Max Stearns
Dear Readers:
I delivered this lecture to my students in Constitutional Law I: Structure and Governance during final part of the final class on April 14, 2022. This version is slightly edited and includes embedded links.
Max Stearns
To my students:
For many years, I’ve closed my Constitutional Law course with a spiel. In our challenging times, times that increasingly challenge many vital constitutional norms, this has become increasingly difficult. I began this course by asking if we’re in a constitutional crisis. And I’ve identified the various signs that lead me to believe we are. No professor wants to end any course on a discouraging note, let alone one that centers on the structural aspects of our system of government.
I wish I saw glimmers of improvement, but I honestly don’t. And unlike Jack Nicholson, responding to Tom Cruise’s interrogation in “A Few Good Men,” I believe all of you can handle the truth. This lecture won’t repeat what I’ve said to this class about our constitutional crisis, but it’s inspired by it.
I’ve updated an earlier lecture offering some advice for rising lawyers, with this version reflecting our troubled times. I’m inspired by Alanis Morrissette, who brilliantly updated Ironic, despite my lacking her immeasurable talents.
Let begin:
1. Do your best to find ethical and moral anchors in a world that too often risks throwing you at sea.
This is hard. For the past 6 years, I’ve asked many friends and professional acquaintances, some I’ve known for decades, whether they could have imagined embracing positions they express today ten, fifteen, or twenty years back. My goal is to remind them of their anchors. I’ll be honest. The strategy rarely if ever succeeds. Still, I think it’s a healthy habit, and perhaps more so if we continuously ask it of ourselves. Every now and then ask: Am I embracing a position that not so long ago I would have found deeply troubling? I’m not suggesting we should never change our views, but if the answer is yes, also ask yourself if you’ve abandoned a once-grounding moral anchor, and how you might work to restore it.
2. Don’t assume that the worst a person does defines her or him, but don’t assume the best does either.
Bryan Stevenson is a MacArthur Fellow and lawyer who has spent a brilliant career representing death row inmates. He’s someone I deeply admire and even had the privilege to work with on a case. He famously said: “I believe that each person is more than the worst thing they’ve ever done.” He’s right. But the opposite proposition is also true. People are complicated, and it’s also mistaken to equate anyone with her or his best or most famous accomplishment.
There’s an innate human tendency to imagine that all data point in one direction. But even One Direction split up, going off in different directions. We tend to assume that beloved actors, musicians, or political leaders must also be good people, upstanding family members, committed to their communities. But why? Sometimes such attributes coincide, but there’s no reason to assume they do. We can and should admire people’s talents, but we can do so without assuming such talents make those who have them otherwise admirable. One benefit of keeping these distinct is sometimes avoiding bitter disappointment.
3. Don’t equate outcomes that trouble you with the system that produced them, but also don’t assume the system justifies all outcomes.
As lawyers you will be officers of the court. Part of your job will be to promote the integrity of the judicial system through your personal conduct. This includes being honest and forthright, and treating others with dignity and respect. Another part is to encourage those who aren’t blessed with your professional knowledge and training to appreciate and respect the legal system even when—perhaps especially when—they find particular outcomes troublesome.
But there’s a flipside. No system is perfect, and sometimes it is appropriate to call the system itself into question, especially when there’s a longstanding pattern of troubling outcomes. And no legal or political system can ever be perfect. But this doesn’t mean our system, or any other, is immune from serious calls for improvement.
In this course we’ve seen that sometimes the system is the problem, despite its being very old and widely accepted. Part of your generation’s job will be the hard work of untangling which aspects of our constitutional system need to be reconceived, and how to accomplish that. My generation can offer guidance, but let’s face it. Yours will do the hard work. We’ll be looking to you.
4. Empathy matters, whether or not it changes outcomes.
Empathy isn’t purely, or even primarily, instrumental. Like other skills, it can and must be developed or honed. Clients appreciate a lawyer’s situating herself or himself, when appropriate, as sharing in a sense of frustration when injustice arises. Empathy also can have the instrumental benefit of changing how we view the world. Careful, reasoned, dispassionate analysis is vital to lawyering, but so too is considering perspectives that might be overlooked, something borne of empathy.
5. Careful analysis matters even when others refuse to be persuaded.
Just as empathy matters, so too does careful reasoned analysis. This is, I hope, a vital part of what we are training you to do. Empathy is important, but it cannot and should not close off carefully considered and analytically informed judgments. Excellent lawyers need both. Avoiding either can blind us. These complimentary systems help define what it means to be human. As lawyers, use both to your advantage, and never apologize for doing so.
6. Focus on achievable goals, but without giving up on those that aren’t.
In his book Midlife: A Philosophical Guide, MIT philosopher, Kieran Setiya, distinguishes telic from atelic pursuits. Telic pursuits are concrete, have an end point, can be completed. Atelic pursuits never end, can always be honed, and forever be enjoyed. Writing a brief or article is telic; becoming a powerful writer is atelic. Learning a song is telic. Becoming a musician is atelic. Learning Torts is telic. Becoming an outstanding lawyer is atelic. You get the idea.
Especially when you feel overwhelmed, focus on the telic. Find tractable goals and enjoy the rewards that completing them brings. But never give up on the atelic pursuits. Unachievable goals become achievable, and more manageable, when you think about them differently.
No individual, no matter how gifted or dedicated, is going to solve on her or his own global warming, eliminate the threats to our democracy, or end systemic racism. But we can individually find ways to effect incremental changes that are genuinely meaningful and that, over time, form part of a larger set of powerful atelic pursuits. This perspective can help make you a more powerful lawyers and happier people.
7. Give those you disagree with the benefit of the doubt, but when the disagreement matters, respect them enough to hold them accountable.
Among the best work on this is by Oxford philosopher, Teresa Bejan, including her book, Mere Civility, and her TED talk. I’ll post this with a link.
Her focus is civility, which also relates to kindness. Kindness is different from being nice. Being nice isn’t inherently virtuous; being kind is. Civility depends upon kindness, which demands respecting people enough to engage seriously with them when you regard them as mistaken in ways that have moral or ethical significance. Of course, we should not look for opportunities to be oppositional, but nor should one search for the nearest exit when the need for opposition arises. Not all disagreements matter; not all disagreements implicate moral or ethical concerns. But many do, and as adults, and certainly as lawyers, we need to distinguish the two. Nice is about avoiding conflict, even brushing under a rug. Kindness, on the other hand, acknowledges important differences squarely and deals with them, like adults, and yes, like excellent lawyers. Be kind and be civil. As lawyers, model what it means to be an adult.
7. Find mentors who can teach you, and mentors who inspire you. They might not be the same people.
No one can be all things to all people. We can learn from, or find inspiration in, people with different skills and attributes. Avoid imagining that anyone has it all. No one does. Social media exacerbates this by encouraging too many to selectively convey isolated aspects of their lives. A need for constant adulation should give us pause. Very often we can deeply learn from those who are reticent, introverted, or exhibit weakness. Indeed, a willingness to expose personal weakness can be among the most powerful and inspirational strengths. We can learn from everyone.
8. Embrace the power of what economists call “comparative advantage”—no one in any field can do everything, and certainly not well.
This is really how an economist would capture the last few points. Lawyering is teamwork with perhaps the sole exceptions of final exams and the bar. No one has all the requisite talents or skills. Every thoughtful writer of a brief or article has run it by many colleagues before hitting send. Every trial lawyer runs ideas past several advisors, and certainly not just lawyers, before trying it on a jury. We each have an informed perspective, and we do best when we realize that.
9. Listen carefully to others, pause before speaking, and pause longer before emailing. But also be willing to sometimes be the only person in the room expressing an unpopular view.
This goes back to Teresa Behan and Kieran Setiya. Don’t look for a fight, but don’t run from one either, at least when it’s important. Find anchors, be principled, and be kind. If you’re overwhelmed find small telic ways to make your corner of the world, however grand or modest, better. And this is important: Don’t ever expect to be thanked or rewarded. Knowing you did your best should be sufficiently rewarding, more so than social media clicks, likes, or shares.
We live in a deeply troubled world, and sadly we experience that every day. It can seem truly overwhelming. As rising lawyers, you will need to find ways to make it manageable. Don’t overestimate your power to improve things, but please, please don’t underestimate it either. With the right commitment and the right perspective, you can and will make a difference.
It has been my pleasure to teach, and learn, with all of you. Good luck.