Dave Fagundes has a really great post right below about asking questions at workshops (picking up on an Adam Kolber post earlier on). He talks about the distinction between internal and external critiques. He ends it by saying that he finds it hard to defend external critiques—for some reason or other, they just don’t seem all that useful in workshops.
I agree with the post completely. I think it’s definitely true that we prioritize internal critiques over external critiques in our workshops and talks and so on. I myself certainly think they are usually more helpful. And I wonder if this is somehow connected to the nature of the legal enterprise.
Consider a lawyer trying to win a case. The arguments she can make are limited. She cannot externally critique the law; she cannot say the law is stupid and ask for it to be otherwise. (I guess sometimes she can–say at the Supreme Court–but put that thought on hold for a second.) Lawyers are trained (and we law professors train them) to accept precedent and argue within it. We also teach them, I think, to try and perceive a judge’s values and worldview and argue within it. The preference for internal critiques is thus built into the lawyer’s job. Things are slightly different at the courts of last resort, I guess. There you really can (sometimes) argue that the law is stupid and should be changed. But it’s not that different. Lawyers still have to argue in terms that they believe courts will accept.
Our whole profession is built on making arguments uphill, so to speak—that is, making arguments to people above us in the chain of authority, to people whom we have to bow our heads and accept their prior commitments as valid and binding upon us. Maybe this too is a part of why internal critiques come so naturally to us.
Posted by Chris Lund on April 13, 2011 at 12:08 PM
Comments
I think a lot of the problem with law today is that we are too internally focused. We build little legal fiefdoms around particular subjects and so often can’t see the ramifications across vast swaths of law, much less the bigger societal implications.
Posted by: Jen Kreder | Apr 13, 2011 5:29:02 PM
I don’t think arguments that judges will accept are necessarily “internal.” For example, a lawyer might press the equities of the facts even though the equities are formally irrelevant.
More broadly, I think the usefulness of internal vs. external critiques depends on whether the author has made the right questions internal. If I write a paper in which I assume away all the interesting questions, then I should expect a lot of external questions because I have made certain questions external that really should be internal.
Posted by: Orin Kerr | Apr 13, 2011 1:42:49 PM