Page 4 - November December CBA Report

President’s Brief
President’s Brief
Why the Rule of Law
Depends on Good Faith
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 under-
lying 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 Educa-
tion; 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 exer-
cised 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 inves-
tigations equated integration with communism. Duly adopted
“Good faith and value-based
norms make law and society
work as much as rules enforced
by compulsion.”
4 THE REPORT | November/December 2025 | CincyBar.org
By Alan Abes
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 consis-
tent 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.