//  6/10/19  //  Quick Reactions

I was honored to be selected by the class of 2019 as the faculty speaker for commencement. Below is a text of the remarks I wrote up; you can view the speech here.


Thank you so much. It’s a great thrill for me to be speaking to you, the very first class I taught at UCI. I can’t promise there will be no cold calling in this speech, though I’ll do my best to avoid it.

 What I want to try and offer instead is a cautious congratulations--congratulations on joining a profession that will offer you the tools and the credentials to do … just about anything you want to do. Members of the legal profession have gone on to become Presidents, Senators, Supreme Court Justices; and other leading figures in American history. 

But the congratulations I offer is cautious because as all of you graduates know, not all Presidents, not all Senators, and not all Supreme Court Justices have done great things; many of them have fallen well short of even doing good.

So in addition to offering you a congratulations, I also want to caution you about the profession you are about to join. It is important that you make the legal profession--and the credentials and power it offers-- work for you and your ideas about justice, rather than the other way around. Do not let the legal profession’s comfort with the status quo and clubby networks shackle you to the way things are and prevent you from doing good--from doing justice--in this world.

But first, the congratulations. Your law degree is an invitation to make change, and to do justice.

It will give you a voice to stand up for what you believe is right. It was lawyers who were able to file the legal papers that eventually led to the decision in Brown v. Board of Education, which desegregated public schools in the United States. It was lawyers who stood up for women’s ability to own property, and to exist in the workplace without fear of sexual assault or sexual harassment. 

And today, it is lawyers--including some graduates of this school-- who tell the Orange County Police Department no you can’t just round up men and women who lack homes and bus them to some far away place without their belongings. And it is lawyers who say to the President “no you cannot rescind the protections for the DREAMers--the beneficiaries of the Deferred Action for Childhood Arrival Program who came to the United States as children and have built a life here but just so happen to lack the little paper that officially allows them to stay.

People will listen to you because you are a lawyer. And people will respond when you go off to court and file a lawsuit. Your degree empowers you to seek justice on behalf of those who have been denied it. 

But as all of these examples also illustrate, your degree also allows you to do harm--and to provide reasons why justice should not prevail. There were lawyers--there are lawyers-- on the other sides of those cases too.

After Brown, it was lawyers--law professors who argued the decision was wrong because it favored blacks over whites. These lawyers convinced themselves that Brown was wrong because it did not offer a “neutral principle” that gave as much consideration to white people as to black.

It is lawyers who argue that courts cannot stop the President from rescinding the protections of the DACA program because it would do grave harm to the separation of powers. It was lawyers who wrote and defended the laws that put DACA recipients in jeopardy in the first place. 

It was lawyers who argued that the federal government cannot provide health insurance to Americans who cannot afford it. It is lawyers who argue that Congress cannot provide protections against breaking up Native American families, or that law schools cannot refuse to fund positions at employers who discriminate on the basis of sexual orientation.  

You can be whatever kind of lawyer you want to be. But it is important not to lose sight of the fact that the legal profession you are about to enter, like anything else in this world, is not inherently good. There is nothing about being a lawyer that requires you to do good. That has to come from you. 

There will be professional pressures that will make it difficult for you to do justice, even when you want to. Legal reasoning can force you to lose sight of the real world that is around you. If you find yourself arguing about what the separation of powers means, or what due process entails, think about the people who will  be affected by it. Better yet, ask them--be near them. Do not be indifferent to the lives of people who are different from you.

Otherwise you may become one of the people who says“don’t worry about the DACA case; if it’s rescinded it’s not like they’re going to deport the DREAM-ers.” 

Do not let false neutrality be the enemy of fairness. Question people who say that they are not separating families, they are just enforcing the laws. Laws can fix some injustices. But law can also create injustice too. 

In law, you are trained to think about the implications of your argument--”if I say this, what is the worst possible extreme hypothetical that might follow from it.” But don’t let that hypothetical make you lose sight of the actual lives of actual people who are affected by the way things are here and now.

The legal profession is also a ‘small c’ conservative--it is resistant to change. It will pressure you to stay quiet, and to rationalize what is happening around you because the legal system is comfortable with the way things are. It is a system, and the system, it will say, is working well enough. The Thirteenth Amendment abolished involuntary servitude and slavery; it did not say anything--or do anything-- about the white supremacy that enabled them and that persists today. 

In order to make change you have to get comfortable with being uncomfortable. You can’t create justice if you only do the things that are easy or convenient or just rationalize the way things are.  

The legal profession is also a club; it is made up of networks—networks that prize power and access. Take care to remember that being a part of that club does not give you or anyone else any special insight into what is right or wrong. Remember that there are some networks that are not worth the price of admission, even if they offer you a shiny prize. 

There is nothing about power and nothing about a credential that makes someone a good person, or more likely to do justice. Grades are not a measure of capacity to change the world for the better. Neither is graduating from a fancy law school, a fancy prep school, and clerking for a fancy judge, even though those things might get you on the Supreme Court.

The legal profession’s clubbiness and obsession with credentials has led some of your fellow lawyers to say we should feel sorry for our fellow lawyers in the Trump administration, who  are “good people” who are being “dragged down” by being associated with--and defending in court--some of the Trump administration’s policies. A bunch of very learned and very important people tut-tutted and told us not worry about the 2016 election; today, they tell us not to worry about what the Trump administration is doing and might do still. Don’t let lawyerly networks and power obscure your judgment about what is right.

Sometimes doing the right thing will cost you; sometimes doing justice will come at a price; sometimes standing for what is good will not be easy. I know this, and I know I am asking you to bear these costs and these burdens.

I know it is a lot to ask you to try and make the world right and just when so many people before you failed to do so.

But I also know you have made the kind of commitment and put in the kind of work that will allow you to do justice. We all have to find ways to do justice; to include those who have been excluded; to seek out those who have experienced injustice; we have the means/powers/tools to do so. It doesn’t matter if you are a corporate lawyer or a legal aid attorney; prosecutor or a public defender; a municipal attorney; a loan service officer; an employment attorney. 

It is your responsibility to seek out those who who have suffered and those who are marginalized. There are problems; and it is within our capacity to fix them. 

Don’t wait until it is too late to do so. Thank you. And again congratulations to the class of 2019. I’m so proud to have been one of your professors.



Versus Trump: Going to Church In Times of COVID

12/7/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the recent Supreme Court decisions requiring states to allow in-person religious services even while other gatherings can be banned. The pair gently disagree about how hard or easy these cases are. Listen now!

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

Versus Trump: Legal Update + The GSA Travesty

11/17/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the status of Trump's legal challenges to the election (going nowhere) and the Trump Administration's dangerous and illegal refusal to designate Biden as the President-elect and therefore give his team resources for a smooth transition. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Trump's Lawyers Should Be Sanctioned

11/11/20  //  Commentary

Lawyers who bring cases without evidence solely to harass or delay should be sanctioned. It's what Justice Scalia would have wanted.

Jason Harrow

Gerstein Harrow LLP