The examples are familiar, because they are precisely what tends to appear in the news articles. If we're casting blame, we should also blame the reporters who cherry-pick Scalia's colorful phrases, for example, calling something Justice Kennedy wrote the "mystical aphorisms of the fortune cookie."
Judicial writing is usually so bland and verbose — what a deadly combination! — that we readers of court opinions do naturally perk up when we encounter something like "mystical aphorisms of the fortune cookie."
But if we were choosing what to read — like when we pick out a novel — phrases on the level of "mystical aphorisms of the fortune cookie" would seem pretty pulpy and bad. But in a legal opinion, it's something. A little air. It's overvalued. I can see how it leads students astray.
There's something to be learned from the mood boost we get when, in the slog through judicial writing, we encounter one of Scalia's insults. But legal writers who don't themselves have the luxury of sitting in judgment had better adapt the lesson to suit their position of trying to persuade judge.
Be clear and vivid, but not jerky. Attack arguments, not people. Make careful calls about language.
I've always remembered an anecdote I heard long ago, about lawyers who mulled over whether they could use the word "stupid" in a brief in response to an argument that absolutely was stupid. After much discussion, they hit upon the mot juste: "fatuous." See my point? The lesson is: Think it through. You don't have to be dull, but don't stoop. Remember the stupid/fatuous distinction.
Chemerinsky's piece doesn't get this far. It's too weighed down with contempt for Scalia. And the last sentence is weird and telling:
If legal professionals ignore Scalia's meanness or — worse — pass around his insults at cocktail parties like Wildean witticisms, they'll encourage a new generation of peevish, callous scoffers.Where are these cocktail parties with people who fancy themselves Wildean expressing admiration for Antonin Scalia? In the law school environment I know, I hear peevish, callous scoffing at Justice Scalia.
The mere mention of his name — said in a particular tone — is treated as a chuckle-worthy barb. My students frequently show that they've been encouraged to peevishly scoff at Scalia. In class, there will be occasions where I've put a student in the position of having to explain something Scalia has written, and he will begin, dismissively, "Well, it's Scalia," and the class will titter.
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When a liberal accuses someone of being "mean" it merely means that persona won't agree with them. Conservatives are mean, aka evil.
I can see why Erwin would get his panties in a wad. Scalia eviscerates the "fatuous" arguments the liberal judges us to coerce America into behaving as they wish, not as according to the Constitution. To point out that the Emporer has no clothes is never popular with the tailors that made them.
He should read some of Shirley's things!
In class, there will be occasions where I've put a student in the position of having to explain something Scalia has written, and he will begin, dismissively, "Well, it's Scalia," and the class will titter.
I take it from the tone of your post that you don't join in the general tittering, but it seems to me that you need to actively discourage the foolishness by baiting a trap and closing it hard on the hapless student. Whether law students in Madison like it or not, Scalia is nevertheless a justice of the Supreme Court. It's not as though Kagan and Sotomayor don't sometimes stick their foot in it.
Well I for one don't believe that Scalia really believes all the things he claims to believe.
(Although, FWIW, if Scalia's hope is to persuade Kennedy to join him in future decisions, and maybe break Breyer or Kagan free from the left-wing block, insults are counter-productive.)
Chermerinsky's just pissed off because he'll forever be a bridesmaid.
"I take it from the tone of your post that you don't join in the general tittering, but it seems to me that you need to actively discourage the foolishness by baiting a trap and closing it hard on the hapless student."
I don't try to hurt the students in class. To me, the answer is to continue to doggedly treat all the judicial opinions the same way, trying to understand what they mean. I set the example of taking all of it seriously.
Ad hominum attack by a crazed left wing socialist who doesn't beleive in the rule of law against a sitting Supreme Court Justice who does.
Where is the professor's learned rebuttal of Justice Scalia's ideas?
Do you really condone law students laughing at a Supreme Court Justice???? You know, people who aren't even qualified to be lawyers yet, much leess appeals court judges. Entitled little lefty pr*cks aren't they?
If Kagan had the same writing style, he wouldn't be making the same argument because he agrees with Kagan's politics.
And I carefully used the word "politics" because after this term it is clear SCOTUS is all about politics and not construing the law.
Gahrie at 0934, Very amusing!
Yeah, I agree with David Begley.
Nothing like all that legal mumbo jumbo that Chermerinsky likes, only to obscure a decision made before the case was heard, based on politics.
You don't have to be dull, but don't stoop. Remember the stupid/fatuous distinction.
Yes, never use clear, simple language when something more recondite and magniloquent will do.
As Peter Gabriel sang,
"The place where I come from is a small town
They think so small, they use small words
But not me, I'm smarter than that,
I worked it out
I'll be stretching my mouth to let those big words come right out"
I was known to scoff at John Paul Stevens (let's not kid ourselves, some justices, some opinions, deserve to be scoffed), but always his ideas, never his words (and sometimes his name, which I can't say without thinking "John Paul Jones").
I don't try to hurt the students in class. To me, the answer is to continue to doggedly treat all the judicial opinions the same way, trying to understand what they mean. I set the example of taking all of it seriously."
Then you aren't preparing them to be real lawyers in the real world. Perhaps you should reconsider and begin to teach these children some respect for their betters and that actions have consequences. They seem to lack knowedlge of both of these concepts.
Scalia definitely went too far when he invented Twitter.
Basil said...
Ad hominum attack by a crazed left wing socialist who doesn't beleive in the rule of law against a sitting Supreme Court Justice who does.
Where is the professor's learned rebuttal of Justice Scalia's ideas?
Do you really condone law students laughing at a Supreme Court Justice???? You know, people who aren't even qualified to be lawyers yet, much leess appeals court judges. Entitled little lefty pr*cks aren't they?
You don't have to be a lawyer to laugh at Supreme Court decisions, see Roe v Wade.
I've put a student in the position of having to explain something Scalia has written, and he will begin, dismissively, "Well, it's Scalia," and the class will titter.
The culture of the Universities is nothing more than programmed group think. Conform or be cast out. Worse than Subdivisions. Scoffing and eye rolling are required so the rest of the group fully understands you too can see the magic cloth. Charles Dickens was a genius. He knew more about the nature of human behavior than Freud and Jung combined.
It must be frustrating to try and teach free thought, analysis, and deductive reasoning in a culture where it seems to be completely discouraged.
I scoff at this over-inflated buffoon. Is he unaware of pop culture? Young law students are more likely influenced by Jon Lebowitz Stewart, John Oliver, Stephen Colbert, David Letterman, Will Ferrell, and the like.
Traps are better left for hapless blog post commenters!
Shorter Chemerinsky: Anti-Prog barbs are mean. Pro-Prog pablum is nice.
Similarly, honest Cons are evil, dishonest Progs are good.
Next he'll explain "substantive due process" and how it mandates SSM.
"I don't try to hurt the students in class. To me, the answer is to continue to doggedly treat all the judicial opinions the same way, trying to understand what they mean. I set the example of taking all of it seriously."
I'm sure you think this will permeate their little skulls and a balanced lawyer will pop out of the other end of the process.
I think it far more likely they consider silence to be consent.
Gahrie, Ha; I hadn't gotten to the Chattanooga shooter post: thought you were referring to AA's months ago post in re believers not really believing etc.
I was in an online argument with someone who kept saying "you're not listening" even after I summarized his argument for him, he agreed with my summary, and I then went on to dismantle his argument. If was his final contention that I was being stupid and refusing to listen.
And that's how the Left argues these days.
Bad link. Good link.
So law students are somehow being taught that analyzing substance is less important than scoffing at the right people.
I don't try to hurt the students in class. To me, the answer is to continue to doggedly treat all the judicial opinions the same way, trying to understand what they mean. I set the example of taking all of it seriously.
I dunno, the most effective bit of pedagogy I've ever read about came when an angry professor threw the piece of chalk he was holding hard enough for it to shatter. "Laugh at that," he said as he stormed out of the room.
I'm not saying that it would be as effective a technique for you (for one thing, it's been a long time since professors used chalk and blackboards!) but if my goal was to teach students, I wouldn't try to doggedly set an example. I'd give them something to remember with a shiver down their spines for the rest of their lives. Perhaps an icy reminder that a justice of the Supreme Court is as far above a law student as the law student is above a kindergartener, might do the trick. Or might not. Perhaps you might think on it.
Weren't these kinds of comments what ended up forcing young lawyer, Gordon Bombay, [What a name, like Jimmy Hendricks :) ] to coach the Mighty Ducks in that movie?
This is why the United States, even after all this time, can never succeed. The reason being, its laws are written in a mongrel language.
The language is unspecific, and colloquial, when in fact, putting a man to death, or drafting women, over some legal framework, should not be colloquial.
Until the Constitution is rewritten in Latin, there can be no future.
OK, I just made that up, but this fruit wine is making me smack my lips. yes!
There was a point in time when it was a badge or honor to be able to understand and tenaciously argue a viewpoint that you personally disagree with. This anecdote makes it sound like law students today are content to dismiss and deride opposing viewpoints rather than actually understand them (on non-strawman terms) and actually dissect the merits of the position. This is far bigger problem than "meanness" will ever be.
Also, blaming Scalia for a perceived lack of civility of others is fatuous. Shame on Chemerinski.
D.D. Driver said...
Also, blaming Scalia for a perceived lack of civility of others is fatuous. Shame on Chemerinski.
Fatuous is as fatuous does.
Looks like Chemerinski is stuck on fatuous.
Perhaps when one of your mush-skulled tuition-payers issues as empty a comment as "Well, it's Scalia," you can call him on it for dismissive laziness (don't worry, none of those chickenshits will call you on your hypocrisy). You can ask him, either blandly or in your most forbidding voice, "exactly what do you mean by that?"
BTW you try to hurt people all the time here. Why wouldn't you attack your students? They've already paid.
jacksonjay said...
I scoff at this over-inflated buffoon. Is he unaware of pop culture? Young law students are more likely influenced by Jon Lebowitz Stewart, John Oliver, Stephen Colbert, David Letterman, Will Ferrell, and the like.
Traps are better left for hapless blog post commenters!
7/17/15, 10:04 AM
I agree with this. People imitate others that they like and admire not the ones they speak of with derision.
I've put a student in the position of having to explain something Scalia has written, and he will begin, dismissively, "Well, it's Scalia," and the class will titter.
“Is that a legal argument? Is that how you would argue it in court? Is that the response of a thoughtful person or someone who does not have the mental capacity to analyze the content of an argument so they instead dismiss it with snark? I don’t know the answer to that last question today but I think will know it by the end of the semester.”
That would put your students on notice that you expect thought and you'd only have to do it once. They would not forget and that particular student would especially raise their game. Instead, by letting it slide, you give the snark tacit endorsement.
Sure, you treat Scalia's arguments 'seriously' but you have to because it's your job. But we students know *wink, wink* that you think Scalia's a joke too.
Is that how you would argue it in court? Is that the response of a thoughtful person or someone who does not have the mental capacity to analyze the content of an argument so they instead dismiss it with snark?
Reject first, ask rhetorical questions later, it's the liberal way!
Almost all law students will never personally know someone as smart as Scalia. But, mocking is the right of all, even the morbidly uninformed.
Speaking of which, Chemerinski's notion of what works to persuade judges in briefs and opinions seems to be stuck in the 60's. A good brief may well read like a piece from the New Yorker. Perhaps he still begins his pleadings with "Comes now the Plaintiff."
An excellent post in which to double up on him with stupid/fatuous.
What "ad hominems," specifically, are Chemerinsky referring to?
Gowers refers to “lapses from what for the time being is regarded as correct [which] irritate the educated reader and distract his attention, and so make him the less likely to be affected precisely as you wish”.
But as others have noticed, with the chattering class & comedians, regarded as educated it would seem, Liberals get excused for, er, over-exuberant speech/writing & Conservatives don't.
Some years ago I was a "judge" on a student moot court first round. Two of the four students were uber students & went on to be uber lawyers, more successful than I. The other two moot judges & I found Student A, who was also a witty guy & who answered one of our questions with a quip, to be the best "speaker" of the four, including Student B. Not just because of the quip, I would hope.
Fast forward to an alumni luncheon 25 years later with former student B & moi at a table for 10. The school's then current moot court team came up for discussion. Former Student B, by then a highly regarded corporate lawyer, looking directly at me, went off on a riff about how the judging for the "contest" was, er, some synonym for "stupid", since the winner was always the most glib. Dead silence at the table until I replied that "many a profound word has been said in jest". He responded that "many a jest has been taken as profound". I noted that, interestingly enough, many were still stunned that Adlai with all his jests, quips, bot mots, mot justes, if you will, had lost to Ike who had been considered as un-profound, tho he'd managed to win a war. End of discussion.
In the latest Alumni bulletin both former Student A & Student B are listed in the obit section.
I grow old....
Tim M.
How about thinking of Pope John Paul?
Chermerinsky lectures "I have always cautioned students away from nastiness as a crutch for those who cannot win using reason or legal precedent."
But isn't that precisely the reason for Justice Scalia's diatribes, he gives them out when he cannot win? In other words, these aren't losing arguments but a loser's protestations.
magniloquent
Bravo! My new word of the day.
Has Chemerinsky ever actually practiced, representing human beings? Anyone who has knows that lawyers have long included derision and scathing attacks in Memorandums of Law. The trick is to be artful about it, so as to persuade rather than alienate. I'm thinking what this boils down to is Erwin is envious of Scalia.
Coupe
You write
Until the Constitution is rewritten in Latin, there can be no future.
As we pedants know,
Quidquid latine dictum sit, altum videtur.
Back in 2009 Chemerinsky was appointed Dean of UCI law school. The appointment had some opposition from the right, but Chemerinsky's appointment was also supported by a host of figures on the right -- conservative radio host Hugh Hewitt, for example.
Chemerinsky uses Ginsberg's style of legal reasoning. He first determines the outcome he wants, and then looks at the kaleidoscope of legal theory and case law to put together an argument for it. His ideology determines legality, not the law as written and decided.
"'I don't try to hurt the students in class. To me, the answer is to continue to doggedly treat all the judicial opinions the same way, trying to understand what they mean. I set the example of taking all of it seriously.' I dunno, the most effective bit of pedagogy I've ever read about came when an angry professor threw the piece of chalk he was holding hard enough for it to shatter. "Laugh at that," he said as he stormed out of the room."
Key word: "he."
I've learned not to exhibit anger, even for pedagogical effect. What I will do, in that situation, is ask serious questions that don't allow the student (or the rest of the class) to get off the hook. So, I might say:
1. Do you think it will work in arguing in court to say "That's Scalia"?
2. I'm not interested in your feelings about Scalia, I'm interested in the argument, which you need to be able to articulate whether you agree with it or not. Understanding an argument is crucial to being able to argue on the other side, and the fact is, you don't know now which arguments are going to turn out in the end to be useful to your clients. You're going to need to know how to use what is useful.
3. [Turning to another student] Is that a response to the question asked?
4. I see some humor is shared here in the comfortable cocoon of law school. Do you think it's helpful to your professional development to consume class time nudging each other to laugh about the same things you've laughed about before? (Haven't used this one!)
5. Is laughing like this at the name "Scalia" something that's routine in other classes? I'd really like to know, because I consider lame and a waste of time (or worse). (Haven't used this one yet!)
"I'm not saying that it would be as effective a technique for you (for one thing, it's been a long time since professors used chalk and blackboards!) but if my goal was to teach students, I wouldn't try to doggedly set an example. I'd give them something to remember with a shiver down their spines for the rest of their lives. Perhaps an icy reminder that a justice of the Supreme Court is as far above a law student as the law student is above a kindergartener, might do the trick. Or might not. Perhaps you might think on it.I don't try to hurt the students in class. To me, the answer is to continue to doggedly treat all the judicial opinions the same way, trying to understand what they mean. I set the example of taking all of it seriously."
I do say some things, as indicated above. But I also think you are underestimating the power of withholding positive reinforcement. The students really are trying to perform well and are probably doing something they've been reinforced for in other classes. A stony nonresponse can be chilling. The students really do want to be thought well of, I believe, and positive reinforcement for good answers is better than humiliating them in front of their peers.
Professor, those are some good retorts. Not hostile but makes them squirm a bit. Thank you for elaborating.
Chemerinsky is a secular progressive. It would therefore be unreasonable to expect him to recognize or acknowledge the fatuousness and intellectual dishonesty that provoke Scalia's barbs. He would also be oblivious to the extent to which those of his ilk contribute to the general increase in incivility by their constant attacks on "the other" illustrated by his assault on Scalia.
He does, however, recognize in Scalia an enemy in the culture war spearheaded by university professors - those same professors responsible for teaching their students the difference between the roles of judges and lawyers in legal proceedings.
Left Bank of the Charles said...
But isn't that precisely the reason for Justice Scalia's diatribes, he gives them out when he cannot win? In other words, these aren't losing arguments but a loser's protestations.
Does Scalia use the same sort of wit when writing for the majority and/or writing a concurrence? I don't know, but if so that would show your theory to be fatuous.
Ann, here's another possible thing you could say:
"So, by that are you saying that you don't care if you get Scalia's vote when you're in front of the Supreme Court? That earning his vote is beneath you?
And are going also be honest and tell your client, before you argue, that you're betting their case on just persuading 5 of 8 justices (make that 5 of 7 really, because if you don't want Scalia's vote, you surely don't care about Thomas' either?)"
I just read the Chemerinsky piece.
Apparently he has never read any of Ginsberg's dissents.
My God, Chemerinsky is a such a a thick-headed ideologue that a dem president may appoint him to the Supreme Court.
I hope Chemerinsky isn't teaching his students to argue like an SC justice. That would be kind of like teaching a foot soldier to think like a general.
Basil said...
I don't try to hurt the students in class. To me, the answer is to continue to doggedly treat all the judicial opinions the same way, trying to understand what they mean. I set the example of taking all of it seriously."
Then you aren't preparing them to be real lawyers in the real world. Perhaps you should reconsider and begin to teach these children some respect for their betters and that actions have consequences. They seem to lack knowledge of both of these concepts.
I think they have a better understanding than you do. Although it is inappropriate and indicative of poor thinking such dismissiveness is highly likely to be rewarded in most legal environments.
But I also think you are underestimating the power of withholding positive reinforcement. The students really are trying to perform well and are probably doing something they've been reinforced for in other classes. A stony nonresponse can be chilling. The students really do want to be thought well of, I believe, and positive reinforcement for good answers is better than humiliating them in front of their peers.
I wonder if "that's Scalia" is a signaling device of the insecure. The student thinks "I have been asked to summarize an argument that I and most of my peers disagree with. If I summarize it well, my peers might think I really believe it. So I will make sure that they know that I know that anything I say is just Scalia, not me."
In a lighter vein, "that's Scalia" lends itself to a classic Italian-American song.
When the barb hits your mind like a parmesan rind, that's Scalia
When the ad hominem makes your head start to swim, that's Scalia
Let the insecure learn that.
Scalia is doubly dangerous to the insecure student because clear and incisive arguments are easier to summarize.
Basil
You write:
Ad hominem attack by a crazed left wing socialist who doesn't believe in the rule of law against a sitting Supreme Court Justice who does.
You got it. The Ironic is lost on The Moronic. Here, ad hominem is OK if used by the right people.
BTW, some confuse the types of ad hominem
(1) mindless name calling or calling attention to opponents irrelevant flaws.
(2) showing that the opponent is ignorant of the subject, contradicting past positions, or arguing in bad faith.
But (1) including tittering at the man, is OK if used by Leftists, but not if used by Conservatives & (2) is never OK if used against Leftists, Why? Because Leftists' causes are always just.
Often the mot juste is cunt. What to do then?
Rick
You got it. Alas!
rhh
You first have to consider if the person you're "mj"-ing is a Lib Wymyn or a Conservative Wymyn.
No Transgender reference here, pls
From Inwood, Coupe, We should require lawyers to do a semester of Quintilian at the beginning of law school. Oratorem autem instituimus illum perfectum, qui esse nisi uir bonus non potest, ideoque non dicendi modo eximiam in eo facultatem sed omnis animi uirtutes exigimus. Students in the law who aren't intending to make their careers there in lives of honesty and virtue shouldn't bother with law school at all; they could go straight into partisan politics.
I wouldn't try to doggedly set an example. I'd give them something to remember with a shiver down their spines for the rest of their lives. Perhaps an icy reminder that a justice of the Supreme Court is as far above a law student as the law student is above a kindergartener, might do the trick.
Even more shiver-inducing: "a justice of the Supreme Court is as far above a lawyer as a lawyer is above a cockroach." Being law students, they won't realize that that's not actually very far.
Scalia's quip creates a great opportunity for a teaching moment for law students. First, what is the common thread that runs through the aphorisms found in fortune cookies? Once this thread is identified, a second question arises: are there examples in the language used by Kennedy in his same-sex marriage opinion that correspond to this common thread?
Not only will these questions spark a great class discussion, but students trying to answer them will have to do some careful critical reading and some sound legal analysis.
You make me want to go to law school to annoy the other students.
No Civility Bullshit tag?
Perhaps an icy reminder that a justice of the Supreme Court is as far above a law student as the law student is above a kindergartener, might do the trick.
If the trick is to have people look at you with bemused contempt, then by all means, resort to condescending elitism like that.
No kindergartner ever said that blacks are property, that three generations of idiots are enough, that living babies can be killed with impunity, and that something which is inherently and fundamentally different is actually the same.
@Althouse, I agree with Matt. Clearly you have thought about it, and have a set of responses prepared. In fact I think #2 is quite elegant, and very much on point.
"No Civility Bullshit tag?"
I considered it. Actually, this is what it's normally for, so I will add it.
"In fact I think #2 is quite elegant, and very much on point."
That's the one that's very close to how I speak in class.
Chemerinsky's column doesn't show how it's Scalia's influence in his students. He doesn't say he asked each of them why they wrote what they wrote. Scalia didn't invent smart-ass writing.
Lazy column by a lazy thinker
As long as the students go on to offer a serious critique of whichever Scalia writing is before the class, I'd forgive them the cheap laugh line at the beginning. Though if you're already on the lookout for a chance to warn them of the perils of groupthink, this'd make a pretty good opening.
I think the job of a Supreme Court 'Justice' is to show how things that are the same are different, or things that are different are the same in the service of the desired outcome in the case.
It's turtles all the way down.
The first question I had reading this was are law students really resorting to barbs and insults in their writing or oral arguments? Chemerinsky says he sees it. Does our hostess see it from her students? Or are they too "Wisconsin nice" to do that?
Marc P
Students of the law who are intending to change the world through the principles of Social Justice shouldn't bother with law school at all; they could go straight into advanced philosophy courses. Or just think deep thoughts.
Yea Freeman Hunt! I concur.
Makes me want to audit a law school class as an "old person" just to see the attitude of these "young people" who really are not so young anymore by the time they get into law school. Though, I have a niece who graduated UW Law and I see her know it all attitude and personally it makes me nauseous. But, for family harmony, rarely take her on. I just walk away. Then I bitch about her to my husband in the car in the way home. Poor guy.
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