Justice and Revenge, Rosenbaum Trolling

I heard Thane Rosenbaum on NPR yesterday, and was instantly struck by how juvenile this law professor’s understanding of justice and human nature is. (Greenfield wrote last week about Rosenbaum’s Chronicle of Higher Education piece.)

Rosenbaum’s stated premise is that justice equals revenge: “A call for justice is always a cry for revenge.” This is transparently false. There are many different notions of justice, and often when an injured person calls for justice he seeks restoration rather than retribution.

Rosenbaum asks, “Now, in cases where we have the worst of the worst, where there’s no question of someone’s guilt—heinous murders—why is it that we’re so ambivalent about actually providing just desert?” One answer, obvious to anyone who has ever shook hands with the criminal justice system, with ethics, or with Philosophy 101, is that the result of our actions is not necessarily an accurate measure of what we deserve.

In the CHE piece Rosenbaum writes, “America is no less civilized or law-abiding because bin Laden was assassinated.” This is at best arguable. I get the impression from listening to and reading Rosenbaum that he is trying to make his personal impulses the norm. But society serves to moderate, rather than amplify, personal impulses.

On further reflection, I can’t believe that a law professor is really so much of a simpleton. It’s not that Rosenbaum has a juvenile understanding of justice and human nature. I think it’s that he’s trolling us.

There is an interesting discussion to be had of the proper role of retribution in the American criminal justice system: retribution is a natural impulse; why should it yield to our moral intuition that punishment should be proportional to responsibility? Why should society strive to be “better” than its members, where being “better” means not satisfying members’ undeniable retributive impulse?

Unfortunately for that discussion, Rosenbaum overstates his case to the point of triviality to get attention (you’re welcome) and to sell books.

The Sandwich Theory

Quoth Papa Greenfield:

Shortly after an instructor first arrives at Cardozo’s Intensive Trial Advocacy Program, after settling in with a bagel and coffee, Ellen Yaroshefsky would give a speech about how to critique the students’ performance. It’s been the same speech for years: First, tell them something they did well. Give them praise. Then, when you tell them what they didn’t do so well, be gentle and constructive. End up on a positive note.

This is the new rule of teaching.…

This is not the new rule of teaching; it is an old rule of management. I remember hearing it from my dad some thirty years ago: when  you are giving a correction to someone you’re supervising, sandwich the negative between positives. 

It is a broadly accepted social convention. The question is, is it an obstacle or an aid to teaching?

Greenfield seems to think it’s an obstacle:

The directions to say something positive first, offer “constructive” criticism (and I use [doubt] quotes because construction is in the eyes of the student) and close on a positive note, creates what the study aptly describes as a Praise Sandwich, designed to make the student feel good at the expense of teaching the student to do better.

I am unconvinced.

Teaching and trial lawyering have a lot in common. In trial, we tell our client’s story the way we tell it not because of some idea of the “correct” way to tell a story, nor to convince some idealized jurors, but because we think that the way we tell the story will be the most effective way to get the actual jury to agree with us.

Scott, who would never try a case as though to idealized jurors, wants to teach as though to idealized law students:

While one might hope, even expect, law students to be both tough enough and interested enough to be capable of handling more serious instruction, including the occasional harsh recognition that they are totally off the mark, the evidence is otherwise. They can be just as fragile, entitled and narcissistic as any kindergartner.  Should they end up before a judge or jury one day holding another person’s life in their hands, their praise sandwich isn’t going to do them much good. But as long as they feel they were fabulous, that’s what really matters.

Yes, law students can be just as fragile, entitled, and narcissistic as any kindergartener. So, for that matter, can criminal-defense lawyers, even very successful ones. But just as the trial lawyer’s job is to convince real jurors, the trial advocacy instructor’s job is to convince real students. The Sandwich Theory has become social convention because it works. It works because most human beings—not just law students—are fragile; by sandwiching constructive criticism between slices of praise, the teacher sends the message that the criticism is not personal.

And yes, criminal-defense lawyers should be tougher than that. But the Sandwich Theory is a teaching tool—perhaps an effective one—and if you want to teach people you’ll use whatever tools come to hand.

There’s an ongoing philosophical debate among those of us (we happy few) who think about such things: whether, when a lawyer’s request for help reveals that he is out of his league, it is better to provide him with the help he asks for (enabling his continued blundering, but helping his current client) or to decline to help (not helping his current client, but not encouraging the lawyer to continue punching above his weight). Should we help the accused at the cost of nurturing incompetence, or make incompetent practice difficult at the cost of the accused?

At some point those who aren’t cut out for this job need to figure it out. Those who can’t stand being told that they are wrong, wrong, wrong should find their way into other ventures (like prosecution, or bonsai gardening). This is likely to happen eventually, though clients may be hurt in the interim.

But law school is not the place for this cull to be made, and where the Sandwich Theory is the advocacy program’s rule, it is not the instructor’s role to weed out those students who aren’t going to make it.