If You Let Me Play…

Howard Wasserman posted at  PrawfsBlawg about the importance of sports for women, one purpose of which was to teach a critical lesson, as expressed by basketball coach Katie Meier:


She particularly emphasized something I never thought of–that sports teach you how to fail and how to come back from failure, an ability we can use in all aspects of our lives.

Having made this point a few times using the example of fencing, I left Howard a comment, covering the pedagogy of self-esteem and the shame of his not having come to this epiphany sooner. If only lawprofs, who function as occasional classroom teachers, would stray from the comfort of their inner sanctums, maybe they would learn new things before another class of students leaves their classroom untaught.

My comment was deleted.  Perhaps it wasn’t deemed sufficiently pleasant or complimentary, or perhaps it was too off-topic for the  new comment policy at PrawfsBlawg. In any event, it’s gone. I wrote another comment, which is there as I type but may not remain much longer, about how sad I feel by their hurtful deletion.  I’m just kidding.

I am not kidding, however, when I sit on the sidelines and watch the lawprofs engage in a symposium on the subject of Legal Education’s Response to the Economic Realities Facing the Profession being held at Legal Ethics Forum.  Many readers can’t be bothered with academics, whether because they are horribly boring, prolix and tedious, their views bear so little connection to reality as to be worthless or they are so concerned with being civil and respectful that they are incapable of making a point.  I completely understand.

However, whether we want to admit it or not, lawprofs influence what happens in our profession, despite every reason to ignore them.  The imprimatur of scholarship carries a certain panache, making them taller, more handsome and decidedly more consequential when it comes to their pontifications.  Trench lawyers are a dime a dozen, so common that we step over them to get closer to the lawprofs lest we miss their utterance.  Read a newspaper article on some breaking crime or case, and chances are you will see a lawprof quoted about a critical issue, even if he hasn’t gone within a mile of the courthouse in decades. 

To the extent a non-scholarly voice gets heard, there is usually a title attached to distinguish the thought leader from the trench lawyer. Even if its only “former prosecutor,” or better still, have a law review article that’s been downloaded more than 3 times from SSRN, the academic equivalent of sexy (I was going to write “hung like a racehorse, but my refusal to use neutral pronouns already reveals my political incorrectness).

Yes, I know that I beat this horse to death, but this is my profession.  Our profession.  And I refuse to leave it in the hands of often-brilliant but brutally naive and inexperienced scholars.  Where are the lawyers?  Lawprofs have seized this issue, largely because  David Segal’s  series of articles in the New York Times have nurpled their purple, making it the newest, coolest topic for academic metacognitive consideration. Yet they only want to talk amongst themselves.

There is a lot to discuss here. These are important issue, ranging from the efficacy of law school to the future of lawyering, and it’s being done by a bunch of people who have a horse in the race, yet don’t actually do it on the back end.  Lawprofs don’t make a living representing clients.  Lawprofs don’t face judges in court and wonder why nobody ever taught them that neither life nor law is fair.  Lawprofs went to the finest schools, and spent a few hours working for a judge or Biglaw before turning their attention to the cloistered life of a scholar.  Who are these people to decide how our profession should be handled?

Eating barbecue ribs with  Kevin O’Keefe the other night (paid for by Dave Wodnicki of LexisNexis, rather than in satisfaction of Kevin’s lost bet on the Packers, I might add), I asked him how we can break through the wall around the lawprofs so that all the “stakeholders” in the blawgosphere will engage with one another, including the lawprofs who remain isolated, only interested in the applause of their own.  Kevin, who has been at this blawging game far longer than me, told me it will come.

I used to think that too.  I don’t anymore.  The lawprofs aren’t interested in the thoughts of lesser intellects, and can’t bear our vulgar ways and unpleasant rhetoric. I get that, though from my seat, they look like a bunch of teacups unable to take disagreement without crying and running home to mommy.  They vehemently disagree with me. They tell me they adore disagreement, only on their terms of civility and respect.  In other words, they may condescend to acknowledge the existence of trench lawyers, but only if we play by their rules.

But they’re talking about our profession, and their talk seems to matter a whole lot more than ours.  This is unacceptable, and if trench lawyers don’t stop worrying about their marketing, their hand-wringing over the latest harm done by the commonest enemies, and start confronting the fact that this discussion is happening without us, we’re going to wake up to a profession that bears little resemblance to anything with which we’re familiar and instead find ourselves in a scholar’s dream.

This is happening now.  Do you really want to sit on the sidelines while the game of your life is being played?

2 comments on “If You Let Me Play…

  1. Thomas Stephenson

    In theory, lawprofs should be neutral and detached as to what is going on in the profession that their opinion might mean something. Practitioners differ on a lot of things: for example, some lawyers think it’s perfectly fine to charge people minimal fees and then do minimal work; others see a real problem with this. Both have an interest in it, so theoretically, the lawprofs (who don’t have an interest either way) would be valuable contributors.

    But in reality, the lawprofs are so detached as to make their opinion useless. A lawyer charging $200 for a criminal case (making legal services more affordable for the poor) sounds really good if you don’t understand exactly what he’s doing for that $200.

  2. SHG

    That’s an excellent example of where theory and reality have absolutely nothing to do with one another.

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