Henderson Addresses Class of 2010

M. Todd Henderson, Assistant Professor of Law, Addresses the Class of 2010
M. Todd Henderson
September 19, 2007


On behalf of the Dean, the Faculty, the Administration, and our over 100 years of alumni, welcome to the University of Chicago Law School family. I don’t use that term lightly. Look around you. At the very least, these couple hundred people will share more of the next part of your life than almost anyone else. While studying the Rule Against Perpetuities or the Egg-shell Skull Rule at 3 o’clock in the morning, even total strangers will seem like family. Especially when the language and type of reasoning you will come to use will seem increasingly foreign to your real family.

This is a good thing. You are here to become something different than you are today. From this day forward, you will look at the world in an entirely new way. Where others will see noble idealism, you will see a public choice story; where others will see justice and fairness, you will see incentives and signals; and where others profess faith in markets or the government, you will bring a skeptical, probing eye to both.But there are other reasons I use the word family. This is a special place, and we hope that you will think of it as home. Small, proud, and distinguished among American law schools, there is something great about being a Chicago lawyer. We take tremendous pride in our graduates, and, after your time here, we hope you will feel the same way about this place. When I return from trips, the Dean always greets me with “Welcome Home.” He isn’t just being cheesy. There are places in our lives that we can always return and receive a hearty welcome and a wave of nostalgia. After today, this will always be a place like that for you.

Homes are places where you learn, where you grow, where you are challenged out of affection and with hope for success. Like home, this an environment where you should take risks to explore what you can become. And like parents, we want the very best for all of you, without exception and without qualification.

So, let me beat the Dean to the punch – welcome home.

* * *

With that belabored welcome out of the way, let me turn to the two points I want to make tonight. When Dean Levmore asked me to welcome you, I did two things. First, I asked several of my colleagues for advice. Second, I tried to recall my own experience with this dinner. These will serve as a framework for the two ideas I want to leave you with tonight.First, to the advice I got. Lots of the advice I got was frankly not very useful – “be yourself”, well it is hard not to be, although I do try from time to time; “be funny”, this is not something you can“be”, you either are or are not funny.

But one piece of advice I got was incredibly valuable.Professor Baird, a prominent bankruptcy scholar, but more importantly someone who each of you will come to know and love, told me: “Henderson, whatever you do, do NOT do a magic trick.”

What seemed at first like a joke turned out to be serious advice. Apparently one of my predecessors on this podium did a magic trick—something about burning an ACLU card, which for an ardent and outspoken liberal was in some way ironic—and it went over quite poorly. The advice, however, did not have its intended effect. From then on, I thought of little else but how I could work a trick into my speech.

[Perform disappearing scarf trick.]

Believe it or not, this trick is a metaphor for your law school education. Let me explain by violating what my magic teacher, Bafflo’ Bill, told me is the first rule of magic: never tell the secret.

As a threshold matter, for those of you who might be confused, I didn’t tear a hole in space-time. This trick is called sleight of hand, and it has several key elements.First, the performer sets up the trick with context that demonstrates its importance while purporting to use only basictools to accomplish it.

Second, a volunteer from the audience is used, and this makes some uncomfortable: Should I raise my hand? Will other people think I’m a gunner or a brown nose or even a plant? What if I screw up? Although perhaps well meaning, the volunteer often has the role of victim—someone designed to play an unknown role in the little play that is about to transpire.

Third, the performer distracts the audience with rhetoric and extraneous information that appears to be germane to the issue at hand, but is actually just meant to obfuscate and distract from the real essence of what is going on.

And finally, the magic happens. The audience sits in awe, well maybe not awe, but at the very least bewildered amusement, at what happened. This is where the performer’s role stops.

The audience then goes away, and the real value of the trick starts. The show is intended to be a stimulus to the true work that needs to be done, and every magician hopes that the audience talks about the trick in the hall, on the ride home, under the covers, and for weeks to come. How did he do it? Did it go up his sleeve? Did it go under his watch? Where there multiple scarves? And, perhaps best, could I do it?

At that point, some might be inspired to actually figure out how to do it, to try it themselves. Research then happens, followed by practice, and then, voila, the trick is yours. The real value of the show for those in the audience who want to be magicians is learning—learning how to stand in front of an audience and, with the tools you have, make a convincing presentation. To learn not only the rhetoric and the style, but also something about the underlying trick itself. This is a law school class in a nutshell. The professor will stand before you armed with knowledge and skills you don’t yet have. She will ask one of you to participate in an inquiry with her. The question will seem simple, but she will use tricks, traps, sleight of hand, and tools beyond your ken to force you to see things you haven’t before. Hopefully she will awe you and inspire you to solve the problem on your own.

Because, as you will soon see in your pursuit of the law, there is an easy answer about how the trick is done—in this case, a plastic thumb. You too can do this trick—it is just a trick—but it takes work. If you don’t keep your eye on the scarf and don’t think creatively about all the ways in which the trick can be accomplished, it seems like magic. But it isn’t at all. There is no magic. Remember that. What appears to be magic is just work and creativity.

Law is like this too. In all legal arguments there is rhetoric,hand waving, distraction, and then, behind it all, essence. Your professors (and eventually your opponents) will stand before you with their plastic thumbs, and your job is to figure out what they are. To see through the rhetoric and to find and expose to the real core—this is what it means to solve problems like a lawyer.

Our job is not to trick you, and this is where the magic analogy breaks down a bit. A magician might be satisfied at the awe generation, since not everyone in the audience wants to be a magician. What we want, what we demand, is that you apply the awe. To use it as inspiration to figure out how to do it yourself.Law, like life and like magic shows, is pretty simple—it requires only that you be inspired, work hard, and think on your own.

From that, all else flows.

So, when you are sitting watching Richard Epstein or Cass Sunstein or any other of my colleagues work their magic, keep in mind that you job is to understand that there is a plastic thumb there somewhere, to learn to use it, and to deploy it to awe others.

On to my second point, which flows from the other thing I did when asked to deliver tonight’s address: I searched my memory banks for my own entering students dinner 12 years ago. To my surprise and to the credit of the speaker and the speech, I remembered it vividly.

Martha Nussbaum, a distinguished philosopher who had recently joined the faculty, spoke with great eloquence about an Indian woman, educated in law at Oxford, who returned to her native land to represent women being oppressed by men. She could not initially fulfill this ambition, as she was, well, oppressed by men, and was unable to find a job as a lawyer. She eventually did, but ended up defending a maharaja’s elephant against damages done to a neighbor’s bamboo crop. The lawyer eventually found her way out of this job, another form of oppression it seemed, and into a life helping poor, rural women.Professor Nussbaum was urging us aspiring lawyers, full of spit and vinegar and idealism, to try to change the world. All of us gathered here tonight believe in this goal – we must, otherwise this whole enterprise is just conversation.

In addition to supply, there is also demand. As we look out at the world we inhabit, there is much calling for change, and many of you are thinking, who better to change it than me.

The stars are truly aligned, because our job is to give you the tools to be able to do this. After your time here, whether it is one,two, or three years, we expect each and everyone of you to be able to make the world, whatever part you choose to inhabit, a better place.

But, before we all go out and storm the barricades, let me give you a caveat. My inspiration comes from an unlikely source—pillows at my grandmother’s house in West Virginia that were knitted with clever little sayings. This particular pillow, which sat on my grandparent’s plaid couch, tucked in the corner of their breezeway, said: “God grant me the courage to change the things I can, the serenity to accept the things I can’t, and the wisdom to know the difference.” That is actually pretty great advice, especially coming from a pillow. But, like most advice, it is wrong,or, at the best, almost right.

The part I object to is not the serenity to accept things beyond our power or the ability to know what we can and cannot change, but the courage part: that is, “God, grant me the courage to change the things I can.” Courage is good, but sometimes the best and most courageous thing to do is to NOT change things you have the power to change.

The status quo is the status quo for a reason. What seems to us to be irrational, unfair, inefficient, wrongheaded or just plain stupid, may actually be vital and important for reasons beyond our comprehension. And, changing it, even out of a purely benign motive, may cause more harm than good. The key to being a great lawyer is knowing when the status quo is good despite seeming less than good; knowing when to make small incremental changes in the face of universal calls for revolution; and, importantly, knowing when change is unquestionably a good thing.

In one of my favorite works of contemporary fiction, Angle of Repose, Wallace Stegner captures this concept perfectly. The protagonist, Lyman Ward, tells his friend, who is engaged in a personal revolt against society, to moderate his radicalism: "Civilizations grow by agreements and accommodations and accretions, not by repudiations.”

In her book Democracy on Trial, University of Chicago scholar Jean Bethke Elshtain echoes this sentiment: "culture changes through the ongoing engagement between tradition and transformation. If we lose tradition, there will be no transformation. Only the abyss. "Change is important to making the world a better place, but often it can lead to making the world a much worse place. So we come to a necessary corollary to the pillow wisdom. Don’t change the things you can; change the things you know based on hard evidence should be changed. We must first understand why things are the way they are. Deeply understand the costs and benefits of change, and recognize the limits of any individual’s knowledge in the face of complex and long-lasting behaviors. Only if we are humble and dogged in our approach can we truly fulfill the mission of doing good.I’d like to leave you with two of my favorite quotations, both of which have a connection to the Law School. The first comes from Theodore Roosevelt, the 26th President of the United States. In1903, Roosevelt spoke at the laying of the cornerstone for Stuart Hall, the old home of the Law School across the Midway. The words the president spoke that day are lost to history, but I would like to think that he used this place to deliver one of his most memorable lines: “Far and away the best prize that life offers is the chance to work hard at work worth doing.” There is no place I know where those words find a better home. The University of Chicago Law School epitomizes this creed. You will work hard here, but only because the work is worth doing and the end result is the betterment of your own mind and the hope for a better society. When you feel daunted by the new language, new approach to problem solving, and new adventures that await you in the law, feel lucky that your substantial mental gifts have given you the opportunity to reap Roosevelt’s prize.

As for how you should approach your new studies, I’m reminded of the words of our former dean, Edward Levi, who wrote about the “life of reason”. In the dark hours after President Nixon’s resignation following the Watergate scandal, President Ford looked to Levi, then president of the University, as a source of integrity that could reinvigorate and bring back faith in the Department of Justice and the justice system. This is not surprising. Levi was a consummate lawyer’s lawyer, and, based on his distinguished record as an academic and dean, showed that he had, above all, impeccable judgment. Judgment is the most prized possession of any lawyer, and Levi had developed his in the intellectual combat that is our hallmark. His words about how to develop this trait are what we expect of each of you. All of you are here because you want to become great lawyers. We hope for this too. But we are ambitious, so we want more. And Levi’s quote tells us what that is:

“The life of reason requires clarity, intellectual rigor, humility, and honesty. It requires commitment and considerable energy. It requires that we ask questions, not only of others but ourselves. It requires that we not only examine the beliefs of others but those newly acquired doctrines which we are all prone to believe because they are held by the group we favor, or . . . which we are certain cannot be wrong. Habits of thought and searching intellectual honesty must be acquired and forever renewed.”

With that call to arms to pursue Levi’s “life of reason”, go forth to your classes, to your books, to your colleagues, and to the law. And remember, whether you think of yourself as destined to defend elephants or poor peasant women, the trick is finding the plastic thumb.

Good luck!

M. Todd Henderson