Thursday, August 10, 2017
I'll plead guilty to my own case of availability heuristic here, but it sure seems like law professors lead the parade for defensive justifications of why their segment of academy still makes sense as a post-graduate choice. Shima Baradaran Baughman (Utah), guest blogging over at PrawfsBlawg, has bravely donned the gladiatorial armor and is sure to endure the largely anonymous opprobrium that will come in the comments as a result of any such effort. She's committed to a continuing series on "The Case for Law School" with Part I and Part II already posted.
My daily feed-reader scan occurred this morning just before I walked Tia the Wonder Dog, so it meant that I read this paragraph in Prof. Baughman's post, then stewed about it for the next thirty minutes as Tia got her daily constitutional.
Professor Baughman's bravery deserves the wider distribution Tax Prof Blog provides, so I'll give another shot at what spilled out in the Prawfs comments after Tia and I returned home, she got her treat for being a good puppy, and I ventured back to the MacBook Pro.
Punch line: I spent too much of my career as a lawyer-executive among non-lawyers to be a proponent of "J.D. exceptionalism." And lawyers and law profs tend to drink the rationality Kool-Aid. It's an occupational hazard.
The empirical proposition that people change their fundamental views on things like abortion because of law school is questionable. Also the empirical proposition that there is no other education that forces one to confront legitimate arguments on the other and have to rethink views seems questionable. It is true that law school teaches a particular kind of analytical thinking (how to come up legal theories in pursuit of instrumental goals), but I'm not sure that it isn't merely a subset of the kind of analytical thinking that you have to do to make any argument, descriptive or normative, in the arts and humanities. I do know, from my years of being in board rooms and management suites with colleagues who had advanced degrees in business, environmental science, chemistry, organizational behavior, physics, English, etc., that suggesting I was uniquely able to see holes in arguments because I had a law degree would have been a rhetorical mistake!
My observation over many years is that the inclination to see the other side's point of view is affective and emotional and not reasoned. One variant on this is my maxim "the rule of law is not a rule of law." What inclines you to confront legitimate arguments and ACCEPT them is a kind of empathy or willingness to get outside your yourself and into the metaphoric shoes of another. Law, and legal argument, is just as capable of being a club as a physical club. Rather than doing the beating yourself, you appeal to a third party holding the power. The rule of law isn't a rule of law because losing and accepting the loss is a cultural or emotional or psychological disposition. Getting along with other without resort to law takes the same willingness to accept Mick Jagger's dictum that you can't always get what you want.
Several years ago, I wrote an article how how making business decisions and acting on them was fundamentally different than merely thinking rationally (as a lawyer "thinking like a lawyer" might) about a problem. One of the insightful pieces I referred to came from the philosopher Brian Ribiero:
Hats off to Professor Baughman for trying to make the case. I remain rationally unpersuaded and non-rationally unconverted.