Fault Lines
15 December 2017

Law, Not Rocket Science

May 11, 2016 (Mimesis Law) — I don’t want to sound like a broken record.  (That is a metaphor which the post  CD generation probably doesn’t use, but think of Frank Sinatra and 78 and 45 rpm phonographs, when popular music had melody and lyrics had meter.)

Much has been said about dissatisfaction with the practice of law, and disillusion with the justice system.  I join, even though I am enthused and excited that my oldest granddaughter is graduating from law school and soon to become a law clerk.

It is perhaps excessively pedantic to theorize about the cause of our present angst being the Enlightenment, but doing so makes a lot of sense to me.  With the Enlightenment came the dominance of science as the preferred mental discipline.  Much good came of this, but the scientific method also produced some undesirable results.

Rhetoric, the art of persuasion, eventually withered as an academic discipline.  Today, the study of history, philosophy and literature is only reluctantly cognizable in the academy.  By the late 1800s, the absurd notion that “the Law” is a science became the orthodox belief and the case study method the only acceptable curriculum for law school education.  This dominance produced legal positivism, and with it, the end of grace.

For the past one hundred and fifty years, law students have been indoctrinated to assume that law is science, and some positive and remarkable practices and concepts have resulted.  But the emphasis on science and positivism has given us a focus on the computer screen.

Lawyers, decisions and legislation now speak in numbers, statistics and probabilities, but these result in what the historian Theodore Porter calls, “a technology of distance.”  Clients become abstractions, and solutions to legal dilemma are expressed in metrics.

I see some hope for restoring humanism to the law in the development of clinical education. The hope, however,  is not based on the pedagogic rationale of clinical legal education, but rather on the serendipitous experience that the students have from sustained experience with the ambiguities of human foibles. Understanding clients and their needs must precede looking at the internet for an algorithmic resolution of a mechanical problem.

Likewise, scientific jurisprudence has led us to opinions that are determined by their preconceived results rather than the developed perception of how best to accommodate discernible societal values.  The practice of law in the coldness of abstraction and distance is not a place that nurtures satisfaction and purpose.

John L. Kane Jr.
Senior United States District Judge (Colorado)

9 Comments on this post.

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  • Fault Lines: Two Judges, No Waiting | Simple Justice
    11 May 2016 at 9:18 am - Reply

    […] Welcome, Colorado Senior United States District Judge John Kane. […]

    • shg
      11 May 2016 at 9:52 am - Reply

      Thank you, and welcome, Judge. I’ve long admired and appreciated your thoughts, and look forward to reading you regularly.

      • CLS
        11 May 2016 at 10:25 am - Reply

        Seconded. Welcome to the Fault Lines Rogue’s Gallery, Judge. I’m excited to have you on board too.

  • Jeff Gamso
    11 May 2016 at 9:49 am - Reply

    With no irony whatsoever, I add an enthusiastic voice in favor of restoring some academic focus on the trivium and the quadrivium. (Look ’em up, you folks who don’t know what they are.)

  • Richard Kopf
    11 May 2016 at 10:54 am - Reply

    Dear Judge Kane,

    First, let me join with the others in welcoming you to Fault Lines. Your voice is very important. For me, I’ve found this is a unique place where practitioners and judges alike can communicate and exchange ideas in an informal but intellectually stimulating environment.

    Second, I too studied rhetoric a long time ago. Back then we debated whether ethos, pathos or logos was the better method of persuasion in various settings. The speeches made on the floor of the House of Commons or the sermons from the Anglican pulpit became major parts of our texts. Reading the classic political thinkers–Plato, Hobbes, etc., gave us perspectives that most of us would never have stumbled over but for their genius. The humanism that you write about is most likely to come about in practice if one has the tools that one acquires through such studies. I appreciate the reminder of these bygone days. I too lament the fact that these studies wither on the vine.

    Third, while I am a legal realist (I venerate Holmes, for example), I agree that the true legal positivists have sent us down the twisting road of empiricism and they are wrong to insist that nothing else matters. Science–particularly the science of neurology, psychology, and criminology–are helpful tools too, but they are not the essence of the law. They are only tools just as the study of rhetoric or the classics are merely tools.

    As the late Donald P. Lay, the long-serving Chief Judge of the Eighth Circuit and one of the best trial lawyers in the midwest used to simply say: Law is a human endeavor. In my view, we must infuse law with the humanity you speak off. We are most likely to do so using all the tools that are available to us.

    Fourth, there is nothing, and I mean nothing, that helps a judge more than having represented real living human beings in our trial courtrooms. Thirteen years of practicing law in the sticks of Nebraska was absolutely necessary to whatever success I have had as a judge. The dank, urine smelling, odor of jails stays with you forever.

    Finally, I truly hunger for more of your thoughts. Please honor us with additional posts in the future.

    All the best.

    Richard G. Kopf
    Senior U.S. District Judge (Nebraska)

  • Jeff Gamso
    11 May 2016 at 11:29 am - Reply

    I should, when I commented before, have added a hearty welcome.

    It’s one thing for some guy in the trenches (i.e., me) to mouth off here. Despite what Greenfield says, nobody really gives a rat’s ass what I think (and anyone who might care probably already knows). But an honest view from the bench? That’s something we get far too rarely. Till now, really just from Judge Kopf (and the odd judge I know well enough to hoist a beer with).

    So welcome. Yours is actually an important voice.

    And as Judge Kopf says, “All the best.”

  • Cornflake S. Pecially
    11 May 2016 at 1:27 pm - Reply

    Uh oh….did someone just lube, powder, and seat a round ball in fewest words in Fault Lines introductory post history?

    Where have you been Mr. Kane…

    P.S. Have you been holding onto that last paragraph for awhile Judge, or are you just that good?

    Cheers!

  • David Meyer Lindenberg
    11 May 2016 at 6:23 pm - Reply

    Welcome to FL, Judge! It’s great to have you on board.

  • Mario Machado
    11 May 2016 at 9:11 pm - Reply

    Many thanks Judge Kane for joining the FL team. Welcome, and I’m sure I speak for many when I say I’m looking forward to your next post.