As part of the Knight Institute’s project on the role of the legal profession in an age of authoritarianism, we recorded a six-episode podcast, Lawyering Without Law, which I co-hosted with Madhav Khosla, the Knight Institute’s Senior Fellow. We interviewed top scholars and former government lawyers on the unique and important role that lawyers play in defending democracy, or in facilitating the slide into authoritarianism. The complete podcast series is available here or wherever you get your podcasts.

With the start of a new academic year upon us, as approximately 150,000 students are in their first weeks of law school, I’m writing a series of reflections on the conversations we had with podcast guests, thinking about the future of legal education and of professional responsibility.

For our first episode, Madhav and I talked with Kim Lane Scheppele, a leading expert on illiberal autocracy and democracies under stress. She described how the election of populist leaders, like Viktor Orbán in Hungary, is often followed by efforts to use the law to undermine constitutional institutions, and why this can draw lawyers into an authoritarian project even if they don’t intend to support it:

When you put into the process laws that actually have the effect of undermining democratic institutions, you get a lot more buy-in than if you simply did it by edict or by force, and so it legitimates the entire enterprise of undermining democratic institutions. That’s why law becomes so crucial. Now, who are the lawyers who do this stuff? Some of the lawyers who do this are lawyers who believe in the leader and believe in the program. But often times you get lawyers doing this because law is like a giant math problem if you like math.

It’s just fun to play with the rules and think, well gee, you know, how would you do this? How would you do that? Is there a way you can make an argument for this, that, and the other thing, and frankly, legal education in many places, and here I include the U.S., lends itself toward exactly this kind of lawyering. Because how often do we take first year law students and say, argue the opposite of what you believe…. So lawyers have learned to be hired guns. They’ve learned to think that clever legal arguments are good lawyering, and they have much less training and much less grounding in the values that underwrite democratic institutions, so that the lawyers themselves may not realize how much they're undermining democratic institutions with the very things they're recommending. (11:17-12:16, 13:07-13:32)

I’ve continued to think about Kim’s observation that many lawyers treat legal argument like they’re solving a math problem. There is nothing new, or inherently malicious, about lawyers making clever arguments in favor of their clients. Much of legal education is devoted to learning how to do this. Indeed, lawyers have an ethical duty to “zealously represent” their clients. However, lawyers are generally not trained to consider the potential consequences for democracy of their legal arguments—to ask themselves whether the legal rule they are advocating for may undermine the foundations of our democratic system. This is where at least some of our problems arise. And this makes me recall something else we discussed during our conversation with Kim: Many lawyers in the United States simply can’t believe our democracy could fail, that it is breakable.

This ties into the myth of American exceptionalism, of course. Most U.S. lawyers are educated in a system that inculcates the idea that we have a uniquely strong democracy, that our constitution is the best of all possible constitutions, and by extension, that though our system of government may be sorely tested, it will never truly come apart at the seams. If one believes that our democratic system will endure forever, come what may, then we’re all just playing a game to be the cleverest lawyer in the room.

Instilling in lawyers a sense of the ultimate fragility of democracy, and of their individual duty to protect it, is a project that will require the participation of many institutions, but law schools must play a fundamental role in it. Law students hear plenty about the constitution and at least a little about their duty to defend it. More rarely are they asked to seriously consider what duties they, personally, bear to uphold our democratic system, and most law students are given very little instruction about the conditions under which democracies erode or fail. I wonder if constitutional law classes would land differently if students learned that the United States only met the basic requirements for a democracy after the Voting Rights Act was passed in 1965. Or if every 1L took a capsule course on how Hungarian democracy was dismantled through legal maneuvering under Orbán. I hope you’ll listen to the full episode for more of Kim’s insights on the role of legal education in shaping lawyers who will stand up for democracy, and lessons from democratic backsliding in Europe.