Friday, August 02, 2019

Malcolm Gladwell Mangles Casuistry

by Michael C. Dorf

The fourth season of Malcolm Gladwell's podcast Revisionist History includes a great deal of material of relevance to lawyers. Episodes 1 and 2 critique the LSAT and time-pressured law school exams on the ground that they reward quick thinkers at the expense of slower-but-deeper thinkers. There's much in those episodes with which I agree. For just about all of my 27 years in law teaching I have given either 24-hour or 8-hour take-home exams rather than 3-hour in-class exams for exactly the reason that these episodes underscore: The real-life practice of law often puts time pressure on attorneys, but (except perhaps during a trial when an attorney must make split-second decisions whether to object to proffered evidence) rarely does actual legal practice involve the kind of time pressure that the LSAT and in-class exams place on test-takers.

That said, these episodes overclaim. For example, Gladwell contrasts chess grandmasters who are the best speed players with those who are the best players at a normal pace. Fair enough, but Gladwell fails to recognize that even those he calls tortoises are better at speed chess than nearly everyone else in the world, while even those he calls hares are better at normal-pace chess than nearly everyone else in the world. And likewise in law. Time pressure is a source of variation in performance, but it's not the only source and rarely the most important. Time pressure will affect the performance of various excellent lawyers differently. Some excellent lawyers are truly outstanding under time pressure; others are excellent; some are merely very good. By contrast, incompetent lawyers will be incompetent at any speed.

In the balance of this post, I want to focus on another set of flaws in Season 4 of Revisionist History. Episode 5 begins a three-part mini-series on casuistry--a method of moral reasoning closely associated with the Jesuits. The word casuistry is sometimes used as a synonym for sophistry or fallacious reasoning, but Gladwell uses it in its original and literal sense, as case-by-case reasoning rather than deductive reasoning from general principles. (Casuistry derives from the Latin casus, meaning case). I share some of Gladwell's appreciation for this form of reasoning, but I think his key illustrations misfire badly.

In Episode 5, Gladwell asks listeners to reconsider the case of Andy Pettitte, who, over the course of a long major league career, pitched very well in the regular season and outstandingly in the playoffs for the Yankees and (for three years) the Astros. Pettitte had a clean-cut image, so it came as a disappointing surprise to many of his fans when the Mitchell Report on performance-enhancing drugs (PEDs) revealed that during the 2002 season Pettitte used human growth hormone (HGH) to speed his recovery from an elbow injury. Pettitte then admitted to doing so and issued a teary non-apology apology. He was roundly condemned for failing to truly accept responsibility.

Hold on, says Gladwell. Maybe what Pettitte did wasn't so bad after all if we use casuistic reasoning. Everyone was thinking that Pettitte was like Barry Bonds--someone who took PEDs to gain an unnatural advantage, as evidenced by the change in not just his power but his hat size. Pettitte, Gladwell says, is more like Tommy John and all the other pitchers who had so-called Tommy John surgery--an intervention that roughly restores a pitcher to his performance level before he injured his elbow. If we think it's okay to restore elbow health with surgery, shouldn't it also be okay to restore elbow health with medication?

Gladwell makes two gross errors here that don't exactly cancel each other out but that do end up vindicating Pettitte. First, the distinction between taking PEDs for the purpose of building muscle mass versus for the purpose of speeding recovery is specious. HGH, like steroids and other substances, can be used to build muscle. For all we know, the only reason Pettitte's head and neck didn't swell to Bonds dimensions is that Pettitte stopped using HGH after only a brief period.

In any event, speeding recovery is one of the chief mechanisms by which one builds muscle. That's why if you're lifting weights to build mass you have to limit your weight and repetitions. Lifting as much weight as you can every day is counterproductive. You build muscles by stressing them and then resting them so your body repairs and builds. However, if you take a pill to take less time to recover, you can pump more iron more frequently to build more muscle.  Thus, even if a chemical agent operated only to speed recovery, it would be a powerful muscle building agent. Taking HGH to speed recovery is like taking HGH to build muscle; indeed, it is taking HGH to build muscle. So Pettitte's use of HGH made him more like Bonds than like John.

Except that it wasn't for a different reason that Gladwell completely ignores. Pettitte used HGH in 2002. Major League Baseball did not ban HGH until 2005. Pettitte himself made that exact point during his non-apology apology. Accordingly, one might think that Pettitte had no obligation to apologize at all.

Now hold on, you might say. Aren't there norms as well as rules? Sure, but norms allow many things that are "unsporting" in ways that we might think taking HGH in 2002 was. Consider the routine practice of catchers "framing" pitches. (For baseball non-fans: If a pitch is close to but outside of the strike zone, a skilled catcher will move his glove slightly upon catching the ball to a location that is in the strike zone in the hope of tricking the umpire into thinking that the ball crossed the plate as a strike.) Framing is pretty clearly permissible, and though one might think it unsporting, convention says it isn't. It is not clear whether there was a norm against HGH in 2002, and the fact that some of us think it was unsporting does not mean there was a norm against it.

In any event, I'm not now interested in the question whether the fact that HGH was not banned when Pettitte used it is sufficient to vindicate him. Some actions that violate no law, rule, or norm are nonetheless wrong. Conversely, some things that laws, rules, or norms forbid are blameless or even morally obligatory. But in the ordinary course, the fact that some act does or does not violate the applicable laws, rules, or norms surely warrants discussion. Yet Gladwell completely ignores it.

So much for Episode 5. Gladwell's exposition of casuistry in Episode 6 is also a mess. He focuses on Dr. John Rock, who invented the birth control pill and appears to have been a devout Catholic and a doctor who sought to care for the least fortunate. Before the pill came along, the Church had determined that artificial birth control was forbidden but that so-called natural methods (especially the "rhythm" method, i.e., abstaining from intercourse just before, during, and just after ovulation) were permissible. Rock and many others argued that the pill ought to be permitted, because unlike barrier contraceptive methods that interfered with nature's processes, the pill simply consisted of naturally occurring hormones (estrogen and progesterone). They eventually lost that battle when the Pope concluded that the pill was a form of forbidden contraception.

Gladwell says that Rock and others should have prevailed on casuistic grounds. Why? Gladwell gestures at a real casuistic argument when he describes how Rock and others said that the pill is more like the rhythm method than it is like barrier methods of contraception. But Gladwell then completely loses his bearings. Rather than saying that the Pope was wrong to reject this argument, Gladwell makes a terrible argument for distinguishing the pill from other contraceptive methods.

Gladwell notes that Rock spent time with poor families burdened by more children than they could care for; controlling their reproduction would have been better for the parents and the (smaller number of) children. Rock, Gladwell says, was willing to "descend into the particulars" like a good casuist and see that the justice of the particular cases--the struggling families--had greater force than any general principle.

Of course Gladwell is right that poor families should not be burdened with caring for a dozen or more children by a rule forbidding birth control pills. But here's the thing. Those particulars do not in any way distinguish the pill from other forms of contraception. If the particulars that matter consist of the particular suffering of particular families who lack the means to care for a dozen children, those particulars argue for abandoning the rule against barrier methods of contraception no less than they argue for permitting the pill. However, that would be an argument of principle, and Gladwell is trying to show the power of casuistry over principle.

He fails. Actually, Gladwell does worse than failing. By endorsing bogus distinctions, he under-sells the virtues of casuistry and reinforces the perception that it is mere sophistry. The core problem seems to be that Gladwell does not understand what casuistry is. He thinks that when one "descends into the particulars" or looks only at concrete cases, one has no need for principles at all. But that cannot be right. If casuistry is a kind of reasoning--and it is--then it must have recourse to reasons, which take the form of at least rudimentary principles.

To use language that Cass Sunstein deployed in a series of articles in the 1990s, casuists don't think principles or reasons or theories are completely unnecessary; they think that it is sometimes unhelpful or downright problematic to search for or apply overarching principles that purport to explain everything or resolve every case; the casuist looks for incompletely theorized explanations to reconcile various cases. Gladwell, by contrast, seems to regard casuistry as recourse to completely untheorized intuitions.

Casuistry has quite a lot to recommend it. Gladwell does not do it justice.