Legal Commentary

(Hat tip to John Houseman.)

Jay's post on using first or last names as a professor has provoked interesting follow-up discussion in the comments and on Concurring Opinions.  There, in a comment on a post by Nate Oman, Marty Lederman writes that in the "adult enterprise" on which students will embark after law school, they will usually use first names, not last names, except in court.  So why bother using last names?

Well, if, like me, you are often flummoxed when it comes to remembering first or last names, the question will be irrelevant, because in class you will simply gesticulate at a student with your cane, and if you encounter students outside of class you'll say, "Hey, . . . . you!"  But I don't think that Marty has the purpose of using last names quite right.  Those who take the last name approach -- as I do -- don't do it as a dress rehearsal for being a professional; certainly Marty is right that as often as not people use first names in practice, although whether that is always a good thing is another question.  Rather, we do it because it is part of the process of professionalization.  It's not that it teaches students what to do when they're in practice; it's that it solemnizes the learning environment.  It reminds the students that they are not just undergrads spending an extra three years on campus; instead, they are gentlemen and ladies engaged in an enterprise of learning a profession, one that has serious stakes and should be engaged in with some gravity and appreciation of the occasion.  

The point is thus not to ape how professionals act, but to remind students that they are being acculturated into the professional world.  It's the equivalent of handing med students a stethoscope or making them wear white coats rather than, say, a clown suit (horrible shades of Patch Adams!).  I think there are ways to do this that aren't stuffy.  My students are Mr. So-and-So and Ms. Such-and-Such (or, as I said earlier, "you"), but I'm happy to talk about Gossip Girl with them.  Still, the mutual respect involved in formalizing our names -- Professor Horwitz and Mr. Wankle -- is also a mutual reminder that we are engaged in the common enterprise of being and becoming the members of an ancient profession.  This approach isn't for everyone; it's not for Jay.  That's fine with me.  But I think there is still room for my approach, that it needn't be especially pompous, that it can be a sign of mutual respect rather than a way of being hierarchical, and that it has very little to do with whether lawyers in pracitce call each other by their first names.