How Not to Retire

My twenty-year run in and around legal academia, preceded by my twenty-six-year run as a real lawyer, will ratchet down in a couple months. I took the three-year “phased retirement” Suffolk offers, and it runs out on June 30.  Last week, the University’s trustees approved my emeritus status, effective July 1.  As my real claim to fame was the iconic 2008 essay, Memo to Lawyers: How Not to “Retire and Teach,” followed by its 2014 post-tenure sequel, Retire and Teach: Six Years On, completing the trilogy with a reflection on “retirement,” a word and a concept I hate, seems appropriate.  PrawfsBlawg has intertwined with my academic career the entire twenty years, and Howard was gracious enough to permit me a self-indulgent post as this segment of my professional life draws to a close.  It’s really too long to be a blog post, so I will spare most readers and begin it after the break.

I’ve written that, notwithstanding Chief Justice Roberts’s dismissive quip about legal scholarship and the influence of Kant on 18^th century Bulgarian evidence law, the vast bulk of legal scholarship in fact addresses real-world problems.  We are not, by and large, doing arts or sciences for the mere sake of liberal education and an intellectually richer world.  For example, as of the morning of April 6, 2025, the last six pieces highlighted on Larry Solum’s Legal Theory (emphasis mine) Blog have to do with AI-enhanced evidence, AI-conducted arbitration, an approach to nondelegation doctrine that would improve governmental effectiveness, presidential immunity, the relationship between Congressional and Supreme Court authority, and the erosion of limitations on the ability of police to stop, search, or arrest.

Much of my work has had to do with the intersection of law and business, e.g., contracts and legal forms of organization.  I have no qualms about retiring from it, at least to the extent it involves finding solutions to problems.  For example, many of my friends and colleagues who write about corporate governance have weighed in on the recent amendments to Delaware corporate law that facilitate the ability of controlling shareholders (rather than the board of directors) to dictate corporate policy.  That is a significant issue of law and policy that leaves me completely unmoved.  I wish them well and will keep them in my RSS feed.

As I contemplate my last three months as a non-emeritus faculty member, my great joy is rather that, after a quarter century of being a real lawyer in the real world, I found a job that, for almost twenty years, let me try to make sense of things, and not necessarily in a practical way, under the cover of teaching practical skills. That is an occupation from which I decline to retire.

Perhaps I can best explain my present commitment not to retire with stories of the beginning and the end of this segment of the journey, both of which have to do with real numbers. 

As I recently told my new friends, Barry and Gretchen Mazur (as will become clear in a few paragraphs), at age eighteen, in my first year at the University of Michigan, I thought I was going to be a mathematician.  I enrolled in Math 195, the most theoretical calculus course, and I lasted about eight weeks.  The first subject was proving the existence of real numbers (something I came to understand about forty years too late); I didn’t have the lowest grade on the second midterm, but mine was the exam the professor chose to mock in front of the entire class.  I got special permission the next day from the dean of the Honors College to drop the course.  As I rooted around for a major over the next year, I considered philosophy, but the Michigan’s program was very much analytic. Having just shot an air ball with theoretical math, I had no desire to work through symbolic logic.  And I ended up as a history major. 

I discovered the non-analytic approaches to philosophy – epistemology, ontology, morality – as an adult still trying to make sense of things.  If ever a single book changed the course of someone’s life, for me it was Susan Neiman’s Evil in Modern Thought, a revisionist history of modern Western philosophy.  I know from Susan it was something she had been writing for ten years, but the evil serendipity was that Princeton University Press published it shortly after 9/11.  The Wall Street Journal published a review on September 3, 2002 with the following paragraph:

According to Ms. Neiman, human beings desperately long to make moral sense of themselves and the world: “The drive to seek reason in the world ... is as deep a drive as any we have.” It is so fundamental to who we are, in fact, that most of us go about our lives assuming that “the true and the good, and just possibly the beautiful, coincide.”

Nothing had ever resonated so deeply – that was what I thought about and cared about.  It introduced me to a way of making sense of things – and legal academia turned out to be a place I could work on making sense.  Yes, I wrote about contracts and promises and corporate governance, things that “cash out” in the practical world, but it was always with a mind to the telos, the ends and purposes that suggest meaningfulness, with the result that I was likely, as Dan Markel once told me, “orthogonal to most issues.” 

And I wrote a lot.  Articles, essays, blog posts.  Something always seemed to trigger some idea that I could turn into a beginning, a middle, and an end.  Nevertheless, over the last couple years, I haven’t felt the trigger very much.  That was a large part of the motivation to take the phase-out.  I have been a tenure hard-liner: regardless how old you are, if you are working because you have tenure, you are obliged to do all the things tenure requires, including writing and publishing.

Fast forward to last month and some renewed basis for thinking of this not as retirement from the journey itself but merely the close of one more segment.  One of the joys of living in Cambridge has been the eclectic friends you acquire, whether in the dog park, down the street, at the gym, or whatever.  Our house backs up to that of our friends, Eneida and David Haig. They are both biologists, Eneida a researcher for various biotech companies, and David an evolutionary biologist at Harvard.  Many a Saturday or Sunday afternoon, I have opened the gate between our yards, taken a seat at their kitchen table, and, as we drain a bottle or two of wine, David and I work on making sense of things as philosophers who happen to be, respectively, biologists and lawyers. 

Several weeks ago, David gave me a copy of the book, Imagining Numbers (particularly the square root of minus fifteen), by his friend, Barry Mazur, a Harvard mathematician.  Square roots are wonderful things.  When of positive numbers not themselves squares of positive integers, they are irrational real numbers – the very things I was supposed to have derived in the fall of 1972.  When they are square roots of negative numbers, they aren’t real but imaginary (and without which, for example, there would be no Schrödinger equation as the basis of quantum mechanics).  Barry’s book is about the mysteries of mind by which mathematicians over the last five hundred years or so came to conceive of those abstractions. 

I was taken by the charm and erudition of the book but, more importantly, its relevance to my lifelong attempt to make sense of things.  I looked Barry up on Harvard’s website and, with my usual unbridled chutzpah, sent him an email, offering him a cup of coffee in consideration of therapy for a long-lapsed mathematician.

If, like me, you had never heard of Barry Mazur, it turns out that sending him an email and inviting him for a cup of coffee is on a par with doing the same thing to, let’s say, Daniel Kahneman, Amartya Sen, Cass Sunstein, John Rawls, or Francis Collins, if you were dealing with a subject a little less ethereal than pure mathematics.  Nevertheless, I found myself invited over a few days later for breakfast with Barry and Gretchen (Gretchen known professionally as Grace Dane Mazur), and perhaps the most delightful two hours I have spent in a long time.

I had the good sense to google Barry before I went to his house, and watched a number of the YouTube segments about his life and work.  I recommend Barry Mazur and the Infinite Cheese of Knowledge. The infinite cheese is an image one of his yeshiva rabbis imparted to Barry:

Once, [Rabbi Moseson] was so exasperated that he just plopped into his chair and said, “Look, what we are faced with is an infinite cheese of knowledge.  And we’re all, all of us, we’re all little mice; you are, I am, and we together are nibbling on it.  We will never devour it.  But it is the effort of nibbling on the cheese that makes what we are doing meaningful and worthwhile.” (Bhāvanā, Jan. 2025). 

Almost the first thing I said to Barry after he opened the front door was, “The infinite cheese of knowledge resonates with me.  Except that I never seem to nibble very deeply because I see something on another part of the cheese that I want to nibble on as well.” Which he immediately pooh-poohed, no doubt recognizing it for the false modesty it was.

What prompted me to contact Barry was the idea of “interstitiality.”  A couple months ago, I saw a post on Larry Solum’s blog about a chapter in a new book edited by John Goldberg and Henry Smith entitled Interstitial Private Law. It got my attention, but it turns out that the main thrust of the book, interesting in its own right, is about interstitiality between the broad categories of private law, contract, tort, property, etc., and not the interstitiality that I have been thinking about for twenty years.  I have an image of interstitiality in the application of rules (including legal rules), one that I can visualize in the same way I visualize the square root of 2, or any other real but irrational number that is infinitely interstitial.  Desperate times call for desperate measures; perhaps a mathematician could tell me if this was a disease and, if so, how it might be cured. 

Without using the word “interstitial,” I have been pondered judgments that lay in the excluded middle of binary legal rules (like you have a contract right or you don’t) for over twenty years.

In 2005, I published an essay in Law, Culture and the Humanities probing what seemed to me not a problem, but a mystery, in the law’s treatment of a particular issue.  Contract law scholars focus on the vindication of rights created by contract; what rules govern the circumstance where one has a legal entitlement under contract, but the vindication of that right is a moral outrage?  For example, a company fires an executive for outrageous conduct that happens not to fall within the definition of “for cause” termination, and thus has to pay a hefty severance.  There is no legal avenue to vindication of the moral sense that the executive ought to decline the money.  At the time, I simply wanted to say something about the separation of positive law and morality in contract law.

My conclusion then (which I am reading for the first time in many years), effectively about interstitiality of rule-application, still speaks to me.  I called on the philosopher Gabriel Marcel’s distinction between problems (which can be solved) and mysteries that can only be pondered as an exercise of mind, suggesting that the answer truly involved the latter. 

Few decisions are easy; there are heuristics in the art of management and leadership, but rarely does the manual give the bright-line answer. Whether or not they are conscious of it, business leaders and managers sense the fundamental indeterminacy that is at the core of a hard case, or in the center of a paradox. ‘‘If the answers were easy, they wouldn’t need us,’’ they say. But the organization, like ourselves, simply cannot operate, or indeed survive, in the physical world of cause-and-effect, without some reduction of the totality of experience to rules. Experience tells us we need rules and laws, but reason is capable of divining abstract forms and spirit, whether or not they are tied to the real world.

*** 

Our default state is to operate on our needs, desires and inclinations and to comply. Yet we are always free to choose, to resolve problems or recognize mystery, to engage in discourse between subject and subject, and to comply with a system of compulsion, or to resist it. We face that choice every minute of every day, and the commitments of a lifetime ago, or the contracts of yesterday, are as binding upon us as we, in this current moment, choose them to be. That is the mystery of the choice not to enforce a promise the law cannot address. And it is the grease that makes the business world (if not the world as a whole) work, whether or not it is recognized in the law. Let us not forget what is human-made and what is not. Mine is no doubt a theology so abstract and universal as to say the only thing we are sure to be God-given is the mystery of that very paradox that provides the richness in hard cases that mere rules ignore.

Suffice it to say at this point that Barry has not told me to lay off the possibility that some insight might be gleaned from a similarity between the infinite interstitiality of irrational numbers, on one hand, and of rule application, on the other.  A trigger!  Maybe I can turn it into an essay. 

Regardless, I’m satisfied that one way not to retire is to keep nibbling at the cheese for the mere sake of nibbling, even if I get to shed the pretext of doing it to solve problems, and even if it is no more practical than an exegesis on Bulgarian evidence law.