Beyond Weber: law and leadership in an institutionally fragile world.

• Author: Cuellar, Mariano-Florentino
• Position: Max Weber - 2017 Stanford Law Review Symposium; Raising the Bar: Lawyers and Leadership

Can one even imagine law without leadership? Walk inside a county courthouse anywhere in the country, and you will find more than jurors waiting to be empaneled or trial counsel holding juries rapt at attention. Down the hall, past judges adjudicating felony trials or contentious family disputes, is a presiding judge--the local trial court's leader, who may be called on to decide which judge is assigned to the family law division, which judge moves to a felony courtroom, and whether it is feasible for a judge who previously ruled on a suppression motion to adjudicate a subsequent one if the case is dismissed and then refiled. (1) Across town, judges reviewing the trial court decision on an appellate panel lead by writing path-breaking opinions that persuade jurists on the other side of a continent or by finding principled reasons to protect the trial court's discretion. Then there are the law schools these judges attended: Do they warmly welcome new students or run themselves smoothly without deans? No more so than any agency entrusted with legal power--under local, tribal, state, federal, or international law--runs itself. Even those law-related organizations replete with audacity struggle on their best days to eschew the familiar features of bureaucratic authority allocating power to chief judges, administrators, commissioners, secretaries, or other leaders in favor of the alluring--but consistently elusive--ideal of pure democracy, pure technocracy, or pure anything. (2)

Questions of leadership cast a long shadow, too, on another quintessentially law-related setting beyond the judiciary, agencies, and schools of law: the legislature. From a distance, aspects of the legislative process may seem to reflect an abhorrence for hierarchy. Yet leadership seems to figure prominently in the lawmaking process. Institutional rules distribute agenda-setting power unequally. (3) And it is difficult if not impossible to understand, let alone predict the outcome of, the legislative process without expecting to find (at least frequently and perhaps always) certain deeply motivated, and likely quite expert, lawmakers along with their staff corralling a coalition then straining to hold it together even if it takes duct tape. Handing those legislators the metaphorical pieces of tape are leaders of a different kind, persuading people and organizations to raise their voices and working to ensure that the legislature hears them. (4)

If we are to understand law and its place in society, then we must reflect on what leadership is--and how it is exercised--in a legal context. But this enterprise is a subtle one, depending not only on an understanding of law--related contexts such as courts, agencies, and civil society groups but also on an appreciation of concepts such as discretion, politics, "charisma," tradition, and institutions.

In what follows, I offer a variety of examples describing how leadership can affect law. I then advance three arguments about the likely relationship between law and leadership. First, the study of leadership in legal settings benefits from an understanding of the tangled relationships between discretion and leadership and between (nominally analytically distinct) projects focused on understanding the descriptive and prescriptive properties of leadership. Second, Max Weber's prescient analysis of authority in the modern bureaucratic state offers a powerful framework for understanding core features of leadership in law-related contexts. Finally, despite the value of Weber's approach to politics and authority, his account tends to underplay certain further aspects of leadership--how careful dealmaking can hold together fragile coalitions, for example, or how leaders trusted by their audiences can coax those audiences to reimagine the very nature of their interests. Important as it is to understand Weber's indispensable triad of bureaucratic authority, tradition, and charisma, these additional elements convey a more telling, dynamic story describing how leaders and law influence each other, and therefore society, in a world of institutions that depend on leadership to function.

Law, Leadership, and Weber's Triad

On a frigid January day in 1961, Chief Justice Earl Warren administered the oath of office to President John F. Kennedy. (5) In his short inaugural address, President Kennedy expressed certain aspirations quite familiar to policymakers and the public. Brimming with allusions to generational change against the backdrop of a decades-long Cold War touching almost every aspect of geopolitics, the speech also called for a "world of law, where the strong are just[,] ... the weak secure[,] and the peace preserved." (6) These aspirations were familiar because, among sophisticated observers and laypeople alike, sustained conversations about law and legal institutions in modern societies routinely turn to normative expectations about how law should be interpreted or implemented, how to ensure that it is intelligible to the public, or what its relationship should be to particular conceptions of justice.

Twenty-eight years earlier, President Franklin Roosevelt's inaugural address conveyed to a tense country that "fear itself' was the only thing the public had to fear. (7) The President's own apprehensions at the time are revealing. His concern was the fragility of institutions--the very institutions to which law-related aspirations are entrusted. "[I]f [I] prove[] a bad president," he reportedly observed to an aide, "[I] w[ill] also likely ... prove the last president." (8) Whether or not President Roosevelt's wry comment accurately captured the country's condition at the time, what he instinctively grasped then and later was how profoundly institutions depend not only on shared aspiration but also on specific people making judgments constrained by their environments. (9) Subject to a variety of social and economic pressures, individuals exercising leadership inside and outside public institutions prove critical to realizing any robust normative vision associated with the rule of law. Through these individuals' actions, courts, legislatures, agencies, and civil society groups--in different ways--give meaning to legal concepts, adapt to changing circumstances or local conditions, and defend the integrity of institutions.

As leadership in legal settings might plausibly be taken to mean the exercise of influence over the people and processes shaping law in society, the concept must encompass creative forms of expression that mobilize society around shared legal ideals or concerns, as well as compelling examples or even acts of forgiveness undertaken by pioneers in law-related roles and civil society. Compelling examples are as wide-ranging as the substance of law itself. They include Nelson Mandela's nearly ten thousand days in prison and subsequent role in reforging his country's constitutional order, (10) Judge Mary Schroeder's authorship of the first Arizona law barring sex-based employment discrimination, (11) Judge Mildred Lillie's pioneering career and service on the state bench, (12) and Judge Constance Baker Motley's groundbreaking career. (13) Equally relevant are Representative Emanuel Celler's persistent effort to forge a new immigration system for the United States in the mid-1960s, (14) Gifford Pinchot's machinations to forge the U.S. Fire Service, (15) and the careful planning and litigation undertaken by lawyers challenging firearms regulations in District of Columbia v. Heller. (16)

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