Visibility, accountability and discourse as essential to democracy: the underlying theme of Alan Dershowitz's writing and teaching

Albany Law Review, Summer, 2008 by Alan M. Dershowitz

Again, there is the chicken-egg problem: Was I so influenced by professors who wrote and taught about these issues because I was already thinking about them? Or, did I continue to think about them because of the influence of these professors? I am relatively certain that the answer contains elements of both. What I know for sure is that without the influence of these great teachers and scholars, I could not have written or taught in the manner that I have over the past half century. My goal, as a teacher, has been to have comparable influence over the thinking of some of the thousands of students whom I have helped to educate over the past forty-five years. Nothing pleases me more than to receive a letter from a former student, containing a law review article, brief, or oped piece that they say reflects what they learned in one of my classes. That is the awesome power and responsibility of the teacher: to transmit thinking from generation to generation to generation. (18) "L'dor v. dor," as the Hebrew expression goes. (19)

IV. THE LAW OF ATTEMPTS

My initial foray into criminal law was as a first year law student writing a law journal note about the arcane law of criminal attempts. I complained about the lack of substantive criteria for deciding when non-criminal preparation to commit a crime should be deemed to have ripened into a criminal attempt. I worried that vague criteria, such as "dangerousness," though relevant to the law, might empower social scientists to make policy judgments that in a democracy are more appropriately left to other institutions:

   [B]ehavioral science can do no more than indicate the attempter's
   degree of dangerousness. It cannot determine whether a given degree
   of dangerousness demands incarceration. The varying degrees of
   internal control revealed by the suicide studies indicate that
   "harmless" and "dangerous" are not separable categories, but are
   rather the terminal concepts of a continuum containing innumerable
   shades of relative dangerousness. In deciding at which point in
   this continuum criminal sanctions ought to be imposed,
   courts and juries must make a policy decision, balancing society's
   need for protection against the undesirability of imprisoning
   persons because of their possible dangerousness. (20)

V. THE COMMITMENT OF THE MENTALLY ILL

This concern about abdicating the responsibility for articulating criteria to private psychiatrists or other professionals soon became a dominant theme in my writing about the commitment of the mentally ill. In my first article on that widely neglected subject, I criticized the criteria for confining the mentally ill as being "so vague that courts sit--when they sit at all--merely to review decisions made by psychiatrists. Indeed, the typical criteria are so meaningless as even to preclude effective review." (21)

I pointed out that:

      Some psychiatrists are perfectly willing to provide their own
   personal opinions--often falsely disguised as expert
   opinions--about which harms are sufficiently serious. One
   psychiatrist recently told a meeting of the American Psychiatric
   Association that "you"--the psychiatrist--"have to define for
   yourself the word danger, and then having decided that in your
   mind, ... look for it with every conceivable means...."

      ... As one would expect, some psychiatrists are political
   conservatives while others are liberals; some place a greater
   premium on safety, others on liberty. Their opinions about which
   harms do, and which do not, justify confinement probably cover the
   range of opinions one would expect to encounter in any educated
   segment of the public. But they are opinions about matters which
   each of us is as qualified to make as they are. Thus, this most
   fundamental decision ... is almost never made by the legislature
   or the courts; often it is never explicitly made by anybody; and
   when it is explicitly made, it is by an unelected and unappointed
   expert operating outside the area of his expertise. (22)