The following remarks were delivered by Assistant Professor of Law Alison LaCroix on February 9, 2011, at the Midway Dinner, an annual event honoring the Law School's second-year students.
Good evening. It’s an honor and a pleasure to be with you tonight on the Midway, at the Midway Dinner, at the constructive midway point in your time at the University of Chicago Law School.
In true historical fashion, let us begin with a text.
The text I have in mind is about midways, but it’s also about beginnings and endings. When I was in my first year of law school, one of my professors gave a speech that changed my entire outlook on law school and the project of learning to be a lawyer. This was back in the roaring ’90s, before the Great Recession, Facebook, IPhones, Toyota Priuses, or molecular gastronomy (although we did have the Internet, sort of – but not in class; and most of us still carried around spiral notebooks). So things were different. But let me try to recapture some of what the professor said.
It was the last day of classes before fall break, that halcyon week in which we first-years hoped to catch up on our briefing of cases, which had lagged since about the first week of class (and which, in all honesty, would probably continue to lag for the remaining three years); to digest the lessons of the canned memo and gird ourselves for the rigors of the open memo; and perhaps even to try to figure out why we seemed to spend so much time in torts class talking about insurance, horses run amok, and fields of flax. I think a few of us are still trying to sort through some of those issues to this day.
Some of us might also have had more diffuse hopes involving taking stock of the three months we had spent in law school so far. Three months didn’t seem nearly long enough to capture everything that had happened – and yet what just what had happened to us?
And so, in the last hour of the last day of class before we were released to our rendezvous with Snackwells and Emanuels, my civil procedure professor read aloud a section from Mark Twain’s 1883 memoir, “Life on the Mississippi.” It’s called “Two Ways of Seeing a River,” and, in relevant part, this is what it says:
Now when I had mastered the language of this water and had come to know every trifling feature that bordered the great river as familiarly as I knew the letters of the alphabet, I had made a valuable acquisition. But I had lost something, too. I had lost something which could never be restored to me while I lived. All the grace, the beauty, the poetry had gone out of the majestic river! I still keep in mind a certain wonderful sunset which I witnessed when steamboating was new to me. A broad expanse of the river was turned to blood; in the middle distance the red hue brightened into gold, through which a solitary log came floating, black and conspicuous . . . .
But as I have said, a day came when I began to cease from noting the glories and the charms which the moon and the sun and the twilight wrought upon the river's face; another day came when I ceased altogether to note them. Then, if that sunset scene had been repeated, I should have looked upon it without rapture, and should have commented upon it, inwardly, in this fashion: "This sun means that we are going to have wind to-morrow; that floating log means that the river is rising, small thanks to it; that slanting mark on the water refers to a bluff reef which is going to kill somebody's steamboat one of these nights, if it keeps on stretching out like that; . . . the lines and circles in the slick water over yonder are a warning that that troublesome place is shoaling up dangerously; that silver streak in the shadow of the forest is the 'break' from a new snag . . . that tall dead tree, with a single living branch, is not going to last long, and then how is a body ever going to get through this blind place at night without the friendly old landmark?"
No, the romance and the beauty were all gone from the river. All the value any feature of it had for me now was the amount of usefulness it could furnish toward compassing the safe piloting of a steamboat. Since those days, I have pitied doctors from my heart. What does the lovely flush in a beauty's cheek mean to a doctor but a "break" that ripples above some deadly disease? Are not all her visible charms sown thick with what are to him the signs and symbols of hidden decay? Does he ever see her beauty at all, or doesn't he simply view her professionally, and comment upon her unwholesome condition all to himself? And doesn't he sometimes wonder whether he has gained most or lost most by learning his trade?
Twain was talking about steamboat pilots on the Mississippi River in the nineteenth century. He was also, of course, commenting on professionalization; the coming of a new technological and industrial age; the westward expansion of the United States; and, yes, maybe even the rise of strict liability.
But as we sat there in civ. pro., surrounded by casebooks and Snapple bottles (but again: no laptops), we were transfixed – not by the allusions to interstate commerce, but by the language itself, and by the simultaneous prospects of thrill and loss that seemed to emanate from Twain’s words. Were we the riverboat pilots, doomed to lose our appreciation for the “long, ruffled trail that shone like silver”; the “sombre shadow” of the forest; and the “dissolving lights” that “drifted steadily” with “new marvels of coloring”? And what would we get in return for giving up this ability to respond with human emotion and appreciation to the world around us? Knowledge and a useful trade, certainly. But perhaps also an inability really to see the river or the forest or the rays of the sun, and instead a constant, gnawing suspicion that the silver streak in the shadow of the forest might actually be concealing a peril to one’s livelihood.
And this was both the exciting and the worrisome message of Twain’s observations. In the process of becoming riverboat pilots, was one inevitably destined to lose one’s sense of the river as anything other than a site of hazard and remuneration, with its own technical language and concerns? In becoming lawyers, would we necessarily have to give up other valued aspects of ourselves – our ability to write creatively and evocatively about the river, for instance, or our understanding of the political, social, economic, scientific, and philosophical influences that had determined the very course of the river? Had law school already turned the legal river into a problem to be solved, rather than just one stream amid a broader system of humanly constructed tributaries that shaped and made sense of the world?
Right now, in the middle of your law school career, you may well feel as though it’s all you can do to cobble together the skills to keep the steamboat afloat, let alone worrying about your non-appreciation of the riparian foliage. And in some ways this is a good thing. Here at University of Chicago Law School, we think law matters, as law, as a definite category of action and thought. Law isn’t simply a dependent variable on which other, ostensibly “real” forces act, and which is defined by those other forces (be they social, economic, political, or something else). On the contrary, legal ideas and debates help to shape those other forces, which in turn feed back into the next phase of law-creation.
This is what the legal historian Morton Horwitz meant when he referred to the “relative autonomy” of law: law is autonomous in the sense that it has its own internal logics, values, and analytical modes. It’s not just what comes out of the social/economic/political/cultural machine when one party sues another at a given point in time. Legal ideas are an input, not just an output. But law is only relatively autonomous because the range of possible legal answers at that particular moment depends on the wider social/economic/political/cultural landscape in which contemporary actors are operating.
So law is not simply a technique for piloting the river. In an important sense, law helps define the river: its boundaries, its owners, its relation to the state, its permissible uses. But law doesn’t create the river. And this is where we come back to the Midway.
When Daniel Burnham and Frederick Law Olmsted set out their plan for the Chicago Columbian Exposition in 1893, their design called for a canal to run west from Jackson Park to Washington Park, linking the parks’ lagoons by way of a Venetian-style waterway, complete with gondolas. As you’ve probably noticed – I hope sometime before coming over here tonight – Burnham and Olmsted’s “magnificent chain of lakes,” as the plan termed it, was never developed. Instead, after the World’s Fair packed up (and with it the first ferris wheel, the first Juicy Fruit gum, and the questionable ethnographic pavilions), the Midway became what is known in landscape terms as a “fosse,” from the Middle English for “ditch” or “moat.”
So it turns out that our own Midway once had riverine aspirations. Which means that all of you have an opportunity to come over to this side of the would-be river (let’s not call it a moat) and rediscover the curves, images, heights, and distances that shape and channel the stream of law. For the next year and a half, you have a special opportunity to take classes in those other areas – whether in another language, in philosophy, religious studies, economics, political science, history, or any of the other world-class departments right here on our own campus.
Learning to think like a lawyer is one of the most important skills we can teach you in law school. But it shouldn’t mean that you can never turn it off, or that you have to lose the ability to think in other ways – ways you might have learned before you got here, that are valuable to you and to learning and understanding not just law itself, but the world in which law operates.
For many of you, the next year and a half are the last time you’ll be in school, in a full-time academic setting. Others may leave the law school for another program, or go into practice for a while, but then return to academia. By the time you leave the law school, you will have learned piloting skills to take you through the rivers of commercial litigation, mergers and acquisitions, negotiations, plea allocutions, status hearings, and, yes, even the occasional late-night document review session or stint at the printers. You will be equipped to ply the waters of the modern-day Mississippi River of law.
You are learning your trade and immersing yourselves in the language and customs of your profession. In the meantime, though, take this precious opportunity to remind yourself that the romance and beauty are still there, and it’s within your power to rediscover them.
Cross the Midway – ford the moat. Reacquaint yourselves with other disciplines’ ways of seeing the stream.
See you on the river.