Wednesday, December 8, 2010

Professor Robert Summers of Cornell Law School

Professor Robert Summers taught his last class on December 1, marking the end of 42 years of teaching at Cornell Law School. Before that, he taught at the University of Oregon Law School.

Here are some of his many accomplishments, from the article at the link:

Summers is perhaps best known as co-author of the Uniform Commercial Code (West Publishing Co.), written with James J. White in 1972 and now in its sixth edition. The four-volume treatise on the rules that coordinate the sale of goods and other commercial transactions throughout the 50 states is the most widely cited on the Code, which has been adopted by all 50 state legislatures. . . .

In 1993 the Russian government called on Summers to help draft that country's new civil code. He later served as adviser to the Drafting Commission for the Egyptian Civil Code (1998-99) and as principal drafter for the Code of Contract Law for Rwanda (2006-10). . . .

In the 1960s he began advocating for more minority students in law schools, holding summer sessions around the country . . . to recruit and prepare minority undergraduates.

"That was one of the largest, most satisfying public service activities I have ever been privileged to engage in in my life," Summers said. "It was extremely inspiring."
Wikipedia says:
He is well known among Cornell Law School students for his inquisitive, spirited use of the Socratic method in instruction.
That's putting it mildly. That sentence would describe many Cornell law professors, but Summers took the Socratic method to the extreme. He rarely made any direct statement about anything, almost always preferring to ask questions instead.

He mockingly voiced the way he thought students would react:
Isn’t it a pity that you need to analyze cases? You can’t just go around with your mouth open waiting for a spoon that will feed it to you in one big, luscious bite! Students should sue. The teachers should just give you the law.
A student piped up:
We're working on a class action.
The article quotes Summers giving a more straightforward rationale for his teaching method:
"It teaches the students analytical focus, verbal adroitness and articulateness, and it keeps them on their toes," he said. "You've got to hold their feet to the fire."
He had an inimitable style of speaking: self-consciously erudite and even antiquated, often quite stern, but also wryly comical.

Over the summer before our first year, the law school had all of us incoming students read Franz Kafka's novel The Trial so we could discuss it at orientation. Per Wikipedia, "it tells the story of a man arrested and prosecuted by a remote, inaccessible authority, with the nature of his crime never revealed either to him or the reader." In the middle of contracts class, Summers would suddenly attack Kafka:
In very few walks of life can you see the power of human reason when it's at its best — as it is in well-reasoned judicial opinions. In other words, this is not a course that Kafka would recognize. Kafka couldn't possibly see that there was any rationality to the law.
He added sarcastically:
So it's a wonderful thing for the law school to select such an inspiring book for law students to read.
Summers would urge us to write down everything that was said in class. I know that many people look down on this technique (deeming it to be the work of a lowly "stenographer"), but I found the advice useful. On one occasion he started to scold us for not taking notes, but then he seemed to have a flash of sympathy for us:
I see a lot of you just relaxing and not taking notes. These hypos are important. Of course, relaxation is important too!
He ruthlessly mocked judges who wrote opinions he considered irrational. After reading one such opinion, he said:
We would want to be very wary of any majority decisions written by Lindberg, J., if they purport to be contracts case. It might not be a problem if it’s a tort case, because torts is really simple. It’s just: one person bumps into another person!
(Yes, he referred to the judge as "Lindberg, J." This is the standard legal notation, meaning "Judge Lindberg." Summers is the only person I've heard pronounce the "J." as written.)

Summers was a scholar of jurisprudence and felt strongly about the subject, so he would go off on delightful philosophical tangents while we were in the middle of analyzing a contracts case. Here's one I tried to type out close to verbatim in my notes:
Is certainty important from the point of view of justice, legal predictability, treating like cases alike? Do the materials that law students are now studying have a tendency to dull your sensitivity to the value of certainty? Indeed, does Friedman [the author of a passage in our casebook] give law professors a pretty hard time here?
A student responded, reading from the casebook:
“In a complex social and economic system, a legal system on the model of appellate cases selected for law school instruction would be insupportable.”
That line was particularly ironic because not only were we in law school, but Summers edited the casebook and presumably chose to include that passage.

He elaborated on the point:
You have a steady diet of borderline cases. Is this bending up your mind? Is this having the effect of dulling your sensitivity to the 7 major values of certainty in law? If you’re getting accustomed to life on the borderlines — that's what you're in, life on the borderlines — could that have a prejudicial effect on the general standards that you have with regard to what the law is like? And you just take for granted that the law will be open-ended, spongey, discretion-ridden? Some of you do think there’s value to predictability, determinativeness. There are probably not just 3 ways in which it’s valuable, but probably about 15.
(Summers often referred to imaginary numbered lists.)

He went on:
Does certainty facilitate citizen self-direction vs. being ordered around ad hoc by judges and other officials? Does determinativeness limit judicial power, and thus reduce the scope of judicial arbitrariness? Does determinativeness contribute to dispute avoidance? That would be a bad thing, because it would reduce the number of jobs you can get, and that would reduce the number of law professors. What I’m doing is sowing the seeds of self-destruction. So maybe I better shut up.
On another day in class, we read a passage by a former Cornell law professor named Ian MacNeil. Summers said:
MacNeil was a whale of a law professor! Never uttered a declarative sentence! Never uttered a declarative sentence! Not in 35 years! Best law professor we've ever had! Now he's retired. What a mistake that was. What a mistake that was.


AST said...

Rex Lee was the founding dean of my law school, and used to say that the goal was to get us to think like lawyers. I never did really know what that meant, but other professors had different ideas. One of them used to tell us that the task was to get the judge wanting to rule for you and then give him a peg to hang his hat on. Of course, since the goal of every lawyer in court is to win for his client, that's an invitation to ignore logic and consistency, and equivocate or use sophistry.

One thing I've noticed is that on any issue, it seems possible to find cases that come down on every side. The most well-reasoned are admirable, but they aren't really what you want unless they support your argument. Unless and until you become a judge or law professor, how well-reasoned the cases are doesn't much matter.