Category: Law and Humanities

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Is Interdisciplinary Legal Study a Luxury?

book-old1.jpgOver at Balkinization, Professor Brian Tamanaha (St. John’s School of Law) argues that most law schools should abandon their vigorous pursuit of interdisciplinary studies in law:

[P]erhaps detailed knowledge of the social sciences—anything beyond rudimentary information every educated person should possess—is irrelevant to the practice of law.

It seems evident that one can be an excellent lawyer without knowing any of this interdisciplinary stuff, while it is not obvious that learning this will make a person a better lawyer. A stronger case can be made that this information might improve the performance of judges, but a more efficient way to deliver this benefit is to set up classes (in economics, statistics, etc.) for sitting judges—programs which now exist.

Brian contends that non-elite schools should reconsider whether they should emulate top-ranked law schools in focusing heavily on the interdisciplinary study of law:

In the non-elite law school universe–with schools almost entirely dependent upon tuition, with a majority of graduates who do not get corporate law jobs and only rarely become law professors–the interdisciplinary movement cannot be so easily justified.

Let me just give three reasons why it might be a bad idea for non-elite law schools. First and foremost, as argued above, there is no evidence that it will make their students better lawyers. Second, it costs a lot of money to go interdisciplinary, and (because non-elite schools are tuition driven) this money will come out of the pockets of the students. Third, their education might suffer if their faculties emulate the elite law school trend toward hiring JD/PhDs with little or no practice experience (assuming a person with some experience in the practice of law has a bit more insight to impart to students about how to be good lawyers). . . .

The bottom line of this post: the notion that interdisciplinary studies within law schools promises to improve the practice of law is an old idea backed up by little evidence. Non-elite law schools might not be serving their students well if they get caught up in this trend.

I strongly disagree. Brian’s post seems to be informed by a common set of assumptions about legal education and practice that I think are false. These assumptions involve a particular vision of what tools are necessary for law practice and of what good lawyering is all about, as well as a vision of what role legal education should play in preparing students for the practice of law.

With regard to the vision of law practice, I think that it is a common assumption that it involves learning doctrines, rules, case holdings, drafting skills, etc. While this is part of law practice, the practice of law is tremendously varied. Some students go on to become judges and policymakers. Many will work for government, for think tanks, for public interest organizations. Many might work in house at companies, where they might also be making policy. For example, one of the most rapidly growing positions is that of privacy officer — most companies have numerous people devoted to understanding privacy law and making corporate policy with regard to privacy. In any policymaking position, knowledge of existing legal doctrine is just one part of the job. One also needs to be able to see the big picture, to make wise policy choices beyond merely complying with existing law.

Moreover, the practice of law involves many dimensions. Some students will become trial lawyers, and interdisciplinary knowledge might enhance their ability to make eloquent arguments before the jury. Literature, psychology, rhetoric, and other fields are very important for a successful career as a trial lawyer. One of the difficulties in justifying interdisciplinary legal studies is that often the materials read or studied don’t have a direct bearing on practice. So if one reads Melville or Shakespeare, or reads works of behavioral economics, psychology, or sociology, the benefit isn’t in terms of having authorities that one can cite in a brief or recite before a jury. But the exposure to these ideas, the process of reading and thinking about these works enhances one’s general store of knowledge, one’s understanding of life, and so on. This indirectly enhances one’s ability to practice law. The brilliant funeral speech of Marc Antony in Shakespeare’s Julius Ceasar is a wonderful display of rhetoric, and much can be learned from comparing it with Brutus’s speech. Behavioral economics, psychology, and cognitive science — the work of Daniel Kahneman and Amos Tversky, for example — reveals how the framing of choices can have dramatic effects on what people will choose.

Brain notes that “no convincing evidence has been provided to demonstrate that ‘interdisciplinary studies’ will help one whit in the training or performance of lawyers.” But is there a way to produce the evidence he desires? Is there a way to prove that learning history, literature, philosophy, psychology, economics, and other humanities have any value for most careers? What would be the metric by which this could be measured?

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Book Review: Harold Schechter’s The Devil’s Gentleman

devils-gentleman.gifHarold Schechter, The Devil’s Gentleman: Privilege, Poison, and the Trial that Ushered in the Twentieth Century

Ballantine Books (October 2007)

Harold Schechter, an American literature professor at CUNY, has written a gripping account of the criminal trial and appeal of Roland Molineux, a case that grabbed headlines throughout the late 1890s. His book, The Devil’s Gentleman: Privilege, Poison, and the Trial that Ushered in the Twentieth Century (2007) is a page-turner, and it reads almost like a novel.

Roland Molineux, the son of a revered Civil War general, was accused of an elaborate scheme of sending medicines and potions containing cyanide in order to kill two men. One was his friend whom Molineux wanted out of the picture because he was having an affair with the woman Molineux had his sights on marrying. The other was the director of an athletic club to which Molineux belonged and whom Molineux hated. The result was two murders, one of which involved an unintended victim. Oddly, anonymously sending potions or food laced with poison in the mail was an effective way to kill at that time. People apparently thought nothing of ingesting things that were sent to them anonymously. Poison was a popular murder instrument at the time, and people viewed poisoning as an especially sinister and “unmanly” way to kill. And one could readily be poisoned not through any nefarious scheme, but by the medicines at the time, some of which contained cyanide and arsenic. The cure was often more deadly than the disease.

The book focuses considerably on the role that the media played in the justice system. The media in the latter half of the Nineteenth Century was rabidly sensationalistic. The rise of “Yellow Journalism” was one of the factors that prompted Samuel Warren and Louis Brandeis to write their famous article, The Right to Privacy in 1890. Yellow Journalism emerged as Joseph Pulitzer and William Randolph Hearst transformed the newspaper business, from small circulations and weak profits (sometimes even losses), to a booming success. In two years, for example, Pulitzer increased the circulation of the New York World from under 12,000 a day to 150,000 a day:

The very look of the paper underwent a radical alternation. Headlines now stretched over several columns or were splashed across the entire top of the page. And there were cartoons, caricatures, lurid illustrations, and other voyeuristic visual aids. Not only were grisly murders reported in graphic detail; they were diagrammed so that readers could picture the horrors more clearly. (p. 98)

The newspapers conducted their own investigations into criminal cases, interviewing witnesses, tracing leads, shadowing the police. In one instance, a newspaper even funded an investigation. The police needed to go through 50,000 sales slips at a pharmacy, and “they would have had an impossible time of it, since orders were full of Latin medical terms and abbreviations. Only people with pharmaceutical training could accomplish the task.” The pharmaceutical supply company “couldn’t afford to loan [its clerks with the requisite training] out for an indefinite period of time.” Enter the media:

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Humanities Hobbled by Copyright Law

While scientists are pioneering exciting new modes of cooperation, humanities scholars are increasingly tripped up by an archaic copyright system. Great schools of the recent past may be doomed to an ownership pattern fractionated enough to frustrate even the most persistent assembler. Mark Bauerlein describes one editor’s struggle to put together an anthology of the “New Critics:”

New Criticism will carry on only if it survives in the classroom, which is to say only if instructors have a handy anthology to assign. They’ll get it in early 2008, when Ohio University Press, in partnership with Swallow Press, issues Praising It New: The Best of the New Criticism. . . .

It almost didn’t happen. And the reason why raises broad questions about how humanities fields progress. . . .

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The Place of the Humanities in Politics and Law

I just wanted to highlight two very insightful articles on the humanities I should have read earlier. First, here’s part of the abstract of Balkin & Levinson’s Law and the Humanities: An Uneasy Relationship:

Law’s professional orientation pushes legal scholars toward prescriptivism – the demand that scholars cash out their arguments in terms of specific legal interpretations and policy proposals. These tasks push legal scholars toward technocratic forms of discourse that use the social and natural sciences more than the humanities. Whether justly or unjustly, the humanities tend to rise or fall in comparison to other disciplines to the extent that the humanities are able to help lawyers and legal scholars perform these familiar rhetorical tasks of legitimation and prescription.

Laura Kalman has observed a similar tension between advocacy and academic research in the legal academy, and I’m happy to see B&L moving the conversation forward.

Second, here is Harvey Mansfield writing in First Things on How to Understand Politics:

Politics is not an exchange between the bargaining positions of a buyer and a seller in which self-interest is clear and the result is either a sale or not, all without fuss. As it happens, self-interest does not explain even commercial transactions. That we get angry if we feel cheated, or that we succumb to the charm of salesmanship, shows that more than a small measure of ego enters into the behavior of those who pride themselves on calculation.

Self-interest, when paramount, cools you off and calms you down; thumos pumps you up and makes you hot. In politics there is bargaining, as in commerce, but with a much greater degree of self-importance. People go into politics to pick a fight, not to avoid one.

A provocative and passionate take on a subject that many have tried (and failed) to reduce to transactional logics.

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Law Talk: George R. R. Martin

gm-lochness-t.jpgIn today’s episode of Law Talk, we hear from George R. R. Martin, the prolific author of the “high fantasy” series The Song of Ice and Fire. George has also been a screenwriter and Hollywood producer, an editor, a chess tournament director, a union leader, and a volunteer media director for the Cook County Legal Assistance Foundation. As I’ve previously written, George is a leader in the movement to bring a degree of realism to fantasy, and he has been dubbed (by Time Magazine) “The American Tolkien.”

George and I talked for almost an hour, on topics ranging from the role of law in fantasy books (starting 3.5 minutes in); the limits of magic as a plot device (20 minutes in); law professor Robert Cover (22 minutes in, brought up by me, to my shame); why most fantasy novels seem to be set in merry olde england (28 minutes in); fan fiction and copyright infringement (31minutes in); how writing sci-fi is like selling music, and whether he likes Radiohead’s distribution model (35 minutes in); how to keep control over your work when it is transformed into another medium (39 minutes in); and inheritance law (toward the end).

George is a fantastically interesting, well-read, thoughtful guy, and I think you will enjoy this interview quite a bit. (If you aren’t a fan of the books, ignore my constant, irritating, references to characters you have never heard of.) Finally, if you want to learn more about George, visit his blog (which he says isn’t one) and join the hordes of folks waiting for the next installment of the series, A Dance With Dragons, to ship.

Missed the link? Here’s the interview again. Warning: it’s a big file!

You can subscribe to “Law Talk” using iTunes or Feedburner. You can also visit the “Law Talk” page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

For other posts in the “Law and Hard Fantasy” Interview Series, see:

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Introducing: The Law & “Hard Fantasy” Interview Series

Matteson-witch.jpgEarlier this summer, I wrote a post titled Fantasy’s Apocalyptic Turn, about the development of the “hard fantasy” movement in modern fiction. As I commented:

[I]t is worth briefly thinking about the relationship between epic fantasy and law. Although the legal aspects of fantasy role playing games are now well-marked out, there has been little work (outside of the Potterverse) on how fantasy authors imagine legal rules’ role in society. If epic fantasy is read largely by adolescent boys, this missing attention makes a great deal of sense. You don’t see law review articles about Maxim. But, if fantasy, or hard fantasy, has become a literature for the rest of the population, it is worth thinking about the complete and total absence of civil law in these books, and the light touch of criminal law more generally. Is it impossible to imagine lawsuits and magic coexisting in the same society?

This post got some folks blogging – in agreement and dissent.

I’m still interested in the relationship between epic fantastic fiction and law, and I realized that if I really wanted to know about how law makes it way (or doesn’t) into fantasy novels, I might as well ask some actual authors about it. So, I got in touch with a few writers who I consider to be among the best practitioners of “realistic” epic fantasy, and I’ve put questions to them. Now in doing so, I realize that I’m in danger of over-intellectualizing books that require a certain amount of suspended belief to be digested. Worse, really digging into these stories calls to mind E.B. White’s quote about frogs and humor. Indeed, as the picture to the right illustrates, law’s relationship to magic has the potential to be pretty gruesome.

But it’s worth a try. Over the next several months, I’ll be bringing you several author responses. Some terrific folks are already on board, including the reigning king of the movement, George R. R. Martin, and I’m hoping for more responses to trickle in. But our first guest is a newcomer to the genre, Pat Rothfuss, author of the new, acclaimed, novel The Name of the Wind. I’ll be posting my interview with Pat (hopefully) later on in the weekend.

(Image Source: Examination of a Witch, Thompkins H. Matteson, Wikicommons)

Larson on Legacy Preferences as Titles of Nobility

ballcrown320.jpgCarlton Larson’s article on the “Unconstitutionality of Legacy Preferences in Public School Admissions” is provocative, persuasive, and beautifully written. I read its seamless synthesis of legal history and constitutional advocacy at one sitting, and I think anyone interested in egalitarian thought would do well to consult it. As its precis states,

[The Article] sets forth a framework for building a modern jurisprudence under the Nobility Clauses and concludes that legacy preferences are blatantly inconsistent with the Constitution’s prohibition on hereditary privilege. Indeed, the closest analogues to such preferences in American law are the notorious “grandfather clauses” of the Jim Crow South, under which access to the ballot was predicated upon the status of one’s ancestors. The Article considers a variety of counterarguments supporting the practice of legacy preferences and concludes that none of them are sufficient to surmount the Nobility Clauses’ prohibition of hereditary privilege.

Larson’s piece is also impeccably timed, as controversy over admissions to elite universities heats up. Justice Talking featured a series of speakers on college admissions on last week’s podcast. As book after book reveals inequities in the system, apologists for privilege are mounting a counterattack. Larson’s article reminds us of what is at stake–no less than the egalitarian values at the core of the American Revolution’s rejection of British aristocracy.

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The Poetry of the Law

At Law Day dinners and law school commencements, judges and lawyers like to wax eloquent about the “poetry of the law.” I wonder, however, how many poems there are about specific legal rules. They do exist. As proof, I offer the following verse, which I discovered this morning, on the fellow servant rule:

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Law Talk: Oman on Civil Cases in Church Courts

Last week I attended the annual meetings of the American Society for Legal History in Tempe, Arizona. It was a great conference and compared, say, to the AALS meetings all of the presenters had clearly actually written and thought out their presentations before hopping on the plane. In this week’s episode I am broadcasting my own presentation at the conference. In early America many religious denominations tried to move civil disputes between church members into church courts, and lately I have been going through the records of Mormon church courts to see how the dealt with contract cases. As part of that research, I’ve written a paper that looks at the development of the Mormon judiciary, why Mormons sought to bring civil litigation within the church, and why they abandoned the effort around 1900. (I put up a short, preliminary version of my paper on SSRN.) My ASLH presentation shares some of my conclusions from that paper, which will be sent off to the law reviews this spring.

You can subscribe to “Law Talk” using iTunes or Feedburner. You can also visit the “Law Talk” page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.