Back in the day, when I was studying for my degree in philosophy, during my senior year I was required to take a 400-level seminar on Plato and Aristotle, which, in large part, consisted of reading large amounts of both philosophers’ work, and then discussing the work in class. We also had to author a lengthy essay, which advanced an original thesis, and hand that in at the end of the semester. To this day, the essay I authored is still one of the works for which I am most proud. In it, I posed the question: Is Socrates’ Doubt (ἀπορία, or aporia) Genuine? In other words, when Socrates is questioning those with whom he is in dialogue, is he but feigning ignorance to lead his dialogue-partner to the “correct” answer of which Socrates is already well-aware. Or, instead, is Socrates in a genuine dialogue the goal of which is to gain knowledge that neither Socrates nor his partner in dialogue possesses.
A good example of what has come to be called the “Socratic method”–which is, not coincidentally, the cornerstone of legal education–can be found in a famous bit of dialogue from the movie, The Paper Chase, in which the terrifying Professor Kingsfield explains the rules of the game (so to speak) to his new students:
“We use the Socratic method here. I call on you, ask you a question, and you answer it…. Through this method of questioning, answering, questioning, answering, we seek to develop in you the ability to analyze that vast complex of facts that constitute the relationships of members within a given society . . . You teach yourselves the law, but I train your mind. You come in here with a skull full of mush, and you leave thinking like a lawyer.“
Thinking like a lawyer–and all because of the so-called Socratic method. I think not.
If you want to understand what I believe to be the essence of the Socratic method, I respectfully suggest that you read some Plato, especially the early dialogues, which most experts agree are an accurate representation of Socrates’ approach. (Plato was a student of Socrates.) Take, for example, this following section of dialogue from the Meno (trans. Benjamin Jowett) in which Socrates has just lead his partner in dialogue, Meno, to the realization that a speaker with regard to a certain question of geometry is in fact wholly incorrect in his assertions, a fact of which the speaker has just been made aware:
S: So [the speaker] is better off now with regard to this matter he does not understand?
M: I have to agree with that.
S: Have we done him any harm by making him perplexed and paralyzed, like a couple of stingrays?
M: I don’t think so.
S: In fact, we have probably achieved something relevant to the discovery of the way things really are. For now, not knowing, he would be glad to find out, whereas before he thought he could easily make many fine speeches to large audiences concerning the square of double area, and how it must have a base twice as long.
M: So it seems.
S: Do you think that before now he would have tried to find out that which he thought he knew, but did not – before he descended into perplexity and realized he did not know but wanted to know?
M: I do not think so, Socrates.
S: Has he then benefited from his paralysis?
M: I think so.
S: Look, then, at how he will emerge from his perplexity while searching together with me. I will do nothing but ask questions, not instruct. Watch whether you find me instructing and explaining instead of asking for his opinion.
Id. 84 (a-c) (emphasis added).
And so the method of Socrates is to “do nothing but ask questions, not instruct.” Which is why the question posed by my essay over twenty years ago was so interesting–to me, at least. Can one instruct without knowing? Is it possible to be an instructor by asking genuinely open-ended questions that do not presuppose a particular answer? For now, I will leave these questions open–or, at least at an impasse, which is another meaning of the term aporia. I do this because I want to now pivot to another, related topic, the one raised by the title of this article: The Perils of Punditry.
If you have read this far, you are probably a more patient reader than most, especially of articles posted online. But I thought it important to first raise the issue of knowing and not knowing, and, more importantly, knowing whether you do not know something, before I offered a more general critique of the kinds of arguments that get made about food safety, and good (or bad) public policy. I inadvertently set off just such an argument recently when I, in a much too off-handed way, call Jim Prevor a “tool of the produce industry.” I did this in a spontaneous (which is to say, too-quickly dashed off) counterpoint to what I took to be a kind of attack on Marion Nestle, levied in response to a post that she had made on her excellent blog, Food Politics.[1]
In her post, Nestle quoted from a piece of mine,[2] published on Food Safety News, which is sponsored by my law firm. She also referred to an article written by Jim Prevor, which was published by the conservative Ethics and Public Policy Center,[3] on its website The New Atlantis.[4] The title of Prevor’s article is How to Improve Food Safety: Aggrandizing the FDA Only Distracts from Real Solutions.[5] In this article, Prevor makes several recommendations, including this one: “Switch to a Negligence Standard from a Strict Liability Standard, and Switch Primary Liability to the Trade Buyer.” And in doing so, he cites the California Supreme Court case, Greenman v. Yuba Power Products, which was authored by Justice Roger Traynor, one of the greatest legal minds of the twentieth century.
Interestingly, Prevor quotes from the Greenman decision, but omits an important sentence. Here is pertinent quote in full, with the emphasis mine:
“A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being. Recognized first in the case of unwholesome food products, such liability has now been extended to a variety of other products that create as great or greater hazards if defective.”
Greenman v. Yuba Power Products, 59 Cal.2d 57, 377 P.2d 897 (1963). By pointing out this omission, I do not mean to suggest that Prevor is trying to trick his readers; I am merely pointing out that, as with anyone making a political argument, it is often the case that important things have been missed, and usually not intentionally. It goes back to that issue that Socrates raises of the speaker not knowing that they do not know.
There also seems to be a failure to recognize–that is, of not knowing–the true importance that the Greenman decision involves a defective design claim, which is an area of product liability law that is about as complicated and controversial as an area of the law can be. And it is in this area of product liability law that scholars like Professor Schwartz, one of the reporters for the Restatement (Third) of Torts: Product Liability, has argued that the strict liability standard, as applied by most courts, is actually a negligence standard in disguise.[6] But when it comes to a product that is unreasonably unsafe as a result of a “manufacturing defect,” there is nearly no controversy at all about the appropriateness of applying a strict liability standard, especially as it applies to food products. Indeed, as Professor Owens well explains:
“From early times, people have relied on the skill and care of others to catch, grow, gather, preserve, prepare, and provide much of the food and drink indispensable to survival. Whether paid for with
a beaver pelt, a copper coin, or a modern dollar, food has always been the single most important product bought and sold by human beings. Both king and pauper live by food and drink, just as both may die by food or drink gone bad. And this essential fact of human life is as true today as it was a thousand years ago. Because pure food is necessary to survival, rendering most persons extraordinarily dependent for their health, safety, and very lives on the care and skill of food providers, the rules that govern liability for selling defective food and drink have long stood apart from those concerning other types of products.”[7]
The history of how and why strict product liability developed is decidedly interesting, and worthy of much debate. Indeed, when I teach this subject, as I will at Seattle University School of Law this next Spring, I emphasize the complex historical development of the doctrine, as well as its competing economic underpinnings. But I will not go into any of that here. My main point to make here–and I apologize for being so long in making it–is that the subject of product liability law is fascinating, but it is also complex. It is not a subject for off-hand opining and online punditry. And, in my humble opinion, the subject of product liability merits a lifetime of investigation and careful thought, which, if done genuinely, will result in the constant development and change of opinions. Sure, you can scour a few sources and build an argument in support of a pre-conceived opinion, especially when your argument is meant to play to a particular audience, and wants to curry its support. (It is not by accident that Socrates built his own method in large part as a continuing critique of the sophists, and sophistry.) But, in the end, I think that the subjects of food safety and product liability law deserves better than off-the-cuff opinion-making and online sophistry, even when I sometimes fail to live up this standard. Too much is at stake.
That is why I am proud to say that, in addition to my punditry, I have also published pieces in which months of work and thought were invested, and that have been published in peer-reviewed books and scholarly journals.[8] I am also proud to say that I readily admit to not having all (or even many) of the answers, making me one who is always glad to “find out that which he thought he knew, but did not.”
References:
1. Marion’s post, and my comment, are here: http://www.foodpolitics.com/2010/06/thinking-about-food-safety/#comments
2. “What the Oil Spill Can Teach Us About Food Safety,” June 1, 2010, available online at https://www.foodsafetynews.com/2010/06/what-the-oil-spill-can-teach-us-about-food-safety/
3. According to Wikipedia, the Ethics and Public Policy Center is “a Washington, D.C.-based socially-conservative advocacy group. Formed in 1976 by Ernest W. Lefever, who was its president until 1989, the group describes itself as “dedicated to applying the Judeo-Christian moral tradition to critical issues of public policy.” See http://en.wikipedia.org/wiki/Ethics_and_Public_Policy_Center
4. http://www.thenewatlantis.com/
5. http://www.thenewatlantis.com/publications/article_detail.asp?id=567&css=print
6. Note the important difference here between arguing that negligence should be the standard that applies (Prevor’s argument), and arguing that the negligence is the standard that already applies, but that courts erroneously insist on continuing to call it strict liability. Personally, I am quite sympathetic to the latter argument, but I do not really even understand the former argument. Accordingly, another apt Socrates quotation is in order: “The beginning of wisdom is the definition of terms.”
7. David Owen, “Manufacturing Defects,” 53 S.C.L. Rev. 851, 884 (2002). I highly recommend this article to anyone wanting a good, historical introduction to strict liability as it applies to food cases. For those who are interested, the primary text I use for my product liability law class is also written by David Owens. PRODUCTS LIABILITY LAW, by David G. Owen, 2nd Ed. (2008).
8. See, e.g., “Contaminated Fresh Produce and Product Liability: A Law-in-Action Perspective,” Chapter 21, in Microbial Safety of Fresh Produce: Challenges, Perspectives, and Strategies, edited by Xuetong Fan, et al., pp. 385-98 (IFT Press 2009), and “ON (CR)EDIBILITY: Why Food in the U.S. May Never Be Safe,” 20 Stanford Law & Policy Review __ (2010).