Remarks by Anthony Casey, Assistant Professor of Law
Entering Students Dinner
September 24, 2013
Welcome to the Law School and congratulations on the beginning of your legal career.
The benefit of giving a talk like this is that I had time to prepare my remarks. I note that because the ability to prepare what you want to say in advance is a rare privilege in this building. The Socratic Method that defines this law school’s curriculum is based on the opposite premise: Calling on people and asking questions they do not quite anticipate, and forcing them to answer immediately.
Indeed, at several points this year each one of you will be called on in class. And while you may know the right answer, there will be times when you are thrown off guard and you will say the exact wrong thing. I assure you that this will happen, and 10 minutes later when you come up with the perfect response, you will kick yourself.
Why do we this to you? You may think that it is for our own entertainment. That is only partly true.
We do this because it is the constant state of the lawyer to be called on: to be called on to give an answer to a judge, to be called on to advise a client, to be called to respond to some preposterous accusation from opposing counsel, to be called on to solve an emergency at two in the morning. And when you are called on you must respond immediately, on the fly.
We will prepare you for this. You will do it over and over again. And you will get better at it. And the better you get, the less often you will experience that, “I wish I had said x, y, and z” feeling. But as good as you get, it will still happen occasionally, even 11 years after you graduate law school.
I know this. I had one of those moments last week at a conference. I was on a panel and was hit with a question to which I didn’t give the answer I wanted. I stewed over it for a few days. I thought about it on the painful ride home. It was distracting me from preparing this talk.
Then it hit me: Tonight I have a captive audience, there are no questions, and I had time to prepare. So now I can force you to listen to the answer that I should have given.
To give you a little background, the conference was about the role of hedge funds and banks in the financial crisis. Now don’t worry, I am not going to bore you with deep financial theory. I am just laying some groundwork. The conference was mostly attended by hedge fund analysts and hedge fund lawyers. The audience members had a lot of money at stake. It was a very lively debate. I had just finished explaining that lenders often use negotiation leverage to exercise certain rights against bankrupt corporations.
I viewed the statement as uncontroversial, but an analyst who works for one of these lenders jumped up and challenged me. “I do this for a living,” he declared. “And none of the things you say lenders do is provided for in the contract. Are you suggesting that we exercise rights not in the contract?”
I was surprised by the question and responded with a tentative, “yes.”
He explained that I was crazy and that his lawyers never did such a thing. He was wrong. But I will return to that later.The issue for now is, what should I have said? And what in the world does that have to do with you?
Well, I wish I had asked him what he meant. What did he mean when he said that he does this for a living? He reads these contracts for a living. He does this because he needs to know what he has agreed to and his lawyers no doubt tell him he has to. And so he believes he does what lawyers do for a living. He understands the law because he has learned how to read a legal document. He may have even read a statute or two. That perception captures one of the most fundamental misunderstandings of what lawyers do and what law school teaches us. This view is widely held.
If you believe the op-ed pieces in newspapers and the blogs spread across the Internet, you may think you are here just to learn how to read law and to prepare to take the bar exam in three years. That view is a surefire way to waste your time here. People quite ignorant of what a good lawyer does will tell you that law school should be shorter, that law school should teach students how to pass the bar, that law students learn too much theory.
I am going to let you in on a secret. The bar exam is a memory test. You had the skills to take the bar exam when you were a freshman in high school. You certainly don’t need three years to prepare for it. That is true. But passing the bar does not make someone a good lawyer. It just makes them a lawyer. And if you think that is enough, I can direct you to a thousand websites and jokes about things that went wrong when “just lawyers” were trusted with important problems.
What differentiates good lawyers – graduates from this law school – is the ability to advise clients about what those laws and documents actually mean in the real world, how they affect human interaction, and most importantly, how those effects can be changed.
To prepare you for this – and we do prepare you for this – we will teach you to explore how rules, policy, and human behavior interact. It is precisely for this reason that law school is (more than any other area of study) so interdisciplinary. You cannot understand the rights that a lender will exercise against a bankrupt corporation without understanding finance, economics, psychology, political theory, and philosophy, to name a few.
All of that is to say that the world, or at least those who are most noisy on the Internet, misunderstand both the practice and the study of law. They will tell you that lawyers create chaos and academics don’t care about the real world. Do not be taken in by this.
Take, for example, the conference I was at. Later in the afternoon, the analyst posed the same question to a bankruptcy judge – a judge who most certainly does do “this” for a living. The judge simply responded by saying, “Who cares what the contract says?” The great irony, of course, was that the judges and the academics – the lawyers – were talking about what happens in the real world and the so-called "on-the-ground" bankers wanted to talk about words on paper.
This, I hope, sets a bit of context for what we are now starting together. You see, your legal practice starts today.
Every time you question a classmate and every time you challenge a professor in this school, you are changing the way they and the world think about ideas of law. These are ideas about what happens in the real world. But you are developing a theory to explain that world, rather than some anecdotal observation that can be demolished in one sentence by a judge.
And whether you spend your out-of-class time in your second year working at a clinic, writing an article, or attending academic workshops, people will be listening to your ideas about the law in the real world. They will be listening especially closely precisely because you have come to the University of Chicago Law School.
I am sure you have heard many times that Chicago is about ideas and you will hear it many more times. It is true. That is what drives this place. This is why today is so exciting. It’s why the arrival of a new class is a big moment for us on the faculty. We love ideas. We now have 200 new brilliant perspectives to challenge us and give us even more ideas. And you should know that when you focus on the importance of ideas, people inside and outside of this building will say to you, “that is very Chicago.” Embrace that.
I would rather be at a school that is about ideas than about terms any day. Ideas will change the world in a way that contract terms and statutory language never will. That is why we pride ourselves on being the law school that is known more than any other for producing that world-changing product.
Now, there are downsides. You will be challenged and you will be frustrated. There will be moments when you doubt what I have just said. You will be in my class and think to yourself, “I will never use this in practice.” Fight that thought. Understanding ideas is the practice of law.
To demonstrate, I have a confession: I teach bankruptcy law. I write about bankruptcy. I represented bankrupt corporations. My confession is that I never took a class on bankruptcy in law school. People often say to me, “so you learned it on the job.” That is absolutely not true.
I learned how to be a bankruptcy lawyer as a student on this campus. I learned it in my Contracts class, in my Elements class, even in the Religion class I took at the Divinity School. Those were the places where I learned how to fine-tune my ideas, and how to think and answer questions on the fly.
As you may have sensed from all of this, I have a strong view that the line between the study and the practice of law is artificial. Students practice the law and lawyers study it all the time. The only real difference is the constraint on your focus.
You have the next three years to think about the law in an unconstrained way – not what it is, but what it means in the real world. You will have the rest of your career to research statutory provisions. And remember those provisions will be amended, but human behavior will not.
So you should revel in this time to debate, study, and probe what this all means. Being a lawyer is exciting but it is exciting in different ways. When you are a lawyer, you need to be on autopilot. You need to intuit the meaning without discussion. And that is what we are preparing you for.
But you will miss the times when you could discuss and reflect deeply on these things with your classmates for hours without constraint.
On that note, let me leave you with one final story. As I said earlier, the analyst was wrong about what his lawyers do. I know this because I am actually friends with one of the lawyers who worked with his firm in the past. She was a classmate of mine. She sat next to me in virtually all of my classes. She is one of the most aggressive lawyers I know. I am not exaggerating when I say that she tells her kids bedtime stories about happily confiscating cash from bankrupt corporations. I would be terrified of her if she wasn’t my wife. Who am I kidding? I am terrified of her.
So I asked her why this banker would think that the lawyer’s job is so technical and contract terms so sacred. Why would he think the lawyers never did anything outside of the contract?
Her response was telling. “This is why I miss law school,” she said. “You can’t ponder and debate with your client about the dynamics that are driving the transaction. You just have to know them. Most of the time the clients just want their money. They don’t have the time to hear about the grand theory and behavioral psychology that got you there.” And you can bet if they did, she would bill them for it.
In the end, you may be more sympathetic to this banker. And you may be skeptical about everything I just said. You should be. That’s the point of this whole endeavor. I would be disappointed if you all agreed with me.
All I will say on this for now is that I look forward to debating the point and many others with you over the next three years, and decades beyond that. But if you do take me up on that offer, please remember that I cannot guarantee that I will always have my perfect response prepared.
Thank you and welcome to the practice of law!