We undermine law when we undermine our values.

As our profession emphasizes the Rule of Law, it is not always clear that the speaker and the listener mean the same thing. Most listeners at least perceive the concept of doing what the law requires and refraining from what it prohibits, subject to state enforcement. Meaningful conversations, however, only begin there.

Good faith and value-based norms make law and society work as much as rules enforced by compulsion. Legal process alone is insufficient. The process must be used consistently with its underlying values, supplemented by norms that fill the spaces where law does not necessarily control how we treat institutions or each other. We must maintain the discipline to do so, even when doing otherwise would advance our preferred positions. 

Any era of our nation’s history provides numerous examples. A recent book, Spell Freedom by Elaine Weiss, illustrates the point through the Civil Rights Movement of the mid-20th Century. In part, the book traces where the law was clear, but actors resisting integration and equality defied the law deliberately. They refused to integrate schools in compliance with Brown v. Board of Education; refused to register Blacks to vote, or jailed or fired them for trying; refused to seat Black elected officials; abetted vigilantes; and manufactured charges and evidence against those who exercised constitutional rights, or committed violence against them and the journalists who covered them. 

This litany of abuses chronicles the willful disregard of known law. In reaction, defiance of Brown led to one of the U.S. Supreme Court’s strongest defenses of law in Cooper v. Aaron, a per curiam sledgehammer to the nullification of constitutional rights. Even then, without full good faith compliance, resistance persisted.

Just as instructive are the instances described in the book where the color of legal process masked the breakdown of norms and values that failed the Rule of Law entirely. Government investigations equated integration with communism. Duly adopted laws banned NAACP membership. Injunctions issued ostensibly for public safety barred three or more people from discussing racial issues. Public schools closed to avoid integration. Literacy tests and poll taxes prevented voter registration. Prosecutorial discretion erased crimes motivated by racism. Gerrymandering diffused Black voting power.

Each of these measures purported to follow legal process. Each thus carried the veneer of legitimacy. None, however, were consistent with the Rule of Law. They betrayed the values supporting the exercise of lawful power. So did Plessy, the decision undone by Brown.

There are lessons here. The Civil Rights Movement responded actively, relying on a strong value system in ways state-sanctioned power did not. The movement’s insistence on free speech and assembly and its use of public and self-education, service, nonviolence, sacrifice, faith, and perseverance not only moved legal process in a better direction, but changed its implementing norms throughout society.

All generations have similar duties to respond to their own challenges. But we face growing obstacles to our capacity to exercise values in a similar way, some unavoidable and others self-imposed. We undermine the capacity to exercise our values when we do not study civics or humanities; when we erode academic freedom and treat universities solely as trade schools; when we isolate on screens or in routines that preclude public engagement; when we disconnect from thought in favor of machines; when we disregard experience, expertise, scientific method, and objectivity; when we allow independent journalism to fade away. And especially when facts are negotiable. 

The Rule of Law depends on whether we, as a people, insist on good faith adherence to our core values and the mechanisms allowing their thoughtful examination.

Alan Abes is a partner at Dinsmore and the 2025-2026 CBA president.