Picture in your mind a “serious scholar of the law”, real or made up. What do they look like?
Aside from that, what topics do they talk about? Constitutional law? Civil procedure? Legal philosophy?
Does their scholarship have anything to do with race?
I knew in my head that the answer could be yes to this question, but it took me some time to even get there. And I’m still not sure if my heart has internalized it. Me, an actual alive professor of law, somebody whose legal practice career has focused on racial justice and adjacent issues.
As a law student, my civil procedure class was taught by a longtime leading scholar in the field. My criminal law class was taught by a nationally known rising scholar in the field. My property class was taught by a leading scholar in the field, visiting from another university.
My Racial Justice and the Law class was taught by a practitioner who has not published a law journal article in over 15 years.
Never mind that this person argued multiple Supreme Court cases in the 2010s, or that he is the closest to a household name out of any professor I’ve ever had. He wasn’t an academic in the distorted and narrow conception that I had, and while the things he argued in that class had a profound impact on me, I’m still working on taking those concepts and putting them into a law journal article. And the reasons stretch back over my entire legal career.
Law school was a foreign world to me, as it is for many entering students. The format of the classes (grades based entirely on a single final exam) made no sense, and the strict curve made even less sense. While many people point to the workload and stress of the first year, it wasn’t at all the workload for me. More than anything, it was the constantly creeping feeling during my first semester that I wasn’t cut out for this environment.
I take a lot of time to process new concepts. I think I do a pretty good job of understanding things inside and out once I have the time to reflect on them, but I need that marination time before I can even figure out what I’m confused about, let alone formulate a question. And I was surrounded by people who were asking these terrifyingly elaborate questions based on something the professor had *just* said. To those professors, these questions seemed normal. Was this a skill that I needed to develop to have any shot at being a lawyer? Could my outline ever be as good as the person who seemed to immediately grasp promissory estoppel?
When my first semester grades were better than expected despite not raising my hand in class one single time, I realized that I might be able to hack it, that I could do at least certain kinds of legal analysis pretty well. I saw that I was clever enough to find the heart of an issue and, on occasion, to put it back together in a way that could be valuable.
As a result, my second semester was far less strenuous. It didn’t matter that my grades tanked in the spring. I received my school’s equivalent of a D in Torts, but I didn’t blow that one grade out of proportion. After a couple of emotional conversations over ramen and mac and cheese, I moved forward, knowing that I was still good enough to hang around. I suppose I was done noodling on it.
It helped that I had no interest in becoming a legal academic. I wanted to become the lawyer that fixed public school funding equity issues across the nation. I’d gained substantial benefit from unequal public school funding in my childhood, which was part of the reason I’d made it to law school in the first place. I knew that it was unfair for those same resources not to be available to everybody. I thought that my ability to understand civil procedure in particular could be used to great effect in litigating these issues.
But in addition to this, I figured that after that second semester, after that D grade, I had no path to being a legal academic. Who could? It was an honor reserved for the people who could spit out law journal articles as if they were Yelp reviews and tear through exams as if they were basic arithmetic. That wasn’t me.
Still, that realization didn’t cure me of the pathological desire to chase whatever gold stars were out there. Despite my grades being borderline at best for judicial clerkships, I tried to improve my profile at the margins in every way that I could. I was told by a few folks that it would help to load up on doctrinal classes and minimize the number of seminars I took. I took this terrible advice to heart, and stuck almost entirely with what I thought were “serious” subjects. Every single elective I took still had a final exam. (The deflation of my GPA alone certainly outweighed any bump I got from seeming “serious”.)
My journal experience was similar. While article selection was the most popular choice for potential board members on my journal, I ranked all article selection positions last. I didn’t think I had a valuable perspective to provide on article selection, so I chose instead to rank technical editing positions much more highly, to demonstrate to everybody that I had “serious” skills.
When an education law seminar conflicted with complex litigation, I chose to take complex litigation, both as the “more serious” class and as a class taught by a professor who might be a clerkship recommender. I made sure to get a note published, not on creative ways to bring education funding equity lawsuits, but instead on an arcane bit of civil procedure. My solution was clever. I saw it as being “serious”, but I think I was implicitly worried that anything that wasn’t “clever” in that sense could be easily criticized or dismissed.
And in hindsight, I did think at the time that my personal narrative was easily dismissed. I saw my own public school experiences as unusual, with no broad-based lessons that could be taken from it. It was a personal inspiration for the work I came to law school to learn how to do, but I couldn’t imagine it being any more than that. I’d spent a lifetime running away from the racial angle of the special treatment I’d managed to get in school, and how that affected how I interacted with my peers.
In other words, I saw no broader value to my story as it pertained to the law.
But of course, the law, in its most idealized conception, is a matter of how we try to grapple with, and improve, the individual human stories that are out there. You wouldn’t know it from the perspective of most civil procedure classes, which barely (if ever) discuss issues of access to the courts or the civil rights disputes that led to many of the foundational doctrines. (I tried to address this last semester in my first attempt at teaching civil procedure, but I could have been better about it.)
Part of the problem, ultimately, is that I didn’t see any human stories that resembled mine in a law school context. I keenly felt the concerns of class action plaintiffs in environmental and civil rights suits, and I learned lots about the struggle of Black Americans through my coursework and my internships, but specifically Asian-American stories rarely came to the forefront throughout my entire law school career.
There are a number of reasons for this. An easy one to point to is the makeup of the faculty at my school. Of 110 full-time faculty members at the time I entered law school, there were 2 East Asian doctrinal professors and 0 East Asian clinical professors. The two were literally first in their class at Harvard Law and near first in their class at Yale Law, and they wrote on serious questions of corporate governance and constitutional law. Could my thoughts on my own story, my own racial identity rival anything those professors wrote?
It certainly wouldn’t be “clever”, so I figured it had no chance.
But I think it was more than that as well. Despite the dearth of Asian-American professors, the JD student body was well over 10% East Asian. But the school, and the student body, treated Asian students with a wide mix of vaguely benevolent-sounding stereotypes, including a laser focus on financial stability (presumably through law firm jobs), our ability to be “low-maintenance” and “compliant” associates, and so on and so forth. I wasn’t the only Asian graduate my year who went into public-sector work, but there were very few of us to buck the trend.
Similarly, in private law practice, as I’ve come to learn, Asians are overrepresented as associates and heavily underrepresented as partners. At the largest law firms, white partners actually outnumber white associates, while there are about 2 Hispanic associates per Hispanic partner and about 2.2 Black associates per Black partner. Meanwhile, there are nearly 4 Asian associates per Asian partner at the largest law firms. The numbers tend to be even worse at midsize and small firms. Indeed, of the Asian students in my graduating class I’ve kept track of, almost none of them remain on the partner track, seven years in.
I had already convinced myself by this time that I belonged. But I pinned that sense of belonging on my ability to be “clever” rather than accepting that I belonged without qualification, like I accepted for everybody around me. The only way forward, therefore, was to keep trying to find “clever” ideas rather than drawing on the racial history and dynamics that I’d been learning more about during and after law school.
The odd thing is that during this entire time, I’d been marinating on those racial dynamics and that racial history. I’d been developing a strong worldview that drew heavily on my own experiences as an Asian-American from Ohio. But despite this, I kept that marinade as far away from my law journal ideas as possible, perhaps out of fear that I’d be dismissed or criticized by the legal academic power structure.
I did ultimately get that clerkship, although it took me a few years of applications. I started that job just as I was fleshing out an idea for another “serious”-looking law journal article, this one about the problems with attorneys’ fees calculations and another clever solution I’d worked out.
As is the case with most clerkships, I became very close with the other clerks that year. About halfway through the year, I learned that one of my co-clerks was actively writing and publishing articles about gender identity, juvenile law, and related fields. Without an ounce of self-awareness, I found these articles impressive and meaningful, while lamenting my inability to write anything like that.
I do write things on race, on my personal experiences, and on the law’s role in past and ongoing injustices. I’ve been doing so since I was in law school, although I’d like to think my perspective has grown since then. But I either post them on social media or on a blog. And even with plenty of examples around me to model how to bring these ideas into a legal academic setting, I still haven’t figured out how to do it.
Does that make me a less serious scholar of the law?