2022 AALS Presidential Address

The Meeting of the AALS House of Representatives

By AALS President Erwin Chemerinsky, Dean, University of California, Berkeley School of Law

It is truly a great honor and enormous pleasure to become the President of the Association of American Law Schools. I was looking at the list of the amazing individuals who have preceded me and I feel like the answer to the Sesame Street game, “which of these doesn’t belong?”.

I want to take a moment and thank my predecessor, Vince Rougeau, for his wonderful leadership and extraordinary service. I have had the great pleasure of serving with Vince on the Executive Committee for several years, including last year while he was president. He is invariably wise and calm, even if at times the discussion becomes heated. He was a terrific leader for the organization in a very difficult year. And it was extraordinary that he continued to serve as president even after in the middle of the year he took on the huge responsibilities of being President of College of the Holy Cross. I will do my best this year as president of the AALS to live up to the outstanding example that he set for all who will follow him in this role.

I also want to take a moment and thank the superb Executive Director, Judy Areen, and its outstanding staff. I very much look forward to working together in the year ahead.

The tradition of the AALS is that each year the president chooses a theme to help shape the next year’s conference as well as the work of the sections and, more generally, of AALS. I have chosen as my theme “How law schools can make a difference.”

I have been teaching for over 40 years, and I never have seen my students so discouraged. They see a country that has lost faith in the institutions of government. The last two presidents – Trump and Biden – each have had approval ratings not much above 40 percent. The Supreme Court’s approval ratings are the lowest in American history, with a September Gallup poll showing only 40 percent approve of the Court’s performance and 53 percent disapprove. Congress’s approval rating is the lowest of all at about 18 – and I worry that is 18 people, not 18 percent.

My students see a political system that is broken. Repeated opinion polls show that 70 percent of Republican voters believe that the election was stolen from Donald Trump, and that includes some of our students. They see how 19 states have adopted laws designed to make it more difficult for voters of color to cast ballots. They are watching how partisan gerrymandering is occurring with a vengeance across the country, making it even less likely to have fair elections.

Many see a Supreme Court that is profoundly conservative and will remain that way throughout their careers. After all, Justice Ruth Bader Ginsburg, who was a hero to many of them, was replaced by Justice Amy Coney Barrett, who cannot be more different ideologically. Barrett was 48 years old when she was sworn in on Monday, October 26, 2020. If Barrett remains on the Court until she is 87 – the age at which Justice Ginsburg died – Barrett will be a justice until the year 2059. Of course, this shift in the Court is celebrated by our conservative students, but the ideological divide among students in their views of the Court never has been greater.

Indeed, the only thing about which there seems to be a consensus is that American society, and the world, are facing unprecedented dangers. Climate change threatens the planet and all life on it. There has been a rise of authoritarian governments in many countries in the world. The racial reckoning reminds us of the on-going deeply embedded racial inequalities in the United States. Tremendous inequities exist in terms of access to justice. The events of late 2020 and early 2021, including almost exactly a year ago on January 6, reveal the fragility of American democracy.

It is in this context that I have chosen as a theme for the AALS a focus on what law schools can do to make a difference in these and other areas. My hope is that all of us – liberal or conservative – can agree that change is essential and that law schools must make a positive difference.

My request and my challenge – to those planning programs at AALS for next year, to the work of AALS sections, to my fellow deans, and to my fellow law teachers – is to focus on what we as academics, as leaders on matters of law, and as law schools can do to bring about positive change.

It would be impossible and presumptuous for me to answer the question that I have posed. But I certainly can outline some of the things we might do. This needs to include what we teach, including perhaps changing the content of existing courses and creating new ones. Many law schools now have added classes, even required ones, on race and the law, and on topics such as climate change. It perhaps should include gently urging more of our colleagues to focus their scholarship on the hardest issues and what can be done. It certainly can include the conferences and symposia we hold as we gather thought leaders on matters of law.

It certainly must include enhanced support for public service and pro bono work by students and faculty. Such work can make a huge difference in people’s lives and in facilitating social change. As deans and law teachers we must do pro bono work, including to be a model for our students. As institutions we must find more ways to encourage and support this.

My hope, too, is that law schools will expand their focus to include building better pipelines to the legal profession as we prepare the next generations of leaders. A few years ago, the AALS did a ground-breaking study, Before the JD, which was based on a survey of over 22,000 college students. It found that 55 percent of law students considered going to law school before college and that of undergraduates considering law school, half have at least one parent with an advanced degree. This means that if we are to diversify law schools in every way, we must reach out to students in junior high school and high school. I am the first in my family to go to college and care deeply about AALS and law schools finding ways to support and build better pipeline programs.

As I reflect on the theme I have chosen and the challenge I have presented today, I realize that central to all of this is the basic question of how do we bring about positive change. Again, for this issue, it would be impossible and presumptuous of me to provide answers, but I can share some thoughts.

First, we must recognize that change is more likely to occur in an incremental way than a single dramatic event. A magical moment when the law and society are dramatically altered makes for great movies and television. But it does not work that way in practice.

Consider as an example one of the most important advances of liberty and equality in recent years: the recognition of a constitutional right to marriage equality for gays and lesbians. It is tempting to think that it happened all at once when the Supreme Court decided Obergefell v. Hodges on June 26, 2015. But that would be mistaken.

In 1986, the Court handed down an abhorrent decision, Bowers v. Hardwick, which held that states could prohibit private consensual adult same-sex sexual activity. There had to be a concerted effort to overturn that decision, which happened 17 years later in Lawrence v. Texas, in 2003. In the meantime, social attitudes began to change, no doubt aided by TV shows like “Will & Grace” and movies like “The Kids Are Alright.”

In that same year, 2003, lawyers won the first major case declaring unconstitutional a state prohibition of same sex marriage. The Massachusetts Supreme Judicial Court found that the Massachusetts law requiring that marriage be between a man and a woman violated the Massachusetts state constitution. By litigating in state court under state law, there was no chance the matter could go to the Supreme Court, which certainly was not ready to recognize a right to same sex marriage.

Litigation then proceeded state-by-state in state courts. There were successes like in Iowa and California, but also failures like in New York. Meanwhile some states adopted legislation to allow same-sex marriage and in some states voters passed initiatives to do so.

The result was that by 2015, when the issue came to the Supreme Court, same sex marriage was allowed in much of the country. I choose same-sex marriage as my example because it is the most rapid example of major change in my lifetime. We went as a society from where no states allowed marriage equality for gays and lesbians in 2003 to one where it was a constitutional right in every state just 12 years later. But even here, it happened incrementally, step-by-step, with triumphs and setbacks.

Second, multiple actors and institutions are required for effective legal and social change. Never does effective social change come from one institution acting by itself. For an example here I want to focus on the end of Jim Crow and the laws that mandates segregation of the races.

When I was born in 1953, every Southern state, many border states, and Southern parts of Northern states had laws that segregated every aspect of life. Black and white babies had to be born in separate hospitals, play in separate playgrounds, drink from separate water fountains and use separate bathrooms, attend separate schools, and eat in separate restaurants. Such laws had existed for decades and had been upheld by the Supreme Court’s pernicious “separate but equal doctrine.”

How did this change? It took organizing and grassroots efforts, such as lunch counter sit-ins. It took litigation, including Brown v. Board of Education, decided by the Supreme Court on May 17, 1954. It took Congress adopting the Civil Rights Act of 1964, which prohibits hotels and restaurants from discriminating, and outlawed employment discrimination based on race, sex, and religion.

None of this is to deny the tremendous racial inequalities that remain in American society. But it does show how progress requires organizing and litigating and legislating.

Third, to bring about change we must build coalitions, including with those with whom we disagree. No group is powerful enough to bring about change by itself. The coalition that brought about many progressive federal laws – Social Security, Medicare, Head Start — was a strange combination of Northern liberals, Southern Democrats, and liberal Republicans.

I worry that the greater ideological purity of the parties will make coalition building more difficult. Until the recent election of two Democratic Senators from Georgia, Southern Democrats were a thing of the past. Liberal or even moderate Republicans are non-existent. The greater polarization in society makes coalition building ever harder. But I have no doubt that if there will be a successful effort to lessen the urgent problem of climate change, it will take a coalition.

Fourth, major changes are difficult, take time, and there will be setbacks. Civil rights lawyer Connie Rice titled her autobiography, Power Yields Nothing. I think of the effort to end slavery, to secure the right to vote for women, to end child labor. All took decades, but ultimately happened.

I think of the fight to ratify the Equal Rights Amendment. It was passed overwhelmingly by the House and the Senate in 1972. Passage by three-fourths of the states seemed certain. But by 1979, it was 3 states short of the 38 needed for ratification. Congress extended the time for ratification by three years. But even after that it did not have 38 states. Now finally, Virginia in 2020 became the thirty-eighth state to ratify. There still is a battle to get Congress to recognize this and the Archivist to deem it part of the Constitution. But as I speak to you today, I am convinced it will happen and there will be a point at which the ERA is deemed ratified.

The reality is that every action often has a reaction. The Supreme Court’s decision in Brown v. Board of Education unleased massive resistance to desegregation.

Fifth, change happens only when there are courageous people to fight for it and we must inspire our students to be those who will bring about change. Think of all of the major social, legal movements that I have described, such as abolition of slavery, women’s suffrage, the end of Jim Crow. For each, we can identify – and we must study – those who dedicated their lives to working for justice. In the area of civil rights, it was men like Thurgood Marshall and women like Constance Baker Mottley who fought tirelessly for racial justice. The progress would not have happened without them. And they are the role models for all of us and for our students.

I began by talking about our students being discouraged. We must give them hope, but it cannot be false hope. I think that the hope comes from the reality that American history and world history show tremendous advances of equality and freedom. Racial inequalities remain severe, but it is not what it was in 1787 or 1868 or 1953. Gender inequalities persist, but there have been advances. Today, the entering class of my law school is two-thirds women. And it is just six and a half years ago, that there came to be a right to marriage equality for gays and lesbians. Dr. Martin Luther King, Jr., got it exactly right when he said that the arc of the moral universe is long and it bends towards justice. And it is our duty as law schools to focus on how we can help make change happen. That is my request, my challenge, and my theme for my year as President of the AALS.