Note: the following constitutes an email exchange between my colleague and fellow Torts professor Peter Carstensen and myself concerning my four part posting late Friday afternoon, which I transmitted to my faculty colleagues on our internal "factalk" listserv. Peter is not the only colleague expressing unhappiness with my postings, but this is the only extended written dialogue I've had thus far.
Peter and I had better times together in the past, and have had fun and profit discussing both tort law and the teaching of tort law in past years. We both studied under Guido Calabresi at Yale, and have been deeply influenced by his prodigious contributions to our understanding of tort law in particular, and law more generally. This posting reflects a very sad deterioration in our relationship, which has been exacerbated by our sharp disagreements over L'Affaire Kaplan, and the law school's response to it, over the past six weeks.
Peter wrote the initial letter: I have interposed my response to create the form of a dialogue. [Peter's email in its original form is posted as a comment to this entry.] Peter has not had the occasion to respond to my responses [I'm posting this online on Saturday morning, having not heard from Peter privately since sending my reply to him first]; if he wishes to do so, I will try to arrange for a next round. I have made a few stylistic and substantive modifications to my own half of the dialogue; I've tried to highlight any major ones. [As a result, I don't have to [sic] myself here--obviously an unfair advantage typographically.] I've tried to reproduce Peter's side of the dialogue precisely as written. Obviously, some allowances must be made for occasional typos in such an exchange, but I didn't want to make any changes in his part of the conversation to correct obvious typos.
Perhaps I should add that not all of my communications with colleagues are quite this spirited.
Peter Carstensen wrote:
> Alan (for you alone without factalk),
>
> P: But for your sensitive character,
A: Oh, I've toughened up over the years. Must be all that stuff in torts about [limiting certain kinds of damages to persons with] reasonable sensibilities. Or maybe facing death, and deciding what is important for the rest of my life, however long that may be.
>P:... I would respond to your postings on factalk this evening that the issue in the news reports you have shared with us is not whether a faculty member can or should present the information, but rather the thought that goes into the presentation and any adeverse [sic] consequences that follow from such a presentation.
A: That is fair, so far as it goes. But see below.
>P: Before a class, a teacher needs to think through the implications and likely response that sharing the information (assuming it is presented in the belief that it is an accurate statement of facts) may have and be clear about why it is being done. If the faculty member is teaching about corporate law, neither of your examples is apparently relevant,
[Added here: A: In that case, neither is this entire conversation]
> P: But if the class is one on family law (the role of convential [sic] or customary rules would be highly relevant and complicated) or first amendment issues (when can/should the law intervene to limit or forbid knowingly false statements about religious groups), then it is plausible that the faculty member would want to use the current event to focus class discussion of important legal issues.
A: How about a class on legal process or jurisprudence [the courses Len teaches], where the precise question under discussion is how law deals with differences of culture and cultural assumptions among disparate groups living under a purportedly "neutral" law? The question in this NYT article is precisely the issue Len was trying to bring out in his class, and to examine in a number of differing national and legal contexts (in what he terms "the liberal state"). The question of whether a teacher could properly bring in precisely that article [NYT on the German court] to focus such a class discussion is exactly the question I am trying to raise, and to get my colleagues to confront. "Teaching the controversy" is precisely the issue. It should have its place --a proud and honorable place--in any law school that I would want to be associated with. How about you?
>P: As you heard on Tuesday, the key for being a competent teacher is to think about the presentation of controversial information ahead of time, including verifying its accuracy, and reflect on how to bring this information to a class in a way that encourages rather than discourages discussion.
A: Thanks for that useful reminder. I'm all for that. Always have been, always will be. That is my regular practice in and out of the classroom. (BTW, I note that my [factalk] postings late this afternoon, however characterized, seem to be having precisely the effect of encouraging some meaningful, rather than phony, discussion among its intended audience.)
>P: Second, if despite the teacher's best plans, students are troubled by the manner of presentation or the implicit or express assumption of the teacher that the infromation presented is factually correct (e.g;. suppose the statement were that all German's [sic] believe in the Koran and so second and third generation German imigrants [sic]are potential terrorists),
A: And what does that have to do with anything? It's a classic red herring (or red brigade-doon?) in terms of Len's situation.
>P: ...then the teacher, when questioned by students concerned by such arguable false statements,
A: BTW, I've had occasion in recent weeks to speak with mental health practitioners who have worked with Hmong patients in situations of the sorts Len was trying to address. I've read a bit of the case law, and some of the law review and anthropological literature [including the Wisconsin Law Review piece I posted earlier], relating to these issues. How about you? I wouldn't be quite so quick to jump to factual conclusions as you seem to be, or to mush important distinctions in the meaningless blather about "avoiding stereotypes". Both Len and I are about making careful distinctions in full factual and social context. I'm not sure a public debate on the issue is necessarily the best idea at the moment, [added: but here we are.] My own sense is that the realities are reasonably complex, rather more so than was suggested by the re-education lecture on the heroic Hmong people and our virtuous joint struggle against the Commies that we were subjected to. [Stylistically edited to clarify meaning: I wish the lecturers spent more time]... confronting the hard realities of the range of Hmong experience in America, which was Len's actual subject for the relatively few minutes he devoted to it (among many other examples he covered that day).
I do believe that during the Vietnam War and post-War circumstances, America abandoned and betrayed the Hmong, and that we owe a continuing debt of honor to try to improve their circumstances both here and in South East Asia. So does Len. That is what he was trying to say, and to teach, in a small part of that class. [He also tried to make this clear in his statement of March 5 to Dean Davis.] It should not follow that some of the difficulties faced by the Hmong in acculturating into American society, like the problems of virtually all immigrant (and indigenous) groups, should be immune to or off-limits from critical inquiry and analysis. Or do you disagree?
>P: ...has an obligation both to explain why the example was relevant and to justify its use/accuracy (not demand that the students disprove its validity especially if the teacher also subsequently denies making the statement that the students believe the teacher made).
A: I am virtually 100% certain that that is not at all what happened, not least because Len spoke to me immediately after his 1 hour and 45 minute session with the students, and reported that he asked them to take the next class to share their perspectives, bring in members of their community, do whatever they wanted to present their views and turn this into a teaching moment for the entire class. That stuff about burden of proof is a crock, and you know that as well as I do. You also know the statements attributed to Len by the students are utterly preposterous. If you don't know that from knowing Len ([for more than 30 years] or for that matter, virtually any experienced law professor on our faculty, or for that matter, in the country), consult the statements of the other students who were there (and who feel their perceptions of what happened have been disregarded and marginalized by the law school administration you have been so eager to defend). Who are you kidding?
It is just possible that Len encouraged the students to act as lawyers in training, and did not treat them like children. For me, that is a mark of respect rather than the condescension or paternalism that have been running rampant around our halls. I'm all for being a caring and compassionate teacher. You've taken considerable delight in ridiculing me for that excess of "sensitivity" over the years. But in the end, we are our students' teachers, not their parents, and our job to teach them to become professional lawyers, not professional victims. Or do you disagree with that, as well?
>
>P: As a torts scholar you will recognize that I am speaking to basic issues of due care in instruction and the framework set forth is one that focuses on avoiding educational malpractice.
A: Quite so. The potential educational malpractice I have [been most concerned about] in recent weeks is quite in the other direction.
> P: However, because you would see such comments as a hostile and negative response to your sarcasm,
A: Quite the man to refer to sarcasm. Actually, I enjoy a good, meaty, substantive debate, and much prefer it to the sarcastic, underhanded comments you've been making about me to colleagues behind my back. If you want to take this public, be my guest. Do you have any objection to my doing so, by posting this exchange to my blog? Actually, I believe I have the right to do so regardless of your permission, but I'll wait a bit for your response first.
>P: I would never consider saying anything of this sort to you. [Peter]
A: Of course not. You've made it perfectly clear that you prefer saying it about me, to others. This is a considerable improvement on your part. Alan
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