Clinical Theory Workshop 25th anniversary conference, and Clinical Law Review writers' workshop, Oct. 1 - 3, 2010

Here's an announcement of two conferences, both of which I hope will interest you, and the first of which I'm organizing (with generous help from a number of other workshop colleagues):

Please save the dates for two clinical scholarship conferences -- on a single weekend next fall.

The first will be a celebration of the 25th anniversary of the Clinical Theory Workshop, to be held all day Friday, October 1, 2010, and on the morning of Saturday, October 2, at New York Law School. Its theme will be: "Twenty-five years of clinical scholarship: What have we learned, and what should we work on next?"

The second will be the third writers' workshop sponsored by the Clinical Law Review, to be held Saturday afternoon, October 2, and Sunday morning, October 3, at NYU School of Law. The writers' workshop welcomes clinicians with works-in-progress on all topics, whether specially clinical or not, and will meet in small groups whose members will discuss and offer suggestions for each other's works.

The two workshops are independent but also interrelated. More information on each will be coming in the next few weeks. Meanwhile, we hope you'll save the dates for both!

Steve Ellmann (chair of the New York Law School Clinical Theory Workshop)
Kate Kruse, Michael Pinard, and Randy Hertz (co-editors-in-chief of the Clinical Law Review)

Are law schools conservative institutions?

How conservative is legal education?

The most frequent answer to this question is probably "very conservative." But if that answer is correct, it's somewhat surprising. As a group, law professors appear to be quite a lot more politically liberal than the country as a whole, and probably more liberal than their students.

Of course, they could be politically liberal but intellectually conservative, still trudging the same paths as their forebears of past generations. But this picture doesn't seem accurate either. After all, a lot of what law professors routinely do has to be to stay up to date -- not just on what other scholars are writing, but on the latest court decisions and the newest statutes. Perhaps the subject-matter is continuously changing, but the intellectual apparatus brought to bear remains the same? Not so: at least from the time of the legal realists of the first half of the twentieth century, academic conceptions of law have been in ferment, and scholars have pursued one "law and" discipline after another.

Perhaps the teaching methodology has somehow stayed the same, despite all this intellectual change? Certainly law schools have been dominated by the "Socratic method" for most of the past 100 years, since the advocates of this pedagogy won their battle over those who thought other techniques such as lectures were better designed to get essential information across. (Among the losers were the founders of my law school, New York Law School, which long since became part of the Socratic consensus.)

Only this charge isn't terribly persuasive either. The past 40 years have seen at least three major shifts in law schools' programs: the rise of clinical legal education, the intensification and professionalization of legal writing education, and the rise of academic support programs as well. Clinicans, for example, now make up the single largest section of law faculty in the Association of American Law Schools.

So what's left that's pedagogically conservative? The central answer would be the continued use of the Socratic method in the doctrinal courses of the curriculum, which still probably make up the large majority of the classes offered at every school. But even here the case isn't entirely convincing. Surely much of what is actually taught in law school classrooms wouldn't have been taught 50 years ago -- not only the new cases, of course, but also the new perspectives, some of them profoundly distant from an assiduous focus on the particulars of legal doctrine. It also seems pretty clear that the Socratic method as practiced today is less of a hazing ritual than it was, or was imagined to be, a generation or two ago. (Think of "The Paper Chase.")

One might almost say that the only really continuous feature is that law professors teach by questioning their students, and often challenging their answers, rather than by lecture. That's an element of continuity, certainly, but it seems odd to call a preference for interactive classroom experiences proof of conservatism.

I admit I am overstating the case. The hierarchical feel of the large law school classroom, though less sharp-edged than it once was, still persists. A focus on mastering a certain style of dispassionate, meticulous deployment of legal arguments remains important, both as an intellectual aim and a value that professors model and generally hope to impart. And a concern with the interpretation of more-or-less authoritative texts -- constitutions, statutes, regulations, and of course prior cases -- seems built into legal work and legal teaching, and is necessarily at least somewhat past-looking.

Moreover, though this is a matter as much of institutional governance as of pedagogy, tenure -- first advanced as a protection of independent, radical thought in universities -- is in important ways a conservative institution. Those who have it don't want it taken away, and sometimes don't want it shared with others who don't yet have it, since either or both of those developments would shift the balance of institutional power. At the same time, those who didn't have it and have gained it are sometimes seen as having become more academic (that is, more conservative and depoliticized) as a result.

Still, for a supposedly conservative institution, legal education seems pretty sprightly to me. Even the current movement in some schools towards diminishing teaching loads so as to give faculty more time for scholarship can't exactly be called conservative. To value teaching over scholarship may be right or wrong, but to reduce teaching loads in favor of scholarship is (for its advocates) a "reform," in other words a change, and at least in that sense not conservative. It isn't a return to, or an adherence to, the values of the past but an assertion of the right direction for future development.

The upshot, I think, is that it's a mistake to regard law schools as impervious to change. There's lots of change in the air -- some that I might dislike, or you might, but change nonetheless. (And there are also profound economic forces pressing law schools to change whether they want to or not.) So the question isn't, will law schools change, but rather, how will they change? That's a better question, offering hope to everyone who welcomes change, but challenging them to win the arguments over which changes to make.

Humility and judging

I think that humility promotes understanding, and so promotes wise judging. Some years back Brett Scharffs argued this point at length and with eloquence, in "The Role of Humility in Exercising Practical Wisdom," 32 U.C. Davis L. Rev. 127 (1998). But he acknowledges that "[o]ne might question whether, as a matter of historical or contemporaneous fact, the judges we consider great were or are humble." (At 171 n.108.) Later he discusses Justice Holmes, who on occasion was credited with a form of humility, but also (according to a scholar named Yosal Rogat) described "his work on the Court as 'preparing small diamonds for people of limited intellectual means.' In a humility contest, Rogat concluded, Holmes would 'tie for last with General DeGaulle.'" (At 185-86 n. 148, quoting Thomas C. Grey, "Unrepeatable Lessons," 70 N.Y. U. L. Rev. 524, 527 (1995).)

Scharffs rightly suggests that perhaps some judges we don't think of as humble actually were so, at least in their work as judges, and also that some judges who aren't humble no doubt are, in part for that very reason, not admirable judges. Still, he does not go so far as to reject the possibility that great judges typically are not humble people.

One might accept this possibility as fact, and still say that humility is an integral virtue for judging in general. The argument would be that most people are better judges if they bring humility to their work, even though great judges may have such stunning strengths in other respects that their lack of humility isn't a fatal flaw.

One might also say that "greatness" is itself a treacherous quality. Prideful greatness, after all, is essentially hubris, the pride that goeth before a tragic fall. Great judges are not necessarily the best judges for a country to have. They surely are prone to failing, as well as succeeding, greatly -- and while such stories make for great dramas, they probably aren't so good for the citizens living with the results.

But I think there is another possibility which may be more disturbing even than these. This is that it takes so much self-confidence to render decisions that determine other people's fate that for many people pride is simply essential to getting the job done. There are exceptions, undoubtedly -- apparently, as Scharffs also notes, Learned Hand was never sure of anything, though it is tempting to think that this self-doubt contributed to the "legendary temper" that he apparently also displayed. (Scharffs at 197 n.180, 195 n.176). But for most people, the thought of having ruled against someone -- taking that person's money, or liberty, or life -- in error may be very hard to take. (Scharffs points to Robert Cover's emphasis on the violence that is integral to the workings of the law; the anguish of decision may be even greater because of the recognition that litigants do not consent to their suffering, as patients may, but rather are coerced into enduring it.) Doctors have to develop a certain armor against their patients' suffering, as do lawyers, and so, similarly, may judges, and their armor may often be a confidence, a disproportionate confidence, that their decisions were right. If that is so, then although humility may be a great asset for wise decisionmaking, it may be crowded out by pride, a quality that may be a solace, if not a necessity, for any decisionmaking at all.

If pride is such a necessity, the best hope for those who see humility as also valuable is to make the case that people can possess both pride and humility at the same time. I doubt that that is easy, but I think it is possible. Scharffs' ideal of humility may be quite intensely selfless; he quotes C.S. Lewis, who wrote that "a really humble man" is someone who will take "a real interest in what you said to him. If you dislike him it will be because you feel a little envious of anyone who seems to enjoy life so easily. He will not be thinking about humility: he will be thinking about himself at all." (At 162 n.92, quoting C.S. Lewis, Mere Christianity 99 (1965))

But one can imagine people, and judges, whose ability to engage deeply with the perspectives of those before them is not quite so unselfconscious. A judge who takes pride is in his or her ability to listen and understand (and who in fact has and uses that ability) may not be quite so saintly as Lewis' ideal. But this judge is more likely in fact to exist, and we are very fortunate when we have him or her on the bench.

Posner, emotions, and practical wisdom

Some years ago, Judge Posner wrote that "[s]elf-control is not only an emotion but a strong emotion because it is a check on strong emotions." (At page 324 of "Emotion versus Emotionalism in Law," a chapter in The Passions of Law (Susan A. Bandes ed. 1999). He seemed to say that "self-control" is needed in order to achieve "detachment."

Detachment is not a vantage point from which the judge is unemotional -- Posner believes "emotion is necessary to precipitate any decision that is not merely the conclusion of syllogistic or other purely formal reasonsing--the kind of reasoning a computer can do better than a human being. Decision is a form of action, and ... there is no action without emotion." (311) Rather, the detached judge is sufficiently distanced from the power of the emotional details of the situation immediately before him or her to be able to care also for those elsewhere, that is, for the long-term consequences of his or her decision. (Posner goes so far as to say that "contrary to the claims of its detractors, the economic approach to law is profoundly empathetic because, although it does not wear its heart on its sleeve, it brings into the decisional process the remote but cumulatively substantial interests of persons not before the court -- such as future seekers of rental housing, future victims of murderers, future taxpayers, and future consumers." (324))

I am not sure that Posner is right to call "self-control" an emotion, but I do agree that the desire to control oneself is an emotion. As a solution to the problem of the unfairness of (some of) the emotions people actually feel, however, self-control seems unreliable. The problem with it is that the person who must wrestle with himself for control already seems to have lost the battle. So much energy is going into the wrestling that the struggler already can't devote his or her full resources to the issue that calls for judgment. Equally obviously, the person struggling for control is prone to over-correction, and if aware of that, to further efforts to correct for it, all of which take the judge (or person) away from the full body of intuition and experience which is what he or she actually brings to the choices life, or adjudication, requires.

Thus what the judge needs is not so much the ability to control himself or herself, as the state of being in control. One might say, then, that the only way to be a good judge is ... to be, already, a good judge. There probably is some truth to this; it would be one reason (others have more to do with the play of power and career advancement in society) why judges often are older people, who have had the time to reach this state of self-control. But if practical wisdom is a form of expertise, as it seems to be, then like other expertises it can also be practiced, and studied, on the road to mastering it.

While I agree with Judge Posner that "self-control" is one of the virtues of a good judge, however, I think "detachment" may not be. The law and economics judge whom Posner praises is detached from the immediate anguish in front of her, but she is not detached from the desire to promote human wellbeing. She may indeed care deeply about this goal, and perhaps we might call this a "passion for justice." Samuel Pillsbury, in "Harlan, Holmes, and the Passions of Justice," another essay in The Passions of Law, characterizes Justice Holmes as having had this sort of Olympian, detached, passion for justice. (348-49) Pillsbury agrees as well that Justice Holmes may have been too detached from the concrete human details of the cases before him. (352) Pillsbury believes that we need a variety of passions for justice on the courts (351-52), and this is no doubt true. But it is also true that a detachment that puts aside concrete people in favor of abstract human aspirations is, in some measure, an incomplete response to human experience.

Posner may not be arguing for that measure of detachment -- his point may be that the natural response to a concrete situation is to be so gripped by those particulars as to lose broader perspective, so that what is needed is that measure of detachment that enables the judge to see both the specific and the broad. That seems like the right goal, and it also seems like an appropriate way to characaterize the aim of "practical wisdom."

On fairness in judging

Here are two propositions: First, we want our judges to act without fear or favor, without prejudice for or against any party. Second, everyone is prejudiced, in some measure. How do these two propositions fit together?

One could argue, of course, that the second proposition is wrong -- that some people are truly without prejudice, and those are the ones we try to select as judges. There certainly are people without one form of prejudice or another. There may be many Jews and non-Jews, for instance, who really are entirely unmoved by whether a particular person whom they encounter or judge is, or is not, Jewish. But even these tolerant, or secular, people may not be unprejudiced about some religions. As a general proposition, everyone's tolerance has limits. And there is depressing evidence that vast proportions of Americans have enough racial prejudice in them that they instinctively stereotype quickly-displayed photos; their next reaction may be to try to blot out this instinctive leap, but their first reaction is shaped by the powerful social stereotypes of their world. (See Malcolm Gladwell's account, in his book Blink: The Power of Thinking Without Thinking (2005), of the "Implicit Association Test.") How could it be otherwise?

So if we say that we want judges without prejudice, we are asking, in general, for the impossible.

Can we say, instead, that we want judges who will judge without prejudice -- that is, who will be able to put aside their prejudices and judge without being influenced by them?

Well, yes, to some extent. We can certainly set up situations where judges are less likely to be influenced by their prejudices than they would be in other contexts. Perhaps the classic example is the practice in today's orchestras of doing tryouts with the candidate performers behind screens, so that the judges do not know the candidates' names, or even -- and in particular -- their gender (or race). If the judges imagine that only women, for instance, can play instruments at the level required for a great orchestra, they will be simply unable to bring this prejudice to bear. Perhaps they will even shed this prejudice when they encounter the results of the blind auditions. Back in the world of courts, the elaborate efforts that we make in the rules of procedure and evidence to insure that judges really do hear both sides are all efforts to avoid at least one natural result of prejudice, the tendency to believe at once the people with whom you already sympathize. (These rules also combat another, less "political" form of prejudice -- the tendency to believe the person you hear first.)

That's good. But a court of law is not like a blind orchestra audition, nor should it be. Judges (and jurors) are engaged in judging people, and they can and should take what they know about people into account as they do so. The moment they do, however, they take into account not only what they truly know but what they deeply, even unconsciously, believe. In short, they take into account their prejudices.

So, what to do? More in a future post.

Who's really an enemy combatant, and how do we know?

This is the first of what may be several comments I'll be posting on this topic. What's struck me is this: of the Guantanamo detainees whose habeas corpus cases have been completed, quite a few have been successful in demonstrating to the courts' satisfaction that the government has not shown a basis for holding them. This record certainly raises the possibility that we have been holding men without justification for many years. For now I just want to raise one other possibility: that the standards of evidence being applied in these habeas cases, though they are by no means as rigorous as those that would be applied in an actual criminal prosecution, are still just too demanding for this situation. If, in Afghanistan, our forces capture suspects based on information, often second-hand information, communicated by people of dubious reliability, they certainly aren't operating by the standards we demand for police work here at home. But this isn't police work, and it's not home -- and so it may be that the lesson of the habeas cases so far is that this particular effort to infuse judicial standards into the operation of a war is just not tenable. Or, again, it may be that we have been holding people for no good reason for a very long time.

Airplane security and the Christmas bombing attempt

Just back from a plane trip out of the country. Our flight featured two unusual security steps that were visible: every passenger was patted down just before boarding, and no one could bring anything to drink onto the plane, even bottles of water purchased inside security. The first was quick and seemed worth the time. The second seemed arbitrary, and was certainly uncomfortable, since it took two hours for water to reach our row on the plane!

Perhaps what's most striking about the current increase in security is how incomplete our ability to connect the dots evidently is. The information we had about the Nigerian would-be bomber seems, in hindsight, so obviously frightening that our not reacting to it with quick action is hard to understand -- unless, of course, we receive so many worrying bits of information each day that reacting to all the possibly dramatic link-ups would be impossible. Whether the problem was bureaucratic fumbling or information overload, however, it's clear that we don't believe that we can identify all our assailants in advance. It's because we don't believe we can do this that we impose on ourselves the massive inconveniences of airport security.

Of course, it could be that our connect-the-dots security measures are very, very good -- but we have to supplement them with airport security measures because a single failure would be catastrophic. I hope that is the case, but it doesn't feel like it is. Witness the decision to subject everyone from Nigeria to heightened search. Obviously this step is tremendously, deliberately, overinclusive. The week's news suggests that our reason for taking it is that we can't get a clear idea of which Nigerians are actually threats even when we have specific information about an individual named Nigerian. Profiling is never a welcome step, but if we really are as in the dark as this event suggests, then we need something to shed some light on what we face.