September 19, 2011
Theory and Practice/Law, Beauty and Art
Posted by Bill Callison

 Chief Justice Roberts recently claimed that legal scholarship is not relevant to the work of lawyers and judges:  “Pick up any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”  I am pretty sure that I would not find Kantian Bulgarian evidentiary analysis helpful to me while structuring my current low-income housing tax credit deal or in most of my expert witness work.  I happen to have with me two recent issues of Yale Law Journal, which one suspects might lean toward heavy Bulgarian fare [I wonder what wine would go well with that.]  One issue features, you know, articles on “The Inducement Standard of Patentability (which appears to discuss significant issues of patent law and policy), “Taxation and Liquidity” (which does address a significant tax policy issue), and Akhil Amar’s “America’s Lived Constitution” (which explores the domain of unenumerated rights – and which might be of actual use to someone Roberts, C.J.’s position).  The other issue contains articles on “Strategic Vagueness in Contract Design:  The Case of Corporate Acquisitions” and “Contract Interpretation Redux,” and even I, a knuckle-dragging business lawyer, found these articles useful (indeed I have the issue because I was a likely expert in a case involving a material adverse change (MAC) clause – until conflicts killed the engagement – and wanted to read the “Strategic Vagueness” article).  So much for the “pick up any law review you see” argument.

 In my view, theory and practice are conjunctive rather than disjunctive, and the purpose of legal education is to teach “practice” to some extent and theory to a large extent.   In my experience, those lawyers who practice at or near the top of the game, think both theoretically and historically.  If law schools want to produce lawyers who “do law” well, they will educate their students in practical things, and educate them even more in the “whys” of theory and history.  Practical stuff is evanescent and can be learned and re-learned, but theoretical skill lasts.  As stated by Jeff Lipshaw (see also Rawls, Justice as Fairness, which has a good description of the role of political theory), “At its most fundamental, theory is making sense and imposing order. . . . While academic theorizing is generally characterized by . . . precision in language and thought, the impulse to theory is simply a subset of the a priori (or evolutionarily hardwired) need to see the world in an ordered and predictable way.”  (Contract as Meaning:  An Introduction to ‘Contract as Promise’ at 30” at http://ssrn.com/abstract=1877086).  Theory gives foundation, coherence, consilience and other value to the practitioner’s thoughts and actions.  It cannot be avoided, and it has to be taught.

 And in comes beauty and art.  Karl Okamoto recently wrote in The ‘Glom that: 

I have seen beauty in the practice of law.  Truly.  Just the other day, I watched a true wizard disentangle what surely would have been a fracturing spat between one party who felt undervalued and another who felt held-up.  This wizard, by his manner, his aura of deep experience, his finesse, pulled both sides from the brink and avoided a mini-Armageddon.  The same week, I watched a relatively young practitioner teach two much younger entrepreneurs the cost of deadlock and how to avoid it.  Again, it was a lawyer who made the world run more smoothly for everyone’s benefit.  

My suspicion is that underlying this perceived beauty is a the lawyers’ merger of theory and practice.  The lawyer applied theory to unwind and understand the problem and practical skills (advocacy, contract drafting, etc.) to apply theory to resolve the problem.  I also suspect this was done in an elegant fashion, as it is often elegance that allows beauty.  Too often, as a practicing lawyer, I see sprawling discussions devoid of theoretical appreciation (law as connect the dots) – no beauty there.  But sometimes one gets the chance to lean back and note “Now, that was beautiful.”

 Art, it seems to me, is the application of theory and practice (the use of the mind to break down, conceptualize and understand, and the use of the hand, technique and the tools of the trade to build up) in order to express one’s self meaningfully.  Sometimes an artist applies known solutions to known questions.  But sometimes, at its highest and best, the artist wrestles with unknown questions and unknown answers.  In last Friday’s New York Times review of the ongoing de Kooning retrospective at the Museum of Modern Art, art reporter Holland Carter wrote:

While some artists and thinkers of the day were promoting an art of utopian purity, one that required shutting a door between art and life, de Kooning’s appetite took him in the opposite, though no less utopian, direction.  He wanted to open everything up, to bring – to squeeze – everything into art:  high, low; old, new; savagery, grace.

And so he did, in a laborious pieced-together, revision-intensive way.  Far from being the sort of impulsive, gut-spilling artist implied by the term “action painting,” he was a deliberator.  Every painting was a controlled experiment.

 Typically, he would start with a drawing, add paint, draw on top of the paint, scrape the surface down, draw more images traced and transferred from elsewhere, add paint to them, and on and on.  Given this process, it seems astonishing that he was so prolific, until you remember that he was virtually never not working:  trying this, tweaking that, scrapping failures, starting afresh.

 

I think that lawyering, practiced at its best, is at times artistic  The lawyer, who proceeds with a direction and deliberation and works in a “laborious, pieced-together revision-intensive way” can be an artist just as de Kooning was an artist.  Although I sometimes see glimpses of art in the work of practicing lawyers, I see lots of art in the work of some legal academics –  that should be expected given the nature and values of the academy those who are in it, and the time allowed for thought.  Good law profs “try this, tweak that, scrap failures, start afresh.”  That is why value is given to law professors’ academic pursuits.  Those who say that legal education should be more “practical”, fail to see that theory is practical.  Theory is necessary for art, and now, more than ever, practicing lawyers need to be capable of being artists.  That is where they provide meaningful value.  Artists need to teach artists.

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