Drawing (Gad)flies: Thoughts on the Uses (or Uselessness) of Legal Scholarship

In this essay, I argue that law schools should continue to encourage and support wide-ranging legal scholarship, even if much of it does not seem to be of immediate use to the legal profession. I do not emphasize the relatively obvious point that scholarship is a process through which we study the law so that we can ultimately make useful contributions. Here, rather, I make two more-subtle points. First, legal academics ought to question the priorities of the legal profession, rather than merely take those priorities as given. We ought to serve as Socratic gadflies—challenging rather than merely mirroring regnant assumptions about what ought to matter in and to the law. Second, the freedom to serve this role is a large part of what attracts people capable of doing so to academic life. If we were to insist that legal scholars think about only those things that already matter to the legal profession, we would not attract the people we most need—people willing and able to help us rethink our assumptions about what ought to matter

The Seventh Letter and the Socratic Method

Law teachers use the phrase “Socratic method” loosely to refer to various methods of questioning students in class rather than merely lecturing to them. The merits of such teaching have been the subject of spirited and even bitter debate. It can be perceived as not only inefficient but also unnecessarily combative—even potentially abusive. Although it is clear that some critics are excoriating the least defensible versions of what has been called the Socratic method, I do not attempt to canvas or adjudicate that debate in this brief essay. Rather, I hope to add to the conversation by looking to a document that describes the origin and original aim of this method. If our teaching practices have indeed been abased or abused such that they too-often resemble the most pejorative caricatures, perhaps we can recover a better and more appealing vision of our tradition by looking to its purported roots. In a long letter attributed to Plato, there are two brief passages in which the author explains why he chooses to teach through questioning and conversation rather than through written treatises or lectures, and why those seeking to cultivate certain sorts of wisdom should follow his example.1 I suggest that these passages have been misunderstood, and that a reinterpretation may help illuminate not only Plato’s work but also our own. The heart of the matter, which The Seventh Letter can help us explore, is the following: Socratic conversation is not merely a method of instruction but also a sort of practice—not merely a mode of doctrinal exposition but also, and more essentially, a kind of capacity-building experience. Or so it should be. We often contrast classroom teaching with experiential learning or practical training. That distinction is useful, and makes sense on many levels, but at bottom the dichotomy is false. The sort of teaching that Socrates did, that Plato described, and to which we should aspire, is primarily and essentially an experiential practice. It should model and embody as well as possible an important aspect of what we hope our students will learn to do well

An Accuser-Obligation Approach to the Confrontation Clause

I. Introduction . . . . . 1258 II. Refocusing Confrontation Analysis . . . . . 1259 III. The Meaning of Confrontation . . . . . 1264 IV. A Witness-Focused Doctrine . . . . . 1271 A. The Unavailability Requirement . . . . . 1274 B. Dying Declarations . . . . . 1277 C. Declarations Against Interest . . . . . 1278 D. Child Witnesses . . . . . 1280 V . Conclusion . . . . . 128

Law School as Liberal Education

The president of a liberal arts college, if asked why college is worthwhile, would be able to respond on several levels. He or she would certainly say something about the value of the degree as a credential to help students get a job or get into graduate school. In addition, he or she would likely emphasize the professional value of the skills and capacities developed through a liberal education, which can help students succeed at work or in graduate school. More deeply, however, we would expect that he or she would have something to say about the intrinsic value of the education and experience itself—why a thoughtful person might want to go to college, apart from the work it might help one get or do. I believe that something similar can be said about law school. The legal academy and profession are confronting difficult questions about the value of legal education—about whether and how law school is worthwhile. Most of this conversation appropriately focuses on the commercial and professional value of a legal education because that is the main reason people go to law school— to qualify and prepare for careers. Here, I hope to add to the conversation by considering a set of ways in which law school, like a liberal arts undergraduate education, may be valuable to a thoughtful person apart from its instrumental value in qualifying and preparing one for work. How might legal education help one to thrive, to live a full and satisfying and meaningful life

A Populist Critique of Direct Democracy

It is often assumed that direct democratic processes - referenda and initiatives - offer the people a chance to speak more clearly than is possible through representative processes. Courts, commentators, and political leaders have defended or described direct democratic outcomes as the voice of the people themselves. Because plebiscites allow the people to speak directly, without the potential distortion inherent in representation, they seem ideally responsive to popular will. Indeed, even critics of direct democracy appear to grant as much. Critics are quick to point out, of course, that actual plebiscites often fall far short of the ideal. Uneven voter turnout, poorly drafted ballot issues, the influence of special interests, and similar factors are said to obscure popular input. Alternatively, it is frequently argued that values such as fairness, deliberation, and the protection of individual rights require that popular will be checked and balanced through representative processes, or limited through judicial review. What goes unchallenged, however, is the underlying assumption, which remains as pervasive as it is intuitively appealing: if you really want to know what the people want, take a vote. In this Commentary, Professor Clark challenges this assumption and argues that initiatives and referenda, regardless of how well and fairly they are conducted, cannot be trusted to reflect the voice of the people accurately or meaningfully. Professor Clark argues that direct democratic processes distort popular input by precluding the expression of priorities among issues. By presenting voters with one issue at a time, plebiscites offer no opportunity for voters to focus their political power on the issues of greatest concern to them. Referenda and initiatives, by giving people the chance to vote yea or nay as to this or that particular outcome, make people feel as though they have more input. In fact, however, such processes actually limit people\u27s ability to make effective use of their political power to influence the overall array of outcomes. By contrast, representation, which feels like a limitation of input, actually facilitates the effective use of political power by permitting voters to express both single-issue preferences and inter-issue priorities. Electoral and legislative logrolling - often seen as distorting or obscuring popular voice - in fact facilitates meaningful popular input by allowing voters to allocate their political power to the issues about which they feel most strongly. Representation permits, indeed requires, that voters speak not only to the question of what they want, but also to the question of what they want most

The City and the Soul: Character and Thriving in Law and Politics

This Article describes a way of thinking about law and politics that is ancient in origins but largely absent from modern legal scholarship. It poses a two-part question: how do our law and politics influence our character, and how does that in turn influence how well and fully we live? Much legal scholarship asks how law can be more efficient and effective in making us richer, healthier, safer, and such. This is good: wealth, health, and safety are—or can be—good things. But material conditions are not the only things that make for a rich and full life. What also matters—and beyond a certain threshold may matter much more—is what sort of people we are. If, for example, we are wise and brave, we will likely live better and more fully than if we are foolish and fearful. This much should be uncontroversial. What goes unaddressed, however, is that law and politics, whether we like it or not, have an impact on what sort of people we become. Granted, the impact is incremental and marginal, but it may also be cumulative and substantial—just as an incremental cumulative exposure to asbestos can lead to cancer. We can ignore it, but that does not make it go away. We can claim that it is not the business of law to think about character, but that is an irresponsible dodge. This Article argues that we should acknowledge and take responsibility for the impact our law and politics have on our character and thus on our capacity to live well. To that end, I describe several ways in which law and politics may influence the sort of people we become. I then offer a way of thinking about what traits and capacities may conduce to our thriving—as democratic citizens and human beings. Just as a dose or two of poison every day can cause illness, nutrition and exercise can build strength. If our law and politics inevitably have some impact on the sort of people we become, as I argue they do, we should ask whether and how we can nurture the strengths we need—for our city and our souls

Ennobling Direct Democracy

In this essay, Professor Clark argues that we should be attentive to the effect that direct democracy might have on our public character. Building upon earlier work, Clark suggests that the initiative in particular threatens to debase us by undercutting a crucial character trait which might best be called responsibility-taking. The bulk of this essay is devoted to explaining what this means, and why it matters. Why should we care about the effect of political processes on public character? Why is this particular trait important and worth preserving? How is it threatened by direct democracy? In conclusion, and by way of illustration, Clark suggests that this effect might be countered-that direct democracy might be ennobled -through a simple but dramatic change in the way initiative voting is conducted. It should not be anonymous. If we want to tell our gay and lesbian neighbors that they may not marry, for example, we should at least be willing to look them in the eye when we do so

The Seventh Letter and the Socratic Method

Law teachers use the phrase “Socratic method” loosely to refer to various methods of questioning students in class rather than merely lecturing to them. The merits of such teaching have been the subject of spirited and even bitter debate. It can be perceived as not only inefficient but also unnecessarily combative—even potentially abusive. Although it is clear that some critics are excoriating the least defensible versions of what has been called the Socratic method, I do not attempt to canvas or adjudicate that debate in this brief essay. Rather, I hope to add to the conversation by looking to a document that describes the origin and original aim of this method. If our teaching practices have indeed been abased or abused such that they too-often resemble the most pejorative caricatures, perhaps we can recover a better and more appealing vision of our tradition by looking to its purported roots. In a long letter attributed to Plato, there are two brief passages in which the author explains why he chooses to teach through questioning and conversation rather than through written treatises or lectures, and why those seeking to cultivate certain sorts of wisdom should follow his example.1 I suggest that these passages have been misunderstood, and that a reinterpretation may help illuminate not only Plato’s work but also our own. The heart of the matter, which The Seventh Letter can help us explore, is the following: Socratic conversation is not merely a method of instruction but also a sort of practice—not merely a mode of doctrinal exposition but also, and more essentially, a kind of capacity-building experience. Or so it should be. We often contrast classroom teaching with experiential learning or practical training. That distinction is useful, and makes sense on many levels, but at bottom the dichotomy is false. The sort of teaching that Socrates did, that Plato described, and to which we should aspire, is primarily and essentially an experiential practice. It should model and embody as well as possible an important aspect of what we hope our students will learn to do well