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UCLA Law Professor Eugene Volokh uses the n-word in his classes, apparently over objections of students who are required to be there and over whom he holds substantial power. His dean apologized, correctly in my view. https://law.ucla.edu/news-and-events/in-the-news/2020/04/note-to-the-ucla-law-community-from-dean-mnookin/
Two months ago, Volokh wrote a blog post explaining why he views it as his duty to say the n-word to his students. It is characteristically clear and vigorous. https://reason.com/2020/04/14/ucla-law-dean-apologizes-for-my-having-accurately-quoted-the-word-nigger-in-discussing-a-case/
In his post, Volokh offers 5 reasons why he uses the n-word in class. You can decide for yourself whether you find them persuasive.
But his fourth reason focuses on practice. As an experienced practitioner (unlike him), I wanted to explain why I believe it's wrong.
But his fourth reason focuses on practice. As an experienced practitioner (unlike him), I wanted to explain why I believe it's wrong.
(I came across this issue because @courtneymilan tweeted about it yesterday in the thread below. I admired her bravery for speaking up to criticize a powerful and widely admired figure, and her example challenged me to speak up too.) https://twitter.com/courtneymilan/status/1270862895174184960
"Lawyers have to deal with facts as they are, regardless of how unpleasant those facts may be," Volokh writes. They regularly "hear extremely offensive material" and "don't let the causal cruelty, callousness, and hatred ... get them down."
Volokh concludes, "as law students and law professors, we should follow this example."
I fail to see how any of that justifies Volokh's use of the n-word to students in his classes (let alone make it a *duty, as he asserts).
I fail to see how any of that justifies Volokh's use of the n-word to students in his classes (let alone make it a *duty, as he asserts).
Lawyering does indeed involve some extremely unpleasant things.
For example, I remember vividly, a decade and a half later, the autopsy photos of the injured insides of a child's genitals (displayed to the jury) that I had to examine for a case.
For example, I remember vividly, a decade and a half later, the autopsy photos of the injured insides of a child's genitals (displayed to the jury) that I had to examine for a case.
But the fact that I experienced that as a lawyer (and w/o being "debilitated," in Volokh's words) is not a justification for a professor subjecting his class to gruesome autopsy photos. Only a sociopath would claim otherwise.
I was once chased down a country road by a witness in a pickup truck threatening to kill me. And yet exposing law students to the fear of death is not a law professor's duty.
I had a biglaw partner get spittle-flying mad at me in a courtroom during a recess. And yet exposing law students to abusive bullying rage is not a law professor's duty, either.
So Volokh is right that there are unpleasant things lawyers endure in practice. Many are far more unpleasant than mine, of course. But that doesn't mean law professors get to subject their students to them.
One last point. Volokh's practice rationale ignores the reality of practice. We may deal with offensive things while working on cases, but, esp. in power-disparity contexts like with judges or subordinates, and esp. in formal settings like court, we take care not to be offensive.
I believe that a vast majority of advocates do not say the n-word in court, or in a CLE presentation, or in a talk to associates in their firm. They don't want to offend, or they don't want to be seen as a shitty person, or both.
Ignoring whether the students over whom he holds power are offended by what he's saying in the somewhat formal context of a law school classroom isn't imparting some brave real-world lesson: it's modeling unprofessional, incompetent lawyering.
That's why I think Volokh's lawyers-face-bad-things justification for using the n-word in class is a sad pile of horseshit. Thanks for reading.
Quick follow up: Professor Volokh has added 2 more blog posts defending use of the n-word by professors. The 1st links to a new CNN segment featuring Prof Kennedy. Volokh quotes Kennedy's statement re: why the race of the n-word user is irrelevant. https://reason.com/2020/06/14/prof-randall-kennedy-harvard-law-on-cnn-about-accurately-quoting-racial-epithets/
The 2nd criticizes an undergrad student resolution condemning an art history prof's use of the n-work whilst discussing NWA. "What have things come to?" he wonders. https://reason.com/2020/06/15/art-history-professor-condemned-by-stanford-undergraduate-senate/
I doubt he's even aware of my tweets, or if he were that he'd think me worth responding to. But it bears noting that neither of his subsequent posts defends the practice rationale I criticized.
