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The Vision Project

Finding Hope in Human Enterprise

Editor’s Note: In this BC Law Magazine “Vision Project” series, we are engaged in a lengthy discussion with Boston College Law School faculty about where the Covid-19 pandemic and its attendant medical, economic, racial, and political consequences may lead us. As New York Times op-ed columnist Timothy Egan so eloquently put it recently, “Every crisis opens a course to the unknown. In an eye-blink, the impossible becomes possible. History in a sprint can mean a dark, lasting turn for the worse, or a new day of enlightened public policy.” There are warnings and worries in these professors’ views, but there are also farsighted ideas and strategies for crafting a better future, a more just society, and a world in which each and every human being is equal under the law.


PROFESSOR PAUL TREMBLAY

Professor Tremblay directs the Community Enterprise Clinic, one of Boston College Law School’s transactional courses in which students represent low- and moderate-income entrepreneurs, small businesses, and nonprofit organizations. He is also involved in matters of professional ethics, interdisciplinary collaboration, and legal services for the poor and serves as co-chair of the Boston Bar Association Ethics Committee.


Tremblay SquareWhat has the coronavirus pandemic revealed about the strengths and weaknesses of the rule of law and the systems and institutions that support it? The coronavirus has exposed both impressive strengths and scary weaknesses of the institutions that undergird our justice systems. My observations arise both from my role as a transactional—that is, not a litigation—counselor, and as a participant in the world of attorney ethical duties. My clinic’s small business and startup clients have thus far survived the crisis in remarkable (and, to me, rather surprising) ways, both because of the richness of the informal systems that support and nurture their work, and the dedicated responses of the federal, state, and local officials through financial support opportunities and similar aid. I have been impressed with the resilience of the local street-level economies, and with the courage of our clients doing their best to sustain their businesses.

I have also been impressed with how creative and energetic the legal community has been, while mastering technologies the practitioners hardly knew at all and enduring working conditions that will try anyone’s soul. The wealth of available resources lawyers have been sharing about legal developments, advisory strategies, and substantive analysis has been pretty remarkable. The community has been looking after one another in heart-warming ways.

The frightening weaknesses exposed by the coronavirus are the too-obvious ones—mostly connected to the unconscionably poor or absent leadership in Washington, but aggravated, in a connected way, by the politicization of the underlying science. My practice and teaching permit me no expertise on this topic, as I know less than the average news consumer about the specifics of the debates, but it is difficult to imagine a sustainable, shared respect for the rule of law if segments of the populace are encouraged to believe—and then do believe, earnestly—that guidance from medical experts should be ignored, rejected, and spurned.

The other serious deficiency in our ostensibly egalitarian system of justice exposed painfully by the pandemic is the reality that, our lofty rhetoric notwithstanding, the United States’ economic and political regimes are infected with stubborn, deep-seated biases in favor of those with privilege.

What short- and long-term opportunities do you see arising from the pandemic for improving how we define and deliver justice? There are indeed both short-term and, one hopes, long-term opportunities to enhance our justice mission. We have seen some laudable short-term responses already. The humanitarian, charitable, and nonprofit enterprises among us have responded with energy and compassion to address the health and safety needs of the most vulnerable populations. Campaigns and initiatives have emerged in many sectors, with collaboration and creativity. Courts and governments have responded with eviction and debt-collection moratoriums and similar measures to protect the most financially weakened among us. The reality that those who fail to pay their bills are not irresponsible or cavalier deadbeats is more readily understood than it may have been in the past.

And that’s where the long-term opportunities lie. In Massachusetts, for example, the opportunity for a local community to experiment with rent control is now ready to survive a legislative vote.  The importance of small businesses to our neighborhood economies has seldom been clearer, so some of the legal and bureaucratic complexities faced by startup entrepreneurs might be open to reconsideration and simplification. In my students’ work with startup founders, we are baffled by how challenging it is to ensure that new businesses have all of their compliance duties covered. The crisis, and its disruptive effect on neighborhood businesses, might lead legislators and government officials to be more receptive to sensible arguments for simplicity.

Here’s one further (perhaps naïve) source for some hopefulness. The pandemic has highlighted the racial wealth gap, which is unconscionably wide. Startup business owners need access to capital, mostly financial but also social, to have any chance of success, and black entrepreneurs lag on both fronts, courtesy of centuries of institutionalized racism. The realities of the pandemic, alongside the resurgence of the Black Lives Matter campaigns for racial justice, might lead to some incremental improvements in this area.

And, on an admittedly far more pedestrian note but one that interests me a lot, the pandemic has offered the regulators of lawyers, and in particular those who admit new lawyers to practice, the opportunity to experiment with the idea that law students who graduate from accredited law schools are competent to practice, and that the bar exam is an expensive, distracting ritual which tells us little, if anything, about that competence question, and whose costs far exceed its benefits. It appears that a couple of states will permit graduates to become lawyers without a bar exam, and we will then have a non-scientific but anecdotal control group to observe.

What is your vision for a post-pandemic world: What policies and plans would you recommend to guide us toward building and sustaining a stronger and more just society? We will never achieve a stronger and more just society until we as members of a shared community can agree to accept facts as facts, and respectable sciences (physical and social) as reliable baselines on which to craft policy. It is not easy to imagine how we might achieve that end. The most discouraging development in recent years is the surprising success that the powerful have had to simply deny truth and documented facts, and to have that denial believed by those who wish for (and, often, will benefit by) the alternate reality. Oddly, the horrific consequences of the pandemic might make a small difference, as the sicknesses and deaths of our loved ones are as real as it gets.

In a more just post-pandemic world, health care will be available for everyone. Again, the ravaging of families has reminded us all of the importance of access to medical care even if one has little money. Arguments for a fairer health-care delivery system might find more welcoming audiences.

In a more just post-pandemic world, we will all admit, accept, and acknowledge our deep implicit biases about race, gender, and sexual orientation, and we will explicitly take those into account as we support and implement our laws and regulations. There will be no just society without accounting for privilege, and overcoming the many benefits that flow from privilege.

Read all faculty Vision Project interviews here.

 

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