Nesson says Rakoff suggested he remove himself from teaching 1Ls

BY OWEN ALTERMAN

Days after stepping aside for others to teach his Torts class, Professor Charles Nesson now says he was encouraged to do so by J.D. Dean Todd Rakoff. In an interview with the RECORD, Nesson also called on the administration – particularly Dean of the Faculty Robert Clark – to state publicly that the move was not designed to discipline him.

Nesson’s comments shed light on the unusual decision last week for Rakoff and Professor Mort Horwitz to conduct Section IV’s Torts classes until the end of the semester. The decision came on the heels of the recent race-related controversy that began in the section, which prompted a student protest last Monday. Some students were particularly riled by Nesson’s offer to represent 1L Matthias Scholl, who sent an anonymous e-mail using the word, “nigger,” in a mock trial.

Both the Nesson decision and the race controversy have caught the eye of the national media, including an article in Saturday’s New York Times. In a story filed by the Associated Press on Monday, Rakoff said Nesson had agreed to the plan because Nesson felt he “could do more for his students this way.”

In the RECORD interview, Nesson said he considered Rakoff a friend, and did not refer to Rakoff as “the baby dean” as he has in past interviews. “I took [the plan] as an offer of assistance, generously made by Todd, for whom I have the utmost amount of trust, for bringing a divided section back together,” Nesson said.

But Nesson had harsh words for Clark, saying, “I’m confident of Todd, but there are those beyond of whom I can’t speak. Bob Clark has so far said nothing, and I’ve seen the school make no effort, at least no effort of consequence, to alter the public impression that I’ve been yanked,” he added.

Nesson defended his mock trial scheme as a “pedagogic moment,” designed to resolve the issues by engaging students in discussion.

“I was met with the claim that this is not a pedagogical moment,” he said, “by suggesting that subjects not be explored in a legally structured way, should not be discussed in class.”

As for the larger controversy, Nesson said he views the BLSA protests as part of wider racial discontent at the university. In discussing the controversy, Nesson frequently mentioned the controversy surrounding Afro-Americna Studies Prof. Cornel West and President Lawrence Summers.

“If we’re part of a larger story, then the law school’s not in charge of its own story,” Nesson said. “The question is, what is the whole story? Was [Summers’ attitude toward West] an expression of hostility toward black people, or was this a way of insensitivity in the way the president went about it? That’s the difference between intentional and unintentional tort. And that’s the story I believe remains to be told.”

“I credit BLSA for having proceeded with an excellent strategy and complete civility.

“But nonetheless, when you write a letter to the Deans and the Harvard Law RECORD, you look for targets. And that’s where two white guys named Nesson and Rosenberg come in. Both of us are passionate teachers, both of us believe that law school is a place to meet tough issues head on and discuss them,” Nesson said.

In a letter in last week’s RECORD, Nesson answered BLSA’s demands by offering “to appear before you to answer the complaint you have made against me” provided, Nesson wrote, “that the proceedings be recorded.” BLSA had rejected the idea, Nesson said, without explanation.

Nesson has been known for recording his own journal entries as well as conversations with others. Among the interviews posted on his web site is one conducted with the RECORD in February in which he discussed his use of marijuana.

After Nesson’s comments were reported in the Washington Post and elsewhere, Clark sent Nesson a March 8 letter that asked for “an assurance that you do not engage in any prohibited conduct.” It added, “I strongly believe it is inappropriate for a member of Harvard’s Faculty of Law to use a controlled substance in violation of the law under any circumstances.”

On March 11, Nesson responded that he “will comply fully with Harvard University’s and Harvard Law School’s rules and policies with respect to controlled substances.” He said Tuesday that there has been no further action by the administration on the issue.

As for his future at HLS, Nesson said he plans to teach Evidence in the winter term, but will be on leave in the fall.

“What I’d like to see is me continue to be a respected member of this faculty, and I’d like to see Harvard Law School address its issues of concern in ways that express our full commitment to open discussion, to the challenge that students come here to learn about real life. And I’d like to see Harvard Law School contribute to the resolution of the greater crisis here at Harvard,” Nesson said.

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