Traveling Hopefully

posted by Jeffrey Lipshaw

This will be my last post in this guest-blogging stint, and I want to express effusive thanks to Dan Solove, Frank Pasquale, Dave Hoffman, and the other proprietors of this space for their hospitality and encouragement. I also appreciate the fact that they, and not I, created a forum with several thousand discrete hits a day. It’s quite an incentive to a blogger (or any other writer).

Joy is not the kind of thing that lends itself to either critical or even interesting analysis, but that has been my experience of this particular stint on Concurring Opinions. I remember discussing Milton’s Paradise Lost in high school, and we all agreed that Satan was by far the most interesting character. Unhappiness or dissatisfaction is (ironically) so much more satisfying, and we indulge in it, whether it’s why law professors are so unhappy, or why the law review system doesn’t work, or why legal scholarship isn’t really scholarship, or why lawyers think law professors are irrelevant, and so on. There’s even a mystical explanation for this. In the Lurianic myths of the Kabbalah, the physical universe, as we know it, came about as the result of God’s withdrawal (tzimtzum), which resulted in the shattering of the perfect glass “vessel” of the heavens. The shards of that shattered vessel are what we experience as the physical world. The repairing of the world, or Tikkun Olam, is the endless process of returning those shards to their perfect state. And how are we to do that without first identifying the miseries of the world?

You can really get into the repair of the world if you are out in the trenches on the front lines of life, whether you are fixing gutters (I just got an estimate for ours), litigating public or private disputes, or figuring out whether the universe is expanding or contracting (I figure we are going to have to understand the cosmological constant if we are going to reconstruct the shards at some point). The other day I referred to one of the tomes identifying some of what is wrong with the [academic] world, Julius Getman’s In the Company of Scholars. In turn, Mike Madison pointed me to his Lewis & Clark Law Review piece quoting Getman to the effect that “research serves as a ‘dress suit for academic elitism.’” Mike applies the concept of the “economy of prestige” to the question why law reviews don’t seem to go away in the face of so-called “open access.” If I may interpret, Mike’s point is that scholarship, and particularly legal scholarship, is a self-contained, self-validating, self-referential economy, in which the payoff is in utils measured by prestige. And open access simply does not generate sufficient wealth as so measured. According to Mike, “The theory of the economy of prestige holds that we see a grumpily mutually-reinforcing symbolic economy of law professors, lawyers, law students, law schools and their universities processing professional prestige through the unusual institution known as the law review.”

It’s a dreary prospect, and not one that inspires joy. But there’s some joy after the fold.

Consider the conundrum. Mike points out one criticism of law reviews is that they are edited by law students, and because the law students really don’t know what they are doing, much of what appears is garbage (by the way, I should note that the garbage Mike skewers sounds a lot like what I do!). But the garbage is submitted by law professors, who presumably would be the peer reviewers if the system were replaced by peer review. All of which means that there must be some elite within the discipline that is the ultimate judge of quality. But how did they get to be the judges? Is there an immanent Truth to which they have access? This is all very tough stuff. (I may have this slightly wrong, but I am recalling the description of the process by which the early American Puritan Congregationalists were admitted to whatever it was that they were admitted to – as deacons, members, saints, whatever. Once the church leadership was in place, those individuals could decide who else got in. But how did the first ones establish their credentials? Apparently two elders would get in a room and battle it out mano-a-mano and then certify each other. In Mike’s piece, the analogous process has to do with the founding of the Harvard Law Review.) Anyway, that’s scholarship.

Going to back to Tikkun Olam, I can see how there are many aspects of repairing the world that would cause one to get really mad. There are so many injustices and, not to be flip about it, so little time. (Even I, the most congenial and laid-back of people, got my heart pumping when I listened to a couple colleagues tell me the other day they liked what John Edwards had to say about “corporate greed.”)

But one of the curiosities to me of the academic life is how it is possible to get so angry about almost anything. I have in mind the feud between two philosophers highlighted today in the New York Times, and about which Brian Leiter has provided some insight. I think I can actually explain the substantive dispute. One of the knottiest issues in philosophy of mind is the question of consciousness itself. What does it mean to experience the world, not in terms of explaining the physical aspects of the experience, but actually, from a first person standpoint, having the experience? (This is the subject of David Chalmers’ book, The Conscious Mind, highlighted by Larry Solum in his Legal Theory Bookworm on the same day Larry expounded on his own application of the “zombie” hypothetical to the issue of legal personhood at the AALS meeting.) There are two poles to the debate, one at the physicalist, or naturalist, end, contending (or believing) that consciousness cannot ultimately be something separate from physical cause-and-effect, and the other at the “spiritualist” end, contending that consciousness will never be explainable from a purely physical or natural standpoint. (”Dualism” tends to move to the latter pole because it views consciousness as something apart from the physical, even if consciousness is not spiritual. This is where Chalmers comes out.)

The feud is about a book written by the philosopher, Ted Honderich, in which he proposes something along the lines of a physicalist thesis (called Radical Externalism). Colin McGinn, another philosopher, wrote a scathing review of the book in Philosophical Review. Brian Leiter highlighted the issue not as much for the merits of the philosophical argument, but for what constituted the bounds of appropriate vitriol in a book review. If you are interested, I recommend Brian’s links to the various original pieces, as well as the extensive commentary on the issue over at Leiter Reports.

I can only think this dispute hit the Guardian and the New York Times because nobody outside of The Academy could fathom that much anger over the issue I just characterized, and so there must be something more to the plot. Indeed, the principals argue about that as well. That, it seems, is the unfortunate aspect of the whole dispute, reinforcing as it does what must be a schadenfreude-filled view from the outside of the joylessness inside The Academy. I personally, being new to The Academy, and despite hearing rumors to the effect that this goes on, and despite now having been to several faculty meetings, have never actually had the conscious experience of what follows, so, again, I rely on Jack Getman’s description: “Powerful feelings were evoked by the most technical or trivial of issues. When we considered a minor change in the exam schedule, the debate was barely civil. . . . Debate at faculty meetings often resembles one-on-one schoolyard basketball more than it does serious academic discussion.”

I confess to as much fear of failure as the next person (I still tend to the math exam stress dream, but see Liz Glazer and Bruce Boyden for more on this), and it’s not helping that what I really want to write and think about next is the relationship between consciousness and our sense of justice (working title: “Justice is Like Greenness: Reflections on the Rule of Law”). I come to the conclusion that one has to work at provoking one’s sense of joy as much as one spends cataloging the miseries. I have these moments of what Abraham Joshua Heschel called “radical amazement” that push me to the non-reductive side of the consciousness debate, and I want to talk about them, but I can’t imagine getting mad about it (unless, I suppose, somebody writes a review of what I say and calls me a worthless idiot). The moments happen in teaching, as when a student’s light goes on, or in collegiality, as when I had wonderful conversations with people on my faculty I didn’t know before (like Steve Eisenstat and Marie Ashe), or in “scholarship” when all the sudden a piece falls into place, or in simple effect on the world, as when somebody at AALS told me that he used one of my short essays as the basis for a take-home exam in advanced contract theory.

Mike Madison observes that physicists seem to have come to terms with both open-access and traditional publication, theorizing that they have less vested in the utils of the self-contained economy of prestige, because they are in pursuit of the Grand Theory of Everything. If it’s even possible that the rest of us are collectively chasing our tails, rehashing the same debates endlessly, then as I’ve said, paraphrasing Robert Louis Stevenson, it really is better to travel hopefully than to arrive.

 January 12, 2008 at 12:20 pm   Posted in: Law School (Scholarship), Legal Theory    Print This Post

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