Graduation 2014

Remarks of Nancy A. Lieberman

Graduates, Parents, and Loved Ones, Dean Schill, Members of the Law School Faculty, and Honored Guests:

Before I begin this Commencement Address, I want to reflect on the loss we have all suffered due to the passing of Laura LaPlante and the injuries suffered by your classmate Michael Wasil due to a drunk driver. I would ask each graduate to do an act of public service this coming year, specifically, in Laura’s memory and to be there and help Michael to recover from the injuries he has sustained. It was the overwhelming help and love of my family, friends, and colleagues at work that gave me the strength and the will to surmount my injuries and, therefore, to be here today, and I hope you can do the same for Michael.

Being asked to give this Commencement Address is the greatest honor ever bestowed upon me, and I am absolutely thrilled to be here today to share this joyous occasion with the Class of 2014, their family and friends, and of course the wonderful faculty of the Law School.

First, I would like to speak directly to our graduates. No one just ends up at the University of Chicago Law School by accident. It takes an incredible amount of discipline and hard work to be admitted as students. So, if ever there were a time for you to luxuriate—today is that day. You have persevered, endured, and triumphed through three years of Socratic teaching and come out on the other end wiser, more competent, and ready to take on the world and make it a better place—and you will do just that!

As a first-year law student, I had a very difficult time dealing with the Socratic method of teaching—I could not understand how my terrific professors would speak English words, yet it was Greek to me. As a matter of fact, in my very first torts class with Professor Epstein during the first week of law school, I remember that he asked dozens of students what a tort was and no one seemed to have the right answer. I was mortified when he said to me, “Miss Lieberman … What is a tort?” I had no idea and simply blurted out, “well, it depends … strawberry or apple?” While the rest of the class burst out in laughter, Professor Epstein just stared at me … for what seemed like ten minutes, but was probably five seconds!

The bookend to this story also involved Professor Epstein, but this time it was near the end of my third year at the Law School in a corporate tax class. By this time, I had absorbed what Chicago had to offer me and was firing on all cylinders when Professor Epstein grilled me with questions regarding a tax case called Waterman Steamship. He kept asking me questions, and I kept answering them. Finally, he walked up to where I was sitting, handed me the chalk, and said in his wonderful voice “Miss Lieberman, here, you know so much about this subject, why don’t you teach the rest of the class?”

It took me a while to figure out that Socratic teaching was perhaps the greatest gift the Law School gave me because it forced me to spot the issues and think on my feet—which are essential elements for success no matter what you do after law school. Often, I explain this phenomenon as analogous to a buzzer going off in the back of my head, and this signal causes me to automatically question and critically think about what I am dealing with at the moment. It is as though I possess a special power which enables me to dissect issues and solve problems. I’ll bet you thought lawyers like me just dropped from the sky, fully formed. Nothing could be further from the truth. Rather, Chicago formed me and you will grow to recognize over the years that it also shaped you!

But for now, as our latest graduates, it is both party time and parting time—which means going into the “real world” and leaving the cocoon of the Law School. At this moment, you must think and feel that this is your day, your celebration, and your chance to savor the moment and remember it for the rest of your lives.

I believe that few of our graduates would be here today receiving their degrees were it not for their family and friends in the audience who encouraged them to reach for the sky academically and intellectually—and by that I mean urging today’s graduates to study hard, stay focused, and remain curious about the world we live in. You have also provided our graduates with a comforting phone call or visit when college or law school seemed just too tough to endure, and so family members and friends here today deserve a special acknowledgment because you provided the “special ingredients” of compassion and love which enabled the Class of 2014 to flourish as they have done.

Now, I would like to talk to you about what I call, “the white elephant standing before you” in this magnificent Rockefeller Chapel. Of course, I am speaking about the wheelchair that I am sitting in because I am a quadriplegic. About 61/2 years ago, on Christmas Eve Day 2007, I had a freak skiing accident in Colorado and broke my neck. It happened in an instant, but may stay with me the rest of my life. Truly, it is a weird condition to be in because you lose your independence, but you still have your brain power intact. Your mind says one thing, but virtually the rest of your body does something else.

People often tell me that I am courageous, inspirational, brave, heroic, and any other accolade you can imagine. What they are really saying is, “If this happened to me, I could not go on and I am amazed that you are able to do so.”

After hearing this several times, I thought to myself that I could either whine or drink wine and I decided that I would rather celebrate life and “drink wine.” When I was in the first stage of my recovery, I was visited from time to time by others who had had accidents that left them paralyzed. They had retired from their jobs and they rarely traveled away from their homes. Such visitors depressed and scared me to death but ultimately compelled me to do the reverse of what they were doing. There was no choice for me—I was going back to work, I was going to resume travel, and I was going to get back my life, no matter what effort it took.

At first blush, it was not so easy. I was told in the hospital that I would get back whatever feeling that was possible within the first six months of my accident. After that, I would have to live with what I had and should not expect more recovery.

Statistically, the numbers were not on my side. After five years, only about 20 percent of paralyzed adults go back to work. My goal was to go back to my merger and acquisitions practice at Skadden Arps full-time in one year after my accident. On January 19, 2009, I resumed my practice and was warmly welcomed back to Skadden. But, being out of the swirl of legal practice for one year had taken its toll on my practice. Several potential clients went elsewhere because I was not around to work on their matters. The economy was in shambles and clients were pulling in their horns and were working to keep above water in the “Great Recession.”

So, what should I do and how should I do it? Re-creating my law practice was the only option. In essence, I had to persevere and go back to basics.

I started calling my old clients every few weeks with any tidbits of information that might be relevant to their businesses. Without saying so, the point was made to them that I was back on top of things and ready to work. Eventually, a new potential client was introduced to me, and I was hired by the general counsel for a significant transaction. That experience buoyed my confidence. I was back on track and have gone on to advise on some of the most complex transactions of my career. There is a message here—no matter where you are in life, you can never rest on your laurels—whether it is a law degree from the University of Chicago Law School or being a senior partner at a major law firm like Skadden Arps—you must always be persistent and persevere and be prepared at any time to reinvent yourself, because you never know what obstacles you may have to confront.

Nothing must ever be taken for granted and you must never have any expectations that anything will be just handed over to you in the “real world.” But, you are eminently prepared because you are a Chicago graduate—with a special skill set—and by now you know what I mean by that.

While re-establishing my law practice, I became aware that New York State was reneging on its statutory obligation to allocate $8.5 million per year toward spinal cord injury research. Remarkable progress had been made toward finding a cure, and the funding cutoff by New York State was like ending a marathon at the 24-mile mark.

But, I realized that I could help make a difference given my Chicago education, perseverance, life experiences, and my belief that I had nothing to lose and much to gain. Combining that attitude along with a belief that the law was unequivocally on my side, I set out to right the wrongs being perpetuated.

Along with some of my colleagues at Skadden, I learned precisely how the law was supposed to work, as opposed to the specious rationale used to justify the cutoff in funding. We had drafted a complaint and were prepared to bring a pro bono lawsuit, if necessary.

As the only lawyer in an advocacy group founded with three others, I was charged with presenting our case before numerous state legislators and their staff in Albany. Thinking on my feet—metaphorically, that is—I answered hardball questions. Turning the tables, I also asked our government officials a series of questions designed to elicit answers from them to prove the point that dedicated funding was being diverted for improper uses.

Sometimes I raised my voice, sometimes I lowered my booming voice, but never did I stop making my voice heard! This should sound familiar to our graduates and faculty, because all I really did was employ the lessons I learned here nearly four decades ago, beginning with that very first torts class I “experienced” with Professor Epstein.

This past April we succeeded in getting restoration of $7.9 million of funding—something unimaginable just a few months earlier. Without question, this was more satisfying to me than the most complex merger transaction. Remember—as Chicago graduates we get things done! I believe with all my heart that you will, in your own way, “get things done” and leave the world a much better place than you found it. My most sincere congratulations to the Class of 2014!

Remarks of Professor Eric Posner

It’s an honor to be asked to give this commencement address. I thought I would start with a quotation from the former University of Chicago Law professor Antonin Scalia. This is from a case that the Supreme Court decided last year calledAssociation for Molecular Pathology v. Myriad:

I join the judgment of the Court, and all of its opinion except Part I-A and some portions of the rest of the opinion going into fine details of molecular biology. I am unable to affirm those details on my own knowledge or even my own belief.

This very brief concurrence—I quoted nearly the whole thing—raised some eyebrows. If Scalia did not understand the facts of the case, how could he come to any conclusion at all?

Justice Scalia’s comment got me thinking about the role of complexity in law. And I’m particularly concerned with a narrower question of interest to you, which is, How should lawyers deal with complexity? This question is an important one because the complexity of technology and social organization seems to be advancing at an ever-greater rate. Yet if a topic is too complex for a judge to understand, then how is a lawyer to make arguments to a court?

To answer this question, I want to make a distinction between two types of legal questions. I will call the first type “hard” questions, and I will call the second type “superhard” questions. (I will ignore the easy questions.)

I asked my colleague Professor Will Baude to give me a hard legal question. Will teaches Federal Jurisdiction, which is a famously hard course. I thought that I could impress you by giving you a hard question from a hard course, and here it is:

“Is a federal court required to abstain from hearing a challenge to a state prosecution if the court has already issued a temporary restraining order, but not yet considered a request for a preliminary injunction, when a state prosecutor subsequently files a criminal case against the federal plaintiff?”

I didn’t ask Will why this is a hard question, but I suspect the answer is that the sources that one would need to answer this question—the Constitution, statutes, precedents—are ambiguous, sparse, or in conflict, or all three; or that those sources imply an answer that courts would find impractical, unfair, or strange.

Yet I can say with full confidence that if any of you graduating students are given this question when you arrive at work later this year, you will have no problem answering it. And this is true even if you haven’t taken Will’s Federal Jurisdiction course or you did but slept through his lectures.

And the reason for my confidence is that by now you know the drill. You do some searches on Westlaw or Lexis for keywords and you find some cases. You read those cases and eventually you find the major sources of law. Maybe you check Moore’s Federal Practice and Procedure. As you sift through cases or commentaries, you will use your already well-honed legal skills to separate the wheat from the chaff. Eventually, you will be able to put together a creditable answer.

You should feel proud of yourself that you can do this. You really did learn something at this law school. A person without high-quality legal training would not be able to answer this question. Take a moment to pat yourselves on the back. Or pat the back of the person sitting next to you if you want, though you should probably ask for permission first.

But that’s also the problem. While you will be able to answer this question, so will all the other lawyers at the law firm, or government office, or wherever else you end up practicing. As a lawyer, you won’t be able to distinguish yourself by being good at legal research and analysis. You must be able to do something more.

Now let me return to the Myriad case. Myriad was a biotech company that had discovered the location and sequence of two human genes, mutation of which increases the risk of breast cancer. One of the major issues in this case was whether something called complementary DNA, or cDNA, was patentable. The Supreme Court held that because Myriad constructed the cDNA, and the cDNA is not identical to DNA or any other naturally occurring substance, it is patentable. The problem with this argument is that cDNA contains exactly the same information as the corresponding segment of DNA, just with some noninformative junk removed.

It’s a bit like the difference between tap water and purified water; you can’t patent purified water. This doesn’t mean that the Court’s holding is wrong, just that the Court did not give adequate reasons. Scientists I have spoken to tell me that the Court just didn’t understand the science. And this was despite the fact that very fine lawyers argued the case, and the Court was assisted by amicus briefs submitted by scholars. I suspect that Scalia, in his characteristically mischievous way, was tweaking the majority by suggesting that they, too, did not understand all that impressive-sounding scientific jargon with which they larded the opinion.

So technology advances, and one point I would like to make is that the impact of technological advancement differs across professions. Technology has given doctors new tools for diagnosis and treatment that they lacked in the past, while the human body that they minister to has stayed the same. By contrast, aside from computer-assisted legal research—which has not changed in 30 years—technology has provided no new tools for lawyers. Meanwhile, the body that lawyers minister to consists of the whole range of commercial and personal relations and activities that make up our society. Because of technology, that body, the social and political body, unlike the human body, is constantly changing.

Let me give you one more example. Although many of you will never have a case involving genetics, virtually all of you will have a case involving finance.

One of the causes of the financial crisis was the development of newfangled financial instruments with exotic names like collateralized debt obligations or CDOs, credit default swaps, and so on. CDOs were constructed from mortgages, which had been securitized by investment banks and government agencies, and from other asset-backed securities like car loans. CDOs were so complex that not even the rating agencies could figure out how risky they were. And when asset prices began to fall, neither could the market. When the government launched its rescue, it too was hampered by the complexity of the instruments, which obscured the financial relationships between firms on the brink of insolvency.

The financial crisis spewed forth hundreds of lawsuits where all these issues need to be addressed. Just one of many recent examples is a lawsuit by the SEC against Goldman Sachs and one of its traders, Fabrice Tourre, now improbably a graduate student in our economics department. Tourre had put together a complex transaction known as a synthetic CDO that enabled a client to bet that housing prices would decline. The jury ruled against Goldman and Tourre, and I strongly suspect that the reason was not that they had violated the law but that the jury did not understand the transaction which, while complex, was routine and almost certainly lawful. I can’t explain to you now why I believe this, because the explanation would be too complicated.

Now here is my question for you. If you go to work next year, and your boss doesn’t give you the hard federal jurisdiction question, but instead gives you a superhard question, will you be able to answer it?

If he asks you whether a substance similar to cDNA but not the same as it is patentable, will you be able to answer it? If he asks you whether the buyer of a CDO that defaulted was harmed or not, will you know that in order to answer this question, you will need to examine the buyer’s portfolio in order to discover his hedging strategy? Will you be able to determine whether he was in fact hedged?

I suspect that when you get questions like this, you’re first impulse will not be to go to the law books, but to go to Wikipedia. And that’s the right impulse. But Wikipedia will not suffice. The problem is that you can’t answer the genetics question unless you have a feel for genetics, and you can’t answer the finance question unless you have a feel for finance. To answer the superhard questions, you need a technical background that most of you don’t have. You can’t learn these things on the fly. You can’t fake it.

And yet clients expect lawyers to be able to answer superhard questions and to explain those answers to judges like Scalia who also don’t have any technical background and aren’t inclined to acquire one.

I wish I could tell you that there was an easy way to solve this problem. The Law School has supplied you with a flashlight and compass, so when you are dropped into a doctrinal thicket, you can find your way out. But some thickets are so dense that what you need to get out is not a flashlight but a chainsaw. Where are you going to get a chainsaw?

Lawyers try to rely on experts, but the problem with experts is that they make mistakes like everyone else and lawyers must be able to catch them. Lawyers also usually must decide whether to accept cases, and what litigation strategy to pursue, before they hire experts.

Nor is it realistic, or consistent with the spirit of this happy occasion, to advise you to go back to school and obtain a PhD in biochemistry, finance, or computer science. And actually I don’t think that would be a good idea even if it were practicable.

There is another way of thinking about this. Most of you excelled in college and chose law school not just because you sought a secure job or professional distinction or money. You came because you relished intellectual challenges and excitement.

My one message is that the end of law school does not spell the end of the intellectual challenges that you will face. Once you find yourself a niche in the profession, and even as you are working 10 or 12 hour days, you will discover that your education did not end in law school. And it will be up to you, on your own, to complete it.

Thank you.