There’s an ongoing series at Slate called the Supreme Court Breakfast Table. I don’t know what they serve, but it’s clearly not bagels and lox, as proven by the fact that nobody invited me to dine. But then, who would want a trench lawyer horning in on the polite conversation of important legal minds so early in the morning, right?
Except that Judge Richard Posner is in there, serving up a huge portion of grits. The Seventh Circuit’s firebrand is the “Dick” in the title, which is what some of the participants call him in the dialogue. Not Indiana lawprof Dawn Johnsen, however, who offered this parenthetical:
(I note that by using Judge Posner rather than “Dick,” I hope I am being appropriately but not “too respectful;” addressing a judge known from clerkship days by his first name feels to me as unnatural as would calling my fourth-grade teacher “Lee” and not Mr. Tintle, even decades later.)
Like Johnsen, I call judges “Judge,” though my reason is somewhat different. It’s not because of some personal clerkship quirk, or any concern about being obsequious. I will call them “judge” while being slightly critical of their decisions. No, my reason is institutional. They’re judges and I’m not. They get to be called by their title out of respect for the institution and the fact that they hold an office in it which I do not.
Even when I’m invited to call a judge by his first name, I choose not to do so. That may be old school, and may not hold true when we’re having cocktails, but it does in public. As much as many of you may feel that someone wearing a robe is undeserving of your respect, you miss the point.
You don’t have to like or respect a judge to understand the role she holds in the institution. And as long as the institution exists, and lawyers have a role to play in it where we try our best to use it for the benefit of our clients, we must maintain a level of respect for it. If we don’t, then there’s no reason for us to say or do anything when the guys with guns and shields pinch our clients and throw them in the can. Now, back to our regularly scheduled program.
As to Akhil’s points and to you, Dawn, I don’t doubt that law professors are frequently active outside the classroom and that their academic work sometimes addresses practical issues, but what I’d like to see is evidence of impact. Amicus briefs? Working for nonprofits? Blogging? “Speaking truth to power?” Absurd: speak all you want, professors, power doesn’t listen to the likes of you. And a musical is going to transform constitutional law? And as for digging into constitutional history, the farther back you go, the less you will find that has even the slightest relevance to today.
In other words, show me the professoriate’s accomplishments, not the activities or aspirations.
Whap. But before you enjoy the lulz, understand that Judge Posner’s smack of Akhil (see, he’s a lawprof, so we can call him by his first name) and Johnsen comes at the top end of the influence food chain.
A better question is how much of that writing is worth reading. Is Judge Posner right that law professors are, well, too academic? At one level, I would say clearly yes—as have many others, over many years. No doubt, much of what fills the modern law journals is of too little use, whether to practitioners or the development of thought. We long have heard that, and it’s valuable for judges to keep that feedback coming. I also agree with his point that we make it too hard to enter legal academia later in a career; it was unusual when I did so a dozen years out of law school, and it seems to have become yet more difficult since.
On the other hand, numerous of my academic colleagues have done serious full-time stints in government and nonprofits, typically by taking leaves. Many more engage deeply with real-world practical experience, even while teaching, be it through litigating and filing amicus briefs; serving on nonprofit boards; working with legislators and other elected and appointed officials; blogging for Slate or SCOTUSblog, Lawfare, Just Security, Volokh, or themselves.
Johnsen’s defense of law profs being
worthless too academic isn’t just self-serving in its reticence, but a “laugh out loud” opportunity for everyone who isn’t a lawprof. Sure, every once in a while an academic writes something that someone reads, but people occasionally win the lottery too. Who are you kidding?
But what follows is what really speaks volumes: SCOTUSblog, Lawfare, Just Security and Volokh (Conspiracy, which she couldn’t even bother to give the full name of the blog)? And Slate? One of these things is not like the other.
The hierarchy of legal writing is like something out of M.C. Escher’s wet dream, where each group looks up to one and down on another.
It’s all about whose validation they seek. You have the pop legal writers, like those at Slate, whose posts have a big impact on framing the legal opinions of the great unwashed, but who get no respect from the Academy, except to the extent they link or quote them, because there is no group more desperate for self-esteem than lawprofs.
Then there are lawprofs, who fawn over each other because no one else will, and pretend they’re relevant or their entire existence is revealed as pointless since they couldn’t care less about teaching law students, and so are resigned to trying to make themselves scholar-stars.
At the apex are the judges, who actually get to decide stuff, which is as close to real in the ecosystem of legal thought as it gets, even though the pinnacle of decision-making, the Supreme Court, is so far removed from the real world, so sanitized, as to filter down to the trenches in only the most trivial ways.
Notice who’s not mentioned in this circle jerk? But don’t cry sad tears, because there is another whole ecosystem that happens off the radar of the very important legal minds. In the trenches, where real lawyers fight, real judges rule, real litigants suffer and writers for Slate never go (because they couldn’t find their way to the courthouse even if they were so inclined). Academics avoid it like the plague, as it’s nasty, vulgar, dirty and doesn’t use lawprof language. But it has an impact. Because trench lawyers and trench judges, even though they look down their snooty Yale noses at us. Enjoy your breakfast.
Update: At Prawfsblawg, Paul Horwitz skewers his own.
That said, I think his reply is right on the money. Johnsen raises some very peculiar, perhaps tellingly peculiar, arguments in response to him. Whatever the phrase “speaking truth to power” means, it is ill-chosen here. Law professors do indeed sometimes speak truth to power. But most of the time, at best, they speak truth about power, which is not at all the same thing. Speaking truth to power requires one to speak directly to an audience of the powerful and for the powerful to be listening. Burying a criticism of the powerful in the middle of an over-long law review article in a journal likely to be read by few–few law professors, let alone lawyers, law clerks, and judges–does not require much by way of fortitude. It amounts to whispering, with footnotes, into the void. (Emphasis added, because this is friggin’ gold.)
It’s not that he agrees with Judge Posner, as much as he finds the prawf’s rationalizations totally ridiculous.