Wednesday, October 3, 2007
Continuing our series of responses from various legal luminaries to the question: What is the single best idea for reforming legal education you would offer to Erwin Chemerinsky as he builds the law school at UC-Irvine?
Derrick A. Bell, Jr. (Visiting Professor of Law, New York University School of Law; first tenured black professor at Harvard Law School (1971) who relinquished tenure (1992) to protest lack of women of color on faculty; autobiography: Confronting Authority: Reflections of an Ardent Protester):
This is not another Stanford Erwin will be leading, but a public law school subject to strong, political influence and control. There is little doubt that despite substantial improvement in legal education since I graduated 50 years ago, it remains the most pedagogically poor of all professional schools, with substantial resistance to the reformation that will simply not happen. It would be too expensive, require too much time of those faculty whose primary interest is scholarship, and in the final analysis, too revealing of the truth about law that Ralph Bunche set out in a 1935 essay published in the Journal of Negro Education and edited by Mark Tushnet in The NAACP: Legal Strategy Against Segregated Education, 1925-1950, 11-12 (1987 ed.)
Dr. Bunche, writing to NAACP lawyers who were relying on the Constitution as the basis for racial reform:
[R]eliance on law to remedy racial injustices rested on the “inherent fallacy . . . in the failure to appreciate the fact that the instruments of the state are merely the reflections of the political and economic ideology of the dominant group.” The NAACP, Bunche said, “had conducted a militant fight under this illusory banner.” The difficulty was that “the Constitution is a very flexible instrument and that, in the nature of things, it cannot be anything more than the controlling elements in the American society wish it to be,” adding that public opinion was unreliable because it was “seldom enlightened, sympathetic, tolerant or humanitarian.”
Bunche warned that even if occasional victories might be won from the courts, essentially at random, they would prove to be hollow because “the status of the Negro . . . is fundamentally fixed by the functioning and demands of [the economic] order,” which the courts could not affect. Lawsuits, “while winning a minor and too often illusory victory now and then, are essentially inefficacious in the long run. They lead up blind alleys and are chiefly programs of escape.”
Here is wisdom almost a century old that explains the limits of constitutional doctrine to effect change or even to move much beyond where the populace happens to be. To an extent greater than most will acknowledge, the law involving race reflects dramatically the law in general. Erwin Chemerinsky is a master of teaching and writing about the law as it is generally viewed. He should not exhaust his talents trying to create a structure that at best would reveal just how weak a reed law is for those subordinated in an economic-political system that rewards a few and encourages the rest to blame one another for their misfortunes.
For all the posts in the series, see here.