The Volokh Conspiracy
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Free Speech Rules, Free Speech Culture, and Legal Education: More on Teaching for Effective Lawyering
I was invited to participate in a Hofstra Law Review symposium on free speech in law schools, which will be happening in February, and I thought I'd serialize my current draft article; there's still plenty of time to improve it, so I'd love to hear people's comments. Here are some follow-up thoughts on what I think law schools should try to teach, though you can read the whole PDF, if you prefer:
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C. Being Willing to Make Arguments That We Disagree With
Lawyers often also have to make arguments that, as independent thinkers, they might disagree with or otherwise find generally distasteful. A lawyer who rejects originalism or textualism may need to make originalist or textualist arguments; likewise, a committed originalist may need to make living constitutional arguments. A lawyer who deeply supports religious freedom may need to respond to the religious freedom claims raised against his client. A lawyer who thinks that practices that have a racially disparate impact are "structural racism" that needs to be fought may nonetheless sometimes need to make an argument that, for a particular client in a particular case, such disparate impact should not be seen as legally significant.
Again, it's normal (and may well be human nature) to view such actions with distaste. As scholars, for instance, we're generally expected to affirmatively make arguments only when we sincerely believe are correct. If we make arguments in our academic work that we believe are mistaken, just to win a point, we may well be condemned as "intellectually dishonest." Likewise, if our friends learn that we are trying to persuade them of something using arguments that we ourselves don't believe, they may view us as insincere and untrustworthy.
But lawyers' duty to their clients requires them to make the best arguments they can, regardless of whether they personally view those arguments as sound. Even if they believe that originalism is logically incoherent, they need to be able to make originalist arguments on their clients' behalf, when they think that the judge is most likely to be persuaded by those arguments. Law schools must thus teach students the kinds of arguments that are effective in various contexts (what Anup Malani has referred to as the educational institution's transmission of culture[1]), entirely apart from whether professors or students agree with all those arguments.
D. Tolerating People Who Hold Views We Condemn
Even beyond the arguments, lawyers need to be able to build a personal connection with the decisionmaker (or with the other party in a negotiation), a connection of cordiality and amity even if not of genuine fellow feeling.
Yes, we might think that people who take view X are horrible people. It is of course human nature (or at least a facet of human nature) to assume the worst of our ideological adversaries—to assume that they are not just mistaken but are "deplorables," fools, pigs, Nazis, Communists, corrupt, and so on. And of course this assumption may sometimes be accurate.
And yet there is the witness, who is a loyal adherent of X—but whose testimony can help keep our client out of jail or financial ruin. Our natural human reaction to the witness might be to want to make clear that we think he should be drummed out of decent society, or even locked up for hate speech or sedition or anti-American conspiracy or what have you. It is human nature to let our feelings show, to greet views and people we disapprove of with condemnation.
But of course what we need to do, as a matter of professional and moral duty to our client, is to build as much of a bridge as we can with the witness. To do that, we will often need to accentuate what we agree about (the importance of justice in this particular case, for example, and the value of telling the truth and remembering the facts as clearly as possible) rather than what we disagree about. And we will need to say all this with a smile and not a sneer.
The witness scenario is just one example. To effectively represent our client, we need to be able to interact effectively with opposing counsel, however reprehensible their views might be. To effectively argue to a judge or jury or arbitrator, we can't come across as people who think they are retrograde yahoos, however much we might disapprove of their views.
And sometimes the gulf between them and us might not be so great. Sometimes we might be able to bridge that gulf by just the right argument, which appeals to both sides' shared beliefs that we can find if we aren't too distracted by focusing on the divergent beliefs. Law schools must teach students to unlearn the habit of always assuming one's enemies are bad people, and to learn instead to be able to take a charitable perspective towards the other side—not because that perspective is always correct, but because it can help yield effective lawyering.
E. Learning from People We Disagree With
It's also human nature to shun people because of their bad actions or bad beliefs. But if we refuse to listen to an accomplished and successful lawyer because we disapprove of that lawyer's views—however morally right our disapproval might be—we lose an opportunity to figure out how best to respond to those views.
We likewise lose an opportunity to figure out how that lawyer managed to become successful despite what we view as his moral benightedness. Might the lawyer have figured out how to frame his views in a way that appeals (again, however wrongly) to important decisionmakers? If so, how can we use that to our advantage, whether to respond to his framing or to borrow it for our own views?
And sometimes one's adversaries might have something of a point, even if only a partial point. I personally think, for instance, that Socialists' bottom line proposals are awful, and have caused untold death and misery; I support free markets, with only those regulations that are really necessary. And yet what regulations are necessary? Perhaps some of the Socialists' critiques of the existing system can help show that, even if their bottom line is wrong.
Likewise if you're trying to figure out the proper way of regulating abortion—even if you're confident that such regulations should be very slight—or of crafting affirmative action programs, or deciding when female-identifying athletes who nonetheless have bodies that are characteristic of males should be allowed to compete in women's sports. (Should just a statement of identification be enough? Should it require some time on testosterone suppressants? Something else?)
Our adversaries might also have a point that we may acknowledge, once we hear it and understand it, will likely sway a lot of people. We might then realize that, for our own proposal to be politically palatable, we'll need to make some modest compromises. Yet the more we keep the other side at a distance, the harder it will be for us to acquire those insights. Again, law schools need to teach students those sorts of skills, and the habits and attitudes—such as a willingness to listen, even to people whose views we loathe—that support them.
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Still to come, in future posts (or you can see it now in the PDF):
I. Teaching for Effective Lawyering
F. Building Coalitions
G. Unflappably Confronting Unpleasant Facts and Arguments
II. Specific Practices
A. Protecting Student Speech (and Speech of Invited Speakers)
B. Responding to Unpopular Views in Ways That Promote Discussion
C. Evenhandedly Encouraging Debates or Conversations Among People Who Disagree
D. Organizing Law-School-Sponsored Events That Model Thoughtful Disagreement on Controversial Topics
1. The value of law-school-organized events
2. The insufficiency of leaving such debates to the classroom
3. Focusing on real current debates
E. Inviting Leading Successful Advocates from All Points on the Ideological Spectrum
F. Encouraging Faculty to Express Dissenting Views
III. Responses to Some Possible Objections
A. Student Upset (Especially as to Views That Are Seen as Derogatory of Their Identities)
B. Vulnerability of Powerless Minority Groups
C. Risk of Persuasiveness
D. Risk of "Legitimizing" Certain Perspectives
E. Losing the Opportunity to Chill Political and Ideological Participation and Organization by the Other Side
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[1] See Anup Malani, "Enforcing the First Amendment on Campus Won't, by Itself, Address the Problem of Academic Freedom," Volokh Conspiracy (Reason.com), Nov. 16, 2022, 12:13 pm, https://perma.cc/NM3C-U3AR.
