No More Fire, the Water Next Time
posted by Dave Hoffman
Among its many other vices, does legal education teach you to argue less persuasively and in a way that unsettles civil society? That accusation is implicit in Dan Kahan’s new magisterial HLR Forward, Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law. In Some Problems, Kahan considers the Supreme Court’s perceived legitimacy deficit when it resolves high-stakes cases. Rejecting the common criticism that focuses on the ideal of neutrality, Kahan argues than the Court’s failure is one of communication. The issues that the Court considers are hard, the they often turn on disputed policy judgments. But the Justices resort to language which is untempered by doubt, and which advances empirical support that is said to be conclusive. Like scientists, judges’ empirical messages are read by elites, and thus understood through polarizing filters. As a result, Justices on the other sides of these fights quickly seek to undermine these purported empirical foundations – - as Justice Scalia argued last term in Plata:
“[It] is impossible for judges to make “factual findings” without inserting their own policy judgments, when the factual findings are policy judgments. What occurred here is no more judicial factfinding in the ordinary sense than would be the factual findings that deficit spending will not lower the unemployment rate, or that the continued occupation of Iraq will decrease the risk of terrorism.”
Kahan resists Scalia’s cynicism — and says that in fact Scalia is making the problem worse. Overconfident display encourages people to take polarized views of law, to distrust the good faith of the Court and of legal institutions, and to experience the malady of cognitive illiberalism. Kahan concludes that Courts ought to show doubt & humility – aporia – when deciding cases, so as to signal to the other justices & the public that the losing side has been heard. Such a commitment to humble rhetoric would strengthen the idea of neutrality, which currently is attacked by all comers. Moreover, there is evidence that these sorts of on-the-one-hand/on-the-other-hand arguments do work. As Dan Simon and co-authors have found, people are basically likely to consider as legitimate arguments whose outcomes they find congenial. But when they dislike outcomes, people are better persuaded by arguments that are explicitly two-sided: that is, the form of very muscular rhetoric typical in SCOTUS decisions is likely to be seen, by those who disagree with the Court’s outcomes, are particularly unpersuasive, illegitimate, and biased.
I love this paper — it’s an outgrowth of the cultural cognition project, and it lays the groundwork for some really neat experiments. So the point of the post is partly to encourage you to go read it. But I wanted to try as well to connect this line of research to the recent “debate” about Law Schools.
Indeed, Paul Campos believes that the way he’s spoken about law school economics is responsible for the negative reaction his colleagues (at Colorado and nationally).
“One thing that has displeased a number of my colleagues throughout the legal academy is what they consider the excessively shrill tone of some of my posts, which have lacked that delicacy and circumspection that marks a well-bred gentleman’s discourse, whenever he engages in the unpleasant task of suggesting that all might not be for the best in this the best of all possible worlds. Another thing that has annoyed them is that everything I’m saying is either old hat and already perfectly well understood, or obviously false. The former category includes assertions regarding the rampant dishonesty of placement statistics, the disastrous job market for graduates, the skyrocketing cost of legal education, and the enormous debt load for our students those costs engender, as well as the apparently unsustainable nature of the current business model under which many schools are operating.”
This post was catnip for many bloggers and commentators. Many of the commentators are students – they say, although being anonymous, they might be spambots, or slumming volokh conspirators, for all I know. It’s also pointing out that the best available evident makes these unsatisfied customers out to be exceptions to the norm. Then there’s a set of bloggers – exemplified by Scott Greenfield – who are almost all 1) older, 2) white, 3) men, running 4) PI or criminal law practices. Many have sought positions as law professors, but haven’t obtained tenure-track jobs. Others, like Scott, appear to be happy in practice. For these machoblawgers, law professors’ language in response to the “crisis in legal education” exemplifies the problem with law schools: it is pretentious and elitist (“sherry sipping”); it is feminine and effete (“dulcet tones”, “vapors” and “delicate” law professors versus “brutish” talking “like a lawyer”); and it is (3) incomprehensible (“long words strung together in seemingly random ways”). Note how Campos and Greenfield have come to the identical criticism, though from quite different premises. Law professors are eggheads, protected from brutish reality by their high walls. If only “they” understood how the world really worked. If only they confronted it with more forceful, manly, speech.
Now all this has deep roots in the robust American tradition of anti-intellectualism (mixed with a bit of insecurity by Campos, I think, who has as much as admitted that he doesn’t do anything to merit his salary). But in it, we can see exactly how clever bloggers deploy really strong arguments without considering the other side, saying that this is what it means to “talk like a lawyer.” Greenfield is surely well-positioned to tell us how lawyers in his community (the criminal defense bar) talk. So, although the lawyers I know and practiced with sounded nothing like him, there’s truth to the accusation. The question is: does talking and arguing with less nuance make you a better lawyer, and, if so, is “better” lawyering compatible with better law?
Compare Greenfield and Campos with Paul Horwitz’s most recent posts. Paul demonstrates lots of modesty and attention to alternative views, and he describes the genuine difficulties we encounter when we think about a really hard problem. He does so without minimizing the pain that law students without jobs feel (i.e., the “feminine” virtue of empathy), or neglecting historical context. Even if you disagree with him, I think his writing is more persuasive for nonpartisans than Campos’s accusations of a scam, or than the anonymous commentators that appeared on Prof. Horwitz’s post. Well, you tell me. Do these comments persuade you that their authors much of anything? That they’d be wise counselors worth hiring when legal judgment is called for?
- “And this is why professors are the problem, they will lie, cheat and steal to keep their gravy train going. “
- “Yes, law schools have conquered the social divide, by taking middle and lower middle class students and turning them into impoverished citizens by way of a fortune in student loan debt.”
Perhaps the posters realize this — they are writing simply to express outrage and to rally the troops (like Scalia in Plata). But I think others don’t understand how they sound to those that disagree with them: they sincerely believe that the best way to persuade is to make an argument a second time. LOUDER. WITH MORE @#$ TALKING ABOUT FRAUD!! If that’s the case, I think that law school is at fault. We ought to have spent more time talking about psychology, sociology, and rhetoric — helping students to understand how to frame arguments in ways that unfriendly listeners will find persuasive. We ought to have emphasized the (at least!) instrumental importance of acting like a professional. And, of course, we ought to’ve spent less time with casebooks and opinions, which simply provide more examples of bad, overmuscular, writing, and bad, overaggressive, lawyering.
What is to be done? On the merits, it is crucial to look past this recession. Even when the economy recovers, changes in the legal employment market will make it difficult for certain graduates of certain law schools to recoup their tuition. Not all law schools. And not all law graduates. (Here, the fact that law schools usually serve local legal markets, which are really diverse in outlook, is insufficiently appreciated). What should affected law schools do? Let’s consider a few commonly argued paths, ignoring for the purposes of the argument collective action problems and the reality that law schools are controlled by central universities:
- Admit fewer law students. The purported advantage is well-expressed by the AALS back in 1938: higher rents for existing lawyers. But the tradeoff is equally obvious: the price for legal services goes up. Or to put it differently, commentators ought to admit that improving the job market for law school graduates probably results in a tax on the public consuming their services, especially those near poverty. Where’s the distributional equity in that exchange?
- Make school shorter, and move back to an apprenticeship model. (Notably, this proposal one runs smack into our ABA overlords.) This may reduce the price for law school in the near term, but how will lawyers select apprentices? Might they find students who look/act like them? To the extent that we think that the current bar isn’t as diverse (economically, especially, but also in terms of gender/race) as we’d like it to be, how will giving lawyers even more power to gatekeep improve matters? Moreover, is there any evidence that the apprentice system produced better lawyering?
- What if schools admit the same number of students but reduced real (post scholarship) tuition. To do so, commentators suggest that professors should take a pay cut, or that they should teach more and write less (that is, we ought to hire fewer tenured law professors). Here, again, we run up against the innovation-choking ABA regime, and the problem of monitoring and motivating unhappy professionals that has so bedeviled law firms. But even if that path is blocked, schools have options. They could demand more in gifts from their alumni. A terrific solution – though this means that the current bar subsidizes new entrants, which isn’t totally attactive. Or, schools can admit only richer students. Another distributional mess. Or, schools can battle with central administrations to take a smaller tax, meaning that (essentially) money is being transferred from university undergrads to law students. Who has the better of that equitable claim?
- A preferred solution for many commentators is based on a combination of faith in free markets plus transparency. For some of the reasons Ribstein lays out, I think this the returns on transparency will be disappointing, though the solution isn’t worthless and is certainly politically expedient. That said, transparency of the kind that commentators want will produce real and opportunity costs, and that has to come from tuition. So, law schools will tax current students to subsidize the decisions of future students. Better information may, mildly, change matriculation decisions. But continued use by irate commentators of USNews Tier designations (and professors too!) doesn’t particular comfort me that better data will matter to anyone. People love stupid proxies! Tier 2 profs rule!
- And What about the inevitable restructing the legal employment market? Well, of course it isn’t likely that the end result will be more of the kinds of secure jobs that students used to have.* Will unemployed students feel better if they walk into a bad market with their eyes open? I tend to think not: they will still feel cheated, just in the way that Americans generally feel betrayed by their institutions and the lost promise of the American dream.
In short: the problem is really very hard, and the sooner that we acknowledge that there isn’t a solution that’ll satisfy all the important stakeholders the better. And by important stakeholders, I mean lawyers, current students, and prospective students. The satisfaction of professors is essentially irrelevant. But, believe me, we’re screwed too. But that’s a problem for a different post.
Now, put aside these merits, and focus on communication about the problem. Let’s say you wanted to talk about this set of problems, and you were aware that your worldviews were shaping your understanding of law schools – your views toward egalitarianism, for instance, were making you distrustful of market solutions, or your penchant toward individualism made you believe that transparency was the whole of the solution. How can you best come to understand the views of those who don’t think like you, and, best of all, to persuade them?
**p.s.: Christine Hurt, one of my favorite people, really has a bunch of zingers in that linked post. Here’s the best part:
“Finally, I have the best job in the world. But not for the reasons ALP thinks it’s the best job. Yes, it is a job where no one can see you shirk and even if they did, they couldn’t fire you. Whatever. Being a mom is just like that, and I’m the best mom in the world. Law teaching is the best job because I get paid to do what I love. That’s the big secret. I love the law, and I love learning about it and telling students about it. I love writing about it. Does it bother me that other people (not at my institution) are lucky enough to have this job and don’t take advantage of it and give it 100%? A little … If you don’t love law teaching, then you may be a scammer. However, I think most appointments committees can smell these scammers a mile away.”