Susan Sturm, Columbia Law School
From the moment I entered law school, and through four decades as a lawyer then a law professor, I have experienced lawyering as a bundle of contradictions. Crossing the threshold into the legal world in the late 1970s, I found that my dream of paving the way for a new era of social justice ran headlong into the wall of austere tradition. This tension between purpose and precedent replayed daily in the classroom during my law school years. I often found myself frustrated and infuriated by case law and Socratic dialogue, which instructed that “thinking like a lawyer” meant looking backward rather than forward, following authority rather than pursuing innovation, and promoting predictability rather than solving problems. Nonetheless, I absorbed the message that, as lawyers, we would be expected to find solutions for the world’s most intractable problems. Alongside its constraining energy, my relationship with the law would put me in positions requiring that I “think outside of the box.”
In practice, I continued to grapple with these contradictions. Legal reasoning and adversary process proved simultaneously necessary and limiting, just as collaboration and problem solving got me only so far. As a litigator, I was continually buffeted by the need to fight while cooperating—as part of conducting discovery, orchestrating a trial, or settling a case. As an assistant to a master in a prison case, I witnessed the court’s power to force prison officials to pay attention to inhumane and abusive conditions that they had tolerated without consequence until the court intervened. Yet, the court could not induce the cooperation and commitment necessary for sustainable change; the force of law that put prison reform in the spotlight also triggered backlash and resistance that undercut its power.1
Now, as a law professor, I experience these contradictions daily as I teach Civil Procedure alongside a new course called Lawyer Leadership: Leading Self, Leading Others, Leading Change. Both courses aim to equip students with capacities fundamental to lawyers’ roles in enabling constructive human interaction. Yet, on their face, they seem to require opposing capacities, and to cultivate competing mindsets. I have witnessed this disconnect firsthand during an exercise we conduct on the first day of class in Lawyer Leadership. We divide students into small groups and ask each group to list the qualities or descriptors that came to mind when they thought of the word “lawyer.” We then ask them to do the same with the word “leadership.” When we come back together, we ask students what they noticed about the “Lawyer-Leadership” lists generated by each group. Students typically describe lawyers as “competitive,” “aggressive,” “critical,” “adversarial,” “hard-working,” and “risk-averse.” In contrast, the column for leaders contains descriptors such as “creative,” “entrepreneurial,” “visionary,” “inspiring,” and “collaborative.” It doesn’t take long for an observant student to notice that there is virtually no overlap in their “lawyer” and “leader” descriptors.
I have come to realize that lawyers’ capacity for impact depends upon making sense of, and being able to pursue simultaneously, these oppositional aspects of lawyering and leadership. These core roles and practices simultaneously contradict and depend on each other for the legitimacy and effectiveness of both. Lawyers play a key role of designing human interaction so that diverse people can peacefully and effectively govern themselves. They bear responsibility for helping individuals, organizations, and governments structure their affairs so they can live and work together, even when they disagree. They are called upon to be problem solvers and facilitators of human interaction. When these relationships break down, however, law—through lawyers—enforces rules and enables people to fight without resorting to violence, using adversarial tools to allocate responsibility, impose judgment, and enforce rules. Effective lawyers must both fight and collaborate, judge and build trust, debate and design new institutions, minimize risk and enable effective risk taking, advance clients’ values and hold clients accountable for adhering to societal values.
The prevailing strategy for promoting the practices falling under the umbrella of leadership alongside lawyering could be called “add and stir.” Much of the literature either explicitly or implicitly assumes that, with adequate commitment, leadership learning can be added into the law school curriculum as supplements or complementary competencies. A case in point is a report issued by Ben Heineman, William Lee, and David Wilkins, in which the co- authors urge that lawyers “be equipped with a broad range of ‘complementary competencies’ that supplement and expand the ‘core’ competencies of legal reasoning and analysis that have been traditionally taught in law school and emphasized in legal practice.”2
The complementarity argument goes something like this: The current law school curriculum (and the accompanying pedagogy) emphasizing the development of legal analytical skills remains valid, and should remain at the center of the law school curriculum and pedagogy. It is, however, too narrow. It does not adequately equip students to navigate the leadership challenges they will face in their multiple roles, to take up the leadership that society calls upon lawyers to exercise, and to do so at a time of increasing volatility, complexity, and urgency.
Leadership learning can be added to the prevailing pedagogy to meet these needs because the skills associated with learning leadership are compatible with, or at least not opposed to, those involved in learning how to “think like a lawyer” in the traditional sense of what that means. Leadership learning thus can and should simply be added onto learning to operate in lawyers’ more conventional adversarial roles.
I share many of the assumptions underlying this complementarity strategy. Legal analysis is a core legal competency that must remain a pillar of the law school curriculum. The importance of finding a way for law schools to pursue both prongs of lawyer leadership, a move that Robert Cullen calls conjunctive, seems beyond serious dispute.3 I also share the assumption, both stated and unstated, that successful incorporation of leadership into the law school curriculum must take account of the norms, values, and commitments that lie at the heart of traditional legal education.
Nonetheless, the simple strategy of complementarity will not, in my view, work. It sidesteps fundamental ways that legal education geared toward cultivating conventional legal skills necessarily operates in tension with—and sometimes in opposition to—the kind of learning that must take place to cultivate leadership. The capacities and mindset celebrated in the Socratic classroom—judgment, critique, risk minimization, reasoning from precedent—take on the character in the leadership literature of limitations to be overcome or minimized. The tendency to downplay these tensions and contradictions, though not surprising, underappreciates both the necessity and opportunity presented by facing up to them. Unless these tensions are addressed, features of legal education operating within the conventional paradigm are likely to marginalize and undercut the efforts to build leadership capacities.
I come to believe that the concept of paradox holds a key to navigating these contradictory yet linked aspects of lawyer leadership. A paradox is a statement or proposition that seems self-contradictory or absurd but in reality expresses a possible truth.4 A growing body of organizational and change literature offers insights into both how paradoxes operate and how they can operate virtuously rather than as a vicious cycle. By definition, paradoxes cannot be resolved or eliminated; their self-referential and cycling quality is what makes them a paradox.
In key respects, the contradictory yet interdependent elements of law and leadership are built into law’s structure, role, and practice. At the level of structure, formal and informal constitutions (such as contracts) set up law both to provide structures and processes enabling people to interact, cooperate, and make decisions, on the one hand, and to enable people to fight without violence and to abide by decisions that will be backed by force, on the other. Lawyers sit at the cusp of these paradoxical functions.5
These tensions also inhere at the level of role. Lawyers are called upon to build, design, enable cooperation and collaboration, “constitute” governments, contracts, relationships, and transactions (in the constitution, in deals, in house, and in alternative dispute resolution). They must simultaneously be ready to fight on behalf of clients, to be the stewards of the adversary process, and to discipline the exercise of the violence of the state. These roles are in tension. They are also interdependent. Lawyers cannot conduct a trial without both cooperating and fighting. They cannot steward an effective deal without both minimizing and facilitating risk taking.
Finally, the practices required for lawyer leadership are themselves paradoxical. Conventional lawyering and leadership will sometimes require competing mindsets, skills, and practices. Lawyers have to judge while they also listen, enable, and empathize. They have to create the conditions for growth and learning, even as they set up the processes to locate or cabin legal responsibility. They have to be in a creative mindset even as they facilitate compliance and reactive risk avoidance.
The tensions that manifest in the relationship between conventional lawyering and leadership lie at the heart of what makes lawyers distinctive, necessary, and potentially effective in leadership roles. The most successful and impactful lawyers live in these tensions. The role of law and lawyers fundamentally involves the capacity to combine these contradictory modes of thinking, acting, and interacting. This capacity to hold paradox may be what equips lawyers to exercise truly effective leadership. When lawyers without this capacity occupy leadership roles, that deficit may help us understand the spectacular failures that unfold when they get stuck on one side or the other of the paradox. The challenge facing law schools is to figure out how to build that tension—and the capacity to manage it—into their practices and cultures.
This Essay argues for naming the tensions between lawyering and leadership, reframing them as paradoxes, embracing those paradoxes as challenging but necessary, and engaging law schools and the legal profession in building capacity to navigate these contradictory yet interdependent situations. Section I lays out the conceptions of lawyering and leadership that conflict, and providing some background on the meaning of paradox. Section II explores the aspects of legality that operate in tension with leadership, and what makes those tensions paradoxical. I identify six paradoxes of lawyer leadership—dualities that contradict one another, give rise to, and affect how lawyers will experience leadership learning: (1) reasoning paradoxes, (2) discourse paradoxes, (3) relationship paradoxes, (4) motivation paradoxes, (5) mindset paradoxes, and (6) justice paradoxes. Section III shows the limitations of prevailing strategies for reconciling the contradictions between legality and leadership. Finally, drawing on action research and the literature of paradox and organizational change, Section IV offers a framework for taking a paradoxical approach to lawyer leadership, one that differentiates between problems that can be solved and paradoxes that must be embraced. This approach offers three overarching strategies for enabling law students, law schools, and legal organizations to hold contradictory messages and mindsets, and for using this paradoxical approach to strengthen and deepen leadership capacity in lawyers and the capacity to build leadership across-the-board.
- Susan Sturm, Resolving the Remedial Dilemma: Strategies of Judicial Intervention in Prisons, 138 U. PENN. L. REV. 805 (1990); Note, “Mastering” Intervention in Prisons, 88 YALE L. J. 1062 (1979).
- BEN W. HEINEMAN, WILLIAM F. LEE, AND DAVID B. WILKINS, LAWYERS AS PROFESSIONALS AND AS CITIZENS: KEY ROLES AND RESPONSIBILITIES IN THE 21ST CENTURY, https://clp.law.harvard.edu/assets/Professionalism-Project- Essay_11.20.14.pdf
- ROBERT W. CULLEN, THE LEADING LAWYER: A GUIDE TO PRACTICING LAW AND LEADERSHIP (2009).
- KENWYN K. SMITH AND DAVID N. BERG, PARADOXES OF GROUP LIFE (1987).
- Robert Cover brilliantly portrayed these dualities as a defining feature of law:
Law may be viewed as a system of tension or a bridge linking a concept of a reality to an imagined alternative – that is, as a connective between two states of affairs, both of which can be represented in their normative significance only through the devices of narrative.
Robert Cover, Nomos and Narrative, The Supreme Court, 1982 Term — Foreword: Nomos and Narrative, 97 HARV. L. REV. 4 (1983).