May 25, 2008
The Situationist brings us a commencement-time gift of Law, Chicken Sexing, Torture Memo, and Situation Sense, a 2006 commencement speech by Yale Law Prof Dan Kahan who congratulates the gaggle of fresh-faced law grads by comparing the skills just acquired during their 3-year, $193,200 education to the dark art of chick-sexing:
What in the world does this have to do with law, you are asking yourself of a professorâ€™s lecture, once again. Well, what I want to suggest is that whatâ€™s going on in the chick-sexing profession is the very same thing that goes on in the legal profession. The formal doctrines and rules that make up the law â€“ unconscionability, proximate causation, character propensity, unreasonable restraints of trade â€“ are just as fuzzy and indeterminate as the genetalia of dayold chicks. And yet just as the trained chick sexer can accurately distinguish female from male, so the trained lawyer can accurately distinguish good decision from bad, persuasive argument from weak. Ask the lawyer for an explanation, and in his case too youâ€™ll get nothing but confabulation â€“ â€œplain meaning,â€ â€œcongressional intent,â€ â€œefficiencyâ€ â€“ or what have you.
In addition, the lawyer attains her skill â€“ to recognize what she canâ€™t cogently explain â€“ in much the same way that the chick sexer does: through exposure to a professional slideshow, this one conducted by law grandmasters, including law professors but also other socialized lawyers, who authoritatively certify what count as good and bad decisions, sound and unsound arguments, thereby inculcating in students and young practitioners the power of intuitive perception distinctive of the legal craft.
I’ve had a few Yale-grads as profs so far and this begins to explain why they can be so infernally nebulous. I wonder have the chicks developed a ‘situation sense’ as they squirm under the eye of the chicken sexer? Would the chick be content with the chicken sexer’s ability to “recognize what [he or she] canâ€™t cogently explain” or would they desire something more? a cogent explanation perhaps…
I watched in awe and admiration as many of my friends graduated this spring. Many already have jobs and clerkships lined up (with, of course, that little matter of the bar to take care of first) but as many still will be out there hustling, hanging out a shingle or catching on with a smaller firm. There are far fewer Yalies in this boat I suspect, but it is the reality for the majority of the bar. These new lawyers will, for better or worse, hit the ground running and they expect law school (faintly perhaps) to have prepared them for that, apologies for pedagogical methods notwithstanding.
These new lawyers will go out and represent clients, real people with real problems, who need not only someone who can recognize the situation but is prepared to do something about it. Clearly Kahan has not put this out of his mind entirely when he describes the “ability to arouse the situation sense of other lawyers, including judges” – though it’s not clear to me where the distinctive pedagogy for this particular skill lies, however. I’m doubt most law schools know either.
There are practical ‘skills’ classes and advocacy programs – moot court and mock trial and assorted clinics at most law schools but these are clearly outside the peculiar pedagogy most schools see as their fundamental value proposition. It’s a convenient if not entirely realistic trope that this learning to think like a lawyer business is all we should really expect from law school. This problem is not unique to Yale, they can afford to do less about it. I feel like the quality of legal education I’ve received has been very, very good, but when I hear words like Kahan’s, the implicit value system it imparts, I wonder what it could be.
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