Sunday, February 21, 2016

My investiture as NYLS' Martin Professor of Law

Last November, when I learned that I had cancer, was a difficult time. But one irony of that period was that just a few days after I received this diagnosis I was honored with a ceremony celebrating my appointment as the Martin Professor of Law at New York Law School. The appointment itself had taken effect on July 1, 2015, but the investiture ceremony was on November 23, 2015. I was feeling ill, but not so ill as to need to cancel the ceremony. It was a very special moment for me, and I hope to spend many years as the Martin Professor. 

You can view the event at this URL: And here is a slightly revised text of what I said that night.

The Practice – and Rule – of Law

Stephen Ellmann
Martin Professor of Law

New York Law School, Nov. 23, 2015

Thank you to all of you. This chair means a lot to me – and your presence even more. Thanks especially to Dean Crowell, who has supported the development of clinical and experiential learning so steadfastly – and me too. Thanks also to Jethro Lieberman for his gracious introduction; I would be proud to hold any chair at New York Law School, and I’m very glad to hold a chair honoring a man, Lester Martin, who was so much a part of the life of New York, but I’m honored to succeed two such scholars as Jethro and Jim Simon in the Martin Chair. Thanks above all to my family who are here, to Maud, Dave, to Frances, and to Teresa, who makes it possible for me to do everything.

            I want to say a few more words of thanks to New York Law School. I haven’t been here for all of New York Law School’s 125 years, but it has been my academic home for 23 years now. I’m grateful for its:

            Students who are so thirsty for understanding and knowledge;

            Faculty, clinicians and classroom teachers alike, who welcomed me to their community and are my friends, and whose commitment to learning and teaching is evident every day;

            Administration and staff who go the extra step, or mile, to make the school function successfully – including, of course, Nancy Guida and her staff, who worked so hard on this evening – and who even respond to emails sent very late at night (yes, Susan D’Ambra and Oral Hope, I am talking about you). And with you, I remember Mary Rose Mercieca, who passed away suddenly last week.

            There are many more people I could thank – please let these brief thank-you’s stand as a proxy for my gratitude to all of you.

            And now let’s get to work. The issues I’ll discuss this evening are matters many of us have thought and worried about, but that is okay: my goal, with T.S. Eliot, is that “we shall not cease from exploration/And the end of all our exploring” – many lectures and articles and years from now – “will be to arrive where we started/and know the place for the first time.”

            My thesis this evening can be stated straightforwardly, but I hope will soon grow more complicated. I mean to argue that the reason why law schools should teach students how to practice law is not to add to their list of skills but to help prepare them for the crucial social role they play, namely the preservation and development of the rule of law.

            The “rule of law” is an elusive though critical idea. I want to say a little about its components, enough I hope to identify some of its crucial elements though hardly enough to complete the task of understanding this complex institution. I’ll define it simply as a system of reasonably predictable laws, enforced through reasonably just processes, as part of a system that protects human rights. That definition could be disputed; one might say that the rule of law isn’t directly connected to the protection of human rights, but South Africa, which spent the twentieth century demonstrating that societies could be ruled by law without rights, seems to me to make clear that the rule of law is of necessity rights-protective, and must be distinguished from what anti-apartheid observers of South Africa sometimes called “rule by law.”

            Lawyers and judges aren’t the only people responsible for preserving the rule of law, of course. Police officers are part of the rule of law; so are investment houses’ compliance officers; so are the people who formulate regulations and issue them for notice-and-comment rulemaking (which I’m discussing with my students in Legislation and Regulation right now).

            But they are important, in some ways that may seem mundane and others that are more dramatic. Let me begin a bit indirectly, with uncertainty in the law. In law school we tend to teach, at least in many of our classes, the tools for developing and manipulating uncertainty. This statutory text (Leg/Reg again) might be read according to a canon that says that if Congress left something out, it intended to do so; or it might be seen as ambiguous enough to be read in light of some overarching purpose Congress had that might have included the very word or idea left out of the explicit text. And so on. It’s very hard to write language that cannot be pushed and pulled by interpretation into meanings that might surprise its authors. And doing that work must be part of the rule of law, for reasons I’ll try to explain later.

            Meanwhile, however, a great deal of what lawyers and law users do has very little to do with such sophisticated ventures into the world of doubt. Much of our legal world is routinized: driving this fast will get you this kind of a fine; providing these warranties will satisfy the other side at the closing on your house; taking this deduction is reasonable while taking that one will look bad at an audit. All these are individual matters, but I take it the same is true in much of the legal world of business as well. And even in politics – as witness the recent resolution of a tied election to the Mississippi legislature by the faithful application of the prescribed statutory method, drawing straws, even though the result was that the Democrat was elected and the Republicans were denied a supermajority in the legislature. There are, in fact, large areas of reasonably predictable, reasonably stable rules by which people structure their lives, and lawyers’ role in guiding their clients’ actions in light of these rules is an integral part of the rule of law. In that sense, and it’s an important one, every honest lawyer’s work with her clients, on any matter, is part of sustaining the rule of law. It’s also, of course, part of enabling clients to exercise autonomy within the law, and morally valuable for that reason as well. The day-to-day business of law practice is moral work, in somewhat the same way that the day-to-day practice of medicine is moral work.

            A world governed by the rule of law is not at all a world free of conflict, however, and another role of lawyers is to help resolve such conflicts. My colleague Becky Roiphe has explored the twentieth-century professional ideal of legal professionalism, in which the lawyer is a coordinator of society. In somewhat the same vein, lawyers are sometimes said to be excellent problem solvers because they are experts in process. So also Anthony Kronman has written, in his 1993 book The Lost Lawyer, about the lawyer-statesman, a lawyer of an earlier age who was distinguished by:

a broad familiarity with diverse and irreconcilable human goods coupled with an indefatigable willingness to enter the fray, hear the arguments, render judgment, and articulate the reasons that support it, even when all hope of moral certainty is gone. At war with itself, this complex set of attitudes nonetheless describes a recognizable moral ideal, an ideal closest, perhaps, to the public-spirited stoicism implied the Roman term gravitas….

            I do not at all want to minimize the importance of this form of professionalism or statesmanship, but I think we must recognize that it is in a deep sense conservative. It maintains. It regulates. It does not provide the impetus for change, at least not so much as it handles change surging from elsewhere. Justice Harlan, about whom Nadine Strossen spoke so eloquently in her investiture speech, is perhaps an exemplar of this wise conservatism. It’s to be admired, but it isn’t the whole of lawyers’ role in change.

The impetus for change remains to be accounted for. I’ve learned about the importance of change in the rule of law from several sources. Ed Purcell’s history, in particular his book on “Brandeis and the Progressive Constitution,”  convinced me that the rule of law rests on no absolute foundations at all. There are vast areas of relative stability, but nothing lasts forever, neither the texts nor the meanings of texts, and in fact lawyers’ (and judges’) reasoning and advocacy skills are always being deployed in efforts to change the rules in one direction or another. Often, moreover, these efforts are not purely motivated, and not transparently conducted. This too is part of the actual nature of the rule of law. Similarly Frank Munger, in his ongoing work on Thailand’s cause lawyers, seems to me to be demonstrating that the path to the rule of law doth not run straight, both because the moves that may make a positive difference in any society depend on the nature of that society, and because the ultimate outcome – that society’s rule of law – may turn out to be quite different from ours.

            Struggle is integral to the rule of law, and by no means all of it is modulated by the august lawyer-statesmen of Kronman’s vision. For me, that lesson came through most clearly in South Africa, which has been an important part of my academic work and my life since the mid-1980s. The critical lesson South Africa teaches on this score is that many of the greatest lawyer-statesmen – in South Africa, all of us know of Nelson Mandela, but Arthur Chaskalson, my friend and the first head of South Africa’s new post-apartheid Constitutional Court, stands out as well – were not dispassionate. They had not lost all hope of moral certainty. They were deft, even masterful, in their use of the tools of legal argument available to them, but they were never infatuated by those tools. Instead, they were absolutely certain of the rightness of their cause, the fight against the inhuman blight of apartheid. Mahatma Gandhi, another lawyer, was no less convinced of the rightness of overthrowing British colonialism. When we stop to think about our own history, moreover, we see many similar examples: Thomas Jefferson, John Adams, Abraham Lincoln, Franklin Delano Roosevelt, Thurgood Marshall, Ruth Bader Ginsburg. These statesmen and stateswomen were not stoics but revolutionaries, either metaphorically or literally. Some, like their counterparts in South Africa, violated the law, sometimes extensively, in what I would call the cause of the rule of law. And this too is a role that the lawyers we are educating may come to take up.

            So now we come to the question of how clinical and experiential education contribute to students’ ability to play this range of roles in the ongoing creation of the rule of law. I want to begin in a sense paradoxically, with the impact of this kind of education on legal reasoning – paradoxically because legal reasoning is often thought to be the domain and the subject of classroom courses; then ask which clinics can best have this and related impacts for which students; and then look at two overarching contributions to the rule of law that legal education in the practice of law has provided: the liberatory effect of the idea of client-centeredness, and the profound clarification that this form of education offers into the moral nature, and moral ambiguity, of lawyers’ contribution to the making of the rule of law.

            Let me start with legal reasoning, acknowledged by all as absolutely integral to the lawyer’s work. I don’t at all suggest that clinical and experiential education is a substitute for classroom training in legal reasoning; but equally classroom training is often not a substitute for clinical and experiential education, even with respect to legal reasoning. After all, expertise theory indicates that expertise consists of mastery of a domain. Transferable expertise is limited, if it exists at all: an expert musician is not an expert conductor, an expert in moral philosophy is not an expert in literature. And an expert in legal reasoning from books is not an expert in legal reasoning that must begin from an encounter with a client, and the client’s ambiguous facts and ambivalent desires, and work from there towards a legal approach that will achieve the client’s objectives. If we trained our students – we don’t do this at New York Law School – but if we trained our students only to be expert reasoners from books, we would have trained them in the wrong thing.

            But to speak of legal reasoning by itself implies that this skill is something disembodied, distinct from the rest of the makeup of the individuals who employ it.  If emotion shapes cognition, as much current research tells us, then emotion surely shapes learning as well. Few things give students so much reason to learn as the awareness that a client’s wellbeing turns on what the student, acting as a lawyer, does. And few things give students so much of a sense of accomplishment as having in fact successfully protected a client’s interest. If we cannot give students these powerful experiences, we risk dampening their curiosity and limiting their engagement. We risk undercutting their learning not just of the values of client representation, but of the elements of legal reasoning.

            All this is quite general; let me now be more concrete about which clinics can have this impact for which students. Data collected in two NALP surveys, and soon to be discussed in a forthcoming Clinical Law Review article by Meg Reuter and Joanne Ingham, make clear that students who choose public interest law find a home in skills courses and especially in those where they work on actual legal matters, clinics and externships. Many of these students, I’m sure, are also thrilled by the chance to work with like-minded faculty; their clinic and externship experiences give them the chance to live, and develop, their ideals; and their experiences also help them to enter the job market with credentials and references that may make a crucial difference. I think we do a very good job launching these students into the world – and these are, I suspect, the students likeliest to play the rule of law role of demanding that the system change.

            But what about the students who graduate and enter private practice? The NALP data, admittedly focused in this respect on students who enter big-firm private practice and so not necessarily applicable to students who go into other forms of private law, say that these future private practitioners took fewer clinical and experiential courses while they were in law school, and – though those who took the courses liked them – they liked them less than their future public-interest counterparts did.

            What accounts for this? It seems to me that one likely answer is that the future private practitioners doubted that taking courses focused on public interest or public service practice – as most clinics and most externships probably are – would really help them prepare for the careers they envisioned. That surely reduced their motivation. Moreover, they were probably right. Again, expertise theory says that we become expert in domains. While the exact dimensions of a domain can be debated (as Ian Weinstein has reminded me), criminal defense is a long ways from patent law. It is easier to take what we learn in one area and apply it to another that is very similar than it is to transfer it to some field dramatically removed from the one in which we have been trained.

            I think it follows from this that we clearly need clinical and experiential training that is set in or near the fields of private practice into which our students are likely to move. In fact, at NYLS we already have several such clinics, and are discussing more. Needless to say, I also think our traditional, social-justice minded, clinical and experiential offerings are essential. Happily, at NYLS, with the benefit of the wonderful gift from Joseph Plumeri that has given us the Plumeri Center for Social Justice and Economic Opportunity – thank you, Dean Crowell, for securing this gift for us – we have the opportunity to build on multiple fronts. But what I most want to say is that, if I am right that the roles our students will play in the private practice of law will be part of the maintenance of the rule of law – a rule of law that aims for justice and honors human rights – then creating such clinics is not a departure from a social justice mission. Instead it is another way to contribute to social justice. And it is actually a very special opportunity: to infuse into the teaching of the practice of law in these fields a sense of their social significance, so that we do not wind up essentially telling our graduates that their work is only socially meaningful if it falls in the cabin of what we call public interest law.

            Now I’d like to talk about two broader ways in which what clinical and experiential courses teach about the practice of law is specially important to students’ and graduates’ contribution to the rule of law. The first is the idea of client-centeredness, probably the single most important element of the past 40 years’ academic, that is to say clinical, reconceptualization of law practice. Clinicians study law practice as doctrinal teachers study law doctrine, and the impact of that somewhat removed reflection is important. The idea of client-centeredness can be seen, as Becky Roiphe has thoughtfully argued, as a form of lawyers’ drawing back from their professional role of managing social conflict. That point has force, especially if client-centeredness is understood as a form of self-enforced passivity on the part of the lawyer in his or her interactions with the client. But I don’t see it that way; I think client-centeredness is or should be, in a phrase Bob Dinerstein coined, engaged client-centeredness, in which the lawyer offers the client the full benefit of the lawyer’s experience while trying hard to simultaneously assist the client to make his or her own choices. In calling on lawyers to practice this way, and training their students to go out into the world to practice this way, clinicians have been adding to the foundation of the rule of law, by removing a form of lawless or arbitrary power – the lawyer’s imposition of his or her will – from the processes of the law itself. And the work is not done: the lawyer-client relationship is, in many ways, an unequal one, and developing an understanding of what the lawyer committed to the rule of law should offer her client is a task that is not yet complete.

            The last contribution to educating our students for the rule of law that I’ll discuss is surely the most paradoxical. We teach them about moral values. Often we do so by supporting the students’ most idealistic impulses, which contribute so much to achieving zealous and caring representation. But we also do so in good part by teaching them about moral ambiguity. Lawyers are faithful to legal texts – except that what those texts mean is always subject to argument and reargument, and almost no one seems to think, really, that the answer to the question of what does a text mean is “what did its author intend?” Or to give a different, and important, example: Richard Sherwin has been exploring in depth the ways that today’s media, such as film and video, affect how legal decisions are made. But once we know that these effects exist, we know that lawyers will – indeed, as zealous advocates, must – make use of them. As Richard has argued, in principle this is no different than what advocates since Demosthenes have done with the techniques of rhetoric.

And the point can be generalized: as we learn about human beings’ cognitive limitations, we also, at the very same time, are learning about techniques that might manipulate those cognitive limitations. So in recent years there has been a lot of attention to the power of narrative as a way to convey to a decisionmaker the human essence of a situation. But we know that human beings’ reasoning is limited by what’s called the “heuristic of availability,” which essentially says that people tend to decide things based on the examples of such things that come most readily to mind. The risk of shark bites is exaggerated because the stories stick in our minds; and narrative helps make things stick in our minds. So of course we should use narrative, but we should be clear about the extent to which we are engaged not in presenting “truth” but in conveying, within the rules to be sure, a story of what the truth might be. And as students learn these skills, they also encounter, often and perhaps inevitably, the reality that their clients – on whose behalf they engage in such careful presentation, and for whose wellbeing they care so much – may be lying.

And this brings us back, emphatically, to the rule of law. Ed Purcell has wonderfully examined the maneuvers of judges, in particular, as they seek to shape and reshape the legal system. But maneuver, manipulation, is part of the rule of law at every stage. I don’t mean to suggest that this behavior is lawless or unprincipled. Quite the opposite: it is law-governed and should be principled, and this behavior is an integral part of our creation of a rule of law. From the crooked timber of humanity nothing completely straight can be made; but from the lawyer’s role in seeking, for flawed people and by means that may exploit other people’s limitations, what the law provides, from that role can and does come a rule of law. We can arrive at this place, and because we and our students know it for the first time, make of it the best place that it can be.

Death and Justice Scalia

It is startling to find that Justice Scalia was frail, and perhaps he himself did not realize that this was so. He seemed so vital and dynamic, often maddeningly so if you didn’t agree with him. (I disagreed with him fairly often, while also admiring his bravura skill in legal argument, but this is not the occasion to revisit any of those disagreements.) A man as devoted to family as he was would not have gone on a solo vacation far from home if he thought he was in failing health. It is good to lead an active and productive and long life up till the very end, as he did, but I hope that he died in his sleep and did not have to know that he was dying alone.

No one knows what awaits us on some other plane after death. Justice Scalia, a devout and traditionalist Catholic, may have died with confidence in life everlasting. What Judaism says about this matter, according to one of my Reconstructionist synagogue’s rabbis, is quite unsatisfactory; that is, apparently the sages just haven’t sorted this one out. In the King James Bible, David says in the Twenty-third Psalm that he “will dwell in the house of the Lord for ever”; in the Reconstructionist prayerbook, he says only that “I shall come to dwell inside the house of The Eternal for a length of days.” 

But Justice Scalia’s death makes crystal clear what awaits us here. Within less than three hours of the news of Scalia’s death reaching the media, Senator McConnell had decided to go public with his objection to President Obama nominating anyone to fill Scalia’s seat, and the Republican candidates for President all concurred in their debate a little later that same evening. In other words, here on earth the living take note of the absence of the deceased, and proceed to business. The New York Times reports that official Washington “paused” yesterday to remember Justice Scalia, and that pause was respectful, but meanwhile life emphatically goes on.

Yet Justice Scalia will be remembered by many, and that certainly counts for something. He was, it seems, a gregarious man who travelled widely and spoke in many venues; his biographer will have a lot to do collecting the stories of what he said and to whom. I happened to meet him twice, once at Columbia Law School and once, more recently, at the banquet of the New York Law School Law Review, at which he was the featured speaker. Before his talk, Teresa and I went to say hello. He didn’t remember having met me before, which I thought was perfectly reasonable. But he went on to surprise us: he said something to the effect that he admired people who devoted their lives to law teaching, and recalled, self-deprecatingly, that he had felt he was growing bored in his last years of teaching, and I think he said that that weakened him as a teacher. Teresa and I felt he was very gracious to us that evening. His son’s remarks at his funeral make clear that Scalia saw himself as an imperfect person, a sinner like everyone else, and perhaps we encountered that humility that night.

I’ve read recently that he believed that he was waging a war of ideas, not a war against people. In his words, “I attack ideas. I don’t attack people.” That’s a distinction that isn’t always easy to adhere to, since it is people who hold ideas, and when ideas are attacked as silly or stupid, those who hold them not unreasonably suspect that they too are being assailed as silly or stupid. Justice Scalia’s dissents were often harsh, and I think that diminished his influence within the Court. But in principle the idea that one can sharply disagree about ideas, yet still respect and like the people with whom one disagrees, is a humane and democratic one. It must also be part of what enabled Justice Scalia to be such good friends with Justice Ginsburg.

I can’t resist adding that the distinction between ideas and those who hold them is also rather South African.  "Play the ball and not the man," Michael Corbett – the last chief justice of the old South Africa and a respected and quite progressive jurist -- urged, and that soccer metaphor made the same point. The more we play the ball, or in other words the more we engage with the ideas and reasoning of those with whom we disagree, the more we implicitly affirm that there are in fact right answers to our problems and that we are engaged in a good-faith effort, along with our adversaries, to find them. The more we affirm that there are right answers, in turn, the more we maintain that the legal (or moral) world rests on, or seeks, objective truth. Scalia certainly believed that there were right and wrong answers to legal questions; many of South Africa’s greatest lawyers and judges have believed that too. The fact that on many points Scalia and his South African counterparts today might have believed in almost diametrically opposite answers doesn’t prove that any of them were wrong in believing that right answers exist.