Erwin ChemerinskyArgumentation and AdvocacyRiver Falls: Fall 2001.Vol.38Iss. 2;  pg. 63, 6 pgs


Debates,  Values,  Social change,  Multiculturalism & pluralism


Erwin Chemerinsky


Publication title:

Argumentation and AdvocacyRiver FallsFall 2001. Vol. 38, Iss. 2;  pg. 63, 6 pgs

Abstract (Document Summary)

Chemerinsky's keynote address at the Tahoe Conference on Academic Debate June 9, 2001, is presented. Chemerinsky hopes that debate can find a way to instill in debaters a sense of social commitment and personal responsibility, a sense that their tremendous talents can be used to bring about change.

Full Text (3724   words)

Copyright American Forensic Association Fall 2001

It is a tremendous honor and pleasure to have been invited to deliver this keynote address. Debate was the most important part of my high school and college education. Other than my parents, the two people who most profoundly affected my life were my high school and college debate coaches, Earl Bell and David Zarefsky. I feel I owe an enormous debt to my debate coaches and the debate community which gave me so much.

I must confess that I found preparing this talk very difficult. In part, this is because it is somewhat intimidating giving a speech in front of a room of debate coaches, experts in public speaking and rhetoric. Even more important, I realize how long it has been since I debated or even saw a college debate. I graduated from Northwestern in 1975. I realized that my speaking to you is the same as someone who graduated in 1949 speaking at a conference in 1975. Now that's a really scary thought.

I have not heard a college debate since 1978, the year I graduated law school. So obviously it would be foolhardy for me to say anything about debate as it exists today.

I was told that the theme for this conference is "diversity." I very much share your commitment to this goal. When I was a debater, the debate circuit was almost exclusively white and predominately male. I can recall few African-American debaters and even fewer Latino or Asian debaters. There were some very successful women debaters and coaches, but they were few in number. My hope and expectation is that this is an area where there has been great improvement in the last quarter century. It may be that there are still things that can be done to better reach out to minorities and women and ways to make the debate circuit more hospitable to them.

Certainly, more than 20 years as a law professor has convinced me of the importance of diversity in the classroom. I have taught constitutional law in almost all-white classes, and in classes with a significant number of minority students. There is a huge difference in the nature of the discussions. This past semester, I taught a class at UCLA Law School to fill in because of an emergency. I had 85 students; not one was African-American and only a few were Latinos. Because of Proposition 209, affirmative action has been abolished in public universities in California. There are few Black or Latino students at UCLA Law School as a result. When I discuss racial profiling at the University of Southern California, there always are several Black male students who tell of being stopped by the police for no reason besides driving while being Black. It is so different to discuss the same topic in an allwhite classroom.

But I am sure we all agree over this, so it did not seem the appropriate focus for this talk. As I struggled to prepare this talk, I spent a good deal of time thinking about my debate experiences and what they have meant in the years since I graduated. I decided to talk about that-which things from debate haven't mattered much over the last 25 years; which things mattered enormously; and what things I didn't learn in debate that I wish I had.

Frankly, there are a few things that I learned in debate that haven't mattered much. My guess is that you think that I'll begin this list with talking very fast. Actually, though, that has not been a big deal. When I started teaching, some students said, "slow down" and I trained myself to do that. The person in the office next to me says she can always tell when I'm doing a radio interview because I use a different, much more deliberate speaking style. But debaters all learn this. My former college partner tells a story of his first jury trial and the court reporter breaking her machine because he was talking so fast. He learned and has become a very successful trial lawyer. Besides, there have been times when talking fast has been a great advantage. Several times I have given speeches in which I get a signal that I have 5 minutes left, but realize I have 15 minutes of material to cover. Being able to go into overdrive is a great benefit. During the OJ. trial twice a week I appeared on "Rivera Live." If you ever watch shows like that you know that being able to talk very fast to get one's points in is a necessity.

There are some things from debate that have not mattered much since. One is the expectation that judges will decide based on the flow. This is the biggest difference between debate and the courtroom. I saw this one of the first times I had an appellate argument. I was representing the plaintiff in a police abuse case. A man had been shot 36 times in the back by the police; my client was shot 24 times, almost all in her back. The ground for appeal was that the trial judge mistakenly excluded important evidence concerning other abusive behavior by these officers. As I feared, the judges' concern was whether the trial attorney made an adequate record for the introduction of the evidence. I was ready for the question and had my three responses. The government's attorney got up and made a silly argument. The judge interrupted him and said, "Don't you mean to say that the plaintiff failed to make a sufficient record for introducing the evidence?" The government's lawyer responded that he had no problem with that and wasn't challenging whether there was an adequate record made at the district court. As a former debater, I thought, I win then. Not so, the judges ignored the government's lawyer and affirmed based on the absence of an adequate record in the trial court.

Another thing from debate that hasn't mattered much since is the idea that anything counts as authority. I remember in debate the sense that a quote from a published source is all that was needed- even if it was from a crackpot, or a law student writing a law review note, or some obscure and unknown source and journal. It definitely does not work that way in law. Judges care very much about the authority and really want cases from their jurisdiction or from a court above them.

One more thing that hasn't mattered much in the years since I last debated: the triumphs and the trophies and the defeats. As a debater, I cared enormously about these things. I doubt that it is possible to succeed in a competitive activity without caring. But within a very short time, the joy from victories and the pain from defeats vanished. I don't have a single trophy from my debate days. When I went to law school, I left them at my parent's house and my guess is that when they moved, the trophies were put in boxes and are someplace. This, of course, is symbolic of how little the victories mean years later. What matters is the memories and the friendships and the lessons learned.

Overall, though, I learned an enormous amount from debate that has been invaluable in the years since. To start with a simple example: I can fall asleep in any moving vehicle within seconds. My wife thinks that this is a trait of infancy that I never outgrew. In reality, it came from debate trips. Within minutes of getting in a car, I could be asleep.

More seriously, this is part of something that was very special about debate: the chance to travel. I grew up in a working class family in Chicago and never had been far from Chicago, or on an airplane, until debate. About a decade ago, I was having a conversation with a colleague. He said that he and his family were going to Europe for vacation. I said that sounded great, that I never had been. He was quite surprised when I told him at that point I never had a passport or had traveled out of the country. He looked shocked and said, "You mean that your parents never took you to Europe?" I said that as a kid the farthest I'd gone from Chicago was to Gary, Indiana, to visit my aunt who lived there.

But debate changed all that. I wish, in hindsight, that I had seen more of the places we went to. We did more of that my senior year. After my junior year, I was thinking seriously of not debating my senior year. My coach, David Zarefsky, asked if there were things I hadn't done that I wanted to do. I said that I'd like to see more of the cities we were visiting. And so my senior year, we spent an extra day in places where there were interesting things to see; we didn't spend any extra time at Dartmouth, but the extra time in places like Houston and San Francisco was wonderful. I hope that is something more debaters do now.

Second, in terms of things I gained, are all of the skills I learned from debate. I cannot emphasize this enough, though I know that this is obvious to you as coaches. I learned how to think critically, how to develop arguments, how to organize, how to speak clearly, and how to research. Everything I do-teaching, writing, and advocacy-uses these skills. Perhaps less obviously, I learned word economy which has been enormously valuable. I could not talk as fast as many debaters of my era, like Joe Loveland and Gil Skillman. So to compensate, I developed skills of word economy. I use these all the time: in teaching, sign-posting and labeling is much appreciated by my students. In doing media interviews, the conciseness that comes from word economy is invaluable in doing soundbites. Also very importantly, as you know so well, debate forces one to be efficient in using one's time and prepares one for juggling the many things as we all must do.

Third, I learned in debate that as a speaker everything depends on the audience. I certainly realized this as a debater. I was a high school debater on the cusp when debate was changing. Some high school judges were insistent that they would not listen to speed and that they thought of debate as a persuasive speaking context. Other judges saw it as primarily about policy analysis and arguments. It obviously was crucial to know the judge or quickly figure out what that judge wanted. As a college debater, it was key to know which judges were receptive to what kinds of arguments.

As a lawyer, knowing about the judge is obviously crucial. Whenever I hear of someone doing an appellate argument, my first question always is: "Who's the panel?" When I do arguments, I always get on the computerized research tools to learn all I can about my judges.

A few years ago, I was persuaded to run for an elected office in Los Angeles, the City's elected Charter Reform Commission. As I campaigned, I was acutely aware of my audience and what arguments I thought might appeal to them. Likewise, at the end of the process, when I was campaigning for the voters to approve the new charter, I knew that the arguments that might work in the white, conservative west Valley wouldn't work in the almost entirely Black south central section of the City.

Fourth, and very important, are the friends I made from debate. Although I am not in regular touch with many friends from my debate-days, I still cherish these friendships and when we speak there is the warmth of all that we shared. A few times a year, I get to talk with my partners or my coach and it always as if virtually no time has gone by since our last rounds together. I'm always tempted to ask if the new draft of the first affirmative is done.

One of my favorite experiences in seeing old debate friends occurred last November when I went to Florida to argue the "butterfly ballot" case. I got a call on a Thursday morning that a judge in Palm Beach was holding a hearing on the next morning as to whether he had the constitutional authority to order a new election in Palm Beach County. I was asked if I would go argue in favor of a new election as the only way to cure the problems with the ballot that caused thousands of Gore votes to be mistakenly cast for Buchanan. When I called the local lawyer handling the case, I was startled to have the phone answered by Elliott Mincberg, the Legal Director for People for the American Way in Washington. Elliott was my high school debate partner, a Northwestern college debater who won NDT, and a year ahead of me in law school. He was in Florida helping the local lawyer. It was wonderful to fly to Florida and sit with Elliott at counsel table, just like we had sat together 33 years earlier when I was a freshman debater in high school. There is a closeness to our friendship that comes from all of the debate experiences we shared.

Finally, and most importantly, are all of the life lessons I learned from debate. I learned that any successes that matter come from hard work. Maybe there has been a debater who succeeded without working hard, but I sure never saw such a person. My coach, David Zarefsky, said that when he was in high school, his coach told him, "You pays your nickels and you takes your chances." That's so true about debate and so much else. David often had profound advice. I remember as a freshman college debater at my first tournament at the University of Kentucky qualifying for the elimination rounds and turning to David for advice. If you know David, you can imagine the awe that a college freshman-and especially one who had been to his debate institute- had for him. Well, right before the round, David gave me advice that he repeated before every elimination round for the next four years. His advice has stayed with me for whenever I do oral arguments. He said, simply, "Don't make any dumb ass arguments."

Although I learned so much from debate that has been invaluable, there are a few things that I didn't learn that I wish I had. One is the limits of logic. I think that I left debate believing too much in arguments. I don't think I realized nearly enough that there are times when it is better not to make the winning argument, even when it is available. I don't think I had enough of a sense that there are times when caring is more important than contemplating. I think I shared too much the trait of many debaters of getting excited in finding a quote about 1000s dying and not focusing on them suffering and what it meant.

Also, I definitely did not focus enough on the limits of logic in overcoming differences in values. I am increasingly troubled by the great division in values in this country and I despair over how these divisions can be bridged. Is there any way, through logic, to bridge the gulf between those who favor abortion rights and those who oppose them; between those who support affirmative action and those who oppose it?

Last summer, I agreed to take a case to the Supreme Court on behalf of a homeless man who was sentenced to 25 years to life in prison for stealing an umbrella and two bottles of liquor on a cold, rainy night. It was his third strike. In February, the Supreme Court denied review, with Justices Souter and Breyer dissenting. I can't imagine what arguments I could have made to appeal to the Justices with different values, even though it is horrifying to me that such a sentence could be imposed for such trivial behavior.

Second, I wish that there had been more focus on the ethics of advocacy when I was a debater. We all knew that debaters were not supposed to fabricate evidence or distort. But we all knew that some debaters did this and usually got away with it. If they were caught, the consequences were minimal: the card might be thrown out or they'd lose the debate. I wonder if there shouldn't be more extreme punishments such as suspension or expulsion. I realize all the problems with administering this, but I also wonder if it isn't necessary.

In general, there is a need for so much attention to the ethics of public advocacy in our society. Just last week, Los Angeles elected a new mayor, following what was the nastiest campaign I ever had seen. One commercial run by the successful candidate for mayor, showed an unflattering picture of his opponent with a crack pipe superimposed on his face. The clear implication was that he was a cocaine user. I received a mailer right before the election, "Villariagosa is dangerous and must be stopped." There was no basis for this other than fear-mongering and thinly veiled racism. Where were any ethics of advocacy?

Finally, I wish that there had been more attention to personal commitment and social responsibility. In hindsight, I realize that there was something very self-indulgent about debate; it was entirely about developing our own skills and winning our rounds. Never did we need to commit ourselves to anything. I am embarrassed that I did not do more community service, more to help others, in college.

I believe that there is a need for debaters to use their tremendous talents and knowledge. Perhaps debate should consider creating a community service requirement as a condition for participating in the National Debate Tournament or at the Cross Examination Debate Association's National Championship. Debaters could fulfill this by teaching debate in disadvantaged schools or by doing demonstration debates in senior citizen centers.

Also, debaters learn so much about public policy issues. They should be encouraged to use and communicate this knowledge. Debaters should be writing op-ed pieces and speaking to the media, and writing articles based on their knowledge. They should look for opportunities to speak out on proposed legislation that relates to their topic.

My hope is that this will instill in debaters a sense of the value of social commitment that will last long beyond their debate days. My hope, too, is that it will show debaters that they can make a difference. As I compare college students now, with when I was in college from 1971-1975, that seems a key difference. Then there was an almost naive sense that we could make a real difference. I remember in college listening to the lyrics of a song by Crosby, Stills, Nash, and Young, which had the chorus, "We can change the world, rearrange the world." And we really believed it. We believed that students and people had power and if we tried we could make a difference. It was an empowering feeling.

In hindsight, I realize that much of the activism of the times was a result of the Viet Nam War and the way it personally affected us. Student deferments were being eliminated and I remember countless conversations at debate tournaments about how people were dealing with it; who was setting up a residence in Canada, who was aggravating a medical condition. Advocacy and protests against the war was not simply a matter of ideology, but against something that could profoundly change our lives. And the energy of the anti-war protests carried over to other areas. Besides, it was a relatively short time after the civil rights protests that had successfully ended the Jim Crow laws that segregated every aspect of Southern life.

Now I realize that change is far more difficult than we ever imagined. We are now almost 50 years after Brown v. Board of Education and public schools are more segregated than they ever have been. We are over 30 years since Lyndon Johnson declared a war on poverty and the income gap between rich and poor is greater than it ever has been.

This makes it much harder for college students and college debaters than it was for us. There is reason for today's students and debaters to be skeptical about the system and its possibility for change. My oldest son graduated high school earlier this week. As I look at him and his friends, I see that they are far more sophisticated and world-wise than we were at that age. But they also are much more cynical. My hope is that debate can instill in debaters a sense that they can really make a difference. As I stand before you 26 years after ending my debate career, I still deeply believe that change is possible. Student protests ultimately ended the Viet Nam War. In recent years, student protests and demonstrations convinced many colleges and universities to stop using slave and sweatshop labor to make their apparel. This spring, a student protest at Harvard University forced the University to pay a living wage to its employees. Activism need not take the form of protests; it is anything that can be done to make things better. And my hope is that debate can find a way to instill in debaters a sense of social commitment and personal responsibility, a sense that their tremendous talents can be used to bring about change.

I do not mean by any of these points to criticize debate coaches for what they have not done. Quite the contrary, I have nothing but the greatest respect and gratitude for all of the sacrifices, individually and collectively, they have made for the education of debaters.

You as debate coaches are the keepers of this very special flame. On behalf of generations of debaters, I thank you and I wish you all the best in this continuing endeavor.