Bob Reinstein pauses thoughtfully, at once reflective and analytical as he frames his next remarks. It’s a posture that seems borne of longstanding habit, entirely befitting someone whose career as a constitutional law scholar and civil rights lawyer has spanned decades.
“Advocacy is, of course, advancing a client’s interest,” he says. “But it can also be persuasiveness, moving the law, and trying to use law as an instrument of social change – using the legal system to achieve political, economic, or social justice.”
As a young civil rights lawyer with the NAACP, Reinstein’s primary focus was on using the legal system to remedy discriminatory conduct against his clients, and on trying to move the law itself. It was an era of sweeping social change and there were a lot of unanswered questions about the civil rights statutes, what they meant, and how they should be applied. But even then, he says, scholarship was an important component of his work. In addition to writing about the open civil rights issues he saw, Reinstein began to conduct historical legal research when the opportunity came up.
One such opportunity stands out. “I represented Senator Mike Gravel in the Pentagon Papers case, and his case was ultimately decided by the Supreme Court,” Reinstein recalls. “We had to research legal history on the Speech or Debate Clause, which was an obscure and rarely litigated provision in the Constitution. As a result of our research for the case, we ended up publishing a leading law review article on the issue of legislative privilege.”
Useful scholarship provides [judges and lawyers] with new ideas, new historical research. It illuminates sections of the law that haven’t had much light. I’m an advocate in that sense.
Reinstein remains an authoritative voice on legal history. In fact, last June the Supreme Court (both the majority and dissent) cited and quoted from his scholarship on the President’s power to recognize foreign states extensively in Zivitofsky v. Kerry, an outcome he modestly calls a “fluke.” “It’s really arrogant to think that any individual’s scholarship will have an impact on the development of the law,” he says. “It’s not that it doesn’t happen, but it’s a fluke when it does. This was an area that very few people had studied, and there was this case that was just bouncing around and who knew if it was ever going to be decided by the Supreme Court. I thought this was an opportunity both to try to find solutions to a difficult issue that conventional wisdom said was not difficult, and to pursue a personal interest in which doctrinal issues merged with legal history.”
While personal interest is one reason for Reinstein’s enduring commitment to scholarship (he finds the intellectual challenge “satisfying”), he believes it has a role to play in advocacy as well.
“Our audience is not just fellow scholars. We have an obligation to judges and practicing lawyers to do scholarship,” he remarks. “Useful scholarship provides them with new ideas, new historical research. It illuminates sections of the law that haven’t had much light. I’m an advocate in that sense.”
Reinstein pauses here, returning to his contemplative pose. Scholarship is different than representing a client, he acknowledges. The purest form of scholarship is impartial, rather than persuasive. Whereas briefs are written with the goal of obtaining a certain result, scholars should not be concerned with how a court might ultimately decide a case. “Scholars have to be more objective and more honest,” he says.
It’s that honesty that Reinstein sees as the hallmark of legal scholarship, and its unique contribution to the judiciary and the bar. “Intellectual honesty is what gives good scholarship its persuasive power,” he remarks. “That’s the difference – if I have a client with a weak case, I’m still going to advocate as forcefully as possible on his or her behalf. But scholarship is different because it requires intellectual honesty. Your client is the idea or the issue itself.”
“Advocacy is, of course, advancing a client’s interest,” he says. “But it can also be persuasiveness, moving the law, and trying to use law as an instrument of social change.”
Reinstein points, again, to the two articles cited in Zivitofsky. “This was an area that I became very interested in after writing a long piece – The Limits of Executive Power – that explored the relationship of English law and the English civil wars, battles between Parliament and the King, and how that affected the American Constitution, the separation of powers, and creation of the presidency. I discovered this anomalous power – the recognition power – that didn’t fit in my analysis. I got it wrong in that article, and my further research revealed fascinating legal history.” Scholarship, in this way, can move the law – one of Reinstein’s definitions of advocacy – by recovering, and telling, its historical origins and developments.
These days, Reinstein is working as an advocate in a different sense. “Right now, I’m writing an article on a theory about the restriction of federal power that’s becoming popular, but which I believe is fundamentally wrong,” he explains. “This is absolutely an advocacy piece even though I’m trying to be as objective as possible.”
In the end, Reinstein reflects, “Scholarship is very much like art and music. Most doesn’t last, but it does enrich the culture. It’s effective when the people doing it offer their very best, and important ideas emerge that have a bigger impact.”