Sunday, May 03, 2015

Decency and Law Profs

Lately I have been thinking about two very different incidents. One is the well-known Fisher/Welch/McCarthy incident that let to the following rebuke by Welch when Fisher was accused of being a Communist because he had been a member of the National Lawyers Guild.

"Until this moment, Senator, I think I have never really gauged your cruelty or your recklessness. Little did I dream you could be so reckless and so cruel as to do an injury to that lad. It is true he is still with Hale and Dorr. It is true that he will continue to be with Hale and Dorr. It is, I regret to say, equally true that I fear he shall always bear a scar needlessly inflicted by you. If it were in my power to forgive you for your reckless cruelty I would do so. I like to think I am a gentle man, but your forgiveness will have to come from someone other than me. . . . We know he belonged to the Lawyers Guild. Let us not assassinate this lad further, Senator. You've done enough. Have you no sense of decency, sir? At long last, have you left no sense of decency?"

The second is the recent controversy at UNC concerning the Poverty Law Center and the attack on the Center by the right wing politicians that was viewed as actually aimed at its Director. Faculty jumped to the defense of the Director. Just like Welch and McCarthy?  Well. .. not quite. In fact, not by a light year.  . . .It took no courage to defend a liberal cause in the midst of liberal faculty although I sure it resulted in a great sense of righteousness.   (It was interesting, though, how some people, perhaps uncomfortable defending the director, framed the issue in terms of the ridiculous idea that if the Center had out-lived its usefulness, the faculty would terminate it. I'll believe a law faculty will stop a program that anyone wants to continue when I see it.)

Now lets shuffle things.  For the McCarthyites substitute folks today who are as willing as the witch hunters of that era to label people as something they may not be  and with as little knowledge -- maybe less -- as the tail-gunner and his henchmen  had at the time.  Shift the context to a law faculty -- one like UNC where there was such outrage and where, I am sure, everyone claims to be for fairness and justice. For Fred Fisher, substitute the names of individual law faculty. And for "Communist," substitute "homophobe"

1. Would there be Welch courage? Would one person on a law faculty step forward to say "before those named "bear the scar" we need to make sure the charges are true."
2. Would there be UNC courage? Where many people would step forward because it is safe to do so and law profs, with the exception of a few, only move in mobs.
3. Would there be no courage at all?

When it comes to law profs, I am betting on 3. I think I have seen 3. I have also seen occasional acts of courage and the price those few souls pay.

Of course the victims of witch hunts cannot be the ones to speak up. They are already suspect. Instead it takes some courage and leadership.  In the law teaching field you can count the number of those people on less than one finger.

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