The 2023 Midway Dinner
Congratulations to all of you! You are all well on your way to becoming legal professionals—skilled at parsing contractual, statutory, and even constitutional language—and to understanding the many different ways such language can be interpreted, and how to alternately make use of or avoid those ambiguities. Such wordplay or rhetoric is a basic and essential legal tool.
But law involves more than rhetoric and more than manipulating words. Being a lawyer must be about something more important than just being clever. It requires thinking about the world you want to create, whether through language or ideas. You want to think about where the arguments you are making will lead to in the end. Will it be to a world you are happy to live in, or will you be part of some system that leads down the proverbial slippery slope to some dreadful policy outcome? You must know not only what the words and arguments you craft will do in the short term for the parties engaged in the instant transaction or dispute, but also how they will shape people’s behaviors and social institutions—and even affect your clients’ interests—in the longer term.
Fortunately for you, that is the sort of thing that the University of Chicago Law School specializes in. We get you to read, to think, and to learn some law and economics, some philosophy, some political science, some history, and even some tax—yes, that’s surely the most important thing of all—in order to give you some perspective on how people act in the shadow of the law. The actions that law generates are not always what the drafters of laws and documents, nor the decisions that come from judges, expect or want. Unexpected consequences can come from ambiguity but there is more to it than that. They can come from cultural differences, from things that other disciplines know more about than we do, and from what transpires in the unanticipated future. Understanding the non-legal factors impacting a situation may help you identify the likelihood of unintended consequences and plan accordingly.
You have probably heard the expression that “if your only tool is a hammer, then every problem looks like a nail.” That is probably unfair to carpenters, but it’s a nice expression. Another is that surgeons think every problem can be solved with an operation, but let’s not get started on the price or efficacy of our health-care system. The obvious point is that to many attorneys, every problem, whether private or social, calls for a lawsuit or a cleverly constructed statutory scheme, or a long contract or other document. Law (words) can do it all. But, just as banging a hammer can put a hole in a wall and surgery can exacerbate an ailment, so too can well-intentioned laws hurt a client or ruin a society. It is hard to believe, but even tax laws can make things worse! What works on paper may not work in the real world. What works in one jurisdiction may create havoc in others. Constitutional safeguards can be undone or can simply be unsafe when an unexpected political climate develops. Lawmakers can be corrupted and entrenched.
Law matters, but it is not the only thing that matters. You do not want to be confused by or ignorant of those other things, for knowing about them will make you more effective lawyers. This is true whether your future finds you in private practice or public interest law or government. Such knowledge will also help you to be a better citizen and voter—and if you decide to spend part of your career making law and policy as a judge, a legislator, or the head of an institution, it will make you more effective in those roles as well. We need the people in charge to have thought about what law and other tools can do to solve big problems, or whether to let people or markets or other countries show us how to solve them. We want that person in a position of power to know how to experiment, how to invest public funds, or explain why a proposed investment is wasteful. You are lucky enough to be at a university, and especially at a law school, where such preparation is the name of the game. It will be difficult to gain this knowledge yourself once you graduate and are faced with various personal and professional commitments. Once you are a legislator, a judge, or the head of a law firm, not to mention serving your local community and family at the same time, it will probably be too late to suddenly learn about merits and demerits of different approaches for solving these problems. Time is a limited resource. So use your remaining time here not only to immerse yourself in the rhetoric of the particular laws about which you think your career will revolve, but also to learn about how to interpret empirical studies, how to understand foreign affairs, how to think about the impact (or not) of boycotts and labor unions, the likely solutions to mental health problems, to immigration issues, and to the effect of poverty.
Here is the thing: You may be Midway in your legal education, but you are already Midway on the path to a position of responsibility. You may think of yourself as just starting out, a mere peon struggling to pay off your student loans, but before you know it, you will be in charge and making the decisions. You have no idea now what it is that you will be asked to run, but I guarantee you that if you stay educated and involved, then before you know it, you will be in a position to make the sorts of decisions that you now find easy to criticize or ignore. The very training that is making you a better law student and lawyer will serve to make you a better leader, so long as you continue to expand your horizons and equip yourself to juggle personal and social values and make intelligent opinions. Along the way you will also be a more interesting person and valuable friend. Besides, it’s fun to know what is going on.
And how will you do all this? It is easy to say “learn more” but harder to say how to organize the knowledge you can acquire here. One way to think about organizing your knowledge is to think about disparate patterns of legal regulation, and to contrast their strengths and weaknesses. In your first year, for example, you learned to see rules and standards everywhere, and about how some situations called for one while others the other—and some seemed unaffected by both. Another might have been carrots and sticks. When do you want to improve things by offering rewards and when by threatening fines or other penalties? Just as you can get a child to do homework by offering a carrot or a stick—and you will learn which is more useful for a given child—so too, you have started thinking about controlling crime and police officers and schoolteachers and bellicose foreign countries with some mixture of carrots and sticks. You can think of that metaphor about hammers and nails again. An expert with a hammer has reason to think that everything can be solved with that tool. But you will soon be a person who needs to know when to call on the hammer and when instead to call upon a wrench. When should the government subsidize something and when should it rather tax (there I go again) the opposite of that something? When should it close a border and when should it subsidize or protect some immigrants it wants or seeks to protect? When should your law firm give bonuses to people who bill more hours or help train new associates, and when should it, instead, fail to promote lawyers who do not contribute in these areas, and when should it even encourage them to look for other work? The list goes on and on. Once you see such dichotomies, you will gather knowledge through experience or empirical work about how to mix various, and often opposing, tools. And to do this well, you need to learn about many tools and how they worked or did not work in given situations.
Here is another dichotomy, more than loosely related to rules and standards. The rules that are made, whether by parents, by law firms, or by formal law itself, can be detailed or a statement of general principles. An advantage of the broad-brush approach is that it is more easily adapted as the world changes. An advantage of detail is that it creates certainty in the short run. Some of your clients will want results that profit them tomorrow, while others want results that appear to help them as repeat players. They would rather pay you once than engage you every year. But which one do you want in your remaining time at our Law School? Do you want to learn the minutia of an area in which you practice? That might, after all, impress the senior lawyer for whom you will work, and it might teach you how to read statutes and come up with new detailed rules or argument in our changing world. But perhaps you would rather be a generalist. You can think about general principles and move from course to course in order to see that the principles you have learned here are found everywhere. A law firm and a good government, and certainly a public interest team, need both. Life is in the details, but the details come from a choice among approaches. My intuition is that the more you find yourself in the weeds, the more you should take advantage of the next opportunity to step back and think like a generalist. But the more you look at the big picture, the more you should find occasions to learn about some details. When it is your turn to run things, you will have learned to appreciate both.
All this will be easier if you take time to learn more about how the world works. You will need some appreciation of history, of sociology, of psychology, of economics, or empirical methods, and just about everything you can find here as well as on Wikipedia.
So, try to imagine that any day now you will be invited to be a member of Congress, or the person who runs the Chicago public schools, or a judge who decides who should have standing or how damages should be allocated after a disaster, or the managing partner of a law firm that is about to develop a new parental leave policy. You cannot possibly know in advance which of these positions will be yours nor exactly what problems will come your way when you are there. But you will be there, and you need to keep improving your ability to work on both currently known and currently unforeseen problems. Our future will depend on you, so be prepared! Take the courses we offer you and don’t just think about equipping yourself for your first job after law school, but rather think about educating yourself for the jobs ahead that are now almost unimaginable.
For one last time, though this evening is advertised as Midway in your Law School education, it is also Midway toward the point at which you will be making decisions or running experiments that can alter the world around you. Please get to work! After, of course, a toast to you, the JD class of 2024, for reaching this Midway point.