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  • Max Stearns

Some Musings for the New Year

Dear Readers:

Thank you for spending part of 2017 reading my posts, forwarding them to friends, and commenting, whether on the blog, on Facebook, or personally. I truly appreciate your inviting me to be even a small part lives through this blog. This past year we have faced innumerable challenges. It has been tough. I have little doubt that this will no less true in the year ahead, and beyond. Many known challenges loom on the horizon; it is the unknown ones I fear the most.

I hope that we find ways to confront our greatest challenges with a spirit of generosity, with a willingness to be challenged, and with the increased wisdom that comes with age and experience. No one has all the answers. I once read an admittedly gendered account of an argument between a married couple. The husband responded point by point with irrefutable logic, to which his wife replied: "just because you won the argument doesn't make you right." Indeed.

One of the great challenges of the past year was discovering the limits of reason. Yes, we must strive to appeal to it, but never at the expense of failing to understand the critical roles of emotion, community, family, religion, and our most intimate sense of how we define ourselves. This is especially true in politics.

Many people who, like me, approach politics from the perspective of economic analysis, or public choice, embrace some form of pluralism. People associate in various groups, and those groups fight it out in the political process. We never want to look too closely to what goes on inside the sausage factory or we might just lose our appetites. And we also must never lose sight of the specific interests of the political actors themselves, as their interests equally affect the shape of the policies with which we all live. We might call this Public Choice 101.

Over the years, I've become skeptical of that framing. Although I'm increasingly persuaded of the merits of economics as a methodology, I'm also increasingly persuaded that small "r" republican ideology is profoundly right even if incomplete. Politics isn't just about winning; the world cannot be defined strictly in terms of a zero sum game. We are all here playing the long game. Sometimes we win; sometimes we lose. It cannot be the case that outcomes are only acceptable to us, or legitimate, when we are victorious. What ultimately matters the most in politics is a process that frees us, indeed encourages us, actively to engage. This requires a willingness to listen, perhaps especially, to those we are most inclined to disagree with, even to find offensive. It requires a willingness to imagine that we might just be wrong, at least every now and again. It requires a willingness to appreciate that the intensity of our feelings doesn't prove the soundness of our reasoning. It requires us to become just a bit more open, especially to those we least understand.

Some might read that as Pollyannaish. After all, the one thing virtually everyone will credit the sitting President with having accomplished is so angering his detractors that they have become highly engaged. And, conversely, the engagement of his detractors has reciprocally motivated his supporters, rendering them engaged as well. If engagement is the goal, mission accomplished! That's not what I mean.

I also know many people who view politics as an endless series of pendulum swings. Democrats take the ball for 4 or 8 years; Republican's then do the same; then the Democrats, and on and on it goes. This too is problematic, especially when those who take the ball are unwilling to recognize past victors as engaging in a common venture, with outcomes we might disagree with nonetheless worthy of respect.

This past year has made productive political engagement, the sort I do intend, a genuine challenge. Those, like me, who find so much in the present administration abhorrent, must figure out how to harness our energy over the long game, and that's very hard to do. But that's not even our greatest challenge. The real challenge is that our energy cannot simply be negative. The least enjoyable part of engagement in a time marked by such deep divisions--a chasm really--is trying to find any common ground, so that when we next have the ball, our mission isn't simply to undo, to tear down. The contrary temptation is great, and it is becoming greater with each passing day. Can those of us who have been so critical of this Administration engage more wisely, with greater caution, yet still engage, and better yet, for the long term? I actually don't know.

After a one-semester sabbatical, which followed four years as Associate Dean, I will resume full time teaching on January 8. This spring, I have two classes: Constitutional Law 1-Structure and Governance, and Law and Economics. Constitutional Law I has long been one of my personal favorites. The material is extremely challenging, but those students who put in the effort become careful lawyers along the way, as they increasingly gain new ways of framing so much of what they learned already in their first semester of law school. This spring, I approach the course with some trepidation. In the past, I was able to frame the caselaw around a set of common anchors, tools that helped make sense of doctrines that to many, especially novices, so often appear to point in irreconcilably conflicting directions. Today, when our system of governance seems dysfunctional at so many levels, I'm far less certain. Even so, I'm very much looking forward to the class. I'm also particularly excited about Law & Economics, especially because I will be using, once more, the materials that I spent much of the sabbatical finalizing. Although the book is not yet in print, that process will soon be underway.

I began this blog this past April, toward the end of the Associate Deanship. It has been a wonderful outlet, allowing me to reflect on endlessly fascinating topics: Law, Politics, Movies, Music, Coffee, and even occasionally, Love and Sex. I've written over 60 posts, and I've had over 6000 visits, from all over the globe. I've written some columns anticipating they will catch fire, only to see them soon dampen. I've posted others with hesitation, to then see a readership follow. I've learned just how much I don't know.

As I enter my twenty-sixth year of teaching, I am in some ways far less confident than when I entered my first. But I'm also older and perhaps a bit wiser. So I'm hopeful. I'll let my younger students make up in confidence what I have lost, and hopefully they'll indulge me as I try, on occasion, to impart some small dose of wisdom.

Happy new year to you all. I hope yours is a year year filled with love, happiness, and meaningful engagement. As always, I welcome your comments.

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