by David Garrow
Then two or three editors arrived, and Harris walked away. Platt told David Ellen, “If people aren’t going to do their work, I can’t do mine,” but the fracas was over. Then a few days later, Obama approached Platt. “What do you say we go out back and chat?” Barack “had never shown any particular interest in chatting with me” before, and Carol thought, “This is going to be interesting,” as they went to Gannett House’s back steps, which faced away from the law school. “How are things going?” Barack asked. Carol said fine. “You catch more flies with honey than with vinegar,” Barack remarked, and Carol replied, “Yes, but how do you get people to do their work?” Barack’s response sounded a familiar theme: “Why do you care? Why sweat it?” he told her. “It just struck me as so cynical,” and Barack’s demeanor seemed infinitely distant. “I’ve never met anyone who was more impenetrable,” Platt explained. Obama was “one of the most opaque people I’ve ever met.”54
One morning in early March, Michelle Robinson phoned Barack from Chicago. Her father Fraser, who recently had had kidney surgery, had collapsed on his way to work and was dead at age fifty-five. Barack quickly flew to Chicago, missing BLSA’s annual spring conference, during which Derrick Bell stunned the crowd by announcing he had accepted an appointment at New York University’s law school. Once Barack returned to Cambridge, he wrote Bell a fascinatingly odd thank-you note, voicing disappointment at Bell’s upcoming departure from Harvard. “Although my general feeling is that the loss will be Harvard’s, and not yours, I do worry that nobody will be able to fill the role of ‘Harvard’s conscience’ that you’ve served these years and that the educational experience of all students will be impoverished by your absence.” Then Barack’s note became even more fascinating:
I may have mentioned this to you before, but it was your presence here that in large part brought me to Harvard in the first place; in reading your treatise the year before I enrolled, I was inspired with the belief that at Harvard, I would meet people like yourself who had a commitment to the struggle for equality and the experience and erudition to translate broad goals into concrete practice. And for all the good fortune I’ve experienced at Harvard, my single regret is that I did not have the opportunity to take a class from you or work with you more closely. Nevertheless, I doubt that I could have maintained my moral compass over the past three years had I not had you there, speaking out and challenging the conventions that we all have a tendency to take for granted.
I’ve tended to take a backseat on some of the student activities surrounding diversity this year, in part because of my position at the Review, in part because of a desire to let the excellent student leadership that has emerged take the lead. Still, I will be working to support any efforts that the Coalition or BLSA plan for the coming months to both bring you back here and bring in more of the folks that need to be here. I assume that the student leaders are in contact with you to find out your feelings on the matter at this stage, but I hope that in the next two months you might find the time to have lunch with me and share some of your reflections on what has happened and what needs to happen in the future.
Years later, Bell would not remember a lunch date taking place, and he did not recall any contact with Barack, except for the younger man’s warm introductory remarks outside the Hark eleven months earlier. A few weeks earlier, a local Superior Court judge had dismissed the faculty diversity lawsuit filed by the Coalition for Civil Rights on the grounds that the law students lacked legal standing to sue, but Barack’s more than two years of distance from the protest efforts was of a piece with his up-till-now lack of interest in developing any relationship with Bell or Randall Kennedy, in the way that he had done with David Rosenberg, Larry Tribe, Chris Edley, and now, in his final semester before graduation, Roberto Mangabeira Unger.55
Roberto Unger’s intellectual breadth and depth was truly astonishing, even at Harvard. In 1987 alone, Cambridge University Press had published a trio of books written by Unger, and their titles—Social Theory: Its Situation and Its Task, False Necessity: Anti-Necessitarian Social Theory in the Service of Radical Democracy, and Plasticity into Power: Comparative Historical Studies in the Institutional Conditions of Economic and Military Success—demonstrate Unger’s range as a critical social theorist. Barack and Rob had taken Jurisprudence with Unger a year earlier, and in spring 1991, they eagerly enrolled in his small and expressly political Reinventing Democracy. Unger said the course would have three themes: “the remaking of certain central institutions,” both governmental and economic; the relationship of that “program of social invention to theories of social change”; and “the significance of this program for the conception and allocation of legal rights.” Unger said his emphasis would be “programmatic rather than analytic, critical, or explanatory,” and that his overarching purpose was “to explore the long-term options open to progressive liberals and democratic socialists in the North-Atlantic democracies.”
Rob remembered that “Barack and I loved” Reinventing Democracy as “a terrific class” taught by “a powerful thinker” who was “intellectually far deeper” than any other professor. Unger “would take you step by step through an argument about the nature of law, the nature of society,” speaking in “these beautifully formed sentences that were almost Euclidian in their clarity.” Steve Ganis, a 2L, felt similarly. Reinventing Democracy was “a phenomenal course” taught by an “incredibly erudite” and “very powerful teacher” who was capable of “speaking in paragraphs.” Punahou graduate Ian Haney López, a 3L, found Unger “very impressive to listen to,” especially since Unger spoke entirely without notes throughout the two-hour, twice-a-week classes. Rob thought Unger was “profound” and “just absolutely brilliant,” although his “hyperanalytical” and “heavy post-Marxist style” made many students nervous and uncomfortable.
Halfway into the semester, two students spoke up and complained that while Unger preached about deconstructing hierarchies, his actual classroom practice placed students in a totally hierarchical relationship to himself. As Steve Ganis remembered, Unger said they made a “very good point,” and he offered to let students teach several class sessions if they were willing to do the work. Then “Obama spoke and said, ‘Well, I think I speak for a silent majority of us here who were okay with the way that the class was going. It’s unconventional, it’s not what we’re used to,’” because Unger lectured at great length rather than questioning students Socratically. “I think we’d like to keep going as this was. We thought that we knew what we were signing up for.” Ganis recalled too that Obama was among a handful of students who asked the most questions, and at times “he drew on his experience from being an organizer,” because in Unger’s class Barack “was the only guy who really had significant experience with the disempowered.”
Unger remembered that his intent with Reinventing Democracy was “to develop an argument as forcefully as I can and then to engage the students in confrontation about the argument” in the manner of a “zealot addressing the skeptics.” Unger recalled that another talkative student that semester, “who always chimed in with Obama,” was George Papandreou, a future prime minister of Greece. Obama “was very engaged,” “appreciative of ideas but cautious about them,” and “conventionally smart.” Steve Ganis believed that “Obama was very impressed by Unger,” and Rob recalled that he and Barack chatted “with Unger for long periods of time.” Unger remembered Barack as someone who combined “a cheerful, impersonal friendliness with an inner distance” and whose “guarded personality” made him seem “somewhat enigmatic and distant.”
Reflecting on Barack’s time at Harvard, Gerry Frug emphasized how “the fact that he took two courses from Roberto is a statement about what he was like as a student. That’s just a statement of where your intellect is.” Beyond Reinventing Democracy, Barack and Rob’s focus that spring was on completing the lengthy paper they owed Martha Minow. In the end, they gave Minow only two of the planned topical chapters in their grand book outline.
“Plant Closings: Creative Destruction and the Viability of the Regulated Market” was a hefty 103 pages, and although the well-written paper was—and is—substantively dense and demanding, it unquestionably represented an analytical and political capstone of Barack and Rob’s three years of intellectually intense policy debates.
They might not have matched Roberto Unger’s analytical depth, but the breadth of their sources and citations was impressive. The first paragraph included references to Paul Kennedy’s The Rise and Fall of the Great Powers (1987), Allan Bloom’s The Closing of the American Mind (1987), Samuel Bowles et al.’s Beyond the Waste Land: A Democratic Alternative to Economic Decline (1983), and Barbara Ehrenreich’s The Worst Years of Our Lives (1990). Rob’s background as an economist was evident in their third paragraph’s mention of “a Kondratiev business cycle,” but their policy argument was straightforward:
The Reagan administration added more to the national debt than all previous administrations combined. The gullibility, or at least the wishful thinking, of the American people reached unprecedented heights as they embraced Ronald Reagan’s contradictory promises of more military spending, lower taxes, and a balanced budget. The eighties recovery benefited the “few” far more than the “many.” Distribution of income and wealth became dramatically more skewed.
They went on to cite “the virtual elimination of the progressivity of federal income taxes” as another factor in “the unsettling mixture of economic successes and failures of the eighties.” As they noted in their outline, “the issue of plant closings highlights the tension that arises within our current institutional framework between the desirability of community stability and the need for capital and labor mobility.” Promising a “broader discussion of the evolutionary nature of capitalism,” the paper examined plant closings from neoclassical, Keynesian, and Austrian school economic perspectives. “True experimentalism,” they wrote, “demands . . . that we experiment with the legal institutions that shape the economy,” and Rob later explained that “experimentalism” connoted the “blend of Schumpeter and Popperian epistemology with a progressive slant” that they deployed in their analysis. “The quest is to develop guidelines on how politically progressive movements can use the market mechanism to promote social goals,” they wrote.
Some of their analysis rebutted everything Frank Lumpkin and Jerry Kellman had once championed. “Those who myopically focus upon the destruction entailed by the closing of a plant avert their gaze from the creative half of the story. Plant closings occur because undesired products and outmoded techniques are driven from the market by innovative competitors.” They decried “the impoverished, feudal world we would inhabit if we lacked resource mobility” yet acknowledged that “the unfettered market may result in an ‘over-supply’ of plant closings.”
A clear stylistic shift from one coauthor to the other appeared at the top of page 30. “Capitalism cannot function unless peopled by folks who are honest and fair in their dealings, avoid overreaching, lend a helping hand when it’s reasonable to do so, and follow the rules,” they—or Barack in particular—wishfully imagined. After twice invoking “moral integument,” a little-used phrase first coined in an 1892 magazine essay, they stated that “our moral well-being demands some sense of connection to community.” They admitted that “the market does not provide a forum in which an appropriate value might be attributed to community stability” and recognized that “what starts as a snowball of unemployment ends as an avalanche of economic chaos and social despair” and can “cause a permanent capital and labor flight from a region.”
Twice quoting Roberto Unger regarding the “non-innovative, risk-averse managerial class,” they emphasized that an “overemphasis on the short-run bottom line is probably America’s most serious systematic business problem,” because in corporations “flatterers and artificers rise to the top. . . . As bold experimentation fades from American boards, others who combine daring investment philosophies with long-term agendas will surpass the United States in technological and organizational leadership.” Their use of a quotation from law school dean Robert Clark seemed to belie any loyalty to the protest movement that had demonized him. Yet “there is no reason to believe that the legal status quo is the best in terms of either efficiency or fairness, and it behooves us as a society to continue the effort at improvement and innovation in the legal realm as well as in the realm of the purely economic.”
Compared with mass production, “craft technologies have the positive externality of maintaining community.” A reference to Youngstown led them to observe that “systemic governmental subsidies to large corporations tend to undermine community itself.” Criticizing Joseph Schumpeter’s celebration of entrepreneurs, “we reject this ‘great man’ theory of economic development.” Contending that “a dual experimentalism of both economic and legal institutions is necessary,” they moved to their twenty-page conclusion and endorsed legislation requiring advance notice of plant closings. Yet “the ultimate answer to plant closings . . . lies in making workers more flexible, and their human capital more transferable,” and thus “policy makers should seek ways to increase the capacity of workers to move from one employment to another.” Championing their theme that “experimentalism is the key to a healthy economy,” they called for “a proliferation of legal forms in which to organize production.” That would include ones that “allow for worker ownership and control,” and in situations like Youngstown, “where there was massive support for an experiment, the government should be ready to step in and provide an infrastructure as well as ensure fair dealing by the corporation that is departing.”
Barack and Rob’s lengthy chapter certainly expressed progressive if not redistributive values. “While Yuppies can afford the expensive frivolities provided by The Sharper Image, others receive insufficient nutrition to allow their minds to develop properly.” They proclaimed that “the political left should embrace markets as a weapon to wield in the best interests of the people,” and Barack revisited his summer 1988 trip to Europe in an unusual riff on supply and demand. “Suppose that on an impulse, I fly to Paris. Having arrived in Paris, I find comfortable accommodation near the Eiffel Tower and have a fine dinner on the Rue Monge. Almost magically, these pleasures await my arrival even prior to my own knowledge that I will pursue them.” Reiterating how markets “must be more consciously employed to serve the needs of the people,” they warned that “if the American economic debate continues along its current lines with the right celebrating the market and the left resisting, the left’s political marginalization will continue.”
One unusual passage seemed unlikely to come from Rob Fisher. “The first step to radical consciousness is to realize that the world could be different and that we have the power to make it so. There is a great deal of wisdom in this idea, but also great danger. The wisdom is that it carries us beyond our own individual experience of isolation,” something Barack had long known well. “I envision a jungle-gym made of ropes on which I once played” was another clear personal throwback, but after a citation to Gerry Frug, the paper ended by again underscoring how the Left must fight on the field that was inevitable. “The market is perfectly consistent with greater participation by workers in management, worker ownership, progressive income taxation, state subsidized child care, national health insurance, high inheritance taxes, etc. . . . It is even consistent with governmental ownership of banks.” Their orientation was political, not legal. “The battle is over what kind of market we will have, not whether we will have one. If the Left”—now for the first time capitalized—“does not come to this realization they will be relegated to occasional footnotes in future histories—and properly so.”56
Sometime in April, Barack and Rob completed their second, even lengthier book chapter. “Race and Rights Rhetoric” was 144 highly polished pages, seemingly all written in one consistent voice, and not that of a trained economist. “This chapter evaluates the utility of rights rhetoric . . . as a vehicle for
black liberation,” because the authors believed that such a focus “has impeded, rather than facilitated” the achievement of “black empowerment.” They observed that “it has become increasingly apparent that the strategies rooted in the Sixties have not led blacks to the promised land of genuine political, economic and social equality,” because once that decade was in the past, “political mobilization . . . ground to a halt as blacks became increasingly reliant on lawyers and professional civil rights leaders and organizations with only minimal institutional presence in local communities.”
Barack and Rob acknowledged how “racism against African Americans . . . continues to exist throughout American society,” which is “an admittedly racist culture.” Indeed, “race relations appear to have made a turn for the worse in recent years, with the growth of intolerance evident on both big city streets and ivy league campuses.” Their footnotes reflected a familiarity with well-known histories such as The Origins of the Civil Rights Movement, Bearing the Cross, and The FBI and Martin Luther King, Jr., and they wondered “whether liberty in America must be fundamentally redefined.” For example, “might we redefine ‘liberty’ under the due process clause to require government expenditures on enhancing the education black children receive in inner city schools,” because there was a “need to centralize public school financing to achieve redistribution on a state wide or national level.” Although “private property arrangements and resulting inequities in wealth and power do not devolve from divine providence,” it was inescapably true that Americans have “a continuing normative commitment to the ideals of individual freedom and mobility, values that extend far beyond the issue of race in the American mind. The depth of this commitment may be summarily dismissed as the unfounded optimism of the average American—I may not be Donald Trump now, but just you wait; if I don’t make it, my children will.”
