What I'd like to publish in the Record:

Yesterday (11/18), as if as a birthday present to me, the Wall Street Journal published an editorial condeming Harvard Law School's having gone soft on its students. He wasn't talking about grade inflation but, what is far more important, classroom atmosphere. The "Socratic method" that gave HLS its reputation for student ego-decimation used to have profs "backing students into corners" with their tough lines of questioning and even humiliating them as Prof. Kingsfield did to the protagonist of The Paper Chase. Now, recounted the commentator, what we have (by way of contrast) are episodes like last year's-- where students petitioned the administration because a professor made a racist comment and, the next thing you know, that prof wasn't teaching first year classes. Baptism by fire and heated debate have been replaced by coddling and political correctness.

While last years incident does not seem to me to illustrate the decline of rigorous rhetorical training at Harvard, there is no doubt the classroom no longer teaches students to think on their feet and "lacadasicality" prevails (if indeed that is a word). The Journal will probably be taken by many to have insinuated that by admitting a representative number of black students "affirmative action" caused the decline of the Socratic method just as clearly as the activism of the Black Law Students Association led to the disiplining of the professor who made the insensitive remark last year. That, if it is what the editor meant, is almost certainly not true. The death blow to the Socratic method was nothing less than the growth in the number of equally high-paying firm jobs and a large-firm litigation department culture that places no premium on law schools' having trained their students to argue. Until the economy soured, Harvard grads could all go into large-firm practice if they wanted too; the "one in three of you won't graduate" motive was no longer needed. That said, Harvard has betrayed its students by giving up its "sink or swim" style of Socratic teaching.

I would like to make an even bolder claim: Even if students here are happy to coast into a high-paying job after three years, even if they would rather not face the stress of preparing for every class only to have their arguments torn-apart by profs, Harvard owes just that kind of training to us for the money we're paying. But what they owe to us is not the most important thing. Harvard owes society a group of graduates who have been trained to argue, what lawyers are supposed to do. This training can, perhaps, be provided by firms, but to let them do it reduces intolerably the independence of American lawyers. Some of America's brightest students, if that is what Harvard Admissions provides, should graduate with the ability to argue cases, not the cases that massive litigation departments want argued, but the cases that the students themselves want to argue. I am afraid that people like Prof. Wilkins, who study the legal profession, will tell us that already (and even more in twenty years) America has lost its class of independent lawyers (if it ever had one).

Having noted that being a law-like generalization is not sufficient for being a social norm, I want to explore the relation between the two further. I said that social scientific generalizations cannot be norms unless they are the kinds of things that people refer to in justifying/prescribing actions. By this I meant to rule out generalizations like "Men are more likely than women to be murdered" that are in some sense not potential norms because they cannot straightforwardly be action guiding, rather than to rule out generalizations like "People who know of child abuse report it less than half the time" that (formulated as norms) would be conceeded not to be endorsement worthy. This distinction is probably more problematic than it may at first appear. But I want to leave it be and consider the supposed class of generalizations that have obvious social norm counterparts.

We might make the theoretical distinction between social norms that are prevalent in the sense of being widely cited as explanations of actions and those that are prevalent in the sense of being widely cited as justifications for actions. Given a certain norm would we ever really be able to reach a conclusion about which it is? Anyway, both of these are clearly different from the related generalization's being true. For example the generalization that "People uniformly condemn racist comments made in their midst" is probably not true. But it still might be true that its norm-formulation is cited as an explanation for a certain reproach (think of the colloquial "We don't tolerate that sort of comment" as a response to "Why did he rebuke that man so sternly?") or as a justification for such a reproach. This fact is a commonplace, but it is still somewhat puzzling how there can be such social norms that are "unfounded" on their related generalizations. It is especially difficult to understand how social norms can (in practice if not in moral theory) provide a pursuasive justification for an act. (Perhaps it is no more difficult in the case where the relevant generalization is inaccurate.

Admittedly, I have not yet taken into account the popular, an likely accurate, meta-ethical view that moral statements are expressions of norms. This view takes it for granted, rightly or wrongly, that we can express our support for a norm without its actually being a bona-fide social norm in either of the above sentences. But even if this view does abuse the word "norm" by attaching it to what is at most a "putative norm" it can still be a true theory without answering the question of how something can be a social norm without being an accurate generalization. Norm expressivism is an account of the normative force of certain statements not of the role that social norms in fact play in the reality of day to day persuasion. It may be open to the criticism that it does not distinguish between these two things, but it cannot be faulted for not being a theory of the latter. The study of the role social norms play in pursuasion is clearly on the grey area between the conceptual and the empirical.

To be further continued...

How can the social sciences contribute to law?

Topic 1: The relationship between social scientific laws, social norms, and laws per se.

If there are law-like generalizations to be made about individual behavior, these could in theory be be enacted as laws. I assume, with Hart, that the it is individuals who refer to the requirements of law in deciding what to do even when the law refers to entities (like corporations). That seems a bizarre idea, but someone might try to argue that laws are supposed to make people conform to social norms and say that that is the same thing as making these law-like generalizations more accurate. But this is wrong. For one thing, the law is supposed to effect individual behavior in other ways than making it conform to social norms, in part because laws' principals, policies, and purposes--that in part compose law--counter at least some of those norms. Nor are social norms themselves the same thing as these law-like generalizations. In order to be a social norm, a generalization has to be the sort of thing that at least some people use as a justification for their actions or as a reason for their prescriptions to others. But this may not be a sufficient condition, because individuals differ as to which social norms they regard as real reasons for action. That is, a generalization's, in fact, being a social norm may also require that a certain proportion (or quantity) of people recognize it, not only as accurate, but also as reason giving (at least with respect to certain persons).

Being a(n accurate) law-like generalization, however, is itself probably not a necessary condition for being a social norm, because people invoke social norms without really knowing whether the corresponding generalization holds true. We're not all social scientists after all and social science may not have yet generated a single law-like generalization of the kind that would be a candidate for a social norm. (The law of demand provides one example of a social scientific generalization that would never be offered as a social norm. It is, unlike some generalizations, obviously purely descriptive. Someone might offer the is/ought dichotomy as proof that NO generalization can ever be a norm. However, norms as I am discussing them are not necessarily normative. In any case, it is too obvious to be worth mentioning that being a law-like generalization is not sufficient for being a social norm.)

To be continued...

The Libertarian Straddle:

"The laws and policies that lead to economic prosperity, freedom, and human flourishing are those that protect individual rights." Even for one who rejects the alleged dogma's of empiricism, its safe to say that this is supposed to be a proposition of the kind that is tested by experiences rather than a principal that is to be defended by reinterpretation in the face of experiences. In other words, the relation between respect for individual rights and increases in various social goods is supposed to be one of correlation not of definition. But if the correlating proposition is a true one, capable of withstanding tough empirical scrutiny, you would not be led to trust it based on the arguments of many of its supporters. When you find a libertarian blissfully unaware that he is defining freedom in terms of certain rights that he believes should be protected ("It reduces my freedom if you steal my bike but not if you buy up all the land surrounding my house and then refuse to let me trespass my way out the front door.") or an legal economist who blithly argues that individual rights should be allocated on the basis of economic efficiency ("If transactions costs are high, the property right should be assigned to the person who values it most.") you can't help but come to the conclusion that the two criteria are not as independent as one would like. That defenders of the proposition are not noticing this is embarassing. Only by acknowedging this tendancy can we improve our arguments.

The Autonomy of Law:

The thesis that doctrinal analysis and application is/should be conducted independently of other areas of inquiry, say the social sciences, is very hard to evaluate for a number of reasons. For one thing it is sort-of unbelievable that any judge tries keep thoughts of consequences from his mind as he scrupulously applies legal rules. But even that trivial observation may refute the autonomy thesis in some minds. When a theory seems incompatible with plain insights, one does not know whether to dismiss or reinterpret it. For another thing, it is controversial that applying law to facts is only about rule following. Many people think that laws embody principles and that decisions should be made in the furtherance of these. If this is the case then you need to investigate whether the decision will further the principle, which obviously requires empirical inquiry. Is this in itself enough to refute the autonomy of law view? Quite possibly not.

The autonomy thesis is often combined with an opposition to judicial activism. But this is also to assume the rule rather than the principle view of law, unless advocates of judicial restraint are just accusing judges of departing from the purposes or principles envisioned by the legislature. If judges have to be social scientific in order to dutifully further these principles then they can be sufficiently restrained. Would such a judge be respecting the autonomy of law? Only if he limited his social scientific approach to the one that informed the legislature? Only if he reached the same conclusions about its implications?

In order to answer the autonomy of law question, it seems that we have to consider the history of the way that social science (and whatever else) has informed law. Just because the social sciences only came into their own in the 19th century and started turning up in judicial opinions en mass in the 20th, does not mean that there were other considerations--or even, perhaps, social scientific considerations in law previously.

Does the law become non-autonomus if it starts to lean on standards to the detriment of rules? Since legislation started setting up administrative agencies and, at the very least, delegating the judgment about rule-making authority to them, it seems inevitable that legislators contemplated other resources than merely statute and cannons of interpretation to be used in implementing its will. Does this refute the autonomy thesis or not even bear on it at all because it only moves law-making authority around without changing its nature?

School Choice Rhetoric, Esteem for Academic Work-Product, Careers:

Saw my favorite school choice rhetoritician in action again last week. When I actually try to imagine myself making such presentations, especially repeating variations on presentations ad infinitum to different audiances, the rhetorical style seems less appealing. I don't know if I could keep up the passion for making such speeches week after week. How can public interest lawyers combine such professionalism with care for the cause? Clearly not all do it so well.

The environment at the conference was exciting though. I can see myself traveling all over the country attending those things, meeting new activists, etc.

Would I be more satisfied with that than with law professor meetings? Probably not, but the "in" seems a little easier in the policy world. Why? I'm not too lazy to advance myself in an academic career. It's just that seeking the approval of peers and authorities really turns me off. I wish sometimes that I had the need for recognition posessed by lots of my collegues and friends who will be more successful in academia than I. But I only want it because without obsequiousness and a need for collegial esteem I'll never make it in that world. As far as my self satisfaction is concerned, I should be grateful to those professors who never encouraged me to look to them to reinforce my intellectual self-image. It would probably be easier for me to strive to please people in the law/policy/business community than those in the academic community, because with the latter I know that its not the quality of my views that counts its the presentation. In other words, it would leave my own "heart of hearts" judgment to myself... at least if I can keep it separated. But that sort of Stoic freedom is not very attractive to me either.

Behavioral Economics: It distinguishes itself by its concern with empirical studies of actual choice. But its still pretty far from behaviorism isn't it? A certain version of behaviorism would try to "analyze the action out of" behavior and, thus apparently, the choice too. If you say to me "Want a 1 in 10 chance of $100 or $10?" and I say one or the other, then whatever conclusions are reached from that would not, for the behaviorist, be conclusions about choice... would they? Or is this the wrong question because it is just a "definitional" matter regarding the word "choice." (Can we define "preference" in some other observational terms so that the "revealed preference" thesis might be falsifiable?) Maybe the behavioral economists are saying, "Those rational-choice theorists like talking about choice and we are trying to enter into that dialogue. But we're only willing to go so far as to talk about what we can observe and experiment on?" We see a dialogue here, but I cannot understand how we can justify or explain how it is that there is one. Posner seems to want to expand the notion of preference, concede the possibility of divided selves, etc. but why? What do the alternative terminologies have to do with the question on what research we take into account? Behavioral economics research seems to indicate that people fear a loss of magnitude x than they are excited by the prospect of x gain. Does this stand in any kind of conflict with the view that positive reinforcement is more powerful as a motivator than punishment?

Rhetoric:

Dershowitz gave a talk tonight that I went to right before my McDermott interview, the second talk of his I've seen. It reminded me of a conversation I had with a conservative law journal editor where he told me that he'd studied rhetoric and preferred it to philosophy. Since I've been thinking about this for the last few hours, my thoughts keep coming back to the last two times that I was really impressed with rhetorical skill: a debate at Ohio University where, in my opinion, John Sununu trounced James Carville and a screening of a John Stossel special on vice crimes that IHS showed at one of their seminars. The latter freaked me out because of its hyperbolic and intelligence-insulting character, even though I was sympathetic with the libertarian message. Sununu impressed me because he referred to a lot of relevant historical facts and made lots of interesting arguments, definitely giving the Ohio U. crowd at least as much respect as deserved, especially in contrast to Carville who was at least as insulting as Stossel on TV (which comes across a lot worse in a podium debate between supposed authorities). Carville assumed a sympathetic audience and yucked it up. By comparison, Sununu made me feel like the intelligent (economic) conservative.

Dersh also made me feel smart and flattered my good-faith desire to form an objective view about a complicated issue that I know little about. The main propositions he argued for were an intricate (if apparently uncontroversial in mainstream circles) normative one, (1)that terrorism is always to be condemned no matter how just or good the cause, and two extremely thorny empirical ones (2)that the Palestinian cause has achieved extraordinary notoriety and effective results mostly because it has been championed by terrorists; (3)that today's Islamist terrorists a la Al-Queda would not be appeased by measures proposed by the international community that favor the Palestinians. His talk was also notable for its undertone of almost consistent deprecation of Europeans, especially the French. If rhetoric is most effect when it demonizes some group, then Dersh's must have worked well for any patriots who are annoyed with Europe's reluctance on Iraq. (The Iraq question went entirely unmentioned while I was there.)

The main conclusion that I left with has nothing direct to do with war or terrorism: I like rhetoric that does not insult my intelligence. I notice now though, that this puts me in a confusing spot on the philosophy versus rhetoric question. How to explain this? I don't know how to define rhetoric so as to contrast it with philosophy except to say that rhetoric does not concern itself with the process by which the audience reaches a conclusion, only that they reach the right one. This may or may not be the same as saying that philosophy is interested in persuading of truth, while rhetoric seeks a certain result.

But I think that this is an old-fashioned version of the distinction. Now philosophy, in its best form, aims to provide a forum in which people can understand their differences of belief and interest while they reconcile them. The problem with this ideal is that it seems to require that the debate be carried on in terms that all parties can understand, that appeals to authority are disclosed as such and, more importantly, limited in their desired effect.

But one very popular rhetorical tack has always been to come down to the audiances level, which may in part explain why philosophers are often falsely viewed as vulgarizers and moral demagogues by technical experts (e.g. lawyers or scientists, including economists). So much of political rhetoric involves appeals to moral truisms that supposedly can provide a sensible and objective view even in cases of complicated conflicts of interest. Usually such appeals are more popular with the public than factual analysis, unfamiliar (but important) stories, and the confronting of real differences of interest. But since this anti-intellectual, moralistic rhetoric is definitely the worst option, the question is: Where should we lay our hope?

Should philosophy try to work its discursory magic by introducing facts, stories, and differences in a palatable and accessible manner or should we encourage people to acquire a taste for (and ability to assess) sophisticated rhetoric that treats them as if they know a lot more than they do, but must inevitably at the same time risk successful appeal to authority. I guess that if Dersh lectures appeal to me a lot more at the moment, as they do, it’s because I've been to a lot of philosophy colloquia.

"Attention getting", Behavior Extinction, Understanding, Interaction:

Teachers are trained to ignore kids who are trying to get attention in inappropriate ways. Lack of reinforcement, so the theory goes, will lead to the extinction of the unwanted behavior. But can behaviorism allow us to attribute the desire for attention to someone else? What is a desire for attention anyway?

No need to get all theoretical at the outset. "Attention getting" is a practical problem when some kid is kicking you in the shins. I hated being told that I was seeking attention, not that I ever kicked any shins. I thought it was something to be ashamed of. But wouldn't you expect as much from any kid? When was there any question of not getting attention before there were classrooms with multitudes of kids?! Aren't teachers just rationalizing their feelings of guilt (unjustified since it's not their fault) at not being able to give kids natural individual attention. Of course, maybe kids that are smothered with attention ask for more of it than they can really need-- because their asking for attention has been reinforced at home by parents who missed their kids after not having seen them all day. This might have been so in my case. I imagine, though, a time when parents had to work so much that even if the kids were around, parents would never indulge their childrens' solicitations for their time becuase they could not afford to. If my mom and dad (unwittingly?) encouraged me to demand their attention, should my teachers have resented that it made their life difficult because I asked for so much?

Lots of teachers, it bears noting, think that lack of attention at home breeds bad "attention seeking" habits more than does over-attention. This does not seem compatible with behaviorism, but rather seems to require assuming (what a thought!) that children are motivated to seek attention, as it were, a priori. What affinity does this have with the "social animal" view of people, I mean with the view that has us congenitally wanting human interaction without ever having had such "interaction seeking" behavior reinforced? Which is more fundamental, the desire for attention or the desire for interaction? In either case, would we really want to " make extinct" a child's desire for attention? What effect would that have on a child's capacity for interaction? Are there really other minds anyway?! Whoa, dude!

What is the difference between wanting attention and wanting interaction? The latter gets more respect because it is not so one-sided. But the idea of students and teachers interacting seems foreign to most of our experiences in school, I submit, and may offend against a preconception that the teacher is an authority figure. Either a teacher's conception of herself as an authority figure or the idea that, for any reason (including, perhaps, the truth of behaviorism), children are incapable of interaction would produce overreactions against so-called attention seeking. I think that I got these overreactions from my teachers. However, I have to wonder about the extent to which as a child (or even now) I, or other people, prefer interaction to attention. Is the desire for interaction, just the ego's rationalization (perhaps because of perfectly adequate socialization) of its inability to command attention? This seems to me to be a very deep and important question. The viability of (small group) democracy might even depend on it. Communicative action is often thought to require a certain kind of "good will," different from strategic rational action. Supposing we discount the idea of free will, as I agree with behaviorism that we should, the appearance remains that our psychological constitution seems dispositive.

But bringing in any theses about politics would be to jump to carelessly to conclusions. Let's keep it at the level of norm-endorsing. I have a strong tendancy to regard the behaviorist norm, (or is it a meta-norm) that we should not react at all to actions or behaviors that we disapprove of, as cruel. I feel a strong desire to react engagingly (if with rational criticism) to almost any acts with which I am presented. Unless someone does something overtly attention getting (like hitting me with rhetoric in favor of war with Iraq) I must struggle hard to restrain myself from acknowledging it. When people fail to respond to my entreaties for interaction, I see it as dismissivness which I, I think naturally, find very offensive. And it does not make me less offended to know that these parties feel that indulging my entreaties with a rational response would not be good for me (or us, or whoever).

On the other hand, I often feel that my engaging disposition is abused (even unwittingly) by those who I love. If someone, say my ex-girlfriend or my brother, challanges my justification for a belief or course of action, I often feel a desire (or sometimes an obligation) to respond rationally and convince them that I am right. However, I (the behaviorist in me) can see that my willingness to do this is causing them to challange any actions of mine that they don't like in the hope that I will give in. It is also causing them to keep up their challanges for the sake of my giving in, instead of being open to acknowledging that I am right. In brief, my penchant for rational argument has a tendancy to encourage those I love to exploit me. I feel that I am being forced to chose between accepting that reaching a real understanding (i.e. pursuading or, at least, establishing where the differences lie) with my loved ones is impossible, or encouraging them to exploit me. The conclusion that I am tempted to reach is that my desire for mutual understanding is ruining my relationships by making me resent people who (I invariably feel) are being encouraged to play the exploiting game instead of the understanding one. I should try to be more like those teachers of mine who, perhaps, stifled their desire to interact with me, because they feared that they were encouraging me to neglect the needs of the other pupils. If I want to be able to enjoy these peoples' company more, I have to get used to the fact that my disposition for accomodation, give and take, and rational discourse is encouraging them to try to manipulate me. That or I have to look for people who share my interactive habits. But in no case will I get over the feeling that behavior extinction is cruel. (And I don't think this is because of the view of the other, as a response mechanism, that it holds out).

But, is behavior extinction just the reaction of incomprehension? If two people from different tribes met, and communicative failure went deeper than different languages, would the stares of incomprehension be behavior extinction? No one could call that cruel. It's just incomprehension. What is cruel is the violence that tends to spring from it. Maybe behavior extinction just seems cruel because it seems to say that we're not from the same tribe. That is, it says, "In spite of what you may have thought, we are not alike enough to communicate. It is obvious, to me anyway, that I cannot predict or control what reaction my actions will ellicit and, for me anyway, that is reason enough not to open up to interaction with you." That seems so cruel.

First philosophical question: Does Bill's Blog exist?