Author: Erin Daly [see photos from event]
I want to thank everyone for coming here today.
I think that when we first heard that Bob had died, we were completely bereft. We were completely stunned. Bob had been around here for so long that none of us could imagine this law school without him. We had a memorial service of sorts for him shortly after he died largely to help us get through what we were going through. It was I guess in some ways a good event, but it was really a terribly sad event. It was one of the few times that so many students had seen so many faculty cry. Not just a bit teary-eyed, but really, really cry.
One of the things that Bob’s friends did at that time was create a book in which people wrote some thoughts and feelings about Bob and what he had meant to them. Andy Strauss helped to organize this, and Connie Sweeney helped put it together. I’d like to present it now to Carolyn and Bob’s family.
I think when something that’s so tragic, and so sad like this happens, you try to say “is there any way we can try to make this better?” – “is there any way we can try to get something good out of this tragedy?” Jim May, rather quickly, rather intuitively understood that one of the greatest things that Bob had given us was his scholarship. And one of the great things about working with Bob was not only that we could read his scholarship, like everyone else, but that through knowing him, through talking to him, through just being in the same room with him, we could gain some appreciation for how he thought about his scholarship.
So Jim had the idea to use the next issue of the Law Review to commemorate Bob’s contribution to legal scholarship by bringing together in one volume some of Bob’s most important work.
As Jim and Bob Hayman and I sat down earlier this year to try to determine which of Bob’s many many articles and writings should be included and to try to write a foreword that would some how capture what Bob was trying to do in his writing – I’ll first say that we all had a very very hard time doing this – what I found, what I was struck by as I sat down to read his writing in the context of trying to understand who he was and what he was trying to do, I was so struck by the interconnectedness between who Bob was as a person – as a professional, which is the only capacity in which I knew him – and what he was trying to do in his scholarship.
Bob wrote scores of articles. He was just constantly, constantly writing, constantly had ideas that he wanted to set down on paper. But he was also – I think if any of us close our eyes for a moment and think about him – we think of him talking. We think of him engaging in debate. And that was the phrase that came to me when I sat down to think of him as a scholar. That he was always engaging in debate – in every sense of the phrase: he was always debating, and always engaged – really focused on the issue of the moment. And – when he was debating, he was always incredibly engaging. Both in his speech and his writing.
For him, I think, writing was a very active endeavor. Just as talking to people was very active.
Bobby’s debating style was unique. It was intensely personal – his ideas were not just abstract or academic arguments; they were convictions that he was testing out to see if he could believe in them, if he could adopt them as his own. But his was also a thoroughly inter-personal endeavor. Bobby was never enthralled with the ideas per se, he didn’t throw out his ideas simply to hear his own voice, but to prod others to react, to think, to respond, and to enhance his own understanding. It is for that reason that he was such a great mentor to me and to many others.
He didn’t necessarily want you to agree with him, but he wanted you to appreciate the value of his ideas – the value of the debate. “If I have persuaded you of [the importance of my idea],” he says in one article in this issue, “I have achieved my goal.”
Because the point was never to get you to agree, to win over adherents to his side. The point was to get you to think about it, more seriously, more rigorously – about their values and in particular, about his own particular academic passion, to think more rigorously about American constitutionalism and what it means, and what it could mean if it were taken more seriously.
To Bob, who loved debate, conversation, that inter-personal connection that you get through conversation, to Bob, even the constitution itself was a conversation – an ongoing, inter-personal or inter-subjective conversation. And debate about the constitution is what would make it better; continuing to think and talk about the constitution is what would make this a more perfect union.
So he wasn’t timid about making proposals not because he was sure he was right but because he was sure that the questions were worth asking.
I was struck as I looked through his body of work at how often he used question marks. I think that those of us who sat in faculty meetings might be surprised at that. If we were to associate him with any particular punctuation mark – and I admit that it’s perhaps an odd thing to do – but in faculty meetings, Bob was all exclamation point! He was always very emphatic, wasn’t he, in faculty meetings? In his writing, however, he rarely used exclamation points; rather, his writing was replete with question marks.
Legal scholars are known for being very emphatic: this is the way it ought to be! The court is wrong for all these reasons! But Bob’s writing is very different. It’s all questions: what do you think? Do you think it should be this way?
I remember many years ago when he was organizing the symposium on progressive constitutionalism. I remember talking to him about the title. He chose as his title: “is progressive constitutionalism dead?” And I remember saying to him, in my polyanna way, why don’t you be more positive about it? Why don’t you call it: “progressive constitutionalism is alive!” and he said no, I want it to be in the form of a question. So finally I got it, and I said, so you ask the question and then over the course of the two days, you’ll get to an answer? And he said, no, I just want to ask the question. That’s what was important to him. Not to come up with the answer, not even to get the incredibly august group he had assembled should to come up with an answer, but to encourage everyone to think about the question. I guess in that sense, he was a true Socratic.
And this is why I’m so admiring of the courage, the boldness of Bob’s scholarship. He was not afraid to ask questions. He was not afraid to attempt to answer them wherever the answers might lead him. He was not afraid to recognize that he might not have all the answers and in fact, perhaps one of Bob’s major contributions to legal scholarship is the notion that there is a difference between a community that is dedicated – that thinks it has all the answers to begin with and a community that is deliberative, one that seeks to find answers, one that has not pre-commited to a certain way of life or a certain set of values. And that is a paradigm – the idea that communities, or that individuals within communities might be dedicated or might be deliberative – that is a paradigm that I have found extraordinarily influential in so many different ways.
The student editors of the law review wrote a very nice note at the beginning of this issue and it begins with an epigraph from Henry Brooks Adams. “A teacher affects eternity – he can never tell where his influence stops.”
And I think that is so true of Bob. Bob, I think, had no idea how much he influenced us and how much he touched us, not only through his warmth and his grace and his great sense of humor – and not even just through the force of his ideas, but through his manner of engaging with other people. He encouraged us to reconsider the ideas and values to which we were dedicated, to question the basis of that dedication so that we could continue to ask questions and be open to answers, and engage with an open mind in ongoing debate.
He understood that we had not just an opportunity or possibility of debating, but indeed, an obligation to engage in discussion with one another. Because it is the process of discussion and debate that brings us into closer community with one another. And this is perhaps an even more important idea that permeates his writing. The idea that through interpersonal discussion, we give meaning not only to our constitutional democracy, but to our own immediate community.
And what I want to leave you with today is an invitation to read the words on these posters, taken from Bob’s last article, because to me, these are the real essence of Bob’s work – his tireless commitment to give meaning to the various communities of which he was a member and where he will always be sorely missed.