Harcourt Addresses the Class of 2009
Welcome to the University of Chicago Law School.
You are about to embark on what we—the faculty at the University of Chicago Law School—intend to be the most formative years of your lives. The most challenging, the most stimulating, the most critical years of your lives.
It is conventional in these circumstances—a welcome address to the entering class—for the speaker to give you some words of advice. I’m hesitant to do that because you have been getting so much advice this week (and will get so much more the next) from faculty and administrators, seasoned law students, peers, blogs and parents, that your mental hard drives are surely beyond capacity. My words, I’m afraid, may well become part of the ambient noise that will mark these first few weeks of law school.
So I’m extremely reluctant to offer additional words of wisdom.
But I cannot escape a heavy feeling of responsibility. From the moment Dean Levmore asked me to give this address, I have been struggling with a terrible weight.
Because what I have to say—the advice I have to give you—is so terribly important. And nobody else, I am sure of this, no one else has dared tell you this truth. The most important piece of information you will ever acquire. Something that you should remember each and every single day you are here at the University of Chicago.
Don’t trust your professors. Don’t believe what they say. Don’t accept their conventional wisdom. Challenge them: They are probably wrong. In fact, even better: They are unquestionably wrong. 100 years from now, the entering class in 2106 will laugh at them.
So this is my challenge to you: Challenge us!
The fact is, you are entering the study of law at a discreet moment in the intellectual history of legal studies. Most of what you are going to be exposed to will appear natural, necessary, right, and normal. Normal in the Kuhnian sense of normal science.
Mastering a discipline—whether it is physics or law—in its normal phase is easy, but it dulls the mind and hardly advances knowledge. You have to ask more of yourself. You have to figure out the contradictions, gaps, and indeterminacies of the “normal” and challenge the way that we think about law today.
Let me give you an illustration. 100 years ago, instead of me standing here addressing you, Roscoe Pound would have been addressing the entering class. A professor here from 1903 to 1910, before becoming dean at a lesser law school in Cambridge, Massachusetts, Roscoe Pound would undoubtedly have talked to you about “the science of law.” In his Introduction to the Study of Law delivered in that period, Pound spoke precisely about the “scientific method” of studying law. “The whole course of development of society,” Pound declared, “has shown a movement away from justice without law and toward the working out of a scientific and complete body of rules for the administration of justice.” (1912:3).
Let me just repeat that: ‘a scientific and complete body of rules for the administration of justice.”
I suspect that many of you are coming here to receive just that: to receive an education in these bodies of rules. But, I promise you, we will drill that out of you pretty quickly.
You see, several waves of legal realist thought—first in the early 1900s and then in the 1960s and 70s—have simply eliminated the idea of law as science and returned the discipline to the domain of rhetoric, where, not surprisingly, it had started with the ancients in Athens.
If you had been sitting in that audience 100 years ago, listening to Dean Pound, I would have wanted you to raise your hand and challenge the idea of law as science—to explore the ways in which legal discourse differs from the biological and natural sciences. I would have wanted you to resist the idea—to challenge it, to question it, to help spark a new way of thinking about law.
Law and economics—a movement from the 1970s—was one other attempt at rendering the study of law more scientific. You will hear a lot about it at this school—which really gave birth to the movement. But again, it will be your challenge to not just accept it and learn it, but to challenge it.
Here’s an illustration. Some law & economists argue that statistical discrimination can render policing more efficient. This is based on a conventional economic argument and translates into the proposition that racial profiling on the highways can improve policing by increasing the overall search success rate. That’s normal science. It’s a relatively straightforward application of a supply and demand model. But the simple, normal model depends on some very questionable assumptions—one of which is that the different groups respond to policing in the same way, with the same elasticity.
It turns out that, depending on the comparative responsiveness of different groups to policing, statistical discrimination (i.e. racial profiling) may actually increase the amount of the profiled crime in society. That’s hardly efficient. But it requires a critical challenge to normal science. It requires that you challenge conventional wisdom.
That’s what we do best at the University of Chicago—which is why you hear about so many Chicago Schools. The Chicago School of Urban Sociology—you know, those concentric circles. The Chicago School of Economics. The Chicago School of Law and Economics. The New Chicago School.
You are the heirs of this institution. And I am challenging you to question these conventional schools and help create new ways of thinking about the law—whether it’s public interest law, intellectual property, corporate law or legal history.
And in that endeavor, never trust your professors. Always challenge them. Remember, they will be wrong, some day.
Here’s a final illustration of the maxim that you should not believe what you hear. You’ve probably been told a few times by now—I’ve actually witnessed one time with the LLMs—that you should be careful not to be a “flamer” or a “gunner” (you know, the person who raises their hand all the time in class). Don’t believe that. Every single one of you should be engaged in classes and workshops at all times, thinking through the questions, ready to answer them, participating.
The solution to the “gunner” problem is not what people tell you: only speak once in a while, don’t always raise your hands. No, the solution is that everyone should have their hand up. If everyone had their hand up, if everyone were engaged in the intellectual conversation, there would be no gunner problem.
You’ll learn, in equal protection analysis, there are two ways to solve an inequality: level down or level up. It’s an important, though sometimes disturbing lesson. Well, level up: that’s how you will thrive here at the University of Chica