Wednesday, July 06, 2011

Law and Philosophy
note-taking (posted elsewhere): two comments at Balkinization, repeating a comment at NewApps
There's a difference between intellectualism and street smarts but there's also an intellectualism that engages experience, and the skill of reading situations on the fly. The humanist academy has insulated itself over the last decades, in the name of objectivity, reason, and science (often as pseudo-science) in what seems like a continuation of the "Two Cultures" debate. The model of intellectualism not founded rightly or wrongly in natural science is founded on the model of philosophy and academics as philosophers. This ties indirectly to the European model of inquisitorial justice and not the Anglo-American model of adversarialism, which is chaotic by comparison, but more founded in the vulgar practice of democratic debate. I think I'm reading a defense of that here now.

It's always amused me that Brian Leiter held the "Joseph D. Jamail Centennial Chair in Law", at UT Austin. Here's a clip of Joe Jamail in action.
I want to continue a bit because the subject has begun to come up in academia. Professional philosophers are beginning consider something they call Embodied Cognition. It's a problem that they're fundamentally opposed to the practices they're trying to understand. It would be a mistake for law professors to insulate themselves in this way.

The following is something I posted on a philosophy page where embodied cognition is a popular subject. The link to SSRN is courtesy of a commenter here:

"Embodied knowledge also includes the interpretation of embodied knowledge: the skills both of the craftsman and the critic. Expertise by way of embodiment is called connoisseurship. The contemporary model of naturalist epistemology dismisses it out of hand, as philosophy has always opposed rhetoric, while indulging it as we all must.

Trial lawyers are connoisseurs, as legal performers and critics. Lawrence Solan, "Lawyers as Insincere (But Truthful) Actors" SSRN. Solan underestimates the role of insincerity in daily life and of the common requirement to recognize it, partly I think because as a liberal, he wants to see himself as sincere. But we live our lives following performances as texts and subtexts. The ability to read subtext is one aspect of the ability to read embodiment. The only way to escape liberalism is to acknowledge embodiment not as worthwhile subject but as method and to trust no one, not even yourself."

Lawyering is an art, and in our system it's vulgar. Academia is caught up now in a cooperative, collaborative model of study, of "research", that then sends out opinions written in the form of judicial decisions. Moral Hazard seems to apply to everyone but economists, and "liberal" politicians foist illiberal policies on the electorate with no change to the self-designated labels. Sandy Levinson has already gone over the Yalies in the White House legal staff.

"Could you elaborate on how a Ph.D would mitigate the problem of results-oriented scholarship?"
Again, mls, [Michael Stern-Point of Order] your arguments here have been more founded in rhetoric than anyone's.

"Like Professor Tushnet, I don’t claim that the mere fact that no one has raised the argument before means it is meritless. But it is pretty evident that any merit it may have is, shall we say, coincidental."

That's not criticism of an argument it's criticism of an attitude. I don't care that you did it, it's a lawyers' trick and tricks are legit: you fight with what you have. But if your moralism is rendered false by your technique, it's the moralism that's the problem.
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