Legal Commentary

The thoughtful comments left in response to my last post have prompted me to reflect more on the question of controversial sentiments in the classroom. I?ve received a few emails inquiring whether I personally fall in with Freud or Sartre, I realize that my answer is ?Neither ? I?m with Kant.? That is, my primary focus is on the structure of arguments, not on their substance. I may find many views or ideas expressed in class material or by students to be personally offensive or alarming, but for the purposes of the classroom, ideas are only bad insofar as they are irrelevant, non-informative, or logically flawed. I take Freud and Sartre to stand for two important supplements to this approach. From Freud we can take the concept of symptomatic reading: the very articulation of irrelevant, non-informative, or poorly reasoned ideas are often responses to concepts perceived as threatening. If these ideas are allowed to emerge without censure, they can then be confronted and resolved, ideally resulting in greater self-awareness and knowledge.   From Sartre we can take the lesson that there is no such thing as neutrality; to speak is to take a side, not only normatively, but also descriptively. The idea that anyone - professor or student -  can completely avoid "injecting" his or her views into a discussion is a fiction, as Patrick notes.  There is no genuinely objective position, and much mischief can flow from that delusion. What professors and students can do is strive to be conscious of their subjective investments, to calibrate their claims closely to their evidence, and to defend their propositions according to universalist principles. 

This is a complex endeavor, to be sure, and context surely matters, as Orin's query implies. Let us imagine an example - a criminal law class covering the topic of rape.  The professor begins with statistics on sexual assault from the National Crime Victimization Survey (NCVS).  A student raises his hand and expresses the view that women often lie about rape, and so we cannot take the numbers seriously.  Would engaging this view advance the goals of the class, or derail the discussion?  I can imagine a series of questions to the student, some interrogating the claim's relevance and informational value, and some analyzing its reasoning, e.g., On what do you base this claim? Do you believe the methodology of the NCVS is fundamentally flawed? If so, do you also take issue with the NCVS statistics on, say, robbery? If the answers to these questions are vague, anecdotal, or inconsistent,  e.g. "I just think it's really easy for women to lie," "This girl in my high school lied about being raped by someone," "No, I don't think people lie about robbery," then the Freudian question might be an important one: why are you invested in this claim, despite having little or no evidence to support it?  This question could be the departure point for a larger discussion of the social and cultural perceptions of rape and the effects these perceptions have on the reporting and prosecution of sexual assault.  To ignore or set aside the comment would, I think, foreclose an important pedagogical opportunity, even if to address it might be time-consuming and frustrating. Perhaps even more importantly, there would be nothing neutral about letting the comment go unchallenged. The claims we pass over in silence receive through that silence some form of legitimacy that they often do not deserve. 

I've had a terrific time guest blogging here at Prawfs - thanks to Dan Markel and to all the Prawfs folks for the experience!