To celebrate Thanksgiving with family and friends, with an abundance of food and in a house with power, is to have a great deal to be thankful for. The assault of Hurricane Sandy on New Jersey and New York has been a reminder, an all too vivid reminder, of how fragile the elaborate social and technological systems are that maintain us. Some people lost their lives as a result of that fragility. Many more people suffer daily around the world in circumstances that are fragile, or worse, all the time. As we enjoy the return of our normal life, we have plenty of reason to recommit ourselves to building a world in which everyone’s normal life is worth giving thanks for.
Friday, November 23, 2012
Saturday, November 10, 2012
Hot off the presses: “For Martin Chanock: Essays on Law and Society,” Volume 28, Number 2 of the Australian journal Law in Context, available here. I edited this issue, with Heinz Klug and Penelope Andrews, and all of us were very pleased to have the chance to help celebrate the work of Martin Chanock, a remarkable historian of African and South African law, and someone we’ve known and liked for many years.
For those who are interested, the editors’ introduction frames the issue and discusses the eight articles which appear in it, all of which respond in one way or another to Martin’s wide-ranging work. We also quote the eloquent personal tribute to Martin from Jianfu Chen, the former Head of School at La Trobe University School of Law, where Martin is now an Emeritus Professor; Jianfu said that Martin exemplified “decency,” and explained that “the seemingly easy task of being a decent person demands the output of the highest quality of human beings: honesty, integrity, passion, and compassion.” (Page 6)
I also wrote one of the eight articles, “A Bittersweet Heritage: Learning from The Making of South African Legal Culture.” Martin’s book, whose full title is The Making of South African Legal Culture 1902-1936: Fear, Favour and Prejudice (2001), is (I said) a “deeply unsettling …. argument that race was at the heart of the entire enterprise of South African judging, not only the regrettable decisions but also the admirable ones.” (Page 76) I am inclined to think that this argument is correct, provided it is understood as a systemic observation rather than an appraisal of each and every judge – since there were individual, remarkable judges who waged legal battle against apartheid even as they held office under it. In the article I sought first to understand how Chanock’s argument could indeed be true, or more precisely to understand how even upright judges, capable of decisions that helped preserve the claims of human rights through very dark days in South Africa, were nevertheless people of their time and not somehow disconnected from its appalling problems.
But then I asked whether it followed, if Chanock’s appraisal was correct, that the right response today, as South Africa seeks to eliminate the taint of racism in its law and its life, is to disestablish entirely the institution of judging as it was practiced before the end of apartheid. My answer to this question was and is “no.” The old system’s formalism, with its “austere, independent judiciary, engaged in determination of outcomes through the application of a highly rationalised and complex logical process” (page 84), certainly needs reshaping. Its elitist manner should be diminished and its substantive reasoning made to rest on the new egalitarian liberty embodied in the constitution – changes that the Constitution, and the Constitutional Court, have aimed to accomplish. But the fundamental stance of judicial objectivity, the aim of judging “without fear, favour or prejudice,” the commitment to the idea of judges as experts on the law – all these, I urged, are both a kind of formalism and integral to liberty, in South Africa and throughout the world.
I’ll set out here the last few lines of the piece (page 88):
If the courts are to listen, and to help shape a country in which other government actors also listen, then perhaps what South Africa needs is not to beware of formalism but to beware of formulas. Let us seek a constitution of no slogans, in which courts – continuing their historic role of providing a measure of independent judgment about society – deepen their contribution by being as sensitive as possible to the entitlements, and imperfections, of all who come before them.
And the other seven articles are interesting too!
After the network I was watching had declared Obama the winner on election night, I thought I’d see what Fox News had to say. I was pleased to find that they too had called the race for Obama. But Romney had not conceded. Initially that wasn’t startling, but I began to worry that he really might not give up and that we might be in for weeks of wrangling and litigation. We now know that he did consider exactly this course of action – his aides reportedly had their suitcases packed and were ready to depart on waiting planes to pursue challenges to the apparent results. While Romney weighed his options, what was Fox News doing?
The answer is that Fox was growing increasingly impatient. Their anchor interviewed the Fox correspondent at the Romney party in Boston, and pushed him to acknowledge that the delay was more than normal. That wasn’t all. Not much later, the anchor expressed at some length the idea that an essential part of the ritual of elections was the gracious concession, followed by the gracious victory speech, meant to enact the symbolism of bringing us all together after the divisions of the campaign. And, the anchor said, it was time for this to happen. I had the strong sense that the Fox anchor believed that Romney or his aides were watching Fox right then and there, and that the anchor was telling him that it was over. There was even a suggestion, though only a brief one, that Romney hadn’t been such a good candidate in the first place – and, again, now it was time for him to go.
A little while later, Romney went. More precisely, another network (I think it was CBS) reported that Romney had made the required concession phone call to Obama. Then, Fox said, the campaign “pool” reporters got the same news. And then Fox got confirmation too. It’s interesting that Fox seems to have been the last, or at any rate definitely not the first, to be told. Was that because the Romney people were angry about having been lectured to over the airwaves?
I haven’t seen this aspect of the Fox coverage discussed since Tuesday – though I’m not reading the conservative sites whose writers might have been the most likely to actually be watching Fox that night. But this moment when Fox helped give Romney the shove shouldn’t be forgotten.
In October I had the honor of participating in a remarkable day-long conference at UCLA School of Law, organized by Scott Cummings in honor of David Binder, Paul Bergman, Gary Blasi, Sue Gillig and Al Moore, all of whom are retiring or have recently retired from the faculty there. Here’s a version of what I said, focusing on the impact of client-centeredness, the approach to lawyering spearheaded by David Binder and Paul Bergman:
What did client-centeredness teach us? I’ll talk about its conceptual, pedagogical, and normative implications.
There was a time – that is, there still is a time in some circles – when it was often said that skills could not be taught, or learned. What skillful practitioners had was, most likely, acknowledged to be something, but what that something was was ineffable and, really, not that interesting.
It’s integral to the client-centered approach to interviewing and counseling, as I think to all of the skills thinking done by David Binder and Paul Bergman and others who have shaped the UCLA approach, that skills can be analyzed. They have component parts, from the micro level of individual questions or words to overall structures and plans. Others have shared this conviction, but I think no one has been as influential as they have in actually accomplishing this analysis and demonstrating to teachers and students that it made sense.
Moreover, because skills have component parts, it follows that it is possible to assess the performance of these skills by determining whether those component parts were present, and executed correctly, or not. Skills become measurable. Performance becomes subject to evaluation.
As a result, academics have a contribution to make to the profession’s understanding of skills. If skills are to be understood only in the crucible of practice, then only those who are in the arena can speak with authority about what they do. Academics’ role, if they have one, would just be to repeat the distilled lessons imparted to them by practitioners. And of course those lessons might not be very profound, since practitioners might be unable to speak very coherently, however authoritative they are, given what we’ve learned (from Gary Blasi and other students of cognition) about how inaccurate people often are at describing their own thought processes.
But if skills can be analyzed, it becomes entirely possible that academics’ analysis will be superior to that of practitioners – or, more precisely, that academics who are also closely engaged with practice will be able to understand practice in ways that full-time practitioners do not. One of our comparative advantages as academics is time; another is the discipline of academic analysis itself. We have our disadvantages, not least that we may be less deeply immersed in the realities and necessities of practice than those who do it full time, but time and rigor are important assets. Practice becomes an academic subject.
This of course brings me to pedagogy. What can be analyzed and understood by academics can, at least potentially, be taught by them too.
But how? Broadly speaking, perhaps, in the same way that they can be understood. It seems to me that David, Paul and their UCLA colleagues have insisted that if skills can be broken down into their component parts, the way for students to learn them is to start with those component parts, practice them, and gradually combine them in tasks of increasing complexity. I take it to be a corollary of their thinking that – as in the Depositions course about which David, Al Moore and Paul wrote not long ago – the targeted practice and equally targeted feedback possible in simulations are integral. Correspondingly, live-client clinical teaching that actually means to teach particular skills needs to be very carefully targeted as well. Not everyone agrees; some clinicians put more weight on the experience of client representation and the opportunity for reflection as foundations for later learning of more specific skills. But I would say that David and Paul’s pedagogy is implemented, in greater or lesser degree, in “skills” courses around the country. It may have influenced the development of legal writing pedagogy as well, and it may be affecting the ongoing debate over the elements of instruction in the traditional doctrinal classroom too.
I’ll have more to say about pedagogy, but first I need to shift focus.
What I’ve said so far is incomplete in a very important way, because it might suggest that the contributions David and Paul have made are just about the analysis and teaching of technique. But this isn’t true at all, and so now I want to really talk about client-centeredness specifically.
Let me start this way: client-centeredness did not take shape as a response to an academic problem. I believe, which is to say I recall David saying, that client-centeredness was a response to a problem of value: that lawyers had been exercising unjustified power over their clients. To this day the profession's official rules of ethics (I’m thinking of Model Rule 2.1) speak only opaquely about how lawyers and clients should actually interact with each other, but client-centeredness helped us see the play of power - and its potential channeling and restraint - in each moment of interaction between lawyer and client.
In discerning this moment-by-moment potential for just and unjust relations between lawyer and client (just as in articulating techniques for achieving just relations) client-centeredness has been enormously influential. Exactly what client-centeredness calls for has, to be sure, become almost as debated a question as, say, what utilitarian ethical theory requires – as Kate Kruse has demonstrated – but that’s really proof of its influence. Similarly, there are now schools of clinical thought that claim different labels, such as collaborative lawyering, but I think these share a great deal of common ground with client-centeredness. So, for example, Bob Dinerstein, another panelist at the UCLA event, Isabelle Gunning, Kate Kruse, Ann Shalleck, and I recently wrote a book in which we positioned ourselves, in Bob’s happily chosen phrase, as endorsing “engaged client-centeredness.” That phrase reflects what I think is true for all clinicians today, regardless of the particulars of label: we are all client-centered now. And of course it’s also important to see that in this respect as well, David and Paul taught that academics had a distinctive contribution to make to discussions of practice, because they brought not only analytical rigor but normative challenge to the forms of practice that were once prevalent.
I think it’s appropriate to underline here the technique that may be the signature of client-centeredness: active listening. Simply to tell lawyers that a crucial part of engaging with clients was not talking was, of course, of value. But active listening is, as probably everyone here knows, much more than not talking. In fact, active listening involves a certain amount of speaking! The speech, however, is focused on conveying a particular emotional response from the lawyer to the client, a response that incorporates attentive understanding but goes beyond it to express a specific relation and connection to the client: nonjudgmental empathetic regard.
I once wrote an article arguing that sometimes more than empathy is called for between lawyer and client, but empathy, if not always sufficient, is surely always necessary. And empathy is more than a skill; I think it rests on values of acceptance, and ultimately respect, for clients. Respect, in turn, is integral to client-centeredness. The specific techniques of client-centeredness reflect a belief in the capacity of clients to arrive at thoughtful decisions if they are helped to see matters clearly – and a commitment to protecting clients’ right to make those decisions, their right of self-determination.
Just two more points about this norm of respect, this time in connection with pedagogy again: First, one of the important themes of current commentary about legal education suggests that skills and values are separate things and thus prompts concerns about whether success in teaching skills alone is a sufficient preparation for practice. Client-centeredness, however, is an approach to skills that rests on values at every step; if we teach client-centeredness, we are teaching both skills and values. Client-centeredness has a normative kick from the get-go.
Second, the implication of respect for clients is that students also should be treated with respect, and that their capacity to learn should both be recognized and assisted, with the same sort of careful attention to promoting student learning that client-centeredness gives to promoting client decisionmaking. The client-centered lawyer is not passive, nor is the student-centered teacher – they both have a lot of important work to do. But they both do that work as an expression, and a vindication, of respect.
Let me just add my personal thanks to David Binder for his own living of the norm of respect. I first showed up out here at the 1986 Arrowhead conference, where I gave a paper called “Lawyers and Clients” – a title whose rhythm I borrowed from Turgenev’s “Fathers and Sons,” with my father, then dying of Lou Gehrig’s disease, in my mind. Though I admired client-centeredness then, as I do still, in the nature of academic papers I focused on what I found to critique in it. A lesser person would have treated that paper as a reason for distance; David treated it as a basis for what’s become a quarter-century of collegial friendship. I was grateful then, and I’ve only become more grateful since.