David Currie's Remarks to Class of 2005

David P. Currie
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June 10, 2005

Congratulations! You have just completed boot camp – a boot camp every bit as rigorous and exacting as you could find in the Marines.

It's been exciting, hasn't it? For many of us, the study of law is the intellectual experience of a lifetime. To wrestle with Palsgraf, Pierson, and the two ships Peerless, with Marbury, McCulloch, and McCardle – it's heady stuff.

And it's hard, isn't it? Don't let them tell you law is easy; it's as intellectually challenging as anything you'll encounter. That they pay us to think about such questions is one of the wonders of the Western world.

Now you are ready to go out and put your legal skills to work – in law, in government, in business, in the academy. Whatever you do, you'll do it better for having been here; for the tools of legal analysis are the tools of clear thinking  in general.

I hope you're proud of your accomplishment. We who are among your teachers are surely proud of you. I say among your teachers because you've surely taught each other more than you've learned from us –  in your interchanges in class, your study groups, your informal conversations, your student-run organizations like moot court, the clinics, and the journals.

For, as you've discovered, you can't really understand the law by reading books, listening to lectures, and memorizing rules. You'd only forget them, and they'd change them anyway. You can't understand the law until you make it your own by restating it, arguing about it, applying it to new situations. It's the process that counts, not the material.

So you should be proud of your achievement. Your employers tell us you're superbly qualified to practice law – that is, to learn how to practice law. It took me twenty-five years to understand why they called graduation "commencement." I always thought it odd to call the end the beginning. But it is the beginning, isn't it? All your education makes you ready to learn; be sure you never stop.
You should be proud of your profession too. The practice of law has come in for a good deal of ribbing, some of it in good fun (I'll spare you examples), some overgeneralizing from the misbehavior of a small minority to which you will never belong. But the law is a noble profession. The rule of law is one of our proudest boasts, the product of democratic self-determination, the bulwark of our freedom. As Burke said, where the law ends, tyranny begins.

But the law doesn't administer itself. Rights cannot be protected without advocates to assert them. It is the peculiar responsibility of the legal  profession to assert those rights and to defend and uphold the law. As my colleague David Strauss said only the other day, "Doctors protect people against the ravages of disease. Lawyers protect people against the ravages of injustice."

When one of Shakespeare's characters says the first thing to do is kill all the lawyers, it's not another bad joke about the legal profession. It's not Shakespeare himself speaking even in fun. He puts the words in the mouth of a rabble-rousing demagogue who wants to put an end to law and order and liberty and knows it's hard to do while there are courts and judges and lawyers to defend them.
It is no less praiseworthy to defend those whom society disdains. Edward Bennett Williams was called a Fascist for defending Senator Joe McCarthy and a Communist for defending his victims. As Williams himself said, we don't condemn the doctor who heals the sick or the priest who ministers to the sinner; no more should we condemn the lawyer who defends those who find themselves on the wrong side of the law.

So don't let them tell you the law isn't a noble profession. And don't let them tell you there's no such thing as law, that the law is infinitely malleable, that's it's mere window-dressing to prettify a conclusion already reached on other grounds.

The legal realists and their successors performed a real service by opening our eyes to the fact that judging is not a mechanical process, that it involves the exercise of judgment and often interstitial policymaking, that judges sometimes abuse their authority by manipulating the law to reach a preconceived and erroneous result. But to say some judges abuse their authority is not to prove that all do. The books are full of instances –from Justice Bushrod Washington in Ogden v Saunders to Justice Frankfurter in the flag-salute cases – in which the law constrained judges to reach results contrary to their own notions of good policy, in recognition of the important truth that the basic power to make law is not given to courts in a democracy.

Nor does the fact that some judges ignore the law prove it's a good thing. We must avoid equating the descriptive question of what exists with the normative question of what ought to be.

So I leave you with three lessons: The law is an endlessly challenging and demanding intellectual discipline; the law is a worthy and noble profession; the law is not just what some unelected judge had for breakfast, but a real constraint on arbitrary action, the mainstay of our civil rights and liberties.

Go ye then into the world; employ your hard-earned skills; apply them to make the world a better place; and remember fondly your days at the Law School.

Thank you!