Maurice A. Deane School of Law at Hofstra University
May 20, 2012
It is often said that “you don’t know what you’ve got until it’s gone.” And frequently that is true. But, like hearsay, the rule is also about the exceptions. Personally, the exceptions to that rule sit behind me on this stage and before me in this audience. They are the class of 2012. They are exceptions because, as early as midway through their 1st year, I was deeply, tangibly---and even fearfully--- aware that that this very, very special group of young men and women would not grace our law school forever. Intellectually, I knew then, what emotionally, I feel most acutely now: I have been fortunate---even spoiled---to have never known this school without these amazing students and friends. I will miss each of you dearly.
It is the immense respect I have for you that prompts my substantive remarks today. Millenials will make up one quarter of the electorate in 2012. To borrow the name of an organization founded almost exactly when many of you were born, go forth and Rock the Vote. Take advantage of democracy’s most basic tool – the ballot box. But for men and women of your talent, character, and integrity, the challenge is greater: Rock the Dialogue. Rejuvenate the discourse. Turn up the caliber of our debate. Perhaps even, by turning down its volume. Short the stock of high dudgeon by investing in a higher dialectic.
Whatever your politics, whatever your ideologies, take what you have learned here and elsewhere and apply it not only to your professions, but to your civic communities, to your friendships and yes, to your adversaries.
The judicial opinions, with which you’ve wrestled, start with the facts. Your professors expected you to do the same. Maybe, just maybe there might be some merit to such a method?
Unfortunately, the vast majority of our civic dialogue today aims to generate heat rather than light. When heat is the end game; when the goal is all about getting the choir, no matter how off-key, to sing more loudly; when the goal is dissonance, even violence rather than civility, the line between fact and opinion is blurred, disguised, even obliterated. Resist the temptation to characterize one as the other. Recognize that, whatever your positions, whether in law or politics or relationships, not every fact is clear, much less clearly in your favor.
We have juries for a reason.
Occasionally admitting that not every fact is on your side might be not a sign of weakness, but rather, of wisdom, even strategic smarts.
Whether in the crucible of the Socratic Method or on your exams, none of you got away with characterizing opinion as fact. I know you didn’t because you would not be graduating from this institution if that had been your modus operandi. So why indulge it now? To put that differently, as the late Daniel Patrick Moynihan once said, “everyone is entitled to their own opinions, but not to their own facts.”
If all politics are local, then we must engage in civil and civic discourse at its most granular levels; in your families; with your friends; in your localities; in your states. The national horse race may be sexy, but rarely is it the true locus of our substantive civics. If you find yourself screaming over presidential politics but clueless as to issues facing your states, cities and communities, well then Hempstead, we have a problem, not just of tone, but of priorities.
Even at the national level, 130 million Americans will vote for President this year. No matter who your candidate is, it is a virtual certainty that at least 50 million voters will disagree with your choice. Thus, it is worth considering an idea that, however anodyne in the abstract, seems increasingly radical in modern application. The idea is this: if 50 million voters disagree with you, maybe they’re not all demonic crazies.
This is not to recommend a watered down, post-modernist each-to their-own ethic: On the contrary, when you believe something strongly, stand your ground. Disagree. Fight. Advocate. Just don’t forget to listen.
When it comes to tone as to difficult questions, I certainly concede my own hypocrisies. Indeed, in recent days, some members of my own family have quite fairly questioned my standing to deliver these remarks. The questions we face today are, in some instances, so fundamental as to make respectful approaches difficult. The points of departure are frequently so diametrically opposed as to make common destinations dubious, but the discussions all the more important.So what do I believe? Well, to offer just a few snippets…
I believe those who advocate torture, and indefinite detention without meaningful review, would have us become precisely what we have beheld.
I believe that religious majorities who, instead of prioritizing tenets like love thy neighbor ask how, via law, they can diminish those different from them, are themselves a serious threat to the republic.
I believe the First Amendment is intended to empower all the people, including the poor, not to be an ironclad guarantee of the best democracy that money can buy.
I believe that courts need to remain the last safe place; the arena where what is popular matters far less than what is principled, and that rights are made real only when remedies are both actual, and actually accessible.
And to that last end, I believe that when the executive, congress and the courts, acting in concert, put virtual padlocks on courthouse doors, via jurisdiction stripping and other measures, we have not separation of powers, but rather, coalitions of the powered, acting to the detriment of the powerless.
But I also believe, to my core, that I need to listen to your perspectives, especially when you disagree. Together, we can all strive for a society where being an occasional “flip-flopper” is less a pejorative, and more an indication of the considered, open-mind on which all enlightenment is predicated. Put differently, sometimes, flip-flopping is very much in the public interest.
What I suggest is not that we need to soften our positions; merely that we would be well-served to yell a little less; reflect a little more; and to strive for argumentation that is defined as much by reason as rhetoric. If, as will often be the case, such efforts fail, then to the ideological mattresses we shall and should go.
Yet when we engage in hard-fought ideological battles, we will all lose in the long run if disrespect blinds us to the potential that on some other issue, at some other time, the adversaries of today can be our most effective allies tomorrow. Such coalitions and partnerships become less and less likely the more disrespectful we become.
Individually, we are more than conservatives vs liberals.
Nationally, we are more than Red states vs. Blue states.
Globally, we are more than strictly separate and purely self-interested nations.
And chronologically, we must remember that we hold only the briefest of short-term term subleases on our planet’s earth, air, and water.
Pluralism, in my view, means that the phrase public interest law needs a broader definition than is commonly ascribed. It means prosecutors, defense attorneys, plaintiffs’ lawyers, corporate counsel, and lawyers from the Heritage Foundation to the ACLU, all can, if they pursue their goals vigorously, respectfully, and ethically, stake a claim to the public interest moniker. It is, however, the conditions of that proposition---- vigorous, respectful and ethical --- that elevate the separate vocational roles. An apathetic or careless defense attorney is never in the public interest. Nor an unscrupulous prosecutor. Nor, for that matter, is it in the public interest for our brightest minds to stagnate as depressed cogs in giant legal machines.
I lack the hubris to advise you as how to find your professional raisons d’etre. That said, I offer one crude litmus test to consider or reject as you wish in the coming years. If you litigate, you will win and you will lose. If you do transactional work, sometimes the deal will go through; sometimes it will not. And, as you learned in contracts, sometimes the deal will go through, but with consequences you failed to anticipate such that, long after the deal gets done, defeat is snatched from the jaws of ephemeral victory.
The litmus test is this: does it hurt to lose?
If so, how much?
I submit that the way to measure whether you are doing the work that is right for you is that that the losses should really, really hurt. Wins and successes feel good even when the stakes are trivial.
But if your losses; your mistakes, your failings don’t cause you anguish, then reconsider your options. Because I guarantee that your losses and mistakes will cause anguish and hurt for your clients. Starting today, much, much more than letter grades will be at stake. Monday morning quarterbacking will be of little avail. For your clients, this isn’t a game; and, for them, there certainly isn’t a game next Sunday when you can get it right.
As a lawyer, I have been privileged to be a part of some good wins, and some hard losses. Without hesitation, I can tell you that hurt of the losses exceeds the joy of the wins. I use the present tense there because it still does.
How do you know you care deeply about a client and/or a cause?
Well, for me it’s when, years and years removed from a loss, the torment in my mind remains constant, perpetual and unyielding. The circular questioning as to whether there was something else I could have done; and, to harken back to your torts classes, of whether, but-for my mistakes, outcomes would have been different. What if I --- what it we --- had made different decisions? What if we had just been better? At best, the constant re-examining is compartmentalized; at worst, it is consuming.
Yet, speaking to you as graduates and friends --- as perverse as this sounds --- it is precisely the depth of my admiration and respect for you that makes me hope you experience similar torment, similar anguish, and similar struggles. (You’re welcome).
If you do, then no matter what you are doing, I’m confident that you will indeed be practicing in the public interest. It will be hard. But like your last three years, it will be hard because it is worthy of you.
In closing, to the proud moms, dads, families and friends of these graduates, I want to say thank you. Thank you for the great gift you have given us: namely the gift of these past few years with these extraordinary men and women.
You have raised them so well; you have taught them so much; and you deserve to be so, so proud.
Graduates, for me, you are the benchmark against whom subsequent classes shall always be unfairly measured. It has been an honor to teach you. It has been a joy to learn from you. And it is a privilege to count you as colleagues in law, and friends in life. Thank you.