Columbia Journal of Gender and Law124 34.1

RIGHT SCHOLARSHIP AND THE GODDESSES OF 
COMMERCIAL LAW

NATHALIE MARTIN*

INTRODUCTION

Sometimes scholarship is just scholarship. I am referring to the type of scholarship that 
is often written but barely read, the type written to impress someone or get a promotion 
rather than because there is a burning need or desire to say what needs to be said. Other 
times, scholarship flows from the heart, as a result of desire to share a discovery that could 
change the law, or to share a thought or series of thoughts that could change the world. 
I call this scholarship of the heart “right scholarship,” a phrase taken from the Buddhist 
concept of right livelihood. Right scholarship reflects real passions and concerns of the 
heart that permeate its author’s existence on an almost cellular level. This Essay examines 
examples of right scholarship in works of two commercial law “goddesses”: Jean Braucher 
and Elizabeth Warren.1 

© 2016 Martin. This is an open access article distributed under the terms of the Creative Commons Attribution 
License, which permits the user to copy, distribute, and transmit the work provided that the original author(s) 
and source are credited.

*  The author thanks her consumer law class, which helped her workshop this paper; the Columbia Journal 
of Gender and Law in general, and Madeline Kelsey Hopper in particular, for their fine editorial assistance; 
Ernesto Longa and Stewart Paley for their comments on an earlier draft of this paper; my assistant Cheryl 
Burbank for help with editing and researching; and finally, the University of New Mexico for its generous spirit 
and its support for all forms of research, traditional and nontraditional. This paper was originally written in 
connection with AALS, Panel at 2016 Annual Meeting of the Association of American Law Schools (AALS), 
on a panel sponsored by the Commercial Law Section entitled Women in Commercial Law, January 6, 2016, 
New York, New York. The program itself solicited pieces that comment on and highlight the works of Jean 
Braucher and Elizabeth Warren. I am grateful for the opportunity to participate.

1  Neither of these women has consented to being called a goddess and at least one might even be offended 
by the term. I do not intend to offend, as for me this is the highest compliment. A goddess is, among many 
other things, “a woman who is loved or admired very much by other people.” Goddess, Oxford Learner’s 
Dictionaries, http://www.oxfordlearnersdictionaries.com/us/definition/english/goddess [https://perma.
cc/87CW-U7ZC] (last visited Apr. 29, 2016). Here, I use the term mostly in the colloquial sense of a female 
person who has mastered a skill or life in general, but also whimsically, in reference to the goddesses of Eastern 
mysticism, such as in Hinduism. Of course there are many others in mythology, including Greek mythology. I 
by no means mean to offend the religious sensibilities of anyone, or suggest that there is more than one God, but 
only to demonstrate how Eastern philosophies, mythology, and religions from both the East and the West can 
inspire us to become more engaged scholars. I also by no means suggest that Professors Braucher and Warren 



Columbia Journal of Gender and Law 12534.1

This Essay combines many topics about which I am deeply passionate, including 
religion, sex, yoga philosophy, and the influential works of two women I admire greatly. 
Hopefully, this brief Essay does not try to do too much at the expense of all of these topics.2 
In Part I of this Essay, I describe the concept of right scholarship through various religious 
traditions and yoga philosophy’s principles for living known as the yamas. I then describe, 
through the works of young scholar Shari Motro, scholarship that has gone wrong. Finally, 
through the psychological concept of flow, I describe how we know when scholarship 
has gone right. In Part II, I provide some background information and brief excerpts from 
right scholarship written by the commercial law goddesses, both of whom were intensely 
passionate about their work. Their work is scholarship from the heart that has changed the 
world. 

I conclude this Essay with a few thoughts on what the rest of us legal scholars can 
take away from the work of the goddesses. One such takeaway is that we should not waste 
our valuable time. Every breath (and every word) counts. Though much legal scholarship 
makes little difference to the world, when we find our passion, we can make a difference. 
Using passages from the work of the goddesses as our muse, we can each find passion, 
flow, and meaning, and can develop the deep optimism that comes from believing legal 
scholarship can make a difference in the world. 

I. What is Right Scholarship?

I wonder how different the world would be if legal scholars lived by the following 
mantra:3 I will never again write about something I do not care about deeply. 

I also wonder what it would take for each of us to keep this promise, to ourselves, 
our schools, our students, and society. If we each took this mantra seriously, what would 
change for us and for others? How would our collective impact on the world change? How 
would our service to the world be enhanced? Finally, how fundamentally would our lives 
be enriched if we spent the time and effort to find out what we are passionate about? 

are the most influential female scholars in commercial law and consumer law, only that they are uniquely 
inspirational to young scholars wishing to produce work from the heart that makes a difference in the world.

2  I make no attempt here to write a traditional law review article and have not footnoted my every thought. 
This is by design and to facilitate flow. See Part I.D. I hope the reader can understand. 

3  Mantra originally meant, in Hinduism and Buddhism, a word or sound repeated to aid concentration in 
meditation. The Oxford Dictionary of Phrase and Fable (Elizabeth Knowles ed., 2014).



Columbia Journal of Gender and Law126 34.1

There are additional questions embedded in these initial questions. On a micro or 
individual level, those questions include: “How will each of us make the difference we’d 
like to make in the scholarly arena during the rest of our careers? How will we each choose 
what to write about?” On a more macro level, these questions include: “What is the future 
of legal scholarship? How will legal scholarship stay relevant in the modern world?”4 
Combining these inquiries, we can each ask how we can individually stay relevant not for 
the sake of fame but to help answer the eternal question: “What am I doing here on this 
earth? What is my purpose?”

There is a concept in every major religious tradition in the world suggesting that we 
should use our limited time on this earth to do something meaningful and helpful. Indeed, 
most of us wish to make a difference in the world, and of course to do no harm. If possible, 
most of us wish to leave the world a better place than we found it. Buddhists call this concept 
of making a real difference in our work “right livelihood,” and this Essay asks what right 
livelihood means in the context of legal scholarship. It also asks how we can help recognize 
the passion underlying meaningful scholarship in the works of ourselves and others, so that 
these meaningful endeavors can multiply, and change the world in which we live. 

Right scholarship is not about what is right versus wrong. It is scholarship with purpose, 
scholarship that derives from passion about a particular issue or cause. At its essence, right 
scholarship requires that we pick projects carefully, recognizing that every space on the 

4  For some fabulous examples of scholarship that is relevant to today’s popular culture, see Caleb Mason, Jay-
Z’s 99 Problems, Verse 2: A Close Reading with Fourth Amendment Guidance for Cops and Perps, 56 St. Louis 
L.J. 567 (2012) (containing a line-by-line analysis of the second verse of the song from a constitutional criminal 
procedure perspective); Lance McMillian, Drug Markets, Fringe Markets, and the Lessons of Hamsterdam, 69 
Wash. & Lee L. Rev. 849 (2012) (using the television show The Wire to demonstrate the difficulty of mustering 
political will to reform fringe markets). The New Mexico Law Review published an entire issue based upon 
the locally filmed television show Breaking Bad. See Armen Adzhemyan & Susan M. Marcella, “Better Call 
Saul” If You Want Discoverable Communications: The Misrepresentation of the Attorney-Client Privilege 
on Breaking Bad, 45 N.M. L. Rev. 477 (2015); Holly Jeanine Boux & Courtenay W. Daum, Stuck Between 
a Rock and a Meth Cooking Husband: What Breaking Bad’s Skyler White Teaches Us About How the War 
on Drugs and Public Antipathy Constrain Women of Circumstance’s Choices, 45 N.M. L. Rev. 567 (2015); 
Greg Goelzhauser, The Political Geography of Plea Bargaining in Federal Death Penalty Cases, 45 N.M. L. 
Rev. 641 (2015); Elizabeth N. Jones, The Good and (Breaking) Bad of Deceptive Police Practices, 45 N.M. 
L. Rev. 523 (2015); Michael C. Mims, Don’t Bake––Litigate! A Practitioner’s Guide on How Walter White 
Should Have Protected His Interests in Gray Matter, and His Litigation Options for Building an “Empire 
Business” Through the Courts, Not the Cartel, 45 N.M. L. Rev. 673 (2015); Max Minzner, Breaking Bad in the 
Classroom, 45 N.M. L. Rev. 301 (2015); Jennifer W. Reynolds, Breaking BATNAs: Negotiation Lessons From 
Walter White, 45 N.M. L. Rev. 611 (2015); Bidish J. Sarma, Why We Would Spare Walter White: Breaking Bad 
and the True Power of Mitigation, 45 N.M.L. Rev. 429 (2015).



Columbia Journal of Gender and Law 12734.1

page is like a breath expended. We only have so many breaths5 so we need to make each 
exhale worth it. 

In other words, everything we choose to write is taking up space that could be used to 
write or do something else, so we need to think carefully before taking on a project. This is 
true throughout our careers but perhaps most importantly at mid-career, when we are often 
asked to do many things about which we may not be passionate. Every article, every book, 
every study, is an opportunity taken and thus an opportunity lost on something else. We 
need to be planners and determine how best to make our mark.

A. Religion and Right Scholarship 

As Vietnamese Zen Buddhist teacher Thich Nhat Hanh once wrote, “To practice Right 
Livelihood (samyag ajiva), you have to find a way to earn your living without transgressing 
your ideals of love and compassion.”6 The concept of right livelihood in legal education 

5  Michael Franti & Spearhead, Life in the City, on All Rebel Rockers (Concord Music Group 2008). 
The entire stanza goes:

Some say you only get so many breaths, when they’re gone you’ll meet your maker, 
Some people always try to cheat their death but when it comes you just can’t shake it.
Some people try to make a deal to get a little bit more but they try to take it.
Some of them end up in debt, when [they’re] called they try to fake it,
But one morning the clock will chime and no more birds come flying by and temperatures 
keep rising higher, 16 bullets come flying by.

Ai yi yi put your hands up high coz’ you never know how long you’re gonna live ‘til ya die
They hit you with a missile, hit you with a bomb, hit you with the law try to take your 
home.
Break into your house in the middle of the night, track you on a cell phone by satellite,
Stopped any time you’re in your car, search your body search your home an’ listenin’ in 
on your phone calls.
Still no politician got enough balls, lining the people up against the wall.
When the truth comes out all hell will call and someday Guantanamo will fall, until that 
day we all will ride on.

Ai yi yi put your hands up high coz’ you never know how long you’re gonna live ‘til ya die.

Life in the City Lyrics, Metrolyrics, http://www.metrolyrics.com/life-in-the-city-lyrics-michael-franti.html 
[https://perma.cc/8T35-TUME] (last visited June 5, 2016).

6  Right Livelihood: The Ethics of Earning a Living, About Religion (Dec. 14, 2014), http://buddhism.
about.com/od/theeightfoldpath/a/rightlivelihood.htm [https://perma.cc/CDL2-BAHW].



Columbia Journal of Gender and Law128 34.1

has been explored by at least one legal academic,7 who believes that good law teaching 
comes from the identity and integrity of the teacher and the teacher’s “ability to weave a 
concrete web of connections among themselves, their subject [matters].”8 This, Professor 
Laurie Morin explains, allows students to learn to “weave a world for themselves.”9

In general, seeking right livelihood involves using one’s full capacities “to make a 
genuine contribution to not only one’s personal development but also to the well-being of 
humanity,”10 which places the goal of spiritual health on equal footing with the material 
well-being that goes along with being employed. Fulfilling right livelihood means finding 
work that makes a meaningful contribution to our lives and the lives of others.11

Right livelihood is one step on the Buddhist eight-fold path. Simplifying greatly, under 
Buddhist teachings, in order to remove suffering, it is necessary to overcome craving and 
delusion by following an “Eightfold Path” of right view, right intention, right speech, right 
action, right livelihood, right effort, right mindfulness, and right concentration.12 As the 
modern and Western world has become more familiar with this idea of right livelihood, 

7  Laurie A. Morin, Reflections on Teaching Law as Right Livelihood: Cultivating Ethics, Professionalism, 
and Commitment to Public Service from the Inside Out, 35 Tulsa L.J. 227 (1999).

8  Id. at 229 (citing Parker J. Palmer, The Courage to Teach: Exploring the Inner Landscape of a 
Teacher’s Life 10 (1998)). According to Palmer:

[A]s I teach, I project the condition of my soul onto my students, my subject, and our way 
of being together. The entanglements I experience in the classroom are often no more 
or less than the convolutions of my inner life. Viewed from this angle, teaching holds a 
mirror to the soul. If I am willing to look in that mirror and not run from what I see, I have 
a chance to gain self-knowledge—and knowing myself is as crucial to good teaching as 
knowing my students and my subject.

Id. (citing Palmer, supra, at 10). Palmer also claims that good teachers have a strong sense of personal identity 
that infuses their work, and that bad teachers “distance themselves from the subject they are teaching—and 
in the process, from their students. Good teachers join self and subject and students in the fabric of life.” Id. 
(citing Palmer, supra, at 11).

9  Id. 

10  Lewis D. Solomon, Local Currency: A Legacy and Policy Analysis, 5 Kan. J.L. & Pub. Pol’y 59, 67 
(1996). See also Morin, supra note 7, at 231 (stating that Buddha’s right livelihood translates into avoiding 
work that might hurt others or the environment).

11  Solomon, supra note 10, at 67.

12  Mahasattipassana Sutta, The Greater Discourse on the Foundations of Mindfulness, in The Long 
Discourses of the Buddha: A Translation of the Digha Níkaya 348 (Maurice Walshe trans., 1995).



Columbia Journal of Gender and Law 12934.1

right livelihood has expanded to mean finding work that is personally fulfilling, that helps 
rather than harms people (or is neutral), and that can change the world for the better.13

The notion of work that links people to a higher purpose can be found in nearly every 
religious, cultural, and spiritual tradition in the world.14 For example, in one speech at an 
international law symposium, C.G. Weeramantry, former Judge and Vice President of the 
International Court of Justice at The Hague, presented a speech on his book The Lord’s 
Prayer, Bridge to a Better World. In the speech, he asks “whether there is the possibility 
to nourish our legal systems from the reservoirs of morality that are contained within the 
world’s great religions,”15 and then suggests that much could be accomplished by looking 
carefully at the meaning of the Christian Lord’s Prayer.16 As he explains:

The Lord’s Prayer has this advantage, every day it is recited by hundreds of 
millions of people across the world. Hundreds of millions of people know 
it. That is a good base from which to begin. Unfortunately, it tends to be a 
mere ritual repetition, a thoughtless recitation, rather than a contemplative 
reflection. What we want is a contemplative reflection of the principles of 
the Lord’s Prayer.

If we can make individuals more sensitive to these aspects, since there 
are millions of individuals involved, that can make a very real impact upon 
the world’s situation today. So that is very important from the standpoint 
of Christianity. Likewise one can do the same for the scriptures of all the 
religions of the world, Buddhism, Hinduism, Judaism, Islam, all of them 
are rich reservoirs of moral conduct which can guide human conduct in the 
next millennium. The Christian himself can draw a lot of inspiration from 
the minute analysis of human conduct contained in those religions.

To give you just one example, Buddhism talks of right conduct, the 
sort of conduct that a good human being should follow. It divides it into 
eight categories: there is right action, right speech, right livelihood, right 

13  Morin, supra note 7, at 231. 

14  Id.

15  C.G. Weeramantry, The Lord’s Prayer: Bridge to a Better World, 6 Tulsa J. Comp. & Int’l L. 87, 89 
(1988).

16  Id. at 96.



Columbia Journal of Gender and Law130 34.1

thought, right concentration and so forth analyzing it in very great detail. 
Anyone reading those scriptures can gain a very great amount of inspiration 
from them. Even in regard to a better understanding of Christian conduct. 
Likewise, all the religions have concepts that would be of very great value 
to the law of the future.17

Indeed, the more one studies the religious traditions of the world, the more one sees 
similarities among them, as well as connections to the legal world around us.18 

17  Id. at 96–97. Judge Weeramantry goes on to add:

Islam for example has the concept of trusteeship of earth resources. Under the 
common law system we have the idea that we are the owners of property. If I buy a piece 
of land, I can do with it what I will. The Islamic concept of land is that all property belongs 
to God. Whoever buys it is only the trustee of that property. As a trustee, you owe a duty to 
those who are going to come and enjoy it after you. If we had a principle like that, probably 
we would not have the environmental problems that we have today.

In fact, African customary religion has got that concept deeply embedded in it. The 
African traditional view of the human community was that it’s not only those who are 
alive here and now, but those who were before us and those who are yet to come; all three 
together, the three segments of the human community, together form an entity. The law 
must look at all those three before it makes a decision.

Every religion has this. Hinduism for example has beautiful descriptions of the nature 
of divinity, which would suit very well the Christian scriptures, and, in fact, some of them 
are referred to from time to time. You might remember Oppenheim, who contributed to 
the development of the nuclear weapon. He spoke of the Hindu scriptures as drawing his 
attention to the nature of God and the enormous beauty in the concept of God, and so on.

The descriptions of divinity and of righteous conduct in Hinduism, the idea of 
dharma, what is righteous conduct, is minutely analyzed in Hindu scripture, to the extent 
of volumes being written analyzing what are the constituent elements of righteous conduct. 
So in a world that is going to be one world, where everyone is going to be brother and 
sister to each other, where there will be a great deal of cultural exchange in the future, 
we can draw great inspiration from other religions, just as other religions can draw great 
inspiration from Christianity. All of these would be an important fertilizing source for the 
laws of the future.

Id. at 97–98.

18  Neil Hamilton et al., Professional Formation/Professionalism’s Foundation: Engaging Each Student’s 
and Lawyer’s Tradition on the Question “What Are My Responsibilities to Others?”, 12 U. St. Thomas L.J. 
271, 336–37 (2016) (“It is important for law students and lawyers to understand that there is very extensive 
common ground among nearly all the [faith and secular traditions] analyzed here on the question whether 
each individual student or lawyer should grow over a lifetime from high degrees of self-interest toward the 



Columbia Journal of Gender and Law 13134.1

B. Yoga Philosophy and Right Scholarship

Yoga philosophy provides another Eastern example of these universal principles. Yoga 
philosophy is not a religion but a philosophy first practiced by gurus or spiritual leaders 
in ancient India. Early yoga texts, thought to be written by the scholar Patanjali, contain a 
“ten commandments” of sorts, comprised of five restraints or ethical principles by which to 
live, and five personal observances.19 These principles are universal in many respects and 
reflect the teachings of most of the major world religions. They also apply quite directly to 
practicing and teaching law. For legal academics, these principles apply to the three pillars 
of work life: teaching, scholarship, and service.

Yoga philosophy (again, along with most major religious traditions in the world) 
includes five principles of ethical standards, or yamas, through which people can strive 
for the deepest and most intense integrity in all their activities, be they professional or 
private.20 These five yamas are 1) ahimsa or “nonviolence,” 2) satya or “truthfulness,” 

internalization of responsibilities to others.”).

19  See Nehal A. Patel, “Renounce and Enjoy”: The Pursuit of Happiness through Gandhi’s Simple Living 
and High Thinking, 13 Seattle J. for Soc. Just. 319, 331–32 (2014) (discussing Patanjali and the yamas, 
as they relate to Gandhi’s use of the yamas). See also Nehal A. Patel, Mindful Use: Gandhi’s Non-Possessive 
Property Theory, 13 Seattle J. for Soc. Just. 289 (2014) [hereinafter Patel, Mindful Use]. As Professor Patel 
explains: 

To help him live the doctrine of anasaktiyoga, Gandhi practiced the principle of aparigraha 
(non-possession), which appears in an authoritative text written by Patanjali called the 
Yoga Sutras). In the Yoga Sutras, Patanjali discussed five methods of self-control (yamas) 
to help an individual nurture constructive thoughts and actions: ahimsa (non-violence, 
non-injury, or non-harm), satya (truthfulness), brahmacharya (continence), asteya (non-
stealing), and aparigraha (non-possession, non-covetousness, or non-hoarding). Gandhi 
practiced all five yamas, and although modern commentators widely associate him with 
his use of ahimsa, his use of aparigraha deserves attention when addressing theories of 
property.

Patel, Mindful Use, supra, at 293–94 (citations omitted).

20  In choosing a philosophy with which to frame the work of the goddesses, I wanted to discuss an Eastern 
philosophy or religion rather than a Western one, consistent with the concept of commercial law “goddesses.” 
I ultimately chose to focus on yoga philosophy in writing this Essay, rather than another Eastern tradition such 
as the Buddhist Eightfold Path, in part because I am much more familiar with yoga philosophy, and in part 
because the principles of yoga philosophy apply so easily and directly to the scholarship of the goddesses. The 
Buddhist Eightfold Path would seem more relevant, given that I am describing “right scholarship” as a take-
off of Buddhist principles. However, the principles of the Buddhist Eightfold Path (right understanding, right 
mindfulness, right speech, right living, right effort, right attentiveness, and right concentration) are difficult to 



Columbia Journal of Gender and Law132 34.1

3) asteya or “non-stealing,” 4) brahmacharya or “continence,” and 5) aparigraha or 
“non-covetousness/envy.”21 These are essentially the same principles that come out of the 
Christian golden rule, and are the equivalent in some ways to the New Testament verse 
proclaiming that “to those who are given much, much is required.”22 In Judaism, my own 
tradition, we practice bein adam la-havero or “norms between man and his fellow-man,”23 
as well as mishpat or “justice,” tzedakah or “righteousness,” hesed or “kindness,” and 
rahamim or “compassion.”24

1. Ahimsa

Ahimsa is consideration for all living things, particularly those who are innocent, in 
difficulty, or worse off than we are.25 Ahimsa or non-harming is not about simple ideas, such 
as “do not kill people” or “do not eat animals.” Ahimsa is much subtler and might include 
handling colleagues and students with compassion rather than contempt, and avoiding 
gossip and other hurtful nonproductive words. 

2. Satya

Practicing satya or truthfulness is more than avoiding outright lies.26 Satya literally 
means “right communication,” through our speech, our writings, our gestures (eye rolls 
included), and our other non-verbal communications. In everyday life, it might mean 
avoiding exaggeration and overstatement, and in scholarship, it means not fabricating, 

apply to the written word.

21  There also are five rules to live by or niyamas that do not involve restraints or things to avoid, but things 
to actually do. These include sauca or “cleanliness”, santosha or “contentment”, tapas or “self-discipline”, 
svadhyaya or “self-examination”, and isvara pranidhana or “enlightenment.” Meta Chaya Hirschl, Vital 
Yoga: A Sourcebook for Students and Teachers 57 (2011).

22  Luke 12:48 (King James).

23  Matthew 7:12 (King James).

24  Jewish Ethics: Some Basic Concepts and Ideas, My Jewish Learning, http://www.myjewishlearning.
com/article/jewish-ethics-some-basic-concepts-and-ideas [https://perma.cc/URF4-TERJ] (last visited Apr. 29, 
2016).

25  Hirschl, supra note 21, at 56.

26  The concept of satya (truth) is central to Hindu philosophy, and speech is one way in which truth is 
spread. In the Manusmriti and in Patanjali’s, text, truth is related to ahimsa or non-harming. Arpan Banerjee, 
Political Censorship and Indian Cinematographic Laws: A Functionalist-Liberal Analysis, 2 Drexel L. Rev. 
557, 570 (2010).



Columbia Journal of Gender and Law 13334.1

cutting corners, or exaggerating. It also means exposing the world to the truths we may not 
wish to see, such as power imbalances, white privilege, and simple unfairness, as well as 
outright fraud.

3. Asteya 

Asteya means not stealing, and being strong enough to resist a desire to take things that 
do not belong to us. It can include avoiding envy. In the context of law schools’ teaching, 
scholarship, and service, it requires giving credit where credit is due, being careful not to 
use other people’s ideas without attribution, and taking care not to take credit for other 
people’s work.

4. Aparigraha 

Avoiding greed involves the ability to accept only what is appropriate, at the same time 
that one is aware of the abundance and fulfillment already in our lives. This is so much 
harder than it sounds and can be advanced through gratitude practice. 

5. Brahmacharya 

Finally, we come to brahmacharya or continence, which is discussed directly or 
indirectly throughout the rest of this piece. In literal translation, brahmacharya means 
restraint. In many translations, it means restraint in sexual activity or colloquially, “not 
sleeping around.” In other traditions, it means exercising moderation in all things. 
Translations are always tricky, but my interpretation of this in the context of scholarship—
and again, these principles apply to scholarship, teaching, and service alike—is not doing 
so much scholarship that none of it really matters, or none of it says anything. Continence 
in this context also means avoiding writing scholarship on topics about which you do not 
care deeply. Again, every breath counts. 

C. Recognizing Scholarship Gone Wrong

While it may not be easy to recognize right scholarship or scholarship that is consistent 
with the yamas, scholarship that is inconsistent with the yamas is easy to spot. It is 
uninspiring and does not speak to us. In Scholarship against Desire,27 Professor Shari 
Motro argues that we, as legal academics, have a duty to our students (without whom we 

27  See Shari Motro, Scholarship against Desire, 27 Yale J.L. & Human. 115 (2015).



Columbia Journal of Gender and Law134 34.1

have no job, purpose, or essential grounding), to our communities local to global, and to 
ourselves, to dedicate our own scholarly efforts to things we care deeply about, to not just 
“go along,” writing just about anything we can to get the job done, to get a job, to get a 
promotion, to get famous, etc.28 

To bring her point to light, she likens “going along” to certain forms of heterosexual 
sex from the female point of view. Namely, she describes that kind of sex where you have 
the sex and it is not offensive, and may even be interesting and enjoyable on some level, 
but it is not something you actually desire. From this concept of no desire comes the name 
of her article, Scholarship against Desire.29 She describes in detail the ways in which she 
crafted her articles leading up to tenure, why she wrote them, how she found the hook that 
would lead to a “good placement,” and the feeling of emptiness she felt upon recognition 
that the work did not have ultimate meaning for her.30 

When Professor Motro describes “going along” scholarship, she is not talking about 
the really bad, harmful scholarship, such as poorly done empirical work that threatens the 
value of well-done work in the same field. She is addressing the scholarship that is just 
okay, decent if not particularly useful or inspiring, work in which yes, you did the work, 
but it was not particularly meaningful even to you, let alone anyone else.31 This “meh,” just 
okay, not great scholarship, she argues, creates a sort of global intellectual interference, 
not adding anything, but taking up valuable bandwidth or airspace.32 Doing this type of 
scholarship, she claims, can make us numb as well as dishonest in the eyes of our students.33

Professor Motro would include scholarship borne out of external motivators in “going 
along” scholarship. Perhaps scholarship which was written because the author has expertise 
in the field and is asked to write it. Or the author is up for a promotion and needs to produce 
something for that promotion. Or he or she simply thought of a clever hook or twist on an 
already narrow path upon which his or her work was traversing.34

28  Id. 

29  Id. 

30  Id. at 122–26.

31  Id. 

32  Id. 

33  Motro, supra note 27, at 144–51.

34  Id. at 139–42.



Columbia Journal of Gender and Law 13534.1

Speaking now for myself and not Professor Motro, I use the word “traversing” 
purposefully, rather than progressing, because the work is primarily fueling ego, or pushing 
through a crisis of career identity, with no real independent purpose. I have experienced 
each of these reasons for writing myself and have spoken to many others who have as well, 
particularly since circulating Professor Motro’s article to my faculty this past summer. 
Beautiful scholarship can spring forth, even when the work is undertaken for these reasons, 
but a lot of not-so-beautiful work also comes out of these externally-driven motives.

An external motivation is one directed at pleasing the outside world, in one way or 
another. The work created in response to this type of motivation is not very satisfying 
for most of us. Conversely, an internal motivation is directed at satisfying one’s deepest 
passions, perhaps by helping others or doing other positive things for the world at large. 
Work that springs from this well of enthusiasm and inspiration feels genuine, and is 
designed from the heart to change society in important ways, to unleash information that 
can be used to look critically at the condition of the law, or to educate people about a 
problem or a solution that the law has caused or can fix. This is right scholarship, and 
coming from internal motivation, it feels right on an almost cellular level. 

D. Recognizing Scholarship Gone Right

Besides the feeling of “rightness” on a cellular level, one can recognize right scholarship 
in other ways. Some legal scholarship literally flows, meaning that the words roll off the 
page and into the consciousness of the reader. This form of flow can result from another 
form of flow, namely that state of mind one experiences when becoming so engrossed 
in a task that the time slips away and the person virtually becomes the task. Sometimes 
described as being “in the zone,” this state of mind can be experienced almost as a “high,” 
or as one in which the task at hand completes itself.35 The actor almost disappears. Flow 
involves harnessing the emotions so that they are “in service” to the task, channeling all 
positive energy to the task. When a person is in flow, he or she achieves singular focus 
on the task.36 For writers, including legal scholars, the author in flow becomes the written 
work. There is no separation between the author, the work, the words, or ultimately, the 
reader.

35  See Daniel Goleman, Emotional Intelligence: Why It Can Matter More than IQ 91 (1995); 
Jeanne Nakamura & Mihaly Csikszentmihalyi, Flow Theory and Research, in Oxford Handbook of Positive 
Psychology 18, 195–206 (Shane J. Lopez & C.R. Snyder eds., 2009). 

36  Goleman, supra note 35, at 91.



Columbia Journal of Gender and Law136 34.1

Flow was discovered, or at least named, by modern psychologist, Mihaly 
Csikszentmihalyi.37 Csikszentmihalyi studied flow in surgeons, artists, mountain climbers, 
and other high achievers, noting the relationship between effectiveness and this magical 
state of focused concentration. In studying flow, Csikszentmihalyi found that this state of 
mind could be so enjoyable that the mind becomes completely absorbed in the task.38 He 
also found that flow could release otherwise dammed-up solutions into consciousness. 

According to Csikszentmihalyi, flow is achievable “only when we understand the 
ultimate goals involved, when the task is challenging but not beyond our skills or capacity 
to grow, and when we believe that the situation will respond to the quality of our actions.”39 
Tedium or anxiety are a buzz kill or “flow kill,”40 as are external motivations that focus only 
upon pleasing others.41 This “antiflow” includes all activity that is “meaningless, tedious 
[and] offers little challenge; is not intrinsically motivating; and creates a sense of lack of 
control.”42

Law Professor Stefan H. Krieger describes this flow state, which Krieger claims is 
associated with creativity, as follows:

Artists, athletes, composers, dancers, scientists, and peoples from all walks 
of life, when they describe how it feels when they are doing something 
that is worth doing for its own sake, use terms that are interchangeable in 
their minutest details. This unanimity suggests that order in consciousness 
produces a very specific experiential state, so desirable that one wishes 
to replicate it as often as possible. To this state, we have given the name 

37  Mihaly Csikszentmihalyi, The Flow Experience and Its Significance for Human Psychology, in Optimal 
Experience: Psychological Studies of Flow of Consciousness 15 (Mihaly Csikszentmihalyi & Isabella 
Selega Csikszentmihalyi eds., 1988) [hereinafter Optimal Experience]. 

38  Richard K. Neumann Jr., Donald Schön, The Reflective Practitioner, and the Comparative Failures 
of Legal Education, 6 Clinical L. Rev. 401, 422 (2000) (citing Mihaly Csikszentmihalyi, Flow (1990)); 
Mihaly Csikszentmihalyi, Beyond Boredom and Anxiety (1975).

39  Id. (citing Mihaly Csikszentmihalyi, The Flow Experience, in Optimal Experience, supra note 37, at 
15, 29–35).

40  Id. 

41  Id. (citing Mihaly Csikszentmihalyi, The Future of Flow, in Optimal Experience, supra note 37, at 364, 
374).

42  Id. at 422–23 (citing Maria T. Allison & Margaret Carlisle Duncan, Women, Work, and Flow, in Optimal 
Experience, supra note 37, at 118, 120).



Columbia Journal of Gender and Law 13734.1

of “flow,” using a term that many respondents used in their interviews to 
explain what the optimal experience felt like.

Flow—the enjoyment that comes from surpassing ourselves, from 
mastering new obstacles, from making new discovery—motivates us to 
creative activity. 

To experience flow, Csikszentmihalyi found, a person must become 
totally immersed in the activity. Flow transports us to a “new reality,” to a 
more complex self. To accomplish this transformation, a person must pay 
close attention to her actions so she can monitor feedback and concentrate 
on achieving her goals. 

Moreover, she needs to enjoy herself by staying close to the “boundary 
between boredom and anxiety.” When there are too many demands, options, 
and challenges to handle, a person feels anxious and becomes paralyzed; 
when there are too few, she becomes bored. That point between boredom 
and anxiety allows for “convergent” thinking (conventional intelligence 
oriented to finding the one “correct” answer) but also “divergent” thinking 
(the ability to produce a number of possible answers based on the available 
information). The tension between these types of thinking evolves into 
a creative idea: holding on to what is accepted but being open to new 
viewpoints and ideas.43 

As Krieger notes, strong domain or substantive knowledge is needed in order to be in 
flow. Otherwise anxiety takes over and makes the right frame of mind impossible.44 

43  Stefan H. Krieger, Domain Knowledge and the Teaching of Creative Legal Problem Solving, 11 Clinical 
L. Rev. 149, 173–74 (2004). 

44  Id. at 175. See also Human Factors Int’l, Crafting Fun User Experiences: A Method to Facilitate 
Flow: A Conversation with Owen Shaffer 3–4 (2013), http://web.cs.wpi.edu/~gogo/courses/imgd5100/
papers/FlowQuestionnaire.pdf [https://perma.cc/WZD8-Q2XD]. Owen Shaffer claims that these seven 
conditions create flow: 

1. Knowing what to do;
2. Knowing how to do it;
3. Knowing how well you are doing;
4. Knowing where to go (if navigation is involved);
5. High perceived challenges;



Columbia Journal of Gender and Law138 34.1

II. The Passion Behind the Persons and the Products: Braucher, Warren and 
Right Scholarship

Having described purposeful, right scholarship as that scholarship that is important 
to us and that results from flow, it is finally time to look at some examples of inspired 
scholarship, created in flow and in the yogic traditions of the yamas. Examples of internal 
motivation, nonviolence, truthfulness, non-greed, non-envy, and continence appear 
throughout the work of the goddesses. 

Before we begin, note that the fields of contracts, bankruptcy, and consumer 
protection—the academic purview of the goddesses—were originally occupied almost 
exclusively by men. The giants in the fields included people like Grant Gilmore, Vern 
Countryman, Lawrence Friedman, Stewart Macaulay, and William Whitford. Their rising 
protégés included the goddesses. From an all-male revue, we began to hear female voices 
speak out. In some cases, those voices followed those of their mentors, in others they 
diverged significantly. 

A. Background: One Recipe for Right Scholarship

After saying a bit below about each goddess’s background, I provide just a few 
examples of these concepts from the literally hundreds that are available in their work. In 
these passages, we witness one by-product of inspired scholarship: the deep optimism that 
comes from believing legal scholarship can make a difference in the world. 

Right scholarship can derive from any field. One need not be a consumer law advocate 
(though the goddesses were), nor need one be an advocate at all. One need only care deeply 
about the subject of his or her scholarship and believe that it can make a difference.45 

1. Empiricism and the Goddesses

One ingredient in the recipe for right scholarship that both goddesses share is a desire 

6. High perceived skills; and
7. Freedom from distractions.

Id.

45  While the goddesses write in the areas of contract law, bankruptcy, and consumer law, among others, 
I do my best to avoid discussing substantive law here, instead focusing on those qualities that promote right 
scholarship.



Columbia Journal of Gender and Law 13934.1

to know how society actually lives and experiences life before assessing and reforming 
the law.46 Both goddesses were talented empirical scholars, believing that the law should 
serve society, not vice versa, and also that we need facts about how people actually behave 
in order to create and perfect a meaningful legal system. While the need for real facts 
in assessing and creating legal rules sounds obvious, using empirical research in law is 
actually quite new.47 

2. The Goddesses and the Underdog

Though I have met her, I do not know Senator Warren well. I did know Professor 
Braucher well, as she was a mentor and friend.48 I am drawn to the work of both goddesses 
because of their shared, unflagging desire to make a difference and to protect the underdog. 
While Professor Warren’s work focuses primarily on protecting the middle class from big 
banks and others with more power than they have, Professor Braucher often dips down to 
protection of the working poor in her work. From each of their unique vantage points, both 
goddesses embody the principles of non-harming and non-greed.

46  For an extensive discussion of Professor Braucher’s “Law in Action” approach to teaching and scholarship, 
see William C. Whitford, Jean Braucher’s Contracts World View, 58 Ariz. L. Rev. 13 (2016). For a discussion 
of Elizabeth Warren’s very extensive empirical work, see David A. Skeel, Vern Countryman and the Path of 
Progressive (and Populist) Bankruptcy Scholarship, 113 Harv. L. Rev. 1075 (2000).

47  Skeel, supra note 46, at 1079–80 (noting that the rise of realism and empiricism started with corporate 
and commercial law).

48  To finish this Essay, I sequestered myself deep in the Jemez Mountains of New Mexico, where I carefully 
read the two memorial pieces written by her closest collaborators and mentors, Stewart Macaulay and William 
Whitford. To say that Professor Braucher adored these two gentlemen would be a tremendous understatement. 
It was wonderful to see that the feeling was mutual. See Stewart Macaulay, I Remember Jean, 58 Ariz. L. Rev. 
3 (2016); Whitford, supra note 46. The two pieces made me cry and moved me down the journey of coming to 
terms with this loss of a friend and mentor. The only silver lining that came from Professor Braucher’s early and 
senseless death was that I got to see these two wonderful and generous men at a memorial service sponsored 
by her school. I was able to meet Professor Macaulay for the first time, and I can see why Jean felt as she did 
about both of them. Professor Macaulay stated in his article about Jean that:

Jean applauded Contracts: Law in Action. In the same article, she also defended me from 
Grant Gilmore’s attack in his The Death of Contract where he found my work completely 
without interest. She said that he had badly misread my writing. Gilmore’s dismissal and 
contempt had hurt. I was grateful that she had defended me so strongly.

Macaulay, supra, at 5. This comment by Macaulay says as much about him as it does about her. This kind 
of humility and grace is not often found in pages like this and it goes to show that one need not be a woman 
(goddess) to demonstrate the qualities of ahimsa, satya, asteya, brahmacharya, and aparigraha.



Columbia Journal of Gender and Law140 34.1

3. Important but Not Self-Important

Professors Braucher and Warren are scholarship goddesses because they write and 
speak only about issues about which they are internally motivated and about which society 
cares, wasting no airspace or bandwidth on the trivial or the self-important. In that way, 
they both practice brahmacharya or continence in scholarship. For both, it starts and ends 
with passion. Below, I discuss where that passion might have come from, along with a few 
passages themselves. 

As you read the passages below, see if you can identify the enduring themes of yoga 
philosophy. The work of the goddesses is critical to creating a just society, demonstrating 
brahmacharya or continence in scholarship. Topics like fraud, misrepresentation, unequal 
bargaining power, and all other ways in which we as a society either condone or directly 
participate in taking advantage of those less fortunate are problems for all of society, 
making these topics of deep importance across all races, income levels, and religions. These 
conditions hurt our economy and thus punish us all. The goddesses—in their lives and their 
work—demonstrate satya or truthfulness by saying what needs to be said about injustice. 
It is much simpler and more lucrative to stay quiet because it ruffles no feathers. Speaking 
of lucre, both goddesses eschewed higher paying jobs and expert witness engagements 
from powerful corporations and banks in order to spend countless hours championing 
the underdog, thus demonstrating non-stealing or asteya,49 and non-greed or aparigraha. 
Finally, the work of the goddesses demonstrates non-harming or ahimsa because it seeks to 
uncover and then counteract financial harms being exacted on those with the least ability to 
endure them. Their scholarship is ahimsa embodied, as are their lives.

B. Braucher’s Gifts 

1. Braucher’s Background and Body of Work

The daughter of a Harvard Law professor, Professor Braucher was humble, kind, and a 
great mentor to junior colleagues and students alike. She mentored well in part because she 
was mentored well, particularly by Professors Stewart Macaulay and William Whitford, 
two other giants in the field of contract law, among other fields. Professor Braucher put on 
no airs, openly questioned the high salary demands of law professors in public institutions, 

49  In a sense, every form of societal privilege, be it white privilege, class privilege, wealth privilege, status 
privilege, or educational privilege to name a few, if not counterbalanced through right action, is a form of 
stealing from those less fortunate. As members of society, we owe duties to one another and we need to fight 
back against privilege by helping others. 



Columbia Journal of Gender and Law 14134.1

and saw the sheer power of the law in the hands of whoever could access it. She was also a 
balanced individual with an active family, personal, and outdoor life.50

She was the Roger C. Henderson Professor of Law at the James E. Rogers College 
of Law, until she died of cancer at age sixty-four. She was revered for many things, but 
had remarkably diverse scholarly interests, ranging from staid contract law to modern 
bankruptcy and consumer law, all the way to cutting-edge post-modern international 
payment systems, software law, and the law of cyberspace.51 In all topics, she sought 
justice for the little guy—in real life, not just in books and appellate court decisions.52 She 
stood up against the powerful, and came to the aid of anyone unjustly harmed, including 
the working poor, students, junior colleagues, and even senior colleagues.53

While she was not much for labels or dualism, Professor Braucher was a realist 

50  She and her husband David Wohl were true soulmates, which I related to because my husband and I are 
the same way. 

51  She was particularly fascinated with and disgusted by the power wielded by software companies versus 
regular people. See Jean Braucher, The Failed Promise of the UCITA Mass-Market Concept and Its Lessons 
For Policing of Standard Form Contracts, 7 J. Small & Emerging Bus. L. 393 (2003); Jean Braucher, Rent-
Seeking and Risk-Fixing in the New Statutory Law of Electronic Commerce: Difficulties in Moving Consumer 
Protection Online, 2001 Wis. L. Rev. 527, 529 (2001). She studied international payments systems, including 
Uniform Computer Information Transfer Act, commonly called UCITA, which she said she preferred to 
pronounce the Italian way, “YOU-CHEAT-A.”

52  Jean Braucher, Amended Article 2 and the Decision to Trust the Courts: The Case against Enforcing 
Delayed Mass-Market Terms, Especially for Software, 2004 Wis. L. Rev. 753, 764–65 (2004) (noting that 
few consumers can police the marketplace). Indeed, she thought appellate courts often did not get it right and 
even when they did, that the impact of these decisions on the average person was slight. See Jean Braucher, 
Deception, Economic Loss and Mass-Market Customers: Consumer Protection Statutes as Persuasive 
Authority in the Common Law of Fraud, 48 Ariz. L. Rev. 829, 833 (2006) [hereinafter Braucher, Deception] 
(noting that consumers rarely sue when taken advantage of). 

53  See Macaulay, supra note 48, at 5 (citing Jean Braucher, The Afterlife of Contract, 90 Nw. U. L. Rev. 49, 
52–55 (1995) [hereinafter Braucher, Afterlife]). He notes that when he was dismissed as unimportant by senior 
contracts scholar Grant Gilmore, Professor Braucher wrote in an article that followed:

Gilmore also could be bafflingly obtuse. He utterly failed to appreciate the power of 
Stewart Macaulay’s sociological research and practical realism as a perspective on late 
twentieth century law in action. Gilmore willfully misunderstood Macaulay, who deserves 
the last laugh.

Id. at n.12.



Columbia Journal of Gender and Law142 34.1

through and through, as described by William Whitford in his memoir article about her, 
Jean Braucher’s Contracts World View:

She wanted to know how, if at all, common law doctrines, statutes, and 
administrative regulations affected that behavior, as well as what other, 
nonlegal, factors influenced that behavior. She wanted to know how 
judicial decisions affected legislative and administrative decision-making, 
and vice versa. And she wanted to know about all the influences—legal 
and nonlegal—impacting decision-makers, whether judicial, legislative, 
or administrative.54

In all areas, Professor Braucher carefully studied how people actually behaved, instead 
of relying on expected behaviors taught by doctrinal theories. In the realm of contract 
scholarship, she was a proponent of the relational theory of contracts, which espouses that 
the relationship of parties to a contract necessarily embodies more than just their contract 
terms, and includes all sorts of social relations and customs, including moral norms.55 
While these ideas might seem beyond obvious to most of society, they were radical when 
first espoused by Braucher’s mentor, Stewart Macaulay, in the 60s.56 She advocated for the 
inclusion of forgiveness as an important principle within contract law,57 recognizing that 
contracts are more than private law between parties, but a reflection of humanity at its most 
fundamental.

In the realm of debtor-creditor law, Professor Braucher researched the shortcomings 
of bankruptcy laws, and published articles suggesting changes to make bankruptcy more 
effective. She was a true maverick in her recognition that lawyers wield massive power—
for example, in personal bankruptcy, where lawyers can easily steer consumers into high-

54  See Whitford, supra note 46, at 14.

55  See id. at 16; see also Jean Braucher, Cowboy Contracts: The Arizona Supreme Court’s Grand Tradition of 
Transactional Fairness, 50 Ariz. L. Rev. 191, 197 (2008) (discussing the importance of morality in contracts).

56  See Stewart Macaulay, Non-Contractual Relations in Business: A Preliminary Study, 28 Am. Soc. Rev. 
55 (1963); Stewart Macaulay, Justice Traynor and the Law of Contracts, 13 Stan. L. Rev. 812 (1961); Stewart 
Macaulay, Contract Law and Contract Research (Part II), 20 J. Legal Ed. 460 (1968). See also Whitford, 
supra note 46, at 16.

57  See generally Jean Braucher, The Sacred and Profane Contracts Machine: The Complex Morality 
of Contract Law in Action, 45 Suffolk U. L. Rev. 667 (2012) [hereinafter Braucher, Sacred and Profane] 
(advocating for a general contract theory that is flexible and recognizes the need for adjustment, release, and 
forgiveness among good faith parties to a contract).



Columbia Journal of Gender and Law 14334.1

cost, low-value Chapter 13 bankruptcy filings that may not best meet their needs.58 She and 
her co-authors built on this work in a ground-breaking piece, Race, Attorney Influence, and 
Bankruptcy Chapter Choice.59 They found that low income people and people of color file 
the more expensive Chapter 13 cases more often than middle class white people, despite 
the fact that they have fewer assets to protect and thus have less need for this type of 
bankruptcy.60 She was also way ahead of the curve in recognizing the student loan bubble 
crisis and also the massive proliferation of low-value, high-cost, for-profit university 
degrees.61 She saw consumer protection, another specialty, as a matter of “minimum 
decency.”62

While others justifiably call Professor Braucher a “giant” in many fields,63 I prefer 
goddess for her grace and dedication to the principles, if not the practices, of yoga.64 In 

58  See Jean Braucher, Lawyers and Consumer Bankruptcy: One Code, Many Cultures, 67 Am. Bankr. L.J. 
501 (1993). 

59  Jean Braucher et al., Race, Attorney Influence, and Bankruptcy Chapter Choice, 9 J. Empirical Legal 
Stud. 393 (2012) [hereinafter Braucher et al., Race and Bankruptcy].

60  Id. at 397. See also A. Mechele Dickerson, Racial Steering In Bankruptcy: Bankruptcy and Race: Is 
There a Relation?, 20 Am. Bankr. Inst. L. Rev. 623, 647–50 (2012). Using Professor Braucher’s article on 
race in bankruptcy as a jumping-off point, Professor Dickerson asks lawyers to ask themselves if they are being 
racially biased in their advice. Id. at 647. She then thanked the authors of this groundbreaking piece for not 
running away from race and concluded with,

I hope more legal scholars and empirical researchers will explore how race affects 
bankruptcy and commercial law outcomes. Turning a blind eye to race has never helped 
eliminate racism. And, pretending that the consumer bankruptcy system is colorblind will 
not give bankruptcy lawyers the motivation they need to overcome any implicit racial 
biases they might have. 

Id. at 650.

61  See generally Jean Braucher, Mortgaging Human Capital: Federally Funded Subprime Higher Education, 
69 Wash. & Lee L. Rev. 439, 441–42 (2012).

62  Braucher, Deception, supra note 52, at 833. 

63  See Bob Lawless, Jean Braucher in Memoriam, Credit Slips (Nov. 26, 2014), http://www.creditslips.
org/creditslips/2014/11/ jean-braucher-in-memoriam.html [https://perma.cc/X5HX-WDGN]; Jeremy Telman, 
On the Passing of Jean Braucher, ContractsProf Blog (Nov. 28, 2014), http://lawprofessors.typepad.
com/contractsprof_blog/2014/11/on-the-passing-of-jean-braucher.html [https://perma.cc/N92E-CBNZ]; 
In Memoriam, Jean Braucher, U. Ariz. (Dec. 5, 2014), https://uaatwork.arizona.edu/lqp/memoriam-jean-
braucher-0 [https://perma.cc/29TS-BCT9].

64  She told me that hiking was her “meditation.”



Columbia Journal of Gender and Law144 34.1

addition to her fifty or so published articles, she was not afraid to get her hands dirty 
dealing with real people, particularly in the mortgage clinic she co-founded. Professor 
Braucher sought truth through education and a good close look behind the curtain.65 As she 
herself explained, “for the sake of the integrity of the system as a whole, we need to know 
if there is a problem and if so, go about fixing it.”66 

Her emphasis on the law’s role in the lives of real people made her a strong advocate 
for the underdog. She was especially motivated in this regard because the current state of 
the law does so little to protect the lower class. As she explained,

If there is a problem with consumer protection law . . . it is that it is seldom 
enforced, with the poor bearing the brunt of the ease with which con artists 
and slick operators can get away with their scams. The result is not only 
inefficiency but redistribution from the relatively worse off to the relatively 
better off.67

As further articulated by long-time friend and collaborator William Whitford:

There remain the questions of why Jean was so passionate about studying 
contracts law in action, and how she proposed to go about doing so. 
Respecting the why question, I believe the basic reason is that Jean was 
ultimately a very practical person who was committed to making the world 
a better place. And she did not believe that the best way to have impact was 
usually to debate or change doctrine, and certainly one needed to study 
more than doctrine to have any idea when a doctrinal change might make 
a difference. What Jean needed in order to formulate reform proposals that 
might actually make a difference was much more information about how 
parties actually behaved and for what reasons—the law “in action.”68

As explained above, Professor Braucher’s scholarship on the plight of the 
underprivileged shows deep signs of ahimsa or nonviolence, satya or truthfulness, asteya 

65  Jean Braucher, Humpty Dumpty and the Foreclosure Crisis: Lessons from the Lackluster First Year of 
the Home Affordable Modification Program (HAMP), 52 Ariz. L. Rev. 727 (2010); Braucher et al., Race and 
Bankruptcy, supra note 59, at 37.

66  Braucher et al., Race and Bankruptcy, supra note 59, at 37.

67  Braucher, Deception, supra note 52, at 833. 

68  Whitford, supra note 46, at 1.



Columbia Journal of Gender and Law 14534.1

or non-stealing, brahmacharya or continence, and aparigraha or non-covetousness/envy 
throughout. Her views on wealth distribution demonstrate these yamas in action, as this 
passage shows:

It is hard to tolerate . . . extreme contractual advantage-taking by those rich 
in entitlements in their dealings with the relatively poor, so long as we fail 
to redistribute sufficiently through taxes and transfer payments. This is a 
reason for contract law to take wealth disparities into account.69

She eschewed modern, middle class consumeristic excess in her own life70 and her 
papers consistently feature protections for the working poor. One can’t help but wonder 
if her position safe and square among the middle, if not upper-middle, class gave her the 
luxury of looking down the social ladder to those less fortunate from an early point in her 
career. She was willing to leverage her position of security and privilege to advocate for 
low-income people, even when it meant making more unorthodox arguments in the law.

2. Passages of Perseverance and Playfulness

Part of producing right scholarship, or any work with meaning, is enjoying the work. 
For some people, this means having fun and injecting a degree of whimsy into their 
work. Professor Braucher was a serious scholar, but she also liked to have fun.71 She 
once described the United States Supreme Court’s deeply troubling ruling in Morales v. 
Trans World Airlines,72 which prevented states from protecting their consumers from false 
advertisement, as “uninspiring.”73 Her frequent use of song lyrics, movies, and literature 

69  See id. at 23 (citing Jean Braucher, Contract Versus Contractarianism: The Regulatory Role of Contract 
Law, 47 Wash. & Lee L. Rev. 697, 709–11 (1990)).

70  She told me that even in her comfortable family station, as a child her family went out to eat only a couple 
or a few times a year. She did not spend money on herself easily, but was generous with others. 

71  For a fabulous, fun, ride into law as it relates to literature and popular film, see Braucher, Sacred and 
Profane, supra note 57. See also Macaulay, supra note 48, at 7–8 (Macaulay’s detailed account of the ways in 
which he and Professor Braucher discussed the plot from Harriet Beecher Stowe’s book, The Minister Wooing, 
as well as the plot for Casablanca, for Braucher’s article about situations in which one might be morally 
obligated to release another from a promise). 

72  504 U.S. 374 (1992).

73  See Braucher, Afterlife, supra note 53, at 75. To elaborate, she explained:

The greatest error was made in the earlier Morales case, when the Court cut off state 
public enforcement against airlines under state unfair and deceptive practices legislation. 



Columbia Journal of Gender and Law146 34.1

in her law review articles has been noted in detail by her mentors, Professors Macaulay 
and Whitford.74 Not always so highbrow, she was also known to cite the band the Talking 
Heads in her footnotes.75 As a fellow fun lover, I was heavily influenced by her work and 
voice in developing my own career and scholarly voice. Professor Braucher always let her 
mentees, both junior faculty and students, know that they could be regular or even deeply 
unconventional76 people who need not put on airs in scholarship. In her own work, she 
built a legacy of continuing impact through junior colleagues, and also carefully modelled 
true enjoyment, even whimsy and humor, in her scholarship. For example, describing the 
conclusion of Grant Gilmore’s book, The Death of Contract—that free market extremism 
had killed contracts—she said:

In The Death of Contract, Gilmore struck a musty and slightly stodgy 
pose. He wistfully looked back to “the idea of unrestricted freedom of 
contract, which was surely one of the master concepts of nineteenth 
century thought.” He was confident that we had moved beyond such 
thinking, perhaps too far beyond.77

Going on and describing Gilmore’s critique of the traditional way in which contract is 
taught, she says:

State attorneys general have been an important resource for consumer protection. Federal 
inaction in consumer protection enforcement in recent years has left the states as virtually 
the only means of public enforcement. A private consumer fraud cause of action is less 
effective than public enforcement as a means of consumer protection. Least effective of 
all is the theory the Supreme Court preserved—a simple contract action, unsupported by 
attorneys’ fees and multiple or punitive damages to make litigation worth the time and 
trouble when small amounts are in controversy. The Supreme Court’s lack of sophistication 
concerning consumer law in action is uninspiring.

Id.

74  Macaulay, supra note 48, at 7–11; Whitford, supra note 46, at 30–31.

75  See Braucher, Afterlife, supra note 53, at n.1.

76  Professor Braucher was herself deeply unconventional in some ways. At one time she, tongue in cheek 
but with honest curiosity, questioned whether appellate cases should even appear in Contracts: Law in Action, 
the contract casebook she co-edited (2014). As she said in an email to her mentors Macaulay and Whitford, 
commenting on an article describing the origins and philosophy behind the casebook’s approach, “[T]he 
reported, fully litigated case is a freak, often atypical of disputes in general . . . . Why keep the appellate cases? 
If they are not representative, maybe they just mislead.” Whitford, supra note 46, at 31. 

77  See Braucher, Afterlife, supra note 53, at 49 (quoting Grant Gilmore, The Death of Contract (Ronald 
K.L. Collins ed., 2d ed. 1995)).



Columbia Journal of Gender and Law 14734.1

Despite Gilmore’s expressed admiration for Friedman’s Contract Law 
in America, he ignored not only Friedman’s main point, but his related 
observations about contracts teaching, which were scathing: “ . . . the 
common-law approach to law in the schools and in legal literature at its 
worst could be compared to a zoology course which confined its study 
to dodos and unicorns, to beasts rare or long dead and beasts that never 
lived.” This, alas, was just the kind of study Gilmore could not resist—he 
loved those dear dead dodos too much.78 

Describing the now much-maligned 2005 Bankruptcy Abuse and Consumer Protection 
Act in another article, she mentions that soon after enactment, bankruptcy experts began to 
refer to the new law “by the fanciful acronym BARF (perhaps for “BAnkruptcy ReForm 
Act” or “Bankruptcy Abuse Reduction Fiasco”).”79 She called this slang name for the law 
a “sure sign of the enterprise’s distress.”80 The law itself, Braucher claims, “commits two 
counts of intentional fraud in its name alone: one, because it does not do a good job of 
preventing abuse and two, because it does not protect consumers.”81

In a paper that proposes a single chapter or portal for consumer bankruptcy debtors, 
she tells it like it is, asserting that Chapter 13 has lost its luster, but never had much to begin 

78  Id. She goes on to honor Professor Gilmore with her own take on his enticing, if not overdramatized, idea 
that rational contract doctrine might actually be dead:

Contracts can seem like a field where nothing ever happens, which indeed would make 
it a dead subject. We sometimes appear condemned to rehearse dualisms—classicism 
versus romanticism, independence versus interdependence—ad infinitum and ad nauseam. 
Lecturing in 1970, Grant Gilmore had the good fortune to believe that something had 
happened, although he named the event a “Death.” He at least pretended to believe that 
classical contract doctrine had died with laissez-faire thinking. He also professed to think 
that an ethos of interdependence had prevailed in law as in economics. If so, one might 
think some modest celebration appropriate, rather than mourning, but that would have 
spoiled the drama of Gilmore’s title, and what he believed in most of all was the value of 
telling a good story.

Id. at 49.

79  Jean Braucher, A Fresh Start for Personal Bankruptcy Reform: A Need for Simplification and a Single 
Portal, 55 Am. U. L. Rev. 1295, 1296 (2006).

80  Id.

81  Id.



Columbia Journal of Gender and Law148 34.1

with, since most Chapter 13 debtors do not finish their repayment plans and so never get 
their bankruptcy discharge. She explains:

Although many well-meaning and optimistic debtors entered into Chapter 
13 to try to do the right thing, two-thirds did not complete their plans. 
Now, Chapter 13 is less voluntary and, for several reasons, even less 
promising as a way for debtors to deal effectively with their problems. As 
a result, perhaps Chapter 13 will wither away, or better yet, future reform 
legislation could deliver the coup de grace.82

In perhaps my own favorite passage, she refers to the Republican Party’s “Contract 
with America” as an unenforceable contract of adhesion.83 Again not afraid to tell us how 
she really feels, words like “outrageous”84 or “outlandish” are fair game in her scholarship, 
as in this passage on fraud theory:

Part I of this article will explain why the question whether to bar a fraud 
theory in a contractual context is not close. The answer should clearly be 
no. It will further explain why it is outlandish to suggest that consumer 
protection statutes were intended to be limited to cases in which the 
consumer did not enter into a contract with the deceiver or the fraud did 
not directly concern the subject-matter of the contract.85

82  Id. at 1298.

83  See Braucher, Afterlife, supra note 53, at 53. For some context on what this “Contract with America” was, 
see Whitford, supra note 46, at 19–20. He explains,

Jean lamented the neoclassical revival clearly occurring in academia in 1995, and she 
associated that revival with the seeming popularity (at the time) of Newt Gingrich’s 
political rhetoric about a “Contract With America” in the 1994 election campaign. The 
Republicans had just won a substantial victory in the 1994 congressional elections, 
becoming the majority party in the House of Representatives, and Gingrich’s rhetoric (he 
called it a program) was given some credit.

Id.

84  “An even more outrageous development is the extension of an economic loss rule to statutory consumer 
protection claims.” Braucher, Deception, supra note 52, at 855. 

85  Id. at 834.



Columbia Journal of Gender and Law 14934.1

It is no wonder Professor Braucher’s collaborator, Professor Whitford, describes her as 
a “zealot in promoting the study of the law in action, particularly with respect to the study 
of contracts.”86 As she explained in an email to Whitford and Macaulay,

The law does not march forward so much as stumble on. If common 
law decisions matter much to powerful interests, statutes are likely to be 
employed, and even then, unintended consequences—or less charitably, 
tolerated injustices—are a common result. Law is about social struggle, 
and we never get neat, perfect conclusions.87

C. Warren’s Gifts 

1. Warren’s Background and Body of Work

Professor Warren, who is now a United States Senator for the state of Massachusetts, 
had a taste of the squarely middle class life enjoyed by Professor Braucher, but it was taken 
away at an early age. Speaking about her own background, Professor Warren explained:

Like a lot of you, I grew up in a family on the ragged edges of the middle 
class. My daddy sold carpeting and ended up as a maintenance man. After 
he had a heart attack, my mom worked the phones at Sears so we could 
hang on to our house.88

In her memoir, A Fighting Chance,89 one can learn more about this financially-
precarious upbringing, but the brief quote above demonstrates two things: first, the ease 
with which Professor Warren can communicate her ideas to almost anyone, and second, 
why she might be most passionate about helping the middle class hang on to its station 
in life. She was ahead of her time in living the drop in economic prosperity that many 
Americans have faced over the past two decades due to rising expenses and needs, flat 
wages, and the 2008 financial crisis. Professor Warren is watchful, no doubt in part because 
she knows exactly what it feels like to lose a lot and fear losing it all. She has seen first-

86  See Whitford, supra note 46, at 14.

87  Id. at 31.

88  Jody Kantor, Behind Consumer Agency Idea, a Tireless Advocate, N.Y. Times, Mar. 24, 2010, at A1; 
see also Elizabeth Warren on Families & Children, On Issues, http://www.ontheissues.org/Social/Elizabeth_
Warren_Families_+_Children.htm [https://perma.cc/2DGX-WRZU] (last visited May 1, 2016). 

89  Elizabeth Warren, A Fighting Chance 5–10 (2014). 



Columbia Journal of Gender and Law150 34.1

hand how easily one can slip out of the middle class. She has said that she “learned early 
on what debt means, how vulnerable it makes people, what the security of owning a home 
means.”90 Her background has given her the aura of a fierce warrior, a tough exterior with 
vision, and no fear of expressing herself.91

Like Professor Braucher, Professor Warren publishes and researches in many fields. 
She is most known at this point for her research regarding the need for more consumer 
credit regulation in mortgages, credit cards, and other financial products, but also has done 
extensive studies regarding how bankruptcy affects families,92 and what modern-day factors 
contribute to an increased number of bankruptcies.93 The impact of her work is exemplified 
by an article she co-wrote that led to the creation of the Consumer Financial Protection 
Bureau (“CFPB”), the first federal administrative agency with the authority to examine 
large creditors to ensure compliance with consumer protection laws.94 As such, the creation 
of the CFPB is arguably the single largest consumer law development in history.95

90  Id.

91  Id.

92  Skeel, supra note 46, at n.84.

93  Id. at 1094.

94  Whitford, supra note 46, at 27. 

95  This conclusion is my own, but the power of the CFPB is summarized in some of Professor Braucher’s 
work as follows:

The Dodd-Frank Act gives the CFPB five structural features that increase the likelihood 
of the Bureau engaging in significant consumer protection. First, it has a broad statutory 
mandate to protect consumers from a plethora of financial-product risks, including unfair, 
abusive, deceptive, and discriminatory practices, as well as regulatory authority over 
nineteen federal consumer-protection statutes. Equally as important, this is the CFPB’s 
sole mission. Thus, it does not face the perceived internal conflict of a dual mission that 
also includes prudential regulation of the safety and soundness of financial institutions. 
Prudential regulators often consider consumer protection to conflict with bank safety and 
soundness, because protecting consumers from harmful yet profitable products could hurt 
banks’ bottom lines. This conflict may be overstated; one potential lesson from the recent 
financial crisis is that a lack of consumer financial protection may lead to underwriting 
practices that are not sustainable in the long run. But regardless of the true extent of this 
conflict, the lack of a prudential mission means that there is no potential counterpoint 
to the Bureau’s consumer protection goals. Moreover, an agency whose raison d’être is 
consumer protection is unlikely to abandon its consumer protection mission because doing 
so would leave it with no purpose, and it is a rare regulatory body that wants to eliminate 
the justification for its existence.



Columbia Journal of Gender and Law 15134.1

Professor Warren has a colloquial charm in her writing that makes it very accessible 
and relevant. Besides the clear importance and relatability of the topics she writes about—
topics we all care about on almost every level, including debt, families, fraud deception, 
fairness, equality, and society as a whole—Professor Warren’s writing is plainspoken and 
direct, as the excerpts below demonstrate. She writes in short, simple sentences that are 
easy to follow, and at a reading level that the average person, rather than the average 
scholar, can access.96 She eliminates repetition by underutilizing transition sentences and 
tells stories through accessible structure, familiar language, and short paragraphs. It is 
some of the best legal writing in existence, in my opinion. 

2. Warren’s Work by Example

In her article, Stewart Macaulay: A Few Personal Reflections, Professor Warren 
described a contracts conference as a “highbrow knock-off of the Indy 500.”97 At the same 
conference, Professor Stewart Macaulay presented influential empirical data proving that 
business realities and practices are “far more influential on business relationships than 
legal remedies such as damages.”98 Given the extent to which the traditional doctrinal 
contracts professors were attached to their doctrine and threatened by challenge, Professor 
Warren explains that Professor Stewart Macaulay and his groundbreaking work were “the 
skunk at the picnic.”99 Professor Warren, like Professor Braucher, has expressed deep 
gratitude for the work and mentorship of Professor Macaulay. In Stewart Macaulay: A 
Few Personal Reflections, which recounts the many things for which Professor Warren 
is indebted to Macaulay, she repeats what we all now know, namely that “law isn’t free 
and that most people don’t know the law.”100 Describing her own work in this tribute to 
Professor Macaulay, she explains:

When I got into an argument with someone over how deeply unfair it was 

Jean Braucher & Angela Littwin, Examination as a Method of Consumer Protection, 87 Temple L. Rev. 807, 
821 (2015).

96  When running her text from Making Credit Safer, for example, through grade-level software, her text 
is written at approximately a college sophomore reading level. Oren Bar-Grill & Elizabeth Warren, Making 
Credit Safer, 157 U. Pa. L. Rev. 1 (2008).

97  Elizabeth Warren, Stewart Macaulay: A Few Personal Reflections, 2013 Wis. L. Rev. 1295, 1296 (2013).

98  Id.

99  Id.

100  Id. at 1296 (citations omitted).



Columbia Journal of Gender and Law152 34.1

to use contract law to enforce lopsided and unreadable terms in a credit 
card agreement or how bankruptcy laws should be expanded to offer more 
protection for people facing medical hardships, Stewart would cheerfully 
mock my passion to change the world, calling me “Sister Elizabeth.”101

She credits Macaulay with provoking “a deep hunger in me to find out how law really 
works and, in the process, to find out more about how the world works—and ultimately to 
learn for whom the law works.”102

In an article describing her most influential work to date, Making Credit Safer,103 she 
wrote that due to governmental regulation: “It is impossible [in the United States] to buy 
a toaster that has a one-in-five chance of bursting into flames and burning down your 
house,” but “innovation in financial products has produced incomprehensible terms and 
sharp practices that have left families at the mercy of those who write the contracts.”104 

Later, during the financial crisis, Professor Warren highlighted how before the 
subprime mortgage crisis the mortgage lenders’ fraudulent and deceptive practices had 
already stripped $9.1 billion in equity from homeowners and in 2008 alone cost lenders 
nearly $2.5 billion in losses.105

Professor Warren demonstrates bravery and several of the yoga principles in calling 
out these frauds. Clearly there is non-greed at work, as well as truthfulness. Professor 
Warren is now a politician and by being more moderate she could clearly garner a higher 
paying job, one that might be unavailable to someone who speaks the truth in terms as plain 
as these. Professor Warren also demonstrates non-envy in not reaching for these jobs. She 
is clearly qualified but does not strive for that kind of fame. She would rather speak the 
truth than allow it to be shoved under the rug. She has put others who are less fortunate 
ahead of herself in sharing these views in such vehement ways. 

101  Id. at 1297.

102  Id. at 1296.

103  Bar-Gill & Warren, supra note 96.

104  Elizabeth Warren, Making Credit Safer, Harv. Mag. (May-June 2008), http://harvardmagazine.
com/2008/05/making-credit-safer-html [https://perma.cc/PXC2-9PK3] (last visited May 1, 2016).

105  Marvin N. Bagwell, Can’t Live Without Air: Title Insurance and the Bursting of the Real Estate Bubble, 
30 Pace L. Rev. 180, 224 (2009) (citations omitted).



Columbia Journal of Gender and Law 15334.1

Being provocative and selfless, and speaking the truth, is nothing new for Professor 
Warren. She expressed unpopular views long before she became a United States Senator. 
For example, in Financial Collapse and Class Status: Who Goes Bankrupt?, Professor 
Warren explains her counterintuitive but resoundingly clear conclusion that bankruptcy is 
a middle class phenomenon, stating, 

The data presented here make it clear that, whatever their current economic 
circumstances, the families in bankruptcy share many of the same 
educational, occupational, and home buying experiences as other middle-
class Americans. Their deep financial distress suggests a growing reason 
for concern about these families, who make up the heart of America.106

There is no doubt that being female is a defining part of her being and a core part of 
her scholarly perspective. She has said: “The word’s out: I’m a woman, and I’m going to 
have trouble backing off on that. I am what I am. I’ll go out and talk to people about what’s 
happening to their families, and when I do that, I’m a mother. I’m a grandmother.”107 In 
Families Alone: The Changing Economics of Childrearing, she explains:

Families with children are under assault. The assault is quiet, attracting 
no newspaper headlines, no congressional investigations, no knowing 
conversations at dinner parties. The assault is stealthy, but no less 
dangerous to the financial survival of these families and their children—
and ultimately to the survival of the middle class itself.108

She further explains that “[h]aving a child is now the single best predictor that a woman 
will end up in financial collapse.”109 Warren attributes this remarkable conclusion to rising 
education costs and the financial sacrifices parents make to meet those costs, as well as 
rising health care costs for families.110 

106  Elizabeth Warren, Financial Collapse and Class Status: Who Goes Bankrupt?, 41 Osgoode Hall L.J. 
114, 149 (2003).

107  Elizabeth Warren on Families & Children, supra note 88 (citing Samuel P. Jacobson, Warren Takes 
Credit for Occupy Wall Street, Daily Beast (Oct. 24, 2011), http://www.thedailybeast.com/articles/2011/10/24/
elizabeth-warren-i-created-occupy-wall-street.html [https://perma.cc/P484-XED7]).

108  Elizabeth Warren, Families Alone: The Changing Economics of Rearing Children, 58 Okla. L. Rev. 
551, 551 (2005).

109  Id. at 552.

110  Id.; see also Melissa B. Jacoby & Elizabeth Warren, Beyond Hospital Misbehavior: An Alternative 



Columbia Journal of Gender and Law154 34.1

Professor Warren produces right scholarship, not so much through the whimsy 
Professor Braucher expressed, but through vivid imagery, as this passage from Bankrupt 
Children demonstrates:

To capture your attention, I might start this Essay with photographs of 
people in the bankruptcy court. Instead of anxious women and angry men, 
I would flash up pictures of small babies in oversized plastic car seats and 
toddlers trying to wiggle off their mothers’ laps. There would be photos of 
older children, studiously avoiding eye contact with anyone, and teenagers 
charged with corralling their younger siblings. Images are powerfully 
important to shaping our attitudes toward everything from cornflakes to 
life insurance, and bankruptcy is no exception.111

This is right scholarship because it speaks to us on issues we care about deeply. In 
Bankrupt Children, Professor Warren goes on to say:

If I showed you photographs of these children, you might come to 
understand bankruptcy differently. You might be more sympathetic to 
families in financial trouble. You might have a newfound appreciation 
for the impact of legal policies that affect whether these babies’ mothers 
will compete with credit card companies when they try to collect child 
support from their ex-husbands or whether third graders will have to 
change schools because their daddies did not see the traps in mortgage 
refinancing.112

Describing the fate of American families, no doubt from her research but also her life 
experiences, she claims that “the answer to the question of greater support for families 
is not obvious. It requires a shared vision about our collective responsibility to support 

Account of Medical-Related Financial Distress, 100 Nw. U. L. Rev. 535 (2006). For a further discussion of the 
ramifications of this work, see Angela P. Harris, Loving Before and After the Law, Loving Before and After the 
Law, 76 Fordham L. Rev. 2821, 2844–45 (2008).

111  Elizabeth Warren, Bankrupt Children, 86 Minn. L. Rev. 1003, 1004 (2002).

112  Id.



Columbia Journal of Gender and Law 15534.1

children.”113 Finally, she says that “the data are relentless: Married or single, families with 
children are in crisis.”114

In one of my favorite articles by Professor Warren, she demonstrates satya (truthfulness), 
asteya (non-stealing), aparigraha (non-greed), and ahimsa (non-harming) in calling out 
banks on some very controversial findings. By using hard data, she shows that even when 
adjusted for income, bankruptcy and predatory lending hit people of color harder than 
white people.115 When explaining the problems with race and predatory lending she is 
direct and cuts right to the truth of the matter:

The connection between predatory mortgage lending and race is 
unmistakable: Predatory lenders target black and Hispanic homeowners. 
They are, of course, glad to take a subprime mortgage from anyone, but 
they redouble their efforts to saddle families they see as vulnerable with 
burdensome mortgages, and that includes black and Hispanic families. In 
2002, Citibank’s subprime lending subsidiary was prosecuted for deceptive 
marketing practices, and the company paid $240 million to settle the 
case—at the time, the largest settlement of its kind. A former loan officer 
testified about how she marketed the mortgages: “If someone appeared 
uneducated, inarticulate, was a minority, or was particularly old or young, 

113  Id. at 1024. 

114  Elizabeth Warren, The Growing Threat to Middle Class Families, 69 Brook. L. Rev. 401, 408 (2003).

115  See Elizabeth Warren, The Economics of Race: When Making It to The Middle Is Not Enough, 61 Wash. 
& Lee L. Rev. 1777, 1787 (2004). As she explains:

The data also suggest that problems that drive families into bankruptcy—jobs, medical, 
and family breakups—are hitting some racial groups harder than others. The data show that 
among the filers, whites, Hispanics, and blacks are all likely to be in bankruptcy because of 
jobs losses in about the same proportions. But dividing the data by their proportions in the 
population demonstrates that Hispanics are filing for bankruptcy because of job problems 
about twice as often as non-Hispanic whites, and blacks are filing for job reasons at about 
three times the rate of their white counterparts. The same is true for medical problems 
and family breakups. Similar problems seem to drive families of all racial groups into 
bankruptcy, but those problems trigger far more bankruptcies among Hispanic and black 
families than among white families. The data strongly support the inference that economic 
stress related to race is not concentrated solely among the chronically poor. Instead, middle 
class families of color are under substantial pressure—pressure that is pushing substantial 
numbers into bankruptcy every year.

Id. 



Columbia Journal of Gender and Law156 34.1

I would try to include all the [additional costs] CitiFinancial offered.” In 
other words, lending agents routinely steered “minority” families to higher 
cost loans whenever they thought there was a chance they could get away 
with it.

Such steering hits minority homeowners with particular force. Several 
researchers have shown that minority families are far more likely than 
white families to get stuck with subprime mortgages, even when the data 
are controlled for income and credit rating. According to one study, black 
borrowers are 440% more likely than white borrowers to end up with a 
subprime rather than a prime mortgage. In fact, residents in high-income, 
predominantly black neighborhoods are actually more likely to get a 
subprime mortgage than residents in low-income white neighborhoods—
more than twice as likely.116

Even though she was one of the first to call out these racial inequalities with real 
empirical research, she is humble in her approach, demonstrating asteya by giving credit 
to others, and brave in expressing her truth through satya:

Minority rights groups are well aware of the dangers of the predatory 
lending industry. There is, however, an important question of how high 
economic issues should rank in their list of priorities. When Senator Trent 
Lott seemingly expressed his nostalgia for a segregated America, minority 
groups around the country barraged the talk shows and newspapers, and 
Senator Lott was ultimately stripped of his powerful position as Majority 
Leader of the Senate. Similarly, when Texaco executives were accused of 
using racial slurs to refer to blacks, the company was boycotted, sued for 
millions of dollars, and forced to adopt new practices to ensure that its 
black employees had better opportunities. But when a Citibank official said 
in sworn affidavits that she regularly added extra fees to a home mortgage 
“[i]f someone . . . was a minority,” there was little response. Citibank 
quietly agreed to a cash settlement with the FTC, and there were no press 
releases from the NAACP, no extended discussions on Hispanic radio 
stations, no interviews on the evening news, and no calls for Citibank’s 
highly visible CEO Sandy Weill to resign.117

116  Id. at 1794–95.

117  Id. at 1798. She further explains that:



Columbia Journal of Gender and Law 15734.1

Thus far, we have focused on Professor Warren’s style and way of reaching people as 
a legal scholar. Now there is a postscript to school life that can be seen in her work as a 
public servant and United States Senator. As she says, “I know what I am in Washington 
to do: I’m here to fight for hardworking families.”118 She explains our social responsibility 
to one another in the same plainspoken terms: “Now look, you built a factory and it turned 
into something terrific or a great idea, God Bless, keep a big hunk of it. But part of the 
underlying social contract is you take a hunk of that and pay forward for the next kid who 
comes along.”119

Continuing the theme, she has said, “I hear all this, you know, ‘Well, this is class 
warfare, this is whatever.’ No. There is nobody in this country who got rich on his own—
nobody.”120 As to the bankers who find her to be thorny, she says, “I made it real clear to 
the business community—if your plan for innovation is to trick people, is to fool them, 
is not to tell them the truth about the price, then you’re right: I’m going to be right in the 
way.”121 She can still talk to all of us, not just the scholars, as this quote about a complex 
topic shows: 

There are other signs that homeownership does not represent the same wealth accumulation 
for black and Hispanic families as for their white counterparts. Among white homeowners, 
median mortgages were about 56.9% of the median value of their homes. Nonwhite 
and Hispanic families carried larger median mortgages relative to the value of their 
homes—66.3%. This suggests that across the board, whether they have been ensnared by 
predatory lenders or not, nonwhite and Hispanic homeowners are taking on more mortgage 
debt relative to the value of their homes. This mortgage debt leaves them with less equity 
in their homes and relatively larger debts that must be paid even during times of financial 
reversals.

Id. at 1786.

118  Noam Scheiber, Hillary’s Nightmare? A Democratic Party That Realized Its Soul Lies with Elizabeth 
Warren, New Republic (Nov. 10, 2013), https://newrepublic.com/article/115509/elizabeth-warren-hillary-
clintons-nightmare [https://perma.cc/HXW9-AR67]. 

119  Lucy Madison, Elizabeth Warren: “There is Nobody in This Country who Got Rich on His Own”, CBS 
News (Sept. 22, 2011), http://www.cbsnews.com/news/elizabeth-warren-there-is-nobody-in-this-country-
who-got-rich-on-his-own [https://perma.cc/KE2Q-NW2X]. 

120  Id.

121  Deirdre Fulton, “Did You Have Your Eyes Stitched Closed?” Warren Blasts Former Official, Common 
Dreams (Apr. 6, 2016), http://www.commondreams.org/news/2016/04/06/did-you-have-your-eyes-stitched-
closed-warren-blasts-former-fed-official [https://perma.cc/B6NM-FSWQ].



Columbia Journal of Gender and Law158 34.1

Markets work when people can evaluate the prices and risks of different 
products, then pick the ones that work best for them. But when the terms 
of the deal are hidden, competition doesn’t work. And customers aren’t the 
only ones who are hurt.122

Finally, in one of the best quotes flowing from the 2008 financial crisis, Senator Warren 
questioned claims by regulators that they had insufficient data to conclude that the 2008 
meltdown was tied to loose 2005–2006 mortgage practices. Dubious, she asked, “Did you 
have your eyes stitched closed?”123 Like Professor Braucher, Elizabeth Warren embodies a 
fierce warrior for the underdog and the principles of non-harming, truthfulness, non-envy, 
non-greed, and continence.

CONCLUSION

One needn’t be a deity to produce meaningful scholarship but one does need optimism, 
perseverance, a sense of what it means to do the right thing, as embodied in the yoga yamas 
and in every major religious tradition in the world, and above all, passion. We can all learn 
from commercial law goddesses Jean Braucher and Elizabeth Warren, and can all benefit 
from the path they forged for us in the tradition of right scholarship. Given what each has 
accomplished for the world at large, we can also all share in their deep optimism that legal 
scholarship can make a difference in the world. In short, Jean Braucher and Elizabeth 
Warren have lived the principles of the yamas in all the best ways, and we can only strive 
to do the same. In other words, we only have so many breaths.124 We must choose carefully 
and make every one count. 

122  Elizabeth Warren, Tricks, Traps, and Accountability, Huffington Post (Jul. 23, 2012), http://www.
huffingtonpost.com/elizabeth-warren/cfpb-anniversary-consumer-protection_b_1695547.html [https://perma.
cc/UG28-QDNN]. 

123  Siri Bulusu, Republicans Chide CFPB, as Warren Takes on Former Fed Officials, Market Watch 
(Apr. 25, 2016), http://www.marketwatch.com/story/republicans-chide-cfpb-as-warren-takes-on-former-fed-
official-2016-04-05 [https://perma.cc/K5E7-NMAZ].

124  See Franti, supra note 5.