Another Attempt At Exorcising Langdell's Tenacious Ghost

My latest attempt at exorcising C.C. Langdell's tenacious ghost is now in print: "Langdell & the Eclipse of Character." I've been trying to dispel this specter for years. https://lawreview.law.pitt.edu/ojs/lawreview/article/view/1001/643

Excerpt from Conclusion: "I will not conclude by calling Langdell a confidence man. I will, however, conclude with a few words from Melville’s THE CONFIDENCE MAN. As Melville reminds us: the false cannot plausibly overclaim perfection. For example, ‘[T]he best false teeth are those made with at least two or three blemishes, the more to look like life.’ A legal formalism which claims mathematical certainty (and which further denies the importance of the slings and arrows of substantial law practice for the law professor) does not even pretend to look like life. Were Langdellianism a con, it could therefore not be a plausible one, and those duped by it should be all the more ashamed . . . ."

Hermeneutics and Anselm's Ontological Argument: Lessons for Lawyers and Others On Existential Proof

When lawyers and others explore the limits of logical proof in proving matters of existence, it's quite useful to explore St. Anselm's Ontological Argument purporting to prove God's existence as a matter of pure logic. Grasping how the argument might might work on a purely hermeneutic level while possibly failing on the pragmatic level helps explain the need for meaning to work in the face of experience. We can also gain much insight on these points by exploring how a common objection to Anselm's argument fundamentally fails. As we'll see, hermeneutics must be pragmatic in the sense discussed below, and this straightforwardly makes the case for hermeneutic pragmatism as best philosophy.

Starting with a common objection to Anselm's argument, it seems but common sense that things either exist or they don't apart from pure logic. For example, as the objection might go, my keyboard I'm using now would exist even if no one knew logic. How, then, can pure logic prove anything exists? Well, the objection and example assume that existence as we commonly understand the term is something simply there apart from language. But that is error. Existence is a concept created by our language (or more precisely our semiotics). That is, existence itself is hermeneutic and things can meaningfully "exist" within countless conceptual schemes of the world that we might construct. Hilary Putnam's exploration of "internal realism" sheds further light here. How, then, is existence less subject to logical proof within conceptual schemes than other concepts like that of God offered by St. Anslem? 

All that said, we of course cannot accept that God must transcendentally exist simply because we can deductively prove God's existence within Anselm's (or any one else's) conceptual worldview. First, this ignores the hermeneutics just discussed: we can have countless concepts of God which may or may not be compatible within the countless potential conceptual world schemes we might use. Second, any such purely deductive ontological argument would ignore a critical element of good reasoning. Our concepts must work in the face of all experience: they must help us predict, organize, and improve such experience in ways that sufficiently handle (for the purposes we have) all experience (including moral experience). If we wish to fully "prove" anything, we must therefore not only successfully prove how concepts flow within a conceptual scheme. We must also demonstrate the pragmatic workability just discussed. This is the real lesson of Anselm's argument and the flaws in the common objection to Anslem noted above. Thus, as theologians wishing to prove the existence of God must address both hermeneutics and pragmatism (and thus embrace hermeneutic pragmatism), so must lawyers wishing to prove matters of existential dispute. 

Anselm's no less fascinating Cur Deus Homo also invites useful instruction in hermeneutic pragmatism. Hopefully soon, I plan to sketch out a more modern rewrite also in question form. In addition to allowing such further exploration of good hermeneutic pragmatism, I hope this will also help too-insular lawyers see how deep explorations of areas beyond the law can make them better lawyers.

Fantastic Cognitive Emotion & the Law Symposium Held at Wake Law 2/22/19

Many thanks to the thoughtful speakers and Wake Law Review students who made possible this engaging February 22, 2019 symposium on the inseparability of emotion and reason in legal and other reasoning. The symposium volume will be forthcoming.  Read more about cognitive emotion and the law here.

Wake Forest Law Review Publishes "Revisiting Langdell: Legal Education Reform & The Lawyer's Craft"

The Wake Forest Law Review has published its 2015 Legal Education Reform Symposium volume entitled Revisiting Langdell: Legal Education Reform & The Lawyer's Craft.  The volume can be purchased here and I hope it will make a positive difference in legal education reform. 

My introductory article in the volume highlights longstanding, substantial damage Christopher Columbus Langdell has inflicted on law schools and legal education. Much of this damage stems from three of Langdell’s wrong and counterintuitive notions: (1) law is a science of principles and doctrines known with certainty and primarily traced through case law; (2) studying redacted appellate cases is “much the shortest and best, if not the only way” of learning such law; and (3) despite Langdell’s own roughly fifteen years of practice experience, practice experience taints one’s ability to teach law. I briefly highlight problems with, and harms resulting from, each of these wrong notions. Among other things, I briefly explore: (A) contradictions, oversights, and wrong assumptions in Langdell’s views; (B) how the very meanings of “theory” and “practice” reject Langdell; (C) how the necessary role of experience in meaning itself rejects Langdell; (D) parallels between Langdell and unworkable Cartesian dualism; and (E) how the necessary role of framing in the law rejects Langdell. I also briefly survey some remedies suggested by reason, experience, common sense, and modern cognitive psychology. These include rejecting the redacted appellate case method as a primary mode of instruction, recognizing the necessary fusion of theory and practice, recognizing the need for practice experience in law professors, recognizing the embodied nature of meaning and the resulting role of practice and simulation in good legal education, embracing the humanities (including classical rhetoric) in legal education, abandoning meaningless distinctions such as distinctions between “doctrinal” and “non-doctrinal” courses, and abandoning “caste” systems demeaning those with law practice experience and elevating those who lack such necessary experience.  My introduction can be found here.

Cognitive Emotion and the Law

Many wrongly believe that emotion plays little or no role in legal reasoning. Unfortunately, Langdell and his “scientific” case method encourage this error. A careful review of analysis in the real world, however, belies this common belief. Emotion can be cognitive and cognition can be emotional. Additionally, modern neuroscience underscores the “co-dependence” of reason and emotion. Thus, even if law were a certain science of appellate cases (which it is not), emotion could not be torn from such “science.”

As we reform legal education, we must recognize the role of cognitive emotion in law and legal analysis. If we fail to do this, we shortchange law schools, students, and the bar in grievous ways. We shortchange the very basics of true and best legal analysis. We shortchange at least half the universe of expression (the affective half). We shortchange the importance of watching and guarding the true interests of our clients, which interests are inextricably intertwined with affective experience. We shortchange the importance of motivation in law, life, and legal education. How can lawyers understand the motives of clients and other relevant parties without understanding the emotions that motivate them? How can lawyers hope to persuade judges, other advocates, or parties across the table in a transaction without grasping affective experience that motivates them? How can law professors fully engage students while ignoring affective experience that motivates students? Finally, we shortchange matters of life and death: emotions affect health and thus the very vigor of the bar.

Using insights from practice, modern neuroscience, and philosophy, I therefore explore emotion and other affective experience through a lawyer’s lens. In doing this, I reject claims that emotion and other affective experience are mere feeling (though I do not discount the importance of feeling). I also reject claims that emotion and other affective experience are necessarily irrational or beyond our control. Instead, such experience is often intentional and quite rational and controllable. After exploring law and affective experience at more “macro” levels, I consider three more specific examples of the interaction of law and emotion: (i) emotion, expression, and the first amendment, (ii) emotion in legal elements and exceptions, and (iii) emotion and lawyer mental health. To provide lawyers and legal scholars with a “one-source” overview of emotion and the law, I have also included an Appendix addressing a number of particular emotions.

The article can be found here.

Langdell Defends Langdell With A Villanelle (An Addition To "The Apology Box")

Though I've gone after Langdell several times in prose (Exercising Common Sense, Razing Langdell, and Days of Auld Langdell), I've not attempted it in verse till now.  The Villanelle seemed a good form and I felt he would speak of himself in the third person were he writing it.  Of course, even in the more polished form of a villanelle, I still disagree with Langdell's thoughts on casebooks, experienced teachers, law's nature, and more.  Law is not a certain science.  Law practice experience makes better, not worse law professors.  Theory is blind if separated from practice.  Practice is empty without theory.  Law schools are therefore elevated rather than "dumbed down" by teaching practice and theory both.  The hypocrisy of Langdell's practicing for fifteen years while saying practice taints is of course not lost on me either.  I couldn't bear including a photo of the man so I have instead substituted a page from his infamous contracts casebook.

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