Saturday, November 28, 2009
On being immoderate
Watching the John Adams miniseries (I know, long after it came out) -- I'm surprised to realize something that of course was true: the people who made the American revolution were not moderates. It was hard, really hard, for many of the colonists to decide they wished to be independent. Doing so was full of risk, not least the danger of being hung for treason. For many the natural thing, which the new Congress tried in 1775, was to petition the king for a redress of grievances. British rejection of these efforts gradually pushed people towards independence. But so did men like John Adams, who argued passionately in favor of tangible support for the Massachusetts militia in its early battles with the British. Abigail Adams was equally committed, though she could express her desires with more diplomacy than John sometimes managed. But these are not, as a group, the takers of sober counsel, the careful managers of complex situations. These were revolutionaries. It makes one remember that wisdom and tempered judgment are not always the path to the world we want. Perhaps that is because few people achieve expertise in changing the world; most of us, as we age, become experts in managing in the world as it is. So it's the non-experts, full of passion and dreaming of a world that does not yet exist, who can turn the old order over.
Tuesday, November 17, 2009
"The Hemingses of Monticello"
Fresh from completing my colleague Annette Gordon-Reed's powerful book The Hemingses of Monticello, a book that deserved to win prizes and did:
This book succeeds at the same time in making the evil of slavery palpable and in presenting us with a Jefferson who, within the bounds of the slave system from which he massively profited, is not a bad man. In his relations with the Hemingses -- Sally, his mistress, and the many other members of the same family who lived in slavery at Monticello -- he seems to have always sought to avoid distress and disturbance. He wanted the work, the service and the comfort his slaves provided him, but he wanted the slaves to feel content with their lot too. He was a man who could persuade Sally and her brother James to return with him from France, where they could have claimed their freedom, to slavery in Virginia -- and he honored the promise he made to Sally in the process, that he would free the children they had together. He created an outpost of relative contentment within what he understood was the tyranny of slavery, though this outpost did not survive him. He failed to die a solvent man, and the results of that insolvency were harsh for his white descendants and harsher for his slaves, who were sold to pay the debts of his estate.
What's appalling is not that he mistreated his slaves, for it appears he did not abuse them (though his overseers may have, especially with slaves in less privileged spots than Monticello itself). Rather, what's appalling is the sheer power he exerted over them. He arranged a family of slaves around him for his comfort, shaping many of them from their childhoods to prepare for the roles he envisioned, and as Annette Gordon-Reed emphasizes, they could not leave. Most unnerving of all, he was related to the people he owned. It is hard, as Annette also emphasizes, even to conceive of the nature of family within slavery, from our perspective today, but it is necessary to try. The blood relations between Jefferson's family and the Hemingses were elaborate -- Sally was the half-sister of Jefferson's deceased white wife -- but of course the plainest blood relation was with the children he had with Sally: Jefferson owned his children.
The Jefferson who emerges from these pages is not an incomprehensible assembly of self-contradictions, nor a repellent human being. It seems likely that the Hemingses genuinely cared for him, at the same time that they had to reckon with his sweeping power over them. He is, in a particular sense, a moral monster -- a man with personal sensitivity towards, and moral principles about, others, who lived in and lived off a vile social system.
This book succeeds at the same time in making the evil of slavery palpable and in presenting us with a Jefferson who, within the bounds of the slave system from which he massively profited, is not a bad man. In his relations with the Hemingses -- Sally, his mistress, and the many other members of the same family who lived in slavery at Monticello -- he seems to have always sought to avoid distress and disturbance. He wanted the work, the service and the comfort his slaves provided him, but he wanted the slaves to feel content with their lot too. He was a man who could persuade Sally and her brother James to return with him from France, where they could have claimed their freedom, to slavery in Virginia -- and he honored the promise he made to Sally in the process, that he would free the children they had together. He created an outpost of relative contentment within what he understood was the tyranny of slavery, though this outpost did not survive him. He failed to die a solvent man, and the results of that insolvency were harsh for his white descendants and harsher for his slaves, who were sold to pay the debts of his estate.
What's appalling is not that he mistreated his slaves, for it appears he did not abuse them (though his overseers may have, especially with slaves in less privileged spots than Monticello itself). Rather, what's appalling is the sheer power he exerted over them. He arranged a family of slaves around him for his comfort, shaping many of them from their childhoods to prepare for the roles he envisioned, and as Annette Gordon-Reed emphasizes, they could not leave. Most unnerving of all, he was related to the people he owned. It is hard, as Annette also emphasizes, even to conceive of the nature of family within slavery, from our perspective today, but it is necessary to try. The blood relations between Jefferson's family and the Hemingses were elaborate -- Sally was the half-sister of Jefferson's deceased white wife -- but of course the plainest blood relation was with the children he had with Sally: Jefferson owned his children.
The Jefferson who emerges from these pages is not an incomprehensible assembly of self-contradictions, nor a repellent human being. It seems likely that the Hemingses genuinely cared for him, at the same time that they had to reckon with his sweeping power over them. He is, in a particular sense, a moral monster -- a man with personal sensitivity towards, and moral principles about, others, who lived in and lived off a vile social system.
Monday, November 2, 2009
Merafong Demarcation Forum -- participation and rationality in South African legislation
Merafong Demarcation Forum, decided in June 2008 by South Africa's Constitutional Court, continues that Court's effort to decide how closely it should regulate South Africa's legislative processes. It raises some profound questions about how democratic legislatures should function, and how courts should shape their functioning -- questions I want to identify but don't expect to fully resolve.
The case grows out of Parliament's enactment of legislation to eliminate what were called cross-border municipalities -- local government units whose boundaries crossed the lines between provinces (as if, say, New York City was located partly in New York State and partly in New Jersey). It's probably not surprising that these local governments proved administratively problematic, and no one seems to have disagreed with the general idea that they should be eliminated. The problem was, which single province should a two-province municipality be put in? Draft legislation before Parliament said that Merafong, till then partly in Gauteng province and partly in North West province, should become completely a part of North West. The great majority of the residents of Merafong seem to have felt that they should be in Gauteng (the province in which two of South Africa's leading cities, Johannesburg and Tshwane [formerly Pretoria] are located), rather than in the more rural, less wealthy North West. They said so at public hearings and in demonstrations. (See para 33 of Justice van der Westhuizen's judgment, and para 135 of Deputy Chief Justice Moseneke's dissent).
The public hearings were held by the legislatures of Gauteng and North West provinces, to meet their duty -- established by earlier Constitutional Court decisions -- to provide an opportunity for public participation before the provinces cast their votes on the proposed legislation in the National Council of Provinces, the upper (and less powerful) house of the national legislature. This obligation had been found in section 118(1)(a) of the Constitution, which provides that: "A provincial legislature must -- (a) facilitate public involvement in the legislative and other processes of the legislature and its committees." As a result of the public opposition expressed at the hearings, the Gauteng legislature decided to seek an amendment of the pending national legislation to keep Merafong in Gauteng. Unfortunately, it turned out -- so the negotiators learned -- that they could not propose an amendment and that their only option, if they wanted to insist on their view about where Merafong should be, would be to exercise a provincial veto on this part of the new bill. This the delegates did not want to do and so, in the end, late in 2005, Gauteng decided to vote for the bill, including its provision moving Merafong to North West. (See paras 36-37.)
These events raised two constitutional questions. One was whether the Gauteng provincial legislature, when it decided not to do what it had learned from its public hearing that the people wanted, thereby necessarily violated its duty to provide proper opportunity for public input into the legislative process. The answer was no. Every member of the Constitutional Court agreed, in effect, that legislatures do not have to do what the people have told them they want. This decision puts an outer boundary on popular influence on legislative choices outside of elections, and says that South African legislatures, though they provide for participation, are not forums for direct democracy. It is important, and also seems right. Representatives need to be able to make judgments, in light of popular views but not always bounded by them; otherwise, the nation loses the benefit of the special expertise that its legislators hopefully acquire about the affairs of the state.
The only member of the court who felt that the public participation requirement of the constitution had not been met was Justice Sachs. He didn't suggest, any more than the other members of the Court, that the popular will expressed at the hearings had to rule. (See para 293 of his judgment.) But he did maintain that when the legislature changed its position, it had a duty to "report back" to the community about that change.
The effect of a report back would presumably have been to galvanize community opposition, and so to make it more likely that the legislature would have felt more pressure to defer to community wishes and/or to find some alternative, previously overlooked, to defuse the crisis. Justice Sachs' position might have led the politicians to new insights; it might also have prolonged the decisionmaking process and placed legislators in acutely difficult political situations. Justice van der Westhuizen argued, however, that "[t]he possibility of the Portfolio Committee being persuaded anew by views of which it was already aware, is indeed small." (para 59) Justice Sachs was more optimistic (para 299), but of course we will never know for sure.
Would Justice Sachs' alternative have been better? The aftermath of this decision was not good; one article reports that the result of the decision to move Merafong was that parts of Merafong were "reduced ... to chaos," and that "protests have continued virtually unabated." In this case, at least, it seems arguable that anything that postponed or altered this decision would have been desirable as a practical matter. Whether his approach would have been better for Parliamentary process in general is a much harder question, taking us into a field -- the design of legislative bodies -- that no doubt calls for its own expertise.
Perhaps an even harder question -- and one more within my range -- is whether this interpretation of the relevant constitutional language was the best one. That question isn't just about whether a legislative process including not only required public hearings but also "report backs" would be preferable to one where legislators are freer to make decisions on their own. It's also about whether the "report back" system should be read into the constitution if -- as seems to me likely -- it was not a system the constitution's drafters actually had in mind. It is not illegitimate to find in a constitution meaning that the drafters did not specifically intend (or so I would argue -- the point can be debated), but it is possible that on a point of political process as debatable as this one, a judge should be disposed not to innovate. So the other members of the Constitutional Court appear to have felt, at least on this score.
But those abstractions of constitutional theory may miss the most important point: that political life in South Africa has proved less responsive and less responsible than many of those who shaped the new constitution hoped, and therefore, perhaps, what the drafters did not think of is exactly what might now be needed. Should the justices, faced with problems the drafters did not foresee, seek to honor the drafters' broad intentions (for democracy, for justice) by finding solutions to those problems in constitutional language not specifically meant to require those results?
This is another very big question. But in this particular case it seems to have an answer. In 2009, Parliament approved another amendment to South Africa's constitution, this one returning Merafong to Gauteng province. It took years, but not an infinite number of years -- and in the end the political process corrected its own mistake. It's surely preferable, in principle, for politicians to work their own way clean, rather than to have the country come to expect only the courts to stand for principle. Here, that is what happened.
Sort of. Because that self-cleansing came only after the case had gone to the Constitutional Court, where 4 of the 10 justices would have struck down what Parliament had done. Perhaps the dissents (I've focused here only on one, by Justice Sachs) helped push the government to correct a decision that seems to have profoundly unwise. So even if the majority justices were right to uphold the constitutionality of that decision, the dissenters may also have helped cause it to be repealed.
The case grows out of Parliament's enactment of legislation to eliminate what were called cross-border municipalities -- local government units whose boundaries crossed the lines between provinces (as if, say, New York City was located partly in New York State and partly in New Jersey). It's probably not surprising that these local governments proved administratively problematic, and no one seems to have disagreed with the general idea that they should be eliminated. The problem was, which single province should a two-province municipality be put in? Draft legislation before Parliament said that Merafong, till then partly in Gauteng province and partly in North West province, should become completely a part of North West. The great majority of the residents of Merafong seem to have felt that they should be in Gauteng (the province in which two of South Africa's leading cities, Johannesburg and Tshwane [formerly Pretoria] are located), rather than in the more rural, less wealthy North West. They said so at public hearings and in demonstrations. (See para 33 of Justice van der Westhuizen's judgment, and para 135 of Deputy Chief Justice Moseneke's dissent).
The public hearings were held by the legislatures of Gauteng and North West provinces, to meet their duty -- established by earlier Constitutional Court decisions -- to provide an opportunity for public participation before the provinces cast their votes on the proposed legislation in the National Council of Provinces, the upper (and less powerful) house of the national legislature. This obligation had been found in section 118(1)(a) of the Constitution, which provides that: "A provincial legislature must -- (a) facilitate public involvement in the legislative and other processes of the legislature and its committees." As a result of the public opposition expressed at the hearings, the Gauteng legislature decided to seek an amendment of the pending national legislation to keep Merafong in Gauteng. Unfortunately, it turned out -- so the negotiators learned -- that they could not propose an amendment and that their only option, if they wanted to insist on their view about where Merafong should be, would be to exercise a provincial veto on this part of the new bill. This the delegates did not want to do and so, in the end, late in 2005, Gauteng decided to vote for the bill, including its provision moving Merafong to North West. (See paras 36-37.)
These events raised two constitutional questions. One was whether the Gauteng provincial legislature, when it decided not to do what it had learned from its public hearing that the people wanted, thereby necessarily violated its duty to provide proper opportunity for public input into the legislative process. The answer was no. Every member of the Constitutional Court agreed, in effect, that legislatures do not have to do what the people have told them they want. This decision puts an outer boundary on popular influence on legislative choices outside of elections, and says that South African legislatures, though they provide for participation, are not forums for direct democracy. It is important, and also seems right. Representatives need to be able to make judgments, in light of popular views but not always bounded by them; otherwise, the nation loses the benefit of the special expertise that its legislators hopefully acquire about the affairs of the state.
The only member of the court who felt that the public participation requirement of the constitution had not been met was Justice Sachs. He didn't suggest, any more than the other members of the Court, that the popular will expressed at the hearings had to rule. (See para 293 of his judgment.) But he did maintain that when the legislature changed its position, it had a duty to "report back" to the community about that change.
The effect of a report back would presumably have been to galvanize community opposition, and so to make it more likely that the legislature would have felt more pressure to defer to community wishes and/or to find some alternative, previously overlooked, to defuse the crisis. Justice Sachs' position might have led the politicians to new insights; it might also have prolonged the decisionmaking process and placed legislators in acutely difficult political situations. Justice van der Westhuizen argued, however, that "[t]he possibility of the Portfolio Committee being persuaded anew by views of which it was already aware, is indeed small." (para 59) Justice Sachs was more optimistic (para 299), but of course we will never know for sure.
Would Justice Sachs' alternative have been better? The aftermath of this decision was not good; one article reports that the result of the decision to move Merafong was that parts of Merafong were "reduced ... to chaos," and that "protests have continued virtually unabated." In this case, at least, it seems arguable that anything that postponed or altered this decision would have been desirable as a practical matter. Whether his approach would have been better for Parliamentary process in general is a much harder question, taking us into a field -- the design of legislative bodies -- that no doubt calls for its own expertise.
Perhaps an even harder question -- and one more within my range -- is whether this interpretation of the relevant constitutional language was the best one. That question isn't just about whether a legislative process including not only required public hearings but also "report backs" would be preferable to one where legislators are freer to make decisions on their own. It's also about whether the "report back" system should be read into the constitution if -- as seems to me likely -- it was not a system the constitution's drafters actually had in mind. It is not illegitimate to find in a constitution meaning that the drafters did not specifically intend (or so I would argue -- the point can be debated), but it is possible that on a point of political process as debatable as this one, a judge should be disposed not to innovate. So the other members of the Constitutional Court appear to have felt, at least on this score.
But those abstractions of constitutional theory may miss the most important point: that political life in South Africa has proved less responsive and less responsible than many of those who shaped the new constitution hoped, and therefore, perhaps, what the drafters did not think of is exactly what might now be needed. Should the justices, faced with problems the drafters did not foresee, seek to honor the drafters' broad intentions (for democracy, for justice) by finding solutions to those problems in constitutional language not specifically meant to require those results?
This is another very big question. But in this particular case it seems to have an answer. In 2009, Parliament approved another amendment to South Africa's constitution, this one returning Merafong to Gauteng province. It took years, but not an infinite number of years -- and in the end the political process corrected its own mistake. It's surely preferable, in principle, for politicians to work their own way clean, rather than to have the country come to expect only the courts to stand for principle. Here, that is what happened.
Sort of. Because that self-cleansing came only after the case had gone to the Constitutional Court, where 4 of the 10 justices would have struck down what Parliament had done. Perhaps the dissents (I've focused here only on one, by Justice Sachs) helped push the government to correct a decision that seems to have profoundly unwise. So even if the majority justices were right to uphold the constitutionality of that decision, the dissenters may also have helped cause it to be repealed.
Saturday, October 31, 2009
Ossian Sweet and the power of client narrative
We often worry that clients' voice is lost in the process of representation. The story that gets told, though not false, is a story keyed to the elements of the case, or to some other persuasive need, rather than to the client's understanding of the narrative of his or her life. But my co-author Ann Shalleck, in her chapter on "Narrative Theory and Narrative Practices" in our new book (Lawyers and Clients: Critical Issues in Interviewing and Counseling (2009) -- see my previous post for the book announcement) emphasizes that clients' own narratives change over time, and in part as a result of the influence of the lawyer. Sometimes those changes are benign. Sometimes they may not be.
In his fascinating book Arc of Justice: A Saga of Race, Civil Rights, and Murder in the Jazz Age (2004), Kevin Boyle tells the story of Dr. Ossian Sweet and his trial. Dr. Sweet was an African American physician, living in Detroit, who in 1925 made the decision to move with his family into a house in an all-white neighborhood. The results were disastrous. A white crowd swelled around his house on each of his first two nights in it; the second night, members of the crowd began hurling stones at the house, and as the stones fell someone (or someones) in the house fired into the crowd, wounding one person and killing another. Dr. Sweet and the 10 other people in the house were all arrested and charged with murder.
As Boyle tells the story, Dr. Sweet emerges as a conflicted man, who was almost overcome by anxiety as the mob surrounded his house. He seems not so much to have decided to risk everything for the sake of his right to purchase this house as to have been unable to back down from the purchase as the extent of the peril he and his family faced became clear. None of this is to his discredit; the fact is that he did exercise his right to purchase a house anywhere he could afford, and he determined to defend the house against attack, and he did so. (He did not, however, fire any shots himself.)
Boyle tells us that after their arrests, Dr. Sweet and most of the others initially told the authorities, falsely, that they weren't in the house that night to defend it but rather were just waiting for dinner when the trouble began. (Boyle, at 173-74.) Apparently it was Clarence Darrow, perhaps accompanied by Walter White of the NAACP (which had made this case a cause), who persuaded the defendants to tell the story more fully. In Boyle's words:
"For the longest time, Darrow sat with Ossian and the others, listening to them recount the evening on Garland Avenue, gently pressing them to admit to the shooting rather than cling to the unlikely stories they had concocted the night of the police interrogation, quietly reassuring them that the case could be won even if they had fired into the crowd, bridging the chasm between the famous white lawyer and ten desperately afraid colored men with his remarkable gift for empathy." (244)
Along the way, however, Dr. Sweet's understanding of his own story changed. "[H]e began to see the road he had followed to Garland Avenue as much straighter, his steps more purposeful, than they had actually been." (247) Perhaps Dr. Sweet was influenced by his sense of what a jury might respond to, and perhaps he was moved by the praise that his supporters offered for him. I don't mean that he falsified any concrete fact of his story, just that he came to see it as a story of his own manifest heroism.
That may have been fine for the two trials, at the first of which Dr. Sweet responded to cross-examination "with a dignity so fierce it was inspiring" (290), and at the second of which "he seemed to straighten in his seat as the questions were asked.... Now the fear was gone, replaced by unbending pride, the terrified little boy of Bartow given way to a New Negro willing to risk everything in defense of his family, his home, and his principles." (327-28) And the trials ultimately ended in complete legal victory for the defendants.
Unfortunately, it was not fine for Dr. Sweet as a person. Between the two trials, Dr. Sweet and his wife, Gladys (also a defendant), went on a tour planned by the NAACP. A pastor accompanying them said that "Each day he [Dr. Sweet] got more egotistic." (306). The same man said that "I averted no fewer than four scenes ... [and] abated five quarrels between the Sweets." (306-07)
Perhaps all would have been well in time. But as it turned out, Gladys Sweet and the Sweets' one-year-old daughter Iva contracted tuberculosis, very possibly from the jail in which they were confined after the arrests, and both died of it. (344) Dr. Sweet lived in the house he had bought for many years, but his life went awry in multiple ways, and at the age of 64 he shot and killed himself. (344-46) Would he have handled better the challenges he faced if he had not come to see himself, at one point in his life, as a more unambiguously heroic man than he (or almost anyone else) could be? We don't know. But the book leaves the strong impression that the case, the cause, became so great that it changed even the individuals whose cause it was, and not entirely for the better.
*******************
For me, reading Arc of Justice raised another, more personal question. In 1925, my grandfather, James Ellmann, was a young attorney practicing in Detroit and raising a family along with his wife Jean. He would go on to be active in civil rights issues, but the first trace of that activity that I've found so far on the web is in the mid-late 1930s. There's no sign that he was involved in any way in the Sweet case. I can't help but think, though, that he must have been inspired by this celebrated, dramatic case, involving local people and the most prominent lawyer of the age. So I hope that one of the effects of this case -- which brought Dr. Sweet freedom but not happiness, and helped launch the NAACP's legal challenges to racism even while Northern cities' residential segregation intensified (342-43) -- was to play some part in my grandfather's political development, and so my father's, and so mine.
In his fascinating book Arc of Justice: A Saga of Race, Civil Rights, and Murder in the Jazz Age (2004), Kevin Boyle tells the story of Dr. Ossian Sweet and his trial. Dr. Sweet was an African American physician, living in Detroit, who in 1925 made the decision to move with his family into a house in an all-white neighborhood. The results were disastrous. A white crowd swelled around his house on each of his first two nights in it; the second night, members of the crowd began hurling stones at the house, and as the stones fell someone (or someones) in the house fired into the crowd, wounding one person and killing another. Dr. Sweet and the 10 other people in the house were all arrested and charged with murder.
As Boyle tells the story, Dr. Sweet emerges as a conflicted man, who was almost overcome by anxiety as the mob surrounded his house. He seems not so much to have decided to risk everything for the sake of his right to purchase this house as to have been unable to back down from the purchase as the extent of the peril he and his family faced became clear. None of this is to his discredit; the fact is that he did exercise his right to purchase a house anywhere he could afford, and he determined to defend the house against attack, and he did so. (He did not, however, fire any shots himself.)
Boyle tells us that after their arrests, Dr. Sweet and most of the others initially told the authorities, falsely, that they weren't in the house that night to defend it but rather were just waiting for dinner when the trouble began. (Boyle, at 173-74.) Apparently it was Clarence Darrow, perhaps accompanied by Walter White of the NAACP (which had made this case a cause), who persuaded the defendants to tell the story more fully. In Boyle's words:
"For the longest time, Darrow sat with Ossian and the others, listening to them recount the evening on Garland Avenue, gently pressing them to admit to the shooting rather than cling to the unlikely stories they had concocted the night of the police interrogation, quietly reassuring them that the case could be won even if they had fired into the crowd, bridging the chasm between the famous white lawyer and ten desperately afraid colored men with his remarkable gift for empathy." (244)
Along the way, however, Dr. Sweet's understanding of his own story changed. "[H]e began to see the road he had followed to Garland Avenue as much straighter, his steps more purposeful, than they had actually been." (247) Perhaps Dr. Sweet was influenced by his sense of what a jury might respond to, and perhaps he was moved by the praise that his supporters offered for him. I don't mean that he falsified any concrete fact of his story, just that he came to see it as a story of his own manifest heroism.
That may have been fine for the two trials, at the first of which Dr. Sweet responded to cross-examination "with a dignity so fierce it was inspiring" (290), and at the second of which "he seemed to straighten in his seat as the questions were asked.... Now the fear was gone, replaced by unbending pride, the terrified little boy of Bartow given way to a New Negro willing to risk everything in defense of his family, his home, and his principles." (327-28) And the trials ultimately ended in complete legal victory for the defendants.
Unfortunately, it was not fine for Dr. Sweet as a person. Between the two trials, Dr. Sweet and his wife, Gladys (also a defendant), went on a tour planned by the NAACP. A pastor accompanying them said that "Each day he [Dr. Sweet] got more egotistic." (306). The same man said that "I averted no fewer than four scenes ... [and] abated five quarrels between the Sweets." (306-07)
Perhaps all would have been well in time. But as it turned out, Gladys Sweet and the Sweets' one-year-old daughter Iva contracted tuberculosis, very possibly from the jail in which they were confined after the arrests, and both died of it. (344) Dr. Sweet lived in the house he had bought for many years, but his life went awry in multiple ways, and at the age of 64 he shot and killed himself. (344-46) Would he have handled better the challenges he faced if he had not come to see himself, at one point in his life, as a more unambiguously heroic man than he (or almost anyone else) could be? We don't know. But the book leaves the strong impression that the case, the cause, became so great that it changed even the individuals whose cause it was, and not entirely for the better.
*******************
For me, reading Arc of Justice raised another, more personal question. In 1925, my grandfather, James Ellmann, was a young attorney practicing in Detroit and raising a family along with his wife Jean. He would go on to be active in civil rights issues, but the first trace of that activity that I've found so far on the web is in the mid-late 1930s. There's no sign that he was involved in any way in the Sweet case. I can't help but think, though, that he must have been inspired by this celebrated, dramatic case, involving local people and the most prominent lawyer of the age. So I hope that one of the effects of this case -- which brought Dr. Sweet freedom but not happiness, and helped launch the NAACP's legal challenges to racism even while Northern cities' residential segregation intensified (342-43) -- was to play some part in my grandfather's political development, and so my father's, and so mine.
Friday, October 30, 2009
Shameless self-promotion: "Lawyers and Clients: Critical Issues in Interviewing and Counseling" now published!
I'm very happy to return to this blog with a book announcement -- the result of a lot of hard work by Bob Dinerstein, Isabelle Gunning, Kate Kruse, Ann Shalleck, and me. All of us hope you'll like it!
Lawyers and Clients: Critical Issues in Interviewing and Counseling
Stephen Ellmann, New York Law School
Robert D. Dinerstein, American
Isabelle R. Gunning, Southwestern
Katherine R. Kruse, UNLV
Ann C. Shalleck, American
ISBN 978-0-31423-531-2
Lawyers and Clients: Critical Issues in Interviewing and Counseling will be published in October, is available for spring 2010 classes, and is now available for viewing on West's Law School Exchange. Going beyond the basics of interviewing and counseling, this book examines practical and theoretical challenges lawyers face with clients. Each chapter explores a critical issue in interviewing and counseling, such as developing connection across difference; dealing with atypical clients; using engaged client-centered counseling; bringing narrative theory to bear on lawyer-client encounters; seeking truth; pursuing moral dialogue; discussing law; and understanding how expertise affects practice. The book investigates these issues primarily through detailed analysis of multi-layered lawyer-client conversations, arising in a variety of contexts, which invite the reader to consider and critique the lawyer’s choices. A key theme is “engaged client-centered lawyering,” which emphasizes the importance of client choice and the impact of lawyers on clients, and affirms lawyers’ ability, through attending to the evolving contexts of clients’ lives, issues of technique, ethics, and law, to achieve open-hearted and wise engagement with clients.
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Lawyers and Clients: Critical Issues in Interviewing and Counseling
Stephen Ellmann, New York Law School
Robert D. Dinerstein, American
Isabelle R. Gunning, Southwestern
Katherine R. Kruse, UNLV
Ann C. Shalleck, American
ISBN 978-0-31423-531-2
Lawyers and Clients: Critical Issues in Interviewing and Counseling will be published in October, is available for spring 2010 classes, and is now available for viewing on West's Law School Exchange. Going beyond the basics of interviewing and counseling, this book examines practical and theoretical challenges lawyers face with clients. Each chapter explores a critical issue in interviewing and counseling, such as developing connection across difference; dealing with atypical clients; using engaged client-centered counseling; bringing narrative theory to bear on lawyer-client encounters; seeking truth; pursuing moral dialogue; discussing law; and understanding how expertise affects practice. The book investigates these issues primarily through detailed analysis of multi-layered lawyer-client conversations, arising in a variety of contexts, which invite the reader to consider and critique the lawyer’s choices. A key theme is “engaged client-centered lawyering,” which emphasizes the importance of client choice and the impact of lawyers on clients, and affirms lawyers’ ability, through attending to the evolving contexts of clients’ lives, issues of technique, ethics, and law, to achieve open-hearted and wise engagement with clients.
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Saturday, September 5, 2009
"End-of-life" discussions and lawyer-client communications
A remarkable article in the NY Times not long ago, by Anemona Hartocollis, "At the End, Offering Not a Cure but Comfort" (August 20, 2009, starting at page A1).
First, it reports that "Dr. Nicholas Christakis, an internist and social scientist at Harvard who has studied end-of-life care, has found that doctors are generally bad at making prognoses. The better they know a patient, the worse they are at prognosticating, possibly, Dr. Christakis has theorized, because they view death as a personal failure. Most predictions are overly optimistic, he has found, and the sicker the patient, the more likely the doctor is to overestimate the length of survival." (Page A16) Without having seen Dr. Christakis' study, it seems to me that another factor here may simply be empathy -- the better the doctors know the patients, the more they feel for them and the more they hope they'll survive and the more their predictions are shaped by their hopes. If accurate predictions are what we want here -- far from a self-evident proposition, as the article reflects -- then this would be a reason for doctors not to know their patients so well. It would, similarly, be a reason for lawyers not to know their clients so well.
Second, the article vividly illustrates the central role that communication without explicit words may play in some end-of-life discussions. The article tells the story of a patient with "an uncertain future" as a result of a recurrence of her cancer. Her doctor asks a range of questions, beginning with "What are your biggest concerns?" and moving on to "What's your understanding of the status of the tumor?" That question leads to an exchange in which the patient, having heard that treatments are available that can achieve some results, says "But there is no way of knowing it, right?" The doctor replies, "There are no established cures. Think very carefully about what treatments you do and don't want to have as these issues arise." The article says that the patient then "fired back with her wish to be 'alive again'"; that is, she replied ""It's more or less, I want to be alive again. Going here, going there. My husband, I want to be able to do things for him." And the doctor then asks, "What gives you strength?" and this question leads to discussion of shopping and the patient's husband teasing her about dressing up to watch TV at home. (The dialogue is recounted twice, with different details, at A1 and A16.)
In all this, the doctor never delivers a prognosis (the article says that he "had been called in to tell her the bad news: she was sicker than she realized, and the progrnosis did not look good"), and in fact the patient dies -- less than four months later -- without ever having been "told ... directy that she was going to die." Why not? The doctor felt that the essential precautions had been taken to protect her, through the appointment of her husband as a health care proxy, and that she had signalled to him that she wanted to "focus on the details of her everyday life, rather than a desire to foresee the future."
It's clearly part of autonomy for a person to know her fate as well as it can be known. But it also seems clearly part of autonomy for a person to decline this knowledge. The problem is that this is knowledge that is hard to explicitly decline when it is explicitly offered. So doctor and patient need to proceed by indirection. The patient does not say, "Don't tell me" and the doctor doesn't say "Would you rather not know?" Instead, the doctor asks the patient what her concerns are, and when the concerns she articulates have to do with everyday living, the doctor infers that she wants to focus on the elements of her life in her remaining time rather than on how much that remaining time is. If that decision does her no concrete harm, there's every reason to honor it -- except that there remains inescapable uncertainty about whether it was in fact her decision.
The article's account of this patient's grim final months seems to reflect that doctors continued to try to fight her cancer, rather than turning solely to "palliative care," though this isn't entirely clear. It would have been much more troubling if they had taken the conversation I described above as an authorization to provide only palliative care thereafter, since that course of action could very easily have done the patient concrete harm, defined as shortening her life. A patient might very reasonably choose that course, preferring not to endure the rigors of heroic treatments, or her health care proxy might make the same decision, but for the doctor to make the decision without the approval of the patient or the person she's chosen to speak for her would be hard to square with autonomy.
But if the doctors continued to fight the cancer, based on the requests of this patient, it must be said that the patient made those requests without explicitly knowing the best available answer to a relevant question, namely how long she had. (Her husband may have known, but the article seems to indicate that he didn't take over decisionmaking until almost the very end.) It's possible to argue that the likely prognostications would have been so uncertain and so error-prone that they wouldn't have had any relevance, but I doubt this. The problem with the information isn't that it would have been totally irrelevant, but that its degree of relevance might have been much less than its impact on the patient and on her thoughts and feelings. The doctor felt the patient was telling him that this was so, and that he was following her guidance. He may very well have been right. But, again, he could not ask her in so many words, nor could she answer in so many words. The critical communication had to take place implicitly and indirectly.
End-of-life discussions are far from the standard fare of doctors or lawyers. But I wonder how many critical pieces of information may also pass, and perhaps must pass, between lawyers and clients by similarly uncharted paths.
It's also hard not to think that the emotions that affect doctors' erroneous prognostications will also affect their assessments of when their patients wish to hear those prognoses -- and that the same will be true for lawyers. The particular palliative care physician at the center of the Times story wears "coolness" as "his armor," and seems disinclined to attempt prognoses in terms of days or weeks anyway, but surely the effort to respond to death with coolness itself affects what a physician hears his patients saying. So would a more emotional engagement with the patients. There is no entirely objective position from which to have conversations like this. Perhaps there is, in truth, no entirely objective position from which to have any conversation with a patient or client.
First, it reports that "Dr. Nicholas Christakis, an internist and social scientist at Harvard who has studied end-of-life care, has found that doctors are generally bad at making prognoses. The better they know a patient, the worse they are at prognosticating, possibly, Dr. Christakis has theorized, because they view death as a personal failure. Most predictions are overly optimistic, he has found, and the sicker the patient, the more likely the doctor is to overestimate the length of survival." (Page A16) Without having seen Dr. Christakis' study, it seems to me that another factor here may simply be empathy -- the better the doctors know the patients, the more they feel for them and the more they hope they'll survive and the more their predictions are shaped by their hopes. If accurate predictions are what we want here -- far from a self-evident proposition, as the article reflects -- then this would be a reason for doctors not to know their patients so well. It would, similarly, be a reason for lawyers not to know their clients so well.
Second, the article vividly illustrates the central role that communication without explicit words may play in some end-of-life discussions. The article tells the story of a patient with "an uncertain future" as a result of a recurrence of her cancer. Her doctor asks a range of questions, beginning with "What are your biggest concerns?" and moving on to "What's your understanding of the status of the tumor?" That question leads to an exchange in which the patient, having heard that treatments are available that can achieve some results, says "But there is no way of knowing it, right?" The doctor replies, "There are no established cures. Think very carefully about what treatments you do and don't want to have as these issues arise." The article says that the patient then "fired back with her wish to be 'alive again'"; that is, she replied ""It's more or less, I want to be alive again. Going here, going there. My husband, I want to be able to do things for him." And the doctor then asks, "What gives you strength?" and this question leads to discussion of shopping and the patient's husband teasing her about dressing up to watch TV at home. (The dialogue is recounted twice, with different details, at A1 and A16.)
In all this, the doctor never delivers a prognosis (the article says that he "had been called in to tell her the bad news: she was sicker than she realized, and the progrnosis did not look good"), and in fact the patient dies -- less than four months later -- without ever having been "told ... directy that she was going to die." Why not? The doctor felt that the essential precautions had been taken to protect her, through the appointment of her husband as a health care proxy, and that she had signalled to him that she wanted to "focus on the details of her everyday life, rather than a desire to foresee the future."
It's clearly part of autonomy for a person to know her fate as well as it can be known. But it also seems clearly part of autonomy for a person to decline this knowledge. The problem is that this is knowledge that is hard to explicitly decline when it is explicitly offered. So doctor and patient need to proceed by indirection. The patient does not say, "Don't tell me" and the doctor doesn't say "Would you rather not know?" Instead, the doctor asks the patient what her concerns are, and when the concerns she articulates have to do with everyday living, the doctor infers that she wants to focus on the elements of her life in her remaining time rather than on how much that remaining time is. If that decision does her no concrete harm, there's every reason to honor it -- except that there remains inescapable uncertainty about whether it was in fact her decision.
The article's account of this patient's grim final months seems to reflect that doctors continued to try to fight her cancer, rather than turning solely to "palliative care," though this isn't entirely clear. It would have been much more troubling if they had taken the conversation I described above as an authorization to provide only palliative care thereafter, since that course of action could very easily have done the patient concrete harm, defined as shortening her life. A patient might very reasonably choose that course, preferring not to endure the rigors of heroic treatments, or her health care proxy might make the same decision, but for the doctor to make the decision without the approval of the patient or the person she's chosen to speak for her would be hard to square with autonomy.
But if the doctors continued to fight the cancer, based on the requests of this patient, it must be said that the patient made those requests without explicitly knowing the best available answer to a relevant question, namely how long she had. (Her husband may have known, but the article seems to indicate that he didn't take over decisionmaking until almost the very end.) It's possible to argue that the likely prognostications would have been so uncertain and so error-prone that they wouldn't have had any relevance, but I doubt this. The problem with the information isn't that it would have been totally irrelevant, but that its degree of relevance might have been much less than its impact on the patient and on her thoughts and feelings. The doctor felt the patient was telling him that this was so, and that he was following her guidance. He may very well have been right. But, again, he could not ask her in so many words, nor could she answer in so many words. The critical communication had to take place implicitly and indirectly.
End-of-life discussions are far from the standard fare of doctors or lawyers. But I wonder how many critical pieces of information may also pass, and perhaps must pass, between lawyers and clients by similarly uncharted paths.
It's also hard not to think that the emotions that affect doctors' erroneous prognostications will also affect their assessments of when their patients wish to hear those prognoses -- and that the same will be true for lawyers. The particular palliative care physician at the center of the Times story wears "coolness" as "his armor," and seems disinclined to attempt prognoses in terms of days or weeks anyway, but surely the effort to respond to death with coolness itself affects what a physician hears his patients saying. So would a more emotional engagement with the patients. There is no entirely objective position from which to have conversations like this. Perhaps there is, in truth, no entirely objective position from which to have any conversation with a patient or client.
Saturday, August 22, 2009
"The Clinical Year"
On the question of how to bring law schools and lawyers together in the work of educating law students for the practice of law, I've recently posted online a short article I published in spring 2009 in my school's law review, the New York Law School Law Review. The piece is called "The Clinical Year." Here's the abstract:
"This article makes the case for the value -- and the feasibility, under current accreditation and related rules governing law schools -- of a clinical rotation for law students, modeled on the rotations that are a key part of medical school education. The 'clinical year,' which would engage students in almost full-time practice/study for their third year of law school, could be a significant step in building the complete apprenticeship that the Carnegie Foundation for the Advancement of Teaching has urged. It would also rely to a large extent on the supervision, and teaching, that adjunct law school faculty -- supervisors at the rotation settings -- would provide. In that respect, the 'clinical year' differs from in-house clinical education. The article addresses the differences in students' experience that this approach to bridging the gap between theory and practice would generate, and argues that this model is worth exploring, despite -- and in some respects because of -- these features."
You can download the full text from my Social Science Research Network page.
"This article makes the case for the value -- and the feasibility, under current accreditation and related rules governing law schools -- of a clinical rotation for law students, modeled on the rotations that are a key part of medical school education. The 'clinical year,' which would engage students in almost full-time practice/study for their third year of law school, could be a significant step in building the complete apprenticeship that the Carnegie Foundation for the Advancement of Teaching has urged. It would also rely to a large extent on the supervision, and teaching, that adjunct law school faculty -- supervisors at the rotation settings -- would provide. In that respect, the 'clinical year' differs from in-house clinical education. The article addresses the differences in students' experience that this approach to bridging the gap between theory and practice would generate, and argues that this model is worth exploring, despite -- and in some respects because of -- these features."
You can download the full text from my Social Science Research Network page.
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