The Future is Unwritten
By 
I was talking to some of my students about their future legal careers, and mentioned to them that, at the moment, being a law professor at an American law school feels a little like being a professor of Marxist-Leninist political theory in Russia in 1991, or maybe like being a professor of theology in a society in which atheism has become the dominant belief of sort of people who go to college.
I’ve been doing the law professor thing for 35 years, and while I’ve never had much in the way of orthodox belief in regard to the American legal system, I also didn’t consider phrases such as “the rule of law” to be nothing but propaganda for the interests and rationalizations of the powerful.
But that was then and this is now, and there are days — many days indeed in the last ten weeks in particular — in which I can almost see and feel my subject matter disappearing before my eyes, and my professional identity degrading bit by bit.
Although the analogy is highly imperfect for lots of reasons, this Gary Snyder poem has been much on my mind:
Hay For the Horses
He had driven half the night
From far down San Joaquin
Through Mariposa, up the
Dangerous mountain roads,
And pulled in at eight a.m.
With his big truckload of hay
behind the barn.
With winch and ropes and hooks
We stacked the bales up clean
To splintery redwood rafters
High in the dark, flecks of alfalfa
Whirling through shingle-cracks of light,
Itch of haydust in the
sweaty shirt and shoes.
At lunchtime under Black oak
Out in the hot corral,
–The old mare nosing lunchpails,
Grasshoppers crackling in the weeds–
“I’m sixty-eight” he said,
“I first bucked hay when I was seventeen.
I thought, that day I started,
I sure would hate to do this all my life.
And dammit, that’s just what
I’ve gone and done.”
On the other hand . . . the future is unwritten. The current legal and political situation in the United States is largely if not wholly unprecedented, which among other things means that no one, very much including Donald Trump and his enablers and supporters, really knows how any of this is going to play out.
Will the Trump regime collapse in the face of its own mounting failures, incompetence, and incoherence? Are we entering an authoritarian/totalitarian period in American life, in which the old liberal democracy will completely die away, as in Germany between 1933 and 1945? Will some sort of managed democracy arise that is somewhere between these extremes? Again, nobody knows, because there isn’t any way to know in the face of the radical uncertainty that is by definition a feature of any unprecedented situation (Unprecedented in terms of the American experience anyway. There are plenty of international precedents to consider, with all the uncertainties that come with cross-cultural comparison).
What is certain is that what we do now may turn out to matter in all sorts of unpredictable and potentially profound ways. That’s why I dislike comments along the lines of some posted in response to Scott’s post below about the GULC students refusing to interview with Skadden, to the effect that this kind of thing doesn’t matter. We don’t know what kind of thing matters and how much it might matter because we’re in the undiscovered country, sailing upriver toward the Chief of the Inner Station. Exactly what we will find there and what we will do remains for the moment unwritten (I do take some obscure comfort in the fact that Heidi Feldman was one of the people I knew best as a fellow first year law student, 38.5 years and three geologic eons ago in Ann Arbor).
“‘Forgive me. I—I have mourned so long in silence—in silence…. You were with him—to the last? I think of his loneliness. Nobody near to understand him as I would have understood. Perhaps no one to hear….’
“‘To the very end,’ I said, shakily. ‘I heard his very last words….’ I stopped in a fright.
“‘Repeat them,’ she murmured in a heart-broken tone. ‘I want—I want—something—something—to—to live with.’
“I was on the point of crying at her, ‘Don’t you hear them?’ The dusk was repeating them in a persistent whisper all around us, in a whisper that seemed to swell menacingly like the first whisper of a rising wind. ‘The horror! The horror!’
“‘His last word—to live with,’ she insisted. ‘Don’t you understand I loved him—I loved him—I loved him!’
“I pulled myself together and spoke slowly.
“‘The last word he pronounced was—your name.’
“I heard a light sigh and then my heart stood still, stopped dead short by an exulting and terrible cry, by the cry of inconceivable triumph and of unspeakable pain. ‘I knew it—I was sure!’… She knew. She was sure. I heard her weeping; she had hidden her face in her hands. It seemed to me that the house would collapse before I could escape, that the heavens would fall upon my head. But nothing happened. The heavens do not fall for such a trifle. Would they have fallen, I wonder, if I had rendered Kurtz that justice which was his due? Hadn’t he said he wanted only justice? But I couldn’t. I could not tell her. It would have been too dark—too dark altogether….”
Marlow ceased, and sat apart, indistinct and silent, in the pose of a meditating Buddha. Nobody moved for a time. “We have lost the first of the ebb,” said the Director suddenly. I raised my head. The offing was barred by a black bank of clouds, and the tranquil waterway leading to the uttermost ends of the earth flowed sombre under an overcast sky—seemed to lead into the heart of an immense darkness.