The 2022 Midway Dinner
Professor Ryan Doerfler on How the Humanities Can Help Shape Legal Systems
Welcome to this year’s Midway Dinner! It’s so, so nice to see everyone here in person! So, my task here today is not only to congratulate you on having reached the midway point in your law school experience, but also to encourage you to think expansively about what remains of your legal education, and to “cross the Midway,” so to speak, taking a course in a disciplinary department like Philosophy or Economics or History. Great as we are here at the Law School, there is much more that the University has to offer in preparing you to be actors within our legal system.
It will come as no surprise to those of you who know me that I will sing the praises of the humanities specifically in helping one to understand and criticize the legal structures in which we currently find ourselves. Since the start of the pandemic, I have devoted myself mostly to the project of examining critically the place of the federal judiciary in the American legal and political order. From the start, this project has been deeply practical. Owing to various dramatic turns of event, from unexpected deaths to parliamentary chicanery, Americans as a political body are, as you know, asking seriously for the first time in nearly a century what the appropriate role of institutions like the Supreme Court is within American society. And as an active participant in that debate, I have drawn heavily not only upon my legal training in a narrow sense, but also upon my training as a philosopher. Moreover these, again, deeply practical efforts have benefitted tremendously from my being able to work with a coauthor who is trained both as a lawyer and a historian.
While I don’t want to bore you with the specifics of that research project, what I do want to suggest is that it shows an important way in which the humanities, specifically, can inform the decision-making of lawyers and of citizens as they reason about the shape our legal system ought to have. In particular, I want to suggest that the humanities can help lawyers and citizens to denaturalize the legal structures that they inhabit and operate within, rendering those structures objects of evaluation and criticism as opposed to aspects of our professional and personal lives that are taken for granted.
Thinking historically helps us denaturalize legal institutions in all kinds of ways. Maybe most obviously, looking at institutions over time lets us see that the role that they play is subject to change. With the Supreme Court, for example, although today we have become accustomed to that institution having a significant voice in most of the decisions that are central to our politics, during other periods the Court has been relegated much more to the sidelines, leaving such issues much more to elected officials or to citizens themselves.
Somewhat less obviously, adopting a historical perspective can help us observe meaningful continuities in our legal institutions, continuities that, once identified, may in fact help to undercut the narratives that serve to justify our institutions in their current form. Thinking once again about the Supreme Court, a great deal of that institution’s perceived legitimacy is grounded in its limited but meaningful protection of exploited populations in the mid-century. Taking a longer view, however, strongly suggest that that period of modest rights protection was anomalous, contrasting sharply with the Court’s steady history of protecting the interests mostly of the affluent.
Last, historical investigation can help us recover past traditions and modes of thought, letting us consider in turn alternate approaches to our current institutional order considered in an earlier moment but not pursued. Again, thinking about the Supreme Court, it has been remarkable to me the extent to which our current debate concerning the Court’s role has mirrored the debates in the 1910s and ’20s and ’30s, debates from which we can learn a great deal.
Turning to philosophy, that discipline invites us to ask, regardless of how things have been up until now, how they might be. It asks us, in other words, to imagine alternatives, and to develop arguments about how our legal institutions should be ordered. Tied to current debate about our legal constitutional order, philosophical reasoning allows us to ask what makes some aspect of a legal order “constitutional,” and, in turn, whether it is either necessary or desirable to continue to inhabit a legal system that assigns such significance to the distinction between “constitutional” and ordinary law. Similarly, philosophical reasoning allows us to consider how we should think about traditional legal notions like “rights,” asking, for example, whether rights are best thought of as protections against state actors enforced by courts or instead as affirmative guarantees to goods and services articulated and provided mostly by democratically accountable officials pressured by popular movements.
To be clear, I do not mean to suggest here that philosophy or history are unique in helping us look critically upon the legal institutions we have today. Insights from political science or anthropology or even literature all help us as lawyers and as citizens think about how things might be and, just as important, how we might get from here to there. And, to be fair, the same is even true of disciplines like economics, though at this institution I think it is fair to understate the importance of that discipline at least for one evening!
Having said all of this, you might be asking yourself at this point, what does this have to do with me? While it may be true that some lawyers might benefit from taking a humanistic stance when thinking about our legal institutions, I am only a law student and soon will be a junior attorney working on issues much more mundane than whether or how to reform the Supreme Court. With that concern in mind, let me close by suggesting two reasons why you as law students or as junior attorneys have far more agency in our legal system than you might think, and in turn why it falls upon you to think critically about the institutional spaces you occupy.
First, especially in the age of social media, the barriers to entry to being an effective participant in public discourse are substantially less. On topics previously reserved to constitutional law professors and high-ranking officials, students, law clerks, and junior attorneys are making profoundly impactful contributions through ambitious law review notes and articles (articles selected by students, importantly), and maybe even more so through popular writing. Given the potential for bold and exciting ideas to go viral, even legacy media has shown a real appetite for writing by junior and even aspiring lawyers, who are much more likely to question rather than validate our existing institutions, and this is to say nothing of newer publications that are much more inclusive in terms of the authors they publish. What this means is that, in this new media environment, you today are in a position to weigh in effectively on matters of public debate. And with that opportunity comes real responsibility. It means you have little excuse not to think seriously about whether our existing legal institutions are inadequate or even oppressive and whether a better institutional order might be possible.
Second, in addition to lofty institutions like the Supreme Court, law students and junior attorneys are especially well situated to think critically about the legal institutions that they interact with every day. In recent years, some people in this very room and many like you have been critical voices in calling for a reexamination of legal education as well as working conditions for summer associates, law clerks, and junior attorneys. Rather than wait for some more senior lawyer to decide how their legal institutions ought to treat them, these young lawyers and law students have worked collectively to claim greater control over their professional lives. As a teacher and, frankly, as a person, it is that sort of action by young attorneys that I find most inspiring.
With all of these opportunities in mind, I hope it is obvious why thinking critically about legal institutions is relevant to you. And whether this involves taking a course or courses in philosophy or history or what have you—which, again, I encourage you to do—what I want to emphasize most is that these sorts of questions are for you, not for someone more senior, and so I urge you to think of yourselves as having not only the opportunity but the responsibility to critically evaluate and to reshape the legal institutions that we have.