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> law schools need to pivot away from judicially oriented activism to make room for a new kind of engagement with the public. How about pivoting away from soc
by wahern 8y ago
> law schools need to pivot away from judicially oriented activism to make room for a new kind of engagement with the public.
How about pivoting away from social change altogether. There's a fundamental tension between explaining the law and advocating for change. Lawyers who abuse their credentials and authority by advocating in public forums harm the rule of law. When two lawyers dispute abstract legal questions in a popular public forum it gives people the impression that the law is more malleable and more capricious than it is.
The shift of scholarly discourse, legal and otherwise, into the political culture hasn't increased the intelligence of the conversation, but merely served to pour gasoline onto the fire. Few people not educated (formally or informally) in the field appreciate the nuance nor are they capable of differentiating substantive arguments from arcane technicalities. There's not even any incentive to do this. Rather, the incentive is almost entirely to weaponize an argument by divorcing it from its context. In this way credentials and scholarly authority are abused and debased, regardless of the scholar's intention.
For lawyers in particular this should be an ethics issue. If a lawyer wants to engage in any sort of public advocacy, it should be ethically improper to reference their degree or bar membership. And it should generally be frowned upon in the profession for lawyers to use lawyerly, matter-of-fact language when engaging in such advocacy.
For a recent example of the perils, this recent Popehat post and the subsequent comments are a somewhat decent example: https://www.popehat.com/2018/12/18/alan-dershowitz-is-lying-to-you/ https://www.popehat.com/2018/12/18/alan-dershowitz-is-lying-... Though to be clear the issues are far more numerous and complex than exemplified in that post.
- sjg007 8y agoThe law is all about interpretation of expectation. This is why most politicians are lawyers.
- gamblor956 8y agoThe law is very capricious and malleable... Barring lawyers from referring to their legal backgrounds would violate their First Amendment rights. And not letting them use precise language could result in their audience misunderstanding what they are saying. Finally, arcane technicalities frequently are substantive matters, especially in a system of law based on historical Court decisions.
- alexanderwept 8y ago>Barring lawyers from referring to their legal backgrounds would violate their First Amendment rights Only if it were the State who was barring them. If their credentialing body said - please don't reference your credentials in public, it wouldn't be any different than anyone else who's asked to keep things private. Unless you're suggesting that there's a first amendment violation when your company asks you to keep mum about projects you're working on.
- gumby 8y agoI understand, and am sympathetic to the point you're making, but I'm afraid it's absurd. If you're advocating for a change in the law, or justifying rights for someone based on existing practice for other groups, etc, you will reference the law. And why should your statement not benefit from the credibility that comes with actually having studied the law? A comment by Ken White (who writes Popehat) should have significantly higher credibility than one by me (who has never attended law school). Also, in the US there is, as others have pointed out, a first amendment right to state almost anything truthful (and much beyond).
- torstenvl 8y agoNo. There is a fundamental link between explaining the law and advocating for change in the law. You might as well say that nobody who can program computers should be allowed to submit PRs or feature requests. If I were to advocate for changes in the law without explaining what the law says and why it needs to be changed, I would almost by definition be trying to manipulate my audience - trying to get them to give me their support while keeping my reasons and agenda hidden. As I read your comment, no, Sir, I cannot agree. But perhaps I misunderstand you, in which case I'm happy to be corrected. Perhaps what you mean is that legal minds shouldn't coyly accept the benefits of the tendency of the public to accept the implicit argument by authority. Perhaps you mean simply that advocacy shouldn't take the guise of a dispassionate explication. In the talk of the trade, a lawyer shouldn't pass a brief (persuasive) off as a memo (analytical). If that is the heart of what you're trying to say, I think that's fair and reasonable.