Law in Contemporary Society
I keep thinking back to something Eben brought up in class last week (Tuesday)- namely, the idea that if you see a problem, or something that you don’t think is OK, you should be doing something about it. I think Eben’s comments resonated with me because they struck a chord with a sort of guilty feeling I’ve often had. The guilt doesn’t come from actively doing anything wrong, but from not actively doing anything that seems particularly right. I’ve often felt uncomfortable with the idea that my life could be considered a moral life when I don’t really think I do anything to correct problems that I see around me. I think the issue boils down to a question of inaction as a morally culpable offense. I do think there is a moral imperative to act when we see something that we think is wrong. I think this idea leads to guilt because I don’t think that I do enough to act, and it’s something that I hope to change if I can figure out how. It made me start thinking about ideas that I’ve struggled with before- for instance, what difference is there between letting someone die before your eyes and not giving them (for example’s sake) the five dollars in your pocket that could save them by buying them food, and not sending food or support somewhere when you can spare it and where it could have a similar lifesaving impact? When does not doing something become as wrong as doing something positively wrong? It’s hard for me to figure out the difference- maybe this is because there isn’t a meaningful one.

I’m wondering what other people think about this. If a person sees something wrong in the world and doesn’t do anything about it, is he or she more culpable than someone who simply doesn’t see the wrong, by choice or by chance? It sort of reminds me also of the philosophical question- is a person brave who isn’t scared in the face of danger, or is a person truly brave who is scared and proceeds anyway? I can’t really articulate how these are connected, but I think it has something to do with making active choices and being aware of situations and choosing to overcome them (as opposed to not facing those choices whatsoever).

I know that I’ve made decisions recently because I’ve felt a certain moral imperative- for instance, I wanted to go on a spring break pro bono caravan because I wanted to do some beneficial work that could help people who actually needed it (and I thought it would be interesting, fun, and a great way to meet new people). But in the February doldrums, the idea of taking a week off to relax, catch up on work, and have some fun here in New York started to appeal to me. I felt guilty that there was a chance for me to do something good and that I might not take that chance- it was as if by not going on the trip I would be actually doing something wrong. I decided to go- not only because of this moral dilemma I had created for myself, but for my original reasons of wanting to go- but I have to say, there was a little bit of guilt! So I guess the topic I’d like to raise is to what extent not acting can be a culpable thing- are we all guilty for not doing more in the face of problems we see in the world around us? I certainly feel that way sometimes. And I don’t want to say that there aren’t many in this class who are doing things- I just wonder about people like me, who have ideas and thoughts about things that we see are problematic, but don’t necessarily do much towards accomplishing anything. It sometimes makes me feel guilty. I think this is the root of my own FearAndAnxiety – that I will be morally deplorable, not because I do something bad, but because I don’t do something good

-- JessicaHallett - 08 Mar 2010

Jessica, I know exactly what you mean. I feel guilt all the time. Living in DC and living here, the wealth disparities are SO apparent that you become anesthetized just to cope. Specifically homelessness. There's a homeless man that sometimes lives in my building, in the intermediate space that's not locked. I've never talked to him and rarely see him, but occasionally when I come home really late, he's there sleeping. I have a spare bed in my apartment. I know it's against the lease and I have a roommate who certainly wouldn't agree and if I'm honest with myself, I don't know that I'd actually offer it to him if these barriers didn't exist, but I have a spare bed and there he is sleeping on the cold tiles, sometimes in a veteran's jacket, while I clumsily open the door. Each time I've seen him I'm wracked with guilt, but it's quickly rationalized and compartmentalized away. I'm a woman, there are children in this building, I can't offer him shelter.

When I came home last Saturday, there were police cars outside my building. I guess some one reported him and here were half a dozen policemen responding. I didn't see him, I don't know if he was apprehended, but I hadn't done anything to help one way or the other. Needless to say, I feel depressed about it. I don't know how to fix this irrationality, I don't know if Eben does really, but I guess all we can do is strive to do better, pick our battles, and hopefully come out of law school with a little bit more power than when we entered.

-- EricaSelig - 08 Mar 2010

I think of guilt as a lack of clarity, a sort of conflict within oneself. In life, there are risks to both sides, risks in doing the selfish thing and risks in doing the altruistic/right thing. By being selfish, we guarantee a narrow gain in the present, but miss out on an expanded sense of purpose, and miss out on connections with those we care about in the world at large and are able to help through our actions. On the other hand, altruism also poses risks, both the risk of failure to help those we thought would benefit, and risks of others failing to see the value of our contributions. In the end, I think it comes down to what kind of people we want to be as individuals, and what kind of life we think best for ourselves and those we care about. It's hard sometimes to decide on a purpose worth pursuing, but a purpose pursued with tenacity is the key ingredient in a happy life, or so I am told. Whenever I've had a long period of doubt, the best solution has been to stop thinking so hard and do the thing that seemed right from the beginning. Total clarity is perhaps too hard to come by to be worthwhile, and would also make accurate thought unlikely once achieved.

-- SamWells - 9 Mar 2010

Erica, I know you went to school in DC, as did I, and I am guessing there was a big push for a life of ‘service’ which, at least at my school, meant Government work, or non-profit work, or diplomacy work or work in the furtherance of the American reputation abroad. We were trained (or, speaking for myself, I was trained) to think of helping in larger terms – helping the nation do what it needed to do. There was not too much of a push, however, on this hands-on direct service work, social cognizance right here in America, that Eben seems to be in such strong favor of.

I admit coming into contact with those who needed my help here in New York city was sort of a shock (but what about land mines in Nagorno-Karabakh, etc.) but once I got over it, I re-defined 'help' in much more localized terms – helping the victims, helping those confused by the system, etc. And there is something so refreshing about that. I have no idea what I can do, actually, physically, to help citizens living under unfriendly governments in Central Asia (or East Africa or the Gulf states or the Baltics or in Central America, or Juarez, Mexico and the list goes on). Join the Foreign Service? Peace Corps for thee years (still on the government’s time and government’s agenda)? Work as a small-time UN bureaucrat? Write newspaper articles about systemic change that nobody reads? Make a documentary? Do these things really do anything? I have no idea.

But I know that I can make small but actual steps to help people living in America better their lives though my work in the courtroom. There is a lot of power in the knowledge: a degree in government will get you a vague government job doing vague government work, but a law degree means a license (pending bar results) to make actual, physical change.

I think that this is the kind of power that Eben is shaking us up about. Not the power to volunteer in a spring break caravan or the power to bring in a homeless man - its the power to use our degree to make systemic change. And I am really glad he has stressed it so emphatically.

AerinMiller - 11 Mar 2010


I have felt the same way far too often. There was an underpass about 2 blocks from my (inner city) high school which had steam vents under it. During 10th grade, homeless people who lived there used to sneak into my high school to use the bathrooms. Every few months, a police officer would catch one of them and would arrest them for trespassing, handcuff them and drag them through the halls kicking and screaming. This was quite the spectacle, and almost invariably we would get up and leave our classes and watch it. Seeing a screaming homeless person in handcuffs was far more interesting than learning geometry or social studies. Needless to say, in 11th grade they installed scanners at all of the doors and the problem was "solved". But the images stayed with me and for the rest of high school I felt somewhat guilty that there was so much need so close, and I wasn't doing anything to help.

To this day, I am struggling with the best way to take action (or to take a mix of actions) to get help to those who need it most. I think that it requires a series of different moves. Giving money is one. Helping individuals with specific legal problems is another. And working towards systemic change as lawyers is yet another. Doing one of these alone won't have a huge impact - but a mix of the three hopefully will.


I both agree and disagree with what you say. I think that using our licenses to help make systemic changes is of vital importance. Eben certainly has stressed this. But at the same time, I think that Eben has also stressed that we need to use our power on an individual level as well, especially in our discussion about Joseph Stack. Working to make big changes is important. There are a lot of problems at the macro level, and if we don't work to solve them, it is hard to see who will. At the same time, we must work at the micro level as well. There are a lot of individuals who have issues that we can help them find solutions to. They need one good lawyer who will work with them. This can be the difference between life and death. Finding these people and helping them get through their problems today is of vital importance as well. It is very easy to get caught up at the systemic level, trying to make changes that will affect people 20 years down the road, but to forget about the homeless man who doesn't have dinner and a warm bed today is a huge mistake. Figuring out a way to balance these two is important, and it is one of the things that I have taken away from this class thus far.

-- DavidGoldin - 11 Mar 2010

Hm I might not have been phrasing my main point clearly enough - I definitely recognize Eben's emphasis on this "micro level" change. It came up again (abstractly) in our discussion about the Mignionette, when he pressed us to drop all the moralizing and think about how we would try this case, where the crime was, if anywhere. This emphasis on case-by-case decision making and on thinking before each and every decision is nothing if not good works on the smallest level. What I was saying was merely that it took about three weeks of Eben's class before I understood the difference between working for the big picture Good, and doing good every day, in every decision. And I am glad that distinction has been made, because I think it is a critical one, and not necessarily one encouraged in college, or here by those running public interest programs.



Agreed - the distinction is an important one and one that wasn't brought up in college. All too often, we focus on instant gratification - we feel "good" when we work in a soup kitchen for a night, and it is providing a useful service, but it is important to see the forest through the trees (sorry for the cliche) and recognize that systemic work is vital as well. Thank you for the clarification!

-- DavidGoldin - 24 Mar 2010

I don't think homelessness is a good example of this issue since it's something you're forced to confront daily and make a decision about. Even if you act selfishly, at least you're forced to make a value judgment and experience the guilt that you rightly or wrongly feel. Personally, I think the idea that a young woman would allow a homeless man to sleep in her apartment is incredibly reckless and I hope you don't really feel any guilt about choosing not to do so. I don't even think it's in their best interest to give them money. A friend of my mine who does labor-side litigation in DC said he used to carry cards with him with information on the nearest homeless shelter that he would give them. I'm not sure what I think about that tactic - it's certainly what they need but perhaps too condescending.

Either way, I think it's also important to consider the wrongs we allow ourselves to commit, as long as it's only indirectly and under our willing ignorance; the Nikes on your feet, the diamond on your finger, the steak on your plate. Sometimes these things have come to us by avenues and methods which we would never actively condone or partake in. And we know this. But we don't have to see the damage caused by our decision or indecision, so it doesn't feel real.

It reminds me of the controversy from a few years back when Guillermo Vargas displayed an emaciated dog in his gallery presumably with the intention of starving it to death. Despite my personal love of my dogs, I completely understand the message he was trying to send. Stray animals are starving to death all over the world all the time. And not to state the obvious, but PEOPLE are starving to death! And there is no question that we could all make relatively modest concessions in our personal lives and save a significant number of them. That's too abstract. But when one dog is publicly starved, even though it was probably going to starve anyway, everyone is up in arms. That hypocrisy was Vargas' message, and I think it was a valid one.

It was never actually confirmed that the dog starved in the studio and various reports suggests it was released or escaped the next day, shortly after they had taken the photos required to cause the uproar. I'll admit that I was relieved to hear the dog probably starved in the streets instead of in the studio.

-- DanKarmel - 31 Mar 2010

@ Dan

I don’t understand the significance of your distinction between housing rights on the one hand and labor rights and sustainability issues on the other. If anything, we should be more concerned about local issues, because we have more control over them. “Think globally, act locally,” right? Besides abstaining from purchasing “blood diamonds” or non-fair trade food, there really isn’t a lot most of us can do about these particular systemic problems. On the other hand, we, as a community, could be kinder and more generous to each other. I spent my spring break in San Francisco, and the culture that exists there really embraces the homeless community. From what I gathered, they were by and large treated with respect and dignity and weren’t isolated to the extent that I think many are on the east coast.

Re. your DC friend, the problem isn’t that homeless people don’t want to be in shelters per se. There simply isn’t enough room, to speak nothing of sanitation: Also, I’m curious to know the reaction of those people who took (or perhaps threw back?) your friends card!

-- EricaSelig - 31 Mar 2010

Has anyone on here ever heard of the lifeboat hypothetical? I know that we are discouraged from thinking about "science fiction" scenarios, but I think the lifeboat hypothetical is realistic enough to have some significance in this discussion.

The basic idea is this: There is a shipwreck and several people are on a lifeboat. There are provisions enough such that all the individuals on the lifeboat can survive comfortably and a little extra--lets say enough to give everyone an extra cookie a day. There is another individual from the shipwreck floating in the water yelling for help very close to the lifeboat. The people on the boat can give up their cookie to save the drowning individual. Is it ever morally permissible for the individuals on the lifeboat to forgo saving the other individual in order to keep their cookie?

The parallels are fairly obvious. The individuals on the boat represent those individuals with enough material wealth to live comfortably and the drowning individual represents those that can be saved if we were to forgo just a bit of our wealth. Thus, the example is supposed to say, we are morally obligated to help the drowning person--in fact, we are morally required to help every person we can if we can do so while continuing to live.

Any thoughts?

-- ConradCoutinho - 1 April 2010

I believe that it is very wrong to live a life without helping others. I agree with Eben when he says that the moment is now. The more than we wait, the less than we do.

It would be great to actually change the system, but as David pointed out, helping particular individuals is equally important. It is useless to try to save a country if we cannot help people who we see everyday and sometimes we actually know.

I like to believe that life actually means something. That the most important things are not just material. I don’t wont to be old and realize that I didn’t do anything that changed another person’s life.

-- FranciscoGuzman - 4 April 2010


The distinction I was making between local and global issues is that there is an added layer of danger when certain problems are easy to ignore because their harms aren't in our faces. Regardless of what you think the proper approach to homelessness is, you're at least forced to be aware of the issue because you can't walk to class on any given day without walking by it. When I choose not to give change to a homeless person, it’s the result of a fully formed opinion where I’ve decided the short-term benefits don’t outweigh the long-term harms to the homeless person or to the community. Even if you disagree with me, at least we’ve both taken the time to form an opinion about it. The same can't be said for most people who support the diamond industry. I'm not trying to take a stand on diamonds one way or the other. I have no idea what the current state of the blood diamond industry is or how effective international efforts targeting some of the violence perpetuated by the diamond industry have been. But that's the point. I don't think about it, and neither do the vast majority of the people with rocks on their fingers. And yes, if we stopped buying diamonds that would make a difference. (What would be the cost of that, by the way?)

There's obviously nothing revolutionary about this "out of sight, out of mind" observation. It was just a response to your post expressing guilt for not allowing a homeless man to sleep in your apartment. I still feel very comfortable stating that to let a homeless man sleep in your apartment would have been extremely irresponsible, not to mention that the next day he would still be homeless. That then brought me to my point that some of the most pressing social issues are those that we allow ourselves not to feel guilty about because they aren't sleeping in our foyer. Even within the cause of homelessness, there are more effective ways to be “kinder and more generous,” namely through organizations like the one in the article you linked to. You could make fairly modest sacrifices in your life (and to be clear, this 100% applies to me as well) and direct that extra time and money toward a plethora of social causes, including some much more dire than homelessness in New York. Yet the guilt you felt compelled to mention was the example who you are forced to consider when he literally shows up at your doorstep.

-- DanKarmel - 11 Apr 2010

Dan, I wasn't arguing a policy position or suggesting that local housing rights should be placed atop a hierarchy of things we care about. Just relating a personal experience that left me frustrated with the current state of what I feel is unfair resource distribution.

As an aside, this particular issue may very well become "out of sight, out of mind" as Bloomberg appears to be constructively forcing many inhabitants of homeless shelters out of the city. Although I tend to think it's "out of sight" because many of us (me included) tune out the problem.

-- EricaSelig - 14 Apr 2010

To your credit, though, I don't think even the thought you had of offering a homeless person a bed has crossed the minds of all that many people, at all. It is also very easy to become desensitized to homeless people in New York, and perhaps someone more nuanced than I can broach the topic from a race perspective. It's not even a question of whether we would give more money to the young white female asking for money to go home in Bryant Park than the homeless black man asking outside of Appletree Market; it's whether certain types of people even register. Honestly, I was stricken by the sight of a girl sitting cross-legged in front of NYPL's Bryant Park Branch in the cold, with a sign asking for money so that she can go home, and the arguments against giving money to people who ask ("improper uses," fraud, availability of homeless shelters, etc) did not even across my mind. Though, later, the thought that she might have been a college student conducting a social experiment did.

Anyway, I was working on an essay about this and then I remembered I got the whole idea from this discussion. In high school Ayn Rand was very popular and sometimes I still catch myself remembering her rhetoric, such thoughts as: at what point of doing good does the benefit to someone trump the burden to me? The answer to that question is always be very selfish because it would be centered on some concept or another of deriving happiness from having done a good work surpassing that of the pleasure of leisure. I realize now that such a answer is very wrong, because it is centered around an amorphous, inconstant thing that is the pleasure of the "good-doer." Such an compulsion cannot last through the toil of working to the best of one's abilities. At least, I don't think it can. I think far more reliable is Francisco's simple declaration that it is wrong to live a life without helping others. A duty is far more immediate and compelling, and the best answer and conclusion to thoughts about why we should strive to do good work.

This morning, I saw this article about an incident that happened about 5 minutes from my house, and thought this was the appropriate place to post it.

-- DavidGoldin 25 Apr 2010

An update which discusses a few more of the issues.

-- DavidGoldin 26 Apr 2010

This reminds me of the drowning child hypothetical, which was investigated by Peter Singer. Most people would say there is a moral obligation to save a child who appears to be drowning, but in doing so, individuals often instinctively do a cost benefit analysis-i.e. is there anyone else with a clear duty, what happens if I urgently need to be somewhere and my clothes get what, etc. Nevertheless, there seems to be a consensus on some sort of obligation-although American tort law on bystander liability seems to go against this notion.

This cost-benefit analysis shifts as distance is factored in- is there an obligation to save a child you know is drowning in a pond in the next town or country if possible (or a starving child)? The answer becomes more tenuous, shedding light on the debate about privilege and global wealth disparity.

There are a lot of psychological factors that serve to justify the lack of response to long-distance strife. In The Life You Can Save, Singer posits some very controversial theories, but among the criticisms he has received is that he is a privileged Princeton professor writing from his ivory tower (though he donates approximately 20% of his income to charity).

This reminds me of Eben's point that many of the professors teaching us law and policy do not have field knowledge. It goes back to a discussion we had about the lack of preparation we receive for being real-world advocates. I know my favorite classes so far have been those that weave in social policy justifications and consequences with legal doctrines, but I wish this type of teaching and discussion were more prevalent.

-- NovikaIshar - 27 Apr 2010



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