How We Can View The Election as a Referendum on HLS

Although many of us on the left viewed the 2016 election as a referendum on Donald Trump, the exit polls indicate that voters’ views on Hillary Clinton, not Trump, were a more decisive factor in the final tally. Clinton voters were significantly more likely to vote out of enthusiasm for the former Secretary of State, while Trump voters were primarily voting out of dislike for other options. In other words, while bigotry, sexism and downright disgusting behavior undoubtedly played a significant role in the 2016 presidential contest, there was a consequential portion of voters for whom the election was a referendum on what the Democratic Party represents to them.

To many voters Clinton, Obama, and our other Democratic leaders represent public institutions—institutions that HLS holds a unique responsibility towards. The executive, legislative, and judicial branches of government are largely a manifestation of our legal system. The nation’s highest ranked law schools, like HLS, are idolized in the legal profession and have a large role in defining the norms in that legal system. Indeed, an overwhelming proportion of our Democratic leadership graduated from these very schools. In this light, there is a lens through which the election can be viewed as a referendum on HLS itself.

One interesting thing about HLS, where we train the wardens of our public institutions, is that the majority of its graduates don’t actually serve the public. Although law is an inherently public profession, and lawyers are the only way most of the public can interact with the institutions that represent them, somewhere around 70% of our graduates go into corporate law, where they solve legal puzzles for some of the wealthiest corporations and citizens in the country.

If voters are discontented with our public institutions, it could be, at least in part, because those who staff these institutions are part of a profession which largely seems to serve the wealthiest in our country, rather than the interests of the public.

The legal profession in particular is inherently a public service. In our courts, we’ve set up a public system to resolve disputes, with the idea that this is better than people “taking the law into their own hands.” But the schools that train the most crucial aspect of that system (lawyers, who staff every part of it) frame the choice between serving society’s most powerful versus serving the general public as simply hinging on a personal preferences, with no normative stance one way or the other. Yet, our profession’s unique job is to provide access to justice—and somewhere I read that justice is supposed to be “for all.” Maybe schools like HLS have a role in telling future lawyers who they should be serving. Maybe being a part of this profession comes with a duty (rather than just an option) to serve the public.

As students going into a profession that is the public’s only access to justice, we have a unique responsibility to discuss how our profession should address the gap between voters and their own institutions. Here are two questions that can help frame this discussion:

  1. Should HLS, as a leading norm-setter in our profession, be pushing public service as a norm for its graduates, rather than framing the “public versus corporate” decision simply as one of personal preference? and
  2. If you’re a law student who is concerned about the state of our public institutions, and the state of the public’s access to justice, how should that affect your career choices?

Martin Drake and Nicholas Raskin

Martin Drake and Nicholas Raskin are members of the Harvard Law School Class of 2019.

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