Judge James C. Francis IV interviews alumna Michelle Adams ‘89, who was his Judicial Law Clerk in the US District Court, Southern District of New York in 1989-90. Judge Francis served as a Distinguished Lecturer at CUNY Law from 2018 to 2020 and now serves as a director on the CUNY Law Foundation board.
Since graduating from CUNY School of Law, you’ve had quite a noteworthy career, culminating most recently in your appointment by President Biden to the Presidential Commission on the Supreme Court of the United States. Could you describe your career path?
I’ve had a fantastic career and some amazing opportunities. After I graduated from CUNY Law, I had an amazing opportunity to clerk for a fantastic magistrate judge. [Laughter] And that really set me on a path of thinking broadly about my career. The experience I had there was one that I treasure, and it provided me with the possibility of thinking broadly about the things I might do.
I was fortunate to move from there to the Legal Aid Society’s Civil Appeals and Law Reform Unit. I worked there for three years, primarily on one big housing discrimination case against the City of New York Housing Authority alleging de jure segregation. It was a massive case, I learned a lot, and I had a tremendous time there. Over the course of that experience, interacting with clients, and engaging in settlement negotiations, etc., I started thinking, “Wow, it would be great to have the opportunity to write about some of this.”
As I was thinking about writing, I happened to see Matthew Diller (now Dean of Fordham University School of Law), who was at the Legal Aid Society at the time, typing something on a typewriter (if you can believe it!) When I asked him what he was doing, he said applying to become a law professor. That made me realize it might be possible to be a law professor. Later, I saw an ad in the New York Times for a new fellowship at Harvard Law School intended to increase the number of law professors of color. I applied and became the school’s very first Charles Hamilton Houston Fellow. The Fellowship gave me the opportunity to take another year of law school, get an LLM, and write a paper that helped me start my career as a law professor.
From there, I had a phenomenal experience teaching a variety of subjects for over 10 years at Seton Hall Law School, including Civil Procedure, Torts, Constitutional Law, Federal Courts, Federal Civil Rights, and a Race class before Cardozo Law came calling. I shifted to Cardozo just before the Great Recession, where I’ve been teaching many of the same courses ever since.
What motivated you to go to law school in the first place?
The answer to that is one word: Dad. My father, Bernard Adams, Jr., was a criminal defense attorney in Detroit, Michigan. I grew up meeting his clients and going downtown to watch him do his thing. He was a huge influence on my life. From an early age, I wanted to go to law school and be a lawyer just as my father had.
Why CUNY? What attracted you to the law school in the first place, and why did you ultimately decide to attend?
I graduated from college in 1985, took a year off and worked as a paralegal right around the time that CUNY Law was just starting. I read about the school, and it just seemed like an incredibly exciting opportunity. I had a deep interest in public interest law–in part because of my father’s criminal defense practice–and I already lived in New York City. I thought, “This could be an amazing opportunity to get in on the ground floor of this brand-new law school dedicated to doing exactly what I wanted to do.”
What were your most memorable experiences in law school, whether classes, extracurricular activities, relationships, or other endeavors?
One of the things that was really meaningful to me was the opportunity I had to study with some great law professors. I remember Trial Advocacy with Abbe Smith, and Liberty, Equality, and Due Process with Victor Goode. I remember developing a relationship with Joyce McConnell, who later mentored me when I was transitioning into law teaching. I remember Dean Haywood Burns, too. He personally recommended me for the Harvard program which had a profound impact on my life. There was also this great sense of comradery among the students; that we were all in it together, the sensation that we could change the world and make it a better place. That is what I remember the most, the feeling of comradery, being in a new institution, and the fact that the professors truly cared about me and wanted me to succeed.
Present company excepted, who had the greatest influence on your career development?
Well, I don’t want to except the present company! But I would say number one, my father. As I’ve already mentioned, he was a lawyer. This was highly unusual for the time as there were very, very few black lawyers in the 1950s. He graduated from law school right around the time Brown v. Board of Education came down, which was an amazing accomplishment. Knowing that my father had become an attorney and that he was successful, gave me confidence that I could do it too. He was the single biggest influence on my career. But my time clerking with a certain magistrate judge had a big influence on me as well.
What guidance would you give to students who are considering a career in academia?
The single most important thing is to study hard and do as well as you can in law school. Law faculties are looking for potential colleagues who have thought deeply about the law, have the capacity for hard work, and have shown that they are interested in both teaching and scholarship. Evidence of law school success is really important.
The other part is writing. There’s so much emphasis on scholarship in connection with legal education that it’s important to do a piece of writing. I highly recommend writing a student note while in law school. If you are in practice, you should still try to write a piece of scholarship (I know that’s hard). Showing that you’re interested in the scholarly part of the job is so important because law faculty are looking for folks who do three things: scholarship, teaching, and service, and they want to see a track record of that.
I think another piece is looking for mentorship. When I was thinking about applying to the Harvard program, folks at CUNY Law really supported me–Dean Burns and Joyce McConnell were really important. Develop relationships with faculty members when you’re at law school. Talk to your mentors about their scholarly ideas. Consider becoming a research assistant. And then, of course, consider clerking. That’s also important because you develop a relationship with a judge and the possibility of mentorship is there. You also see the work that judges do and get a broad-based understanding of how the legal system works on a daily basis. There’s no substitute for seeing all the different kinds of cases that come across the transom. I would recommend all of these things to help guide a student thinking about a career in academia.
How would you characterize your teaching style? Are you Socratic, intimidating, structured, free-flowing?
It’s funny. The Socratic method has a really bad rep on the street! I think of myself as being very Socratic in my teaching style, but, over the years, I’ve really tried to do it in a way that’s very, very nurturing. I think the Socratic method is an ideal way to teach young lawyers because it involves everyone in the room in the conversation. I could write a lecture and then talk at students for an hour which is pretty boring. Or I could write the lecture in the form of questions and give the lecture via the students’ responses. That’s the Socratic method and it works. It emphasizes thinking through the cases and the doctrine in a structured way, but it gets the students deeply involved in the process. I think of the analogy of the orchestra: I’m the conductor, but the students are the cellos and the various instruments in the orchestra. When you get it going right and you’ve developed some facility with it, I think you can make some beautiful music, which is how we learn the law. So, I would consider myself to be a Socratic professor, but my style is nurturing rather than intimidating (I hope).
How did your experience as a student at CUNY Law influence the way that you engage your students now?
Part of it is accessibility. My professors were very accessible, more than professors tend to be at other schools. That carried over to when I became a professor–I wanted to have that same level of accessibility and break down that sense of intimidation. I try to project that accessibility, whether it’s in office hours or after class. I think the other piece of it is that CUNY Law is a public school. One of the things about being in that environment is that it’s important not to make assumptions–not everyone has equal resources. And, of course, when students come to me and ask for thoughts about public interest lawyering, I try to mentor them to think about public interest broadly. Often, you’ll get pushback from students. If they’re interested in criminal law, I’ll ask: “Have you thought about being a prosecutor?” Many students will respond negatively. But then I’ll say, “Think about the kind of role you could play in that environment with the level of discretion that prosecutors have.” Or, think about how public interest can be part of a civil practice.” So, even if students don’t want to practice public interest law full time, they will consider how to bring their training into a general civil practice. Lately, I’ve been talking to students about potentially running for public office as a public interest job, and how important it is to reinvigorate our democracy. I think all of the values that I soaked up at CUNY Law come through in the way I teach and mentor my students.
As you know from your days as a law clerk, judges sometimes experience a tension between their personal inclinations and how they believe settled law might require them to rule. Do you experience any such tensions in teaching or scholarship?
Oh yes, certainly on the teaching side because of the way that I view my job. I don’t view my job as “let’s sit down, and I’ll tell my students what Michelle thinks about constitutional law.” The class is not Michelle’s thoughts on constitutional law. The class is called Constitutional Law. There are many times where I might think that a case is wrongly decided, but I don’t lead with that because I view my job as training lawyers how to solve problems. The basic thing that lawyers do is problem solve. We teach young lawyers how to think about the law, how to break cases down, how to develop legal arguments, how to read Supreme Court cases. These are all technical skills that I think I’m pretty good at transmitting to students. If I were to foreground what my thoughts are at the beginning, that wouldn’t facilitate that process.
This isn’t to say I never tell my students what I think. I’ll often teach a case or an area of law and then say: “stepping out of role now, here’s why I think this case was wrongly decided.” I find that that way students can “get” the doctrine and then have the benefit of my critical take on it. But at the end of the day, I think my views on the cases are secondary. My first job is getting the students to understand what the arguments are, what the Court decided and how the case fits in (or doesn’t) with a particular line of cases. I think of myself as someone who is going to provide students with the tools they need to do the job. I also recognize that there are going to be a wide range of thoughts, inclinations, and ideologies in the room, and I want to bring everybody with me. I want to keep the conversation open, and I don’t want to shut it down. So, in the big required courses, there may be a tension between what I think and what I teach, but I think of my role from a broad perspective. It’s a little different in the race class that I teach. Because I write in that area, students are taking the class because they know me, and they know my backgrounds and expertise. So the race class has a bit of a different feel to it.
On the scholarship side, I feel less constrained because scholarship is personality-driven. My scholarship is what I care about. It is my intellectual property, so it’s less of an issue there. But, on the teaching side, I want to bring everybody along to a certain level. Once we’re there, then we can have our debate.
You’re a constitutional scholar. How would you characterize your philosophy of constitutional interpretation?
I love that question. I’m pretty old-fashioned. I’ll often tell my students that I’m a big proponent of folks like John Hart Ely and the role of judges as a force that shore up our democracy. We talk about the idea of “representation reinforcement” and deferring to the political process in many instances, even when it might be inconsistent with what the judge actually believes. So, my constitutional philosophy starts with the idea that our constitution is a framework for democratic government, and I believe it should be interpreted in that light. Judges should interpret the constitution to maximize the ability of the people to solve their disagreements–nonviolently–in the political process. But for this to happen, the political process itself has to be fair and open to all participants. Again, I look back to the Carolene Products footnote for the unusual and unique circumstances where courts shouldn’t defer, and that footnote talks a lot about protecting discrete and insular minorities, protecting against violations of Bill of Rights guarantees, and removing constraints on the political process. But, once we get to a place where the democracy is functioning, then “we the people” can actually get our needs met through our elected representatives. I think I really do take that old-school representation reinforcement approach to the Constitution.
Let me follow up on that. How does that manifest when you’re talking about interpreting the Constitution? Obviously, you’re deferring to the legislature, in this case the Founders, but how do you intuit what their intent was?
First, it depends on which Founder intent we’re talking about. There’s the Founder intent in 1789, and then there’s the Founder intent behind the Reconstruction amendments. I think we had a second founding after the Civil War, so we would have to look in many instances at the intent of the framers of the Reconstruction Amendments which came later in time. But constitutional interpretation can’t begin and end with founder intent. You start with the text of the Constitution, you look at legislative history, you look at the nature of the problem, and you remember that the constitution is a living document. I think for me if I were a judge, Founder intent would be a data point, but it wouldn’t be the beginning and the end of the constitutional question, in part, because it’s hard to ascertain what that intent was. Then you get into debates about whether you’re just talking about intent of the Founders, or are you talking about the intent of the framing generation, the original public understanding, etc. For me, one looks at all of that information, but I think you also look at it from the viewpoint of trying to open up the lanes of democracy. So, if you’re an unelected federal judge, I think you defer to the democratic process as much as you can. And when you can’t, the Carolene Products footnote comes in to provide some guidance.
You’re in the unique position of being a CUNY Law alum teaching at a different institution. From that perspective, what advice would you offer to CUNY’s administration or faculty?
It looks to me like CUNY’s doing pretty well. It’s attracting top-flight talent, such as yourself. Just the other day I got an email from Emery Celli Brinckerhoff–a boutique civil rights, civil liberties firm–and they had just hired two CUNY grads from the Class of 2020, and those are just plum positions. What that signaled to me is that CUNY Law has made significant inroads when it comes to public interest employers, including private employers who do a mix of civil litigation. So, I would say, keep up the good work!