Web Letters: God, trees, dialogues, and selling out

BY

You Don’t Have to Sell Out For Cash

For those of you who came to Harvard Law School with the hope of eventually working at a prestigious corporate law firm, negotiating the minutiae of mergers and acquisitions, and defending multinational corporations from pesky ambulance chasers, more power to you. You came to the right school.

For the rest of us, however, Harvard Law School is a messy place. Many of us anticipated romantic legal careers immersed in the pursuit of justice. Many of us expected to serve vulnerable populations and defend inalienable constitutional rights. Many of us thought the law was more than a means to make money. But about 30 days into our legal education, we became all-too aware of The Choice: sell out for piles of cash or sacrifice the money for noble work.

The vast majority of self-titled do-gooders sell out, and it’s often a painful process. First, they fail their personal test of moral character, and shame sets in. Second, they embrace a flood of rationalizations: money, parents, training, money, only for a few years, loans, money, it’s time to grow up, chance of a lifetime, money, etc. Third, they resign themselves to low expectations and the trivialization of their time and talent. “Too often we take eager, idealistic law students and turn out jaded, bored, greedy J.D.s who just want to make money,” said retired professor emeritus Roger D. Fisher.

The real tragedy of the selling out process, however, is not that it’s prevalent but rather that it’s entirely unnecessary.

An opposition doesn’t always exist between public interest work and private firm work. There are about 600 “private public interest firms” and/or admirable plaintiff firms in the United States, and most of them are efficiently catalogued at the website www.just-advocates.com. (Just Advocates is the brainchild of Professor John Hanson and several of his students.)

Private public interest firms usually represent plaintiffs in lawsuits against corporations, governments and other institutions. Most of them focus on making systemic changes through litigation, unlike many other trial law firms, and they vary significantly in practice areas and character. Milberg Weiss, the unrivaled prosecutor of securities fraud and the lead counsel in the Enron lawsuits, employs over 250 attorneys in seven cities, and offers starting salaries of $125,000. By contrast, the Law Offices of Masry and Vititoe, where Erin Brokovich still works, consists of two attorneys and support staff who focus almost exclusively on toxic tort cases in Southern California.

There are dozens of other compelling practice areas: civil rights, government fraud, worker’s compensation, whistleblower protection, human rights, qui tam (False Claims Act), consumer protection, securities fraud, union/labor rights, immigration law, holocaust litigation, sexual harassment, First Amendment, family law, police misconduct, disabilities law, tobacco litigation, medical malpractice, campaign and elections law, environmental law, gay/lesbian rights, class actions, products liability, anti-trust, children’s rights, affordable housing law, utilities and energy law, etc. Berger & Montague, for example, is a 55-attorney firm in Philadelphia that files class-action lawsuits against American corporations that have committed gross human rights abuses abroad.

For students who lack the courage or financial security to pursue a career in the non-profit community, these firms offer an attractive third option. Starting salaries range from $45,000 to $125,000, with mid-size firms paying about $75,000. The office culture is often friendly and laid-back, and the track to partnership is typically less competitive than at corporate firms. On average, attorneys at private public interest firms work 250 hours less a year than corporate attorneys, and most of them are emotionally invested in their work – committed, somehow, to the pursuit of justice.

So, where are all the plaintiff firms? And why aren’t Harvard law students chasing after them? Some of the blame rests squarely on students’ shoulders. Most Harvard law students have rarely deviated from the paths set out before them; on the contrary, they have succeeded by adopting popular notions of achievement and obeying institutional authority. Now, the yellow brick road leads to Cravath Swaine & Moore.

Harvard Law School itself, however, is responsible for the invisibility of plaintiff firms on campus. The Office of Public Interest Advising can only cursorily address plaintiff firm career options, and the Office of Career Services is primarily focused on hosting corporate law firms. A third office exclusively committed to informing students about plaintiff firms should be established. Only the creation of a third office would discredit the illusory choice between financial security and principle, socially normalizing three major career options.

Today, Harvard Law School graduates hundreds of corporate lawyers destined for work that is often meaningless and sometimes harmful. An office for plaintiff firms would attract many of these students, who want vacations in Paris without having to suffocate their consciences at the workplace.

– George Farah, 1L


Dissenting against the law

In a recent column, Lee Strang blames the sex abuse scandals that have overtaken the Roman Catholic Archdiocese of Boston on a culture of dissent (“The Church of too much dissent,” April 10, 2003). As examples, he points to dissent on church teachings in regards to women’s ordination, pre-marital sex, and “democracy” within the church. I don’t pretend to know, or care, about various arguments that might exist for, or against, the canon position on these issues. I do find it troubling that he groups these matters in the same category as the sexual abuse of children. What Strang must be aware of, but fails to mention, is that molesting children is not only a way of “dissenting” against Catholic teachings on celibacy, but of “dissenting” against the law. The RCAB wouldn’t be in quite so much trouble if a number of its priests had been fornicating with consenting adults or holding unorthodox masses. To Strang, I suppose that violations of secular law aren’t that significant next to direct defiance of the will of God. From the perspective of this particular heathen, however, that mind-set is the origin of the current crisis within the Catholic Church. That, and that there is far too little dissent within it, rather than too much.

Strang suggests that other parts of the nation are unscathed by the abuse scandals, whereas the RCAB is a church in crisis as a result of too many people questioning church teachings. This statement is puzzling, because two percent of priests nationwide, not just in Boston, have been accused of molesting children. Victim support groups for those molested by priests have arisen in over thirty states, including several in the Midwest, and legal action has been taken in over half of those states. What, then, is the standard for being unscathed by the sex abuse scandals, if it is not few incidents of abuse? Fewer lawsuits? Less negative publicity? High attendance at mass? All of these standards are unacceptable, because they place a higher value on the Church than on the well-being of abuse victims. This is the same manner of thinking that was adopted by leadership within the RCAB in dealing with individual cases of abuse.

Throughout the sex abuse scandals, there has been a troubling attitude on the part of the Church that it can operate outside of the rules of secular society. Victims and their families seldom reported incidents to the police, sometimes because of embarrassment, but just as frequently because they were told that church officials would deal with the matter internally. In almost every case, “dealing with the matter” consisted of either moving priests between parishes or taking all necessary steps to keep the incidents from becoming public knowledge. It is because of this that the RCAB is now subject
to a criminal grand jury investigation. Still refusing to accept its place under the law, the RCAB has argued that it is immune from civil and criminal liability for the manner in which it dealt with the molesting priests on First Amendment grounds.

The current situation could have easily been remedied if priests or bishops in the hierarchy spoke up rather than adhering to the RCAB policy. Not only would that have made the task of bringing individual priests to justice easier (as there would not have been problems pertaining to the statute of limitations) but the priests would have been restrained from harming more victims. Unfortunately, the Catholic Church cultivates the same idea that Strang premises his article on. Namely, that it is the supreme source of divine authority. For bishops and priests, this idea is a justification for placing the welfare of the church above the welfare of society. The real problem with the way that the Church dealt with the numerous sexual abuse allegations is that no one within the hierarchy dissented from this view. Instead, they circled the wagons, protected their priests, and in many cases, treated victims as wrongdoers.

I suppose Strang has good reason to fear dissent. After all, the last time there was major dissent in the Catholic Church, Protestantism was born. But while I have never had any real experience with the sort of faith that Strang professes, his column reminded me of a quote from Senator James Fulbright. Fulbright said that dissent was an act of faith. To Fulbright, dissent on the part of the individual had a dual function in spurring an institution to do better things and expressing the belief that improvement was possible. If Strang’s contention is that dissent is incompatible with basic Catholic beliefs and that its very existence threatens the Church as an institution, then I can’t help but wonder if maybe the Catholic Church has bigger and deeper-rooted problems than the current scandals making headlines.

– Amanda Gregory, 2L


Harvard students deserve a better environmental law program

To those of you who know me, it’s probably no big surprise that I’m writing an editorial about the need to improve environmental law at Harvard. “What a shock,” you’re probably saying. “Chris is blabbing about the environment again.” Yes, indeed, I’m that self-professed tree hugger on the Harvard Environmental Law Review. I write papers about global warming and actually eat the tofu dishes at the Hark. Hell, I even bring my own bags to the supermarket. I mean, we’re talking crazy stuff.

But improving Harvard’s sub-standard environmental law program is something that all of us should support. And, in fact, a huge number of us do support it. Today, a petition signed by 350 law students was delivered to President Summers, Dean-designate Kagan and the entire law school faculty. In the letter, these students – myself included – ask for rapid improvements in Harvard’s “long-suffering” environmental law curriculum.

Harvard is the second largest law school in the country, yet we have exactly zero faculty members that specialize in environmental law. Harvard had over 45 classes in corporate and tax law last year, but next year we will have six classes in environmental law. Harvard claims that we will have seven, but this is a bit of a stretch, and perhaps you’ll forgive me for refusing to include “European Union Law” in my list of environmental offerings. Either way, next year we’ll have fewer environmental courses than Yale (eight), a school a third of our size. Stanford, also one-third our size, has nine. Boalt, at half our size, has ten. New York University has multiple environmental faculty members, including the Dean of their Law School.

Don’t get me wrong. Actually, next year’s curriculum and visiting professors are a big improvement over years past, and for Harvard, six classes is a lot. The administration should be commended for some of its efforts, as should the tirelessly committed foot soldiers of the Environmental Law Society for keeping the issue on the radar. But there’s still a long way to go. As the signers of the petition state, “without consistent instructors or course offerings, environmental law fails to influence or interact with the broader HLS community and curriculum.” And if we don’t have faculty or a consistent program, it’s just impossible for students to cultivate relationships and contacts within Harvard and with the outside environmental legal community.

Why should you care? Maybe because, like the 350 signers of the letter, you care about environmental law and wish HLS had a better program. Maybe you’d like to take classes in the field or at least have the opportunity. Maybe you hate environmentalists like me, and would like to learn a little environmental law so you can beat back our frivolous tree-hugging law suits.

Another possibility: Maybe you don’t really care about environmental law, but recognize that environmental law relates to areas of law you do care about and feel that a better environmental law program would help Harvard’s overall curriculum. After all, environmental law isn’t just for softies like me. Every corporate real estate transaction involves environmental due diligence. Environmental justice is an exploding area tying together environment and civil rights. We’d be better law students – and better lawyers – if HLS provided at least a modicum of access to expertise and insight into this area of law.

Or maybe you don’t care about environmental law from any academic standpoint at all. Still, you recognize that HLS’s poor environmental reputation at least marginally harms the overall status of HLS, affecting you indirectly. And I’m tired of people being surprised that anyone at Harvard Law would be interested in this field. That’s not just bad for me, it’s bad for all of us.

The point is, there are a whole lot of reasons to support environmental law and push the administration to make it a priority. We’re hopeful that Dean-designate Kagan will put this at the top of her list, and we know the administration is aware of this need. But they need to understand that there are a whole lot of students here who see this as a major issue and a major need. As the letter concludes, “Harvard Law should be as rewarding a place to study and explore environmental law as it is a place to study and explore so many other fields of law.” I couldn’t have said it better myself.

– Chris Giovinazzo, 2L


Disquieting dialogue

There is something disquieting about the give and take in the law school classroom. Generally, one observes two types of disagreement in this environment. First, there is disagreement on how to apply a jurisprudential principle that the rival parties agree upon as proper for obtaining the right legal outcome. An example is when parties differ on whether the costs or benefits are larger in a case where cost-benefit analysis is the agreed upon ground for resolving the legal question. Second, there can be differing views over which jurisprudential principle should guide the very inquiry into whether a legal decision is just.

Along the same lines as the prior example, such disagreement could be over whether cost-benefit or rights-based analysis should guide the inquiry into the justice of the decision at hand. For the purposes of this article, I will limit my discussion to the latter.

A representative platform in which to illustrate the disquieting nature of such disagreements are questions of Constitutional import, mainly because they serve as the battleground for various competing views of jurisprudential obligation. A typical exchange between a typical liberal and a typical conservative in class may go something like this:

Liberal: “The death penalty is unconstitutional because it is ‘cruel and unusual.'”

Conservative: “But the framers obviously did not think so since they supported the death penalty.”

Liberal: “But societal views of what is ‘cruel and unusual’ have chang
ed, plus we know more about the bad effects of the death penalty now and its inability to deter murder.”

Conservative: “Who cares? If you want to incorporate those views into the Constitution then use the amendment process, don’t change what the text obviously meant through judicial fiat.”

Three observations about this hypothetical exchange. First, the two views presuppose differing sources of jurisprudential obligation, the conservative’s being the original meaning of the text and the liberal’s being contemporary understandings of what “cruel and unusual” mean.

Second, as a matter of course, each of these views is likely derived from some higher ideal, the application of which to constitutional questions produces the aforementioned principles as the means to obtain just answers. For the conservative this may be a belief in the rule of law as fundamental to the establishment of a just political order and for the liberal, that the Constitution should be used as a means towards which notions of the good and human rights can be incorporated into our society. Third, it follows from these two prior observations that the exchange above is not really an argument. Rather, it is a case of asserting one’s conception of jurisprudential obligation in opposition to another, without providing a rational basis for choosing between them. To overcome this, instead of repeatedly asserting the jurisprudential principle that one believes is binding, one must confront the very source of disagreement: the ideal from which the opposing principle derives.

So, an exchange that confronts competing views of jurisprudential obligation may proceed thus:

Liberal: “The death penalty is unconstitutional because it is ‘cruel and unusual.'”

Conservative: “But the framers obviously did not think so since they supported the death penalty.”

Liberal: “Even so, I see no reason for those few rich white men who believed in slavery to be the standard-bearers for what is ‘cruel and unusual’ when we clearly know, looking at what they did permit, that their understanding of that standard was wrong.”

Conservative: “To accept such a principle is to eviscerate any notion of constitutional order in this country. Unless the courts consistently obey the Constitution as the Framers understood it, our ability to safeguard any right or the common good is reduced to nothing.”

And so on.

Yet, to suggest that our classes change to such dialogue would be to challenge that for which it is supposed to prepare us: the legal world at large. If judicial proceedings (appellate litigation especially) are exactly such a sophistic enterprise, consisting of the rattling off of various principles, all of which derive from competing notions of jurisprudential obligation, in the hope that the judge will grab one or two to use in making his decision, then, without a doubt, discussion in the law school classroom is preparing us for our future careers.

I simply suggest that something is disquieting about this process, a process by which many class discussions and contemporary legal decisions are carried out. At times it may seem to be a charade that judges use as a vehicle for advocating their own pre-packaged legal philosophies. Worse, however, it may represent a hesitancy to confront those very organizing principles that underlie ones’ allegiances to one decision over another because of the consequent foisting of the student/lawyer into a metaphysical and existential realm that the post-modern mind dares not enter for fear of finding nothing to hold on to.

– Michael Fitzpatrick Lorelli, 1L

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