Some Things That Harvard Law Students Might Need to Know

Lawyers play many roles, discharge many functions – but we are also social architects [1], creating the systems and institutions and defining the rules by which they operate. [2] As our communities, our nation, and the world undergo vast changes –ecological, demographic, economic, fiscal and technological –we must ask ourselves what do we as lawyers need to know – and what do we need to know that we do not know so that, as true professionals, we know when to ask for help!

Some things that Harvard law students need to know:

1. Legal rules are not self-implementing. Victory on paper does not automatically translate into changed behavior by officials. Until we look at the systems that are responsible for implementation, until we learn how to get systems to do what they are charged with doing, our victories can be meaningless. None of the Harvard law students with whom I have met had heard terms like “emergent structures,” “stocks” and “flows” or considered the function of “Feedback loops.”

2. Most of us lawyers could not afford the very services that we ourselves are selling. We are part of a system that denies justice to anyone who cannot afford our services. When are we going to take responsibility for a system that only the wealthy and corporations can afford?

What are our responsibilities as Officers of the Court to create a system of rules and remedies that takes “justice for all” seriously? We enjoy a monopoly over the practice of law – but monopolies are conferred by law to advance a public purpose. What are we doing to advance access to justice as a fundamental right – at least where life, liberty and the pursuit of happiness are at stake?

3. The public has lost confidence in government’s ability to address the problems that require collective action. It may take a village to raise a child, but how is that village to be sustained and supported if no one will pay for the services and the infrastructure it takes to maintain a village? Voter turnout – or the lack of voter turnout – is a statement. John Barber has noted the degree to which there is “pervasive apathy about things public and political.”

“In a country where voting is the primary expression of citizenship, the refusal to vote signals the bankruptcy of democracy.” We have work to do – as citizens and as human beings – that we cannot delegate or simply contract with professionals and non-profits to do for us. Yet, students do not learn unless they work; patients do not get well unless they do what it takes to get healthy and maintain health; neighborhoods are not safe unless they develop something the experts call “collective efficacy” – a local culture of looking out for each other. Something is wrong if our solution to crime is limited to building more prisons and our solution to eldercare is building more nursing homes to which we can consign and abandon our parents.

4. Are you graduating law school without knowing the term co-production: what it means and what it takes? Nobel prize winner Elinor Ostrom coined the process by which consumers of a service become enlisted as active co-producers of the outcome desired: turning students into teachers and mentors; patients into support systems and healers; citizens into the civic work force needed to make democracy work, human beings into the work force needed to ensure that the planet can continue to sustain life.

5. To what extent have Harvard law students given up on addressing the racial disparities in well-being that system after system perpetuates? We see those disparities beginning in child welfare and proceeding from there to educational disparity, juvenile justice, employment opportunity, health care and eldercare. We see efforts to secure judicial intervention to effect system change blocked by the “intent requirement” established by Washington v. Davis. Plessy v Ferguson, separate but equal, may be gone in theory – but it is alive and well in most of our public systems.

Yet, the intent requirement can be met and transformed by the process of putting officials on formal notice of the effect of present practice and the availability of innovations that work, have been validated, save money and achieve superior outcomes. Once on formal notice, going back to business as usual becomes a conscious choice among alternatives- so that intent to perpetuate racial disparity can be inferred. City of Canton v Harris. Have Harvard law students asked: What would it mean to require officials to make use of knowledge of what works and cease perpetuation of practices that do not work and that perpetuate racial disparity? That requires going outside the law to work with other disciplines, to scrutinize decades of experiments funded by government and foundations, undertaken by innovators and by community groups. It would even take acknowledgment of our own ignorance of those alternatives and the pursuit of knowledge outside our own discipline.

6. Have students who entered this law school wanting to make a difference in the world pondered whether they have any responsibility for dealing with the implications of the dynamics built into our fiscal system that Piketty has documented? What is our individual, collective and professional responsibility to address and counter those forces that relentlessly drive inequality and perpetuate entrenched disenfranchisement? Consider Piketty’s conclusion:

When the rate of return on capital exceeds the rate of growth of output and income, as it did in the nineteenth century and seems quite likely to do again in the twenty-first , capitalism automatically generates arbitrary and unsustainable inequalities that radically undermine the meritocratic values on which democratic societies are based.

7. Have Harvard students succumbed to the myopia that defines a client only in terms of his or her problem — but does not see the client in terms of capacity and potential to contribute to the well-being of others? We are not blind to the assets of wealthy clients or corporate clients. But are we blind to the assets of those without money but who have the capacity to fight for justice, to help others, to advance democracy, to provide support for the frail and the disabled, to make our communities vibrant and our planetary ecosystem sustainable.

8. Why have we bought into a culture and a legal system that monetizes everything? Most recently Peter Barnes has reminded us that:

The global value of financial derivatives in 2012 was $687 trillion. That compares to a total world GDP of $72 trillion.

The total value of foreign exchange transactions in 2010 was $1.5 quadrillion, (a quadrillion is 1,000 trillion). Of that amount, only 1.5 percent was used to pay for real goods. The rest was currency speculation. (P. 57)

Our primary growth industry has become the finance industry, manufacturing digits in cyberspace which have no relation to anything other than digital risk and return. We are told that the primary question in our lives must be: “Is your money working for you?” Have we abandoned asking another set of questions: “What are you working for? What do you want your life to mean? And what kind of world do you want to leave for your children and their children?”

9. In Greek mythology, a certain King Midas was given anything he wished for. His wish (to turn everything he touched into gold) revealed itself as a curse when his food, his furniture and finally his daughter became inanimate gold. Have even the most idealistic Harvard students unwitting internalized what I call the Midas Monoculture where all values are converted into cost-benefit analysis utilizing a monetary system that devalues the very universal capacities that enabled our species to survive and evolve? Have they unwittingly succumbed to the Midas Monoculture where all investments of effort are judged in terms of the bottom line: billable hours and profit?

10. Finally, why have we not asked ourselves whether we have permitted only one medium of exchange to function as the definitive and exclusive means to compute value when we know it is possible to create alternative mediums of exchange to shape behavior? In education, we invented another medium of exchange to shape behavior: grades and academic credits. In cooperative economics and worker owned enterprises, we can honor sweat equity and confer ownership prerogatives. In TimeBanking and other complementary currencies, we can honor work that the market does not value and a citizen work force not recognized by economists. And we know from when we alter the characteristic of a medium of exchange that we change the dynamics.

Wall Street knows that when it “securitizes derivatives.” The World Bank knew it when they created special drawing rights. Environmental advocates knew it when they created carbon credits. Teachers know it when they change a grading system from 4.0 to pass-fail and when they confer academic credits for group projects and community service. Why are we not asking ourselves: what kinds of currencies, what kinds of mediums of exchange do we need to create the kind of world we all want to see emerge? We have ample productive capacity – but we do not have a distributive system that works to realize universal human values?
Yet, we have no medium of exchange that values, decency, caring and a passion for justice. In a world which is more interdependent than ever, what currencies and what fiduciary institutions vested with what powers of approval, disapproval and secular sanctification might we create to advance human dignity, preserve the planet and provide the exchange systems needed for all to subsist, develop, and contribute? How might a different medium of exchange and a different way to define value nurture the emergence of a different economics, an ecological economics that honors life?

My own attempt at an answer was to make Time itself a form of money – because Time is life itself. It is the most precious thing we have. Perhaps we need a different currency to return economics to its origin, Oekonomia – the management of the household, the human household, not the corporate household – in order to center our efforts on advancing life values for all living beings.

Have you learned to ask these kinds of questions – and to ask how juridical concepts like rights and duties, powers and immunities might contribute? And have you asked yourself, how a whole range of mutual obligations and a whole range of relationships that are not subject to legal enforcement might also be part of creating an ecological economics that advances life values?

[1] Charles Hamilton Houston (who charted the pathway to Brown v the Board of Education) declared that a “lawyer is either a social engineer or a parasite on society”

[2] 25 of the 56 signers of the Declaration of Independence and 32 of the 55 framers of the Constitution were lawyers.

Edgar Cahn is a distinguished legal professor. Shortly after graduating from Yale Law School in 1963, he became counsel and speech writer to Robert F. Kennedy. He created the Antioch School of Law with his late wife, Jean Camper Cahn. He is the founder of TimeBanking, a currency that rewards decency, caring, and social justice.

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