Jordan Bleicher

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On the surface, the podcasts Art and I recorded are about the pro bono requirement and the question whether the Law School should have a policy whereby students are required to spend 40 hours of their time to pro bono work. On a deeper level, they are also about the kinds of ambivalence the two of us feel toward Harvard Law School. And even more important, they are an attempt to reestablish good feelings between friends between whom a rift (was threatening to) develop. I believe that the project was a success because it made a substantial contribution to strengthening that friendship.

First and foremost, the podcasts helped Art and I to achieve a clearer understanding of why our initial argument about the pro-bono project became so heated. I now believe that a lot of the anger that I directed toward Art stemmed from the fact that I put him on the side of law school policies that required to spend my own time in a way that was not of my choosing. Moreover, I saw that a lot of the anger that Art directed toward me was a result of the fact that he identified with an institution (HLS) that had substantially misled him – that had “ sold him a bill of goods” -- when it told him that it would support his pursuit of non-traditional legal paths.

What Art and I have in common then is that neither of us completely identifies with Harvard Law School. The pro-bono requirement aside, I feel alienated by the school’s emphasis on hierarchy – on who gets the best grades, research assistant positions with the most prestigious professors, clerkships with the most exclusive judges. And for his part, Art feels that the school neglects those students who are not interested in the more traditional options. Thus, Art and I seem to have at least as much in common with one another as we separating us; we both see ourselves as being outsiders in an important regard.

And yet, the fact that neither Art nor I identifies with the law school actually made it more difficult for the two of us to understand one another. In particular, Art couldn’t fathom that I would identify him with aspects of the law school since he himself feels alienated from the law school in so many ways. And as someone who feels himself to be an outsider himself, I could not understand why Art would place me on the side of an institution that has failed to support him. Our conversation led to a failure of empathy because the conception that I have of Art differs significantly from the conception that Art has of himself, and vice versa.

So what role did recording the podcasts play in helping Art and I overcome our disagreements? First of all, undertaking the project together meant that Art and I spent a significant amount of time working with one another to achieve a goal that we shared in common. Second, the conversations we recorded for our podcasts required that each of us talk openly about what he was feeling and to in turn ask the other questions about what he was thinking. And after pod-cast recording had come to an end, Art and I would often continue these conversations by ourselves, over dinner, a cup of coffee, or the course of a walk to the law school. Because of this process, we each came to trust the other significantly more than we had at the outset and achieved a much greater level of empathy.

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I wanted to raise one issue about empathic argument before the end of the semester. As I see it, “Stage One” of empathic argument involves demonstrating to the other person that you can see the world as he see it, that you understand the reasons that lead him to adopt the position he has. “Stage Two” of empathic argument involves actually moving the other person to your perspective or at least to a perspective different from the one with which he began. Transitioning from the First to the Second stages of empathic argument – that is, finessing the “inflection point” - is the most difficult but also the most important part of a good empathic argument.

Imagine that you are talking with another person and that you have invested significant effort trying to demonstrate that you can really see where the other person is coming from. At this point, there is a strong temptation to say “but …” and then list all of the reasons why you think that the person should give up his previous position and come over to your side. Yet if the transition between the stages is too abrupt, the person is may well come to feel that you were merely pretending to be able to see things through his eyes. In the worst case scenario, the trust that you had been trying to build up will be completely destroyed and the person will be more resistant that he ever was to be persuaded .

I thought that these sorts of problems were illustrated nicely by our class’s struggle to come up with an empathic argument to persuade the hypothetical professor who doesn’t want laptops in his classroom. As far as I can remember, most of the arguments that students gave began by acknowledging the strength of some of professor’s reasons for wanting to keep laptops out. Then, the students began to give reasons that they saw as even weightier for why students should be permitted to bring laptops into the classroom nevertheless. The problem the students encountered was that the second half of their arguments seemed (at best) non-responsive to or (at worst) dismissive of the professor’s concerns.

Although constructing an empathic argument that avoids these pitfalls may be more of an art than a science, it might be possible to achieve greater clarity on these questions by looking at actual examples of empathic argument. Since we are at a law school, great Supreme Court opinions provide one obvious to place where we might look to find examples of successful empathic arguments. Since our class was about the court of public opinion, we might also have looked at famous statements like the Letter from the Birmingham Jail that have moved public opinion. And since some of the greatest empathizers are often times novelists, we might also have tried to find examples of empathic argument in literature.