Bob Post, Yale Law School
In everyday language, we speak of leadership in two distinct ways. On the one hand, we endow leadership with substantive vision. We praise as a “leader” the person who gets it right, who knows the right move to make in the right circumstances so as to accomplish the right ends. On the other hand, we characterize leaders as those who possess the technique of persuading others to follow their direction.
I have in mind now leadership in the first sense. I am worried about what leaders in legal education ought to do when the mission of law schools has been rendered questionable. How ought law professors respond when our Chief Justice answers President Trump’s critique of the ruling of an “Obama” judge by claiming that we do not have Republican judges, or Democratic judges, but merely judges who are doing their best fairly to apply the rule of law? Every one of us wants to support Roberts’ objection, but who believes that what Roberts says is actually true? And most fear what the federal judiciary will do as an ever-increasing percentage of its membership is appointed by President Trump. How do we lead when we don’t know what to affirm?
My dear colleague Sam Moyn recently published in the Chronicle of Higher Education an article entitled Law Schools are Bad for Democracy: They Whitewash the grubby scramble for Power. Moyn argues that although law schools ought to “incarnate ideals of political and social justice,” they actually function “mainly to reproduce social hierarchy.” Moyn condemns even law school clinics, which are so proud of their contributions to justice, but which are perforce required to litigate within the limits of a Trump inflected judiciary, and so must practice a “politics of marginal legal reform by insiders to the system” and so to “launder and legitimate injustice.” “For the sake of our national life,” Moyn pleads, “law schools must take up the duty of inculcating in their students and in the public a critical attitude toward the operations of ‘the rule of law’ in general—including a critical attitude toward the routine exaltation of the judiciary.” They must encourage the “disgust” felt by “so many of our fellow citizens” at “what ‘the rule of law’ is providing them.” Law schools must “demystify the law as a first step to reinvigorating democratic life.”
If all that Moyn means is that law schools should adopt a critical attitude toward current legal decisions and judicial holdings, then he is merely preaching to the choir. Law schools have been adopting that critical pose since the progressive era. But I suspect that Moyn means something deeper, which is that law schools must reject the rule of law itself. They must destroy the illusion that law exists apart from political power. Moyn thus advocates a variant of Trump’s perspective, which in turn chimes with familiar CLS critiques from decades ago. Foreseeing the dark times that lie before us, Moyn seems to say that law schools should teach that legality is the opiate of the people.
How should leaders in legal education respond to Moyn’s critique? I suggest we begin with the thought that law has both positive and normative dimensions. We are free critically to assert what the rule of law should normatively entail. But so long as the rule of law is positively embodied in state organizations like courts, its meaning is irretrievably linked to the actions of what Robert Cover once characterized as violent institutions.
I suggest that leaders in legal education will now be required sharply to distinguish positive from normative dimensions of the rule of law. Moyn intimates that in present circumstances normative commitments to the rule of law will merely distract from essential political action. But I regard this position as self-contradictory. This is because political action in modernity always aims at the creation of institutions, and institutions must function according to the rule of law if they are to act fairly and effectively.
The challenge to law school leadership is therefore how to maintain a normative commitment to the rule of law when we can foresee that this commitment will everywhere be betrayed by the actions of the very positive legal institutions charged with implementing the rule of law. This is not just a challenge for deans, but for all of us who seek in our teaching to inculcate respect for normative ideals of the rule of law.
But I do not know whether this ancient orientation is adequate to the crisis that will soon be upon us. In so many ways, the era of Trump pushes us toward a moral singularity.