By AALS President Erwin Chemerinsky, Dean, University of California, Berkeley School of Law
It always is difficult to assess our time during the present moment, but few would deny that this is a particularly fraught and troubling time in our nation’s history. The country is more deeply politically divided than at any time since Reconstruction. Faith in the institutions of government, including the Supreme Court, is at an all-time low. The problems – climate change, racial injustice, the unhoused in our cities – seem beyond the capacity of government to solve. At the same time, the vitriol in public rhetoric continues to grow.
All of this directly and indirectly affects us as law schools. The deep divisions in our society are reflected among our students, staff, and faculty. The Supreme Court’s decision to overrule Roe v. Wade and likely to end affirmative action in higher education has led to many of our students being more dejected about the Court and constitutional law than I have ever seen in over four decades as a law professor. Of course, our conservative students are jubilant, but our progressive and even moderate students see a Court that has situated itself solidly on the far-right side of the political divide and is likely to remain that way for years or even decades to come.
It is a mistake to think that law schools can or should act as if none of this is happening. Quite the contrary, we must recognize the reality of our times, look for how it necessarily affects legal education, and find ways for law schools to make a difference.
I have spent a lot of time thinking about how I will teach about the Supreme Court in my Criminal Procedure class this semester and my Constitutional Law class in the Spring. First, I must explain to the students why they need to learn legal doctrines in order to practice law. No matter how much they might disagree with the Court’s rulings, if they are prosecutors or defense lawyers, they need to know things like the exceptions to the warrant requirements and what’s enough for reasonable suspicion for a stop and frisk.
Second, I need to affirm their intuition that decisions often are a product of who is on the bench and emphasize the need to make arguments that will appeal to the judges they appear before. To be sure, there are many decisions and rulings that will be the same regardless of the judge. But that is not true for the Supreme Court and often not for courts at every level. When I have an appellate argument, I want to know my panel as soon as possible. There are times I look at it and feel confident and times I realize I could let my puppy argue the case and I would have no less chance of winning. My task is to help students to develop the skills to argue before the judges they will appear before. With many justices and judges now embracing originalism, they need to learn how to make originalist arguments no matter how much disdain I have for it as an approach to constitutional interpretation.
Third, I must give my students the tools for critical appraisal and to develop new theories of their own. A crucial message from the first day of law school must be that just because the Supreme Court says so does not mean that it is right. Students need to have the ability to critique (and praise) decisions and to have the tools for devising new and better approaches to the law.
Fourth, I must do a better job of exploring alternative forums for bringing about change, especially for progressive students who do not see the United States Supreme Court as a hospitable forum. I need to do much more in my class – and in my law school – to teach about state constitutions and the use of state courts, as well as about using legislatures and organizing social movements.
Finally, we must provide our students a basis for hope, and it cannot be false hope. For me the hope for the future comes from my students and their talent and passion and idealism. I also take hope from how over the course of American history there have been enormous advances in equality and freedom, though there is a long way to go. At our commencement this past May, I invoked the words of the late John Lewis, “Do not get lost in a sea of despair. Be hopeful, be optimistic. Our struggle is not the struggle of a day, a week, a month, or a year, it is the struggle of a lifetime. Never, ever be afraid to make some noise and get in good trouble, necessary trouble.”
As a dean, my awareness of our difficult time has made me realize that there is a need for strong steps to make law school a place where all students can feel included and safe and that they belong. Some of this is the need to create new structures, such as faculty or staff positions focusing on equity and inclusion, and some is providing additional resources especially for mental health for our students, staff, and faculty. Some, too, is looking for ways to rebuild community and bring people together after a pandemic that kept us physically apart.
At the same time, law schools must aspire to be places that model civil discourse, where all views can be expressed and everyone, regardless of ideology, is treated with kindness and respect. As deans, we must articulate this as our vision and then to look for ways to implement it.
And law schools must play a conscious role in looking for solutions to the world’s seemingly intractable problems. Through faculty research and advocacy, through our clinics and centers, we must look for ways to use the law to make a difference.
That is the theme for the AALS conference in San Diego in January: “How Law Schools Can Make a Difference.” It will be wonderful to be together for an annual conference for the first time since 2020. My hope is that many of the sessions and programs will focus on the role of law schools in these perilous times.
This conference will mark the end of my year as president of the AALS and the inauguration of my terrific successor, Mark Alexander. My year in this role has given me even greater appreciation for Judy Areen and all of the wonderful staff at AALS and all they do to support law schools and legal education.
As one example of this, and consistent with the theme of this message, AALS will be holding a couple of conferences over Zoom this spring and summer. On May 4, we will have a second conference on the future of American democracy. And on July 10, we will have a conference on achieving diversity without affirmative action, in light of possible US Supreme Court rulings.
It has been a tremendous honor to be president of AALS and I very much encourage my fellow deans and faculty members to look for ways to be involved in this organization, that is our learned society and our advocate for legal education.
