Robert Rosen (University of Miami – School of Law) has posted The Perceptive Brandeis: Mindfulness and the Practice of Justice on SSRN. Here is the abstract:
Our perceptions provide us with information. Properly interrogated, perceptions inform our moral judgments. Knowledge of how justice can be embodied emerges from our perceptions. There are different disciplines and practices that cultivate perception. How we are present affects what we perceive.
Louis Dembitz Brandeis cultivated his perceptions. He was cool and calm. He was detached not only from his clients, but from himself. He, not alone in Victorian elite culture, practiced “renunciations” of self to understand what justice demands. Viewed from his own optic, this Article analyzes the “Perceptive Brandeis.” Importantly, for most of his life, until almost his nomination to the U.S. Supreme Court, Brandeis undervalued fraternité.
Brandeis studied Matthew Arnold, the leading theorist of cultural perception from 1860-1950. Since the 1960’s, Arnold has been rightly criticized for ignoring his own cultural construction. Yet, he had strengths on which Brandeis drew.
While Brandeis used his perceptions to influence the situational ordering of values, Arnold’s project was through aesthetics to enable moral perception. While Brandeis overvalued individualism, Arnold too finely honed aesthetic perceptions.
Today criticisms of Brandeis, and of lawyers generally, focus on client disempowerment (and empowerment). Examining Brandeis’s and Arnold’s accounts of how to be present reveals two additional challenges that must be resolved, in one way or the other, when lawyers pursue justice. How do you perceive others and groups? How do you value justice when it is compromised?
This Article is for those who believe that acting for the exclusive benefit of one’s client is problematic, sometimes at least. This is for those who do not believe that professional independence means ignoring non-client interests or one’s own moral self. It is for those who understand that, especially when situatedness is significant, delivering justice demands responsiveness to how it is perceived. It also is for those who seek to better comprehend disciplines of the self and humanize visions of justice.