Professor Robert Summers of Cornell Law School (1933 - 2019)

Robert S. Summers, a contract law professor who taught at Cornell Law School for 42 years, was a preeminent scholar of the Uniform Commercial Code, and advised other countries including Egypt and Rwanda in writing their laws, died at age 85 on December 1.

I took his Contracts class throughout my first year of law school (2004-05). He had a distinctive style of teaching in which he rarely made any direct statements, speaking almost entirely in the form of questions.

I wrote down many of his witty and insightful comments during class, and when he retired in 2010, I did a blog post with some of my favorite moments of Contracts with Summers.

As you can see from that post, at one point he seemed to challenge some of the fundamental premises of legal education based on appellate case law, before saying he was “sowing the seeds of self-destruction.”

It was my first class of law school, and I won’t forget it.

How to stop the skyrocketing cost of law school

David Lat has a good idea:

Only 57 percent of 2013 law school graduates obtained full-time legal jobs nine months after graduation. Yet the federal government subsidizes the production of even more lawyers by lending the cost of attendance to basically anyone who decides to enroll in law school, without regard for the quality of the school or the job prospects of its graduates. A student going to Harvard Law School, where 86.9 percent of 2013 grads had full-time legal jobs, has the same access to federal funds as a student going to Thomas M. Cooley Law School, where just 22.9 percent of 2013 grads work as lawyers.

This policy is hurting students. Federally subsidized loans have enabled law school tuition to spiral out of control. As noted by Professor Paul Campos, “[i]n real, inflation-adjusted terms, tuition at private American law schools has doubled over the past 20 years, tripled over the past 30, and quadrupled over the past 40,” and resident tuition at public law schools has climbed even faster. So long as the federal loans keep coming, tuition is unlikely to stop rising. In the words of Professor Brian Tamanaha, author of “Failing Law Schools,” “Federal loans are an irresistible (and life-sustaining) drug for revenue addicted law schools . . . law schools have been ramping up tuition and enrollment without restraint thanks to an obliging federal loan program.”

If the government were to stop lending for law school or even just impose per-student or per-school caps on loan amounts (perhaps combined with making it easier to discharge student loans in bankruptcy), law schools would have to dramatically lower tuition, in order to attract students.

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 (calling it the work of a "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.

Flow, boiled down to 8 rules

In a footnote to this post by Ann Althouse (my mom). When someone asked AskMetafilter for examples of psychological "rules of thumb," I gave a shot at boiling down Mihaly Csikszentmihalyi's Flow into one rule:

You will be happiest if you do an activity that poses appropriately increasing challenges allowing you to continually engage with the activity and apply your increasing level of skill to effectively tackle the challenges.

(That was my off-the-cuff version; I left out some of the elements.)

The liberal, conservative way to teach children morals

"Two views of moral education," set forth by Eric Schitzgebel in his blog about philosophy and psychology called The Splintered Mind:

(1.) The "liberal", inward-out model: Moral education should stress moral reflection, with rules and punishment playing a secondary role. ...

(2.) The "conservative", outward-in model: Moral education should stress rules and punishment, with moral reflection playing a secondary role. You can't understand and apply the rules, of course, without some sort of reflection on them, but reflection should be in the context of received norms....

Now, academically affiliated researchers on moral development almost universally prefer the first model to the second.... The common idea is that children (and the morally undeveloped in general) improve morally when they are encouraged to think for themselves and given space to discover their own reactions and values....

But he has an idea for how to blend the two together:

Suppose Sally hits Hank and a liberally-minded teacher comes up and asks her how it made her feel to hurt Hank. What child, realistically, would say, "Well, I know he didn't deserve it, but it just felt good pounding him to a pulp!"? The reality is that the child is being asked to reflect in a situation where she knows that the teacher will approve of one answer and condemn another. This isn't free reflection; and the answer the child gives may not reflect her real feelings and values. Instead, it seems, it is a kind of imposition -- and one perhaps all the more effective if the child mistakes the resulting judgment for one that is genuinely her own.

Therefore, maybe, a liberal-seeming style of moral education is effective not because we have in us all an inclination toward the good that only needs encouragement to flower, but rather because reflection in teacher-child, parent-child, and similar social contexts is really an insidious form of imposition -- and thus, perhaps, the conservative's best secret tool.

As an adult, it can be hard to put yourself back in the child's shoes, since your childhood was so long ago. But anyone who's been to a law school where they use the Socratic method has a more recent memory of what he's talking about.

NOTE: With this post, I've created a new tag, and also applied it to a few old posts: "observed morality."

Will the oath flub prompt law review editors to finally see the light on split verbs?

Steven Pinker wrote an op-ed in the New York Times* hypothesizing that Chief Justice John Roberts flubbed the presidential oath of office out of a desire to unsplit the split verb in the Constitution ("will faithfully execute").

I'm glad to see that the letters in response to the op-ed are coming down on the side of split verbs:

Thank you to Steven Pinker for demonstrating that Chief Justice John G. Roberts Jr., in administering the oath of office to Barack Obama, was likely tripped up by nothing more sinister than his own pedantry.

While adverbs like “faithfully” are usually movable within a sentence, clarity is best served when they are placed as close as possible to what they modify. When they modify a verb with an auxiliary, like “will execute,” you cannot get closer than between the two.

The prohibition against split verbs (as Chief Justice Roberts would probably put it) is not necessarily so.

Another letter writer shines a spotlight on law reviews:

My thanks to Steven Pinker for his denunciation of the so-called split infinitive rule. This rule, allied with its twin barbarism called the “split predicate rule,” has especially afflicted the prose of lawyers and legal scholars.

For decades, law review articles criticizing judicial decisions have included such convolutions as “the court adequately has failed to analyze ...”

The op-ed itself also discussed law reviews:

Though the ungrammaticality of split verbs is an urban legend, it found its way into The Texas Law Review Manual on Style, which is the arbiter of usage for many law review journals. James Lindgren, a critic of the manual, has found that many lawyers have “internalized the bogus rule so that they actually believe that a split verb should be avoided,” adding, “The Invasion of the Body Snatchers has succeeded so well that many can no longer distinguish alien speech from native speech.”

Frankly, I'm a little surprised that so much attention is being paid to a particular type of academic journal -- law reviews -- in the popular press. Is it really the case that this practice is mostly confined to law reviews? If so, that makes it all the more ridiculous for law review editors and authors to sheepishly obey a nonexistent rule.

When I was a law review editor, I sent an email asking if we could give ourselves permission to split a verb by placing an adverb between an auxiliary verb (like "have" or "will") and the main verb. (I wasn't even going to touch split infinitives, the most reviled type of split verb.) For instance, do we write, "They can already do so," or, "They already can do so"? The answer I got back was that we should write, "They already can do so" -- that is, not split the verb -- because this makes the writing more "formal." In other words, the phrasing is so awkward that you'd never come up with it spontaneously; thus, it's well-suited to an academic journal.

* You have me to thank for providing you with this link; the fusty old Times didn't see fit to actually link to the op-ed anywhere in the page of letters responding to it.


UPDATE: A Metafilter commenter has a different theory of what was going on in Roberts's mind -- and Obama's:

[O]ne cannot execute as president without reciting the oath word-for-word. Obama voted against the Supreme Court nomination of Roberts, and this is probably his way of getting back at him. It couldn't have been that hard to read it correctly, he was reading it off a sheet of paper! This was probably to create illegitimacy in the president, but Obama, the constitutional scholar that he is, caught it and gave him a "WTF" look.