By Jenny WhalenFeb. 27, 2015
Law students are expected to learn, in explicit terms, what the law says, but it was an interest in the implicit that led students to pack a Feb. 26 lunch talk at Michigan Law.
Sponsored by the Michigan Journal of Race & Law and featuring Professors Eve Brensike Primus and Margo Schlanger, "Left Unspoken: What Those 1L Cases Were Really About" offered students the opportunity to directly address the racial, gender, and social justice issues underlying many of the cases they studied as 1Ls. Issues that were not always raised in classroom discussion.
"Why is race the pink elephant in the room? Because people don't talk about it," Primus said. "Raising these issues in class is something the faculty is concerned about and continues to have conversations on."
While not every case lends itself to a discussion of social justice, Primus and Schlanger encouraged students to express their interest to professors in situations where such conversations may be relevant.
Few torts cases, for instance, raise explicit racial questions, but social justice and inequality are important issues to understand if you want to understand how torts work, Schlanger said.
She suggested that longstanding doctrinal rules sharply limiting recovery for negligent infliction of emotional distress may be partially the result of (male) judge’s anxiety about women’s perceived fragility. “Many of the early cases are about miscarriages and so-called hysteria,” she said. “Judges worried that women might be malingering, or just crazy. That’s part of the explanation for how the doctrine ends up where it does.”
Other courses, by the very nature of their content, provide a more obvious opening to discussions of equality.
"Criminal law is all about race, and sex, and social justice," Primus said. However, that isn't to say that further discussion isn't warranted. To illustrate this point, Primus focused on the Bernhard Goetz case of the late 1980s.
"Why is the Goetz case important? The big thing is that it raises a question that commonly recurs in 1L classes. What is role of criminal law in dealing with societal prejudices and views?" Primus said.
Goetz, who shot four black teenagers with an unlicensed pistol during what he alleged was an attempted mugging in a New York subway, was acquitted of attempted murder in 1987.
Goetz claimed self-defense and the case raised important questions about the standard for demonstrating a person’s fear of imminent bodily harm. As Primus explained, “the question is whether the law should ask if a reasonable person would be afraid or if this particular person was afraid? And if it is a reasonable person standard, is the ‘reasonable’ person a typical person (who, unfortunately, might have racist views) or is there a normative component to the inquiry? The normative component is attractive to many, because we don’t want the law to encourage racism.”
"It's easy to be outraged at racism," Primus added. "But I also want you to see that there can be problems with trying to use the criminal justice system to correct society’s prejudices."
She cautioned students to keep this tension—between wanting to change social norms and not punishing individuals who adhere to them—in mind when approaching cases in which prejudice or inequality is an issue.
Schlanger added that systemic inequality may be built into doctrine.
"When we look at our justice system, which anchors damages to economic losses, what we are saying is that maiming a poor person is worth less than maiming a rich person. That on average, maiming a woman is worth less than a man, and an African American less than someone who is white. There may be justifications for that—but we need to talk about it," Schlanger said.
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