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Thursday, November 17, 2016

What Next?—Part I: Action—Some Options for (Former?) Law Professors

Orly’s post below asks, “How are you changing your scholarship, teaching, and service in light of the election?” It is a potentially interesting question and something many of us have been musing about for some time. Here are some thoughts about options for law professors in response to and in light of the election. In a separate post I’ll talk about what I would be interested in seeing in legal scholarship itself post-election.

As usual, this post is long. (It’s a big question! It demands either a long answer or a really good short one—and I doubt I’m capable of the latter.) I move back and forth to some degree below between taking as a given the assumption that Trump represents a serious threat to “X,” where X represents the rule of law, the welfare of particular vulnerable constituencies, the survival of the United States, and so on, and remaining agnostic on those questions. It seems obvious that answers to the “what next” question depend in part on one’s view on those questions, and on one’s view of both the degree of harm potentially involved and the probability that these harms will occur. One may remain agnostic about some of those questions but still decide to change one’s approach radically, if one believes that the risk of harm may be low but that the harms that might eventuate are immense and difficult to repair. For the most part, I ask about scholarship and teaching in the long run, and less about immediate pedagogical reactions in class to students in the immediate wake of the election, although that aspect of “what next” figures in some of my analysis.*

Two potential responses on the scholarly front to the question “what will you change” may not be voiced by as many people, even if many people share these answers, although they do come up in the comments to Orly’s post. The first is: “Not much, if anything at all.” Like other academics, legal academics work in particular silos and on particular subject matters. I would not expect astronomers’ scholarship to change in light of the election. Law—all law—is a more political enterprise than astronomy under present conditions, or so I assume. But one might write in a legal field or on a topic within that field that one anticipates will not change. A contract law scholar might well have this answer. I leave open the possibility that one may find, or look for, ways in which this subject might provide tools for resistance, reveal underlying structures that support or reify a class or economic structure that makes the current situation possible, and so on. Even if that is possible, one assumes both that some people have particular scholarly interests in such a field that are distant from such concerns, and that others might agree that these questions are valuable but doubt their own ability to contribute much to such work.

A second response is “I don’t know yet.” Again, surely many people would agree with such an answer, even in fields that are very much likely to be affected by the election, but they are likely to be less vocal than those who believe they already know what needs to be done in their field. But even if one has a timeline shorter than Zhou Enlai’s, one may believe it’s simply too soon to tell.

There is a third, important or consequential answer that is possible. It is relevant both to those whose subject areas are likely to be affected by the election and to those whose subjects are unlikely to be affected by it. The answer, in short, is “I’m going to quit, or take a leave from, law teaching.” And one possible thing to do upon quitting is to join the Trump administration, while another is to not do law at all. I explore the reasons why one might quit, and the kind of work one might take on, after the jump.

So: Let’s say that you believe strongly in Trump’s threat to “X,” and either disagree with or for other reasons want to resist any urge to “normalize” his election. Let’s further assume that you believe that in such circumstances, you have a moral and/or professional duty to act accordingly. Set aside, for purposes of discussion, the possibility of leaving the country, although if you believe in the “X risk” that surely is a possible and perhaps a wise response. But you intend to stay and act. For such people, leaving the legal academy, temporarily or permanently, seems like a perfectly logical response and should at least be considered. And in considering it, one should be wary of a perfectly natural and human tendency to rationalize away the reasons to disrupt one’s own life to that degree.

Why leave law teaching? If you believe strongly that there is a high risk of X and that you are obliged to act in response to it, you still have to ask how to act. And there is no reason to assume that the best way to act, the most valuable response you can offer, is in your current job. It might be. But that’s hardly pre-determined. In particular, you are (or, these days, may be) a lawyer as well as a law professor. If you believe action is necessary and that this action includes legal work, you might examine your options and conclude that you can do more important “resistance” work as a lawyer than you can as a legal academic. Maybe you will write some piece that really changes things, or effectively teach resistance strategies to a large number of students, a sufficient number of whom will use those strategies. But maybe you won’t. You almost certainly won’t accomplish the first, and the second is at least uncertain.

On the other side, you might be able to perform concrete legal work for potential victims of the new regime that will make a concrete difference in their lives. It could take a variety of forms: immigration work, criminal defense, estate or small-business planning, real estate, employment law, health law, benefits appeals, or even constitutional litigation. In any of these areas, you might be better able to effect necessary (perhaps urgently necessary) change than you can in your current job as a law professor. Resistance movements or revolutions may require house intellectuals (although they needn’t serve in the academy). But they don’t require a lot of them, and you might do more concrete good as a foot-soldier practitioner than by trying to be one of those house intellectuals. So: Just do it. Quit—or take a leave of absence, if you feel more comfortable with that—and be a foot-soldier practitioner. (A very small number of law professors are elites and unusually qualified and skilled in both practice and the academy. Maybe they would not end up as “foot soldiers,” but as generals. They, too, will have to weigh doing elite work in the academy against doing full-time elite work as a “general” in practice, and may reasonably conclude that they will do more good as the latter.)

One counter-consideration is that an increasing number of law professors have limited practice experience and that many of them have a highly academic set of skills and experience, including doctoral work in some non-legal field. This is a common complaint of critics of the legal academy, both internal and external, of course. Wherever one comes out on the normative question, there is much descriptive accuracy to it. Maybe the comparative advantage calculus will be different for these people. But the benefits to others may still favor quitting even for these individuals, at least assuming they have a JD and either belong to a bar or are eligible to join it. Others might benefit more from a competent but inexperienced lawyer, doing small things, than an expert legal historian or lawyer-sociologist dreaming of big things.

If you decide you can do more good in response to the election outside the legal academy than inside it, where would you do most good? Let me mention three possibilities, leaving aside the rare answer of being a “general.” One is, as I mentioned, as a foot-soldier: an individual lawyer handling “basic” concerns, like helping immigrants on immigration or benefits matters. You might not teach in that area or have significant practice experience in it, but you could learn, and do some concrete good for specific individuals and communities along the way. There’s no glamor or celebrity in it, but neither was there in being a member of the infantry in World War II, and we needed more infantrymen than generals, or logisticians back in Washington.

Two other options seem more intriguing and less likely to have been considered by as many people. The first is: Go to work for the Trump administration. Or, more accurately, go to work as a civil servant, whether as a lawyer or not. Again, I’m thinking of the basic bureaucrat-civil servant level rather than some fancy position. (If you don’t want to “normalize” the election, you might prefer to work at a “low” level rather than a high level.)

You might have two reasons for doing so. First, the government needs lawyers and other symbolic analysts who will loyally uphold the rule of law, follow norms of care and reason rather than arbitrary or punitive action, act consistently with and not against the Constitution and laws, etc. If you worry about this regime being lawless, you can do some good for others by being a loyal and lawful civil servant. A dinosaur has a small head and smaller brain and a big body, and messages from the head to the body take a while to get there. Even if the chief executive is dangerous, or dangerously small-brained, a lot of routine but, to its subjects, important work will continue to be done and need to be done, and a lot of it can take place before or despite whatever messages are being conveyed to the “body” of government from its head.          

Second, you might go into government specifically to resist or subvert the new president. You could do all sorts of things in this capacity: insist on the letter of the law being followed where its spirit is dangerous, and vice versa; “work to rule” where some new governmental policy ought to be slowed or resisted; leak to the press; insist on obedience to the Constitution where you think your orders compel you to violate it; and generally be a spanner in the works or a body slowing the machine. You might, in short, turn the executive branch into a vehicle for resistance to the chief executive. You might do both: work loyally and well insofar as your job allows you to serve and protect others, and act subversively insofar as orders from the top are pushing you to do otherwise.

A third job/response possibility is that the most important work you might do—more important than whatever you might accomplish as either a law professor or a lawyer—might be civic or activist work of an entirely different kind. I’ve argued here and elsewhere that there are systemic dangers to law professors and other academics tending to prefer to speak and act as “experts” rather than as plain citizens. It reinforces the sense of a status-seeking elite or of rule by technocrats, resistance to which was one factor in the election outcome; and it de-emphasizes the importance of general, mass civic action in one’s capacity as a citizen. Maybe you would do the most good, in response to the election and the risk of “X,” in your civic capacity than as either a legal academic or a lawyer. The civil rights movement needed lawyers, leaders, and planners, but it also needed bodies on the line. To call them “foot soldiers” deprives them of the dignity and importance of their efforts. But it’s still the case that any such movement needs a lot of people to follow orders, to march and/or be jailed, to storm the barricades, and so on. It needs citizens acting for civil rights by putting their bodies on the line, perhaps more than it needs “Historians for Civil Rights” or even a twenty-first or twenty-second civil rights lawyer.

You needn’t quit your job to do such work. But to the extent that you believe “X” demands action, you might believe the risk of “X” is so great that it demands full-time action, or that it needs more bodies in Montana, or south Texas, rather than Manhattan or Austin. There are at least reasons to consider the possibility that the best response is for you to become a full-time activist, or to take a job of whatever sort so you can pursue activism somewhere other than where you currently live and teach. It might also be the case that you would be too busy as a law professor, despite the luxuries of time the job generally permits, to pursue activism to the extent you believe is necessary given the urgency and importance of the threat of “X.”

You could decide, instead, to keep your job but devote more time to your activism and much less time to your official work as a professor and scholar: you could stop doing scholarship for a few years and phone it in as a teacher in order to devote more time to civic activism. Perhaps the circumstances justify it, although I’m not sure why keeping your academic job is necessarily a relevant “circumstance.” On the other hand, plenty of people want jobs as legal academics, and some of them might be better qualified than you—either in general, or better qualified to do good for the cause as law professors than you are. And tenure is not, or isn’t supposed to be, a sinecure. It’s an academic protection, not a form of job security for its own sake or a highly paid place to be a journalist, or op-ed writer, or mountain biker, while barely doing your actual work. If you are going to spend most of your time as an activist, whether in a legal capacity or not, maybe you have a moral and professional duty to give up your berth in the academy to do so. Michelle Alexander, to her everlasting credit, gave up her tenure as a law professor because she believed she could do more good elsewhere, and/or that it was more appropriate for her to give up her position for someone else if she was essentially going to pursue work as something other than a “law professor.” And that was before the election. If the election and the regime it brings to power is indeed “non-normal” and the times demand urgent and unusual action, you might decide that your work is most needed elsewhere than in the legal academy, and that under those circumstances it is also right for you to surrender your coveted spot there to someone else.    

I am not urging people to do any of this. I am suggesting that to the extent that the election was non-normal and the risk of “X” is great, not every response to it needs to be undertaken as a law professor. What you personally would like to do is, from this perspective, less important than your carefully, logically considering what needs to be done. If you run that analysis, you might conclude that you would do the most good for the most (or most vulnerable) people not as a law professor, but as a lawyer, a civil servant, or in a purely civic capacity as an activist. Maybe not! Maybe you can do the most good in response to the election by continuing in your present job, with or without changing (or chancing much) what you do on a day-to-day basis. But if you accept the operating premises I have used here, you cannot simply assume this to be the case. And in considering your options, you should avoid the tendency—again, a perfectly natural human tendency—to rationalize yourself into the conclusion that other than changing your syllabus, or picking up a new course, or doing more work on the side as a lawyer or citizen-activist, nothing really needs to change for you.

Although nothing here says any of this, I know how some people are likely to read, or read into, this post, and so I suppose it’s worth adding some denials or clarifications. I understand that few people are likely to actually take up any of these suggestions. In some cases it will be because they conclude that they can be of the most good in their current jobs—although, again, I think there is reason to second-guess such a conclusion and be wary of rationalization. People might therefore conclude that law professors who don’t do anything different, or who really only change little things rather than taking big and bold steps, are hypocrites. I’m not suggesting that. For one thing, I think accusations of hypocrisy are generally made too lightly and quickly and are a conversational dead end. For another, because most people live with and in all kinds of inconsistencies, I don’t consider such charges either especially devastating or especially interesting. In any event, my goal here is neither to set up such an accusation nor even to challenge people to take the possible steps I’ve outlined above. I simply want to offer an analysis of the options available to law teachers who sincerely believe that something needs to change in their work in response to the election, and who believe it for civic reasons and not just because they think the election poses some new questions of largely intellectual interest.

Another conclusion people might draw from law professors doing only a little in response to the election—changing their syllabus and so on—rather than acting more boldly is that these individuals really are normalizing the election, or believe the risk of “X” is smaller than their more urgent rhetoric suggests, or something like that. That may well be true for some law professors. It is surely true for at least some of them. But I would not make that a general assumption. Law professors, like everyone else, are capable of inconsistency, imperfection, devotion to considerations—family and job considerations, financial considerations, and so on—other than the needs of others, etc. Maybe academics are more prone to these tendencies, given the comfortable and enviable nature of their jobs and the relative contentment and inertia of the managerial-professional class; I don’t know. But nothing about such tendencies is unique to them. They may sincerely believe in the importance and urgency of the situation, even if they do relatively little about it. Again, my goal here is only to explore calmly some of the broader options and implications of the basic question of what law professors ought to do in light of the election.     

* Well, it was supposed to, anyway, but I didn't get around to it, so I'm adding it here. One option, or response to the options presented here, would be to envision one's primary response as offering support, sympathy, and guidance for students who are upset about the election result as such (perhaps a more academically questionable function, although I don't think sympathy, about a variety of issues, is out of place as a general function for teachers), have been made the subject of hateful and threatening remarks (easily within any teacher's purview, I think), and feel that they or their loved ones or communities are vulnerable. One can certainly understand this as a response, without any foreknowledge about whether this reaction will be indefinite or short-term and ease or increase with time. But it is not clear that it is sufficient as a reason to stay in the legal academy as opposed to choosing one of the other options discussed here. Going out of the academy and into other communities might give one an opportunity to offer the same comfort and sympathy to people who feel even more vulnerable, have been subjected to even worse threats and abusive language or conduct, and possess even less of an institutional or community support system. Obviously both possibilities are factors to be weighed. 

Posted by Paul Horwitz on November 17, 2016 at 07:34 AM in Paul Horwitz | Permalink


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