Refuting the Absurd
posted by Frank Pasquale
Appellate clerks often find their hardest assignments are not addressing complex legal issues, but dealing with a bizarre and intuitively ridiculous effort to stretch the law to cover some new situation. There’s just no relevant precedent! A conscientious judge may well want every argument in the losing party’s brief addressed–even the real dogs. Of course, things aren’t so bad as the TV show Boston Legal recently suggested (when one partner claimed anyone could get a case against God (for a lightning strike) past summary judgment). But really strange arguments can strain the imagination…and in the end, are probably good for both clerks and for the law, which can finally articulate the exact reasons why any experienced lawyer would laugh a given position out of court.
It strikes me that reviews of truly terrible and ill-conceived books can serve a similar function. Consider, for instance, this review of Charles Murray’s Human Accomplishment (Murray’s effort to “rank-order the great achievers in an objective manner”). The method of Murray’s book is as crude as the aim:
[T]he process whereby the great human achievers are located and rank-ordered essentially boils down to this: a series of reference books is located for each of the various divisions into which the variety of human achievement has been broken down (e.g., Western art, Japanese art, Chinese philosophy), and the number of pages of reference to various individuals is then tabulated. And that, as they say, is that.
One might question why such a project should even be addressed in a scholarly journal. But the reviewer (Robin Barrow) makes some very interesting points about ranking overall. As he notes,
The trappings of science do not make for science and . . . a methodology that is in itself “objective,” “scientific,” “quantitative,” or anything else smacking of hard and indisputable proof does not produce proven or demonstrated conclusions concerning anything other than what the methodology actually deals with. In this case, assuming the methodology is as unambiguous as Murray (incorrectly) suggests, it gives us demonstrated conclusions pertaining to the amount of space devoted to various people in reference works, and nothing relating to the quality of their work.
It is obviously possible to be a great but unrecognized artist. Does it make sense to claim that an artist who is not recognized because nobody has ever valued his work is nonetheless great? Of course it does.
In any event, as rankings-mania hits more and more fields, I highly recommend this brief “wake-up call” on its limits.
December 26, 2006 at 6:09 pm
Posted in: Law School (Rankings)
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Responses (3)
Jeff Lipshaw - December 27, 2006 at 6:13 am
1. If you think dealing with a claim so bizarre there was no case saying “that is not a claim” was troubling for judges and clerks, imagine what it was like for clients and lawyers! To paraphrase the punchline of an old cartoon, the one good thing about being a judge is the ability to take the law in your own hands. You couldn’t say the same thing when you were a young associate given the assignment to write the brief.
2. Murray’s wacko scientism provides cover for, and distraction from, more sophisticated stabs at the same end.
Patrick S. O'Donnell - December 27, 2006 at 8:46 am
Rankings-mania indeed: from academia to the mass media. A few passages from the Tao Te Ching are a nice antidote to such nonsense. Are Americans the only ones afflicted by this mania? Where’s Pierre Bourdieu when we need him (‘[S]ociology is a martial art insofar as it is used to defend against the domination of symbolic systems and the imposition of distorting categories of thought.’)?
Patrick S. O'Donnell - December 27, 2006 at 8:46 am
Rankings-mania indeed: from academia to the mass media. A few passages from the Tao Te Ching are a nice antidote to such nonsense. Are Americans the only ones afflicted by this mania? Where’s Pierre Bourdieu when we need him (‘[S]ociology is a martial art insofar as it is used to defend against the domination of symbolic systems and the imposition of distorting categories of thought.’)?
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