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Thursday, April 5, 2012

Experts on the Supreme Court: Lawyers Who Teach and Journalists

For all the American lawyers and law “professors” who had been predicting on the basis of their "expertise" that the three days of oral arguments before the U.S. Supreme Court meant that the Affordable Healthcare Act would go down, the Court's decision must have been a rude awakening. Immediately after the ruling, the Huffington Post observed that the decision "comes as something of a surprise after the generally hostile reception the law received during the six hours of oral arguments." This is an understatement at the very least.

Lest the public be taken in by the predictions of judicial "experts" in the future, we might want to recalibrate just how much insight the so-called experts really have on the inner workings of the U.S. Supreme Court.

           This public face of the U.S. Supreme Court may be distinct from what goes on behind the curtain.      NYT

Pete Williams, a journalist, reported on NBC Nightly News after one of the days of oral arguments that “Obamacare” was in trouble. Unless Williams had clerked at the Court, it is unlikely that he knew the Court’s inner workings, not to mention how the justices use oral arguments. For example, a justice might use the arguments to test out legal theories. Because I have not clerked at the Court, have no knowledge of its inner workings, and cannot get into a justice’s head, my projection out from the arguments can only be conjecture. Sadly, the journalists covering the case showed no such hesitancy concerning their own knowledge of the court and, indeed, the oral arguments themselves.

Lest we turn to American law “professors” as experts having even more insight into the Court’s workings than do the lawyers who have argued before the justices, it is important to remember that American law schools hire lawyers rather than scholars to teach law. Whereas legal scholars have the doctorate in law, the J.S.D. (Doctorate in Juridical Science), to practice law one needs only the undergraduate, or first, degree in law (the LLB or JD).  The LLB nomenclature was changed in 1900 at the new law school of the University of Chicago as a marketing ploy to attract students. Students had been complaining about having only a BA and LLB (two bachalors degrees) after seven years of college. Even with the name change, however, having the first degree in Liberal Arts and Sciences and the first degree in Law still constitutes two undergraduate degrees.  One must go on in the same body of knowledge to graduate degrees before one can be considered to have mastered it (i.e., masters degree) and then to be a scholar of it (i.e., doctoral degree).  To treat a lawyer with one degree in law as though he or she were thereby a scholar of law omits two degrees of law (the LLM and JSD).

So when Benjamin Barton, who teaches law at the University of Tennessee, says, “I am a law professor and have been quite interested in this case,” we ought to view him rather as an instructor rather than professor because he is not a scholar of law (i.e., having earned the JSD degree). A clue to his true situs, educationally speaking, is in his next statement: “I had a pretty hard time following those arguments.”  He was referring to the oral arguments. Benjamin Barton is a lawyer who teaches law as an instructor. We should neither blame him nor be particularly surprised that some of the arguments eluded him.

In the E.U., by the way, one must have the equivalent of the LLB/JD, LLM, and JSD degrees to join a faculty of law as a professor. In fact, one must have published one’s dissertation and published another book too, at least before one can become a full professor (it might be a requirement even to become an assistant professor). I know such a law professor, and his legal education goes far beyond a year and a half of survey courses and a year and a half of senior seminars. By “beyond,” I do not simply mean more seminars.

A doctorate is more than just a few additional years of classes. One must sit for long comprehensive exams (over anything in the discipline), and oral exam, as well as write and defend a book-length work of original research (i.e., a dissertation). So adding another year to a physical therapy program does not make the degree a doctorate. Also, a doctorate must be the terminal degree in a body of knowledge, whether or not a particular school offers the degree. Lest a masters be presumed to be a terminal degree (e.g., the MFA), the comprehensive exams and dissertation must also be part of the degree (as well as advanced seminars).

Just as everyone today is a professional, we as a society have a habit of naively assuming that someone is an expert simply because they claim to be one. Whether journalists who presume to know how the inner workings of the U.S. Supreme Court or lawyers who teach law yet somehow have trouble following the Court’s oral arguments, a good bit of self-restraint is called for in terms of self-entitlement.

 Mike Sacks, "Supreme Court Health Care Decision: Individual Mandate Survives," The Huffington Post, June 28, 2012.

Adam Liptak, “Justices’ Celebral Combativeness on Display,” The New York Times, April 3, 2012.