Alumni can make an important contribution to students presently enrolled in their alma mater by calling attention to frames of reference often unmentioned or little discussed at Harvard Law School as the curriculum focuses on developing analytic legal skills and discerning legal concepts. Some alumni wish that they were accorded these larger perspectives when they attended Harvard Law School. A brief mention of a few advisories that might enhance your grasp of the meaning of legal education in addition to legal training:
- During the orientation meeting in September 1955 with Dean Erwin Griswold, he welcomed us and promptly pronounced that we were right then members of the legal profession. I remembered saying to myself, “What? On the first day?! Before we’ve passed the bar and received our license to practice?!” A few days later, while trying to understand this remarkable accolade to our class, there emerged the distinction between the roles of “lawyers” and “attorneys.” The attorneys “attorn” vigorously for their clients, while lawyers, licensed or unlicensed, pursue the broader goals for improving the administration of justice. Our professional codes of ethics and conduct embrace both roles because all attorneys should spend some time also being lawyers, looking out for the big picture of a just legal system. The Dean was saying that we were budding lawyers joining a learned profession, with many privileges and a tradition of public service. Unfortunately, I don’t ever recall a serious discussion in class about this duality of obligations.
- Even less attention was given to our status as “officers of the court” upon being admitted to the Bar. This poorly defined, but unique quasi-official role of all licensed attorneys should imply some special responsibilities. Former American Bar Association President (1973-1974), Chesterfield Smith took that status to require attorneys to comply with a judge’s order to represent an impecunious defendant in a criminal case very seriously, predicting that in a few years attorneys might be sent to jail for refusing such an instruction. Well, that has not happened, but clearly, law students should start filling in the ethical blanks about what being an “officer of the court” should mean beyond obeying the criminal laws and judicial rules. It could mean not lobbying to block access to courts, or pushing to contract the law of torts and distort the law of contracts by legislating or pressing for onerous restrictions. (The usual euphemisms are “tort reform” and mythical consents to “standard form contracts.”
- Given Harvard Law School’s many clinics (there was only one in 1955), there needs to be a deeper awareness of the distinction between charity and justice. For example, soup kitchens are a necessary charity in a society without enough A just economy with livelihoods for all would prevent the daily hunger that flows from systemic poverty. Charitable work by lawyers is about immediate assistance, while advancing justice is structural work that foresees and forestalls the conditions that give rise to the ever-growing need for charity.
- Lawlessness is far more prevalent, far more entrenched and far more above and beyond the unenforced rule of law. There are also the many laws enacted to provide privileges and immunities for the few over the many up and down the hierarchies of our society so grossly unequal in power, wealth and income. Corporate crimes, such as massive billing fraud in the health care industry continue year after year with disgracefully minimal enforcement. Professor Malcolm Sparrow, of the Harvard Kennedy School, author of License to Steal, while not in a position himself to quantify fraud and abuse losses precisely, believes evidence suggests that losses due to overpayments exceed ten percent of total health care costs, and could be considerably higher. By my calculation, if just ten percent losses are applied to this year’s expected expenditure of $3.5 trillion, then fraud and abuse are draining at least $350 billion out of the U.S. health care system annually. The broad and deep range of commercial crimes, and examples of where there is no criminal law to curb criminogenic behavior, are reported weekly in the Corporate Crime Reporter (available in Harvard Law School’s great library).
- Why are there no courses and seminars about lawlessness—regarding runaway presidential actions, widespread violations of environmental, consumer, labor, tax and civil rights laws, public corruption of procurement contracts, and the trampling of international law—to name a few sectors? The taxonomy of systemic violations, of non-compliance, of fudged reporting and intricate artifices of escape are demanding topics for any realistic curricula.
- Why not evaluate how corporations exercise their rule of power over the rule of law even during occasional enforcement actions? Why not dig deeper into how governments run a criminal injustice system ranging from unwanted arrests to the courts and prisons?Lawlessness should be a high-priority focus of the Law School’s curriculum.
- Large corporate law firms are not a subject of regular study. They are noticed mostly for their pay scales and their hospitality to law students during annual recruitment periods. Yet they are the brain trusts, the enablers, the protectors of corporate power moving toward ever more concentration and the overall maturation of the autocratic corporate state. Because most of you will be working at corporate firms, it makes sense for you to know what you’re getting into. These law firms are creating far more deep and damaging injustice for our society, fortifying perpetrators and more corporate supremacy than is offset by the intermittent pro bono work they do. If you want to use the law to help solve serious societal problems—here and abroad—look somewhere else.
- Don’t trivialize your estimable talents for lucrative returns. Keeping your conscience at home while selling your talents is a very high price to pay during the fifty years or so you will practice law. Note it has become easier to perform conscientious work earlier because expanded financial aid lessens the burden of law student debt, in addition to other enabling programs post-graduation by Harvard Law School.
- Take a course or two in legal history, or jurisprudence to absorb the big picture of the law over time. Don’t miss out on such broadening of your intellectual development because questions from such subjects are not asked on bar examinations. Know that bar exams are quite crammable with the help of result-directed cram courses.
- Learn more about your professors. Knowing about their academic production, their accomplishments, their activism or lack thereof and, importantly, their moonlighting consultantships (reported to some degree on http://hls.harvard.edu/) will enrich the quality both of classroom experience and your seeking advice from them. They will benefit from your informed feedback as well. They know that Harvard Law School’s declared mission statement is “to educate leaders who contribute to the enhancement of justice and the well-being of society.”
- Read some books and articles about what is going on in our political, technological and economic sectors. Such engagement will reduce the tedium of coursework and reify for you the old Roman adage that “out of the fact comes the law.” Facts about greed and power or about virtues and democracy fuel professional enlightenment. That extracurricular reading worked to get me interested in unregulated auto design hazards when I was a Harvard Law student.
- Passionately attach yourself to some mission for more structural justice, to a cause with the civic community while you are at law school or from your clinical practice work. I was fortunate to venture into the civil rights arena during the nineteen fifties when there were very few women, African-Americans and other minorities at the law school. But after Brown vs. Board of Education and Arkansas Governor Orville Faubus’s opposition to desegregation, you had to go outside of the law school to understand the law itself as an instrument of oppression.
- Don’t get too mired into your day-after-day academic routine. Sample the public events at the Law School and the rest of this vast University. Amplify and render more intrepid your curiosity and your imagination by showing up at events and meeting people, often dynamic public interest lawyers, outside your inner circle—who know and who do justice—what Senator Daniel Webster generations ago called the “great work of man on Earth.” Know your law school’s history and your profession beyond their conventional and often mythic portrayals.
- During the past two years, Harvard Law students published What Harvard Law Students Need to Know, and just last October, Pete Davis 3L issued his challenging, timely report, Our Bicentennial Crisis: A Call to Action for Harvard Law School’s Public Interest Mission. The facts and conclusions might constructively startle you into public interest law activity—that is, if you have a proper estimate of your own significance over the next half century. These publications are online at hlrecord.com, with print copies available at the offices of the Harvard Law Record, which is your voice on the law writ large. (See also Public Citizen Litigation Group’s book, Courting Justice.) Should you wish to delve deeper into the conduct of the legal profession itself, the latest edition of Regulation of Lawyers by NYU Law Professor Stephen Gillers is a robust read.
- It is not too early to envision the collective significance of your classmates once they become the alumni classes of 2018, 2019 and 2020. It took our class of 1958 a while to do this; but when we started the Appleseed Network (appleseednetwork.org) in 1993 to establish law and justice Centers in numerous states, we were the first alumni class in American legal history to embark on such extensive institution building. You’re cordially invited to stand on our shoulders.
If the law is to mean anything, it must be the institutional vanguard for a just society. Replacing complicity with conscience, you can be both its sentinels and its tribunes.