Monday, July 10, 2017

A Personal Remembrance of Robert Ferguson

by Michael Dorf

Robert Ferguson died last week. I urge readers who are unfamiliar with Robert and his work to read the official obituary at the Columbia Law School website. It gives a good sense of Robert's place in the academy as a towering interdisciplinary figure in the world of law & literature as well as his fundamental decency as a human being. Here I want to reflect a little on the man I knew and the lessons that we might all learn from the example of his life.

Robert and I both arrived at Columbia Law School in 1995. Whereas I was a junior faculty member moving laterally from another law school, Robert was just crossing the street from the English Department, where he had been a distinguished member since 1989. Over the course of the rest of his career, he continually crossed and re-crossed that street, as well as others.

Robert initially struck me as something of an anomaly. In the mid-1990s, most of the legal scholars connecting law and literature were undertaking what they called "narrative scholarship"--in which feminist, critical race, and other outsider scholars told stories (some true, some fictional) about an experience in or relating to the law, mostly abjuring the conventional forms of legal scholarship. Some conventional scholars pushed back against narrative scholarship, either questioning whether it should be regarded as legal scholarship or questioning its value entirely. Robert was, by training and temperament, a conventional--perhaps "traditional" would be more apt--scholar; yet he was profoundly interested in the role of narratives, of stories, in and about the law.

To be sure, Robert was not the only "traditional" scholar who was interested in law and literature. At the time, Judge Posner had written an important book on the subject (since updated twice), but for Posner the relationship of law to literature was and remains one of numerous interests. Perhaps the only other figure in the legal academy with a profile similar to Robert's was (and remains) James Boyd White. Thus, Robert wasn't quite unique. But he was unusual.

Having now served on three faculties and having gotten to know a fair bit about other faculties as well, I think it fair to say that on any faculty there are certain archetypical figures: young turks; gadflies; curmudgeons; prima donnas; etc. On first meeting Robert, it was easy to think that he was something of a curmudgeon. The Columbia obit notes that students remarked on his "fastidious preparation for class." That word "fastidious" is not entirely complimentary. The students did not say that Robert's preparation was "incredibly thorough," or even if some of them did, at least some remarked on its fastidiousness--which literally means very attentive to and concerned about accuracy and detail. That is an extremely important trait in lawyers, and so it is sensible that Robert modeled and thereby encouraged it in his students. Indeed, nearly all good classroom teachers model a kind of fastidiousness when we probe and prod students over the use of a vague word or an incomplete statement. But fastidiousness can also connote a kind of excess. The pejorative version of fastidious is anal.

I believe that a true homage should paint an accurate picture, and so I will acknowledge that the students who commented on Robert's fastidiousness were accurately observing something. Even on a law faculty filled with scholars and teachers who cared a great deal about getting the details just right, Robert stood out. On first impression, he could come across as pedantic.

But only on first impression. To know Robert was to come to realize that his rectitude was not, ultimately, of a priggish or judgmental sort. Robert held himself to the highest standards and wanted to show his students how to do the same for themselves. Yet he also had a gigantic heart. He treated everyone with the utmost respect. The official obit notes how after the publication of his 2014 book Inferno, he replied to every letter he received from prisoners. Robert felt deeply connected to the plight of the least fortunate.

Robert combined a deep personal commitment to excellence with a strong sense of social justice. I'll close with an anecdote that I think captures this combination.

Over the last two decades, law schools have increasingly turned to giving merit scholarships to top students, typically as a means of inducing those students to come to the school offering the tuition discount or waiver rather than go to a slightly higher ranked school. The tactic is rational for each individual school, but in the aggregate it leaves schools roughly where they were before, in the end transferring money that otherwise could have gone to need-based scholarships to students without financial need. Many law deans would favor an agreement not to offer merit scholarships but both antitrust law and the inherent instability of cartels preclude this approach.

Back when the merit scholarship phenomenon was gaining steam, the then-dean at Columbia convened a meeting to consider whether to jump on the bandwagon. Most of the faculty expressed either outright opposition or grudging support, given the competitive pressure. Robert was in the first camp. In addition to voicing the view that diverting funds from the have-nots to the haves was unjust, he noted that "the very best" schools did not offer merit scholarships, because they could attract top students without gimmicks. He said (to the best of my recollection) "I like the company we're in."

Not long after that, Columbia capitulated to market pressure and started offering merit scholarships, but I want to dwell on Robert's remark. To me, it captures how he integrated what in a lesser person might be deemed intellectual snobbery with a genuine commitment to justice. Robert saw no contradiction between maintaining the highest standards of academic rigor and taking seriously the perspectives of the less fortunate.

In that regard, I think Robert might be thought emblematic of a great deal of the academy in law, the humanities, and some of the social sciences. We got where we are by valuing academic excellence, but we maintain a commitment to social justice. There is a tension there, a conflict between elitism and egalitarianism that can be derided as a species of limousine liberalism. But the conflict must be managed because these values--a fastidious commitment to accuracy and a commitment to social justice--are both worthy. Robert embodied and managed that tension better than anyone I know. He will be sorely missed.


Joe said...

Thanks for the nice words.

I checked my library and they have two of his books. Will check them out.

Bob Hockett said...

SO moving, Mike - thanks so very much.