Paradigm Shifters: Ron Allen, Martin Redish, and Deborah Tuerkheimer on Changing the Conversation

October 12, 2018

One of the jobs of a law professor is to look at long-held beliefs with a critical eye and offer insights that may change widespread understanding of pressing legal issues. Erin F. Delaney, associate dean of faculty and research, sat down with three professors who are in different stages of doing just that: Martin H. Redish, Louis and Harriet Ancel Professor of Law and Public Policy; Ronald J. Allen, John Henry Wigmore Professor of Law; and Deborah Tuerkheimer, Class of 1940 Research Professor of Law. Below is an excerpt of their conversation.

Erin Delaney: All three of you have contributed significantly — or are contributing — to paradigm shifts in how we think about certain areas of the law. Ron, to start, can you define “paradigm shift” for us?

Ronald Allen

Ronald Allen: The idea of paradigm shifting came out of an influential book by a philosopher of science, Thomas Kuhn, called Structure of Scientific Revolutions. His argument, at the time, seemed to be that there really wasn’t progress in science, but instead, the ways of understanding the world just sort of mysteriously shifted — kaboom! — so that the idea that Einsteinian physics was an improvement over Newtonian physics isn’t right, it’s just that people who subscribe to Einsteinian physics have a different world view, a different paradigm, than those who subscribe to Newtonian physics, as an example. In reality, it is almost always the case that there are rational connections between one set of ideas and a set of ideas that come in and replace them, and what really occurs is that the new thinking subsumes within it the prior thinking as a special case. So Newtonian physics, for example, works great on the surface of the planet. It doesn’t work so well if you’re trying to explain black holes, and so Einsteinian physics subsumes within a special case Newtonian physics. That’s the basic background, but in the law, it just sounds pretty cool to say there’s a paradigm shift going on. It really refers  to the idea that there’s a fundamental change occurring in your understanding  of a phenomenon or your understanding of how to solve the problem that that phenomenon poses.

Martin Redish

Martin Redish: Ron, when you talk about scientific norms and paradigm shifts, those are attempts to determine reality in some way, and we may have different perceptions of what’s right at different points in history of the world. But normative beliefs aren’t etched the way scientific realities are, and those are the shifts that I deal with. The way I’ve attempted to shift paradigms is to begin with foundational principles that others readily accept, and try to show that there are totally different perspectives that inexorably, as a matter of logical deduction, lead from where they’ve begun.

ED: Marty, what was the paradigm before your groundbreaking 1971 article, “The First Amendment in the Marketplace: Commercial Speech and the Values of Free Expression”?

MR: As a third-year law student, I knew I wanted to be an academic, and every third-year student at Harvard had to write a senior paper. I’d studied freedom of expression in college and law school, and one of the areas that was skipped over was commercial speech. The beauty of my eventual insight, I felt, was that I could use the principles of the scholars who had so summarily dismissed commercial speech — saying it was more associated with property rights than it was freedom of expression — and turn their theories around on them. It occurred to me that if you start with the premise that we have a democratic system and that freedom of expression, as philosopher Alexander Meiklejohn said, “springs from the necessities of self-government,” then when we make private choices we are also exercising a kind of governing power. It’s a private governing power, but it’s facilitating the kinds of normative premises behind the choice for democracy in the first place. I recognized that, first of all, who the speaker is and what the speaker’s motive is didn’t matter, that really it’s the recipient in a democratic system that matters. And, second, the DNA of the process of self-government that was going on — that every free speech scholar wrapped his arms around — was really the same process that was going on when you made your private commercial decisions.

ED: But a paradigm shift doesn’t just happen in a 3L law review article, and it doesn’t happen in isolation. Other people have to buy into your ideas, which has happened for you in the four decades since your article was published. Tailspin, by Steven Brill, even credits you with changing the entire view of the First Amendment. And, of course, a majority of the Supreme Court has agreed with you.

MR: The only thing I will take credit for is that I was way ahead of the curve. Whether I had any real influence or not, I don’t know how much proof there is of that.

ED: Of course, as paradigms shift, there are bound to be holdouts. Ron, in your article “Relative Plausability and its Critics,” you engage with the shifting paradigm about juridical proof. How are you dealing with the holdouts?

RA: For literally 400 years, people have thought that juridical proof is probabilistic. People use the concept of probability in life all the time — ‘what’s the probability it’s going to rain tomorrow?’ that sort of thing. More formalized notions of probability exist though — the mathematics of probability — and for hundreds of years, it’s been assumed that these more formal notions of probability explain what occurs at trial. If two elements are proven both to .6, the probability of them both being true if they’re independent is .36, which means the probability of one being false is .64, but you’re still returning plaintiff’s verdict when there’s a 64 percent chance of a wrongful outcome.

But over time, certain irritants made clear that the systematic ways of thinking about probability simply don’t work. They don’t explain anything at trial. So what does? When you look at the structure of the trial as a whole, what you see is it forces the parties to offer explanations. You have broad rules that let parties tell their stories on their own terms. This led to the insight that what’s actually occurring in civil cases is not a probabilistic account. It’s a comparative explanation account, what’s now called explanationism. In criminal cases, the issue is whether the state has a plausible story of guilt, and if they don’t, it’s an acquittal. If they do, then the issue is whether the defendant has a plausible story, even if less plausible than the government’s. If they do, then it’s an acquittal. And this maps extremely well to what actually occurs at trials. It turns out not everybody has recognized the genius of these insights, but the shift is ongoing — we are nearing the end.

It’s important to know, there are people whose careers are invested in probabilism, or whatever paradigm it is a person is trying to shift. So what happens is a couple of things — some people just reject your theory out of hand, but the more serious response is to try to make ad hoc adjustments. People change things in their theory to permit an outcome to be explained. The problem with that when there is an actual paradigm shift, is that you end up with a Rube Goldberg kind of structure that collapses
of its own weight.

ED: This concept of a paradigm in transition is a way of explaining what you are doing, Deb. What is the dominant paradigm in how we think about sexual harassment, and how is it changing? Your article, “Incredible Women: Sexual Violence and the Credibility Discount” does a beautiful job identifying the law
as it currently stands.

Deb Tuerkheimer

Deborah Tuerkheimer: The article starts with the substantive criminal law — the law of rape — and the deeply ingrained skepticism that, for most of our time, was baked into our law. This includes rules requiring extra corroboration, a prompt complaint, special cautionary jury instructions — the ways in which this particular crime has always been treated differently. Over time, these rules have softened, and across many jurisdictions they’ve been formally abolished, but I argue that this same skepticism has migrated from formal rules to informal practices. If we look at the ways in which police officers and prosecutors, down the line to jurors, tend to view allegations of sexual violence, we see the same default to doubt that used to be embedded in the law explicitly. And we see the same outcome, which is that most of these cases never make their way through the system. There’s extraordinary case attrition. These allegations for the most part do not result in an arrest, much less a prosecution, much less a conviction, much less? a prison sentence. Out of every thousand incidents of sexual assault, maybe six end up with some sort of prison sentence. What I try to do in the article is show that there’s a real misperception about the likelihood that an allegation is false, and I do that by comparing ?the best empirical research on false allegations in sexual assault cases to the research that’s been done on attitudes on the part of law enforcement officers about false allegations.

ED: Your article came out barely a month before The New York Times and New Yorker reports on Harvey Weinstein.

DT: It did. It’s been really interesting to watch the beginning of, perhaps, a correction across our society that is certainly at the early stages. I would never suggest that this is a problem that will resolve itself across the board, because there are certain more marginalized members of our society who will continue to have their credibility discounted in ways that more privileged members of our society may not. But we are seeing a change, and I think it’s an exciting time.

ED: What are you working on now?

DT: In my current project, I’m thinking about ways in which the law itself should be responding to these changes. It needs to incorporate in its processes new ways of fairly judging credibility. In particular what I’m thinking about is the ways in which people report abuse. Do our formal methods of reporting need to evolve in order to incorporate some of the insights we’re gaining in this #MeToo era? I happen to believe that if the law is left behind as we think about this shifted paradigm, that’s a real loss. Yet in this #MeToo conversation, the law has been strangely left out and has escaped deep critique. I’m interested in disconnects between social norm shifts and the very static nature of law. I think it’s important to try to bridge those gaps.

ED: To summarize this conversation: You need to be an irritant of some sort, right? Part of the role of the law professor is to challenge and test perceived wisdom about the law?

MR: I think it should be viewed sort of like what I call “turning into the skid.” When you’re skidding on ice, your instinct is immediately to turn away from it. But, as you learn in driver’s ed, that’s the worst thing you can do. Those who are going to engage in paradigm shifts are those who are going to want to turn into the skid and recognize that they’re going against everybody else’s intuition.