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Friday, January 13, 2023

And One More...

I am fortunate to disagree with Rick on all sorts of things, to have a formation and moral anthropology that differs from his, and to consider him one of my best friends in the legal academy. I say this by way of saying that although we share some common views on the things we've discussed in the last couple of posts, no doubt we have some bottom-line disagreements on other matters--probably including Dobbs itself. But what he writes below strikes me as pretty reasonable and doesn't depend on our respective views on other matters. I want to add a couple of thoughts:

1: Prof. Chemerinsky teaches constitutional law. I get that, and thus why his examples and thinking might center around that subject. People who are heavily engaged on contemporary political issues--which is not every American, not every law student or faculty member, and not necessarily the finest or most thoughtful people in either category--are also likely to focus on constitutional law, perhaps mistakenly and perhaps faute de mieux, for lack of a position in a more appropriate discipline, in thinking about some of the cultural divides Chemerinsky discusses. But of course it goes beyond that. Long before Dobbs, or the current Court, it was a common observation that the legal academy is often disproportionately con law-centric or -obsessed, and Supreme Court-centric at that. 

One might ask: Would our understanding of, or approach to, "deep divisions in our society" look precisely the same if we were viewing it through the vast majority of our curriculum, which thinks about things like tort, contracts, property, tax, securities, and so on? I do not mean to minimize the very real feelings Chemerinsky is discussing or, for that matter, to suggest they are irrelevant to those other subjects. But are those feelings as sharp, in the classroom or in our dealings with each other as students and faculty members, when the subject under discussion is contract law? Where there are disagreements about the doctrine on easements, do they fall as simply and as often along trite political lines? Where those disagreements occur, are they handled more civilly? Yes, Chemerinsky teaches con law. But he's also a dean with a whole curriculum at his survey. Has he considered that there are other models, and other places in the same law schools, in which the state of civil discourse, the availability of disagreement without polarization or mutual demonization, and the ways of addressing disagreement are better--kinder, more scholarly, more thoughtful, less vitriolic, more tolerant and welcoming? Why model the whole picture of what's going right or wrong in law or law school, and of what we should use as a tether or orientation point for thinking about students' mindset and how to develop it, around constitutional law and the Court?

I'm not just asking this of Chemerinsky. It is a common observation outside the legal academy, within our general culture, that some of our discursive spaces tend to focus most relentlessly on the things that are most divisive and, in doing so, to neglect vast spaces of normal life, vast numbers of normal people with other concerns, and to exacerbate division. Perhaps it is the case that our endless focus on a few public law subjects, and tendency to define them as the main ground of discussion and debate, has the same effect within law schools. Maybe we would be slightly more encouraged, and find better models for addressing discourse and disagreement, if we looked elsewhere within the curriculum. I might add that, however it might appear to some faculty (faculty like me, who teach public law courses), many or most students are primarily interested in those non-polarized topics, both for intellectual reasons, because those subjects are more interesting and serious, and because they involve the kind of work they're going to do for a long time to come. 

2: I do think Rick is right that Chemerinsky's column "others" conservative law students. (Twice, actually: Once up front, and then again when it implicitly assumes that the folks focusing on "change" and "struggle" outside the Court will be progressives. As I survey state and local politics, it doesn't look that way to me.) It also flattens them, lumping them en masse into an unhelpfully broad category. Interestingly, it does the exact same thing to what he calls "progressive and even moderate" students. This is common enough, of course. But it's also terribly banal, and unfair to all the students involved. Maybe one way to improve civil discourse along the political divide is avoid thinking about it in such banal, overbroad categorical terms. 

Incidentally, and with apologies for the use of flattening terms, I teach at a law school in a conservative part of the country, and although its students come from all over and even those from right here do not tend to hold views that parallel those of the residents of their state, I'm sure many of those with even somewhat conservative views would say that those views are almost nowhere and never represented or discussed in a serious way by their own law school, let alone taught as interesting subjects. I taught a seminar on conservative legal thought a couple of years ago. It was of course open to all and I taught it, as I teach everything, not because of or about my politics (which are not especially conservative), but because I thought the subject was interesting; because I thought there were students--some of them, but not all, conservative--wanting and waiting to learn about some of this material and not getting it; and because I thought it deserved a thoughtful, critical academic treatment in which the students and I could explore these ideas together. My sense is that the non-conservative students thought the subject was worthwhile and taught fairly--and the conservative students felt "seen," as the hackneyed phrase would have it, and were grateful for the opportunity. There are certainly some clearly "conservative" law schools out there, and some clearly "progressive" ones. But I think there are also plenty of law schools where the views and composition of the faculty--and the courses offered by them--have little or nothing to do with the politics, views, concerns, or interests of the students. This is one problem with a hiring model that focuses on national credentials involving a very few institutions and that over-relies on an ideologically, educationally, and socio-economically narrow cohort: it creates circumstances, for many schools across the country, that can easily lead to a fundamental alienation between faculty and students. And it's an ironic one, given all the fashionable and earnest talk these days about being "responsive" or "listening" to students.    

3: Rick writes, "Institutions of higher education -- nonstate ones, anyway -- are entitled, in my view, to organize themselves around distinctive -- and even partisan -- missions, commitments, methodologies, and aims." I tend to agree with him about that, albeit uneasily, and have written about this. But I don't think the AALS is such an institution. I acknowledge that we've had interesting discussions and disagreements on this page in the past about whether the AALS is a learned society, like other academic learned societies, or more like a trade association, or an awkward hybrid of both. Whatever it is, it's not an "institution of higher education" in the way that a specific university is. Its functions and obligations are different. And it seems to me they sometimes include insisting on better and more interestingly diverse panels. (This year's program offerings included an enormous number of panels simply organized around "new voices" or "emerging scholars" or some other standard phrase meaning "not just the same folks again." I cannot imagine the sheer number of panels organized in this fashion was spontaneous; I assume it took place with the urging or at the direction of the AALS. I applaud the move in many respects. How many damn times must we hear from [redacted] at the AALS? My only complaint is that simply organizing a panel around "new voices," rather than coming up with a worthy topic and then seeking out and inviting new voices to discuss it, strikes me as quite lacking in imagination--as mere compliance with a dictate rather than something deeper.) When it comes to the interaction between the AALS, its sections, and its panels, it seems to me the AALS is routinely in the position of leaning both too hard and not hard enough on its constituent parts. It should do some leaning, and send some panels back to the drawing board--but with the "learned society" aspect of its identity firmly in mind.   

Posted by Paul Horwitz on January 13, 2023 at 01:21 PM in Paul Horwitz | Permalink


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