Dean Levi welcomes the Class of 2010

August 13, 2007Duke Law News

Aug. 13, 2007

Below are the full-text remarks delivered by Duke Law School Dean David F. Levi as part of orientation activities for incoming law students.

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It is a great pleasure, and more than a little bit presumptuous of me, to welcome you to Duke Law School. As most of you know, I only started here last month, and like you I am still learning my way around the building. If you see me wandering around with a dazed look, please ask me if I am lost. And I will do the same for you.

When many of you were here for admitted students weekend, I told you that the friendships and connections you will make with your classmates will endure throughout your life in the law and become an important part of your professional and personal development. Much of what we are celebrating and emphasizing in this first week, LEAD week, is that very connection — building relationships that will carry forward and carry you forward.

After his first year as a Supreme Court Justice, Justice Alito was asked how it was going, and he said that he was told by another Justice that he would spend the first five years on the court wondering how he had ever got there and the second five years wondering how everyone else got there. What happens after that, he didn’t say — maybe that’s when true wisdom begins.

But you don’t have 10 years. You can’t even afford to spend the first year wondering how you got here.

You are here; you have earned it; and you are ready to go. So don’t be intimidated.

Of course, you will have to learn a new language. I regret to tell you this. I have had a few weeks' head start on learning the language of the legal academy, so I can help you along a little bit. You need a phrase book, like those pocket guides for travelers that help you translate important statements like, “I need a bathroom immediately,” or “I have a severe pain in my chest.”

Remember Monsieur Jourdain in Moliere’s play “The Bourgeois Gentleman”? He was so delighted to learn that he had been speaking prose all of his life and hadn’t even known it. Well, you have been surrounded by the translations of academic legal jargon all of your life, and you didn’t even know it. You are ready to write the phrasebook.

I’m sure many of you know the famous Frost poem, “The Road Not Taken.” Frost says that even though he fully intended to come back sometime and take the first more traveled road, “knowing how way leads on to way, I doubted if I should ever come back … Two roads diverged in a wood, and I — I took the one less traveled by, And that has made all the difference.”

Frost might have thought that he was writing about freedom of choice or about striking off on one’s own, but as you will come to understand, really he was writing about “path dependence.” When your professors speak about “path dependence,” now you can easily translate, “the road taken made all the difference.”

Or consider the Shakespeare sonnet which begins by sadly noting how all things precious and fair are eroded and wasted by time, but then ends by celebrating the miracle of the written word, “That in black ink my love may still shine bright.”

Perhaps Shakespeare thought he was writing about mortality, the evanescence of beauty and the enduring power of poetry. But really, as you will come to know, he was merely stating the theory of original intent and his allegiance to Justice Scalia’s view of the Constitution. So when you are asked to explain “original intent,” you can translate by way of Shakespeare that it is the belief in the enduring power of the written word to permit communication from one generation to future generations.

Or when someone talks about “moral hazard,” you can laugh to yourself knowing that the term has nothing to do with hazards and even less to do with morality. All it means is that if someone else is paying for you, your incentives change. For example, you will discover that there is a lot of free food floating around in the law school. If you eat more than you would have had you been paying, that is the moral hazard problem. The hazard is to your waistline, by the way.

I could go on. But the main point is: don’t be intimidated or chagrined by this new language. In all seriousness, it will become part of your challenge as young lawyers to learn the jargon and the shorthand and then to rise above it and learn to translate it into more normal, more precise expression. Lawyers are translators after all. They take complicated ideas and explain them to lay people. They take concepts from other fields of knowledge and apply them to the law and to real factual settings. They legislate, advocate, counsel and decide — and all of these functions involve translation and an acute sensitivity to nuance, precision, rhetoric and clarity.

Perhaps a better more positive way of saying, “don’t be intimidated,” is to turn it around: do be adventuresome, take some risks, reach beyond yourself and your comfort zone. You are not just students at a great law school, but you are students at a great university. Take advantage of that. The world of practice may well demand of you an understanding of other fields and disciplines, of other cultures, languages, and economies.

At the entrance of the federal courthouse where I was a judge for many years, there was a quotation on a paver from Thomas Reed Powell, the Story Professor of Law at Harvard during the first half of the 20th century. The quotation states: “If you can think of one thing without thinking of something else to which it is inextricably connected, then you have a legal mind.”

But now we would reject Powell’s idea that a lawyer’s skill consists only of analysis and disaggregation. Indeed, we would emphasize the reverse; it is the job of the lawyer to see the connections between and among ideas, legal theories, factual settings, disciplines, and empirical evidence. And it has always been thus at this law school, and it is part of what we mean when we say that we hope and expect you will engage intellectually.

It is fair to ask whether ethics courses, blueprints, orientation day exhortations, and brilliant law school careers make any difference to the kind of lawyer our alumni eventually become. In addressing all U.S. Attorneys on their duties as federal prosecutors, then-Attorney General Jackson said that it was difficult to describe the qualities of a good prosecutor and that “those who need to be told would not understand it anyway.” We have some regrettable evidence that even at Duke a successful legal education, with due regard to a lawyer’s ethical duties, is no guarantee of the kind of deep understanding that may guide conduct over the full length of a career.

Some 63 years ago, in 1934, a young man from California entered Duke Law School. He had been awarded a scholarship of $250 which in those dark days of the Depression had made all the difference to whether he would attend any school at all. There were 44 students in the entering class, 25 of whom would graduate. Our student learned to his distress that of the 25 scholarships awarded to the first-year class only 12 would be continued into the second and third year, and these would be awarded based upon grade point average. Those who didn’t receive scholarships undoubtedly would be forced to withdraw. He felt the competitive pressure acutely.

It was an exciting time at the law school. In 1930 the law school had been reorganized. It moved physically and administratively away from Trinity College in the East Campus to the new West Campus. The new dean, Justin Miller, had hired some of the finest legal minds in America to teach, including David Cavers and Lon Fuller. The School pioneered the way in clinical education and interdisciplinary studies.

Our California student thrived in this heady environment. He graduated third in his class. He was elected President of the Duke Bar Association by his classmates. He published a piece on automobile accident litigation in the new interdisciplinary journal published at the law school, “Law and Contemporary Problems.” He received an “A” in legal ethics. He joined the legal aid society. He was outraged by the segregation and mistreatment of African Americans that he saw at Duke and in the South and he made his views known. He put himself through school by working at the library. He was animated by a sense of purpose instilled by his Quaker training and devout mother. His classmates recognized him as a brilliant student, a leader, a striver, and a nice and decent person. He seemed to embody the qualities of leadership that we now call the Duke Blueprint . As you all surely know, his name was Richard Nixon and, sadly, he is chiefly remembered for the disgrace he brought upon his office some 35 years after his graduation.

Did we fail him in some way or was he one of those who just didn’t understand it anyway? The question eludes any simple answer.

It would ask a lot of the power of education to expect that whatever ethical training we provide in three short years could come with a lifetime guarantee. Yet one of the shocking aspects of Watergate was how many lawyers were involved in the cover-up and worse. Like Nixon, they had been educated at some of the finest schools in the country, White House Counsel Dean at Georgetown, Chief Domestic Advisor Ehrlichman at Stanford, Attorney General Mitchell at Fordham. Evidently all of them had received passing grades in their ethics courses. Surely it was not too much to ask that one of these lawyers would have stood up to oppose the cover-up.

I don’t suppose that any of us here will fully understand why that didn’t happen. The leadership provided by our graduate was destructive, emphasizing loyalty over all other virtues. The advice and counsel of his followers was also bad. On the way to letting down the nation, they also let down their client and themselves. This was a moment in time for judgment and for courage. It was a time for great lawyering, and it didn’t happen. The Duke Law Blueprint is our way of reminding you that to be a great lawyer it is not enough to think quickly on your feet, make fine distinctions, and express yourself powerfully. If there is no ethical center, if judgment and wisdom are missing, it will not nearly be good enough. That is the true “moral hazard.”

We have it as an article of faith that by taking this time together and by placing such emphasis on the ethical core through the Blueprint, we do affect behavior, your sense of what is important, and how you develop as lawyers. The empirics, as your professors will call them, are yet to be gathered. You are the data points. Whether the Blueprint is effective or just words rests with you.

You are a wonderful group of extraordinarily talented, soon-to-be young lawyers. I could not be more confident that while you learn the language of the law, you won’t forget who you are and why you are here — now and in the years to come.

Welcome to Duke!
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