Law School Campuses In The Wake Of Kavanaugh

Episode Notes

Transcript

Above the Law – Thinking Like a Lawyer

Law School Campuses In The Wake Of Kavanaugh

10/23/2018

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Intro: Welcome to Thinking Like a Lawyer with your hosts Elie Mystal and Joe Patrice, talking about legal news and pop culture, all while thinking like a lawyer, here on Legal Talk Network.

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Joe Patrice: Hello. Welcome to another edition of Thinking Like a Lawyer. I am Joe Patrice from Above the Law and with me also from Above the Law, Elie Mystal.

Elie Mystal: I am drinking coffee at work that was brewed at work, like I am an employee of a real company.

Joe Patrice: Wow. It’s amazing how standards in this kind of new Lochner era have fallen so far that having coffee at work is your definition of being a real employee.

Elie Mystal: I have been campaigning for this goddamn coffee machine for eight years and it finally happened. And I know a lot of people in my office are going to say, it has nothing to do with you Elie. It was actually people that the boss likes that got the coffee maker. I don’t care. I tried for eight years to get this coffee maker, we have the coffee maker, I am drinking coffee, in the Trump era this counts as a win for me.

Joe Patrice: Okay. Cool.

Elie Mystal: So that’s not what I am pissed about today. Do you want to hear what I am pissed about today?

Joe Patrice: Oh, I am sure we do.

Elie Mystal: Okay. So I am a very good person it turns out.

Joe Patrice: I have heard.

Elie Mystal: And so —

Joe Patrice: Mostly from you.

Elie Mystal: And so I have signed, and my mom, I have signed up to fly my own ass out to Indiana where I have family to help staff the Voter Protection Hotline out in Indiana. Indiana is kind of a battleground state this year. Joe Donnelly is trying to — he is a Democrat trying to keep a seat in the red state. I have got family in Indiana so I have a place to stay. So I am going to help staff the Voter Protection Hotline, which is my kind of good deed for the election cycle.

However, that means that I will not be here in New York to vote on Election Day. Now, it doesn’t really matter, my district is not hotly contested in any way; however, I still want to vote, but I have to figure out how to vote absentee now because I live in a state that has no early voting and this is a larger point here, right, because as much as we want to complain about how conservatives and Republicans suppress voting rights, and they do and they are horrible about it, when the Democrats are in charge, they do nothing to ameliorate these problems.

New York State has been controlled by a liberal or a moderate conservative since like Duet Clinton, all right, and yet we still don’t have the kind of open-ended voting laws that would become a truly progressive state. We don’t have early voting. We don’t have same date registration. We still have closed primaries. This is a state controlled generally by left-of-center people.

Joe Patrice: But this is also a state that was a preclearance jurisdiction or certain areas of it, in particular in New York City, was a preclearance jurisdiction before Justice Roberts informed all of us that racism was over.

Elie Mystal: Exactly.

Joe Patrice: Yeah. But that’s my point, like the Democrats here have actually been somewhat problematic about voting rights for decades and decades, so much so that on a bill that basically said the south is racist, they threw in New York City.

Elie Mystal: Yes, exactly, right.

Joe Patrice: Yeah.

Elie Mystal: The larger point here is that when people overcome the hurdles placed in front of them to vote and vote in Democrats, Democrats have a responsibility to make voting easier for people in the next election cycle and it’s a responsibility that the Democratic Party consistently fails at.

Joe Patrice: Well, certainly the Democratic Party machine of New York, which I don’t know, you are using kind of liberally the idea that that’s Democrats because there’s been a lot of problems.

Elie Mystal: I am not aware of places west of the Hudson.

Joe Patrice: Yeah, that’s fair, cool.

Elie Mystal: So that’s what’s grinding my gears today.

Joe Patrice: I think that’s fair.

Elie Mystal: I have to figure out how to absentee vote, like I am a college student still.

Joe Patrice: There are a lot of resources available for you to do that actually, so.

Elie Mystal: I mean I am literate so I will figure it out.

Joe Patrice: Yeah. I mean the New York Bureau of Elections actually has like a thing, a form that you go through.

Elie Mystal: I mean look, my mom was born 1950 in Mississippi. She is not here for my complaints about how difficult it is to vote.

Joe Patrice: Fair enough. All right. Well, you are ready to change the conversation?

Elie Mystal: Yes.

Joe Patrice: Excellent. So today we are joined by Professor Melissa Murray from NYU, which is a good school; I am going to say the best.

Elie Mystal: Yeah, it’s — you didn’t get into Columbia, is that what happened?

Joe Patrice: No, I got into Columbia, I chose NYU. So we are joined — we are going to talk a little bit about what’s going on with the world and campuses post Kavanaugh. So welcome to the show.

Melissa Murray: Thanks for having me guys.

(00:04:50)

Elie Mystal: Professor Murray, I just want to start in by kind of taking the temperature on campus. We had a report on Above the Law a little while ago about how students were walking out in response to the Kavanaugh ascension, I guess you could call it. We know there’s been a lot of unrest at Yale in particular where Kavanaugh went to school. There’s been some unrest at Harvard Law School where Kavanaugh taught until very recently.

From your perspective, kind of on the ground actually, talking to students, like what’s the temperature on campus?

Melissa Murray: Well, I think all the things that you mentioned are correct. I think things have been a little pitched on the different law school campuses. I can speak for NYU where there was a student walkout last week. There were also I think calls for the administration to rebuke professors who had made statements in favor of Judge Kavanaugh and sort of discrediting Christine Blasey Ford.

I think there is a lot of stuff going on right now. I think there was always a little bit of anxiety that sort of was residual anxiety from the Trump election. I certainly saw a lot of that. When Trump was elected, I was serving as the Interim Dean of Berkeley Law and there was certainly a lot of student anxiety and that only increased with the travel ban and as many of the different Trump administration policies rolled out.

This I think was really different for law students because this particular confirmation battle was so contentious and so of the moment, incorporating these aspects of the #MeToo movement, questions about sexual assault and sexual consent that I really think it left law students kind of reeling and a little bit anxious about the whole issue of the rule of law and sort of questioning why they were in law school, what they are going to do when they get out of law school and what is the point of this enterprise in the first place.

Elie Mystal: That’s kind of perfectly to tease up my next question is how sticky do you think this unrest is going to be because I at least have the feeling that like this is all nice in terms of kind of low-level student activism, but when Jones Day comes to campus offering $185,000 year jobs, some of this unrest will dissipate?

Melissa Murray: Well, I mean let’s just be really clear, students today have a particular set of pressures that I think are unprecedented, even for people of our generation Elie who attended law school 15 years ago. Law school was expensive 15 years ago, it’s even more expensive now and so I can understand why students may feel the pressure to sort of sublimate whatever public interests or public-minded goals they have in the short-term for their long-term financial health.

I mean law school loans are real and they can be really crippling, especially if you are a first generation law student. So I would never condemn anyone for making the choice to go to Jones Day or any other law firm. I worked at three law firms during law school because I was paying for it myself.

But I do think that there are lots of ways that students are expressing vocally and in their actions their own anxiety about this particular moment and I don’t think that will dissipate even if they do decide to take up a job in BigLaw or to do the more traditional things that we have seen people do, go to clerkships or go to public interest.

I think this is sort of a galvanizing moment for this millennial generation, at least for those in law school, and I don’t think it’s something that they will forget and I think it’s something that will inform the way they engage with the legal system and the political process going forward.

Elie Mystal: Do you think there is a legitimate worry about any of these kind of civil unrest or any kind of protest statement coming back to bite students when they apply for jobs? My sense is that unless you are kind of standing on top of a police car shooting bullets up into the sky that most employers are not going to really care if you went down to Washington DC wearing a knitted pussy hat, right, like I think that most people will let that go.

Do you have a sense that employers are kind of watching to, I don’t even know what the word would be, to blacklist people who are participating in protests?

Melissa Murray: So I don’t have a terrific ear to the ground in terms of what’s going on in BigLaw practice. My husband is a partner at a law firm, he is not trying to blacklist anyone, but maybe he is anomalous, I don’t know.

It strikes me as perhaps beyond the pale to think that there is someone at a law firm making a list of students who are agitating or otherwise participating in the political process right now and I think as you say, going to one of the women’s marches would not be seen as sort of excessive.

(00:09:47)

I think a lot of students are doing sort of the things that we did. I mean I remember in law school I was one of the students who protested the lack of women of color on the tenure track at Yale. I don’t think it stymied me in my career, or maybe it has, I don’t know. But I have certainly been relatively successful in my career even in spite of that particular effort to make my voice heard.

I think there will certainly be some positions, especially if you want to work in government and maybe with this administration where vocal and persistent calls and protests will be met with a dim view, but I think that would be the case in almost any administration.

I mean students have such a broad digital footprint and employers can see so much of their lives because of what they are doing on social media or what’s available on the Internet that it’s just very hard to kind of sequester your personal life from your professional lives. I think most students, especially law students who are already a quite risk-averse group, are already sort of thinking about what kind of public face are they putting forward.

Joe Patrice: One thing that’s come up a lot over the last couple of years now and been certainly supercharged by this administration is more administrations making statements about how protests, they don’t like protests, people should be more civil, people should sit and just listen to speakers who are invited to campus. And Sessions went to Georgetown and more or less said that he wanted to turn the FBI loose on people who heckled.

Do you sense that campuses — in addition to like keeping one’s digital footprint good for work, do you think maybe the — there is a trend to extend what is and is not acceptable as a protest in a way that is intended to stifle people?

Melissa Murray: So I think this administration seems especially concerned with civility. I think it’s a pretty thin notion of civility, because it only extends in one direction and certainly no one is shutting off the President’s Twitter when it veers into uncivil territory.

But I had a firsthand look at what protests look like and what student agitation toward particular speakers might look like when I was at Berkeley where I spent 13 years of my career, a year-and-a-half of it as the Interim Dean, and I truly believe that we need a marketplace of ideas. I believe that those ideas should be diverse and that we should have speakers from across the political spectrum.

I also believe that students have the right and indeed we should respect that right to voice their objections to particular speakers and as long as it’s done in a way that doesn’t cause harm and isn’t unduly disruptive. I mean I don’t believe in a heckler’s veto and I do believe that we can exchange these ideas in a way that makes clear our objections.

Elie Mystal: I personally do believe in the heckler’s veto. I mean if you can — if you have got the voice for it, I don’t see why —

Joe Patrice: Well, no, but that’s not what —

Melissa Murray: It’s not quite what that means.

Elie Mystal: Explain that for the audience because that’s important actually.

Joe Patrice: The heckler’s veto being the idea that if a heckler of the government agency or school or whatever is saying we are not letting someone speak because we are afraid someone might show up, that sort of thing, which is different than just people heckling, which I feel as though Sessions kind of has pushed the — morphed those two in a way that’s probably not accurate.

Melissa Murray: Probably not accurate, probably not unprecedented. I mean I think there was a lot of conflation of these terms, sort of these understandings of what constitutes civil discourse and civil disobedience, and again, I come back to, there is so much agitation from the administration about students speaking up, but yet very little being said about the president making statements about people who are voicing their truth or articulating their views.

Elie Mystal: Yeah, it’s important to emphasize, because I do joke about it sometimes, but like people need to understand a heckler’s veto is me calling up Madison Square Garden and saying if you play the game tonight, I am going to blow up the arena, right, and then they can’t play the game because they have to worry about actual threats of violence.

Joe Patrice: Assuming the game is speech, which whatever.

Elie Mystal: Right.

Joe Patrice: I mean for the Knicks, it’s certainly not athletics, so it’s probably speech.

Elie Mystal: If I show up at Madison Square Garden and I am like, oh my God, Tim Hardaway, Jr., you should be fired and I scream that for four quarters, that’s not me trying to stop the game with my speech, that’s just me getting my money’s worth, so that’s an important distinction.

In any event, so Professor Murray, you alluded to this a couple of times, Joe is a proud graduate of NYU, you have now been at NYU for a while, you have been at Berkeley for a while, what’s the difference, because NYU has a reputation of being a very good school, Berkeley has this reputation of being a very good school, with crazy liberals running around eating kale and all this kind of stuff. Is there a character difference between kind of your least common denominator Berkeley Law student and your least common denominator East Coast student?

(00:14:57)

Melissa Murray: So I have actually found NYU to be very familiar to me, at least the students. I think they are very similar to the Berkeley students. The Berkeley students I think are for the most part quite liberal, although not decidedly so. I mean we have a lot of first-generation law students at Berkeley, a number of undocumented students, a number of disabled students, I mean it really runs the range and they are not uniform in their views and a lot of them have quite different views, although I will say I think they are more to the left, but I think there is a range on the left and there is a range even on the far left. I mean to be truly liberal at Berkeley might actually be to be Stalinist, I mean there are students who are really quite left of left at Berkeley.

I think NYU is very similar. The students, like at Berkeley, are excellent and they tend to sort of cluster around liberal viewpoints, but there is a range and there are students who I think are more sort of to the center, more moderate, just as they were at Berkeley.

So to me, teaching here doesn’t feel altogether different. I mean it actually feels incredibly familiar. There is still the same sense of public interest and public mindedness in the school, even though this is a private school and Berkeley was a public school. So for me, like my environment has changed, but sort of what I am doing and the students that I am working with, that hasn’t changed much at all.

Elie Mystal: When you say that one of the things that jumps out to me is that if I was talking to a conservative who was listening to that, they would have taken your statement and been like yes, and that’s why the white man is actually discriminated against at law school. I mean that’s a big thing in conservative kind of press.

And I think trying to be as fair of that argument as I am willing to be, one of the things that I think helps to explain the success of say the Federalist Society on campus as opposed to the success of the American Constitution Society on campus is that conservative law students do feel like they are in a minority amongst their peers. The FedSoc also has like tons of coke money, but beyond that there is that sense among the conservative student body at major law schools for the most part that they are in the minority and they are.

What kinds of things do you think a university, a law school needs to do to make sure that the conservative minority at law schools are feeling, I don’t even know what the word is, included or respected or whatever the word is for allowing them to have their completely wrong-assed views, but feel safe while saying them?

Melissa Murray: Right. So yeah, I think conservative students are probably in the minority at most law schools. I do think it’s overstated how liberal the whole population of law students actually is. I mean I really do think that there is a range.

Like today, I taught Obergefell and put out the radical notion that I thought the decision was wrongly decided because I think marriage is over-determined in our society and I got lots of students who are like, okay lady, let’s not even talk about what’s wrong with marriage. I mean there are a lot of people who are very pro marriage which I think is a more conservative kind of viewpoint, like sort of uncritically accepting of marriage.

And so I just would not say that they are all to the left to the point of like they are all leftist of a sort, I think there is much more of a range in all law schools, and in the same way I think there is a lot of range in the conservative students. There will be some who are socially conservative, some whose conservatism is animated by religious principles, and then there are those who I think are more fiscal, small government conservatives and those who are like sort of really libertarian and thinking about things just like get the government out entirely, not just small government, but no government. And I think there is a range and when we talk about liberal and conservative, it’s really reductive.

I also don’t think that they are alone. I mean I know that the rap on law schools is that all of the professors are really liberal and far to the left and that really has not been my experience either at NYU or at Berkeley. I had some very prominent conservatives as colleagues at Berkeley and here at NYU as well, and these are not shrinking violets who retire to the sidelines chastened by the liberal majorities of law schools. They are out in front and they are vocal and they are challenging and they are a big part of the intellectual life of both of these law schools and I think there is a range of them.

And so the idea that these students are alone, I mean that strikes me as a little overstated and I think it also understates the role that most professors, including myself, really try to do in making sure that both sides of an issue are properly ventilated in the classroom, like anyone can read what I write and have a sense of what my priors are, but when I go into the classroom, I try really hard to challenge my own assumptions, to challenge the assumptions of my students, to make them take opposing viewpoints and to really sort of get to the heart of both sides of a debate.

(00:20:15)

Joe Patrice: Yeah, I’ve felt that the complaints that you occasionally run into out there where folks or conservative law professors are saying, oh, we need more intellectual diversity programs, which we’ve written about on the site and the problems that I have with that sort of language, which I feel is kind of hijacking actual diversity concerns with basically that they want more friends in the break room.

But, you’re right about — wanting to focus on how, if people want conservative folks on-campus, they are there and they are not shy. In my experience the more conservative the law professor, the more vocal they make sure they are that you know that they’re there.

So when you made that point, it really resonated. I’m like you always could tell who those people were.

Melissa Murray: Yeah.

Elie Mystal: And in my experience, I would always, when I was in school, I kind of — to the except that I had choice which you have less in law school than you do in college, but you still have some in law school, I sought out the conservative professions. I tried to take their seminars and I tried to take their groups because that’s who I’m fighting against, right, like I need — the whole point to me of getting an education right is to improving your own knowledge base in your own arguments, and like, I can’t sharpen my arguments unless I’m hacking at the grindstone.

Melissa Murray: I think that’s right and I tell students that as well, I mean, I tell the liberal students who are clamoring for a safe space that law school is inherently a space where there are going to be issues that will make you uncomfortable, like we can’t run from that discomfort and if you’re going to have the kind of effect, an impact that you want to have, you really do have to grapple with the ideas and the issues that scare you.

Joe Patrice: The safe space thing has been interesting and we’ve written about it a bit here. So I’ve always felt and since you’re actually on a campus, maybe I’m wrong, I’ve always felt that like the safe space discussion as it plays out in the media is that all these students want to never talk about any topics and just pretend things don’t exist and have unicorns.

And I feel like that’s at least from my sense, I don’t think that’s what people are saying, I think what they are trying to say is that there are a million and one ways you can teach certain concepts and when professors are insensitive to the idea that like because sometimes I feel like at least certainly like when I was in law school, you can choose graphic details for your fact patterns that you are really just kind of being gratuitous.

And I feel as though the safe space people were more saying like you can teach this concept a million and one ways, why do you insist on being gratuitous, which I think is different but maybe I’m wrong and maybe it is that everybody doesn’t want to talk about it, but that’s what I’ve always kind of sensed, just from conversations with younger people.

Elie Mystal: For those playing along at home, that was Joe Patrice talking about the n-word without saying it. Good job, Joe.

Joe Patrice: No. Oh, it’s interesting I wasn’t, but that’s fascinating and that is a good point because there are some instances that we’ve written about like that, but I was actually in my head when I was thinking about worthy now somewhat embattled professor who I won’t name, who’s talked a lot about how students don’t want to talk about rape and crim law anymore. And I’m like, well, is it that they don’t want to talk about that or that they don’t want your fact pattern to be just the most lurid attempt at an SVU spec script?

Melissa Murray: I think it’s that. I think there’s again a range. I mean, I don’t think we ought to reduce all student thinking on this question to a single perspective. I think they’re actually quite varied and how they think about it. I think there are a number of students who are quite thoughtful about this who just object to what might be seen as a gratuitous and gratuitously triggering kind of explication an issue.

I can understand that and I think that’s fair, there are lots of different ways that we can present material and have the same pedagogical effect. But I also think that there are some students who object to the voicing of certain ideas, not because they object to the idea in principle but because they may suspect that there’s some sort of underlying other reason for the claim or the issue.

So, for example, I’ve spoken about this on another settings but one year when I talk Constitutional Law at Berkeley and we were doing affirmative action, a student, who is a White student, raised a question about affirmative action and asked basically like whether or not affirmative action didn’t just sort of detract from the achievements of minority students, like does it always sort of cast a pall on what other students are doing, about what minority students are doing?

(00:24:55)

And, I let him make like make this statement and I engaged it because I thought it was an interesting counterpoint to what we had been talking about and I thought it usefully ventilated some aspects of the Court’s jurisprudence namely Justice Thomas’ dissents from the affirmative action cases.

And then later in office hours, I had a student who came forward and was really incensed and angry with me for giving that student a platform to say this. And yeah, I think I was taken aback by both, the vehements of her objection and her unwillingness to sort of to hear his side of it. And as we talked about it, it became clear to me one of the reasons she objected and it became clear quite quickly was that to her, his objection was rooted in some sense that she didn’t belong there that she wasn’t good enough to be there and that was really what was animating his comment.

And it wasn’t made in a spirit of sort of generous and general inquiry but rather as a way to discredit African-American students. And so, I can understand that. I can understand sort of feeling that way, and that students may have very different views about what a statement might mean or what’s animating a statement and that’s the difficulty of a diverse and pluralistic classroom these days.

Elie Mystal: Absolutely, I’m so glad you made that point, certainly from my experience, I’m in school that the most hurtful and the dumbest comments never came from the professors. It was always from a fellow classmate who would I guess under the spirit of engaging with the topic or with the issue would say just dumb ass hurtful crap, and then kind of — and then to me, that’s where like professorial skill comes in because like a good professor is going to kind of turn that around and sufficiently challenged that student and kind of, for lack of a better phrase, make it all okay.

Whereas, a less good professor will kind of just like let some of this crap lie and then I would always feel as one of all my life I have been one of the only African-American students in any classroom I’ve been in. And then I would feel like I then had more pressure to respond to that student or directly in class, in public or later on after class just to not let that statement kind of hang out there, which was never fun for me because I usually hadn’t done the reading. So, I am always coming off the pace.

Melissa Murray: I really — so my colleague at Berkeley, Russell Robinson has this terrific term called Perceptual Segregation and it just sort of stands for this idea that different people may perceive different things about the same statement or the same event, and even within the same racial group like I was the same — the student was also Black and I am Black and I did not perceive the other students’ comments to be animated by a sense of Black inferiority.

But the student did and I think that sort of relates to just sort of the different positions we were in, in the classroom, but I think that’s a really important thing. I think students are coming to the classroom with really different views, really different perspectives and really different experiences and they may perceive the statements of their colleagues, of the professor in wildly different ways.

Elie Mystal: Living with people is hard.

Professor Murray, thank you so much for joining us this week. I really wanted to get you on. I really want to talk about campuses right now. A lot of our listeners are students, so hopefully this discussion was helpful for them, and hopefully, it was helpful for people who haven’t gone to law school yet knowing the — to hear a little bit about what you could be getting yourself into.

Melissa Murray: So, Elie, can I make one last point?

Elie Mystal: Sure.

Melissa Murray: So when the Trump administration, I guess, came to power at the election of November — in November 2016, one of my former students from Berkeley was working at Morrison & Foerster. So this sort of goes back to your point about people going to BigLaw.

And she was so incensed by what she saw and about the direction the country was going in, she quit her job at Morrison & Foerster and with some other like-minded friends, they founded a group called Sister District Project that focused on statewide legislative races, and her whole point was if we are going to change the political tenor of this country, change the policy, we actually have to focus on turning state legislatures to more progressive directions.

And so, she quit her job, started this organization and they immediately began work trying to turn red legislatures blue. And I think it’s such a great lesson for law students, you can use your law degree in ways that actually affect the change that you are concerned with, you can use the training that you’ve been given to actually do something on the ground and you can leave the comfort of your law firm perch in order to do that too.

(00:30:01)

So, none of this is finite, none of this is inevitable, and there’s definitely work for young, active, progressive minded people to get involved in.

Elie Mystal: You’ve made me feel so ashamed about my excitement over my corporate coffee maker.

Joe Patrice: Yeah.

Elie Mystal: But I’m going to Indiana, so it’s all cool.

Joe Patrice: Yeah. That will make up for coffee.

Elie Mystal: I am doing it, I am doing it. I am there.

Joe Patrice: Okay. Well great. Thank you for joining us and thank you all the listeners for joining us this week.

If you aren’t already subscribed, you should be, that way you get all of these episodes when they first appear. You should write reviews of all of these shows, not just give it stars, of which you should give five, but also write reviews and tell people about it, that helps us a lot more in moving up the algorithm of your podcast service as a — when people type in, hey, law, does this show up? That depends on you and the reviews.

Also you should read Above the Law, obviously you should follow us on Twitter, he is @ElieNYC, I am @JosephPatrice. We also have a couple of podcasts unrelated here through Above the Law, we have a Book of Business podcast, about laterals, we have The Jabot which talks about social justice issues. We’ve got the Legal Talk Network’s whole range of shows, especially On the Road, which I occasionally host, so keep an eye out for whenever I do those.

And with all of that I think we’re done. So thanks everybody and we’ll talk later.

Elie Mystal: Peace.

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