PRESENTER: OK.
I think we'll get started,
even though people are still
online for getting
lunch, so that we'll
have full time for the
presentation and discussion.
I want to thank you
for coming on this day
before the day
before spring break.
And welcome,
Professor Rakoff, who
was involved in the
curricular revision that
led to the development of the
legislation and regulation
course.
And he will offer
some reflections
on the incorporation of
diversity and social justice
issues in that course.
PROFESSOR RAKOFF: Thank
you all for coming.
And I want to start by
saying, some of what
I'm going to say I only thought
up in the last half hour.
So I reserve the right to
change my mind an hour from now.
But I'm going to go.
So justice and regulation.
So let's just, I mean, let's
just talk about for a second,
just notice some of the things
that are happening right now.
Right?
Is it just to pass
environmental regulation, which
is going to save many
statistically calculated lives,
but put a lot of coal
miners out of work?
Is it just to require
people who don't
want to buy health
insurance to pay
a several-hundred-dollar
tax to help other people buy
health insurance?
Is it just to require
people who advise
on what you should do
with your retirement money
to have to take a fiduciary
attitude towards the people
they're advising, rather than
being able to partly consider
their own interests?
All these things are up in front
of Congress and the agencies
right now, and they all
raise questions of justice.
Who's going to gain?
Who's going to lose?
And what's the right judgment?
So that's the question I
ultimately want to get to.
But I want to back up a little
bit and just talk about the way
the regulatory state that
we live in is organized.
Because that sets the framework
for what kind of solution
we might think of to the
problems I just posed.
So this diagram-- which those of
you who have taken Reg with me,
I hope, recognize.
And the rest of you,
I'll explain it--
is meant to be a simplistic
but accurate description
of our current legal system.
At the core of our
current legal system
is constitutional law
and the common law.
That's historically the core.
And it's conceptually the
core of our legal system.
Around it are
securities regulation,
consumer law, labor law, banking
law, communications law--
I could keep going--
are the various sectors in
which regulation takes place.
Now the thing that
I want you to notice
is that regulation
takes place in sectors,
whereas the core of
constitutional law
and common law does not
take place in sectors.
So just to give you sort of
a practical example of that,
if you were writing
a brief about fraud,
and you were talking
about common law of fraud,
you could legitimately cite a
case about a used car dealer
turning back speedometers.
That it has to be
intentionally done
in order to constitute fraud.
You could say that
as to what someone
has to say in a prospectus
for offering new securities.
That it has to be
intentionally done.
The misstatement has
to be intentional
in order to constitute fraud.
But out here in the
sectors, you cannot do that.
You cannot cite an
interpretation of rule 10b-5,
past pursuant to the securities
acts by the Securities
and Exchange Commission, as
authority for what should be
done in, let's say,
the Truth in Lending
Act out here in consumer law.
They're in totally
different acts.
They proceed on totally
different bases.
The interpretation of
the words of the act
are what you have to start with.
And you don't have
a general principle
that you can carry over.
These lines are hard lines
preventing you from moving.
Whereas down here in
constitutional law
and common law,
you can move around
because things are stated
at a very high level of,
very high level of abstraction.
Now why does the regulatory
system look that way?
All right?
Partly, it's the way we pass
statutes in this country.
Statutes don't happen in sort
of slow, nice, gentle increments
of thoughtful people sitting
there in the capitol building.
You all know that.
Statutes happen in great bursts
when the political push finally
gets strong enough to
have something happen.
And then it's
usually in reaction
to some specific problem
in some specific sector
of the economy or the society.
And then the statutes typically
delegate to an agency.
And the agencies only
have partial authority.
Right?
So this is the National
Labor Relations Board.
This is the Federal
Reserve System.
And this is the Securities
Exchange Commission.
So the statutes
happen in sectors.
They delegate in sectors.
And finally, we might say there
is some constitutional logic
behind that, as well.
The statutes, except in foreign
affairs and military things--
I guess I can't say 100%.
Ninety-some percent
say that the signature
that you need to make
the regulation effective
is the signature of the
Secretary of such and so,
not the President of
the United States.
And those of you who follow
the confirmation hearings
on Capitol Hill will
know that that's actually
pretty important
because it means
there's another person between
the president and something
happening.
And what that additional person,
how independent that person is
going to be, is the subject
of many weeks of dispute
right now.
So the powers split up.
It's split up in
separate agencies
established at different
times for different purposes.
And that's an entirely
different idea
from the common law slowly
accreting as the judges slowly
decide decisions
based on precedent
and trying to fit into the
world that fits together.
Now my question is,
what are we going
to do about justice
in all these sectors?
The Leg Reg course, and for that
matter, the Administrative Law
course, pretty much treats that
as only a procedural question.
The thing that is uniform
from labor law to consumer law
to securities regulation is the
Administrative Procedure Act.
It's the notice and
comment process.
It's due process hearings.
It's procedural stuff.
But the question
I want to put is,
are there substantive
principles of justice that
would move around,
that would allow
us to treat this
as less sectorized,
if I could put it that way.
So historically, the
big attempt at that
was the regime of
substantive due process.
Not the new
substantive due process
of Roe v. Wade, but the
old substantive due process
of Lochner.
The courts tried
to unify their view
of the justice of all
these various statutes
in the beginning of
the regulatory regimes
through the doctrines of
substantive due process.
And that worked by
conceptualizing the market
as a regime of freedom, of
liberty, and then saying you
could only go a little bit past
what the common law allowed
before you reached the
cutting-off point as to what
the courts would say was
constitutionally acceptable.
Right?
Now that, by understanding the
market as a regime of liberty,
or understanding the
question of regulation
as how much can liberty
be infringed upon,
the courts inevitably--
and they were
quite open about this--
accepted economic inequality.
They just said, what
we care about is
the freedom of the thing.
We're not looking at how much
inequality is the result.
Now if you wanted to defend
that Lochner regime--
I don't imagine
there are many people
in this room who want to--
but just to say what the
defense would look like,
you could defend it as
simply on a liberty basis.
You could say, we don't
care about equality.
All we care about-- if
each transaction is free,
we will accept the result
of the 10th transaction
or the 12th transaction
or the 15th transaction,
as long as each one
is not under duress.
And that's essentially
the view, for those of you
who might have read it,
of Robert Nozick's Anarchy
State and Utopia.
Alternately, if you
wanted to defend it
as a substantive
justice principle,
if you wanted to say, yeah, it
generates a lot of inequality,
but yeah, that's OK
because that's just,
then you make essentially
a desert argument.
It's the same, in structure,
the same argument as she
worked harder than
he did, therefore
she deserved the better grade.
Except the structure
here is, she
was a better
capitalist than he was,
and therefore she
deserves more money.
Right?
That, essentially, is the
argument of Herbert Spencer.
That the economic world is a
world of Darwinian competition
and survival of the fittest.
So what the substantive due
process people were doing,
the justices who use that view--
I don't say it's indefensible.
I will say, historically, the
defenses didn't work very well.
Right?
Historically, the
liberty defense
was subject to the
obvious complaint
that we're talking about
the 10th, 12th, or 15th
free transaction, when we
know that most of history
is full of force,
mayhem, duress,
whatever you want to call it.
It just isn't the
way it happened.
And on the substantive
side, people
said, well, maybe the people
who are good at the market
deserve more, but they don't
deserve that much more.
And maybe the people who are
bad at the market deserve less,
but they don't deserve
that much less.
So I'm just using this as
kind of an illustration of how
you could have a theory that
says, this stuff all operates
in the same universe.
Even though, as I
said at the beginning,
the way we talk about the
law is it's separated.
So what are the
possibilities today?
The going possibility
in terms of
actual institutional embodiment
today is cost-benefit analysis.
Right?
Or to give it a fancier
name, utilitarianism.
Right?
I assume a lot of you are
familiar with the Executive
Order 12866.
It's the thing that sets
up the OIRA review process.
And it says that all federal
regulations have to meet--
all major federal
regulations have
to meet a cost-benefit test.
The benefits have to
outweigh the cost.
Now there's a whole literature
on how you figure that,
but that's the basic idea.
And the problem with that, from
the point of view of justice,
is that utilitarianism,
or cost-benefit analysis,
is a comparison of totals.
It's the total cost to
everybody in the society
or maybe everybody in
the world, compared
the benefits to
everybody in the society
or maybe everybody in the world.
And we don't care for
cost-benefit analysis
who gets what.
We only care about
how much they get
when we add it all together.
So that's the way things stood
with the Reagan administration
empowerment of the OIRA process.
Now Clinton, when
he got into office,
changed it so that the formal
statement of the matrix
now is, do a
cost-benefit analysis
and then compare all the
benefits and all the costs,
including distributive effects.
So the formal
statement of it now--
and this has been
continued through Bush
and through Obama--
and who knows what's
going to happen
now, but at least at the moment
it's still with governing rule.
Now there's a real problem
with that, intellectually,
in that it doesn't
tell you how you're
supposed to consider the
distributive effects when
you count up all the costs
and all the benefits.
There's no intuitively
obvious way
in which you measure what is
the let's say monetary value,
because that's what
you're ultimately
trying to compare here.
What's the monetary
value of inequality,
or the monetary
cost of inequality,
or monetary cost of
this much inequality
compared to that
much inequality?
It may be literally an apples
and oranges proposition
that you can't put together.
But I'm also worried about
what I understand to be
the way this is actually done.
So judging from what Professor
Sunstein has written about it--
which I can't say I've
read all of, because nobody
can read all of what Professor
Sunstein is able to write--
the basic idea that
OIRA has been using,
at least when he was head
of it, is that if there
is a regulation, which is not
quite cost-benefit justified--
so the costs are
a little bit more
than the benefits figured
in the ordinary way,
but the regulation would
really benefit poor people--
then there's a chance
that they would say, well,
we'll let this one pass.
That's my understanding
of how they're bringing
in distributive effects.
Not by actually working
some big total number,
but by sort of using
it as a little bit
of a thumb on the scale.
If that's the process,
it's subject to what
seems to me a very big defect,
which is it only goes one way.
In other words, it says,
well, this regulation isn't
quite cost-benefit justified.
Here's a little bit of
distributive effect.
We'll put that on the
scale and we'll justify it.
What about all the regulations
that go the other way?
The regulations that are
completely cost-benefit
justified?
And if I understand
the OIRA process,
the sentence I just
stated is the end of it.
They're completely
cost-benefit justified, period.
The power plant rule will
save this number of lives.
Those number of lives times
the $7 million or $9 billion
or whatever we calculate,
the value of statistical
[INAUDIBLE] greatly overwhelm
the cost to the power plant
operators, case done.
If it's cost-benefit
justified-- in other words,
nobody's asking--
but maybe it's got bad
distributive effects.
Just because it's
cost-benefit justified,
if we care about
distribution, it
might be something
really bad happening.
Right?
It might be that--
oh, I don't know--
it might be that all the
people who own houses
along the seashore are rich.
And therefore when the ocean
rises the predicted one foot
that it's going to rise because
the glaciers melt because we
didn't stop the power
plants from spewing forth,
all we're doing is saving
rich people's summer homes.
I don't say that it's true.
I'm just imagining.
But if we really care
about distribution,
shouldn't we be caring
about this stuff which
is cost-benefit justified
as well as the stuff which
isn't cost-benefit justified?
Shouldn't we be asking
the distributive question
across the board rather
than only for rare instances
where it's some kind of special
wild card in the situation?
So I try to imagine what
that would look like?
And I'm totally unsure
of the following,
but here is just for
something to think about.
All right?
Suppose we started with John
Rawls's Theory of Justice.
So to turn a really
sophisticated long book
into one sentence, suppose we
started with the proposition
that inequalities
are justified only
if they make the worst-off
people in the society
better off.
In other words, inequalities
are justified if they
have a sufficient incentive
effect or a sufficient power
that the whole
society gets richer,
and the people at
the bottom get richer
than they would have been if the
inequality hadn't been allowed.
All right?
That's Rawls's test for
a legitimate inequality.
Now as he's discussing it,
it's meant as a criterion
to be applied to the
whole social system.
No one ever votes on a
regulation or statute which
is the whole social system.
So can we take that down
to particular proposed
rules or particular
proposed statutes?
And so I'm wondering
whether we could invent
an inequality impact statement.
Whether it would be possible
to do the work accompanying
each proposed major
regulation, let's
say, that there be a
cost-benefit analysis.
But then could there
also be a statement
as to what its impact would
be in terms of rich and poor
in the society?
So I don't know
the answer to that.
All right?
There are some real
problems in doing it.
The predictive problems
are very tough.
And just to say a
couple of places
where you might have seen
some analysis of the kind
that I'm talking about
that you'd have to do,
there's a real dispute whether
rent control does or doesn't
advantage poor people in
rent-controlled apartments
over the long term.
And there's a real dispute as to
whether imposing a minimum wage
does or doesn't help the poorest
wage earners in the society,
over the long term.
So it's not something
where you can just sort of
say, well, it's a minimum wage.
That helps the poor.
It's a much more complicated
question than that.
But you know,
cost-benefit analysis
is considerably more
complicated than just sort
of how many dollars is it
going to cost tomorrow.
So I think it's a
technical problem there.
I think if we worked
at it, we might
reduce the technical
uncertainties enough
that we'd say we got some value
out of having such an impact
statement.
I think there would be a
real normative question, too,
which is suppose we had an
inequality impact statement.
What would we be looking for?
Now Rawls says
what we should look
for is what happens to the very
poorest people in the society.
The political lingo that
at least was used by,
as I understand it, both
sides in the last election
is, what's the impact
on the average person
in the society, AKA
the middle class,
and not the poorest person.
So we might have a dispute
as to where we're worried
about the impacts coming.
But at least we
would have something
to talk about, it seems to
me, in comparison to the just,
sort of, well, the
costs are this.
The benefits are this.
Let's go.
So I put that forward
to you as a proposition.
That if you wanted
to do something
to sort of say, what would
make this a more general sense
of social justice, that that
might be a way of moving
from the current fixation on
just cost-benefit analysis
to something bigger.
Failing that, in the
present situation--
and I go back to this
because you're in law school,
so we've got to pay attention
to how things are argued
in the law at the moment--
in the present
situation, what you
have is a separate statute and a
separate agency in each sector.
And what we are then forced
to do in terms of justice
is to argue what was the actual
political compromise evidenced
by this statute, or in this
statute, or this statute.
And then we can have an
argument whether we're
talking about the
words of the statute
or the legislative history
of the statute, or whatever.
But we're taking
the justice concerns
and we're just knocking
them back to how
do we understand this statute.
We don't even have a
canon of construction
that says, in cases
of doubt, choose
the more equal interpretation.
There is no such canon.
We go back to what
do we understand
Congress to have done at the
magic moment when this started.
And if you like your
legal system makes sense,
to be coherent, you hope
for better than that.
That's what I have to say.
I'm happy to take
some questions.
[INAUDIBLE]
AUDIENCE: Do you push
students toward what
you think are just solutions?
So, I mean, you
began with a number
of current-day controversies.
And all these have a legal
apparatus surrounding them.
So you get to class, you're
talking about various things.
Do you self-consciously
push people
toward what you think
would be a socially
beneficial outcome, conclusion?
PROFESSOR RAKOFF: Well, there--
AUDIENCE: Should one?
If you don't,
should one do that?
PROFESSOR RAKOFF:
I was going to say,
there are lots of monitors of
the truthfulness of what I'm
about to say, in the audience.
I would say-- a
two-part answer--
you should ask about what
is the just solution.
And you should be latitudinarian
in what you will accept
as answers to that question.
So you will accept the fact that
there's more than one answer
to that question.
But that the question
should be put.
Is that responsive?
AUDIENCE: Sort of.
So you ask the
question, you accept
that different people are going
to have different thoughts.
But do you yourself, I
mean, you have a position.
You have, you know, you're
ideologically situated.
You have your own
views as to how
you think the good society
should, you know, be set up.
Do you feel that you should
push people toward what you
think would be a good thing?
PROFESSOR RAKOFF: No.
I think my responsibility as
a professor is to not do that.
Do you differ?
One notices the old
Socratic trick of--
AUDIENCE: So if
you're surrounded
by a group of students who
have ideas that you think show
backwardness, you
don't feel that you
need to help them along,
nudge them towards good,
nudge them towards
enlightenment?
What's wrong with that?
PROFESSOR RAKOFF:
I mean, I would
think that I'm obligated to
do that for every student.
That is to say, in
the sense of, here's
what people would say
in objection to what
you have to say.
How are you going to meet it?
What are you going
to do to answer it?
I guess I am an old-fashioned
liberal on this issue,
that students have the
right to be where they are,
and I don't have the
right to mess with that.
That was a tough question.
AUDIENCE: Hi.
I was particularly
interested in what
you were talking about--
well, you just threw it
out there-- rent control.
And I think that is
actually maybe a good thing,
particularly coming from Boston.
But I'm wondering
if we could maybe
achieve more social
justice if we re-imagine
the different economic classes.
I don't really feel like we
have much of a middle class.
I feel like it's been
pretty much gutted.
And so let's use rent
control, for example.
So some of my students are here.
So they might not know
what rent control is.
It's limiting how much the
landlord can raise the rent.
So if we just said,
OK, rent control.
I think if we could
somehow bring it back,
or some kind of
version of it, I don't
think it would just benefit
the group that we call poor.
I think it would also
benefit middle class, or even
what we might even perceive
as upper middle class.
Because the rents
have gotten so crazy.
The wages-- I'm not even talking
about just raising the minimum
wage--
but just people who have what
were traditionally good jobs,
but they're just not
making good money in light
of the skyrocketing costs.
So do you think we
should re-imagine
the different economic classes
to maybe find better solutions,
or at least have more
interesting discussions?
Because it's not just
the poor that need help.
It's the people who we keep
on saying are middle class,
but they're not
really middle class.
But they're not maybe poor.
PROFESSOR RAKOFF:
So that's a question
of sort of political ideology,
as well as statistical fact.
I mean, my understanding
is roughly 80%
of American society, if
you ask them what are you,
would answer, I'm middle class.
Right?
So that seems
statistically wrong, right?
But you know, has both a
mystifying aspect to it
and a solidarity-creating
aspect to it.
And I'm not quite sure
how you measure those.
So I do think if we started
to do the kind of analysis
that I'm talking
about, it would have
to be more sophisticated than
simply poor, middle class,
rich.
I do agree with that.
AUDIENCE: I wonder why equality
is a separate standalone
factor that you're considering.
Why isn't it just
one other factor
we need to put in into
the cost consideration?
Because I know it sounds
quantitatively difficult to do,
but eventually the reason
why we don't want equality--
inequality--
it's because of the
social tension it creates.
So I just want to know
why it shouldn't be
part of the cost calculation.
Instead you want to make
it a standalone factor.
PROFESSOR RAKOFF: The
cost-benefit analysis
that's traditionally done
has a very narrow view
of what counts in life.
What counts in life
is what someone has
figured out how to monetize.
And this is very hard to--
features of social
solidarity are,
at least my understanding of
it-- are very hard to monetize.
So I completely agree with you.
If you were doing
cost-benefit analysis
as sort of like, what do
people really care about,
then it would come out
with a rather different set
of what are costs and
benefits from what
is done when they get down to
the technical work of doing it.
So I'm just trying to move
beyond the technical aspect
of it.
AUDIENCE: Hi.
So I just have--
I want to pick up, follow
up on the first question.
The problem to me seems
to be that this is always
an issue of competing values.
So and it picks up a little bit
on this inequality question.
So we had something called
environmental impact
assessments, also, right?
So you're supposed to count
what the impact is, et cetera.
So we put all of these
different things in the mix.
But the problem is, where
do these values come from?
Am I just, as a
student, am I just
supposed to come
at it from my life,
from my family, what I believe?
Where am I, if not, if
I'm coming to class,
am I sort of bringing
these in already?
Where are they being
formed and forged?
And if you're not guiding
them, and all you're doing
is enabling me to think about
different sort of values
that all of us place
on things, then what?
How do we eventually,
as a society, decide?
How do things get
sort of, you know,
how does one regulation
versus another,
privileging one set of interests
versus another, get made?
PROFESSOR RAKOFF: Well,
that's a tough question.
It was tough when
he asked it, and it
got tougher when you asked it.
I mean, clearly, the school
stands for some kinds
of values at a process level.
Right?
So clearly, for
example, we actually
believe in real facts rather
than alternative facts.
Right?
And we also believe in hearing
the other side of something
before we go ahead
and make our decision.
So the question of
whether a teacher knows
enough to tell you, this
is what's good in life,
or this is how the society
ought to be organized,
I don't think I know enough.
I mean, if you're talking
to me casually over lunch,
I'll give you an opinion that
I wouldn't give in class.
But I don't think
that teachers are--
that strikes me
as propagandizing,
because I don't
think I know enough.
Do you have a different view?
Do you think I ought to do more?
AUDIENCE: I actually think so.
I definitely think
that there is,
when you've weighed different
things in the balance,
as you're saying, there
is a way to privilege--
I mean, if the thing is the
most, the poorest in society,
the most unequal.
I mean, if those are
values that we hold dear,
I think there is a way to
push to bring those in.
Just as I think the
environmental movement,
for example, had
to do a lot to push
the idea that we have to care
about the planet that we're on.
PROFESSOR RAKOFF:
Well, I do think
that what I did here
today is pushing
to take more seriously
distributional effects
of regulatory things.
I think that's true.
But if someone said
to me, well, no.
I don't believe in that.
I believe in the free
market, unregulated,
because that's
what I believe in.
Or I would say, well,
why do you believe it?
But I wouldn't say, go
to some other classroom.
AUDIENCE: That's right.
But then could you point
out to that same person
that, look at the effects
of when you run it this way,
completely unregulated.
And then look, this is what's
happening as a result of this
when you did this.
Or, you know, we pollute our
rivers, or whatever we do.
And then have them reconsider.
So I'm just trying to
figure out if there's
that sort of dialogical sort of
process going on of where you
are pushing the
boundaries of you
can't just believe what
you're saying you believe.
How do you justify
what you believe?
AUDIENCE: For years, you
and I have had arguments
every year about boilerplate
in contracts, form contracts,
how should the legal system
deal with form contracts.
PROFESSOR RAKOFF: That's true.
AUDIENCE: Now you don't tell
me, get out of the class,
you know, leave the lunch table.
We go back and forth, year
after year after year.
You push.
You push.
I push back.
But you have a view.
Now I mean, don't
you have a view
about frankly all of
the important subjects
that you talk about?
And you, I mean,
don't you push them?
Now how you push them,
the question of how
you might try to persuade
people over to your view,
I mean, it might be totally
counterproductive to go
too far.
You might look, you
know, you might look,
people might, you
know, just turn off
their minds if they think
that you're preaching
in a condescending way or
if you're a know-it-all,
or everything.
But what's wrong with
people simultaneously trying
to illuminate a subject,
but at the same time,
pushing a political project,
whether the political project
the anti-racism, whether
the political project be
anti-sexism, whether
the political project
be anti-discrimination against
gay people, you see the point.
PROFESSOR RAKOFF: Well, the
way you say what's wrong,
I'm not prepared
to say it's wrong
if some other teacher took a
different approach to it than I
did.
So I'm not going to say that
I'm necessarily know I'm right.
To me, it counts a
lot that everybody
does feel comfortable
in the classroom,
that everybody does--
when I say go to
another classroom,
that's overstating it-- but
that everybody feels they
have a place in the classroom.
And in most contested
things, that
means that the
teacher doesn't say,
I know one side's right
and the other side's wrong.
AUDIENCE: Could I push
you just one more time?
You're talking about a
subject and somebody says,
with all due respect, I
don't mean to offend anybody.
You know, I don't mean to
hurt anybody's feelings.
But it's clear to
me that, you know,
men are superior and
should run things.
What does one say?
Well, you know, is that just
another idea among many ideas?
And well, that's your view.
Or is that an idea that should
prompt some other response?
PROFESSOR RAKOFF:
That's a tough one.
It's tough because it
is, to some extent,
an attack on other
people in the classroom.
And therefore, to some
extent, a teacher's job
is to stand against part
of the class attacking
another class, another part
of the class, in that respect.
But when I'm standing here
thinking, so do you just say,
nah?
Or do you say, what would
make you think that?
Do you say, you
know, do you give
a little room for the
explication, or just stop?
I'm not sure.
AUDIENCE: This is a question
for both of the professors.
I'm wondering if
you think that there
can, or should be any sort of--
bifurcation might be too strong
a word-- but different roles
of the professor
as a scholar and as
an individual who has
a presence on campus
and who may be developing
sort of theories
and practical applications,
versus the person who's
in the classroom leading
this sort of discussion.
And whether there ought to
be, in terms of this question
of trying to manifest or
push a certain value system.
PROFESSOR RAKOFF: Well,
to go to the point
that Randy and I always
argue about over lunch--
so I wrote a long article,
which had the good consequence
of getting me tenure--
a long article about why
boilerplate was junk.
He has a misguided
opposite view.
But when I assign
that in contracts,
if I'm teaching
contracts, I always
assign also Randy
Barnett's article,
which sort of goes right
after my article in the way
that Randy Kennedy would
if he were there in person.
So I do think that
I ought to do that.
I don't think I should
just assign my view
and not assign the
opposite, the opposite view.
AUDIENCE: I just kind
of want to observe.
It's just interesting
to me that maybe this
is part of the answer of
why this is so challenging
and why we don't
regulate in this way
with the general principle
is because in this room
we've kind of devolved
into process, even as we're
trying to talk about this.
And kind of now we're
asking the question
of how do we talk about
values and what's the fair way
to do this process.
And that's just
interesting to me
as someone who heard
this idea about how we've
taken the notions
of justice in each
of these regulatory agencies
and reduced it to process.
And then we're just
very vulnerable to that,
is kind of my observation.
AUDIENCE: Hi.
I just wanted to say
that growing up for me,
it was never an issue or a
problem with values, you know,
which values are the better set.
I think it's just a matter of
creating a space where people,
like you said, I strongly agree
with your kind of philosophy
of creating a space
where just people
feel comfortable
expressing themselves.
It's not the job of an educator
to impose his or her beliefs
on the students.
And I think that it's
important to kind of help
people see, if you're
going to do anything,
help people see that,
OK, well, we can all
agree that racism is bad.
Or we should be able to agree
that racism and discrimination
of different kinds is bad.
But that there
are different ways
to go about combating that.
And I think that's the better
place to kind of start from.
Because I feel like things
have become very polarized.
And unfortunately, that's
crept into places of learning.
And I think that that's one of
the last places you should ever
find such polarization,
such kind of standoffs
between ideologies.
It's a place of look, you
know, places of learning,
or places of critical
thinking, independent thinking.
And that's how it should remain.
AUDIENCE: Since we
seem to be having
a discussion about
pedagogy, I was
wondering if Professor Kennedy
and Professor Rakoff wouldn't
mind giving their
perspectives on the role
of the other
students in the room
when a student says
something like what
Professor Kennedy said.
Because you've talked about
the role of the educator,
but what do you conceive
of the role as students?
And how does that impact
your role as an educator?
PROFESSOR RAKOFF: So the
other students in the room
are incredibly important
in the educational process
around here.
I mean, I'm not a lecturer.
I'm someone who thinks
that what you really need
is a discussion on pretty much
everything that we talk about.
Obviously, the other
students in the room
would be entitled to have quite
strong opinions about that,
even if I feel that I should
be a little bit modulated.
So I would certainly
allow for that.
I think that the people who
have very strong opinions
and state them in ways that
other people can hear them
get further than people who
have very strong opinions
and state them in ways that
other people can't hear them.
So I think I might quickly
put down some ground
rules for the discussion.
But I think that it would
be worth discussing.
AUDIENCE: Two points.
One, on the question
of the teacher,
I mean, everybody
has beliefs, aims,
and so long as they're
upfront about it,
I think that's perfectly fine.
I think, you know, I think
a great university, yeah.
So-and-so teaches such and such.
He's an anarchist.
So-and-so over there
is a socialist.
So-and-so is a free marketeer.
No problem.
And by the way, they're going to
bring that into the classroom.
And people might think that
they're not, but they are.
And my position would be,
what's wrong with that?
And some of the people who are
most effective at doing that
are very careful to make
sure that the people who
see differently have
space and, you know,
and their own ideas
are challenged.
Because when their own
ideas are challenged,
oftentimes the most persuasive.
As for other students,
especially in law school,
it seems, for me, I never
feel frankly protective
of the students.
Students in law school are, I
mean, it would be one thing.
I'd have a different view
of an elementary school.
I'd have a different
view of a high school.
If you're in law
school, you're an adult.
Not only you're an
adult, but you're
within months of
having people's lives
and property in your hands.
I think that every law student
should have the wherewithal
to speak up.
I don't feel at all protective.
I push what points
I want to push,
but I'm very impatient
if a student comes back,
you know, after class and says,
you know, I felt, you know,
put upon.
I think that every
student should
have the wherewithal
to speak their minds
and defend themselves.
I don't think that
it's incumbent upon me
to be defensive of
other students at all.
PRESENTER: And on that, I
think it's time we have to end.
