Common Sense in the Hands of Dilettantes

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.

9 thoughts on “Common Sense in the Hands of Dilettantes

  1. Windypundit

    “Interdisciplinary” is a recurring problem. Most of the major academic disciplines have emerged precisely because the bounds between them are pretty good places to bring in another expert if you need one. There are exceptions, of course, where personal knowledge of two or three fields are helpful, but they’re usually rare.

  2. Pam Lakatos

    I have sinned and seek forgiveness. Unfortunately, I did not indulge in my usual routine in reading your blog first when engaging in my daily perusal of blogs I follow. As a result, I left a comment on a posting at Grits For Breakfast regarding “Zero Tolerance” policies and school discipline. I used the term “common sense”, not once, but twice!
    I do not ask for forgiveness lightly, I will immediately cease using this term and when it crosses my mind will sternly chastise myself for indulging in verbal senselessness. Obviously, after considering your position I agree with you. Thank you for enlightening me.

  3. Antonin I. Pribetic

    “On dit quelquefois: “Le sens commun est fort rare.” (“People sometimes say: “Common sense is quite rare.”)

    Voltaire, “Common Sense,” Dictionnaire philosophique portatif (1765)at p. 866.

  4. tayne_gheel

    Is the popular desire for judges with “common sense” really a call to dispense with sound logic and rigorous legal analysis? Or is it just a shorthand for saying we want judges who apply the law with an understanding of the real-world implications of their decisions?
    The latter concern is valid. See Citizens United…

  5. Stephen

    There’s nothing actually wrong with believing in common sense, it’s just that you should hesitate to build anything on something that boils down to a clever way of saying “what my gut thinks.”

    Everyone should continue to use common sense (and your eyes) to decide when to turn at a traffic light but it’s a poor foundation for a legal system.

  6. SHG

    Neither. There is no such thing as common sense. Sorry that the post was unclear to you.

  7. SHG

    Except everybody’s gut says something different, Stephen, which is why there is no common sense, and thinking people should be capable of grasping that their idea of “common sense” is unique to themselves, just as everyone else’s is unique to them.  So if your “common sense” is my pathologic stupidity, there’s nothing common or sensible between us.

  8. Albert Nygren

    The problem with the Supreme Court is not with the fact that the Judges are lawyers and it has nothing to do with common sense. The problem is that some judges decide cases according to some Judicial Philosophy instead of what the Constitution actually says.

    Regarding “common sense”, there is no such thing. What people call common sense is really: the average fund of knowledge applied with reason and intelligence.

    When people complain about a judge lacking common sense, I think they are referring to a judge deciding a case based on his emotions instead of reason or the person complaining is using emotion rather than reason.

    A law that can be “interpreted” to mean any of 7 different things, is not a law. It is an opportunity for the judge to decide the case based on what he wants to happen, not according to the law.

    This is the situation that we have now. We do not have a Democracy or a Republic, we have an Oligarchy. The Supreme Court can decide issues based on what they want to happen.

    A well crafted law that can mean only 1 thing and a judge who only has the authority to decide a case based on how that clear law applies in a particular instance; is the basis of our liberty.

    The government can not put us in jail or fine us as long as we obey the law. Make the law vague or let the judge decide the case on something other than the clear meaning of the law, and then the government can do whatever it wants to us.

    A free man is a man who knows the law and obeys the law so that he is free from government oppression. With vague laws and judicial philosophies, no one is free because no one knows what the law is until after the judge decides what the law is.

  9. SHG

    Regarding “common sense”, there is no such thing. What people call common sense is really: the average fund of knowledge applied with reason and intelligence.

    Is there such a thing?  I’ve never seen it. No one asked me to contribute to it or agree with it.  Have you seen it? Have you signed on?  Was there a massive poll where everybody (except me) decided that this was how things should be when “applied with reason and intelligence?”

    When people complain about a judge lacking common sense, I think they are referring to a judge deciding a case based on his emotions instead of reason or the person complaining is using emotion rather than reason.

    I don’t believe that’s the complaint at all. The complaint is that whatever reasoning/outcome was used isn’t what any particular individual thinks is the right one, and the critic elevates his own idea of proper reasoning/outcome by calling it “common sense,” thus making it “obvious” and obviating the need to provide any real explanation as to why his reasoning/outcome is better than the one applied.

    I realize that it’s hard to let go of something that’s become an article of faith in society, that there is this thing called “common sense,” but its pervasive, sloppy use doesn’t make it real.

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