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.

W.W.
Published October 22, 1953

Lost in Laredo


2/21/04

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.

Fenno has been a student at Harvard Law School since at least 1961. He has no current plans to graduate.