Is Charlie Nesson our very own “Man on the Moon”?

BY OWEN ALTERMAN

We all have our Charlie Nesson stories. Let me tell mine.

On Tuesday afternoon, Nesson and I met for our interview. His tape recorder was rolling. I asked about rumors of his drug use.

And Nesson put the rumors on the record, on tape and then over e-mail. Nesson said that he has smoked “a puff or two of a joint” in the morning before class. (“That’s all it takes, my boy.”) He later phoned to say that “I do not teach stoned” — and repeated that to his class yesterday — but Nesson said in our interview that he has come to class at least once “under the influence” of pot.

I was honored — Nesson had revealed it all to me! Then again, not only me. When he sent me an e-mail with interview recording attached, he added a few other names on the “to” and “cc” lines: His Torts class. His Evidence class. And Dean Robert Clark.

As my editor put it: “When you tangle with Charlie, you take what you get.”

Nesson’s students have been “taking what they get” all along. Just look at last week’s class schedule. A week ago, his section was finishing writing reviews of a book about fen-phen and would someday vote for the “top ten” reviews. By Friday, Nesson had skipped town for a long weekend in Jamaica. By Sunday, he had written an incoherent e-mail sent — yep — after smoking some pot, he said. By Monday, the Weld Professor of Law had sent his Torts class on a scavenger hunt, to discuss how many HLS buildings have purple bricks.

All the while, I was busy asking everyone the perennial Charlie Nesson question: Is there a method to the madness?

Plenty of Nesson’s past and present students insistently say no. Nesson, they say, is “selfish” or “lazy” or “whacked,” just “an old man bored with his job.”

But other students see something else. Coming out of their Torts lecture, they’ll tell you Nesson wants to teach about perspective, or to show that the lawyer is really a storyteller, or to implore that students be active participants in the legal process. These students might be on to something. Because I think Charlie Nesson is our “Man on the Moon.”

That 1999 movie traced the life and career of comedian Andy Kaufman. Kaufman lived and worked at the edge of entertainment. Instead of the comedian who tells jokes while the audience laughs, Kaufman would often laugh while using the audience as his jokes.

As one admiring website puts it, “It was as if Andy was constantly provoking you to think: ‘What is funny? What is entertainment? How long will I tolerate this?”

Enter Charlie Nesson. In his writings, in our interview and even in the classroom, Nesson hints at a brilliant, expansive theory about the nature of truth. First we start with our emotions, he explained in class, then we make distinctions in the outside world and then we return to our emotions for the climactic end of learning.

With those ideas in tow, the law — and legal education — would seem a frustrating struggle indeed. In law, authorities and juries find truth, not each individual. And the Socratic method has it all backwards. Instead of students asking questions in their search for truth, the teacher asks the questions, the teacher decides which questions to ask, the teacher defines the limits of knowledge. Nesson could no more ask the questions than could Andy Kaufman tell the jokes.

Like the “Man on the Moon,” Nesson too works at the edge — the edge of education. In Nesson’s world, truth must be explored and found by the student, not presented by the professor.

So what to do instead? Feedback memos, votes on the “top ten” book reports, arguing about purple bricks in HLS buildings, anything where we see how we see different truths. And, of course, theatrics, like singing rap and sifting through e-mail, to jar everyone into a gut emotional reaction. Maybe the marijuana even fits in there somehow. Who knows?

So our “Man on the Moon” might be on to some weighty ideas. But to get them across, he needs to tackle a couple of down-to-earth problems.

First of all, if Nesson’s trying to convey something big, most of it’s flying as high over our heads as his plane to Jamaica. As Nesson himself wrote to his class, “I am at risk of losing you.”

Here, Nesson has locked himself inside a pedagogical box. We miss his philosophy because Nesson does not explain it. But if Nesson explained it, he would destroy the philosophy itself, by invading our search for truth. Not an easy recipe for curricular success.

Second, and more serious, is the issue J.D. Dean Todd Rakoff understands only too well — the issue on his plate even before marijuana went on the record. The “baby dean,” as Nesson calls Rakoff, is doing his best, caught in a classic law school-style line-drawing problem.

“I do think the school has to be careful that in classes students are obligated to take, the fundamentals of the subject are taught,” Rakoff says. But, he asks to add, “It would be a vastly diminished Harvard Law School if we had only 100 percent safe professors.”

Plenty of Nesson’s students are feeling the “baby dean’s” pain. While opinion on Nesson splits down the middle, many 1Ls are frustrated and impatient. Sure they want variety in their educational experience. But they signed on for torts, not epistemology. They want to learn “the way of the law,” not be part of some experiment into the nature of truth.

It’s hard to disagree with that argument, and easy to sympathize with it. But still I wonder: What if we took the plunge into Nesson’s world? What if we left our expectations, our skepticism, our agnosticism at the door? What if we just took that leap of faith?

I think we’d be in for a risky but fascinating mental adventure. We might learn nothing, or we might learn everything. And lucky for us, we might learn something even without realizing it.

A month ago, I remember talking with one of Nesson’s former students. Reminiscing about the class, she rolled her eyes and cringed in disgust. Then I asked if she was happy she’d chosen it. She thought for a moment.

“I think so. You know, now I have so many stories,” she said, and smiled. “And at the end of the day, the stories are all that you have.”

She hated Nesson’s class. She swore it was virtually useless.

And she learned exactly what Nesson may be trying to teach.

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