Activists, judged

I’VE PAID DEARLY FOR MY HLS education, and for that reason I don’t take lightly those who accuse my professors of being “embarrassments.”

Imagine my confusion, then, when I discovered that Professor Laurence Tribe has taken to calling himself “embarrassing.”

Last week, the Boston Globe featured an article entitled “Judging the judges,” which cast a critical eye on President Bush’s State of the Union Address denouncement of “activist judges” who “insist on forcing their arbitrary will upon the people.”

But, as the article highlighted, “judicial activism” is a term that means different things to different people. On that note, Professor Tribe unleashed a harsh attack on anyone who speaks of judicial “activism”:

“It’s almost embarrassing for anyone who is a serious thinker about the Constitution to bandy it about,” he said.

Embarrassing?

If Tribe is right, then he must be one of the most publicly embarrassed people on the Harvard campus. He hardly has shied away from dropping the “A-bomb” in public:

“[S]uffice it to say that such encroachments [on congressional authority] are the antithesis of judicial restraint or modesty; that the justices who have engineered them are the most activist in our history … .” (Senate Testimony, June 26, 2001)

“It’s a very ironic thing, though, to refer to the temper of the times and to the election returns in order to justify what amounts to a form of judicial activism.” (NPR, Jan. 21, 1995)

“The idea that judicial activism should be avoided like the plague has become like a mantra.” (Knight-Ridder News Service, April 1994)

“Ted [Koppel], let me say something about this activist issue. … We already have quite an activist group of judges. Just this week they overruled four decisions. They are not at all interested in preserving the past, necessarily. They have their own agenda … .” (Nightline, June 27, 1991)

“In case you hadn’t noticed, we now have a highly activist Supreme Court. In Buckley v. Valeo, for example, the Burger Court struck down Congress’ one comprehensive attempt to regulate campaign finance by limiting how much those with money can dominate the political process. And [INS] v. Chadha, in one fell swoop, struck down more acts of Congress than all preceding Supreme Courts combined had done in all their days – and did so for rather wooden and formalistic reasons. Regan v. Wald, too, was an activist decision, insofar as it paid little real attention to the manifest intentions of Congress in cutting back executive power in 1977. (Hastings Law Review, 1984)

So many “embarrassing” comments! Lest I sit silently while a Harvard professor publicly attacks his own good name, I’m left with the task of defending Laurence Tribe against accusations by Laurence Tribe:

Not all opponents of “activism” are created equal. One side denounces judges who honor the constitutional limitations on the power of the Courts and Congress; the other denounces judges who deny Congress plenary power over all political questions.

To those who call judges “activist” for striking down Congressional expansion of power beyond its Article I limitations, the Rehnquist Court, in striking down almost 30 acts of Congress in 10 years, has become the epitome of an “activist” court.

To those who call judges “activist” for reading expanded rights into the Constitution, thereby encroaching upon the power of the States, the Warren and Lochner Courts were the epitome of “activist” courts – and Roe v. Wade the epitome of an “activist” decision.

The first brand of activism (“Rehnquist Activism,” I’ll say) confronts the power of Congress – powers that are specifically enumerated and limited by the text of the Constitution. The second brand of activism (“Warren Activism,” I’ll say) confronts the power of the States – powers that are specifically not enumerated per the Tenth Amendment, and limited only to the extent that they conflict with enumerated Federal powers or the rights embodied by Constitutional Amendments. The battle of dueling “activisms” is a battle of Constitutional interpretations.

The Boston Globe article called “judicial activism” a “ubiquitous epithet.” Indeed it is, but only because it embodies for both sides of the legal debate a violation of the critical legal and political equilibrium: the appropriate apportionment of power among Congress, the courts, and the states. “Judicial activism” is so powerful a term because it embodies for both sides a fundamental sin: overreaching by one branch or level of government against the others.

In downplaying the differences between the versions of “activism,” liberal jurists and scholars attempt to hide the difference between Originalist and expansionist interpretations of the constitution. They muddy the waters only to throw up their hands and exclaim, “These words mean nothing anymore!”

Professor Tribe’s newfound denouncement of the term comes at a fortuitous time for him. Now (by contrast to the 1990s) his preferred “activists” are quite active. They rule the day on the Supreme Court and in Massachusetts. (Tribe, a fan of recent developments in these courts, has called the Massachusetts gay-marriage opinion “a masterpiece.”) It’s quite a convenient time for him to want to remove charges of “activism” from the debate.

Dare I say, this is not the time to ignore “activism.” It is a time to identify the dueling brands of “activism,” to evaluate them, and to resolve precisely what apportionment of power among the courts, Congress, and States is appropriate. Let’s sort out which form of “activism” is wrong under the Constitution, and seek to eradicate it.

Professor Tribe, don’t be so embarrassed of “judicial activism” debates. They’re a productive, valuable endeavor.

But as for your newfound eagerness to disparage debate on “judicial activism” at the precise moment when your preferred brand of activism is most rampant – you should be embarrassed.


Adam White is the editorial page editor of The Record.

 

 

 

Unreasonable doubt

THIS WEEK I WAS TOLD THAT some at Harvard Law Review suspect that I am a plagiarist. A thief.

On Friday, my editor and I received a letter from a member of the Review. He wrote in reaction to my Feb. 19 column comparing Judge William Hastie, a black man “too conservative” for a Kennedy-era Supreme Court nomination, with filibustered nominee Miguel Estrada. I won’t name the source, but I will reproduce here the guts of his message:

[Y] our column certainly reminds me of the Note I authored for the upcoming issue of the Harvard Law Review. Several persons (big and small) have been struck by the similarities between the vignette that opens my own work and “[t]he story of Judge William Hastie” presented in your column.

Although I certainly do not “own” Hastie’s story, I am quite sure I own my *historiography*.

I would like to believe that you stumbled upon this rather esoteric bit of history … without any prompting from someone within the Review. Help me to convince those who would doubt you.

[Signature Redacted]

(This email, of course, is not meant for public consumption.)

The following response, of course, is meant for public consumption.

To disappoint any who may have hoped otherwise, I wrote my own column. I’ve never heard of (let alone seen) the student’s note.

I learned of the story of Judge Hastie on Jan. 29, reading Henry Abraham’s Justices, Presidents, and Senators (pages 209 and 220) on Amtrak en route to Washington (where – I tell you in the interests of full disclosure – I discussed the story with two friends at Shelley’s Back Room and enjoyed a fine Cuban cigar). In writing the column I relied on Dennis Hutchinson’s “The Ideal New Frontier Judge,” 1997 SUP. CT. REV. 373, 377-83, Arthur Schlesinger Jr.’s Robert Kennedy and His Times, Sheldon Goldman’s Picking Federal Judges, and some biographical information found on the Tennessee State web site.

In short, I didn’t plagiarize a “leaked” draft of a Law Review Note.

That should “convince those who would doubt” me. Then again, I delivered this same message to the author of the email days ago, and I have yet to receive any sort of acknowledgement from any of the “doubters.”

What hubris, these accusers! Consider a similar situation: if a Hastie-related Note had appeared in the Review six months after I wrote the column, I never would have marched to Gannett House with a band of “doubters” to demand proof that the work was original.

And if I had demanded proof, would the Editors gladly hand over their files for my inspection? I think we know how they would respond to such a demand.

I won’t spill any more ink on this attack on my character. The self-importance of these people is self-evident.

* * *

I will take a moment to discuss, however, a second charge implicit in their suspicions: by accusing me of using leaked Review materials for my column, they accuse some among their own ranks of conspiring with me.

Because of this column, I can respond with swift and proportionate force to attacks on my character. But my would-be co-conspirators enjoy no such forum. Instead, those members of Law Review must sit quietly and wonder whether the “doubters” see them as suspects.

So I’m going to provide them with a forum, and with a defense.

Never has a Review editor leaked information to me. I’ve never asked anyone to do that, and none of my friends or acquaintances on the Review ever would comply with such a silly request. The paranoia of those “big and small” editors who imagined me conspiring with a Gannett House cabal is amusing, but dangerous. Any editor in a position to leak the Hastie note to me was, whether they knew it or not, a suspect.

As I said above, I’ve received no apology for the unfounded suspicions and rumor-mongering. I don’t expect one. But to my doubters, I say this: you owe a public apology to your fellow editors who you suspected of conspiring with me.

To those who were (whether you knew it or not) targets of such rumor and innuendo, I say this: think for a moment about the type of people who would accuse you of dishonesty and inappropriate behavior. I’m not sure who the accusers had their sights set on, but their eagerness to doubt fellow editors (and me) without compelling evidence should shock your conscience.

Sadly, you Editors who were suspected of leaking the Hastie not to me probably didn’t even know about this fiasco until today. You probably had no idea that “those who would doubt” me would be the first to doubt them, too. Your accusers, at least in my experience, seem to prefer to gossip about it for a few days before confronting the targets of their suspicion.

* * *

I would have preferred to deal with this quietly, but I had no choice. HLS is a small community where rumors can spread quickly. Given that the original “doubts” were premised on the notion that Review editors would leak private matters to this outsider, I saw no reason to trust that doubters “big and small” would not leak rumors of plagiarism, too.

So, I could have emailed my explanation to the Editor who contacted me, but would the Review go out of its way to forward a my private response to everyone who conceivably could have heard the rumor that had started days earlier?

Pardon me, but I had my “doubts.”

For how long should I and my nameless would-be co-conspirators sit idly while an assortment of self-important whisperers tarnish our character?

Not for a moment longer.

Those who continue to doubt my ability to write my own columns are welcome to discuss their doubts with me, in person.


Adam White is the editorial page editor of The Record.

 

Black-listing conservatives, then and now

NOTE: Last week, Adam’s column was preempted so that it could appear on NationalReview.com. Entitled “Pryor Convictions,” it contrasted Bill Pryor with such proponents of judicial activism as Roy Moore, Laurence Tribe, and Charles Schumer. It can be read here.

AMIDST FEBRUARY’S ANNUAL Black History Month observances, Harvard Law Students should turn their attention to the achievements of blacks in the history of American law:

  • Hiram Revels: The first black U.S. Senator.
  • Thurgood Marshall: The first black U.S. Supreme Court justice.
  • Derrick Bell: The first black professor at HLS.
  • Lani Guinier: The first black woman to join the HLS faculty.
  • William Hastie: The first black contender for the Supreme Court bench blocked by Democrats for being “too conservative.”

I suspect that that last name won’t make it into the official program for this month’s commemoration. I’ll fill in the blanks.

William Hastie was born in Tennessee. He graduated first in his class from Amherst College. He collected two law degrees from Harvard Law School (LL.B ’27; S.J.D. ’32) and edited the Law Review. After teaching at Howard University (where he was later Dean) he advised President Roosevelt, and became the first black federal magistrate (at the Federal District Court in the Virgin Islands). Later, he was the Islands’ governor.

He was Thurgood Marshall’s mentor at Howard and in the early battles of the NAACP. He became the first black Article III judge, sitting on the Third Circuit.

When Justice Charles Whittaker retired from the high bench in 1962, the Kennedy Administration considered Judge Hastie for the Court. His qualifications, as sketched above, were unquestionable. Unfortunately for him, his Liberal credentials were not.

Robert Kennedy was Judge Hastie’s most vocal proponent. He later noted that Hastie “was about the only good one, really, that we could come up with.” But he was no match for Hastie’s opposition, which found him to be “too conservative.”

Among his most vocal opponents was none other than Chief Justice Earl Warren. According to RFK, Warren responded to the Hastie proposal with marked rejection: “He’s not a liberal, and he’ll be opposed to all the measures that we are interested in, and he just would be completely unsatisfactory.” Warren’s “liberal” peer, Justice William Douglas, told Kennedy that Hastie would be “just one more vote for Frankfurter.”

Thus, two Supreme Court “liberals” (and an array of Kennedy Administration officials suspicious of Judge Hastie’s political leanings) spiked the ascent of the would-be first black Justice. And five years later Thurgood Marshall broke through the glass ceiling, becoming the first black man on the High Court.

Had President Kennedy awarded the Whittaker spot to an even more qualified jurist, Hastie’s dismissal would have been justified. But instead, the spot was given to Byron “Whizzer” White – a man whose dedication to the Kennedy administration was as proven as were his talents on the gridiron, but whose “qualifications for the bench” placed him far behind Judge Hastie in 1962.

It is right to celebrate Thurgood Marshall’s achievement. But it is wrong to forget that another black man, more highly qualified than the Kennedy insider who received the nod, should have achieved the honor first. But he was a black man alleged to have been caught in the wrong neighborhood: Conservatism. Not able to prove his liberal credentials to Earl Warren and William Douglas – men whose names are still revered as promoters of civil rights – Judge Hastie was cast off to the ashbin of history. He won’t be found on any “Celebrate Black History Month” posters – then again, conservative blacks rarely are.

But his portrait does enjoy prominent placement in the HLS library.

On the top floor.

By the men’s room.


This year’s celebrations of “diversity” are marked by an episode eerily similar to the rejection of Judge Hastie: the attack on Miguel Estrada, the D.C. Circuit nominee and Supreme Court short-lister who “liberals” blocked for being “too conservative” for his Hispanic skin.

The language bandied about by Democrats opposing his nomination harks back to the Hastie debate. We know this today, of course, because Democrat staffers on the Senate Judiciary Committee left their strategy memos (reprinted here) on bipartisan computers. Democrat staffers inadvertently publicized the smearing of Estrada.

In the opinion of “various civil rights groups” in a meeting with Senator Kennedy, Estrada was “especially dangerous, because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment.”

According to another Democrat memo, Ralph Neas, of the People for the American Way, said that Senator Ted Kennedy was “anxious to develop a strategy for the Supreme Court and a strategy for dealing with conservative Latino Circuit Court nominees that are hostile to constitutional and civil rights.” (Not that there was evidence of any such “hostility,” of course.) The memo said nothing about “hostile” white or black nominees. Just Hispanic ones with a shot at the Supreme Court.

The stakes, of course, were huge. As another memo warned, “We can’t repeat the mistake we made with Clarence Thomas.”

The memos recounting the Estrada battle will join the tales of the Hastie battle in the unwritten history of American civil rights – the sorts of tales not trotted out during Black History Month, not during any month. They serve to remind that such “liberal” groups as the People for the American Way, the Democrat wing of the Senate, and even our most famous “liberal” Supreme Court justices championed the advancement of minority jurists not out of principle, but out of political interest. Thanks to their ilk, years from now Democrats surely will celebrate Hispanic History Month with nary a mention of the soon-forgotten Miguel Estrada.

Should race trump ideology in appointments? Of course not. Race should be a nonfactor. But should we continue to allow some to pay lip service to “diversity” when their true cause is the advancement of Liberal minorities and the active obstruction of minorities “too conservative” for their “liberal” sensibilities?

No more Clarence Thomases? Update your bullet points, Democrats. No more William Hasties – your forgotten contribution to Black History Month.


Adam White is The Record’s Editorial Page Editor. His column appears weekly.

Brown v. Horde

I’m often shocked by the extent to which liberals will go to demonize black conservatives.

Lately, so are liberals.

The caricature of Janice Rogers Brown, a California Supreme Court Justice nominated to the D.C. Circuit, was a harsh wake-up call. But before Senate Democrats injure themselves fighting to prove who can most vigorously deplore the bigotry directed at Justice Brown, they and those of like mind should pause to consider a harsh reality: the racist barb put into print by one hateful cartoonist is too apt a depiction of the esteem in which too many liberals hold black conservatives.

* * *

The cartoon (available here, published with an essay entitled “A Female Clarence Thomas for the DC Federal Court?”) repeats a dangerous conventional wisdom that the black community maintains a monolithic identity in the political sphere. The caption reads, “News Item: Bush Nominates Clarence-Like Conservative To The Bench.” Its caricatures of Brown alongside Thomas, Colin Powell and Condoleezza Rice embody a stark indictment of a woman guilty of the most heinous offense.

She is a black woman caught in the wrong neighborhood: conservatism.

At Brown’s Oct. 22 confirmation hearing, Sen. Orrin Hatch displayed this cartoon to remind those in attendance exactly what sort of bigoted adversity Justice Brown has had to overcome. Immediately, Democrats on the Senate Judiciary Committee cried foul.

“I think everyone agrees on the offensiveness of the cartoon,” said Sen. Patrick Leahy (D-VT). “I’m wondering if we’re doing a disservice by leaving that up ….”

“[T]hat cartoon is despicable. It is outrageous. I’m sorry that we’re even displaying it in this room. It doesn’t deserve that kind of attention beyond our condemnation,” said Sen. Richard Durbin (D-IL).

“[A]ll of us deplore the kind of cartoon that is displayed here and all that it suggests,” said Sen. Ted Kennedy (D-MA). “And I must say in the more recent times, some of these kinds of suggestions have been raised but it has no place, any place, in our society, particularly not associated with you.”

As fast as Democrats ran from the cartoon, however, they trumpeted the Congressional Black Caucus’s rejection of Justice Brown. Both Sens. Leahy and Durbin pointed to the CBC’s criticism of Justice Brown mere breaths after distancing themselves from the cartoon. They did so despite the fact that the CBC denunciation wrapped itself in precisely the same message as the “deplorable” cartoon.

“This Bush nominee has such an atrocious civil rights record she makes Clarence Thomas look like Thurgood Marshall,” said Rep. Diane Watson (D-CA), according to the Associated Press. “She’s cut from the same cloth as Clarence Thomas,” said Del. Eleanor Holmes Norton (D-DC). “She is an activist judge who has a record of opposing the civil and constitutional rights of women, African Americans and other people of color. We have seen such a pattern before in the person of Justice Clarence Thomas,” said Rep. Sheila Jackson Lee (D-TX).

News Item: Bush Nominates Clarence-Like Conservative To The Bench.

Kennedy and the others may claim to deplore this cartoon and “all it suggests,” but their chagrin is suspect when the only thing separating the “deplorable” cartoon and the praiseworthy CBC commentary is the lack of a visual aid.

News Item: Bush Nominates Clarence-Like Conservative To The Bench.

The racism espoused by the cartoon is hardly novel. For far too long the black community has been treated as a political monolith, its members incapable of developing their own views on political affairs. Of course, while those views were once the province of most racist corners of the nation (including Democrats eager to filibuster to enforce their agenda), they are now worth tenure to a professor eager to point to “black voters’ politically cohesive and self-identified interests.” Those are not just the words of Lani Guinier; they are the conventional wisdom of a Democrat Party whose leaders long ago decreed that the GOP did not, could not further the interests of black Americans. No matter what the issue – affirmative action, criminal law, welfare – Democrats have colored the debate with this rhetoric.

Given all of that, can we blame Senate Democrats for failing to see that the cartoon they “deplored” bore the same racist rallying cry as the CBC judgment that they championed?

News Item: Bush Nominates Clarence-Like Conservative To The Bench.

Yes, we can blame them, and we should. How deplorable.


Adam White is the editorial page editor of The Record. He posts commentary regularly here.

 

It’s time to break the Review’s silence

Gannett House, Photo by Wally Gobetz, licensed under Creative Commons
Gannett House, Photo by Wally Gobetz, licensed under Creative Commons

As former members of the Harvard Law Review and recent HLS graduates, we share The Record‘s frustration with the Law Review’s continued intransigence in the face of an undeniable and unacceptable gender gap, and with the excessive secrecy that surrounds its deliberations about the issue. In our 2L year, a body of editors that included our class of editors refused to make any changes to the selection process, and unequivocally refused to permit the consideration of gender disparities in our selection process. We failed to act despite the obvious persistence of a significant gender disparity and a growing understanding of the impact that disparity has on our organization. In our 3L year, after collecting substantial and damning data about participation in the competition, the write-on and grade-on elements of our selection process, the effects that different selection processes would have had in past years, and the gender disparities at peer law reviews, the Law Review again rejected all meaningful solutions to the problem. The adopted change to the grade-on process was mostly symbolic – it has no hope of substantially increasing the number of women on the Law Review. Because the Law Review’s inaction and silence affect all of HLS, we feel the HLS community deserves to know what has been happening in Gannett House over the past two years.

The data collection and analysis we engaged in was as thorough as it could have been, given available information and institutional constraints (including HLS’s refusal to disclose the gender breakdown of first-year grades). The data revealed that:

  • Women are consistently underrepresented on the Law Review, as compared with the proportion of women at HLS as a whole. On average over the last eleven years (including 2003), 42.7% of each HLS class is female, compared with 33.4% of each Law Review class. Only 25% of the editors selected over the past two years have been women. Moreover, each of the last eleven years has witnessed a disparity, usually a substantial one.
  • If anything, the disparity has been getting worse recently. Out of the last eleven years, the last two have been the worst, and 2001 (our year) tied for fifth worst. Still, 1993 and 1995 were almost as bad as the last two years, 1996 and 1999 were roughly as bad as our year, and it is common knowledge that disparities were, on average, even worse in previous decades.
  • The disparity results largely from the selection process we have chosen to employ, not from any failure of women to apply. The average proportions of women in HLS (42.5%) and women in the Law Review applicant pool (41.8%) for 1993-2002 are quite similar.
  • On average, from 1994 – 2000, the percentage of grade-ons who were female was 26.3%.
  • Not one of the eleven selection process modifications we explored, commonly touted as neutral “structural solutions,” would have meaningfully improved the gender gap. Even eliminating consideration of grades would likely lead to less than one additional woman per year.
  • Out of eight peer law reviews that provided us with information on their gender disparities in 2001 and 2002, only one had a worse gender gap than the Harvard Law Review.

Based on our experiences at HLS and in the professional world, we refuse to believe that HLS men are more capable than HLS women. The disparities present in the Law Review’s admissions and (most likely) in first year grades simply must have some explanation other than that HLS women are objectively inadequate. Unless the Law Review or those within it who oppose change to its selection policies are prepared to say that HLS women are, on average, less qualified than HLS men, they have some explaining to do as to why women are consistently underrepresented.

Faced with this strong evidence of what was already apparent to all of us, the Law Review still refused to do anything more than “emphasize recruitment,” call for “more study,” and engage in an aggressive policy of interior remodeling in order to make Gannett House “more attractive and comfortable” to current and future editors. This inaction is unconscionable, given the corrosive effects the gender disparity has on both the Law Review and broader HLS communities. The tendency of men to dominate group discussions, including those involving articles selection, and consistently to occupy virtually all of the most intensely sought-after offices makes the Gannett House environment uncomfortable for a number of women and men. Moreover, the systematic denial of equal opportunity to join the Law Review translates into a similar denial of preferential access to many opportunities in the legal profession.

We feel that it is time for the silence to be broken. We recognize that this letter is in tension with the strict, albeit unwritten, confidentiality policy imposed by Law Review leadership. However, we have been careful to respect the spirit of that policy – to ensure continued anonymity in the selection process. We hope that Law Review President Daniel Kirschner will commit himself to bringing the entire HLS community into the discussion. More importantly, because each and every year brings a new class of Law Review editors, and because each class ultimately is responsible for the decision either to maintain or to abandon the status quo, we call on the current class of editors to act boldly where our class floundered. If the Law Review is unwilling to so act, we call upon the entire HLS community to join the discussion and to demand meaningful reform.

Sincerely,

Norina Edelman

Jim Freeman

Clifford Ginn

Daniel Goldberg

Michael Gottlieb

Danielle Gray

Latonia Haney

Rita Lin

Greg Lipper

Rebecca Onie

Alisha Quintana

Rahsaan Sales

Hien Tran

Daniel Volchok

Tara Kole

Big firms do the collapse

In law, as in life, death and taxes are a pretty sure bet. Pity that a handful of once-major, now-defunct law firms didn’t heed that lesson last year. Instead of putting effort in bankruptcy or tax law, their efforts to maintain trendy 1990s hotspots such as tech and M&A drove them out of existence, leaving acrimony in their respective wakes.

Of the Once-Big Three, the evaporation of Brobeck, Phleger & Harrison garnered the boldest headlines. But another of 2003’s other lost firms, Chicago’s Altheimer & Gray, proved that firms didn’t need to go tech to go bust.

The tale of Brobeck stood as the final note in the 1990s legal spending spree that sent students west to Silicon Valley in search of ever-increasing salaries, casual work environments and sexy subject matter. At the peak of the 1990s gold rush, Brobeck was named one of Fortune‘s “100 Best Companies to Work For.” But in 2002, with tech-law revenues lagging, the firm’s fortunes took a definite turn for the worse. Nonetheless, according to The New York Times, partners continued to draw tens of thousands of dollars each month. When the firm’s dire circumstances grew undeniable, partners pledged $26 million in expected profits to pay some of its outstanding debt.

Such tactics only prolonged the death throes of the firm; in January 2003, the firm abruptly announced that it was closing its doors. Associates not only lost their jobs, but they also saw their outstanding reimbursement claims left unpaid.

Much of Brobeck’s workforce was absorbed by other firms; Morgan, Lewis & Bockius, a rumored white night in the firm’s final days, hired many of the firm’s lawyers. But the troublesome wake of the Brobeck collapse continued through the summer.

Most notably, much of the firm’s large support staff was suddenly left without access to 401(k) accounts, as well as without health insurance and other employee benefits. The firm continues to work on distributing 401(k) assets to account holders; the remaining functionality of the law firm is largely devoted to that process.

But the wind-down has been complicated by Morgan, Lewis’ absorption of a portion of the Brobeck book of business. In one lawsuit against the firm, plaintiffs (organized under the name “Broke Beck”) have charged that the distribution of client files to Morgan, Lewis and other firms has posed a threat to client confidentiality and raises possible conflicts of interest.

As detailed in The Record last spring, Brobeck recruited heavily at HLS despite the onset of problems at the firm throughout 2002. (Jonas Blank, “Brobeck meltdown leaves HLS students unscathed (mostly)”, Mar. 6, 2003.) Over 100 students signed up for interviews; students accepting summer offers from the firm were suddenly jobless only months before the close of the school year. Fortunately, given what OCS Director Mark Weber referred to as the “inelastic” demand for HLS-minted lawyers, students were able to find alternative employment in other firms.

But while many students fled to what were seen to be “safer” job markets such as the Midwest, Chicago fixture Altheimer & Gray proved that the Midwest was no assured field of dreams.

Altheimer announced on June 26 that it was ending its 88-year run as a reliable Chicago stalwart. The firm, which had developed an international presence and had investigated further expansion as recently as Fall 2002, was unable to overcome what The Economist reported to be a $30 million debt load. But Altheimer’s failure was not attributable to Brobeck-style reliance on the ill-fated tech bubble. Rather, its fortunes fell despite its reliance on M&A work for 75 percent of its practice. As reported in the National Law Journal, internal memoranda faulted the slowdown in M&A for “cut[ting] deeply into Altheimer’s core transaction business.”

Like Brobeck, Altheimer & Gray interviewed students last Fall despite its falling fortunes. Unlike Brobeck, however, Altheimer is still listed in the LawMatch.com law-firm directory provided to HLS students via the OCS recruiting web site. According to the site, “Altheimer & Gray is actively recruiting Harvard Law School students and graduates, but has not provided information for our directory.” Fortunately, the site notes that “[t]his employer therefore cannot be added to your Briefcase, or included in comparisons, downloads or prints.”

Where will the legal community find its next big-firm meltdown? Unfortunately for students, there are no sure answers. But given the ongoing work of the Office of Career Service, combined with the seemingly limitless sources of information in, among other places, Vault.com, the National Law Journal and other legal publications reinvigorated with heightened scrutiny of firms’ health in the aftermath of the public collapses of Brobeck and Altheimer, students can begin to inform themselves as to the career-defining decisions that await them in the fall interviewing season.

Shrug off the “right man’s burden”

On the same day that lawyers debated “diversity” and affirmative action before the high court, writers argued “ideological diversity” in the court of public opinion. But for those who trumpet the latter as evidence of unfair treatment, it is their argument — not their class — that is suspect.

On April 1, the Wall Street Journal opinion pages featured an essay by Northwestern Law’s John McGinnis (HLS ’83) and Columbia law student Matthew Schwartz, describing their empirical research indicating that the legal academy is staggeringly liberal. The essay, highlighted by the national Federalist Society as well as David Horowitz’s right-wing FrontPageMagazine.com, didn’t go so far as to decry faculty partisanship as harmful to conservative students. But to many, the study is evidence that the legal academy’s “ideological unilateralism” threatens harm to the education of conservative law students.

Speaking as a conservative law student, I vigorously disagree: To be a discrete and insular law school minority is an enviable position.

“Minority” status has long served as a beacon for reactionary protection in American culture, and not always for inappropriate reasons. Indeed, our nation has witnessed deplorable acts of oppression of minority groups. In response, our Constitution offers protections, and the courts and Congress offer still more. But minority status per se is not a position of weakness — certainly not at HLS.

The first obvious advantage of the conservative law student minority is absence of the “collective action problem.” When conservatives can’t rely on a systematic tendency toward the promotion of their views, they are spurred into action — inviting speakers, writing and the like. The core perpetrators of law school conservatism can rely on no one but themselves, and their reliance has been fruitful.

Just as important, the ideological minority is forced into a beneficial position in the classroom: that of near-constant dissent and skepticism. No conservative enters law school blind to the reality of the current left-center establishment. While students of all political persuasions accept their introductory lessons with varying degrees of skepticism, conservatives have reason to be particularly cautious: Long before any of us learn any law, we are introduced to “public policy justification” as a legitimate cause for divergence from strict adherence to the written laws. We are handed casebooks whose materials are edited to varying degrees and for various purposes. We learn the law from faces we recognize from liberal political causes and public advocacy. For students whose initial impression of the role of law collides violently with the last fifty years’ doctrinal ebb and flow, we are forced to look all the more closely at the underlying forces and interests of the lawmakers — either to justify our initial impulses, or to discover where we erred. To conservatives willing to forge ahead, the classroom provides not a threat of silence or hours of attempted Brennanization so much as it does the opportunity to test one’s own theories and, essentially, “read from the other team’s playbook.”

The majority — left-center law students — reap far fewer of these benefits. Instead of consistently confronting a large body of opposition to their view of the nature and role of law, they can elect to reside in an echo chamber of liberal conventional wisdom.

Of course, minority status in the legal academy has its major drawbacks, first among them the dearth of conservative legal mentors. But the largest threat to the conservative law student seems to be internal, not external: the appeal of resorting to the politics of “victimhood” so often utilized by political interest groups.

These political tactics were highlighted by the recent RECORD editorial criticizing conservative students who claim to be “silenced” in the classroom (“Conservatives should shut up about silencing,” 3/13/2003). I still agree with the core of the editorial’s argument: conservative students, particularly in the Federalist Society, are one of the best-organized, most intellectually eager and persistent student populations, and this is the outgrowth of their minority status. In a short time the Federalist Society and its peers have launched such effective attacks on liberal institutions — both political and judicial — that they have spurred the growth of an urgent countermovement. Heralded by such prominent professors as HLS’ Tribe and Chicago’s Sunstein, the left’s urgency is prima facie evidence of the power of its nemeses. Any Federalist Society member who claims classroom vulnerability is levying a suspicious accusation in light of the last twenty years.

Claims of victimhood may play in some realms of political debate, but they offer minimal benefit to the legal academy’s conservative minority. Instead, by drawing attention to classroom politicking, they decrease the amount of classroom time and focus dedicated to legal debate. The legal debate is one that legal conservatives could very well win, as the ongoing experience of the national Federalist Society attests. The political debate — the victim contest — is a much less promising endeavor, indeed.


Adam White is the editorial page editor of The Record.

Selling out: In defense of corporate law

By Adam White

For law students eager to enter the world of big firm law, autumn of 2L year brings a refreshing change: For a few weeks, the most oft-uttered phrase on campus ceases to be, “Isn’t there a public policy justification?” Unfortunately, it is replaced by an only slightly less disconcerting phrase: “I’m selling out.”

This too-common description of students’ foray into firm life reflects the Law School’s disappointing failure to instill in students a powerful truth: that the contributions of “Big Firm” lawyers and of corporate legal education at institutions such as Harvard Law are invaluable to the effective leadership of tomorrow’s legal community.

The Law School has never hesitated to cast its mission in lofty terms. According to the 2002-03 Catalog, “[HLS’s] goal is to provide comprehensive training…. The School … seeks to make substantial contributions toward solving society’s complex problems.” But leadership is needed in a variety of arenas, and if the lessons of the past year have taught anything, it is that corporate regulation and deregulation merit a more searching, intellectually honest inquiry than they have received in the recent past. While many have called for more ethical leadership on corporate boards, fewer have publicly demanded knowledgeable leadership on the part of those anointed to govern and regulate these corporations.

Congress demonstrated the ramifications of financial illiteracy in the legal community at its WorldCom hearings last summer. In a moment indicative of an alarming trend, Rep. Carolyn Maloney (D-NY) asked a former Andersen partner, “How did you not see some red flags when the taxes [of WorldCom]… were so different from what they reported as their earnings?… Would that have helped you possibly uncover the fraud?” [Rep. Maloney, guardian of the Republic, should know that tax accounting and financial accounting are different by law — it’s like the difference between asking how many dependents you have and how many kids you have.]

The questions of Maloney and her peers (GOP and Democrat alike) would be funny were they not depressingly absurd. While such a leadership vacuum has many causes, the search for such causes cannot ignore altogether the derision of corporate law and the big firms that practice it as being qualitatively inferior to the “nobler” academic pursuits of our “future leaders.” Such an atmosphere can inappropriately dissuade America’s bright legal minds from pursuing careers in corporate legal America — perpetuating a leadership vacuum in a field that needs competency now more than ever.

HLS does take steps to promote corporate law — including the recommendation of the “bundled” courses. But for every promotion of corporate law, the Law School provides as many disparaging characterizations of life in corporate law, either explicitly or by implication.

Nowhere is this more obvious than at OPIA, whose mission to open the door to public law often piggybacks upon derision of law firm life. In an excerpt from a book sold and quoted triumphantly on the OPIA website, one author boasts, “I became convinced that neutrality was for the Swiss and determined that, when I grew up, I would not follow the sheep to a big law firm but would instead work to advance truth and justice….” The implication is clear — law firm life is qualitatively inferior to “service” life, and only lemmings pursue private law.

Similarly, the qualitative delineation between “firm work” and “pro bono” is equally harmful and inaccurate. To anoint the ACLU et al. as those working for the “public good,” to the exclusion of corporate law firms is to ignore the incomprehensible importance of the American economy and those who motor it. Lawyers who advocate on behalf of corporate America may be accused of “selling out,” but their contributions to the economic infrastructure have grown the economy, and their legal services protect American entrepreneurs from legislators whose forays into economic regulation would otherwise go unchecked. That’s a whole lot of bono, OPIA’s pronouncements notwithstanding.

Where students are not actively reminded of the importance of corporate legal expertise, extracurricular avenues for their study fail to materialize. Thus, HLS lacks student-edited journals or clinical programs devoted to technical corporate law. In a feedback loop, this is both a symptom and a source of the problem: Students cannot engage corporate law in a practical academic environment, which lends to the impression that corporate law is intellectually inferior to legal historicism, politicking and “legal aid” endeavors, which further dissuades students from pursuing the corporate environment.

HLS has produced leaders who take on corporate malfeasance, such as New York Attorney General Eliot Spitzer, HLS ’84 (who honed his skills in private practice). Just as importantly, the school has produced lawyers who defend America’s productive companies from the creeping tendencies of an increasingly burdensome regulatory Leviathan. But one must hope that the brilliant corporate minds of tomorrow will be produced by HLS, not in spite of it.