Dean Martha Minow
Harvard Law School
1563 Massachusetts Avenue
Cambridge, Massachusetts 02138
Dear Dean Minow,
The marvelous presentations of October 24, 2013 under the title of the first Shake ‘em Up Harvard Law School Day have come and gone. The Sponsoring students did a first rate job. Professor Jon Hanson gave some well-received concluding remarks.
We – the Administrators, the faculty, the students and the alumni have a serious challenge. We are not addressing in a straightforward, serious manner the corporate state, the corporate supremacy of public and increasingly private life, the domination of commercial values over civic values, going deep into our elections, the relentless concentration of corporate power crating deepening inequities of wealth, income and power – all rolled up in the dogma of corporatism, defined as the fusion of commercial and governmental power with the latter serving the former against both the public interests and the rule of law as justice.
Reads like a mouthful, doesn’t it? But the documentation from many sources and many daily experiences stand as mountain of rebuke to law schools, most prominently our Harvard Law School, given its pre-eminence and its pretensions.
Back to October 24, 2013. To my knowledge and those who lived with the Law School for a long time, no day has brought together so many seasoned advocates and scholars each summarizing twelve different areas of need and injustice, over 400 years of experience (see attached program). There are, I am told, 300 good seats in Ames Courtroom. At the free pizza peak – 12:15 – there might have been up to one hundred students who quickly reduced their numbers by 1pm to go elsewhere.
Now we have heard the explanations. Classes, the day’s activities were too long, other events, the courtroom was not located in the most convenient place. However, the weather was good and there was saturation notice and promotion of the event by the organizing students – posters, leaflets, HL Record on each 1L desk and beyond, emails, face-to-face, mention in some classes, online, the antiquated phone calls, and even a roving salsa band. Out of the 2000 students, graduate law students and faculty, could not have a revolving attendance of some 250 Harvard Law Schoolers been expected?
Compare the turnout for the dissembling John Brennan in 2011 on the purported legality and the civilian protection policy of drones and other related attacks in other countries. The transcript bears re-reading in the light of the official HLS turnout. Consider what the White House knew then what we know more of now.
Apart from specialized classes, courses and clinics, is there an intellectual, action-oriented student life at Harvard Law School? A little. But more than a few professors at Princeton, Yale and Harvard over the years have volunteered the answer – NO. Of course there ware always exceptions – at HLS there are several civically activist professors – but overall, the corporate world views the Ivy League and its professional schools as preparatory vocational institutions for service in the corporate globalized economy notwithstanding a few rebels and innovators.
Our country is in a mesh of serious crises with the law being at the score, institutionally speaking. Those crises ought to be reflected in higher senses of urgencies and resolve to do something about them. It is our responsibility as elders to raise the horizons, the quest for change and the means of change above and beyond the careerism and diminished idealism seen among law students as they devolved from 1L to 3L and out. That quest needs a depth well ahead of the usual generalized exhortations given law students at various ceremonial events. More importantly it requires a distinction between the necessity of legal aid charity and the more preventive, different work of systemic justice.
Instead, a combination of debt, material desire and the omnipresent recruitments and inducements of corporate law firms at the Law School, replete with food and drink, seem to carry the day. Where are the countervailing enlightened forces to deploy the new graduates as leaders in representing and advocating for dimensional justice within area after area of wrongful treatment? What gives them a sense of greater significance for their life’s work?
A whole new set of models needs to be considered. Furthering lifting of debt burdens and a restructuring of the third year as a choice to focus on fields of injustice flowing into available work at public interest legal institutions would be a good start. The latter can come from a major expansion within alumni classes of the Appleseed example, or variations thereof, and from an annual allocation of monies from the ample HLS endowment ot establish these institutions as gateways for the graduating students. Bold leadership that breaks the mold is called for.
Apart from the routine ravages of legal process and substance regularly coming out of Washington and Wall Street, just consider the transforming technologies of nanotechnology and biotechnology shorn of legal and ethical frameworks and absent any full-fledged advocacy groups to provide and advance such. Advocacy groups nourished the growth of civil liberties, civil rights laws, and environmental laws (ACLU, CCR, NAACP, NRDC, Sierra Club Legal Defense Fund etc.). They’ve always lacked resources, but imagine our country without them. And why isn’t it within the purview of Law Schools to establish other opportunities for their graduating law students?
In an earlier conversation I mentioned my suggestion to Dean Vorenberg that a seminar on creating new legal institutions be created. He liked the idea. I heard you are going to give students such an option. Consider what the law schools have done for corporate lawmaking in numerous courses by commission and omission. Look at the ways contract and tort law have been taught and championed in the interests of corporate vendors. A grotesque example is adhesion contracts, evaporating “meeting of the minds,” and even consumers seeing the contracts, as they cannibalize usage of tort law. (Here Margaret Radin’s new book Boilerplate is a groundbreaker.)
Is it too much to convene a small gathering of faculty, your office and a spectrum of knowledgeable advocates in the various areas of structural injustice to discuss the deployment of Harvard Law School’s resources without the preconceptions that have precluded such contemplation in the past? What do you think?
Harvard Law School should not be so empirically undernourished as to allow its great resources to simply turn out legal technicians to attorn for power structures and not know of their professional missions, nay responsibilities, as lawyers. Pro bono charity, important as it is, is no match for rooted systems of repression, exclusion and seizure of public resources, budgets and law enforcement, to further corporate entrenchments.
The intellectual firepower of corporate law firms is impressive in creating these systems – consider the evolution of corporate bankruptcy law, the attrition of corporate chartering law, the transfers of risk through corporate bailouts and corporate tax welfare, the expansion of procedural barriers, the immunization of corporate executives, the stripping of investor power, and the ongoing drive for limited liabilities for the corporations themselves – for starters. Impressive intellectual achievements with so little opposition as to permit characterizing them as bullies for chronic injustice. (Your sister’s now publishing firm has come out with a pertinent book by Bob Monks HLS ’58, Citizens DisUnited: Passive Investors, Drone CEOs, and the Corporate Capture of the American Dream.)
Back to students at HLS. “A student culture of risk aversion” is the way one of your associates describes the climate at HLS. That invites analysis and striving for correction by both the Administration and the Faculty. A marketing model espoused by some – ‘give them what they want but make it rigorous,’ won’t do. Nor is the new entrepreneurship program – good idea as it is – sufficient.
When the Harvard Law Review editors – and they were each notified of 24 October – would not respond to requests by some of these accomplished speakers to meet with any of them – right across the sidewalk – there is something wrong in the Review’s culture. The pronouncements in these regards by the Review’s past two presidents could be seen as arrogance or ignorance were they not pathetic – this is the “best and the brightest?” You responded earlier that the Harvard Law Review is an independent corporation. True, but that does not disable you from “piercing the corporate veil” with needed sagacity for them.
We are all very busy, but sometimes busy people have to step back and look at the institutional ways whereby undeniable capacity can be stretched into overdue crucial directions that could stimulate emulation by other law schools. Day after day, the questions – where are the lawyers, where are the law schools, where are the bar associations, where are the alumni classes to stand for the rule of just law and universal access to justice can be asked. We should be seen as the first responders for justice, should we not?
I write this knowing that HLS has made major strides since my years there in admissions, financial aid and curricula not to mention facilities. Yet little of this has led to more careers dedicated to shifting power between the haves and the have-nots or diminishing the many inequalities in our land. The fact that some graduates have proved exemplary in this respect only makes the case for more ambitious forays from the law school.
The “best and brightest” faculty and Deanships of HLS in the fifties somehow were insensitive to the exclusions of race and gender. In fact, I heard justifications by some professors for the white male status quo. I mention this so that we can be sensitive to today’s domination of giant corporations being insufficiently attended to by the Law School’s leaders and teachers.
Of course, should anyone want any substantiations of the conditions so briefly alluded to, please so advise – I put together to aggregate some of these corporate abuses – exposed in mainstream publications like the New York Times, Wall Street Journal and Washington Post – just to motivate action by persons afflicted directly or indirectly by these patterns of wrongdoing. The effect of just 200 or so reported abuses on the mind in a period of three or four hours is quite different from a single exposure from time to time.
The half dozen students did an excellent job organizing October 24th and resurrecting the Harvard Law Record in print form to raise the issues and concerns of the law writ large, as it did for me in the 1950s. You may wish to reinstate support for the Record as a check-off on alumni dues or some other ways to fund its modest budget. When I was there, the Record went out to all Alumni who sent in their dues, making it the largest circulation legal publication after the ABA Journal! It was a different paper then in content and page size than it became before you came to teach.
To be continued …
Note from the Editors:
In a reply to Mr. Nader, Dean Minow thanked him for his participation in the conference and welcomed the ongoing debate about Harvard Law School’s role in finding solutions for the serious problems in the United States and the world. Dean Minow declined our request to publish the full text of her personal correspondence with Mr. Nader.