Legal Reasoning

[Any questions?]

By Avi Klein

Alger Hiss once remarked to his son that "three years at Lewisburg penitentiary is a good corrective to 3 years at Harvard [Law School]." It is hard to know exactly what he meant by this — Hiss (codename: Advokat) was, after all, a communist spy — but he was neither the first nor the last lawyer to suspect there was something fundamentally wrong with legal education. As Hiss's behavior suggests, law school has the ability — some might say the intention — to engender greed and intellectual myopia, sometimes from the very first day. Young, creative, ambitious men and women, fresh from four years of liberal arts education, enter law school eager to make a change in the world. They leave as dedicated corporate functionaries, consumed with money and prestige, and fearful of upsetting the legal establishment. Law school breaks people. It is experienced as a trauma, an assault. If law school changes people, it is rarely for the better.

What neither of these two styles of book manages to do, however, is seriously discuss what it is exactly that makes law school so unpleasant. To understand law school — and therefore the grassroots of the legal profession — one has to first grasp the economics supporting it. Litowitz, a professor at Ohio Northern University with a short career in corporate law, stakes out space few practicing attorneys are willing even to survey: The system is designed and sustained by corporate law firms in order to create just the right number of lawyers to fulfill corporate demand, but not so many that the fees of established lawyers are at risk of competition. At the same time, by failing to adequately teach these same lawyers how to actually practice law, and by saddling them with huge debts in the process, the legal establishment scares young lawyers into cowering submissively before the awesome power of the organized bar and the licensing authorities.

[...] Students worry that they aren't smart enough, that they aren't competent enough, that they won't earn the grades they need to pay off the average $80,000 of debt the average law student accrues. They begin to hate what they are becoming, yet fear alternative paths. Although only ten percent of incoming law students report mental health problems, forty percent of graduates do. The self-hatred begins in law school classrooms, where the Socratic method — a ritual of subjugation that purposely disables a student — is still used, even if it has softened a touch since Turow's experience in the 1970s. Each answer solicits a further question, until the student is forced either into a mistake or into admitting in front of his peers that he is ignorant. There is a strong element of sadism in the Socratic interchange. It uses fear and shame as a motivating force, which is easier than motivating people with ideas and worthy goals. Instead of learning out of intellectual interest, students study as an insurance policy against being called upon. If the Socratic method was actually an effective pedagogical device, the costs might be worth the benefits. But, it has absolutely no merit other than as a way to establish a power differential between the would-be lawyer and the already established one. Socrates himself didn't use it to teach — it was just a conversational tool he used on his friends. After all, the teacher is the one who is supposed to explain things to the students, not the other way around. [...]

By using the Socratic method and emphasizing the case study approach — law school textbooks are mainly compilations of appellate decisions, not original teaching material — law professors fail their students both intellectually and professionally. At graduation, the student knows much about appellate court opinions on various complex matters, but to the exclusion of any practical knowledge of how to actually practice. Students know the difference between a 'fee simple absolute' and a 'fee simple subject to condition subsequent,' but they don't know the first thing about how to write a will that takes these concepts into account. Contracts classes rarely involve looking at one. One can even graduate law school without learning how to format a word processor to include line numbers on the margins. Compare this to medical school, where graduates have spent two years in hospital rotations assisting in surgery and delivering babies, and it is easy to call the typical recent law graduate a licensed fraud.

If there was a conspiracy to commit such a fraud, it would begin with law school and end with the bar exam. Developed in the 1910s in the same fervor of WASP anti-Semitism that motivated the Ivy League to overhaul its admissions procedures, the bar exam has served ever since to boost lawyer salaries while reducing the numbers of skilled lawyers available. Although there is absolutely no evidence that the ability to pass the bar is related to how well someone practices law, there is an aggressive psychological element not unlike fraternity hazing that helps perpetuate the system. The bar exam is a rite of passage by which the hopeful lawyer-to-be shows his willingness to do anything to please the state bar authorities in exchange for a license. This humiliation is complete with a bar disclosure form that rivals the CIA's in its comprehensive invasiveness. [...]

[...]

One additional distasteful characteristic of the bar exam is that it artificially deflates the number of minority attorneys. First-time bar passage rates for African-Americans are only 61%, compared to 90% for whites. While law schools have aggressively developed affirmative action programs for both students and faculty, the bar associations have not succeeded in meeting the needs of minority communities. [...] For many young corporate attorneys, the firm is a sweatshop, and their own labor is merely legal-ruled piecework. The law is crowded — interesting — and full of despair, wrote Archibald MacLeish to his parents after a few disappointing years as a lawyer. It offers its own rewards, but none other. [...] Lawyers suffer high rates of mental illness, job dissatisfaction, alcoholism and drug abuse, and divorce. Sandra Day O'Connor calls them "a profoundly unhappy lot." Mitigating all this personal unhappiness, of course, are the fat paychecks lawyers receive each month — it is hard to feel too sorry for them. The real losers here are the millions of Americans who can't afford the legal representation they need. [...] We are used to thinking that America has too many lawyers. The truth is, the lawyers we have are just the wrong kind.

Avi Klein, an intern at "The Washington Monthly," is licensed to practice law in Maryland. He never has.

I think it is very important to see law professors deciding to quit teaching law to their students, in an effort to make public aware what law and lawyering really means.

[I n c i t a t u s]

By Avi Klein

Alger Hiss once remarked to his son that "three years at Lewisburg penitentiary is a good corrective to 3 years at Harvard [Law School]." It is hard to know exactly what he meant by this — Hiss (codename: Advokat) was, after all, a communist spy — but he was neither the first nor the last lawyer to suspect there was something fundamentally wrong with legal education. As Hiss's behavior suggests, law school has the ability — some might say the intention — to engender greed and intellectual myopia, sometimes from the very first day. Young, creative, ambitious men and women, fresh from four years of liberal arts education, enter law school eager to make a change in the world. They leave as dedicated corporate functionaries, consumed with money and prestige, and fearful of upsetting the legal establishment. Law school breaks people. It is experienced as a trauma, an assault. If law school changes people, it is rarely for the better.

What neither of these two styles of book manages to do, however, is seriously discuss what it is exactly that makes law school so unpleasant. To understand law school — and therefore the grassroots of the legal profession — one has to first grasp the economics supporting it. Litowitz, a professor at Ohio Northern University with a short career in corporate law, stakes out space few practicing attorneys are willing even to survey: The system is designed and sustained by corporate law firms in order to create just the right number of lawyers to fulfill corporate demand, but not so many that the fees of established lawyers are at risk of competition. At the same time, by failing to adequately teach these same lawyers how to actually practice law, and by saddling them with huge debts in the process, the legal establishment scares young lawyers into cowering submissively before the awesome power of the organized bar and the licensing authorities.

[...] Students worry that they aren't smart enough, that they aren't competent enough, that they won't earn the grades they need to pay off the average $80,000 of debt the average law student accrues. They begin to hate what they are becoming, yet fear alternative paths. Although only ten percent of incoming law students report mental health problems, forty percent of graduates do. The self-hatred begins in law school classrooms, where the Socratic method — a ritual of subjugation that purposely disables a student — is still used, even if it has softened a touch since Turow's experience in the 1970s. Each answer solicits a further question, until the student is forced either into a mistake or into admitting in front of his peers that he is ignorant. There is a strong element of sadism in the Socratic interchange. It uses fear and shame as a motivating force, which is easier than motivating people with ideas and worthy goals. Instead of learning out of intellectual interest, students study as an insurance policy against being called upon. If the Socratic method was actually an effective pedagogical device, the costs might be worth the benefits. But, it has absolutely no merit other than as a way to establish a power differential between the would-be lawyer and the already established one. Socrates himself didn't use it to teach — it was just a conversational tool he used on his friends. After all, the teacher is the one who is supposed to explain things to the students, not the other way around. [...]

By using the Socratic method and emphasizing the case study approach — law school textbooks are mainly compilations of appellate decisions, not original teaching material — law professors fail their students both intellectually and professionally. At graduation, the student knows much about appellate court opinions on various complex matters, but to the exclusion of any practical knowledge of how to actually practice. Students know the difference between a 'fee simple absolute' and a 'fee simple subject to condition subsequent,' but they don't know the first thing about how to write a will that takes these concepts into account. Contracts classes rarely involve looking at one. One can even graduate law school without learning how to format a word processor to include line numbers on the margins. Compare this to medical school, where graduates have spent two years in hospital rotations assisting in surgery and delivering babies, and it is easy to call the typical recent law graduate a licensed fraud.

If there was a conspiracy to commit such a fraud, it would begin with law school and end with the bar exam. Developed in the 1910s in the same fervor of WASP anti-Semitism that motivated the Ivy League to overhaul its admissions procedures, the bar exam has served ever since to boost lawyer salaries while reducing the numbers of skilled lawyers available. Although there is absolutely no evidence that the ability to pass the bar is related to how well someone practices law, there is an aggressive psychological element not unlike fraternity hazing that helps perpetuate the system. The bar exam is a rite of passage by which the hopeful lawyer-to-be shows his willingness to do anything to please the state bar authorities in exchange for a license. This humiliation is complete with a bar disclosure form that rivals the CIA's in its comprehensive invasiveness. [...]

[...]

One additional distasteful characteristic of the bar exam is that it artificially deflates the number of minority attorneys. First-time bar passage rates for African-Americans are only 61%, compared to 90% for whites. While law schools have aggressively developed affirmative action programs for both students and faculty, the bar associations have not succeeded in meeting the needs of minority communities. [...] For many young corporate attorneys, the firm is a sweatshop, and their own labor is merely legal-ruled piecework. The law is crowded — interesting — and full of despair, wrote Archibald MacLeish to his parents after a few disappointing years as a lawyer. It offers its own rewards, but none other. [...] Lawyers suffer high rates of mental illness, job dissatisfaction, alcoholism and drug abuse, and divorce. Sandra Day O'Connor calls them "a profoundly unhappy lot." Mitigating all this personal unhappiness, of course, are the fat paychecks lawyers receive each month — it is hard to feel too sorry for them. The real losers here are the millions of Americans who can't afford the legal representation they need. [...] We are used to thinking that America has too many lawyers. The truth is, the lawyers we have are just the wrong kind.

Avi Klein, an intern at "The Washington Monthly," is licensed to practice law in Maryland. He never has.

I think it is very important to see law professors deciding to quit teaching law to their students, in an effort to make public aware what law and lawyering really means.

As a matter of fact, it's more about law students quitting en masse, as opposed to law pros doing that - the obvious reason being that financial one.

[GiuGiaku]

''Ph'' is always pronounced as ''f'', and ...you don't sound...the ''g.''
- Then why are they putting the ''g'', please?

Very funny indeed ... Here it is the entire thing here:

- Phlegm. ''Ph'' is always pronounced as ''f'', and ...you don't sound...the ''g.''
- Then why are they putting the ''g'', please?
- That's a very good question, but ... it's rather difficult to explain.
- Try, Brian.
- lt's just there.
- So, Mr. Professor, you do not know?
- No.
- Then l'm sorry, l cannot help you.

Natalia is so funny throughout the entire movie - here it is another one:

Sally: I saw a film the other day about syphilis. Ugh! It was too awful. I couldn't let a man touch me for a week. Is it true you can get it from kissing?
Fritz: Oh, yes. And your king, Henry VIII, got it from Cardinal Wolsey whispering in his ear.
Natalia: That is not, I believe, founded in fact. But from kissing, most decidedly; and from towels, and from cups.
Sally: And of course screwing.
Natalia: Screw-ing, please?
Sally: Oh, uh...
[thinking]
Sally: fornication.
Natalia: For-ni-ca-tion?
Sally: Oh, uh, Bri, darling, what is the German word?
Brian Roberts: I don't remember.
Sally: [thinking] Oh... um... oh yes!
Brian Roberts: Oh, no...
Sally: Bumsen!
Natalia: [appalled] Oh.
Brian Roberts: That would be the one German word you pronounce perfectly.
Sally: Well, I ought to. I spent the entire afternoon bumsening like mad with this ghastly old producer who promised to get me a contract.
[pause]
Sally: Gin, Miss Landauer?

God Bless Sally!

[we fly for your smile]

Thinking "like a lawyer" also means to define people according to their legal rights, trying to understand, prevent and "resolve" problems by applying legal rules to those rights, usually in a zero-sum manner. It is fundamentally negative, critical, pessimistic, and depersonalizing. This method of thinking is conveyed and understood in law schools as a new and superior way of thinking, not a strictly limited legal tool. These beliefs and thought processes have an atomistic worldview and a zero-sum message about life. Nothing much matters beyond winning or losing, and there is always a loser for each winner.

Not to mention that stupid m u t h a @ # ! * i n g grading curve that law schools have in place.



http://www.lawschooldiscussion.org/index.php?topic=3003847.msg3037022

I wouldn't be surprised to see law schools do this kind of thing - don't get me wrong, they are major a s s h o l e s when doing that - what I am saying is that Social Darwinism and the like are highly influential in contemporary American thought. Think Malthus, for instance - in fact, Malthusianism became an intellectual stepping-stone to the idea of natural selection, with evolutionary biologists such as Charles Darwin and Alfred Russel Wallace having borrowed from the theory.

For example, it is a common assumption that there is not enough food produced globally to feed the entire world population. In addition, it is assumed that, should food be distributed to the poorest of the poor, this would inevitably eventuate in a population increase that would, again inevitably, create a need for food that would be greater than the available supply of food. This is the "Malthusian" dilemma, after the Thomas Malthus who first put forward the argument in 1798. Malthus argued that population growth, especially of poor bastards, would inevitably outrun food supply, unless the latter were restrained from breeding. He advocated that poor people be crowded together in unhealthy housing, for instance, this being a way of checking the population growth.

Scarcity is not a problem any more nowadays, and yet the dog-eat-dog-world-out-there philosophy is well alive - actually I was looking at another post talking about such.

On January 28, 1986, the space shuttle Challenger exploded seconds after launching. Seven astronauts, including a civilian schoolteacher, perished in a fireball of smoke and flames. The decision had been made to go ahead with the launch despite a near disaster on an earlier Challenger flight and despite strenuous objections and warnings from knowledgeable engineers about the defective O-rings at the joints of the booster rockets. Were key NASA administrators ignorant of the danger or cavalier about the lives of the astronauts? I doubt it.

NASA had already conducted 2-dozen successful launches with essentially the same equipment. With their confidence boosted by previous successes, administrators were oriented toward a "go" decision. Second, NASA officials, like the general public, were caught up in the enthusiasm surrounding the launching of the first civilian (schoolteacher Christa McAuliffe) into space. Further, there were additional, practical reasons for NASA people to be victimized by their own wishful thinking: given NASA's need to secure congressional funding by displaying its efficiency and productivity, with the intense public interest in the "teacher in space" program and its wish to demonstrate its technological capabilities, lift-off was a more desirable decision than delay. Any mention of possible system failure would have suggested a need to spend more money, a conclusion NASA found distasteful in light of its commitment to cost-effectiveness and economy.

Unlike NASA administrators, engineers at Morton Thiokol (the company that manufactured the solid rocket boosters) were not concerned about the political, economic, and public relations implications of a decision on whether or not to launch. All they cared about was whether or not the damn thing would work - and given the subfreezing temperatures at the launch site, they objected strenuously to the launch. But the top execs at Morton were not so fortunate. For them, more was at stake than a successful launch. They were in great conflict. On the one hand, as engineers, they were sensitive to the opinions of their fellow engineers. On the other hand, as execs, they were dependent on NASA for a contract worth approximately $400 million per year. Thus, in part, they tended to identify with the same concerns that NASA administrators did. Robert Lund, Thiokol's vice president for engineering, at first opposed the launch but changed his position after he was advised to "take off his engineering hat and put on one representing management." How did Morton execs such as Lund deal with this conflict? Before their last conference with NASA administrators, they polled Thiokol employees but not the engineers - only other management personnel, who voted to "go" with the launch. Thus, in a conference between NASA officials and Thiokol execs the night before the fateful launch, participants reinforced one another's commitment to proceed.

I can't believe this country would appropriate a h e l l of a lot of money to an agency like NASA! Just imagine if all that money were used to better the lives of people on this planet, or this country, if you like! How much less misery would be?!

It's not that they don't get it, it's because they want the resources to be distributed disproportionately among people, that they go ahead and throw money to the toilet! It would be far too dangerous for the people in power to have the standard of living of the people they oppress raised even a little bit; because the latter would be able to think a bit more as to what it is that keeps them oppressed, poor and hungry! Question the very ideology that keeps the oppressors in power!

[beepster]

[...] All this as a demonstration that human beings really can change, really can overcome the competition and struggle to dominate, the survival of the fittest, that reactionaries have always proclaimed is an eternal part of the human condition. It is needed not only the abolition of class, but equally of the gender system that underlies this, with its masculine specialization in violence, domination of men over women, and institutionalized heterosexuality. Gay men and lesbian women are rebels against the gender system and gender differences altogether. Instead of two radically different types of human being, feminine women and masculine men -- with this distinction involving a very definite relationship of oppression in the bargain -- a post-gender society would enable all human beings to combine the positive aspects attributed at present to one sex or the other alone, and jettison the negative aspects. Love is to be seen as a relationship between equals, rather than between dominant and subordinate.

Even when straight men are allied by common work, kinship or belief, they are still underneath it all enemy brothers; it is legendary how competition over women turns brotherhood into hate. Even when not immediately realized, this potential lurks just beneath the surface, dividing men from one another and thus helping perpetuate the law of violence -- indeed it is the first precondition for masculine hierarchy. [...]

Here it is smth quite interesting in relation to the issue ....

A strict sexual division of labor is nowadays no longer socially necessary, in fact its perpetuation presents a fetter even to the continued viability and continued profitability of capitalism. The decline of traditional patriarchal family, the massive movement of women into full-time paid labor force, the development and dissemination of modern birth control and the liberation of sexuality from necessary association with reproduction (with all the eggs and sperms banks nowadays) -- all these contribute towards enabling the emergence of a greatly expanded sexual culture, one focused directly upon the fulfillment of sexual desire and enrichment of sexual interaction. Such creates the precondition for the beginning of the development of a truly human sexuality: a sexuality founded upon the genuinely free, equal and voluntary sexual association of human beings.

The gender system we have instituted in our society dominated by the sexist culture involves the domination of men over women and institutionalized heterosexuality. [...]

I do believe gay men have a great deal to teach straight men about initiation and mourning the loss of power in the culture. Gay community is the story of what men gain by sacrificing the power conferred by gender when they come out of the closet. This is the pivotal real-life experience of every out gay man -- a usually terrifying sacrifice of conventional values and power. [...] The so-called straight man says he has no model for going "beyond the hero" and the conventional male warrior, forgetting or repressing the model right under his nose [...]

[beepster]

Buddha paved the way for Asia's greatest Indian philosopher, who was to be called "The Second Buddha." His name was Nagarjuna, and many modern scholars have found that his philosophy has much in common with Derrida's "deconstruction." He wrote about Emptiness, saying that anything that is Empty is devoid of self-essence. Or in Sanskrit what is called svabhava. The cup seems to exist all by itself, and not to be dependent on, or related to, anything else. But is this a drawing of a cup or of two faces? Or is it a drawing of both, or of neither? Perhaps it is just a two-dimensional series of lines! The important point is that we cannot see both the cup and faces simultaneously. Each image appears to possess svabhava or self-essence. Each image appears to be a self-sufficient, self-existent, discrete image. But they don't possess self-essence! There is an intimate, subtle relationship between the faces and the cup. One cannot exist without the other. They depend on each other.

That's interesting, to say the least - but can someone take a stab at what exactly it would mean in Western philosophy terms?

[malachovsky]

Senator Larry E. Craig used a dirty word as he explained how in June 2007 he wound up suspected of cruising for sex: profiling. Mr. Craig said the police officer working undercover in the next stall at a Minneapolis airport bathroom had lumped him neatly into the behavioral profile of someone on the prowl: the wide stance, the toe-tapping, the upward-facing palm, the flash of a wedding ring. In the well-developed profile of how a man intending to engage in lewd conduct in that bathroom behaved, the gestures added up to a coded message. The police were using a common tactic that has received less attention than the widely criticized practice of racial profiling (or gender, age, weight, ethnic or religious profiling, for that matter). That sort of profiling targets suspects based on their innate attributes, not on what they say or do.

But behavioral profiling, highly nuanced, draws heavily from cognitive psychology and, often, on the personal experiences with previous crimes and the subjective interpretations of the profilers. In an interview with Matt Lauer on NBC Mr. Craig said: "I now know that this cop is — this officer is a profiler. He said looking into a stall was one of it, and then a hand gesture or foot tap is another one. Now I know all about profiling. I know what people feel like when they're profiled, when innocent people get caught up in what I was caught in as an innocent person. It's very angering at times."

There are essentially two kinds of profiling, inductive and deductive. Inductive profiling, as was the approach in Mr. Craig's case, uses statistical probability and behavioral clues from previous offenders to create cookie-cutter profiles and predict the likelihood of a future crime. Deductive profiling involves analyzing the evidence — a tire track, DNA, a bloody knife — after the crime occurs in order to create a profile of that offender and use it to catch him. Behavioral clues, on the other hand, can range from the physical to the ethereal. For example, the possession of cold medicine, mason jars, rubber tubing, coffee filters and brake fluid would quickly lead investigators to suspect someone of intending to produce methamphetamine. A traveler with a stack of small bills, with only carry-on luggage and a one-way ticket, could easily be suspected of being a drug courier. Tattoos and the color of clothing — and even more obvious, a grab at the waist as if to draw a gun — are basic clues to gang activity.

remember me, I know, I know that people keep complaining about this kind of deductive and/or inductive method that LE uses when profiling and the like.

But have you heard about the abductive method, something that would seem totally unacceptable to some people?! Here it is the post from this very thread explaining it:

http://www.lawschooldiscussion.org/index.php?topic=3002385.msg5187085

The three methods for logical reasoning, deduction, induction and abduction can be explained in the following way:

Given preconditions α, postconditions β and the rule R1: α ∴ β (α therefore β).

Deduction means determining β. It is using the rule and its preconditions to make a conclusion (α ∧ R1 ⇒ β).

Induction means determining R1. It is learning R1 after numerous examples of β and α.

Abduction means determining α. It is using the postcondition and the rule to assume that the precondition could explain the postcondition (β ∧ R1 ⇒ α).

- Deduction allows deriving b as a consequence of a. In other words, deduction is the process of deriving the consequences of what is assumed. Given the truth of the assumptions, a valid deduction guarantees the truth of the conclusion.

- Induction allows inferring some b from multiple instantiations of a when b entails a. Induction is the process of inferring probable antecedents as a result of observing multiple consequents.

- Abduction allows inferring a as an explanation of b. Because of this, abduction allows the precondition a of "a entails b" to be inferred from the consequence b. Deduction and abduction thus differ in the direction in which a rule like "a entails b" is used for inference. As such abduction is formally equivalent to the logical fallacy affirming the consequent.

[Country Day]

Britain's former spy chief, in rare public testimony, dismissed as "utterly ridiculous" accusations by Mohamed Al Fayed that the agency plotted the car crash that killed Princess Diana. Sir Richard Dearlove, who directed the agency's special operations at the time the princess died in Paris in 1997, also scoffed at claims by Al Fayed that MI6 had acted against the couple on orders from Prince Philip, the queen's husband.

"It is utterly ridiculous," Dearlove said.

http://www.youtube.com/watch?v=0PPkeFu2PRE&feature=related

accosta, when a tragic event such as this (the accidental death of Lady D) happens, people try to find an explanation - no matter how far-fetched that may be - for what happened. I mean, this Al Fayed says the BBC worked with MI6, which strikes me as kinda strange!

I don't know much about psychology and the like, but is it not a "rationalizing" kind of thing that people do, in order to make some sense when they have to face something as irrational and unbearable like this (death of a loved one)?!

I mean, we are talking death here, it's not that you're stuck home with the A/C not working, or that your female boss is calling you names 'cuz you're not fast enough as a paper-pusher, or whatever the case might be, as you could probably figure it out for yourself!

[Saction8]

I can't believe this country would appropriate a h e l l of a lot of money to an agency like NASA! Just imagine if all that money were used to better the lives of people on this planet, or this country, if you like! How much less misery would be?!

It's not that they don't get it, it's because they want the resources to be distributed disproportionately among people, that they go ahead and throw money to the toilet! It would be far too dangerous for the people in power to have the standard of living of the people they oppress raised even a little bit; because the latter would be able to think a bit more as to what it is that keeps them oppressed, poor and hungry! Question the very ideology that keeps the oppressors in power!

Take a look at this page from the website of Museum of Natural History - looks like fun, if you know what I mean

Space Tourism

Today, national agencies like NASA aren't the only ones taking on the challenge of space exploration. Many private companies are developing vehicles to ferry astronauts, private citizens, and cargo into space.

http://www.amnh.org/exhibitions/beyond/space-tourism.php

[pobis]

[...]

The hypertrophied rationalism of American law is a product of trying too hard to be good: of failing to accept that law is always a somewhat crude and potentially destructive social steering mechanism, that works best when it remains a tacit presence in the social background. Instead Americans insist on subjecting themselves to a dictatorship of the bureaucratic: one in which the answer to every important social conflict inevitably involves more rules and procedures, more rights and obligations, more "reasons" and "principled justifications" given in the course of constructing ever-more complex analytic and rhetorical circles for choosing to do this rather than that -- in brief, more law.

Much of the baroque complexity of modern American law represents what is at best a wasteful multiplication of transaction costs, and at worst a symptom of a species of institutionalized mental illness. Much of the basic structure of American law is a pointless or even pathological outgrowth of various rationalist delusions.

The excesses of American rule of ideology are in large part enabled by our unwillingness to accept that reason, when properly employed, works to make its further employment superfluous. Reason, that is, works ironically toward its own effacement. [...] Outside a legal equilibrium zone law tends to be both an invisible and a powerful factor in the maintenance of social cohesion. By contrast within such a zone the inevitable contradictions in the legal rules such situations produce are clearly visible, and as a consequence the rules themselves are rendered relatively useless. Faced with such legal and social contradictions, we can not decide efficiently processed legal diputes on the basis of "reason". We merely decide.

The essential fallacy of legal rationalism is thus to think that what works well in moderation will work even better in large doses. So deep is this belief that when the more extreme manifestations of legal reason fail altogether we tend to manifest a willful blindness to this failure, or we undertake what soon become perverse efforts to perfect systems of rules that, by the nature of the problems they address, can't be perfected. When neither of these strategies work we do what courts often do and simply indulge in magical thinking, assuming, of course, e.g., that because a court ends its opinion with the phrase "it is so ordered," "it" is both going to happen, and to produce a series of predictable social effects.

[...] American law, that is, may well find itself betrayed by its own overweening pride in having succeeded in its quest to bring so much of American life under its sway. As a consequence of the legal system's increasing tendency to deny the true nature of its crucial but relatively modest role as a social coordination and dispute processing mechanism, our law is becoming so elaborate, so hypertrophied, so pointlessly complex, and hence so unnecessarily expensive that alternate modes of getting from here to there on the social map are already springing up all around us. [...] And of course various militant ideologies of the far right serve as diconcerting reminders of how considerably more radical forms of dissent against what is called the rule of law are already simmering.

Like the donkey of the fable who starves to death because he is exactly equidistant from two stacks of hay and therefore can't decide rationally to which stack he should go, we demand dispositive reasons for choosing where there are none. Less principled than the ass, we than "discover" -- at great fiscal and psychological expense -- some answer that must be arrived at more or less arbitrarily, while still insisting that this particular outcome was impelled by the law, or legal principles, or reason itself.

Here it is an interesting post on Americans in general - the way they think, behave and the like - very much in consonance with the prevailing ideology described in the above post. Couldn't be otherwise, after all, America's "philosophy" and idology was fashioned after of the French Revolution's Illuminism. 

4. Americans are not "stupider" than Europeans or Canadians or anyone else. Our technology proves it -- even if you grant the fact that much of Americas technology now was created by non-natives, but even more so our entreprenuership, much of which is native. So why does it appear to outsiders that Americans are stupid?

Second of all -- and this is the case because most Americans are still educated in public schools -- most Americans are either ignorant of or deliberately dumbed-down in the subjects that Americans must learn if they are to be bequeathed an empire, history and its sister, geography. This goes beyond the fact that geography bees tend to be won by home-schoolers. When less than 30% of public schooled students can't find Iraq on a map, and when so many fewer than that know that places like Iraq have never been totally conquered by imperialist powers, that can be put down to just how ignorant (not stupid) Americans are when it comes to history and geography.

In casual conversation (called "small talk"), Americans prefer to talk about the weather, sports, jobs, people they both know, or past experiences, especially ones they have in common.  As they grow up, most US citizens are warned not to discuss politics or religion, at least not with people they do not know rather well, because politics and religion are considered controversial topics. By contrast, people in some other cultures are taught to believe that politics and/or religion are good conversation topics, and they may have different ideas about what topics are too "personal" to discuss with others.

[...]

The ideal among Americans is to be somewhat verbally adept, speaking in moderate tones. They are generally taught to believe in the "scientific method" of understanding the world around them, as if there is some kind of "truth" about people and nature that can be discovered by means of "objective" inquiry. People from some other countries might pay more attention to the emotional content or the human feeling aspects of a message, without assuming the existence of an "objective truth."

The result is that Americans are likely to view a very articulate person with suspicion. This is because Americans are not intellectually capable of anything more than simple talk. The conclusion that Americans are intellectually inferior is logically reached when you also consider the fact that Americans do not regard argument as a favorite form of interaction. What US citizens regard favorably as "keeping cool" -- that is, not being drawn into an argument, not raising the voice, looking always for the "facts" is nothing else but coldness and lack of humanness.