Reposted from “The Retirement Letters”

by Virginia Sapiro

Photo by Frank Curran for Boston University

ONE OF MY CHIEF AIMS IS TO DEVELOP CRITICAL THINKING IN MY STUDENTS. How many times have how many aspiring faculty written this about their teaching philosophy? But what do they mean? I often sense that this statement is a kind of hand wave in the direction of reading and thinking carefully.

So what does critical thinking mean, and how can professors help develop that in their students when the course is supposedly aimed at some subject other than how to think critically?

There are lots of different definitions (of course), but without carefully outlining a whole philosophy (I’m no longer applying for jobs), I tend to extract these elements.

I just took a side look at the Stanford Encyclopedia of Philosophy, and its article on critical thinking begins with the observation that John Dewey used the term “reflective thinking,” which he defined as “active, persistent and careful consideration of any belief or supposed form of knowledge in the light of the grounds that support it, and the further conclusions to which it tends” (from his How We Think  This is pretty good, I think.

For me, critical thinking involves turning assumptions and beliefs into questions or hypotheses, or at least placing confidence intervals around assumptions and beliefs, by which I mean assigning a certain degree of uncertainty to them and leaving them open to question. Now, it is impossible to be a coherent thinker and have no assumptions or beliefs, or to keep those confidence intervals too wide. So, along with Dewey, I give a bit role to the “grounds to support” these assumptions and beliefs, as well as the grounds to reject the assumptions and beliefs. With the right balance of evidence and observation, the right balance of grounds to support and reject, the confidence intervals around what I take as an assumption or belief to serve as part of the structure of my thinking tightens.

This last paragraph made me think about how I use assumptions or beliefs in my thinking that I find plausible, and reasonably well confirmed, but not firmly so. That affects my train of thought, because it introduces more “what if” pieces to account for alternative plausibilities.

That may all sound too abstract. But I can make it more concrete with reflections on how I think about this when I teach.

The core bit is turning assumptions and beliefs into questions or hypotheses, and giving them an appropriate degree of uncertainty, along with figuring out the kinds of evidence, or grounds, on which one can gain confidence.  This in turn requires real focus on what constitutes evidence or grounds, what methods one can use to examine evidence. As a (social) scientist I am also deeply committed to the principle that really good critical thinking requires looking at least as systematically and vigorously for evidence or grounds against my base assumption as for.  This is very challenging for students, especially those who have mostly been taught that one looks for evidence that “backs up” one’s statement.  That, I believe, is fatal to critical thinking, but all too common.

By “method” of gathering and considering evidence I do not mean a particular (social) scientific method. In most of my classes the “method” of evidence gathering and consideration is reading relevant literature. Thus, even though my courses are “substantive;” that is they are not on writing and research per se, I have learned not to take for granted that my students understand how to use the library for their research, how to decide what sources to gather and how to use them, how to read them, how to integrate the knowledge they think they’ve picked up. In fact, even though our students are really good – it’s hard to get into BU these days, especially the College of Arts & Sciences, and they have had their writing courses by the time they get to me, I find lots of them don’t really understand these things. Shockingly so, in fact. It’s also easy to detect the parts of the university in which they spend the most time. The humanities majors tend to treat the sources as texts with an argument they should just report. The students from the School of Communication seem least likely to understand how to use the library (my colleagues from over there hate it when I say this, but I took up guessing from papers I received what their majors were, and I was right much of the time on this), and report on their sources as though they are “quotes” rather than reports of evidence to analyze.

One problem is that a lot of students (and, of course, graduate students and some faculty) seem to think that critical thinking means being critical in the sense of finding fault with. Some folks think that a sign of being smart means showing they are smarter than by finding fault. That, to me, is the definition of sophomoric, not critical thinking. I’ll just leave that there.

Faculty have to demonstrate critical thinking in their own work, in their teaching, to teach it.  I’ll just leave that there, too.

Another observation that is crucial – having a particular political point of view is not the same as engaging in critical thinking.  But that is a derivative of saying that finding fault is not a definition of critical thinking.

I think that one other thing is also a characteristic of critical thinking that may not be linked as often: Being able to link the thinking with implications for action. But that is for another time.

Virginia Sapiro, Letter June 11, 2021, The Retirement Letters (A Blog),

A Student Reflects on Vulnerability Theory

by Lario Jose Albarran

Lario J. Albarrán, Emory Law 2021

In February 2020, Professor Martha A. Fineman visited my class (a seminar on archival research) and answered questions about her career and work. In discussing the latter, Professor Fineman introduced the class to vulnerability theory. The elegance in centering everything’s vulnerability interested me to learn more, so I enrolled in the Law & Vulnerability seminar for the 2021 spring semester. In this short piece, I detail my experience in the course and its impact on me—both were fantastic. First, I describe how the class discussion kept me engaged in my last semester of Zoom law school. Second, I explain why taking the course was one of my best law school decisions.

The Law & Vulnerability seminar was a highly interactive, discussion-based course that kept me engaged in two primary ways: fostering interesting discussions and making me uncomfortable. First, the weekly topics and readings made it easy to facilitate discussions based on the class’ interests and backgrounds. In many instances, I found I learned as much from the people and their experiences as I was learning from the material. While many seminars set out to do this, the unique aspect of this seminar was its relationship to scholars affiliated with the Vulnerability and the Human Condition Initiative, who sat in and contributed to many of our class discussions. As such, the varying perspectives from class participants—law students, non-law students, or scholars alike—offered many opportunities to develop our understanding of vulnerability theory. Second, the seminar made me uncomfortable. These feelings weren’t negative, but they were the result of difficult questions that targeted my assumptions of the status quo. For example, I struggled to come up with answers to questions about my opinions, like “what is the role of the state” or “what is the law,” because I didn’t know how to articulate my feelings to questions I had never contemplated before. Likewise, it felt awkward to end many of our class meetings with limited, or partial—if any, solutions to our questions of substantive equality and justice. My discomfort derived from the fact that I had never taken the time to critically reflect on my assumptions of how society functions and how society believes it functions. I’m glad I didn’t turn away from the discomfort because it gave me the ability to expand my perspectives on what the world could be.

Enrolling in the Law & Vulnerability seminar was one of my best law school decisions because it gave me insight into how society could function. For context, a little over a month after Professor Fineman visited my class in 2020, Emory ended in-person class instruction as the world responded to the COVID-19 pandemic. By the course’s spring start date, we were learning about vulnerability theory in a virtual class during a history-changing global event. Isolated from people, desensitized by death tolls, I found myself withdrawn and generally pessimistic about everything. That changed after the first week of class. Taking the course on Zoom during the COVID-19 pandemic highlighted our humanity and what makes everything vulnerable with an immense degree of intimacy that made each class discussion hit home. While part of this feelings is due to class discussions that weren’t only scholarly but personal, a larger part of the feeling derives from learning about the role that law plays in structuring how society addresses our shared vulnerability. As such, the takeaway that impacted me the most is that the class sheds light on what a vulnerability approach to the law could create—and that gives me hope.

An Excerpt from: Against the ‘Safety Net’

by Matt Lawrence

Image via Pixabay


What do you think of when you hear or read the term “social safety net”? Which specific programs are included? Which are excluded? Are student loans part of the safety net? Life insurance? Is the U.S. Equal Employment Opportunity Commission part of the safety net? Mandatory vaccination? Are needle exchange programs?

Odds are, a writer’s or reader’s understanding of the term matches one of five very different senses in which the term is used in contemporary health and welfare law and policy scholarship. The safety net is thus a Rorschach test for health and welfare law and policy: what it means shifts, narrows, or expands depending on the writer’s or reader’s underlying vision of the problems that health and welfare policy seek to solve and the role of law in that effort.

Most narrowly, some see the safety net the way that President Reagan and his Administration employed it, as programs providing cash or in-kind support directly to the “deserving poor”—that is, those who, through no “fault” of their own, are young, sick, incapacitated, or otherwise dependent. In short, they see the safety net as encompassing subsistence programs that are both means and morality tested. Second, but closely related, others envision all means-tested subsistence programs, not only those that are restricted to the subset of the poor who are in some state-labeled sense “deserving.”

Continue reading An Excerpt from: Against the ‘Safety Net’

In Defense of Vulnerability – SJD Student Fabrizia Serafim Defends Her Thesis

by Fabrizia Serafim

In my SJD dissertation, I used a vulnerability approach to think of alternative solutions to current legal problems in Brazil. In a nutshell, a vulnerability approach is one based on vulnerability theory, a critical legal theory that starts from the ontological body, that is, the physical experience of embodiment we all share, and from the dependencies this embodiment creates on others and on the institutions human societies create collectively to have resilience, that is, to produce and to have access to the different resources we need to survive and to thrive and to bounce back if we fall. After articulating this description of the human condition, the theory goes on to interrogate social institutions with a normative bent: are social institutions providing resilience; are they responding to our shared vulnerability in fair ways or are they privileging some to the detriment of many?

Continue reading In Defense of Vulnerability – SJD Student Fabrizia Serafim Defends Her Thesis

Police Brutality, Humiliation, and Resilience Allocation

by Hila Keren

A year passed since the brutal murder of George Floyd. As I wrote for the LA Times earlier this week, no effective lessons and no adequate response can arise without understanding the role of humiliation in acts of police violence against Blacks and other people of color. Here, on this blog, I would like to draw on the vulnerability theory to place a demand on the state to proactively ensure that its police force cannot use its powers to humiliate anyone.

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Equality: Still Illusive After All These Years – The Family and Equality

by Martha LA Fineman

Image via Pixabay

In my chapter for this collection, I was asked to revisit my critique of equality as the appropriate measure or objective for family law reform as it was set forth in The Illusion of Equality: The Rhetoric and Reality of Divorce Reform, a book published over fifteen years ago. In that book as well as in articles developed in the 1980s, I argued that equality and gender neutrality were not appropriate concepts to employ in thinking about reform of the family and family law. The gist of my argument then was that the family, as our most gendered institution, was not susceptible to the imposition of a regime of equality, at least not as it was understood in American law. This argument was built on the observation that the nature of the equality reforms urged in the family mimicked the equality reforms sought in the political and public arenas. Outside of the family, legal feminists seemed wedded then (as now) to a liberal regime of equality, which mandated sameness of treatment. I suggested that what we needed in the family was not formal or rule equality, but some notion of substantive or result equality that considered past circumstances and future obligations. The imposition of a mere formal equality regime would only further and deepen existing inequalities.

I identified three sites of entrenched inequality affecting most marriages. First was the inequality in wages and employment opportunity that existed in the market. Next was the inequality of power that persisted and was manifested in family negotiations over whose individual interests should be sacrificed for the larger family good. This was a process that systematically disadvantaged women due to their lower earnings and culturally imposed altruism (they were the ones who were supposed to be making sacrifices for others). Finally, there are inequalities post-divorce, with the responsibilities of custody overwhelmingly assigned to women. This continued and compounded the unequal allocation of the disadvantages and burdens associated with care work that often disadvantaged married women in the paid work force. It can be argued that those inequalities I wrote about a generation ago have lessened in our post-egalitarian family law world, but it is also true that they continue to persist in many marriages, even if to a somewhat lesser degree. While gender-neutral, equality-based reforms are firmly in place in the statute books and have proved successful on a rhetorical level, structural family disadvantages associated with caretaking still typically burden women more than men, even after decades of feminist equality reform.

My hope in 1991 was that we might fashion a more substantive or result-sensitive version of equality in the family context. The law would allow unequal or different treatment of divorcing spouses, such as unequal distribution of family assets and obligations in order to address the existing inequalities created or exacerbated by past and future family responsibilities. This more result version of equality – substantive equality – would be considered just and appropriate in that it would satisfy the need that arose because one spouse typically assumed primary responsibility for children both within and after marriage.

While I still believe in the justness of the substantive equality outcome, my vocabulary and arguments have changed to become less focused on gender and more inclusive of those whose family or other uncounted labour is not valued in a formal equality regime. I now talk about need in terms of dependency and vulnerability. This articulation may not be any more palatable to those who buy into the rhetoric of independence and self-sufficiency, but it is more theoretically promising. Vulnerability is universal and constant. As embodied individuals, we are all just an accidental mishap, natural disaster, institutional failure, or serious illness away from descending into a state of dependency. Furthermore, dependencies are multiple and complex in form.

There are two types of dependency with which I have been concerned. On one hand, dependency is inevitable – a part of the human condition and developmental in nature. On the other hand, those who care for inevitable or natural dependents through essential caretaking work are themselves dependent on resources in order to undertake that care. Those resources must be supplied by society through its institutions. In our American scheme of social responsibility, both dependencies are relegated to the family and, typically within that family, to women in their roles as mothers, wives, daughters, and so on.

When I look at the family through the lens of vulnerability and dependency, I find it enhances and expands beyond that institution the critique of the imposition of a formal equality regime that I earlier developed with marriage and divorce primarily in mind. My subsequent work in developing a theory of dependency, which led to work on the idea of universal human vulnerability, demonstrated to me that both state and market are of necessity implicated in situating the family within society. That work also convinced me that formal equality is a flawed and poorly articulated objective, even when applied beyond the realm of the family. In fact, some of the very same reasons that formal or rule equality is inappropriate for the family also illuminate why it is inadequate to address justice and allocation problems in the larger society. Formal equality is inevitably uneven equality because existing inequalities abound throughout society, and a concept of equality that is merely formal in nature cannot adequately address them.

Gender was an obvious entry point from which to build this larger analysis in part because women have historically been marked as different in relationship to the state and public sphere. Their citizenship and concurrent responsibilities were anchored in the family, not in the wider polity or free-wielding market. The residues of that distinction remain in many ways that implicate the image of women as citizens. We may have secured political and civil rights, been successful in our search for equality in a formal way, but we continue to stand outside the ebb and flow of mainstream power. Equality for women remains elusive in practical and material terms, in part because they remain mired in a prelegal notion of the family, in which they are understood to have unique reproductive roles and responsibilities that define them as essentially different and necessarily subordinate in a world that values economic success and discounts domestic labour.

Of course, the distinction between the position of women in the family and their position within the larger society is incoherent theoretically. The family is not a separate sphere isolated from the norms and standards applied in the larger society. The notions we have about the mandates of citizenship, the appropriateness of claims to liberty and autonomy, and beliefs about relative equality resonate across societal institutions. This is true on an ideological level as well as on a structural level.

The nature and functioning of other societal institutions profoundly affects the nature and shape of the family. By the same token, the nature and functioning of the family profoundly affects other societal institutions. As I have argued earlier, the metaphor of symbiosis seems more appropriate to describe the family in relationship to the state than does the separate spheres imagery. The family is located within the state and its institutions – they are interactive and define one another. Alterations in the scope or nature of one institution will correspondingly alter the scope or nature of the other. By the same token, if formal equality is inadequate or unattainable in the family, the chances are that is because it has failed or will fail as a regime in the larger society. These are the lessons we need to learn.

A Responsive State – For the People, by the People

by Camilla S. Jydebjerg




The hashtag #notinmyname is widely used on social media as a way to show discontent with current politics as well as to distance oneself from them. In Denmark (where I live) I have recently seen people use it to distance themselves from the government’s politics concerning refugees, especially the decision to consider areas of Syria safe. This decision has led to the suspension of the residence permits of a number of Syrian refugees. These suspensions of residence permits have been perpetuated despite international critique.

I understand the hashtag #notinmyname and I share the need to distance myself from a government that acts in ways that are thoroughly and utterly disconnected from my morals and worldviews. The question I want to broach here is if that is possible. Is it possible to distance oneself from the government or should the hashtag read #thisishappeninginmyname. After all the cornerstone of a representative democracy is that the politicians are the representatives of the people acting on our behalf. Lately, I have been pondering how we can think about government and representative democracy and indeed if the ideals of these institutions still hold through. These thoughts are inspired by my current visiting scholarship at the Vulnerability and the Human Condition Initiative at Emory University.

As part of this visiting scholarship, I have been fortunate enough to be able to participate in the classes held by Professor Martha Fineman and Postdoctoral Fellow Jennifer Hickey. In these classes the topic of government and trust in government has been debated in different ways often in connection to a seemingly growing political polarization of society and a failing  of trust in government. According to the Pew Research Center only “20% of U.S. adults say they trust the government in Washington to ‘do the right thing’ just about always or most of the time.” OECD numbers show the same trend. Furthermore, 67 percent believe that most politicians are corrupt. These are shocking numbers revealing a state of government considered neither for nor by the people. This is not just an American problem as numbers across national borders point to lack of trust in national governments and a wish for a change in political systems.

Trust in the national government seems to run quite a lot higher in Denmark (76,6 percent of the Danes answer yes to having confidence in National Government in the 2020 OECD numbers). However, as the above-mentioned hashtag shows there are also feelings of discontent and distance between the Danish government and at least some of its people (e.g., me). The Danish Governments handling of COVID-19 has in general been commended as the numbers have been kept down and a third wave seem to be avoided. However, the response has not only been cause for celebration and in particular a decision to kill all mink to inhibit the possibility of transmission of disease from mink “seems to have accelerated the growth of both pro-government and anti-government groups on Facebook, indicating a polarization within the Danish population regarding trust in the government and the political handling of the COVID-19 crisis” (Kristensen 2020).

Even though the philosophy of national government can be criticized for its roots in colonialism, privilege blindness, and institutionalized oppression, it can still be argued that lack of trust in government and political polarization are problematic in many ways e.g., it might lead to falling voter turnout, political apathy and make political problem-solving harder. OECD research shows that trust in government is closely tied to the government’s will and ability to provide public services as well as to anticipate change, protect its citizens and to improve living conditions for all. The idea of government thus seems to be tied to the governments ability to protect us from harm and misfortune. This is very much in line with vulnerability theory’s call for a (more) responsive state. This call rests on the theory’s understanding of the human legal subject as always, and inherently vulnerable. Vulnerability is a constant condition of human life because all living “embodied beings” are “susceptible to change and alteration” (Fineman, 2017, p.4). It is the very nature of human vulnerability that forms the basis for a claim that the state must be actively responsive to human vulnerability and dependency (Fineman 2010 & 2019).

Vulnerability theory asks of us that “we imagine responsive structures whereby state involvement actually empowers a vulnerable subject by addressing existing inequalities of circumstances that result from undue privilege or institutional advantage” (Fineman 2010, p. 40). This is both a refusal of the idea of the restrained state as a societal ideal and a potent reminder that there is no such thing as an inactive or unresponsive state. All the actions of a State are a response to someone. Societal institutions, laws and politics are always responsive and responding to someone (Fineman 2018). The question then becomes to whom they are responding and who should we hold accountable if we feel disfranchised, despondent, and not represented. The numbers quoted above show that we need to start imagining a responsive state, that we need to start discussing what kind of state we want and what kind of governments. How does a responsive state look and how do we hold it accountable? Let us start the discussion so that we can get the government that we deserve to act in our name.

Nature Is Smarter Than We Are: Midwifery and the Responsive State

by Jennifer Hickey

Image via Pixabay

“Many of our problems in US maternity care stem from the fact that we leave no room for recognizing when nature is smarter than we are.”

― Ina May Gaskin, Birth Matters: A Midwife’s Manifesta


“The United States  was recently dubbed “the most dangerous place in the developed world to give birth.” Over seven hundred pregnant women or new mothers die in the United States each year. Infants are dying at an alarming rate as well. Our shockingly high and ever-increasing rate of maternal mortality, particularly among Black women, has garnered significant national attention. Further, many women experience mistreatment at the hands of their health care providers, including the imposition of unnecessary or unwanted medical interventions during birth. Aside from causing emotional and physical trauma, such interventions have been directly linked to increased maternal mortality.

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A Vulnerability Analysis: Theorising the Impact of Artificial Intelligence Decision-Making Processes on Individuals, Society and Human Diversity from a Social Justice Perspective

by Tanya Krupiy

“Erica Curtis, a former admissions evaluator at Brown University in the United States, has noted that she evaluated each student’s application consisting of standardised test scores, the transcript, the personal statement, and multiple supplemental essays within a twelve-minute timeframe.1 Arguably, this is a very short period of time within which an admissions officer can evaluate the applicant’s personality and academic qualities holistically.2 The time constraints create a possibility that the admissions officer may fail to detect the applicants’ capabilities or how societal barriers diminished their ability to realise their potential. Another concern with human decision-making is that the decision-maker officer may act arbitrarily in the course of exercising discretion3 by putting different weight on comparable attributes that cannot be measured.

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Beyond Equality and Discrimination


by Martha Albertson Fineman

Image via Pixabay


“The societal frame of the “economically disadvantaged” is rooted in a distinction between a conceptual status of equality and the actuality of discrimination and disadvantage. This paradigm provides the governing logic for both criticism and justification of the status quo. This Article questions whether and to what extent this equality/antidiscrimination logic has lost its effectiveness as a critical tool and what, if anything, should be the foundation of the rationale that supplements or even replaces it.


The theme of this Article for the SMU Law Review Forum focuses us on the challenges faced by the “economically disadvantaged” in the past decade and in the future. This framing is rooted in a distinction between that conceptual status of equality and the actuality of discrimination and disadvantage. This is the lens through which contemporary legal culture tends to assess the nature and effect of existing laws and determines the necessary direction of reform. As such, this paradigm provides the governing logic for both criticism and justification of the status quo. It is rooted in an understanding of the significance of the human being and a belief in their fundamental parity under law that also asserts the inherent value of individual liberty and autonomy, and thus is skeptical of state intervention into the “private” sphere of life.

Continue reading Beyond Equality and Discrimination