Ruminations of an Expatriate

I came upon this copy of the 2006 Yale Law School Commencement address through Professor Brad DeLong’s excellent blog.

Dan M. Kahan, Deputy Dean and Elizabeth K. Dollard Professor of Law at Yale, presented a fascinating exposition relating to John Yoo’s failure to accept “moral responsibility” in producing the “torture memo” to justify the Bush administration policy of torture; and Jack Goldsmith, appointed in 2003 to head the Justice Dept. Office of Legal Counsel, exercising the “moral responsibility” of repudiating Yoo’s tortured legal reasoning, a noble act for which he was rewarded with his dismissal from the Justice Department. Along the way Kahan compares the training of folks in the ambiguous art of chicken sexing with that of imbuing a “situation sense” in student attorneys in the hope they will become “good rather than bad lawyers.”

It is a fascinating read for those interested and who have fifteen or so minutes. An excerpt to whet your appetite.

In the poultry industry, it is very important to separate out male and female chicks almost immediately after birth: the males are less valuable – they can’t lay eggs and their meat isn’t nearly so tender – and they end up competing with the female chicks for food. So you need to pick the males out and get rid of them. This job falls to the professionally trained chick sexer, who turning the chicks over gently in his or her hand is able to sort out male from female at a rate of 1,000 per hour and at an accuracy rate of 99%.

What makes this feat so astonishing, though, is that there just isn’t any readily discernable, or at least articulable, difference in the anatomy of newborn chicks. All zoologists agree that this is so. If you ask a professionally trained chick sexer what he is looking for, don’t expect a satisfying answer. Either he’ll confabulate, telling you some fantastic and silly story about the inability of the male chick to look him straight in the eye. Or more candidly, he’ll just shrug his shoulders.

But while the nature of the chicksexer’s skill may be inexplicable, how he acquired it isn’t. To become chicksexers, individuals go off for an extended period of study with a chick sexing grandmaster. He doesn’t give lectures or assign texts. Instead he exposes his pupils to slides– “male,” “female,” “male,” “male,” “female,” “female,” “male” – continuing on in this way until the students acquire the same special power to intuitively perceive the gender of a newborn chick, even without being able to cogently explain how.

What in the world does this have to do with law, you are asking yourself of a professor’s lecture, once again. Well, what I want to suggest is that what’s going on in the chick-sexing profession is the very same thing that goes on in
the legal profession. The formal doctrines and rules that make up the law – unconscionability, proximate causation, character propensity, unreasonable restraints of trade – are just as fuzzy and indeterminate as the genetalia of dayold
chicks. And yet just as the trained chick sexer can accurately distinguish female from male, so the trained lawyer can accurately distinguish good decision from bad, persuasive argument from weak. Ask the lawyer for an explanation, and in his case too you’ll get nothing but confabulation – “plain meaning,” “congressional intent,” “efficiency” – or what have you.

In addition, the lawyer attains her skill – to recognize what she can’t cogently explain – in much the same way that the chick sexer does: through exposure to a professional slideshow, this one conducted by law grandmasters, including law professors but also other socialized lawyers, who authoritatively certify what count as good and bad decisions, sound and unsound arguments, thereby inculcating in students and young practitioners the power of intuitive perception distinctive of the legal craft.

Now, by this point in my argument, you’ll likely recognize that my analogy between legal reasoning with chick sexing is just a colorful rehearsing of legal realism. As developed at Yale Law School in the 1920s and 1930s, legal realism was less interested to demonstrate that legal rules are formally indeterminate than to explain how lawyers nonetheless form such uniform and predictable understandings of what those rules entail. Llewellyn attributed this ability to what he called “situation sense,” an intuitive perceptive faculty born of immersion in professional and cultural norms – the slide show of law. Contemporary social psychologists use the concepts of pattern recognition and prototypical reasoning to describe the same cognitive processes – which are pervasive in all fields and facets of life, not just law and the poultry industry.

Well, if you accept this central insight of legal realism, as I do, then you will readily understand that effective legal training has very little to do with learning the mass and detail of formal legal rules. Instead, it has everything to
do with acquiring situation sense.

———-

A little over a decade ago, a brilliant 25 year-old [John Yoo] was standing where you are. Less than a decade later… [John Yoo] found himself serving as Deputy Assistant Attorney General… battling internal opposition from career military officers and lawyers, [John Yoo] wrote a legal memorandum which construed the law to permit the use of interrogation techniques that the U.S. had for decades understood to be banned by the Geneva Convention. Because of the institutional stature and formal authority of the OLC within the Executive Branch; because of the function the memo was intended to play in resolving a debate among other governmental officials of immense authority; and because of the impact of 9-11 in provoking societal reconsideration of the relationship between civil liberties and national security, this Yale-trained lawyer did have every reason to believe that his memo, all on its own, would have a profound and shaping impact on the professional and cultural understandings that are our law. Yet he pretended this wasn’t so. When asked by an appalled career military intelligence officer whether the memo meant the President could order torture, he answered, “Yes, but I’m not talking policy. I’m talking law here.”

The analysis reflected in the so-called Torture Memo did not, in fact, become part of our professional and cultural understandings, our situation sense. But… credit for that belongs to another individual lawyer, who as a 20-something also stood where you now are about a decade and a half ago…. In 2003 he took over as head of the Office of Legal Counsel. And to the shock of his patrons, he immediately issued a directive advising the military intelligence services that they couldn’t rely on the so-called Torture Memo… at a time when high-ranking political appointees in the Justice Department and Pentagon were continuing to place decisive reliance on the Torture Memo. As a result, this lawyer had every reason to believe the Memo’s understanding of the law would persist, and that it would pervade and shape the shared professional and cultural understandings of lawyers, unless he as a lawyer took responsibility for repudiating it. So he did.

This lawyer, Jack Goldsmith, was ultimately pushed out of OLC…. Now that Goldsmith is there [at Harvard Law School], I suspect it’s much less likely that any of its future graduates will try, in cowardly fashion, to evade moral responsibility for their actions by insisting that law is nothing but a set of formally binding rules. And I have hope that as a result of [Goldsmith’s] actions, it’s much less likely any of you ever will either.

This was my last chance to teach you some law, Yale style. These were my final two slides: one bad lawyer, one good. What made the bad one bad wasn’t that he knew “less law.” It was that he, unlike the good lawyer, refused to take moral responsibility when he found himself in a position where his individual actions as a lawyer were likely to have a decisive role in shaping our profession’s situation sense, and thus in shaping the law itself.

Because you today are standing where these two lawyers stood, because you are standing where number members of Congress, Justices of the Supreme Court, and Presidents of the United States have all stood too, I feel petty certain that a number of you too will be in that position some day. If you are, how good a lawyer you are won’t be determined by how many rules you’ve learned; it will turn on how good a person you are. My apology for not teaching you more “law” is that I thought it was much more urgent to try to teach you that.