An average UI undergraduate student sees the Chancellor twice in his college career: convocation and commencement.  There is no meaningful interaction, only massmails that are used to maintain the University’s public relations image.  As students with rising tuition and fees, however, we did pay his $350,000 base salary.

When I was college shopping during my junior year in high school, I remembered a tour guide at a pretentious east coast school exclaiming that her university’s president hosted a weekly coffee hour open to any student.  Another tour guide told us that the president of her school invites graduating seniors in small groups to a dinner at his home.  I do contend that these are very different schools, with populations of around 9000 students compared to our 42,000.

The average student here probably doesn’t know who the Chancellor is/was, let alone that a Vice Chancellor for Public Engagement even exists.  Sure, we need to keep our surrounding community engaged and interested in order to prevent a civil war between the UI and the greater Champaign-Urbana area.  But what about student engagement? Our needs and concerns need to be considered equally important as those of the donors who keep this institution afloat.  As students, we should at least be treated like constituents or consumers.  Why is it a prerequisite that a student who wants to voice a question or concern to a member of the administration must be savvy at navigating through a bureaucracy?  Perhaps this is why the rate of student giving at the university is so low.

Image courtesy of CITES at the University of Illinois at Urbana Champaign

Students and members of student government shouldn’t have to come to the administration, the administration should come to students.  What kind of place do we attend where administrators handpick student senators to serve on “campus committees”?  When tough questions need to be asked both on these committees and around campus, it may be difficult after that administrator gave you the resume booster of serving on the Campus Lighting Committee or the Public Safety Advisory Committee and even a letter of recommendation for your law school application.

There is a simple fix to this solution- holding office hours or even a quarterly forum open to all students and publicized accordingly.  Hey, I can see a purposeful use of the massmail system!   While we’re at it, let’s actually make good use of the term that President White so often recycled during the admissions scandal.  A firewall needs to be set up to protect ISS and the Office of the Student Trustee from administrative influence so these two units remain accurate voices of the student body.

Remember in elementary school when we once believed that our teachers lived at school?  It’s funny that you never run into the Chancellor or any of the Vice Chancellors around campus- not once have I bumped into any of them while waiting in a Campustown food line.  I’m starting to look back at this grade school superstition and think that our administrators must live in the Swanlund Building.

We don’t yet know who our next Chancellor is going to be and what kind of a leader they are.  Let’s hope that he or she steps out of the Swanlund Building and decides to take a serious look at these issues and practices.

Consider the set back DADT posed to the Clinton Administration, and how it compromised health care reform.  I’m sure Rahmbo has. Despite an evolution on DADT in the public mind, moving the issue to the forefront will undermine Obama’s efforts to extend affordable health care to all Americans.

I submit that more gays are harmed by the lack of health insurance than by DADT.  And more gays are harmed by the global financial crisis than DADT.  These are broad American problems that are too important to allow distractions from any narrow activista interest group.

You can’t expect smart progressives to take up polarizing fights on issues effecting a small subset of Americans at the expense of possibly losing political wars of paramount national importance. Be patient.

Brian, it’s still early in the Obama presidency.  Don’t get angry yet.  There will be time to hold him accountable.  Timing is everything.   Imagine you’re a senior White House advisor.  When would you tell him to take up the issue if your interest was serving the American people and President Obama instead of just the LGBT community?  I’d like to see him take this issue up right after the 2010 election, preferably in a lame duck session.

I share the growing fear that the Obama administration has decided to distance itself as much as possible from gay rights issues, and that it has no plans to act on behalf of the gay community unless it is absolutely forced to. It’s hurtful and disappointing and, for a president who has been fairly gutsy on national security and foreign policy, genuinely surprising to me.

But today’s announcement from the court brought about a different wave of frustration, rooted in the fact that the Obama administration’s argument and the court’s decision are legally correct. “Rational basis” is a level of scrutiny that the government is almost always able to meet, particularly in a context involving military policy. And while Lawrence v. Texas, the 2003 case striking down sodomy laws, isn’t the most clearly written opinion in the world, it’s pretty clear that it applies rational basis and finds a violation of an individual right to privacy.

That might sound like a pretty progressive ruling, just as the Massachusetts Supreme Court same-sex marriage ruling sounded pretty progressive in its holding that denying LGBT people the right to marry is irrational. The problem with them is that they make for pretty weak precedent. There are basically two approaches courts can take on gay rights cases. First, they can avoid recognizing the rights of LGBT people as LGBT people and instead root their decisions in broad individual rights (like privacy) or strike down laws as completely irrational. But privacy is only going to apply in certain areas (whereas it would have no bearing on, say, same-sex marriage, or DADT), and finding that laws are irrational is pretty legally tenuous and unconvincing. Alternatively, courts can recognize that the LGBT community constitutes a class of people not unlike women or racial or religious groups that have been historically targeted by the majority. If the courts were to make these kinds of decisions, then the level of scrutiny they could apply to laws affecting gay people could jump up, such that the government would be required not just to show the “rationality” of the law but a compelling need for it.

Ultimately, DADT was always destined to be an issue dealt with by Congress and the White House rather than the courts. But the resistance by the courts to provide LGBT people with heightened protection affects marriage rights, employment rights, immigration, and so on. While the courts, predictably, have been the most willing of the three branches to protect gay rights, all three branches have been pretty weak on these issues. The bulk of my anger will remain focused on the president, but he’s not the only one failing to protect equality.

I am a twenty-five year old boy from the suburbs of Chicago. I am a boy, because I have never left the United States. I am a law student at the University of Illinois, but I do not hope or plan to walk a predictable path. In recent months, my legs have grown a festering itch to travel. Aside from a few small gestures, I have done little to help anyone but myself. I now set out to change.

During my undergrad years I accomplished many things that allowed my parents to brag to their friends. I was a columnist for the Daily Illini; I started a blog that has blossomed to host many contributors; I participated in 13 public policy debates; I served on many committees and started a new student organization; I won multiple awards and I finished 3 majors. In law school I worked as former Illinois Governor Jim Edgar’s research assistant and have served on other committees. None of that matters. I used to boast of these things. Today, I do not. Who did I help? Where did I travel? No one and no where. I do not feel shame or guilt; I feel inspired and burning to change.

What makes my perspective unique and interesting? Nothing. But that is my value. There are many people in my generation who have humanitarian ambitions. However, many more people in my generation have chosen the safe life. Many of these people fit my description: white, middle-class and conservative. I grew up among that large swath of Americans who prefer to shop at the suburban Woodfield Mall for five hours rather than volunteer for an hour on Chicago’s South Side.

I see a battle between good and evil in the world, as well as large groups of apathetic gray. I have written a song that conveys this sentiment. I believe in the kind of righteous might that Franklin Delano Roosevelt and John F. Kennedy have promoted. I believe in pragmatic idealism and in the humanitarian good of economic development. I went to law school to craft a sword. I have many passions and journalism has always been one. Nick Kristof’s brand of journalism is righteous might.

I recently co-founded a Chicago crime data blog that empirically investigates the ingredients of violent and property crime. Nothing turns me on more than browsing international development statistics. Many scholars have produced great research, but we need more soldiers of good. The brand of journalism that Kristof practices inspires new humanitarians in the developed world. Although praise will sound disingenuous in the context of this contest, I hope to be one of many who follow Kristof’s position in journalism. He travels to the poorest places in the world and puts his family at risk of violence in order to show the most privileged people in the world a naked glimpse of the covert cruelties that still flourish in the blood of developing societies. I hope to do the same this summer alongside Kristof and someday I will do the same even without the good fortune of his aid.

When people ask me how I am doing, I reply, “I’m always good.” I justify the improbability of my claim by explaining that I judge my condition against all human life, not just against my neighbor. I cannot think of a cogent argument for why any single human life should be more valuable than any other single human life. Trivial and artificial boundary lines prevent humanity from efficiently allocating its vast wealth. How much more good would a couple of $700 billion international aid packages do for humans than a couple of $700 billion stimulus packages? Humans are humans. Writers will convince us of this.

My generation dances on a historical fulcrum. Previous generations had substantial wealth, but my generation has enough wealth to create the luxury and the duty to help people outside of our families, our communities and our borders. My grandfather said to me that every one should leave something good for posterity. He left grandchildren and the opportunity for me to become a natural-born world saver. Watch out – I am coming. The soldiers of good are on the march.

Andrew Mwenda, a journalist in Uganda, has an aggressive and unique view of financial aid that flows into Africa. Mwenda created the Ugandan newspaper The Independent after growing frustrated by government censorship of the Ugandan newspaper he had previously written for. The Independent promises readers “Uncensored News, Views & Analysis.” Mwenda is bold and aggressive.

TED holds conferences around the world that invite innovative speakers to present their ideas on a diversity of subjects. Mwenda argues in his TED talk that aid hurts African economic development. Bono attended Mwenda’s talk and he (rudely, I think) interrupted Mwenda. I have not seen a video, but I have read that Bono spent his entire TED lecture rebutting Mwenda instead of reading from his planned lecture. Mwenda’s thesis, if accurate, undermines nearly everything that Bono has devoted himself to in Africa. Andrew Rugasira, Chairman of Good Africa Coffee, wrote an interesting op-ed response in the Financial Times to the confrontation. Rugasira writes, “[T]he Bonos of this world need to listen more and display greater humility to African perspectives on African problems.”

TED introduced me to Mwenda and to another great contributor to our world: Hans Rosling. He is a professor of international health in Sweden. Rosling’s TED talks, Debunking Third World Myths and New Insights on Poverty and Life Around the World, present an empirical and large-lens view of global development. Not only does he give us wonderful insight into human economic and health developments, but he tells his story in a compelling and graphical way. The first time I watched one of his TED talks, I said to myself, “I wish that I could play with those awesome bubble time-series graphs.” Rosling granted my wish.

You can play with Rosling’s time-series graphs at his Gapminder website. Gapminder lets you play with tons of data. It allows you to manipulate the graph to present the data in any way you can imagine. Gapminder gives you access to videos of numerous talks by Rosling. The “Downloads” portion of Gapminder allows you to view pre-loaded graphical presentations. I enjoyed the Human Development Trends presentation.

Gapminder focuses on making interesting international development statistics accessible and digestible to the public. Rosling believes there is a gap between countries, within countries, and between the organizations (i.e. IMF, UN) that collect data and the public’s consumption. Gapminder tries to displays the gaps between and within countries and it tries to connect the public with important data.

Something else that is sweet about Gapminder is that Google bought their Flash graphical engine. This news means that you can upload any of your own data to the Gapminder engine and set it in motion. Google allows you to use it either as gadget on iGoogle or to add it as a widget into your Google Docs spreadsheet.

Well, first off let’s get on the table that this won’t fix all of your problems, but it’s a start.

Sick of paying high property taxes? Taxes that pay to send her kids to school? His golf course that you never use? The library with the musty books? That black hole of a mass transit district?

The plan: Incorporate your own low-tax municipality! Within months you’ll see business flock to you and residents clamor for housing and you can sit back and bask in the fact that your property taxes are 20, 30 or 50% lower than that guy in that place. Just follow these easy steps!

1) Now this one’s a little tricky, but you have to either a) find yourself a nice plot of undeveloped land adjacent to a (relatively) big city or b) find an area of relatively low-intensity use with high average incomes within an existing municipality or unincorporated area

2) Incorporate! Make a city charter and become your very own city!

3) Form a mass transit district with no bus or rail services so that the mass transit from the city can’t start serving your area and you can keep property values high. This means you can keep taxes low while generating higher revenues.

4) Turn all of your major thoroughfares and arterial roads into state highways. You get the road, the state picks up the tab!

5) Zone all of the land near major roads commercial and with those low low property taxes, businesses will trip over themselves to get into the action!

6) Avoid expensive, ongoing public works projects. This means no or few parks, no library, no museums. That’s why you have to be next to a city. They pay for the stuff and you get to use them – at no or low cost! Oh sure you might have to pay to use the library, but then only the people who use it pay, not all the rest of us.

7) Zone to restrict apartment buildings. More people per unit of land = more chance of children = more schools. Keep the density low! In fact, if you can help it, restrict single family dwellings too. They’re a tax drain. Commercial = good for city coffers, residential = bad.

8) Don’t have a fire or police department. Contract them out to the city. You’ll save the capital costs of maintaining the building and won’t have to worry about labor relations or spikes in cost. Contracting is great for your new little muni because you don’t pay the full  cost of the service. Don’t worry though, you’re not stealing it, it just doesn’t make sense to have a full police and fire force for your little piece of Mayberry.

9) Join the best school district in your area. They’re not tied to municipal boundaries and people will pay a premium to see their kids going to the best school around.

10) Keep it homogeneous! I know I know. This isn’t as easy as it sounds. Homogenous how? Well start with income. You want everyone roughly equal so that no one feels like they’re paying more. If you can exclude other undesirable types, that’d be great too. Remember, people will pay more for services for people who are like them.

With these simple guidelines, your taxes will be low, stay low, and your town will be rolling in revenue. No municipal crunch here folks!

Freyfogle’s title aptly alludes to R.W. Emerson’s famous graduation speech entitled, “The American Scholar.” You must read Emerson’s address, if you have not already. Oliver Wendell Holmes, Sr., father of the great Supreme Court Justice Oliver Wendell Holmes, Jr., described Emerson’s address as America’s “Intellectual Declaration of Independence” from European thought.

The American Legal Scholar
Eric T. Freyfogle
Remarks for Board of Visitors Meeting
University of Illinois College of Law
April 21, 2006

I want to offer today some scattered comments on the state of the legal academy as
I see it, with particular reference to the plight of the law professor as legal scholar.
The situation, overall, is a familiar one. It is the best of times and the worst of times.
Times are good because support for legal scholarship is at an all time high. The scholarly
laborers are many; they are exceptionally able; they are putting in more hours than ever; and
their productivity is prodigious.

It is the worst of times because this steep rise in the supply of scholarship has not
been matched by a rising demand. Readership is stagnant, particularly of the kinds of
scholarship that scholars value the highest. Most practicing lawyers find little value in law
journals, much less in scholarly monographs. Judges rarely glance at such writings unless
litigators draw attention to them. Exceptions exist, to be sure, but for every Wayne LaFave
whose writings draw citations by the thousand there are dozens of scholars whose writings
gather dust on shelves or experience the virtual equivalent. To a large degree we write for one
another, which is to say we provide the raw materials for our colleagues to use so that they
can provide raw materials for us to use. The predicament is common in the larger academy.
Law was not always this way.

The issue I’m starting on is a big one, so let me narrow it. I want to think particularly
about the role of the legal scholar within the modern research university. Briefly, who or what
is the American legal scholar?

Within the larger university research is more important now than ever. Indeed, in the
career of the individual faculty member, it could hardly be more vital. What counts is not a
scholar’s knowledge much less her wisdom, it is what she publishes. Scholars are known by
the ways they focus their research, and they tend to interact with people whose research shares
the same narrow focus. An inevitable consequence of this is the fragmentation of the academic
enterprise into ever smaller pieces. And this narrowing and fragmentation occurs ever earlier
in a scholar’s career. Students beginning graduate study are often required to pick a research
topic and stick close to it. At one time, the Ph.D. course-work of a scholar covered several
broad fields. Central to the Ph.D. program was the preparation for and passage of
examinations that covered broad fields. These preliminary exams have largely faded away in
many disciplines. They have become mere adjuncts of research activities. Today’s Ph.D
students are expected to know enough to do their research, and little more. Scholars spend less
time following the writing in larger fields. They congregate in groups and develop assumptions
and methodologies that characterize their groups, often with little critical commentary across
group boundaries.

The campus is certainly aware of this problem, though the tendency is to
underestimate it. And so the call has gone out for what’s termed “interdisciplinary work.” In
practice, though, interdisciplinary work mostly involves the creation of yet more research
specialities, which are hardly broader than other specialties. Another common response to
fragmentation is to form research teams comprising scholars from different research
specialities. But collections of specialists too often remain just that–collections of specialists.
What’s really needed are individuals who can bring together the many research pieces and
make something larger of them–individuals who can evaluate the pieces, pruning them here
and there, challenging weak parts, filling in gaps, and otherwise separating the sound from the
unsound before putting them to use.

These days the University is loaded with specialists who work on tiny pieces. It is
woefully short of people who can bring pieces together; people who think about larger
questions in sound, well-grounded ways. To use a military analogy, we overflow with field
enlisted personnel but are short on officers, particularly high-level officers who understand
the whole field of action. In biological terms, we are lacking in organisms that reside high on
the food chain. We need more top-level feeders, not primary producers.
Work at a high level entails induction and synthesis that is not at all easy. It requires
skills quite different from the skills of basic research. The difficulty of such work is routinely
underestimated. And so is its importance.

This predicament is hardly new–academic fragmentation began generations ago–but
the problem is more acute now than ever. Decades ago the important conservation figure Aldo
Leopold lamented fragmentation in an essay entitled “Conservation Economics.” “The plain
lesson,” Leopold wrote in 1934, “is that to be a practitioner of conservation on a piece of land
takes more brains, and a wider range of sympathy, forethought, and experience, than to be a
specialized forester, game manager, range manager, or erosion expert in a college or a
conservation bureau. Integration is easy on paper, but a lot more important and more difficult
in the field.”

Aldo Leopold was skilled in synthesis He understood our land-use predicament
broadly, in social and natural terms, and was alarmed at the narrow-mindedness of his fellow
professors at the University of Wisconsin. Most specialists showed little interest in how their
work fit together with the work of others, if it fit together at all. When it came to making landuse
decisions the land manager needed an “all things considered” perspective on the situation.
No specialist could provide it.

My point, which I trust you can sense, is that the academy has clear needs for
scholars who can undertake an all-things-considered look at fundamental questions, and legal
scholars are as well situated as anyone to perform the work. The law is a setting in which
multiple considerations come together to inform judgments and guide action. The able lawyer
who counsels a client takes into account all of a client’s needs, not just some of them. The able
trial lawyer pulls together all relevant facts and technical studies from many disciplines to
interpret a situation. Legal scholars should do the same.

The highest calling of the legal scholar today is to fulfill the role of generalist, to serve
as the field grade or general officer, as the top-level feeder in the food chain, as the one who
listens to all the narrow land-related experts and then plans how to use a piece of land.
My sense and my fear is that, just when the academy most needs us to work as
generalists, legal scholars are heading in the opposite direction. We are heading, or at least
tempted to head, down the path followed by other disciplines, toward increasing specialization
and fragmentation. Like our colleagues elsewhere we legal scholars are dividing into groups
and cliques that address particular issues in particular ways. Increasingly peer assessment
means assessment by other group members, which is to say by people who share the same
perspective. Even worse, this fragmentation is increasingly taking place along methodological
and ideological lines. Thus, a person who writes about property law from an economic
perspective is judged only by other scholars who also employ an economic perspective and
who embrace the particular values embedded in it, not by property scholars who address the
same legal issue from other perspectives. Some people view the trend as a good thing. These
are the people who propose that we load up our law faculties with scholars with Ph.D.s, who
would presumably draw upon their specialized training to bring rigor to legal work. But rigor
of this type can bear a striking resemblance to narrowness.

Let me be even more blunt in my worries. The legal academy is endangered today by
the rise of various forms of intellectual and moral fundamentalism. It is being endangered by
scholars who see the world simplistically, and who cut quickly through complex, real-world
tangles by using some elementary ideal. There is the ideal of maximum individual autonomy–a
good, all-purpose tool to chop away at a wide variety of laws and regulations. There is the
ideal of economic efficiency, often presented or misunderstood as a normative goal. There is
the call to unleash the market and promote free trade, as if humans existed to serve the market
rather than the reverse. And there are calls to advance the plights of particular races or ethnic
groups, and to critique laws chiefly in terms of whether they do or do not help particular
peoples. Fundamentalism makes scholarly work much easier, there’s no doubt about it. It
allows a scholar to produce a lot more, quantitatively. And in today’s scholarly world, more
is better. A scholar’s work might draw criticism, even ridicule, from other scholars. But it
makes little difference when peer review means review by people who share one’s
fundamentalism. Fundamentalism becomes respectable when enough people embrace it.
Let me illustrate this trend by taking up the case of private property rights in nature.
What kinds of private rights in nature should exist, how should they be allocated and
reallocated, and what processes or mechanisms might serve best to promote good land uses
at landscapes scales? Even more broadly, how might private property as an institution
promote the common good? These are difficult questions. They are not for the narrow minded.
And there is no Ph.D. program that positions a scholar to answer them. Indeed, to the extent
a Ph.D. fosters a specific, narrow perspective on the world it can be a positive hindrance to
an attempt to understand the big picture.

Many of you may have paid attention to a property-related Supreme Court ruling
from last term, Kelo v. City of New London, an eminent domain case. The issue before the
Court was whether a local government could condemn private land in an effort to promote
economic development in a deteriorated down-town area. The case was a simple one in the
sense that prior rulings by the Court easily sustained the government action. But the ruling
drew sharp dissents and loud public criticism.

I mention Kelo because it is precisely the kind of case where an all-things-considered
assessment is both essential and difficult. Kelo posed two basic policy questions: Do local
governments need this particular condemnation power in order to promote good land uses at
the landscape scale? And would the government’s possession or exercise of this power
interfere unduly with the institution of private property, frustrating its ability to fulfill its
important roles? These are very hard questions. To answer them well requires wide-ranging
inquiries. What is good land use? What tools do governments have to promote good land use
and how essential is this particular tool? Why does private property exist, how is it justified,
and how do private rights fit together with the common good? What are the communal benefits
of private property, and to what extent would those benefits be undercut by condemnation of
this type? No narrow specialist could address more than small parts of these questions, which
is to say no specialist could ably resolve the Kelo dispute.

I have not read much of the massive literature related to Kelo. I’ve read enough,
though, to sense that the legal academy is failing at its primary job. The essential questions
I’ve raised are simply not ones scholars have addressed or even posed. Private property is a
complex, flexible institution with a rich, little known history. Over time, different societies
have crafted the rights of ownership in widely varied ways. Good land use is also a difficult
and contested issue, especially in ecologically sensitive landscapes. Going further, to what
extent should land use be a matter of individual choice by fragmented landowners and to what
extent should it rest on decision-making at higher, more collective levels? This question is
linked with the whole matter of democracy, itself a complex institution. Merely to sketch
these relevant issues is to see why fundamentalism holds great allure. Why not skip nearly all
these questions by siding with the individual owner and viewing private property,
counterfactually, as merely an individual right, intended to serve individual autonomy? Or
why not show faith in the market and imagine, again counterfactually, the market forces left
alone will move land parcels to their highest and best uses? Or maybe we can assume that a
local government bent on immediate development will inevitably take into account the possibly
disruptive effects of its actions on property as an institution, even though its decision-making
processes pay no attention to the issue.

The truth is, legal issues are often very hard. Simplistic answers are easy to generate
but rarely helpful.

I’m getting into territory here where I could talk endlessly, so let me jump ground and
get to someplace close to the end by offering three conclusions.

First, the highest calling of the legal scholar is to serve as the generalist, high up the
food chain. Of course specialists are useful and we can include them in our ranks, but the
value of specialists is to feed material to the generalists. We need good generalists. It is not
enough to have a variety of specialists, nor do we somehow legitimate scholarly
fundamentalists by hiring a wide variety of them.

This first conclusion leads me to worry about the rise of what are termed “law and”
programs. The titles of these speciality programs, I think, are misleading, because while they
do add things to law they also subtract. They are not “law plus another discipline”; they are
more aptly “law seen through the narrow perspective of another discipline,” which is to say
law undertaken in a way that excludes vast arrays of relevant material. “Law and” programs
too easily promote fragmentation, rather than the reverse.

Second, the legal scholar needs to see the world complexly, in terms of society, human
nature, and the natural world. As practicing lawyers know, human nature is erratic and
unpredictable, not simplistic. There are real limits on human rationality. Routinely people act
in the face of ignorance and contested truths. And what one landowner does inevitably affects
other people. In the real world, interconnections and interdependence abound. Thus, lawyers
and legal scholars need to be suspicious when outsiders show up with simple models of human
behavior or simple models about the natural world and its functioning. The world is not just
a collection of autonomous individuals out aggressively pursuing their self-interest. Nature
isn’t just a bunch of discrete natural resources, some with value, most with none. Happiness
does not come only from what people own individually but from what we own and do
collectively–our common wealth and common behavior. Happy people are not the untethered
global citizens that we talk about; they are placed people, complexly tied and committed to
families, neighborhoods, jobs, churches, and local landscapes. On the job, employees are
happy when they feel respected, honored, and engaged–which is to say when their relations
with others are good. From ecologists we hear the same thing about nature. Lands are not
healthy simply when each parcel is devoted to its highest-valued market use. They are healthy
when they are interconnected in ways that respect the fundamental ecological processes that
sustain all life, human life included.

Third, there is the overriding need for us, as lawyers, as officers of the court, to
promote the common good. We lawyers are the insiders, and there’s no denying it. We serve
the law, the law is shaped by the sovereign power, and that sovereign power in our nation is
the demos–the people collectively. It should go without saying that we need to protect and
uphold the demos, improving the ways it acts and decides. In addition, laws necessarily
express public values; they provide the structure of our life together, and so we need to think
and talk about our collective values and how laws can promote them, never losing sight of the
law’s expressive functions. We need, in short, richer notions of substantive justice, going far
beyond the procedural republic and the protection of individual negative liberties. And sound
notions of justice don’t come easy.

If legal scholars don’t stand up for social responsibility, who will? If we don’t
express outrage at violations of the public trust, who will? If we don’t use what has been
termed our second language–our language of community and civic engagement, along with
the language of individualism–then who will?

The law is one of our nation’s most valuable inheritances, given by past generations,
ours now to safeguard, update, and pass along. Surely we should be at the forefront of those
who recognize our debts to the past and who speak up for future generations.
We need to be generalists, taking everything into account.
We need to see the world complexly, and resist the sirens of fundamentalism and the
urge to retreat into artificial realms.

And we need to keep focused on the good of all, exercising our independent judgment
without undue influence by outside forces, monetary or otherwise.

I’ve given my remarks the presumptuous title, “The American Legal Scholar.” I
borrow, of course, from Emerson’s famous Phi Beta Kappa talk from 1837. Emerson’s essay
is remembered as our nation’s declaration of intellectual independence from European
traditions. Less-well remembered are the three factors that Emerson believed should shape the
scholar’s work. There were the books that the scholar should read, containing the ideas of
others and lessons of the past. There was the force of action, of direct engagement in the
world, from which the scholar could also learn. And third–or rather first, since Emerson
placed it first–there was the force of nature, and the need for the American scholar to attend
closely to natural world. Nature illustrated complexity, interconnection, and interdependence.
To study nature was to gain a sense of the whole; it offered an antidote to fragmentation.
Emerson’s call to learn from nature has largely been ignored by scholars, though it
has hardly disappeared. Aldo Leopold, cited earlier, was one who embraced the idea; indeed,
he urged seriously that all university students take up wildlife study. Writing before the
Second World War Leopold was fearful of trends going on within the academy, including his
home institution of the University of Wisconsin. Could society endure, he wondered, if it lost
close knowledge of the land? He posed the issue sharply in a never-published essay: “Is the
complete modern, duly equipped with a social conscience, a set of new tires, a Ph.D. in
economics, and a complete ignorance of the land he came from, capable of forming a stable
society?” Leopold thought not. Seeing things whole, Leopold developed an unusual
perspective on the human predicament, at odds with America’s liberal individualism. “We
abuse land,” he stated in a much-quoted passage, “because we regard it as a commodity
belonging to us. When we see land as a community to which we belong, we may begin to use
it with love and respect.” Odd words. Let us jump ahead a half century to the ideas of
Kentucky writer and farmer Wendell Berry, another champion of holism, another big-picture
thinker inclined to link the fate of individuals to the fate of their neighbors and their natural
surroundings. “I believe that the community–in the fullest sense: a place and all its
creatures–is the smallest unit of health and that to speak of the health of an isolated individual
is a contradiction in terms.” These are heretical ideas–sensible, if at all, only to those who
stand on the shoulders of many others.

Having identified the three forces that should shape a scholar’s work–nature, books,
and action–Emerson in his 1837 talk offered a definition of the American scholar. “The
scholar,” Emerson asserted, “is that man who must take up into himself all the ability of the
time, all the contributions of the past, all the hopes of the future. He must be an university of
knowledge.”

It is an apt description, I think, of the American legal scholar today, at her best.

—————————————————————————————————————–

Prof. Freyfogle,

Your American Legal Scholar essay is fantastic. I’m a big Emerson fan, so I appreciate the allusion.

I have forwarded it to Prof. Ira Carmen of the Poli Sci Department (http://en.wikipedia.org/wiki/Ira_Carmen). He believes in tearing down the high walls that separate disciplines. He focuses (ironically?) on constitutional law and biology. He tried, along with Gene Robinson, to get a cutting edge joint biology-law program going with the law school. The administration showed little enthusiasm.

We need specialists to advance knowledge in all of the many specialty areas. Each field has such a depth of knowledge that it requires a specialist’s full devotion to master it. It was easier to be a Renaissance Man in the past when fewer disciplines existed and when each discipline was shallower. An academic hyper-specialist must feel like an intellectual industrial laborer in his cold, isolated office. He writes articles that do not trickle into the political or social consciousness but influence only others who have no influence.

It would be interesting to create a new department or to transform an old department (you suggest law) into a merry band of generalists. The generalists could synthesize the most important conclusions from the various specialties. However, unlike you, I think a whole new department would be necessary. The entrenched, Burkean forces in the legal academy are too thick to burst through. It would be like trying to convince a 112 year old white man of the beauty of socially conscious hip hop. Part of the problem is that schools that exist lower on the food chain (to continue your analogy) are scared to pioneer anything bold without Harvard and Yale doing it first.

I would love to see a new department that rewarded the generalist and the grand synthesizer rather than punishing her. New students could then earn a Grand Synthesizer PhD, which sounds a lot more badass than earning an Anthropology or a Sociology PhD. The Grand Synthesizers could become the liaisons between the isolated academics and the people who have power in society. They could learn to write newspaper articles and books in a concise and journalistic style that would be accessible to the general public. We would encourage them to stand on a hill and to answer the question: Where are we going?

Best,
Billy

Since I am linking to Thomas Friedman, it seems wrong not to tell a questionable anecdote of the international common man.  I was in China in 2001 (which is when the current economic stagnation really started if you don’t count the intervening housing-bubble motivated artificial recovery).  Through a series of bizarre events, I and two friends found ourselves as the lunch guests at a family farm in the shadow of the Great Wall.  The family owned no tractor, one donkey, and one pig and lived in a concrete-floored three room house.  Still, they had a nice-sized TV and DVD player.  The farmer remarked that he pretty much had the same income as he’s always had, but that everything had gotten cheaper, especially electronics.  Low cost manufactured goods from China have not only been flooding the United States, they have shown up in Chinese markets and markets all over the devloping world.  Still, though, China is nowhere near operating at manufacturing capacity.  There are still many more people available to work, to say nothing of people all over the world who have no jobs.

So here’s the problem.  What do you do when you need only a fraction of the world’s available labor supply to take care of all the world’s needs?  What happens when human technology outgrows the economy?   Is this actually what’s happening?  The symptoms are all there: Unprecedented levels of cheap goods, but with large swaths of the population still poor because they have no jobs such that they could buy even cheap goods.  Too many investment dollars perpetually chasing too little actual investment.  If this is actually what’s happening, how does it get fixed?  I have no answer.  The massive scope of the problem implies a solution equally massive in scope.

These issues have been getting a lot of talk lately. The cover story of the new issue of Foreign Policy magazine is on what they dub the “Axis of Upheaval” – fragile or failed states that are being destabilized by the economic downturn. The story fits neatly with last week’s report from Adm. Dennis Blair, the Director of National Intelligence, which for the first time in years demoted terrorism as the foremost national security threat in favor of the threat to global stability posed by the economic crisis. As the economy spirals, populations will potentially become more radicalized just as governments become weaker. Pressure grows on those governments to become increasingly nationalistic, while pressure builds for the rest of the world to step in and lend support to these weaker states.

The European Union is facing similar pressures. Last week saw reports that the EU is considering having its bigger economies bail out its smaller ones, possibly by creating a fund financed by the European Investment Bank that would buy the smaller countries’ government debt. And while concerns that the economic crisis might foment Euroskepticism, the Czech Republic’s lower house just approved the Lisbon Treaty, while a recent poll in Ireland shows that 51% of voters there would now back the treat in a new referendum, which is expected in October but may be moved forward (last year referendum voters rejected the treaty by a 53.4% to 46.6% margin). At the same time, the Czech president recently compared the EU to a communist dictatorship and refused to say whether he would sign the treaty.

And, of course, the United States has gone through its own little bout with protectionism via the so-called “Buy American” provision in the stimulus bill. Pressure from the White House led to Congress taking most of the teeth out of the provision by inserting language that the United States is still bound by its international trade obligations, meaning that Canada and Mexico (as members of NAFTA), any states we have bilateral trade agreements with that cover government procurement, and any states that have signed onto the WTO government procurement agreement cannot be discriminated against. That notably leaves out China and Brazil, but still, it’s not the biggest deal in the world. It does, however, demonstrate the tug-of-war between protectionist impulses and globalist necessities.

The stimulus itself is a bigger example of the problem. Obviously there are several readers of this blog who think the stimulus won’t work no matter what. But if there is any hope of it working, it needs to be a global stimulus given that it is a global crisis. A lot of big economies, including China, have passed massive stimulus plans, but others, like Germany, have been holding out, and the more holdouts there are, the less effective the stimulus will be. (More on this point in a good Matthew Yglesias column here.)

How all this turns out is anybody’s guess, and it likely depends a great deal on just how bad the economy gets. The Great Depression led to the transformation of the federal government, and WWII led to the creation of relatively powerful international institutions. Those are two events of massive historical significance, and nobody seems to be predicting that things will get quite as bad as they got int he 1930’s, nor is there any reason to anticipate a global conflict on the scale of a world war. That suggests that the world’s response to this crisis will be less dramatic and more incrementalist.

Still, it seems to me that with institutions like the UN and the WTO already in place, it will be easier to build off those institutions in the future. And because of institutions like the WTO and the general proliferation of trade agreements around the world, it’s a lot more difficult to act on our protectionist impulses – a measure like Smoot-Hawley would be unthinkable in today’s world, both because we have learned from our mistakes and because we institutional checks against such actions. At the same time, that reality might just make the need for greater integration less pressing and therefore less likely to happen.

Harold Meyerson wrote an excellent piece for the American Prospect recently on the potential for a “Global New Deal.” In it he wrote about the impetus for greater global economic integration:

The most far-reaching case for global regulation — indeed, for a global New Deal — comes from the global labor movement. That unions favor New Deal?like social and economic arrangements comes as no surprise; that the labor movement now has genuinely global institutions probably does. In recent years, hitherto national unions and union-federations have begun to go global simply to keep up with their employers. [...] On Nov. 15 — the same day that the G-20 leaders met in Washington — three such new global entities, the International Trade Union Confederation, the Trade Union Advisory Council to the Organization of Economic Cooperation and Development, and the Global Union Federations (sectoral organizations of individual unions), released their own “Washington Declaration.” It called for nothing less than a new Bretton Woods system that would create a global economy with compacts and laws to regulate capitalism and foster countervailing institutions — such as global unions themselves — that would reduce the economic inequality inherent in unregulated capitalism.

…

Pushing for stronger global regulation of finance, product safety, labor rights, and the like might seem an indulgence Obama can ill afford. Or, given the exigencies of coping with a global economy, such global reach could prove surprisingly necessary.

My thoughts above are admittedly a little jumbled – I’ve written this over a couple days and with a bit of a cold. But what Meyerson says above gets at the basic point I’m making. I wouldn’t predict anything as ambitious as what he describes, but it seems to me we have the political actors and the institutions in place that could set the stage for something pretty dramatic. If things really start to tank, we could be in for some radical changes one way or another.

It’s been widely reported that President Obama has ordered the sending 17,000 additional troops to Afghanistan. I support that decision, as long as it is made in the context of the strategy I just indicated (we’ll find out if that’s the case when we find out the results of the 60-day Af-Pak strategy review). It’s not at first glance clear how more troops are consistent with such a strategy – it might seem that more troops are necessary only if we’re pursuing a more ambitious strategy, and that a greater, more intrusive American presence is more likely to inflame Afghan popular opinion. That’s definitely the risk that comes with more troops, but this UN report is enough to persuade me that more troops is better than what we’re doing now.

The level of civilian deaths last year was at its highest since the war began. A small majority – 55% – of those deaths were caused by the Taliban, which is good news in the sense that it’s better than if we were causing the most civilian deaths there. But the trouble is that of the civilian deaths caused by us, 65% are a result of airstrikes. Airstrikes are an important tool, but if they’re going to result in large numbers of civilian deaths, they need to be avoided if possible. An increased ground presence will, presumably, at least partially alleviate the need for airstrikes. Our presence will be more pervasive, but the tradeoff is (hopefully) fewer civilian deaths, which is hugely beneficial to our goals there. It also, of course, puts American troops at greater risk, which is why if we’re going to fight this war at all, we need to have clear and realistic objectives so we’re not sending these troops into a quagmire. It’s not yet clear if that’s the case, but hopefully Obama or Gates gives us some indication sometime soon.