Is That Legal?

Yes, yes, of course, one of them was tenure. But it was the lesser of the two, because I was pretty cocky about tenure and never really doubted I'd get it. The bigger reason was location. I'm a New Jersey boy, and my wife grew up in Queens, and we had a brand new baby, and we were in Laramie, Wyoming—a couple thousand miles from the world we knew. We came to love Laramie deeply in the four years we were there, but I knew that if I wanted to stay in academia and leave Laramie, I was going to have to write my way out.

So I wrote. Fast. I wrote one article in my first summer (on race and gender discrimination in criminal jury selection), and then another in my second (on inconsistent criminal jury verdicts). I scored big with both pieces: the first was published in the Yale Law Journal; the second in the Harvard Law Review. As an employment strategy, my writing worked pretty well: here I am, very happy, at the University of North Carolina.

I remain proud of those first two big pieces, but I look back on them now and see a certain emptiness. Both grew from problems I'd encountered while briefing criminal appeals at the U.S. Attorney's Office. Both were situations in which the law as I found it made no sense to me. So both pieces were, in large measure, my efforts to explain that the law was all wrong, and that I had it figured out better. Oh yes, there was more than a dash of "look how smart I am!" to those two pieces. Not in their tone, I hope, but I can assure you that that's part of what was behind them. About a decade later, I still think I was onto something in both pieces (especially in the inconsistent verdicts piece), but despite their highbrow pedigrees, the articles have had about as noticeable an impact on the law as liposuction on a sumo wrestler. And that is probably as it should be, because I really didn't care a wink about whether the law should change. The problems I was addressing in both pieces were just intellectual puzzles for me. That's why they look a bit empty to me in retrospect.

Since around 1997 I have written mostly about the legal history of the Japanese American internment. Many of the pieces have been narrative histories drawn from research in primary sources; some have been more general policy pieces that use the internment as a backdrop. Right now I'm working on two new internment-related studies. One examines the methods the government developed for determining whether interned Japanese Americans were loyal or disloyal. The other looks at the roles played by lawyers in designing and implementing the government's detention program.

Why do I write now? As best I can tell, the reasons have to do with memory, and with trying to take the measure of the impact that injustice has had on human lives. I write because I am captivated by the story of how a humane government came to design such an inhumane policy, and by the many human stories that are intertwined with it. I want to transmit those stories, in as rich and as accurate a way as I can, to the future—to a time when there will be no internees left to tell the stories themselves. And naturally I want to do my little part in helping to see that such a thing never happens again.

So at the outset, I wrote to have fun and to advance my career. At this point in my life, I write to have fun and to tell stories about the law that I think are important, that outrage me, and that move me.

Looking back over this post, I see that it might look as though I've moved from writing-as-obligation to writing-as-fulfillment, from emptiness to happiness, and there's more than a grain of truth to that, but it's nowhere near that linear, or that simple. While I am more satisfied in my writing today than I was ten years ago, I'm also (by conventional measures) a good deal less successful: I haven't landed a piece in a very-top-tier law review in about seven years, and don't anticipate I'll do so anytime soon. As a white man (and a non-crit to boot) writing ethnic legal history, I am not exactly in one of academia's major growth industries. I see people with publication records no more accomplished than my own juggling handfuls of lateral offers and conference and symposium invitations, and lament the comparative silence of my telephone. Sometimes, I confess, I am gripped by envy, and lose sight of why I write what I write. In those jealous moments I ask myself why I couldn't have just kept writing the nifty constitutional criminal procedure stuff that got me my start.

A pointless question: I just couldn't. I admire enormously the people whose passion lies in those places, but mine doesn't. So I write where mine lie. And fortunately, as time goes on, the jealous moments seem to come less frequently.

UPDATE: Sally Greene explains why she writes here.