Appreciating Our Professors: Reading the Law with Philip Frickey

Posted on Categories Legal Education

The law school professor who most influenced me is Philip Frickey.

I didn’t take a course with Professor Frickey until I was a third-year student, but his thinking began to influence me, indirectly, during my first year, in the half-semester Legislation course that the University of Minnesota required me to take in the spring. My section of Legislation was taught by Jim Chen, then (the 1995-96 school year) a relatively new law professor, and now Dean of the University of Louisville Brandeis School of Law. Professor Chen led my small section of students through discussion of what it means to interpret a statute, guided by Professors Eskridge and Frickey’s conception of the “funnel of abstraction” (the same funnel that now guides my own students in our discussions of how to interpret a statute).

To be honest, the Legislation course seemed tedious to me at the time, because the basic concepts–ambiguity as a threshold issue, the difficulty of discerning an “intent” to a group of individuals, the importance of context, the merits and problems with each of the available sources that can assist a court in agreeing upon a reasonable interpretation, Chevron deference, etc.—were interesting, but relatively straightforward, and so the class felt repetitive to me. I felt I’d grasped the basic point of the course after a few hours of class. But in retrospect, being forced to separately and carefully consider the difficulty of assigning meaning to legislative enactments informed my understanding of the law in an important and lasting way. I am glad I had the course, and sometimes I think we should have a similar requirement at the Law School.

Still, it was in the third-year course, American Indian Law, where Professor Frickey made the strongest impression on me. That was my favorite law school course. To begin with, the course was in effect a sort of review of the entirety of law school, combining threads of constitutional, statutory, and foreign law, in a complicated mix, and all in the context of a sort of “othered” people. I was struck about how many similarities there were between the way the law operated in the context of American Indians and in the context of immigrants. Words took on strange meanings, fundamental constitutional protections failed in the face of sovereign power. The way Professor Frickey taught it, American Indian Law became a prism through which to consider what we mean when we talk about “the law” and “legal reasoning.”

One of the chief reasons that Professor Frickey’s teaching in the course left such an impression is because the brute power at the bottom of the law is exposed in such contexts, when law is applied to people deemed “the other.” For instance, I will never forget the moment I read that powerful line in Johnson v M’Intosh: “Conquest gives a title the Courts of the conqueror cannot deny.” It struck me like a physical blow. I had to stop and reread it. When I finished reading and rereading that opinion (and several others in the course), I was left uneasy, with the feeling that maybe the law was all a farce, window dressing. Or the opposite, that it was extremely powerful, really a weapon of war, the strong arm of the conqueror.

In class, Professor Frickey brought my thoughts back down to earth, back into the arguments in the cases, picking them apart, line by line, thought by thought. He took all of the arguments, even the most outrageous, seriously, and in this way he insisted that legal reasoning was real and did matter, and insisted that we students treat it the same way, articulating specific criticisms or supports for the cases’ reasoning, rather than expressing mere outrage or approval.

I try to do the same in my classroom, and I would be pleased if, at least some of the time, I accomplish it half as well as Professor Frickey did in that course.

3 thoughts on “Appreciating Our Professors: Reading the Law with Philip Frickey”

  1. I like the notion that the brute force of the law is especially evident when the law is applied to people who have been “othered.” I would add that this application process is also potentially definitional. That it, when the state uses law to “brutalize” Native Americans, immigrants, and members of the lower classes, the state often simultaneously underscores the ways these groups are not true Americans. So, for example, when Justice Brewer penned the opinion of the court in In re Debs (1895), he not only stopped once and for all the American Railway Union’s boycott of Pullman cars but also reminded us that the boycotting workers were outside the mainstream. They were defeated; their union was destroyed. And how appropiate this was for a group clearly recognizable as the “other.”

  2. Similar thoughts were expressed about the way language and images have been used to dehumanize the men imprisoned at Guantanamo, at the conference I attended on Friday, “How Legal Rhetoric Shapes the Law II: The Language of Violence and Torture.” Richard Wilson and Muneer Ahmad, two professors who have represented prisoners in Guantanamo spoke powerfully about that process. I plan to blog about it later in the week, but for instance, Richard Wilson discussed a list of dehumanizing euphemisms: detainee instead of prisoner; enemy combatant instead of, well, no one is exactly sure how to define it; no longer-enemy-combatant or “NEC” for men like the Uighurs who have been determined to pose no threat but are still held; and the worst, to me, “comfort items,” instead of mattresses, blankets, the Koran.

    Another attendee at the conference asked, who is dehumanized in these circumstances? Is it really the prisoner? Or the captors?

  3. Yes, if we use law or other means to dehumanize others, we surely dehumanize ourselves in the process. I think of those photos of southerners standing with their chests puffed out next to victims of lynchings. How degraded and foolish these men (and women) seem. If we take secular humanism seriously as a philosophy and a politics, it must include an affirmative obligation to expand and enhance the humanity of others. Dehumanizing others, by contrast, is a violation of the “natural law” of humanism.

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