Sam Bray receives Story (Bator) Award

for excellence in scholarship, teaching, and public impact.

|The Volokh Conspiracy |

Many congratulations to our co-blogger and my dear friend Sam Bray, who just received the Federalist Society's Joseph Story Award, which is the successor to the Paul M. Bator Award, "given annually to a young academic (40 and under) who has demonstrated excellence in legal scholarship, a commitment to teaching, a concern for students, and who has made significant public impact in a manner that advances the rule of law in a free society."

Sam joins a long list of illustrious Story/Bator award receipients, including co-bloggers Randy Barnett (1991), Paul Cassell (1998), Eugene Volokh (1999), Jonathan Adler (2004), Orin Kerr (2007), Sai Prakash (2008), Eugene Kontorovich (2012), and Nita Farahany (2013). (Also me, 2017.) By my count, the Volokh Conspiracy sports many more recipients of the award (maybe three times as many?) as any law school.

I'm delighted about this, and also delighted to reproduce Sam's acceptance speech from last night:

I am honored and grateful to receive the Joseph Story Award.

One reason is the august company of previous recipients. I won't regale you with their names, except to say, for all the Harvard Law Students here, that one former recipient is now your dean.

Another reason I am honored is the jurist for whom the award is named. Joseph Story was the second most important Supreme Court justice on the Marshall Court. I expect we all know the most important justice on the Marshall Court. Story was famous not only for his opinions, but also for his treatises, what we would now call his legal scholarship. He wrote the most important treatise of the century in four fields—constitutional law, equity, bailments, and conflicts of law. No one else is even close. Three of those subjects are ones I've taught, so I've felt haunted by the ghost of Joseph Story for some time. And there have been times when I've worked on equity, and I've been sure that Joseph Story was wrong, and I've eventually come around to the view that one of us was wrong, and it was not Joseph Story.

Finally, I'm honored to receive this award because it is from the Federalist Society. When I was a law student at the University of Chicago, the Federalist Society was a critical part of the intellectual life of the school and of my legal education. What made the Federalist Society so distinctive was its commitment to debate, to the critical discussion of legal and constitutional ideas that are foundational for our republic. I wish I could say that this commitment to robust debate, though distinctive when I was a law student, has now been so widely embraced that the Federalist Society is no longer needed. I cannot say that.

Indeed, you who are in this room know the state of play better than anyone. You know, with the exquisite sensibility of a courtier in the Versailles of Louis XIV, the things that are not said, the delicate dances, the debates that cannot be had. And you are constantly negotiating the demands of courtesy and the demands of free and open debate.

If this commitment to robust debate and free speech is ultimately going to survive, it has to escape two threats. One is going softly and quietly into the night. I think you will not do that. But the other threat is that we talk about robust debate and free speech, but we offer speakers who are not worthy of it. Speakers who have nothing to say, who peddle their own personalities. Or speakers who are political weathervanes, aligning their legal positions either with or against the politics of the moment. Avoid celebrity. Avoid provocateurs. Avoid law as politics. Go for substance. Invite even those who talk softly, if they carry a big idea.

I know you do, and I know you will. But given the fragility of free speech at this moment in American life, given the threats from the left and the right, given the roiling sea of outrage and agitation in which we are drowning, I feel compelled to say these things. The light of robust debate and free speech can be put out by its enemies. It can also be put out by its friends.

The members of the Federalist Society should be known above all else for this commitment to robust debate and free speech. You can be known not only for takedowns of the foes of free speech, but more especially for your sweet reasonableness, for your own commitment to the conversation even when others choose to leave it.

If that is so, the law schools of the United States will be greatly in your debt. And a decade and a half from now, one of you will be standing at this lectern, expressing your gratitude for receiving the Joseph Story Award, remembering with fondness the work of your chapter to promote debate and discussion, and expressing your hope that future generations will do the same.

One final word. I would like to thank the professors who have been my mentors along the way—Lisa Bernstein, Elizabeth Emens, Richard Epstein, Philip Hamburger, Bernard Harcourt, Andrew Kull, Geoff Stone, Cass Sunstein, Steven Yeazell, and especially that wonderful judge and scholar, Michael W. McConnell. I am more grateful to them than they will ever know.

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  1. That’s a pretty impressive haul for The Conspiracy, but since the Trump Administration has basically outsourced federal judge selection to the Federalist Society when are we going to start seeing some Conspiracy representation on the federal bench?

  2. The grand effort to warp all constitutional interpretation to achieve ideologically conservative outcomes continues.

    1. Funny the Left never seemed to have a problem when the judiciary served their agenda back in the 70’s through arguably the 90’s….

      Although the be fair, the judiciary still serves the Left pretty well despite the efforts from Reagan on to clock back the courts from using raw judicial power to achieve liberal agenda goals. Despite these best efforts we still got court imposed gay marriage, abortion is limited in scope but still a “right, affirmative action is about the same despite it being just straight up discrimination, buggery is now apparently a liberty interest, and illegals who openly flaunt our laws somehow have a right to enter and stay in this country.

      The only “conservative” judicial victory in the last 20 years might be the 2nd Amendment. But, unlike abortion, etc. that at least has some historical and textual roots in the Constitution. And even though the SC extended constitutional protections to guns and gun owners in practice that protection has been starkly limited by lower courts. So I don’t know how much of a “victory” that can really be declared…

      1. “… But, unlike abortion, etc. that at least has some historical and textual roots in the Constitution. ”

        I don’t really see much qualitative difference in the judicial construction required for the finding in Roe and the judicial construction required for the finding in Heller. Other than that you disagree with one and agree with the other. “Historical and textual roots” can mean whatever one wants it to mean.

    2. You’re both wrong. It’s a fine theory of interpretation, provides many good insights, and pore power to good scholars getting into it.

      It’s also not the sole legitimate method.

      As for the idea of the courts as an organ of the left, one need merely look at the left’s current policy wishlist to see a list of things that the judiciary did not provide liberals with.

      As for conservative victories, I can think of a lot pretty easily:
      Gonzales v. Carhart
      Prinz
      United States v. Morrison
      Bush v. Gore

      But concentrating on the negative and instrumentalist bitterness has become quite on-brand in the GOP these days. Not great long-term thinking, or for the Republic, but hard to argue it’s ineffective.

      1. Sarc, I assume you are referring to originalism, and I agree with your opinion there. I was talking specifically about FedSoc, which only embraces originalism when it suits their agenda. Same with free speech and any other first amendment protections.

  3. By my count, the Volokh Conspiracy sports many more recipients of the award (maybe three times as many?) as any law school.

    Perhaps the Conspirators could perform an experiment by aggregating to determine whether a conservative-heavy faculty might exist outside the world of bottom-tier and unranked institutions. I think it might work, although the students attracted to such a school could be too high a mountain for any professors to climb.

    The Conspirators might have to try that climb without Prof. Kerr, though. He seems to have lost his taste for the current (Age of Trump) iteration of movement conservatism. He seems to be, as Katy suggested, ‘too well to attend.’

    1. If higher education was not a monolith of intolerant, bigoted liberals who think their sh** doesn’t stink then perhaps we would see a bigger representation of other viewpoints in the academy.

      1. There are plenty of conservative-controlled, -taught, and -attended schools. They suck, mostly because they are shackled by censorship and teach nonsense, but they exist. Hundreds of them. They can be found at or near the bottom of most rankings.

        I do not expect the Conspirators to do much more than continue to whine about that — except, periodically, to advise our strongest schools to emulate our weak schools by hiring more movement conservatives, and perhaps to wonder why the better schools ignore that lousy advice.

        The market has spoken. Vividly. Conservatives do not like — and largely ignore — the verdict, which makes their comments on this point close to worthless.

        1. Define what you mean by “the market.”

          1. One reasonable definition:

            An actual or nominal place where forces of demand and supply operate, and where buyers and sellers interact (directly or through intermediaries) to trade goods, services, or contracts or instruments, for money or barter.

        2. Here is another classic Cuckland (maybe the Conspiracy should give him an award, the Mental Master Bator award). What a simp, bigoted, intolerant fool. Keep on posting though Cuck. We need more daily examples of exactly why your kind don’t belong in society.

          1. These are your peeps, Conspirators.

            I’m beginning to understand why most of you decline to be associated with right-leaning institutions, choosing instead to operate among the liberal-libertarian elites with whom you find such fault.

  4. I wonder why the name of the award was changed. Just curious.

  5. Congratulations to Sam Bray.

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