July 14, 2017

"Every professor I know assigns cases that vindicate the side she favors — then brutally dismantles their reasoning."

"In law schools we don't just teach our students to know the weaknesses in their own arguments. We demand that they imaginatively and sympathetically reconstruct the best argument on the other side. From the first day in class, students must defend an argument they don't believe or pretend to be a judge whose values they dislike. Every professor I know assigns cases that vindicate the side she favors — then brutally dismantles their reasoning. Lawyers learn to see the world as their opponents do, and nothing is more humbling than that. We teach students that even the grandest principles have limits. The day you really become a lawyer is the day you realize that the law doesn't — and shouldn't — match everything you believe. The litigation system is premised on the hope that truth will emerge if we ensure that everyone has a chance to have her say."

From a Time Magazine column by Yale Law School dean Heather Gerkin, observing and explaining why law schools have not experienced the kind of "ugly free-speech incidents" seen in some other havens of higher education.

I'd like to think all those assertions are true, but even if they are not, it's a great ideal, a great aspiration.

When you're a law professor, you're mainly in your own class. Who knows how brutally the other professors are dismantling the reasoning in the opinions that go in the direction they like and how imaginatively and sympathetically they are reconstructing the best arguments on the other side? I did have some students who thought it was acceptable to use class time to give the snarky answer "It's Scalia" when invited to detail the analysis in a Scalia opinion. Where did they learn how to talk like that? Maybe from the internet.

58 comments:

Darrell said...

Some students go on to threaten the application of the lost art of titty twisting when someone disagrees with their analysis of a videotape or the stories told by the injured party. Then claim it never happened, perhaps going so far as to delete comments in blog archives. Many respond to such students with a heartfelt "Sad."

David Begley said...

"Law deans, in sharp contrast, have reason to be cheery. Their campuses have been largely exempt from ugly free-speech incidents...."

I appreciate the comment from the Yale law school dean but the truth is probably closer to Althouse's comment, that is, law students have the basic left wing views but they are more sophisticated in expressing and acting upon them. Only a dopey undergrad would attack an old man like Charles Murray and cause a minor riot. Those actions makes the Left look foolish and the footage runs on Fox. Murray - surely a secret racist - becomes a sympathetic victim. That flips the victim narrative in favor of the GOP.

The larger point here is that the Left has long used the political tactic that any person who takes a view opposite of the Democrat party is, ipso facto, a hater. And who wants to be a hater? Bad!

I submit that a reasonable person can disagree with many policies of the Democrat party (e.g. open borders) and not be a hater.

It is all rhetoric from the Dems and they are expert at it.

rhhardin said...

His is generic. Her is not.

She's PC over the top.

stlcdr said...

The trope 'I don't like what you say, but I will defend your right to say it'..

Oso Negro said...

Unless a law professor uses the word "intercourse" in class, or give an exam question on a Brazilian bikini wax gone wrong. Then the whole construct of avoiding free speech incidents is entirely out the window, and the professor must be humiliated and expelled from the institution. So forgive me, if I doubt that law schools are bastions of free speech.

Ann Althouse said...

Lawprofs say "intercourse" all the time: "Commerce, undoubtedly, is traffic, but it is something more: it is intercourse."

David Begley said...

Another thought. If one disagrees with the global warming narrative then must surely hate one's children and grandchildren as such a belief condemns them to doom.

See how that works? You hate your future grandchildren unless you agree with tax subsidies for wind and solar and a threefold increase in electricity prices.

stlcdr said...

I don't see this post saying 'law schools are a bastion of free speech', but rather that they haven't contracted the anti-free speech disease seen in other colleges.

Aussie Pundit said...

I'm really not convinced. Oh, I'm sure that they assign cases that vindicate their world view, and I'm also sure they love to analyse the hell out of those cases... that's not exactly news.

But do they "brutally dismantle" the reasoning that they actually agree with?
Indeed, can they?
Is anyone capable of brutally dismantling an argument that they truly believe is correct?

Tarrou said...

Law schools are run by and for the hard-left. One need only look at judicial opinions these days "Anyone else could have made this rule and it would be fine, but because I personally dislike the president, it's unconstitutional".

That said, law schools are somewhat separate from the bubbling cauldron of insanity that is the sociology departments and the -studies zoo. I haven't seen a lot of the Xe/Xir nuttery from law students. But it's only a matter of time. Also consider that through their clinics, the law schools are already providing legal aid to the street terrorists, it may be merely a tactical pose. They need to look somewhat respectable to have a reasonable chance of getting Johnny Bike Lock off on those pesky assault and battery charges.

Mark said...

Every professor I know assigns cases that vindicate the side she favors — then brutally dismantles their reasoning

In other words, knowing that the ruling in these cases is complete BS and not supported by reason, nevertheless they support them.

As to Aussie's question -- Yes. Practically EVERYONE agrees that Roe is complete BS, a total joke that is wholly unsupportable in law -- and yet they rally around it because it aligns with their pro-abortion ideology.

In other words, professors are teaching students to have contempt for law as something that is grounded in right reason in favor of raw power that disguises itself as "law."

Ann Althouse said...

"Is anyone capable of brutally dismantling an argument that they truly believe is correct?"

1. Reread the assertion. It's not about dismantling arguments you think are correct, but arguments used to support the outcome you like. To give the obvious example: Roe v. Wade.

2. You're using the word "correct," but in law, it's much more often a matter of seeing competing arguments and needing to choose. You claim to be choosing the better argument, but as you do that you should test it out in the manner Gerkin describes. This is something you want to do if only to get better at making arguments to get your side to win, but it's also a way to be honest about really choosing the better argument. Otherwise you just see arguments on either side and jump to picking the side you want to win.

Quaestor said...

The litigation system is premised on the hope that truth will emerge if we ensure that everyone has a chance to have her say.

Sexist.

Heather Gerkin will soon be in a pickle.

David Hampton said...

The Socratic Method of discussing a position taught in philosophy. As a hearing officer it was obvious to prepare for questions asked or not asked from both sides. In short, anticipate arguments both pro and con and be prepared to address them. Opinions are nice but truth is brutal. Welcome to the real world where truth talks and B.S. walks. No "safe places" and never ask a question you don't know the answer to.

John said...

You know what other groups of students don't include a lot of sjws?

Engineering majors
Accounting majors
Chemistry majors
Computer programming majors
Etc.

Pretty much anyone who is studying something useful that will lead to gainful employment

John Henry

FIDO said...

Occam's Razor

If the law school students engage in a felony, they will never become a lawyer. It is a bar to passing the bar.

This has little to do with ethics and everything to do with wanting a high priced career.

Which is why you don't see medical students or finance students doing the exact same thing.

Ray said...

"From the first day in class, students must defend an argument they don't believe or pretend to be a judge whose values they dislike"
From this training we get the majority our political class. Want to know why we'll never fully repeal Obamacare, or build a significant wall on the border: their words were just lawyerly bullshit

Chuck said...

What I remember from my Criminal Law professor in First Year was the absolute need to be able to state your opponent's case "with charity and precision."

I had one prof, in four years of law school, who was openly left-wing; and in that regard, he had nothing but good humor about politics, and was always more than interested in the other side. The ones who were serious operatives in the Michigan Democratic Party just wanted their positions and their paychecks, and were therefore only concerned with doing a good job and keeping students happy.

There's a lot of left-wing nonsense in higher education; and there are daily reminders of it at Fox News. But the business of left-wing profs brainwashing innocent undergrads (or in the case of law school, some of the most cynical graduate students imaginable) has always struck me as odd. I've almost never seen it in person.

Chuck said...

lol. "...in three years of law school..." Yikes! 3 was enough.

gspencer said...

Two aspects of law school stay with me.

The moot courts. The mandatory one in first year; and the voluntary ones in years 2 and 3. You of course would write the brief to be submitted choosing the side you wanted; but you (and your partner) were required to argue the other side during the different rounds. It was as the article notes helpful and eye-opening.

Taking exams. You were given an Exam Number which was to appear on the face of the blue book. Names were never used. While the grader probably could tell male/female differences based on hand writing, this IMO helped keeping things impersonal.

Fernandinande said...

Every professor I know assigns cases that vindicate the side she favors

She doesn't know any male professors?

Mark said...
Practically EVERYONE agrees that Roe is complete BS,


The authorette confuses marketing and word games with reasoning.

Chuck said...

gspencer said...
...
...
Taking exams. You were given an Exam Number which was to appear on the face of the blue book. Names were never used. While the grader probably could tell male/female differences based on hand writing, this IMO helped keeping things impersonal.

Moreover; can you imagine trying to take the time to argue/shade any political leanings in a Con Law exam? I can't. If the question, for instance, touched on Roe v Wade and its progeny, there are just way too many 14th Amendment issues to go through, trying to get essay points, to waste words on "choice" or other politics.

It wouldn't matter to me if the law prof was Catherine MacKinnon or Ken Starr; I'd be trying for the best grade and that means sticking to the correct elements and tests.

David Begley said...
This comment has been removed by the author.
Ann Althouse said...

"While the grader probably could tell male/female differences based on hand writing, this IMO helped keeping things impersonal."

Yeah, the ladies dotted their i's with hearts.

No, actually, the handwriting never suggested male or female to me. And I never had a chance to find out who was who, because I handed in the grades by exam number and got back a list of names with grades that I couldn't connect to the original blue books. I never developed any views about what looked male or female in penmanship... and penwomanship.

What, do you think more rounded letters are done by women because they have more rounded bodies? More loops because they like decoration??? Do you think males make stabby marks when they cross their Ts?

Fernandinande said...


“The Government’s definition of close familial relationship is not only not compelled by the Supreme Court’s June 26 decision, but contradicts it,” the government lawyer wrote.

“Common sense, for instance, dictates that close family members be defined ... " in such a way that we get the answer we want; this is called "reasoning".

walter said...

Quaestor said...The litigation system is premised on the hope that truth will emerge if we ensure that everyone has a chance to have her say.

Sexist.
--
Yeah..she probably thinks choosing "her" over "his"..or, of course..the neutral "their" is a "teachable moment".
Bank those Social Justice credits where you can.

Hey, you don't have to reach for extremes like dotting Is with hearts to know that in the vast majority of cases, male vs female handwriting is (still) identifiable.
But that's just not PC to say now.

Regarding seeing the other side to an argument, sounds very sensible from a strategerie standpoint when representing a plaintiff or defendant. But it's likely as much if not more about understanding/exploiting human emotion when jurors are involved.

SDaly said...

Graduate of top 10 law school here. I doubt it has gotten any better, but 20 years ago when I was in law school, it was only about 1/2 of the professors who ever tried to critically analyze the reasoning of liberal court opinions they agreed with (and most of those were older, male professors). Younger women profs, in particular, became visibly upset if a student made a cogent critique.

Ralph L said...

We demand that they imaginatively and sympathetically reconstruct the best argument on the other side.

Why did she say reconstruct? And why only one argument for the other side?

Seems like lawyers who can't or don't analyze both sides are going to get eaten by the ones that do. Unless all of them can't.

Robert Cook said...

"What, do you think more rounded letters are done by women because they have more rounded bodies? More loops because they like decoration??? Do you think males make stabby marks when they cross their Ts?"

My younger brother, a life-long athlete, alpha-male and hot-head, and currently running his own lawn business, has very graceful handwriting when he writes in cursive. It could be mistaken for a woman's handwriting, if one is making guesses on such criteria. (I have distinctly ungraceful handwriting.)

Birkel said...

Two ways to read this:
1) I am a law professor and my colleagues and I are doing it better. Do it out way, elsewhere.
2) The rest of you professors are doing a disservice to yourselves and your institutions. You suck.

Look for law professors to read the article as #1 above.
Look for other professors to find a third way.

Look for politicians and normal folks to read the article as #2. #2 is the dominant and expanding understanding. State legislatures will be cutting funding and expanding control.

Breezy said...

It's sad that a profession, one of whose core required skills is to argue convincingly, has to argue that it indeed trains its members to do just this. Convinced?

Owen said...

Gerkin has to say stuff like this: she's a dean, and therefore a cheerleader and a fundraiser. At Yale, no less, where she follows the (pretty big) footsteps of Robert Post, who raised a quarter-billion dollars for the school. At that level of the game, actual pedagogical method and intellectual honesty are...different.

I agree this kind of talk will read as elitist and smug, and will tend to irritate outsiders. But I don't see it changing, not much anyway at the Very Best Schools. There is an ongoing crash in the legal education industry and lesser schools are dying. But the top schools will do OK, because their product is mostly credential not competence, and words like Dean Gerkin's are part of the marketing effort.

Fernandinande said...

walter said...
Hey, you don't have to reach for extremes like dotting Is with hearts to know that in the vast majority of cases, male vs female handwriting is (still) identifiable.


I got curious and looked it up - seems that about 2/3rds correct ID is a typical result...which isn't too far from 1/2, which would be random. But they can ID how "feminine" a female writer is:

"Feedback on accuracy was given after each trial. These raters accurately identified the gender of two thirds of the sample and the rated difference between the sexes was large (d= 0.75).

These ratings of handwriting gender correlated significantly with digit ratio and the femininity scale of the BSRI.

A more conservative analysis this time within each sex found that women's right hand digit ratio correlated with relative sexuality of hand-writing, but there was no corresponding relationship for the males. These findings suggest that prenatal hormonal influences can affect later female handwriting performance and might even affect developmental inter-hemispheric differences, but do not appear to impact on males."

Sebastian said...

"The day you really become a lawyer is the day you realize that the law doesn't — and shouldn't — match everything you believe." Does any conservative going to law school not know this ahead of time?

If the standard for really becoming a lawyer is realizing that law shouldn't match everything you believe, fewer progs than cons really become a lawyer. Of course, they couldn't care less. Law is just a tool. In fact, the invocation of "truth" in the dean's remarks is rather quaint.

n.n said...

An implicit reconciliation, of sorts; but, the goal is not necessarily to discover principles, or positions, that are internally, externally, and mutually consistent. Still, it's a useful exercise in that particular context, and may engender a balanced approach in their lives.

walter said...

Is this what you are referring to?

Percept Mot Skills. 1996 Dec;83(3 Pt 1):791-800.
Identifying sex from handwriting.
Hayes WN1.
Author information
Abstract

The ability to infer the sex of the writer from cursive handwriting was examined under a range of conditions. In 5 experiments male and female college students were able to perform this task at the 75% accuracy level even with small amounts of material, sometimes only a single letter or a single geometric pattern. On the other hand, age of the writer was just barely discernible from handwriting. It was suggested that sex or gender is present in handwriting in much the same way as it is present in movement of the whole body.

PMID:
8961315
DOI:
10.2466/pms.1996.83.3.791

Bruce Hayden said...

Scary - this fall makes 30 years since I started law school. I always considered law a second career, after one in software engineering. In any case, one of my less pleasant memories was when much of my Con Law class went on strike after the prof asked a feminist to attack Roe v Wade. And then they protested the final for some obscure feminist/leftist reason. The ring leader somehow got triggered on one of the questions, or some such. My memory was that it all ended when they were given the choice of taking a replacement final - and, btw, she had the high grade on the graded final... Found out later that prof was quite the lefty normally - one of the most visible leftists on the entire faculty. He just kept it out of the classroom when teaching Con Law. I was just amazed though that so many of my classmates could be so brain dead when it came to what he was trying to accomplish by pushing students to take the opposing sides on issues.

Real American said...

They learned it from other professors. I had a law professor say Scalia's opinions were cruel and midieval as a way to discount them.

The Godfather said...

It's true in my experience that good lawyers learn to understand opposing arguments. But they do so for the purpose of defeating those arguments. Although there certainly are lawyers who are open-minded and respectful of the opinions of others, there are also plenty of lawyers who are intolerant and disrespectful. In "Big Law" a very common lawyer's attitude is cynicism -- the "right" position is whatever the client is paying for it to be.

Still, I would expect to find more open-mindedness in a group of recently graduated lawyers than in (say) a group of recently-graduated social workers (not to mention graduates of a "-studies" program).

Static Ping said...

Any good lawyer needs to anticipate the arguments the other side is going to present so they can be countered. Any good lawyer needs to know the weaknesses of his or her own arguments so they can be defended. I do not disagree with the dean's statements.

That said, lawyers and, by extension, law students can be violent thugs just like any other group. Violence is an efficient way, if also much more problematic way, of getting what you want. I suspect that law students are less likely to be violent not for the reasons the dean lists - your unassailable argument is very easily defeated by this lead pipe - but because (a) law students have a lot more to lose than the average college student, (b) the average law student is more mentally stable the the typical SJW, and (c) law students have future options to get what they want either through manipulating the courts or the political system, or just making a ton of money which resolves lots of issues. A respect for opposing argument may be a factor, but I doubt it is the main factor. If my future was a beautiful home, a beautiful wife (and all the side action I want), the respect of the community, attendance to all the right parties with both celebrities and political movers and shakers, and enough money to make the law very flexible in my regard, my first thought would not be to don a Guy Fawkes mask and start throwing rocks at the police.

Yancey Ward said...

That just sounds like bullshit squared to me.

Seeing Red said...

Talk about smug superiority.

So they think they walk in the other side's shoes, but they don't.

Mark said...

In real life, the number one rule is -- know your judge (and/or jury). A corollary rule for school would be -- know your professor.

If they are facts, precedent and reasoning first, and then conclusion -- then you need to present a well-reasoned argument which anticipates and counters the opponent's position.

If they are outcome determinative, and make their conclusions and desired outcome first, then followed by coming up with some excuse to justify the end result -- which is the method of so many Supreme Court justices -- then to hell with reasoning and precedent and what the other side is likely to say. You simply say that this result is desired, period. And if you do that often enough, and enough lower court judges make such rulings that are entirely outcome and devoid of any reasoning, then you can cite all those rulings as justification.

Mark said...

If the question, for instance, touched on Roe v Wade and its progeny

That's easy. You simply take the Casey approach. You fully admit that Roe is nonsense on stilts, but stare decisis . . . or something. You say that some people have relied on it over the years and so its too late to change now (and besides, the Constitution is a living document). So what if it has been as divisive as that other stellar decision Dred Scott.

Martin said...

Looking at all the judges who remake statutory law and even the plain text of the Constitution to suit their preferences, I have to think that what she describes is not common.

Big Mike said...

Noble sentiments, and possibly even true at Yale, which has been the #1 rated law school approximately since the early 18th century. Whether it's equally true further down the pecking order seems questionable to me.

Robert Cook said...

It's true in my experience that good lawyers learn to understand opposing arguments. But they do so for the purpose of defeating those arguments.

Well...of course! Why else? It's not as if lawyers practice in order to express their own beliefs, (though some do).

Left Bank of the Charles said...

Harvard Law's new dean is a former Scalia clerk, so that could be fun.

hombre said...

Even back in the old days I rarely saw this kind of teaching except from part timers who were private practitioners. (Some of the best teachers, who were eliminated when a secular progressive dean took over in my third year.)

Todd said...

Ann Althouse said...
"While the grader probably could tell male/female differences based on hand writing, this IMO helped keeping things impersonal."

Yeah, the ladies dotted their i's with hearts.

No, actually, the handwriting never suggested male or female to me. And I never had a chance to find out who was who, because I handed in the grades by exam number and got back a list of names with grades that I couldn't connect to the original blue books. I never developed any views about what looked male or female in penmanship... and penwomanship.

What, do you think more rounded letters are done by women because they have more rounded bodies? More loops because they like decoration??? Do you think males make stabby marks when they cross their Ts?

7/14/17, 7:58 AM


What? The women don't write in calligraphy with gold pens and the men write a bunch of Xs with crayons?

Bad Lieutenant said...

Nothing infuriates La Emerita (I suppose lawyers in general but she is a good case) like the idea that people can get to know things about you that you didn't explicitly state verbally.

Tyrone Slothrop said...

Shorter version, "Abandon your principles, all ye who enter Yale Law".

bagoh20 said...

"I'd like to think all those assertions are true, but even if they are not, it's a great ideal, a great aspiration."

Your assignment now is to argue against this ideal.

bagoh20 said...

What is the higher achievement, to be able to argue all sides effectively or to consistently recognize the one that is most virtuous, and argue that? I know the argument is that seeing both sides equally open your eyes, but does it really? I don't see the ability to argue any side as a valuable tool, except in battle. Being a good fighter for a bad cause is no virtue. You may defeat your opponent, but what have you won? Robert E. Lee, as great a general as he was, and with all his accolades, did a very bad thing.

ELC said...

"Every professor I know assigns cases that vindicate the side she favors — then brutally dismantles their reasoning."

I see I'm not the only one who's not buying that. Indeed, I was reminded of another quote:

"In theory, there is no difference between theory and practice. But, in practice, there is." (Jan L. A. van de Snepscheut, Ph.D.)

Narayanan Subramanian said...

Left bank .... What you said brings up related question ... I would prefer All cases at all levels should be heard by bench of more than one 'magistrate' . Do Jjustices invite clerks to opine different positions?

Mark said...

I know the argument is that seeing both sides equally open your eyes, but does it really? I don't see the ability to argue any side as a valuable tool, except in battle. Being a good fighter for a bad cause is no virtue. You may defeat your opponent, but what have you won? Robert E. Lee, as great a general as he was, and with all his accolades, did a very bad thing.

What you describe sounds more like relativism or moral equivalency, than what is suggested here. It is not that one should see both sides equally (or as equal), but that one should know the other side, that is, one should know the truth of the other side -- both what is being asserted and its merits and demerits -- rather than stand in ignorance of it. And, yes, knowing the full truth is a virtue -- in fact, it is essential to fully set one free.

As for the Civil War specifically, there is a whole universe of ignorance in society today regarding why "the other side" fought. Such attitudes reduce disputes into fighting strawmen.

Besides, the decision-maker and the system of justice as a whole, are better served when the advocates for each side are fully versed in both the what and the why of the adverse party.

Zach said...

Every professor I know assigns cases that vindicate the side she favors — then brutally dismantles their reasoning.

This is why so many students come out of school convinced their professors are flaming rightists. The poor dears just can't see through the disguise!