The Law and the Outside World

THE OPEN MIND
Host: Richard D. Heffner
Guest: John Sexton
Title: The Law and the World Outside
VTR: 12/15/99

I’m Richard Heffner, your host on The Open Mind, and an erstwhile historian. My guest, of course, not only trained in history, and has a doctorate in the history of American religion, but is also a magna cum laude graduate of Harvard Law School, was law clerk to U.S. Court of Appeals Judges David Baselon and Harold Leventhal, and at the Supreme Court of the United States to Chief Justice Warren E. Burger. In short, John Sexton has been there, done that as far as the highest precincts of law are concerned. And for more than a decade now as Dean at New York University, he has lead what has undoubtedly become one of this nation’s most prestigious law schools, perhaps its most highly praised and innovative.

Of course from what Dean Sexton said when he appeared on The Open Mind before, from what he speaks about so often and so enthusiastically, and from what he does about it at NYU, it is clear that my guest more and more sees the law in its global context, too. And today I want to ask him what blessings and burdens we and our institutions can anticipate from that new development in the law, what can we learn and gain from the world outside and it from us? Dean Sexton? What about it? What’s going to be the impact of your and NYU Law School’s emphasis on global law?

SEXTON: Well, we hope that the, the impact specifically of what we’re doing will be that we’ll, we’ll discharge into the world and “world” here is defined both as the United States and the globe, literally, a group of folks, faculty and students who are thinking about the law as, as…a special instrument, and a sacred instrument that has tremendous power for, for good, for evil if misused, but, built most of all for ordering human conduct both public and private in a way that can maximize…maximize the benefit to everyone everywhere. So we’re trying to take that, that look at the future of the research of our faculty, the careers of our students and, and prepare them for it. That’s our specific mandate.

HEFFNER: Now, I know there are an awful lot of people in this country who are, shall I say, jealous or envious of what you’ve done at New York University Law School. Is this now going to be a case of American imperialism in terms of the law? Others have talked about our economic imperialism; others have talked about our cultural imperialism. Do you really want to … shall I use the word … impose or export your traditions of the law all around the world?

SEXTON: Well, there are … all, all kinds of wonderful ways, Richard, that I could, I could use various antecedents for the pronouns you’ve used there. First of all, let me caution you, and calm you. No one need worry about NYU Law School…imperialism. That’s not our object at all. It is true that elite educational institutions tend to be “risk-averse”. It is true that that’s not the NYU way; we’re willing to try to be innovative. We’re trying to take risks, we trying to lead … we did that in 1993 when we announced the global law school initiative. At this point I think what we did, in, in retrospect, appears not to have been much of a risk.

HEFFNER: Well, what do you mean by “global law school initiative”?

SEXTON: Well, we…what we said in 1993 was that the finest of law schools, and there’s a concentration of great law schools in the United States … folks tend to look to the United States for leadership in legal education. And what we said “was the finest of law schools that are attracting the finest of faculty and the finest of students” … that, that these places have to stop looking at what they’re doing in a national lens. That that was much too narrow a perspective. That a phenomena was happening similar to what was happening at the close of the 19th century, when…we here in the United States began to realize that thinking about law through the lens of New York or Massachusetts was…was short-sighted and…and would not be appropriate for preparing the best students and for leading the research of the best faculty. So we said, “We’re going to change that”. Now, to say we’re going to change that, principally changes perspective, and that gets to the second part of your earlier question.

It’s … this is not about … you know, singing praise to American law and, and saying to the rest of the world “come learn from us” the received truth. That’s not what this is. What this is, is a realization that the rule of law, public and private, is spreading to two-thirds of the world that’s never known it. Never known the concept of rights against the state. Never known the concept of private property and a free market economy, or any of the rules of law associated with either of those sectors. It’s, it’s about the fact that our students and our faculty are going to be practicing and thinking in a world where law goes across boundaries, where the concept of rights and constitutionalism extends across boundaries with all the implications for sovereignty that has. Where the concept of private transactions extends across boundaries with all the implications that has.

And we’re coming to that awareness precisely at a time where we in America, thank goodness, are becoming less chauvinist about our own legal system. So we…we’re saying “wait a minute now” … take my area which is dispute resolution … there’s a lot to be said about what could be improved in American dispute resolution. We don’t have this right. So, it’s critically important that in the Academy, the place where, theoretically…objective, unbiased consideration of the search for “the best”, the search for … pardon the Brooklyn accent … the “ought” goes on, where…that, that the Academy should look at these developments and be sure that we don’t export in an imperialistic way, a system that has viruses in it. That we step back, we think about what are the better rules, we think about what we can learn through other great legal systems.

HEFFNER: What about that? What can we learn from other great systems?

SEXTON: I mean there’s an enormous amount to be learned. I mean we’ve … for example, as early as 1994 we held a major conference which brought together justices of the Supreme Courts of the United States, Germany, Italy and Russia. We had four Justices from each of those courts meeting with NYU professors and students and, and it was happening interestingly enough exactly at the time that the Russian Constitutional Court was examining the constitutionality under their Constitution of the invasion, the initial invasion of Chechnya, and Justice Chernoff who was writing the opinion was there, and to listen to the Justices of these four great courts coming from different traditions, one of them, the Russian court, in its infancy.

You know, what, what was … what was Chernoff to do? He was in a position very different from John Marshall in Marbury versus Madison. When Marshall declared the Judiciary Act of 1789 unconstitutional and said, therefore Congress illicitly gave to us … the Supreme Court of the United States … a power to decide Mr. Marbury’s case that the Constitution doesn’t give it the authority to give to us, there was only one entity that had to obey that opinion and that was the Supreme Court itself. It has to say, “Oh, Mr. Marbury, we’d love to help you, but we’re very sorry, we can’t do it because this act of Congress authorizing us to hear your case is unconstitutional. Go away. Seek another remedy”.

Chernoff was in a very different position. Chernoff had a President who had invaded Chechnya and the Russian Constitutional Court was faced with the situation of having to step back and try to establish its doctrine of judicial review in a context where Yeltsin would have had to withdraw from a very powerful war, very different circumstance. And perhaps to have forced forward, you know, to have imported, as you said, all of the principals, highly developed…over two hundred years of American Constitutional review which are used somewhat, but differently in Germany, and somewhat, but differently in Italy and that conversation went on. But to bring all those principles in infancy, probably would have set back the doctrine of judicial review for two generations in Russia.

HEFFNER: Well …

SEXTON: So there’s a lot to be learned by looking at these principals at different stages of development, in different context. And, and, there’s much to be learned by us as well as by others.

HEFFNER: Spoken like a true American and a true Westerner, and I don’t mean from California or Arizona. You’re talking about a Western tradition, aren’t you? Essentially a Western tradition and so frequently in the past several decades we have been at the short end of the stick of opposition and… almost rebellion on the part of those who have said we have a tradition that we are trying to impose upon the rest of the world. And here’s John Sexton and NYU Law School and other elite schools in this country who want to export a good deal of what must be considered a Western tradition. Am I really wrong at that?

SEXTON: Well, I … your questions are always so provocative. You know I did my doctoral dissertation on, on the Unitarians through the lens of a man named Charles Elliott. And what I asked in that dissertation is “do the Unitarians succeed in creating a dogma-less religion?” And I answered that question through Elliott’s life by saying, “No, they just pretend to. They, they create all kinds of surrogates that are, that are just as dogmatic as a statement ex cathedra by the Pope. Well, you know… talk of the rule of law as a Western tradition is, is to speak the truth …

HEFFNER: Okay.

SEXTON: On the other hand, when one looks at China, a society that has a deep, deep legal tradition, going back millennia before the birth of this country, and going back millennia before the development of what we would call “the rule of law” roots in Europe. And going…going back deeply into Confucianism, but worked out in a very different way. I would suggest to you that just as the Unitarians didn’t create a dogma-less religion, so also…Asia does not have an absence of the rule of law. And there’s a great deal to be learned. You know when I teach dispute resolution and, and I teach it at… under the global law school initiative with a Japanese expert in dispute resolution in my classroom I am much more self-conscious about the American instinct to rush to litigation when I’m in the presence of a person for whom litigation, societally, is a shame. When you get to that point, I mean, and I now routinely refer to the…the litigation as the solution to a pathology. I mean immediately when you’re in litigation, you’re in a pathological situation because the deal’s broken down, something bad has happened.

And I think we have a lot to learn … you see the global law school initiative is not about NYU and other great learning communities, you know, welcoming for enlightenment … we have 300 students in our law school who are citizens of foreign countries. We now, after this six year effort, have, have a fully developed, what we call “global faculty”. We, we, we have 20 people that we’ve identified as the leading English-speaking law professors around the world who come to us for at least two months. Those relationships are on-going relationships. They come year after year after year. When our students are in Seoul or Paris or Buenos Aires, they are there for them. And, interestingly enough, now two of them have moved permanently to tenured positions on our faculty. And we bring in others. The conversation is very different. The way we look at issues is much more self-conscious.

HEFFNER: What are we learning from China and from other societies where the concept of law has been present, but it probably has not found its bedrock in our constitutional or civil libertarian…notions?

SEXTON: Yeah…there are a whole different set of first order elements that we learn in this, in this approach. Let me just tick off …

HEFFNER: And can adopt?

SEXTON: Well, we’re not looking …the search isn’t for an Esperanto of law. We’re not looking for, for the single right way to do this. There may be in some areas a need for homogenization or “harmonization” I guess is the word that it’s called. And I think we see a movement, you know, I’m almost tempted to reach back again for a religious metaphor, but almost a move…movement towards, you know, synthesis, in select areas. That may be the case. You know, perhaps we need a regime in intellectual property, or we need a regime … and this could work its way out…sometimes through Holy Wars … see here the World Trade talks in Seattle …

HEFFNER: MmmHmm.

SEXTON: But, but this will have to work itself out in those select areas. But, but I don’t want you to think either, whether it involves American imperialism or not that this…global law school initiative, or the parallel globalization of law … because they’re two sides to the same coin … one is the academic side, the other is the practice side. That this is, this is about seeking a…a single language, or a single rule. My, my assumption is that the search for that in many, many areas is as futile as the search for a state religion. That…or I’ve worked this out recently at the Law School, the search for an official law school coffee. You know, I’ve discovered … many choices are the best things because even day to day coffee tastes change. Well, so also I think that that the delightful … because America has a lot to contribute here, not, not alone, when one looks at societies like India. The way one tries to blend diversity with commonality.

This is an American struggle, right? And my assumption is that that’s going to work itself out in, in this globalization process as well. So, what do we learn? Well, you learn one thing when you move into a society that is adopting for the first time a free market economy and rights against the government, because that puts you back at ground zero. And you say, you know, how does…how would one order … you know, liberated from 19th century American domination by railroad barons and, you know, all of that … how would one order property from the getgo? And how would one play out rules on that? How would one balance in, in, in a different cultural context rights of individuals and states?

So that’s one thing. When you’re, when you’re dealing with tabula rasa it’s very different than if you’re dealing with a highly developed society be it China where the rule of law is, is less visible and overt. Or Western Europe as, as Western Europe goes through the process of developing the European Union. It’s a brilliant laboratory to think about Federalism. We’re going to have at NYU…in six weeks a, a conference which will put our professors together with some partners from Cardozo Law School in the presence of the entire European Court of Justice and the Justices of the United States Supreme Court. We’re going to discuss Federalism. Well there’s a lot to be learned about, you know, by, by Americans about Federalism and state Federal relations as we look at Europe developing those concepts.

HEFFNER: It’s so interesting to me when you talk about the combination including the Justices of our Supreme Court because the question of Federalism is a question of choice, isn’t it? And of interpretation and of decision making about what the proper relationship is between the entities that go to make up a central government, which leads me to ask you … you mentioned the free marketplace. And you mentioned rights against the state. Do you see these things as working hand in glove of necessity, meaning do you put them together?

SEXTON: No. I think…they’re overlapping Venn diagrams. I mean I … my, my Mentor the first … the person who was my Beatrice … the first to lead me into this, this area was Jerome Cohen, who is the, the Dean of experts in this country…on Asia. And when Jerry first joined our faculty seven years ago he insisted that I take with him annually a trip through Asia. And you know, Jerry was one of the first people to say that you had … that the way to…advance a human rights agenda … make that a, an agenda of rights by individuals against government or to be protected against various abuses … the way to advance the human rights agenda was to engage in economic… interchange. That… you create an interest, an obvious self interest in the power… centers within abusing countries that then you leverage into human rights. So there’s that connection. But at the same time, I think, there’s clearly independence in these and we have to address the rules and the development of rules in these two areas…in separate ways.

HEFFNER: Now, you puzzle me when you say that because if, indeed, the free market place undergirds the concept of human rights and freedom from the dictates of the state … how do you separate them?

SEXTON: Well, I’m not, I’m not urging that we separate them …

HEFFNER: Or how do you go along separate lines?

SEXTON: I think one has to, one has to be, be willing to examine, for example, international economic transactions and it, it may be easier to develop techniques in … just with a focus on that that would flow naturally out of business arrangements. And then one can examine separately, I mean you can’t walk, walk into a room and say, “we’re going to have … re-order this relationship of individuals to government”, but one can create pressures from below by creating open societies through economic interchange and with that interchange comes more awareness of possibilities. I mean in a way, it’s the same thing, at a very different level that we talk about when we talk about the conversation among professor and students from different cultural backgrounds creating an openness to ideas you never knew were there. I mean that’s where the diagrams overlap and where economic intercourse creates leverage for human rights agenda. So, it’s almost three different paths.

HEFFNER: Aren’t there those, other than my offering some hypotheses overseas who are concerned about cultural imperialism via the law?

SEXTON: Yeah, I’m one of them. I mean …

HEFFNER: You’re one of them?

SEXTON: I…I would very much…bemoan…the utilization of the phenomena you and I have been talking about to, to advance…a truth …

HEFFNER: Or …

SEXTON: I’m very skeptical of … I mean even as a Catholic I, I mean I’m, I’m not one who leaps immediately to the single truth hypothesis. And I certainly don’t think it operates in law. And…I think, you know, I’ve begun to study the, the, the development of American law from a state based system into, essentially, a national legal system. Not an Esperanto even there though because we still keep the fifty laboratories of the states going. And the, the role that legal education played in that … and it’s, it’s very interesting to see the parallels. Even the, the technological parallels because at the same time the state legal systems as such were breaking down as self-contained entities, so also newspapers were spreading and it was a whole different kind of technology going on. But the big difference between that time and the time in which we find ourselves is the extraordinary richness of…deep seated wonderful cultural variety that comes into a world conversation. And…I think we … there’s, there’s … as much as there remains pluralism in our legal system in the United States with the 51 sovereign entities we deal with … the 50 states and the Federal government … when we move this …

HEFFNER: Always the lawyer, huh?

SEXTON: (Laughter) I don’t know if it is more Jesuit or lawyer, but one or the other, always. But the, the point is that…we will not, we will not see this, this infant society, this 200 year old society as powerful as it is and as powerful as our concept of law and constitutionalism and free market economy is, we’ll not see that run to the creation of one homogeneous fully harmonized legal system that, that will cut across all boundaries.

HEFFNER: Dean Sexton, we have a little over a minute left. What’s the future, in the immediate sense of your…incredible interest and NYU’s great interest in expanding the thinking in this country about the law to the world outside. What’s, what’s going to happen?

SEXTON: Well, I think we’re seeing more and more of the great law schools are now partners with us in, in this enterprise. I’m happy to say…we’re still pressing the envelope. What we have to do more and more is, is integrate this concept of learning and attitude more and more deeply into the core of what every student at NYU does. And we’re doing it. I think we’re doing it very successfully, but in terms of 100 units of what I, and the man I call my Uber-Dean, Norman Dawson, who really is the person that’s developed this program from the conceptual stage to the operational stage … in terms of a hundred units of what we see we could be doing tomorrow, I would say even we at NYU were maybe in the sixties, somewhere, a lot of upside. A lot of upside. A lot of work to be done.

HEFFNER: Dean John Sexton, thank you so much for joining me today. Next time maybe we’ll get to the point where all this has made for the new American century. Thank you for joining me on The Open Mind.

SEXTON: Thank you.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time. And if you would like a transcript of today’s program, please send four dollars in check or money order to: The Open Mind, P. O. Box 7977, F.D.R. Station, New York, New York 10150

Meanwhile, as another old friend used to say, “Good night and good luck”.

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.