TSM: As you know, the HL Record is doing a series of interviews on legal education and the role of Harvard Law School. HLS is clearly more than just a training school. What do you see as the broader purpose of Harvard Law School?
MM: You’re absolutely right. Harvard Law School is an extraordinary institution that prepares people for leadership in all sectors of society all over the world. It’s also an engine for research and setting agendas for justice and institutional reform.
TSM: In terms of setting agendas for justice, it seems obvious to me that the legal profession is in a kind of crisis, where the vast majority of Americans have no access to legal resources whatsoever, and there is an enormous quantity of legal resources devoted to a very small percent of the population. What can Harvard Law School do about this?
MM: The crisis is worse than that because then there is also a claim that legal services are even too expensive for those who can pay for them. And there is turmoil, therefore, in the structures of the law firms which have themselves been a source of pro bono work to remedy the lack of access. They are now feeling very squeezed, and their ability to contribute is under more pressure.
We host the Program on the Legal Profession, which is a major source of research about developments in the profession, and over the last four years has convened people from around the world to explore different models for delivering legal services, to examine the changes in the profession, and to support global research. A major focus of the GLEE [Globalization, Lawyers and Emerging Economies] project, which is headed up by David Wilkins, is to study pro bono globally and to try to develop better models that can be shared and exported. But pro bono alone is simply insufficient for closing the gap in access to justice, which I know well because I serve as the vice chair of the legal services corporation and spend a considerable amount of my time on that issue. I have co-chaired for two years the national task force to develop new models, we are currently working on implementing new approaches. Harvard Law School has been deeply involved in that, helping with the research, hosting events and so forth. In addition to pro bono though, we absolutely need to work on different kinds of funding streams and different kinds of career paths. Some of which, frankly, may well involve people who have training less than a JD. And that’s something that I and others—especially Chief Judge Jonathan Lipmann in New York—are exploring.
TSM: Do you think that Harvard has an advocacy role in this in addition to the research role, given its dominance and influence in the legal profession?
MM: Harvard is not an advocacy organization. We’re an educational institution and we don’t take positions on issues about which there are obviously as many viewpoints as there are faculty members. I personally am an advocate for access to justice. I have been and I will continue to be.
TSM: So you think that maybe you personally have a bigger platform in this, but you’re not speaking for the faculty or for the law school as an institution?
MM: I put the resources of the institution in play in hosting events and trying to put topics on the agenda, but if it comes to endorsing a particular proposal or advocating for particular solutions, we’re not set up to do that. We are not a think tank. We’re not a legislative body.
TSM: I want to ask about student career choices. Harvard Law School, I would guess, offers unmatched career support for students who want to go into public interest work or private sector work or government work. Could you discuss the changes there have been in your time, and what needs to change going forward?
MM: I became Dean in 2009, just as we began to feel the full impact of the national financial crisis, and while we had to engage in budget cuts, the only things that I grew were career advising, on both the public side and the private firm side. And it has continued to be a priority for me and for the school, and that includes the launch of the Public Service Venture Fund, very much a deliberate decision at a time of financial austerity to make resources available to students who have good ideas about public service. And we have also maintained our need-blind admissions, and we also have maintained our loan forgiveness program, which has tripled in the past ten years in terms of the uptake. And we’re very committed to that. It is financially a very, very, big commitment to forgive the loans of anyone who pursues a public service career. And I’m glad that we’ve been able to do it. Financial aid and making sure that any student can pursue any career option are my top priorities as Dean.
TSM: Professor Dershowitz, in our interview with him a couple weeks ago, said he thinks that the faculty and the administration has a responsibility to try to shape preferences of students. While Professor Sunstein, in our interview with him, was focused on students finding their own preferences. Do you think that the faculty or administration has a responsibility to guide students towards certain careers or against others?
MM: I think we have a huge obligation to help students pursue what they want despite market pressures. But also help them understand what their options are. There are many people who have spent time in various work settings yet still haven’t encountered some of the opportunities that are available. Our obligation is to make sure that our students have every possible opportunity to see and explore the rich variety of possible career paths.
Peers have a much bigger impact on student preferences than faculty. And it’s been an ongoing puzzle for me to figure out how to counter what are often misconceptions held by students — ‘unless you do this, you cannot do that.’ There’s no such thing, and the faculty has a limited ability to counter communications among students.
When you have one sector of employers who are able to hire people two years in advance and pay twice or three times as much as other employers, that affects students’ preferences. So it is our obligation to absolutely try to make clear to people how there are many, many opportunities besides the ones that are structured by the outside market.
TSM: President Obama and others have discussed the third year of law school being more clinical or practice-oriented. What is HLS’s role in that, given that Harvard will most likely continue to be training JDs, not paralegals?
MM: There’s no shortage of demand for the graduates of Harvard Law School. And I don’t foresee there being a problem that would warrant our altering in some dramatic way what is our mission. I do think that the commitment that my predecessors and I have made to clinical education is wise. Building on the great work of Bob Clark and Elena Kagan, I have sustained our clinics and made resource commitments to them. That’s partly a reflection of student desire and these external debates that you’re describing. We were early to embrace clinical education and to build clinical programs, but for years only a minority of students would pursue it. Now 75% of our students do clinical work in their second or third years.
We’ve also made commitments to international dimensions of the curriculum and opportunities, which many people also suggest as a way to spend a third year. And we’ve developed the programs of study in recognition that after the first and second year of law school there is something else to be done, which is to develop an expertise. The programs of study are one of the ways to signal that. What’s ironic is that at this moment in the world, when there is a crying need for more access to justice, there are people saying we have too many lawyers, which again I think is a misunderstanding of the situation. We don’t have too many lawyers—we need to develop new business models to make lawyers available to those who can’t afford to pay.
At the same time that some people are saying, ‘Well, maybe you don’t need three years of legal education,’ employers are saying they want graduates of law schools who are practice-ready, who are informed about international dimensions, about business, who have experience in negotiation, and who have done clinical work. The standards keep going up and up and up, which tells me that the suggestions about making law school shorter are not based on the content of the program, they’re based on the financing. So that’s the puzzle, and I’ve been very much engaged in discussions with the bar, and with other law schools, about it. While there may not be immediate problems for our graduating students, I do think we have an obligation to be part of a conversation about the larger situation.
TSM: You mention the curriculum reforms, including the international focus and others. Do you see this as an ongoing process?
MM: Absolutely. So when I led the curriculum reform under the leadership of Dean Elena Kagan, I said that I would be willing to do this work on three conditions. 1. That there not be a report. Because if there’s an endpoint then we haven’t really understood what the reform process is. 2. That she make it one of her top priorities so that we be sure we be sure to actually accomplish something. 3. That we have a lot of food. And we did all of those things, and the faculty changed the curriculum in a big way for the first time in a hundred years. But it’s not over and we have currently underway a serious investigation about assessment and feedback and exploring different ways to strengthen what we do here and at the same time experiment. Like Terry Fisher’s CopyrightX class, which in many ways, of course, is part of the online revolution, but for purposes of the campus experience, the twenty students who have the chance to be the teaching fellows have the best education in copyright that’s imaginable.
So we’re trying to think about ways that we can be a beacon for innovation in legal education globally while improving what goes on here. That’s one of the way’s we’re driving ongoing reforms. Another effort is to try to draw from lessons developed in the clinical courses that can spill back into the classroom courses. And another is exploring different ways in which technology can enhance what goes on in the classroom. We’re experimenting.
TSM: Would you say the innovations you are currently thinking about are more in the space of grading and feedback and technology than the topics of the curriculum?
MM: That may be right, but we are constantly thinking about all of them. As an example, very much reflecting conversations with people in the field, we have a strong sense that students who haven’t yet worked in business or the corporate world field may need basic courses in business and finance in addition to the corporations course, and so we’ve developed two or three different opportunities for students to get the basics. Whether it’s a module course or a mini-course. We’re exploring three or four more options of that nature for next year, very much with our ears to the ground, listening to what students say they need and what people in the outside world think. And then there are particular topics of interest to students and faculty, whether it’s financial regulation, large institutional reforms, or whether it’s animal law, particular topics, ongoing investigations. Should we be sure to offer something every year? Those kinds of questions are constantly addressed.
TSM: Given the flexibility after the first year in the law school curriculum, there is a lot of pressure on that year because students are not guaranteed to be exposed to anything they don’t encounter in the first year. And first year professors have a lot of freedom in what and how they teach. In many ways is a wonderful thing, but it also leads to some randomness. For example, if you have professors who are very interested in access to justice and the justice gap in your first year, you might become engaged in and understand those issues. If you don’t, it might not come up at all in your first year courses. Is that a problem that you worry about?
MM: There’s one other course that’s required of every student, which is a legal profession course, in the JD program, and that is a key component of that course. So that’s a specific response. But yes, we think about this a lot. That’s why David Wilkins does an address to all new students.
That is why I do a lot of talking about this. We don’t mandate that everyone who teaches civil procedure cover access to justice. I think most do, however, and the faculty members in a field meet regularly to compare notes and ask ‘Is there something that we think is the core that everybody needs to know?’ Some people come to law school to have a career in business or to become an entrepreneur, and access to justice might not be as relevant to them. What we try to do is make everyone alert to issues. Even if you’re an entrepreneur you should know that there is an access to justice problem.
And interestingly, on the specific issue of entrepreneurship and access to justice, several students who have been very involved in the iLab, the innovation lab of the university, with our support, with our encouragement, have actually pursued ways to use technology to enhance access to justice. So some of these things may come together after all. And our cyberclinic, at my request, undertook an access to justice initiative with the Massachusetts courts, that has been instrumental in helping people who don’t have legal representation navigate our court system. That turned out to be a fantastic project for students who may not have thought of access to justice as their priority.
TSM: I fully agree. Though of course there are also legal barriers to the use of apps or other technology in the provision of legal services.
MM: All true, but we need to be pushing that envelope.
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