U of M professor encourages thinking like philosophers

by Sheila Pursglove
Legal News

Don’t look for “Harry Potter and the Trouble with Tort Theory” at the cineplex – it was an article by Scott Hershovitz published in The Stanford Law Review.

Hershovitz, assistant professor at Michigan Law School, brings a touch of wizardry to his classes about torts law and jurisprudence.

“Torts law is a first-year course, so the students are fresh to law and they need to absorb a new vocabulary and new styles of argument. In addition to teaching them the legal doctrines, I’m trying to get them acclimated to the culture,” he says. “It may be the part of my job that I like best because the students have so much enthusiasm for learning law when they first start.

“Jurisprudence – a fancy word for asking philosophical questions about law – is a different beast.”

Some of his students have never taken a philosophy class; others have Ph.D.s in the field. One challenge is figuring out how to present material in a way that engages everyone.
“But I love teaching philosophy in the law school,” Hershovitz says. “Lawyers ask a lot of the same sorts of questions philosophers ask – What does it mean to cause something? What does it mean to be responsible for something? – but they do so in an institutional context where the answers they give affect people’s lives. The legal answers to those questions may not always be good answers, but they are usually a good start.

“I enjoy pressing my law students to think like philosophers, and my philosophy students to think like lawyers.”

Hershovitz graduated summa cum laude from the University of Georgia with an A.B. in political science and philosophy and an M.A. in philosophy. In addition to a J.D. from Yale Law School, he holds a D.Phil. in law from the University of Oxford, where he studied as a Rhodes Scholar.

An “accidental philosopher” who took a freshman philosophy class when his first choice of psychology was full, Hershovitz knew from Day One that he wanted to major in philosophy, and a short while later knew he wanted to be a philosopher.

This was in part because his professor was extraordinarily engaging and encouraging. But it also had something to do with the subject matter. As Hershovitz tells his students, children constantly ask philosophical questions. As a pre-schooler, he asked his mother whether it was possible that she and he didn’t see the color red the same way – in philosophy lingo, this is the “inverted spectrum puzzle,” much discussed because it raises challenging questions about the nature of consciousness.

“I think a large part of what attracts me to philosophy is that it invites us to ponder puzzles that we’re accustomed to ignoring,” he says.

Hershovitz enjoyed his time in England.
“From an educational perspective, it couldn’t have been better. Most of the leading figures in the philosophy of law over the past hundred years were members of the Oxford faculty, and no place can match the energy that surrounds the subject there.”

He also appreciated the way Oxford colleges are organized; students live with people pursuing degrees in all sorts of disciplines, ending up with a more diverse collection of friends than generally garnered in an American graduate program.

He also enjoyed having a springboard to travel.

“Before I left for Oxford, a weekend in Canada was the extent of my international travel. By the time I left Oxford, I had filled most every page in my passport.”

But Hershovitz didn’t view philosophy as a viable career option. He says his worry was well put by former NFL linebacker and philosophy Ph.D. Dewey Selmon: “Philosophy’s just a hobby. You can’t open up a philosophy factory.” He followed his older brother into law, because it seemed to reward lots of the same skills, with a better prospect of making a living.
“And I liked that one could do lots of things with a law degree, many of which are more useful to people than philosophy.”

Hershovitz clerked for Justice Ruth Bader Ginsburg of the U.S. Supreme Court and Judge William A. Fletcher of the Ninth Circuit.

“There’s a point when you start clerking and it strikes you that everything you write will be read by at least one and possibly all nine justices. That’s a bit terrifying,” he says. “But you get over it quickly because the workload is crushing, and there’s no time to fret about your audience. You do your best to answer the questions you’ve been asked and give the justices the information they’re looking for.

“I learned a ton working for Justice Ginsburg. She’s a terrific lawyer, and there’s no aspect of the craft that she didn’t teach me a lot about. I enjoyed hearing her critique lawyers’ arguments more than hearing her criticize my writing. But few people get the opportunity, and I tried to absorb as much wisdom from her as I could.”

In between clerkships, Hershovitz was on the appellate staff of the Civil Division, U.S. Department of Justice.

The Atlanta native, a huge baseball fan who once dreamed of playing for the Atlanta Braves, jokes that before agreeing to teach at Michigan, he checked to see whether he’d be able to watch Braves games.

“I’m not sure it was a deal breaker, but I would have had difficulty moving to a place that didn’t get the games.”

Hershovitz and his wife – a social worker with her own therapy practice in Ann Arbor – are enjoying life in their new town, which he finds similar to his undergrad town of Athens, Ga.
“I’m lucky to have terrific colleagues and a wonderful set of friends, and to have those two groups overlap to a large extent,” he says. “I’m a fan of university towns. I like that I live in a small place with the culture of a much bigger city.”

His publications include “Two Models of Tort (and Takings)” in the Virginia Law Review, “Legitimacy, Democracy, and Razian Authority,” in Legal Theory, and “Wittgenstein on Rules: The Phantom Menace” in the Oxford Journal of Legal Studies. He is also the editor of “Exploring Law’s Empire: The Jurisprudence of Ronald Dworkin.”

The worst part of his job – aside from grading – is staring at a blank page with no idea how to begin, he says.

“But once a paper gets going, I can get totally absorbed in writing. It forces me to think, about the topic and about how to explain my ideas to others. I’m always trying to figure out how I can present my argument in an engaging, memorable way. The title is your first chance to capture someone’s attention, so I sometimes have fun with them.”

His 2-year-old son Rex helps Hershovitz kick writer’s block. “Sometimes when he’s having fun with mommy, he tells me to go upstairs and type. So he’s very supportive of my career.”

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