1L: The Year of Magical Thinking

We used to play Risk a lot—at least before we banned it from our group of friends. Huddled around a cartoonish map of the world, the playful pretenses of diplomacy inevitably gave way to thunderous orations, boisterous claims about moral obligations, and the priggish suggestion that one’s conduct in Risk is emblematic of one’s “true” character.

Backstabbing me to steal Kamchatka? So Theo.

Pardon the obvious assertion, but Risk—a game of dice, probabilities, pretend countries, and post-it treaties—bears little resemblance to war. One crosses borders, sacrifices brigades, and launches cannons with the alacrity of a child breezing past Lord Licorice in Candyland.

The 1L curriculum—with its abstract, irrelevant puzzles and deliberate obscurantism—is as close to describing the legal reality of American life as Risk is to describing the horrors of war. It’s a world of make-believe and fantasy, a world where contracts are based on consent, where the only criminals are shadows lurking around street corners, and the biggest question for someone seeking legal recourse is whether to appear in federal or state court.

In short, the 1L curriculum at Harvard Law School is completely divorced from the real world.

Rather than illuminate the struggles and challenges that most Americans face every day, the 1L curriculum serves to obscure the most pressing matters of social and economic importance in favor of logic games couched in the pretense of doctrine and history.

Take, for example, Contracts. How many contracts have you signed today? Personally, I’ve clicked “I agree” to a few updates on my computer, acquiesced to some privacy changes on a social networking site, purchased a warrantied backpack from Amazon, and paid my phone bill online. What did my Contracts course have to say about any of these concerns?

Nothing.

At least nothing besides a passing reference to the idea that contract law is undergoing tidal shifts as a result of form contracts on the Internet. Ten, twenty minutes max.

Yet the problem with the 1L curriculum is far broader than Contracts—and far deeper than my relatively privileged encounters with the law.

How about Civil Procedure, which seems to deal exclusively in the world of interstate battles among incorporeal entities. In most sections, there’s almost no discussion of why Civ Pro matters to everyday Americans—how the vast majority of our country’s needs are unmet by our civil legal system, and how complex legal rules and rising rates of pro se representation leave millions without adequate judicial recourse.

Civ Pro could be an incredible opportunity to discuss what is known as America’s “justice gap.” The phrase refers to the indefensible reality that more than 80% of low-income Americans have no access to a lawyer. That is, they are essentially locked out of one of our three branches of government.

Our country’s low-income communities face tremendous civil legal problems concerning basic human needs and pressing social concerns—preventing domestic violence; keeping families in their houses and off the streets; securing disability and unemployment benefits; and many other bedrocks of a humane, civil society. Without a lawyer, these needs simply go unmet, these problems go unresolved.

Similarly, and often most egregiously, consider Criminal Law. America has the highest documented incarceration rate in the world. Millions of disproportionately black and brown Americans are locked up for non-violent crimes (often public health problems, like addiction) that go largely unpunished in neighboring white communities.

They are increasingly caged in privately run facilities for longer sentences prescribed by mandatory minimums and three-strikes laws. The rate of violence in America’s prisons eviscerates arguments that our society is getting less and less violent—we are simply hiding the violence behind locked bars. Yet despite the overwhelming case against racialized mass incarceration, Crim paints a picture of our criminal system entirely divorced from reality. Where Civ Pro ignores the legal problems of the poor, Crim concentrates almost exclusively on crimes committed by poor individuals. No mention is made of the white-collar crime that brought the global economy to its knees and resulted in millions of families losing their homes, jobs, and pensions-or the corporate crime that poisoned the Gulf and dumps carbon into the atmosphere, racing us toward climate catastrophe.

Admittedly, the flaws of the 1L curriculum are too complex and too numerous to adequately describe in one article. I sincerely hope that we, as members of the HLS community, might take advantage of our time at HLS, and venues like The Record, to meaningfully critique the gaping holes in the 1L curriculum. To imagine a curriculum that addresses the legal problems of our nation’s most vulnerable individuals, a curriculum that prepares students to think about reforming rather than merely defending the broken aspects of our legal system, and a curriculum that recognizes the role lawyers play in perpetuating inequality in and out of the courtroom.

As we lose ourselves in board-game battles, logical puzzles, and hokey hypotheticals, it’s worth remembering how divorced our legal education is from the reality of American life. How the halls of Wasserstein pull us further and further away from the problems toward which we, as advocates, could direct our intelligence and energy.

If Harvard Law School wants to prepare us to be leaders in the world, it should be honest about what that world is like. Such honesty should begin the first day of 1L.

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