The Myths of Thane Rosenbaum

• Author: Daniel J. Kornstein
• Position: Daniel J. Kornstein is a partner in the Manhattan law firm of Kornstein Veisz Wexler & Pollard, LLP.
• Pages: 33-46

Page 33

It is the rare lawyer whose written work is simply a joy to read. Equally rare is the lawyer who feels as well as thinks, who really cares about how the law affects people. No less unusual is the lawyer who can think creatively and imaginatively about law, the legal profession and the administration of justice. Also hard to find is a lawyer preoccupied with the morality, the right and the wrong, of law in practice. Most uncommon of all, however, is the combination of all these traits in one cultured, literate lawyer, yet that practically unique and salutary, almost mythical, mixture of abilities is what we find in Thane Rosenbaum.

A professor at Fordham University School of Law, Thane Rosenbaum showcases his admirable blend of talents in his 2004 book, The Myth of Moral Justice: Why Our Legal System Fails to Do What's Right.¹ This beautifully and smoothly written book is filled with apt cultural and literary references, which itself gives hope for the literary ability of the legal profession. It is as emotional as it is thoughtful, as sincere as it is analytical. It is original and highly inventive. As its catchy title and subtitle broadcast, The Myth of Moral Justice seeks to unmask what Rosenbaum sees as the falsity of the law's presumptuous claim that it achieves moral goals. In the process, however, Rosenbaum builds his thesis on myths that he considers truisms, which, ironically, results in the perpetuation of those myths.

I Myth as Metaphor

The book's title, with its stress on the key word and metaphor of "myth," does multiple duties. It more than ably carries out the usual functions of grabbing a potential reader's attention and signaling the book's content. But it does more, much more. It turns back on itself by also suggesting a metaphor, an approach for thinking about Rosenbaum's book, for testing the book's cogency and validity. A myth is a popular legend, a traditional story that is part of a cultural heritage,Page 34 shaped by folk imagination, and that taps into and helps explain widespread beliefs. The myth or popular tale is not factually true, but because of its psychological penetration, still resonates by appealing to the imagination.

Ironically, Rosenbaum's "myth of moral justice" is itself built on a number of myths about the law that, when their true nature is exposed, deeply undercut the book's thesis. False premises, here as elsewhere, breed incorrect conclusions. This is not to say that the book is unimportant, or that it should go unread. On the contrary, it is very important and should be widely read, if only to provoke discussion of vital issues. Rosenbaum says many valuable and useful things, but he also perpetuates some common misperceptions about the law. These mis-perceptions need to be highlighted and explored, lest Rosenbaum's facile verbal skills hide the flaws in his logic.

As might be expected of a work based on psychologically penetrating myths, Rosenbaum's book is frank and disturbing, one that deeply unsettles the reader. That is a good thing; we need to be unsettled every so often. The Myth of Moral Justice, like other books in the same genre, forces us as lawyers to reconsider what we have chosen to do with our lives, to reexamine how we are spending our time on earth.² Are we practicing lawyers, Rosenbaum asks, part of the solution, or part of the problem? His somber answer is disheartening. All of us can thank Rosenbaum for making us look deep inside ourselves and evaluate the cognitive dissonance, the gap, between our ideal professional lives and our actual professional lives.

For all its good qualities, however, Rosenbaum's Myth of Moral Justice -because it is based at least in part on false premises- fails to come up with convincing, practical or realistic solutions to the problems he describes. Like Karl Marx on capitalism, Rosenbaum's critiques of the legal system are far more useful than his proposed changes, some of which, while heartfelt and well meaning, are pernicious nonsense that would aggravate, rather than improve, the legal situation.Page 35

II Rosenbaum's Thesis

Rosenbaum has a bold, if somewhat fuzzy, thesis. He argues for a "morally inspired transformation of the legal system."³ According to Rosenbaum, an "irreconcilable split" now exists between the "legal" and the "moral."⁴ "Doing the right thing," Rosenbaum says, "is generally not what motivates lawyers in the performance of their jobs."⁵ Rosenbaum wants to change the current system by calling "attention to other values, more spiritual and restorative in nature."⁶ He wants "moral reform" of the law.7

In Rosenbaum's brave new legal world, the law would do three things it allegedly does not do now. First, it would "strive to achieve moral outcomes."⁸ Second, the "human spirit" would receive the same legal protection as the human body and wallet, and the law would scrutinize "the actions of those responsible for causing spiritual violence, indignity and neglect."⁹ Rosenbaum's third and final legal reformation would consist of the law providing "moral remedies," such as apologies.¹⁰ Most of The Myth of Moral Justice develops Rosenbaum's three-pronged paradigm, arguing why it is needed and how it will better the situation. Along the way, however, he creates a Hydra-headed monster of myths in the form of broad, startling assertions that do not bear scrutiny.

Myth No 1: Storytelling Trumps All Other Values

The primary myth underlying Rosenbaum's book is the transcendent value he puts on storytelling. For Rosenbaum, himself a professional storyteller as the author of three thoughtful novels, the opportunity for a victim or witness to tell what happened is the single most important right afforded by our legal system. A great failing of lawyers and judges, in Rosenbaum's eyes, is their inability to realize how much a victim "wants to tell his story."¹¹ This need is so important, argues Rosenbaum, that it trumps many other competing values.Page 36 "[T]here is no way to heal emotionally from an injury," writes Rosenbaum, "if the story goes unheard and victims are denied their moral right to testify to their own pain."¹² Rosenbaum's preoccupation with the therapeutic effect of storytelling leads him, unfortunately, to make some very misguided suggestions.

Because he values storytelling over almost anything else, Rosenbaum would do away with legal rules that cut off any part of a victim's story. He thinks it is absurd to dismiss a complaint for failure to state a claim because that deprives a plaintiff of the opportunity to tell his or her story.¹³ But if there is no legally cognizable claim, why is it unjust or immoral for the legal system to dismiss such pleadings and deny the plaintiff a publicly-funded platform? Likewise with statutes of limitations, which Rosenbaum dislikes because they also prevent a victim from telling his or her story.¹⁴ Settlements, plea bargains and class actions strike Rosenbaum as "questionably moral," because they reduce opportunities for victims to recite their narratives.¹⁵ For the same reason, Rosenbaum objects to rules of evidence and constitutional and other privileges that in any way narrow a witness's testimony.¹⁶ "The rights reserved for the accused," he says, "have trumped our moral entitlement to truth."¹⁷

Rosenbaum thus refuses to accept a pluralistic legal universe in which other values besides storytelling count for as much. But whatever the cathartic benefits of storytelling may be, our civilization and our legal system have reasonably balanced them against other, competing values. Rosenbaum has not sufficiently taken to heart the lessons, taught so well by Isaiah Berlin, about choosing among and balancing countervailing values of equal importance.¹⁸ Rosenbaum avoids what Berlin describes as the "uncomfortable truth"¹⁹ that "ends equally ultimate, equally sacred, may contradict each other."²⁰ Unaware of Berlin'sPage 37 teaching, Rosenbaum opts for the dangerous monism of storytelling over everything else.

The rules of evidence in American law are the product of centuries of experience about what parts of stories are unreliable (hearsay, for example) and what relationships are too precious to invade (attorney-client, doctor-patient, penitent-clergy, husband-wife). Statutes of limitations exist, at least in part, because the passage of time impinges on the accuracy of memory and the reliability of a witness's story. Finality and repose, not to mention the sheer impossibility of trying every case to conclusion, make settlements, plea bargains, class actions, and early dismissal of obviously bad claims a good thing, even if as a result some (rightly or wrongly) aggrieved parties are denied their several days in court. Thus, even the legal system's search for the truth sometimes yields to other, higher values.²¹

Nor does Rosenbaum accept the very real practical limits on the ability of the legal system to allow everyone to say what they want to say. He disparagingly and blithely brushes these limits aside as mere "bureaucratic efficiencies" that "trample all other values."²² But that is more than a bit glib and cavalier. Rosenbaum ignores the overwhelming concerns of efficiency, time, effort and cost of providing such forums. What Rosenbaum champions simply cannot be done, even if it were desirable. Thirty years ago, in One Just Man, novelist James Mill ably portrayed the complete breakdown in New York's legal system when attorneys stopped making plea bargains.²³ In this sense, and on this issue, Rosenbaum is hopelessly unrealistic.

None of this is meant to denigrate the...