Jimmy Winokur




Learning, Teaching and Law
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We tend to feel a little queasy whenever someone reads a prepared speech – even a very good one – instead 
of talking directly to us. If you are giving a public talk, it is fine to plan what you might say in order to sharpen 
your awareness, but when you arrive, throw away your plans and relate, in real time, to the people in the room.
In many schools, teaching is expected to follow syllabi that lay out what students will learn, as well as when 
and how they will learn it. 

But in a real classroom, whether kindergarten, graduate school, or the school of life,  there are live people
 with personal needs  and knowledge.  A particular tap in this direction will shift this person’s perspective;
after today’s discussion you know that this reading will be good to assign, based on what seems like the natural flow
 to the next step.  You cannot plan these things.  You have to teach each person, each class group, and each moment
 as a particular case that calls out for particular handling.  Planning an agenda of learning without knowing
who is going to be there, what their strengths and weaknesses are, how they interact, prevents surprises
 and prevents learning. 

The teacher’s art is to connect, in real time, the living bodies of the students with the living body of the knowledge.

Steven Nachmanovitch, Free Play: Improvisation in Life and Art


In the art of teaching, we recognize that ideas and insights need to cook over a period of time.  
Sometimes the student who is least articulate about expressing the ideas is in fact the one who is absorbing 
and processing them most deeply.  This applies as well to our own private learning of our art form; the 
areas in which we feel most stuck and most incompetent may be our richest gold mine of developing 
material. The use of silence in teaching then becomes very powerful.

Stephen Nachmanovitch,  Free Play: Improvisation in Art and Life  (1990)


One doesn't discover new lands
 without consenting to lose sight of the shore
 for a very long time.
Andre Gide
Learning is not the accumulation of scraps of knowledge.  
It is growth, where every act of knowledge develops the learner….
Husserl, interpreted by Quentin Lauer

In a society excessively devoted to the bottom line – what the philosopher William James called the “cash value” 
of ideas – intellectuals play a vital role in offering a more elevated approach to democratic debate.  Through 
their teaching and writing, they free us from the tyranny of short-sightedness by enlarging our understanding
 of historical and social context.  They provide us with an alternative to a culture of celebrity and sound bites.

James O. Freedman, Liberal Education & the Public Interest



The task of the modern educator is not to cut down jungles but to irrigate deserts. 

C. S. Lewis, The Abolition of Man (1947).  from Doug Linder's  wonderful site.


The normal adult never troubles his head about the space-time problems. 
Everything there is to be thought about, in his opinion, has already been done in early childhood. 
I, on the contrary, developed so slowly that I only began to wonder about space and time when I was already grown up.

Albert Einstein







We often make the mistake of confusing education with training, when in fact these are very different 
activities.  Training is for the purpose of passing on specific information necessary to perform a 
specialized activity.  Education is the building of the person.  To educe means to draw out or evoke 
that which is latent; education then means drawing out the person’s latent capacities for understanding 
and living, not stuffing a (passive) person full of preconceived knowledge.  Education must tap into 
the close relationship between play and exploration; there must be permission to explore and express.  
There must be validation of the exploratory spirit, which by definition takes us out of the tried, 
the tested, and the homogeneous.

Stephen Nachmanovitch,  Free Play: Improvisation in Art and Life  (1990)




Good teaching rests
neither in accumulating a shelfful of knowledge
 nor in developing a repertoire of skills.
In the end, good teaching lies
 in a willingness to attend and care for what happens
 in our students, ourselves, and the space between us.
Good teaching is a certain kind of stance, ....
It is a stance of receptivity, of attunement, of listening.

 Laurent A. Daloz , Effective Teaching and Mentoring



At school you are not engaged so much in acquiring knowledge as in making mental efforts under criticism. 
You go to a great school not so much for knowledge as for arts or habits; for the art of expression, for 
the art of entering quickly into another's thoughts, for the art of assuming at a moment's notice a new 
intellectual position, for the habit of submitting to censure and refutation, for the art of indicating assent 
or dissent in graduated terms, for the habit of regarding minute points of accuracy, for the art of working 
out what is possible in a given time, for taste, for discrimination, for mental courage and mental soberness.

Monrad G. Paulsen, Mental Efforts Under Criticism
in his final statement to the University of Virginia law faculty as its dean, January 12, 1976.
He, in turn, draws the quote from an 18th Century British schoolmaster.

Thanks to Steve Pepper for introducing me to this quote.



Good judgment comes from experience. 
Experience comes from bad judgment. 

Tom Watson, former IBM  CEO



     I want to believe -- and so do you -- in a complete, transcendent,
     and immanent set of propositions about right and wrong, findable
     rules that authoritatively and unambiguously direct us how to live
     righteously. I want to believe -- and so do you -- in no such thing,
     but rather that we are wholly free, not only to choose for ourselves
     what we ought to do, but to decide for ourselves, individually and
     as a species, what we ought to do. What we want, Heaven help us, is
     simultaneously to be perfectly ruled and perfectly free, that is, at
     the same time to discover the right and the good and to create it.
      Arthur A. Leff, Unspeakable Ethics, Unnatural Law 
      1979 Duke Law Review 1229



A page of history is worth a volume of logic.
Oliver Wendell Holmes Jr.



No one has earned the right to intellectual ambition until they have learned to lay their course by a star 
which they have never seen – to dig by the divining rod for springs which they may never reach.  In saying 
this I point to that which will make your study heroic.  For I say to you in all sadness of conviction, that to 
think great thoughts you must be heroes as well as idealists.  Only when you have worked alone – when you 
have felt all around you a black gulf of solitude more isolating than that which surrounds the dying, and in 
hope and in despair have trusted to your own unshaken will – then only will you have achieved.  Thus only 
can you gain the secret isolated joy of the thinker, who knows that, a hundred years after they are dead and 
forgotten, people who have never heard of them will be moving to the measure of their thought – the subtle 
rapture of a postponed power, which the world knows not because it has no external trappings, but which 
to their prophetic vision is more real than that which commands an army.  And if this joy shall not be yours, 
still it is only thus that you can know that you have done what it lay in you to do – can say that you have 
lived, and be ready for the end.

Oliver Wendell Holmes, Jr,  “The Profession of Law,”
an 1886 speech to Harvard undergraduates  



The life of the law has not been logic: it has been experience.

The seed of every new growth within its sphere has been a felt necessity.

The form of continuity has been kept up by reasonings purporting to reduce everything to a logical 
sequence; but that form is nothing but the evening dress which the new-comer puts on to make itself 
presentable according to conventional requirements. The important phenomenon is the man underneath 
it, not the coat; the justice and reasonableness of a decision, not its consistency with previously held 
views. No one will every have a truly philosophic mastery over the law who does not habitually consider 
the forces outside of it which have made it what it is.

Oliver Wendell Holmes, Jr. (1880)



JLW Comment on the following: 'Casner and Leach' , from which the following is dawn, was far
and away the most widely adopted Property casebook during my years as a law student (and 
was assigned to my class at Penn); and was the first book I adopted as a Property teacher in 1972.

While in tone, the quote reflects the vintage of its authors and some classic Harvard condescension, 
and the summary is subject to some other minor criticism or augmentation. it remains 
perhaps the best short summary of lawyerly qualities I've seen
. My semi-famous older brother 
Bart, see infra, was an Estate Planning student of Casner's at Harvard. He speaks very well of the 
course, noting with a chuckle Casner's opening of the last class session of the course, when 
Casner reportedly said words to the effect of:

  • You have only 50 minutes more of my time for  no fee. Responses to questions after those 50 minutes will be charged at my normal rate of $175/hour!   (I'm not sure I've got the fee-- in early 1960s dollars -- correct; and surely the students had already paid quite a fee for his time!)


  • Legal education has made some progress since that comment!  And now let Casner & Leach speak for themselves:


    "The Basic Qualities of a Good Lawyer "

    The best way to describe a good lawyer in a phrase is to call him or her a professional in versatility. 
    This is another way of saying that a good lawyer has acquired certain abilities which allow him or her 
    to operate effectively in any enterprise, familiar or unfamiliar, to diagnose its difficulties, and to 
    contribute substantially to solution of the problems. A lawyer's usual field of operation is one in 
    which the legal ingredient is large, and to this the lawyer brings professional knowledge as well as 
    the basic abilities; but the fact that the non-legal ingredient is frequently dominant and further the fact 
    that the situation in which the lawyer's help is solicited are many and varied give the lawyer the habit 
    of tackling new problems with confidence and skill, regardless of their nature.

    Our listing of the basic qualities is the following:

    1. Fact consciousness. An insistence on getting the facts, checking their accuracy, and sloughing 
      off the element of conclusion and opinion.
    2. A sense of relevance. The capacity to recognize what is relevant to the issue at hand and to cut 
      away irrelevant facts, opinions, and emotions which can cloud the issue.
    3. Comprehensiveness. The capacity to see all sides of the problem, all factors that bear upon it, 
      and all possible ways of approaching it.
    4. Foresight. The capacity to take the long view, to anticipate remote and collateral consequences, 
      to look several moves ahead in the particular chess game that is being played.
    5. Lingual sophistication. An immunity to being fooled by words and catch phrases; a refusal to 
      accept verbal solutions which merely conceal the problem.
    6. Precision and persuasiveness of speech. The mastery of language which involves (a) The ability 
      to state exactly what one means, no more and no less, and (b) the ability to reach others with 
      one's own thought, to create in their minds the picture that is one's own.
    7. And finally, pervading all the rest, and possibly the only one that is really basic: self-discipline in habits of thoroughness, and abhorrence of superficiality and approximation.

    These are not qualities which spring naturally from family background plus a liberal arts education. 
    You will be shocked at your deficiencies in all of them…. But be not dismayed, for the qualities can 
    be acquired and developed…. The important thing is that you realize that this is what [your legal 
    education] is striving for -- this, even more than "teaching law."

    Beyond this list of rather earthy qualities, … lie insight, ingenuity, imagination and judgment -- naïve 
    qualities which distinguish the artist from the artisan, genius from competence. And above all 
    stands character -- that indispensable resource in a profession which is charged with maintaining 
    equal justice under law….

    No specific reference is made above to social consciousness as a basic quality of a lawyer. The issue is 
    one of relevance. If a member of the bar litigates the validity of a clause in a deed which restricts the use 
    of land without considering the consequences to the community of this type of restriction, the lawyer 
    will be giving the client very bad representation. On the other hand, if the lawyer draws a will for 
    a Rockefeller, or cross-examines a lying witness in a tort case, while reflecting on the inequalities of 
    the distribution of wealth, the lawyer is not likely to do the best job of which he is capable.

    James Casner and W. Barton Leach, Cases and Text on Property 1-4 (3rd Ed 1984): The Study of the Law of Property.

    A professor is one who talks in someone else’s sleep. 
    W. H. Auden


    The annals of art and science are full of stories of men and women who, desperately stuck on an enigma, have 
    worked until they reached their wit’s end, and then suddenly made their longed-for creative leap or synthesis 
    while doing errands or dreaming. The ripening takes place when their attention is directed elsewhere.

    Insights and breakthroughs often come during periods of pause or refreshments after great labors.  There is a preparatory period of accumulating data, followed by some essential in the same vein that we learn to swim in 
    winter and skate in summer.  We learn that which we do not concentrate on, the part that has been exercised 
    and trained in the past but that is now lying fallow.  Not doing can sometimes be more productive than doing.

    Stephen Nachmanovitch, Free Play: Improvisation in Art and Life

    Education's purpose is to replace an empty mind with an open one. 
    Malcolm S. Forbes
    Whether you think you can or can't, you're right.
    Henry Ford


    I do not feel obliged to believe
    that the same God who has endowed us
    with sense, reason,  and intellect
     has intended us to forgo their use.

    Galileo Galilei


    I could prove God statistically. 
    George Gallup

    You know the world's gone mad when the best rapper is a white guy, the best golfer is a black guy, 
    the Swiss hold the America's Cup, France is accusing the USA of arrogance and the Germans don't 
    want to go to war !"  

    Chris Rock, March, 2003

    Happiness is a butterfly which, when pursued, is always beyond our grasp, but which, if you will sit 
    down quietly, may alight upon you." 
    Nathaniel Hawthorne
    Well, look at an animal, a cat, a dog, or a bird, or one of those beautiful great beasts in the zoo, a puma or 
    a giraffe.  You can't help seeing that all of them are right.  They're never in any embarrassment.  They 
    always know what to do and how to behave themselves.  They don't flatter and they don't pretend. They 
    are as they are,  like stones or flowers or stars in the sky. 
    Hermann Hesse
    You can discover what your enemy fears most by observing the means he uses to frighten you.
    Eric Hoffer



    Miscellaneous Short Quotes

    You must be the change you wish to see in the world.
    Mohandas Karamchand (Mahatma) Gandhi

    There is more to life than increasing its speed. 
     An eye for an eye makes the whole world blind.
    The best way to destroy an enemy is to make him a friend. 
    Abraham Lincoln 

    There’s many a slip twixt the cup and the lip.
    Benjamin Franklin, Poor Richard’s Almanac,
    wisdom often quoted by Morris J. Winokur


    As far as the laws of mathematics refer to reality, 
    they are not certain; and as far as they are certain, 
    they do not refer to reality.
    Albert Einstein
    Only two things are infinite, the universe and human stupidity,  
    and I'm not sure about the former. 
    Albert Einstein
    We should take care not to make the intellect our god; it has, of course, powerful muscles, but no personality.
    Albert Einstein, Out of My Later Years, 1950



    The only road to strength is through vulnerability.
    Stephen Nachmanovitch, in Free Play (1990) 

    Fame is a vapor, popularity is an accident and money takes wings. All that endures is character.  Don't 
    cry for me when I go. You'll hold me back on my journey. How deep is my thought? So deep that it 
    can be mistaken for being cold and distant."

    Forrest Sanford

    He’s not prolific, he’s incontinent.

    David Brooks, New York Times Book Review, January 13, 2002; 
    reviewing Hon. Richard Posner’s Public Intellectuals: A Study of Decline,
    rating and applying ‘economic analysis’ to explain the dearth of true intellectuals’
    in postmodern America, and their propensity toward  ‘crude  rationicination’.

    Either he's dead or my watch has stopped.

    Groucho Marx

    They sicken of the calm, who know the storm.

    Dorothy Parker

    There is nothing so absurd but some philosopher has said it.