Goose and Gander for Thanksgiving

Holiday preparations go really well with migraines.

• David Segal, in another item in the NYT, hops again on the "law schools don't create lawyers" bandwagon. Leaving aside that there is not one educational program — in any field — that adequately prepares someone to step into "practice" in the "real world" without some additional training, if only in the administrivia of particular positions; and leaving aside that the other major learned profession (medicine) requires far more extensive and intensive supervision of new graduates (MDs, RNs, and registered therapists alike) than does law; and leaving aside that there's a fundamental difference between "education" and "training," and that any profession requires both...

  Well, leaving aside all of that, let's share the blame with those who deserve it. And right now I'm going to pick on the Chief Justice of the United States of America for his contribution to the "problem" Segal complains of. Chief Justice Roberts is notorious for attacking legal academics as being out of touch, and proclaiming that law journal articles are meaningless to judges in practice and unhelpful. Goose, meet gander: Justice Roberts, your Court's legal opinions are insufficient to guide either lawyers in practice or students. As a specific example, consider the massive changes in pleading practice wrought by Twombly and Iqbal in the last few years, which changed half a century of pleading practice. Throughout those opinions — and the dissents — the various justices argued extensively about whether a particular complaint adequately suggested, to a level of probability that was the subject of the argument, a theory of potential liability. That was fine, in a sense; the problem is that nobody — not the Supreme Court, not the Courts of Appeals, not the District Courts — quoted the actual data at issue: The allegations in the complaint. This would have been trivial; the critical section of the complaint in Iqbal, for example, is only four double-spaced-typed pages long. We would not then be wondering what data set led to the high-minded principles used to dismiss those complaints... nor would there remain the ideological/"results-oriented jurisprudence"/"docket control" issues, or at least not so overtly due to the courts' success in suppressing the data from general accessibility. (Yes, I know how to use PACER to get those complaints; but there's no equivalent in most state courts... or for older cases...)

  Twombly and Iqbal give us the Science News version instead of the Journal of the American Chemical Society version. Nobody treats Science News as a primary source for scientific principles, and yet we're expected to treat the equivalent as a primary source for legal principles. In turn, that means that the complaints don't make their way into casebooks, and thus in front of students. Yet many complain that law journals have the very same defects, because they are not grounded in the realities of practice. Admittedly, there is crap in law journals; there's crap in scientific journals, too (and the less said about garbage like the Harvard Business Review, the better). That's no excuse, however, for tolerating crap in judicial opinions that would not pass muster at even a mid-level scientific journal because the opinions expect the reader to take the data on faith.

  None of this is to say that everything in the legal academy is perfect. It is only to say that the problems are not at all what Segal (et al., as it has become quite a popular meme) says they are, let alone what the cause of any of those problems is... let alone what a solution to any of those problems might be (hint: whatever such a solution might be, it is not teaching civil litigation administrivia to someone whose first job is reviewing M&A documents for a fairness opinion). <SARCASM> Or maybe the legal profession could just jettison its animus toward second-career lawyers, both in practice and in legal academia, since much of the "administrivia" aspect of learning to practice gets learned in those first careers that lead to law school. Yeah, that's gonna happen Real Soon Now. </SARCASM>

• Speaking of data, scientific journals, and worthwhile publishing, consider Springer Verlag's generally well-considered efforts to digitize its backlist of scientific works. If you walk into the office of any chemist, mathematician, geologist, physicist, or (only almost any) researcher in the life sciences, you'll find at least one Springer publication... and it probably has marginal notes, and dogeared pages, and bookmarks (unless you've found a brand-new edition or a brand-new researcher!). I am most encouraged by Springer's apparent care for what it has the rights to do. I may not agree that Springer in fact has those rights in each specific instance... but unlike most digitizing efforts, it has integrated that inquiry into the system at the beginning point. In short, this is how the Google Books System should have been done, especially considering that there's an at least credible argument against publishers profiting from academic works in the first place (that has substantial flaws, but it's a lot more credible than the equivalent argument for trade fiction or anything else in which expression is more important than the facts conveyed).
• Perhaps there's a place for a liberal in American politics. We don't have one in the Half-White House at present — Obama is a moderate, not a liberal. Maybe Massachusetts can do better than a model for Cosmo as a US Senator. Or maybe not; there's that whole "antiintellectualizm rulez" thread in the Tea Party and among "social conservatives" (I guess one shouldn't think too hard about whether something really is moral, eh?) to fight against. BTW, how did abject stupidity and overt rejection of conscious thought work out with the economy from 2004 through 2008?
• Or maybe this is all just another failure of Rawls's test for the original position that pops up in unexpected places like determining who gets to be a professor... or, more properly, can afford to be a professor. Like, for example, Professor Warren herself...