think you could be bothered to OPEN your casebook?
1L ELIE: (I have a bad feeling about this.) Yes. Abso…
PROFESSOR KAGAN: Please turn to page [whatever]… Now read.
1L ELIE: (Reading silently.)
1L ELIE: (Channeling Nathan Jessup: I’m not an idiot, I don’t need to read aloud like I’m a five year old.) Umm … Okay. (Much reading aloud.)
PROFESSOR KAGAN: Now, can you explain to me what you just read?
1L ELIE: (I can’t even remember what I blathered.)
PROFESSOR KAGAN: Mr. Mystal, open to page [same page as before], and TRY AGAIN!

At that point I just kind of had a disassociative break. My mouth kept moving, but my mind went into some kind of fetal position. Please stop hitting me, Professor Kagan.

Given that we know so little of substance about Kagan, I suggest this little incident has some evidentiary value. It’s not Kagan’s fault, after all, that the standard publication and evaluation process for legal academics is a bad joke (although of course she can be criticized for the actual content, or the absence of content, of the texts she generated while taking part in that process). But, as even the cowed and terrified Mr. Mystal recognized, not too many law professors today indulge — or at least not to anything like this extent — in the combination of authoritarian browbeating and pedagogical infantilization that are the hallmarks of the classic “Socratic” (sic) method.

That method was (is) a horribly ineffective way to transmit substantive knowledge. If educational theorists agree on one thing it’s that pedagogical terrorism doesn’t work — assuming the point of the exercise is for people to actually learn what you’re claiming to teach them. But of course as critics have been pointing out for many decades now, that was never the real point. Here is a small piece of Duncan Kennedy’s more than 30-year-old critique of the classic method:

The classroom is hierarchical with a vengeance, the teacher
receiving a degree of deference and arousing fears that remind one of high school
rather than college. The sense of autonomy one has in a lecture, with the rule that
you must let teacher drone on without interruption balanced by the rule that
teacher can’t do anything to you, is gone. In its place is a demand for
pseudoparticipation in which one struggles desperately, in front of a large
audience, to read a mind determined to elude you. It is almost never anything as
bad as The Paper Chase or One-L, but it is still humiliating to be frightened and
unsure of oneself, especially when what renders one unsure is a classroom
arrangement that suggests at once the patriarchal family and a Kafkalike riddle
state. The law school classroom at the beginning of the first year is culturally reactionary.

Now as Kennedy goes on to point out, this “method” is not merely culturally reactionary, it’s politically reactionary as well. The whole point is to produce lawyers, which is to say people, who never question the fundamental power relations encoded by the legal, economic, and cultural status quo. And in that sense, it was and remains quite effective. As TT points out in a comments thread below:

How many people voted against Bush 41 because of Clarence Thomas? I guarantee you it was a miniscule percentage. For that reason, Obama could have nominated a real liberal like Wood or Karlan and expected to pay a an equally small political price in 2012. The fact that he didn’t confirms, for me anyway, that he prefers David Ignatius’s “beloved center”, the place where Washington, Wall Street, and the Ivy League meet and congratulate themselves for being Serious.

Precisely. Indeed that’s what the classic Socratic “method” is all about — it’s a performance designed to demonstrate that the performer is In Charge Here and a Very Serious Person who you had best defer to if you know what’s good for you. In short, it’s authoritarianism at its most straightforward and distasteful — and anyone who currently practices it in 180-proof form in an American law school at this late date should be viewed with suspicion: not merely as an educator, but in terms of that person’s fundamental orientation towards hierarchy, authority, and social power. Which is another way of saying, in terms of her politics.

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