Editor’s Note: This is an edited transcript of remarks prepared and delivered at Stanford University’s Center for Law and History on January 12, 2018.
Amalia Kessler: Well, it’s really such a pleasure to see you all here for what we have been affectionately calling BobFest. So let me just first say our dean, Liz Magill, asked me to express her really sincere regrets that she couldn’t be here to welcome you personally. She got unexpectedly called away on dean-related stuff, but she is hoping to make it back later tonight, ideally, to say a few words to you then.
I don’t want to take up too much time, but I do want to just say briefly how really moved I am to be able to join in celebrating someone who I feel, like I know so many of you, such enormous admiration and affection for. It really means a great deal. This is the first conference that our new Law and History Center has helped to sponsor, and it seems utterly appropriate that it should be in honor of Bob, who, of course, has meant so much to legal history and to all of us by way not only of his scholarship, of course, his brilliant scholarship, but also the extraordinary generosity, which those of you who know him know, really extraordinary generosity as a teacher and as a colleague, has helped and moved so many of us. And more than any words I could convey, just looking around at the collection of incredible scholars and teachers in this room who’ve come here for Bob really highlights that, I think, most of all.
So I myself first met Bob in 1995. I had just begun a Ph.D. in history here at Stanford and was thinking seriously about doing the law degree, and as I was thinking through all of this, I had the good fortune of meeting Bob, and to make a long story short, another joint-degree student, Malick Ghachem, and I ended up taking this incredible reading course with Bob and his dear friend Tom Heller, who also really regrets he couldn’t be here today, and we had this incredible tour through Pocock and Gierke and Kantorowicz, and it was just eye-opening and incredibly fun and just altogether wonderful. That’s when I learned that Bob has read everything there is to read. [audience laughter] That’s when I read not only that he’s read everything there is to read, but unlike the rest of us mere mortals, he actually remembers every single word of everything he’s read.
It’s when I first discovered that this tremendous erudition that we all know him to have is matched by this incredibly just childishly open-eyed wonderful curiosity, by these really broad tastes, a few allergies, but really, really broad tastes, and this just really understated gentle modesty that pervades his interactions with everyone, and we all who know him and love him love that, among all the other many features of Bob that are there to love. And last of all, of course, the sense of humor, the wit, the irony, the bon mot, what I think of as the Bob chortle. I discovered all of that back then when I was beginning as a student of law and history, and I feel so just lucky, incredibly lucky, that I’ve been able to benefit from the wisdom, the generosity, the friendship all these years. Most recently, I’ve been lucky enough as a colleague. Please let it continue for a very long time.
Okay. So other than those few words from the heart, I just want to touch on a few logistical matters. The first is, I’m not sure I’m not sure I’m going to have another appropriate opportunity to do this, so I do really want to thank all the people who worked so hard to put this together. They’re, of course, my fellow faculty co-conspirators whose vision and efforts were central to this happening, John and Sally and Ariela and Susanna and Norm, but there are a bunch of people on the ground here who I really want to be sure we thank. My dean who made this possible in the first place, thank you. Thank you for providing the funding. The programs people, Trish Gertridge and Cassey Limengco, who worked so hard to make sure you had everything you need, like food. Hopefully the food will come. I’m sure it will. Eun Sze, Joe Neto, our new Law and History Center Fellow Elizabeth Katz did really vital work. So thank you to all of you.
Last few logistical notes. So we’re in this room today until a reception right outside at 5:30. Tomorrow, please don’t come back here unless you want some solitude. We’ll be in the Manning Faculty Lounge across the breezeway. For the students here especially, but for any of you, I want to make sure you know we are raffling off copies of Bob’s book. If you have not had a chance to fill out a raffle form, when we break at 4:00 p.m., please don’t miss your chance to get a free copy of a great book, and we’ll announce the winners when we break today at 5:30.
Last of all, to conference participants, I just want to make a plea. When you’re planning your day after we close tomorrow, Bob is scheduled to complete his remarks around 4:00 p.m. We have a photographer who’s going to be there. We would really love to get group photos of everyone so we can keep this memory for posterity, so if you’re scheduling a Lyft or something to get you out, please add in a few extra minutes so you can take those photos, and courtesy of Sally’s genius, we have a silly little gift surprise for you to aid in the photomaking. [audience laughter] So with that teaser, I’ll turn it over to Norm.
Norman Spaulding: Welcome, everybody. I’m Norm Spaulding, and I’m just incredibly happy to be here to party with all of you. Every good party needs a few good songs to get the dancing started, and that’s how we’re going to begin. You’re going to see me again in a few minutes, because I’ll be moderating the first panel.
My deepest intimacy with Bob, even though we’ve been colleagues for years—and he was at Stanford at least when I was a 1L as a student—is through the writing, so I just wanted to say a brief word about that. Reading Bob’s work is, for me, something like listening to Thelonious Monk on the piano. The entire Western Canon is there at the fingertips, and yet it comes out in these brilliant, dissonant, contrapuntal, syncopated lines. Standard ideas are made to compress and expand and form entirely new conceptual boundaries, much in the same way that Monk’s strange, gorgeous, splayed-fingered chords fold out and upon each other, play on and test and break up standard harmonic relationships.
You quickly realize, as you read, that you’re in the presence of an iconoclast who adores what he deconstructs, who deconstructs lovingly, a man of the cloth who’s left the church, a Beat poet, an artist who wants you not just on the edge of your seat of settled expectations about law and history and the legal profession, but off your seat, drifting, falling, wandering, wayward, even, and yet full of wonder. The experience is electrifying, and I feel it every time I sit down to read Bob’s writing, even now, decades later, when I return to writing that is well familiar to me.
Monk was known, in the middle of a song, as another musician was riffing, to stand up from the piano, enter into the music itself in a kind of embodied way somatically, and brimming with excitement about its possibilities, dance a bit or walk around before sitting down to improvise again. People thought it was strange. And this is pretty much exactly what we all experience, isn’t it, every time we meet with Bob in his office. He’ll be—
[ed note: the recording was briefly interrupted]
Norman Spaulding: —that are clearly streaming into his mind, and then he’ll sit down and keep riffing, and you sit back and smile, take notes if you can keep up. Even reading Bob’s most rigorously structured work, one has the experience of improvisational brilliance in action. There is movement, intellectual agility and ingenuity. Angular, spacious themes unfold as new groupings of notes are formed, dismantled, and reformed, and to see that mind-bending, jazz-like improvisational spectacle in scholarly writing, of all things, is rare and it’s transformative.
If criticism as a genre has become narrow, pinched, overly specialized, hyper-technical, if it has been dulled by conflating petty ideological reversals and manifestos for the hard work of revisionism and demystification, Bob’s writing is a constant reminder of the higher aspirations and obligations of that critical tradition. In the now quite fertile field of labor cultivated between the disciplines of law and history, Bob has brought all of us a deeper awareness of what Michel de Certeau calls “the arts of doing,” all the bits of a human project that are normally taken for granted operating below the fold of consciousness that not only constitute the project but the persons who are engaged in it.
So we’re fortunate, indeed, to have this book and this wonderful occasion to party together. Bob is our Monk; he’s our Merce Cunningham, the choreographer who made people question everything about dance; our Michel de Certeau. So I want to welcome you, all of you, especially those of you who’ve come from colder climes on this rather mediocre January day in Northern California. And I speak from experience. I was born here; I know what it’s like. It’s an okay January day. [audience laughter] I want to second and echo Amalia’s thanks to our dean, Liz Magill, and to the Center for Law and History for supporting this event. Warm thanks are due to the conveners and to Dennis Martin and the board and members of the Stanford Law Review, who agreed to publish some of the essays you’re going to see presented over the next twenty-four hours. I believe John [Witt] and Sally [Gordon] have a few things to say before we get things going.
Sarah Gordon: John and I have been offered a chance to give a little bit of an introductory morsel for what awaits, and we want to say that you, all of you, bring to the table an extraordinary set of scholarly virtues. You bring collegiality, conviviality, critical insight, mentorship, and, of course, friendship at the deepest and most welcome level, and we know that what unfolds will be in honor of the man whose essays have been collected, the Gordonian oeuvre, as it were. [audience laughter] And we look forward to hearing from you, to learning from you, and to see what you have all brought to us in honor of Bob.
John Witt: I second everything that Sally said. To me, one of the amazing things about being in this room the next couple of days is you all are the world that Bob introduced me to. This is the world that Bob brought me into, and it’s been a thrilling world for me for about twenty years now, and so to have this group assembled is really a special thing. So thank you all for coming.
It’s fallen to me to announce some conference ground rules. So you may have noticed in Bob’s essay on Holmes as a historian, Holmes the historian, Common Law, in particular, Bob is, in that essay, writing about Holmes, as he puts it, Bob describes himself as a parasite on Holmes, with Holmes as his host, even as Bob takes down the host on which he is a parasite. So I put to you the analogy is, we are here as parasites to Bob’s host. [audience laughter] And what follows, what follows immediately this passage in Bob’s essay, is a quotation from Emerson on Holmes on a [unclear] Holmes wrote on Plato, and what Emerson said to Holmes was, “If you strike at the king, you must kill him.” Now, we’re going to have a day and a half, I think, of observations about our king here, and I don’t think we’ll try to kill him, but there could be some glancing blows. We’ll have to see. But I think really the project is, as Bob said, he would really admire Holmes, even as he struck some blows. I think there will be a lot of admiration along with those glancing, hopefully not mortal blows.
Two more thank-yous from me. Sussi Blumenthal also played a really large role in organizing this whole thing. I want to thank her. And Ariela Gross, the brilliant Ariela Gross, really drove the whole thing. I want to make sure that’s understood. [audience applause]
Sarah Gordon: Here we go.
John Witt: Without further ado, thank you.
Norman Spaulding: So Laura [Kalman]’s listed as the chair of the panel. I’m actually going to chair it. She’s been dealing with fire and mudslides and other signs from the Book of Revelations down in Southern California, so I’m going to try to lead us forward into the presentations and the discussion.
Over the last forty years or so, the most important development in the history and sociology of the professions, and perhaps especially the study of the legal profession, is the turn away from what might be called apologetics, the turn away from functionalist sociology’s claims about the supposedly necessary intersection of social prestige, deference, and authority enjoyed by lawyers and other professionals, and away from the alluring self-congratulatory Whiggish histories offered from bench and bar about the role of lawyers and the role that they’ve played in American society. In its place, a profoundly illuminating confrontation with questions about the bar’s purpose, its power, its pathologies, and its history has taken place.
Bob’s writing on the history of the legal profession, his brilliant study of elite New York lawyers in the Gilded Age, his path-breaking work on the civic republican ideals of Whig Federalist lawyers, the antebellum period, and, more recently, his comparative work on how and in precisely what respects lawyers uphold or undermine the rule of law helped instigate this turn away from apologetics. And, as importantly, it has given the movement a far broader intellectual foundation than it would otherwise have enjoyed, elevating critique beyond the simplistic rhetoric of moral condemnation, stitching sophisticated ideas about legal and political theory into the study of the practice of law as a practice, and reminding lawyers that public citizenship must be a condition, and not a casualty, of the exercise of professional power.
Mark Twain once said that he thoroughly disapproved of duels. “If a man challenged me, I would take him kindly and forgivingly to a quiet place and kill him there.” [audience laughter] Bob’s writing on the legal profession is precisely that kind of kind and forgiving seductive invitation to a quiet place for the bar’s apologists. Now, having lavished all of this praise, I’m mindful that Mark Twain also wrote that, “Classics are works which people praise and don’t read.” By that standard, I feel I should insist that Bob’s writings on the legal profession are most certainly not classics; they’re far too widely cited, read, and relied upon. For my own part, I’ll just say that there’s no question I’ve posed as a scholar about the legal profession that hasn’t put me in direct and quite often extended dialogue with Bob’s work.
We’ve got an all-star cast of contributors to this roundtable, each of whom is going to speak to the influence of Bob’s work in different ways. I’m going to introduce them as quickly as possible, leaving out almost all of their achievements, because that would take the balance of the time that we have, and that will let us begin. The format’s going to be brief presentations from each, and then I’ll try to get some discussion going, but my expectation is that we are familiar to each other, and so we can all have a collective discussion together.
Before each begins their comments, I would just ask them to complete the following two sentences, “I first met Bob Gordon in—,” and, “I last saw Bob—.” [audience laughter] Kenneth Mack is the inaugural Lawrence Biele Professor of Law and affiliate professor of history at Harvard University. He’s also the co-faculty leader of the Harvard Law School Program on Law and History.
Laura Kalman is professor of history at the University of California, Santa Barbara. She’s written numerous books on the twentieth-century American legal history and political movements.
Jed Shugerman is professor of law at Fordham Law School. He writes about judicial independence and the evolution of judicial elections as well as the history of American prosecutors and the design of the federal executive.
Bill Simon is a former colleague and Arthur Levitt Professor of Law at Columbia Law School. He’s written broadly in areas of professional responsibility, administrative and constitutional law, and regulation.
And Serena Mayeri is professor of law and history at Penn. Her scholarship focuses on the historical impact of progressive and conservative social movements and on legal and constitutional change.
So, Laura, could you get us started?
Laura Kalman: I think I first met Bob when he spoke at Northwestern Law School around 1986, and he gave a dazzling talk, and there were tons of questions, and every so often, Bob would pause and he’d tie his shoes, and at some point, where we were sitting, we realized that he was wearing loafers. I was totally intrigued. [audience laughter]
Norman Spaulding: That’s great. You don’t have to answer the second question. [audience laughter]
Laura Kalman[1]: With characteristic wit and wisdom, Bob once addressed the relationship between law schools and the profession. However little professors like it, “people are willing to pay them” because they recruit, teach, certify, and later raise money from people largely headed for “private practice in a fairly conservative profession.”[2] Law schools’ mission acts “like a gigantic rubber band, which… [perpetually]… drag[s] the more adventurous experiments with legal education and the role of the law teacher back into the narrow confines of a set of basic routines—the private law-centered, doctrine-centered, court-centered, case-centered curriculum, which accepts existing legal arrangements as given, and subject to only minor modifications.”[3] The law professor imprisoned in a rubber-band—that’s a sad image. I teach in a history department and though I’m not as well-paid as a law professor and the job comes with fewer perks, I see myself as an archer. To borrow from Longfellow, I shoot an arrow into the air and its falls to earth I know not where.[4] But there are infinite possibilities!
And reading the Gordon corpus on legal education is sometimes depressing. Everything started to sour, Bob trenchantly observes, in 1870 when Christopher Columbus Langdell and his cronies with “single-minded reductionism” turned their backs on the republican tradition of teaching law as statecraft and on the tradition of treating law as part of the social sciences.[5] In “an act of self-mutilation,”[6] the Langdellians forced legal education into “a monastic cell”[7] of “‘technical’ appellate doctrine”[8] even though elite lawyers were shifting their gaze “from the courtroom to the boardroom, from appellate argument to corporate reorganization practice, and from litigation to counselling and dealmaking.”[9] While the case method “encouraged active rather than passive learning,”[10] its adoption also meant that law professors avoided “teaching all and writing about all the great issues of the time,”[11] like the failure of Reconstruction, the war between labor and capital, the growth of the administrative state.[12]
Bob credits the legal realists with trying to change things. Sure, their efforts to import other social sciences into law ultimately became “a sort of temporary guest-worker program: Some social scientists were invited in, asked to perform modest ancillary tasks, then sent back home.”[13] The realists nevertheless “made it acceptable for law teachers to be searching—and, perhaps even more subversively, amusing—critics of established legal doctrines and policies; and to speak to and collaborate with wider audiences in the rest of the university and public world.”[14] Their risk-taking “helped later generations live in the legal academy as something it had never been before, a safe haven for critics and reformers, visionaries and rebels.”[15]
Alas, the realists’ message did not penetrate Harvard. When Bob was a student there in the late sixties, the view “was that the ordinary skills of the first-year classroom—practice in crackerjack case-law analysis—would suffice to produce the generalist lawyer-craftsman who, if ‘smart’ enough as certified by law school grades, could go on to master any policy area, manage any institution, or for that matter, return to the law school and teach any subject.”[16] And Bob’s professors were not just arrogant but “antipolitical,” to boot.[17] “The great Socratic teachers of the post-realist generation never told you what they thought…. [E]nlightenment was for the pupil to discover”—laboriously.[18] Indeed “the throbbing center of the mystery” at Harvard in the sixties, “the holy of holies, the relative mastery of which would fix forever the aspirant’s exact position in the priestcraft of lawyers, was the series of cases elaborating…the Erie doctrine.”[19] Only the Hart & Sacks Legal Process course imparted a general perspective, and it “so took for granted a basic consensus on substantive social goals served by the legal system”[20] that, like everything else, it fostered “a deep, unruffled complacency.”[21]
It all sounded so dreary that I began wondering why Bob became a law professor. But help was on the way in the form of the collapse of the liberal consensus in the legal academy as it was attacked by the right and the left. According to Bob, Law and Economics suffered from “well-known weaknesses,”[22] which he helpfully listed—“its absurd psychology and historical and philosophical illiteracy, its insular insistence on a primitive positivism as the only valid form of social knowledge, its pose of brutal realism about self-interest that masks a curious naiveté about power and conflict.”[23] But law and economics still “served as a sort of Marshall Plan for legal-doctrinal scholarship,”[24] Bob maintains, and “rebuilt a devastated country into terrain worth contesting.”[25] And then there was CLS [Critical Legal Studies], which grew out of 1960s intellectuals’ dissatisfaction with their law training, and whose ideas, Bob said, he “spent a ridiculous amount of time trying to explain”[26] and defend to idiots like Harry Edwards,[27] Bill Nelson, [28] Kenneth Lasson,[29] Jeffrey Kahlenberg,[30] Neil Duxbury,[31] and Paul Carrington[32] who caricatured critical legal scholars as leftwing nihilists out to take over the legal academy by trashing it. Bob was too polite to call them idiots, of course. Instead, usually after telling CLS critics how much he admired their other work, he depicted their portrayal of CLS as a brain fart. “Here as so often in your essay one must pause to wonder whether you can possibly have read any of the work you are attacking,” he rebukes one.[33] “You have too much class to be consorting with the rednecks of our profession,” he reproaches Carrington.[34]
As if the redbaiting that reminded Bob of the 1950s, “without even the consolations of early rock-and roll,”[35] wasn’t bad enough, there were the students. For reasons Bob has “never understood, students who were entirely capable of sustained abstract thought in college lose most of that capacity in law school. The minute that a teacher launches a discussion of theory, policy, ethics, or social context that is not immediately and closely tied to resolving case a situation, most of the students tune and put down their pens,”[36] Bob wrote before laptops invaded the classroom. “An intellectual interest in law is… another of the many casualties of the grading-and-sorting system…: after the first term, many people who end up below the top of the class lose interest in intellectualizing their perspective on the material.”[37] They leave that to the nerds and wannabe law professors who have done well. Like Elihu Root and other practitioners, most students dismiss teachers as “half baked and conceited theorists.”[38]
The law firms don’t make the professor’s life easy, either. They ruin the law schools by requiring them to “sort and rank.” [39] Further, much corporate practice has become “so specialized that it can only sharpen the mind, as Edmund Burke said of law, by narrowing it.” [40] The restructuring of corporate law practice also leaves firms “cruising on the reputations they earned from partners who became famous for serving as secretary of state… or vocal defender of the rights of the despised or helpless.” If an attorney today “took the time to do the kinds of things that the older lawyers did to get to get their portraits impressively displayed on the walls of their firm’s reception area, she would be fired,” Bob observes.[41] “Law firms are like those once bohemian neighborhoods in which the artists who created their appeal can no longer afford to live.”[42]
Yet unlike the law firms and students, most professors nevertheless continue producing “affectingly, even heartbreakingly, heartbreakingly idealistic” work, Bob contends.[43] They seem “to be writing for a society of practitioners with the renaissance erudition of Oliver Wendell Holmes; the eagerness to learn from other disciplines of Jerome Frank, Richard Posner or Ruth Ginsburg; the historical depth of Leon Higginbotham; the public interest practice ideals of Louis Brandeis or Charles Evans Hughes; the doctrinal inventiveness of Benjamin Cardozo, Roger Traynor, or Shirley Abrahamson; the patrician reformism of Henry Stimson or Francis Biddle; the intimate involvement in policy formation of Lloyd Garrison or David Lilienthal; and the passion for social justice of Thurgood Marshall or Marian Wright Edelman.”[44] They are the last romantics.
What is to be done? Bob dreams of organizing “legal education around a collaborative clinical model of learning rather than a hierarchical sorting-and ranking-model,” though that’s probably too pricey and the law firms would rebel.[45] So his sensible answer is to push “for a revival of the view that even private lawyers working for private clients ought to behave as members of a public profession pursuing public values and purposes.”[46]
He also finds hope in interdisciplinarity. Instead of producing “schlock economics, schlock history, schlock philosophy, schlock poststructuralist theory,”[47] law schools now hire JD-PhDs who do the real thing. In 1988, just 5% of tenure-track faculty in the nation’s law schools possessed PhDs.[48] The movement towards hiring JD-PhDs is now in full swing at elite and non-elite schools. More than two-thirds of entry-level hires at the top 26 law schools were JD-PhDs in 2015,[49] few with much experience in practicing law.[50]
Is this a salutary development? Try as I might to feel otherwise, the vision of kids in lower quartiles being taught by JD-PhDs because of the collapse of the law school market fills me with despair. The Harvard ones are often among the brightest and most privileged and may turn out so well, Jerome Frank said, despite their teachers.[51] Maybe the kids farther down who plan to hang out a shingle could use teachers with more practical experience, and maybe the kids at the top twenty-six could too. Do all those advanced degrees create a fragmentation within today’s law professors as they strain to master two disciplines, each with its own professional code? Do they isolate law professors in one discipline from their colleagues in another and balkanize law teaching? Do those advanced degrees dim law professors’ abilities to think like lawyers? Those Harvard professors of Bob’s who assumed that students could master the law firm, judiciary, or any policy arena in the universe as long as they had received good first-year grades did indeed possess staggering chutzpah, but chutzpah can empower. Bob surely needed it as he struggled heroically to stretch that rubber band against all odds. The rubber band must stretch beyond what the profession at any given time assumes it needs from the academy to incorporate the best that lawyers have been and could be again. How much further can it be stretched before it breaks?[52]
Norman Spaulding: Bill Simon.
William Simon: You know, I thought Jed was going to describe the republican ideal, which I was going to build on that.
Norman Spaulding: Fabulous.
Bill Simon: I can describe it, but I’d rather—
Norman Spaulding: Jed. [audience laughter]
Jed Shugerman: Got to be prepared for anything, right? Great. Actually, I’m going to do that, but also I have a handout instead of PowerPoint. I hate PowerPoint. And I’ll start talking about the civic republicanism ideal.
Both Bill and I are going to talk about the Boston University lecture “Independence of Lawyers.”[53] “The Independence of Lawyers” frames—and this is throughout Bob’s writing on the legal profession—the civic republicanism ideal of lawyers as America’s aristocracy. Bob builds on from Montesquieu and De Tocqueville and Alexander Hamilton, and then a speech from Brandeis. Rather than try to paraphrase, I think this passage from Brandeis in The Opportunity in the Law, which Bob uses as his introduction, is the framing of this professional ideal, an aspiration which I think Bob carefully understands is more of an aspiration than necessarily reality of the nineteenth century, but that aspiration animated a twentieth-century goal of the legal profession.
This is Brandeis: “It is true that at the present time, the lawyer does not hold as high a position with the people as he held seventy-five or, indeed, fifty years ago, but the reason is not lack of opportunity. It is this: instead of holding a position of independence between the wealthy and the people, prepared to curb the excesses of either, lawyers have, to a large extent, allowed themselves to become adjuncts of great corporations and have neglected the obligations to use their powers for the protection of the people.”
The bottom line is that Bob holds up this quote from Brandeis as also holding up an aspiration for the professional ideal, that they serve as Montesquieu—not a real aristocracy, but De Tocqueville’s legal professional aristocracy between the wealthy and the people to curb the excesses of both.
And so that’s an introduction— but I’ve skipped your invitation, Norm. Can I go back to your invitation to talk about Bob too? I’ll get back to the professional aspiration, but I just want to talk about Bob for a second. I met Bob as a law student at Yale Law School. As 1Ls, we were able to take an elective, and I took his American Legal History class. I was working on a project on floods and the rise of strict liability and tort law, and I came to him with a discovery. I said, “Well, there’s this pattern that I’m seeing with floods in Pennsylvania and strict liability.” And then as a “human Google,” Bob started reciting other floods in American history I might look at, and it turns out that a lot of them lined up with what I was looking for. So, before Google really served this role, Bob, you were there for me.
And then a year later, I was in an intensive readings course with Serena, Rebecca Rix, and Nick Parrillo, and we were reading so many books, in fact, books by so many people in this room. That was my introduction to the people in this room, a wonderful introduction, and as I was doing this reading, I was taking notes in a notebook of words I didn’t know, and dictionaries, it turns out, don’t always help with Critical Legal Studies, with what those words mean. At Yale Law School, you’re always a little bit worried to share that there are words you don’t know, but I came to Bob one day and I said, “Look, here’s a list.” I actually remember that list included the word “constitutive.” The dictionary did not help with understanding what that word meant in a Critical Legal Studies context. And the word “imbrication.” Bob seemed as approachable as anyone at Yale Law School, student or faculty, and he heard me ask these questions, and there was a classic Bob Gordon twinkle in his eye, and he explained it and was delighted to explain those words. I feel like that was a model for me of what professors should be for their students, open to having these conversations. Bob reflected a command of historical detail and the big picture with pure delight and joy.
The last time I saw Bob was in Vegas, talking about the legal profession embodied in Bob Mueller. Talk about saving the Republic.
There’s a lot we could talk about with The Independence of Lawyers, but I want to pick on this republican tradition. I use this as an invitation to talk about how Bob shaped my work on the history of judicial and legal independence. I’m not going to talk about my book on judicial elections and judicial independence, though those issues, I think, are very important today, but I want to talk about lawyers, the most powerful lawyers in America, in the context of what Bob talks about, this ideal that the lawyers should hold a position of independence between the wealthy and the people, prepared to curb the excesses of either.
Unfortunately, I think the most powerful lawyers in America, the prosecutors, have lost their position of independence from the wealthy and the people. They’ve lost independence from the wealthy because prosecutors raise money for their elections both to be reelected but also to move up in the world, to run for higher office. They take money from the individuals and corporations they’re investigating. Attorney General Pam Bondi in Florida is a key example of someone who raises money from the people she’s investigating and then drops the charges against them. And they also are too responsive to public opinion of catering to special-interest donors but also catering to public opinion in terms of populist tough-on-crime public opinion.
Bob Gordon focuses mostly on the private bar, its professionalism and ideals, and focusing on corporate lawyers, but he also, I discovered as I was doing this research on prosecutors, in his essay in The Cambridge History of American Law on the American legal profession, he produced two of the most helpful pages I found on state prosecutors on this question, in classic Bob Gordon style.[54] They’re concise, insightful, punchy, and they also have footnotes to obscure historical sources that then become the foundations of my own research, things that I would never have found on my own.
One topic here on prosecutors is the Department of Justice, and drawing on Bob Gordon’s work, and also with the very generous and very insightful help of Norm Spaulding here, I looked at the founding of the Department of Justice.[55] The consensus had been historically that the Department of Justice was founded as an extension of the Reconstruction era, that it coincided in terms of chronology exactly with the ratification of the Fourteenth and Fifteenth Amendment and the passage of the Enforcement or KKK Acts. And the consensus had been that the DOJ was supposed to back up Reconstruction by sending lawyers into the South to enforce the Fourteenth Amendment, Fifteenth Amendment, and other civil rights.
But it turns out that it was closer to what Bob Gordon has studied. It was not that strand of Radical Republicanism, it was more of the strand of Liberal Republicans. They were called Liberal Republicans at the time, but they were really the more true forerunners of today’s Republican Party of budget cutting, retrenchment, and reducing the federal government’s enforcement of civil rights. It lines up, in terms of the 1870s, with the founding of the Bar Association of the City of New York exactly in 1870, contemporaneous with the DOJ, and also a few years later with the founding of the ABA. The founding of the DOJ reflects, I think, in some ways the downside or the dark side of professionalization, professionalization as trying to “depoliticize” at a time where the politics of civil rights enforcement were necessary. The enforcement of civil rights depended upon active political engagement, but the DOJ’s creation meant retreat and retrenchment instead.
Today, I think we have a crisis in the Department of Justice about its political or partisan control and the independence. This problem is not just now. This problem has been throughout the twentieth century, whether it was John Kennedy having Robert Kennedy, his brother as Attorney General. That was a problem, right? That was a lack of independence of the AG Office and the DOJ from the President—through Nixon, Reagan, Clinton, Bush, and Trump. I think it’s time now to draw on Bob Gordon’s work about these professionalism ideals of independence and talk about the DOJ in the aftermath, to talk about turning the DOJ into a formally independent agency.
The second topic is about state prosecutors. I started this work first drawn by the scandals about the failure to indict police officers who were killing black men and other people and why prosecutors were undermining these indictments as opposed to enforcing them. And a second crisis is mass incarceration. What are the explanations for mass incarceration? I think a lot of the explanations that we have for mass incarceration don’t hold. My colleague John Pfaff in his book Locked In has done some amazing work that shows that, in fact, it’s not really driven by the war on drugs, it’s not really driven by private prisons or mandatory minimums or three strikes and you’re out or an increasing number of arrests. What John Pfaff finds is that in one generation, the rate of arrests turning into prosecutions has doubled. Out of every three arrests a generation ago, only one of those arrests would turn into a prosecution, whereas today, for every three arrests, two are turned into prosecutions, and more than any other factor, that seems to drive mass incarceration.
How do we understand what’s driving that massive change in a generation? Well, I think there’s a longer-term story that I tell in this new project with this handout.[56] I started looking at the backgrounds of major politicians and how many of them started as prosecutors. This is a graph that was produced from my research by the Prison Policy Initiative.[57] The coded blocks here in orange show just how many states have in the last decade prosecutor politicians, people who made their careers by the stepping stone of being a prosecutor, and essentially the observation I change over this database that I produced with some research assistants is that over about 150 years, we have a change where politicians do not have a background as being a prosecutor. Being a prosecutor was a low-level, non-prestigious job that was a dead end without power. That was in the nineteenth century.
Then over the study, you see an increasing number of prosecutors who become major politicians, but that background starts to change in the Progressive Era, the 1910s, as reflected Bob Gordon’s essay.[58] What he finds—and citing sources—is that this change was significant but limited: Prosecutors serving one term or two terms and then running for higher office. They don’t make a career as being a prosecutor. It’s just a stepping stone to get in the door as an entry-level position, but after two or four years, they’re moving into another partisan position. They don’t make their name as a career prosecutor. What I’m finding is that another transformation happens in the 1930s and the 1940s with long-term prosecutors then jumping to the highest offices. No party nominates a career prosecutor for president until Thomas Dewey in 1944, and then Dewey and Earl Warren in 1948.
What I’m drawing from Bob Gordon’s research here is to build on his observation that there was a change in the early twentieth century, but the critical turning point I want to emphasize is that prosecutors then understood that their job as prosecutor wasn’t just an entry-level position, it was a way to make their name. And what was the best way to lose your job as prosecutor? If someone was arrested and you failed to prosecute them and they then went on to commit a heinous crime, you’d be out of office. But what’s your best way of moving up to become senator or attorney general of a state or potentially a presidential candidate? Make your name as a tough-on-crime prosecutor and turn more arrests into prosecutions. That drives mass incarceration.
I’m happy to talk more about that project and about Earl Warren’s role from Japanese internment in Korematsu to civil rights justice, but I think so much of this emphasis on the norms and importance of independence draws directly from Bob Gordon’s work, so I thank him for that. [audience applause]
Norman Spaulding: Thank you.
William Simon: I know I first met Bob in the late seventies before I was in teaching, and I think it had to do with the fact that we both had teachers in common and a common interest in Critical Legal Studies at the time. I’ll have to see if he remembers any more details than I do.
Bob argued for two points about the citizen lawyer ideal, and they made a poignant combination. The first point was that the republican idea was a surprisingly attractive one. The second point was that it was dying fast. Now, the first point was not an obvious position for a Left legal academic to take in the 1980s. The Left academics that Bob associated himself with, Critical Legal Studies people, were heavily preoccupied with unmasking and debunking appeals to transcendent values, and many Left practitioners were entirely comfortable with the antinomian legalism that Bob was attacking. Nevertheless, I think he was right to identify progressive potential in the republican tradition.
The debunkers were mainly focused on judging and judge-created legal doctrine. Judicial authority rested heavily on pretentions to political neutrality. The attack on neutrality made the status quo seem less inevitable and to enlarge the range of possibility, but in the sphere of lawyering, where Bob explored the republican ideal, things were different. In professional responsibility discourse, the debunking of public values often functioned to legitimate the status quo. If public values were masks for private interests or arbitrary discursive moves, they could not provide legitimate constraints on private autonomy. The libertarian disposition of conventional professional responsibility discourse was happy to adopt the unmasking approach in order to attack a lawyer’s assertion of public values as nothing more than the imposition of her personal values on the client. In this context, conferring grounding and substance on public values could have a progressive effect.
Of course, Bob’s second point was that this grounding was fast eroding, especially in the context of business law, with which he was particularly concerned. And, much as he hoped to arrest the trend, his pessimism seems to have been vindicated. Bob emphasized the increasing competitiveness of the legal market, the thinning of relations between corporate clients and their outside counsel, and the development among the clients of a more adversarial attitude toward the state.
In addition, I’d add two further points. The first is the circling of the wagons around confidentiality as both a defining normative commitment of the bar and a key marketing strategy. Lawyers find themselves increasingly competing not only against each other, but against other professions for many tasks. Lawyers’ ability to offer on paper, largely on paper, more confidentiality than other professions give them a significant competitive advantage. Even though the practical scope of confidentiality is not all that great in the corporate context, lawyers have chosen to make it a central marketing focus. Some important developments here include the bar’s attack on the Department of Justice policy of asking for a privilege waiver as a condition of deferred prosecution, the embrace and attempt to enlarge Upjohn, and the confidentiality-based opposition to “noisy withdrawal”. Strong confidentiality doesn’t sit well with the gatekeeping theme in the republican ideal.
The second development is the increasing fragmentation of the bar and of ethical regulation. The key regulation of many lawyers is now specific to fields of substantive law like tax or bankruptcy. Functionally professional work is increasingly performed by teams with diverse professional backgrounds organized around types of problems rather than disciplinary fields. If professional identities form more around problems than academic disciplines, the traditional bar will become increasingly irrelevant as a source of support for public values.
So, Bob recently expressed his familiar cautious optimism about the prospects for ambitious professionalism in the role of in-house counsel. Plausible, but the question remains whether these ethical identities will be framed in ways that emphasize lawyering as opposed to the particular kinds of business in which these lawyers practice. [audience applause]
Kenneth Mack: I believe that I first met Bob in 1998 when he agreed to chair and comment on a panel of graduate students at the ASLH conference. I was on that panel. From that time until today, I have learned a great deal from him. I appreciate his support, his engagement, and also his ability to criticize and improve my work.
As we all know, Bob has shown so many scholars how to write about lawyers and their history. I’m going to explain, briefly, how he changed the way I write about lawyers, as well as how I write about a great many other things. Let me start in the year 2006. I had just received tenure, and I had to figure out what I was going to do with the rest of my life. I had written a number of long articles about black lawyers, and I had a book contract. I had written about a number of topics: racial uplift, black lawyers and legal realism, leftist politics in the 1930s, and others, but I was reconsidering all of it. I had come to the conclusion that I wasn’t really sure that these topics were still important.
So I decided to take some time to think and read before writing my book. Life had been a whirlwind. You know, you’re trying to get tenure, you’re trying to do one thing after another, and finally you get tenure. So I decided to pause and think for a while. Actually, I thought for about a year. I don’t know if I’d really recommend it to everyone, but it was a year. [audience laughter] I was thinking about what I was going to do with my book. Being a professor, this was actually thinking about what I was going to do with my life. I thought about lawyers, because that’s what my book was going to be about. Actually, I didn’t just think. What I really did was to read–everything. I read the work of one scholar after another who had written about lawyers. I wanted to know everyone’s position on what lawyers do, individually and collectively. What was Morton Horwitz’s position? What was Jerold Auerbach’s position? What was Richard Abel’s position? What was Gerald López’s position? Farther afield, what was Holmes’ position? What was De Tocqueville’s position? What was W.E.B. Du Bois’ position?
Somehow, I always found myself coming back to Bob and Bob’s work, as I was thinking about how I wanted to write about lawyers and what I wanted to do with my life. Why Bob’s work? The work resonated with me partly because Bob had focused on the contradictions, the indeterminacy, and the deepest of the deep-seated tensions in the identities of lawyers. He focused on the concept that we call lawyers’ professionalism. He had done this mainly through the lives of corporate lawyers in the late nineteenth century. For Bob, on questions of professionalism, there were no right answers. There was no one answer to what lawyers were doing or should do, in any era. Instead, there were tensions and contradictions.
What I really drew from Bob’s work was this: I was going to write a book about African American civil rights lawyers, but there were a number of wrong answers that I wanted to take off the table. Prominent among them is this idea the supposed opposition between professionalism and lawyers as hired guns. It’s a very beguiling opposition. It’s an easy opposition. Scholars deploy it all over the world, all over the place. We project it onto the past. We incorporate it into the present and our imagined futures. But I didn’t really think that was a helpful way of thinking about lawyers.
Another prominent and easy-to-deploy idea is client-centeredness. There are so many scholars who have written about lawyers and have concluded that the real problem was and is that lawyers don’t listen to clients, communities and social movements, and that the real democratic potential, or the real agency, or the real whatever lies in simply listening to the voices of clients. There remains a great deal of literature about lawyers versus clients and the gaps between them (Bob has been harshly critical of “gap” literature). There is so much literature about lawyers as representatives of class interests, of group interests. What I took from Bob’s work was that none of these were going to be productive ways for me to write about black civil rights lawyers. I was interested in what Bob was interested in–the necessary contradictions, the conflicting intentions, and the basic indeterminacy that is at the core of lawyers’ professionalism in all of its contexts. So, one by one, Bob had taken all these easy answers to this question of what my book was going to be about, and had removed them from the table.
In the end, I decided that I was going to write about representation. It was this word that black civil rights lawyers kept using, over and over again. They would say that a particular lawyer was a “representative of the colored race,” or a “representative colored man” or “representative colored woman.” They said it about themselves, and about other people, all the time. I took the idea partly from Bob’s work and partly from a number of other places–from the writings of Janet Halley, Dirk Hartog, Malcolm X and a number of other people. I began asking questions. Lawyers represent clients, of course, and something we call lawyers’ professionalism is part of this process of representation. But representation, fundamentally, is a problem. There are never easy answers to the question of what representation means. When we think we have an easy or a clear answer, an obvious answer, we are most likely wrong.
The second thing that I kept coming back to during my year of thinking and reading was the embeddedness of lawyers’ professionalism. Here again, I partly derived this from Bob’s work. There are many classic arguments about what lawyers do, what they should do, and what they should be, but many of them are barely more than assertions. But one couldn’t just assert it to get traction on this issue. One had to get into the details of the institutions. Just like Bob had dug deeply into the question of what it really meant to be an elite corporate lawyer in the late nineteenth century, I had to figure out what it really meant to be a black lawyer in a courtroom in early twentieth-century Chicago, or perhaps Philadelphia, or perhaps Virginia. I concluded that lawyers’ professionalism, like Polanyi’s capitalism, was embedded. It was embedded in social contexts, in legal and non-legal institutions. I concluded that before one could make assertions about professionalism, one had to really get into the details of that embeddedness. I came to conclude that I really hadn’t gotten embedded enough in the work that I had done pre-tenure, and that I needed to take some time to correct that oversight.
So I had to figure out what about their contexts made these lawyers special. I noticed a number of things. I noticed that the black and white lawyers in the contexts I was studying seemed to know each other, even in the larger cities. Scholars often write about minority lawyers as though they are some separate thing, as though to write about them is to write about some alternative vision to that of the mainstream legal profession. But, I concluded that these black civil rights lawyers did not represent some alternative vision. They partly inhabited the same professional contexts as their white counterparts. In the archives, you would see one lawyer litigating a case against another lawyer. Then you see them do it again two years later. Then you’d see them do it again and once again. They would write letters to each other across the color line as members of the same profession. This is how professionalism worked even for those lawyers who were very marginal within the profession. I also noticed that courtrooms were not alternative professional spaces for these minority lawyers. When black lawyers went into court, seemingly unexpected stuff happened. Much of it was really unexpected. Thurgood Marshall, for instance, could go into court and do things that he couldn’t do just outside the courthouse door. When I looked closely at context, it seemed that black and white lawyers often inhabited professional worlds that crossed the color line.
When I turned my attention to context, I also noticed the problem of clients. But there were no easy answers here either. How does one represent client voices when writing about lawyers? The standard answer is to simply quote clients as some alternate, supposedly more real, vision of social reality, and as an alternative to the presumably less authentic lawyers. That was a common enough answer that actually turned out to be wrong when one looked at professionalism as an embedded process, and I wrote a whole chapter called “Things Fall Apart” that grappled with it. Some scholars try to imagine client voices as part of some utopian alternative politics that they wish black people had pursued, but Bob’s work taught me to think deeply and thickly about the actual worlds in which African American lawyers were embedded. The answer I came up with is that client voice was expressed in action – the action to choose a white lawyer over a black one, which was always available. The problem of client exit was the principal structural problem that black lawyers faced, I concluded, and client voices, and choices, were there in just about every document that these lawyers produced – at least if one was discerning enough to see this structural problem and to see client voices as its core.
I also took many things from “Critical Legal Histories” for my own work. You can read it just as an article about the legal profession. For instance, Bob effectively says: here’s one way to look at the profession – evolutionary functionalism. Here’s another another way to look at the problem, and another one, and another one. There are many different standard moves, he showed us, in thinking about the legal profession. But he also showed that all of them are insufficient in some way, shape, or form, as grand theories of what lawyers are about. That’s one conclusion I came to during my year of reading and thinking.
In the end, I concluded that lawyers’ representation, in all the multiple senses of that concept, was a problem. It was a productive problem. Lawyers like Thurgood Marshall and Charles Houston were able to manipulate ideas of representation to get things for their clients, communities and causes. It was a problem they grappled with but never really quite solved. It presented them with controversies that sometimes overwhelmed them, that sometimes they simply ignored or set aside as insoluble, but that was part of life as a black lawyer as well.
The last thing I’ll say about lawyers’ professionalism, inspired by Bob’s work, has to do with what I’ve been doing with my life these last five days. I’ve been teaching a class at Stanford Law School, just one floor above where we are sitting now. I have been teaching a class about about Obama, law and politics, and where are we now. And as you might expect, it can be a very pessimistic class, given the present state of politics in the US, and in many other places in the world. For last five minutes of each class, I always say: “We’re going to end on an optimistic note.” Many of those optimistic notes have to do with lawyers’ professionalism.
One of the reasons–reasons that are too complex to explain briefly–that Obama had trouble accomplishing certain things was that he had to run his policies through the bureaucracy, and the bureaucracy in the federal government is populated everywhere by lawyers. It was a frustrating thing in Obama-world. But it’s also true that it remains a frustrating thing in the post-Obama world as well. Many deeply troubling things that are being pushed by the present administration also have to run through a bureaucracy that is populated everywhere by lawyers. Lawyers’ professionalism has always been and remains a very complicated thing. It may or may not have produced John Yoo’s torture memos, but it has produced other forms of work product that hold more promise in our present world. And where I leave my students every night (I teach from 7:15 to 9:15 at night), is that perhaps this complicated nature of lawyers’ professionalism is one avenue through which we can imagine a better future, or at least some constraints on a much worse future. For that, I have Bob and many other people to thank. [audience applause]
Serena Mayeri: I met Bob almost exactly twenty years ago, I think, in his office at Yale. It seemed to me like he’d been at Yale forever because I had just gotten there, but I later learned that he had been here [at Stanford] before he was there, and many other places as well. What stands out to me about that meeting is how incredibly welcoming Bob was to me, and how much that meant to me. I was coming across the street from the history department, pretty unsure of my future and anything having to do with law, and Bob just gave me the warmest, most generous welcome I could have asked for.
I last saw Bob in the elevator at the AALS meeting last week, but in between, he has provided for me—and I know many of the rest of us in this room—an incredible intellectual and personal generosity. I think of all the times that I sat in his office, he having read some draft of mine, and he would say to me, “Serena, what’s really interesting about this paper is—,” and he would unleash a string of brilliant insights that were nowhere to be found in my paper, and I would take notes madly trying to get it all down. [audience laughter]
So I really thank those of you who organized this for the honor and opportunity to be part of this celebration of Bob and his work. Unlike my distinguished colleagues on this panel, I’m not an expert on the legal profession, and I feel a little bit like the answer to the question, “Which one of these is not like the other?” But Bob’s work on the legal profession and on the relationship between law and history that’s the focus of Taming the Past has influenced me enormously. In particular, Bob’s work on broad trends in the American legal profession and in American law and politics together shed light on the evolving position of the feminist lawyers of the mid- to late twentieth century whom I’ve studied.
As Bob describes in his magisterial synthetic essay in The Cambridge History of American Law, the entry of small numbers of formerly marginalized African American lawyers, Jewish lawyers–including an even smaller number of women–into the profession, helped to fuel the rise of public interest law and cause lawyering that Bob sees as the primary late-twentieth-century home of the citizen-lawyer. Then, beginning in the 1960s and accelerating in the seventies, women pried open the doors of law schools, of government agencies, and, to a lesser extent, private law firms. Feminist lawyers were consummate outsiders in the fifties and early sixties, only slowly gaining a modicum of influence. Pauli Murray labored in obscurity at Paul Weiss. Mary Eastwood worked in the DOJ by day. By night, she wrote briefs in women’s rights cases. Sonia Pressman Fuentes and Susan Deller Ross began to influence policy behind the scenes at the newly formed EEOC.
The early seventies was feminist lawyers’ heyday, arguably. Title VII was strengthened and enforced. Congress approved the Equal Rights Amendment and passed Title IX. Ruth Bader Ginsburg stormed the Supreme Court. The court decriminalized abortion. But in retrospect, this was a brief, fleeting window in which feminist activism coincided with a receptive Congress, court, and general political climate.
So it was that by the end of the seventies, feminist lawyers peppered the Carter administration. Eleanor Holmes Norton headed the EEOC. Barbara Babcock was in the Justice Department. Roe lawyer Sarah Weddington was a White House advisor. But the political doors were already closing. The ERA was in trouble. State and federal abortion funding restrictions proliferated. The court turned toward color-blindness and stringent discriminatory intent requirements. Feminists at their peak got the Burger Court, not the Warren Court. They entered the legal profession in significant numbers too late to influence the Great Society. Instead, they got the New Right. As Bob puts it, “rights activism was not radical in principle…but it profoundly disrupted existing patterns of hierarchy, authority, and inequality, and it energized a major political backlash against the rights revolution.”
The feminist legal and constitutional claims that did succeed tended to be those that comported with the historical narrative of liberal progress that Bob described in his essay Taming the Past. This was rights rhetoric that, in Bob’s words, “was entirely tradition-based. The rights were not new, but simply required to fulfill America’s original liberal promise under changed conditions.” Less successful, he writes, “were more radical claims to the effective fulfillment of economic and social rights.”
Even rights claims based on a liberal progressive tradition were accompanied by a frank admission that the framers of the Reconstruction amendments did not envision the applications of equal protection that advocates like Pauli Murray and Ruth Bader Ginsburg sought. And, at least before the rise of the originalism that Bob so wittily skewers, feminists would not have thought to claim that they did. Bob writes that living constitutionalism is not so much a normative method of debatable value as an accurate description of how constitutional change actually occurs. Leading feminist lawyers shared that view, which explains, among other things, why they could without apparent contradiction argue that existing constitutional provisions such as the Equal Protection Clause prohibited sex discrimination already, and that an Equal Rights Amendment remained necessary to secure women’s rights.
Bob writes toward the end of his essay on “Originalism and Nostalgic Traditionalism” that “courts had little to do with any of” the great social movements “with the rare exception of the Warren Court period, but that courts sometimes did recognize their gains in legal doctrine,” and that “[h]anging onto those gains, preventing them from being rolled back…is a reasonable goal of progressive constitutionalism.” But he writes, “Political action that builds on those gains is far more important.” Feminists reached a similar conclusion by the end of the seventies, realizing that they couldn’t stake their hopes on courts, or constitutional rights, but needed an affirmative political and legislative agenda–paid family leave, state-supported childcare, electing feminists to public office–to make further gains.
Fast-forward to the present day, where progressive lawyers, law professors, even legal historians find themselves yearning to revive the heroic lawyer citizen ideal, to act to preserve the rule of law or at least hold the line on basic civil rights and liberties, on principles that we all thought were fundamental to post-rights revolution American democracy. If there was ever a time for the blurring of professional roles, for finding a middle ground between scholarship and practicality (see Bob’s response to Judge Edwards’ complaints about legal academia a quarter century ago) it would seem to be now. Big-Law lawyers collaborate with scholars and public interest advocates. Obama administration officials, returned to private practice and academia, frantically sue the Trump administration. Even historians are conscripted into the service of amicus brief writing.
We’re at a moment today of potentially great promise for the revivification of the heroic lawyer citizen at the same time that just defending basic civil rights, democratic processes, and the already tattered social safety net will be difficult enough. But the pursuit of an affirmative agenda seems, as Bob writes, “far more important.” And it seems now, more than ever, to require, as Bob closed his essay, leaders—lawyers or otherwise: “people,” who, in his words, “seem to live without fear, who refuse to shrug their shoulders and say, ‘That’s just the way it is,’ who [are] able to risk their comforts for their beliefs and the possibility of a better world.” Bob’s work on the legal profession and law’s relationship to history, politics, and social change challenges us to do just that. [audience applause]
Norman Spaulding: Okay. So there’s a really rich set of themes. I think I want to pose a couple of questions for us as a group that’ll give all of you an opportunity to think about some of the questions that you might want to pose. There are at least two common themes here. One, I think, rests on the methodological side of how we think about writing about the history of lawyers. I’m going to table that for a moment and instead ask each of you first to reflect on this ideal of the lawyer as a public citizen, and, taking up Serena’s paper and her framing of her research, how you would state or translate Bob’s articulation of the independent public citizen lawyer into the particular challenges that the profession faces and the assaults on the rule of law that you see today.
So in the traditional framing, in the Brandeisian framing, to take that as the starting point from Jed’s paper, you’ve got sort of two obligations as a lawyer. One is private, your principal agent relationship to the client, and the other is public, and the downbeat of the Brandeis paper is a kind of lament and an injunction and a call for lawyers to respect that public function. Brandeis was himself a quite successful corporate lawyer who zealously represented his clients, and in the way that this is traditionally framed through the Brandeis is how much of the public role, which for Brandeis was get out there and be engaged in law reform, maybe serve in public office, and he emphasizes less how it might inform your private representation of clients privately.
So, at least in ethics circle and the history of legal profession, a lot of the debate is focused on, well, how much of those public responsibilities ought actually to intrude upon and reshape or affect the principal agent relationship with the client. It seems like, both from Serena’s comments and some of the others—Jed, your work on prosecutors and the DOJ—there may be a different framing of this now, and so I just wanted to invite each of you to articulate how you would frame Bob’s lawyer citizen model in the context of today’s challenge. I take it that it’s somewhat less important to think about how a lawyer’s public obligation should influence individual client representation, perhaps, than to think about the other side of a public view of the lawyer, which a kind of direct action on the part of the lawyer, say, in defense of the rule of law or of law reform. I don’t know if that’s the right way to state it, but either Jed or Bill, might you get us started by talking about how that conception, Bob’s conception, might apply to contemporary threats to the rule of law?
Jed Shugerman: Well, one thing in Bob’s work is a recognition of specialization, and I think that we have to take—we can’t undo a century of specialization, and the reason why I think that’s important is that we can’t go back in a time machine to the aspirational civic republican lawyer who could be public and private and play such multiple roles, and that public civic republicanism could inform all those individual, but multiple, relationships. Lawyers are too specialized now. So I think we have to, in some ways, embrace the silo. I mean, I think Bob laments this siloization and overspecialization of law, but I don’t think we can undo it, so given the world we have of—
[editor’s note: the recording was briefly interrupted]
Jed Shugerman: —we need to think about an ethics—spheres of justice for specialized lawyers. And so we might want to imagine that corporate lawyers need to embrace a certain aspirational civic republican ideal as corporate lawyers, and that might be a different ethic. I think prosecutors—in fact, this actually ties into what I didn’t focus on with the DOJ, but I think in some ways we have to think about prosecutors as not just being about lawyers, but being something like a judicial official. There’s a different ethic I think a prosecutor has to uphold than a defense attorney. A public defender might serve a role in a different ethic as being a more zealous defender of a client, and that ethic is going to look different from a prosecutor who has to not win. The problem is winning over everything for prosecutors. For a public defender, winning might actually matter in a different way. Prosecutors actually have to think of themselves not just as Scalia said in Morrison v. Olson, that it’s a quintessentially executive function. I think that’s wrong not just as a matter of ethics. I think it’s wrong historically. If you go back to the late eighteenth century, it turns out that in the early state constitutions, states put the district attorney in the state constitution under the judicial part of their—not under the executive. They understood prosecutors as being a judicial official. That’s a lost history.
Norman Spaulding: Can I just put a footnote there too? It’s really interesting to think about at least individual lawyer biographies from the nineteenth century and how many public servant lawyers, lawyers who rose to formal public service outside the practice of law, began doing criminal defense work rather than working as prosecutors, for many of the reasons that Nick’s work has described about the structure of prosecutorial work in the nineteenth century, so very different structural conditions of elite lawyers. Rufus Choate. William Wirt, longest serving attorney general in the United States, made his name—the whole idea was to make your name by getting somebody off [unclear] criminal defense lawyer.
Jed Shugerman: Alexander Hamilton in the early Republic is a criminal defense lawyer, and that was the way that he was part of this aristocracy, a legal aristocracy.
Norman Spaulding: Anyone else just on the way that the structural conditions for the kind of professional independence in public service have shifted? Laura.
Laura Kalman: Could I just read you something Bob wrote about this?
Norman Spaulding: Sure.
Laura Kalman: I don’t know how you’ve maintained your optimism. “The restructuring of corporate practice means,” and I’m quoting Bob, “that if a modern lawyer took the time to do the kinds of things that the older lawyers did to get their portraits displayed on the walls of their firm’s reception area, serving a secretary of state or defender of the accused, she would be fired,” Bob observes. And then he continues, “Law firms are like those once-bohemian neighborhoods in which the artists who created their appeal can no longer afford to live.” [audience laughter]
Jed Shugerman: So I’d just add that the—I mean, this goes to the question of one’s attitude toward the debunking rules in academic discourse, and to some extent, Bob was going against that trend on the left by trying to rehabilitate or vindicate this idea of public interest and public values as objective and palpable in some sense, and he emphasized it largely in the business context, but in the political context, of course, the regressive effect of debunking in the absence of any belief in a palpable public interest is extreme partisanship to some extent.
Now, Bob’s defense of public values is somewhat indirect, right? And I think he has basically two arguments. One argument is that this is what our forebears have always assumed and acted on, and at least to the extent that we regard tradition—and the Right, of course, does often—as authoritative. This is a good move. The other one, I think, is that we can’t do without it, right, that society depends on some informal un-enacted values being spontaneously respected by professionals, and in both cases, I think the arguments are powerful and relevant.
Norman Spaulding: One might also say—I’m just thinking of so many lawyers, some in this room, rushing to the airports last year, and seeing in some respects that the public service ideal can be situational and responsive to structural conditions, and that the sort of hand-wringing about whether it exists in all the forms one might want it to may miss the fact that in certain contexts, as Serena’s work and Ken’s work shows, and thinking about last year, there is a kind of baseline commitment to the rule of law, and people are making independent judgments about when the role has to shift from the narrow conception of principal agent to the larger duties. That doesn’t take anything away from the kind of concerns about absence of structural support for professional independence or, as, Jed, you were describing, corruption in cognitive decision-making and systematic roleplaying within the principal agent relationship.
The other question I want to ask, particularly mindful of this audience and mindful of the fact that some of Bob’s most powerful essays about the legal profession are not in this book—so there’s just got to be another book, Bob—and thinking about this audience, is just to invite each of you, especially those of you who write in legal history, to think about—Ken spoke to this a little bit, and Serena as well, so, Ken, I might begin with you—the relationship between this book, which is really a book of legal historiography, and the way that we, as those of us who write about lawyers and legal education and about the history of lawyers and the legal educational profession, think about what we do. So one way to pose that question is what’s the relationship for you between telling the histories of lawyers, which, Ken, you said draws you into questions of professional identity and group identity and professional ethics, and writing the history of law? For some other folks in this room, writing the history of law means writing the history of lawyers, but it is not always so, and so I just wonder if you have reflected on that question as you’ve read Bob’s work, as you’ve engaged your own work.
Kenneth Mack: You frame a couple of different questions. I don’t know that much about writing the history of law alone. I write the history of lawyers. I write the history of a lot of different things, like law and lawyers, and also about everyday people, race, representation and economic life. I don’t regard these things as being that separate from one another, apropos my comments about “Critical Legal Histories” and how to read it.
Norman Spaulding: So that’s one point of connection at the methodological level. In approaching the history of lawyers, one has to take the same insights about exposing contingencies, or what de Certeau calls shards and remainders and contingencies and periodization questions. All of that has to be applied methodologically when looking at lawyers from a historical perspective.
Kenneth Mack: Yes. That’s sort of my thing. Not everyone has to agree with me, but, yes, I find that way of looking at things to be very productive. There are all these oppositions wrapped up in how we think and write about lawyers. When you teach a class about lawyers, it’s easy to set up oppositions like professionalism versus client-centeredness. My own position has always been that these oppositions can be interesting teaching tools, but they don’t really capture what’s really wrapped up in being a lawyer. Let me explain using two examples, or maybe one. We’ll see.
During the discussion you all were just having about professionalism, I was thinking about an essay I read by James Forman, Jr., who is a former public defender in Washington. It’s actually, I believe, now been published in his book, Locking Up Our Own. Foreman was writing about representing a client. I think his client was a young guy who had robbed someone, and he wanted to get him into diversion. So Foreman finds the person his client robbed, and knocks on that person’s door. He talks to the victim. There ensues a series of hard conversations. Foreman gets this guy to agree to appear at the sentencing hearing to essentially say: “I agree that this guy should go into diversion.” So, what’s Forman doing? He’s not just representing a client in any of the usual ways of thinking about the problem of representation and professionalism. He’s thinking systematically about his client, about his client embedded in a system that’s doing many different things that we don’t always see or think about. He wants to get the victim of the crime to think systematically about it as well.
I’ve also been thinking about someone like Larry Krasner, the new D.A. in Philadelphia. Some of you may be skeptical of Krasner, and perhaps you should be. But his positions are echoed in those of a lot of other lawyers—lawyers who are thinking systematically about their duties. When we think about professionalism, that’s the way to approach it as a problem. It’s very embedded concept. You have to think about whole systems that surround it. It’s typical to think about it as duty to client versus duty to profession. But there are other ways of thinking about it in a more public-regarding way that are more interesting and more challenging. I don’t find these well-known oppositions to be all that productive.
Norman Spaulding: Anyone else, just how we tell the history of law through the history of lawyers or how we think about the implications for the history of law, of telling the history of lawyers?
Serena Mayeri: I guess to me, to the extent that I write about the history of lawyers, it’s in the service of writing about the history of law. What I’m interested in, to a large degree, is how lawyers and others shape the law through their advocacy, and I guess I was thinking in relation to Bob’s work of whether and to what extent the kinds of conflicts and contradictions he talks about in the context of the ideal and the actual for nineteenth-century and early twentieth-century corporate lawyers, how can that inform how I think about feminist lawyers who are existing in a very different time and place and context. Without the profit motive, sort of siloed, as Jed was saying, in this more specialized world of public interest law where, at least in an ideal sense, it’s the public interest that they’re attempting to serve.
There are still, as Ken was alluding to, potential conflicts and also synergies between these lawyers’ roles as advocates, as promoters of a particular vision of the public good and their relationships with clients who are in oftentimes a much less privileged position. And as Ken was saying, we sometimes think about that role as being in conflict with clients’ interests. That lawyers who are, by definition, some form of elites, even if they’re somewhat marginalized within the profession, are apt to sideline or overlook or even sometimes work in tension with the interest of their clients. That story can be played out not just at the level of client representation, but also at the level of what types of legal doctrines are produced when those conflicts are taking place.
So to give an example, the feminist lawyers I’m currently writing about are ones who largely enacted a vision of egalitarian marriage that dominated 1970s feminist constitutional advocacy. There’s another strain of lawyering that was focused more on people for whom marriage was not necessarily an option, on discrimination against women and children and men based on marital status. That these lawyers had similar and different conceptions to their clients about whose interests they should be representing and how the law should unfold had real consequences for how legal and constitutional doctrine was produced.
Jed Shugerman: Can I jump in on this too? Because I agree with what Serena was saying, but I also think that in terms of Bob’s work—and there are other people in this room whose work reflects this as well—this might sound simplistic, but lawyers make law. Lawyers are humans, and there was a way that I think Critical Legal Studies—
Unidentified: [unclear].
Jed Shugerman: You hope. I hope that they remember that they are. But there was a way that Critical Legal Studies, 1.0 turned humans into sort of functions of social forces and that law was nothing different from politics, society, and economics, and I think that Critical Legal Studies 2.0 with—I’m thinking of Bob’s work drawing from—there was this E.P. Thompson essay in Taming the Past, and Bob emphasized this for our reading group with Nick and Serena and Rebecca to look at this passage from a crit or from that kind of social historian who still took a step out of that social history framework that law matters. Law is not just an extension of structural forces, that law is an aspiration, and law is, quote, “unqualified human good.”
Norman Spaulding: So that looking at lawyers is one of the places where you can identify agency even as you’re sensitive to material and structural constraints.
Jed Shugerman: Agency and ideas and aspirations that then go beyond those structures. And I’m also thinking of Dirk Hartog’s—where’s Dirk? Dirk, your essay on “The Constitution of Aspiration.” I mean, these are two things—Bob structured his teaching to teach us, I think, that Critical Legal Studies 2.0, that rule of law matters not just because it’s a label that one could use to dress up an economic agenda, which is the way that I think some historians have talked about the rule of law. I think Bob had a more sophisticated understanding of the rule of law, and he taught his students, taught us, to think about the rule of law as, in E.P. Thompson’s word, an “unqualified human good,” and to think of law as something that we should also aspire to teach our students to value as an intellectual history.
Norman Spaulding: Can we open? Can I ask, Bob, is there any intervention that you would like to make?
Robert Gordon: I think I would try to respond at the end of all this.
Norman Spaulding: That is your privilege, and you are duly scheduled. It’s just a question of whether there’s anything you want to—
Robert Gordon: There’s lots that I can say about this, but I think I’ll hold off for now, if that’s all right.
Audience member: I’ll ask a question, not that it’s very well formulated, but because I’m the person in the classroom who always tries to fill the space. [laughs] But I am curious, because being situated in law school, we now are hearing so much about the changes in the legal profession and in practice and how the financial crisis has created shifts that are not going to go back, and how legal education is going to change and all of those things, and I’m wondering how those of you think about the legal profession historically think about some of the themes that you guys have been talking about in terms of the more noble aspirations of the profession and the public ideals, whether we’re on the cusp of some further great transformation. Like, is this a turning-point moment or is this past decade a turning-point moment or not? Or is it just part of our broader declension? [laughs] That’s sort of the general question.
Jed Shugerman: Well, first of all, I think anything could happen, as far as I can tell. I mean, we’re in a moment, right, of extreme skepticism toward progressive and public values and, as Bob points out, in which corporate clients have a very adversarial attitude toward the state. That seems to be crushing the kind of ethic that Bob was arguing for in private representation, but things could change. I mean, we could have a new New Deal that would change things.
But then the other phenomenon that I mentioned before is this fragmentation, right, the turning in the organization of professional services more toward organization based on problems and the ethical regulation that is sectoral, and so there it seems to me you wouldn’t be uniformly pessimistic even about the current moment, right? So Tanina Rostain has written about tax lawyers, for example, and the tax bar, which has behaved in a very surprising way and ways that, in some respects, vindicates Bob’s aspirations, and there are other areas, too, in which one might see—a family lawyer is another thing where there’s a breakdown within that area of practice, but some people are articulating and, I suppose, conforming to progressive ideals.
There is an organization called the Organization of Strategic Planning Professionals, which includes lawyers, but others as well, that are engaged in the structure of collaborative relationships among firms that engage in innovation where innovation is central to what they do, and this is pure relational contracting that leads to the public-spirited norms that we associated with the relational structures. So one could imagine a lot of good things going on as well as a lot of depressing things going on simultaneously in different sectors.
Serena Mayeri: I was rereading Bob’s review of I think it’s [Richard] Kahlenberg’s book about legal education from a while ago this morning, and it struck me that one of the points that Bob makes in that piece is the degree to which the problems that—so Kahlenberg writes about sort of that his motivating question is why do so many students come into law school with these progressive ideals and leave as corporate lawyers, and Bob posits one of the problems that Kahlenberg doesn’t sufficiently address in a book focused on legal education is the lack of just sort of structural support and resources for that kind of law practice, that there are very few jobs out there that are jobs that can be said to be in the public interest. And I guess I had hopes both during the recession and now with the reaction to the Trump administration that it might be a moment to, in fact, put more resources into those kinds of—and didn’t necessarily happen with the recession, but still holding out hope for the current moment. [laughs]
Norman Spaulding: I think one thing to emphasize is that the structural conditions—and this is there in Bob’s paper on “The Independence of Lawyers” and in some of his other historical work—I mean, the structural conditions have to be there for the public service role to be more than an ideal, for it to be salient and functional, so when you move from structure of law practice in which most people are solo practitioners, so they’ve got relatively full autonomy in the nineteenth century over the nature of their practice, into modest-size firms, at most, in and through the Gilded Age, so still a fairly high degree of autonomy and full case control and full retainers for those firms, as opposed to engaging in bidding wars for segments of individual cases, which is what outside counsel now have to do that’s one big piece, just the structure, the way that lawyers are working and a huge tectonic shift over time.
The civic republican ideal, I mean, if you go all the way back, it had this very deeply elitist—it was anti-democratic in many respects, but it had this very deeply class-based dimension to it, which the assumption was that you were landed gentry. I mean, that’s where the tradition really comes out of. And if you’re landed gentry and you agree to engage in public service or private service, it’s relatively easy to say no, because you can go back home to your estate. [laughs] So it’s very difficult to think about how you would replicate that kind of structural independence in the modern dog-eat-dog competitive space in which private lawyers are engaged in practice, and one might want to say the very same thing about the kinds of lawyers that Jed is studying who are engaged in public practice. They’re in a relationship of dependence, not least of which because of their student loans, for young lawyers, but more broadly than that, generally over the course of their career, typically in relationship to financial independence.
And then I think Bill made this point, and it’s latent in some of what Ken was saying about the kinds of difficult representational choices that lawyers have to make, the conditions for the exercise of fully independent judgment depend on what you work on, what you do on a regular basis, and if all you’re doing is working for one set of clients with a discrete set of interests, you don’t have a general law practice. You don’t rise to become, like William Wirt, attorney general having done criminal work and then trust and estates and a bunch of other things. Just the way that your mind is shaped as a lawyer, the way you approach decision-making is very different.
So on that front, I think there’s a lot of grounds to be skeptical, but I think the situational point and Serena’s points are really important. The ways in which people have responded, lawyers in particular, over the last year to what has changed in the public sector in particular, I have been moved by and surprised by. So it’s conceivable that the conditions could resurface and that much of what Bob has said could not just be aspirational, but structurally supported.
I’m afraid there’s this whole other elephant in the room, which is software engineers who want to do away with all of us [audience laughter], that there is not time to talk about, but it is, along the lines of the structural conditions for independence that Bob has identified, even more disquieting, because we may have a code of ethics that we promulgate to engage in somewhat protections behavior, but at least there’s a code of ethics. We may not enforce it very often, but at least there’s the capacity to enforce it.
And we’re looking at—what I have been teaching my students in the Legal Ethics class drawing on some of Bob’s work and others’ work about the history of the first codification movement, what I would think is a new codification movement, a new desire and attempt to codify the law, except it’s not populist reformers being colonized by lawyers, for the most part, through the ALI and other efforts to make law popularly accessible, simple, cost less; it’s software programmers who want to do to us what Uber has done to cab drivers.
We started about twelve minutes early, which means we can finish early unless there are no other questions.
[transcriber’s note: sound quality poor at this point]
Audience member: I just wanted to say that we should remember that the Attorney General of the United States had private clients well into the nineteenth century, as did all of the lower attorneys in the government, and, Jed, I don’t know if you know this or not, but Section 35 of the Judiciary Act of 1789 contemplated in its original form giving the appointment of the Attorney General to the Supreme Court, and at the last minute, it was taken away and given to the President and Congress. And then very shortly thereafter—and you need people to go and research about this. There are no graduate students doing these things, which is always my plea.
In 1792, a very important question before the court in [unclear]’s case, which [unclear] got completely wrong, the question that the court was contemplating was can the Attorney General of the United States come into the Supreme Court and ask for [unclear] without the provision of the President. Okay, that [unclear] immediately under the President, and we need to remember that that was done in the 1790s and find out why originally U.S. attorneys [unclear] and the Attorney General, Edmund Randolph, fought to have them put [unclear], but he was the Justice Department, and he fought to have control of the U.S. attorney. So it’s all very [unclear]. I don’t know the answer. We need more graduate students to do that.
Audience member: I’m a practicing attorney, so my question to the panel, to what extent does the way that you imagine, conceptualize, and write about the legal profession affect the way practicing lawyers feel about the practice of law?
William Simon: Very little, but it would be a good thing if it were more. Yeah, I have to admit that I find it somewhat depressing that—one of the depressing aspects of the current state is the anti-intellectualism of the practicing bar, and I think that to the extent that there is a disposition the practicing bar takes seriously the idea of commitment to public values, it’s not, you know, with some important exceptions, not articulated in the terms that would benefit from the work that most people are doing in the academy.
Norman Spaulding: I mean, to be fair, we may be at a nadir of intellectualism, broadly speaking. [audience laughter]. Anti-establishment sentiment has always been a feature of American society, but it runs very high right now. Distrust of expertise writ large runs very high.
Dan Marcus: Well, I’ve been emboldened by a fellow practitioner here. I’m Dan Marcus. I’m related to a legal historian. [audience laughter] Actually, we have several Washington lawyers here. I’m looking at a former colleague of mine, Doug Melamed, who’s teaching here now. I wanted to raise the issue of the Washington lawyer, because Charlie—a guy from Covington & Burling many years ago wrote a book on the Washington lawyer Charlie Horsky, and he sort of posited the idea of the Washington lawyer as the interlocutor between his clients and the government and the public interest. Doug and I grew up under the tutelage of a Washington lawyer, Lloyd Cutler, who believed in that notion. He believed in it, and to some extent, he saw himself as a lawyer for the situation between, like Brandeis, between his client and the government. Most of his colleagues in the law firm, I think, felt that that was unrealistic, and the siloization of law practice, including Washington law practice, that has occurred makes that role even more difficult.
But in my experience, I think that the developments in the marketplace, the legal marketplace, have really made it much more difficult, as Bob has said, to fulfill that kind of role, and I don’t know how realistic it was in the first place. The way it’s being fulfilled now, I think, is by the revolving door of lawyers in private practice, many of whom are frustrated by private practice, going into the government and doing their public service, and then going back into private practice or through pro bono work. But I wonder if any of the panel has any thoughts about whether there’s anything special, or still special, about the role of lawyers in Washington.
Jed Shugerman: Well, a lot of the former New Deal lawyers, right, that Horsky—I don’t know if he was a former New Deal one, but he certainly had partners who were, and he was talking about it, that I think had this notion—Burley [phonetic, ed. Burley?] was particularly specific about it, and you can find all this in Bob—that we had a well-functioning regulatory state, so that your chances of getting away with any self-interested violation of public norms were fairly marginal, so that the private lawyer could perform her role by convincing the client, if she had any antisocial dispositions, that she wasn’t going to get away with them in the long run, and so the lawyer could kind of mediate by appealing to long-run self-interest as opposed to short-run self-interest. Well, today, you know, nobody thinks we have a well-functioning regulatory state, or at least the prospects of getting away with it. The client might well view that she had more to gain by taking the antisocial, more aggressive course than the one that Charlie Horsky would have wanted her to take.
Laura Kalman: When I was writing about Abe Fortas, I saw him acting that way time and again, and I really think that the counsel-for-the-situation idea had incredible appeal to him, and I think he was very good about convincing clients that something he wanted them to do was in their long-term interest.
Jed Shugerman: On this Washington lawyer question, every time that you see a Tweet or a comment that uses the phrase “deep state,” right, remove it and replace it with “the rule of law.” Right? [audience laughter] There’s a cultural war over what do we mean by the “Washington lawyer.” “Drain the swamp” replaced with “the Washington lawyer” or “the rule of law.” This is the cultural divide right now. Is there an establishment that protects rule-of-law values or is that establishment fighting a revolution against the people, right? And I think the Washington lawyer—well, first of all, I think this also goes to the question of what we teach our students. I think, as I said before about the rule of law, I think we have to keep emphasizing that this is really a fight over the rule of law that protects both red and blue state.
And I think also this question about the revolving door, I mean, maybe one problem is that we don’t have enough of a revolving door, meaning that we don’t have a—so there’s a proposal now about prosecutors, and it’s to mandate that prosecutors leave prosecutors’ offices. They rotate. They’ll serve five years as prosecutors and then five years as defense attorneys, so they see both sides, and it really will change their ethics. Maybe I’m saying the opposite of what I said before about—we maybe need either people with specialization to teach ethics to all the specializations or to have more rules in place that force lawyers to get out of their hyper-specialized legal practice with its self-promoting norms and get into another area of specialty, so obviously with prosecutors and defense lawyers, but this could run across the board. And one could criticize that because it reflects a revolving door of someone being in the SEC and then going to Wall Street, but if we then say that it’s something like a Jacksonian rotation in office to push people into a totally different area of practice and to mandate that they go into a different area of practice, they might see these cases from a different view, and the ethics then spread, and these lawyers might actually uphold Bob’s vision of the civic virtue of the republican lawyer with this revolution.
Jed Shugerman: So we shouldn’t forget, I think, too, that a significant part of the New Deal in which New Deal lawyers enthusiastically participated was the displacement, to a certain extent, dismantling, and marginalization of the courts and of the traditional role of lawyers. That was the whole idea behind creating this regulatory state that would operate through administrative agencies and depend more upon rational technocratic expertise than the adversary system and traditional lawyers’ values.
So I don’t think it’s just a story about rapaciousness within the private bar or the Chamber of Commerce’s large-scale deregulatory political project or deregulation over the last thirty years. This is part of we live now in a universe shaped with skepticism about courts and about the traditional function of lawyers, shaped by the very New Deal lawyers who bequeathed us the New Deal regulatory state. They were deeply skeptical of the traditional functioning of the adversary system, traditional adversary system values, traditional professional values, and the entire architectural project was in some ways to displace courts and the traditional roles that lawyers and law firms would play within them for the adjudication of public questions. So we live in a universe that’s shaped partly by these structural constraints and the shift in the private sector, but also a very progressive sort of fruit, sour fruit of a very progressive political project.
Last question, then we’ve got to break.
Audience member: So I don’t know if we’re allowed to ask Bob in advance to address things in his last half hour, but I would love to hear your reflections on this issue of siloization and specialization. It is a huge issue, and I don’t mean to embarrass Dan here by bragging about his career, but Dan was something that doesn’t exist anymore in Washington: he was an administrative lawyer. And by that I mean he worked on behalf of clients in front of many different agencies, and that almost doesn’t exist anymore. And as a result of that, Dan was, to some extent, exactly the kind of person we’re talking about. He was the 9/11 Commission counsel and worked at the Department of Agriculture. I’m not going to brag about Dan anymore, because he’s turning—
Audience member: [unclear]. [audience laughter]
Audience member: But I didn’t get up here just to embarrass Dan. So by the time I went to Covington & Burling as an associate, I was working in the food and drug area, and then I realized that if I were to proceed to a partnership position at Covington & Burling, it wouldn’t be as an FDA lawyer, it would be as a food lawyer. And it’s that very funneling, that specialization that drove me—and I shouldn’t say “drove me,” because there was also a serious draw, obviously, sorry [audience laughter], into academia, because we are the last generalists, and legal historians are particularly generalist amongst the generalists, and in that way we are becoming more and more different from our students after they go into practice, and there’s a certain mismatch. And I think it’s no mistake that Barack Obama was a constitutional law professor who became a President, because there’s very few people working in the private bar now that are able to thrive in that world and then present a profile to the world that is as an attractive generalist the way that Obama did. So, Bob, that’s an assignment for you. [audience laughter]
Norman Spaulding: Thank you. Thank you all. [audience applause]
Notes:
[1] Professor Kalman titled her remarks “Of Legal Education, the Profession, and Rubber Bands.” She wishes to thank Dan Ernst, W. Randall Garr, and John Henry Schlegel for their help with this piece.
[2] Robert Gordon, “Professors and Policymakers: Yale Law School Faculty in the New Deal and After,” History of the Yale Law School: The Tercentennial Lectures: 76 (New Haven: Yale University Press, 2004).
[3] Ibid.
[4] https://www.poetryfoundation.org/poems/44624/the-arrow-and-the-song
[5]Robert Gordon, “The Geologic Strata of the Law School Curriculum,” Vanderbilt Law Review 60 (2007): 348.
[6] Robert Gordon, “The Case for (and Against) Harvard,” Michigan Law Review 93 (1995): 1260.
[7] Ibid., 1258.
[8] Ibid., 1259.
[9] Ibid., 1243.
[10] Ibid., 1259.
[11] Ibid., 1259.
[12] Ibid.
[13] Gordon, “The Geologic Strata of the Law School Curriculum,” 352.
[14] Gordon, “Professors and Policymakers,” 125.
[15] Ibid.
[16] Robert Gordon, “American Law Through English Eyes,” Georgetown Law Journal 84 (1995): 2228.
[17] Robert Gordon, “Critical Legal Studies as a Teaching Method,” Loyola Law Review 35 (1989): 393.
[18] Ibid., 387.
[19] Ibid., 389, n. 3.
[20] Robert Gordon, “Critical Legal Studies as a Teaching Method, Against the Background of the Intellectual Politics of Modern Legal Education in the United States,” Legal Education Review 1 (1989): 71.
[21] Ibid., 68.
[22] Ibid., 74.
[23] Ibid.
[24] Ibid., 75.
[25] Ibid.
[26] Gordon, “American Law through English Eyes,” 2236.
[27] Robert Gordon, “Lawyers, Scholars, and the ‘Middle Ground,’” Michigan Law Review 91 (1993): 2088-96.
[28] Robert Gordon, “An Exchange on Critical Legal Studies Between Robert W. Gordon and Willliam Nelson, Law and History Review 6 (1988): 139-56.
[29] Robert Gordon, “Response to Kenneth Lasson: Error Compounded,” Journal of Legal Education 57 (2007): 315.
[30] Robert Gordon, “Bargaining with the Devil,” Harvard Law Review 105 (1992): 2043, 2045, 2055, n. 32.
[31] Gordon, “American Law Through English Eyes,” at 2235-2241.
[32] Robert Gordon, “’Of Law and the River,’ and of Nihilism and Academic Freedom,” Journal of Legal Education 35 (1985): 1-9.
[33] Gordon, “An Exchange on Critical Legal Studies with William Nelson,” 147.
[34] Gordon, “’Of Law and the River,’” 9.
[35] Robert Gordon, “An Exchange on Critical Legal Studies with William Nelson,” 154.
[36] Robert Gordon, “Lawyers, Scholars and the ‘Middle Ground,’” at 2108, n. 81
[37] Gordon, “Bargaining with the Devil,” at 2048, n. 16.
[38] Elihu Root, Address, New York State Bar Association: Proceedings of the Thirty-Ninth Annual Meeting, January 14-15, 1916. Some contemporary students surely also agree with the Root’s dissatisfaction with academic lawyers’ determination to teach students “to despise American institutions.” Ibid., 480.
[39] Gordon, “Lawyers, Scholars, and ‘The Middle Ground,’” at 2103, n. 67.
[40] Gordon, “Bargaining With the Devil,” at 2056, n. 34.
[41] Ibid., 2052.
[42] Ibid.
[43] Gordon, “Lawyers, Scholars, and ‘The Middle Ground,’” 2103.
[44] Ibid., 2103-04.
[45] Ibid., 2103, n. 67.
[46] Ibid., 2076, n. 8.
[47] Ibid., 2111.
[48] Justin McCrary, Joy Milligan, James Phillips, “The Ph.D. Rise in American Law Schools: 1960-2011: What Does It Mean for Legal Education,” Journal of Legal Education 65 (2016): 549.
[49] Lynn LoPucki, “Dawn of the Discipline-Based Law Faculty,” Journal of Legal Education 65 (2016): 510, 536.
[50] Ibid., 521-31.
[51] Jerome Frank, “What Constitutes a Good Legal Education?,” American Bar Association Journal 19 (1933): 727.
[53] Gordon, Robert. “The Independence of Lawyers.” Faculty Scholarship Series, January 1, 1988. https://digitalcommons.law.yale.edu/fss_papers/1361.
[54] Gordon, Robert. “The American Legal Profession, 1870–2000.” In The Cambridge History of Law in America, edited by Michael Grossberg and Christopher Tomlins, 3:73–126, 2008. https://doi.org/10.1017/CHOL9780521803076.004.
[55] Shugerman, Jed Handelsman. “The Creation of the Department of Justice: Professionalization without Civil Rights or Civil Service.” Stanford Law Review 66 (2014): 121–72. https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1638&context=faculty_scholarship.
[56] Jed Shugerman, “The Rise of the Prosecutor Politicians”: Database of Prosecutorial Experience for Justices, Circuit Judges, Governors, AGs, and Senators, 1880-2017
[57]https://www.prisonpolicy.org/blog/2017/07/13/prosecutors/
[58] Gordon, Robert. “The American Legal Profession, 1870–2000.” In The Cambridge History of Law in America, edited by Michael Grossberg and Christopher Tomlins, 3:73–126, 2008. https://doi.org/10.1017/CHOL9780521803076.004.