> law schools need to pivot away from judicially oriented activism to make room for a new kind of engagement with the public.
How about pivoting away from social change altogether. There's a fundamental tension between explaining the law and advocating for change. Lawyers who abuse their credentials and authority by advocating in public forums harm the rule of law. When two lawyers dispute abstract legal questions in a popular public forum it gives people the impression that the law is more malleable and more capricious than it is.
The shift of scholarly discourse, legal and otherwise, into the political culture hasn't increased the intelligence of the conversation, but merely served to pour gasoline onto the fire. Few people not educated (formally or informally) in the field appreciate the nuance nor are they capable of differentiating substantive arguments from arcane technicalities. There's not even any incentive to do this. Rather, the incentive is almost entirely to weaponize an argument by divorcing it from its context. In this way credentials and scholarly authority are abused and debased, regardless of the scholar's intention.
For lawyers in particular this should be an ethics issue. If a lawyer wants to engage in any sort of public advocacy, it should be ethically improper to reference their degree or bar membership. And it should generally be frowned upon in the profession for lawyers to use lawyerly, matter-of-fact language when engaging in such advocacy.
For a recent example of the perils, this recent Popehat post and the subsequent comments are a somewhat decent example: https://www.popehat.com/2018/12/18/alan-dershowitz-is-lying-... Though to be clear the issues are far more numerous and complex than exemplified in that post.
Barring lawyers from referring to their legal backgrounds would violate their First Amendment rights. And not letting them use precise language could result in their audience misunderstanding what they are saying. Finally, arcane technicalities frequently are substantive matters, especially in a system of law based on historical Court decisions.
>Barring lawyers from referring to their legal backgrounds would violate their First Amendment rights
Only if it were the State who was barring them. If their credentialing body said - please don't reference your credentials in public, it wouldn't be any different than anyone else who's asked to keep things private.
Unless you're suggesting that there's a first amendment violation when your company asks you to keep mum about projects you're working on.
I understand, and am sympathetic to the point you're making, but I'm afraid it's absurd.
If you're advocating for a change in the law, or justifying rights for someone based on existing practice for other groups, etc, you will reference the law. And why should your statement not benefit from the credibility that comes with actually having studied the law? A comment by Ken White (who writes Popehat) should have significantly higher credibility than one by me (who has never attended law school).
Also, in the US there is, as others have pointed out, a first amendment right to state almost anything truthful (and much beyond).
No. There is a fundamental link between explaining the law and advocating for change in the law. You might as well say that nobody who can program computers should be allowed to submit PRs or feature requests.
If I were to advocate for changes in the law without explaining what the law says and why it needs to be changed, I would almost by definition be trying to manipulate my audience - trying to get them to give me their support while keeping my reasons and agenda hidden.
As I read your comment, no, Sir, I cannot agree.
But perhaps I misunderstand you, in which case I'm happy to be corrected. Perhaps what you mean is that legal minds shouldn't coyly accept the benefits of the tendency of the public to accept the implicit argument by authority. Perhaps you mean simply that advocacy shouldn't take the guise of a dispassionate explication. In the talk of the trade, a lawyer shouldn't pass a brief (persuasive) off as a memo (analytical). If that is the heart of what you're trying to say, I think that's fair and reasonable.
I'm not sure that social advocacy should be a goal of the legal profession. I understand that most politicians tend to have degrees in law, however when you take on a political stance and display it, it seems to me that this has the net effect of weakening the role of lawyers and justice in general.
I've always thought that public defenders, and prosecutors should be a pool of publicly paid lawyers that have to take on cases of all kinds. That the respect for the basis of personal liberty and being able to objectively argue for either side of any given narrative is of paramount importance.
I think too many of the current twenty-something generation appear to be far more concerned with feelings, virtue and equality of outcome than they are thinking critically and doing what is most right for all involved. Less self, more service.
> I'm not sure that social advocacy should be a goal of the legal profession.
So, no Gary Becker, no Richard & Eric Posner, no Guido Calabresi, no Ronald Coase? That would be pretty awful, if you ask me. Lawyers and jurists can provide a useful perspective on the social sciences.
Social advocacy has always been the province of lawyers. You owe your civil rights to lawyers. The codification of human rights into meaningful rights was done by lawyers. Hell, the very concept of individual property rights that underlies Western Civilization was the work of lawyers.
And it was all driven by lawyers concerned about virtue and equality of outcome.
Equality of rights means that every person has the same rights.
Equal protection under the law means that every person is legally treated the same in terms of how they are treated by the government. Rarely happens in practice.
Equality of opportunity means that the most qualified person gets the job. That the person with the best grade gets the grant/scholarship.
Equality of outcome means that someone who works very hard gets the same (housing, income, lifestyle) as someone with no job who sits around playing CoD all day. It means that you get service distribution lines. It means that people will randomly disappear when they complain about the conditions. It means over 150 million dead (from communist regimes so far).
I don't understand how focusing on virtue and equality of outcome is not more service for the benefit of all. Critical thinking would probably be a tool whose use could be orthogonal those two just like feelings.
So, you feel that someone who is brilliant with a given skill, who uses his trade for benefit of society should have the same outcome (same amount of income, same housing, same quality of life) as someone with below average intelligence who sits around and plays video games all day?
No, but I don't think the latter individual should starve, or be unable to afford healthcare, or be forced to work in unsafe work conditions, or be forced to work multiple jobs because any single on that this person can get doesn't pay enough. I think the minimum that both individuals should expect to get from various levels of government should be the same, and that minimum should be of sufficient level so that the least fortunate can work towards something better when the time and situation permit without being forced to subsist in poverty and the mindset that poverty locks people into.
However, given that judges and a large share of the political pool is drawn from lawyers, I feel that a bit of restraint, understanding and leaning towards impartiality at least from the point of considering all sides is incredibly important.
At the point one becomes a social advocate, they probably shouldn't be running for judicial office at the very least, and maybe reconsider any ambitions of public office at all.
> At the point one becomes a social advocate, they probably shouldn't be running for judicial office at the very least, and maybe reconsider any ambitions of public office at all.
Judges (and, a fortiori, judicial candidates) remain citizens and do not surrender their right to participate publicly as citizens; there is a certain degree or restraint and separation of advocacy and judicial role, but (while there is room to debate application in specific cases, and clear places where the existing norms have failed to be applied) there are well-established norms of conflict avoidance and recusal/removal from particular cases that address this. I don't think stronger basic norms are needed here, though more vigrous enforcement of existing norms.
As for non-judicial public office, social advocacy is very much what the electorate looks for in candidates for those offices and how it judges them, the idea that anyone involved in social advocacy should avoid such offices is, well, unusual, and it definitely needs more of an argument than you've presented.
As dusk turns to night for progressive activism in the courts, law schools need to pivot away from judicially oriented activism to make room for a new kind of engagement with the public. What is lacking in public discussions about law school is attention to what it means for legal elites to serve the democratic conversation about how the people rules itself. Rather than burnishing the credentials of law and its royal judicial stewards, we should insist on the centrality of the people in a democratic legal order. If elite students are forced into a dilemma about how to preserve their sense of justice even as they embrace extraordinary privilege, it is, first and foremost, because society allows law schools to endlessly reproduce elite ascendancy. But the institutions themselves can force some change from within, in part by explaining to the people how the law rules them.
Activism in the courts, where so much of the outcome depends on judges, who are neither elected nor accountable to the people, undermines democracy, the legitimacy of the rulings so made, and the causes thus supported.
History says otherwise. There have been far worse periods, and democracy just adjusts and moves on. (Sometimes the ideas of the past arise again. For instance, socialism has been somewhat fashionable in America's past, and again is on the political radar screen.) There is not an open crisis.
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[ 3.5 ms ] story [ 55.6 ms ] threadHow about pivoting away from social change altogether. There's a fundamental tension between explaining the law and advocating for change. Lawyers who abuse their credentials and authority by advocating in public forums harm the rule of law. When two lawyers dispute abstract legal questions in a popular public forum it gives people the impression that the law is more malleable and more capricious than it is.
The shift of scholarly discourse, legal and otherwise, into the political culture hasn't increased the intelligence of the conversation, but merely served to pour gasoline onto the fire. Few people not educated (formally or informally) in the field appreciate the nuance nor are they capable of differentiating substantive arguments from arcane technicalities. There's not even any incentive to do this. Rather, the incentive is almost entirely to weaponize an argument by divorcing it from its context. In this way credentials and scholarly authority are abused and debased, regardless of the scholar's intention.
For lawyers in particular this should be an ethics issue. If a lawyer wants to engage in any sort of public advocacy, it should be ethically improper to reference their degree or bar membership. And it should generally be frowned upon in the profession for lawyers to use lawyerly, matter-of-fact language when engaging in such advocacy.
For a recent example of the perils, this recent Popehat post and the subsequent comments are a somewhat decent example: https://www.popehat.com/2018/12/18/alan-dershowitz-is-lying-... Though to be clear the issues are far more numerous and complex than exemplified in that post.
Barring lawyers from referring to their legal backgrounds would violate their First Amendment rights. And not letting them use precise language could result in their audience misunderstanding what they are saying. Finally, arcane technicalities frequently are substantive matters, especially in a system of law based on historical Court decisions.
Only if it were the State who was barring them. If their credentialing body said - please don't reference your credentials in public, it wouldn't be any different than anyone else who's asked to keep things private.
Unless you're suggesting that there's a first amendment violation when your company asks you to keep mum about projects you're working on.
If you're advocating for a change in the law, or justifying rights for someone based on existing practice for other groups, etc, you will reference the law. And why should your statement not benefit from the credibility that comes with actually having studied the law? A comment by Ken White (who writes Popehat) should have significantly higher credibility than one by me (who has never attended law school).
Also, in the US there is, as others have pointed out, a first amendment right to state almost anything truthful (and much beyond).
If I were to advocate for changes in the law without explaining what the law says and why it needs to be changed, I would almost by definition be trying to manipulate my audience - trying to get them to give me their support while keeping my reasons and agenda hidden.
As I read your comment, no, Sir, I cannot agree.
But perhaps I misunderstand you, in which case I'm happy to be corrected. Perhaps what you mean is that legal minds shouldn't coyly accept the benefits of the tendency of the public to accept the implicit argument by authority. Perhaps you mean simply that advocacy shouldn't take the guise of a dispassionate explication. In the talk of the trade, a lawyer shouldn't pass a brief (persuasive) off as a memo (analytical). If that is the heart of what you're trying to say, I think that's fair and reasonable.
I've always thought that public defenders, and prosecutors should be a pool of publicly paid lawyers that have to take on cases of all kinds. That the respect for the basis of personal liberty and being able to objectively argue for either side of any given narrative is of paramount importance.
I think too many of the current twenty-something generation appear to be far more concerned with feelings, virtue and equality of outcome than they are thinking critically and doing what is most right for all involved. Less self, more service.
So, no Gary Becker, no Richard & Eric Posner, no Guido Calabresi, no Ronald Coase? That would be pretty awful, if you ask me. Lawyers and jurists can provide a useful perspective on the social sciences.
And it was all driven by lawyers concerned about virtue and equality of outcome.
See that’s where you lost me.
Equal protection under the law means that every person is legally treated the same in terms of how they are treated by the government. Rarely happens in practice.
Equality of opportunity means that the most qualified person gets the job. That the person with the best grade gets the grant/scholarship.
Equality of outcome means that someone who works very hard gets the same (housing, income, lifestyle) as someone with no job who sits around playing CoD all day. It means that you get service distribution lines. It means that people will randomly disappear when they complain about the conditions. It means over 150 million dead (from communist regimes so far).
It's generally not (outside of, perhaps, access to legal services, and the fact that legal advocacy is, itself, a proper subset of social advocacy.)
OTOH, lawyers don't stop being citizens, and social advocacy (in the broad sense) is a right and important role of citizens in a liberal democracy.
At the point one becomes a social advocate, they probably shouldn't be running for judicial office at the very least, and maybe reconsider any ambitions of public office at all.
Judges (and, a fortiori, judicial candidates) remain citizens and do not surrender their right to participate publicly as citizens; there is a certain degree or restraint and separation of advocacy and judicial role, but (while there is room to debate application in specific cases, and clear places where the existing norms have failed to be applied) there are well-established norms of conflict avoidance and recusal/removal from particular cases that address this. I don't think stronger basic norms are needed here, though more vigrous enforcement of existing norms.
As for non-judicial public office, social advocacy is very much what the electorate looks for in candidates for those offices and how it judges them, the idea that anyone involved in social advocacy should avoid such offices is, well, unusual, and it definitely needs more of an argument than you've presented.
Activism in the courts, where so much of the outcome depends on judges, who are neither elected nor accountable to the people, undermines democracy, the legitimacy of the rulings so made, and the causes thus supported.
History says otherwise. There have been far worse periods, and democracy just adjusts and moves on. (Sometimes the ideas of the past arise again. For instance, socialism has been somewhat fashionable in America's past, and again is on the political radar screen.) There is not an open crisis.