Over at Concurring Opinions, Dan Solove says that all the hoopla over GatesGate missed the real problem.
In what country can people routinely be arrested (and sometimes imprisoned for a significant amount of time) based on the whim of a police officer or a judge? Sounds like something that would happen in a totalitarian state, but it’s the way things work in the United States.
In the frenzy of news coverage of the recent incident involving the arrest of Professor Henry Louis Gates in his home, only a small amount of attention was devoted to the issue of police discretion. Gates was arrested on a charge of disorderly conduct, which was later dropped. Charges such as disorderly conduct basically give the police an enormously broad range of discretion to arrest anyone for nearly any reason.
I’m constrained to conclude that Dan’s opinion is premised on his observations of the blawgosphere, which means that he’s not reading a whole lot outside of his comfort zone of scholarly posts discussing normative pedagogical paradigms. Or, in English, he’s got to get outside the academy once in a while.
Dan is right about discretion, but totally wrong about the absence of discussion. The problem is that academics are so busy trying to out-scholarly one another that they refuse to pay attention to anything said outside the clique. And the problem with this is that all these fine minds are wasted by their refusal to acknowledge that there is a world of discussion, perspective, opinion, by a blawgosphere full of folks whose primary concern isn’t impressing the tenure committee.
I enjoy and appreciate much of the depth of thought and discussion that happens inside the big ivy walls. Why won’t the lawprofs step outside once in a while to learn what happens in the trenches? Are we too ugly? Are we too course? Are we too forthright? Do we not use big enough words? I dunno, but for all my efforts to prod these otherwise brilliant men and women to engage in discourse that might actually do something, they persist in hiding amongst their own.
Dan’s post caught my eye because of his discussion of the Big Yawn case, where Will County Circuit Judge Daniel Rozak, an otherwise decent judge by all accounts, held Clifton Williams in contempt for the Big Yawn. Williams, there to watch his cousin get sentenced to probation, bought 6 months.
Judges have broad discretion under the law, which defines contempt as acts that embarrass, hinder or obstruct the court in its administration of justice or lessen its authority or dignity. As long as the sentence is not longer than 6 months, there is no review of the case — unless the offender appeals to the judge or a higher court. . . .
In the two-story brick home where Williams had been living with his aunt Cheryl Mayfield and caring for his 79-year-old grandmother, family members said they were in shock over the sentence but were unable to afford an attorney to appeal.
Dan questions why Rozak didn’t just toss Williams out of the courtroom rather than hold him in contempt and slap him with the max sentence. This reinforces Dan’s point about too much discretion, allowing judges (like cops) to do as they please without any realistic possibility of being held accountable. Sure, there’s a theoretical path available for redress, but no one is going down it without some non-theoretical money to pay the legal fee. Unless of course the public defender has some spare time on his hands. Or maybe, just maybe, some law professor who is actually licensed to practice wants to pick up the ball and run with it.
But the Gates case and the Big Yawn case are the tip of the iceberg. In the trenches, we know that these are daily hourly occurrences. Only the really weird ones, or ones involving Harvard professors, make it onto the radar screen. The garden-variety abuse of discretion lacks the sexiness to interest the media, but is equally meaningful to those poor schmucks who suffer it on the streets of America regularly.
Those of us in the trenches write about this sort of abuse all the time. Post after post offers examples of abuse of discretion, its cause and effect. Yet Dan thinks he’s stumbled onto a new idea?
Seriously. Get out of the marble halls and see what real life looks like. You never know, you might learn something. And maybe even make lawprofs relevant. Remember, a mind is a terrible thing to waste.
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I’m reluctant to respond, as your post and several other of your posts display such vehement contempt for academics, but I cannot resist.
When I came across your post, I was pleased that you agreed with me, though despite this, you still managed to cast me as a fool who happened to miraculously stumble upon the truth.
You’re very quick to make conclusions about me, my background, and what I’ve read without much basis or knowledge.
I was speaking about the news media, not the blogosphere in my post. And there is a ton of legal scholarship about excessive discretion, so the issue isn’t something brand new academics have just recently stumbled upon — and there have been articles on the topic for quite some time.
I’m rather surprised you continue to read Concurring Opinions given your contempt for academia. If we’re all a bunch of clueless out-of-touch fools with our heads in the clouds, and the true wisdom is held by those who practice law, then why waste your time reading us?
But perhaps that’s what you want to continue doing — make broad generalizations about academics and bash these stereotypes.
I’m not writing to try to convince you otherwise — the tone of your post and others demonstrates that you’re not likely to change your opinion of academics anytime soon. But I must say that I find your post and others about my co-bloggers to be unnecessarily dismissive and nasty.
I’m not writing to stop you. Continue on if you must. Hurl out your insults, hasty assumptions, and anti-academic tirades. It’s a big blogosphere, and everyone’s entitled to his/her opinion. I just couldn’t resist venting my annoyance.
You’re annoyed? Good. I’m annoyed too. You will recall that a couple of years ago, I wrote about how lawprofs isolated themselves from the rest of the blawgosphere, happily interacting with each other but ignoring practitioners. For a brief period after that, there was some cross-discussion, but then the lawprofs, with a few notable exceptions, fell back into their own insular ways.
Since then, the isolation has increased. Remember the Danielle Citron symposium, where no one other than handpicked academics were included, and practitioners were actively shunned? You complain that I treat academics like fools with their heads in the clouds. Do academics not behave like elitists, with practitioners too stupid and vulgar to have anything worthwhile to say? We must contribute nothing to any discussion, given the absence of links, mentions, discussion or cross-talk. We must be dumb as bricks to have absolutely nothing worth your time or notice.
Forget about me. Granted, I’ve taken a more aggressive role in crossing over from the practitioners’ side of the blawgosphere to the academic side. What about all the other practitioners, who go unnoticed and unmentioned, who have never said a nasty word about academics? They don’t exist either.
I read Co-Op. I read PrawfsBlawg. I read many of the lawprof blawgs. I read them because many of the posts are fascinating, have new ideas or express worn thoughts in new ways. I read them because I learn from them. Although this might not give rise to a post about how wonderful they are, though it sometimes does, I read every post at Co-Op because it adds to my knowledge. Lawprofs are happy to receive positive reactions. But must they whine when it’s not all hugs and kisses?
And what about you? Do you read practitioner blawgs? Any of them? Aside from the odd post that mentions your name, what practitioner blawgs do you read regularly? When is the last time you, or anyone over at Co-Op, has suggested that a practitioner has anything worthwhile to add? Practitioners have quite a bit to say, and a wealth of insight into how the law actually functions. Yet you wouldn’t know it from Co-Op. Or the other lawprof blogs, with a couple of notable exceptions like Doug Berman or Volokh.
Take a look at the Henry Gates matter, a subject of huge concern for academics. The practitioners had much to say, and the posts reflected a far more knowledgeable and meaningful discussion on the subject than the lawprofs. I don’t recall a single academic post that mentioned anything by a practitioner. Not one. Isolation? Elitism?
Turning to this particular post, if your complaint was this was not an entirely new concept, but one that was neglected by the media but well developed by practitioners, then why didn’t you say that? You didn’t, you know. It was your choice to ignore the collective wisdom of practitioners, our struggle to make this point over and over. One of your commenters said he was shocked to learn about this. Shocked to learn? It’s everywhere in the practical blawgosphere. But you would never know that from your post.
So spare me your annoyance. You’ve chosen to hole yourself up, surrounded only by your fellow academics. When I write something nice about a lawprof, I get a thank you, but never any meaningful cross-discussion. As long as the lawprofs chose to hide from practitioners, to ignore practitioners, to expound on the theoretical and eschew the reality, to act as if there’s no thought worth consideration except those of your fellow academics, the discussions will be long on jargon and short on utility. Like it or not, few lawprofs have much experience in the real world, though they are all too full of their three years in the US Attorneys office, making them experts and beyond learning anything from nasty, low-brow practitioners.
Practitioners don’t have exclusive possession of “true wisdom.” Neither do lawprofs.
That said, I admire the fact that you’ve taken the huge chance of commenting here. You are one of the gutsier guys, at least willing to take a shot by venting openly. I, and almost all practitioners, admire a person with the balls to say what they believe out loud and take the heat for it. We take a beating daily, as it’s the nature of our work. I respect your willingness to come forward, even if it meant that I would have more vehement contemptuous things to write.
If you, and other lawprofs, want to both improve the value of your thoughts, many of which are quite brilliant and could well have an impact on thinking and the law, then perhaps it’s time to stop isolating yourselves and start incorporating the real world into the theoretical discussions. Maybe we could all benefit. Maybe lawprofs and practitioners have something to offer each other. I already read the academic blawgs. Will the academics read the practitioner blawgs?
Nothing wrong with being annoyed; I wouldn’t like it at all if somebody made an argument that damn near everybody in my trade was ignoring important stuff about it, either, and it probably wouldn’t go down easier if the guy making that argument was kind of prickly, and Ghu knows, Scott can be a little prickly.
But here’s an idea: attack the arguments he’s actually making. Not “the true wisdom is held by those who practice law”, but some useful wisdom and insight into law is learned by the practice of law, and ought to be incorporated into the study of law — particularly by those who are going to teach others to practice law.
He didn’t say that for the first — or twenty-first time — in his response to you here; it’s a theme he’s been harping on as long as I’ve been a regular reader of SJ.
From this outsider’s POV, it’s a curiosity of legal academia. In medical academia, there’s a whole lot of attention paid to the experience of clinicians — and if you need a few cites, they’re easy to find. In Civil Engineering trade schools, a whole lot of the academics not only have done things like, say, build bridges what haven’t fallen down, but pay a fair amount of attention to them what has built bridges what haven’t fallen down.
But you’re not alone. Literature academics most often — not quite always — treat folks who actually ply the trade of writing and publishing fiction as having utterly no useful insight at all into the subject matter. Then again, they’re largely focused on creating another generation of literature academics, not a generation of writers.
Too.
It is called shunning but it is difficult to shun someone that keeps sticking pins in your ballon.