Over at PrawfsBlawg, Howard Wasserman, forsaking the pedagogical oath to make everything sound more academic than it is, concludes that the law is dead.
Not that blogs need to have themes, but it occurs to me that the common link between Jonathan’s post on the call for a non-lawyer Supreme Court justice and Dave’s post on the movie about the Bonds baseball (which I must see) is the public’s lack of respect for lawyers, legal knowledge, and the legal system. There is a belief that they could do better–in making constitutional law or figuring out the best way to resolve a dispute over a baseball) simply by applying good-old common sense. Special legal training or knowledge not only is unnecessary, it is an actual impediment to the best outcomes. Lawyers, or those who resort to lawyers, are taking the wrong tack.
Not only is the law unhelpful to the resolution of legal stuff, but an impediment. The public wants to replace it “simply by applying good-old common sense.” Anyone who has read SJ for a while knows that those two words, “common sense,” are my least favorite. Anyone who embraces those words will not be invited for dinner.
From this ignominious start, another lawprof, Jeff Lipshaw , connects the dots to Stanford Law School. Before addressing the substance of Lipshaw’s post, however, I must quote this sentence/paragraph;
So was Larry Cunningham’s post yesterday at Concurring Opinions, discussing Louis Menand’s essay on the anxiety inherent in academic interdisciplinarity.
Interdisciplinarity? Shoot me now. Yet this word, more so than any other, captures the essence of what follows. It seems that Larry Kramer, dean of SLS, will revolutionize law school. That’s right, revolutionize (maybe resulting in revolutionality?). Here’s Lipshaw’s summary of the revolution.
1. The first year of law school largely works, and that will continue largely unchanged.
2. The second and third years of law school largely don’t work.
3. The law school will be a portal to the university in the second and third years, giving students tremendous flexibility in designing course and clinical packages that take advantage of ALL of the university’s graduate and professional programs. This isn’t just more joint degree programs (but many are available), but the opportunity to make the education underlying even the J.D. as interdisciplinary as the student wants. The educational impetus is that it’s no longer true that a lawyer can obtain the skills he or she needs to succeed merely by studying legal doctrine with law professors and other law students.
4. All students will get an opportunity to spend at least one quarter in a full time clinical experience – with no competing classes or projects.
The first one seems okay. The second, true. The fourth, well, probably not enough and a bit short of revolutionary. And then there’s the third.
Interdisciplinarity. Likely taught by interdisciplinarians. Why? Lipshaw explains.
I’ve gone on record as suggesting the professional judgment of a business lawyer requires not just interdisciplinary skills, but a “meta” ability to deal with many disciplines, something I call the discipline of metadisciplinarity (or, as I referred to it in a talk at Boston College a few weeks back, the very deep art of knowing how and when to be shallow). Metadisciplinarity asks one to engage, as a practitioner, with the interplay between technical expertise and common sense, or, as an academic, with the tension between specialized knowledge and dilettantism.
Aaarrggghhh. There are those two words again. My eyes are burning. Under the Stanford Revolution, law schools will now broaden the legal education to include all the other aspects of life that will enable them to be metadisciplinaritists, engaging the “interplay” between technical expertise and common sense.” There’s a dilettante in the room, and he’s called “Professor”.
Here’s the deal, plain and simple. That whole meta-inter-disciplarnialotomist thing you’re promoting? We call that undergrad. If you didn’t get enough of it there, then there’s always the school of hard knocks. We call that life. Are you eggheads kidding us? You’re going to charge kids who couldn’t get into Med School $40 grand a year to take the electives they missed the first time around and call that law school? Are you nutz?
The point of “common sense” is that it can’t be taught. Not even at Stanford, or even a school without a men’s fencing team. If you’ve got to teach, you don’t have it. I can just smell the next step, the Stanford Law Review of Common Sense (Metadisciplinary Edition).
But the other point of “common sense” is that it doesn’t exist. It’s a mere fiction that we each create in the dark part of our brain to explain and justify those things we truly believe when we have no real basis. It’s the phrase that allows us to skip over reason and get right to the outcome we desire. And it’s different in each of us, which is why we’re at each other’s throats all the time.
And yet they call it “common”?
There will always be calls by those whose unexplainable sensibilities are offended by what they perceive as unfair or inappropriate law because it doesn’t comport with their knee-jerk vision of a correct outcome to do away with the law and leave it in the hands of normal folks, applying good-old common sense. But the only use of the word “disciplinary” involves a good smack across the face.