Professor Fennell Welcomes the Class of 2017
I want to talk to you this evening about The Endurance. I don’t mean the quality of endurance, though it is kind of fun to think about how the concept might apply to law school—or even this speech. I am referring to The Endurance, a ship that set sail a hundred years ago for Antarctica with Sir Ernest Shackleton and his team of 27 men and 69 sled dogs. They had a modest goal: traversing Antarctica on foot. Although the winters are cold in Chicago, and law school is challenging, and some of us do have sled dogs, it is nothing like an Antarctic expedition going to law school here, so don’t worry, I’m telling you this for a different reason. There are, I repeat, no parallels whatsoever between Chicago and Antarctica. None at all.
Anyway, the expedition was a spectacular failure. Although The Endurance was well built and had an awesome name, it got stuck in the pack ice and eventually broke into splinters. After protracted difficult efforts and some tragic choices involving the dogs, the humans ended up marooned on remote, uninhabited Elephant Island. Things looked very bad. Then Shackleton launched an epic rescue mission. He and five of the men set out in an open boat called the James Caird—one of three lifeboats they’d salvaged from the wrecked Endurance—to sail across 800-plus miles of rough sea to a whaling station on South Georgia Island. It took 17 days to make the crossing, and when they landed they still had to cross the mountainous, glacier-covered island on foot to get help. After months of complications and false starts, Shackleton got hold of a Chilean rescue vessel and went back to Elephant Island for the rest of the group. Miraculously, everyone survived.
There are many good accounts of this adventure—books, articles, websites, docudramas, re-enactments, docudramas about re-enactments and so on—especially now with it coming up to the 100 year anniversary. So why are you having to hear about it in an entering students dinner? It might seem like I’m driving at some obvious points about persevering in the face of hardship, finding creative ways out of difficult situations, being tough and smart and resilient and relentless, even when it’s incredibly cold. But you don’t need to hear that. You’ll be living it soon enough.
Instead, I want to talk about one image, entitled The Rescue, that was shot by the expedition photographer, Frank Hurley, which I first encountered in a book by Caroline Alexander that included a lot of Hurley’s images from the trip. After the expedition, Hurley went on the lecture circuit with his photographs, which were truly incredible. He’d end the show with The Rescue, showing the guys on Elephant Island standing and cheering as they are about to be rescued. The image contains a small rowboat, presumably coming from the Chilean rescue vessel, the Yelcho (apparently sitting just beyond the horizon) to collect the men. Everyone’s cheering and it’s extremely heartwarming.
But it’s not what it seems. As Alexander recounts in her book, another copy of the picture had a different caption: The Departure of the James Caird from Elephant Island. The James Caird is the open lifeboat that the rescue crew led by Shackleton departed in. It turns out the picture was actually taken long before the folks who were cheering knew whether they’d actually get rescued or not. The original negative was apparently altered by Hurley himself to obliterate the James Caird; he left only the rowboat that was used to shuttle supplies to it and recast this as the rescue. Why? Commentators speculate that Hurley just needed a good way to end his slideshow. I empathize. But as Alexander and others have pointed out, and who could disagree, the picture is a million times better when you know what it really shows: a bunch of desperate guys who are running low on food, supplies, and morale, cheering a last-ditch effort to save them, knowing the odds of it working aren’t especially good. [Images and more about The Endurance and the James Caird are available here and here.]
Now it’s not a bad lesson as you start law school to pay heed to the ways that reality can get reconstructed after the fact, the way the demands of a good story can get in the way of the truth, and sometimes even in the way of a better story. The cases you will be studying always present a reconstructed version of what happened, filtered through time and tellers, distorted accidentally or on purpose. The principles worked out in the cases you read may be based on something other than actual reality. You may never find a negative with a hole scratched in it during your career, probably because negatives hardly exist anymore, but you may run into stories that have been doctored—or perhaps I should say lawyered—in equally problematic ways.
Another reason I’m telling you this story, though, goes to a distinction that you will soon hear more about: between ex ante and ex post perspectives. This is just a fancy way of saying before and after, but it matters a lot to legal analysis. For example, you’ll hear in Torts class about the so-called Hand Formula, named after famed jurist Learned Hand, which calculates whether a particular precaution should have been taken—whether it would have saved enough in expected accident costs to be worthwhile. The right amount of precaution, it turns out, is not infinite: if we wanted to eliminate risk we would all be encased in bubble wrap all the time, which would make it hard to get things done. Also hard to make friends. In figuring out what precautions to take, you’re looking at the situation ex ante, before an accident happens. After an accident happens, it’s always easy to say that someone should have done more. The difficult mental trick is to fight hindsight bias and ask whether, ex ante, the decision was the right one, even if it had a bad outcome.
Law is always moving between ex post and ex ante perspectives: coming in after the fact to sort things out after they’ve gone wrong, but trying to get people to do the right things in the first place. Outcomes may matter to liability (only the bad driver who causes an accident is liable, not the lucky one who just drove badly) but it’s the human inputs that we should really care about. On this view at least, the guys in the picture were cheering at exactly the right time. The soundness of the choice to try the rescue mission, the courage of the people involved, how they are viewed by history and by each other shouldn’t depend on how things actually turned out, but rather on the actions and decisions they took that that were under their control.
Interestingly, another Antarctic explorer grasped just this point. Here is a much-quoted passage from a letter Robert Falcon Scott addressed to the public at large just before he and the rest of his party perished on their way back from the South Pole:
We took risks. We knew we took them. Things have come out against us, and therefore we have no cause for complaint, but bow to the will of Providence, determined still to do our best to the last.But if we have been willing to give our lives to this enterprise, which is for the honor of our country, I appeal to our countrymen to see that those who depend on us are properly cared for. Had we lived, I should have had a tale to tell of the hardihood, endurance, and courage of my companions, which would have stirred the heart of every Englishman.
R. Scott, "Message to the Public," March 25, 1912, in "Scott’s Last Message to the World," New York Times (February 11, 1913).
In other words, judge us on our inputs, recognize us for our efforts, despite how things turned out. The law struggles with this issue, as you’ll see. We struggle with it too, as human beings. Once you’re in an ex post world, it can be hard to regain the ex ante perspective.
Which brings me to my final point. Entering law school is nowhere near as perilous an endeavor as an Antarctic expedition, but it is momentous all the same. Later when you look back from the position of graduation or a successful career, it may seem as if you progressed in a sure-footed way all along the path, that there was certainty and clarity and confidence every step of the way. That won’t be true. So try not to forget how things look to you now, ex ante, the way it feels starting off, your first days and weeks, your first cold call, your first time having your mind go absolutely blank during a cold call, your first exam, finding your way. And don’t forget to cheer for yourself and each other, early and often—even before, especially before, you’ve gotten to those ultimate cheer-worthy results. Later, you’re going to want that picture.
Welcome to the Law School!