Inclusive Leadership: A Few Hypos For 1Ls to Consider

 Among the goals of the law college are building a community of learned friends in the law and  developing inclusive leaders in the law. What does it mean to be an inclusive leader in the law in a community of learned friends who do not always agree? Let’s discuss a couple of hypos to see what we think about what inclusion means in the law school community:

 

Hypo One

You are a secular progressive student in con law class discussing a case that held that the Constitution protects the right to same-sex marriage. In the course of the discussion, Student B (a member of your study group) says she agrees with the dissent and believes that the Supreme Court violated the rule of law when it judicially amended the Written Constitution to require the states to recognize SSM. You strongly support legal recognition of SSM. What should you do?

1. Raise your hand and make your best constitutional argument in support of SSM?

2. Resolve to ask your study group to vote to remove Student B from the group?

3. Raise your hand and tell the Professor you are offended by Student B’s arguments?

4. Go to the Dean’s Office and ask the Dean to call Student B into his office for a scolding?

 

Hypo Two

You are a religious conservative student in con law class discussing a case in which a commercial wedding cake artist has declined to create a wedding cake celebrating same-sex marriage. The issue is whether the First Amendment protects the cake artist’s right to decline to create a message that contradicts his religious beliefs about the nature of marriage. In the course of the discussion, Student B (a member of your study group) says she believes the cake artist is the “H” word and that the First Amendment should not be interpreted to protect him. You strongly believe in religious liberty and freedom of speech and support the right of the cake artist in this case. What should you do?

1. Raise your hand and make your best constitutional argument in support of free speech and religious liberty?

2. Resolve to ask your study group to vote to remove Student B from the group?

3. Raise your hand and tell the Professor you are offended by Student B’s arguments?

4. Go to the Dean’s Office and ask the Dean to call Student B into his office for a scolding?

 

Hypo Three 

You strongly support the reparations movement and, in a conversation in the student lunch area, a classmate quotes Justice Scalia and says: “[U]nder our Constitution there can be no such thing as either a creditor or a debtor race. In the eyes of government, we are just one race here. It is American.”

What should you do?

1. Respond with your best argument in support of reparations?

2. Decide you will shun the classmate in the future?

3. Go to the Dean’s Office and ask the Dean to call Student B into his office for a scolding?

 

In a community in which people believe very different things about the good life and the meaning of social justice, how are diversity and inclusion best served? By silencing and excluding those with whom you disagree? Or by welcoming a rational and thoughtful debate about things that matter a great deal to everyone--right, left & in-between? The gold standard for diversity is viewpoint diversity in a wide open marketplace of ideas.

Suppose someone with a different view of social justice makes a rational argument with which you strongly disagree. Should you scold that person and say "your argument offends me"? Is that response a persuasive argument?  Or is it a power play--an act of social aggression--designed to deprive those with whom you disagree of their best arguments and force them to adopt your narrative? If an idea offends, the problem is not with the idea, but with your response to the idea.

How should inclusive leaders in the law deal with debate on issues that divide us? If you believe an idea is wrong debate it, but never try to censor it or label it as "offensive." Debate is always welcome in this class. But censorship and the cancel culture have no place in a law school committed to reasoned analysis of legal arguments. My advice to you all is to acquire tough skin when engaged in legal debate.

A University committed to true diversity and true inclusion should never--never--scold a student for making an argument that other students don't like. Even if they don't punish you for your thought crime, when a university official chastises you for making a rational legal or policy argument, it has a chilling effect on freedom of speech. It chills freedom of speech by sending the message that you should remain silent rather than risk the wrath of university officials. A university that censors free speech is involved in indoctrination, not education. At Nebraska Law we encourage you to "listen graciously," "speak thoughtfully," "act courageously." and "build community." So listen, debate, and treat those with whom you disagree respectfully as learned friends in the law.

 

Herein of a lost rare stamp, absentee ballots, and Florida voters

Check out my post about a lost (or abandoned) postage stamp over at PropertyProf blog.

More On "Possession As the Root of Title"

Prof. Richard A. Epstein states the problem we will be studying for the first few classes:

"A beautiful sea shell is washed ashore after a storm. A man picks it up and puts it in his pocket. A second man comes along and takes it away from him by force. The first man sues to recover the shell, and he is met with the argument that he never owned it at all. How does the legal system respond to this claim? How should it respond?"

Now suppose the first man goes to a barber shop for a hair cut. He puts the shell on a table in the shop and leaves forgetting it. A second man ("Joe") comes along, picks the shell up, and hands it to the barber to hold for the true owner. After a few years have passed and the true owner has not returned to reclaim the shell, Joe demands that the barber return the shell to him. How should the legal system respond to this dispute between Joe and the barber? Should it matter if the shell were found on the floor of the barber's shop instead of on a table? Which rule would best protect the interest of the true owner? Should that matter?

What are your thoughts?

Prof. Richard Epstein on "What is Property?"

Inclusive Leadership in the Law: Prof. McConnell on Why Campus Free Speech is so Important

Stanford Law Prof Michael McConnell made this truly remarkable assessment of why campus free speech is so essential in a speech he gave at a Fed Soc National event. Conservative viewpoints are often the target of campus censors, and McConnell was reacting to student concerns about that reality of life in academe. Here is what he said:

"You are not the victims. [McConnell told Fed Soc students.] And I don't have a lot of patience with whining.

Yes it is unfair. Yes it can be painful. But you've been through the refiner's fire. You don't go a day in your education without being challenged about the nature of your assumptions--why do you believe what you believe. And you don't go a day in your education without having to figure out how to communicate with people who don't necessarily share your presuppositions. You are getting the finest education that young lawyers can get.

The victims of this one-sidedness are your liberal and progressive fellow students, who can go through an entire education without ever having their precious beliefs challenged, and without needing to learn how to make a real argument--to make [logical] arguments instead of [merely shouting] 'check your privilege,' which I think is left-wing ideology-speak for 'shut the hell up.'

And there is one other set of victims, and that's society as a whole, because universities and especially law schools are raising the leadership class of our country, and I fear that we are raising a generation of people who either do not understand or do not believe that there are two, and often times more than two, legitimate points of view, and who believe that disagreement is something that can be suppressed. I think this is a major reason for the much-lamented extreme polarization that we are already seeing in our political culture."

That is a truly profound analysis by one of the major First Amendment scholars of this generation. Inclusive leaders in the law reject censorship and welcome  respectful debate in a wide-open university marketplace of ideas.

Here is the video of McConnell's talk. The entire panel is wonderful, but McConnell's comments are special and begin around the 47-minute mark. Inclusive leaders in the law reject censorship and the cancel culture and welcome a multiplicity of viewpoints on campus.

Universities & the First Amendment

Campus Censorship is Unconstitutional and Results in Damage Awards and Attorneys Fees

From Religion Clause blog (link) :

Thursday, May 27, 2021

Florida State Settles With Catholic Student Who Was Removed As Student Senate Head

As previously reported, last October a student court at the University of Florida concluded that the University's Student Senate violated the 1st Amendment when it removed Jack Denton, a Catholic student, from the Senate presidency. Student Senate took the action because Denton criticized Black Lives Matter, the ACLU and Reclaim the Block, saying they take views opposed to Catholic teachings. Now, the University has entered a settlement agreement (full text) with Denton under which the University has agreed to pay Denton $10,000 in damages and $1050 in back pay that he would have earned if he had remained Senate president. It will also pay Denton's attorney fees of $83,950. ADF, which represented Denton, issued a press release announcing the settlement.

 

 If you are the victim of censorship, I am always available to talk with you about it. 

If the censorship continues, you should get a lawyer and protect your First Amendment rights. Inclusion means inclusion, not exclusion.

Developing Inclusive Leaders in the Law

This is something I wrote to the Dean, in this year's annual report, about my understanding of developing inclusive leaders in the law:  

"My permanent strategic commitment has always been to help our students think logically and critically in an environment that values intellectual diversity and provides a wide-open marketplace of ideas. We need to teach our students to think critically, encourage them to speak courageously and avoid self-censorship, and we should have no part in indoctrinating them in any ideological worldview or particular vision of social justice. We are a pluralistic Nation with many different visions of what is true, what is good, and what is beautiful. No one has a monopoly on truth or social justice. We should encourage our students to work for the common good based upon their own visions of the good life and social justice. That is how we can build a truly diverse and inclusive community."

The most important part of this is my commitment to encourage each one of you to speak courageously and avoid self-censorship. A community in which everyone thinks the same is not a diverse community. A community in which anyone is pressured to affirm any particular ideology or worldview is not an inclusive community. Friends do not cancel friends because they disagree with their ideas or their political views. Live courageously in the law. Do not be bullied into self-censorship. Always be civil and respectful, but speak up fearlessly for what you believe! As my friend Prof. Robby George says, "Courage can be contagious. That's the good news. The bad news is that cowardice is almost always contagious." So be courageous! Or, as two of the Law College's values put it, "Listen Graciously" but never be afraid to "Act Courageously!" Never--never--bend the knee to censorship or indoctrination.

Prof. Robert George on Slipping into Totalitarianism

 Very relevant for the world in which we are living (and especially for academia):

When totalitarians or totalitarian movements in a society acquire sufficient political, economic, and/or cultural power, they deploy it to eliminate dissent. Their first move is to find formal and informal ways to punish criticism of the regime or movement, or its ideology. 

Next, explicit or implicit threats, sometimes supplemented by positive inducements, are used to get people to go beyond keeping their mouths shut to affirming the regime or movement's key ideological points even if they don't truly believe them.

To heighten the general sense of fear, examples are made of people who publicly dissent or refuse to mouth the official pieties. Those who succumb to the pressure and make gestures or statements affirming the movement's ideology begin to experience cognitive dissonance.

 Not wanting to think of themselves as cowards or liars, some gradually talk themselves into believing what they feel compelled to say. They really do learn to "love Big Brother."

 “The time has come for you to take the last step. You must love Big Brother. It is not enough to obey him: you must love him.” – George Orwell, 1984. Part 3, Chapter 4.

 I recently observed that we should change the title of 1984 to 2021, because it is more relevant today than ever.

Now, a bit more from Prof. George:

My message to students. Love truth. Don't fall so deeply in love with your opinions that you place them above truth and insulate them from challenge. Have the courage to speak the truth as best you grasp the truth--knowing that you are fallible and may be wrong or partly wrong.

 If you are a lover of truth and a truth-seeker you will not yield to bullies who try to intimidate you into embracing their opinions. Nor will you permit yourself to become a bully who tries to intimidate others into holding yours. You'll present your reasons and make your case.

The worst form of censorship is self-censorship, when you silence yourself because you fear being bullied or cancelled by your "friends." Inclusive leaders in the law don't self-censor. The best advice I have ever heard about when to speak out is this: Be silent when you want too badly to speak, and speak out when fear whispers "be silent." 

Sacrificing Life in the Name of Life

 

  

“How lonely sits the city that was once so full of people” (Lamentations 1:1).

“Then I will eliminate from the cities of Judah and from the streets of Jerusalem, says the Lord, the voice of joy and the voice of gladness, the voice of the groom and the voice of the bride; for the land will become a site of ruins” (Jeremiah 7:24).

There is a very thoughtful article in First Things about how we have sacrificed life to preserve life in response to the pandemic. Here is a link. And here are some choice excerpts:

The effort to preserve life by prohibiting the living of it doesn’t work. It can’t work. It would work if we were mere biological machines, who need nothing but air, food, water, sewage, and shelter. It would work if men and women were nothing but detached shards of humanity who can flourish in isolation, if communion were an optional extra. It would work if life were nothing more than food, and the body no more than clothing. It would work if we could save our life by merely preserving it. 

That’s not how human life is designed. That doesn’t fit the real world. And when we try to force life into that mold, it backfires. We’ve sacrificed all the social and cultural activities that lend beauty and richness to life, things that make life more than bare biological survival. We sacrificed life to preserve life. In the name of love, we canceled love. 

It’s bound to backfire. In our frenetic necrophobia, we flee death, avoiding contact with others, locking ourselves in our homes, obsessively washing our hands, avoiding public places and gatherings—all for the sake of survival. But a life without human touch, a life in which we never venture, a life without risk is no life at all, but a living death.

A true cost-benefit analysis of our response to the pandemic should seek to quantify both the health benefits won and the quality of life benefits sacrificed. How many lives were deeply affected by lost jobs, lost businesses, lost social and cultural life, and utter loneliness and depression? We listened only to the scientists and we silenced the poets.