Our Bicentennial Crisis: A Call to Action for Harvard Law School’s Public Interest Mission

This week, Harvard Law School has invited alumni back to campus to celebrate the 200th anniversary of our school’s founding.

But a bicentennial is not just a time for celebration of the past — it is also a time to confront the present and plan the future.  As we celebrate, many students are concerned: about our school being overtaken by corporate interests and losing relevance to the average American; about a watchdog of the law being largely asleep as the institutions of the rule of law and equal justice under law are under siege; and of a school community that has lost track of its declared mission to “educate leaders who contribute to the advancement of justice and the well-being of society.”  

To surface these concerns, I have compiled a report on Harvard Law School’s public interest mission — Our Bicentennial Crisis: A Call to Action for Harvard Law School’s Public Interest Mission — that is being released today to coincide with our school’s bicentennial celebration.  The report aims to document: first, the crisis of mass exclusion from legal power for the average American (in the criminal justice, civil justice and political systems); second, Harvard Law’s failure to address this crisis, and the inaccurate excuses our community tends to give for not addressing it; third, what accounts for this civic deficit; and fourth, twelve reform proposals that aim to help us better live up to our mission.  An electronic copy of the report can be downloaded here. To request a hard copy, email PeDavis@jd18.law.harvard.edu.

Between the 1970s and 1990s, a flurry of critical works — including Duncan Kennedy’s “Legal Education and the Reproduction of Hierarchy,” Joel Seligman’s The High Citadel: The Influence of Harvard Law School, Richard Kahlenberg’s Broken Contract, Scott Turow’s famed One L, and Lani Guinier’s writings on legal education and profession — helped set Harvard Law School on a course from the hidebound, lily-white, cutthroat school of The Paper Chase to the more diverse, pluralist and genial school it is today.

I hope for this report to have a similar motivating impact, inspiring the community to transition from a school community where four out of five graduates deploy their legal educations to advance the legal interests of a wealthy and powerful few to one where a majority of students use their education to serve the interests of the vast, underserved public.

The report has four parts, summarized below:

Part 1: The Crisis of Our Time: Mass Exclusion from Legal Power

First, the report documents how the vast public is excluded from legal power in the United States:

  • …in the broken criminal justice system: how public defenders are grossly underfunded and understaffed— a contributing factor to prosecutorial abuses and our ballooning prison system.
  • …in the inaccessible civil justice system: how 86% of the civil legal needs of the poor go unmet; how America ranks 50th of 66 wealthy countries in terms of “the ability of people to obtain legal counsel.”
  • …in the indentured political system: how public interest lobbyists are outnumbered 34-to-1 by corporate interest lobbyists in D.C.; how tort law and antitrust law are crippled by corporate interest lawyers; and how the John M. Olin Foundation paid Harvard Law School $18 million to teach what they have admitted is “conservative constitutional law.”

 

Second, the report offers an account of the legal profession’s failure to address this exclusion:

  • England spending 13 times as much per capita and Canada spending three times as much per capita as the United States does on civil legal aid.
  • The top 100 most profitable law firms making ~$28 billion in profits while only ~$1-2 billion worth of lawyers’ time is spent annually on civil legal aid for the poor.

Part 2: Harvard Law’s Failure to Lead

The report next moves on to Harvard Law School, documenting how for every one graduate of Harvard Law School who goes on to work in public interest law, government or education, four graduates work for corporate interest firms or businesses.

The report then proceeds to debunk various excuses put forth by school administrators regarding these lopsided career trajectories:

Excuse #1: “Pro bono work and charitable giving blurs the divide”

  • In fact, lawyers at the major corporate interest firms give less than half an hour a week and half a dollar a day to pro bono service and legal aid.
  • ABA survey data shows that only 36 percent of attorneys do 50 hours or more of pro bono work per year.
  • The most giving law firms only give about one tenth of one percent of their revenue to access to justice efforts.

Excuse #2: “Everybody deserves a lawyer”

  • A disproportionate number of corporate interest firm clients are white and male, while a disproportionate number of public interest clients (government, legal services, education and non-profit constituencies) are women of color.
  • Almost 70% of recent Harvard Law graduates work in just four states: New York, D.C., Massachusetts, and California. In fact, more graduates work in New York than in 47 other states combined.
  • The report asks: “Harvard Law prides itself on its diversity of inputs: students of all races from all around the country. However, when viewed in light of the narrow range of outputs, a disturbing picture emerges of a school that attracts a diverse set of students from all across the country and sends them to New York to serve a disproportionately rich and white client base. If everybody deserves a lawyer, should not Harvard work to encourage the lawyers it trains to go where people are underserved?”  

Excuse #3: “Graduates take public interest jobs later”

  • In fact, only 7.2 percent of Harvard Law graduates who are working at large firms three years after graduation are working in public interest organizations twelve years after graduation.
  • Of the 303 members of the 2015 graduating class working in 100+ lawyer firms after graduation, we can expect, if trends continue, only 22 to be working in public interest organizations nine years later.

Excuse #4: “Students are free to choose”

  • In fact, there is a major “public interest drift” among students who are interested in public interest work (government, non-profit and educational work) upon admittance but end up in corporate interest work.
  • Whereas 35.4 percent of newly admitted students planned to work for law firms or businesses after law school, 63 percent planned to work for law firms or businesses by graduation.

Excuse #5: “This involves factors beyond Harvard Law’s control”

  • In fact, Harvard is losing out to other schools in terms of public interest careers in non-profits, government and education; Yale, Georgetown, Northeastern and CUNY all outperform Harvard.

Excuse #6: “Harvard Law is a path to the upper class”

  • In fact, available data shows that the majority of students at Harvard Law School are from families at the top of the income bracket.
  • Available data indicates that about 77.5 percent of Harvard Law students are from families that make more than $95,000 a year and have more than $175,000 in net worth.
  • This means that if you come from a family with double the median net worth of American families, you would still be in the bottom quarter of the economic bracket at Harvard Law School.

Part 3: How Did It Get This Way?

The report proceeds to explain how the school fails to live up to its civic potential:

  • A culture that fails to spark public-spiritedness: Harvard Law has an entrenched culture of competition, in which the law is viewed as a game and “geniuses” are praised regardless of their civic commitment. This law school culture provides a smooth transition to the culture of corporate interest legal work.
  • A curriculum that pacifies students: the first year curriculum of Harvard Law School is stuck in a century-old mold— and students do not get exposed to any pluralist curricula until their second and third years, when they have already made their decision to pursue corporate interest legal work.
  • A career-building system that nudges toward corporate law: The school treats corporate interest work as the “default option,” a process that culminates in first year students being wined-and-dined by corporate firms and an “Early Interview Program” that streamlines corporate interest recruitment. The school career office has even provided materials that encourage students to pursue revolving door work: joining a firm, leaving for a government agency that regulates their clients, and then returning to the firm to trade their government experience for higher salaries.
  • A cost structure that dissuades students from public interest work: Despite Harvard Law School’s efforts made to lower the debt burden of students pursuing public interest work, most students still see their law school debt as a major reason for pursuing corporate interest legal work.

Part 4: Steps Forward in Our Third Century

The report concludes with twelve reform proposals:

Reforming our culture

  • Reform #1: Measure public interest commitment: Harvard Law should join Yale in measuring graduate employment five years and ten years beyond graduation. With that measurement, the school can better set a goal of having a majority of its graduates pursue employment that serves the legal interests of the public at large.
  • Reform #2: Promote a culture of civic ambition :School leadership should work to center OUR stated mission — “to educate leaders who contribute to the advancement of justice and the well-being of society” — in the school culture.
  • Reform #3: Spotlight civic intelligence: School leadership should hold up lawyers who are examples of civic intelligence, rather than just narrow, analytical prowess.
  • Reform #4: Admissions should account for public interest commitment and experience: The school should adjust its admission criteria to more heavily weigh “civic intelligence” and commitment to the school’s public interest mission in crafting upcoming classes.

Reforming our curriculum

  • Reform #5: Learn from Gary Bellow’s Clinical Institute model Clinical education is the best way for legal education to be, to use a turn of phrase from Ralph Nader, empirically rooted and normatively fired up.
  • Reform #6: Learn from The School of Public Justice model: In the same way that medical education separates learning how to be a doctor from learning how to be a public health specialist, legal education should incorporate both training in being an attorney — an advocate for specific clients — and development as a lawyer— an officer of the court tasked with caring for the state of “public justice.”
  • Reform #7: Incorporate practice and theory into the first year curriculum: The current first year case method teaches the law outside of time and outside of lived practice. A first year curriculum that incorporates the history, philosophy and sociology of the law — paired with real-world clinical experiences — would better orient students to be change agents.

Reforming our career system

  • Reform #8: Fund and promote career offices around a goal of 51% of students pursuing public interest work: Instead of funding career offices around current demand — the school should aspirationally fund the public interest placement office based on the goal of inspiring a majority of students to pursue public interest work.
  • Reform #9: Supplement career-building with vocation-building: Students should more formally be invited to integrate the professional, the personal and the civic — “what opportunities are available?”, “what am I called to do?”, and “what needs to be done?” — in developing their post-graduation plans.

Reforming our cost structure

  • Reform #10: Limit the real and psychological debt burden of students aiming to pursue public interest work: The school should work toward a system where students who are committed to a certain period of public interest work after graduation are not burdened by tuition debt. Though this is achieved, in large part, by Harvard Law’s trailblazing Low Income Protection Program (LIPP) — the psychological baggage of holding immense tuition debt without total certainty that it will be paid off by LIPP should be addressed.
  • Reform #11: Lobby aggressively for civil legal aid funding: In the same way that the school community took a firm public stand on the DREAM Act, the law school should take a firm public stand on civil legal aid funding and deploy its heft to influence Congress to better fund “equal justice under law.”  
  • Reform #12: Lead a network of needs-based residency programs: The school should follow the lead of the Appleseed Centers for Law and Justice — started by the Class of 1958 to create local centers for public interest lawyering — and deploy its endowment and alumni base to build institutions that serve the dual purpose of (i) providing career-starting jobs (or, to use the medical education term, “residencies”) for recent public interest graduates; and (ii) serving communities in need of legal aid and civic support across the country.

Legal figures are beginning to respond to the report:

Georgetown University Law Center professor David C. Vladeck has said:

“Pete Davis’ ‘Our Bicentennial Crisis: A Call to Action for Harvard Law School’s Public Interest Mission’ is a must-read for anyone who cares about legal education and the role of lawyers in society. Our nation’s legal system shuts out ordinary Americans. Most of the legal needs of Americans, except for the wealthy, go unmet. More lawyers work for corporations than for people. Many students come to Harvard Law School to prepare for public service careers. But along the way, most of these students abandon their ideals to seek out jobs in corporate law. Davis shows that Harvard is more than just complicit in building the hydraulic pressure that alter career paths. The messages are rarely overt, but Harvard, like its elite law school peers, lets students know that public interest work is less prestigious and less rewarding than corporate law. Davis makes a powerful case that it is time for Harvard to try to understand this phenomenon and ask ‘why?’ As Davis points out, Harvard Law School’s stated mission is to ‘To educate leaders who contribute to the advancement of justice and the well-being of society.’ Graduating armies of Wall Street lawyers is hardly faithful to that mission. Davis does far more than throw down the gauntlet. He supplies answers to that question, and proposes many measures that Harvard, and other elite law schools, should take to fulfill the promise of Harvard. If law is an means to the goal of justice, it is time for America’s elite law schools to take Davis’ proposals to heart.”

Mark J. Green (HLS ’70), New York City’s first public advocate, has added:

“While Harvard Law School rightly celebrates its Bicentennial, 3L Pete Davis focuses on the horizon of the possible.He explains how even a great law school is under-performing and how to do it better.”

Judge Learned Hand, of the Harvard Law School Class of 1896, once said: “If we are to keep our democracy, there must be one commandment: thou shalt not ration justice.” When we celebrate our third century a hundred years from now, it is my fervent hope that they say of our generation of Harvard Law School students, faculty, staff and alumni: “they helped keep our democracy.” If this is to be the case, it will be because of reformers in our community who put in the work in the coming decades to better align our school with its public interest mission. I hope this report is a useful tool for their efforts. Let’s get to work.

(You can download an electronic copy of Our Bicentennial Crisis: A Call to Action for Harvard Law School’s Public Interest Mission here. To request a hard copy, email PeDavis@jd18.law.harvard.edu.)

Pete Davis is a civic reformer from Falls Church, Virginia and a member of the Harvard Law School Class of 2018. Email Pete at Pete@CivicIdeas.org. Tweet at Pete at @PeteDDavis.

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