Wednesday, March 11, 2009

Popehat on Charlie Nesson: chalk-chucker, disdainer of rules

Ken at Popehat recounts an incident in the early 1990s, when he was sitting in Professor Charles Nesson's evidence class at Harvard Law School:
Nesson asked a rather mundane, facially rules-related question. I offered a mundane rules-related answer. He got a terribly disappointed, pensive look on his face, as he was prone to do. “That wasn’t a very profound answer,” he said. “It wasn’t a particularly profound question,” I replied. The class laughed, and he got an angry look on his face and chucked the chalk at me.
Ken explains how the incident sheds light on Nesson's...unconventional litigation tactics in the Joel Tenenbaum copyright case -- which led to Judge Nancy Gertner's recent smackdown:
The exchange revealed the conflict between my attitude and Nesson’s — and, for that matter, Harvard’s. I wanted to learn how most effectively and skillfully to use the rules of evidence to serve clients. Nesson, and Harvard, wanted to teach me how to feelabout the rules of evidence, and how the illusion of a rule-bound approach to evidence illuminated various metaphysical, deontological, epistemological, and social divisions in “reality.” They hoped that this would prepare me to teach other people how to feel about evidence, who could then teach other people, and so on, in an endless feedback loop of ivy-festooned wankery. Nesson seemed to share the view recently expressed elsehwere that law school is not meant to train lawyers, but to “appreciate the depth of the legal discourse and explore its rich complexities.” Thus when Charlie asked his question, he was looking for a deep philosophical answer, not a rule bound one. Hence I got the chalk.

Nesson is one of the most thoughtful inquisitors into the policy issues behind areas of law including, but not limited to, the rules of evidence. But he ought to recall that effective client representation is an entirely different animal than profound legal scholarship. One might even hope that Charlie Nesson, after this lesson, will show a bit less disdain for the rules he has ostensibly chosen to teach.

But if you suggest that to him, watch out for the chalk.

Very insightful and eloquent post (though I could do without the crack about the "abysmally thuggish file-sharing cases"). Read the whole thing. 

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