Law Professors as Bridges

One of the themes developing in the legal blogoshpere following the nomination of Judge Sotomayor to the Supreme Court concerns the role of the legal professoriate in elevating the debate. (For example.) That prompts me to toss out a link to a recent post by Dean Joseph Kearney on the Marquette Faculty Blog concerning that role more generally. In it, Dean Kearney discusses recent comments by Marquette alum and Brooklyn Law Professor Aaron Twerski and Marquette faculty member (and Prawfsblawg alum) Michael O’Hear regarding the relationship between law faculties, larger university communities, and the bench and bar. O’Hear made his remarks in connection with receiving the Judge Robert Warren Public Service Award from the Eastern District of Wisconsin Bar Association, and explores the many ways in which a law professor can serve as a bridge between many different communities. Twerski likewise spoke in connection with receiving an award – the Robert C. McKay Law Professor Award from the Torts and Insurance Section of the ABA – and advances the view that legal scholars should not fall into the trap of speaking only to one another. I have no grand thoughts of my own to add. Only the suggestion that these brief commentaries are worth a read and that the points they raise are, as always, things worth giving thought as we proceed on our scholarly journeys.

Empathy & Law

We now have a fair number of posts around the legal blogosphere speaking to the question of empathy and judging, prompted by President Obama's remark that empathy is critical to judging and thus a capacity desirable in a candidate to replace Justice Souter on the Supreme Court (as we just learned, the President has nominated Judge Sonia Sotomayor of the United States Court of Appeals for the Second Circuit). Empathy has at least a family resemblance to such emotions as pity, mercy, compassion and sympathy. It's important to entertain the possibility that empathy-based altruism might conflict with the desire to uphold a moral principle of justice inasmuch as the former can be partial or myopic, as when Western Buddhists identify with the plight of Tibetans inside and outside of Tibet but take no notice of the poverty and misery of many individuals in, say, Haiti, or when an object of our special emotional concern effectively crowds out moral attention toward those in greatest need.

Below I've selected the posts I've found interesting for one reason or another (a couple of which I commented on). I've also provided a handful of articles and books that provide a nice introduction to the concept of empathy.

At PrawfsBlawg, Paul Horwitz asks, "Is Empathy Lawless?"

Our own Robert Justin Lipkin poses a broader question: "What's Empathy Got To Do With It?" and then replies to the right side of Mirabeau's "geography of the Assembly": "Is 'Empathy' a Code Word for Judicial Liberalism?"

Daniel Solove of Concurring Opinions: "What Is Empathy? Obama’s Philosophy of Law and the Next Supreme Court Justice"

Michael Dorf on "Empathy and Justice"

My favorite legal ethicist, Monroe Freedman, "On Empathy in Judging"

Douglas Berman of Sentencing Law and Policy fame: "Prosecutorial power, victims rights, sentencing judgments and judicial empathy"

Last but not least, Susan Bandes at Balkinization illustrates empathy by way of the oral argument in Safford Unified School District v. Redding: "Why is Empathy Controversial? Or Liberal?"

Selected Reading:

• Bandes, Susan A. "Empathetic Judging and the Rule of Law," (July 8, 2009). Cardozo Law Review, 2009: 103. Available: http://ssrn.com/abstract=1431230
• Barnes, Allison and Paul Thagard, "Empathy and Analogy," Dialogue: Canadian Philosophical Review, 36 (1997): 705-720. [Although I don't share their philosophy of mind assumptions, there's much of interest in this article.]
• Goldie, Peter. The Emotions: A Philosophical Exploration. New York: Oxford University Press, 2000. See "empathy" in the index.
• Nussbaum, Martha C. Upheavals of Thought: The Intelligence of Emotions. Cambridge, UK: Cambridge University Press, 2001. Again, see the index, but especially pp. 327-335.
• Slote, Michael. The Ethics of Care and Empathy. New York: Routledge, 2007.
• Solomon, Robert C. True to Our Feelings: What Our Emotions Are Really Telling Us. New York: Oxford University Press, 2007: 66-71.
• Stueber, Karsten R. Rediscovering Empathy: Agency, Folk Psychology, and the Human Sciences. Cambridge, MA: MIT Press, 2006.
• Stueber, Karsten, "Empathy," The Stanford Encyclopedia of Philosophy (Fall 2008 Edition), Edward N. Zalta (ed.), URL = http://plato.stanford.edu/archives/fall2008/entries/empathy/

Update: Once again, Michael Hiltzik of the Los Angeles Times has a column on point, this time explaining how the august Oliver Wendell Holmes demonstrated a disturbing lack of empathy in Buck v. Bell, 274 U.S. 200 (1927) :

[....] Holmes, perhaps the most revered of all Supreme Court justices, was always proud of his opinion in Buck vs. Bell, which upheld a Virginia law allowing the forced sterilization of "mental defectives." Yet the terse ruling proclaims, in each of its four chilling paragraphs, the narrow elitism of his personal life experience. And its consequence was tens of thousands of ruined lives over the next half-century. [....]

Is the law a set of immutable principles brought to earth on, say, the wings of heavenly messengers to be decoded robotically by human agents distinguished only by their power of intellect? Or is it a living institution, evolving with society, incorporating an ever broader and deeper definition of American values as the definition of "American" itself becomes broader and deeper? In other words, did Justice Holmes' opinion in Buck vs. Bell reflect basic legal principles or establishment culture?

The case of Carrie Buck arose at a time when the pseudo-science of eugenics had achieved broad currency. Eugenics held that intelligence was an inherited trait, and that the "feeble-minded" or "socially inadequate" should therefore be forcibly sterilized to preserve the human race. As the historian William E. Leuchtenburg observed in a 1989 essay, the target group encompassed the "wayward," the tubercular, the "blind, deaf and deformed," orphans, paupers and the homeless. Eugenicists seemed wholly untroubled by "the transparent class bias, not to mention the heartlessness toward the handicapped, in this classification scheme," he wrote.

When opponents of Virginia's sterilization law brought her case to the Supreme Court, Buck was 18 and a resident of the State Colony for Epileptics and Feeble Minded, where Superintendent J.H. Bell held the authority to order the sterilization of his wards---"under careful safeguard" of their due process rights, Holmes would write.

Holmes accepted at face value the state's contention that Buck was "a feeble-minded white woman, . . . the daughter of a feeble-minded mother in the same institution, and the mother of an illegitimate feeble-minded child." Upholding society's interest in avoiding the "transmission of insanity, imbecility, etc.," he produced one of the most infamous sentences in the annals of the court. "Three generations of imbeciles," he wrote, "are enough."

("Imbecile" was then a technical classification in eugenics -- a step above "idiot" and below "moron.")

Might the outcome of Buck vs. Bell have been different were the court not monolithic? Leuchtenburg thinks so. "It's hard to believe that one or two women justices might not have made a difference," he told me from his home near the University of North Carolina, where he is a professor emeritus. "They might have made the other justices confront what was at issue." [....]

Certainly Holmes' background showed. His upbringing as the son of an eminent Boston physician, his Harvard education and experience as a commercial lawyer arguably blinded him to the humanity of those whose lives fell outside the scope of his experience.

What he missed in his eagerness to keep Carrie Buck from procreating was the shallowness of the state's judgment of her. There was no evidence of her or her mother's "feeble-mindedness" -- just of an irregular lifestyle that elicited "the contempt of the well-off and well-bred," as one of her champions wrote.

A lawyer who met her later found her reading a newspaper and helping a friend with a crossword puzzle. As for her child, who was seven months old when a social worker condemned her for having a "look . . . that is not quite normal," she maintained adequate grades in school but died at age 8.

We can't condemn Holmes alone for the travesty of Buck vs. Bell. It was an 8-1 opinion, with two of the court's outstanding liberals, Louis D. Brandeis and Harlan F. Stone, acquiescing in silence. Conservative Justice Pierce Butler issued the lone unwritten dissent.

We can, however, take it as a lesson in how time and diversity can transform even an institution as precedent-driven as the Supreme Court. It's impossible to say how Sonia Sotomayor's personal history, much less her "empathy," will play out on the court, assuming she's confirmed. At Berkeley, she didn't predict that a Latina justice would steer the court in any particular direction. And no matter where they stand on the political spectrum, justices have a way of confounding the expectations of their presidential sponsors.

But to deny that the character and experience of judges helps to make law is foolish. Virginia sterilized more than 7,500 men and women before ceasing the practice in 1979 -- second only to California, where 20,000 operations were performed. Nationwide, the toll was 60,000. How many would have been saved, one wonders, had the court showed a little "empathy"?

Post-Academic Science

In a comment to a post aptly titled "Mercketing" by Frank Pasquale at Concurring Opinions, I attempted to place his discussion of the "the latest twist in the sorry saga of modern drug marketing" in the bigger picture of "post-academic science" as analyzed so thoroughly and convincingly by John Ziman in Real Science: What It Is, and What It Means (2000). What follows is a summary characterization of same, and I thought it of sufficient interest to cross-post here:

What has happened in this instance is symptomatic of the myriad problems that are part and parcel of “post-academic science” in general for, in John Ziman’s words, “In less than a generation we have witnessed a radical, irreversible, worldwide transformation in the way that science is organized, managed and performed.” For a detailed exposition of precisely what constitutes post-academic science, one should consult Ziman’s Real Science: What It Is, and What It Means (2000), but permit me here to highlight a few features he documents (largely those that make for discontinuity with its predecessor, namely, academic science, thus I’m ignoring, unlike Ziman, those elements which make for continuity):

…[P]ost-academic science is under pressure to give more obvious value for money. Many features of the new mode of knowledge production have arisen ‘in the context of application’–that is, in the course of research on technological, environmental, medical or societal problems. More generally, science is being pressed into the service of the nation as the driving force in a national R&D system, a wealth-creating techno-scientific motor for the whole economy.

…[A] norm of utility is being injected into every joint of the research culture. Discoveries are evaluated commercially before they have been validated scientifically. [....] Scientists themselves are seldom in a good position to assess the utility of their work, so expert peer review is enlarged into ‘merit review’ by non-specialist ‘users.’

…[A]s researchers become more dependent on project grants, the ‘Matthew Effect’ is enhanced. Competition for real money takes precedence over competition for scientific credibility as the driving force of science. With so many researchers relying completely on research grants or contracts for their personal livelihood, winning these becomes an end in itself. Research groups are transformed into small business enterprises. The metaphorical forum of scientific opinion is turned into an actual market in research services.

…[T]he social organization of academic science can be described in terms of…Mertonian norms [i.e., Communalism, Universalism, Disinterestedness, Originality, and Scepticism, or CUDOS]. This description is, of course, highly idealized, but not completely unrealistic. Industrial science, by contrast, contravenes these norms at almost every point. [....] Very schematically, industrial science is Proprietary, Local, Authoritarian, Commissioned, and Expert. It produces proprietary knowledge that is not necessarily made public. It is focused on local technical problems rather than on general understanding. Industrial researchers act under managerial authority rather than as individuals. Their research is commissioned to achieve practical goals, rather than undertaken in the pursuit of knowledge. They are employed as expert problem-solvers, rather than for their personal creativity. It is no accident, moreover, that these attributes spell out ‘PLACE.’ That, rather than ‘CUDOS,’ is what you get for doing good industrial science. As Ziman elsewhere notes, the development of much closer relationships between academia and industry is one of the major features of the transition from academic to post-academic science.

Post-academic science is organized on market principles. One of the consequences of this is that the post-academic research project is subordinate to the sphere of influence of bodies with the corresponding material interests. Thus, for example, basic research findings in molecular genetics have potential applications in plant breeding. Agrochemical firms and farmers are therefore deemed to have a legitimate right to influence the course of this research, from the formulation of projects to the interpretation of outcomes.

In general…post-academic natural scientists can usually be trusted to tell ‘nothing but the truth,’ on matters about which they are knowledgeable. But unlike academic scientists, they are not bound to tell ‘the whole truth.’ They are often prevented, in the interests of their employers, clients or patrons, from revealing discoveries or expressing doubts that would put a very different complexion on their testimony. The meaning of what is said is secretly undermined by what is not said. This proprietorial attitude to the results of research has become so familiar that we have forgotten how damaging it is to the credibility of scientists and their institutions. This is one result of the fact that ‘the context of application’ is largely defined by the material interests of bodies outside science.

For better and worse, the problems that activate post-academic science are often deeply rooted in history, and are typically ‘owned’ by well-established institutions, such as pharmaceutical companies, arms procurement agencies, associations of engineering and medical practitioners, environmental protection commissions, economic advisory councils, and so on. This elaborate social structure is associated with an equally elaborate epistemic structure, where the ‘problem areas’ are differentiated much more arbitrarily, and are often narrow and specialized [despite the well-known fact that many of the issues tackled by science and society demand a 'transdisciplinary' approach], than they are in academic science.

In short, we have increasing subordination to corporate and political interests that do not put a high value on the production of knowledge for the benefit of society at large.

Addendum: I noticed after I posted this that today happens to be Ziman's birthday!

Update: A nice illustration of one of the differences between academic and post-academic science as the distinction is drawn by Ziman is found in this column by Michael Hiltzik from the Business section of the Los Angeles Times:

"Investor-funded research could bring march of science to a standstill." From the article:

...[I]n the biotech world, where millions or even billions of dollars in profits beckon to those who can assert ownership of important discoveries, good intentions and purely scientific goals don't matter like they used to. Access by basic researchers to the essential building blocks of biomedical advances has been shrinking for years, thanks to a land rush by entrepreneurs wielding patent portfolios.

As the conflict between CHOC and StemCells suggests, the penetration of private investment concerns into what used to be largely academic pastures threatens to hobble, rather than hasten, the march of science. The harvest may be secrecy, delay and the directing of research only toward developments that promise quick financial returns.

In the stem cell field, "the pendulum may have swung too far" toward private enterprise and away from open research, says Gregory D. Graff, a patent expert at Colorado State University.

What Is Islam?

If you've ever asked yourself, "What is Islam?"--or some variation thereof, you can begin to answer that question with the aid of a new publication to which yours truly has contributed: Encyclopedia of Islam, Juan E. Campo, ed. (2009). This one volume encyclopedia is available in both hardbound and paperback editions and is at once comprehensive and affordable. It is meant to be accessible to the general reader with little or no previous knowledge of this religious worldview. An accurate and succinct introduction is found on the back cover:

Encyclopedia of Islam is part of a set of encyclopedias on the religions of the world that emphasize the living faiths and their historical and social backgrounds. In about 550 A-Z entries, this encyclopedia provides easy access to the theological concepts, personalities, historical events, institutions, and movements that helped to shape Islam and the way it is practiced today.

[It] is designed to meet the demand for accurate information about Islam, particularly with regard to it place in the contemporary world. A wide range of entries covers Islam's historical origins, major traditions, and local customs, as well as the interrelationships between Islam and other religions and the customs and societies of civilizations that have been influenced by Islam.

A comprehensive introduction, further readings, cross-references, and a chronology, in addition to photographs, a general bibliography, and a thorough index, make Encyclopedia of Islam an easy-to-to use and essential reference for students, researchers, and general readers.

Juan Campo, one of my former teachers and now a dear friend, is an associate professor of Religious Studies at the University of California, Santa Barbara.

I contributed the entries on Civil Society; Constitutionalism; Constitutional Revolution (Iran); Democracy; Abu Nasr al-Farabi (early Islamic philosopher); Justice; Mu‘tazilah ('rationalist' school of Islamic theology); Philosophy; and jinni (co-authored with editor).

Please purchase a copy and recommend it to your local and school libraries.

Happy May Day (or International Workers' Day) !!!

Happy May Day everyone!

You can read about this holiday for workers in a post from last year on this date.

An early draft of my bibliography for "the world of work and labor law," posted as part of the PrawfsBlawg Research Canons project several years ago, is available here. Finding a book or two on the list you'll commit to reading would be a nice way to celebrate, especially if you're unable to join in any festive celebrations or workers' protest marches.