The Time For Talk Is Over

As regular readers know, I’ve been poking GW Law Professor and Concurring Opinions honcho  Dan Solove in the side for a while now to get a reaction out of him,  It’s not that I’ve got a special thing about Dan, but he became the poster boy for what I saw as the insular lawprofs.  This culminated in a back room discussion between Dan and I via email.  Dan asked that I keep the conversation private, and I will respect his wishes.

But since I’ve been my usual noisy self about the lack of discussion between practitioners and professors, it seemed only right to close the loop on the subject.  The bottom line is that Dan disagrees with me that there is a serious divide between the lawprofs and practitioners.  He doesn’t see it.  He tells me that he’s all for vigorous debate and discussion with practitioners as well as professors. 

However, that’s just the beginning, rather than the end, of the issue.  The love of debate notwithstanding, I was told that my tone, and apparently that of my “circle” (the meaning of which is not entirely clear) as well, is too “disrespectful” to the scholars.  I didn’t see it that way, but obviously I’ve offended Dan and that’s how he felt.  The problem, from my side, is that my tone was no different toward Dan (or any other lawprof) than it would be toward anyone else.  Practitioners don’t seem to have a problem with it.  Dan found it unacceptable.

My offer of a truce, coupled with my offer to tone it down so as not to offend academic sensibilities, was appreciated, but rejected.  Dan’s position was clear: I have already “poisoned the well.” 

Needless to say, my views differ from Dan’s, but it’s no longer relevant to explain why.  Regardless of my thoughts about the lawprofs, or their thoughts about me (or my circle, whoever that may be), I have been clearly told that I am persona non grata.  Whether this foreclosure of discussion reflects a failing on their part or mine is no longer a worthy subject of discussion.  Right or wrong, it’s done, and Dan is neither willing nor desirous of engaging in any discussion with me.  Having heard nothing from other lawprofs, I assume his views are an accurate reflection of others.

On the one hand, I suppose that Dan’s decision to put me on permanent ignore is a wise.  I don’t really think I have it in me to express myself in a way that would suit academic sensitivities, even though they deny that they are either sensitive or averse to debate.  I am a trial lawyer, and I express myself like a trial lawyer.  I won’t please everyone, and I’m just going to have to live with that.

On the other hand, however, it’s sad that some within the legal profession, meant in its broadest sense, would rather hide behind being offended than confront the scrutiny of their ideas.  I’ve no doubt this sentence will be seen as highly offensive, but that’s how it goes.  It’s not all hugs and kisses in the real world, and we sometimes duke it out with each other to test our thoughts and beliefs.  We are cavemen to those with refined sensibilities, but we are also the cavemen who actually do the stuff that others just talk about. 

So I have failed to meet Dan’s qualifications.  I am saddened by that, not because I agree that I’m too coarse and vulgar, or that I’m too strident in my expressions, but because I find much of interest and value in the lawprofs’ writings and believe that the divide is huge, and quite dangerous.  Too many of my brethren don’t bother with the academics because they find them clueless, and they are wrong to ignore them.  Unlike me, they want nothing to do with the lawprofs, or their nuanced messages of deep thoughts.  Real disrespect can be found in the fact that practitioners ignore you rather than disagree with you. 

But if the lawprofs won’t engage us unless we change our ways to meet their delicate sensitivities (and yes, they are extremely delicate no matter how much they deny it), then they will continue to pursue their theories and we will continue to suffer lawmakers and courts using their theories to justify bad and dysfunctional law.  If the theories can’t withstand the scrutiny of practitioners, and yet the lawprofs are cool with that, then I guess we’re just stuck with things as they are.  One might ask why we don’t demand that lawprofs get their heads out of the clouds and start expressing themselves more like practitioners.  Of course, that will never happen.

To be clear, I still respect Dan Solove and the rest of his “circle”, as well as those writing at the wealth of other lawprof blawgs.  I may not care for the way they express themselves at times, or how they circle the wagons rather than court controversy, but they offer new ideas that merit attention, whether positive or negative.  And I hold no malice toward Dan or others for feeling as they do.  They’re entitled, whether I agree with it or not.  But I do not regret, and do not apologize, for not meeting with their approval.  That they would rather hide from the brutish Greenfield is their choice, and it’s their theories at stake for their refusal to confront the challenge of at least one real world practitioner.

But no matter.  I’ve been rebuffed and my quest is at an end.  And to the extent that I hadn’t offended every lawprof in the nation before, I’ve probably done so now.  But remember, guy and gals of the Academy, I’m one of the few practitioners who even cared that you existed. 

3 comments on “The Time For Talk Is Over

  1. Dissent

    I am truly sorry to read this. I have tremendous respect for Dan Solove, who has always graciously given me his time when I inevitably pester him with one of my gadzillion privacy law questions for my own blog. And I attended a privacy law conference that Dan organized and chaired that brought together academics, policy makers, and litigators who were able to discuss the intersection of the research, theory, and real-world application of privacy law.

    I read Dan and privacy law professors to give me a sense of what might be — or should be. But I also value the real-world experience of those in the trenches and hope that at some point in the future, we will be able to get everyone together in the same space to really engage in the kind of lively debate that can move us all forward.

  2. SHG

    I’m sorry too.  It’s a shame that there can only be a conversation on his terms, but that’s his choice.

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