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THE SOCRATIC METHOD: What do you see as the crisis in the legal profession today?
RALPH NADER: The principal crisis is that the rule of law is being massively distorted by the rule of power, thereby restricting access to justice and creating a plutocratic political economy where the few rule the many.
TSM: How does this connect to broader inequality in society? How much of this is the legal profession as the cause, and how much of this is a result of other broader inequalities?
RN: Well the legal profession should be the first responders because they are trained to understand the difference between raw power and the rule of law. And they see it everywhere. And there’s 1.2 million licensed attorneys in the United States so they are everywhere – local, state, federal, international. And so they bear the primary responsibility to defend the rule of law and expand its benefits. Alfred North Whitehead, the British scientist-mathematician, once said that if you have power, if you have influence, if you have the ability to change conditions, there’s a moral imperative to do so. And this is doubly the case with lawyers because they are given a monopoly to represent people in courts of law.
TSM: You’ve spoken in the past about the difference between lawyers and attorneys. Could you discuss that difference?
RN: Yes, I think members of the bar have two roles. One, attorneys for clients, which they are urged to represent vigorously. And the other is as lawyers committed to the advancement of justice in society. And the latter role reflects their status as officers of the court. When you are admitted to the bar, you are an officer of the court. So the question is what does that mean in terms of responsibility. We know what it means in terms of benefits. You have a monopoly to represent clients. But we haven’t worked out the responsibility. The most minimal responsibility is to have lawyers represent indigent clients. So, regardless of what your practice is, a modest portion of your time should be to represent indigent clients. So that’s the difference.
TSM: Is this an individual, or a collective, responsibility of lawyers?
RN: You can’t do it all individually. You have to do it collectively. If you look at a bar association code of ethics closely, you’ll see a sentence here and a sentence there that reflects the duty as lawyers. Different codes of ethics use words like ‘administration of justice’. For example the criminal courts are in a mess in our country, ending up with the mess that’s our prison-industrial complex. Well, that’s a responsibility of the legal profession. Not exclusively the responsibility, but who knows more about it on a day-to-day basis? That’s why you have to hold them to the first responder responsibility. Always keep in mind they have been given a legal monopoly and they are officers of the court. So those entail certain responsibilities, which are not taught and obviously not widely exercised.
TSM: It’s been about fifteen years since you wrote about these issues in No Contest. Do you think things are getting worse or better?
RN: In the area of the corporate law firm it has gotten worse. The power of these corporate lawyers is hard to overestimate, because they latch themselves to continually more powerful global corporations. And the more powerful the corporations are, the more brokering of that power accrues to the big law firms. As a result you are seeing a new movement called the inversion movement, where a US corporation, Applied Materials, for example, is merging with a Japanese company to reduce competition and they are rechartering themselves in the Netherlands for tax and other purposes. Now we never saw that fifteen years ago, and that’s a trend now. US chartered corporations leaving our country for profitable advantage under other nations’ more permissive laws while the same corporations do business in the United States and avail themselves of all the public services and protections of the USA. Another area that’s gotten worse is corporate bankruptcy, which is full of privileges and immunities that do not accrue to individual bankruptcies. A third area is corporate taxation. The effective rate now of corporate taxation is about 12.5%. The nominal legal rate is 35%. And there are many corporations, like General Electric, that pay no income taxes on billions of dollars of US-generated profits, and actually have so gamed the system via their corporate tax attorneys that they get checks back from the treasury. So in some years for example, General Electric paid zero income tax on billions of dollars of US-generated profit, and got a $2-3 billion check from the treasury. So it’s just getting worse and worse.
TSM: How plausible is Harvard Law School as a site of response to these problems, given how much of Harvard’s funding comes directly, or indirectly via students, from corporate law firms?
RN: I think it’s very plausible. If students take matters into their own hands, and connect with supportive faculty, they can prevail. Because they have a very strong argument. They have very strong evidence. They can cite everybody from Learned Hand to Louis Brandeis to the head of the American Bar Association that the system is broken. The legal system has become increasingly an instrument of repression itself, because of who is pulling the strings and twisting and turning them. And students now know from their own experience in signing fine print contracts that the very idea they are taught in contracts courses that a contract is a meeting of a mind – you never meet the mind of Google, you never meet the mind of Microsoft. You never meet the mind of Walmart, Citigroup, Bank of America, Prudential Insurance, Sallie Mae. They have almost destroyed the freedom of contract, representing trillions of dollars of purchases by consumers from vendors. Students can organize around that and enrich the curriculum. Contracts of adhesion are not taught for more than one or two classes in a complete contracts course, which is absurd, because while negotiated contracts are the lucrative business of lawyers—contracts between businesses, contracts between labor unions and businesses, contracts between businesses and government—the vast majority of transactions in our country for the vast majority of people are in these fine print contracts. Students can also make a strong argument that the endowment of the law school, which I understand is over a billion dollars, should provide all law students with free legal education. Maybe they want to make exceptions for children of multimillionaires, but by and large there is no reason for loans. There is no reason for debt. There is every reason to basically say that the generosity of alumni and others should provide free legal education. And of course that will increase the diversity of the student population. Whereas now, I have been told, about 60% of the law students don’t need any financial aid and are not on financial aid. Which means they are coming from higher income parentage.
TSM: Looking beyond reform of the law school itself, how should students be influencing Harvard Law School to influence the legal profession more broadly?
RN: One of the missions of the Harvard Law School should be to create institutions that allow access to justice from all backgrounds, classes and races, like the ACLU and NAACP and more recently the Hispanic civil liberties groups. We need facilities. Rights don’t mean much without remedies. And remedies don’t mean much without facilities. We need legal institutions to deal with biotechnology, to deal with the military budget, to deal with nanotechnology, to deal with the exposure to multiple classes of harm that are afflicting our children. We need to deal with the lawless criminal wars of aggression that are violating our Constitution, statutes and international treaties. And on and on and on. The demand for justice far outstrips the supply. And in our country justice flows through institutions. Look our criminal courts. Look at our prisons. There are very, very few watchdog institutions. Once in a while the ACLU will bring a case. Or the Center for Constitutional Rights. But what they have accomplished is evidence of the need for more. Much more. It was once said that 80% of the legal profession represents 20% of the people. And the Law School should be the leader, because the Law School is the greatest law school in the country. It has the best and the brightest faculty. And if you doubt either of those assertions, just ask them. So you see they have high pretensions, enormous self confidence, great pride in Harvard Law School being number one, but it is not number one in advancing the establishment of institutions that are accessible to people, whether or not they can afford it, or whether or not they know what the injustices are, like letting people know what the downside of nanotechnology or biotech are. People need institutions to represent them in the various regulation, licensing and performance of these tumultuous technologies.
TSM: In a recent interview with the Record, Dean Minow emphasized that Harvard Law School is not an advocacy organization. With that in mind, what do you see specifically as Harvard’s role as in creating these institutions?
RN: Harvard Law School, wittingly or unwittingly, operates to entrench the expansion of corporate power over our political economy and citizenry. So there is no way you can be neutral. There is no way you can just sit on the sidelines. Not when you decide who becomes a professor, what kind of courses are taught, what kind of courses are not taught, how you handle the alumni, what kind of corporations you allow on campus to sponsor programs in taxation or other programs when I was there. So institutionally they cannot say they are neutral because they are making choices all the time. Harvard Law School in its constituent parts must step up to the demands for justice in our society and world. And that means creating a climate of knowledge, and a climate of potential contribution. And that is an institutional responsibility, so that you liberate students to have different horizons, different expectations of themselves, in doing what Senator Daniel Webster called the great work of life on earth, which is justice. So when I took tort law, and I’m sitting in the tort class, and we studied automobile personal injury cases, it was all the driver. The analysis was ‘was the driver negligent or not negligent’ and the various embellishments of that. We never got to the car until McPherson v. Buick, sometime in April, when a wheel fell off in 1916 and Cardozo wrote the opinion. In other words, we were dealing with personal injury cases but we were almost never dealing with manufacturing defects of the consumer products that were injuring and killing people. So does the Law School have a responsibility for that? Certainly! They pick the professors, and they allow the curriculum to be empirically undernourished. When you teach criminal law, and you don’t teach corporate crime, which is far more prevalent, produces far more preventable death and injury than street crime, steals far more money from consumers, jeopardizes workers and so on. Hospital induced infections kill 2000 people a week in the US. When you don’t cover corporate crime, that course is empirically starved. In addition, the law school deals with its very influential alumni as if they were just check-writing alumni classes. They bring them up, they have some events, when they have reunions, and they flatter them. They don’t challenge them, and then they invite them to make checks out to Harvard Law School. Well, that is basically allowing a huge resource to be wasted. And one prominent example to the contrary is the Appleseed Foundation, which was founded by one class and started sixteen centers for law and justice. But what if forty classes, after their thirtieth reunion, and thirty-fifth and so on, what if they did the same thing? Well the law school would think that precious money was being diverted into establishing centers for law and justice from the Harvard Alumni Fund and that’s their priority. So they can’t escape responsibility for that.
TSM: One theme that has come up in some of the Record’s interviews with professors is that in all of this, the law school is just responding to student preferences. And this is what students want to do, they want to be corporate lawyers and they want to understand economic analysis of law, and so this is what is taught. How would you respond that that?
RN: First of all, students come in much more idealistic as 1Ls than they leave. So what happens between 1L and 3L? Well obviously it’s their experience at the Law School that turns them less idealistic. Second, maybe if they recruited different kinds of law students from different kinds of deprived backgrounds around the country they would have higher demands on themselves by these law students. And number three, that is a very, very patronizing approach. That’s Madison Avenue. That’s like saying, “We’re selling sugar because we’re giving people what they want – sweets – including kids”. That results in obesity, high blood pressure and diabetes. So that is not the position of leadership based on wisdom of the old person. That’s just marketing, catering to what I perceive to be a flawed admissions system. Obviously if you are just rolling one generation of upper income families students after another, you’re not going to get the vibrant demands for a more responsive legal profession to the needs of people. Or, in a broader way, to the needs of the people of the world. Law students should be encouraged to commit their minds to the advancement of justice as they see it. Because otherwise Harvard is just a finishing school for corporate practice which can offer the highest salaries. Once you make a statement like that about student preferences, you’re off the hook. You don’t have to do anything, other than have supposedly high intellectual standards and rigor so that the brightest minds out of law school become servants of corporations, so that corporations can become masters of the people instead of their servants, which two centuries ago they were chartered to be. Two centuries ago, corporations in Massachusetts were chartered to serve the people. They were not chartered to be masters of the people. They were given a short leash, they were given public purpose, and they were renewed or not renewed depending on their behavior. That didn’t last much more than a couple decades before corporate lobbyists started shaping the system that we know today. A statement like that is a wonderful provocation for extended debate on campus.
TSM: Given all these problems with law schools, would you have any hesitation in advising a young person interested in the public interest in going to law school?
RN: I think the greatest change agent profession in our country is the legal profession. First of all, it’s the only profession that synthesizes the knowledge of other professions. Medical, engineering, architectural, financial. They all have to go through the legal profession, so it’s like Grand Central Station. Second, the legal profession is permitted to be generalists, and the other professions are increasingly specialized and therefore they opt out of making moral judgments about what they are doing and the consequences of what they are doing – like nuclear physicists and nuclear engineers. So we have a very important profession here, both to synthesize knowledge into just results and to be able to rise above the microspecialization of our period in history to more generalized treatments so we can ask the most important questions that humanity asks. We’re not specializing ourselves out of it. But it’s very important for there to be a churning, a perturbation, a wave-making at every law school. The improvement of the Harvard Law School curriculum when I was there was heavily attributed to student activists who illuminated both their faculty and their administration during the civil rights, anti Vietnam War, pro women’s rights periods in the 60s and early 70s. It was the students who did that, coming back from summers of civil rights work in the South, for example, or coming back from Vietnam. Students did that. So there are examples in the history of Harvard Law School where organized, knowledgeable, persistent students who asked some good questions about law and justice can make change.
TSM: Could you tell us a bit about “Shake ‘Em Up HLS,” the event you’re hosting at HLS on October 24th?
RN: Well I think this is a marvelous opportunity to open a lot of windows for law students, regardless if they are 1L, 2L, 3L, into the kind of actions that these experienced presenters – twelve of them – will describe on October 24th. These are twelve major urgent areas in the law that these people have been working on, been changing for the better. Once in a while you get a speaker like that, you never get twelve in one afternoon. So from a time point of view, from the students who keep saying they don’t have enough time, it’s cheaper by the dozen. I would to urge them – they will never forget it if they just take an afternoon off and absorb, ask questions, meet some of these people, and take good notes. They are delivering a lifetime of struggling successfully for justice in areas like international dispute settlement, prevention of wars, pension rights, corporate abuses, and prison-industrial complex, and many other areas.