Published November 5, 2021
From the heights of his long tenure at the University at Buffalo School of Law, in Episode 21 of The Baldy Center Podcast, Distinguished Professor John Schlegel discusses US economic history, American Legal Realism, and his lived experience with legal education over the last half century, in particular, Critical Legal Studies. In this extemporaneous conversation, Del Cotto Professor David Westbrook affectionately provokes Schlegel to grapple with the necessary and complex ongoing negotiations between our concepts of adventure and stability, serious and fun, the endeavor of intellectual freedom... and the Borg.
Keywords: critical legal studies, American legal realism, serious fun.
How do we give people a sense of openness without telling them what it is? I can’t tell you how to be open to change. It is pointless for me to do so. All I can do is to help you gain the confidence to notice it when it happens and say 'well what might we do here?'
It’s that openness to the world, to the change, to the fun of living in it, that is so hard to get across in the classroom, in the seminar, in an annual meeting. That is, I think, a really important part of the teaching we’re doing and we need to keep doing."
—John H. Schlegel
“The Greatest Adventure Is Thinking”
The Baldy Center for Law and Social Policy
Podcast Season 3, Episode 21
Audio recording date: August 2020
Host-producer: Edgar Girtain
Speakers: John Henry Schlegel and David A. Westbrook
Contact information: firstname.lastname@example.org
Podcast transcript begins.
Edgar: Hello, and thank you for listening in to the Baldy Center for Law and Social Policy Podcast produced by the University at Buffalo. I'm your host Edgar Girtain. Today’s episode departs from the norm a bit. Instead of me interviewing a guest, we will be listening in on a conversation between UB School of Law professors John Henry Schlegel and David A. Westbrook.
John Henry Schlegel is a University at Buffalo Distinguished Professor in the School of Law. He’s taught at Buffalo since 1973. He studies the economic and legal history of the United States in the 20th century. Of particular importance to today’s podcast, he is a scholar of the American Legal Realism Movement of the 1930s and a participant in the Critical Legal Studies Movement of the 1970s and 80s. Schlegel’s next book is titled While Waiting for Rain: Community, Economy and Law in a Time of Change.
David A. Westbrook is the Louis A. Del Cotto Professor at UB School of Law, where he’s taught since 1998. His latest book, with Mark Maguire, is titled Getting Through Security: Counterterrorism, Bureaucracy, and a Sense of the Modern. The Baldy Center and Professor Westbrook planned a conference - Serious Fun: Conversations with & around Schlegel! - which has been postponed due to the pandemic. The conversation on which this podcast is based was held via Zoom in August of 2020 to discuss Serious Fun. The conversation is extemporaneous, but has been lightly edited for length and clarity. Schlegel and Westbrook have taught together many times.
Without any further ado.
David: So I suppose I have sort of three leading questions, take or ignore in whatever order you want - one what do we mean by serious; two is what do we mean by fun; and three I suppose that there’s sort of an implicit critique on insisting on serious fun that might sort of suggest that a lot of things aren’t all that serious and certainly aren’t all that fun.
John: Well, serious is important, always has been to me because so much of what I had understood in my education is, and life after education, which may be the same thing, is it never seemed to me very serious. That is to say, it was taken seriously by the people who were doing it, but looked at it from an outsider’s point of view, there was an awful lot of badminton being played. And the people were taking it very seriously, but seemed to enjoy it only in a very distanced way. It wasn’t fun. It was part of life but somehow not making life more livable. Not bringing people to say that “oh it was a good day, we had some fun.” And it is the combination of being deadly serious, that is to say talking about things that seem important in the world, in our understanding of our world, but also not being, you know, sort of, for someone who is engaged in deeply black humor all the time, I mean fun in the sense that it is intellectual fun. It is, teaching and learning are fun. If it’s not fun, what the are you doing it for? And so, I just simply, as I think more about it, I think that what has been wonderful in my life has been having acquired friends who are capable of having serious fun. I think that’s all three.
David: You’ve touched on something that, to use a word that is going to be probably misleading, a sort of existential concern, and you have done it in sort of two ways. One might be thought of as what the are we doing here? Why this instead of something else?
David: Insofar as it is not fun, as it often is not, that question becomes somewhat pressing. And maybe particularly pressing as one gets older, right? It’s like, oh, wow. I turned left at law school and look what happened. So, there’s that question, and in there is an answer that runs through your work, you might regard as somewhat banal and that is one talks an awful lot in certain circles about things like positionality, right? So, the reason professors take professing seriously is because they have little else. It is not just positionality in the sense of imposing a perspective, biases, and weaknesses and all that well plowed ground. It is also professionalism in the sense of central to the creation of identity. And therefore, challenges to it are to it are deeply problematic, particularly when they come from themselves. Maybe I erred at turning left at law school, you know it’s certainly a question we must have all had at some juncture. The law school itself is a question. And a question that one can’t answer simply by reference to the law school because other options are imaginable.
John: I am not a philosopher, but I do enjoy reading some.
David: Arguable point.
John: I’m not. At the very least I am not an academic philosopher. The signature on my law review, on my internet, goes the “greatest adventure is thinking.” And I take that very seriously. There is a difference between thinking as an adventure and thinking as a job.
David: Ok, we’re done!
John: Part of my job, part of what I get paid for is thinking and helping other people think. But if it isn’t fun for me, it’s just another ditch to dig. It’s that, if you are going to work seriously it has to be because it gives you pleasure. It is an adventure, it is a chance to do what you want to do - or find yourself doing, that is somehow pleasing. And indeed, for me the great sadness of poverty is that what you do almost has no other choice. There is no way of saying - oh it this is terrible, let’s do something else. And that is crushing, if I make speak quite adolescently, to the soul.
David: We found ourselves engaged in legal typology - thereby opening us up to all sorts of critique. So, we invited people to speak about critique or legal history. Which of course which didn’t make much sense at the time, self-consciously, and then it was made worse by, it wasn’t clear where legal education went. It sort of floated back and forth. But it got me through invitation letters and stuff like that. So, for whatever that may be worth. But in a different way maybe, taken as metaphor rather than literally, maybe this confusion is sort of apt because we seem to have lots of law that are legal practices out there in the world. Some of which, depending how we define things, require a legal license that we have an integral part in granting as an institution. Then we have law in a sense that we frequently take it as an object of critique - law on the books, the stuff of bar tests. We have law as the sort of thing that legal intellectuals, historians, crits, what have you, think they’re doing, right? There’s a sort of legal intellectual engagement somehow. For a while, we might call it the 80s, it looked like that this third idea understanding of law was going to transform the second, it didn’t really happen, in fact quite the contrary. As I look back onto when I graduated law school and sort of where we are now with learning outcomes and suchlike. I’m struggling against the word relating these three understandings. As you pointed out recently, one possibility is that law and society can’t be understood as distinct entities. And therefore, relating them is a fool’s game. But nonetheless we have seem to have different people thinking they are doing very different things within the building or preparing to do very different things within and without the building. And very hazy relationships among what such folk, if nothing else, are doing. I’ll stop.
John: That’s life. Exactly what is the relationship between my cat at the groomer, my sitting here and talking with you, and working about Walter Nelles, an obscure legal historian from the 20s and early 30s. We make our lives together out of disparate pieces and the notion that it will cohere in, sort of, this seamless web, can only be made to work if all sorts of people, places, and things in our lives decide to make them invisible to us. I thought just yesterday, how nice it would be to be important enough to have a personal assistant. And the personal assistant could go get the cat food tomorrow, and could take the cat to the vet tomorrow, and could deal with my list of phone calls to make today, and deal with the computer people, and deal with all of that. To have a single life, that’s what it would take.
So, to only have one thing going on in the law school all sorts of things would have to be parceled out. There would be the people over who do the big thing, and we don’t bother them because they’re thinking big, and we prefer that they keep their doors closed, because we’re not clear what’s going to come out if we open them. And we have people in the classroom who think, “well, we’ve got to pass the bar exam this time, I need to do x, y, and z,” and then we would need the people who are sitting around thinking about “well exactly, how do these pieces of law all fit together?” And it is a plausible way for a single life if you want it. But that’s not the life I think I want; it’s surely not the life I’ve lived. And I find that kind of single mindedness troubling when it shows up in people, because it allows them to set aside the multi-faceted world in which the central topic, law, is to be found. It is not just thinking big, it is not just one kind of practice. It is not just teaching kids to pass the bar exam. It is about, and lord knows it has more to do with the cleaners than you think. It is by embedding all of these things in the way the thinker thinks, in the way that a life is lived as a thinker, needs that understanding of the chaos, and the craziness and the wonder and the adventure that is learning things. And if it is not an adventure, if it’s not in some sense a pleasurable adventure, as opposed to a very scary one, then life is somehow diminished. And all of the diminution is what makes life sad. I have always thought of myself as been dealt an incredibly rich hand because I have been able to find a place where I can mix all of this together and watch it happen and enjoy it and try slightly to help my friends do the same.
David: So, for many years you’ve told a somewhat structurally similar story about two intellectual moments, or periods roughly speaking, American Legal Realism and Critical Legal Studies, and in both periods, there was a sense of opening, more adventure. And then there was a sense of closure, right, as you recently phrased it, I think you said, the music stopped, the merry-go-round stopped, something stopped. I think perhaps the most important thing I’ve learned from you; I think you think it stopped for essentially the same reasons, albeit maybe in different keys, that the music became professionally threatening. Intellectual history is the history of intellectuals, and there were limits that someone can go with some of this fun and be tolerated. Or also as I started out with, it raises existential questions “what is one doing here,” right? And I think you are a far better citizen of the university than I, but there are a range of answers and they’re all trouble. Anyway, so if that’s fair bullet point summation, please elaborate. And then I guess I would ask in addition, if we now kind of take this somewhat long view of CLS and the quite long view of realism - what are the differences in the way the horizons opened and closed. In other words, from my usual altitude these look very similar, but thinking as a historian there are obviously many differences. Role of wars springs to mind. But at any rate, I’ll stop.
John: That would be the first one I would come up with as well. There is a periodicity to this that I think is important to understand. Things open, things close, things open, things close. And the reason for the closure is always, I think, a combination of professional and social circumstances. The realism circumstance it was quite clearly law, it was quite clearly war, and it was simultaneously, for some people, the need to confront the fact that this war was about, in some awful way, ways to understand law. That it was, that people had stakes in how we understood law and that realism was undermining those stakes. I think the closure of the 80s was a much more a social closure of the society that comes with the closure of an economy. The economy was flowing apart, it had, in fact, collapsed in the 70s, there’s no question about it, and the …
David: The 50s economy?
John: The 50s economy had collapsed. This threw an enormous number of people out of the comfortable life they had built for themselves. So, the pressures from the outside made critical legal studies less acceptable in the academy, not in the world but in the academy, again in both cases, because the pressures the academy was feeling were no longer even modestly hospitable. Two, in both cases at your altitude, people ran out of ideas, period. There was no third CLS idea. There was arguably only one legal realism idea. Two I’m trying to make a better case for still, as a second guy, but that’s about it. There’s you know, you’ve absorbed it and then the world goes on. The question is always fighting the borg. There’s always...
David: The borg seems to be winning at the moment.
John: The borg seems to win most of the time! And a society wouldn’t be relatively stable if it didn’t. But that doesn't mean that it isn’t important to have fun at the expense of the borg. It is what makes for cycles of things that enliven the place, whether it be in the art world, in the television world, whether in the music world. That relationship between adventure and stability. When that’s gone, that is really one possible definition of totalitarianism. It is not external, but it is an internal totalitarianism, an unwillingness to explore other ways of doing things and a modest tolerance, which is never great, but a modest tolerance for the people who do.
David: Coming back to adventure and coming back to, sort of, the 80s. There was an intellectual ambition, there was a lot of political talk. I don’t think there was much serious political ambition but politics was something that a lot of things were organized around as a rhetoric. But I think there was intellectual ambition. People read interesting books, and they asked big questions and, you know, answered them variously and so forth. We said there’s sort of an opening and despite the vast wealth generated since, in various ways in this country, not much of it has flown to the, sort of, humanities generally in the more fancy highfalutin parts of legal academic life. We do seem to be working under kind of conditions of austerity at least relative to those that the folks in the 80s thought were already marking a time of collapse, you know, Reagan and all that too. I think there’s maybe a, I don’t want to say a false consciousness that would be a little too pointed. I was going to law school in the tail end of this as you know, right. I’m not sure we knew how good we had it.
John: We did not.
David: We did not, right? In other words, I think the legal academy afforded more and more easily then, than it does now for reasons that are a bit mystifying. It’s a little bit like when we say we can’t afford to fix the roads, that when the economy was much smaller we could build. Two generations ago you can show lower GDP, etc., lesser technology, fewer people, and yet they still manage to put the interstates in, build bridges. It’s like the Egyptians, it’s just wondrous, because now we can’t afford anything. It’s not quite clear how this has happened but it certainly has affected the law school and by extension the life of legal intellectuals. And perhaps as cuttingly or maybe even more cuttingly, the sense of adventure of the students. And so, it becomes harder and harder to teach something which is not immediately, rather linearly, justifiable in utilitarian terms. And in fact, we’re urged not to do that when we write our syllabi which we now file. Moving right along...
John: Or we have to become file clerks.
David: It seems like a real diminution and it’s not entirely clear why. I do agree with you that the cultural context is tighter and one can talk about things like stagnant or falling depending on how you do your math and who you look at, but middle class and lower-class wages and well-being generally. But that sort of pushes the question back, political mistakes, I don’t know what. At any rate, it seems that we’ve created a situation in which it’s much harder for the legal academy to fulfill its university intellectual aspirations as opposed to its mere licensure aspirations.
John: Absolutely. Look, we opened up in the university when we brought the middle class and when markets for ideas got wider. The place in the culture as a whole for what was - a friend of mine uses the phrase, the bookman culture - of the 30s, and 40s, and early 50s, which was a largely an upper middle-class culture, all of a sudden became overwhelmed by a different culture, a broader a culture that we made a lot of fun of. I remember the song Little Houses, but that brought a greater share of the democracy to a whole bunch of people who had, not none, just less. And they had more because there were more of them. Not all that much more for most of them, in actual live better terms, but a bigger swath of the country. These people, who I wrote a whole book that nobody wants to buy in print.
David: It’s a good book. I’ve read it. I’d even pay you for it!
John: Find 20,000 friends. This group was what brought the 70s and 80s. There was a certain real optimism and then the collapse of the economy which didn’t affect the adults, it affected the kids. Not directly, but in their role as being adults, and the best clue to it is the decline in the birth rate and the size of families. They became afraid that their kids wouldn’t get what they thought of as a better life, which probably would turn out to be the same life they had. Anyway, but ignoring that. The pressure, because it was a large group and because we were expanding it up in size, not overwhelmingly, but noticeably, by expanding a membership to a new bunch of immigrants and previously largely excluded African Americans and, to in other places, Hispanics of one kind or another. It was growing and they all had the same thing in their heads, we got to get our kids a job. The pressures of getting a job of course interacted with the economy in which what was growing were sitzfleish jobs. Jobs where you were sitting in front of what eventually became a computer. And there were millions of them, and they kept getting bigger as the borg bureaucracy began filing more and more stuff, and so the response from the business, the buyer’s side of talent, was how do I slice away? How do I get this pile of 100 resumes down to four? And so, the credentialing became significantly more important even in law. It had always been important in the sense that, if you graduated from Yale, even at the bottom of your class you could get a pretty good job. The drive for credentialing became, I wouldn’t say overwhelming, but increasingly significant. Once credentialing becomes the relevant thing then the question is how do I get the credential?
David: The fun is gone.
John: This then interacts with something which seems off-field but is not. The legacy of the 60s is a greater concern, not overwhelming, but still greater concern, for the health and welfare of the lower class. And that health and welfare has been decided somehow for some reason that I really don’t understand, to have to do only with government expenditures. The push from that, very well-meaning, as well-meaning as a country can get, desire, political will, to support these programs. Medicaid being the one they complained about the most, there are all sorts of others - brought to budgets a sort of crimping at the same time that the desire for a broad education, one not geared towards credentialing, except in the old-fashioned sense of credentialing, you got a college degree. Pushing together against the university, and the university’s response was “we got to fill these rooms.” We had built this big thing for the baby boom kids, and they had some kids, not a lot but still plenty, and we had all of these rooms and all of this stuff and all of these people and, well, what do they want? If no one remembers me for anything else, they should remember me for the line of TS Eliot, “These are the fragments I have shored against my ruin,” and the university is a place that provided those fragments, got squeezed. I mean, if you want that kind of an education, you can get a damn good one at any second-rate state university because the faculty.
David: Have nothing to do!
John: Has nothing else to do. They put together their PowerPoints, they have nothing else to do. I mean I got a kid who wants to talk to me about something I’m interested in? You can get a marvelous education and some students do. We see them in our classes. But the pressure of the sense of closure, and a closure that is particular because it seems to be a closure that is accompanied by an opening of chemistry, biology, engineering, and that, and an opening that is somehow related to this crazy machine we’re talking on that the people who run it don’t understand, makes it worse for us than it is in some other places where there have been licensing exams forever. But the sense of openness allows for a sense of more space if my kid is going there. That some help?
David: If we are skeptical of the proposition of, sort of, you know, Olympian truths, and if we are skeptical of a tight relationship between what happens in the law school and practices students ultimately find themselves in, and if we are skeptical of the contemporary squeezed university, and if we are then sort of you know finding fun in an almost, the Soviets have been on my mind today, in an almost sort of samizdot fashion. You know, people out there, some guy may work in an insurance agency... T.S. Eliot, you know stuck in a bank for a while. That doesn’t mean they’re not thinking. But what it may mean is that the university becomes less of a place to think and, other than sort of helping students get their next credential as a kind of public service, what are we doing? For which my answer has been, but again I may not be the university citizen that you are, my answer has been, well, I do know some things and maybe there are some fun things that the world will fit together and you know you might be a little more sophisticated at the end of the semester than you were at the beginning.
David: That’s not exactly a learning objective. And it has no assessment mechanism, right? It’s sort of, you know, we’re going to walk together for 14 weeks, read some stuff, talk about some stuff, and I’ll try to coach you a little bit. It works with small groups, which I generally have the luxury of teaching. Sometimes it works in lectures if you can make a big lecture, I don’t know, I want a better word than flippant, enough, but you may be able to convey some things about how the world works that somebody may be able to make use of and may kind of enjoy hearing.
But there’s still fundamental questions here, and I think these are some of the questions that in different ways realism and CLS raised. You mentioned, oh what was his name, who said that CLSer’s ought to stop.
John: Paul Car...
David: It’s not a non-serious question in a way right because, the question becomes does teaching become an act of sort of assigning here and then one sort of reaches around the edges sort of like Locke tutoring.
John: Like Locke tutoring. I’ve never been compared to Locke before in my life.
David: There you go!
John: I don’t know whether to be flattered or not. I like to think in these times, although I haven’t until just recently, of the old 50s comedy Mr. Roberts with James Cagney as the overwhelmingly overbearing neat freak commander of this stray boat in the Pacific Ocean during WWII, or maybe Korea I don’t know, what do I care. There are two things that the sailors do to undermine his authority, and one of them is, given the way boats rock, they put marbles in his overhead. Another time they threw his potted palm overboard. There is always in any system a space for doing that because there is no reason to believe that doing so undermines anything other than an artificial order. The academy could be designed otherwise. The licensing system could be designed otherwise. It is important to keep alive the possibility of thinking otherwise.
John: And that’s all one needs for the justification to do that. That I know what you want, I will do my best to help you, if you will express a need for help. But if all you want is the same canned stuff go buy a book with it. Don’t come to my class. It’s a waste of your time and mine. I don’t take attendance and the notion that I should take attendance is another piece of the borg. If you want to come to class, come to class. It’s the importance of seeing that there are alternatives. They may not be available now, they may not be available in what is my diminishing life expanse, but it is important that we continue to make them available for when a time comes.
And, you know, intellectual historians track those little things that happen in between big events. It’s a really terrible scholarship, it’s boring. It comes with, it is the track of keeping alternatives alive, and it’s important for any culture, the culture of law in particular, because law is by nature a bureaucratic entity. Since the 13th century, it is a way of keeping order of how we do things that have to do with disputes and building entities that are there for other purposes than just resolving disputes. The pressure to bureaucratize everything, to make it more sure, is in fact desperately always in need of being undermined. Because you’ve got to be ready as a practitioner to change with it, and change doesn’t just mean going to your CLEs. It means understanding the world you’re in in a different way, because the world in which you are doing law, the careful bureaucratizing of stuff has changed. The one I love most is intellectual property, which grew and collapsed because it grew. Because all of a sudden, we had a new category of property, and that was sort of related to computers and science and things like that, and that nobody paid attention to it for ages. And so, it grew and then we figured out what it was. The lawyers learned how to deal it because they learned how to deal with new clients and then it trended down because it had been reduced to essentially a bureaucratic praxis. That happens all the time - it happened with Medicare. It annoys me but, all of that should be for free.
But, the way that we saw health care changed, and the ways that lawyers worked changed, and now we go into the doctor’s office and the first thing we get is seven or eight pages of that you have to fill out and sign. The borg, the lawyers serving the borg, have organized this into a bureaucratic system that has vaguely predictable results and everybody is sort of happy with it and we can go on and lawyers have to learn. You have to always be open to that.
David: I’m not sure we’re doing a very good job of that -
John: Absolutely not.
David: - in the following way. On the teaching side, I would say that the modalities of critique have themselves become very ossified. It’s very rare that I hear a critical self-proclaimed critical argument that I find interesting. I might have found it interesting, some time ago, but now one’s sort of used to the, one knows the moves, right? The borg wins again, right? And this also sort of floats in through the creation of studies which are usually organized around a sort of a normative moral program.
But at the same time, if one can get outside of this or that box, this question of the hydraulic pressure of much of society, obviously government, but also what used to be called the Establishment with a capital e, to create things as predictably as possible. Chaos makes it hard to send your kids to school. We all kind of nowadays worry about things like the robustness of supply chains, which might not have been as robust, as we, we thought there was, or you know banks, as we found out... the financial crisis - wasn’t somebody in charge of this? I mean, not me I was doing something else, but somebody, right? So, when we were teaching, you know, a bunch of financial stuff, we were also learning a lot, because there’s a sort of well, I don’t know, somebody out there knows it. What do you mean “somebody out there knows it?’ Markets collapsed that nobody knew existed, much less where the exposures were. One things it seems to me a critical approach to education, coming back to your notion of coping with change, might do, is try to look with somewhat fresh eyes at actual structures and say, well, given that law is going to want to do certain things in a kind of general way - expected legal moves - standing somewhat outside of them, can we imagine law still being law, but doing maybe less, or different, or else, right? Coming back to getting into a doctor’s office and the giant questionnaire, one has to think, this is really odd. This does not seem right.
One of things that was most mystifying to me about Obamacare, with the possible exception of big pharma, I knew nobody in the entire matrix that was happy with the existing system. You had widespread discontent and yet a very, very low willingness to experiment, which law teachers could help people with a little bit. We could look at things and say, well, do we actually need to bureaucratize this, this much? Does this make anything better? But that’s not what we’re actually seeing. What we’re actually seeing in the academy is we’re now rapidly bureaucratizing the teaching activity. We do not have an effective critique or even understanding of bureaucracy that our actual students work in. And when we think we’re doing critique, it tends to be along the, by now, very well-established advocacy for the subaltern. Which is good, right -
John: To be advocated for, but still.
David: But still, right? I am not sure at this juncture that by now very well-rehearsed, several generations of critique are helping actually address what structures we’re dealing with. But that’s an aside. Coming back to the intellectual problem posed by the music stopping. I’m going to ask this in sort of two parts. The argument, basically, the opening occurred with reference to an incredible range of texts, but with references sort of the post-modern, or modern depending on how you’re using words, 20th century decentralizing and fragmentation of knowledge, across, you know, ranging from Picasso to Combe and so forth. And so, there was this moment at which it seemed like you know we could say the borg is only the borg and even if we had to call it Hurst and that seemed to promise a certain sort of freedom which turned out to be rather evanescent. But part of the problem and we’ve been discussing some of sort of the ways socioeconomically it was evanescent, institutionally evanescent, but there was also I think a real intellectual problem and that you’ve been kind of wrestling with, even for the relatively comfortable. And that is that the lack of authority, or the sort of attack on authority implicit in this, I don’t want to quite use the word relativism here but something like that, ran the risk of, the horse ran the risk of going too far, right? And so political projects that people held dear, professional projects that people held very dear, maybe more dear than they cared to admit, all risked being threatened by what you kind of call “says who.”
And, and then there were various responses, as you’re detailing in the Yale piece. One set of responses we might call, which I think is still dominant in the history profession, we might call kind of reasonable professional consensus.
John: Um hm. I use precisely those words.
David: I do read a little bit. Another set of responses is a simple kind of bifurcation of the ontological world in which there are certain fundamental truths and everything else is subject to critique. This obviously lends itself to, sort of, normative political analysis, familiar across the various normative ranges so race, gender, etc. You seem discontent with those responses.
John: I am, if that’s helpful.
David: And suggest as an alternative narrative, which obviously as someone else who writes essays, I find an attractive answer, existentially for that matter. I mean, it’s what I do. But anyway, I’d like you to sort of expand on that a little bit. I’ll stop.
John: This is the teaching problem just stated otherwise.
David: Yes, I know.
John: How do we give people a sense of openness without telling them what it is? I can’t tell you how to be open to change. It is pointless for me to do so. All I can do is to help you gain the confidence to notice it when it happens and say “well what might we do here?” And the problem for the academic is the same. The borg is us, everybody needs to recognize that. The borg is us. It’s not them, we are both of the borg and fighting the borg. And so, the alternative that narrative provides is the possibility of maybe escaping the forms that the borg imposes. It is nothing more than a possibility. Everybody needs tenure, to get tenure you’re going to have to do these things. Yes, you have no part in establishing the list of things you have to do, and that’s the way the world works, but to keep alive the possibility that you could think some other way is really important to students, to young colleagues. The most important thing I do with young colleagues for all these years has, every time I catch them thinking outside the narrowest rut in the legal world, is to say, “oh how wonderful, how interesting, can we talk about this some more?”
David: You’ve been incredible about that.
John: You see it, you try and help it along. Maybe it’ll only get an eighth of an inch wider, I don’t care it is still an eighth of an inch. And that’s all you can do with your students. If you see a student asking an interesting question, if you see a student struggling, you try and open up alternatives that are not obviously there for that mind. In the worlds that have something to do with our social understanding and our humanitarian being, that you’ve got to keep that open however you can do it, because it will be valuable. There was something really stupid and laughable about a degree in Greek at Oxford in 1880. On the other hand, it was in some sense thinking about some way that was not your own. And so there turned out to be some fairly good bureaucrats there. They created an empire, and we may disparage the empire; it seems like a good thing to do at this time, but at that time it was new and they figured out from stuff that seemed to be irrelevant to the question of how do you organize a government in Tanganyika to say well okay, let’s think about this - what do we know about the world where it might tell us something about this, and, “oh I can do this, this can’t be all that hard.” And so, it’s that openness to the world, to the change, to the fun of living in it, that is so hard to get across in the classroom, in the seminar, in the, god knows, in an annual meeting. That is, I think, a really important part of the teaching we’re doing and we need to keep doing. I have no other way to say do it than to just like a hippie, just do it. Now, Nike was never a hippie’s enterprise, but they said a hippie’s phrase, “just do it.” You know, try, see what you can do, maybe you can’t, recognizing the chaos out right in front of you, the chaos behind you, the chaos in family life, the chaos everywhere, as well as the borg always there trying to damp down the chaos, and thankfully so, just keep it open a bit.
Edgar: That was professors John Henry Schlegel and David A. Westbrook talking about Serious Fun, and you are listening to the Baldy Center for Law and Social Policy podcast produced by the University at Buffalo. Let us know what you thought about this conversation on our Twitter, @BaldyCenter. You can also learn more about the Center on our website, buffalo.edu/baldycenter. The theme music for this season was composed by University at Buffalo composer Matias Homar. My name is Edgar Girtain, and thanks a lot for listening to our program today. Take care.
John H. Schlegel joined the School of Law faculty in 1973. His primary research interest has been in legal history. For over 20 years his scholarship was focused on the history of legal education and the activities in the 1920s and ’30s of a group of scholars at Columbia, Yale and Johns Hopkins universities known as the American Legal Realists. His current project, a book on law and economy in the United States since the Civil War, attempts to understand change in the national economy and its social consequences, using Buffalo as a case study.
David A. Westbrook thinks and writes about the social and intellectual consequences of contemporary political economy. His work influences numerous disciplines, including law, economics, finance, sociology, anthropology, cultural studies and design. He has spoken on six continents to academics, business and financial leaders, members of the security community, civil institutions and governments, often with the sponsorship of the U.S. State Department. Westbrook has published many books.
Edgar Girtain is host/producer of the 2021-22 Edition of The Baldy Center Podcast. He is a PhD student in the music department at SUNY Buffalo, where he studies with David Felder. Girtain is a director of the Casa de Las Artes at the University of Southern Chile (UACh), and president of the Southern Chilean Composers Forum (FoCo Sur).He is an eminent composer, pianist, and writer of his own biographies. Girtain's diverse areas of work are often collaborative, cross-disciplinary, and international in ambition if not in practice.