by Andrew Mamo, Professor of Law at the University of Cincinnati College of Law

Those involved in PIF may be interested in a new article recently published in the Georgetown Journal of Legal Ethics, A Tale of Two Civilities.

This article grounds the institutionalization of civility initiatives in the law in the legal, political, and cultural environment of the United States in 1971, when Chief Justice Warren Burger emphasized “the necessity for civility.” Crucially, Burger explicitly argued that radical lawyering practices lay beyond the pale of civility. In this, Burger was joined by a significant cross-section of the legal profession, including judges, leaders of bar associations, law school deans, and other commentators.

But even as Burger argued that norms of civility were essential to the reasoned adjudication of conflicts, those more sympathetic to radical claims and those with an anti-formalist bent argued that civility protected institutions from necessary critique and obscured the true nature of conflict by limiting what was discussable. A law professor warned that we lived in “a lawless society, and it is the executive branch that is acting lawlessly,” and argued that we needed to develop our capacities to identify systemic injustices. The alternative to Burger’s civility was a loose cluster of initiatives to foster mutual understanding across fundamental differences by frankly naming what was at issue.

Burger’s institutional form of civility constrained conflict while the alternative form of civility strived to make conflict speakable. Both persist within the law, but they pull in different directions. As we face a renewed “necessity for civility” today, this history of legal civility can help us understand its contestable function—and how we can educate lawyers who can reason through conflict without abandoning their critical vision.

You can read the article here. Please contact Andrew Mamo if you have any questions.