On bullshit and law schools

25 years ago a Princeton philosophy professor named Harry Frankfurt published an interesting essay called "On Bullshit."  The essay distinguished between the liar and the bullshitter as follows: The liar believes that A is the case, but he wants to convince you both that Z is the case, and that he believes Z is the case.  The bullshitter, by contrast, wants to convince you that Z is the case and that he believes Z is the case, but he is indifferent as to whether Z is the case or not:

The fact about himself that the liar hides is that he is attempting to lead us away from a correct apprehension of reality; we are not to know that he wants us to believe something he supposes to be false. The fact about himself that the bullshitter hides, on the other hand, is that the truth-values of his statements are of no central interest to him; what we are not to understand is that his intention is neither to report the truth nor to conceal it. This does not mean that his speech is anarchically impulsive, but that the motive guiding and controlling it is unconcerned with how the things about which he speaks truly are.

Frankfurt points out that bullshit is endemic to any situation in which people are playing roles in which they are more or less required to fake the possession of authoritative knowledge that they do not in fact possess:

Bullshit is unavoidable whenever circumstances require someone to talk without knowing what he is talking about. Thus the production of bullshit is stimulated whenever a person’s obligations or opportunities to speak about some topic are more excessive than his knowledge of the facts that are relevant to that topic. This discrepancy is common in public life, where people are frequently impelled — whether by their own propensities or by the demands of others — to speak extensively about matters of which they are to some degree ignorant. (Emphasis supplied).

The analytical distinction Frankfurt is drawing between lying and bullshitting seems especially germane to legal academic life in its current form.  To put it more bluntly, the contemporary American law school is based on bullshit.  How? Let me count --some of -- the ways:  (In what follows I am going to paint with a broad brush, which is to say I will make generalizations that will be valid to greater and lesser extents in regard to particular individual cases. So before you get to that, please note pointing out general statements aren't accurate in every individual case in order to dismiss the value of making general statements is itself a classic form of rhetorical bullshit).

(1)  Our modal law professor is a man or woman who knows very little about the actual practice of law in any form, given that he or she spent very little time --  increasingly, at more elite schools, literally no time -- practicing law before entering the legal academy.  This fact means that to a significant extent the leaders of our profession (let us call our hypothetical specimen Professor Leader) have to spend much of their time in class bullshitting.    This is a natural consequence of the fact that the rhetorical posture of Prof. Leader requires him to represent to his students that is teaching them how to be lawyers. But Prof. Leader knows nothing about being a lawyer.  Hence, he must bullshit -- he does not lie to his students about how to be a lawyer (doing so would require him to know how to be a lawyer, while attempting to deceive his students regarding the substance of that knowledge); rather, he "talks without knowing what he is talking about."

(2) The materials that still dominate legal academic pedagogy -- appellate court opinions -- contain extremely high levels of bullshit.  What is the adversary system but a system for producing a situation in which putative authority figures, i.e., judges, are given almost unlimited "opportunities to speak extensively about matters of which they are to some degree ignorant?"  I teach a case in my Legislation class -- Smith v. Wade -- in which what the Supreme Court is supposedly determining is whether in 1871 Congress intended to adopt the common law rule regarding the requisite mental state for the recovery of punitive damages in a tort action.  This is a nonsense question on all sorts of levels, including the assumption that there was such a thing as a common law rule on this matter, that Congress knew what it was and intended to apply it to what would become Section 1983, that the Supreme Court can determine the supposed facts of these supposed matters more than a century later, and that doing so is a sensible way to proceed in this case (which involves the question of whether the plaintiff, who as a teenager was gang raped by fellow inmates while held in a juvenile reformatory, should be able to recover the princely sum of five thousand dollars in punitive damages against the state of Missouri).

The majority opinion consists of a bunch of pseudo-historical analysis of dozens of 19th century tort cases, while one dissent consists of an equally bogus critique of the same historical record.  But my favorite part of the case is another dissent, in which Justice O'Connor, points out that both the majority and dissent are a bunch of bullshit:

When a significant split in authority existed, it strains credulity to argue that Congress simply assumed that one view, rather than the other, would govern. Particularly in a case like this one, in which those interpreting the common law of 1871 must resort to dictionaries in an attempt to translate the language of the late 19th century into terms that judges of the late 20th century can understand, see ante at 461 U. S. 39-41, n. 8; 461 U. S. 61-64, nn. 3, 4, and in an area in which the courts of the earlier period frequently used inexact and contradictory language, see ante at 461 U. S. 45-47, n. 12, we cannot safely infer anything about congressional intent from the divided contemporaneous judicial opinions. The battle of the string citations can have no winner. 

OK, so now what?  What sort of "test" shall we deploy in this sort of circumstance? I bet you can guess:

Once it is established that the common law of 1871 provides us with no real guidance on this question, we should turn to the policies underlying § 1983 to determine which rule best accords with those policies. In Fact Concerts, we identified the purposes of § 1983 as preeminently to compensate victims of constitutional violations and to deter further violations. 453 U.S. at 453 U. S. 268. See also Robertson v. Wegmann, 436 U. S. 584, 436 U. S. 590-591 (1978); Carey v. Piphus, supra, at 435 U. S. 254-257, and n. 9. The conceded availability of compensatory damages, particularly when coupled with the availability of attorney's fees under § 1988, completely fulfills the goal of compensation, leaving only deterrence to be served by awards of punitive damages. We must then confront the close question whether a standard permitting an award of unlimited punitive damages on the basis of recklessness will chill public officials in the performance of their duties more than it will deter violations of the Constitution, and whether the availability of punitive damages for reckless violations of the Constitution in addition to attorney's fees will create an incentive to bring an ever-increasing flood of § 1983 claims, threatening the ability of the federal courts to handle those that are meritorious.

Yes, you guessed it, it's time to "balance the interests."  Behold:

Although I cannot concur in JUSTICE REHNQUIST's wholesale condemnation of awards of punitive damages in any context, or with the suggestion that punitive damages should not be available even for intentional or malicious violations of constitutional rights, I do agree with the discussion in 461 U. S. Since awards of compensatory damages and attorney's fees already provide significant deterrence, I am persuaded that the policies counseling against awarding punitive damages for the recklessness of public officials outweigh the desirability of any incremental deterrent effect that such awards may have.

What's missing from this analysis?  In a word, everything.  JUSTICE O'CONNOR (why are the names and honorifics of these people printed in ALLCAPS in the U.S. Reports anyway? To emphasize their superior ontological status? To elicit shock and awe in the interpreters of these texts? It is a deep and abiding mystery) provides us with no facts, or method, or theory, or really anything whatsoever to bolster her apparently completely ungrounded "policy analysis."  But, under the circumstances -- appellate court litigation -- how could she?

Again, let us recall Frankfurt's dictum:  Bullshit is unavoidable whenever circumstances require someone to talk without knowing what he is talking about.  The "Socratic method" consists largely of people pretending to be lawyers analyzing texts written (well not actually written, but at least signed) by lawyers pretending to be [historians, economists, sociologists, semioticians, moral philosophers, fill-in-the-blank].  In other words these are almost ideally synergistic conditions for the production of bullshit masquerading as something else (a redundancy, as bullshit is by definition something pretending to be something it isn't).

(3)  Legal scholarship is produced under pseudo-academic conditions that form a fertile breeding ground for (very heavily footnoted) bullshit.  Consider how legal academic publication almost always takes place.  People who generally possess no formal academic training beyond what they received in law school (that is, none) write "law review articles." In the vast majority of cases, these articles consist of "doctrinal analysis," i.e., treating appellate court opinions (see (2) supra) as texts that deserve to be taken seriously on their own terms.  We are already, in other words, knee-deep in bullshit.

But it gets worse. Who is doing the evaluating of the supposed cogency of this analysis? Law students, that's who.  So people who, incredibly enough, are even more ignorant than law professors about the actual legal system are  charged with undertaking the equivalent of academic peer review for the purposes of legal scholarship.  That contemporary research universities tolerate this charade can best be explained by examining the average law school's balance sheet, which will reveal that a nice chunk of the revenue generated by the school's operations is mulcted by central administrators in an example of what medieval Vikings called "raiding," but contemporary academic bureaucrats refer to as "cross-subsidization."

Now it's true that, at our more exalted law schools, larger and larger percentages of the faculty are people with advanced degrees in fields other than law (a solid third of the tenure-track faculty at top ten schools now hold Ph.Ds in this or that.).  While this may improve the quality and broaden the subject matter of the legal scholarship produced by these faculties, it only exacerbates both the sheer absurdity of constructive or literal (there are now several dozen law professors at top ten schools who don't hold law degrees) non-lawyers supposedly teaching people how to be lawyers, and especially of a publication system in which law students are supposed to be the academic gatekeepers evaluating the latest application of behavioral economics or sociological regression analysis or literary theory to the cases and controversies they study in their law school classes.

(4)  Given all the foregoing, it perhaps shouldn't surprise us that the attitude of legal academia toward the supposed employment and salary data that law schools publish has been a systematic indifference to the continual broadcast of enormous quantities of complete bullshit, in the most precise technical sense of the term.  The employment numbers are, to speak precisely, bullshit, in that nobody (or more exactly nobody in a position to do something about this) really knows the extent to which they're false, because nobody in that position wants to know.  The "96% employed with an average salary of $145,000" claims aren't lies, exactly, because in order to lie one must, somewhat paradoxically, care about the truth.   Those claims aren't lies: they're bullshit, because the people who make those claims don't know what the real numbers are and don't care.  Frankfurt points out that this attitude may ultimately be more dangerous to the pursuit of truth than a simple willingness to lie:

Both in lying and in telling the truth people are guided by their beliefs concerning the way things are. These guide them as they endeavor either to describe the world correctly or to describe it deceitfully. For this reason,telling lies does not tend to unfit a person for telling the truth in the same way that bullshitting tends to. Through excessive indulgence in the latter activity, which involves making assertions without paying attention to anything except what it suits one to say, a person’s normal habit of attending to the ways things are may become attenuated or lost. Someone who lies and someone who tells the truth are playing on opposite sides, so to speak, in the same game. Each responds to the facts as he understands them, although the response of the one is guided by the authority of the truth, while the response of the other defies that authority and refuses to meet its demands. The bullshitter ignores these demands altogether. He does not reject the authority of the truth,as the liar does, and oppose himself to it. He pays no attention to it at all. By virtue of this, bullshit is a greater enemy of the truth than lies are.*

*It's worth noting that the central fact about himself that bullshitter must hide, perhaps even from himself (the latter state would be an example of meta-bullshit) -- that "the truth-values of his statements are of no central interest to him" -- captures the mental state in which, as a practical matter, many attorneys are often required to place themselves. For example many litigators could hardly do their jobs if they were much concerned with "the truth-values of their [legal arguments]."  More generally, how many lawyers and especially judges find that professional necessity requires them to "speak extensively about matters of which they are to some degree ignorant" on a regular basis? These facts raise questions about the requirements and limitations of role morality, and perhaps even more interesting questions about the extent to which such facts affect the prevalence of bullshit in the legal educational system. Of course there's no real intellectual or practical reason why legal academics need replicate the mental states of advocates or judges in themselves, yet the fact remains that the standard model of legal education in America pushes law professors to talk and think like lawyers with imaginary clients and judges deciding imaginary cases.  But those are questions for another day.