A popular phrase in the run up to the recent supreme court hearings. But, what exactly is the criteria for a legal mind to be considered brilliant? I’ll pass over the question of what makes a mind legal.
When one says Smythe is a brilliant mathematician, it is expected that one can point to some mathematical Everest that Smythe has scaled. For example, Smythe solved the Kyzckmaski conjecture. Or, Smythe introduced the notion of mother functors which turn out to be very important in the analysis of toposes. In short, Smythe is the author of a significant idea, thought or perspective original to her.
Perhaps, mathematics is not the right comparison. What about history? What sets one Historian above another? An original view of matters, the ability to marshall and synthesize the evidence in support of it, conveyed in language to make the blood sing. Ok, I’m describing Macaulay who would give Herodotus a run for the title of Father of Lies. But even with brilliant historians, there is a body of work that one could point to whose originality in either perspective or subject sets them apart.
If one BINGs the term (note the product placement) brilliant legal mind, a host of entries pointing to Kagan, Posner, Scalia and a placement firm show up. Beginning with Kagan, evidence offered in support of her brilliance is slender. Most of it is the reverent authority variety. She is brilliant because she was top of her class at Princeton, Oxford and Harvard. She is brilliant, well, because I say so and I am acknowledged to be brilliant. Indeed, in the twelve years prior to becoming Dean, she had published only 7 journal articles. I will not dwell upon my prejudice that law review articles are little more than after dinner conversations with footnotes. I am not a lawyer, nor do I play one in the classroom.
What do eminent lawyers have to say about this record? The most positive I know of makes an argument based on the paper with largest number of cites (10 times the average of the others). Interestingly this paper was published after she received tenure at the U of C. This reviewer does not point to a particular idea or thought in that paper deserving of attention, only the large number cites. The most negative offers a review of Kagan’s contributions that reminds one of Clive James’ remarks on Khruschev’s memoirs:
Here is a book so dull that a whirling dervish could read himself to sleep with it. If you were to recite even a single page in the open air, birds would fall out of the sky and dogs drop dead.
Turning to Posner, the case for brilliance seems clearer. The record exhibits enormous industry and erudition. He is credited with being one of the central figures in the introduction of economics as a lens through which to analyze the law.
Scalia is another popular choice for brilliant legal mind. Incisive prose and a sharp tongue. An original idea? By his own admission his role constraints him from having them. His task is to channel the dead. If Scalia, is to be believed about the role of Supreme Court Justice, brilliance is the very last quality one would want of a justice!
Scalia has written about what a legal education imparts (see the book `A matter of interpretation….’). He identifies two skills. The first is the ability
to think about, and devise, the “best” legal rule………..
The second is the technique of distinguishing between cases. Neither of these seem unique to the Law. Which raises another question, what makes a brilliant legal mind different from a brilliant mind full stop?
10 comments
August 3, 2010 at 9:06 pm
MMP
Doesn’t answer a question that doesn’t get asked enough :)
August 3, 2010 at 9:43 pm
Papa
I think a brilliant legal mind is someone who got more than 170 in the LSAT and went to Harvard or Yale. Oh and Yale admits around 200 people a year and Harvard admits more than 500!
Ultimately, any person who is capable of solving a few puzzles such as “A,B,C and D went to a movie and A does not want to sit next to B……” can get into a top law school. It is intrinsically a dull and unimaginative position for all but a few academics and hence it does not attract the top minds.
August 3, 2010 at 10:08 pm
bali villas
In my opinion, a mathematician usually has a very smart idea, every step taken is always taken into account very carefully
August 4, 2010 at 4:30 pm
laurence
actually lord denning graduated in mathematics before he did law.
August 4, 2010 at 4:44 pm
rvohra
Actually not just my noble Lord Denning. In the Victorian era, the path to one of the temples was through the Cambridge maths tripos. Indeed, more senior wranglers went into the Law than into mathematics. It was, anecdote suggests, the second wranglers who stayed behind to do mathematics and physics. Amongst the living brilliant legal minds who studied mathematics as undergraduates are Laurence Tribe (who has a piece on the uses of mathematics in the legal process) Eugene Volokh and Lucien Bebchuk.
August 5, 2010 at 11:39 am
laurence
That’s very interesting – though I think we need more than anecdote. Wiki is telling me that Herschel, Cayley, James Inman, George Gabriel Stokes, Lord Rayleigh, Arthur Eddington, J. E. Littlewood and John Couch Adams were all senior wranglers. Though there are some decent seconds – Maxwell, Thomson, Kelvin and… Alfred Marshall.
August 5, 2010 at 12:20 pm
rvohra
Other 2nd wranglers were
W. K. Clifford, J. J. Sylvester, William Whewell, Rouse-Ball, George Darwin, J. J. Thomson, James Jeans, E. T. Whitakker
Hardy was fourth!
You may find the following article
Click to access WranglersWhatBecame2008_1_24.pdf
of interest since it discusses what happened to various wranglers.
August 7, 2010 at 10:34 pm
laurence
Thanks!
August 9, 2010 at 5:55 am
Anonymous
Although I am a computer scientist with a background in and liking for mathematics, I think you are being rather narrow in your definition of brilliance.
As you know, law is not an abstract ‘thing’ but a shared social code that is, at best, incompletely specified and at worst, if one tried to write things down entirely formally, inconsistent. So, what is considered “just” is a fairly delicate matter of identifying the essence of the issue and discarding what should be irrelevant – doing all this while respecting the purpose of the law which is to implicitly express the collective will of the people.
So, a brilliant legal mind would be one that is capable of formulating the ill posed problem in such a way that it is consistent with at least some fragment of the logic that is the legal code. Admittedly, mathematics is the other extreme in that it requires long chains of ‘deep’ reasoning about a well posed problem but that is the key – mathematics has nothing to say until a problem is well posed. Posing the problem isn’t as trivial and people often assume…
Now, I have no opnion on whether the most recent supreme court appointee is brilliant or not but it does seem unduly condescending to question whether law requires thought/brilliance, etc.
August 10, 2010 at 2:36 pm
rvohra
Ah, you misunderstand……..but then, that is my, the authors, fault.
You wrote:
>
>I think you are being rather narrow in your definition of
> brilliance.
That is why I offered a comparison not just to mathematics but history as
well.
Continuing, you wrote
>
> As you know, law is not an abstract ‘thing’ but a shared social code that is,
> at best, incompletely specified and at worst, if one tried to write things
> down entirely formally, inconsistent. So, what is considered “just” is a
> fairly delicate matter of identifying the essence of the issue and discarding
> what should be irrelevant – doing all this while respecting the purpose of the
> law which is to implicitly express the collective will of the people.
I would argue that you are confusing the making of laws with the study of
them. The first is not the unique domain of lawyers or legal scholars. If it
were, we would require all legislators to have legal training. However,
students of the law would have something useful to say about the
implementation, enforceability and consistency of proposed legislation.
Regarding the business of well posed problems below:
>
> So, a brilliant legal mind would be one that is capable of formulating the ill
> posed problem in such a way that it is consistent with at least some fragment
> of the logic that is the legal code. Admittedly, mathematics is the other
> extreme in that it requires long chains of ‘deep’ reasoning about a well posed
> problem but that is the key – mathematics has nothing to say until a problem
> is well posed. Posing the problem isn’t as trivial and people often assume…
Indeed, no one has anything useful to say until the problem is well posed.
I would argue that the ability to pose a problem is as important in certain
branches of mathematics (mainly applied). In this sense I see no difference
between mathematics and the making of laws. So, the comparison with
mathematics is apposite.
You have proposed a criterion for identifying a brilliant legal mind. Now we
can ask, which of those put forward as examples of brilliant legal minds
satisfies this criterion?
Regarding condescension below
>it does seem unduly condescending to question whether law
> requires thought/brilliance, etc.
Ummmm, no. I only claimed that under Scalia’s interpretation of the role of
judges, brilliance was not a criterion. If you recall, I closed the post by
asking how legal brilliance was different from plain brilliance since the
intellectual activities that Scalia singled out as hallmarks of legal
education were not unique to the law. The criterion you singled out (able to
formulate ill posed problems) is also not unique to the law.