Author: David Barnhizer

David Barnhizer is Professor Emeritus and Legal Education Strategist at Cleveland-Marshall College of Law. In his expansive career he has law degrees from Ohio State University where he graduated summa cum laude and Harvard University. He served as an Articles Editor of the Ohio State Law Journal, a Reginald Heber Smith Community Lawyer Fellow in Colorado Springs Legal Services Office, a Ford Urban Law Fellow and a Clinical Teaching Fellow in the initial development of the clinical program at Harvard Law School. He was also a Visiting Fellow and Senior Associate Research Fellow at the University of London's Institute for Advanced Legal Studies, a Visiting Professor at the Westminster University School of Law in London, and taught human rights and international environmental law in St. Petersburg, Russia. He is active in the areas of environmental law and policy and was Senior Adviser in the International Program of the Natural Resources Defense Council, a Senior Fellow for Earth Summit Watch, and General Counsel for the Shrimp Tribunal. He has served as Executive Director of The Year 2000 Committee and consulted extensively with environmental and development organizations, including the World Resources Institute, the International Institute for Environment and Development, the United Nations Development Program, the World Wildlife Fund, and the Center for Global Change. He has written numerous articles and books, including THE WARRIOR LAWYER, a legal strategy book based on the strategic principles of Sun Tzu's ART OF WAR and Musashi's BOOK OF FIVE RINGS, and has also published STRATEGIES FOR SUSTAINABLE SOCIETIES, ENVIRONMENT CLEVELAND, THE BLUES OF A REVOLUTION, STRATEGIES FOR PROTECTING HUMAN RIGHTS, AND HYPOCRISY & MYTH: THE HIDDEN ORDER OF THE RULE OF LAW.

View and download David Barnhizer's Selected Works

Apps, Artificial Intelligence, and Androids: Beyond Schumpeter’s “Creative Destruction” to “Destructive Destruction”

 

The analysis offered here is not a Neo-Luddite rage against “the machine”. As with the oft-stated reproach about paranoia, there sometimes really are situations in which people are “out to get you”. In our current situation the threat is not from people but from the convergence of a set of technological innovations that are and will increasingly have an enormous impact on the nature of work, economic and social inequality and the existence of the middle classes that are so vital to the durability of Western democracy. The fact is that developed nations’ economies such as found in Western Europe and the US are facing a convergence of technologies that ostensibly fit into Joseph Schumpeter’s idea of “creative destruction” but with the unfortunate caveat that while we are undeniably experiencing Schumpeter’s “destruction” of a generation of economic and institutional forms, for a very significant portion of our population the emerging conditions involve “destructive destruction” without the “creative” phase of economic rebirth.[1] The forces and technologies pushing us in this direction are relentless and in a globalized market economy with authority dispersed across borders with nations holding varying agendas and policy manifested in unaccountable multilateral institutions we simply lack the ability to intervene and impose limits on what is occurring even if we wanted to.

 

This discussion is only peripherally about law schools and lawyers. Those two institutions are nothing more than derivative manifestations of what is occurring in our larger systems rather than the drivers or creators of economic and political forces. As US law schools experience a dramatic downward shift in applications and enrollments, concerned and increasingly panicked law faculties at many institutions are looking in the wrong direction and at the wrong factors in trying to determine their future. This is because anyone attempting to tease out strategies by which we can adapt to economic change by designing positive plans of action based on past cycles and workplace conditions is chained to a bench in Plato’s Cave—mistaking flickering shadows for concrete reality.

 

Begin with some basic assumptions and observations about the fragile nature of our economic structures and our own lack of awareness about the conditions of work and how easily and quickly functions we take for granted can disappear, almost invisibly. People wonder where the jobs went as they pass through the self service line at their grocery, pump their own gasoline, make their air, hotel and car reservations on-line rather than through a travel agent or go through an endless series of non-human prompts on their telephones when they try to get through to “customer service”. They wonder where the jobs have gone when they pass through automated booths on turnpikes or parking facilities, or purchase tickets for events. When you enter a manufacturing plant you can sometimes marvel at how the robotic work forces construct our products with very few humans around to supervise.

 

The replacement of these relatively low level jobs has been assumed to simply be the consequence of another economic cycle in which other types of work emerge in sufficient numbers to fill the space and everyone is “happy” due to enough employment to go around. The problem with the cavalier acceptance that we are in some “business as usual” recycling of work in which new and equivalent work will automatically replace what has disappeared and that everything will return to “normal” does not apply to the conditions we are now experiencing. As discussed below, we have entered a technologically-based historical moment in which our society is seeing its middle class “hollowed out”. Some credible analysts describe what is occurring as an era in which there is a “great decoupling” between economic productivity and jobs. This “decoupling” is one in which we see economic productivity increasing while job opportunities are being reduced, including job opportunities we have come to think of as having an “upwardly mobile” quality. This is a unique economic phenomenon with serious implications for our political system as social and distributive economic inequality increases rather than keeps pace with the heightened productivity.

 

In my own field of law and law teaching, information services and software applications have radically altered the nature of law practice and will soon be impacting heavily on law teaching, not as a set of teaching and research tools but as replacement surrogates. This is because as a general rule traditional tenured law professors are far more expensive to maintain than can be achieved through alternative educational strategies. Those alternative strategies by which we educate may generate outcomes that are worse, better or the same as current tenured faculty, but nonetheless be “good enough” for what is needed and much cheaper to operate. The power of information capabilities, sophisticated analytic software, data management and interpretation and rapidity of research and communication are also transforming law practice at an even faster rate than legal education. This is most likely because there are direct economic dynamics operating in the private practice of law that punish inefficiencies and reward efficiencies. One result of heightened efficiency adaptations in private law practice is that the employment opportunities for lawyers are plummeting.

 

Although the trends have been clear for some time, law teachers are only now beginning to understand that they are about to face a downsizing and career obsolescence that will stun and possibly revolutionize a largely smug professoriate, many members of which continue to think they are in control of their destiny. University faculty working in other disciplines than law are the “canaries in the mine” and are already experiencing the “wonders” of distance learning, computer-based programmed instruction and challenges to the traditional operation of lifetime tenure. More than half of overall university faculty are not on the traditional tenure track and an enormous amount of university teaching is being done by adjunct teachers with heavy course loads and low pay or by graduate teaching assistants. In many law schools a far greater percentage than is generally understood of the teaching responsibilities in the law school curriculum has been shifted to adjunct faculty members receiving payments that are 10-15 percent per course relative to their traditional tenured counterparts and this is before we consider that they receive no pension, health care or insurance benefits.

 

Job Obsolescence and Growing Inequality

 

A key part of what is taking place is what a report in the MIT Technology Review [the MIT Report] describes as the “great decoupling” of productivity from job creation and growth, accompanied by a growing inequality of income and opportunity. In describing that report David Rotman notes that: “Erik Brynjolfsson, a professor at the MIT Sloan School of Management, and his coauthor Andrew McAfee have been arguing that advances in computer technology—from improved industrial robotics to automated translation services—are largely behind the sluggish employment growth of the last 10 to 15 years. Even more ominous for workers, the MIT academics foresee dismal prospects for many types of jobs as these powerful new technologies are increasingly adopted not only in manufacturing, clerical, and retail work but in professions such as law, financial services, education, and medicine.”[2]

 

Rotman continues: “Anecdotal evidence that digital technologies threaten jobs is, of course, everywhere. Robots and advanced automation have been common in many types of manufacturing for decades…. A less dramatic change, but one with a potentially far larger impact on employment, is taking place in clerical work and professional services. Technologies like the Web, artificial intelligence, big data, and improved analytics—all made possible by the ever increasing availability of cheap computing power and storage capacity—are automating many routine tasks. Countless traditional white-collar jobs, such as many in the post office and in customer service, have disappeared.”[3]

 

Rotman further relates that: “Brian Arthur, a visiting researcher at the Xerox Palo Alto Research Center’s intelligence systems lab and a former economics professor at Stanford University, calls it the “autonomous economy.” It’s far more subtle than the idea of robots and automation doing human jobs, he says: it involves “digital processes talking to other digital processes and creating new processes,” enabling us to do many things with fewer people and making yet other human jobs obsolete.” [4]

 

An intriguing aspect of the introduction of smart phones, texting, sites such as Facebook, and our incredibly expanded reliance on communication through electronic media rather than face-to-face interaction is that a fear has been voiced that our new generation of “technophobes” prefer such modes of behavior and are happy to avoid the rigors of direct human communication. This has significant implications not only for the legal profession in which much of its “value added” nature is presumably based on a lawyer’s interpersonal communications ability but also suggests that individuals most comfortable and skilled with communicating, obtaining information and knowledge, and using the power of the communications and research technologies provided by the Internet will have little difficulty with and no resistance to obtaining their legal advice and legal services through such sources wherever those sources are located. This has incredible implications for the private practice of law and many of those implications are negative for lawyers. An interesting commentary on the fact that people appear to be increasingly comfortable with communicating with robots rather than flesh-and-blood people, assuming we could include lawyers in the latter group, is suggested in “Life with robots: what people enjoy most is avoiding human contact”. [5]

 

As an example of the potential for widespread “job obsolescence” in the legal profession, and therefore the law schools that purport to prepare their graduates for careers in that profession, consider how discovery worked several decades ago and what now occurs through the use of “E-Discovery”. The implications for law firms (and their clients) are significant because the business model of law firms traditionally and particularly the larger ones, has been to “throw” a horde of young lawyers at massive discovery at significant hourly rates. Such actions have been the “bread and butter” helping to fund a large part of the firms’ budgets.

 

Technology has altered that business model dramatically in ways that are great for clients but bad for law firms’ “bottom lines”. For example: “When five television studios became entangled in a Justice Department antitrust lawsuit against CBS, the cost was immense. As part of the obscure task of “discovery” — providing documents relevant to a lawsuit — the studios examined six million documents at a cost of more than $2.2 million, much of it to pay for a platoon of lawyers and paralegals who worked for months at high hourly rates. But that was in 1978. Now, thanks to advances in artificial intelligence, “e-discovery” software can analyze documents in a fraction of the time for a fraction of the cost. In January, for example, Blackstone Discovery of Palo Alto, Calif., helped analyze 1.5 million documents for less than $100,000.[6]

 

The implications are clear even if the specific job shifts, concentrations and losses are unknown. And E-Discovery efficiencies and methods are the easiest part of the ongoing changes in the nature of work in law and many other fields. One innovator whose company is involved in developing technologies that make the practice of law more efficient by being able to do more with less and at a lower cost has said that: “Quantifying the employment impact of these new technologies is difficult. Mike Lynch, the founder of Autonomy, is convinced that “legal is a sector that will likely employ fewer, not more, people in the U.S. in the future.” He estimated that the shift from manual document discovery to e-discovery would lead to a manpower reduction in which one lawyer would suffice for work that once required 500 and that the newest generation of software, which can detect duplicates and find clusters of important documents on a particular topic, could cut the head count by another 50 percent.” [7]

 

Too Little, Too Late

 

At least as it has been to this point, I don’t think any job is better than that of the American law professor. During my career as a law professor, consultant, environmentalist and activist I have had the fantastic opportunity to work with highly knowledgeable analysts in such varied locations as the Congressional Research Service, the US government’s Office of Technology Assessment, the State Department, the President’s Council on Environmental Quality, several Congressional sub-committees, the World Bank, the United Nations Development Agency and the UN’s Food and Agriculture Organization, as well as a variety of environmental organizations like the World Wildlife Fund, the Year 2000 Committee, and the Natural Resources Defense Council. This experience also included a wide variety of projects, including serving as Rapporteur for a US House of Representatives Committee on Energy & Commerce workshop on Foresight Capability related to taking effective strategic action at a point it could make a difference, and a fascinating experience working as a Special Consultant on futures issues within an agency of the Mongolian government concerned with sound business development in that nation. The experiences included service as a corporate director, board member and president of an exceptional performing arts center, consultant to a major oil company, and as a corporate general counsel as well as a wonderful time as a Legal Services lawyer at the start of my legal career.

 

One “take away” from these diverse experiences and others in which I was involved is that governments and people with power almost never take effective action aimed at resolving problems or seizing opportunities at a point it could make a difference. This includes many corporations as I quickly discovered while working with a friend from the International Institute for Environment and Development (IIED) doing research for the Council on Environmental Quality on business decision making and companies’ recognition of the seriousness of the issues discussed in the CEQ’s Global 2000 Report to the President. It is not at all surprising that many businesses go bankrupt or muddle around until they are consumed by more alert and aggressive entities that are paying attention to unfolding trends.

 

In virtually any area of concern whether business, government or education, there is typically a great deal of analysis and voluminous written reports by “experts” offering a variety of suggestions. But in nearly all situations the existing power and reward systems deflect changes that might provide effective solutions. The problem is that real change suffers from the “sin” of impinging on vested interests and careers, not only of the people within a specific organization but those with which they have formed relationships. I remember interviewing the Vice President for Strategic Planning of one of America’s largest companies shortly after sitting down with the company’s internal corporate group tasked with identifying and producing ideas for effective action. The group’s leaders described their productivity in glowing terms and much of it made sense. When we asked in private how he worked with that group, the VP in overall charge of the process responded, “Which? Oh, you mean those guys who write the reports? I try to read them sometimes but frankly we have other priorities.”

 

This mindset is not at all unusual. Our institutions—government, business and education—are nearly always “behind the curve” in relation to dealing with conditions that require effective solutions, in part because we really do tend to “play it safe” and “think inside the box” and also because we intuitively understand that change imposes new responsibilities that force us to alter our behavior. The result is tremendous waste, inefficiency, lack of honest dialogue, lost opportunities and continuing negative conditions that harm large amounts of people.

 

This means that given the nature of governmental and political decision making, it is close to inevitable that steps are only taken when a situation has become a serious crisis. The irony is that law professors comprise a unique political subsystem of their own, one that is filled with privilege and a lack of accountability. Law faculty individually and collectively typically claim the power of “Faculty Governance” and insist they be in control of the decisions about the curriculum and mission of their law schools. Law faculty members operate as a political collective and, unfortunately, even though their rhetoric is occasionally eloquent this means they are making choices based almost entirely on self-interest and preservation of the arrangements to which they feel entitled. What government and political actors (including law faculties) do is generally classifiable under the “too little too late” category of action whereby our “leaders” pontificate to appear forceful and “leader-like” even though they ignore reality or lack the political will to take the kinds of strategic steps that would make a positive difference at the point where intelligent and focused action could have made a difference.

 

A Digression about Law Schools

 

As stated above, I see law schools as almost uniformly fitting into the “too little too late” category. There is a great deal of meaningless talk but very little effective action except for that which is being driven by falling enrollments and shrinking revenues—problems unfortunately being addressed by admitting lesser qualified applicants or even clearly unqualified applicants to shore up revenues. This is entirely unsurprising for several reasons. One involves the conditions of tenure. This offers what is generally considered to be a lifetime employment guarantee accompanied by very pleasant conditions of employment, status, numerous perks and a substantial salary. No one in his or her right mind walks away from such a situation willingly. This becomes even more unlikely when we take into account that there is a shrinking employment market in the legal profession and scant likelihood that law professors could obtain equivalent employment positions in the upper echelons of a profession that is undergoing fundamental change and restructuring.

 

The combination of the job expectations of tenured academics, the lower stresses involved in academia relative to law practice and the fact that law professors no longer can have a realistic expectation that they can easily shift to quality positions in law firms make it extremely unlikely that the collective represented by members of a law faculty will be persuaded to voluntarily make critical changes in their employment environment. It also has made it inevitable that to pursue change most law faculty members had to be pretty much “hit upside the head” by plummeting enrollments, reduced applications in numbers and quality, dropping revenues, eliminated perks, unhappy universities forced to subsidize law schools that had previously been significant sources of revenues, and increasingly bitter graduates burdened by significant debts who can either not find a “law job” or a position that allows a living wage plus debt repayment. Law faculties ignored for several decades the fact that law schools were graduating too many lawyers relative to employment opportunities, and continually raised tuition levels for law students because Federal loan rules allow graduate students to “max out” on loans and this made it possible to steadily increase faculty salaries and perks.

 

Law Schools and Lawyers Reflect and Are Shaped by the Economic and Social System, Not Vice Versa

 

The message running through this analysis is that what happens with law schools and the legal profession cannot be separated from the conditions and transformations taking place in overall economic contexts. These include the amorphous “global” situation and transnational, national, regional, sub-regional, state and local economic situations. Each of these contexts relates to issues of job creation and destruction as well as the movement of labor and populations in search of better lives. But each context also has its own set of specific characteristics that dictate not only what consequences are likely to occur but involves the issue of whether decision makers and workers most affected by the rapidly changing conditions possess the leverage, authority, insight, knowledge and skills required to deflect the worst consequences of the unfolding changes, or take advantage of the opportunities created by transformational shifts.

 

The alternative for some law schools, law firms and numerous other institutional actors is to wither and even collapse in the face of altered competitive conditions over which they have little or no control or that they have ignored to the point it is too late to take effective action. Much of the power behind the changes is being generated by the convergence of a set of key technological developments the expansion of which into our production and educational systems cannot be avoided. Some of those are discussed immediately below.

 

The Convergence of Transformative Elements

 

Entrepreneur Richard Waters has suggested that we are only at the beginning of the transformation and that we make a mistake if we see computers and information systems as just another tool. Another innovator in the AI field states: “Technologically, it’s a paradigm shift from putting commands into a box to a time when computers watch you and learn.” His company raised $15 million to “train computers to replace expensive white-collar workers such as financial analysts. “We don’t describe what we’re doing as AI — we call it, ‘automating human-intensive knowledge work’,” he says.… Probabilistic techniques are used to “train” machines as they churn through the data, until they are able to see patterns and reach conclusions that were not programmed in at the outset.”[8]

 

Taken together this convergence (already partially manifest) will have devastating effects on the nature of work and the number and quality of available jobs. Nor will those affected be on only one level of work as opposed to multiple levels of employment. As lawyers and recent law graduates have discovered, the “winds of change” are blowing through the economic system in ways that are eliminating work opportunities from the most “intellectual” activity to the most basic areas of services and labor. Nothing is sacrosanct. Given that many employment levels will be eliminated or shrunken dramatically without a “creative” substitute for what has been destroyed, the consequences of this technological convergence for businesses, governments, social programs, educational institutions and other areas of concern will be profound. One effect will be that our political, educational and economic systems will be altered in unpredictable ways due to growing income inequality, the continuing loss of the middle class, and the growing need for income redistribution to those pushed out of work because their jobs no longer exist.

 

Five Key Elements of the “Convergence”

 

Stated with a broad brush, the primary developments funneling into this already unfolding “convergence” include the following.

 

  1. The Labor Saving and Efficiency Multiplying growth of information creation, storage, communication, sharing and application systems made possible through computers, the Internet and the rise of incredibly large and powerful companies such as Google, Apple and Amazon.
  2. The emergence of Sophisticated Software Applications that make it possible to reduce or eliminate many of the functions of millions of jobs in numerous industries. This includes not only lower level positions such as bank tellers, store check out workers, receptionists, gas station attendants, toll booth collectors, etc. but increasingly is eliminating higher level employment niches in accounting, medicine, law support, journalism, finance and securities, real estate and insurance. In areas such as tax, worker’s compensation, real estate, estate planning, auditing, legal writing and more, consider what effects this will have for lawyers, paralegals, CPAs, real estate and insurance agents, etc.
  3. The Software Evolution is also making it possible for non-specialists seeking knowledge in an area of need to access the “mysteries” of formerly arcane disciplines so that they can have insight into matters about which they formerly sought assistance. Their knowledge may be imperfect or “spot on” but the reality is that the behavior is occurring and we are becoming a nation of “pseudo-experts”. As I write this little essay, Harvard has just announced a project in which it will put all judicial decisions on the Internet and grant free access. The Internet already has numerous legal materials available and this phenomenon will only increase in scale, quality and diversity of information. Coupled with interpretive software applications many citizens will have unprecedented access to law in an array of forms.
  4. Robotic Systems have been replacing human workers for decades, but the movement is accelerating due to the globalization of labor and, as indicated above, the incredible developments in information, software and design.   An extremely important factor in what will occur is the emergence of an innovative cadre of technological specialists who are designing systems daily that heretofore were the “stuff” of science fiction. The development of this pool of innovative, savvy, brilliant and even seemingly “off-the-wall” designers is taking the “possible” into realms that we could not anticipate even a few years ago.
  5. Artificial Intelligence (AI) has been declared by physicist Stephen Hawking, who is probably not the dumbest man on Earth, as a fundamental threat to human survival. Even a casual observer of the developments in the AI field can understand the negative potential of the technology after watching movies like 2001 and War Games (Just kidding). But even if AI does not destroy or enslave humans in the physical sense after deciding that biological humans are some kind of destructive planetary disease, Artificial Intelligence will inevitably replace numerous categories of employment even at the highest levels of our current activity. Some of this is already occurring in medicine, journalism and finance. But the speed and sophistication of AI is not only exciting if you are a SciFi devotee such as myself, but frightening when we consider the technology’s implications. And here I am not even bringing in the issue of AI implants in humans as super-capable Androids some are speculating as being possible in the near rather than distant future.

 

Let’s Talk Worst Case Scenario for Law Schools and Lawyers

 

Since I am posting this on a law school blog (LawNext) I will use what is happening in the two-faceted system represented by law schools and the legal profession as one example. For law school pundits seeking to interpret the nature, extent and duration of the “crisis” in legal education and employment, many are looking at month-by-month or even week-by-week snippets to try to explain where legal jobs are heading. At one moment the trend is up and another down.

 

The problem with relying on piecemeal short-term data sets to project future reality is that the dynamics of what is going on are far more “macro” than “micro”.  For the purposes of this discussion it is vital that we understand the dynamics are also dependent on the impacts of developing technological and organizational forces such as described above rather than the past conditions and organizational structures of economic, educational and political forms. Once we take the powerful and interactive set of macro-forces into account the “past is gone” and the future is bleak for many sectors of work and education. As suggested, the situation goes far beyond law schools and lawyers. It will in fact be determinative of the composition of a wide range of socio-economic classes as they are transformed through the restructuring of work and the loss of jobs.

 

What I am talking about is not the absolute replacement of the “human factor” in the legal profession but the effects of the technological developments on the nature and number of law jobs.  It is also that a limited number of entrepreneurial and innovative lawyers will apply the technology and software to create what I guess can be called “virtual” or even “android” law practices that can attract and handle far more clients, at lower rates, and with far fewer lawyers. The lawyer becomes overseer and facilitator and manager. But the tools available allow for lower costs and less labor in the form of a reduced need for lawyers. My point is that “a” lawyer will be able to use these new capabilities to replace the need for other lawyers.  I am speaking to the future of law jobs in relation to labor savings devices and technologies, not about the disappearance of specific functions.  The mantra is “More with Less” and at lower cost.

 

Part of what is occurring and will become much greater is that there will be an increase in what might be thought of as “gray market” systems that use the enhanced software to provide common legal services and in doing so impact heavily on lawyers who rely on contracts, real estate, insurance, divorce and so forth as their bread-and-butter. Along with this is likely to come the Walmart-type commercialization and mass production of basic legal services in which (as is already occurring in Canada) the large chain offers legal services on-site in specific high volume areas of legal service. The commercial “scaling up” of legal services backed by efficient large commercial entities will in many situations devastate the solo and small generalist types of law practices. In the US, since a significant proportion of new law graduates have been going into solo law practices, often out of necessity due to the lack of other job prospects, this approach would prove devastating for many “solos”. Even outside of the “for profit” type model, there are lots of legal apps being developed in an attempt to fill the “justice gap.”  These will end up adapted to some for-profit settings and who knows what will result at that point.

 

“Good enough” will be OK. The ultimate use of the AI power and advanced software applications that can do amazing things far more rapidly than humans will not be determined solely by such technological capabilities capabilities but by the pressure by firms and other economic actors directed at the system’s needing to accept the products as surrogates for the traditional material or way of doing things.  For example, it isn’t that people enjoy having to go through endless computer generated on-line and telephonic options when dealing with businesses and governmental agencies. Such systems are not “better” than direct human-to-human interaction but companies save a great deal of money by substituting these technological options for real people.  That is the key consideration here.

 

On the other hand we should not glorify current legal service as provided by the legal profession as being uniformly excellent or even good. There are many contexts in which lawyers perform ineptly, are negligent, “churn” cases to maximize revenues or offer subpar representation. This means that the technology-driven and AI capabilities—coupled with different kinds of business forms able to improve the economies of scale of legal work and offer lower prices—are likely to provide equal or superior quality of work at lower costs than can be found by clients in many current situations.[9]

 

Income Inequality Is Going to Get Worse Rather than Better: The “Great Decoupling” of Economic Productivity and Job Creation

 

For those concerned with things such as the growth in income inequality, the message is that inequality is about to get worse rather than better. Not only is it going to get worse in Western Europe and the US, one consequence is that we can expect a continuing reduction in the size of the middle class as well as a large-scale expansion in the proportion of our population that is dependent on public services and support. One researcher has referred to this as a “hollowing out” of the American middle class with profound implications for policy choices on numerous levels. David Autor, an economics professor at the Massachusetts Institute of Technology, says the United States economy is being “hollowed out.” “New jobs, he says, are coming at the bottom of the economic pyramid, jobs in the middle are being lost to automation and outsourcing, and now job growth at the top is slowing because of automation. … Nowhere are these advances clearer than in the legal world.”[10]

 

Although it most likely cost him the 2012 presidential election Mitt Romney’s “47%” warning about the proportion of people in the US who pay no income tax was not shown to be inaccurate. Given what is going on in the economic sectors affected by the technological events described above the portion of the population whose financial support and benefits are provided by a smaller and smaller working population is going to get worse. The MIT Report by David Rotman on Brynjolfsson’s and McAfee’s work described what is occurring as informational technologies and software further penetrate our economic system as a “great decoupling” in which productivity continues to grow but employment opportunities decline in a negative dynamic that has no historical equivalent.

 

The MIT Report presents an analysis that is frightening when we truly work through its implications. David Rotman explains: “Brynjolfsson and McAfee describe what they see happening. “[B]eginning in 2000, the lines diverge; productivity continues to rise robustly, but employment suddenly wilts. By 2011, a significant gap appears between the two lines, showing economic growth with no parallel increase in job creation. Brynjolfsson and McAfee call it the “great decoupling.” And Brynjolfsson says he is confident that technology is behind both the healthy growth in productivity and the weak growth in jobs.” [11]

 

A strong middle class is central to a healthy democracy. The “decoupling” also means that many of the kinds of jobs that sustained our middle class at a substantial level in ways that were core to social mobility in the American democracy are disappearing and greater economic benefits flow to a socio-economically “upper class”. Brynjolfsson and McAfee “believe that rapid technological change has been destroying jobs faster than it is creating them, contributing to the stagnation of median income and the growth of inequality in the United States.” [12]

 

A socially disruptive result is expansion in the proportion of the American population that is not working at all, is under-employed or increasingly lacks the knowledge and skills needed to function in the new economy in which competition for available jobs has intensified. This has profound implications for the health of any reasonably democratic system. One of the most important problems associated with this is that those who are working and making a reasonable income will be required more and more to contribute to the welfare of the unemployed, the unemployable and the underemployed. Increased social tensions and an ineffective political system will increase dramatically. As to the upper income levels, the “One Percent” will quickly become the “Two Percent” and soon after that the “Five or Ten Percent” because a major segment of the population will demand support and politicians will continue to pander to those demands.

 

One almost certain element of this shift will be fewer applicants for enrollment in institutions such as law schools, at least in their traditional formats. The reputationally-rich “elite” law schools such as Harvard and Yale will be fine but many others are in trouble. Although law schools are not even the primary focus of my analysis as opposed to the overall health of our social and political system, this transition will be accompanied by a continuing reduction in the employment prospects for the traditionally (and expensively) educated crops of new law graduates. Under the “too little, too late” heading mentioned above, curricular tinkering or even significant alterations will not make much difference in a context where there are increasingly limited employment opportunities. Part of the shrinking employment opportunities phenomenon is the simple fact that the ordinary lawyer can now do so much more with less. A result is that fewer backup services of a labor-intensive nature are required to practice law in terms of paralegals, lawyer assistants, researchers, secretaries and office managers, “gofers”, court personnel and so forth. This will get much worse.

 

For some lawyers in smaller or solo practices the developments are not all bad. The new technologies can produce a much better economy of scale that allows more to be done with less and at lower cost. This simultaneously generates an efficiency multiplier for some lawyers while reducing the need for support services, including hiring new law graduates because you can now do in an instant what used to take considerable time. What was law practice on a “shoestring” can now be a carefully designed professional practice entity that supplies all essential resources and services to clients. But, once again, there are positive and negative effects based on who you are and what you are doing. It is presumably a positive development for clients who we can hope are charged lower fees due to the efficiency gains. It is a positive development for solo and small-scale law practices that gain greater economies of scale due to the technologies.

 

It is, however, a negative situation for many new law graduates because much of what they have had to offer in the traditional sense is no longer needed. It is a negative development for law schools that do not make significant adaptations to accommodate the reality because we will need far fewer lawyers to serve the existing pool of clientele in need of legal services and able to pay for those services. The same phenomenon will impact on a wide variety of work activities. To the extent the new efficiencies result in a reduced cost structure for clients one potentially positive outcome may be to draw a previously underserved class of clients into play and expand the pool available to lawyers.

 

Inequality, Merit and the Development of a Lumpenproletariat

 

In speaking about the imperfections of a democratic system of government over time, Aristotle observed that the ultimate defect of a democracy was that the majority would redirect the system’s resources for their own benefit and that those who demonstrated “merit” greater than the norm would be objects of scorn and jealousy to the point of ostracism. His point was that we all have a strong tendency to prefer and support actions that benefit us. Without attempting to seem Malthusian, we face an out-of-control set of developments that appear irresistible. These developments will significantly increase the numbers of unemployed, partially employed and unemployable segments of our populations.

 

This does not mean that the emergent lumpenproletariat will go “quietly into the night” nor that all or even the majority of the economically dispossessed are fairly fit into that Marxian category. We will see heightened demands and impacts on available resources and insistence that the political system provide support in the form of increased entitlements. In many instances this will be a permanent shift and an increasingly expensive and insoluble problem as costs grow and resources from labor “thin out”. It also represents a form of deliberately designed class warfare. Rather than try to deal with the challenge our “leaders” define it as one in which the solution is the continual expansion of social benefits to classes of Americans who include the permanently unemployed, the unemployable, the previously productive and the non-productive.

 

This “solution” that will be almost automatically sought to deal with the challenge of rising inequality is already reflected in the calls for increased taxes on the “One Percent”. This associates with the almost lunatic demands for the elimination of “income inequality” to the point of equivalence. These are among the signs that we are entering a phase in which the moderately productive, the less productive and the non-productive are flexing their political “muscle” in the form of voting for so-called “leaders” who promise to enact laws redirecting resources to them and away from those who actually created the economic opportunities sustaining the system. One inevitable outcome will be a form of “class warfare” in which politicians seek to gain and maintain power by pitting one group against another.

 

The intensification of some form of class warfare seems inevitable because a problem all human communities have is that even though there is a link between justice, desert and merit, we are generally very inept in determining what constitutes merit. This means that even though there is a clear logic in the social formula that one should be rewarded in accordance with the quality of his or her contribution, that logic always falls victim to individual and interest group selfishness to the point of preventing fair distributions of social goods. At the base of the issue is that there is no consensual “fair” or agreed on conditions of individual or group merit. This is caused by the fact that we are invariably subjective in judging our own merit and that of the interest group to which we pledge allegiance vis-a-vis others’ individual and group merit. Part of this is that we are envious of any system that accords others more than us because if this is so they must somehow be considered more meritorious than us. Acknowledging others’ greater merit and desert is in our minds a grant of superiority over us. Few humans are willing to do this as a voluntary act.

 

What Are Some of the Most Likely Changes as Income Inequality Becomes Worse?

 

  • There will be job loss at all levels. This means that we have a tier, actually several tiers, of interest groups fighting over the distribution of available social goods and resources. Rotman states: “technological progress is eliminating the need for many types of jobs and leaving the typical worker worse off than before….“It’s the great paradox of our era,” [Brynjolfsson] says. “Productivity is at record levels, innovation has never been faster, and yet at the same time, we have a falling median income and we have fewer jobs. People are falling behind because technology is advancing so fast and our skills and organizations aren’t keeping up.” [13]

 

  • There will be a radical transformation of many economic, educational and political institutions. Many of the changes will seek to enhance the ability of institutions to compel outcomes and satisfy the demands of dominant interest groups.

 

  • We will experience growth in unemployed and unemployable in the tens of millions. These interests will offer reasons why they are entitled to support from available social resources. After all “it isn’t their fault” and in many instances this is entirely true. They did what they were told to do, “played the game” according to its rules, and are still out in the cold of unemployment and underemployment without adequate resources.

 

  • There will be a massive restructuring of our social, political, economic and educational systems. A result is the transformation of the rules by which we have defined our system.

 

  • There will be a need to provide resources for those not working. This need will increase rapidly. Our economic system is designed to think that a five percent unemployment rate is the norm due to opt outs and structural shifts. It is not prepared to accommodate a 25-30 percent level made up of those who have opted out, are unemployed and unemployable. This imposes an enormous burden on the productive capacity and distributional equality and dynamics of the system.

 

  • We will experience a radical increase in income and political inequality due to a “hollowed out” middle class. Those who have the skills to “run” the new systems will accrue most of the benefits while seeking to keep the burgeoning masses reasonably content. “Employment trends have polarized the workforce and hollowed out the middle class…. To be sure, David Autor says, computer technologies are changing the types of jobs available, and those changes “are not always for the good.” …. The result, says Autor, has been a “polarization” of the workforce and a “hollowing out” of the middle class—something that has been happening in numerous industrialized countries for the last several decades.”[14]

 

  • Artificial intelligence will transform businesses and the work that people do. Process work, customer work and vast swathes of middle management will simply disappear, [the report ‘Fast Forward 2030: The Future of Work and the Workplace’] said. [One key conclusion is that] “Nearly 50 per cent of occupations today will no longer exist in 2025. New jobs will require creative intelligence, social and emotional intelligence and ability to leverage artificial intelligence…. “The next 15 years will see a revolution in how we work, and a corresponding revolution will necessarily take place on how we plan and think about workplaces.”…. By 2030, a majority of real estate transactions may be made online. And most of them will be made using real time marketplaces, the report noted.”[15]

 

  • There will be increased impacts on communications freedoms so that the governing systems in control of numerous nations are unchallenged. Although it is hard for an American to realize, most countries do not share our traditions of free speech and in fact do not want speech freedom. For them the power of the Internet is troubling and frightening. We have already seen this in terms of Russian and Chinese demands to have greater control of the Internet as well as the United Nations trying to get in on the action.

 

Jeffrey Rattikin suggested five years ago in the “Current State of the Online Legal Services Industry” that online legal sites can be listed in five categories.[16] This analysis was done in 2010 and the sophistication and scope of the effort has grown.

 

1.     Online Legal Form Libraries. “In the last few years, a number of online legal form libraries have emerged, whose forms are available for direct download and use by the consumer. Such sites typically offer blank form templates for use around the country, basically an online version of the self-help legal books and forms available for years at bookstores and office supply retailers.

 

2.     Computer-Generated Document Providers. One of the most significant developments in the field of online legal services has been the advent of the availability of computer-generated legal products developed for use without attorney involvement. This category of service is similar to the legal form library sites, but instead of blank form templates, the computerized document sites provide consumers with a somewhat customized agreement with all blanks filled in, based on the information provided by the consumer through an online questionnaire.

 

3.     Virtual Law Firms. A very disturbing new form of online legal services has recently been introduced, an enhanced offshoot of the computer-generated document sites. Being dubbed as “Virtual Law Firms”, these services are typically no more than backroom computerized form generators, producing legal documents generated by computer based on the consumer’s own input on online questionnaires.

 

4.     Virtual Paralegals. A few sites have sprung up which advocate the use of “personal legal services” performed online by a virtual paralegal, who offers to prepare basic documents without attorney supervision.

 

5.     E-Lawyering. While the terms associated with online legal services are still evolving, as is the industry itself, the concept of real lawyers providing actual legal services for clients utilizing an online web interface is being loosely referred to as e-lawyering.

 

6.     Online communities, blogs, and social media portals. A few lawyers have taken the static website one step further, by attracting clients through online communities, blogs, and social media portals such as LinkedIn, Twitter, Facebook and LexBlog. By providing news, information and opinions to the public through these new online channels, the e-lawyer can increase the visibility, client-awareness and perceived expertise of his or her practice.”[17]

 

An Observation

 

To the extent we can foretell what is going to happen most of my points are contained in the main text of this analysis. Outside of those comments my main observation is that outside a primary core of the most highly regarded law schools that are generally immune to the considerations described here because there will be a continuing need for some lawyers and the law schools are at the top of the reputational “food chain”, developing productive strategies that protect a law school against the effects of change is generally a “crap shoot”. At this point what is going to happen is largely outside the control of law faculties and deans. A fair number of law schools need to shut down. Although the for-profit law schools have turned out to be disgusting predators there are numerous others for which there is no real legitimacy if they try to keep functioning as law schools have traditionally done. If some have the ability and courage to “reimagine” themselves into other kinds of educational institutions then they are to be admired. Otherwise, whom are we kidding? There is no need for traditionally educated lawyers in the volume we have been turning out for decades.

 

A far more important point that we need to deal with is the fracturing and distortion of our society due to growing inequality, transformation of the nature of work, and the increasing gaps between high quality work opportunities and power and the expanding proportion of our citizenry locked into the lower ends of the socio-economic structure. This has the potential to tear our political and social systems apart.

 

[1] See Joseph Schumpeter, Capitalism, Socialism and Democracy (1942).

[2] David Rotman, “How Technology Is Destroying Jobs”, MIT Technology Review, June 12, 2013.

[3] “How Technology Is Destroying Jobs”, MIT Technology Review, id.

[4] “How Technology Is Destroying Jobs”, MIT Technology Review, id.

[5] Stuart Dredge, Guardian, November 3, 2015. http://www.theguardian.com/technology/2015/nov/03/life-with-robots-silicon-valley-robotics-social-interaction.

[6] Ramin Rahimian, “Armies of Expensive Lawyers, Replaced by Cheaper Software”, New York Times, March 4, 2011. A version of this article appeared in print on March 5, 2011, on page A1 of the New York edition.

[7] Rahimian, “Armies of Expensive Lawyers, Replaced by Cheaper Software”, New York Times, id.

[8] Richard Waters, “Investor rush to artificial intelligence is real deal”, Financial Times, January 4, 2015. http://www.ft.com/cms/s/2/019b3702-92a2-11e4-a1fd-00144feabdc0.html#ixzz3NxmiiO3Q.

[9] See, David Barnhizer, “Abandoning an “Unethical” System of Legal Ethics”, 2012 Michigan St. L. Rev.

[10] Ramin Rahimian, Armies of Expensive Lawyers, Replaced by Cheaper Software, New York Times, March 4, 2011.

[11] David Rotman, “How Technology Is Destroying Jobs”, MIT Technology Review, June 12, 2013.

[12] David Rotman, “How Technology Is Destroying Jobs”, MIT Technology Review, June 12, 2013.

[13] David Rotman, “How Technology Is Destroying Jobs”, MIT Technology Review, June 12, 2013.

[14] David Rotman, “How Technology Is Destroying Jobs”, MIT Technology Review, June 12, 2013.

[15] “Fast Forward 2030: The Future of Work and the Workplace”, http://www.cbre.com/o/international/AssetLibrary/Genesis%20Report_Exec%20Summary_1029.pdf. And http://www.business-standard.com/article/pti-stories/50-of-occupations-today-will-no-longer-exist-in-2025-report-114110701279_1.html.

[16] Jeffrey A. Rattikin, “Current State of the Online Legal Services Industry”, January 2010, http://www.texaslegaldocs.com/blog/default.aspx/Current-State-of-the-Online-Legal-Services-Industry.

[17] Jeffrey A. Rattikin, “Current State of the Online Legal Services Industry”, January 2010, http://www.texaslegaldocs.com/blog/default.aspx/Current-State-of-the-Online-Legal-Services-Industry.

 

 

The American Law School and Nine Elements of “Thinking Like a Lawyer”

 

 

 

The idea of “thinking like a lawyer” represents a form that combines strategic analysis, assessment and action. At this point my analysis takes an unusual step and seeks to enhance our understanding through use of a seemingly “exotic” framework.[1] In A Book of Five Rings, Miyamoto Musashi describes nine points a strategist must master. I have long thought these points represent the true meaning and composition of what it means when we say “thinking like a lawyer” and am offering them here as a focusing device. Musashi’s nine elements are: 1). Do not think dishonestly; 2). Become acquainted with every art; 3). Know the ways of all professions; 4). Distinguish between gain and loss in worldly transactions; 5). Develop intuitive judgment and understanding for everything; 6). The Way is in Training; 7). Perceive those things which cannot be seen; 8). Pay attention even to trifles; 9). Do nothing that is of no use.

 

These nine elements are useful as the foundation of an integrated system reflecting the lawyer’s approach to knowledge, awareness, and action. They represent the range of knowledge a lawyer needs and give meaning to the concept of “thinking like a lawyer” as not simply a technique or method but a quality that includes substance and knowledge. They offer a template for much of the knowledge and technique that we ought to be teaching in law schools. Nor is this knowledge limited to external information or hard data but includes extensive understanding of human nature and self. This strategic knowledge is gained by increasing the quality, nature and complexity of the information being processed by law students and lawyers. The elements involved in thinking like a lawyer include not only the acquisition of information but the ability to recognize and discriminate among pieces of information, set priorities about a client’s goals, discern the significance and utility of information, identify the implications of knowledge and action essential to achieve the desired goals, and learning how to take action of a kind that represents the increased likelihood of achieving the desired goals.

 

1. Do Not Think Dishonestly

 

The inherent paradox in “do not think dishonestly” is that strategy is inevitably dishonest. A lawyer’s strategy is often premised on deception, trickery, taking advantage of others, fooling people and masking your intentions. If, for example, your client gives instructions to the effect, “come back with a settlement on these terms or don’t come back,” there are important strategic constraints you don’t want your opponent to discover. Or what if your client tells you: “we can’t afford the exposure of taking this case to trial. Fifty other cases hang on the outcome of this one. We can’t afford the publicity because it would hurt our sales too much. So whatever strategy you use, I want this case settled but I don’t want to pay more than $3.5 million.” These actual positions are ones that cannot be admitted to someone with whom you are attempting to negotiate a settlement because you will lose leverage if the opponent knows your limits, authority or real goals.

 

This means that deception as to your intentions, authority and goals is an inevitable and necessary part of strategy. If your opponents are able to determine the real conditions under which you are operating they will have the knowledge needed to control you and shift the probable outcome in their favor. Access to the secret knowledge of your case gives them greater leverage. Do not think dishonestly therefore doesn’t mean you should not deceive your opponent. The key principle is don’t deceive yourself, and don’t think dishonestly. Don’t become caught up in the illusions. See clearly into things and perceive their essence. Have no illusions about yourself, people, justice, your client, or your opponent.

 

This definition of dishonesty and honesty is quite different from what we would generally consider moral or ethical. Manipulating and deceiving of other people is involved in much of what lawyers do. An ordinary person would consider this behavior dishonest, ethically questionable or amoral. The lawyer must address this dilemma because the approach clashes with our beliefs about truth, honesty and openness. This behavior must be relegated to the “arena” within which lawyers compete because while it can be troubling even then, it is morally corrosive if allowed to seep outside its legitimate context.

 

2. Become Acquainted with Every Art

 

The lawyer must learn the insights and methods of a wide range of other disciplines. The practice of law demands an understanding of humans and human nature. This includes being able to recognize what people think, know, desire, fear and want. Achieving this level of knowledge involves substantial experience as well as being able to learn from that experience. But while experience is vital so is extracting meaning from the knowledge base that humans have created throughout their history. This base is represented in our works on literature, religion, ethics, history, science, philosophy, psychology, sociology, strife, economics, and so forth. Such analyses seek to capture what humans are about and to understand the nature of the universe we inhabit and our place and responsibilities within it. These areas of knowledge are relevant to a great deal of law practice but dealt with inadequately [or not at all] in many law schools.

 

3. Know the Ways of All Professions

 

Not only is it necessary to seek voraciously after knowledge in the general sense, it is essential that the lawyer know the “ways” of all professions. This means that we should know the mission, the method, the secrets, the flaws, the assumptions, the techniques, the values of the various professions, including how they work and why. If we know this, we can identify strengths and weaknesses and be able to attack or defend critical points. Think about the importance of knowing the methods and underlying principles relied upon by economists, doctors, psychologists, statisticians, pathologists, chemists, police, etc. We must know them in order to be able to “use or abuse” them.

 

This knowledge of the ways (methods, assumptions, limits) of other professions is something we synthesize and integrate into our own knowledge base. Consider a lesson from the OJ Simpson criminal case. The trial lawyers needed to understand statistics, chemistry, forensics, medicine, DNA methodology and its limits. They also needed to know about police procedures, the psychology of spousal abuse, intricacies of human nature, and much more that was never mentioned in law school. Lawyers on each side had to master the inner details, assumptions, and outer limits of these disciplines in order to deal with witnesses, create themes and strategies, and evaluate the truth and falsity of all aspects of the case.

 

4. Distinguish Between Gain and Loss in Worldly Transactions

 

This principle has to do with being able to know the nature of what is a realistic victory. It also involves being able to discern what is valued highly enough by an opponent or even an ally that it will enhance the probability of obtaining agreement and concessions either by your offering that outcome or conversely being able to threaten what the opponent values most. While it is important to know what people value as individuals it is often even more critical to understand what they value as representative parts of institutions because institutions are powerful actors that often dictate the “marching orders” or “terms of engagement” and others, including lawyers, are instruments whose purpose is to achieve what the institutional powers desire.

 

As a lawyer you are in a competition to win and to gain advantages for your clients in worldly matters. This means you must be able to define the nature of victory in a specific situation and create strategies that help you achieve it. We are manipulating people to achieve victory and avoid loss. This is generally defined in terms of achieving tangible outcomes that are measurable in concrete terms. But understanding gain and loss is not simply an all or nothing, “in your face” zero‑sum game. Often, more can be gained by allowing opponents to share in the gains. Otherwise, the short and longer-term costs of the process can end up exceeding the gains from the financial or non‑financial perspective. Again, understanding human nature is an integral element of achieving “good” outcomes because making people feel good and allowing them to save face has a great deal to do with winning. It is relevant to winning in the specific interaction, and being able to win (even by avoiding loss) in the future by not having made enemies who are intent on revenging themselves on us or on our clients.

 

5. Develop Intuitive Judgment and Understanding for Everything

 

Not everything is neatly rational. Such things as guts, instincts, subliminal perception and the distillation of experience allow you to anticipate, recognize and react to stimuli seemingly without thought. These perceptual phenomena all describe real human abilities that operate on the edges of our conscious rationality. Being able to adapt almost instantaneously and making quick decisions are integral skills. The most effective people in terms of the ability to gain an edge and succeed in conflicts are able to make quick decisions without having to think about them on an explicit level before acting.

 

These perceptual skills can be learned—at least to some extent. A simple example of this process is a dancer beginning to learn a new dance. In the beginning the person has to go through a conscious thought process that might sound something like: “Darn, my feet are supposed to go here, and my partner over there. But we keep bumping into each other.” A dancer who has to go through a conscious mental dialogue of the kind described above has not yet mastered the intricacy of the dance. A dancer needs instantaneous recognition of cues and the ability to make virtually simultaneous reactions in time with the music. If you have to think about what is happening and how you should respond, your timing, rhythm, and positioning are already flawed. While the dancer is thinking about what he or she is going to do, the body’s movements get out of synch with the music because the timing and rhythm is off.

 

The master lawyer is like the dancer who has fully internalized his/her art form. Such a dancer knows the depth, characteristics and parameters of the stage on which he/she works. The dancer knows where others involved in the performance will be at what time. The dancer knows the lighting and music, and can feel and respond to the audience and play to that source of energy. The dancer knows the air, surrounding and underfoot, feels the time between beats, and uses the power of expression and presence. Such awareness is part of mastery, regardless of the specific discipline.

 

Whether a dancer, musician, athlete, martial arts master, or lawyer, the only way we will be able to act quickly enough is to have developed intuitive judgment for the type of situation with which we are dealing. We must have trained constantly to make quick decisions, and must “teach our bodies strategy.” The lawyer’s task is often more complex than that of dancers or musicians following a choreographed sequence or musical score which they have practiced or performed many times. Close parallels are musical jam sessions in which the musicians take inspiration from each other, improvisational theater, or the Flamenco dance form with a symbiotic relationship between dancer and guitarist and singer where each creates rhythm, tone, mood, inspiration, and variation for the other. Whether artist or lawyer, functioning on that improvisational and reactive level requires the substantial knowledge base already described as being essential to strategic mastery, but the knowledge base must be extended through experience, creativity, and a commitment to continued learning. All this is still not enough. The lawyer, like the dancer, must train continually and constantly practice, visualize, and evaluate what he/she is doing and needs to do.

 

6. The Way is in Training

 

Experience is essential to the lawyer’s development but many people don’t learn from their experience. They repeat the same mistakes again and again. Continual training is vital because you can’t learn legal strategy by only reading, talking, or thinking about strategy. You must act and apply and think about what you have done and apply it some more and evaluate what you’ve done and gain from that experience. Becoming a lawyer at the higher levels is not simply about acquiring experience but having the ability to learn from that experience. This involves a process of filtering, interpreting, critiquing and refining worked out through a constant commitment to drawing out the fullest meaning from what has occurred. You can’t learn the intricacies involved in “thinking like a lawyer” without constant practice and action, but practice itself is not enough and experience without insight is insufficient.

 

Training and intuitive judgment are intimately related. Much of your training is intended to internalize your knowledge and experience in such a way that you are able to perceive and act intuitively. Intuitive perception, judgment, and corresponding action are not entirely mysterious processes. In many ways they are learned and rational. The rationality, however, operates on more subtle levels, and with a richer complex of our intellectual and emotional resources than does conscious reason. This requires that we train ourselves to experience the reality with which we are dealing frequently enough so that we can recognize it as it unfolds and react to it intuitively in a way that seems instinctive but really isn’t. What it means is that we have already seen the situation before or something sufficiently similar that it fits closely enough into the intuitive patterns of perception we are continually creating, refining, and extending into analogous contexts.

 

The essence of effective strategic action is in being able to anticipate and then respond quickly even to the point of interrupting another person’s maneuver before it builds momentum. Becoming proficient at timing requires that you put yourself into situations where speed and intensity are heightened, and practice functioning effectively in those situations. There is no substitute for testing yourself under equivalent situations, and then evaluating why you were able to function with the proper skill and timing, or why you failed. Simulations, no matter how real they are made to seem, aren’t enough in themselves. They can help but no one can be a truly effective strategist until he or she has had the opportunity to apply his or her ability to real situations where there are serious consequences for being wrong. In the fire of battle we have only ourselves to rely on. No simulation can create the same pressures like those involved in situations where the consequences of failure or the rewards of success are real, and substantial. But simulating strategic situations is still extremely important and enables one to better evaluate strengths and weaknesses.

 

As a lawyer engaging in trials and negotiations, you strive to reach the point where you don’t have to consciously think about what you are doing. The goal is to no longer have to go through a process of conscious linear logic in which, like the beginning dancer who thinks too much you have to say, “I see that he made an offer here and I think he’s doing this, and his strategy is probably this, and so on and so forth.” By the time the lawyer has figured all that out analytically, the movement has become out‑of‑time and with a corrupted rhythm. Intuitive judgment is the key concept because the strategist must respond quickly enough to avoid loss, or to take advantage of opportunities.

 

7. Perceive Those Things that cannot be Seen

 

Related to the idea of intuitive judgment are the principles of developing understanding for everything and learning how to perceive those things that cannot be seen. Such perception is easy to describe and hard to do. When you know humans, what they value, how they act and why, and are able to function intuitively then you can see past other’s masks and illusions. When you have studied in the way required of the strategist you can perceive the structure, rhythm and timing of the strategic context. Things that confuse others will be clear to you.

 

Perception and sight are two methods of seeing. Perception is strong while sight by itself is weak because it is too specific and narrow. Sight in essence is seeing the individual trees as separate things while perception is the totality that includes the interactive ecosystem of the forest and the specific characteristics of individual trees. When you become accustomed to something on the richest levels of perception you are not limited to seeing only through the use of your eyes but perceive through the totality of your sensory and intellectual capabilities. People such as master musicians have the music score in front of their nose when they play but this does not mean that they fixate on these things specifically. It means that they can see or perceive naturally.

 

Part of the ability to “see naturally” is derived from having obtained a great deal of experience. Through the combination of experience, practice, and reflection, the lawyer develops the ability to more accurately perceive an opponent’s essence and the dynamic context of the environment within which events are taking place. Heightened levels of perception require a combination of intensity, focus, knowledge, experience, and method because the lawyer needs to hear more, understand more, and see more. It takes considerable training and commitment to achieve this kind of perception. Knowledge is essential to heightened perception because when we know the significance of things we can see them more clearly and recognize when something that ought to be present is absent. Although the logic sounds circular we don’t perceive the meaning of things because we don’t know what they mean. Once we know what things mean and what to look for, we will see them.

 

Much of the lawyer’s strategic perception is derived from understanding the special language of non‑verbal communication. Non‑verbal language involves such things as posture, how you react to stimuli, as well as how quickly or slowly you react, how and when you tilt your head, how you use your eyes, when you move back or forward, when you take notes, your nervousness and displays of anxiety, your lack of anxiety, inattention, when you underline something or take notes, and much more. Tone of voice, amount and direction of eye contact, how unsure or certain we seem when problems suddenly arise, whether we become upset or angry, and what triggers those reactions, are all part of non‑verbal language which can be perceived.

 

A skilled lawyer can read the meaning of these non‑verbal cues. This awareness is fundamental to litigation and negotiation. Many people are skilled verbal liars who are able to control the intonations of their voice and seem sincere and believable. But even if a person is adept on verbal levels of communication, they can give themselves away non‑verbally. It is more difficult to deceive people on non‑verbal levels, particularly if they are looking at you. If what is being said on the verbal level is incongruent with what you perceive on the non‑verbal level, then the incongruence can be translated into terms useful for your strategy. Is someone speaking words that communicate confidence, while the posture, position or movements of their body, or their tone of voice is signaling hesitance and fear? What does the lack of “fit” mean between verbal and non‑verbal cues, and between inconsistent non‑verbal responses?

 

Interpreting the meaning of non‑verbal language is only part of the lawyer’s task. The lawyer also uses non‑verbal language to send messages to clients, opponents, witnesses, judges, and juries. Because we tend to believe the impressions we obtained from others’ non‑verbal cues the strategist who communicates effectively on non‑verbal levels can be persuasive. This insight is also important in terms of determining the meaning of an opponent’s non‑verbal communication. All information must be cross‑checked and evaluated. Nothing can be taken as true. A lawyer is quite capable of sending false messages that are taken as being more likely true precisely because they are being transmitted on the non‑verbal level. The likely truth must be put in context, and everything an opponent does mistrusted.

 

Our ability to perceive is easily disrupted in particularly threatening, or accelerated and intense situations in which instantaneous perception and action are required. This can occur even if we are otherwise good observers in non‑threatening situations, or in contexts with evenly paced and predictable rhythms, even if they are intense. Stress and the tendency toward overreliance on a plan of action often inhibit our ability to perceive clearly. What military strategists call the “fog of war” blocks our ability to perceive accurately and prevents us from making the instantaneous decisions needed to function effectively in conflicts. A combination of stress, fear, emotion, uncertainty and chaos is generated by intense conflict, including trials and negotiations.

 

Many people function well in intense situations as long as the rhythms are predictable. But much of strategy involves surprise, and creating deliberately altered conditions by which the opponent intends to throw you off balance, and then gain an advantage when you are startled. The lawyer must anticipate the unexpected and be able to overcome being surprised. Anticipation and focus are keys to strategy. The perception of timing, rhythm and flow is essential. The strategist’s perception is a total awareness, one highly concentrated on specifics and details, while encompassing everything going on around you, within others, and within you. Trials demand a level of concentration probably not achieved in anything else a lawyer does. They involve total focus. In what seems to be a paradox, this total focus allows you to see the forest and the trees simultaneously, as well as what they have been and will become.

 

Think about Mark Fuhrman’s original testimony on cross examination in the OJ Simpson case. Given the nature of the police culture in major U.S. cities, the harshness of the task facing street cops, statements by several people about Fuhrman’s prior use of racially derogatory statements, and his request for disability retirement due to job‑related stresses produced by working in the ghettos and barrios of Los Angeles, it was pretty close to impossible that Fuhrman had never used racial epithets. His denials were not likely to be true. He and the prosecution would have been better off to have admitted on direct examination that there were occasions when he had used what has come to be referred to as the “N” word. It was easy for defense lawyers to see past the illusion because they knew his denials almost had to be false. Prosecutors apparently thought they could get away with accepting Fuhrman’s version because their prior experience in trying the average criminal case would lead them to think all they had to do was put a police officer on the stand, have him testify with the standard “copspeak” that characterizes a police witness, and that the jury would buy the story.

 

What was rarely mentioned in the various assessments of the trial was that the prosecutors were very inexperienced trial attorneys, not because of the numbers of trials they had under their belts, but because the typical criminal case is a “gimme” for the prosecution, a “slam dunk” or a “piece of cake”. Urban prosecutors rarely go up against really good, well-funded and prepared attorneys so prosecutors such as Marsha Clark and Christopher Darden may have tried and won 100 jury trials but that doesn’t matter. Their experience is roughly equivalent to Olympian Usain Bolt running 100 meters against a paraplegic. When such prosecutors with their “vast” experience have to try a case against sophisticated defense lawyers with substantial resources they often lose because they really don’t know what they are doing and the “push button” cases they typically try have not prepared them for sophisticated “combat”.

 

8. Pay Attention Even to Trifles

 

If you observe everything and make sure all your loose ends are taken care of you are far less likely to be surprised. “Trifles”, or seemingly small things, are surprisingly often pieces of the signals or data we need in order to understand what is going on. An opponent may have control of his or her illusions but there can be small, seemingly insignificant things that allow us to see the hidden truths. Remember that most of what we do as legal strategists involves reconstructing a past reality to make it seem favorable to our client’s interests. Or we are projecting a future reality (the deal) that appears to be beneficial to the negotiating parties. In either situation there is an element of illusion.

 

The problem is that it is almost impossible to make the illusion perfect. Our job is to perceive the imperfections and know what they mean. Consider the OJ Simpson criminal case again. Only a totally thorough analysis of every piece of evidence in the case revealed the tiny strands of imperfection that could be added up to create arguments of reasonable doubt. One expert witness was forced by the defense to admit a statistical error. Another noted that a video of evidence in Simpson’s home was not in the proper time sequence, suggesting something devious in the record‑keeping. In most criminal cases these details would be overlooked, as well as others that surfaced in the Simpson case concerning factors such as dryness of blood samples on swabs, defects in evidence gathering techniques, and much more. Because everything in that case was examined with intensity, it offered a paradigm of how defense counsel should approach trial evidence but rarely do. Virtually no criminal defendants have the resources needed to prepare a case with such thoroughness, nor do they have an extraordinarily cooperative judge such as Lance Ito, who essentially allowed the defense to say or do whatever they wished, often based on the most tenuous foundations.

 

9. Do Nothing that is of No Use

 

Everything you do should be for a reason that advances your case. Your opponents will be attempting to divert you into tangential activities that waste your time and resources, and keep you from focusing on how to win your case. Don’t waste time, be inefficient, dither around or fritter. You may choose to seem to be doing these things, but be sure it is only because of the impression you have chosen to make, and that there is a reason for your actions. The corollary is that the lawyer seeks to suppress the opponent’s useful actions while encouraging, provoking or allowing his or her useless actions. Of course, this simple statement belies an extremely complex process involving anticipation, recognition, assessment, judgment, decision, action and reaction. It also requires the strategist to be able to distinguish between useful and useless actions, and to react in an appropriate and timely way.

 

 

[1] For a detailed examination of Musashi’s Book of Five Rings, see, David Barnhizer, The Warrior Lawyer: Powerful Strategies for Winning Legal Battles (Bridge Street Books 1997), and Barnhizer, The Warrior Lawyer II: Using The Art of War and A Book of Five Rings to Gain Victory Through Disciplined Strategy; http://www.amazon.com/The-Warrior-Lawyer-II-Disciplined-ebook/dp/B012P1VEZG.

“Linguistic Cleansing” as Social Engineering

Peter Drucker describes what is happening as the “new realities” of an increasingly pluralist democracy. He explains that: “The new pluralism … focuses on power. It is a pluralism of single-cause, single-interest groups—the “mass movements” of small but highly disciplined minorities. Each of them tries to obtain through power what it could not obtain through numbers or through persuasion. Each is exclusively political.” [1] Forcing others to operate within their linguistic agenda and therefore being shaped into that identity construct and set of dominant values and way of perceiving the world is at the core of the strategies.

 

In the same way that a specific ethnic identity group seeks to “cleanse” a territory of other identity groups in what has come to be known as “ethnic cleansing” there are rapidly evolving language control strategies being implemented by aggressive special interests that are fairly described as “linguistic cleansing”. Even though typically couched in terms of offensiveness, insensitivity, creation of a hostile environment, phobias and bigotry or even alleged fear for one’s safety the real aim of “linguistic cleansing” is to gain power over others’ speech and re-engineer culture into a form desired by the identity group implementing the strategy. This extends to the desire to eradicate traditional modes of expression that are claimed to “insult”, offend, emotionally harm or demean.

 

This has extended even to the traditional dependence on rational thought and discourse as well as the belief that it is important to seek to come as close to the “truth” of a matter as possible. In commenting on the positions taken by some radical scholars, Martha Nussbaum suggests, for example, that: “Socratic argument is suspected … of being arrogant and elitist.… [T]he elitism is seen as that of a dominant Western intellectual tradition that has persistently marginalized outsiders. The very pretense that one is engaged in the disinterested pursuit of truth can be a handy screen for prejudice.” [2] Of course this argument can be seen as a combination of overstatement and a preemptive attempt to delegitimize critiques that might be levied against the soundness of someone’s work. The strategy is to shape thought and consciousness by controlling and restricting the use of language and acquiring power through control and suppression of discourse while silencing criticisms of analytic inadequacy.[3]

 

At this point I confess to a hatred of “hate” speech prohibitions. Such prohibitions endanger the liberty of discourse that is at the base of our democratic system. As our society becomes increasingly diverse there is a need for greater allowances on speech rather than its repression. Our growing social diversity creates more numerous factions and there is a danger in allowing any identity group to control social discourse through linguistic shaping.

 

James Madison recognized the need to balance competing interests in his analysis of factious groups. In Federalist No. 10, Madison sets out the idea of faction in the following words. “By a faction I understand a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” [4]

 

Madison goes on to describe two “cures” for faction. One is to “destroy the liberty” that allows it to bloom, the other is to give “to every citizen the same opinions, the same passions, and the same interests.”[5] Either “cure” destroys democracy. Each approach is being used in an effort to mold and limit social and political discourse. The idea is that free speech serves to protect and enrich the social community while allowing the different factions to gain at least a degree of understanding of the “other”. This presumably occurs through the education of participants, and the venting of potentially explosive internal hostilities. America is failing on both fronts.

 

Even though I have contempt for people who spew malicious bile, I also have enormous resistance for governmental and quasi-governmental intervention into that realm in any but the most serious situations of inciting and organizing for violence or serious criminal conspiracies. The upshot of the speech criminalization movement will be the further repression of critical speech. This is because, since sensitivity is a highly subjective phenomenon that is in primarily in the perception of the listener, there is a highly discretionary zone in which any reasonably intelligent speaker will look at what he or she might want to say and think that it is safer to remain silent because we have discovered that we live in a society in which someone seems to be offended or insulted by almost anything.

 

Of course part of the “rational discourse as the core of democracy” argument is obviously flawed because it is impossible to have fully rational discourse in an extremely diverse and complex community. Emotions, ignorance, bias and self-interest all erect barriers to discourse and they are barriers we seldom if ever transcend in any matter of consequence. It may be impossible to have honest discourse relating to important issues of our core social behavior and beliefs because the deep value systems upon which our individual systems of ultimate truths are grounded are not rational or even necessarily consistent with other clusters of belief containing potentially competing deep‑values. One of the hardest and most troubling questions we should try to answer is, if full and honest discourse is no longer possible do we fight to keep as close to that ideal as possible or restructure the doctrines of the community to reflect the new reality of group politics and raw identity group power? [6]

 

My position is that particularly given the increasing diversity of the American social and political communities that granting any political faction and major quasi-state institutions such as universities and large corporations the power of the State in ways that allow that special interest group to intimidate, shape and suppress speech because it subjectively offends, makes someone “feel bad”, supposedly incites others to violence, or is rude, “insensitive” (or any number of other pejorative labels) is a corruption of Western democracy.[7]   This suppression of speech movement is considerably farther along in Europe and the United Kingdom than America but the US is experiencing a rapid advance toward official speech suppression through law and bureaucracy as well as large-scale organized private group action designed to intimidate, threaten, shame and repress our willingness to engage in honest social discourse.[8]

 

The conflicts produced by the tensions of our traditional expansive doctrines involving the vital importance of free speech aimed at allowing the introduction of controversial positions in the face of the disapproval of dominant interests are forms of ordered conflict designed into our political system. This allows for the venting of hostility that—if repressed by powerful interests that disapprove of the particular position—tend to generate internal stresses that weaken the spirit of the democratic system. At a certain level of discursive rigidity, intransigent value conflicts emerge that allow for no face-saving and compromise. This renders what should be a dynamic and adaptive society brittle and fragile.

 

Hate, Bigotry and “Insensitivity”

 

Using governmental power to formally carve out “hate” offenses takes sides in the process of political discourse in ways that favor the interests of factions that have been successful in gaining the power of law to advance their agenda. The term “hate” in this context is nothing more than a propaganda tool that condemns and obstructs discourse by labeling it pejoratively. More accurately, in many instances, there is a blurring between truly irrational animosity and legitimate (or even illegitimate) criticism whereby it is convenient for interested parties to condemn anything that challenges or obstructs their agenda as “hatred” or bigotry. [9]

 

The problem is not that a limited number of expressions–the “N” word immediately comes to mind–should be used in our discourse. I consider that term an obscenity regardless of who uses it, including Americans of African ancestry. But once we move beyond that specific context the efforts to control language have spread so far into the subjective realms of special interests and identity groups that a Pandora’s Box of taboo and subjective words and phrases has been opened. That “box” is one in which anyone who claims that a word or phrase “offends” them, or in some way hurts, diminishes, insults or is simply insensitive to them or their identity group’s interests or beliefs now feels entitled to demand that others refrain from use of that language or suffer significant consequences.

 

I for one am “offended” [but no one cares] by claims that essentially say that: “all white males are the source of all evil in the world”. This seems to paint with a “slightly” too large brush. Yet some variation on this theme can be found in many places. Consider the following report by Todd Starnes, undeniably a conservative voice but that does not erase the reality of his description of the content of an official military training document. [10] Starnes reports: “A controversial 600-plus page manual used by the military to train its Equal Opportunity officers teaches that “healthy, white, heterosexual, Christian” men hold an unfair advantage over other races, and warns in great detail about a so-called “White Male Club.” “Simply put, a healthy, white, heterosexual, Christian male receives many unearned advantages of social privilege, whereas a black, homosexual, atheist female in poor health receives many unearned disadvantages of social privilege,” reads a statement in the manual created by the Defense Equal Opportunity Management Institute (DEOMI).”

 

Starnes indicates he: “obtained a copy of the manual from an Equal Opportunity officer who was disturbed by the course content and furious over the DEOMI’s reliance on the Southern Poverty Law Center for information on “extremist” groups.  “I’m participating in teaching things that are not true,” the instructor told me. He asked not to be identified because he feared reprisals. “I should not be in a position to do that,” he said. “It violates Constitutional principles, but it also violates my conscience. And I’m not going to do it – not going to do it.” DEOMI instructors were also responsible for briefings at bases around the country that falsely labeled evangelical Christians, Catholics and a number of high-profile Christian ministries as domestic hate groups.” [11]

 

I have absolutely no difficulty calling that manual a racist, bigoted, insensitive and divisive work. On an official and unofficial level it also demonstrates how the system of speech repression and identity group social engineering through language control and suppression works. On an official level the message contained in the manual has the power of the Army behind it. On the unofficial level a rational individual who is offended by the overly broad bigotry of the message also understands that to challenge it would bring immediate repercussions by members of the group that had been successful in creating and implementing the program. A result is that the person is silenced.

 

We Are Language

 

As an abstraction the assertion concerning “linguistic cleansing” and social engineering through language control might seem ephemeral. But language is an integral part of how humans function and perceive. As Rush Anshen once observed, humans do not only use language, they are language. [12] The ability to dictate and control the language that is allowed to be used is therefore the power to design not only what we say or are even able to say as particular language is erased from our culture but to define who we are, how we think and even what we are able to think about.

 

A challenge to the ability to dictate the subjective content and form of controlling and taboo language, along with an emphasis on the importance of open discourse has been argued by Daphne Patai in the context of a challenge to the frequently voiced assertion that those who are from a subordinated class have the right to use offensive speech against other dominant groups. The other side of that claim is that members of those historically dominant (or now previously dominant) groups must be condemned severely if they have ever used a disfavored term at any point in their life and in any context or culture.[13] She reports that: “[Harvey] Silverglate … rejected the arguments of critical race theorists that offensive speech uttered by historically oppressed minorities should be protected, while comparable speech by their supposed oppressors can be suppressed.”[14]

 

The Techniques of Linguistic Control

 

The “social engineering” of the human through language control is being done through a wide-ranging variety of techniques. These include outright criminalization of speech, interpretations of civil and regulatory laws consistent with the disfavored speech that consider language as a verbal act, media-driven “political correctness” in which stories are being selected and slanted to create subjective impressions, and organized strategies by aggressive special interest and identity groups. [15] A critical element in what is occurring involves the transfer to private interest groups of the subjective unilateral ability to condemn and sanction disfavored speech. This variation can be termed the “privatization” of the power of “linguistic cleansing”. This is occurring both through large-scale and coordinated use of the Internet and through special rules created by government that confer what is in essence “public” power on the groups.

 

A common tactic of the identity groups is to react venomously to any speech considered within their particular subjective perspective to be “offensive”, insulting, insensitive, or “phobic” or that simply challenges their views and agendas.[16] The quite unpleasant reality is that in many ways there is a close similarity between the practitioners of “linguistic cleansing” of the Left and Right and the behavior of fanatics. Taken together these strategies have coalesced into the large scale “privatization” of speech repression. This occurs even though much of the strategy is only made possible through use of the Internet as a vehicle functioning through public airways in much the same way as radio and television broadcasts that are subject to regulation. This Internet-based organization and vilification is done through a combination of intimidation, propaganda and “linguistic cleansing” to eliminate words, phrases and even concepts from ordinary discourse by rendering them “taboo”. [17]

 

The strategy of linguistic cleansing works by imposing social and legal punishments if taboo words, phrases are uttered or verbal acts performed. The important aspect is that this is not simply an issue of one-to-one disapproval of others’ speech as has been the situation in the past. The ability to organize, mobilize, intimidate, condemn and sanction has been changed in its fundamental character by the scale, comprehensiveness and intensity of what has come into being through the communications and organizational mechanism of the Internet. Just as so many are now recoiling from the vast expansion in surveillance powers of governments that has resulted from the combination of the Internet and information acquisition and management technologies, a shift has also occurred in the empowerment of special interest and identity groups to wield its power to intimidate and punish.

 

The fundamental issue is the shift from people having the right to say what they want, to offer opinions whether insightful or asinine, and to say things that are claimed to “insult”, “offend” or display insensitivity. The seemingly odd thing is that the move toward diversity, multiculturalism and “difference” that Europe and the US have experienced in the past several decades was claimed to be something in which new variations on traditional cultures were supposed to enrich the existing overall culture into which the “differences” were injected.[18] Diversity was not intended to be a mechanism for allowing cultural variations “veto power” over the system because they do not like how the members of that traditional culture speak. [19]

 

 

[1] Peter Drucker, The New Realities 76 (Harper & Row 1989).

[2] Martha C. Nussbaum, Cultivating Humanity: A Classical Defense of Reform in Liberal Education 19(Harvard University Press, 1997).

[3] The language used by each collective movement (and counter-movement) has been language of attack, protest and opposition. It is language as a weapon employed to gain or defend power. On this theme see, Max Lerner, Ideas Are Weapons: The History and Uses of Ideas (Transition, 1991).

[4] Federalist # 10 (November 22, 1787) The Federalist, Edited and introduced by Jacob E. Cooke (1961), at 56. Federalist # 10, id, at 58.

[5] Federalist, Id.

[6]See also Thurman W. Arnold, The Folklore of Capitalism 9-10 (1967).   He asks: “[H]ow do men actually choose … creeds? The answer is that they do not choose them. Men become bound by loyalties and enthusiasms to existing organizations. If they are successful in obtaining prestige and security from these organizations, they come to regard them as the ultimate in spiritual and moral perfection. This attitude is necessary for the morale of these institutions.”

[7] Consider the recent arrest in London of an individual under the “hate speech” laws. Hilary White, “U.S. street preacher arrested in London for saying homosexuality sinful”, LifeSiteNews, Tue Jul 09, 2013. http://www.lifesitenews.com/news/u.s.-street-preacher-arrested-in-london-for-using-homophobic-language/. Aimee Stauff, “American street preacher arrested in London for ‘hate speech’”, July 9, 2013. http://www.worldmag.com/2013/07/american_street_preacher_arrested_in_london_for_hate_speech. “According to London law, anyone who engages in homophobic speech that offends others can be arrested. After questioning the woman, police arrested Miano for breaking Public Order Act Section 5, which prohibits anyone who “uses threatening, abusive or insulting words or behavior … within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.”

[8] Leader, “Blows to democracy,” The Guardian [online], Saturday, September 17, 2005, where the argument is made that there are: “three ways fundamental democratic principles are being quite unnecessarily damaged by this week’s moves. First, free speech. Under the proposed law anyone who “glorifies, exalts or celebrates” any terrorist act committed over the past 20 years could face a sentence of up to five years. Rarely, even within notorious conspiracy legislation, has there been such a broadly drafted clause.”

[9] Jung warns: “Rational argument can be conducted with some prospect of success only so long as the emotionality of a given situation does not exceed a certain critical degree. If the affective temperature rises above this level, the possibility of reason’s having any effect ceases and its place is taken by slogans and chimerical wish-fantasies.” C.G. Jung, The Undiscovered Self 12, 13 (Mentor 1957). Translated from the German by R.F.C. Hull.

[10] See, Todd Starnes, “Pentagon training manual: white males have unfair advantages”, Todd’s American Dispatch, October 31, 2013, FoxNews.com.

[11] Starnes, id.

[12] Ruth N. Anshen, Language: An Enquiry into Its Meaning and Functions.

[13] Daphne Patai, “Within the Speech Code,” . One need only think about the history of language in the South and the effects on Paula Deen based on words used years earlier.

[14] Patai, id. A stunning variation on the theme is as follows. “In this new scholarship, factual accuracy is no longer important. Writes Stuart Alan Clarke in the Yale Journal of Law and the Humanities: “It is naive, if not disingenuous, to suggest that all that matters is the promotion of the truth.” Patricia Williams’s portrayal à clef her teaching stint at Stanford Law School is deeply distorted, according to former colleagues there—leftists all. Williams fittingly takes refuge against such charges in the shadow of Tawana Brawley: “When students . . . believed and then claimed that I had made… up [another of her personal victimization stories], they put me in a position like that of Tawana Brawley.” Indeed, Brawley, whom Williams beatifies as the patron saint of victimized black women, is the perfect symbol of the movement: as Brawley’s supporters on the radical left would have it, it didn’t matter if her story of racial brutalization wasn’t actually true, because it could have happened that way.” [emphasis added]

[15] Cynthia Crossen, Tainted Truth: The Manipulation of Fact in America (Simon & Schuster, New York, 1994). James Carville with Jeff Nussbaum, Had Enough? A Handbook for Fighting Back (Simon & Schuster, New York, 2003). Peter Wood, Diversity: The Invention of a Concept (Encounter Books, San Francisco, 2003). Joe Conason, Big Lies: The Right-Wing Propaganda Machine and How It Distorts the Truth (Thomas Dunne Books, St Martin’s Press imprint, 2003). Stanley Fish, There’s No Such Thing as Free Speech and It’s a Good Thing, Too, (Oxford University Press, New York & Oxford, 1994). Linda Kaplan Thaler and Robin Koval with Delia Marshall, BANG! Getting Your Message Heard in a Noisy World, (Doubleday, New York, 2003). Andrew P. Morrison, The Culture of Shame (Ballantine Books, New York, 1996).

[16] Gabriel Marcel warns of the improbability of having effective discourse in a politically polarized environment. “The … fanatic never sees himself as a fanatic; it is only the non-fanatic who can recognize him as a fanatic; so that when this judgment, or this accusation, is made the fanatic can always say that he is misunderstood and slandered.” Gabriel Marcel, Man Against Mass Society 136, 137 (1969).

[17] See Jacques Ellul, Propaganda 57 (1965). In Propaganda, Ellul reminds us: “A stereotype is a seeming value judgment, acquired by belonging to a group, without any intellectual labor…. The stereotype arises from feelings one has for one’s own group, or against the “out-group”. Man attaches himself passionately to the values represented by his group and rejects the cliches of the out-groups…. The stereotype, … helps man to avoid thinking, to take a personal position, to form his own opinion.”

[18] For an example of how many in Europe are reacting see, AP, “Geert Wilders to spread his anti-Muslim movement west. Dutch far-right politician forms international alliance to attempt to ban immigration from Islamic countries”, Friday, July 16, 2010, The Guardian; Kate Connolly, “Angela Merkel declares death of German multiculturalism: Chancellor’s remarks, which claimed multiculturalism had ‘failed utterly’, interpreted as a shift rightwards from previous views”, Monday, October 18 2010, The Guardian. http://www.guardian.co.uk/world/2010/oct/17/angela-merkel-germany-multiculturalism-failures. Merkel is quoted: “We kidded ourselves for a while that they [foreign Muslim guest workers] wouldn’t stay, but that’s not the reality,” she said…. “Of course the tendency had been to say, ‘let’s adopt the multicultural concept and live happily side by side, and be happy to be living with each other’. But this concept has failed, and failed utterly,” she said. See also, Jon Henley, “France prepares to expel radical Islamist leaders,” The Guardian [online], 8/2/05.

[19] On this theme see, Mathew Tempest, “Davis calls for rethink on multiculturalism,” The Guardian [online] 8/3/05; David Davis, “Why cultural tolerance cuts both ways,” opinion.telegraph (London Daily Telegraph) 8/3/05; George Jones, “Multicultural Britain is not working, says Tory chief,” news.telegraph (London Daily Telegraph) 8/3/05; “Obsessive correctness betrays all of us,” opinion.telegraph (London Daily Telegraph) 8/3/05.

 

“Professing”, Mediating and Learning by “Doing”

 

 

How to teach, what to teach, who we are teaching and why we are choosing specific materials and methods are independent considerations. To the extent that we are seeking to achieve important goals that have to do with our students’ understanding of responsibility, professionalism, skills and defense of the core institutions of justice and the Rule of Law, it is our job to be realistic while continually striving to help the students create a rich and principled system of responsibility, commitment and performance.

 

The Power of Tradition: Why Law Professors Teach as They Generally Do

 

We replicate the methods we experienced in law school because we conclude those methods “taught” us effectively due to the fact that the typical law teacher was a highly successful law student. [1] It is just as plausible a hypothesis that we succeeded in spite of those approaches that we replicate because it is all we know and we mistakenly assume “if it ain’t broke don’t fix it”. But in relation to how lawyers to whom we provided education actually perform in many of the niches of law practice the system is “broke”.

 

Although I have no desire to emulate the approach used in colleges of education, it is unfortunate that law teachers receive no preparation for what is an extremely challenging and complex task. The situation is entirely one of on-the-job training based on trial and error performances with amazingly little input from either other law faculty (who experienced the same “training” process) or anyone who could be called a professional at teaching law students. This is one of the primary differences between clinical teachers and their more traditional counterparts.

 

Although I taught a self-designed undergraduate course at the University of Colorado in Colorado Springs titled The Economics of Poverty, I began my own development as a law teacher as a clinical teaching fellow at Harvard Law School with Gary Bellow as a mentor and four other clinical fellows as part of a team. The process involved continual critique of our own and the other Fellows’ performance and focused on both classroom and individualized teaching. There were shared approaches to overarching course goals as well as the specific outcomes that we wanted to achieve in every class as well as the best ways to conduct individualized and small group teaching and learning strategies in a live client civil and criminal clinic. A vital [and ego threatening] part of the process was a willingness to be evaluated based on our effectiveness, substance and clarity in our teaching of seminars, larger classes and in the individualized sessions with our clinical students that were sometimes recorded for assessment.

 

In the process we learned how to learn from each other and communicate honestly with our students. The defensiveness and ego protections that are too common among law teachers who have not had the opportunities to go through a total immersion process of the kind we experienced disappeared early in the process. Both as teachers and neophytes we learned how to become better at what we were doing through the shared communication about success and failure, strengths and weaknesses. Added to this was a constant attempt to figure out the substantive goals and the most effective techniques for what we were doing. It was an experience that would enrich any law teacher and remains quite rare.

 

Professing

 

Law professors have rarely been trained to consider how best to teach or how to design an integrative curriculum that enhances the ability to achieve high priority educational goals. Nor have we been explicit about many of the most important educational goals and the priorities to be assigned to those ends. Like virtually any group faced with working within an institution dominated by an established way of doing things we tend to end up repeating what we experienced in law school since we not only survived but excelled in that environment.[2]   This is not surprising. Resistance to change is a basic human characteristic and is particularly applicable to the insulated and parochial academic culture.

 

“Professing” is very useful for the transmission of large amounts of information at relatively superficial levels of student understanding. But well-written books and treatises can also serve this purpose. An irony in the process of American legal education is that we describe what is done in law school courses in the first year as a form of the “Socratic method.” Socrates engaged in direct dialogue with individuals in small groups rather than “professing.” Maxine Greene writes: “In Plato’s Apology, Socrates compares himself as a teacher with a gadfly and tells the Athenian citizens that he was “always fastening upon you, arousing and persuading and reproaching you.” To remain immobile, to refuse to inquire was to be caught napping, to resist being stirred into life. But it was not enough merely to awaken: an individual had to be brought, on his own initiative, to regard virtue. He had to be stimulated to take an active role in the search for his perfection; he had to be courageous enough to turn toward the Good.”[3] This intimate Socratic form of communication was required so that the participants’ ignorance could be dispelled and wisdom sought on an individual and highly interactive basis. The object of the dialogue needed to be brought to the point of accepting his ignorance, biases and ungrounded assumptions so that true understanding became possible.

 

Professing has its own positive utilities, including information transfer and structure as well as role modeling by the teacher as effective communicator and advocate of important principles. The question, however, is when is such an educational strategy best used and when do educational goals demand the application of more individualized, smaller scale and more intimately interactive methods. I was surprised the first time I taught outside the US when teaching a course on human rights in London’s University of Westminster School of Law where I was a frequent Visiting Professor. Students did not have their own books but were expected to run around to libraries to find the assigned readings.   Books are expensive and outside the United States it is the exception rather than the rule that students purchase texts for university and law school courses. In teaching in England and Russia I supplemented some assignments with copied materials but that was quite different from the typical situation where students have to go to university libraries and read course assignments.

 

This means that I was operating in a context where it was highly questionable whether students have read the assignments prior to class or at all. That makes it unsurprising that students outside the US expect the most important material to be structured and delivered in ways that substitute for hard-to-obtain material. We are dealing with what is essentially a largely passive information transfer system in which most of the energy is generated by the teacher as performer or entertainer and the students as receptors. The format in such an environment will therefore tend to be dominated by the transfer of large amounts of information in highly structured lecture and large class modes of instruction, i.e., by professing. This represents one of the fundamental differences between American legal education and that done in other areas of university instruction, including U. S. universities that do not have to follow this approach but often do.

 

Timing Is Everything

 

In any event, the transfer of information in large bundles, with state-of-the-art expertise, and economic efficiency in terms of the number of teachers required per student are all appropriate educational elements when applied within their fields of greatest usefulness as determined by educational goals and the sophistication and experience of the participating students. I will, for example, always have very positive memories of Professor Irving Younger’s lectures on evidence and trials that I experienced at the National Institute for Trial Advocacy in Boulder, Colorado. Younger enthralled several hundred young lawyers night after night and I used the lessons learned from his lectures in my own teaching for years to come. But I and the other attendees had already graduated from law school and had at least three years of legal experience. I had represented hundreds of clients in a diverse range of cases and disputes and conducted numerous trials and other court and administrative activities. In other words, my tabula rasa was not blank, nor was those of other NITA participants.

 

This offers a critical insight into the issue of the point in time when educational experiences can be most beneficial. The Younger lectures helped a highly motivated and sophisticated group of people integrate a diverse bundle of experience at a point in time when we knew enough about what we needed to appreciate lessons from a master lecturer. Few law students possess these attributes because there are limits to the experiences they have encountered. When we seek to address the issue of the kinds of experiences law students should be provided during their current legal education aimed at obtaining a Juris Doctor degree we should simultaneously consider whether a reasonably substantial part of the solution in the areas of skills and values lies outside the schools and with the responsibility of the bench, bar and employers to create instructional mechanisms that build on the experiences and professional needs of lawyers in the first three to five years of their careers.

 

Socrates was Not a Professor

 

There is a structural deficiency in the law schools’ approach that inevitably relegates the Socratic method to achieving less than its full effect. A central deficiency involves scale. The problem is that in contrast to the Socratic ideal of personal illumination and growth the large-scale educational format used in virtually every American law school in law students’ first year of learning bears scant relationship to the method we understand to have actually been used by Socrates. The point is that while traditional methods of teaching such as powerful and/or insightful lectures to large groups have great utility in appropriate settings, they are not the exclusive or the best methodology for facilitating learning in other contexts. The listeners’ experience and ability to understand what is being said in context are important determinants of the utility of the method or mix of methods the teacher selects. Along with this goes the critical issue of timing as to when the educational experience is being offered. From the beginning of my teaching career it has struck me that large classes and lectures are not the best methods in the extremely challenging first year of a law student’s legal education, at least when they are considered to be the more or less exclusive approach. While in the abstract the traditional first year law teaching methodology might be claimed to apply the Socratic method it does so in a context foreign to the individualized and interactive Socratic culture that appears to have characterized that peripatetic teacher’s mode of instructing.

 

The First Year Is the Most Important

 

If the critical foundation of a law student’s understanding of the analytic and decision making processes said to form the basis for a lawyer’s performance are to be developed in the first year of the educational experience—and if that process requires deep immersion in the subject matter and method and frequent interaction with the “Socratic” teacher—then it is fair to conclude that the structure of the American law school is turned upside down in terms of the scale of classes in the first year compared to the upper levels. The skewed structure and sequencing of the American law school curriculum exists not to serve the best interests of the vast majority of students who enroll in law school expecting to learn the essential skills and values of lawyers but of largely esoteric law faculty who are pursuing their own preferences and agendas thinly masked by the claims to scholarship and intellectual integrity.

 

The deficiency in the typical American law school class in the first year of instruction relates to several factors. These include how the methodology is applied, the size of the class, and the continual pressures of course coverage that generate an inexorable rhythm and compelling need for the teacher to move on.   At least equally important are the infrequency of direct student participation in the interactive dialogue and the degree of vicariousness of the student experience. Even if a teacher is skilled in the Socratic technique–which can be a very interactive and dynamic device by which to facilitate learning–the large numbers of students in first year law courses means that most students are passive observers most of the time. In some classes some students are passive observers all the time and never engage with the Socratic inquisitor and facilitator. When this occurs the students are not actively engaged in the learning process even though it is this active participation that is at the center of the most effective learning.

 

The size of classes in the first year creates a critical constraint on the teacher’s ability to consistently apply active learning methods. The large class structure that still dominates the law schools was not chosen primarily for pedagogical reasons. Law schools needed to teach significant numbers of students inexpensively so that universities could make money. [4] Such economic compulsions are fully understandable and still dominate law schools. The law school structure resulted from 19th century universities’ economic desires that allowed proprietary law schools and lawyers to buy the more prestigious stamp of university legitimacy compared with proprietary schools for profit and apprenticeships. This history has little relationship to a carefully designed educational strategy.

 

The Law Teacher as a Mediator of Experience

 

I want to offer the idea that a central role of the law teacher is the “mediation of experience.”   Part of mediating experience is helping our students learn to use their experience to better function within the complex and often harsh terms of reality. But the law teacher faces an immense challenge in attempting to mediate between the terms of reality and the relative innocence of youthful or inexperienced university students who lack the kinds of real-life experiences that benefit most significantly from a skilled teacher’s mediation and guidance in ways that facilitate students’ ability to integrate, enhance and interpret the bodies of raw data generated by the experience. This difficulty is enhanced because there is difficult line between understanding reality and dealing with the cynicism of how functioning systems in the real world operate and the behaviors they demand from participants. One of the hardest parts of being a law teacher is that the legal system is so far below what we want it to be in terms of achieving justice and offering professional quality legal services that we risk becoming cynical when critiquing the conditions of that system.

 

The Special Intensity of Active Learning

 

Engagement, responsibility, and accountability for one’s decisions create a different and more richly textured learning for all participants, bringing the experience to life. It is not that transferring information to large groups of students through lectures does not offer educational utility. Nor am I saying that there is nothing learned in large first year law classes where due to the numbers of students and the compulsion of material coverage most of the students’ contact with an approach such as the Socratic dialogue is comprised of vicarious observations of others under a momentary spotlight on the “hot seat”.

 

Our tendency to use “professing” as a central pedagogical method reflects other factors than a lack of student access to material. Lecture and large class formats offer more controlled and static pedagogical contexts than exist in using more active educational methodologies such as dynamic interaction and dialogue in which we teachers may be exposed as something less than omniscient. It would probably be most educationally useful to offer the large informational classes in the second year of law school after the students have been exposed to the more intense knowledge experiences in the first part of their educational process and have learned the analytic and strategic ways in which law and its people and institutions work. The “active” teacher surrenders a degree of control and distance. This shift in control can be threatening and humbling for both teacher and student because it requires skills of adaptation, recognition and improvisational dialogue that are difficult to master.

 

One of the obstacles to real reform in legal education is the law professoriate themselves. Interactive teaching strategies are difficult, threatening and require skills of listening, perception, “thinking on your feet” and spontaneity. They also benefit from the teacher having had enough experience in the practice of law so as to bring that knowledge to bear in the context of teaching. Mastery of intensely interactive methods requires capabilities similar to improvisational theater and “stand-up comedy”. Not everyone is good at these approaches and to some extent they represent a surrender of direct control over the process of communication. The skills required are more nuanced than for the organized lecture approach to teaching that is largely transfer of information. The safer and more traditional approach is to retain control by “professing” according to a carefully prepared agenda. This leaves little opportunity for student discussion or dialogue.

 

Role-Playing, Observation and Critique

 

One useful instructional method is role-playing. It can be role-playing by the students, and I use student participation role-playing exercises quite often. But there is also law teacher role-playing and demonstration. In my Trial Advocacy and Dispute Resolution courses I often end up attempting to demonstrate appropriate ways of doing something, usually after students have sought to perform that skill themselves. This has the advantage of the students understanding that we law teachers might actually know what we are talking about. It also has the result of showing students that we are far from perfect. I have made mistakes when role-playing and students enjoy bringing that to my attention. But they learn through that process of my mistakes and successes, just as they do through a critique of their own performance and that of fellow students.

 

The methods of critique used in such activities are linked directly to the development of a deeper understanding of analytic, synthetic and strategic thought and application that are at the heart of the idea of “thinking like a lawyer.” Interactive methods of teaching are a central part of legal education aimed at allowing students to internalize the skills and understanding in an individual way. In the U.S. a central element of such courses is an intensive process of critique and analysis between teacher and student. Part of that process requires the law teacher to create the experiences and opportunities for student performance that allow for the possibility of a meaningful critique.

 

Central to the idea of critique is that our ego is exposed. In such a context the person being critiqued tends to be apprehensive and defensive. Critique aimed at enhancing self-awareness and insight is in fact far closer to a Socratic methodology than what occurs in many law school classes that purport to rely on that pedagogical strategy. For the process to be useful a trust relationship must be created between teacher and student. Often this means a one-to-one interaction in which the teacher and student are the sole participants. People communicate differently and less honestly when other people are around. There are a variety of skills involved in critique. The essence of the approach emerges from the understanding that the primary aim is for the teacher to guide the students into a path of principled commitment to living their life as the best lawyer they can be.

 

In this idea of critique, I create instruments of self-evaluation by students. Students have to perform a legal task and in advance of the performance are required to write an analysis of what they will be doing, their goals and how they plan on achieving them. That allows us to see their level of knowledge and clarity of thought prior to action. Then after they perform the task or exercise they must produce another written analysis of what happened. This helps bridge the gap between what they planned and what actually occurred. The evaluation process is sensitive, but as students develop an understanding and degree of trust with each other I can draw them into being comfortable in participating in a shared process of evaluation with other students. They learn from each other’s perspectives. We all know that it is easier to critique others than oneself. With the expanded critique we can all learn even more but it has to be done very carefully and only after a sense of teamwork has been established.

 

In addressing the need for educational reform in American legal education it is nonetheless easy to understand from a financial and staffing perspective why lectures and large classes have dominated law schools. Heavy or even exclusive reliance on this methodology was understandable and necessary in a university world where the students’ notes substituted for non-existent or extremely expensive texts. The presentation of dense masses of otherwise inaccessible knowledge through the lecture medium made complete sense as an efficient method for transmitting large amounts of data to students who otherwise lacked access to the information. The premium in such a context is automatically placed on accurate note taking with the teacher’s role being one of massive, organized information transfer. That is not a justification at this point.

 

All Things With No Teacher

 

I spoke above of the fact that the teacher inevitably creates and imposes a personalized pattern on student perception through choices of subject matter, method, classroom dynamic and role modeling behavior. In the midst of that process we must always keep in mind that our responsibility is to ensure that our students develop their own patterns and self-reliant skill sets so that they are prepared to engage in lives of effective and principled professionals. In The Warrior Lawyer I applied the strategic thought of Sun Tzu and Musashi to the conditions of American law practice.[5] The discipline of strategy provides a methodology that cuts across the barriers of compartmentalized disciplines and uses knowledge of the past and present as the foundation for determining the probabilities and risks involved in actions that still needs to be taken. It resists the confines of disciplines that define, construct and restrict the way we are taught to see the world. Such a comprehensive strategic methodology allows us to more fully comprehend our individual selves and our world. It also enables us to act more effectively in that world. For me this reflects the individual responsibility to go beyond our teachers’ limits to create our own systems and to seek to facilitate this same capability in our own students.

 

Musashi advocated the concept of “all things with no teacher” in A Book of Five Rings. The most important principle is that our overriding goal is to help students take personal responsibility for their own learning, in essence, the responsibility for creating themselves. Musashi’s vision of the best teacher was that “the teacher is as a needle, the disciple is as thread.” The teacher draws the student through the experience and is the student’s facilitator in the creation of a learning environment or “learning tapestry”. The learning environment designed and facilitated by the teacher is a critical element that makes possible the insights students take away from the experience. The fabric used for the learning process and the initial design of the tapestry are selected by the teacher and this is done by using patterns with which that person is familiar. But the teacher’s goal is that the students learn to become the artists and weavers and that they develop the skills, insights and sense of craft required to continue the professional and intellectual project on their own terms, with their values and according to their abilities and characteristics.

 

I have lived without following any particular Way. With the virtue of strategy I practice many arts and abilities–all things with no teacher.[6]

 

It is important to understand that this principle doesn’t mean the teacher is rendered obsolete. It stands for the proposition that intellectual flexibility, adaptability, and the recognition that “all roads” can lead to a productive learning experience are critical elements of the teaching method. This concept supports the goal that students must be taught to accept responsibility for their own learning throughout their life. This includes the proposition that they must seek to grow beyond the teacher in knowledge, skill, and understanding.

 

Teachers share their knowledge and in doing so also inculcate students with concepts that expand the students’ understanding. While a source of knowledge and power, this simultaneously limits students’ ability to see beyond the logic and structure of the teacher’s approach. In other words, the teacher and the material through which the educational message is implemented create a pattern that may have some generalizable meaning but is also the teacher’s individualized and structured cognitive variation on how the experience should be interpreted and understood. As students explore within this pattern they are not only empowered by the interpretation [if it is done well] but limited by the experiences created by the teacher and by the teacher’s own limitations and perspectives in how the offered knowledge, philosophy and experience is to be translated by students. This insight has had significant implications for my own work. I have sought to operate as an educational strategist who seeks to acquire and synthesize experiences that “push the envelope” of my personal and professional limits in the direction of “all things with no teacher” in my own life.

 

The driving force behind this view of pedagogic responsibility is that no one will be around to hold students’ hands after they graduate and begin law practice. While we teachers are necessary parts of the students’ developmental process we will not be around after they graduate and enter the profession. Both the quality of their professionalism as a lawyer and the need to protect their clients’ wellbeing require that students accept the responsibility of independent thinking and action. This means they must be able to apply their minds and skills to solve their clients’ problems. Otherwise they will at best be mediocre professionals and at worst betrayers of people who agree to place their fate in the lawyers’ hands.

 

 

 

 

 

 

[1] Keynes notes that academics have a tendency to become “academic scribblers” who have few original thoughts of their own after the early years of their careers. See, John Maynard Keynes, The General Theory of Employment, Interest and Money 383, 384 (Harcourt, Brace & Co. 1935). Richard Hofstadter makes much the same observation in stating that intellectuals often live off a “frozen store of ideas.” R. Hofstadter, Anti-Intellectualism in American Life (1965).

[2]One of the reasons orthodoxy possesses such power is suggested in Peter Berger, Invitation to Sociology: A Humanistic Perspective (1963). Berger observes: “[M]ost of the time we ourselves desire just that which society expects of us. We want to obey the rules. We want the parts that society has assigned to us. 93. Berger adds: “Institutions carry within them a principle of inertia, perhaps founded ultimately on the hard rock of human stupidity.” at 68.

[3] Maxine Greene, Teacher as Stranger 72 (1973).

[4] Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s (1983).

[5] David Barnhizer, The Warrior Lawyer: Powerful Strategies for Winning Legal Battles (Transnational 1997).

[6] Musashi, A Book of Five Rings.

Law Teaching and Who, What, Where, When and Why?

 

 

 

There are five simple questions that offer a focus for the analysis of what law schools try to do and what they are capable of achieving. This orientation has gained increased importance as law schools try to deal with slumping enrollments, develop strategies to attract applicants from a pool decreasing not only in absolute numbers but qualitatively, and respond to criticisms from the bench and bar that the schools are failing to educate their students adequately for their careers as lawyers. Pilfered from journalism the five questions are, who are we teaching, what are we teaching them, in what environment does our teaching take place, at what point in their development are we seeking to teach them, and why are we seeking to educate the students in relation to the specific subject matter.

 

Some of the Criticisms are Legitimate

 

The character of the core law school curriculum and its primary methods is a reflection of the fact that most law professors, particularly those of the traditional tenure-track variety, were extremely successful in their undergraduate and law school careers at engaging in a specific type of analytical subject matter manipulation where they excelled in the oral and written forms of discourse.[1] The ability to perform this task at a high level represented the primary or even the sole criterion for gauging the excellence of performance. Those most skilled in that analytical process received the greatest rewards and recognition for their successful application of the methodology. One result is that in entering academia as members of a law school faculty the most skilled in the application of that methodology have predictably felt endowed by their obvious prowess in that experience with the belief that they could teach well using the same approaches once becoming a law professor and that it represented the most effective educational strategy.

 

The virtually automatic adoption of doing “what worked for you” fails our students on several levels.   One is that it does not take into account the fact that the considerable majority of other law students even in the elite institutions where the emergent law teacher achieved great success did not excel or function on the same levels of quality. These “other” students either do not grasp material in the manner achieved by the typical law professor who ranked among the top five or ten percent of his or her class at the most highly competitive institutions or those students may need or benefit more from other methods of instruction in order to achieve the desired learning. Nor have we sought to test in any solidly empirical manner whether the methods used to teach us in our own law school careers were effective or whether better methods would have achieved even greater success.

 

The Core Methodology Relates Mainly to the Best and the Brightest

 

My premise is that there is no guarantee that earlier academic success based on excelling in test taking of a highly specialized nature such as exists in the essay examination format in law school bears any clear relationship to excellence in teaching, or excellence in the diverse abilities and skills that determine the quality of a lawyer’s performance.   Although I can’t remember who suggested the point to me, it has been argued that the pool of high achieving students admitted to such institutions as Harvard and Yale law schools would learn the material and be able to function ably as lawyers in spite of the teaching they receive. Simply put, driven, highly intelligent, organized self-starters will master the method and materials of almost anything put before them and have the ability to go beyond that material to add their own rich base, with or without the interventions of law teachers.

 

One problem is that such self-motivating and autodidactic students may at best only represent ten to twenty percent of those enrolled in American law schools. Given what appears to be a significant qualitative decline in the credentials of those now entering law schools the volume of extremely highly qualified law students may well be declining rapidly as law school classes shrink, the best and the brightest who previously pursued a law degree enroll in other types of graduate endeavors, and law schools accept applicants they would not have considered for admission as recently as four or five years ago. This has very significant implications for the activity of teaching, the legitimacy of legal education, and for the future of the legal profession—not to mention the effect on the quality of representation received by clients.

 

From the perspective of the quality of law school teaching, if ten to twenty percent of our students essentially don’t need us because they are capable of learning the essence of what we have to teach in the existing format and through the primary methodology, that still leaves eighty or ninety percent of law students who can benefit from our efforts. The problem, however, is that we have designed and implemented the law school curriculum and methodology for the limited number of students who don’t really need us all that much rather than for the vast majority who do. This latter set includes an increasing proportion of law students who need intensive educational interactions with continual feedback and critique along with students who require some form of remedial education due to deficiencies in their earlier education or reduced abilities that put their potential to offer quality service to clients in question.

 

High-Level Analytic Precision Is Vital and Desirable but Unfortunately In Short Supply

 

In writing this brief critique I am in no way demeaning the importance of high-level analytic precision. Of course it is a primary characteristic that we hope all lawyers possess. And of course we know that the quality is not distributed evenly just as no other capability of consequence is found in identical proportions in all humans. But in affirming my enormous respect for the power of intellect and clear and precise thinking I am arguing that the learning achieved by our students should not be measured only by a limited testing methodology, but by different career aims and options and other important variables. Nor are many of the tasks that a good lawyer must do effectively inevitably determined by raw analytical power.

 

It has been my experience that many students in courses involving the use of methods and material such as negotiation, strategy, counseling, dispute resolution, trial advocacy and other subject matters relating directly to the quality of law practice are able to match or surpass the performance quality achieved by students who excel in the traditional course formats. This raises a core question of whether the traditional methods and primary subject matters we concentrate on in American legal education adequately educate those aspiring to become lawyers responsible for representing a diverse range of clients across a wide spectrum of forms of law practice or whether we are preparing law students for something that is only a single element of what they will spend their lives doing in the legal profession.

 

How Should We Educate Students for the Complex Multiverse of Law Practice

 

In regard to our teaching there is no empirical proof that any connection exists between the teaching methods used and the substance of what is taught in American law schools and the quality of service, understanding of the law, and the ethical behavior of law schools’ graduates.   Our justification of the quality of our teaching and the importance of the subject matters we advance in our classes is based on assumption, tradition and anecdotal examples. We have no real idea of whether the legal curriculum is effective or whether we consistently provide a quality education through the content offered and methods used. Nor is it likely there will be an honest internal critique of the system. Since law faculty are the exclusive judges of their own performance and of the wisdom of the curricular structure and content with which they function, any assessment that does occur is likely to be self-interested and idiosyncratic rather than rigorous and objective.

 

At the heart of such issues is the extent of law schools’ responsibility concerning the educating of students whose career aims are directed toward becoming lawyers. If law schools are to be evaluated on the basis of how well they fulfill their obligations, fairness demands that those obligations be defined clearly and substantively. It is also only fair to note the limits not only about what law schools ought to do within the present structure but to be honest about the limits on what they are capable of doing given resources, student capabilities, timing of the educational input and the ability of our graduates to buffer the force of the institutions, economics and other dynamics of law practice that are in play after students graduate and enter the legal profession.

 

The Primary Problem Most Likely Lies with Lawyers, Judges, Clients and Economics  Rather than Law Schools

 

There are ways to begin the process of assessing whether legal education is being done well in terms of curriculum, method or content. We can, for example, begin by looking at the situation as one in which we perform a kind of “reverse engineering” thought experiment. We can begin by assuming that law schools are capable and also responsible for educating their students in ways that significantly increase the probability that they will be lawyers who render quality service to clients, behave ethically and in a principled way, and who honor their obligations to advance the interests of justice in the key institutions. In my own practice experience [and it is substantial and diverse] I have encountered far more bad lawyering than I would hope if the problem were as simple as one of inadequate education.

 

In this assessment “experiment” we can follow two tangents. Along one tangent we can evaluate the quality of lawyers in terms of considerations such as how well they represent clients, the extent to which lawyers can be said to be “ethical” professionals and whether lawyers—as practitioners and judges—ensure that the institutions of the justice system and the rule of law are operating fairly and with a significant degree of qualitative efficiency. The other tangent would begin by setting forth reasonable ideals of quality, ethics, professionalism and institutional behavior based on what society has a legitimate interest in relative to the profession.

 

If we assess the quality of our teaching in reference to the quality of the legal profession based on service to clients and improvement of the institutions of justice I feel comfortable stating that the quality of legal services provided too many clients is sub-standard and the inefficiency and continuing injustices produced by our key institutions remains relatively extreme. This is due to a variety of factors that to some extent includes inadequate education on the part of law schools. But the rising tide of criticisms directed at law schools about graduates who are not ready to step into law practice as fully functioning professionals in many ways simply offer a scapegoat.

 

In the midst of the discussion about law schools’ duty to better educate their students in preparing them to enter the practice of law it is my position that a substantial proportion of the lack of quality and professionalism in the legal profession has little or nothing to do with education but relates to considerations of time and economic pressures spread across the demands of providing service to a multiplicity of clients as well as the continual pressure on many lawyers to find enough paying clients to keep their practices afloat. The lack of quality and professionalism also involves institutional pressures to conform to the assembly line processes and expectations of important parts of the legal system as well as one’s employers. This includes the criminal “justice” machinery and many civil disputes and transactions. These problems are exacerbated by laziness, unprofessionalism and incompetence.[2]

 

We Are Already Teaching Skills But Are They the Right Ones and Is Anyone Listening

 

Lost in many of the discussions about producing supposedly practice ready graduates through curriculum reforms requiring such things as 6-15 hours of skills related courses is that the numerous criticisms of law schools for failing to produce practice ready graduates are occurring in a context where, for quite some time, a significant proportion of law students have already taken courses with practice components that satisfy the concept. Given the continuing criticism from the bench and bar apparently those courses are insufficient to make students practice ready.

 

For example, many law schools already require all students to take six or more hours of Legal Writing. Yet a major complaint from lawyers and judges is that graduates can’t write professionally. Similarly, numerous other courses include writing elements and paper requirements. Still, we hear that law graduates can’t write well. In addition, courses in ADR, trial and pre-trial skills, transactions, legal profession and clinics, along with wider use of simulation and problem solving methods in traditional law courses have proliferated. Yet rather than softening criticism we experience a rising sense of discord about the lack of practice ready graduates. Numerous law schools have even hired tutors to assist troubled students in their law courses as well as to assist with preparation for the bar exam.

 

My point is that there is an incredible amount of confusion and sub-textual agendas flying around here on the issue of what ought to be done during law school and what can be done with a realistic hope for the desired learning outcomes. The reality of the situation is that there are far more limits to what can be taught or learned during law school than we appear to understand. Many law courses relating to professional skills are by and large already in existence for a wide variety of students but apparently aren’t working all that well from the [self-serving] perspectives of lawyers and judges who—if we take their statements to the logical conclusion—were themselves not educated effectively or adequately and therefore presumably lack the same skills they are lamenting as missing among new graduates. We even ask, who are these ill-educated and ill-prepared people [if we accept the logic of their critiques of legal education] who are nonetheless apparently quite successful in their own legal careers to be criticizing recent law graduates who have been exposed to considerably more skills, experiential and writing instruction than past generations of law graduates.

 

Irony aside, identifying what is going on, what is realistically doable, and understanding honest solutions is not easy. As we have seen with mandated courses in professionalism and legal ethics assuming we can solve significant problems simply by adding a law school course in that area does not resolve critical concerns. I feel entirely comfortable with the conclusion that the mandated study of ethics and the legal profession has not produced more ethical lawyers. It has spawned an ethics industry, created law teaching positions, expensive textbooks, and allowed law students to pass a national ethics examination that students resent but that makes a great deal of money for the testing organization and those who author the materials students rely on in preparing for the exam. BUT all this does nothing to make lawyers more ethical because whether we talk about the effects of institutional power as described by Jacques Ellul in The Technological Society or Hermann Hesse’s Beneath the Wheel, the simple fact is that the power and operational conditions of the professional milieu determines our behavior to a degree that overwhelms educational rhetoric.

 

In conclusion, it is worthwhile considering whether law schools are largely already doing that which is possible. OR maybe law teachers whether engaged in traditional courses, skills courses using simulation methodologies, clinics, externships and legal writing courses aren’t as effective as they like to think. OR—and this is one of my favorites–maybe the complex and diverse reality of law practice transcends most of what can be done in law school. OR maybe lawyers and judges just need a scapegoat to blame for their own deficiencies and hypocrisy. OR, and this is a serious issue, maybe quite a few people being admitted to law schools aren’t that smart and lack the intellectual ability to do what really good lawyers have to do, along with the fact that quite a few lack the intense self-discipline and strong work habits required to be a good to exceptional lawyer. On this issue connected with the constant complaint about law graduates’ writing inadequacy I have always been convinced that writing and clarity of thought are closely linked. If someone can’t think with precision that person can’t communicate with precision whether in writing or orally.

 

[1] On various issues related to educational themes, see, David Barnhizer, “The Purposes and Methods of American Legal Education”, 36 Journal of the Legal Profession 1 (2012).

 

 

[2] See, e.g., Barnhizer, David R., “Golem, ‘Gollum’, Gone: The Lost Honor of the Legal Profession” (January 3, 2011). Cleveland-Marshall Legal Studies Paper No. 11-203. Available at SSRN: http://ssrn.com/abstract=1734412. See also, David Barnhizer, Abandoning an Unethical System of Legal Ethics, 2012 Michigan St. L. Rev. 271; David Barnhizer, “Profession Deleted: Using Market and Liability Forces to Regulate the Very Ordinary Business of Law Practice for Profit,” 17 Georgetown J. of Legal Ethics (2004); “Princes of Darkness and Angels of Light: The Soul of the American Lawyer,” 14 Notre Dame Journal of Law, Ethics & Public Policy 371 (2000).

 

 

Demise of the “Free-Floating” Intellectual

 

 

 

 

Commitment to the values of individual intellectual freedom and independence has been increasingly degraded. Karl Mannheim used the concept of the “free-floating” or socially disconnected intellectual during the 1920s to describe those of independent mind who possessed the courage to critique power wherever their journey led. But Russell Jacoby says that even when first written: “Mannheim’s defense of independent intellectuals earned him the ire of both left and right.” [1] Jacoby goes on to suggest that: “If Mannheim’s analysis of the “free-floating” intellectuals seemed questionable [even] in the late 1920s, eighty years later it is outright impossible. Today intellectuals are increasingly “attached,” affiliated or institutionalized. Mannheim can [therefore] be seen as the last theorist of the independent intellectuals, not the first. After Mannheim, the older vision of intellectuals as independent and rootless makes way for a view of intellectuals as dependent and connected.”[2]

 

The conflict between the five ideals of scholarship I introduced in a recent post—A Preliminary Note On Five Scholarly Ideals and continued in Red Giselle–is due to a distinction between the first three ideals, those of discovery of original knowledge, refinement of existing knowledge and objective social critique, and the individual and collective activist ideals in which the “truth” of a scholar’s proposition is largely (or entirely) accepted and the scholar often becomes part of an effort to change the reality that has been critiqued. The distinction results in a difference not simply in degree or orientation but in kind.

 

The processes of individual and collective scholarship of an activist bent–are aimed at achieving preferred outcomes in which committed university-based intellectuals ranging from traditional legal scholars to “true believers” seek to influence systemic behaviors and reshape institutions in ways they consider more fair or just. Those presenting their positions inside the systems of scholarship are aiming to “win” rather than dispassionately and objectively offering all facts and arguments that would allow an independent fact-finder to determine the argument’s actual truth. It is this commitment to “winning” that alters the nature of the scholarly enterprise.

 

A result is that we see the emergence of “cliques” of scholars. The problem at this point is that in many instances these “attached” scholars are not pooling their intellects in efforts to advance knowledge for itself but are in pursuit of particular political agendas. This by itself is not inevitably bad because creativity can be stimulated in some ways through the sharing of insights, but when the cliques are comprised of “true believers” and ideologues convinced of the rightness of their positions or submerged in a collective in order to gain the security and benefits of membership they constrain the full range of potential work by their members. Although we all yearn for the social justice many of these groups claim as their goal within the construct of issues a collective is advocating, something is lost in the trade off between political outcome and intellectual merit.

 

Similarly, the intensity of politics and ideology generates a deadening aura once those who believe deeply in a particular mission and agenda achieve a significant presence in an institution and gain the power to define agendas. It is not inappropriate to suggest that by their very nature many scholars are easily intimidated by the politics and assumptions of an intensely political faculty group trumpeting what they claim to be “moral” leverage. A result for some is to join the “in crowd”. Others alter their own work. They do this to avoid conflict by suppressing themes they might otherwise pursue, choosing non-controversial areas of inquiry and making sure that they do not criticize anything of concern to the dominant cliques of “scholars”.

 

The conflict among factions for power suggests strongly that postmodernists are correct about the historical fact that law is an instrument of interest group power. As one commentator observes, postmodern critics may not believe in a search for truth, but “[t]hey do, however, believe in politics—and most especially in identity politics.” Pinsker further suggests that for postmodernists, “academic freedom” has come to represent the struggle for equality by these interest groups, while “truth” may be seen as an obstacle to that equality. [3] But such critiques seem oblivious to or even seek to obfuscate the fact that such behavior is intrinsic to anyone or any group who occupies a position in which power is wielded. This means that those who have been successful in challenging the older applications of power against them by what they consider discriminatory or self-interested groups with different agendas are themselves inevitably subject to the same tendency to serve the agendas of their own identities and ideologies.

 

Deborah Tannen describes a “culture of argument” that has emerged within academic and political circles as one in which we approach public dialogue as if it were a fight, concluding the “argument culture” causes us to be adversarial. She describes the path she followed to her insight, revealing: “The answer crystallized when I put the question to a writer who … had misrepresented my work: [I asked] “Why do you need to make others wrong for you to be right?” Her response: “It’s an argument!” Tannen realized the fact that her critic perceived what was going on as argumentation rather than reasoned discourse was the answer. She concludes: “[w]hen you’re having an argument with someone, your goal is not to listen and understand. Instead, you use every tactic you can think of—including distorting what your opponent just said—in order to win the argument.” [4]

 

As Arthur Schopenhauer observes, the search for “truth” in any kind of public discourse is a fiction—the universal goal of the base human beings who engage in such discourse is to win, not to understand.

 

[I]n a dialectical contest we must regard objective truth as an accidental circumstance, and look only to the defense of our own position and the refutation of our opponent’s. Truth is in the depths. At the beginning of a contest each man believes, as a rule, that right is on his side; in the course of it, both become doubtful, and the truth is not determined or confirmed until the close. Dialectic, then, has as little to do with truth as the fencing master considers who is right when a quarrel leads to a duel. Thrust and parry is the whole business. It is the art of intellectual fencing: and it is only when we so regard it that we can erect it into a branch of knowledge.[5]

 

Daphne Patai makes the point of how this political culture works within the university. She explains that quite some time ago: “[Walter] Metzger and [Richard] Hofstadter argued that academic freedom hangs by a slender thread. Today, instead of heeding their warning and giving serious thought to a tradition in danger of dissolution, throughout the university people convinced of their political righteousness challenge the very concepts of academic freedom and free speech, and they back that challenge with the coercive power of rules, codes, and disciplinary tribunals.” [6]

 

Much of academic scholarship has become a form of advocacy and advocacy cares about truth only when it serves the advocates’ interest. The problem with the advocate/activist focus is as Anthony Kronman observes: “The indifference to truth that all advocacy entails is likely … to affect the character of one who practices the craft for a long time and in a studied way.” Since a great deal of modern noncumulative scholarship in areas such as philosophy, law, politics and literature contains an activist/advocacy element we need to be concerned about its effect on the scholar’s clarity of vision as well as aim and motivation.[7]

 

If, for example, the university scholar’s motivation is a dispassionate search for original knowledge for itself or refinement of the highest forms of existing knowledge, the inclusion of an activist agenda by other scholars represents a threatening challenge. The sense of activist mission, however noble in some areas of action, infuses the activist scholar’s work with an aggressiveness and bias toward achieving the underlying agenda. This bias intuitively offends the values of scholars committed to advancing pure knowledge for its own sake according to processes that are as demonstrably objective as can be achieved. The same can be said for any scholar who is simply attempting to offer a full and balanced view on an important topic. Advocacy does not seek balance as opposed to outcome. This is shown clearly in Aristotle’s message in his Rhetoric.

 

Eric Hoffer argues that one “of the characteristic attitudes of the modern intellectual—his tendency to see any group he identifies himself with as a chosen people, and any truth he embraces as the one and only truth….” [8] This kind of prophetic intensity of belief and identification with a cause easily blinds the activist scholar to the fuller implications of his or her work. To the extent the scholar is pursuing the implementation of a specific agenda the blindness may well be willful or seen by the actor as a legitimate method of achieving political change. Scholarship thus becomes just another weapon in the pursuit of agendas.

 

The goals, methods and cultures are fundamentally different between the practitioners of the five ideals. Much of modern activist scholarship is self-consciously and aggressively political in nature and is to a large extent highly subjective. It has been argued that a political monoculture has come to dominate academia, one in which the vast majority of academics think the same, share the same values, and collectively fail to evaluate the foundations of their own assumptions while rejecting and denigrating others. The figures on political diversity in the university world are extreme. [9]

 

The problem is that politics is not about truth in any strict sense but is concerned with attaining power or challenging power and gaining influence. The rightness of the protests by the collective interests and their goals of fair treatment, opportunity and non-discrimination should not mask the fact that the language used by each collective movement (and counter-movement) has been language of attack, protest and opposition—not reasoned discourse. It is language used as weapons to gain or defend power. [10]

 

While truth is not necessarily irrelevant to many activist scholars it is often subordinated to a stronger priority or is subsumed by powerful and often untested or partial assumptions on which the subsequent analysis and conclusions are based. Keynes observes: “[The ideas of economists and political philosophers, both when they are right and when they are wrong, are more powerful than is commonly understood. Indeed the ruled is ruled by little else. Practical men, who believe themselves to be quite exempt from any intellectual influences, are usually the slave of some defunct economist….” [11]

 

I suspect it is a characteristic of activist-scholars that many not only have allegiances with their primary university discipline but are also devoted members of political collectives working outside the university. Avoiding the blurring of the lines becomes very difficult when one is embedded in a political interest group. The strategic and goal-oriented behavior of activist-scholars inevitably leads to the use of political speech. Activists who are seeking to build new paradigms through critique and active reform can be expected on occasion to be abrasive, deceptive, aggressive, and irritating. Just as are those they challenge, they are hostages of their own experiences and allegiances even to the extent they become intellectually blinded to alternative perspectives and are intolerant of anyone who disagrees with their particular vision of a brave new world. They become what Hoffer called “true believers” in the rightness of their cause and will do virtually anything to advance it.[12]

 

A result of loose collections of scholars working within institutions operating according to these multiple ideals is a decreased ability to evaluate, value or even tolerate work done within a different scholarly paradigm than the one served by particular scholars. There is a conflict for power, priority and dominance just as in any other political system that distributes rewards, status and opportunity.   It too often becomes a contest between competing propagandists rather than a legitimate search for knowledge.

 

The problem is that political speech is inherently manipulative, not through the attempt to persuade by demonstrated truth and balanced analysis but through rhetoric, polemic and propaganda.   I argue that a substantial amount of activist noncumulative scholarship of the kind found in American law schools involves rhetorical deception–both conscious and subconscious–aimed at achieving political ends whose truth and justice are taken for granted or ignored in order to achieve power, group identity or status.[13]

 

Maxine Greene warns that slogans and propaganda have replaced intelligent dialogue. She states that slogans are, “rallying symbols” that “in no sense describe what actually exists, yet they are taken—wishfully or desperately—to be generalizations or statements of fact.”[14] What we are calling lies involves confusion, accidental misapplication of “truths” to inappropriate contexts, and category mistakes. But it also includes an increase in overt lying, obfuscation, deliberate misinterpretation and falsification of data, biased interpretations, and out-of-context arguments and analyses. Many in pursuit of agendas in the “culture war” consider it allowable and necessary to deceive as part of the strategy of conflict.   They consider their noble ends to justify the means.

 

While we might assume that there is room within the university for all the cultures to coexist, the culture of each ideal threatens the fundamental beliefs, agendas and goals of the other. The rise to dominance of one version of the university ideal seems to require the suppression of others. The emergence of “identity sects” that provide meaning and psychological security to their members creates a situation in which it is dangerous to question the avowed tenets of the group whether from inside or without. As a result, challenging the assumptions of factions brings accusations of heresy, disloyalty, and bigotry.[15]   Of late we have seen the powerful sanctions involved in being labeled as having “phobic” mindsets in which an interest group can condemn those of whom they disapprove as being homophobic, Islamophobic, anti-Semitic, sexist, racist or, failing that, “insensitive” or “intolerant.”[16]   These are powerful condemnatory terms that, once leveled, are virtually impossible to dispel.[17]

 

Our dilemma is that, like all hypocrites or true believers, we cannot afford to admit that all our fundamental norms are assumptions and choices. This is because we must have reasonably consensual criteria on which social choices are grounded. Otherwise we are adrift in a limbo where there is neither stability nor consistency. We elevate Reason to the highest levels, but Reason is only a tool and method. It does not provide the initial substantive premises on which it operates. Freeman and Appel remind us that: “All we can do by reasoning is to learn that if our first assertion is true, then all the implications, which follow from it according to the laws of valid reasoning, must also be true. But the laws of reasoning are silent concerning the truth of the crucial first premise.”[18]

 

 

 

[1] Russell Jacoby, The End of Utopia, at 110.

[2] Jacoby, End of Utopia, at 111.

[3] Sanford Pinsker, “Tenure can rescue the academy,” Wash. Times, Oct. 31, 1996, at A23.

[4] Deborah Tannen, The Argument Culture: Moving from Debate to Dialogue (1998).

[5] See Arthur Schopenhauer, The Art of Always Being Right 33-42 (2009).

[6] Daphne Patai, “Speak Freely, Professor — Within the Speech Code,” Chronicle of Higher Education, June 9, 2000, pg. B7. See also, Patai, Heterophobia: Sexual Harassment and the Future of Feminism (Rowman & Littlefield, 1998).

[7] Anthony Kronman, “Legal Scholarship and Moral Education,” 90 Yale L. J. 955, 964 ( ).

[8] See, Hoffer, The Ordeal of Change, at 43, 45.

[9] Davenport, “Few universities are open to conservative views”. See also, The Chronicle Review, Page: B7, “Inside the Mind of an Ivy League Professor,” Frank Luntz, FrontPageMagazine.com | August 30, 2002. Luntz writes: “A new survey of Ivy League professors conducted by the Luntz Research Companies on behalf of the Center for the Study of Popular Culture reveals an indisputable and painfully evident lack of diversity when it comes to the attitudes and values of Ivy League faculty. Not only is there an alarming uniformity among the guardians of our best and brightest minds, but this group of educators is almost uniformly outside of mainstream, moderate, middle-of-the-road American political thought. So much for diversity.”

[10] Max Lerner, Ideas Are Weapons: The History and Uses of Ideas (Transition, 1991).

[11] Keynes adds: “[T]he power of vested interests is vastly exaggerated compared with the gradual encroachment of ideas…. [S]oon or late, it is ideas, not vested interests, which are dangerous for good or evil.” Keynes, at 383, 384.

[12] See, Eric Hoffer, The True Believer: Thoughts on the Nature of Mass Movements 120 (1951), and his discussion of how the “fault finding man of words” attacks a dominant orthodoxy in order to undermine its perceived legitimacy and hold on power.

[13] Brinton, Ideas and Men, at 13.

[14] See Maxine Greene, Teacher As Stranger at 70.

[15] Seth Stevenson, “The Thought Police,” January 2003, http://www.bostonmagazine.com/articles/the_thought_police/.

[16] William F. Allman, The Stone Age Present: How Evolution Has Shaped Modern Life—From Sex, Violence, and Language to Emotions, Morals, and Communities (1994). Allman quotes Yeats. “Civilization is looped together, brought under a rule, under the semblance of peace by manifold illusion.” Id. at 220. Allman goes on to describe the increase in complexity that has generated some of the conflict between factions and the need to label and antagonize opposing groups. Specifically, Allman notes that for most of human existence, survival depended upon the ability of individuals to identify with and support small groups comprising family members and close associated friends. See id. at 221. With the development of large-scale societies, individuals and family groups suddenly had to deal with the conflict between minds adapted to identification with small family groups and the need for interrelationships with complete strangers. See id. Arguably, factions and their conflicts with other factions are the natural result of the human mind’s search for group support coupled with distrust of the “other” who is not part of the group.

[17] The power to condemn is seen by the collectives as a one-way street. This has been demonstrated in university speech codes that reflect academics’ agreement with the suppression of open discourse. Seth Stevenson, “The Thought Police,” January 2003, available at http://www.bostonmagazine.com/articles/the_thought_police/.

[18] See Eugene Freeman and David Appel, The Wisdom and Ideas of Plato 71 (1963).

 

 

Red Giselle and Five Scholarly Ideals

 

 

The five ideals as discussed in a previous post (A Preliminary Note on Five Scholarly Ideals) are as follows.

 

1. Development and pursuit of original knowledge for its own sake

 

2. Preservation, refinement and transmission of the best forms of knowledge

 

3. Objective social critique

 

4. Individual activism

 

5. Collective activism.

 

Among the five ideals, I suggested three versions of the university scholar’s ideal–the critique of society for purposes of its regeneration and improvement, individual activism, and collective activism—that are aimed primarily at creating a fairer and more just society within the scholars’ frame of reference. As with any approach it is possible to use the methodology in ways that corrupt or undermine its core thesis. Abandoning commitments to such values as truth, accuracy, rational discourse and balance undermines the legitimacy of work purporting to advance the purposes of an ideal. Claiming that one is doing something that fits those commitments while hiding behind masks of elevated rhetoric is an hypocrisy that risks destroying the legitimacy of the specific undertaking itself while distorting the mission of the university world in regard to its commitment to truth, evidence, fairness and open discourse. [1]

 

Arguments have even been made by some of the most activist scholars that such commitments are themselves mechanisms of repression and that concerns with truth, evidence, critical but fair analysis and honest discourse are the products of centuries in which those in power, i.e., “white males” have used such tools to maintain their dominance and discriminate against others.[2] Taking this position within the university means that politicized, ideological, arational and self-interested writing becomes “scholarship” when in fact it is too often what might be called “fugitive rubbish”.

 

Another element of some of this critical scholarship is that, as Seth Stephenson writes, the power to condemn is seen by the activist collectives as a one-way street. This has been demonstrated in university speech codes that reflect many academics’ and an increasing number of students’ agreement with the suppression of open discourse do to reasons of claimed insult, insensitivity, hurt feelings or the giving of offense. Following this path confers a veto power to individuals and groups that have increasingly stifled social communication while accelerating and intensifying the fragmentation of American society. Stephenson argues, “These [university speech] codes have their roots in theories, which gained favor with campus radicals in the 1960s, contending that ‘[i]f the powerful and the weak were required to play by the same rules the powerful always would win.” In other words, this theory goes, the disadvantaged need different rules. What’s more, these rules should extend to speech, not just to actions, because speech can be just as powerful and hurtful.’”[3] Such intimidation of speech by aggressive and angry political movements have spread well beyond the Ivory Tower [although universities have been complicit in the process] to the extent our social discourse has been poisoned and virtually all our speech is characterized by slogans, stereotypes, propaganda and distortion even to the point of lies.

 

Red Giselle, Russia and the Power of Love

 

The distinction between the five scholarly ideals can be understood through an analogy to ballet. When I first taught in St. Petersburg, Russia a wonderful part of the experience was the opportunity to see a stimulating variety of classical and modern Russian ballet performances. Few would argue with the assertion that classical ballet in Russia is an exquisite experience performed at the highest level of artistic talent. In a sense, classical ballet is a sort of “time machine”. It offers the finest traditional forms of the balletic art to new generations, allowing audiences in the twenty-first century the same experiences enjoyed by theater attendees in 1755. The music, choreography, costumes, gestures and dance movement are identical to those of centuries earlier. This can be equated with the spirit of the second ideal of the university–the preservation and sharing of the highest form of knowledge in a manner that recognizes its worth and connects our culture and civilization across generations and centuries.

 

Of course, classical ballets were also innovative, creative and “new” when first offered, helping to construct new forms of the art and changing the culture within which they first appeared. This reflects some of the inevitable tension between what are being called the first and second ideals–the efforts to discover and create new knowledge and forms and the search for perfection in refining existing knowledge. The difference in perspective was captured as well as any in Ricky Nelson’s song Garden Party in which he laments the audience’s negative reception of his new songs by singing, “If memories were all I sang, I’d rather drive a truck.” The ideal of creating new knowledge cannot be stated any better.

 

The contrast between classical and modern ballet also helps clarify what I am talking about in the context of the knowledge role of the university and the various ideals that apply to the work of university scholars. Modern ballet is not better than classical–it is simply a different form. On one hand it is an interpretation of what is, and on the other an entirely new creation. But while modern ballet may shift the music, rhythms, themes, movements and the like, it still is derivative in that it takes from and depends on the underlying technique and ethos of ballet. But while the commitment to the underlying art form and staging at its highest quality remain essential elements, modern ballet also extends the form and even creates a new variation. It is therefore an experiment, but one that operates within the commitment to discipline of ballet and the technique of ballet. This is consistent with another ideal of the university–the quest to discover, create and develop–and a look to the future instead of the past.

 

In order to explain more specifically what I consider to be the differences between the five ideals I offer the work of Boris Eifman, a Russian creator of modern ballet with whose work I was enthralled when teaching in St. Petersburg. Eifman created adaptations of existing balletic works I consider brilliant in their scope and quality. Of the five Eifman ballets I saw in Russia one was called Red Giselle. Red Giselle focused on a ballerina who was caught in the transition from Tsarist Russia to the Soviet Union, including the darkness, repression and terror. In this work Giselle was loved by an agent of the Cheka, the forerunner of the KGB, and used her power as a seductive woman just as the Chekist used his power as an agent of the state. Red Giselle communicates the abuse of power and manipulation of humans, as well as the power of love as the Chekist allows Giselle to escape to Paris even though he wants to hold her for himself.

 

In Red Giselle, Eifman uses the power and technique of the ballet to convey powerful messages about people and power and people in power. The work is a critique of the darkness of unfettered power even while offering a glimmer of hope in the ability of even key parts of the state to retain parts of their humanity in a regime committed to inhumanity. Red Giselle illustrates a critique of society by its creator, Boris Eifman, and is consistent with the third “individualist” ideal of the university. But Eifman’s own commitment is still grounded in technique, quality and excellence of the form–with the added element of a powerful message.

 

The differences as we move from the ideal of social critique to those of individual and collective activism are relatively easy to set out but difficult to know where to draw valid lines. In Red Giselle, for example, we admit there is a political and moral critique that is wise to heed. In a sense this can even be seen as a new form in which traditional knowledge is being conveyed so that perhaps it is a reminder or reaches new ears in a different and more powerful form. In this artistic vehicle it penetrates the psyche at a point other than the rational and can therefore be more deeply embedded.

 

Most of us also know at some level that government always tends to abuse power if left unrestrained. And we also know that the Soviet period carried with it severe abuses of power entirely inconsistent with its professed ideals. So Red Giselle as performed at the beginning of the Twenty-first Century builds on knowledge that is not new, even though it uses a newer art form as the vehicle through which to communicate its message.   In the Russia of the present day Red Giselle is a reminder of the dangers of uncontrolled state power. But it is safer to voice the message at this time than at the height of the former Soviet Union. At least it was safer before Vladimir Putin consolidated his control and began to shut down Russia’s instrumentalities of social criticism and free speech.

 

A very different situation is created if we move Red Giselle back in time ninety years to 1923 when the conditions portrayed were contemporaneous. At that point Eifman’s work is not simply a new variation on the balletic art form or a cautionary political warning against a regressive form of government but a direct confrontation with the early Soviet regime it would have been attacking. Even in 2000 when the new Russia was in a state of potential collapse with calls for a return to some strong man leader who would help recapture the stability and power of the Soviet Union, Eifman’s message was a reminder of the dangers of the Soviet system. Nor is it hard to envisage a reaction against Eifman by those seeking a return to the Soviet era. In 1923, however, Red Giselle would either never have appeared if created, or would never have been created inside Russia. If it had been we should expect Eifman to be quickly convicted of the ever-popular “crimes against the state” and eliminated one way or another.

 

Assume, however, that the 1923 fictional Eifman created the work and realized that it would never be allowed on the public stage due to its subversive nature. But being opposed to the Soviet State he wants his message to be communicated to those who share his perspectives and to educate others who may be willing to listen. So rather than try to present Red Giselle to the general public Eifman offers his ballet in private homes, in rural villages, and other hidden venues in order to convince others of the dangers of the USSR and the need to destroy or reform it. I suggest this describes a venture driven primarily by the message he wants to convey to the relevant political community in which he hopes they are moved to act, not by the balletic form itself. Here we have the individual activist ideal of the university.

 

Now shift this approach slightly to one in which Eifman creates a group of ballet composers and convinces them to orient their works around the common theme of abuse of power by the Soviet government and the need for reform or revolution. The members of this new movement look at each others’ works and think about how they can be adapted to send the desired messages most effectively. Their focus is no longer primarily on the ballet as art form but on the message that can be sent through the use of the form. This, I suggest, represents the collective activist ideal which uses the art form to shape and communicate powerful messages and in which the form is primarily a means to an end rather than an end in itself. Similarly, the message is shaped by the collective rather than as an independent and creative act of the composers. Here also, the “truth” of the message being communicated is accepted a priori and the collective members are designing ways in which the greatest impact on the selected problem is achieved rather than concentrating on the quality of the underlying art form.

 

But what do we say if the power of the art form is controlled by the state and is used as a way to inculcate the supposed legitimacy of its rule to all citizens? When this happens we call the process propaganda because there is only one acceptable point of view and others are suppressed, deviants are eliminated or “re-educated”, and the collective is intent not on the creativity of the art form but on its use to compel adherence to its point of view and acceptance of its sovereignty.

 

Law, Power, and Legal Scholarship

 

Law is a form of politics made concrete. It both reflects and generates political values and positions in ways that, in a complex Rule of Law society that has lost its shared values and ability to communicate and negotiate based on commonly held norms, is an engine that creates and allocates power and duty. Oddly enough, many of the interests that are now relying on the Rule of Law as the justification for their positions would be complete “losers” if their arguments and institutional manipulations were not successful. “Law”, writ large, is the only thing that underpins such issues as gender and sexual rights, racial preferences, wealth redistribution and so much more. Given the character of law as the (theoretical) source of value and the instruments of implementation it is inevitable and appropriate that legal scholars are political theorists and critics. They are responsible for expressing their carefully developed insights through the mechanism of legal scholarship. The problem is that the discourse has become unbalanced and the discussion one-sided.

 

Law is a manifestation of power and the best scholarship done by law school academics inevitably relates to the exercise of the power and force of law. Lawrence Friedman explains the connection thus: “it is through law, legal institutions, and legal processes that customs and ideas take on a more permanent, rigid form. The legal system is a structure. It has shape and form. It lasts. It is visible. It sets up fields of force. It affects ways of thinking. When practices, habits, and customs turn into law, they tend to become stronger, more fixed, more explicit.”[4] Explaining, critiquing, influencing and challenging the aims and interactions of law and power are the primary responsibility of legal scholars, that which legitimates their claim to tenure and privilege within the university.

 

The reality of group behavior is that power is defended if one possesses it, sought if one desires or needs it, and undermined when the scholar and the reference group with which a scholar identifies successfully engages in a strategy of “softening up” the foundation principles and assumptions of competitors. In his book, Power, Adolf Berle warns that control of institutions is the only way by which people can extend their power beyond the limited reach of their fists or guns. Those collective identity groups that are seeking to capture the ability to dictate rules to others or to protect themselves against others’ control create strategies to gain possession of the institutions that make and enforce the rules or laws.[5]

 

While it is appropriate and necessary that legal scholars include the political in their work, including the politics of justice and a critique of unjust elements of the system, it is inappropriate that scholars become so possessed by the political that they lose their fragile objectivity in the passionate embrace of political agendas. Our job is to understand and critique the political dimension of law, not to become the politics themselves. In many of its aspects law is a form of “applied philosophy”. A result of our succumbing to the lure of the intensity and celebrity of the political sphere is that we have gone from a pseudo-intellectual culture characterized by a false claim to Langdellian science to an incoherent melange without a core methodology or standards of evaluation.

 

[1] Marcel writes: “The first … observation to be made is that the fanatic never sees himself as a fanatic; it is only the non-fanatic who can recognize him as a fanatic; so that when this judgment, or this accusation, is made the fanatic can always say that he is misunderstood and slandered.” Gabriel Marcel, Man Against Mass Society 136-137 (1969).

[2] Martha C. Nussbaum, Cultivating Humanity: A Classical Defense of Reform in Liberal Education 19 (1997) (“Socratic argument is suspected … of being arrogant and elitist.… [T]he elitism is seen as that of a dominant Western intellectual tradition that has persistently marginalized outsiders. The very pretense that one is engaged in the disinterested pursuit of truth can be a handy screen for prejudice.”

[3] Seth Stevenson, “The Thought Police,” January 2003, available at http://www.bostonmagazine.com/articles/the_thought_police/.

[4] Lawrence Friedman, American Law at 257.

[5] Adolph A. Berle, Power, at 92 [1967].

Part I: A Preliminary Note on Five Scholarly Ideals

 

 

Here I briefly describe five ideals or forms of scholarship. The next several posts will seek to add some detail. I am not arguing a priority for any single ideal at this point and recognize that different disciplines conducted by varying scholarly schools of thought or methodology would consider some of the ideals irrelevant or even illegitimate. Nonetheless they are being offered as one way to look at what scholars do in the pursuit of knowledge or in the attempt to persuade and implement what they consider to be reform of social conditions they consider unjust. I also want to make it clear that the dividing lines between the ideals are not entirely neat or that there is a mixing of forms in some contexts. Yet I do think that, as expressed, the five ideals represent a set of distinct orientations that produce a different kind of scholarly behavior and output as the primary characteristic of what the particular scholar or collectivist school is doing.

 

Each of the five scholarly ideals can offer a legitimate orientation depending on the degree of bias and the context of their use. The problems arise when the ideals are confused and inappropriately commingled. When this occurs the result is an incoherent muddle. This is because even when operating at its best each ideal serves a different scholarly mission and generates a distinct product and arguably in some instances requires a different kind of person filling the role of the scholar. A consequence is that there are no consistent intellectually based standards by which to judge the merit of a scholar’s work when it is being done in service of a different form of the university ideal than that possessed by evaluators who are not part of a school or collective.   Serious problems also emerge when scholars are activists and advocates who tend toward the extremes of a strongly held “cause” because effective advocacy almost invariably involves degrees of overstatement and distortion as part of seeking to influence others and advance agendas.

 

At the beginning it is helpful to realize that the five versions of the scholarly ideal produce different forms of intellectual work with distinct goals and motivations. The scholar engaging in such activity can vary dramatically in terms of what the individual is seeking to achieve through his or her research output and actions that might be taken related to the findings reflected in that product. Similarly, there is a diverse set of targets at which the work is directed. These targets include communicating ideas and knowledge to other scholars who are invested in a specific sub-discipline. They also include overt (and covert) attempts to influence and reshape the behavior of institutions the individual scholar or scholarly collective considers to be a means through which changes thought necessary can be achieved. The five ideals are:

 

1. Development and pursuit of original knowledge for its own sake

 

2. Preservation, refinement and transmission of the best forms of knowledge

 

3. Objective social critique

 

4. Individual activism

 

5. Collective activism.

 

These ideals are not simply a reflection of what has been traditionally thought of as the dichotomy between “pure” and “applied” research. Nor are they necessarily on a linear continuum in which each is a variant or extension of the other. The simple fact is that each ideal in its most strict sense is different in kind and not only degree. Each represents different values, assumptions and commitments as to what is involved in the central role of the scholar.

 

Each ideal, including the two long-cherished ideals of the discovery of new knowledge and the refinement, preservation and extension of existing knowledge, has often been honored more in lofty rhetoric than in the reality of what most scholars actually do. [1] Even our supposed core paradigm of the pursuit of “pure” scientific knowledge is not quite as pristine as some would have us think. Robert Wolff reminds us, for example, that:

 

Orthodox science is “established” in our society in just the way that particular religious creeds have been established in earlier times. The received doctrine is taught in the schools, its expounders are awarded positions, fellowships, honors, and public acclaim; dissenting doctrines … are excluded from places of instruction, denied easy access to media of communication, officially ridiculed, and—in the case of medical practices—even prohibited by law from translating their convictions into action. [2]

 

Regardless of academic rhetoric, universities are powerful institutional systems that are as doctrinaire and hidebound in their behavior as any other institution whose beneficiaries are seeking to protect vested interests or simply defend that with which they are most familiar and on which their training is based and reputations sustained. This is consistent with Keynes’ conclusion that most university faculty are little more than “academic scribblers” who live their lives content to operate within the safe confines of the ideas and reward system in which they were initially indoctrinated and from which they extract benefits. [3] While the ideal of the pursuit of knowledge for its own sake is frequently offered as a justification for independent research and scholarship, the likelihood of individuals behaving in full accord with such a strongly principled norm depends on the incentives and disincentives to which they are subject.

 

The University as a Simultaneously Symbolic and Adaptive Institution

 

Richard Hofstadter reminds us: “the university is only a symbol of a larger and more pressing problem of the relationship of intellect to power: we are opposed almost by instinct to the divorce of knowledge from power, but we are also opposed, out of our modern convictions, to their union.” Hofstadter also concludes that scholars have increasingly sought the solace of celebrity and “relevance” as a substitute for independence and originality. [4] Peter Drucker offers a vital point in his explanation that what is happening represents the “new reality” of an increasingly pluralist democracy, concluding that: “The new pluralism … focuses on power. It is a pluralism of single-cause, single-interest groups—the “mass movements” of small but highly disciplined minorities. Each of them tries to obtain through power what it could not obtain through numbers or through persuasion. Each is exclusively political.”[5]

 

Think about the effects such “realities” have on the scholarly activity of individuals and groups determined to advance causes they hold most dear. Nor is this in any way a defense of how scholars have behaved before now. My point is that many of those engaged in the scholarly function, particularly in the disciplines Crane Brinton defined as non-cumulative, have changed into a set of people whose agendas are more political than intellectual and whose interests are being defined by the aims of a collective movement rather than independent thought. [6]

 

Then and now, within the institution of the university whose scholars claim a commitment to the pursuit of “pure” knowledge and full intellectual honesty, there is very little purity, honesty or even self-awareness about how the mission of the scholar is corrupted.Richard Hofstadter may have identified the root of the problem in his explanation of the inherently non-intellectual nature of the modern pursuit of knowledge, including the work of most university professors. He concludes:

 

[T]he work of lawyers, editors, engineers, doctors, indeed of some writers and of most professors—though vitally dependent upon ideas, is not distinctively intellectual. A man in any of the learned … professions must have command of a substantial store of frozen ideas to do his work; he must, if he does it well, use them intelligently; but in his professional capacity he uses them mainly as instruments. The heart of the matter … is that the professional man lives off ideas, not for them. His professional role, his professional skills, do not make him an intellectual. He is a mental worker, a technician. [7]

 

The Increasingly Ideological Nature of the University

 

Much of what is going on among academics working in the “soft” disciplines of law, philosophy, social studies, political theory and literature is ideological. As such, it seeks to influence social behavior and has an impulsion toward taking action at its core. In that world it is fair to describe the use of ideas as “weapons” fashioned to overcome opponents.[8] For scholars operating from an ideological base they have already decided that change is needed and their work aims at achieving what they consider necessary. But since it is far more likely that the coordinated efforts of groups will be able to mobilize the pressures and momentum involved in strategies for social change, activist scholars inevitably tend toward enlisting in a collective rather than engaging in individual action. For those possessed by an ideology this behavior seems natural because it is change they are seeking rather than knowledge.

 

Daniel Bell reminds us: “Ideology is the conversion of ideas into social levers.” He adds: “For the ideologue, truth arises in action, and meaning is given to experience by the “transforming moment.” He comes alive not in contemplation, but in ‘the deed.’” [9] In our modern academic culture, interest groups of all persuasions are engaging in exchanges based on propaganda and stereotypes and increasingly, activist scholars who are allied with specific identity factions and who are skilled at using words as weapons, are central participants in the conflict. In that intensified context legitimate criticism of the flaws in our social institutions easily slides toward fanaticism and resistance to the ideological critique is scorned as ignorant bigotry. Some of our most important social disputes have drifted toward the extremes. I am, for example, still waiting for the so-called “dialogue on race” to begin, as opposed to the “slings and arrows” thrown about by bigots and radicals of all ethnic backgrounds. Whether we are even capable of actually discussing issues in the “tinderbox” of modern discourse is questionable to the point where everything of consequence is a matter of political power struggles and very little that scholars say is free of an ideological “taint”.

 

The consequences of the clash of ideologies have been unfortunate from the perspective of the integrity of the university and its scholars. Maxine Greene warns that slogans and propaganda have replaced real dialogue. She describes slogans as, “rallying symbols” that “in no sense describe what actually exists, yet they are taken—wishfully or desperately—to be generalizations or statements of fact.”[10] Consider Camus’ observation about the need to keep sufficient distance from the heated conditions of society in order to retain a clear perspective. He writes: “[I]t is not possible to be a militant in one’s spare time. And so the artist of today becomes unreal if he remains in his ivory tower or sterilized if he spends his time galloping around the political arena…. [T]he writer must be fully aware of the dramas of his time and that he must take sides every time he can or knows how to do so. But he must also maintain or resume from time to time a certain distance in relation to our history.” [11]

 

The Search for Security and Power Is Easier Than the Creative Pursuit of Knowledge

 

If one lacks the courage or insight required for original thinking true intellectual freedom can be a curse rather than a blessing since it forces you to become aware of your limitations. The “solution” for some is to work in a system characterized by a received orthodoxy that takes its own legitimacy for granted, lacks self-awareness and never tests itself against its lofty rhetoric. This allows a university intellectual to “have his cake” of status and lifetime employment through tenure without using his talents in an attempt to create true and meaningful knowledge. True creativity and insight is considerably more rare than we might hope. Even when we manage to do work early in our careers that “shows promise” to other scholars, we often find ourselves pursuing “safe” topics in an increasingly politicized university or find that we have said all we had to say in that early burst of productivity that earned the boon of lifetime job security.

 

Belying the image of scholars and intellectuals as courageous moral beacons or as deeply committed to the pursuit of truth wherever it might lead, Diekema identifies self-interest as at the core of the problem, reasoning: “Self-censorship is often a matter of personal convenience for faculty. They simply assess the potential costs before speaking out….”[12] Scholars operating in a culture filled with implicit inhibitions against pursuit of a particular strand of knowledge with rewards distributed for following the agenda of the political orthodoxy distort not only how we interpret knowledge but even what knowledge we seek. Such an environment also creates a risk-averse unwillingness to critique colleagues’ work.   I have had law faculty from various institutions tell me that they “hid” positions until they were awarded tenure out of fear that an unpopular position would cost them votes. The same applies to assessing others’ work because academics have long memories and thin skins.

 

Risk aversion is found throughout American universities.[13]   Scholars fear the consequences of writing something that will displease members of an academic political collective.   This apprehension or “shaping” causes them to either write cautiously or alter their analysis to appeal to one of the more powerful interest groups. There are many topics that are simply taboo and are avoided by any university academic interested in remaining employed. Nor, given the difficulty and risk involved in attempting to achieve original insights rather than being content to fit comfortably into an existing niche, is it surprising that some scholars submerge themselves in intellectual or political groups. For many scholars the situation has become one of risk avoidance rather than intellectual independence and pursuit of deep and creative insights into the human condition. This stifling of intellectual freedom and honesty occurs during a scholar’s most important formative period in which career agendas are being set and a base of intellectual capital created.

 

Becoming part of a scholarly community with an accepted focus protects a scholar’s employment position and also offers a template for what is considered to be acceptable work. When this occurs, and it is a common element in American law schools, the members of such interest groups automatically praise whatever a member-scholar says. This phenomenon occurs because it is seen as supporting the collective’s agenda, validating and increasing the institutional power of its members. It seems to advance “the cause” even if the actual situation is too often that members of a scholarly collective are mainly talking incestuously with each other by “preaching to the choir”. As to true discourse, it is a victim. As Jacques Ellul tells us: “modern man is beset by anxiety and a feeling of insecurity.… The conflict of propaganda takes the place of the debate of ideas.” [14]

 

One inevitable effect is that the collective explicitly and implicitly dictates the scope of a scholar’s research agenda and in doing so provides a kind of career “sanctuary” while limiting and foreclosing a full range of inquiry and experimentation. This occurs because some topics advance the collective’s mission while others are taboo because they have the potential to undermine the arguments being made by the group. While this is important for group solidarity it is a contradiction to what we have long considered to be the mission of the scholar.

 

Stereotypes, Propaganda, Slogans and Collectivist Repression

 

I equate part of what is going on in the rise of scholarly collectives committed to activist matters as bordering on a form of stereotypical “group think” in which otherwise intelligent people trade their intellectual independence and depth of inquiry for status and security. In Propaganda, Ellul reminds us: “A stereotype is a seeming value judgment, acquired by belonging to a group, without any intellectual labor…. The stereotype arises from feelings one has for one’s own group, or against the “out-group”. Man attaches himself passionately to the values represented by his group and rejects the clichés of the out-groups…. The stereotype, … helps man to avoid thinking, to take a personal position, to form his own opinion.”[15]

 

Although the names have changed and the interests being advocated by the activist collectives transformed, the problem with university integrity and scholarship is not entirely new. Bernard Meland placed much of the blame for what he saw as the degradation of modern scholars’ intellectual integrity at the foot of universities’ obsessive drive to achieve status, a goal not unrelated to academics’ economic gain, ego, and ambition. He concludes:

 

[T]he concern for status in the academic world and, by this measure, in the world at large is of more serious consequence. The concern for status, we are told by our psychologically informed colleagues, is one of the basic human traits in the normal human community. To be recognized for what we are worth–this, it would seem, is a human requirement. Yet the concern for status in the academic world rarely achieves this level of restraint. To be recognized for what one is worth would, in many instances where status is dominantly a concern, be tantamount to being publicly disclaimed.[16]

 

The distorting effects of reward and status systems do not, however, stop scholars from engaging in self-deception as to the professed integrity of their intellectual pursuits or from using idealized rhetoric to defend their own positions regardless of their suspicions about how their work might be biased or corrupted by personal agenda or the power of “group-think”. The self-deception and rationalization become easier when the scholar works within “soft” disciplines such as law, social science, literature, politics or the like, those Brinton referred to as non-cumulative because we are using the same concepts today that were developed and applied centuries ago. This is because those disciplines operate through layers of interpretation and opinion more than hard data capable of being tested through repetitive methodologies.

 

This criticism of the soft or non-cumulative disciplines does not mean there is any lack of bias, distortion or closed-minded opposition to new ideas and discoveries in the hard sciences. Bernard Cohen reminds us that: “new scientific truth does not triumph by convincing its opponents and making them see the light, but rather because its opponents eventually die, and a new generation grows up that is familiar with it.”[17] The message is that if bias and control by dominant orthodoxies and “old boy networks” occurs even within the realms of hard science there is absolutely no chance that such biases would not be more pervasive in the “opinion-based” disciplines such as law.

 

Some Other Implications

 

Eric Hoffer reminds us that “faultfinding men of words” are the initial step in attacking an existing system. The aim of “faultfinders” is not to offer a full and balanced intellectual analysis of the truth of the system being critiqued but to undermine its stated principles and legitimacy.[18]   As scholars move from detached positions to active and legitimate engagement with the conditions of society there is an increasing risk that the scholar will lose perspective. The active role is one for which many scholars are ill prepared and one capable of changing the people who fulfill it. The activist role comes close to guaranteeing a skewing of perspective as assumption and bias increasingly influence perception and interpretation. The result will often be that the scholar becomes an advocate and rhetorician, even a propagandist, rather than a seeker of truth in the way demanded by the goals of the pursuit of original knowledge, the refinement of existing knowledge or honest and balanced critique of critical social issues. As this occurs, objectivity and detachment lessen and the work takes on a higher probability of being shaped by the scholars’ personal opinions, by collective agendas, and by social goals and allegiances rather than intellectual clarity and honesty.

 

As Thomas Kuhn remarked, even in the strictest application of the scientific method to the conditions of what we are calling cumulative or scientific knowledge the researcher’s process of observation alters the phenomena being observed. [19] As we move further away from the application of strict methodologies and the measurement of cumulative knowledge phenomena to the “softened” material of noncumulative knowledge the dangers of subjectivity and distortion of the observed (and critiqued) reality due to the researchers’ bias increase. This danger exists even for the scholar seeking to objectively critique society in a balanced way but expands significantly with activist scholarship and dramatically with the work of activist collectives housed within the university. In those activist realms the critique is often so personal that the scholar becomes a subjective element of the data being studied rather than an objective observe.

 

The scholar who is attempting to generate a balanced and objective critique of society for purposes of its regeneration and reform is not predominantly activist in focus as opposed to critical, explanatory and prescriptive. Social science can, for example, be used to inform our understanding of the truth of the conditions studied. The critical scholar’s hope is that—once understood—this understanding of right and wrong will inform policy-makers and lead to changes that improve the conditions. But the difference is that the scholar’s strategy of intellectual critique is still based on careful use of a shared and accepted methodology and concern for the authenticity of what is discovered. In this context the scholar remains at a remove from the work and while it is political in nature in that it critiques a specific sphere of human activity it continues to retain a significant degree of objectivity.

 

The identification of injustices and the use of social science and analysis to formulate potential remedies allow the scholar to engage in relatively traditional forms of analysis because the dominant mode of inquiry is explication and testing. But as the detached, critical and evaluative scholar moves from that active but traditional posture toward becoming an activist-scholar who demands the political implementation of solutions that inevitably require the reallocation of social goods, power and responsibility, conflict is heightened.   This is also the point at which the individual becomes less the scholar and more of the political activist—converting the discourse into a form and style that is highly manipulative, goal-oriented and rhetorical rather than balanced, explanatory and illuminating.

 

The risk is that activist scholars, particularly those who are members of a collective, may have decided on a preferred version of the truth before they offer their conclusions–or even before they initiate their research. Responsible critical scholars offer insights that demonstrate deficiencies or explain paths by which solutions can be created or implemented. They analyze with balance and integrity and demonstrate clearly the pathway followed to reach the conclusions. While the scholar critiques the society and political process, the choice as to whether those criticisms are adopted is left to the society itself. The critical scholar’s work is essentially complete at the point of the critique, including the crafting of effective strategies and solutions.

 

The argument being made here is not that activism or collective organization within the university is always illegitimate–in fact challenging abuses of power is a key function of an institution responsible for pursuing not only truth but also social justice. The question is about balance and the clear tendency of dominant orthodoxies and ideological collectives to distort and suppress by subtle influences as well as overt sanctions. In a corrupted culture it becomes more important than ever for the university and its scholarly voices to “speak truth to power” and it cannot do this if its scholars succumb to the mania of ideology and the corruptions of those in power who will always try to use scholars’ voices for their own ends.

 

While activism is an essential element of the modern university in a world increasingly driven by widespread propaganda, economic distortions, abuses of power and lies it also produces consequences for the scholar who, like Icarus risks coming too close to the “sun” of power, ideology and politics and metaphorically falls back to earth as the wings melt from the heat. The “sun” of scholarship was thought to be reason, evidence and an honest analytical process. If one is seeking to break down such long-standing assumptions about how to approach the truth of reality it is not surprising that the foundations of reason and evidence are targets. This of course brings us to the sometimes valid, but overstated, claims of postmodernism’s assault on reason and truth as little more than a manifestation of discriminatory power.

 

A result of the assault by Hoffer’s “faultfinders” is the weakening and even abandonment of reasoned discourse and the substitution of emotional criteria and political polemic. In this regard Jung warns: “Rational argument can be conducted with some prospect of success only so long as the emotionality of a given situation does not exceed a certain critical degree. If the affective temperature rises above this level, the possibility of reason’s having any effect ceases and its place is taken by slogans and chimerical wish-fantasies.” [20] Honest discourse, or even the attempt to engage in such activity is the victim. In part this is because the intention of the extreme activist “scholar” is to “speak to the choir” of similarly oriented activist-scholars or to support or expand a political movement located outside the university rather than to pursue truths.

 

 

 

[1] I have written a fair amount on the nature of the university and the role of scholars. See David Barnhizer, “The University Ideal and the American Law School,” 42 Rutgers L. Rev. 109 (1989); “A Chilling of Discourse,” 50 St. Louis University L. J. 361 (2006); “Truth or Consequences in Legal Scholarship,” 33 Hofstra Law Review 1203 (2005); “Freedom to Do What? Institutional Neutrality, Academic Freedom and Academic Responsibility,” 43 J. Legal. Ed. 346 (1993); “The Justice Mission of American Law Schools,” 40 Cleveland St. L. Rev. 285 (1992); “The Purposes of the University in the First Quarter of the Twenty-first Century,” 22 Seton Hall L. Rev. 1124 (1992); “The University Ideal and Clinical Legal Education,” 35 New York L.J. 87 (1990); “The Revolution in American Law Schools,” 37 Cleveland St. L. Rev. 227 (1989); “The University Ideal and the American Law School,” 42 Rutgers L. Rev. 109 (1989); “Prophets, Priests and Power Blockers: Three Fundamental Roles of Judges and Legal Scholars in America,” 50 Pitts. L. Rev. 127 (1988).

[2] Robert Paul Wolff, The Poverty of Liberalism 16 (1968).

[3] John Maynard Keynes, The General Theory of Employment, Interest and Money 383, 384 (1935).

[4] Richard Hofstadter, Anti-Intellectualism in American Life 427 (1963).

[5] Peter Drucker, The New Realities 76 (1989).

[6] Crane Brinton, Ideas and Men: The Story of Western Thought 516, 517 (1950) suggests why we have failed to develop a more integrative form of knowledge about humans-in-community and as individuals: “logical positivism asserts that the only valid kind of knowledge is cumulative knowledge, the kind one finds in natural science.” He concludes, “The logical positivist tends to regard all traditional philosophical thinking, the kind involved in fields like metaphysics, ethics, political theory, even most epistemology … as a complete waste of time.”

[7] Richard Hofstadter, Anti-Intellectualism in American Life (1963).

[8] See, e.g., Max Lerner, Ideas Are Weapons: The History and Uses of Ideas (1991).

[9] Daniel Bell, The End of Ideology 370-371 (1960).

[10] Maxine Greene, Teacher as Stranger: Educational Philosophy for the Modern Age 70 (1973).

[11] Camus, Demain interview, in Resistance, Rebellion, and Death, at 238.

[12] Diekema, Academic Freedom, id.

[13] Consider the comments of Arthur Koestler, in Diekema, Academic Freedom, concerning the defenses raised by what he refers to as academic mediocrities who fear anything new will destroy their intellectual fiefdoms and expose their inadequacies.

[14] Jacques Ellul, The Technological Society, at vii (1964).

[15] See Jacques Ellul, Propaganda 180 (1965).

[16] Bernard E. Meland, Higher Education and the Human Spirit 7 (1953).

[17] I. Bernard Cohen, Revolution in Science (1985).

[18] See Eric Hoffer, The True Believer: Thoughts on the Nature of Mass Movements 120 (1951).

[19] See, Thomas S. Kuhn, The Structure of Scientific Revolutions (Enlarged edition, University of Chicago 1962, 1970).

[20] C.G. Jung, The Undiscovered Self, 12, 13 (Mentor 1957). Translated from the German by R.F.C. Hull.

Lawyers as Practitioners of the “Dark Arts”

 

There are fundamental conflicts and contradictions between the ideal and the real in terms of what is involved in a lawyer’s principled professionalism. Part of the problem is that there are striking differences between what we are, what we want to be, what we pretend we want to be, and what we are able to be within the culture of work—a phenomenon Jacques Ellul called “The Technological Society” in which what we value and how we behave is determined by the machinery of “technique” and the power of organizations.[1] The gap between the ideality and the reality of human nature and behavior is captured with poignant accuracy in Karel Capek’s, R.U.R.–a play dealing with the theme of dehumanization caused by technological “progress”. The robot Radius, speaking to the flesh-and-blood human Alquist who had asked whether the Roboti would rise to humanity’s level answered as follows. Alquist, of course, expected a response praising what we often proclaim to be the nearly divine character of humans. Given our behavior rather than our self-serving delusions and recitation of lofty principles, Radius’ conclusion that the robots had already achieved “humanity” was shocking and unfortunately accurate in many ways.

Radius: “Slaughter and domination are necessary if you want to be like men. Read history, read the human books. You must domineer and murder if you want to be like men. …. We have read books. We have studied science and the arts. The Robots have achieved human culture”.[2]

Strategy—the discipline about which I sometimes write–and the practice of law are Faustian “dark arts” in which its practitioners surrender a part of themselves as the price of gaining power and clarity.[3] The combination is a dark art because of the skills we lawyers use, the people we represent, the institutions where we work directly as managers or employees and those in which we operate in terms of courts, agencies, political and economic institutions. For lawyers this includes the cultures where we help our clients to gain benefits or avoid loss and accountability for their actions. Along with these considerations are such things as the types of problems we help solve and create, the opportunities we ourselves seek, and dealing with the effects that living lives of manipulation, ambiguity, deception and power have on us.

What we do is a dark art because, in helping one set of people we call clients, we often hurt and take advantage of others. In Goethe’s classic work, Faust entered a bargain with Mephistopheles in which he traded his eternal soul and condemned himself to damnation in exchange for transient earthly power. The terms of the bargain were deceptively simple:

I’ll pledge myself to be thy servant here,

Still at thy back alert and prompt to be;

But when together yonder we appear,

Then shalt thou do the same for me. [4]

Lawyers live according to the terms of a quasi-Faustian bargain—and while the cumulative effect of that contract in many ways creates significant good for a disputatious society founded on the Rule of Law that would otherwise be unable to resolve its fundamental disagreements—it generates significant bads for the specific individuals who lose out in the adversary process. Martin Mayer reminds us: “[U]nder an adversary system of law the lawyer is not supposed to see the resolution of these disputes as a question of what might be best for the society as a whole. He is an advocate; his function is to see the possible resolution of a controversy in terms of his client’s best interests.”[5]

Part of the message is that due to their inevitable use of the “dark arts” of law practice there are consequences for lawyers who serve the purposes of the adversary system. Few of us are capable of fully escaping the consequences of our actions. Lawyers tend to be tougher, stronger, more ruthless, precise and impatient than most others. This is less a shift in our morality than a behavioral modification in our personalities–one that may lie latent within us but which starts to emerge in law school and is fully manifested after several years of law practice.[6] Thomas Shaffer quotes David Dudley Field who “claimed a dispensation from having to answer for what his clients did. [Saying] “I shall, whenever I speak for them in the courts of the country, stand between them and popular clamor, just as I would stand between them and power, if they were menaced by power of any kind, monarchical or republican.””[7]

Political philosopher Hannah Arendt described the connection between our acting and speaking in the following way. “In acting and speaking, men show who they are, reveal actively their unique personal identities and thus make their appearance in the human world, while their physical identities appear without any activity of their own in the unique shape of the body and sound of the voice.   This disclosure of “who” in contradistinction to “what” somebody is—his qualities, gifts, talents, and shortcomings, which he may display or hide—is implicit in everything somebody says or does.” [8] Not only do we display who we are through our actions and words, we are simultaneously shaped by what we do, including the use of words and nuance to persuade and deceive others in order to achieve our goals. But in some contexts words and actions are intertwined in powerful ways. Linguist Rush Anshen once observed that humans do not only use language, they are language.[9]  The language we use is that of manipulation, qualification, persuasion and advocacy.  This is the “language” we become.

The concept of the dark arts—which are in fact the skills involved in manipulation and strategic thought and action of the kind done by nearly all lawyers—makes lawyers into what can be called “princes of darkness”. [10] But while law practice has obvious effects on those who spend their lives within its powerful aura, at its best the dark side of the practice of law is nonetheless principled within a defensible interpretation of that concept. Many recoil from the demands law practice imposes, but I argue that the dark side of the lawyer’s life is neither atypical nor exceptional. It reflects an inevitable and even necessary component of being a good, i.e., effective lawyer. I say that what good lawyers do in the best sense is principled because lawyers take a special oath in which they promise to represent their clients zealously in addition to competently. I have long scorned the supposed principle of “competence” because what else is the alternative in the sense of a lowest common denominator of professional quality? Obviously lawyers are not going to say their duty is “incompetence”. Nor are they going to say the duty is one of “excellence”, although at least we could respect that as an aspirational ideal. But to proclaim basic competence as an aspiration is insulting to true professionals. Clients have a right to something better.

The acceptance of responsibility for others’ fates is a “sacred trust” not to be taken lightly. This trust imposes a duty on those who accept it. That duty not only limits an individual’s freedom to pursue personal aims at the expense of the client but creates an oath and duty-based responsibility that legitimates a different kind of moral code—that of the true legal professional. The legal profession’s oath requires the lawyer to be the client’s agent and even apologist. This creates a frequent moral dilemma. To avoid this dilemma the ideal situation would in theory seem to be one where the lawyer represents only those clients with whom he or she is in shared moral synchronization. Although this has its own issues such as the potential for the loss of objectivity that lies at the center of much of the lawyer’s work, it is not even close to how the process actually works for most lawyers who work within large organizations or are “captured” due to economic dependency. Law firms, government agencies, corporations and other bureaucracies—all select their clients and then assign the legal tasks to the lawyer. The individual lawyer’s freedom of choice in such situations is constrained to the point of non-existence. Even in those situations where lawyers operate on a smaller scale and have more control in theory over the choice of clients it is difficult to be able to turn cases away in a competitively harsh environment.

As harsh as my description must seem, lawyers do not experience law practice from a safe distance but are submerged in its maelstroms. They must continually make critical and immediate moral decisions while being subjected to the powerful forces of client interests and competitive advocacy as well as the increasingly difficult economics of law practice. Practicing lawyers must live in the world and work on its front lines while engaging in its conflicts of morality and the exercise of power. Some lawyers thrive on the interplay and take energy and meaning from the conflict.   Many others adapt and go through a moral transformation. Others are seriously wounded emotionally and morally, resorting to aberrant behavior in an effort to endure. Few lawyers possess a viable flight option even if they want it. Many lawyers love the life of law practice.

But one result of a life spent confronting or ignoring difficult moral dilemmas—many of which involve choices between two or more bads of various intensities rather than between obviously good and evil alternatives–is that the cumulative pressure of the experiences alters the nature of who we are. The effects take many forms. Some are manifested in lawyers’ emotional states, their values, and in how they deal with the world. Although the effects are in many ways empowering, the tension undermines the spiritual strength of many who practice law. They become trapped in a confused environment in which actions and principles are in conflict in ways that can never be made harmonious.

A fascinating aspect of this observation about the effects of law practice is that the reasons given for the depressed emotional state of numerous lawyers, such as functioning in a climate of moral ambiguity, and representing people or positions with which the lawyer might not be in agreement–merely restate the intrinsic, morally ambiguous essence of a major part of law practice. Ambiguity is everywhere for the lawyer. It is present in the very fabric of the law. It exists in the advocate’s rhetorical need to persuade judge, jury, and opponent. Edward Levi remarks: “The categories used in the legal process must be left ambiguous in order to permit the infusion of new ideas…. Furthermore, agreement on any other basis would be impossible. In this manner the laws come to express the ideas of the community and even when written in general terms, in statute or constitution, are molded for the specific case.” [11]

Ambiguity is contained within the fundamental concepts of the American legal system–including due process, reasonableness, mens rea and intent, as well as the terms used in many other basic doctrinal categories.[12] Our most important legal terms are open-textured and malleable. The elasticity and plasticity of our legal language is both a strength and weakness. Since our very language is plastic, it should not be surprising that the best lawyers are those most adept at manipulation of the inherent ambiguities–on the one hand muttering incantations that produce a sense of solidity when it is in our clients’ interests, and on the other expanding the uncertainty and situational ambiguity of the same matters when it is not.

Sometimes it is better to know our limits–just as Justice Blackmun observed in Roe v. Wade when he deliberately avoided the question of judicially determining when human life begins, stating: “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary … is not in a position to speculate as to the answer.” [13] The expectation that the entire American society will be able to agree on specific outcomes and directions as a matter of shared rational principles derived from a common set of values ignores that we hold very different beliefs based on our individual points of departure premised on our distinct systems of valuation.

The “elastic shadow” of ambiguity penetrates and infiltrates most of what lawyers do, and is an inescapable aspect of law practice. When we become immersed in a culture of manipulative ambiguity in which our task is to make language and fact mean whatever works in our favor, it becomes easy to lose the ability to draw clear moral lines of right and wrong.Aristotle captured this idea more than two millennia ago in describing the role of the advocate: “[Y]ou must render the audience well-disposed to yourself, and ill-disposed to your opponent; (2) you must magnify and depreciate [make whatever forms your case seem more important and whatever forms his case seem less].” [14] I argue that the conflicted state in which manipulative ambiguity thrives is an inevitable, appropriate, and morally dissonant state that nonetheless captures the essence of being a lawyer. Our lives are filled with fundamental conflicts based on obligations to different power centers. This necessarily results in our developing compartments of valuation within ourselves in order to tolerate the inconsistencies categories of behavior and evaluation.

One critic argued that the hypocrisy inherent in advocacy was a cause of the legal profession’s morally ambiguous professional culture. He suggested that the source of lawyers’ dissatisfaction with their job was that, “seeing shades of gray may signify intellectual maturity, but it’s also somehow impoverishing.” [15] This creates an emotional dissonance that results in various degrees of stress because some part of us intuitively understands the inconsistencies and hypocrisies of our behavior even while we subconsciously seek to keep them compartmentalized. Rollo May explains the consequences. “This compartmentalization of values and goals leads very quickly to an undermining of the unity of the personality, and the person, in ‘pieces’ within as well as without, does not know which way to go.” [16]

I am uncertain as to whether impoverishing is the correct word because in some ways the experience is empowering. But there is no question that a life lived in that fashion is sufficiently powerful to alter who we are. Too much direct experience in the darkness of the human soul–and helping others avoid responsibility for the consequences of their actions or to gain advantages from others–may produce a kind of tired wisdom, but also destroys much of our innocence and idealism. Kevin Lyskowski concludes: “Few lawyers are so candid; most deny any paradox exists. Almost every law firm liberal claims there’s no conflict between his conscience and career because of the “role of the lawyer”: At work, a lawyer must simply represent his client (bad actor or not) and not his conscience. Only at home can a lawyer put his conscience first: At home, he’s acting on his own behalf, not his client’s. Law firm liberals must stop drawing this non-existent line between their personal and professional selves and confusing schizophrenia with well-being.” [17] But Lyskowski is wrong to an extent even though his observations are poignant. The line does exist. It is not schizophrenic. But it does and should produce a degree of emotional discontent. My point is that a lawyer is not promised a “rose garden” and some problems of stress are completely proper in a healthy and moral person.

We prefer to think of virtue or goodness in terms of actions that create what might be called unilateral positive benefits in which everyone is pleased and lives “happily ever after”. But when a lawyer functions as an advocate, someone or some aspect of the social system is harmed or significantly distressed through the outcome. Others are helped. As advocates we engage in corrective and distributive actions between people and human institutions in which we win or lose our clients’ rights, freedom, money, piece of “the pie”, power, etc.   It is very much a kind of “invisible hand” situation that to a significant degree must be taken on faith even while the worst abuses are identified and mitigated through the system’s regulatory mechanisms, legal doctrines of accountability, and legislative fiats. One problem, however, is that most of these mechanisms are inadequate in holding the legal profession up to any responsible level of accountability when lawyers become too fully consumed by the amorality of what we do and are no longer able to regulate their own actions according to essential principles.

The reality of being a lawyer, particularly an effective one, is that the better we are the more we will be feared and resented. Martin Mayer tells us that “[m]uch of the unpopularity of the lawyer simply reflects his proprietorship of a mystery–all professions, as Bernard Shaw once put it, are conspiracies against the layman, and are perceived as such.” [18] When that mysterious knowledge is one of power, such as is possessed and wielded by lawyers, the resentment is heightened. Just as the tax collector is feared and ridiculed because of the power wielded over our fates, the lawyer has become the equivalent of the bogeyman in a system that has shifted from a society based on the rule of law—at least for some–to one dominated by technical and intrusive laws governing virtually every sphere of our activity. The contempt for lawyers and the barbed humor that has grown exponentially are the equivalent of people whistling in the dark to keep their spirits up and fend off the lawyers.

I am arguing for the intellectual illumination of a system of real morality, one based honestly on human nature and the legitimate culture of law practice. The approach is difficult to accept both emotionally and intellectually because it requires that we step away from several of the most powerful metaphors that shape, distort and define how we perceive the world. Martin Mayer, in The Lawyers, offers this insight into the lawyer’s mind, a reconstruction that begins early in the educational process: “The lawyer’s approach to a problem … is argumentative. [The University of Chicago’s] Soia Mentschikoff … [long ago told the wives of first-year law students] “Your husbands are going to change: their personalities are going to change in law school. They’ll get more aggressive, more hostile, more precise, more impatient.” ” [19]

But law school is only the beginning of the transformation from ordinary person to skeptical, ruthless and manipulative practitioner of dark mysteries.   The nature of their clients’ acts, exercise of power and frequent infliction of social harms can increase the likelihood of an irresolvable moral tension that creates heightened impacts on the lawyers who engage in such representation. Although the experiences differ somewhat with the types of clients dealt with, there is a commonality to the lawyer’s responsibility that tends to affect the profession across the board.

One of the most influential areas of law practice where clients have perhaps the greatest power over the souls of their lawyers is in the large-scale corporate law firms often referred to as “BigLaw”. This heightened impact is produced in large part because—unlike every other client group in which the lawyer tends to control the client rather than the reverse dynamic that characterizes most relationships between client and lawyer–the financial incentives and enormous power and knowledge of larger and wealthier corporate clients increases those clients’ ability to corrupt the lawyers and law firms who represent them. New lawyers become cogs in the machines of the private employers. I don’t know what we in the legal profession can do to change these conditions, but without a change in the use of institutional power and behavior the rhetoric of independent professionalism based on the strength of character and values of the individual lawyer rings hollow.

Although a strong shaping cultural effect exists in relation to any institutional structure in which we function and that we accept as our primary reference, virtually no other client group is capable of exercising the degree of control represented in the BigLaw firms that results in shaping the souls of the lawyers who represent their clients and depend on their continuing largesse and good will.   Part of the problem the lawyers face is a combination of the desire for security and status, our need to become part of a community, and fear of rejection by the primary professional community within which we work. An important way of ensuring our successful place within that community is adopting the values, allegiances and behaviors that are part of that community. Those are powerful motivations to become co-opted by our employers. [20]

[1] Ellul’s books, The Technological Society (1964) and Propaganda: The Formation of Men’s Attitudes (1965) are two of the most insightful and profound works I have ever encountered.

[2] Karel Capek, R.U.R. at 105 (P. Selver, trans.1969. Originally published in English in 1923).

[3] See, e.g., David Barnhizer, The Warrior Lawyer II: Using The Art of War and A Book of Five Rings to Gain Victory Through Disciplined Strategy (Amazon 2015).

[4] Johann Wolfgang von Goethe, Faust, in 19 The Harvard Classics 1, 64 Charles W. Eliot, ed. (P.F. Collier, N.Y. 1909).

[5] Martin Mayer, The Lawyers.

[6] “The lawyer’s approach to a problem … is argumentative.” Mayer, The Lawyers.

[7] Shaffer, at 75.

[8] Hannah Arendt, The Human Condition 159 (1959).

[9] Ruth N. Anshen, Language: An Enquiry into Its Meaning and Functions.

[10] See, David Barnhizer, “Princes of Darkness and Angels of Light: The Soul of the American Lawyer”, 14 Notre Dame J. of Law, Ethics & Policy 371 (2000).

[11] Edward H. Levi, An Introduction to Legal Reasoning 4 (Univ. Chicago 1949). Levi continues, “The law forum is the most explicit demonstration of the mechanism required for a moving classification system. The folklore of law may choose to ignore the imperfections in legal reasoning, but the law forum itself has taken care of them.”

[12] David Barnhizer, “Prophets, Priests, and Power Blockers: Three Fundamental Roles of Judges and Legal Scholars in America”, 50 Pitts. L. Rev. 127 (1988).

[13] Roe v. Wade, 410 U.S. 113, 159 (1973).

[14] Aristotle, “The Epilogue”, reprinted in The Rhetoric of Aristotle 3.19 (L. Cooper ed. & trans. 1932). Lawrence M. Friedman, in American Law, (W. W. Norton, New York and London, 1984) at 257 reminds us:   “The legal system is a structure. It has shape and form. It lasts. It is visible. It sets up fields of force. It affects ways of thinking.”

[15] Kevin Lyskowski, “Conflicted Liberals and the Lure of Money”, National Law Journal A19, 5/2/94, quotes a young lawyer: “I wish I could still commit to an idea or cause with abandon; often I feel I’ve lost what made my life meaningful.”

[16] Rollo May, Man’s Search for Himself at 46 (W.W. Norton 1953).

[17] Lyskowski, supra, n. 13.

[18] Mayer, The Lawyers 9 (1966).

[19] Mayer, The Lawyers, id. at 76, 77. Although the remarks were at a time when few women enrolled in law school they hold true 75 years later. Law school changes us and the practice of law further alters who we are.

[20] Paul M. Barrett, “Putsch and Shove: A Once‑Stodgy Firm Makes a Flashy Return, But at What Cost? Cadwalader Ousted Partners And Ushered in Profits; A View of Law’s New Face–The Maitre d’ Gets the Ax”, Wall Street Journal A1, Monday, August 17, 1998; 1998 WL‑WSJ 3505634.

Having Skills Is Not the Same as Using Skills

 

 

Having Skills Is Not the Same as Using Skills

 

 

An obvious problem with the approach based on what a lawyer should do is that even if a lawyer possesses the full range of skills needed to fulfill his professional responsibility to the client there are critical factors that get in the way of doing so. These factors include the lawyer’s need for revenue, the behavior of the opposing lawyer, and the fact that in many instances the “ideal” handling of a dispute or transaction requires the investment of time, energy and resources the lawyer and/or the client do not possess. In many instances what should be done in the representation can’t be done, or simply isn’t done. The reasons for the failure can be because the client can’t afford to pay, the other side has failed to evaluate their position effectively or honestly, or a client can pay legal fees and the lawyers are “milking” and “churning” in order to maximize their own return.

 

I always loved teaching courses on trial, negotiation, strategic thinking, dispute resolution and negotiation because students were highly motivated due to their feeling that such educational opportunities were directly related to what they would be doing after graduation. In the current debate about what American law schools should be offering their students in order to make them more “practice ready” on graduation, many of the critics of legal education are ignoring the fact that much of the alleged “skills” shortfall of lawyers has more to do with the failure to use or apply skills most lawyers possess than the lack of practice skills themselves. As someone who spent four decades deeply involved in law teaching and curriculum development in pretty much every type of course context from Jurisprudence through criminal and civil clinics, Criminal Law, externships, professionalism, trial and transactional courses covering the full range of legal skills including negotiation, dispute resolution and strategy, I can say that the expansion in “skills” courses in law schools over that period has been dramatic. At this point law schools are offering considerably more courses in professional skills and values than their critics have realized or admitted, including a wide range of simulated experiential courses as well as clinics and externships.

 

The inability to match the reality of law practice with the professed ideals of how lawyers should operate on behalf of clients is even more problematic on the solo and micro-firm levels that so many new graduates are now entering, too often as a matter of necessity rather than personal choice and preference. Law schools fail to deal with some of the most critical aspects of client representation in which a significant percentage of lawyers in private practice find themselves after graduation.   Nor is it generally possible to create anything resembling the economic dynamics of private law practice through law schools relying on simulated experiences or even typical clinical courses that almost inevitably lack any dependency on client funding or need to market themselves to build up a critical mass of clients.

 

In teaching courses on professionalism and professional responsibility I always tried to provide students with a sense of the darker realities or at least the more honest aspects of private law practice. This included an economic analysis of what was involved in types of law practice and the financial realities of engaging in a competitive enterprise in which there was an increasingly negative relationship between supply (lawyers) and demand (people who can pay lawyers). But awareness of such things in no way means that you can do anything about them. In the market system in which lawyers function the conditions of competition have been changing dramatically in ways that threaten lawyers, law schools and many of the heavily indebted students who are paying between $100,000 and $200,000 to gain the right to practice law in America. Struggling to make ends meet as a lawyer has become for too many a difficult “hand-to-mouth” existence. One study of the Chicago bar, for example, reported that in real dollar terms the earnings of solo practitioners had declined from over $90,000 per year to $55,000—a truly frightening earnings drop for those in that context.[1]

 

Even for the best lawyers operating on the solo and micro-firm scale of private practice the undertaking is tough from a financial point of view unless they are fortunate enough to have a substantial and dependable source of income from clients. Predictable and ongoing retainer and referral agreements with institutions such as local governments or insurance companies that can supply a steady and predictable flow of income create a financial base that mitigates the challenging struggle to generate the essential revenues needed to operate a law firm at any realistic level of quality.

 

Without that kind of reliable and consistent financial base supporting essential operations many lawyers are scrounging for clients. Having to spend significant amounts of time often unsuccessful “hustling” to find clients means that there is less time to devote to the planning, preparation and implementation of a single client’s dispute or transaction. This means that the “ideal” approach to client representation involving what should be done in the best-case scenario is an impossible dream for many lawyers in actual law practice. It also means that in the challenging and cutthroat context in which much of private practice operates it is absolutely vital that a lawyer develop the skills of quick and efficient case assessment. This can allow intelligent and effective strategies to be identified at a point where honest and accurate advice can be provided the client.

 

The effects of the oversupply of lawyers differs by scale of practice and, presumably, by type of practice. The extent to which the lawyer has been able to develop competitively beneficial relationships, networks and a positive reputation of the kind that could lead to client word-of-mouth referrals makes the difference between success and failure. Just how bad the situation has become for many lawyers is demonstrated by research examining Indiana lawyers over a five-year period. This suggests the differential effects between types of law practice and scale of operation. [2]

 

The Indiana data demonstrate that the category of solo practitioner and 2-5 lawyer firms, which together make up two-thirds of private practitioners, are particularly hard hit. The same data show loss in real income far lower at the large firm level with 20.2 percent of lawyers at the solo practice level experiencing real and significant declines in income but only 3.8 percent of lawyers in the large firms experiencing declines. At those levels 37 percent of solo practitioners saw their earnings stagnate in real terms while 17 percent of large firm lawyers reported nominal increases in earnings and 77 percent of large firm lawyers reported real increases in income for the period. At the 2-5 lawyer firm size 17 percent experienced declines in earnings, with 37 percent only nominal earnings increases in real dollars. [3]

 

Lawyers trapped in such stagnating and declining earnings situations may wish fervently that they had the time and resources needed to function on the highest professional levels but are struggling to make enough to pay rent, utilities, essential personnel, health care, mortgages and personal living expenses. When lawyers and law school faculty talk about the need to teach “practice ready skills” to law students so they can hit the ground running, in far too many instances there is not only a lack of honesty or understanding about what those skills are among the professoriate as well as how you can deal with the stresses and inadequacies of law practice, but a lack of consideration regarding the economic realities of private law practice and how law graduates can survive in a declining and financially challenging environment.

 

One problem is almost certainly that law faculty members have no idea of the financial realities under which lawyers operate. But another issue is that even if law faculty fully understood the nuances of law practice on every level into which their graduates entered the profession there is no ready answer in terms of what law schools can do to change or influence the competitive realities of law practice. The fact is that many lawyers are “under the gun” to the point that, even if they possess the skills necessary to handle a client’s case adequately (and many do not), they lack the time to do so. Or, and this is an equally serious concern, they are forced to try to cope with an opposing lawyer who is in that negative financial situation and is not doing what is needed either due to a lack of skill or experience, insufficient time, or the need to maximize the revenues on the case through “churning” or bill padding. For many people, survival trumps professionalism.

 

Some law schools are trying to “invent” new practice-oriented elements for their students and graduates. These include an expansion in what are considered “skills” courses, and support following graduation such as “incubators” for new graduates entering solo practice and short-term subsidies for graduates who are working in the equivalent of fellowships for public interest and governmental organizations. One problem, however, is that the new graduates and many longer-term practitioners are up against a “rock and a hard place” created by a finite and even dwindling pool of paying clients. This drop in accessible clientele willing and able to “pay the freight” for the services they need applies through much of private law practice, even affecting the BigLaw firms that are in a continuing “dance” of mergers, layoffs and shrinkage as their “bread and butter” corporate clients increasingly develop in-house legal departments and reduce their dependence on the large law firms. It applies even more to solo and small firms that offer more limited services to less affluent clientele and lack the resources needed to market their services in ways that put them above the “noise” of competitors claiming they can be just as effective. The challenge is that law schools can educate for the skills of law practice ad infinitum but if there is not an adequate volume of paying clients that lawyers can rely on to feed the needs of their law practices even the most highly skilled lawyer has only limited time to devote to client needs. The available time may simply not allow lawyers to provide what is needed even if they possess the skills.

 

[1] See Urban Lawyers: The New Social Structure of the Barby John P. Heinz, Robert L. Nelson, Rebecca L. Sandefur, and Edward O. Laumann (2005) referred to as Chicago II, and John P. Heinz and Edward O. Laumann, Chicago Lawyers: The Social Structure of the Bar (1992).

[2] See, William D. Henderson, “Financial and Billing Survey of ISBA Lawyers,” presented at Solo & Small Firm Practice Conference, May 31-June 2, 2007. http://www.law.indiana.edu/people/henderson/share/ISBA.pdf. This is also reported by the Wall Street Journal at http://online.wsj.com/public/resources/documents/info-Law0709-24.html.

[3] Henderson, id.