Fox News gives Romney the shove

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.

What did client-centeredness teach us?

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.

Conceptually:

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.

Pedagogically:

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.

Normatively:

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.

African masks and the costs of authenticity

Having admired and in a small way collected African masks for years, I've recently begun to study them. Isn't this a bit late? Well, no: I've followed the advice a wise friend gave me long ago -- that I should just buy what I liked. But now I find I want to know more about these things that I like.

Unfortunately a lot of what I'm learning is unsettling. For instance, the question of authenticity: is an authentic mask one that was carved for use in ritual practices embedded in African custom? If that definition is right, then two things would follow. (I say this based slightly on my own experiences looking for masks, but more on what I’ve been learning from reading, particularly in the fascinating book by Christopher B. Steiner, African Art in Transit (1994), which studies the African art trade in Côte d’Ivoire.)

First, it's very unlikely that many of the masks for sale in African markets today are authentic in this sense. The traditional practices of which the masks were a part are fading – though I doubt that these practices are entirely gone – and so presumably fewer and fewer masks are being made for actual use in ritual. Moreover, there are a lot of masks for sale, so many that there probably just aren't enough villages to support the commerce from their own ritual stock. Most masks, instead, are probably being made right now, and mainly for the tourist trade. They may look old, but that’s because they’re specially treated to appear that way.

Second, if a mask actually is authentic, how did it make its way from ritual to commerce? Steiner offers this description of bargaining “[a]t the village level of the art trade”: “[M]uch art is obtained during times of personal or regional crisis…. Bargaining here is less concerned with price as it is with the negotiation of a sale – i.e., convincing someone to sell something.” (64) On the same page, Steiner quotes an African art trader on this process:

When buying in villages, you have to be very careful about what you say. You have to be gentle and polite. You have to explain to the elders that these objects are things which people want to learn about. “Your children,” you must tell them, “won’t be able to appreciate or understand these things unless we take them and preserve them in museums and in books.”

I recently heard Michael Sandel speak about his current work on the intrusion of market thinking into areas of life that used to be regulated, at least on the surface, by other forces. (For example: government programs that pay children for reading books during summer vacation.) He was worried about the moral corrosion that might be caused by market values' "crowding out" of other human impulses, and that's an important concern. But the moment when an authentic mask is pulled from the world of its creation into the world of art and commerce seems worse -- an act of cultural destruction rather than mere corrosion.

Paradoxically, almost all masks that are really old (say, a century or more) seem to be in Western museums. There they have been preserved against climate and pests, which are not kind to wooden masks. There too, it seems, they get treated as objects for preservation rather than for use and in due course replacement.

But now, today, it seems right to say that those Westerners who simply like African masks should not seek masks that fit the definition of authenticity I started this post with, because if they succeed they will be contributing to the disintegration of a culture. Instead, they – we – should embrace masks made today, for trade, as today's expression of this traditional art. And we should buy what we like.

From Kol Nidre

Kol Nidre, the opening service of Yom Kippur and also the name of the central prayer of that service, was last month. I was given the honor of speaking briefly at my synagogue's Kol Nidre service; what follows is a much revised version of what I said that night:

The ancient Kol Nidre prayer, which Jews recite at the beginning of Yom Kippur’s twenty-four hours of reflection and atonement, declares that all vows and obligations we have entered into shall not bind us nor have power over us. The prayerbook says that when efforts were made to drop this language, because it seemed so problematic morally, congregations resisted. Why? How can moral people embrace such a declaration?

One answer is that this is a prayer for the peace that passeth understanding. For people who are incapable of perfection – that would be all of us – only relief from the burden of seeking perfection can sustain us.

But perhaps we should understand it not as a plea but as a pathway. Like an amnesty after a war, Kol Nidre seeks a way to re-admit each of us to the community, when otherwise our past commitments and our past failures might overwhelm us. Yom Kippur calls on us to be better people in the year to come, but it does so in part by authorizing us to be merciful to ourselves.

This is no moral free pass. Actually (as one of my children pointed out to me) it must be a moral error to ask more of ourselves than we can do – as it is also a moral error to ask more of others than they can do. Instead this declaration is an assertion of our actually being moral persons, who can judge what is right and wrong, which duties are real and which are false, and who thus can freely live the most faithful and committed lives we can achieve.

Magic and violence in South Africa

Susan Njanji, in an August 25, 2012 Mail and Guardian article called "Lonmin tragedy lays bare violent inter-union rivalry in SA," begins by discussing the extent to which the violent strike at the Lonmin platinum mine grew out of a conflict between two unions. That's certainly worrying, but the strangest feature of her article comes at the end. Under the heading "black juju" she reports:

Belief in black juju has also taken root and was partly blamed for the workers' defiance during a standoff with police before 34 of them were gunned down.

Local media report that a video report shot by the police from a helicopter during the strike, showed naked men lining up to be rubbed with herbs that were believed would make them bullet-proof.

"The use of muti has become so institutionalised in everything they (unions) do," said [Crispen] Chinguno [described as "an industrial relations researcher at the University of Witwatersrand"].

He said some of the 17 000 workers sacked and later reinstated at Impala [another platinum mine where a "violent strike" took place earlier in 2012] believed they regained their jobs thanks to juju.

Chinguno might be mistaken. The local media report about the police video might too. But the Mail and Guardian is, I believe, a quite reliable news source, and so I think it is quite likely these reports are at least in good part correct. Though it is not often discussed, my impression is that belief in magic or witchcraft remains an important feature of South African culture.

It is, of course, a risky business to discuss anyone's religious or cultural practices. None of us can really be sure of the answers to the ultimate questions; there's a long and nasty history of Western condescension towards African beliefs in particular; and of course there are many mainstream Western beliefs that nonbelievers might see as bizarre.

But equally it is a mistake to attempt to understand people's choices and actions while deliberately disregarding beliefs that they themselves hold dear.

So this at least should be said: if South African strikers are now embracing magic as a source of invulnerability to weapons, then they will be less deterred from violence in the future, because they will believe themselves protected from the risks of retaliation. And if union leaders or politicians find it in their interests to fuel violence as a strategy, then they will have reason to ally with the purveyors of magic so as to encourage their followers. Perhaps the terrible shootings at Lonmin will short-circuit this process, but believers quite often seem capable of withstanding empirical refutation of their beliefs. Finally, this: if there is a gathering storm of believers in magic and violence, that is a frightening prospect for South Africa. 

The impact of scholarship on teaching -- not much!

I've just encountered a very nicely executed and insightful study by Ben Barton of the University of Tennessee College of Law, on the question: "Is There a Correlation between Law Professor Publication Counts, Law Review Citation Counts, and Teaching Evaluations? An Empirical Study." It's available for download on SSRN and was published in 2008 in the Journal of Empirical Studies.

Barton studied the scholarly productivity and impact, and the teaching evaluations received from students, for every tenured or tenure track faculty member at a diverse group of 19 law schools in the United States -- 623 faculty members in total. I'm no statistician, but my impression is that his statistical analysis is done with care, and with a recognition of the many imperfections of all the data -- which nonetheless remain the data that we have. The result is a finding that "there is either no correlation between teaching evaluations and these measures of scholarly output, or a very slight positive correlation" (16). Moreover, this finding appears to be quite consistent with the results of studies elsewhere in higher education (which Barton summarizes at 2-3), and his data appear to cast doubt on one much smaller study of law school teachers that had found a greater positive impact (described at 3; for Barton's contrasting analysis, see 18).

What should we make of this finding? Barton points out that his results are inconsistent with two quite opposite hypotheses, each with its adherents. (19) One group presumed that the impact of scholarship on teaching would be positive, on the theory that it is through scholarly work that teachers master their subject. But the impact was at most slight. The other group believed that the impact of scholarship on teaching would be negative, because the time required for doing scholarship would inevitably take away from the time a professor could devote to improving his or her teaching. But this effect also turns out to be absent.

This pair of results is actually quite odd. Scholars do learn about their subject as they write about it, or at least they feel they do (I personally feel I do) and it would make sense that they would. But this increased learning has little impact on their teaching. At the same time, scholarship takes time, and time is scarce, yet this substantial claim on scholars' time doesn't turn out to demonstrably impair scholars' teaching.

One possibility is that both hypotheses are right, and that they are mostly invisible in the data because they cancel each other out. That is, scholarship does enhance scholars' knowledge, and it does take away time from their work on their teaching -- and so what is gained on the one hand is mostly lost on the other, with the net result (this is what Barton's data say) that productive scholars are at most only slightly better teachers than their nonproductive colleagues.

But what if actually both hypotheses are wrong? In that case the reason that scholarship has little impact on teaching would be that (a) scholars don't learn that much from their scholarly work that can help them in their teaching and (b) the time scholars spend on their scholarship doesn't much impair their efforts to be good teachers. So again the two effects, or rather non-effects, balance each other out. Could these two propositions be correct?

As to the first, it might be argued that although scholars do learn about their subjects as they write about them, they don't learn much that they would want to convey to their students. If most scholars today are engaged in various forms of esoteric theory, then it might indeed be the case that while they learn a lot from their writing, what they learn is not what they teach. In fact, Barton finds some evidence that "practice-oriented scholarship" has the greatest impact on teaching evaluations (15) -- an ironic result, since the kinds of scholarship Barton quite reasonably appraises (see 8) as the most practice-oriented (treatises, casebooks, and "practitioner article[s] or chapter[s]") are probably not those viewed as most prestigious among scholars today.

But how could it be that the time spent on scholarship -- if it's not a positive benefit to teaching -- doesn't wind up actually impairing teaching by taking time away from scholars' focus on it? Two possibilities immediately suggest themselves. One is that the tenured and tenure-track people who don't do scholarship also don't spend much time on their teaching -- so the scholars are as attentive to their teaching as the nonscholars. The other, a much happier possibility, is that although the scholars spend less time on their teaching than they otherwise could, they (and their less productive colleagues) still spend enough time to do a good job. It may well be that tenured and tenure-track law faculty -- busy as they may feel at times -- in fact have so much time to devote to their teaching, even after they finish their research, that they can and do prepare themselves well for teaching.

I'm inclined, however, to reject all of these explanations, or rather to say that they are all unproven. I wonder if what we are seeing is a different phenomenon at work. There surely are better and worse law teachers, but I'm inclined to think we do not yet know much about how to describe who the better and worse teachers are, or about how to convey to less effective teachers the skills that will make them better. The result, I suspect, is that we cannot really measure the impact of scholarly work on teaching, because we are still at such an early stage in developing ways to improve our teaching.

One last point is important to make. Barton studied only tenured and tenure-track law faculty, because (at least usually) only they are expected, as part of their jobs, to produce scholarship. We know even less, therefore, about the impact of scholarship on the teaching of those faculty who aren't required to write, but choose to do so nonetheless. We also don't know very much about the impact of scholarship on the teaching of those faculty whose principal teaching responsibilities are in "lawyering skills" rather than in legal doctrine, since skills teachers are probably still much less likely to be tenured or on tenure-track than their doctrinal colleagues.

In short, there's a lot we don't know. I wouldn't take Barton's study as demonstrating that scholarship is without value to teaching -- though it does demonstrate that scholarship has little demonstrable impact on teaching. Instead, I would urge that we focus most directly on what seem to me to be the central uncertainties: how to be, and how to help others to become, better teachers. If we can work on these issues, I think we can safely put to one side for now (and probably for the foreseeable future) the seeming tensions between scholarship and teaching.

The shootings in South Africa

Last week's killings in Marikana, South Africa -- "34 dead and 78 wounded in the bloodiest day of protest since apartheid," as an article in South Africa's Mail and Guardian summed it up -- are appalling, and that may be the most important thing to say about them. Who would have believed, in 1994, that some years down the road the police of post-apartheid Africa would shoot into a crowd of striking workers and leave dead and wounded strewn across the ground? A ghastly event.

But what can we make of it? One answer surely is that the police were not well trained. But while the exact events that led to the shootings remain to be clarified, it's been reported by Devon Maylie in the online Wall Street Journal that:

Police said they fired live ammunition into the crowd, after a group of protesters shot at and charged them. The police said they had tried to disperse the crowd with water cannons, stun grenades and rubber bullets, to no avail.

The same article says that in the course of the ongoing industrial dispute that led to the shootings, 10 other lives had also been lost -- 8 employees and 2 police officers. Another Mail and Guardian article, by Kwanele Sosibo, reports that:

A man found lying in crucifixion position on the edge of the koppie on Tuesday with his head split open and stab wounds to the torso, had apparently committed the cardinal sin of "fishing for information". His lifeless body was left on display the entire day as a warning to non strikers.

Though the police were not well trained enough to deal with it -- and plainly they weren't -- still this was no easy crowd control situation.

How did such a situation ever arise in post-apartheid South Africa? One answer is that the workers who went on strike were deeply frustrated by the ANC's failure to redress the ferocious economic injustices that remained even after apartheid ended. No doubt this is true, but by itself it is not illuminating. What did the ANC's "failure" consist of? Was it a failure to move towards a more truly redistributive state (and would other policies have better negotiated the tension between domestic need and world economic pressures)? Or was it a failure to keep moral faith with the people of the country, as leaders came to seem more interested in their own power and privilege than in the grinding suffering of millions of South Africans?

The ANC's failings certainly must have contributed to the violent frustrations on display at the Lonmin platinum mine. But this explanation also misses some of what makes this situation so troubling. The workers at the mine reportedly sought a wage hike from 4000 Rands per month to 12,500 per month, or roughly from $484 to $1513 per month. (Perhaps the wage hike was somewhat smaller; I've seen multiple figures.) These are not generous salaries, viewed from an American perspective, and it may well be that they should simply be described as exploitative. But $1513 per month, or $18,156 annually, would appear to be well above the gross domestic product per capita of South Africa, estimated at $11,100 in 2011 according to the CIA World Fact Book. There are a lot of people in South Africa poorer than these workers. In fact, in a country with an estimated unemployment rate of 24.9 % (also according to the CIA's World Fact Book), these unionized workers might even be described as relatively privileged -- which is not to deny how hard their work evidently was, or how bad their living conditions reportedly are.

There is one more deeply depressing feature of this situation. I mentioned just now that the workers were unionized, but that was an oversimplification. What seems to have happened at this mine is that workers became dissatisfied with what had been their union, the National Union of Mineworkers (NUM). NUM was an important contributor to the struggle against apartheid, but apparently it has lost the faith of many of the workers it represented, and Sosibo, in the Mail and Guardian, reports  that a new and more militant union, the Association of Mineworkers and Construction Union (Amcu), now has the allegiance of many employees -- 21 %, according to a management representative.  Much of the violence, in turn, appears to have been between different groups of workers. Sosibo writes that after alleged sniper killings by people wearing NUM T-shirts, other workers "embarked on a retaliation campaign." Perhaps some of the violence was also simply labor militancy in the service of the strike; Sosibo cites a doctoral candidate "studying patterns of violence in platinum mines in the Rustenburg area," who says that "violence had become routine in strikes in the region."

So the violence is part of a pattern of labor struggles with management, and of internecine struggles among workers and unions. It is also, the same doctoral student suggests, a result of

the fact that workers have become more fragmented than before. Some are residing in informal settlements outside of the mines, some still live in hostels and some black workers occupy more skilled positions than others. Violence is used as a way of enforcing solidarity.

At this point the passions and divisions of South African society begin to seem intractably deep. I very much hope that that is not in fact the case.