New book examines the complexities of harm

Are we harmed when we die? Or is any injury caused by a person's death suffered only by their loved ones? These are just two of the weighty questions Stanford Law School Professor Mark G. Kelman examines in his new book, "Understanding Harm: How the Law Should Assess Injury," which invites people to think critically about legal approaches to injury and what it means to be well or badly off. That he relegates most of his reflections on death and its potential harms to footnotes is a sign of how weighty the book's other questions are.

Perhaps that's to be expected from someone who wrote a 200-plus-page paper as a law student because he wasn't sure he'd have another chance to delve as deeply into issues that interested him (a worry that "Understanding Harm" and numerous other works by Kelman demonstrate was unfounded).

In "Understanding Harm," Kelman challenges ideas about human welfare, what it means to be injured, and what injuries matter and why. He methodically tackles life circumstances we generally view as harmful and therefore deserving of legal and social remediation: living with a disability, living in poverty, and suffering discrimination. What, exactly, is injurious or could be injurious about these circumstances and why? The answers, he argues, may be useful in determining who has been hurt and how we can help.

"Everybody agrees that poverty is harmful, but what aspects of it are harmful?" asks Kelman, a vice dean and James C. Gaither Professor of Law. "Is it as simple as people don't want to be poor? Very specific injuries of poverty require particular policy responses. If you just generally say, people don't want to be poor, or people suffer [from poverty], you're not being specific enough."

"Understanding Harm" is the culmination of years spent thinking about the topic and teaching a Stanford Law School class called Injuries. "In trying to prepare for the class and listening to what students said and responding to them, I got a more systematic idea of what I might want to say," he says.

In the book, Kelman raises questions about whose injuries we care about and why: For instance, he poses a hypothetical of a man who is offended by seeing two men holding hands in the office; the man claims to be harmed by the behavior, and maybe, subjectively, he is. But is his harm something society should protect against or address?

Finding clarity in law

Richard Thompson Ford, BA '88, George E. Osborne Professor of Law at Stanford Law School, says the book's discussion of race discrimination is relevant to current claims of reverse discrimination by members of majority groups who argue they have been disadvantaged in favor of Black people or other historically marginalized groups.

"What makes race different?" Ford asks. "Is it the legacy of Jim Crow? Is it the stigmatic injury that comes from that historical legacy?"

Asking hard questions about harm "gives us clarity about where the law should be applied and where it shouldn't be," Ford says.

Kimberly A. Yuracko, JD '98 (BA '91, MA '94, Ph.D. '97), a Northwestern Pritzker School of Law professor who took her first class with Kelman as an undergraduate, agrees. She noted recent high-profile conversations about injuries and remedies, including calls for reparations by descendants of enslaved people and claims that transgender girls are harming cisgender girls in sports.

"These are issues focused on claims of harms without a very good analysis at all about how we identify the harms, how we measure the harms, how we compare them," Yuracko says.

Kelman, who grew up on Long Island in New York, didn't set out to be an academic. After graduating from Harvard College in 1972 with an interdisciplinary social studies degree, he took a year off to write a novel, "What Followed Was Pure Lesley." The Harvard Crimson praised Kelman's "skill with dialogue and character development," and he has since written, but not published, four other novels (along with three teleplays and four screenplays).

Still, he decided against being a fiction writer. "I didn't want the discipline" of doing it as a full-time job, he says.

Kelman attended Harvard Law School, intending to focus on policy, and his first job was at the Fund for the City of New York, working as a consultant crafting solutions to public policy problems.

"I worked on one good [solution] and a lot of bad ones," he says.

The good? Helping the city's child protection agency develop a system of triaging abuse and neglect cases. One of the bad? A proposal to convert cemeteries into playgrounds and park spaces—an idea Kelman dubbed "the over-my-dead-body project."

While at the fund, a former Harvard professor told him that Richard J. Danzig, a Stanford Law School professor who went on to serve at the U.S. Department of Defense and in other national security roles, wanted to speak to Kelman about his law school 300-plus-page paper (which explored inequality, growth, and environmental issues, among other topics). An interview followed, and in 1977, Kelman joined the Stanford Law School faculty. He was 26 years old, or "preposterously young," as he describes it.

A wide scholarly net

Kelman's research has always been interdisciplinary and wide-ranging; using theoretical and experimental methods, his work has helped shape fields as disparate as critical legal studies, taxation, and criminal and antidiscrimination law. Among the topics he and co-authors have explored are the legal treatment of students with learning disabilities, problems with aptitude tests in hiring, and how policy intervention can help people make decisions in complicated circumstances, such as medical treatment.

Rather than stay within the confines of a particular field, Kelman says his research is usually tied to "an issue of policy significance or a kind of argument that lawyers made that is bothersome in some way."

"My view is, can you throw an enormous number of techniques, internal and external to the law, to help understand the problem better and maybe come up with something that works better?"

Yuracko says Kelman is "able, almost on the spot, with any issue to see it with a kind of clarity and distinction of elements that I've never seen anyone else bring."

"I sometimes go to him and say, 'I'm thinking about this problem,'" she explains. "And I would see three different issues. Mark would see six and then he would see five different offshoots of each one of those."

In "Understanding Harm," Kelman criticizes certain approaches taken or supported by progressives, and he expresses discomfort that the book is being published at a time when progressive policies are under attack from the highest levels of the United States government.

"A lot of the work I've done is to push people with fairly similar politics to my own about ways in which we differ—that seemed more relevant to me [at the outset of the book] than it seems right now," he says. "It's an odd time … to be focusing on imperfections in regimes and institutions I fundamentally want to be maintained. We have bigger fish to fry."

And yet, many would agree with Yuracko that the book is "timely and important."

"One of the things I have always admired so tremendously about Mark is that his goal is clarity of thinking," she says. "He's an academic in the best sense … somebody who wants clarity of concepts … not advocacy at the expense of obfuscating what the meaningful distinctions are. As a society, we'd generally all be better off by having more careful conversations."

Provided by Stanford University