No More Fire, the Water Next Time

Paul Campos thinks I am cemented to the wall of Yale Law School by the blood of a thousand students, murdered by rapacious professors.

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?

Social psychologists have thought about this problem. Here are some resources.  To summarize: Stuart Smiley beats macho rhetoric, hands down.


**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.”

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11 Responses

  1. Orin Kerr says:

    Just downloaded Dan’s paper. It looks terrific. And kudos to the HLR editors for inviting Dan to write the Foreword.

  2. Ken Rhodes says:

    In the middle of this interesting post, I found a two-sentence paragraph that made me wonder:

    “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?”

    If they were lawyers practicing law (rather than teaching it, judging it, or writing about it), then weren’t they supposed to be *advocates* for their clients? Shouldn’t their effective advocacy sound like they have total confidence that their side is the right side, and their positions are the correct positions?

  3. Dave Hoffman says:


    A great point, which we address in They Saw a Protest, and Dan I think mentions in the Forward. I think that it is an open question whether advocacy that “sounds like they have total confidence that there side is the right side” is in fact more persuasive than the the more modest presentation that the post talks about. We’re working on some experiments in this vein, as is Dan Simon and others. We’ll see how it turns out. (See – there I’m doing it!)

    Also, of course, not all lawyers are advocates in precisely the same way — very few, in fact, end up primarily writing briefs for other legally trained professionals. Many others argue to lay people; or they try to find common solutions with other lawyers; or they work alone “for the deal”.

  4. Joseph Slater says:

    This is a terrific post with a lot of interesting and persuasive ideas, arguments, and links. I have one small quibble/question. It’s about this bit here:

    “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!!”

    [As a VC reader, I was amused by the “FRAUD!!!” in that]

    Two points. First, I’m not sure how much “legal style” is responsible for this type of debate on the internets. I read various blogs on subjects having nothing to do with law, and this style is pretty common among lots of blog commentors and even bloggers who I’m quite sure don’t have much exposure to law and lawyering. You see this on blogs related not just to politics, bu also to sports, music, etc.

    Related, I think that for lots of folks adopting this style, the point is not to try to be more persuasive to folks who may not already agree with them. Folks who post like that see others who disagree as the enemy: not just misinformed but actively badly intentioned. Also, some of these folks are simply bullies, trying (consciously or not) to drive uncomfortably dissenting voices away. This too, I think, has little specifically to do with styles of legal argument.

    So in short, I think you’re addressing a broader internet (and maybe broader cultural) issue, for which legal styles of argument have very limited responsibility at most. But again, great post.

  5. Ken Rhodes says:

    I’m sure Joseph is exactly correct — the style of internet discourse is often extreme.

    I try to catch myself before (a)calling somebody stupid and/or (b)shouting in all caps. Except, of course, on the Grandstand BBS when discussing my Orioles or Dodgers.

  6. Larry Rosenthal says:

    I wonder how much real empirical support the view of the virtues of more carefully couched rhetoric as a persuasive tool, at least in popular culture (I put aside scholarship and legal writing for present purposes). People will tell pollsters that they prefer measured language — just as they tell pollsters that they prefer bipartisanship — but what seems to sell is strong rhetoric, like strong partisanship.

    Justice Kennedy is a good example of a writer who uses carefully qualified language. Yet, was his opinion in Lawrence v. Texas greeted with more respect by those who are troubled by the constitutionalization of sexual libertarianism than was Justice Douglas’s opinion in Griswold? Did Roe v. Wade gain more acceptance because Justice Blackmun admitted that he did not know how to define human life? Did the opponents of affirmative action admire the Grutter opinion because it displayed its discomfort with affirmative action so plainly? Law professors likely overvalue the importance of crafting opinions as opposed to the bottom line. Most Americans, of course, care much more about the bottom line in these intensely controversial cases than their reasoning. Expressions of doubt may only intensify the view that judges are not ruling on the basis of “law,” but rather their personal views. If one wants to promote radical reform, the case for measured rhetoric seems even more problematic. More people will pay attention to Paul Campos if he overstates his case than if it is presented in a carefully qualified way. This may be regrettable, but I do not see very much empirical evidence to the contrary, at least outside of the laboratory.

    Larry Rosenthal
    Chapman University School of Law

  7. Brian Tamanaha says:

    When Anonymous LawProf first came out with pistols blazing, I might have agreed with your post, but now I’m inclined to think otherwise.

    You write: “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.”

    Perhaps that is correct, but I don’t believe “persuading nonpartisans” plays out in such narrow terms. If his goal was to bring more attention to the issues, his shrill approach has been wildly successful.

    And now that previously disengaged “nonpartisans” are concentrating on these issues, they can make up their own minds, reading more nuanced positions laid out by others (the many posts that responded to Anonymous LawProf, including yours), as well as (after the initial defensive reaction–“I’m not a scammer!”–subsides) reading beneath the broad brush of his posts to consider the merits of his underlying arguments.

    Getting attention is a prerequisite to persuasion. Nuanced posts might well be more persuasive, but that accomplishes little if no one is listening.

  8. shg says:

    Machoblawgers? I like it.

  9. David Fagundes says:

    I shared some of the concerns Larry and others raised above about the plausibility of this finding. It seems to me that the popularity of hysterical, partisan blogs and news shows indicates that what really drives opinion is not careful, objective reasoning, but careless, subjective bloviating.

    Having thought about this issue a bit more, though, I think the distinction is this: Big loud rhetoric sells well, and may drive up ratings for Fox News or readership for the Huffington Post, but only because it tends to make people feel good by entrenching their preexisting opinions (or make people feel enraged by taking shots at their preexisting opinions, thereby further entrenching them).

    But the paper’s point about “aporia” strikes me as more in the vein of what will persuade, not what will sell well. I take the insight to be that if you want to change the mind of someone who does not agree with your position, yelling about the contrary opinion is going to be a lot less effective than presenting reasons carefully and without a hysterical tone.

    Finally, the term “machoblawgers” gave me a good laugh. Because, you know, it’s so tough and courageous to sit at a keyboard taking angry potshots at people from the safety of your computer.

  10. Paul Horwitz says:

    Two more things to consider about this issue of the relative success of different kinds of rhetoric. The first has to do with the nature of the market. Fox News does quite well in the ratings relatively speaking, but its share would be laughable in comparison to the audience for the big three network news programs a few decades ago. Of course, they were the only game in town then. The broader point is that in a highly fragmented market, people are fighting for market fragments, not the whole megillah. They may achieve that goal better by being more shrill, and by appealing loudly and directly to particular market niches.

    Then there’s the distinction between bringing publicity to something and thus putting it on the public agenda, and having actual and lasting influence in the arena of public discourse. Campos’s blog, as many people have noted, did very well in bringing publicity to a set of issues and helping put them on the agenda, or more accurately putting them on more people’s agenda. The overheated rhetoric, along with the pseudo-subversive combination of his anonymity and his assertion that he was a first-tier professor, surely helped. But it is much less likely that he will be taken seriously and have a real influence on the course of discussion or reform, even if he sometimes has valuable things to offer to the discussion. He’s already established a high discount rate for himself. One could say similar things about Fox News, which often affects the public agenda but, in appealing so heavily and heatedly to one fragment of the audience, undercuts its broader influence (or persuasiveness, as Dave puts it) in public discussion.

  11. Max Kennerly says:

    Different situations call for different means of advocacy. Justice Roberts’ opinions are viewed as illegitimate because he writes them like a brief for the Chamber of Commerce when he is supposed to be an “umpire” – his word, not mine – over legal disputes. A justice writing a majority opinion should recognize and concede the portions of their opinion where there is room for reasonable doubt and then explain why they reached the conclusion they did. Anything less is undemocratic.

    Trial lawyers are frequently trained to concede damaging issues where the evidence is against them, and most good trial lawyers will either openly concede a damaging issue or simply not contest it. That said, where the evidence is genuinely in dispute, it usually does an advocate no good to concede weakness in their entire position. Rather, they need to address challenges to their argument and explain why the challenge should not be sustained.

    Arguments on the internet should be avoided if possible. Where a person can’t help but write about stuff on the internet, their tone and manner should be dictated by their intended audience. My tone and manner is generally a mix of two intended audiences: (1) what I think my regular readership looks like and (2) people Googling for information about that specific topic. The former might be more inclined to listen to me preach to the choir — and might enjoy it! — but the latter comes in with, I hope, an undecided and open mind, and so I try to lay out the land a little bit for them.