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The Official Podcast for the Minnesota Law Review - https://journals.law.umn.edu/mlr
00:00:25:19 - 00:00:48:07
Unknown
Hello and welcome to the Experto Crede podcast. I'm your host, Leigh Silverberg, online editor of the Minnesota Law Review, volume 106. Today with me, I have Professor Bennett Capers. And today we're going to be discussing his article. The law school is a white space, which is perhaps my favorite article that we're publishing in this volume. Professor capers, thank you for being with us.
00:00:48:12 - 00:01:11:48
Unknown
Thank you so much for having me. Excited to have you on. You know, I think that before we start, I personally would love to talk with you about your article and how your background as an academic and your work before academia, even as a law school student and before that really kind of catalyzed into writing this piece. Yeah.
00:01:11:48 - 00:01:50:43
Unknown
So I'm going to I think I should start off by saying I sort of view myself as an accidental law professor. And in fact, I probably also see myself as an accidental lawyer. And in fact, since this since this episode is about my, you know, law school's of white space contribution, I could go back even further and sort of say that, you know, I grew up in an area that was decidedly a black space, black neighborhood, went to all black schools until my senior year of high school, when I transferred.
00:01:50:48 - 00:02:26:00
Unknown
And I grew up in Charleston, South Carolina, which is about half white, half black, and, you know, sort of racially divided, at least. It was very much when I was growing up. And basically all the whites in town went to private schools. But in a way, it was still very close. So the black high school I went to, for example, had about 300 students two blocks away in one direction was a white private high school, and four blocks away, in a different direction was another white private high school.
00:02:26:00 - 00:02:49:57
Unknown
So I guess growing up in that environment, I couldn't help but think in terms of white spaces and black spaces. And I think that thinking carried or stayed with me when I went to Princeton as an undergrad and then Columbia Law School for law school. So, you know, I think all of that sort of like informed my thinking about the law school as a white space.
00:02:50:00 - 00:03:15:28
Unknown
And I should add, if I can, there was one title that I sort of kept thinking about as I was writing this piece, and I don't even know if I referenced it in the in my essay, but it was sort of a pretty big book when I was in college. I guess in the book is called Why All the Black Kids Sitting Together in the cafeteria by woman named Beverly Daniel Tatum.
00:03:15:28 - 00:03:47:33
Unknown
And I have to admit, I still haven't read the book, but the title always intrigued me, especially since it seemed like there was another question that was implicit that should also be asked, which is why all the white students sitting together in the cafeteria? Because, you know, sort of takes two to tango. But anyway, that's that's a little bit of my background and a little bit about how I came to start thinking in terms of various places of being, as being different types of spaces for different types of people.
00:03:47:38 - 00:04:16:04
Unknown
I guess jumping off that point, your article really goes through these interrelated experiences that you had and that other authors have discussed as part of, I would say, almost an interconnected consciousness of experience. And I'm wondering if you had any particular experiences, both growing up in law school and as an academic that really generated this piece as it stands today?
00:04:16:09 - 00:04:47:00
Unknown
I think it was sort of a, you know, it's sort of a recurring phenomena in a way. You know, I think I'm constantly sort of being reminded about, you know, how spaces are and, and where I fit in in those bases where I don't fit in, where I do fit in. So just extra stuff that you would never know from probably any of my scholarship.
00:04:47:04 - 00:05:14:07
Unknown
You know, I grew up playing the violin. I one point I was playing with the Charleston Symphony Orchestra, and I played throughout at least my first couple of years in college. I've always been immersed in classical music. And, you know, I also love opera. I go to the Met Opera in New York, and I'm very much aware that people looking at me as a curiosity because of the color of my skin, like they don't expect me to be there.
00:05:14:07 - 00:05:38:21
Unknown
And it's the same when I go to the New York Philharmonic. So, you know, I'm constantly being reminded of, like, you know, various basses belonging to various people in the same thing happens to law school. So, you know, I don't think my experience is unique. I think you could probably ask almost any black person about experiences in law school, you know, and it's sort of interesting being a law professor.
00:05:38:21 - 00:06:04:26
Unknown
And you walk in the building and the security guard is like, oh, are you new here? Do you work in the kitchen? You know, but that kind of stuff is not, you know, as happened to me. I'm sure it's happened to lots of people. So, you know, there's just sort of expectations. You know, early on when I first joined the academy, I was asked to, you know, blog for a week about various whatever I wanted to blog about.
00:06:04:26 - 00:06:25:40
Unknown
And I just for fun, blogged, what does a law professor look like? And I just really wanted people to think like, oh, we always a picture like older men and three jackets. And the the long piece wasn't explicitly about race. Like, I'm not even sure at that point in my career, I even mentioned race. I was just like raising the issue.
00:06:25:43 - 00:06:46:33
Unknown
Like, do we already have images about what law professors look like and what happens when those images are so ingrained? And it's the same for students. It's the same for everything. I think that that makes quite a lot of sense. For all of us that have watched the paper chase. No one walks into the paper chase and looks around and they say, yes.
00:06:46:38 - 00:07:09:28
Unknown
A black man who is incredibly talented as an academic is the one teaching a class. No, no, that is not who is teaching a class at Harvard Law in that movie. And indeed, I think most people expect to see the kind of professor that they see in that movie. So I definitely glad that you engage in that blog and kind of changing the not just the conversation, but the consciousness around the conversation, I think is very valuable.
00:07:09:38 - 00:07:46:50
Unknown
But moving into this piece, because we've we've talked quite a bit about the background to it, I really want to just give you the space to talk about what is a white space, and what do you mean by moving from a white space to italicized a white space? So it's interesting. So I. Follow the concept from Elijah Anderson, who teaches at Yale Sociologist, and he's really the one who sort of like, made the term white space, which I think was already common and like, you know, common usage and brought it into academia.
00:07:46:55 - 00:08:20:09
Unknown
You know, and he defines it in a particular way, which I include in my contribution to the Minnesota Law Review. When I think of it, I sort of think of it as very similar. I think what I'm thinking of is that, you know, often because of both, not often, often enough because of like historical baggage or whatever, there are these spaces that we associate with particular groups.
00:08:20:14 - 00:08:46:55
Unknown
So, you know, their male spaces, the female spaces in my law school's white space piece, I talk about, you know, what it must have felt like when, you know, justice O'Connor or, you know, Ginsburg joined the Supreme Court, you know, which probably still feels like a very male space. Or, you know, when Thurgood Marshall joined in, it probably at that time felt very white and male.
00:08:47:00 - 00:09:12:07
Unknown
So I think we just have these associations with spaces. But for me, it also implies a type I think of. Ownership might be too strong a word, but I think, you know, what I mean is sort of like the sort of assumption like, oh, this is ours, and this belongs to us is sort of our space. And others who enter it might be entirely welcome.
00:09:12:16 - 00:09:35:24
Unknown
They might not be welcome, but they might be entirely welcome. But still, I think sort of the sensibility is like, oh, well, they're coming into our space. So it's not their space is our space. And, you know, just for the record, you know, my, my, my piece is called The Law School as a White space. But they're also black spaces.
00:09:35:24 - 00:10:01:52
Unknown
They're Catholic spaces, the Jewish spaces. I just think because of the history of law schools, it's also the sort of association with law schools as being white spaces, even after or even, you know, separate and apart from the demographics of the students or the staff or anything else. Jumping off that point, I think that it makes a lot of sense in terms of a feeling of belongingness or a feeling of comfort.
00:10:01:52 - 00:10:24:55
Unknown
Let's say that individual is walking into a space where they feel that is not theirs. And in your paper, I should say, you really do show that there are different parts of the law school that really are separate, apart from the demographics that inculcate this idea that this is not for me or this is supposed to be for others and then not for me.
00:10:25:00 - 00:10:52:28
Unknown
You point to a bunch of them. Could you walk through maybe some of your favorite examples and how they really factor in your head into the creation of a space? As for and not for someone? So in the paper, you know, you know, after talking about demographics, I sort of bring up other things like just the architecture, just the very, you know, Collegiate Gothic style of a lot of schools and seems very sort of like Western European.
00:10:52:31 - 00:11:17:00
Unknown
I mean, and that's not accidental. I mean, that's by design. And so even the architecture could feel like a place like, oh, this was designed for a particular group of people. And it trust me, I mean, as a, as a when I was a black student, I felt that I simply felt that as an undergrad at Princeton, that it's filled with that kind of architecture.
00:11:17:04 - 00:11:54:28
Unknown
But for me, it's other things as well. It's the method which I talk about a little bit. But for me, I think the most interesting thing that I felt as a student was sort of the portraits on the wall, and sort of walking into a building and sort of being surrounded by all these portraits of, you know, prior deans, distinguished jurist, and, you know, my going to law school at a time when all of those portraits were of men and they were all of white men.
00:11:54:33 - 00:12:21:16
Unknown
And, you know, one sort of feels like, oh, this, you know, certain people in the law school of the sort of like the inheritors of that and other people are not. And so, you know, there there was just that feeling of like, okay, who is this law school really for? And, you know.
00:12:21:21 - 00:12:43:04
Unknown
Did the people who build this, who built this law school even have people like me in mind? Could they have had people like me in mind? So on that point of keeping individuals in mind, one of the points that you made that for me was probably not just the most salient, but a really resonated with me is how law school is taught and the mode of thinking that law school inculcates.
00:12:43:07 - 00:13:13:09
Unknown
And I'm wondering, at my school, for example, the Universe Minnesota has a wonderful new program called rise that was created by a friend of mine and someone I consider a mentor, and it really tries to inquire into that mode of teaching the kinds of thought that one needs to dissociate themselves with their prior experiences to understand. And I'm curious, how does that factor into the idea of law school as a white space in the, I would say, the former sense that you use in your paper.
00:13:13:14 - 00:14:09:14
Unknown
So it does in various ways. I mean, you know, this is something I personally still wrestle with, like, how do we teach in ways that don't privilege sort of a particular hierarchy, a particular status quo? I mean, for me, even the idea of sort of like standing at a lecture at a podium and sort of lecturing down to students and or using a Socratic method which involves, you know, my Elizabeth Mertz has done this great research on sort of what gets privileged and what does and enhanced and how it narrows and cabins what we want students to think about that, like all of those things are going on in a way that
00:14:09:16 - 00:14:46:02
Unknown
doesn't seem to encourage different ways of looking at things. So one of the first things that we sort of do to students is we sort of cabin what matters in the case from what doesn't. And we are communicating to students like, oh, don't, don't care about the actual plaintiff or the actual defendant, but don't care about, you know, any of the social, economic background to the opinion.
00:14:46:07 - 00:15:08:04
Unknown
But basically, this is what you need to focus on and, you know, be internalized that I mean, by the time you've finished your first semester or your first year of law school, I think a lot of students just take it for granted. Like, okay, this is what matters in the law. And clearly, if my professors, this is what matters, it must be right.
00:15:08:07 - 00:15:45:43
Unknown
And so I'm still wrestling with how we push back against that and how we can sort of teach law in a way where, it's not so narrow. It's not so narrow. I certainly think it's difficult to do that. I think that as a law school student myself. Right. What I see usually is that this privileging goes along with the way that we think about the law as the law, and the idea of inculcating the law to law students to think like lawyers.
00:15:45:45 - 00:16:12:24
Unknown
And one of the first things that I had an issue with was before I came to law school, I worked with judges at Shelby County District Court in Memphis, Tennessee, and I loved the work that I got to do there. And for them, it was very, very much fact based. I get to law school. We talk about case precedent, where the law is going, case lines, and we pretty much leave out the plaintiff and the defendant, and the facts matter, of course, but really it's that holding and takeaway.
00:16:12:28 - 00:16:28:50
Unknown
It feels so ingrained. And so I as a law school student, it really does make sense to me that it would be difficult to take that method and move it away towards the individual suing, because that is what it looked like for me before I came to law school. And then law school absolutely just raised that to the ground.
00:16:28:52 - 00:16:33:00
Unknown
And it's probably true for many people.
00:16:33:04 - 00:16:37:38
Unknown
Absolutely. I could not agree more.
00:16:37:43 - 00:17:00:24
Unknown
I mean, the other thing that we do in law school, and maybe it's just various, maybe it's just like my experience as a student and my experience as a professor. But, you know, let me, let me use criminal law as an example because it's one elk horse. Everybody takes it. You know, so much of criminal law is like, okay, menswear actors.
00:17:00:24 - 00:17:25:35
Unknown
Reyes, you know, causation justifications, defenses, excuses. And I've looked at a lot of criminal law case books. This tends to be very little. Instead of like, well, why is this even a crime? And it has to be very little on well, what are the limits in creating new crimes to sort of saying that something shouldn't be a crime at all.
00:17:25:35 - 00:17:50:04
Unknown
It's almost like criminal law takes the law as a given. And a lot of law school, I think. And don't get me wrong, I mean, obviously the whole goal of law school is not just to teach people what the law is, but also to teach them how they can push back against the law. But it seems to me that even that pushing back is not like, how do you upend the law?
00:17:50:07 - 00:17:54:19
Unknown
It's not sort of like, you know.
00:17:54:24 - 00:18:24:04
Unknown
In the piece I talk about you rearranging apples on the apple cart versus upending the apple cart altogether. It seems like a lot of law school is sort of like, oh, how can you rearrange apples in the apple cart? I have to mention, I'm working on a colloquium on subversive lawyering, and I just read one of the contributions for that subversive lawyer and colloquium.
00:18:24:04 - 00:18:59:16
Unknown
And a lot of it is actually about how legal education could be more subversive. And one of the arguments is, you know, bringing more law to the people, like breaking down the walls of law schools, but actually, like, you know, having everyone learned the basics of the law elementary school, high school, you know, college, whatever. And it occurred to me in reading it, like so many of the ideas were great, but they were really like teaching people like, oh, how they can understand the law so that they could use the law for push against the law.
00:18:59:19 - 00:19:34:26
Unknown
But there's really nothing in the essay, at least the version I read about teaching people that they could actually play a role in creating the law and changing the law. And I don't know if we to my mind, I wish we could do more of that. I think that it follows actually really nicely that point into the kind of vignette that you, I would say, paint honestly in your piece at the end of almost akin to Plato's The City and speech, the law school in thought, which is this place where you will go through and you walk through.
00:19:34:26 - 00:19:57:26
Unknown
And it doesn't just say that it does. The things that you care about, it has embraced them, internalized them, and created them. It's made them real, right? I, I would ask that you kind of walk us through that. What's in your mind is this law school that can be is not yet, but it is really valuable to create.
00:19:57:31 - 00:20:21:48
Unknown
Yeah. So I have to give a shout out to my research assistant, Peter Angelica, who actually has a background of philosophy. So you mentioned Plato. Maybe this is why he was taking this. He actually suggested to me, adding something. And this is basically when the piece was just like a germ of an idea, like, you know, outline.
00:20:21:48 - 00:21:06:07
Unknown
And he suggested adding something about what my ideal law school would look like. And he said that and I did not immediately think of Plato, but I thought of some of my favorite pieces of critical race theory scholarship. You know, which, you know, and loss of CRT, they use lots of personal narrative. And I was thinking not just of sort of the personal narrative pieces like, you know, Cheryl Harris's essay, you know, the whiteness of property that's also taken by critical race theory as like Derrick Bell and Richard Gordo, who actually incorporate fiction in their legal scholarship to communicate ideas.
00:21:06:16 - 00:21:23:12
Unknown
And so when my R.A. Peter Angelica suggested like, oh, why don't you have your own vision of what the law school would look like? I thought of that and I thought, oh, I'm going to have so much fun. I know exactly what I want to do. So that was sort of the genesis for the idea of having the piece.
00:21:23:12 - 00:21:51:50
Unknown
And with my imagining my actually going into my ideal law school, I should also sort of say, I do not want the piece to sort of come across like, okay, this is the ideal law school, and everybody needs to subscribe to this. It's really just my vision. But, you know, in my ideal law school, it's sort of goes beyond sort of the idea of like a place is, you know, very diverse.
00:21:51:57 - 00:22:05:57
Unknown
Obviously, it's a place with a different kind of architecture, a place where the curriculum is different, where the dynamic between professors and students is different. It's a place where the.
00:22:06:02 - 00:22:42:21
Unknown
The dynamic between the inside of the law school and l side of the law school is very different. So it's a place where the community feels welcome to come onto the premises. It's really not like a dividing line between the law school and the community around it. And basically I just wanted to play and have some fun with what I'm hoping to law school could one day be, which is a place that really encourages radical thought.
00:22:42:26 - 00:22:47:50
Unknown
And one of my.
00:22:47:55 - 00:23:23:07
Unknown
Favorite scholars, bell hooks, has this great quote about schools that I'm blanking on off the top of my head. But it's all about like how the school, the classroom itself could be this radical place. And that's what I'm really aiming for. The idea that students could come to law school is, instead of being channeled into a particular way of being a lawyer or into a particular career, that law school can really let students explore, and students simply become whatever they want to become.
00:23:23:09 - 00:23:57:12
Unknown
And, you know, nothing irks me more, you know? And I'm probably going to piss off people at my old school. But nothing irks me more than colleagues say that, you know? Well, our job is to prepare students to enter law firms. That certainly not. I mean, I'm happy for my students to go to law firms, but I'm hoping schools can do more because.
00:23:57:16 - 00:24:22:26
Unknown
There's a lot that needs to change about the world living. And if we're just preparing students to go to law firms and make money. And then as far as I'm concerned, we're not doing what we can be doing to prepare students to really build a better world. And I think that's that's my goal. And teaching students, I'm hoping that they're thinking about building a better world.
00:24:22:31 - 00:24:50:31
Unknown
And increasingly, I think that in the context of the classes I teach. So as I mentioned, you know, one of my core classes is criminal law. And I'm constantly thinking these days, you know, and I didn't think this when I first started teaching. So this has been an evolution. But certainly in the last several years I've read more and more about abolition.
00:24:50:36 - 00:25:12:36
Unknown
You know, as I think about abolition, you know, for a couple of years I was described myself as abolition, curious. But I think I'm like quickly becoming like, you know, on on board with abolition. I'm constantly asking, well, how do I teach criminal law if I think the entire system is flawed at its core?
00:25:12:40 - 00:25:36:38
Unknown
How do I teach it out, legitimizing it, you know, and I think increasingly people wrestling with that issue, you know, I when I first started teaching, I think one of my goals was I was hoping lots of my students would become prosecutors. I was hoping a lot to my students would become defense lawyers. And now I'm thinking, well, I'm happy if they do that.
00:25:36:38 - 00:26:03:33
Unknown
But I also know that they're becoming part of a machinery of injustice if they do that. So I think, you know, increasingly people want like even people who want to do defense work. Can you be an abolitionist and did defense work? But all those two things incompatible? Are they intention because you're still part of the system. And as somebody teaching criminal law, I wrestle with that same issue.
00:26:03:38 - 00:26:06:33
Unknown
And.
00:26:06:38 - 00:26:30:09
Unknown
I think it's deeply interesting that you mentioned that, because before I came to law school, I was a philosophy major. Shout out to your research assistant. I'm glad that he also experienced the, I would say, the brain forming. That is a philosophy education in college. And it isn't all that different than the kind of brain forming that goes on in law school, except the purposes are immensely different, right?
00:26:30:21 - 00:26:50:48
Unknown
The reason why I mentioned that is that that professor, for me, my most important professor, had a conversation with me where he told me, you've been a really solid student. I've enjoyed having you in my ethics classes. Don't let law school change the entire way that you think about the world. And of course, I dutifully promised him no, that would never happen to me.
00:26:50:48 - 00:27:27:12
Unknown
Never, ever. And then one day, I woke up working at the United States Attorney's office in one of the districts and a job that I knew that I was going to really want to get experience in. And I realized that law school had absolutely changed how I saw everything about the world and how I went about my day, how I thought about the cases before me, how I abstracted away the individuals that I was working towards helping my mentors either prosecute for civil issues, usually civil actions related to money or incarcerate.
00:27:27:16 - 00:28:00:48
Unknown
And I realized that slowly but surely. And then in an absolute instant, I was a different person than I was after I had left college. And I do struggle with that. And I wonder, you know, in your struggles with thinking about abolition or how to fundamentally change, how we think about going about the doing of law? Are there any conclusions that maybe you've come to that perhaps might enlighten people like myself that really do struggle with this in terms of where the career is going and how to square that with the person they want to be.
00:28:00:52 - 00:28:46:52
Unknown
Me. That's the million dollar question. And I should, I should add, you know, I was I was a federal prosecutor for close to a decade, which is, you know, looking back, I mean, talk about sort of like, you know, buying into the system. I definitely did that. I took everything for granted. So your question actually makes me think of something that I now tell students when they talk to me about, you know, concerns they might have as they go into being a prosecutor or doing defense work, you know, because those are the students who really asking me questions.
00:28:46:55 - 00:28:55:16
Unknown
You know, the students going to law firms don't ask me. But, you know, students going to.
00:28:55:21 - 00:29:30:19
Unknown
Prosecutor's office offices who are concerned about sort of the inequities in the system, students going into defense who are concerned about the inequities of the system occasionally ask me, like, do I have any advice? And the advice I give them, I think is sort of similar to what I could imagine giving to almost anybody who's about to go to law school or about to go into a particular career, which is and, you know, and maybe I should have, you know, had this advice given to me when I started out.
00:29:30:19 - 00:30:13:40
Unknown
But I told students like, you know, why don't you like, just write down like 5 or 10 things that are important to you and put that list someplace and just keep referring to it. And you know, if you have like five or 6 or 10 or whatever number of ideas of things that you want to be true to, of things that matter to you, write it down and just refer to it occasionally and make sure that everything you're doing is consistent with that, because I will tell you, Lee, like one of one of the most interesting experiences I had as a federal prosecutor is having sort of a new prosecutor who had only been in
00:30:13:40 - 00:30:32:00
Unknown
the office for like a handful of months, come to me sort of saying, oh, you know, they wanted send me to the narcotics unit. I don't want to go. I don't like the idea of sending people away with these mandatory minimums, because we had those back then. And I sort of said to her, well, you know, everybody goes to the narcotics unit.
00:30:32:00 - 00:30:58:14
Unknown
It's like, you know, just do it. Which, you know, maybe I shouldn't have said that, but she did that. And literally within a couple of weeks, she was coming back to me so excited because she'd send somebody away for 20 years. Like, literally, it took her just a couple of weeks to go from, like, I don't want to put somebody away for too long to like, oh, pitting away somebody for a long time is actually good, because that's what the office rewarded.
00:30:58:19 - 00:31:22:07
Unknown
And so, you know, if I could go back in time, I would just say, like, stay true to yourself. And one way to do that is to sort of keep yourself in check by having a list of things that you want to, you know, be true about that serve as your moral compass. Taking that and then moving it towards creating the the law school and speech, if you will.
00:31:22:12 - 00:31:44:40
Unknown
Is there anything that you think that students can do? Because for me personally, I feel that students are actually far more powerful than maybe we give ourselves credit for in pushing law schools to become the places we want them to be. Are there things that we can do that would really help? I, I would say realize this idea of or ideation of your paper.
00:31:44:43 - 00:31:57:40
Unknown
Yeah. I mean, I think so much of it, you know, it's just keep pushing, keep demanding more. It's one of the hardest things.
00:31:57:45 - 00:32:27:33
Unknown
That I see from my perspective is, you know, the turnover like law school is three years. And and sometimes I have to say it's sometimes like it feels like the administration is just waiting for students to graduate because, you know, there's so little you could do in three years. But if anybody is pushing a little bit and if everybody is sort of saying to like the class that comes after them, you need to keep pushing.
00:32:27:33 - 00:32:51:14
Unknown
These are the things we're pushing for. Then change does happen. I mean, I've seen it at my own school where, you know, students have been agitating for change and the school is slowly changing. And, you know, it's going to take a while because, you know, everything is so ingrained. There's so much path dependance. Everything is everything is so wedded to us.
00:32:51:14 - 00:33:16:14
Unknown
News and World Report rankings or like all of these other things. Sort of get in the way. But when students push and faculty listens well, Professor capers, thank you so much for being on. This has been an absolute pleasure. Oh, thank you so much for having me. And and thank you for publishing the piece and came out great.
00:33:16:19 - 00:33:45:02
Unknown
And it seems to be getting lots of attention. So thank you.
00:33:45:07 - 00:34:04:16
Unknown
Thank you for listening to the experts. All the opinions discussed in this podcast are the opinion solely of the authors and myself, and do not reflect their institutions, nor do they reflect the opinions of the University of Minnesota, the University of Minnesota Law School, the Minnesota Law Review, Ranney. Other parties.