In 1967, at the 150th anniversary of Harvard Law School, Dean Erwin Griswold reflected:
“For some years now I have been concerned about the effect of our legal education on the idealism of our students. I have great faith in our students… they bring to the school a large measure of idealism. Do they leave with less? And if they do, is that something we can view with indifference?”
In the half century since then, Griswold’s concern has, with the exception of a few tireless reformers, been “viewed with indifference” by our community. The result is disturbing: for every Harvard Law graduate who enters into employment with organizations designed to advance the legal interests of the poor or public at large, four Harvard Law graduates enter into employment with organizations designed to advance the legal interests of the most wealthy and powerful corporations and individuals. If a significant change is not made in the coming years, this means that you can expect 64 of your 79 sectionmates to pursue corporate interest employment following their graduation and judicial clerkships.
This does not mean that new students do not arrive at Harvard Law with, as Griswold observed, a large measure of idealism. But the late Dean’s hunch was correct: students’ civic mindedness fades with each passing year of school. A 1992 study by Robert Granfield found that, among newly admitted students, 70% expressed a commitment to public interest careers and 55% wanted to work in something other than corporate interest law firms. However, by graduation, 71% of men and 65% of women in the Class of 1995 went on to work in corporate interest firms or business, meaning that 20-40% of students had shifted their preferences during their years in law school.
A mid-2000’s survey by Jenée Desmond-Harris found that 80% of newly admitted students stated that “the opportunity to be of service to society” was among the reasons they came to law school. By 3L spring, however, only 38% of students reported prioritizing this value in their upcoming job.
Our own Center on the Legal Profession’s recent career study shows a similar drift. 35% of newly admitted students that CLP surveyed planned to work for law firms or businesses after law school. By graduation, 63% planned to, indicating a more than 25 percentage point shift.
Many factors account for this transformation of public interest 1Ls into corporate interest graduates: a competitive culture that fails to spark public-spiritedness; a curricular system that pushes contextualized and experiential education — the types of courses that teach students about the real-world crises in the justice system — into second- and third-year electives; a career-building system that sets corporate interest law as the default career option for students; and a tuition debt structure that dissuades students from public interest work.
Today, however, I would like to focus in on one factor fully within your control as first-year students: participation in our school’s “cult of smart.” See, from the very beginning of your time here, there will be a push to hold those with the sharpest and narrowest analytical skills in acclaim, regardless of their moral or civic orientation.
The introductory rites of this “cult of smart” occur in the first-year classroom, with student acclaim for smart professors. The first-year classroom, as Professor Lani Guinier points out, centers all attention on the professor, with “professors fishing for the ‘right’ answers, and students trying to catch the hook.” Professors frame the whole ‘game’: the questions that should be considered important, the eventual ‘correct’ answers to those questions, and the affirmative and negative reactions to students’ guesses. Since bringing in outside morality or ideology (or even facts from the real world) into the environment is discouraged, students evaluate the entire exercise on the cleverness of their professors’ analytical gymnastics. That is how, Guinier argues, being smart becomes “a value itself, detached from what people want to accomplish with their mastery.”
This cult of smart eventually expands out from students’ views of professors to students’ views of the judges they are reading. It is not uncommon to hear classroom comments like “I might disagree, but this argument is so clever and well-written,” or “Say what you want about what he advocated for, he was a genius.” This is reinforced by the physical school environment, which hangs pictures of academic faculty and ‘genius’ jurists — as opposed to clinicians and courageous reformers — most prominently on the walls.
And finally, this cult of smart eventually trickles down into student culture. The students who are best at the game of law school — those who might be the research assistants for the smartest professors or clerks on the Supreme Court — are often the object of peer fascination, with little regard given in the hallway chatter to their moral courage or to which legal interests they plan to serve after graduation.
This cult of smart is dangerous because it obsesses over means — one’s ability to complete legal tasks efficiently and cleverly — at the expense of discussing ends — reflecting together on which legal tasks are worth our time. When we give too much acclaim to clever means and not enough to moral ends, we misallocate legal resources on a grand scale, leaving some of the most important legal projects of our era — building an economy and democracy that works for everybody, shrinking our monstrous prison system, mitigating climate disaster — underserved, while at the same time leaving perhaps the least important legal projects of our era — advancing the legal interests of the already wealthy and powerful — overserved.
Many in our profession — including some of the smartest alumni of our school — fail to see the crises in the legal system: 86% of civil legal needs of low-income Americans going unmet, an overstuffed public defense system transforming “the right to a trial” into “the right to a plea deal”, corporate interest lobbyists on Capitol Hill outnumbering public interest lobbyists 34 to one, and the law of torts and contracts being perverted by mandatory arbitration and boilerplate forms. Upton Sinclair was right: it is difficult to get someone to understand something when his or her salary depends upon not understanding it. Indeed, if being intellectually free matters to you, beware of a salary that dulls your civic smarts, restricting your ability to assess which ends truly matter.
The best way to resist this temptation is to seek out role models who shunned the cult of smart and embraced the call of citizenship. Take Professor Carol Steiker for example. When Thurgood Marshall’s clerks voted on superlatives for each other, she won “least likely to be rich.” They were right: she traded a potential signing bonus at a corporate interest firm for time as a public defender. She went on to spend her career indefatigably devoted to abolishing the death penalty.
Or take Professor Lawrence Lessig. He could have used his star power, as some professors do, to make a killing advancing industry interests in court. Instead, he uses it to build and support civic institutions — such as Creative Commons and Rootstrikers — to fight back against industry takeovers of our culture and democracy.
Or take recent graduate Gina Clayton. After graduating from Harvard Law in 2010, she founded the Essie Justice Group to harnesses the collective power of women with incarcerated loved ones to fight mass incarceration.
There is an old Chinese proverb: to know and not to act is not to know. Steiker, Lessig and Clayton are all very smart, but that is not what makes them worthy of acclaim. What makes them inspiring is that they deeply know what matters … and they act on it. That fire in the belly — that civic intelligence — is the source of all advancements in justice in our nation’s history.
Today, there are too many challenges in need of our generation’s attention to waste our time on frivolous cleverness. Our nation does not need more geniuses — it needs more citizens. May your time here help prepare you to do your part to serve that need.
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