Legal Education and the Profession
Contract Law Illusions and Delusions (2023), Working Paper
This essay explores the extent to which lawyers’ beliefs about contract law emanate from illusions and delusions embedded in and around the doctrinal canon. It praises the recent piece on generative contract interpretation by Arbel and Hoffman as means of skewering metaphysical nonsense like “mutual” or “shared” intention of the parties. It also assesses the extent to which belief in, and justification of, contract law as an institution borders on the delusional. The claim is that our very ability to cope with the world entails “dark trust” we barely notice and cannot measure. Thus contracts, rather than being very meaningful or even not nearly as meaningful as lawyers think, are means of groping for order, reassurance, and certainty in the face of chaos, insecurity, and the unknown unknowns. They can be, in a phrase, delusions of order.
A Law Professor’s Love-Hate Relationship with the Restatement (Second) of Contracts, forthcoming, J. Leg. Educ. (2024)
This is one contract law professor’s reflection on his ambivalent relationship with the Restatement (Second) of Contracts. The Restatement’s great pedagogical benefit is that it handily compiles many problem-solving rules taught in the first-year contract law class. Well-crafted student answers use them to respond to the issues embedded in the exam question factual narrative. But the Restatement also includes less helpful sections which tend to exacerbate students’ persistent desire to believe that law is a complete system, existing somewhere out there in Platonic perfection, capable of providing binary or certain answers to every knotty problem. As a result, it also contributes to student exam answers that, instead of solving problems, expound on the relationship of the fact patterns to the grand scheme.
What's Going On? The Psychoanalysis Metaphor for Educating Lawyer-Counselors, 45 Conn. L. Rev. 1355 (2013)
In this essay prepared for the Connecticut Law Review’s 2012 symposium, Reform of the Legal Education System for the 21st Century, I propose an alternative to the dominant metaphor of “lawyer as warrior” for educating the many lawyers whom clients will seek out as counselors even at early stages in their careers. My preferred metaphor is “lawyer as psychoanalyst” because it invokes the need for lawyer-counselors to understand clients’ idioms and meanings, or more generally “what’s going on” beyond the mere analysis and application of the rules of positive law. Like lawyers, psychoanalysts learn a technical discipline (whether either discipline constitutes a science) but need to apply it non-technically in the process of counseling patients. I consider implications of the metaphor for lawyer-counselors and their education, concluding with some preliminary and modest suggestions about how reflection on the “repressed positivistic” and “courting surprise” might benefit our students in the “what’s going on” aspect of client-centeredness.
"Retire and Teach" Six Years On, 41 N. Ky. L. Rev. 67 (2014)
This is a follow up to a 2007 essay I wrote about what it might take for a well-seasoned practitioner to join a law school faculty as a tenure track professor. Having now wended my way up (or down) that track for six years plus, my intended audience this time includes the original one, those seasoned veterans of the law practice trenches who may think but should never utter out loud the words “I would like to retire and teach,” but now also my colleagues in academia who are facing what looks to be the greatest reshuffling of the system in our generation. Much of what I said in the earlier essay still holds. This essay, however, includes (a) a more nuanced look at the strange hybrid creature that is the scholarly output of academic lawyers; (b) a more respectful appreciation of what it takes to become a good teacher, with some notes about what worked for me, and (c) an attempt to reconcile the interests in scholarship and the interest in teaching after the “Great Retrenchment” of the legal profession and legal education, with some brief thoughts about the opportunities that may bring for the aging but not ossifying academic aspirant.
Memo to Lawyers: How Not to "Retire and Teach," 30 N.C. Cent. L. Rev. 151 (2008)
Many long-time practitioners muse about what it might be like to retire and teach, not realizing there is no more galvanizing phrase to their counterparts who have long toiled in the academy, nor one less likely to enhance the prospects of the unfortunate seasoned applicant who utters the phrase. I intend this essay not for law professors (though it may either amuse or irritate them), but for those in the practice who aspire, after all these years, to return to the academy. With a good deal of humility acquired along the way, I offer some realistic advice to job seekers, concluding that wistful phrase is precisely the opposite of the true sine qua non of success: demonstrating the capability of, and commitment to, being a productive scholar.