Check out this post — and don’t miss the Comments — over at Prawfsblawg; Scott Moss muses on Michael Luttig’s qualifications to be General Counsel at Boeing. Jeff Lipshaw, now an academic but previously a GC, generously shares insights that draw on the best of both experiences.
Something that Jeff emphasizes — the role of that intuition plays in shaping a GC’s judgment — may be worth some broader exploration. I never practiced in-house, but I recognize Jeff’s description from my dealings with GCs and CFOs. I think — there’s my intuition — that he’s on to something real. (Jeff points out that he has a paper on “Law and Rationalization” forthcoming in Toledo.) Intuition plays an important role in the life of any lawyer, whether GC or judge or private practitioner or academic. Intuition plays an important role in all aspects of our lives, so the surprising thing shouldn’t be that intuition is part of our professional lives as lawyers, but that the role of intuition in the profession isn’t more frequently acknowledged or studied.
Of course, it has been studied some, but mostly in the context of theories of adjudication. I want to set aside “intuitionism” as a part of philosophy. Instead, what about the role of intuition as Jeff describes it, as a part of the lawyer’s skill set? Here are some questions to ponder:
Does the concept of intuition actually mean something in the context of practicing, teaching, and learning law?
Where does intuition come from?
Can intuition be taught? If so, how?
Can intuition be learned? If so, how?
What are the ethics of intuition?
When, if ever, is intuition a legitimate part of an argument? Of advice? Of teaching?
Legitimate or not, what makes intuition a persuasive part of an argument?