Wednesday, September 14, 2005
Recent discussions here brought to my attention a blog by a Michigan law student called "Letters of Marque." Heidi, the student in question, is astute as well as wickedly funny. Take, for instance, her post on reading cases about poultry:
Bad things a-comin'
Every time I see another case name that has "poultry" in the title, I feel a sudden twinge.
You see, it doesn't matter if the plaintiff wins or the defendant wins. No matter what happens, it's going to be bad for the chickens.
In A.L.A. Schechter Poultry Corp v. United States, bafflingly enough, the US government was unhappy (among other things) about people picking out individual chickens. On the one hand, I'm enthusiastic about people looking at chickens as individuals, not just members of some flock. On the other hand, as hard as it may be for readers of this blog to believe, they weren't picking these chickens out for the sheer love of poultry. No; those chickens were singled out for nefarious purposes. Think soup.
Shockingly, nobody tried to argue that allowing the slaughter of thousands of chickens was arbitrary or capricious in the first place.
The Socratic Method
Leiter invites us to revisit his strong condemnation of the Socratic Method from a while back. He doesn't open room for comments anywhere -- and Dan Solove had much success recently by opening a string to discuss Leiter's thoughts about Ph.D.s and interdisciplinary work. Accordingly, I shall take up more Leiterian business with the hope of getting a discussion underway.
My perspective on the issue is that pure lecturing would be a disservice to students just as giving students the black-letter law they can easily access with commerical outlines wouldn't be much of a legal education. This has little to do with the platitude that we teachers are trying to get students to "think like lawyers." We are, in short, trying to develop a panoply of skills for the profession that the Socratic Method (modified from its pure form) seems well-poised to accomplish. Students are forced to listen to their peers respectfully; they are forced to think on their feet; they are forced to respectfully deal with a "superior" who thinks s/he knows it all; they are forced to revisit their understanding of why cases are decided the way they are; they have to negotiate the fear of being publicly shown to have less than fully thought out ideas; they have to learn to speak articulately and loudly; they are forced to work out problems out-loud and refine their views so other students can see the process of problem-solving in an interactive way.
Perhaps Leiter's "mandatory participation" would accomplish all of this skill-building, so it isn't clear to me that we wholly disagree. But the fact that students find ways to get "black-letter law" outside of class does not, in my view, condemn the Socratic Method. In any case, I would suspect that "orthodox" Socratic teachers who never answer a question with anything other than a question are pretty hard to find these days.
The Gray Lady's Got No Juice
Notwithstanding its significance, as alleged by Brooks, the NYT endorsement of Leslie Crocker Snyder for Manhanttan DA didn't matter much. The Old Man, Robert M. Morgenthau, won handily, garnering almost 60% of the vote. As I was reading the coverage, I noted Snyder's odd position on the death penalty, which became an issue during the last few days:
In the closing days of the campaign, the emphasis shifted to the death penalty, which Mr. Morgenthau has long opposed. Ms. Snyder said repeatedly that if capital punishment were legal in New York State, which at the moment it is not, she would impose it only for what she calls the most serious crimes, and only if there were corroborating evidence like DNA.
This tends to be an increasingly familiar (and superficially plausible) position, taken in the contemporary legal academy for instance -- though only? -- by New York Law School's Robert Blecker, who says executions should be imposed on only the worst of the worst offenders. But what's odd about Snyder's request for a requirement of "corroborating evidence like DNA" is that it may presuppose that DNA evidence is never mistakenly or corruptly handled. As my recent article on the retributivist case against the death penalty explains in greater detail, this is a problematic assumption. Moreover, if a person is convicted of a capital crime, it means there was already a finding of guilt beyond a reasonable doubt, i.e., that there was "corroborating evidence." Perhaps one shouldn't put essentially political figures like the Manhattan DA under such scrutiny, because they're just blathering, and maybe in the words of one favorite commentator on this blog, "stupid." Still, I suspect that politicians who support the death penalty (as punishment) have to be willing to accept a non-zero error rate, even though they may reasonably try to devise schemes to reduce the error rate.
Perhaps you are aware of the tragic story of Susan Rollin Torres, who was declared brain-dead while pregnant. She was kept on life-support for three months in order to allow the baby to be delivered.
The baby, Susan Anne Catherine Torres, was delivered by c-section about two months prematurely. Yesterday, she died at just under 6 weeks old from an illness associated with premature birth.
This story is very very sad, and in no way should a discussion of the issues it raises overshadow the tragedy this presents to many people, none more so than the father.
But it does raise interesting questions. I, for one, was very happy when the baby was born. For perhaps this baby would bring solace to the remaining family and live a long and healthy life. And yet when the story ends in this tragedy, with the baby no doubt in pain for her entire young life, I wonder whether the decision to undertake extraordinary measures to deliver the baby was worthwhile. Not for me to decide, of course; but it implicates issues that do concern me, like abortion, medical technology, theodicy, and the meaning and value of life.
It is not easy to have these conversations respectfully given the deep rift in our society; but I don't see how we can avoid it.
But mostly, right now, I am sad.