WELCOME TO FIRST YEAR LAW STUDENTS
Jeff Lehman
August 28, 2002
Welcome to law school.
Twenty-five years ago, I sat where you sit now. I had spent much of the summer looking forward to that moment. I had been working and planning. I had been eager to begin, and I had been terrified to begin.
And when the day finally arrived, I eased into my seat in Room 100, and listened to Dean St. Antoine describe what law school would be like.
I wish I’d paid better attention. I wish I could remember precisely what he said that day, because I would love to have been able to contrast his vision of law school in 1977 with my vision of law school in the year 2002.
But I was too excited, too nervous, and too overwhelmed by all of the stimuli that were surrounding me. And so, I will forgive you if, [twenty-five] years from now, you do not remember a single word of what I am about to say.
But please listen nonetheless. I hope you will be able to listen closely enough to remember it for a few months. Because I want to take these few minutes to tell you what your life here will be like, and how to make the most of it. I want to tell you explicitly what you are about to experience, so that you do not dissipate scarce energy worrying about whether you are experiencing the right thing, or the wrong thing.
First, I will talk about law. I will tell you what law is not, and offer some suggestions about what it might be.
Second, I will talk about lawyers. I will tell you what lawyers are not, and offer suggestions about what they might be.
Third, I will talk about law school. I will tell you what law school is not, and offer some suggestions about what it can be for you. I will tell you about what makes this law school, the University of Michigan Law School, such an extraordinary environment in which to study the law and to prepare yourselves to be lawyers.
So what is the law? When I came to law school, I thought I knew what the law is. The law, thought I, is a set of rules. It is a set of statutes passed by the legislature. And it is the Constitution. And I thought I was coming to law school to learn what those rules were. I expected that law school would require me to master these rules, and to learn how to apply them to real world situations.
That vision of the law is what you will encounter among the members of the public at large. You will encounter it in commercial study aids, commercial outlines. If that is the vision of law you hold when you leave here, then you will have wasted an enormous amount of money. Let me repeat that, slowly. If you graduate from this law school believing that law is just a set of rules, then you will have wasted an enormous amount of money. Not just your own tuition. Also the $8,000,000 that our graduates gave to the Law School this past year to ensure that your education is better than that.
Yes, that’s right. Last year our 19,000 graduates from around the world donated 8 million dollars to subsidize your education. They remembered that when they came here, their education was subsidized.
They know how their experience here changed their lives. And they wanted to make sure that you have the chance to benefit from an education that is, in truth, vastly better than what they had.
After you graduate, it will be your responsibility to subsidize the next generation of Michigan students. But for the next three years it is your responsibility to take advantage of this special opportunity to learn.
So the first thing you are supposed to learn is that the law is not just a set of rules. Why do I say that? I say that because rules express themselves in words, and words do not define themselves. I say that because the framers of the Constitution are dead and cannot throw you in jail, because the legislators who vote on a statute may not have foreseen every possible situation that might arise in the future course of history, and because sometimes people decide to try to abide by their honest understanding of the law even if they know that no organ of government could ever force them to do so. I say that because sometimes some people believe that it is more important to force the government to follow a carefully circumscribed set of PROCEDURES when it wants to apply a rule than it is to guarantee that the SUBSTANCE of the rule is enforced.
And so the law is more than just a set of duly promulgated rules. It is the collection of PRACTICES you might use to INTERPRET a rule that you consider to be ambiguous. It is the set of INSTITUTIONS that are charged with ENFORCING the rules, and the procedures they adopt in order to decide what a rule means or whether a particular situation did or did not implicate that rule.
Law is POWER. The power to craft norms. The power to interpret a norm that someone else has crafted, in a way that third parties respect. The power to enforce a norm — to punish someone for breaching it.
Law is DEMOCRATIC CONSTITUTIONAL GOVERNMENT. It is the set of remarkably durable mechanisms this country has created for dispersing the power to craft norms, and for brokering competing visions of how that power should be exercised.
Law is about living in a world where there are problems with no solutions, impossible dilemmas, cruel choices, and imperfect human beings who are just trying to do the best they can.
You don’t need to remember all of that. Just remember to go to your classes with the expectation that you will be taught that law is not just a set of rules. And go to classes expecting that you will be spending a lot of time fighting about what the law really is, if it is not just a bunch of rules.
And what are lawyers? When I came to law school I also thought I knew what lawyers are. I thought lawyers were intellectual gladiators. I thought they were master games players, people with a superior knowledge of the rules who used that knowledge to do their clients’ bidding. And I thought there were two kinds of lawyers. The noble ones choose to work for noble clients. The evil ones choose to work for evil clients.
That simple, naive vision is also widely held by members of the public. You may find it shared by your family members and friends.
But once again, if you believe that when you graduate from this Law School, then I believe we will have failed you.
Why do I say that? I say that because very few clients are purely good or purely evil. They are complicated people, with conflicting impulses that they are trying to work out. They want to be wealthy, but they also want to think of themselves as good people. They want respect, they want to get what is their due, but they also have impulses to identify with their adversary. They are driven to win battles in the short term, but they know that what goes around comes around, and the argument they invoke today may be invoked against them tomorrow.
And I say that because clients are often organizations composed of many different people, with competing visions of what the organization should want, and ambiguous rules for determining whose vision should prevail.
And so lawyers are, inescapably, autonomous moral agents who, through their work, help their clients to determine what the clients want and believe as well as helping them to achieve their goals. And recall that they do so in an environment where law is much more than a set of clear, uncomplicated rules. They are working within a complex of legal structures that are themselves evolving.
Good lawyers are recognizable not by their lists of clients but rather by their temperaments. A good lawyer is a person of integrity, someone who has committed her or his life to the articulation and service of the public interest. Talking with your client about the law is talking with your client about how the client’s aims might or might not be reconciled with a mass of ambiguous and conflicting rules and institutional structures that have been fashioned under our system of Constitutional democracy.
A good lawyer carries on such conversation by educating her or his client about what potential courses of action, what potential legal outcomes, can be articulated in ways that are PLAUSIBLY PUBLIC-REGARDING. A good lawyer is not a sophist who can, on demand, spew forth some thin, superficial reason why anything is permissible under the so-called rules. Rather, a good lawyer is someone who can help press their clients to behave, and to understand their behavior, as being consistent with a serious, coherent, THEORY of the public good.
But in order to interact with one’s client in that way, one must be willing to subject one’s arguments to serious critical challenge. A vision of the public good is not a serious one if it is unexamined. And so, an outstanding lawyer is one who teaches clients to step outside themselves, to consider problems not merely from their own perspective, but also from the perspective of their adversaries, and from the perspective of the public at large.
Good lawyers are therefore truly creative people. They create structures of understanding and tolerance among their clients. They are charged with nurturing and perpetuating within our society the idealistic view that it is POSSIBLE to speak in terms of the public interest, that it is possible to come to terms with one’s adversary, that it is possible to live in a world where law means justice.
And that brings me to the topic of law school.
When I came to law school, I thought I knew what I was doing. I thought I was coming here to do two things. I thought I was coming here to learn the collection of rules that I believed constituted the law. And I thought I was coming here to learn to think like a lawyer.
Well, as you now know, the law is a much messier structure than a simple set of rules. But what about this business of learning to think like a lawyer? That is the shopworn phrase, popularized in books and movies and television shows about law school. But what does it mean?
One way, perhaps the best way to describe what you will be experiencing over the course of the next few months goes like this. In your law school classes, you will be asked to the same thing, over and over again. You will be given a problem. And you will be asked to offer an answer. And then, immediately, you will be asked to try on the opposing answer. You will be asked to imagine yourself, you, yourself, a good person, coming to the opposite conclusion. Why might you do it? Give me three reasons why you might come out the opposite way. Not silly reasons. Good reasons.
When you are in that position of trying on the opposite side, you will be expected not to try it on like some kind of costume. You must not giggle and pretend it is goofy. You must try it on for real. Like clothes that you are seriously considering buying. Feel the position. Live it. Ask yourself how a good person might wear those clothes, and how those clothes might fit.
Why will you be asked to do this? Because in order to be a good lawyer, you must internalize an intellectual reflex. That reflex is what may be called, “sympathetic engagement with counterargument.” It involves probing the weaknesses in your own views with all your intellectual might. You will have to take your doubts and develop them into the opposing arguments. You will have to take your uncertainties and your insecurities and put them out in front of you, for all to see.
And to develop that reflex, this law school has provided you with an absolutely extraordinary environment. It is extraordinary in many ways, but you will notice two of those ways in the classroom. One involves your teachers, and the other involves your fellow students.
Your teachers will be able to push you to develop the intellectual reflex of sympathetic engagement with counterargument for two reasons. First, because they have that reflex themselves. A typical member of our faculty will wake up in the morning and say, “I think I’ll have cereal for breakfast.” And then, as a matter of pure reflex, they will start to list out the reasons why a muffin might be better.
Your teachers will also push you to develop the reflex because they want you to understand what is difficult and important about what they are teaching. When we on the faculty teach a subject, we do so because we care about it. We care about it passionately. And we believe that we have something very special to say about it. Something that is not obvious. Something that is original to us. Something that is intuitively appealing, illuminating, and logically rigorous.
That means that property law is not the same thing in every classroom, and torts is not the same thing in every classroom. Susanna Blumenthal’s criminal law is different from Peter Westen’s criminal law. Christina Whitman’s torts class is different from Sherman Clark’s torts.
Even more. Christina Whitman disagrees with Sherman Clark. Vehemently. Susanna Blumenthal disagrees with Peter Westen. All four of them disagree with me about everything I have said about law and lawyers.
And your mission as a student is to engage your professors in the same way that you will, as lawyers, have to engage judges. First you must get inside their heads. You must learn to see the world the way they see it. You must understand their special angle, their unique perspective on their topic, on the public interest, on justice.
Your professors will not always make that easy for you. Because while they are elaborating their own perspectives, they will also be modeling for you the intellectual reflex of sympathetic engagement with counterargument. As soon as you hear them say something they think is probably right, you will then hear them attacking what they just said.
I will tell you now that watching this display will be confusing to you at first. It will be frustrating. It will be especially frustrating because you will be talking about the most difficult, most basic, most emotionally challenging issues of justice that we face as a society.
And I want to tell you that you will be tempted to flee. You will be tempted to retreat to the notion that all you have to do is learn the rules. You will be tempted to give up on understanding your professor and content yourself with making a neat and orderly outline.
And I urge you to resist that impulse.
And the best way to resist involves the other resource that you will see in the classroom: your fellow classmates. Get to know them. They are smart. They are incredibly smart. They are here in part because they are among the smartest people you will ever meet in your life.
Engage them. When you think that something your professor said is clearly wrong, go argue the point with a classmate. Even more importantly, when you think something your professor said is clearly RIGHT, go argue the point with a classmate. Try to come up with a principled, compelling counterargument.
Do not just rely on one classmate. Seek out many classmates. Seek out classmates who are different from yourself. You will be amazed by how richly diverse a group you are. And you will come to see that people from different backgrounds can see things in different ways. You will learn how a former professional comedian’s perspective on the world will differ from the perspective of a former doctor or a former police officer. By being here, you can learn to see things from many perspectives at once. And that will be the key to your future successes as lawyers.
In sum, your education is a joint venture. And its value will depend on how thoroughly you are each willing to commit yourselves to one another. Your intellectual growth will be directly proportional to the extent that each of you is able to trust one another with your ideas, to risk saying something foolish or unpopular. For that is the only way that you all, collectively, will learn to anticipate and think carefully about every corner of an issue.
Over the course of the year, you and your classmates will come to have a bigger stake in one another than you have to any particular position you might take on any given issue. You will come to disagree with one another with civility. And you will be able to do so, in part, because a law school classroom has an enormous advantage over the large public square.
In the public square, much speech is anonymous, and even non-anonymous speech is effectively anonymous. That means it cannot be exploratory, tentative, or probing. It is as if it were not from a person at all.
Within the law school, a core feature of our speech is that it is not anonymous. Indeed, it might be said that anonymous speech is contrary to our central mission. Because we are here to speak, not ex cathedra, but as mortal individual human beings who are struggling together to understand.
And so when one of you says something stupid, or unpopular, even something as dense as I did in Tom Green’s property class in October 1977, you must not roll your eyes. You must be grateful to your classmate for trying. You must give your classmate permission to change her or his mind in the face of further discussion. And if you believe there is a flaw in the argument, you must be willing to put your idea forward for scrutiny, in your own name.
I must warn you that the first year of law school will not be easy. It will be frustrating. It will be infuriating. You will be forced to examine, and you will learn to force yourself to reexamine, virtually all of the most fundamental premises that you hold dear.
And I must warn you that if you take this process seriously, it will change you. You will not be able to hold purely passionate, unexamined commitments any more. By coming here, you have chosen to give up the luxury of leading an unexamined, unreflective life.
And I want you to think about that. Think about what it means for you. Think now, before you start, about the things you hold most dear, the things you take to be absolutely certain. Ask yourself what you will be giving up and how you will be diminished, once you commit yourself to always knowing how to see the other side.
Only if you know what you are giving up will you be able to truly appreciate what you are getting in return. You are getting, first of all, the opportunity to enjoy the most stimulating, challenging, illuminating intellectual experience to be found in the world of formal education. More importantly, you are getting the opportunity to push yourself to be a deeply reflective person. You will come to know yourself in a new way, to know not only what you believe, but why you believe it, where your doubts lie, how you feel conflicted. You will become better able to tell others about why you find some conclusions difficult, and why you feel nagging doubts about whether something that seems right to you is REALLY right.
These are enormous benefits. They will last you a lifetime. For, you see, you are not just a Michigan student for three years. You are a member of this community for the rest of your life. What happens here is truly special, and it will bind you to one another and to more than 19,000 Michigan students from the past and the future.
All of this awaits you now. It is a once in a lifetime opportunity. I urge you to throw yourself into it with everything you have. Engage this law school with your entire being. You will change yourselves, and you will change us.
And so, let me say that I am absolutely thrilled to see you here. And on behalf of the entire law school community, I feel it a great privilege to welcome you to your new life here at the University of Michigan Law School.
