{"id":206,"date":"2015-10-14T14:05:39","date_gmt":"2015-10-14T18:05:39","guid":{"rendered":"https:\/\/www2.law.temple.edu\/advocacyis\/?post_type=lens_portfolio&p=206"},"modified":"2016-08-01T13:44:24","modified_gmt":"2016-08-01T17:44:24","slug":"robert-j-reinstein","status":"publish","type":"lens_portfolio","link":"https:\/\/www2.law.temple.edu\/advocacyis\/portfolio\/robert-j-reinstein\/","title":{"rendered":"Robert J. Reinstein"},"content":{"rendered":"

Bob Reinstein pauses thoughtfully, at once reflective and analytical as he frames his next remarks. It\u2019s 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.<\/p>\n

\u201cAdvocacy is, of course, advancing a client\u2019s interest,\u201d he says. \u201cBut it can also be persuasiveness, moving the law, and trying to use law as an instrument of social change \u2013 using the legal system to achieve political, economic, or social justice.\u201d<\/p>\n

As a young civil rights lawyer with the NAACP, Reinstein\u2019s 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.<\/p>\n

One such opportunity stands out. \u201cI represented Senator Mike Gravel in the Pentagon Papers case, and his case was ultimately decided by the Supreme Court,\u201d Reinstein recalls. \u201cWe 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.\u201d<\/p>\n

Useful scholarship provides [judges and lawyers] with new ideas, new historical research. It illuminates sections of the law that haven\u2019t had much light. I\u2019m an advocate in that sense.<\/p><\/blockquote>\n

Reinstein remains an authoritative voice on legal history. In fact, last June the Supreme Court (both the majority and dissent) cited and quoted<\/a> from his scholarship on the President\u2019s power to recognize foreign states extensively in Zivitofsky v. Kerry, an outcome he modestly calls a \u201cfluke.\u201d \u201cIt\u2019s really arrogant to think that any individual\u2019s scholarship will have an impact on the development of the law,\u201d he says. \u201cIt\u2019s not that it doesn\u2019t happen, but it\u2019s 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.\u201d<\/p>\n

While personal interest is one reason for Reinstein\u2019s enduring commitment to scholarship (he finds the intellectual challenge \u201csatisfying\u201d), he believes it has a role to play in advocacy as well.<\/p>\n

\u201cOur audience is not just fellow scholars. We have an obligation to judges and practicing lawyers to do scholarship,\u201d he remarks. \u201cUseful scholarship provides them with new ideas, new historical research. It illuminates sections of the law that haven\u2019t had much light. I\u2019m an advocate in that sense.\u201d<\/p>\n

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. \u201cScholars have to be more objective and more honest,\u201d he says.<\/p>\n

It\u2019s that honesty that Reinstein sees as the hallmark of legal scholarship, and its unique contribution to the judiciary and the bar. \u201cIntellectual honesty is what gives good scholarship its persuasive power,\u201d he remarks. \u201cThat\u2019s the difference \u2013 if I have a client with a weak case, I\u2019m 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.\u201d<\/p>\n

\u201cAdvocacy is, of course, advancing a client\u2019s interest,\u201d he says. \u201cBut it can also be persuasiveness, moving the law, and trying to use law as an instrument of social change.”<\/p><\/blockquote>\n

Reinstein points, again, to the two articles cited in Zivitofsky. \u201cThis was an area that I became very interested in after writing a long piece \u2013 The Limits of Executive Power \u2013 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 \u2013 the recognition power \u2013 that didn\u2019t fit in my analysis. I got it wrong in that article, and my further research revealed fascinating legal history.\u201d Scholarship, in this way, can move the law \u2013 one of Reinstein\u2019s definitions of advocacy \u2013 by recovering, and telling, its historical origins and developments.<\/p>\n

These days, Reinstein is working as an advocate in a different sense. \u201cRight now, I\u2019m writing an article on a theory about the restriction of federal power that\u2019s becoming popular, but which I believe is fundamentally wrong,\u201d he explains. \u201cThis is absolutely an advocacy piece even though I\u2019m trying to be as objective as possible.\u201d<\/p>\n

In the end, Reinstein reflects, \u201cScholarship is very much like art and music. Most doesn\u2019t last, but it does enrich the culture. It\u2019s effective when the people doing it offer their very best, and important ideas emerge that have a bigger impact.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"

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