Defense Against the Dark Arts: A Call for Education About the Rule of Law and Democratic Institutions
Since the inauguration of President Trump to his second term, the country has been flooded with reports of the executive branch making domestic and international policy through reckless unilateral action, encroaching on the domain of the legislative and judicial branches, retaliating against foes and providing clemency for friends, and dismantling the federal government through firings of federal employees, shuttering of departments, and disregarding traditions and norms. There can be little doubt that the country is experiencing democratic backsliding and that threats to the rule of law are daily realities. Against this backdrop, law schools and lawyer organizations need to act to support the legal profession and its role in a functioning democratic republic. Resistance requires education and collective action.
This article enters the conversation about the role of lawyers in this moment from the perspective of education – including law school education, lawyer education, and civic education. While the paper explores and builds upon the work of others relating to the backsliding of democracy, the underlying commitment that lawyers must have to the rule of law, the special role that election lawyers should have to tell the truth, and the necessity of having strong enforcement of rules of professional conduct, ultimately my aim is to enter a conversation about how and why we should be teaching the underlying values that animate the rule of law and democratic institutions as a way to secure the strength of the legal system and the legal profession for generations to come.
In addition to tracking the actions that the Trump administration has taken against lawyers, law firms, the ABA, and legal clinics in the first 100 days of his presidency, and drawing parallels to autocratic rises worldwide, the article looks at the role that professional organizations have in setting standards and disciplining lawyers who fall short of using independent judgment and ethical practices in furtherance of anti-constitutional ends. Then, the article urges that law schools are well-situated to step up their involvement in rule of law education and provides some concrete examples of ways that this instruction can be incorporated into existing curriculum.
My hope is that this article will inspire more sharing of ideas about projects and courses that can involve law schools on the front lines of meeting the moment we find ourselves in as a country and a world.
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