A Failure of Imagination
When Thane Rosenbaum surveys the contemporary legal landscape, he sees one thing missing from the picture: imagination.
He comes to that conviction from a unique perspective. The author of The Myth of Moral Justice: Why Our Legal System Fails to Do What’s Right (HarperCollins), he is also a Fordham University law professor and a highly regarded novelist. Imagination is the air he breathes.
“Lawyers aren’t known for their imaginations,” he says, “and yet it’s precisely this deficiency that accounts for so many laments about the law, both from lawyers themselves and from their clients.”
Rosenbaum believes he understands the widespread resentment toward lawyers. “People want something from them—their sound judgment, their advocacy and so on,” he says. “But the lawyers’ vision of what they can do for their clients—what’s possible—is so myopically constrained that the clients’ anger ends up getting focused on them. It’s partly a sense that the lawyers don’t hear their words or their inner screams.”
What happens, he adds, is that the law becomes “a hammer for clients’ misplaced rage.” Lawyers then rename that anger, sense of indignity and hurt and call it something else—a breach of contract, say, or a failure to exercise due care. The problem is that doing so doesn’t speak to the underlying grievance.
The Myth of Moral Justice, which has been widely reviewed since its May publication, seems to inspire strong feelings, both from readers and reviewers who welcome its call for radically humanizing the law, and from those who see Rosenbaum’s vision as naïve and impractical. After all, he proposes what amounts to a rethinking of the fundamental way in which the law is practiced and administered, and does so from a moral perspective.
Indeed, as the book’s title suggests, morality is at the center of Rosenbaum’s concerns. The crossroads where it meets imagination is where he is most passionate and, to his mind, it represents the greatest opportunity for change. He addresses the possibilities in chapters on such topics as the role of feelings and emotion in the law, the law’s preference for the body over the spirit, and the restorative dimensions of acknowledgment and apologies.
An imaginative lawyer, in Rosenbaum’s vision, is one who eschews refashioning clients’ grievances into purely legal terms, as is standard practice. When lawyers do so, he says, they eliminate the very human possibility of remedy and relief in a spiritual context. For Rosenbaum, there is no reason why lawyers can’t find ways to convey not only the legal harm but also the human harm, and in so doing help the client to feel heard.
CRIES AND WHISPERS
The simple fact is, parties to a lawsuit seek out lawyers and long for justice so that they can receive a day in court. Essentially, they want their stories heard, their grievances addressed, their losses compensated—a true resolution to their pain.
A simple way that this might be done, even if a client is not entitled to legal relief, is to simply tell the judge that a client has to have an opportunity to speak on the record. “What’s wrong with a judge saying, ‘Given what you’ve experienced, it must have felt horrible. We want to acknowledge what you went through’?” The point, says Rosenbaum, is that far too many people never get to unburden themselves this way. “So many people leave the courthouse saying, ‘That’s it? I didn’t even get to say anything.’ Lawyers and judges have the opportunity, and can find the imagination to do such things. It would make a huge difference in the way that people view the system.”
In law practice today, Rosenbaum points out, 98 percent of cases either settle or end up in plea bargains. “And the remaining cases are shunted through the grinding legal process or narrowed by evidence rules. So hardly anyone is getting heard.”
LIKE NOVELISTS DO
Additionally, Rosenbaum argues, a lawyer must have some sense of what every novelist knows: It is in the “back story,” the story behind the story where we come to understand how a client came to be where he or she is today.
“We must give these stories a place in the courtroom,” Rosenbaum says. “That’s really the key. Very often courts take a position that the only thing that matters is what materializes in front of the judge, when in fact the essence of the hurt and indignity happens much earlier, is emotionally based and has nothing to do with the legal rule.
“It is rather funny, really,” Rosenbaum says, “but there is one area in which I think lawyers and judges have been extremely imaginative, and that’s in the number of ways they’ve found to stifle clients’ stories.”
A truly moral system of justice, he believes, cannot function that way. As an example he points to the compensation fund for relatives of the victims of the Sept. 11 attacks, who were given precious little opportunity to express their pain in a public forum. These were people who “more than anything else cried out for spiritual relief and moral justice.” But, says Rosenbaum, the system failed them.
“The victims of Sept. 11 were speaking one language,” he has written, “while the law jabbered in its own turgid, predictable, untranslatable tongue.”
Oddly enough, Rosenbaum’s claim that our justice system is morally deficient has not been challenged, even by those who are otherwise critical of some of his ideas. In fact, in both his public appearances and in book reviews, the main premise, of moral neglect, has seemingly been taken as a given. Instead, what has gotten people up in arms are his suggestions for reforming the system to make it more moral and more respectful of the people it is meant to serve. People have been troubled by his calls, essentially, for introducing moral considerations, such as acknowledgement, apologies and basic dignity, into the legal system. It is simply seen as too impractical.
In preparing to be a panelist for a recent bar association program in New York City on The Myth of Moral Justice, Denny Chin, a federal district court judge in Manhattan, contemplated a trial over which he had just presided. Having read Rosenbaum’s book, he wondered whether the trial had resulted in a morally just outcome.
Interestingly, the case was scheduled for a retrial, and Chin considered whether he could apply some of the moral principles in the book, even if the legal outcome turned out to be the same.
For instance, the judge wondered whether there was a way to provide a greater sense of dignity for the victim and allow more of her story to be told. Moreover, he wondered whether it would be possible to fashion a remedy that would go beyond a mere damage award, and also provide the spiritual relief that comes from acknowledgement. He even considered ways in which to correct, morally, for juror biases.
Judge Chin says he found Rosenbaum’s book helpful in thinking about ways to infuse his courtroom with a moral consciousness that was not necessarily inconsistent with legal decision-making.
He recalls the evening fondly. “I was amazed. … The place remained packed after two hours on a rainy night,” he says. “I went away thinking about how important it is to constantly strive to do better.”
Perhaps that’s all that Rosenbaum is longing for. The question, however, is whether the bar is imaginative enough to at least consider what he is saying in the service of meaningful change.
Steven Keeva, an ABA Journal assistant managing editor, is the author of Transforming Practices: Finding Joy and Satisfaction in the Legal Life.
