Confident Pluralism in Law School

Law gives us important tools to address irresolvable differences

Image courtesy of Washington University School of Law

Yesterday, I had the opportunity to address the entering class of students at WashU Law. In this week’s newsletter, I’ll depart from my usual format to share the key points from my talk. I hope those of you who are not law students will also find these ideas useful and actionable within your own social and professional circles.

Finding Common Ground Across Real Differences

Confident pluralism begins by recognizing two definitions of pluralism: (1) the fact of deep differences; and (2) the way we respond to those differences. We are deeply divided over things that matter a great deal. And we aren’t going to be able to resolve these differences. Given these facts of the world, we need to learn to find common ground even when we can’t agree on the common good. Confident pluralism proposes the civic aspirations of humility, patience, and tolerance to help us in this pursuit.

Like any workable political theory, confident pluralism encounters limits. No argument for pluralism welcomes all viewpoints and beliefs. Every society imposes limits. A pluralism rooted in mutual tolerance and respect will not appeal to those among us who deny the humanity of our neighbors. A pluralism committed to dialogue and persuasion cannot accommodate violent disagreement. The challenge is to keep these fringe viewpoints at bay without assuming that everyone who disagrees with us on important matters is among them. In an earlier post, I suggested this means distinguishing between people who are “wrong” and people who are “evil.”

Two trends have complicated our ability to make these distinctions and find common ground across deep differences. The first is that we are too quick to dismiss those who disagree with us without actually listening to their arguments. Too many of us fail to examine the strongest and most charitable arguments of our ideological opponents. One of the benefits of law school is learning how to identify and explain the best possible arguments for the other side, sometimes in order to strengthen our own viewpoints.

The second and related trend is that we too easily agree with our own team. We uncritically adopt or affirm the viewpoints of people we like or whom we know agree with us on a few key issues. This is particularly true on social media, where our interactions routinely cause us to overestimate the strength and salience of our own arguments and beliefs. Twenty people liking something you’ve written on Twitter doesn’t mean you’ve made a good argument or that most people agree with you.

What Does this Have to Do With Law School?

The challenges of confident pluralism are especially relevant for lawyers because our society addresses irresolvable differences through rules and norms instead of through violence. That doesn’t free law from violence, power, or coercion. Some laws rely on raw political power, and the enforcement of any law is ultimately rooted in the threat of force. Lawyers in training should recognize that they are learning a profession that exerts force on people’s lives, often against their will, and often with dire consequences. But the law nevertheless restrains violence—no small thing in a society as diverse as ours.

Learning law also means discovering nuance in issues that might have previously seemed straightforward. That includes everything from apartment leases to deeply held beliefs. Discovering nuance doesn’t mean everything is up for grabs—law school isn’t a laboratory for relativism. But taking the time to learn different perspectives and arguments inevitably introduces complexity to the way we think and see the world. We can engage confidently with this complexity and the people who introduce us to it through the civic aspirations of humility, patience, and tolerance. That will be important while learning the tools and language of law with other students; it will be even more important engaging with future clients and other participants in the legal system who may lack those tools and language.

Five Confident Pluralism Tips for Law School

I concluded my talk to the incoming class with five practical tips for confident pluralism in law school. On reflection, most of these apply to the rest of life, too.

1. Listen to understand

We learn, live, and work with people who see the world quite differently than we see it. Instead of ignoring or dismissing them, we can take the time to get to know them as people and listen to their stories not just their arguments. It’s rarely a bad idea to say, “Tell me more.”

Some people we encounter have rarely interacted with others of different races, religions, or political backgrounds. Some laughed comfortably a few months ago at jokes they wouldn’t dare now share publicly; others are more emboldened to say things they carefully suppressed back home. These differing perspectives will inevitably create friction. Listening verbally and nonverbally to the people around us will help us navigate these interactions.

2. Don’t be a First Amendment hero

We are legally permitted to say almost anything to almost anyone. The First Amendment protects our right to say all kinds of terrible, life-destroying words. But just because we can say whatever we want doesn’t mean we should. Making the most offensive or outlandish comment to prove a point or test a principle is seldom going to win supporters, to say nothing of friends.

The right balance lies at the intersection of civic responsibility and civic grace: we should not be afraid to express our opinions, but we should treat others kindly. We can take care with our words and take seriously the responsibility that comes with free speech. At the same time, we can question orthodoxies and engage when others are too intimidated to do so. Some corners of law school cultivate the First Amendment heroes we don’t need; others suppress speech because they can’t imagine rational disagreement with their own viewpoints. Future lawyers will need to stand up to both of these kinds of pressures.

3. Protest sparingly

As evidenced by the title of this newsletter, I’m fairly committed to the right of assembly and the value of protest. But some aspects of student culture are too quick to protest. Not everything is worthy of outrage. And if we try to weigh in on every injustice and bad idea, we will quickly exhaust ourselves and those around us. That doesn’t mean we set aside our passions or our humanity. But it does mean that we need to do the complex work of absorbing some of what unfolds around us without always reacting to it.

My first job out of law school was at the Pentagon, which has its share of flaring tempers and bruised egos. The best advice my dad gave me when I started there was that whenever I got angry, I should write an email to the person I thought had wronged me but not send it. Put it in a folder of drafts and then wait a day to see if I really needed to send it. I adopted that tactic, and I rarely sent the email. You can take a similar approach to law school. Sit on the outrage for at least a day and see whether you see things differently with the benefit of a little time. (In full disclosure, I stored my unsent drafts on a government server, and when my account was later subpoenaed by the Department of Defense in an unrelated investigation, I learned to my chagrin that some of the drafts were still there. So perhaps I will amend my dad’s advice to recommend saving drafts on a private server.)

4. Look for blind spots

Our baseline experiences and assumptions create blind spots, and most of us are prone to act on them in unhelpful ways. Sometimes this manifests as rank prejudice. I’ve seen enough of it to know that it knows no ideological bounds. It’s most acute when I find myself passing as part of the in-group: the white people at the fancy Asian restaurant who don’t pick up that I’m half-Japanese, the secular colleagues who can’t imagine I actually believe in God, the conservative religious neighbors who assume that I share all of their politics. I’m amazed at the things people say when they think everybody listening is just like them.

Sometimes our blind spots are more subtle. We forget about the complexity of the people around us. We assign beliefs to them without actually asking what they think. We assume that they understand or don’t understand even if we know little about their life experiences. People seldom fit neatly into the stereotypes we are inclined to assign to them.

5. Do ordinary things (offline)

Social media rarely brings out the best in us. In the past few years, I’ve noticed that online challenges for law students tend to cluster around GroupMe chats that spin out of control. I doubt that anyone has ever won an argument on GroupMe. The best arguments take either a great deal of thought and reflection before they are reduced to writing or require the nuance of face-to-face interaction.

Doing ordinary things also means not doing law school all of the time. We can’t make every conversation an epic battle. And we can’t make every conversation about law. This also applies to visits home with friends and family. Resist the urge to talk about implied contracts or why Uncle Frank doesn’t understand the Constitution. Just be normal, enjoy the food, and talk about ordinary things.

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I ended my talk by noting that working through these ideas and practices won’t always be easy. On the other hand, as we emerge from the past few years of Zoom school and social distancing, the bar is relatively low for showing basic hospitality and human kindness.

And for those of you reading this newsletter who are just starting law school: remember it’s a marathon not a sprint, get to know the people around you, and don’t hesitate to email if you’d like to talk more about any of these ideas.