Dean Emeritus and Norris Professor of Law John D. Feerick ’61 gave the keynote address at the latest virtual Rule of Law Forum from the New York City Bar Association. A recording of the session, titled Rebuilding the Rule of Law in America: What Can and Should the Legal Profession, Individual Lawyers and Citizens Do?, can be viewed here. Dean Feerick’s full remarks can be read below.
Thank you very much for the generous introductions, Judge Kahn and Steve Kass, my friends from bygone years. I am privileged to participate in today’s program on the rule of law and to speak about the legal profession as the home of the rule and what lawyers and citizens can contribute to its rebuilding.
At a challenging time in history, with communism, Cuba, civil rights, and racketeering on the national agenda, Robert F. Kennedy, in his first formal speech as Attorney general, in a Law Day address at Georgia Law School in 1961, quoted his brother John Kennedy as saying “law is the strongest link between man and freedom.
The Attorney General expounded on that, saying: “we know that in many (countries) law is the instrument of tyranny. And people think of law as little more than the will of the state, or the party, but not of the people. And we know, too, that throughout the long history of mankind man has had to struggle to create a system of law and government in which fundamental freedoms would be linked with the enforcement of justice. We know that we cannot live together, without rules which tell us what is right and what is wrong, what is permitted and what is prohibited. We know that it is the law which enables man to live together, that creates order of chaos. We know that law is the glue that holds civilization together. And we know that if one man’s rights are denied, the rights of all of us are in danger.”
As we confront traumatic and stressful events affecting the lives of many individuals, I focus my formal remarks on racism, social justice, civics education, and the judiciary. All areas that are linked to the rule of law.
Of racism, New York State’s Chief Judge, Janet DiFiore, recently undertook to address issues of institutional racism in the courts of the State. In doing so, she said: “The death of George Floyd, and the issues it has brought into harsh focus, are a [painful reminder of the repeated injustices and institutional racism that have long undermined the values and unity of the nation. The court system’s commitment to these values is especially vital. Their preservation is a cornerstone of the rule of law, the subject of sacred oaths taken by all judges and lawyers, and the daily endeavors of the thousands of court employees around the State who work tirelessly to advance the cause of justice.”
She asked a prominent lawyer of color, Jeh Johnson, to lead a Commission with a mandate of evaluating racism in the courts. He had served in the Obama Administration as US Secretary of Homeland Security and general counsel for the Department of Defense. The Commission, after its evaluation, produced a remarkable, 100-page report containing 13 recommendations.
The recommendations speak about the lack of transparency in the justice system when it comes to issues of race and racial bias, the absence of mandatory training on bias for all judicial and non-judicial employees, the need to educate jurors on issues of implicit bias and to develop a rule permitting voir dire of jurors on racial bias, the importance of having a social media policy for court personnel, the need to address weakness in the handling of complaints of racial bias, and the need to review proposed legislation and rule changes for disparate impact or bias on people of color.
The report also made recommendations with respect to data collection and publication, such as in criminal cases with respect to case outcomes. The report also noted the lack of diversity in the system’s work force in senior leadership positions and the need to enhance trust between court officers and litigants of color and their families and with lawyers of color; and it highlights the importance of courthouses being welcoming to unrepresented litigants.
For me, the Commission’s first recommendation was the most important of all — “change needs to come from the top.” The Commission emphasized the need for explicit standards or goals related to diversity and inclusion and for a zero tolerance policy for racial bias, extending to all who work in the court system, coupled with a robust publicized policy specifically addressing racial bias. The last Commission recommendation called for the implementation of change. The Commission’s chair reflected that “recommendations matter little if there is no follow through on the recommendation of them: far too often, reports and recommendations such as these are placed on a shelf and gather dust unless there is a commitment to put words into action.”
I understand the need for the last recommendation having chaired a half dozen State Commissions over my professional life. I urge the City Bar to examine this comprehensive report, through its many committees, and help the Chief Judge effectuate the recommended reforms. There is nothing more powerful as a change agent than multiple bar associations working together with each other on an agenda that would strengthen the rule of law. The reforms have been well developed by the Chief Judge’s Commission. Indeed, its work product offers a model that can be drawn on for evaluating issues of racial bias within Law Schools, Law Firms and in other entities.
As one example, Dean Diller of Fordham Law School has convened meetings of the faculty, students and staff of the school to discuss issues of racism at Fordham. He began by deploring the nation’s history of racism against African Americans and said that law students and lawyers have a special commitment to work towards the principle of equal justice under law. He spoke of the school’s responsibility to look both at itself and beyond and “to work to enact laws and policies to protect young people from marginalized communities”. He issued a detailed plan to expand diversity in the faculty and student body, to put in place support systems for students of color, and to make the school a more welcoming place for a student body of diversity and inclusion.
Since issuing this plan, Dean Diller has instituted mandatory training programs on racial bias at the school and has energized the school’s many centers and institutes that serve vulnerable communities of color. A center on race, justice and the law, has become very active in sponsoring webinars discussing sensitive areas of the law, including the work of prosecutors, the materials used by law teachers in educating students about the law, and the need for racial diversity in law offices. A Center for Social Justice in which I have been involved has been actively engaged in the courts of New York in providing limited legal representation to thousands of low income wage earners and racial and ethnic minorities who have consumer debt issues, and in responding, at the Texas border, to a crisis involving migrants seeking political asylum status under applicable due process standards.
Other schools as well have taken important steps to deal with racism and other subjects tied to the rule of law such as Harold Koh’s rule of law clinic at Yale law school. Georgetown law school, has developed the most popular course in its history, helping students learn how to fight for justice. Attended by 300 law students, with sessions on Sunday, the dean asks faculty members to discuss with students how they might move forward to confront “the great issues of this terrible time.”
As one student said “Everyone realizes that the old paradigms of politics and justice are kind of breaking. Lawyers have a real role to play in what we take.” Another student, a former teacher, said after one of her classes, that the lecturer reinforced that having a functional modern democracy is a precious thing, and it can get lost easily if people aren’t willing to perfect it.” A guest speaker in another class, a former federal prosecutor, challenged students “to rethink the justice system.”
A clinic at Fordham Law on Democracy and the Constitution has done exactly that, issuing major reports on the independence of the justice department, the emoluments clauses of the Constitution, and disclosures by presidential candidates, and recently concluding a year -long study of the President’s pardon power, soon to be released in a report.
In a recent article in ABA Just Resolutions, Carl Smallwood spoke of people wanting to be heard and said they needed a forum to talk and they needed a guide to help them. He said that “no group is better suited to convene a broad base of community stakeholders, to plan, and develop processes to surface/frame issues and to problem solve and resolve disputes, than trusted and experienced professionals skilled as leaders, facilitators and mediators.” He mentioned, as an example, lawyers from the local bar association in Columbus, Ohio who began to reach out and work with public officials and community groups to convene meetings of stakeholders to address divisive issues which undercut trust in the justice system
The Bar of this state has the talent and diversity to guide groups through controversy and complexity. I suggest that the Association consider creating a working group or a special advisory committee to develop a program of training lawyers to assist communities in discussions of race and justice. Many resources are available to help with such an undertaking. Under the leadership of former ABA president, Linda Klein of Georgia (born and raised in Queens), the American Bar Association has established a working group in building public trust in the American System that would collaborate with state and local bar associations in actively recruiting local organizations and stakeholders to host meetings in their communities that create dialogue and improve the public’s trust in the justice system. As part of this work the ABA has created a tool-kit and related resources to serve as a guide for hosts and facilitators of community meetings.
Not unrelated to the issue of racism and lack of trust is that of civics education. Studies indicate that widespread knowledge of the rule of law is thin in America, explaining the lack of confidence in the system as found in highly credible surveys. Many positive steps have been taken to address the challenges of civics education at this time of diminished federal and state budget revenue.
Among these steps was the founding in 2009 of a non-partisan, non profit institute launched by Justice Sandra Day O’Connor to advance the level of civic education, civic engagement and civil discourse involving the development of school curricula and programs aimed at America’s youth, seeing this as the important work of her life. Former Chief Judge Robert Katzmann of the United States Court of Appeals for the Second Circuit more recently has given remarkable leadership in this field in the federal courts of the circuit.. In a recent lecture he gave at Wisconsin Law School, he said, “in poll after poll, Americans express the sentiment that our national political institutions – the presidency, the Congress, and the Judiciary – are not working as they should. In a recent Gallop Poll, for example, only 28% indicated that the United States was on the right course.” He added : “Americans do not look favorably upon the performance of any of our national political institutions. The Constitution’s ideals – and the way our system of government puts them in action – are lost on millions of Americans. Surveys show many have only a dim idea of how our government makes and applies laws. Most could not pass the test administered to prospective citizens.”
According to a 2017 Annenberg survey cited by Judge Katzmann, “only a quarter of Americans can name all three branches of the federal government … 33% could not name any branches; 70% … in a 2011 poll couldn’t identify the Constitution as the Supreme law of the land, (and) more than 60% couldn’t identify the length of a Senator’s term, …. or the number of justices on the United States Supreme Court.” Another survey identified by Judge Katzmann concluded that more than one third of Americans could not name a single First Amendment right. “How can we effectively defend the Constitution,” he asked,” if we know so little about it.”
As to the youth of America, a former president of the Ohio State Bar Association, Jonathan Hollingsworth, urged his state bar to lift its commitment to civics education, calling attention to a finding by the National Assessment of Educational Progress that two thirds of all fourth, eighth, and twelfth grade students who took the test failed to score proficient in civics. With a strong civics education, he opined, our youth are more likely to understand public issues, view political engagement as a means of addressing communal challenges, and participate in civics activities. And, such education, he added, promotes civics equality, including among poor, minority students.
Judge Katzmann, Jonathan Hollingsworth, presidents of the American Bar Association and presidents of bar associations in New York are not alone in calling attention to this challenge. John Adams said that “liberty cannot be preserved without a general knowledge among the people” and James Madison said that advancement and diffusion of knowledge…is the only guardian of true liberty.”
Thankfully, volunteerism has grown to address the challenges of civics education, with bar associations, courts, law schools, community groups and others coming forward with know the law projects.
Two outstanding groups, Legal Outreach and the Justice Resource Center, provide enormous educational support for the school age population. Legal Outreach, under the leadership of James O’Neal, nutures its students, instilling them with skills and confidence to become social change agents. Debra Lesser of the Justice Resource Center, a private public partnership created in 1991, said that the school age population, interacting with the legal community in structured activities, has led to an increase in the students understanding of the rule of law. Indeed, she gave me a list of ways the bar and lawyers of this state might advance knowledge of the rule of law in the schools of New York. I am handing over this list to Sheila Boston, with the recommendation that it be shared with the state bar, and that a working group of this Association be established to implement an even broader commitment than exist to civics education in New York City.
No school should be left unserved that requests or needs assistance from lawyers and the bar in the development of law related projects. As I speak student groups at area law schools, including Fordham, are engaged in civic projects with the state’s youth. I have sensed a growing commitment among law students and recent law graduates to tackle the challenges of this moment, yearning to have an impact.
One new not-for-profit, for example, called Defying Legal Gravity, was created by recent law school graduates, to assist sixth grade students, and beyond, gain the legal knowledge and skills to participate in civic engagement projects in communities where children have a love one currently or formerly incarcerated.
The Center on Social Justice founded at Fordham Law School has a pilot project in a less resourced school in the Bronx, with a large minority population, for which law students have developed videos and other materials to assist an eight grade teacher educate her students about the right to vote and next semester they will be helping with the topic of worker rights. This Association has sponsored multiple civic activities directed at students and adults on subjects of registration and voting, to name a recent area of focus.
Fern Schair, a former administrative leader of the City Bar, described in a message to me for this talk that civics education is the lynch pin for restoration in our democracy. She stated it is not enough to teach information basics about the parts of government and how laws are made, but there is a need to teach civic engagement in order to empower young people to speak publicly about inequality and community issues.
I noted the other day in the newspaper that a law clinic at NYU Law school filed a complaint on behalf of high school students with the United States Department of Education asserting that there is segregation in the New Yok City high school examination process, an issue studied over several years by Fordham’s Center for Social Justice.
Justice Mendelson, who heads the Office for Justice Initiatives in the New York State court system, has just launched, inconjunction with the Brooklyn Public Library, a monthly series of scheduled live streamed know your rights court resources programs. She also has established a Justice Center in Brooklyn to assist people with low incomes or without employment, who are being confronted with potential litigation, with foreclosures and threats of evictions, to enable them to know their rights, defend themselves, and secure legal assistance.
The renewal of hope that is being expressed by all segments of the legal profession, certainly in this state, ask of lawyers to consider ways they can help strengthen the rule of law and provide greater access to justice for people unable to afford counsel. A society is judged by how the least fortunate are treated. Many poor and low income people, with significant minority presence among them, need assistance with respect to their legal questions and also access to the courts. This demand for justice resonates throughout the world and American lawyers and law schools have extended helping hands abroad… One group of lawyers ( at White and Case) appear to have established a working group to teach ethics abroad and another group of lawyers, with whoom I participated in a leadership w kind of way, helped create a conflict resolution center in Ghana, and some in this group have assisted peacemaking efforts in Northern Ireland.
Permit me to add that we live in a time of opportunities, with moral imperatives for lawyers to serve justice. We can make a dent in some of the areas of the surveys I have mentioned, through increase volunteering and participation in programs of our courts, bar associations, legal aid organizations, not-for-profit entities, law schools, law firms, corporate legal departments, and community groups. Here in New York, under the leadership of our chief judges more than one thousand senior lawyers have been registered as attorney emeriti, ready to serve, with a number already doing so, and a number of legal service organizations in the state are ready to receive such service. (Fordham’s Center for Social justice under Fern’s leadership recommended the program). The challenge, however, cannot be met solely through volunteering, but volunteering s contagious and can make a difference.
The Chief Judge’s recent initiative in implementing a far reaching state wide presumptive early mediation alternative for civil cases provides opportunities for lawyers to serve as mediators of civil disputes. It also has to deal with the lack of volunteers to represent pro se parties faced with the mediation option). ADR has become in America, and elsewhere in the world, an important part of the rule of law. How come? In the world of disputes, people seek less trauma, less expense, less delay, greater simplicity, fewer public embarrassments, and more options for resolving their controversies and disputes. ADR offers a just response for many facing disputes and it has grown.
The statewide court system, I might add and stress, offers many ways for lawyers and law students to serve people and communities. For those able to do so, I recommend contacting any of the following: Lisa Courtney, the statewide ADR coordinator, Tony Walters of the Office of Diversity and Inclusion, Lawrence Marks, the chief administrative judge of the Courts, Justice Mendelson, or Dan Weitz, who leads the OCA division of Professional Court Services. And let me acknowledge Sheila Sproule and Dan Kos, assistant statewide ADR directors, for the help they gave me in understanding the state’s ever increasing approaches for handling disputes and the needs that exist for volunteers.
Quite clearly, the legal profession, as a home for the rule of law, has the instinct to serve, judging by surveys of our profession. I recall Whitney North Seymour, exhorting the bar of New York and our nation to make the concept of equal justice for all – engraved in marble outside the Supreme Court’s building – not an empty aspiration in a lawyer’s code or a meaningless phrase in the Declaration of Independence. He spoke often of a dedication to unenforceable ideals, engaging in activities and efforts that serve humanity.
The volunteerism of the bar does not free our government, either at the federal or state level, of its obligation to support civics education and provide support for legal services of the poor. Justice Brandeis wrote that our “Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.” So too do the members of our profession set an example as teachers.
As Justice Breyer, “the best way to teach…. is through example. Every time we represent a client, argue in court, participate in a public or professional meeting, or take part on pro bono work, we set an example. With every action – and inaction – we send a message to our peers and, more importantly, to the next generation. That message can say that standards matter, that law matters, that civic life matters, that participation matters. The lawyer’s role as teacher is his most important role in public service, for it encompasses all the others.”
And finally, a few words about the judiciary. The selection of judges, both federal and state, is immersed in political processes that often lead the public to believe that a judge will carry into his or her work those political influences. These perceptions are magnified by media references to judges by the names of their appointing authorities. This Association also has expressed an important point of view bearing on public confidence in the rule of law with respect to judicial appointments made in election years.
As I noted in my Arps lecture at this Association in 1996, for more than 200 years, a free and independent judiciary has been one of the hallmarks of the American system of government. It has been fundamental to the implementation of the rule of law, ensuring that judges will not be the servant of the political process or subject to the whims or prejudices of the moment. It has been as much a bulwark against tyranny as any other single component of our government. Indeed, all of the great ideals of our nation have come alive in our courts— liberty under law, a government of laws and not men or women and equal justice for all. Each generation must hold the line under the rule of law. That is our challenge at this time.
We expect judges to be scrupulously honest and impartial, to base their decisions on the merits, upon the evidence before them and applicable law. A judge is not there to implement a political agenda of a president, legislator, governor or mayor, for that would be corruption of the judiciary and the substitution of political will for the rule of law. We insist- that judges be morally courageous—to do what is right and just – even in the face of public outcry. To most citizens, the judge is nothing less than a symbol of justice, who not only administers the law but embodies the law.
When judges’ decisions are questioned by leaders in other branches of government, we risk having the public lose confidence in the judiciary, thereby diminishing the rule of law. When candidates for public office promise, if elected, to work to choose their own judges, it brings to mind the boast of Henry VII that he rules his laws with his judges. We can learn much from the example of Nelson Mandella, who had to deal with a decision of the Constitutional Court of South Africa that struck down a law that delegated broad powers to his administration. Without hesitation he reminded the people that the court had spoken and its decision must be implemented.
On public matters much could be accomplished, I suggest, if the level of conversation were more subdued. We might be far more likely to achieve our common goals if we lowered the tone of our criticism, avoided the temptation to personalize issues that ignite our passions, and respect always the dignity of those who express contrary views.
Years ago, at another troubling moment in history, Judge Learned Hand delivered a famous speech in New York City’s Central Park, called the Spirit of Liberty, in which he said:
“Liberty lies in the hearts of men and women. When it dies there, no constitution, no law, no court can even do much to help it. And what is this liberty which must lie in the hearts of men and women. It is not the ruthless, it is not unbridled will, it is not freedom to do what one likes. That is the denial of liberty, and leads straight to its overthrow. A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few.”
We could all profit from these words. And as we reflect upon them, might we not develop a plan inviting all the schools in the state to join us in preparing a five year plan of celebration of the values and ideals expressed in the Declaration of Independence that will have its 250th anniversary on July 4, 2026.