The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.