The Diversity Principle, The Marketplace of Ideas, and the "Brandeis Brief" with Professor David Oppenheimer

Welcome to Studying Law Around the World. I'm Claudio Claus. In each episode, I talk with lawyers, law students, and professors from different parts of the world to talk about legal education, careers, and what the profession looks like in real life. I talk about the hard parts, the surprises, and the decisions that shaped their paths. Whether you're planning to study abroad, thinking about working in another legal system, or just curious about how law works around the world, this podcast is for you. Today I have the opportunity to interview Professor David Oppenheimer. He's a clinical professor of law at UC Berkeley Law and has an incredible career. He serves as the faculty co-director of the Pro Bono Program and the director of Berkeley's Center on Comparative Equality and Anti-Discrimination Law. Thank you so much for making the time to be in the podcast today, Professor. Claudio, thank you so much for having me. Absolutely. And to start our podcast today, I'd love for you to introduce yourself to our listeners and share a little bit about what led you to write your newest book, just launched, The Diversity Principle, The Story of a Transformative Idea. Well, thank you. Thank you very much. I've been a law professor for over 40 years, and I've written in that time, I've written 10 books, and this is the one I care most deeply about. And so I'm looking forward to discussing it with you. But I want to deviate from your question just for a moment, because I'm so excited about being on your podcast, because for the last 20 years, I have been teaching mixed groups of international and U.S. law students, sometimes in the U.S., sometimes in various parts of the world, and sometimes through a multi-university international course that I've organized and that I teach. And it's so valuable for students to get the experience of studying in a country and sometimes in a language that is not their own. And it contributes so much to the host university, and it contributes so much to the experience for the international student, whether it's a U.S. student going abroad or a student from abroad coming to the U.S. And part of the reason why, and I'm going to segue back to the book, because part of the reason why is the value of diversity. And the diversity principle is that when we bring people together with different backgrounds and experiences, including people from different countries, including people of different ages and religions, people of different races and genders and disabilities, and we put them together, whether it's in a classroom or in a science lab or in commerce or in government, the experience that they bring from their diversity means that they will make better decisions. In a classroom, they'll learn more, they'll generate more ideas. In a science lab, they will come up with more significant discoveries. In commerce, they make more money. And in government, they come up with more innovative public policies. So the work that you're doing in encouraging U.S. students to go abroad and students from abroad to come to the U.S. and to study together is, I think, a really important application of the diversity principle. I think it really means a lot as the host of the program, but really thinking about, you know, all the students who will be listening to this, I feel like over this, especially over this year, I've talked with quite a few students who are doing LLM programs in the U.S. You know, there were international LLM students and JD students. They sometimes felt like being left aside in a way, in the sense that, you know, their program was short. There was not as much as a focus on what they were doing. And maybe because these students don't really, you know, become part of what the universities have to report as far as ABA goes and employment and bar passage rates and all of that. Sometimes those students can feel like they're not as part of the university as all there are. And I really, really appreciate you mentioning that, Professor. Well, sure. And I understand it can be very hard to be a foreign student and it can be very hard for a foreign student in a one-year LLM program where the students, the other students in the class are three-year JD students. I've seen, I teach a couple of classes in which I get a lot of LLM students. And one of them is a class on comparative equality law. And in that class, the LLM students, in many ways, they carry the class because they help the American students understand that there are different ways of looking at the legal issues involving inequality. And the perspectives they bring are just so eye-opening. So they become the stars. In the other class, it's the law of evidence. And for the most part, I think it's harder for the LLM students because we're teaching evidence in the context of common law evidence and the federal rules of evidence. But I also think there's something very interesting that happens. The students from civil law countries, the French students in particular, are so good at reading a code. And they read the federal rules of evidence and they come into class and they say, wait, there's an ambiguity here. And the American students don't necessarily have, they didn't necessarily see that ambiguity or they say, here's what it must mean, or here's what it could mean. And again, the American students learn something about how do you read a code from studying with students who grew up with the understanding that the law is learning how to read the code. So there's so much that students can bring each other through those experiences. We used to do something that I want to recommend. And that is, I taught a program in Paris for five years and we'd bring in American students and we'd have an equal number of American and French students studying together. And the first weekend, I'd bring the students together for a cocktail party and I would give each of the French students, it wasn't much, maybe it was 20 euros. And I'd say, choose one of the American students and then get into a group of four or six. And the French students, you're going to treat the American students to dinner. I've given you enough funds to do so. Go take them someplace they would never find otherwise. And you know, it was a great way for them to bond. Amazing. Well, I really appreciate having this opportunity to chat with you and I really appreciate you taking the time to share a little bit about your initiative and as well as experience with international students. That's amazing. I definitely want you to come back and forth a little more as we go through the conversation today and hearing about your experiences in the classroom. I understand that your book traces this idea of diversity, more than 200 years of history. When you step back now that the book is published, that you've probably had to, you know, review and revise it quite a few times to get to this point. What surprised you the most about the diversity principle and how that actually developed over time? So I would point to two things. First, I had no idea when I started this work, how deep the diversity principle worked its way into higher education. And I thought it was something that like started in the 1970s. And I was off by 160 years. The idea that diversity is important to higher education goes all the way back to the founding of the University of Berlin in 1810 by Wilhelm von Humboldt. And the University of Berlin was the first modern research university. Today, every great research university is known as a Humboldtian university because it is based on the idea that we want to encourage a clash of ideas. We want to encourage students and professors to challenge each other. And part of that for Humboldt meant that he wanted to include Catholics and Jews in what otherwise would have been an entirely Protestant university. And so the idea that religious diversity was important really began in 1810 with the University of Berlin. It made its way into the work of John Stuart Mill and Harriet Taylor Mill. And I know many of your students have read On Liberty. If you go back and you pick up your copy of On Liberty, you'll see it begins with a quote from Humboldt about the importance of diversity. And all the way through the work of the Mills in pushing for greater liberty and in defining liberty and in pushing for equal rights for women and equal rights for black people and an end to the oppression of black people in the British Caribbean and Irish home rule and the right to vote for men and women regardless of whether they were property owners. All of these issues, underneath them, lay this belief that if you bring more diverse voices and if you bring outsider voices into discussions, into debates, you will have a richer learning environment and you will have a more successful democracy, a more successful society and a more successful university. I loved how you connected all these different thinkers to the modern legal thinking as well. So when you first noticed this, and I'm sure that this has been part of your experience as a professor as well, but how did these ideas from philosophy and education ended up shaping legal doctrine? Well, I think the answer to that is the remarkable turnaround by Justice Oliver Wendell Holmes early in the 20th century in his understanding of the meaning of the First Amendment to the U.S. Constitution and his embrace of what we now call the marketplace of ideas. And he had started out with a very conservative view about the meaning of free speech. And then a couple of young Jewish radical professors at Harvard, one of whom was Felix Frankfurt, who went on to be a great justice on the Supreme Court himself. This is when he was young and very left, and they came to Holmes who admired them for their courage and for their views and who loved to debate. And they came to Holmes and they said, you need to re-read On Liberty by the Mills and you need to rethink the meaning of the First Amendment. And he did so. And then over a period of a year, they debated and they discussed and they argued. And out of that came his conclusion that the First Amendment protected free speech because it protected the idea that when you have a clash of ideas, better thinking, better understanding, better knowledge emerges from that. So that radical turnaround that happened in 1920 brought it ultimately into the civil rights movement. It brought the idea of diversity into the move for academic freedom and eventually into what developed as the business case for diversity and the science of diversity. So really, in terms of legal doctrine, we start with Holmes, but Holmes starts with the Mills. And of course, we know that the Mills started with Humble. One of the moments that is very interesting that you bring in the book, but also that has been kind of highlighted recently again, has to do with the Harvard admissions model when it first got a little bit different with Archibald Cox. So I wanted to hear from you, what made that approach so influential for courts and so much so that it got its place into legal reasoning? So Archibald Cox, one of the great lawyers of the 20th century, Harvard law professor, United States Solicitor General, and critically, Watergate Special Prosecutor, is fired by Richard Nixon in what's called the Saturday Night Massacre, goes back to Harvard. It's too late to start teaching. And so he's asked by the president of Harvard, would he write an amicus curiae brief in a case called De Funes versus Washington, in which a young man named Marco De Funes had been denied admission to the law school at the University of Washington, although there had been students admitted who were black or Hispanic who had lower LSAT scores. And he sued saying that this was discrimination against him. It was the first challenge to an affirmative action program to reach the Supreme Court. Archibald Cox, on behalf of Harvard, writes this brilliant brief describing how at Harvard racial diversity is a factor among many factors that the college uses in order to ensure that there is all kinds of diversity in the students who they're admitting so that they will gain the educational benefits of diversity in the classroom and in the dormitory and in the eating halls. And he works back to the ideas that we saw from Humboldt and the ideas that we saw from the Mills. He cites the law that was established by Holmes and then established by Frankfurter. He cites this remarkable book out of South Africa where the argument was made that apartheid violates the natural law of South Africa because of the importance of diversity in a multiracial society to admission of students at universities. And this is an argument taken up by the University of Cape Town. All of that goes into the mix and he writes this remarkable description in the form of a legal brief. And Justice Powell takes that description and the case is dismissed as moot. But four years later in the Bakke case, Justice Powell attaches this thousand-word section of the Cox brief and says, here's how they do admissions at Harvard. Here's how they consider race in the context of the benefits of racial diversity. This is a model going forward that other universities can adopt without violating the civil rights laws or the constitution. So that's how Cox ends up sort of helping to write Justice Powell's opinion in the Bakke case. Do you understand that over the recent years with different political movements, with different actors in the global geopolitical scenario, the word diversity took a different stance, right? So I feel like as a society in different places of the world, this word has meant different things at different times. And I do think that most recently, right, people would think of diversity as a recent concept and maybe even a concept that is closely related to specific political ideologies. But from your research, I'd love to hear a little more how that developed. Well, I do think that students here in the U.S. and abroad should recognize that diversity in the classroom and diversity in the science lab lead to better learning and more learning. And that it's in the interest, it's in the enlightened self-interest of university students to want to study in a diverse environment, to want to be challenged by the diversity of the environment. Now, that includes racial and gender and ethnic diversity, it includes including students with disabilities, it includes including foreign students and students who've grown up in different cultures, different classes. It also includes what we sometimes call a viewpoint or ideology diversity. From the point of view of the Mills, they said viewpoint diversity is a result of background and experience. And I think that's probably true. But the move, for example, to hire more conservative faculty at U.S. universities, I think that's terrific. I think we should have more ideological diversity on law school faculties and in university faculties generally. Now, I think we need to recognize that if we say we're going to try for this job to hire someone who's a conservative, I find that, I think that's fine. But of course, it is affirmative action for conservatives. And conservatives often oppose affirmative action. And you know, most conservative scholars are white men. So it's sort of affirmative action for white men. I think it's justified here. But a lot of conservative white men think that affirmative action is never justified. So there's a little bit of a tweak that we have to think about there. But nonetheless, I think it's important that we find ways to have viewpoint diversity, just as it's important to have all kinds of diversity that in turn leads to viewpoint diversity. Let me give you an example, Justice Clarence Thomas. I think everyone would agree, including Justice Thomas, that he is a bona fide conservative. He's probably the most conservative member currently of the U.S. Supreme Court. And he feels strongly that the Constitution requires us to be colorblind. But that doesn't mean that his race, that the fact that he is a black man, is irrelevant to his experience and to his viewpoints. And I want to point to an opinion of his, a dissenting opinion, in a case called Black v. Virginia. It was a case in which a group of white people burned a cross on the front lawn of a black family. And of course, the burning cross is a symbol of the Ku Klux Klan. It's a symbol of racial intimidation. There were at that time eight white people on the court, plus Justice Thomas. And the eight white people on the court, well, they disagreed on some matters in the case. They all agreed that burning a cross at least could be an act of political expression protected by the First Amendment. And Justice Thomas wrote a dissent in which he said, there is no way that burning a cross is an act of political expression that deserves protection under the First Amendment. It is an act of terrorism. It is an act of intimidation. Because Justice Thomas had an understanding from his history, from his experience as a black man, about the meaning of burning a cross. It was different than the more intellectualized, theorized understanding of the meaning for the eight white people who were on the court. It's an example of where Justice Thomas' bringing racial diversity to the court contributed to how the court approached an important case and an important problem. Brought together education, you brought together social sciences. When you bring all of those together, what does this say about the value of thinking beyond strict legal sources when building arguments? Well, we can go all the way back to the beginning of the 20th century and the remarkable advocacy done by Louis Brandeis before he was appointed to the Supreme Court, when he did a great deal of pro bono work, so much so that he was called the people's lawyer and intervened in lots of US Supreme Court cases with amicus briefs. And his briefs used so much social science that they used to be described, well, the term became the Brandeis brief. A Brandeis brief was a brief that contained not just law, but social science. And these were very important, very influential. When the former dean of Berkeley, Frank Newman, who was a great believer in studying law and society, was appointed to the California Supreme Court and was told he could hire two permanent law clerks in addition to law clerks who would come and work at the court for a year or two. One of the two people he hired was a non-lawyer sociologist, and he said it was important to have that perspective for the opinions that he was writing. So looking at the careers of figures like Justice Marshall, Justice Ginsburg, what patterns do you see in how legal ideas actually move from theory into real world impact? Well, you put it well earlier when you said it's a question of thinking outside the box. They were both extraordinarily creative people, and they came up with a new way of looking at an old problem and therefore gave the court an opportunity to reframe the problem and therefore get away from their prior case law. In both cases, interestingly enough, they had a lot of help from a remarkable lawyer named Pauli Murray. And Pauli Murray, who I didn't know much about until I wrote this book, but she'll be the subject of one of my next books, she grew up in North Carolina, a black woman who today would probably identify as a transgender man. She was denied admission to the University of North Carolina because she was black. She was denied admission to Harvard Law School because she was a woman. She studied at Howard Law School at the urging of Thurgood Marshall, finished first in her class. She was the only woman in her class. The men wouldn't talk to her. And she had a great influence on Thurgood Marshall in convincing him that the benefits of diversity were an important part of the attack that he was making on school segregation. Twenty-five years later, while she was a lawyer for the ACLU and they were considering hiring a lawyer to run sex discrimination program, the men who were on the hiring committee reacted when she said, let's hire that law professor from Rutgers by saying, no, she's too shy. She's too diminutive. She wouldn't be a good lawyer in the courtroom. And she convinced them that they were wrong. And so they hired Ruth Bader Ginsburg. And she went on with that lawyer, Ginsburg, to write the key briefs that led to the Supreme Court recognizing that sex discrimination is a violation of the 14th Amendment. So in both cases, this person who was completely behind the scenes played this critical role. Amazing. To wrap up today's episode, I wanted to ask you, most of our audience here are early career professionals or law students and, you know, listening from different countries, different parts of the world. And I wanted to hear from you, what are some of your thoughts, you know, on practical lessons that they can learn when thinking about building a meaningful career and one that is adaptable, leave a legacy for future generations? Thank you, Claudio. I'm going to give you two answers to that, if I may. First, in terms of the book and what they can take from the book, to seek out opportunities to be a part of diverse groups, to look for opportunities to experience diversity. And again, all kinds of diversity, diversity in terms of disability, diversity in terms of age and religion, diversity in terms of class and race and ethnicity and gender, to try to be, if they're insiders, welcoming to outsiders, if they're outsiders, brave enough to want to join with the insiders in order to experience those benefits of diversity and to be brave in doing so. So that's the piece of advice I would take from the book. But I also want to give them a little bit of advice, if I may, that I try to give my students at the end of the semester and several procedure and an evidence. And that is that to be a lawyer is to be a healer. It means that people come to us who are in pain, who are, they're in pain because they've been hurt in some way. They're in pain because they're being sued, which is a very painful process. They have a problem of some kind and they need our help. And we're a helping profession. And to help people, we have to approach their problems with sensitivity and with an open heart. You know, John King said that the answer to hate is love, that the answer to any problem is love. And I think that lawyers can lawyer with love, that lawyers can practice law with love, that lawyers can be loving toward their clients. Lawyers can even be loving toward their opponents who, you know, John Stuart Mill said, my opponent is simply someone who's trying to get to the top of the hill through a different path. To be an effective problem solver, we have to, we have to live with love and we can't live with love unless we love ourselves. I do think that if we, if we love ourselves and if we love our neighbors as we do ourselves, that we will be happy and successful lawyers. Amazing. Thank you so much for making the time to be in the podcast today. Thank you all so much for tuning into this episode. It was a pleasure to join you. Thank you again, Claudio. Thank you very much for having me. Take care. Bye.