Legal Commentary

Marc has joined the fray and I don't think he's a wet blanket at all.  I started to write a comment and quickly concluded it would turn into a post of its own, suggesting that he's a catalyst.  Moreover, wet blankets aren't fun, and I've just spent an hour writing this post, which I wouldn't do if it weren't fun (or if I had a life, but such are the benefits of empty-nester-dom:  I can do whatever I damn please on a Saturday afternoon).

I understand Marc to be saying he does not teach the moral "ought" that stands behind values, and I am sure that's true.  The metaphor for the method he describes is "slicing the prosciutto," which evokes understanding in finer and finer detail the components of the particular human behavior that constitutes his subject area, and the laws, rules, norms, lore, and customs that have arisen to regulate that behavior. I agree that has little to do with a moral "ought."  Nevertheless, the metaphor invokes another kind of "ought", an epistemological "ought," one that suggests a relationship between knowledge and reduction:  we ought to know more as we slice the prosciutto more thinly.   Thus I want to peel some leaves off the artichoke of the metaphor of the slicing of the prosciutto, first, to address generally what Steven Pinker calls the "metaphor metaphor" and, second, within the prosciutto metaphor itself, to address what happens if you keep slicing.

First, what does the use of a metaphor like slicing prosciutto tell us?  The extreme exponents of the metaphor metaphor are George Lakoff and Mark Johnson (Metaphors We Live By) in cognitive science and Steven Winter (A Clearing in the Forest) in law.  You cannot read the work of either of them and not be taken with their intellectual horsepower, but it is an extreme position.  The main idea is that all thinking is metaphor (hence, the metaphor metaphor for thinking) arising out of our having embodied minds in physical bodies: there are no a priori concepts or universal truths and all concepts arise from basic hardwired physical relationships (e.g. TIME IS MOTION; LOVE IS A JOURNEY).  Pinker criticizes the extreme metaphor metaphor (as I have, using a slightly different metaphor), but nevertheless is taken (as am I) by its seeming explanatory power in many cases.  Pinker writes in The Stuff of Thought:

Another fallout of the metaphor metaphor is the phenomenon of framing. Many disagreements in human affairs turn not on differences in data or logic but on how a problem is framed. We see this when adversaries "talk past each other" or when understanding something requires a "paradigm shift.". . . Each controversy hinges on a choice between metaphors. . . .

The most recent example of this is the Goldman Sachs inquiry, where the duty and materiality issues depend entirely on whether you use a bookie metaphor or an investment adviser metaphor to frame the controversy (see Larry Cunningham's invitation a few days ago to come up with the best analogy).

There is an implicit "ought" in Marc's inculcatorium (or non-inculcatorium) that asks us to take the metaphor SLICING IS STUDY, and the implicit analogy THINNESS is to PROSCIUTTO as REDUCTION is to KNOWLEDGE.  How about this metaphor?  Elements of a legal claim are TREES in the legal FOREST and law itself is a TREE in the FOREST of human understanding.  Don't lose sight of the FOREST for the TREES.  That suggests you want to teach not by slicing prosciutto but by stepping back.  What I am suggesting here is that we are indeed inculcating more than we think. It may not be a moral inculcation, but it is an epistemic inculcation.

Second, my use of the artichoke was only slightly in jest.  As to the prosciutto metaphor, can you slice it (the prosciutto or the metaphor) too fine?  Does it lose its taste if the slice is only a couple molecules thick?  I think prosciutto slicing has a highly non-foundational, scientific feel to it.  We are reducing to the very atoms or nuclei or quarks of the meat.  If you are a foundationalist, perhaps you do want to use artichokes rather than prosciutto because you finally get to the heart, it's all the same green mushy stuff, and there's no point in reducing any further. 

I think Langdell wanted to be a prosciutto slicer, and generally law as practice and academic pursuit for the last 100 years reflects that.  My impression is the Stanford program and other interdisciplinary or metadisciplinary efforts are attempts not to lose sight of the forest for the trees.