Dear Dean Minow,
When Professor Cass Sunstein returned to campus after his tenure in the Obama administration, you called him one of the top legal minds at work today, explaining to The Crimson that our Law School community was fortunate to welcome back a scholar with a “passion for figuring out what works, what doesn’t, and why.” If you believe what you said then, it is time to apply Sunstein’s theories of choice architecture and default options to our own institution and its project of launching civic-minded careers.
As you know, Sunstein has been arguing for years that institutions can help achieve policy goals by exercising libertarian paternalism: allowing people to make their own choices, but empowering ‘choice architects’ to influence our decision-making process by thoughtfully designing how our choices are presented. For example, we can nudge citizens to vote by showing them their own voting records or nudge students towards healthy cafeteria choices by placing nutritious foods at eye level.
To Sunstein, perhaps the most powerful tools in a choice architects’ toolkit is the ability to set a choice’s default option. As Sunstein demonstrates, we are significantly more likely to choose options that are presented as the default and thus less likely to choose options that require active steps to be selected. Why? A few explanations have been put forth: (1) we interpret defaults as expert recommendations (deference); (2) we feel that switching options is ‘losing’ the default option and thus are subconsciously averse to ‘losing’ something we ‘own’ (loss aversion); and (3) we simply do not want to exert the effort to switch options (inertia). This bias towards the default option enables choice architects to help achieve policy goals without increasing costs or limiting choice: if you simply switch default options, then our subconscious deference, loss aversion, and inertia will conspire to increase our likelihood of making the preferred choice.
Harvard Law School’s stated mission is “to educate leaders who contribute to the advancement of justice and the well being of society.” Implicit in this mission is the policy objective of increasing the number of Harvard Law School students who choose to pursue civic-minded careers serving the public interest. We, as a community, are seriously failing to meet this objective. For every Class of 2014 graduate who immediately pursued public interest work in organizations designed to contribute to “the advancement of justice and the well being of society,” five graduates pursued monied interest work with a corporation or law firm.
Sunstein’s ideas about choice architecture and default options can help explain this failure. At Harvard Law School, the default career option is corporate interest law. 1Ls witness a vast majority of their 2L and 3L mentors and leaders enter corporate interest law after graduation. Interactive hypotheticals in 1L courses tend to involve students being asked to advise their firm’s “senior partner,” as opposed to, say, their Department of Justice or ACLU supervisor. The office tasked with public interest career advising is given a special name, while the office primarily tasked with corporate interest career advising is given the generic name of “Office of Career Services.” Similarly, the interview program for corporate interest employers is given the generic name “Early Interview Program,” while the same program for public interest employers is given the special name “Public Interest Interview Program.” (One could imagine the advising office and interview program for public interest, government and academic careers being called the “Office of Career Services” and the “Legal Interview Program” while the office and interview program for big firm careers being called, say, the “Office of Corporate Interest Advising” and the “Corporate Interest Interview Program.”)
Names are one thing, but the most significant way that corporate interest law is enshrined as the default career option at Harvard Law School is via the choice architecture of student debt and loan repayment support. Currently, we take on significant debt during our three years at Harvard Law School. If we go into civic-minded work, we can opt into financial support towards repaying our loans by pro-actively filing applications each year to the Low Income Protection Plan. Meanwhile, those who pursue corporate interest work after graduating need not apply to any program nor file any paperwork with the university about their employment in order to have their debts paid. Regardless of whether this is a proper system or not, it is assuredly a tuition system that does not set its default career option to civic-minded work: you must “opt in” to receive support for a civic-minded career, while you will, by default, flow into corporate-minded employment.
As one would predict after reading Sunstein’s work, the setting of corporate interest careerism as the default option for Harvard Law students allows subtle deference, loss aversion and inertia biases to nudge us into corporate-minded careers: we subconsciously interpret corporate interest employment as the institutionally endorsed option; we feel that opting out of corporate interest work is a loss of a loan repayment option (high starting salaries) that we have been endowed; and the extra effort needed to opt into the special, public interest path dissuades us from doing so.
Dean Minow, we should take a page out of Sunstein’s book and switch Harvard Law Schools’ default option to civic-minded career building. This could be done by exactly mirroring the outcome of the Low Income Protection Plan, but changing the timeline and choice architecture of entering and opting out of it. Here’s how such a system could work: (1) Upon admission to Harvard Law School, students should be able to commit to a civic-minded career path (as defined presently by the Low Income Protection Plan) in exchange for attending Harvard Law School tuition free, made possible by the School, rather than the student, holding their potential tuition debt; (2) If a tuition-free student follows through on their commitment to civic-minded career-building after graduation (as defined, pro-rated and verified presently by LIPP), then the student never holds any tuition debt; (3) At any time, during their time at HLS or afterwards, a student or recent graduate can file to opt out of their commitment, at which point the School will transfer their tuition debt back to them, pro-rated to the number of years they worked in civic-minded employment (again, as determined presently by LIPP). To put it simply: under the present system, a student takes on debt and can later opt into loan repayment support for pursuing a civic-minded career; under this proposed system, you choose to pursue a civic-minded career upfront in exchange for free tuition, but can later opt out and pursue a corporate-minded career in exchange for taking back your tuition debt.
The final financial result would be the same as today — the Low Income Protection Plan would help those pursuing low-income, civic-minded employment pay less for tuition than those pursuing high-income, corporate-minded employment — but Harvard Law School’s default career option would be switched to civic-minded career-building. And, as predicted by Sunstein’s theories about default options, the deference, loss aversion, and inertia biases currently benefiting corporate-minded careerism would then benefit the project of increasing the number of Harvard Law Students pursuing civic-minded careers: students would begin to see civic-minded careers as our institutionally-endorsed option; we would treat opting out of our free tuition agreement as a subconscious loss to which we are averse; and we would see pursuing a civic-minded career path as a simpler short-term option than the rigamarole of filing to opt out of our commitment and take on debt we had never held before. And again, as Sunstein praises about all paternalistic libertarian changes such as this one, we achieve this all without limiting choice or increasing costs: students can, upon admission, still choose to not take the tuition free option (and, even more, opt out of their commitment at any time) and the final cost structure is no different than that of the current Low Income Protection Plan.
If we want to increase the number of students pursuing civic-minded career paths, we must, as you remarked about Sunstein, have a “passion for figuring out what works, what doesn’t, and why.” In an era when five Harvard Law students pursue corporate-minded legal employment for every one student who pursues civic-minded legal employment, it is past time for us to muster that passion ourselves in the service of stemming this mission-threatening career choice crisis. A powerful first step would be to change our default career option.
With sincere devotion to our shared community and educational mission,
Harvard Law School Class of 2018
Pete Davis is a 1L at Harvard Law School from Falls Church, Virginia. He can be reached at Pete@CivicIdeas.org.