What Harvard Law Students Should Know About For-Profit Colleges

I’m a Washington DC lawyer and policy advocate, and I spend a couple days a week trying to expose and end the abuses of a particularly bad industry: predatory for-profit colleges. I am regularly contacted by industry employees who no longer can live with being part of an immoral enterprise:

  • The marketer at a Utah “lead generation” company who is assigned to placing fake ads for non-existent jobs on the Internet, aimed at luring unemployed people to provide their contact information.
  • The telephone rep at a Florida call center, who grabs the leads that were generated, and tries to deceive these people – low-income single parents, veterans, and others struggling to get ahead – into buying high-priced, low-quality career training programs, many conducted entirely online.
  • The California college librarian, heartbroken because her school has admitted to its $80,000 criminal justice a program a mentally challenged man who reads on a third grade level and believes he is training to become a police officer.

These employees talk to me about feeling ashamed, degraded, disgusted with what they’re doing.

Yet their ultimate bosses, the CEOs of the big predatory for-profit colleges, seem to have no such shame. Nor do the many power brokers and celebrities, from Suze Orman to Colin Powell, Trent Lott to Dick Gephardt, Marc Morial to Mitt Romney, who have been hired, one way or another, to endorse and defend bad actors in this industry. Nor do the many graduates of Harvard Law and other premier institutions who get rich as executives and advisers with predatory for-profit colleges.

When you leave Harvard, you will have a world of opportunity. The question posed for you by the story of for-profit colleges is whether you want to be paid to shield the privileged even when they engage in blatant abuses, or whether you want to use your talents and creativity to help build a stronger, more just, more innovative, and more productive society that benefits everyone.

A for-profit college is a college that’s owned by a profit-making business, as opposed to the more traditional model of a college operated by a state or by as a non-profit.  Most for-profit colleges focus on training students for careers, in fields from information technology to health care to auto repair.  There’s a strong need for such training programs, and there’s nothing wrong in theory with the idea of having businesses run them, but in practice it has created a big problem for students and taxpayers.

Many for-profit colleges get about 90 percent of their revenue from federal government grants and loans provided to help students get an education.  These businesses hire lobbyists to loosen the government’s rules for getting such aid. They also spend heavily on campaign contributions that have helped buy the allegiance of almost all the Republicans in Congress, and many of the Democrats as well.

As a result, the rules are very weak, and for-profit colleges can maximize their profits by ripping off students – using deceptive advertising and coercive recruiting, charging very high prices, and spending far too little on teaching and helping students build careers. The victims of these abuses have seen their financial futures ruined by overwhelming student loan debts reaching over $100,000 in some cases.

Some for-profit colleges are honest and do a good job educating students, and there are good teachers and students at even some of the worst schools. But overall, the industry is hurting people and our economy, while making a small group of owners rich enough to buy their own yachts, private planes, and mega-mansions.  For-profit colleges have obtained as much as $32 billion a year from federal aid, and their lobbyists work every day to keep that money flowing.

For-profit colleges, like other kinds of colleges, are eligible to receive federal student grants and direct loans — if they receive approval from organizations called accreditors. Many accreditors apply fairly low standards. Some for-profit colleges, such as some local strip-mall beauty schools or the infamous Donald Trump University, still don’t bother to get accredited, and thus students are not eligible for federal aid.  Most for-profit colleges do get federal aid, but many of their students need more aid than that to pay the high tuition costs.  So for-profit colleges steer many students into non-federal private loans that come with very high interest rates that can reach 15 percent or more, as compared with 3.8 percent for federal loans.

For-profit colleges tend to have graduation and job placement rates at the low end of the scale, especially given their high prices.  Here is one key statistic that shows the poor performance overall of for-profits: According to the U.S. Department of Education, for-profit colleges now have about 13 percent of all US college students, but they account for nearly half of all defaults on student loans. The Department also found that 72 percent of the for-profit colleges it surveyed produced graduates who on average earned less than high school dropouts.

There are real challenges in figuring out how to provide quality career education to people at affordable prices. But instead of focusing on that important work, Washington education policy advocates and lawyers are caught up in a debate defined by the for-profit college industry using pressure to keep billions in federal dollars flowing with no accountability whatsoever. Because their wealth comes almost entirely from taxpayers, the for-profit college industry is a monster that Washington has created. It’s difficult to stop this monster.

But in recent years federal and state law enforcement agencies have launched extensive investigations of for-profit colleges for defrauding students and taxpayers. Many of the biggest for profit colleges – including University of Phoenix, EDMC, ITT Tech, Corinthian, Kaplan, Career Education Corp., and DeVry – are under investigation by federal agencies and / or state attorneys general.  Some for-profit colleges – including ATI Technical Institute and FastTrain College — have been shut down for their frauds, and some for-profit college executives have been sent to prison.

These law enforcement probes, coupled with an increasing volume of media exposes, have finally helped get the message to potential students that they might do better at a community or state college. But the for-profits continue to run deceptive ads endlessly on TV and the Internet; before he was killed in Ferguson, MO, Michael Brown had enrolled at for-profit Vatterott College, a school that has been punished in court for deceiving its students and leaving them worse than they started and whose executives received criminal convictions for defrauding the government.

President Obama is well aware of the scam. His Administration has sought to implement a new rule (called “gainful employment”) to channel aid toward programs that were actually helping students and away from programs that consistently leave students with overwhelming debt. But an army of industry lobbyists and lawyers have managed to water down the rule and then have it struck down in court, on the ground that the Department had failed to articulate a clear rationale for one component of the regulation.

Right now, APSCU, a trade association dominated by predatory for-profit colleges, is back in court trying to block a new version of this rule. I work with a coalition of student, veterans, labor, consumer, and civil rights groups urging the court to decide that the government has the right to demand at least minimal performance standards, that predatory companies do not have a permanent entitlement to take billions in taxpayer dollars without regard for the consequences for students and our economy. (This litigation, and many other aspects of this issue, are ripe for further exploration through your law school papers and law journal articles.)

When you consider a debate like this, think about your future as an attorney. Which side will you be on?

David Halperin engages in policy, advocacy, communications, and legal work in Washington DC. He is a Yale Law graduate who took his third year of classes at HLS. A former White House speechwriter for President Clinton, Halperin is the author of Stealing America’s Future: How For-Profit Colleges Scam Taxpayers and Ruin Students’ Lives (Amazon ebook). You can reach him through his blog: RepublicReport.org/contact .


On the Large Potential of Small Claims Courts

When I was in law school, I bought a laptop that turned out to be a lemon. It would overheat during class, sending the cooling fan into overdrive, and by the end of an hour it whirred loud enough to turn heads several rows away. Soon it started to crash. “System failure,” the screen would read upon rebooting. And then, two years after I bought it, the machine crashed for the last time: “massive system failure,” it said.

This was not a cut-rate computer. It was a Toshiba – supposedly one of the best brands – and I bought it from a reputable national retailer for $1,500. So I called the store. The manager’s response was as predictable as it was unsatisfactory. Since the warranty had expired, the store – OK, it was Micro Center on Memorial Drive in Cambridge, but it easily could have been another – wouldn’t even look at it unless I paid a “diagnostic fee” of $95. My only recourse now, the manager insisted, was to contact the manufacturer.

Just as predictably, Toshiba declined to accept responsibility for the defective machine, due to the expired warranty. But my call to corporate headquarters yielded an interesting fact: someone else had purchased the computer two months before I did, and registered it with Toshiba. That person had apparently returned the computer to Micro Center, and Micro Center then sold it to me as new.

Every state has laws that are intended to protect consumers from such abuses by prohibiting unfair and deceptive business practices. [1] In most states, including Massachusetts, the law provides citizens with a private right of enforcement by means of a civil action for damages. [2] The Massachusetts Consumer Protection Act, like many other state laws, also allows a prevailing plaintiff to collect treble damages for knowing or willful violations, plus costs and attorney’s fees. [3] But often no attorney is needed, because consumers can represent themselves in small claims court.

Small claims courts are the most accessible forum of law available to American citizens. States began to establish them in the early twentieth century, following publication of an influential article by Roscoe Pound, which argued that consumers should have a mechanism for pursuing relatively minor claims without incurring the expense of a full-fledged lawsuit. [4] Today small claims courts exist in every state, and although their rules vary, they share the same basic characteristics: costs are minimal, procedures are simple, and adjudication is lightning fast in litigation time. Filing fees range from $15 to $150, depending on the state, while the maximum claim value ranges from only $2,500 in Kentucky and Rhode Island to as much as $25,000 in Tennessee. [5] Massachusetts falls in the middle: filing fees are between $40 and $150, depending on the value of the claim, and the maximum claim value is $7,000 (except there is no limit on property damage claims arising from an automobile accident). Apart from those requirements, anyone with a grievance can have their day in court simply by filling out a complaint form and appearing at the scheduled hearing. Massachusetts also permits parties to be represented by an attorney, though some states do not.

Despite the original purpose of small claims courts, and the ease with which average citizens can access them, their dockets tend to be dominated not by consumer claims, but by debt collectors and other business interests pursuing claims against individuals. [6] A study of a California small claims court found, for example, that corporate or business plaintiffs filed 56 percent of all cases in 2002, while only 36 percent were filed by individual or private party plaintiffs, and the remaining 8 percent were filed by government plaintiffs. [7] The authors surmise that corporations are simply more familiar with the small claims court system than average citizens, and that collecting debts is a normal part of the corporate business structure. [8] But whatever the cause, they conclude, “the system has been over utilized by businesses and corporations.” [9] In other words, to some extent small claims courts have been functionally hijacked by the very interests they were intended to check.

This is not a new phenomenon. As early as 1972, a comprehensive legal study of small claims court referred to it as “the forgotten court,” because the spirit of reform that gave rise to it appeared to have moved on. [10] But the debt collectors have not forgotten. In 2006, an investigation by the Boston Globe concluded that small claims courts, with their relaxed procedures and evidentiary standards, “have mutated into a system that ignores individual rights and shows favoritism toward debt collectors and their lawyers.” [11]

To be sure, small claims courts may be subject to abuse by unscrupulous debt collectors – and that is just one of many valid criticisms. [12] But they can also be an effective forum for accomplishing exactly what they were originally intended to do. In my case, for example, a $1,500 lemon was more than I could swallow, and so I sent Micro Center a demand letter requesting restitution or some other reasonable resolution. Micro Center declined, and soon we were appearing before a magistrate judge in the small claims division of Cambridge District Court. I presented my evidence, which Micro Center didn’t dispute. Its representative also helpfully admitted that Micro Center routinely sold floor models and returned merchandise as new, without notice to the customer. Justice was swift – I was awarded treble damages, plus costs, for a judgment of more than $4,500.

Everyone, it seems, has their own “Micro Center” story. In today’s economy of mass produced goods and automated transactions, the consumer who has never been victimized by defective products, shoddy services, overcharges, hidden and unauthorized fees or other unlawful business practices is vanishingly rare. But all too often, consumers accept these abuses as a cost of doing business if they want cable television, cell phones, rental cars, airline travel, hotel rooms and all the other amenities or necessities of modern life. Some people may be unsure of their rights, or how to go about obtaining a remedy. Others may not even know they have a claim, because putative corporate defendants have become so adept at warding off litigation by citing boilerplate provisions of their fine print contracts.

Imagine if more consumers were willing to challenge corporate malfeasance in small claims court. Corporations might soon decide that unfair and deceptive business practices weren’t so cost-effective anymore. They might even start treating consumers with the kind of honesty and fairness that real people expect from each other in business. That’s the idea behind the Small Claims Action Center, a new non-profit organization launching in Washington, DC. SCAC will help ordinary people use consumer protection laws to obtain justice in small claims court, while raising awareness among similarly situated parties who also may have meritorious claims. The more individual plaintiffs who are made whole, the greater the deterrent effect small claims court will have against the abusive and unlawful corporate practices proliferating today.

Those who doubt that small claims court litigation can produce a meaningful deterrent effect may be surprised to learn that it has already done so, albeit in isolated instances. In the early 1980s, for example, more than 100 people filed separate small claims actions against the San Francisco Airport, seeking the jurisdictional limit in nuisance damages for excessive noise. The small claims court awarded judgment in favor of each plaintiff, and the appellate courts upheld the judgments. [13] In doing so, the Court of Appeals expressly rejected the city’s arguments that the claims were too “complex” or otherwise “inappropriate” for resolution in small claims court. [14]

The same thing can happen again. And again, and again, and again.

Oliver Hall is a public interest attorney in Washington, DC. He is founder and legal counsel to the Center for Competitive Democracy.

[1] See Carolyn Carter, Consumer Protection in the States: A 50-State Report on Unfair and Deceptive Acts and Practices Statutes, NATIONAL CONSUMER LAW CENTER (February 2009).

[2] See MASS. GEN. LAWS ch. 93A (2014).

[3] See id. at § 9(3).

[4] See Roscoe Pound, The Administration of Justice in the Modern City, 26 HARV. L. REV. 302 (1913).

[5] See NOLO, Small Claims Court: The Basics (visited February 20, 2015) <http://www.nolo.com/legal-encyclopedia/small-claims-court>.

[6] See Bruce Zucker and Monica Her, The People’s Court Examined: A Legal and Empirical Analysis of the Small Claims Court System, 37 U. SAN. FRAN. L. REV. 315, 341 & n.143 (Winter, 2003).

[7] See id.

[8] See id.

[9] See id. at 340.

[10] See Barbara Yngvesson and Patricia Hennessey, Small Claims, Complex Disputes: A Review of the Small Claims Literature, 9 L. AND SOC. REV. 2, 219 (Winter, 1975).

[11] See Michael Rezendes et al., Dignity Faces a Steamroller, BOSTON GLOBE (July 31, 2006).

[12] See, e.g., Jeffrey H. Joseph and Barry A. Friedman, Consumer Redress Through the Small Claims Court: A Proposed Model Consumer Justice Act, 18 B.C. IND. AND COMM. L. REV. 5, 839 n.2 (June 1977).

[13] See City and County of San Francisco v. Small Claims Division, 190 Cal. Rptr. 340 (Ct. App. 1983).

[14] See id. At 343-44.

What Harvard Law Students Should Know About Equal Justice Works

A few weeks ago, I was visiting with Ralph Nader HLS ’58. I have known Ralph for most of my life and have seen how his dedication to the public interest has created enormous impact on so many issues including consumer rights, car safety, protecting whistleblowers, and corporate misconduct to name a few.

While Ralph is extraordinary, he is certainly not alone. Thousands of lawyers have dedicated their careers to helping under-served communities and causes. The vast majority of these lawyers will say they are incredibly happy with their choice, even though it meant a great deal of personal and financial sacrifice. It is hard but fulfilling work.

Here’s the problem: As the gap between the rich and poor continues to grow, we face a crisis in who has access to justice. There is just one legal aid attorney available for every 6,415 low-income Americans. About 80 percent of defendants in criminal cases can’t afford a lawyer, and the majority of parties in housing, probate, and family courts across the country go unrepresented. All the while, corporations and the wealthiest citizens can afford to hire the best lawyers.

The justice gap in America is a moral crisis, but dedicated law students and lawyers can help. Today, more students enter law school with public interest aspirations than in a generation. Many have been in AmeriCorps, Teach for America, the Peace Corps or have experienced the satisfaction of community service in high school or college. They are hungry for opportunities to serve. Unfortunately many are blocked by the scarcity of public interest jobs and mortgage sized educational debts.

Equal Justice Works, a national nonprofit dedicated to empowering tomorrow’s public interest lawyers, provides programming for students who want to take their public interest commitment to the next level. We pave the way for law students to build careers they dream of –careers that do more than pay the bills – by offering a continuum of programs for law students and young lawyers dedicated to closing the justice gap

Law students should learn how to manage their educational debt before it gets overwhelming. Students can supplement their eligibility for Harvard’s innovative Low Income Protection Plan (LIPP) with many of the educational resources offered by Equal Justice Works. We provide free monthly webinars and a free e-book, “Take Control of Your Future,” that contain comprehensive information on programs that can help you manage your student debt, like income-driven repayment plans and Public Service Loan Forgiveness (PSLF). You can get legislative updates, primers on debt relief programs, and more on our Huffington Post blog.

As a student, you can read about unique public interest law projects and enroll in AmeriCorps JD to cultivate your skills and work with 720 other law students across the country to deliver crucial legal services to people in need. Those with a passion for public service can act as student leaders, raising awareness about the need for public interest lawyers and inspiring other students to explore opportunities to expand access to justice. Because of Equal Justice Works’ student-led Law Students for Pro Bono campaign, thousands more law students across the country will be exposed to public interest law through pro bono requirements like Harvard’s.

You will find a wealth of public interest legal opportunities at the Equal Justice Works Conference and Career Fair, where more than 1,200 law students and recent graduates meet in Washington, D.C. in October to network, participate in cutting edge workshops about public interest law, receive media coaching, and interview for positions with over 140 public interest employers from around the nation.

Students entering their final year of law school can look to Equal Justice Works for answers to that pervasive question – “what’s next?” We offer the largest postgraduate legal fellowship program in the country with 285 Fellows currently in the field. An amazing 85 percent of our former fellows remain in public interest law to this day.

You can apply to help veterans with homelessness, debt, and other legal issues in the Veterans Legal Corps. You might seek to assist individuals in obtaining employment by expunging or sealing criminal records and restoring occupational and driver’s licenses with the Employment Opportunity Legal Corps. If you are committed to helping the recent wave of unaccompanied immigrant children receive assistance and fair representation, apply to Justice AmeriCorps. And if you wish to work with low-income communities to preserve and improve Section 8 housing, you can join the VISTA Affordable Housing Preservation Project. You can also apply for a privately funded Equal Justice Works Fellowship, where you design and implement your own project on any issue from environmental justice to LGBTQ advocacy.

One Harvard alumna, Megumi Tsutsui, is turning her law school experience into a rewarding public interest career through an Equal Justice Works Fellowship. Megumi did clinical work at the Legal Services Center, offering assistance to victims of predatory lending and debt collection. There, she realized an unmet need for the protection of low-income and minority populations against these malicious practices. She designed a plan to cultivate financial stability in low-income and Latino communities in the Bay Area by resolving bad debt and facilitating access to affordable loans. Megumi was awarded an Equal Justice Works Fellowship. Now you can find her in Oakland at Housing and Economic Rights Advocates, continuing the work she started as a student and making her plan a reality.

Megumi isn’t alone. Many Harvard alumni have received these Fellowships to design and implement their own groundbreaking projects. In Michigan, 2014 Equal Justice Works Fellow Jessica Frisina is working to throw a wrench into the school-to-prison pipeline for Detroit’s children, representing them in juvenile court and organizing the local community in advocating for restorative alternatives to incarceration and expulsion.

In California, 2013 Equal Justice Works Fellow Annie Hudson-Price is representing court-involved veterans suffering from service-related trauma and illness while promoting the widespread adoption of Veterans Treatment Courts as community-based alternatives to traditional sentencing models. And right here in Massachusetts, 2013 Equal Justice Works Fellow Erica Boyce is providing legal assistance and educational outreach to independent commercial fishermen on Cape Cod, facilitating mediation and training in dispute resolution to resolve entrenched conflicts between independent fishermen and the massive fishing companies that threaten their livelihoods.

Harvard Law students have more support for public interest pursuits than any other law school in the country. With its comprehensive course offerings, pro bono requirement, student practice organizations, and nearly 30 in-house clinics, Harvard Law School gives its students exemplary tools to cultivate public interest careers.

You have the power to be a force for justice. Under-served community and causes desperately need your talents. And Equal Justice Works has the resources to help you along the way.

David Stern is Executive Director of Equal Justice Works. Visit www.equaljusticeworks.org to learn more about innovative programs and resources that are empowering and mobilizing the next generation of public interest lawyers.

What Harvard Law School Students Need to Know About How They Can Help College and High School Teachers Introduce Tax Policy Issues in Their Curriculum

Here’s a challenge: Try to find a serious discussion of our nation’s tax policies in the curriculum of any liberal arts college or university. Good luck! The subject rarely earns more than minor attention even in economics courses. And it’s virtually absent from our high schools.

No one should be surprised. Consider this anecdote. In the late 1990s, I met with Arthur Schlesinger, Jr. to see if he would write a blurb for my forthcoming book, If Americans Really Understood the Income Tax. A favorite professor of mine when I was a Harvard undergraduate decades earlier, Schlesinger remained one of our country’s most distinguished U.S. historians. His initial comment: “But John, I know nothing about taxation.”

One reason: Never having been taught about our tax laws, let alone tax policy issues, professors as well as high school teachers have little idea what to teach and how to teach it. So they ignore what deserves to be part of a basic civics education.

With troubling implications: Taxation must have little bearing on our nation’s history or its future–on our social history, including issues of race, class, gender and poverty; on our nation’s economic growth; on our government’s ability to pay its debts and fund essential programs. At a minimum, students could well assume that the subject is beyond them, either because it’s inherently within the purview only of tax experts or because “my brain doesn’t do numbers.”

Here’s a different perspective. Except for the U.S. Constitution, federal tax laws represent the most comprehensive expression of our nation’s values. The laws touch upon nearly every aspect of our lives—housing, health care, education, jobs, unemployment, entitlements, marriage, divorce, children and childcare, retirement, charities and charitable giving, the environment, and on and on. The tax choices Congress makes crucially shape who we are as a nation and what we will become. Our young people need to know this.

Put differently, a public illiterate about our government’s tax policies is vulnerable to countless misleading statements about them. This is dangerous. We can’t afford it.

The case for introducing the subject to a college or high school curriculum is particularly timely now given the need for genuine reform of our nation’s dysfunctional income tax, and the vast divide between the parties about what such reform should mean. There is widespread agreement that a simpler tax system could be both fairer and promote greater economic growth. Rhetoric aside, we remain mired in a clash of two shouting matches: Taxes must not be raised on anyone—indeed, they already are too high, particularly on “the rich,” according to most Republicans–or taxes must be reduced on “the middle class” and raised only on “the rich,” the view of most Democrats, including President Obama.

Both arguments share one characteristic: They are data free. The public hears only conclusions, as if either argument is self-evident. Here’s what’s not self-evident: However “middle class” or “rich” is defined—and the choices seem unlimited– the tax liabilities of households within each category depend on far more than the size of their income. With well over 100 tax breaks protecting nearly half of all individual income from tax—nearly $7 trillion of untaxed income last year alone—households of equal size and equal incomes seldom owe equal taxes. Rather, the amount we owe depends far too much on our ability to avoid taxes than on our ability to pay them, whether we are middle class or rich.

Probably to your great surprise, all this can be understood by high school juniors and seniors in an hour.

My confidence stems from experience. For 25 years I taught a seminar for liberal arts students at Mount Holyoke College on the social and economic outcomes of our tax laws. And for the last year and a half, I have given numerous one-hour talks on the subject to high school juniors and seniors studying economics, U.S. government, or U.S. history. The teachers value it. The students get it.

But let’s make it a series of five-one hour talks that you—Harvard Law students—can help prepare that will enable college professors and high school teachers to introduce the major tax issues of the day to their students. Consider these topics I have covered in a single hour on the federal individual income tax for high school students:

First: The choice of an income tax vs. some form of consumption tax.

Second: The central revenue-raising role of the individual income tax and the need, therefore, that it be well designed and respected.

Third: The choice of progressive rates—those now and since 1913–vs. a single flat rate.

Fourth: The vast difference between “economic income” and “taxable income” under our tax laws, in which nearly half of all individual income escapes taxation through tax breaks for personal matters, such as for owning a home, buying health insurance, funding a retirement plan.

–Two consequences: (1) Tax rates on the remaining “taxable income” must be much higher than would be true with far fewer tax breaks; and (2) it is unlikely that people with equal abilities to pay will pay equally.

Fifth: Most of the “missing income” from personal tax breaks appear as exclusions, deferrals and deductions (each explained) that save the most taxes for people in the highest marginal tax brackets.

–Still, the top quintile of income earners pay about 90% of all federal individual income taxes, a much higher share of such taxes than their share of all income. (Low- and moderate-income households, while paying little or no federal income taxes, pay substantial Social Security and Medicare taxes, federal, state and local sales taxes, and, in some cases, state income taxes.)

Sixth: My favorite example: The home mortgage interest deduction—the most prized of all tax breaks and a third rail of American politics. Let’s assume it exists to promote homeownership.

–The law: Taxpayers may deduct the interest on up to $1 million of loans to buy, build or substantially improve up to two homes that they use personally.

–The estimated tax savings, and cost to the government, over five years: $400 billion (from Congress’s nonpartisan Joint Committee on Taxation).

–Who gets that $400 billion? (based on 2014 distribution by the Joint Committee)
For the bottom half of all tax returns: 2% ($8 billion);
For the top half of all tax returns: 98% ($392 billion);
For the top 5% of all tax returns: over 40% (over $160 billion).

Then questions and observations:

–Does the deduction significantly increase the percentage of home ownership? Probably not.

–The deduction drives up house prices.

–The deduction may create double losers: those who don’t benefit from the deduction and may pay higher rents if there are fewer rental apartments because so much capital is drawn to homeownership.

–Our economy may be stronger if fewer tax dollars subsidized expensive homes.

Finally, a discussion of possible reforms, such as subsidizing only a single, basic home; tax credits to subsidize the purchase, with the credits declining as incomes rise; lowering tax rates for everyone if these and other reforms significantly increase the amount of taxable income.

Professors and teachers need your help to craft these discussions. My bet is: you’ll enjoy it.

John O. Fox holds degrees from Harvard College, A.B. 1960; University of California at Berkeley Law School, LLB, 1964; Georgetown University, LLM in Taxation, 1968. He has practiced law in Washington, D.C., 1964- 2000; was visiting professor, Mount Holyoke College, 1985-2011; and is the author of If Americans Really Understood the Income Tax (Westview, 2001), op-eds in Washington Post, New York Times and other publications. He can be reached at johno.fox@comcast.net or 760-778-5222 in California, and, after April 2015, at 413-549-2604 in Massachusetts.

What Harvard Law Students Need to Know About Law School Transparency

In March 2012, I participated on a panel at Harvard Law School’s Global Legal Education Forum. We were asked to unpack the crisis in legal education. As co-founder of Law School Transparency (LST), I discussed the importance of eliminating deceptive law school marketing and increasing the availability of high-quality consumer information. One of our core goals is to empower prospective law students to make smart decisions about whether and where to attend law school. Information, and the narrative surrounding the pursuit of transparency, is paramount to that goal.

Prior to the panel, a well-meaning event organizer approached me. He accurately predicted that my opening remarks would stress how reliable consumer information stimulates competition. The S.J.D. student then suggested that I eliminate the word “consumer” from LST’s advocacy efforts. While he agreed that transparency was critical, he reasoned that pursuing a legal education is not merely or even predominately transactional. We were likely to lose out on potential support from some within the legal academy by using consumer-laden terms.

I thought carefully about his advice for weeks. Ultimately, I decided to stick with the evocative consumer frame. These word choices remind those in and around the profession, as well as those who want to join it, that pursuing a legal education has a distinctly transactional feel. Obtaining a legal education may be primarily about acquiring new knowledge and new skills, but choosing to attend law school today has an awful lot in common with buying a car or obtaining a mortgage.

Neither a home nor car purchase is inherently hazardous, but when a sophisticated party enjoys a major advantage over the other, e.g. an information asymmetry or disparate bargaining power, the results get unfair quickly. The law school process is brimming with examples demonstrating that students need help overcoming foreseeable disadvantages—especially would-be first-generation lawyers.

For many years, law schools withheld meaningful post-graduation employment data from students. The American Bar Association’s accreditation process blessed deceptive if not fraudulent statistics manufactured by schools. Schools counted all employed graduates equally, whether they worked as an associate at a large firm or as a barista at Starbucks or in a temporary job at their law school. Schools also declined to publish survey response rates when advertising starting salaries. Against a widespread belief that law school is a ticket to financial security, statistical chicanery distorted decision-making. Many students would have chosen another school or demanded to pay less if they had known the truth.

Competition among law schools is fiercer than ever. Schools still hire their own graduates to boost employment rates and rankings, although they must disclose it. While disclosure norms have changed, 40% of law schools still do not share their NALP Report, a handy report teeming with useful consumer information. Every school receives its school-specific report from NALP annually.

Unfortunately, Harvard Law School remains one of the holdouts. HLS should have nothing to hide, so the school has zero excuse to withhold information from its applicants. HLS could choose to disclose its NALP Report and stop aiding other schools from distorting student decision-making.

In addition to a continued information asymmetry, law schools have become more creative in their marketing, particularly concerning pedagogical and curricular changes that are challenging to parse. Even the cost of obtaining a legal education is obscure for students. The accumulation of interest on student loans during law school surprises more students than it should. Tuition increases are inevitable yet difficult to predict. And many law schools prey on optimism bias through conditional scholarship programs, which eliminate scholarships based on GPA and cause these students to subsidize higher-performing students.

Applicants also generally misunderstand the purpose of most scholarships; they frequently view scholarships as gifts rather than incentives. As we reinforce the effectiveness of negotiation and emphasize the strong bargaining position today’s applicants have in a soft market, we empower them to confront extraordinarily high prices.

Law schools leave too many people full of potential without hope post-law school. Poor choices in a life-altering financial commitment negatively impact students and their families. Purchasing a legal education is a transaction, and reliable consumer information is essential for combatting unfairness. We can help students become more sophisticated, like the institutions collecting their tuition.

We will continue to change the rules and the norms so that new lawyers join our profession with their eyes wide open. To this end, LST provides prospective law students with two key resources. The LST Reports offer a popular alternative to the U.S. News & World Report law school rankings. We also recently launched a podcast called I Am the Law, which expands public knowledge about the many roles that lawyers play.

We built the LST Reports (www.LSTScoreReports.com) on ABA-required data and data that we obtain from law schools through voluntary disclosure. To help people sift through schools and mountains of data, we carefully organize employment, admissions, and financial data. We help visitors see the big picture and, if they choose, the fine detail. In effect, we empower them to make strategic decisions and informed choices.

Statistics drive the LST Reports. Quantitative measures have significant merit, but answer only some questions. Indeed, “Do I want to be a lawyer?” is better answered with qualitative information. Our new podcast (www.LSTRadio.com) seeks to help people determine what, if any, legal jobs will satisfy them.

Each episode includes an informational interview with a lawyer about what his or her job entails. Our audience gains access to many more lawyers than they can interview on their own, and our hosts ask questions that provoke thoughtful, revealing answers. The interviews will help prospective students investigate whether a legal career is a good match. We hope they will also expose law students to jobs they haven’t considered. The result will be more students pursuing careers based on facts rather than fictions.

The bottom line is that the legal profession has an obligation to maximize the flow of useful, reliable consumer information. These efforts will aid students, prospective students, alumni, and clients. Our country needs lawyers, but they should be lawyers who are part of a transparent, affordable, and fair profession.

Some Things That Harvard Law Students Might Need to Know

Lawyers play many roles, discharge many functions – but we are also social architects [1], creating the systems and institutions and defining the rules by which they operate. [2] As our communities, our nation, and the world undergo vast changes –ecological, demographic, economic, fiscal and technological –we must ask ourselves what do we as lawyers need to know – and what do we need to know that we do not know so that, as true professionals, we know when to ask for help!

Some things that Harvard law students need to know:

1. Legal rules are not self-implementing. Victory on paper does not automatically translate into changed behavior by officials. Until we look at the systems that are responsible for implementation, until we learn how to get systems to do what they are charged with doing, our victories can be meaningless. None of the Harvard law students with whom I have met had heard terms like “emergent structures,” “stocks” and “flows” or considered the function of “Feedback loops.”

2. Most of us lawyers could not afford the very services that we ourselves are selling. We are part of a system that denies justice to anyone who cannot afford our services. When are we going to take responsibility for a system that only the wealthy and corporations can afford?

What are our responsibilities as Officers of the Court to create a system of rules and remedies that takes “justice for all” seriously? We enjoy a monopoly over the practice of law – but monopolies are conferred by law to advance a public purpose. What are we doing to advance access to justice as a fundamental right – at least where life, liberty and the pursuit of happiness are at stake?

3. The public has lost confidence in government’s ability to address the problems that require collective action. It may take a village to raise a child, but how is that village to be sustained and supported if no one will pay for the services and the infrastructure it takes to maintain a village? Voter turnout – or the lack of voter turnout – is a statement. John Barber has noted the degree to which there is “pervasive apathy about things public and political.”

“In a country where voting is the primary expression of citizenship, the refusal to vote signals the bankruptcy of democracy.” We have work to do – as citizens and as human beings – that we cannot delegate or simply contract with professionals and non-profits to do for us. Yet, students do not learn unless they work; patients do not get well unless they do what it takes to get healthy and maintain health; neighborhoods are not safe unless they develop something the experts call “collective efficacy” – a local culture of looking out for each other. Something is wrong if our solution to crime is limited to building more prisons and our solution to eldercare is building more nursing homes to which we can consign and abandon our parents.

4. Are you graduating law school without knowing the term co-production: what it means and what it takes? Nobel prize winner Elinor Ostrom coined the process by which consumers of a service become enlisted as active co-producers of the outcome desired: turning students into teachers and mentors; patients into support systems and healers; citizens into the civic work force needed to make democracy work, human beings into the work force needed to ensure that the planet can continue to sustain life.

5. To what extent have Harvard law students given up on addressing the racial disparities in well-being that system after system perpetuates? We see those disparities beginning in child welfare and proceeding from there to educational disparity, juvenile justice, employment opportunity, health care and eldercare. We see efforts to secure judicial intervention to effect system change blocked by the “intent requirement” established by Washington v. Davis. Plessy v Ferguson, separate but equal, may be gone in theory – but it is alive and well in most of our public systems.

Yet, the intent requirement can be met and transformed by the process of putting officials on formal notice of the effect of present practice and the availability of innovations that work, have been validated, save money and achieve superior outcomes. Once on formal notice, going back to business as usual becomes a conscious choice among alternatives- so that intent to perpetuate racial disparity can be inferred. City of Canton v Harris. Have Harvard law students asked: What would it mean to require officials to make use of knowledge of what works and cease perpetuation of practices that do not work and that perpetuate racial disparity? That requires going outside the law to work with other disciplines, to scrutinize decades of experiments funded by government and foundations, undertaken by innovators and by community groups. It would even take acknowledgment of our own ignorance of those alternatives and the pursuit of knowledge outside our own discipline.

6. Have students who entered this law school wanting to make a difference in the world pondered whether they have any responsibility for dealing with the implications of the dynamics built into our fiscal system that Piketty has documented? What is our individual, collective and professional responsibility to address and counter those forces that relentlessly drive inequality and perpetuate entrenched disenfranchisement? Consider Piketty’s conclusion:

When the rate of return on capital exceeds the rate of growth of output and income, as it did in the nineteenth century and seems quite likely to do again in the twenty-first , capitalism automatically generates arbitrary and unsustainable inequalities that radically undermine the meritocratic values on which democratic societies are based.

7. Have Harvard students succumbed to the myopia that defines a client only in terms of his or her problem — but does not see the client in terms of capacity and potential to contribute to the well-being of others? We are not blind to the assets of wealthy clients or corporate clients. But are we blind to the assets of those without money but who have the capacity to fight for justice, to help others, to advance democracy, to provide support for the frail and the disabled, to make our communities vibrant and our planetary ecosystem sustainable.

8. Why have we bought into a culture and a legal system that monetizes everything? Most recently Peter Barnes has reminded us that:

The global value of financial derivatives in 2012 was $687 trillion. That compares to a total world GDP of $72 trillion.

The total value of foreign exchange transactions in 2010 was $1.5 quadrillion, (a quadrillion is 1,000 trillion). Of that amount, only 1.5 percent was used to pay for real goods. The rest was currency speculation. (P. 57)

Our primary growth industry has become the finance industry, manufacturing digits in cyberspace which have no relation to anything other than digital risk and return. We are told that the primary question in our lives must be: “Is your money working for you?” Have we abandoned asking another set of questions: “What are you working for? What do you want your life to mean? And what kind of world do you want to leave for your children and their children?”

9. In Greek mythology, a certain King Midas was given anything he wished for. His wish (to turn everything he touched into gold) revealed itself as a curse when his food, his furniture and finally his daughter became inanimate gold. Have even the most idealistic Harvard students unwitting internalized what I call the Midas Monoculture where all values are converted into cost-benefit analysis utilizing a monetary system that devalues the very universal capacities that enabled our species to survive and evolve? Have they unwittingly succumbed to the Midas Monoculture where all investments of effort are judged in terms of the bottom line: billable hours and profit?

10. Finally, why have we not asked ourselves whether we have permitted only one medium of exchange to function as the definitive and exclusive means to compute value when we know it is possible to create alternative mediums of exchange to shape behavior? In education, we invented another medium of exchange to shape behavior: grades and academic credits. In cooperative economics and worker owned enterprises, we can honor sweat equity and confer ownership prerogatives. In TimeBanking and other complementary currencies, we can honor work that the market does not value and a citizen work force not recognized by economists. And we know from when we alter the characteristic of a medium of exchange that we change the dynamics.

Wall Street knows that when it “securitizes derivatives.” The World Bank knew it when they created special drawing rights. Environmental advocates knew it when they created carbon credits. Teachers know it when they change a grading system from 4.0 to pass-fail and when they confer academic credits for group projects and community service. Why are we not asking ourselves: what kinds of currencies, what kinds of mediums of exchange do we need to create the kind of world we all want to see emerge? We have ample productive capacity – but we do not have a distributive system that works to realize universal human values?
Yet, we have no medium of exchange that values, decency, caring and a passion for justice. In a world which is more interdependent than ever, what currencies and what fiduciary institutions vested with what powers of approval, disapproval and secular sanctification might we create to advance human dignity, preserve the planet and provide the exchange systems needed for all to subsist, develop, and contribute? How might a different medium of exchange and a different way to define value nurture the emergence of a different economics, an ecological economics that honors life?

My own attempt at an answer was to make Time itself a form of money – because Time is life itself. It is the most precious thing we have. Perhaps we need a different currency to return economics to its origin, Oekonomia – the management of the household, the human household, not the corporate household – in order to center our efforts on advancing life values for all living beings.

Have you learned to ask these kinds of questions – and to ask how juridical concepts like rights and duties, powers and immunities might contribute? And have you asked yourself, how a whole range of mutual obligations and a whole range of relationships that are not subject to legal enforcement might also be part of creating an ecological economics that advances life values?

[1] Charles Hamilton Houston (who charted the pathway to Brown v the Board of Education) declared that a “lawyer is either a social engineer or a parasite on society”

[2] 25 of the 56 signers of the Declaration of Independence and 32 of the 55 framers of the Constitution were lawyers.

Edgar Cahn is a distinguished legal professor. Shortly after graduating from Yale Law School in 1963, he became counsel and speech writer to Robert F. Kennedy. He created the Antioch School of Law with his late wife, Jean Camper Cahn. He is the founder of TimeBanking, a currency that rewards decency, caring, and social justice.

What Harvard Law Students Should Know About Corporations and Campaign Finance

The greatest impediment to dealing with the greatest challenges facing our nation and planet — preventing catastrophic climate change, addressing wealth and income inequality, ensuring health care for all, and much more — is concentrated corporate power. And because corporations are legal creations of the state, the problem of corporate power is, ultimately, a legal question: What legal rights, responsibilities and restraints do We the People impose on our creations?

There are a multitude of sources of corporate power, and no one approach will be sufficient to reassert popular sovereignty over our corporate creations. But amidst a host of desperately needed reforms, reducing corporations’ political power is an absolute necessity; and a key imperative means of reducing their political power is through amending the Constitution. I favor a constitutional amendment to establish that for-profit corporations do not have claim to constitutional rights broadly, but here focus on a more particular issue: an amendment to enable control of election-related spending by corporations and the corporate class.

Following the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, corporations are now endowed with First Amendment political speech rights comparable to those of real, live, breathing human beings; and, more specifically, have been bestowed with the power to make unlimited expenditures from the corporate treasury to influence election outcomes (corporations do not, yet, have the right to make direct contributions to candidates). Citizens United and a host of other decisions have also empowered the super rich to devote unlimited amounts of money to outside groups aiming to influence elections (these include Super PACs, 501(c)(4) social welfare groups and trade associations); overturned spending limits; undermined effective public financing systems for elections; made it impossible to control spending by self-financing candidates; overturned a limit on the total amount of money the super rich can contribute to candidates; and much more.

The result is something very much resembling a plutocracy – rule by the wealthy elite – and a campaign finance system completely dominated by a very tiny number of corporate and super rich donors. Consider:

• The top 100 donors were responsible for more than half of all Super PAC contributions in 2012, with 2014 sure to show similar results.
• With rising income inequality, the top .01 percent of the population now take a staggering 4 percent of national income. But that same .01 percent of the population is responsible for more than 40 percent of all campaign contributions.
• Through their vast network, the Koch Brothers have announced plans to spend nearly $300 million in the 2014 elections. How consequential is this? The Koch Brothers are responsible for one in ten political advertisements on TV this election cycle.

We’ll never know how much the Koch Brothers actually spent, because their organizations are required to report only a portion of what they spend. Indeed, in the 2012 election, the Kochs ran most of their money through something called Freedom Partners – organized as a trade association, though it is effectively a political committee – that no one even knew existed until after the 2012 election was complete!

Is all of this an abstraction? No, it has very direct impact on virtually every national policy fight. Consider just the issue of climate change. The problem is well encapsulated by Senator Sheldon Whitehouse, D-Rhode Island: “The polluters give and spend money to keep polluting. … Not truth, not science, not economics, not safety, not policy, and certainly not religion, nor morality — nothing supports climate denial. Nothing except money. But in Congress, in this temple, money rules; so here I stand, in one of the last places on Earth that is still a haven to climate denial.”

The American people get this. A new poll commissioned by Public Citizen and conducted by Lake Research Partners, a Democratic polling firm, and Chesapeake Beach Consulting, a Republican polling firm, found that voters hold an unfavorable view of spending in elections by special interests and lobbyists by an astounding six to one margin. This opposition is roughly equal among Republicans, Democrats and independents. By the same six to one margin, voters say that reducing the influence of money in politics is an important issue.

The poll found that voters favor a constitutional amendment by a 61 to 28 percent margin – a more than 2-1 ratio. Presented with these arguments for and against an amendment, Republicans strongly favor the amendment — by a 54 to 36 percent margin. Other polls find even stronger support.

To understand how mind-boggling are these levels of demand for reform, consider that only three-quarters of Americans believe the earth revolves around the sun.

The public demand for action and a large-scale grassroots organizing drive – more than 550 cities and towns, and 16 states have passed resolutions or the equivalent calling for a constitutional amendment to overturn Citizens United – has forced the issue on to the agenda in Washington.

In September, the U.S. Senate voted on the Democracy for All amendment, introduced by Senator Tom Udall, D-New Mexico. The amendment, which simply states that Congress and the states shall have the authority to impose reasonable regulation on election-related spending, received 54 votes, with 42 opposed. This was short of the 60 needed to clear a procedural hurdle, as well as the 67 needed to pass a constitutional amendment.

The vote was on party lines, but there was nothing inevitable about unanimous Democratic support. In 2010, only four senators favored an amendment; only 26 did in 2012. Even this year, it was a grassroots push that ensured all Democrats would vote for the amendment.

Even though many Republican senators hate Citizens United, hate the current campaign finance system and almost surely favor an amendment, none voted for the Democracy for All amendment. This was due to the party discipline exercised by Senate Minority Leader Mitch McConnell (R-Ky.) – a degree of control that will eventually recede as public demand for action grows even stronger.

We are now amidst a period of constitutional crisis, with corporations and the super rich empowered by an activist Supreme Court to exert a stranglehold over our purported democracy. But we are also in a period of constitutional amendment ferment.

It should be a time of extraordinary excitement at law schools across the country, with fevered debates not only about whether the constitution should be amended, but how, and with what precise wording. Several Harvard Law scholars are notably engaged in the debate, but from Harvard and law schools across the country, we need way more voices, with more focused engagement. The American people are engaging in the serious and purposely effort of amending our core democratic document. They want to make the law advance popular sovereignty and democratic and equality values. They need help from the nation’s legal scholars.

Martha Minow on Harvard Law School’s challenges, accomplishments

Dean Martha Minow took the helm of Harvard Law School at a time when a dwindling endowment and university-wide budget cuts have forced the school to employ cost-cutting measures.

Minow assumed the deanship on July 1, inheriting a much tighter budget than in years past. At the law school, each department had to trim its budget by 10 percent, after projections showed that the law school could expect to receive $10 million less from the endowment in fiscal year 2010 than it received in 2009, according to a July HLS press release. Howell Jackson ’82 was acting dean at the time the budget cuts and other staff reductions were announced.

Still, during her first months as dean, Minow has faced these challenges head on and has worked to address student concerns and create new programs tailored to meet student needs that have arisen as a result of the economic downturn.

“My goals are to help the Harvard Law School continue to be the leader in legal education in the world, which includes continuing to enhance the student experience, continuing to enhance the faculty, [and] managing during a turbulent economic time,” she said in an interview with the Harvard Law Record in November.

Although free coffee service was reduced at the beginning of the academic year, Dean of Students Ellen Cosgrove announced in an e-mail in November that the school would make free coffee available in Lewis all day, indicating the change was made in response to student and faculty complaints. The all-day service supplements the free coffee in Pound and Austin halls in the morning and the free coffee available in the library during late evenings and weekends.

“We have a very active, terrific team here, and when students are unhappy about something, we try to respond,” Minow said. “Coffee was something I was deeply, personally involved in, and when students have a problem, we try to solve it.”

The ice skating rink that covered Jarvis Field during winter months in recent years has been one casualty of the budget cuts. Minow said she would be willing to talk to students who are upset about that change.

“I’d love to talk with them about that compared to other priorities,” she said.

Minow said the school also is committed to helping 3Ls and alumni who have not been able to find work during the economic downturn.

“I would say it’s all hands-on deck on this one – very, very active and vigorous,” she said.

HLS announced in October the creation of the Holmes Fellowship, which will give about 12 third-year students up to $35,000 to pursue public interest law in the year immediately following graduation, with priority given to students who show they have not been able to secure another source of funding or job.

In addition, Minow said OCS and OPIA are focusing on job fairs and career counseling, and she has been meeting with law firms and alumni to encourage them to hire HLS students.

“It was the theme of my conversations with alumni during reunions to increase their involvement in helping current students and also alums who are looking for jobs,” Minow said. “People were incredibly responsive and eager to help.”

Minow also said construction on the Northwest Corner project is ahead of schedule and under budget, although she cautioned that this could change. The Harvard Crimson reported that the university recently borrowed $480 million to fund capital expenses, including completion of the new law school facility. Current first-year students should still be able to move into the building during the spring of their 3L year, she said.

“I’ve had the great chance to tour the building,” Minow said. “It’s an extremely exciting space that is entirely student focused with all kinds of meeting rooms of different sizes and a great flow and a sense of a city with a central artery or a main thoroughfare. It’s going to be fantastic.”

Minow said her experiences since assuming the deanship have been “intense and busy and exciting.” Still, she said the thing she misses most about only having the responsibilities of a faculty member is controlling her own time and schedule.

“I don’t do that anymore. Somebody else is in charge of my time,” Minow said. “But I would not for a minute give up the privilege and pleasures of working with students and teaching and writing. The reason I took on this job was to try to help other people and help students and faculty have the great opportunities that I’ve had.”

Is 1L one hell? Survival tips from a law professor

10. Don’t Wait for the Ball

Many students complain that law professors are just hiding the ball, asking a series of questions without just telling students the answer. For my own first two months as a law school student, my notebook was largely blank because I kept waiting for the answer, which like Godot never came, just more and more questions. I wrote this limerick to express my mistaken attitude.

His friends used to tell Socrates
Now really, don’t be such a tease
Just give us the answer
And things will go faster
And thinking would be such a breeze

But obviously you shouldn’t wait for the ball or the answer. Instead, what you need to understand is the analytical structure of questions relevant to an issue, the range of valid positions, arguments made for and against them, and the process of thinking through them. Because, unfortunately, thinking isn’t such a breeze, and there is no simple ball that is hidden, but rather an array of balls that you need to learn how to juggle.

9. Don’t be boring

We are a polite people, but one can take that too far. A British professor once told me, “Americans are too damn polite, so that a conversation between them consists of each person trying to say what the other person would have said had it been their turn to speak. And that isn’t a real conversation at all.” Don’t be afraid to disagree or be provocative, or even to try on positions you aren’t quite sure about. And don’t close your minds to those who disagree with you. You may find that they are more convincing than you thought, or that discussion with them deepens your understanding of just why they are so wrong.

8. Don’t Ignore What Other Students Say in Class

Now, I don’t say this out of any painfully polite sentiment that everything your classmates say is sound and interesting. It isn’t. And I just told you not to be too polite. The reason to listen to fellow students in class is that, through student comments, professors often teach important lines of arguments or limits with those arguments. Even if you wanted to focus only on what the professor thinks, that may be hard to discern from what they actually say, because  professors often just take the opposite position of whatever the student happens to say, to make sure that both sides are developed. So professors may be enthusiastically pushing a position they don’t actually hold. Even if the professor has a position that is revealed during the class, that doesn’t mean it is the gospel or the only thing you should learn, because we’re all trying to prepare you for a world where many judges don’t agree with us – as perplexing as that is – and where the laws, issues, or jurisdictions may differ from the ones we are discussing.

7. Focus on the Forest, Not the Trees

Students often spend huge amounts of times methodically briefing details about case facts, procedural history, and holdings, and memorizing them all. Don’t. It’s a waste of time. As a student, I didn’t cite a single case in any first year exam I took. Professors use case facts and variations to develop doctrinal points, issues, principles, and broader theories. The point is not to know the cases themselves, but to understand the larger points made from them. The cases are only illustrations of the general issues and positions, and a means to the end of understanding them. So brief those larger points, and subordinate cases to what’s really important — the issues, valid positions, arguments, and reasoning about them.

6. Read Before and After Class

I once had a student who all semester complained that he couldn’t follow the class discussion – it was too confusing. Then, at the end of the class, during exam period, he came into my office said, “You know, the class actually makes a lot more sense, now that I’ve done the reading.” So reading is certainly important. But I think people often fixate too much on trying to understand everything when reading the assignments before class. Often the biggest payoff comes to re-reading the material right after the class, when you can incorporate what you have learned during the discussion.

5. Don’t Just Settle for Blackletter Law

There is a lot of blackletter law and it resolves a lot of cases. So not surprisingly, students often take comfort in just memorizing it. But professors don’t spend a lot of time on it in classes. Why? Is it because law professors are evil and enjoy torturing students with the confusing parts? Well, sure, that’s part of it. But mainly it is because we figure that after 17 years of schooling with top grades, most of you already know how to read. To the extent just reading the rule resolves the issue, we kind of think you got that covered on your own. We may spend some time at the beginning of classes summarizing the basic structure of the blackletter law, but that doesn’t mean that is the main thing to focus on and that you can just snooze through the following question and answer period. It is comforting to focus on the blackletter law because it is the clearest, but the debated issues are what you really need to focus on.

4. Law Is Not Distinct from Policy

Students often act like there are two subjects being taught – law and policy – the law part which they apply in figuring out how the law resolves particular cases, and the policy part which they apply to answer the question of what the law should be. Don’t make this mistake. Policy is the just continuation of law by other means. After all, what do we mean by “policy” in law other than arguments about what legal outcomes we should deem best? If you don’t have arguments on that topic, judges will be influenced by your opponent who does, so your opponent will win any area where blackletter law does not provide a clean answer as applied to your case. It can also be hard to understand what the blackletter law means or when it should apply, unless one understands the policies it furthers.

3. Ask What Future Parties Would Want

In addressing policy questions, one gets relatively little out of asking what the best outcome is for the two parties to the litigation, because they are in court precisely because they disagree about that. Instead, generally the best approach is to ask: “What Would Future Parties Want?” Often the answer is clearer before vested interests are acquired, when benefits to one party can be traded off against harms to the other. Or one might want a rule that is more likely to flag the issue to future parties, and elicit what they would want.

2. Go Meta

It won’t surprise you to learn that legal policy analysis often leads to unclear or conflicting conclusions. In these sorts of situations, it is often useful to switch to the meta-question of framing issues around who best is placed to decide the question. Every time one side argues that X is the best outcome, the response can be not only that Y is a better outcome, but also the meta-argument that judges are not the best placed to decide whether X or Y is best, so judges should defer to some other set of actors, such as legislators, agencies, or contracting parties who have chosen (or would choose) Y. Just remember the old saying, “Anything you can do I can do meta.”

1. Realize the Difference Between Being Confused and Understanding the Confusion

Often students have the following the experience. They read the materials and thought the law seemed pretty clear. Then they went to class. And now the issues seem confusing. So they wrongly conclude that class is actually lessening their understanding. What this reaction misses is that often the correct understanding is that the laws and issues are unclear. There is conflict about what the doctrine means, when it applies, when it trumps other doctrines, and what justifies it, and the same set of issues can be framed in multiple ways. Realizing this doesn’t mean you are confused; it means you understand the confusion.

Others leap to the opposite conclusion that all legal issues are confused. But that doesn’t follow. Some things are resolved, and there is a structure to thinking about the unresolved issues. Unfortunately, sometimes students get so focused on spotting ambiguities and conflicts that they begin to jump at shadows, straining to find ambiguities and conflicts everywhere, even when they don’t exist. You have to understand the confusion that exists without seeing nothing but confusion.

Perhaps I can best explain this with a saying from Zen. So here it is, quite literally, your moment of Zen.

Before I studied Zen, mountains were just mountains and rivers were just rivers.
When I first took up the study of Zen, mountains were no longer mountains and rivers were no longer rivers.
But now that I am a Zen master, mountains are once again mountains and rivers once again rivers.

There will come a time for you this year when legal mountains no longer seem like mountains and legal rivers no longer seems like rivers. But have some faith that when the year ends, and you are a law master, that saying will actually make sense.

Prof. Einer Elhauge ’86 graduated first in his law school class.

Celebration 55: A Record Retrospective

This past week, Harvard Law School played host to Celebration 55: The Women’s Leadership Summit, which marked the 55th anniversary of female enrollment at the law school. Some of the 13 women in the 500-person law school class of 1953 were present, joined by Supreme Court Justice Ruth Bader Ginsburg, who attended HLS from 1956-1958. While the events of the week of been reported elsewhere, The Record thought it worth be worthwhile to take a look back at what the law school was like in 1953. Below, we have reprinted a story published on the front page of the Thursday, October 22, 1953 edition (Volume 17, Number 4) of The Record. While many glass ceilings remain firmly in place, we would be remiss if we did not acknowledge the progress HLS and America have made over the course of the last half-century. And we have the courageous 13 women of the Class of 1953, as well as sojourners like Ruth Bader Ginsburg, to thank for much of it.

Forum Finds ‘American Girl’ Dedicated to Purpose of Hooking American Male

The American Girl is personable, charming and dedicated to one lifelong purpose: hooking the American Male. Chances are that she will succeed too, if she stays dressed and leaves her blue jeans at home. These may have been the conclusions reached by the panel of speakers at the first session of the Harvard Law School Forum held in Sanders Theater last Friday Night.

The noted social anthropologist, Earl Wilson, was the first speaker. He seemed to have one chief thesis-Women Look Better When They Are Dressed. Proceeding on the thory [sic] that proof of his point was to be found by reducing his arguments to their barest essentials, Mr. Wilson took his audience to a nudist rendezvous near Egg Harbor, N.J., and proceeded to describe in some detail his adventures therein. When he wasn’t talking about nudism, he was talking about Earl Wilson. Both subjects, we thought, seemed pretty much exhausted at the end of his half-hour discourse.

Having duly taken Mr. Wilson’s point to heart, we were immensely relieved to find that the next speaker, Magda Gabor, had taken the precaution to dress before coming down to Sanders. Having heard that she was, and presumably still is, the subject of some pretty serious international discussions, we were anxious to see what the fuss was all about. We did. Here was a woman. An utterly lovely and vivacious Continental, her every accent and mannerism seemed designed to display in all its vigor great charm.

Not that it matters much, but her comments on the American Girl may be stated briefly. Naturally, she is good looking, intelligent, and possessed of a charming personality. But in addition, it was a pleasure to learn that She can light her own cigarettes (but would prefer to have one handed to her already lit), open the necessary doors by herself and walk, virtually unaided, down a street. The American Male, on the other hand, is a Conqueror. Pure and simple. But at least the Harvard man conquers with sartorial taste enhanced with the usual conservative tie.

Al Capp rounded out the panel of speakers. What he spoke about we will never know for it seemed that every sentence of his was punctuated by an infectious grin and accompanied by a belly laugh which was contagious enough to be caught up by the audience.

Oh yes-he did say something after all. If Mr. Wilson was obsessed by nudism, Mr. Capp was almost apoplectic about blue jeans. He just didn’t like them and that was that.

One saving grace to this program was the moderation of Felicia Lamport. She was urbane and witty and kept the audience continually off balance with a series of incredible puns. (Sample: The subject of tonight’s program is “The She Around Us.”)The next session of the Forum will meet in the New Lecture Hall on Oct. 30. The program is entitled “Banned in Boston.” Our impression was that this last one should have been.

Published October 22, 1953

Lost in Laredo


This is a dispatch from Laredo, Texas, the last town on Rt. 35 before Stetsons turn to sombreros and Homeland Security no longer has your back. It’s 11:30 at night and I’m writing from a $69 suite in the Rio Grande Plaza, a peeling tower of gold plate and tinted glass built downtown during an optimistic stretch of the ’70s. To my right, beneath the window, Border Patrol crawls along the river in Suburbans with their parking lights on; to the left is a Trinitron as old as the hotel, hue and contrast stuck at full-tilt, and I’m on it, because four hours ago, I placed eighth in the annual La Costea International, the world’s largest hot-pepper eating contest.

“I know I’m in for some pain,” I deadpan to the local NBC affiliate as I tie my bib, “but these are the sacrifices we journalists must make to bring the truth to our readership.” That readership, dear readership, is you. And the reporter nodded, because he’d heard of me, “the writer from Boston” who’d shown up at every city function for the past three days. I’ve never appeared in print before, but the words you’re reading, the Record’s “commissioning” of this article, are part of a devil’s bargain that since Thursday has opened every door and led me to be among the most recognizable faces of the fourth estate in Laredo.

This all began when, channel surfing on a wave of Irish coffee at 3 a.m. after Thanksgiving, I came across the Travel Channel’s 2002 documentary, Ten Best Eating Contests. The images were spellbinding: crab legs sticking out of an obese man’s mouth, the Japanese guy who dips his hot dog buns in water to slick his esophagus, key-lime pie mashed into the beard of an effeminate Hemingway impersonator. Maryland, Coney Island, Key West: each region’s once-quaint food mythology one-upped the next in spectacles of grotesque autoconsumption. Laredo, a city that sounds like a truck model and from which I’d never met a soul, intrigued me most of all, and its contest, to see who could consume the most La Costea-brand jalapeno peppers in 15 minutes without vomiting or fainting, sounded so exotic, so wonderfully ritualistic, that I decided I had to compete. My dad, ever up for kitsch and bonding, was happy to oblige.

The Internet revealed that the Jalapeo Festival, of which the contest is the highlight, is the most plebian component of Laredo’s 107-year-old Washington’s Birthday Celebration, the nation’s largest. The tradition stems from this former capital of the Republic of the Rio Grande’s attempts to overcome its reputation as seat to sentiments of Texan independence. In search of federal pride, they picked the patriotic anniversary closest to a local fraternal lodge’s annual cowboys-and-Indians show and linked them up post hoc. I flipped through the schedule of events: the Comedy Jam for George, the Princess Pocahontas Pageant & Ball, the Society of Martha Washington Colonial Pageant & Ball, the Mr. South Texas Luncheon. Presumably in hopes of a repeat of the Travel Channel coup of 2002, the coolest-sounding events were marked “Invitation or Media Credentials Only.” Emphasis added. Brief affiliations with NPR and the LA Times were invoked to no avail, and so last month, I sent an e-mail to Clinton Dick, editor of this publication, and laid my cards on the table. An article for a press pass. He assented, but I still didn’t think it would work.

Upon our arrival Thursday, the lovely Adriana Arce, press chair for the Washington’s Birthday Celebration Association, passed me my media credentials with a warm and unwary smile. It didn’t make me feel better that within 24 hours, at various VIP events, Laredo’s US Congressman, District Attorney, and Sheriff had wished my readers well, as well as the President of the Celebration, the President of Texas A&M International University, and the kind family of 17-year-old Allison Reyes, Queen of the Washington’s Birthday Parade.

What media coverage the Celebration has received in recent years (a human-interest story in the Houston Chronicle, a breathless think-piece on salon.com) has focused on the impressive cultural syncretism that has occurred over the last 50 years. Here’s how the story goes: as immigration, white flight and intermarriage have installed a Spanish-speaking, decidedly Latino culture in Laredo, the Anglo exclusivity of the traditional institutions has fallen away and the Celebration has grown to be a democratic, egalitarian institution.

Syncretism, yes; egalitarianism… not so much. The first event I attended as the South Texas correspondent for the HLS Record was the “Seor International,” an awards ceremony held by the local chapter of LULAC, the League of United Latin American Citizens. After the Texas A&M Classical Guitar Ensemble played “Crazy ’bout You Baby,” local talent Phoebe Mara Viaga sang her song “Cruel.” “I don’t want to break hearts like you,” she crooned in Spanish, smiling to a small cluster of press photographers alone in the middle of the empty dance floor. The ceremony was bilingual all right, and everyone looked Latino, and the honorees had Spanish last names. The problem was that bound up in business attire and illuminated by the fluorescent lights of the local civic center, its soul was that of a 50’s Elks Club banquet.

The culminating official event of the Celebration is the “Abrazo Ceremony,” abrazo meaning “hug” in Spanish; one can only assume that the “Hug Ceremony” sounded a little fey to Texan ears. At 8 this morning, two US Laredan and two Mexican Laredan five-year-olds, dressed up in their nation’s traditional formal wear, walk towards each other on the international bridge, hugging at the border while public figures crowd risers on either side. This was, perhaps, the cutest thing I have ever seen. Then, however, the Texas state rep and his counterpart from the Mexican state of Tamaulipas do the same thing, and then the Catholic bishops, and so on, until I was expecting to be sent across the bridge myself to embrace my Mexican fake-reporter doppelganger, whom I would certainly have slipped some tongue to spice things up a bit. At the end, all the Mexicans went back to Mexico, while we headed north in buses marked “Mayor/Dignitaries,” and the gates closed behind us.

That’s not to say the entire city has become Pleasantville en Espaol. There is a constant and vibrant flow across the bridge from Laredo, Texas, to Laredo, Mexico, and the streets on both sides pulse with Tejano music. At many fast-food outlets, half the menu is covered by a sheet offering up northern-Mexican options sold under the table by the women who make tortillas on the McDonald’s grill and gorditas in the Popeye’s fryer. I just came back from a concert held on the same stage on which I’d seen the Society of Martha Washington Pageant two nights ago, where debutantes had donned 100-pound dresses while tracing a choreographed and chelonian path across the stage, a voiceover cataloguing their ancestors’ history with the Society. Tonight, in contrast, the tickets were printed wrong and the sets weren’t ready, but tears soaked the faces of audience and famous balladeers alike, and the whole auditorium stood to sing clsicos about lost love and new beginnings.

And of course, you can’t get more soulful than the Jalapeo Festival.

There are, for better or for worse, numbers by which the modern male is supposed to measure his worth. Depending on your ambient culture, the most crucial values might come from a Scantron or a scale, a ruler or a balance sheet. I will forever see myself as a “25” kind of guy. That – according to the elderly woman charged with looking over my shoulder to make sure I didn’t squeeze out any pepper juice (“just bite and suck, honey, just bite and suck”) – is how many jalapeo peppers I ate between 6:30 and 6:45 this evening. To my left, as the NBC camera sweeps the crowd, I see the horrified look on my father’s face. He is being reassured by the bearded man who had resisted allowing me to register late for the competition until he saw my press pass. As the camera continues to pan, I watch myself hitting my 4-minute plateau, 19 peppers. I
am smiling, swigging Lone Star beer, and chatting with David, the guy from UT Austin competing next to me. In retrospect, I needn’t have been so friendly; I am two peppers more a man than he. I am 76 peppers less a man than the winner, but only 14 peppers less than the third-place contestant. Most of all, I am completely nauseated.

It’s the follow-up interview now. “I would have liked to bring the trophy home for the North,” I shout boorishly into the camera, “but I’m still pleased with the outcome. I feel I am bringing honor and dignity back with me to Boston.” The television shakes as a train passes the hotel carrying Ford chassis north from the maquiladoras, sending my all-access media pass to the floor. The train is one of the 7500 that cross the border here every year, accompanied by 0 passengers. Out the window, it’s too dark to see past the bend in the river to the tracks, but just below me a red and white Suburban flashes its roof lights into a stand of reeds. In the blue glare, I can see people crouching just inches away.

Fenno: A cold day in hell

It was a cold day in hell. There were a lot of signs pointing in that direction, but Fenno was absolutely sure of it once he saw James stroll in ten minutes late to Liz Warren’s bankruptcy class, take off his parka and gloves, and mutter something about having to put chains on his tires. Also, the icicles on his pitchfork rendered it too heavy to use to stab the laptop screens of classmates who had souls and therefore dared to play solitaire or Snood during class. Everyone got high scores!

Fenno decided to figure out what was going on. The easiest thing would have been to ask James directly, but that would have been risking a conversation. Instead, Fenno trudged off in the direction of Areeda. But Stephen said that Arthur Miller had been completely snowed in. Fenno declined the offer of iced coffee.

Off to Griswold. Professor Hanson was crying, and the last day of Torts was still months away. “My Corporations class has ruined Cardozo! I love Cardozo,” he blubbered. Fenno offered him one of the Diversity Cookies he’d picked up in the Lehmann Lounge. Unable to choose only one, Hanson shoved all ten of them in his mouth at the same time, just to be fair. Greatly relieved to have someone to talk to at last, he continued: “Mmmph mmph mmchhk, mmffchk.”

“Yes, you are much too tall to cry,” Fenno replied. Hanson swallowed, slouched a bit, and explained, “They mocked the ‘punctilio of an honor’ speech. They were all laughing at Cardozo. I knew I shouldn’t have let Joe Nuccio read it aloud.” Fenno reached up and gave Hanson a hug. And since he’d attended an ’80s retro anti-war rally in the Square that morning, Fenno knew he was in a perfect position to help out. As he left, Fenno casually dropped a couple “No Nootch” stickers on his chair.

Still not satisfied that all was right with Harvard Law, Fenno sprinted back through Areeda and out the front doors of Langdell. He caught Brent Bickley, Dave Axelrod, Justin Tichauer and Mike Gottlieb taking a study break on the steps. Fenno hailed them: “What’s up fellas?”

“Me and the crew is just chillin’,” said Dave. “We were thinking about maybe going wilding later. Want in?” Fenno paused. He’d heard of this before. Wilding involved sitting outside Pound Hall drinking forties during a seriously in-your-face discussion about the ideal incentive structure for maximum deterrence against insider trading. There was also a lot of shoulder-punching.

Fenno politely declined: “No, too extreme for me, dudes.” Fenno also thought he might not have enough hair product to hang. Brent turned to Justin. “Dude, have any hair product? I just ran out.” Tichauer responded by putting his cigarette out on Brent’s arm. End of conversation.

Fenno took his leave and sloughed back through Langdell. He heard a loud screech overhead. Looking up, he saw the library hawk. It had a crow in its mouth. The crow had a piece of cheese in its mouth. Fenno asked the hawk if he knew anything about the source of the troubles at the Law School. But the hawk wasn’t falling for that old trick. He flew off south, in the direction of the yard. Fenno watched him go, and noticed a strange mist wafting from the roof of Austin Hall. Ever suspicious and handsome, Fenno ran as fast as he could to Austin. It was very dark inside. The front doors creaked open of their own accord. Fenno stepped inside and felt a chill run down his spine. He heard organ music. He turned off his walkman. He heard live organ music. Oh, and some wailing coming from upstairs. He grabbed a torch from off the wall and quietly started up the staircase.

He peered into Ames Courtroom. It was strangely lit, and quiet as the grave. This made perfect sense as soon as Fenno saw Professor Murray reading a blank PowerPoint slide to his ITA class. Fenno felt a tug on his sleeve. Still intent on the rather surreal scene in the courtroom, Fenno drew his arm away. Then he felt something biting into his ankle. It was Allison Caplis. She took his hand and dragged him away from the door. “Fenno! Oh thank God you’re here,” she whispered, somewhat out of breath. “Something terrible is happening in the attic.”

“There’s an attic?” Fenno asked, incredulous.

“Of course there’s an attic. What did you think the ‘70-Foot High Club’ meant?”

“There’s a 70-Foot High Club? At the Law School?! Do we go to the same law school?” Fenno thought this might be a trick.

“Well it only happens once every 15 years or so, but it gets a lot of press,” Allison explained. “But never mind that. Come with me.” Fenno followed Allison up the next flight of stairs, past the Morgan Courtroom. He heard something like tapping on the wall as they went past. “Don’t worry,” Allison said, “it’s just the Tenant Advocacy Project advocating tenancy.” Fenno shook his head. It can’t be as easy as that, he thought.

They arrived at the door to the attic. Fenno put Allison on his shoulders so she could pull the doorknob from the ceiling. They lowered the stairs and walked up. The organ music was very loud, and Fenno could barely see from the clouds of mist pouring down. At the top of the stairs it was almost freezing, but the air had cleared, though it was still dark. In the middle of the room was a 10-foot high cage, and inside was the figure of a man, suspended in the air, shackled, the lower part of his face covered with a muzzle.

A voice came from inside the cage: “Greetings Fenno. I knew you might find me on your own, but I thought I’d give you a little help.” Fenno looked around for Allison, but all he saw was a little white mouse. It wrinkled its nose, then ran into the cage and sat on the man’s foot. “I’m just doing a little research for my latest controversial stand,” he continued. “Funny how easy it is to get research assistants at Harvard Law School. They don’t even ask what they’re researching.” As Fenno’s eyes adjusted to the dim, he saw human shapes hanging from the walls, and he began to make out faces. He didn’t recognize any of them, but that was probably only because they were 2Ls. Each of them wore a dark-colored XXL sweatshirt, with “Property of Alan Dershowitz” on the chest.

“Professor Dershowitz, what are you doing?” Fenno cried.

“I’m just getting a little . . . information,” he cackled. “Surely you’ve heard of academic freedom.”

Fenno was stunned. He scanned the room again. There was a face he recognized. “Clifford Ginn. C’mon, Professor. You’ll never get anything out of him. Didn’t you read his almost poetic attack on the Supreme Court’s disregard for the Fifth Amendment in last week’s RECORD?”

Dershowitz’s eyes opened, and he looked towards the budding Con Law scholar writhing on his wall. “Oh yeah,” he sniffed. “Him I’m just plain torturing. I figure anyone who can’t tell the difference between an editorial in The RECORD and an article in the Law Review deserves it.”

Fenno gave him a thumbs up.