In fact, I was advised by the law school administration to be short and funny. I have decided to be tall and serious instead. I will, however, be brief. There are some fairly serious things worth saying to fresh graduates of Duke Law School. First, I have good news and I have better news.
The good news is you are entitled to the degree of juris doctor, reflecting the fact that you have successfully completed a course of legal education at Duke University Law School. Because you have performed well in a formal course of legal education at a first-rate law school, you have not only received a degree but you have had a great educational experience. Because you did this at Duke Law School, you have in fact had probably the finest experience of legal education available in any law school in this country. Let me pause to say that I’ve spoken at lots of law schools – several of them at hooding ceremonies – and I have never said that about any of the others. You have learned the fundamentals of the practice of law, the philosophies and theories upon which the law is based, and the rudiments of practicing that noble profession. That’s the good news. The better news – which some would incorrectly call bad news – is that your legal education is not over.
Indeed, if you are fortunate, your legal education will never be over. So long as you work at this profession, you will continue to become better educated. In the practice of this profession, whether in law firms, in corporate offices, in the academy, or in the service of the public as a government official or a public service attorney, you will continue to learn every year more and more about the application of this profession to the needs of society and humanity and the uses of this profession in serving the interests of your clientele. The better news continues.
Your continuing education will not be solely in the law. The law is perhaps the greatest renaissance profession. A renaissance person knows not only the intricacies of his or her chosen profession, but is a well educated person in the arts and sciences at large. If you are typical Duke Law students, you are already well educated people. But if you go forth and become litigators, you will learn that to represent adequately your clients’ interests in litigation, you must also become educated in the fields of endeavor, economics, and human affairs that affect your client. And clients may litigate about anything. If instead you become a counselor to businesses and business people, either inside or outside the enterprise, then to give adequate advice on the structuring of transactions and the lawful conduct of business, you must learn what those businesses are about. If you serve instead in the halls of government or in the organizations that advance the interest of the public outside government, you must continue to become educated in all areas of society, all aspects of philosophy, and the various areas of technology that daily affect the workings of government and the needs of the public.
Yes, you’ve learned a lot about the law. Your knowledge of the law may be the broadest it will ever be – because you have studied law at large and you will no doubt practice the law in some narrower application in which you will become expert. But in the course of becoming expert, you will have the obligation, but at the same time the privilege of becoming constantly a better educated person. You cannot prosecute or defend medical malpractice without learning a great deal about medicine. You cannot litigate the issues of business without being well educated in economics, statistics, and finance. Nor can you advise and counsel doctors on avoiding malpractice, or businesses on lawfully conducting their business without that sort of continuing education. Continuing legal education is a bar requirement today in ways it did not used to be. But continuing education is not just a legal requirement for lawyers of merit. It is an obligation. It is also a privilege.
But that’s not the end of the news I have for you. The next bit of news may be good news, or it may be bad news, but it is a fact. That is, you have given up certain rights to complain. Most citizens, when they learn of injustice in society, are privileged to shake their heads and say, “They ought to do something about that.” Here’s the news for you: You are “they.” You are a lawyer. When you confront the fact of injustice – or even the possibility – it is not sufficient for you to say somebody should do something about that. Somebody is you.
You have entered a powerful and protected profession. The law creates for its practitioners an oligopoly protected against competition. The legitimacy of this protection depends not only upon our expertise and understanding in applying the law, but also upon our willingness to devote that expertise not only to our clients, but to those who may not have the opportunity to pay the normal charges to become our clients. You have an obligation not only to your clients, but to society at large. The history of America is rich with lawyers performing precisely that duty.
Before there was a United States of America, British soldiers were charged in the death of colonials in Boston. Their cause was not a popular one. Yet an American lawyer, John Adams, in the face of what he described as “anxiety and obloquy” undertook their defense because, as he stated, “judgment of death against those soldiers would have been as foul a stain upon this country as the execution of the Quakers or witches . . . .”
Adams had a son who followed the law and gave us a further example of what they must do in the face of injustice. A district court ruled that African men held on a slave ship off Connecticut, after their mutiny against Spanish slavers, were free men and should be transported back to Africa. The government of the United States appealed. John Quincy Adams saw injustice coming. He represented the victims of that injustice in the Supreme Court and gained their return as free men to the continent from which they came. A lawyer saw injustice. He saw that somebody should do something. As a lawyer, he saw that that somebody was him.
Lincoln, whom Professor Dellinger describes as our greatest lawyer president, is legend for his use of the law against injustice. Lincoln had no legal power to free slaves held in the loyal states. At the time that he prepared the Emancipation Proclamation, most believed he had no power to free slaves at all. But Lincoln saw in the rebellious states a chance to use his power as commander-in-chief in a broader way than had ever before been used by any president. With his great legal mind and his devotion to the proposition that if something must be done, then a lawyer must do it, he found a way to end at least some of the injustice.
But these were long ago. What does it have to do with you as lawyers of today? Much. Injustice did not end with the 19th or the 20th century. Injustice recurs. An activist lawyer of the 20th century described himself as a lawyer not for money, but for love. He misunderstood the basic role of a lawyer. If you are only battling against injustice for those you love, then you are an incomplete lawyer. The protections of law and liberty and the duty of the lawyer to ensure the efficacy of those protections extends to people you don’t love – it extends to those you don’t even like. What John Adams saw when he agreed to defend the rights of the British soldiers is as true today as it was then. Unjust treatment under color of law of any group of people is as great a stain as the same injustice committed against any other people. Adams defended British soldiers in a town that despised them. The great 20th century defense attorney Clarence Darrow defended the down-trodden, and also two wealthy young men, Leopold and Loeb, who were despised not only because they committed a senseless killing but precisely because they were wealthy and privileged young men. In Darrow’s sentencing argument, he stressed the fact that if these had been poor and unprivileged defendants, it would have been much easier to secure life rather than capital judgments upon their plea. He saved their lives.
Closer to home, when three wealthy and privileged young men from this university’s undergraduate body were unjustly prosecuted for a heinous crime that they did not commit and that in fact never occurred, many in the community, and indeed in the nation, rose up to condemn them without a trial. A brave and professional attorney, James Coleman of this Law School’s faculty, rose up to remind the community and the country at large of the justice of a system in which the rights of all defendants – even the rich and unpopular – are protected by a great Constitution, which works only when somebody does something about it. That somebody is the lawyer.
The duty of the lawyer to face injustice and do something about it is as real today as in the time of Adams or of Lincoln. And it extends to the unlovable. It is your duty to defend the freedom of speech of anyone without regard to how offensive the speech may be. It is your duty to confront the deprivation of due process of law no matter how despicable you think the alleged conduct of the person deprived of that due process.
I’m neither naive nor idealistic enough to think that all or even most of you will devote your careers to finding and defeating injustice. But it is perfectly realistic to think each of you will have opportunities to use your fine education on behalf of some who are unlovely, who are unjustly deprived of liberty, or property, or equal treatment under the law.
Now I risk breaking my pledge of brevity. But I will end with one short personal anecdote. When I was a young Assistant U.S. Attorney, a veteran postal inspector came in one day with a thick file and said, “Sentelle, we’ve got a problem.” Being young and full of myself, I said, “Ed, we don’t have problems, we have opportunities for service.” The inspector said, “Well, Sentelle, we’ve got one whale of an opportunity for service!” I close with that thought. You have, Duke Law graduates, one whale of an opportunity for service.