‘The Art of Agreeable Disagreement’
Judge Diane P. Wood’s Remarks at the 2024 Law School Diploma and Hooding Ceremony
Congratulations, Class of 2024! What a treat it is to have the chance to share a few thoughts with you, as you wrap up your time at the Law School. My topic will be “the Art of Agreeable Disagreement.”
Less than three years ago, you all showed up at the Law School ready (as a song in the old Broadway play Kismet put it) to “sharpen up the edges of your wits.” Whether you knew it then or not, your choice of the University of Chicago for your initial plunge into the legal profession came with a certain amount of baggage. The Law School is famous around the world for the vigor—indeed, passion—of its intellectual discourse, among students, between faculty and students, and among faculty. In the course of engaging in that discourse, it was (and remains) inevitable that some sharp elbows will be thrown.
Someone thinks that the Second Amendment embodies sweeping protections for the right to own and use firearms; someone else, examining the same historical record, thinks that the Amendment tolerates restrictions on the type and number of “Arms” a person is entitled to bear. Or the person next to you might strongly support the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization to overrule Roe v. Wade, while the person next to the Dobbs supporter might be equally convinced that principles of equal protection and individual autonomy lead inexorably to federal constitutional protection for women’s reproductive decisions. Some sincerely believe that race-conscious policies are the only path toward a more equal society, while others think that such policies are a contradiction in terms. And these examples just scratch the surface. I’m sure you easily can think of your own list of controversial topics: maybe the role of religion in the public square; the correctness of, and the consequences of, the Citizens United decision about campaign-contribution rules; the role that immigrants play in our society and economy; the extent to which lengthy prison terms, or even the death penalty, should be used as criminal sanctions; and on and on.
There’s no escaping these discussions in law school—or at least in our Law School—because they are the stuff of law, in the sense of the rules and norms we have agreed to follow, in the hope that we can create a fair, productive, and enriching civil society. These issues all have one thing in common: they raise the kind of tension and discomfort that cause families to avoid them over Thanksgiving Dinner, lest strong disagreement morph into Family Feud.
The trick, as we have been reminded again in recent weeks, is to find a way to articulate your position in a way that is honest, respectful, and stands some chance of being productive. No one says this is easy. Ask any person who, like me, has served as a judge on a multi-member court. Time and again, the members of a three-judge panel, or of the eleven-judge en banc court, confront the task of deciding a case that hinges on one or more of these hot-button issues. And however the judges resolve it, they need to show up at work the next day, ready to tackle the next case, with the same people who might have taken a view that some regard as disappointing, ill-considered, frustrating, or just plain wrong.
That is where the art of disagreement takes center stage—not only for judges, but for anyone who finds themselves face-to-face with a highly contentious problem that they are duty-bound to resolve, working with people who (to put it kindly) are not on the same page as they are. This art—of disagreeing agreeably—starts with some basics. No matter what, do not descend into ad hominem (or ad feminam) language, even if your opponent is not displaying the same self-restraint. And no argument improves by being delivered at the top of one’s lungs, as I occasionally had to remind lawyers in court. Finally, even though it might feel tempting at times to sweep the tough issues under the rug or otherwise to avoid them, frankly, a University of Chicago graduate can, and indeed must, do better than that.
I’m willing to bet that you are more than up to the task. How many classes have you sat in, listening to your fellow students or maybe the professor, say something provoking? Plenty. But, you might say, the classroom environment is the basic Ivory Tower, where everyone has a chance to take the floor, people listen politely while someone else is speaking, and there is some guidance from the professor. The classroom, however, is often the least of the places where you were learning not just law, but how to be a great lawyer, while you were at the Law School. Conversations that began in class spilled out into the hallways. Speakers came, espousing all viewpoints, at all times during the week. Student organizations abound. It is possible (maybe even likely) that you gravitated to the ones that reflected your own preferences and views. But those on the opposite side were available, too, and I hope that you took advantage of the opportunity to avoid the echo-chamber.
As your time at the Law School has unfolded, you may have wondered whether respectful discourse is even possible over issues as huge as the Israel-Gaza War, or the war in Ukraine, or the University’s role in such matters. My answer is that, imperfect, frustrating, and slow as debate may seem, all the other options are worse. There is no substitute, whether on a court or in a quadrangle, for open-minded and careful listening to what other people are saying. Only by knowing their concerns is it possible to begin the process of seeing if there is any common ground between (or among) the sides—do the Venn diagrams overlap at all, or are they in completely different books?
Even if no common ground emerges at first blush, the story isn’t over. Find out what really bothers the other person. Maybe they have a point; maybe even if you aren’t persuaded, you can meet them halfway on something, or begin the process of developing an action plan that works for everyone. And a lot of things can be on the table—more than just “winning” or “losing” the immediate dispute. If your interlocutor is playing a long game, they will keep track of interim concessions almost as carefully as ultimate wins and losses. And who knows? They may have been right when they urged a limitation or qualification of your position.
To borrow a line from Carly Simon, “nobody does it better” than the Law School. And an important reason why I say that, comes back to those sharp elbows I mentioned at the outset. People work hard; they critique ideas relentlessly (I won’t say mercilessly, because the spirit of collaboration is always present); and good ideas—indeed, better ones than anyone had at the beginning, emerge from this spirited debate. I look forward to seeing all of you advance the conversation, never shying away from the difficult topics. Good luck, and congratulations to you all.