One year ago, I published Our Bicentennial Crisis: A Call to Action for Harvard Law School’s Public Interest Mission. At the time, Harvard Law was inviting Supreme Court justices, senators and other famous alumni back to campus to celebrate the 200th anniversary of the legal giant’s 1817 founding. But while the administration was celebrating, public interest law students were sounding the alarm: of their school overtaken by corporate interests and losing relevance to the average American; of a watchdog of the law largely asleep as the institutions of the rule of law and equal justice under law were under siege; and of a law school community that had lost track of its declared mission to “educate leaders who contribute to the advancement of justice and the well-being of society.”
Our Bicentennial Crisis aimed to compile and surface these concerns. It documented: first, the crisis of mass exclusion from legal power for the average American (in the criminal justice, civil justice and political systems); second, Harvard Law’s failure to address this crisis, and the inaccurate excuses our community tends to give for not addressing it; third, what accounts for this civic deficit; and fourth, twelve reform proposals that aim to help us better live up to our mission. An electronic version of the full report is here, but below is a summary of Our Bicentennial Crisis’ findings.
Our Bicentennial Crisis: a summary
First, the report documents how the vast public is excluded from legal power in the United States:
- …in the broken criminal justice system: how public defenders are grossly underfunded and understaffed— a contributing factor to prosecutorial abuses and our ballooning prison system.
- …in the inaccessible civil justice system: how 86% of the civil legal needs of the poor go unmet; how America ranks 50th of 66 wealthy countries in terms of “the ability of people to obtain legal counsel.”
- …in the indentured political system: how public interest lobbyists are outnumbered 34-to-1 by corporate interest lobbyists in D.C.; how tort law and antitrust law are crippled
by corporate interest lawyers; and how the John M. Olin Foundation paid Harvard Law School $18 million to teach what they have admitted is “conservative constitutional law.”
Second, the report offers an account of the legal profession’s failure to address this exclusion:
- England spending 13 times as much per capita and Canada spending three times as much per capita as the United States does on civil legal aid.
- The top 100 most profitable law firms making ~$28 billion in profits while only ~$1-2 billion worth of lawyers’ time is spent annually on civil legal aid for the poor.
Third, the report next moves on to Harvard Law School, documenting how for everyone graduate of Harvard Law School who goes on to work in public interest law, government or education, four graduates work for corporate interest firms or businesses.
Fourth, the report then proceeds to debunk various excuses put forth by school administrators regarding these lopsided career trajectories:
- Excuse #1: “Pro bono work and charitable giving blurs the divide”. In fact, lawyers at the major corporate interest firms give less than half an hour a week and half a dollar a day to pro bono service and legal aid. ABA survey data shows that only 36 percent of attorneys do 50 hours or more of pro bono work per year. The most giving law firms only give about one tenth of one percent of their revenue to access to justice efforts.
- Excuse #2: “Everybody deserves a lawyer.” The reality is that a disproportionate number of corporate interest firm clients are white and male, while a disproportionate
number of public interest clients (government, legal services, education and non-profit constituencies) are women of color. Almost 70% of recent Harvard Law graduates work in just four states: New York, D.C., Massachusetts, and California. In fact, more graduates work in New York than in 47 other states combined. The report asks: “Harvard Law prides itself on its diversity of inputs: students of all races from all around the country. However, when viewed in light of the narrow range of outputs, a disturbing picture emerges of a school that attracts a diverse set of students from all across the country and sends them to New York to serve a disproportionately rich and white client base. If everybody deserves a lawyer, should not Harvard work to encourage the lawyers it trains to go where people are underserved?” - Excuse #3: “Graduates take public interest jobs later.” In fact, only 7.2 percent of Harvard Law graduates who are working at large firms three years after graduation are working in public interest organizations twelve years after graduation. Of the 303 members of the 2015 graduating class working in 100+ lawyer firms after graduation, we can expect, if trends continue, only 22 to be working in public interest organizations nine years later.
- Excuse #4: “Students are free to choose.” In fact, there is a major “public interest drift” among students who are interested in public interest work (government, non-profit and educational work) upon admittance but end up in corporate interest work. Whereas 35.4 percent of newly admitted students planned to work for law firms or businesses
after law school, 63 percent planned to work for law firms or businesses by graduation. - Excuse #5: “This involves factors beyond Harvard Law’s control.” In fact, Harvard is losing out to other schools in terms of public interest careers in non-profits, government and education; Yale, Georgetown, Northeastern and CUNY all outperform Harvard.
- Excuse #6: “Harvard Law is a path to the upper class.” In fact, available data shows that the majority of students at Harvard Law School are from families at the top of the income bracket. Available data indicates that about 77.5 percent of Harvard Law students are from families that make more than $95,000 a year and have more than $175,000 in net worth. This means that if you come from a family with double
the median net worth of American families, you would still be in the bottom quarter of the economic bracket at Harvard Law School.
Fifth, the report proceeds to explain how the school fails to live up to its civic potential:
- A culture that fails to spark public-spiritedness: Harvard Law has an entrenched culture of competition, in which the law is viewed as a game and “geniuses” are praised regardless of their civic commitment. This law school culture provides a smooth transition to the culture of corporate interest legal work.
- A curriculum that pacifies students: the first year curriculum of Harvard Law School is stuck in a century-old mold— and students do not get exposed to any pluralist curricula until their second and third years, when they have already made their decision to pursue corporate interest legal work.
- A career-building system that nudges toward corporate law: The school treats corporate interest work as the “default option,” a process that culminates in first year students being wined-and-dined by corporate firms and an “Early Interview Program” that streamlines corporate interest recruitment. The school career office has even provided materials that encourage students to pursue revolving door work: joining a firm, leaving for a government agency that regulates their clients, and then returning to the firm to trade their government experience for higher salaries.
- A cost structure that dissuades students from public interest work: Despite Harvard Law School’s efforts made to lower the debt burden of students pursuing public interest work, most students still see their law school debt as a major reason for pursuing corporate interest legal work.
Silence from the administration
Since the publication of the report, I have hoped that Dean Manning and the Harvard Law administration would publicly respond to the report’s findings, proposing a plan to address how Harvard Law will confront the crisis of legal inequality that the report thoroughly documented. We have provided multiple opportunities to engage, but unfortunately, every time we do, Dean Manning has ignored the content of our critique and, as instructed by the administration’s public relations office strategy regarding our advocacy, has simply cited Harvard Law’s pro bono statistics:
- In October 2017, we distributed multiple copies of the report to Dean Manning, deans at other major law schools, administration officials, and the student body as a whole. In The Harvard Crimson’s coverage of the report, Dean Manning responded by citing Harvard Law’s pro bono statistics.
- In November 2017, we held an event with Harvard Law alumnus Ralph Nader about the report and invited Dean Manning. He did not attend. The video is here. In The Harvard Crimson coverage of the event, Dean Manning responded by citing Harvard Law’s pro bono statistics.
- In February 2018, we held an event with Harvard Law professors Randall Kennedy, Carol Steiker, Duncan Kennedy, and Todd Rakoff to discuss the report. We invited Dean Manning, but he did not attend. The video of the event is here and the Crimson coverage of the event is here.
- Throughout Spring 2018, I attended multiple curriculum committee listening sessions and raised issues from the report. At the Spring Kaufman dinner, I called on Dean Manning to engage with the report’s keystone goal of setting a 50% public interest career target. He never substantively responded to these comments.
- In May 2018, we engaged The Harvard Crimson in their reporting on “At Harvard Law School, A Push Toward Public Service.” Dean Manning responded by citing Harvard Law’s pro bono statistics.
- In April 2018, seven Harvard Law alumni wrote an open letter to Dean Manning asking him to respond to the report. The Crimson coverage of the letter is here. In August 2018, Dean Manning responded to the alumni, but made no reference to the report — or the thoroughly documented claims made in the report — in his response. He simply re-stated descriptions of current clinical, pro bono and public interest career advising programs at Harvard Law.
Repeating Harvard Law pro bono data is not a substantive response
Citing Harvard Law’s pro bono statistics is not a substantive response to the crisis of legal inequality documented in the report. We never state in the report that Harvard Law students are lacking in pro bono output during their time in school. The only time pro bono work is mentioned in the report is when data is shared that debunks the corporate interest law firms and Harvard Law administration talking point about how the pro bono work of large law firms blurs the line between public interest and corporate interest legal work.
As Professor Deborah Rhode notes in Access to Justice, lawyers at the major corporate law firms give less than half an hour a week and half a dollar day to pro bono service and legal aid. At the Top 100 wealthiest law firms, only about eight minutes per day per attorney is given to pro bono work. Only 18 of the nation’s 100 most financially successful corporate-interest law firms achieve the ABA Model Rules’ goal of fifty hours per year per attorney of pro bono service. During the last decade, as the most profitable firms’ average revenues increased by more than 50 percent, pro bono participation declined by a third.
Harvard Law’s career services office knows this. In one document on the Washington, D.C. legal market provided to students by the Office of Career Services, students are reminded that although “firms like to emphasize their commitment to pro bono,” they “are increasingly mindful of becoming more like a business where billable hours and profitability reign supreme.” Students are encouraged not to make pro bono work “the focus of a meeting” with a firm recruiter, because “this could raise concern about your commitment to (or understanding of) practicing in a law firm.” This matches ABA survey data, which shows: (1) that only 36 percent of attorneys surveyed do 50 hours or more of pro bono work per year; (2) that younger attorneys are doing less pro bono work than older attorneys; and (3) that the main obstacle to doing pro bono work is lack of time.
When pro bono work is done at corporate interest law firms, it is not necessarily performed in service of the poor. Often, Rhode explains, pro bono reporting is inflated by assistance to family, friends, and charitable causes that largely benefit middle and upper income groups. When the poor are served by corporate firm pro bono, the “boring” retail work of day-to-day service is often ignored: fewer than 10 percent of private interest lawyers accept referrals from official poverty law programs. Rather, “intellectually engaging” work, like death penalty appeals, is what is most often taken up. As a Covington & Burling chairman once told The American Lawyer, “the question is, how do we encourage people to see this work for the poor in our local community as sufficiently engaging?” Of course, any help is better than no help, but corporate firm pro bono work, in its current state, is nowhere close to seriously bridging the access to justice gap.
It would help if the pro bono work of corporate interest lawyers were able to intervene at higher levels of power than individual cases. Occasionally they do, as was the case with, say, Guantanamo Bay detainees in the 2000s and gay marriage litigation in the 2010s. However, as Ralph Nader has pointed out, if firm lawyers move beyond “‘band-aid law’…on a case basis” to “[grappling] with the financial institutions who fund the slum moneylenders for example, or [striving] toward structural reform of a legal institution,” then conflicts often arise with their firms. While attending Harvard Law, I saw this phenomenon in action at a “learn about pro bono” campus event put on by a major law firm. When I asked if a member of their firm could, say, use their pro bono hours to give legal advice to Walmart employees aiming to organize a union, the firm responded, “Well, no, Walmart’s one of our clients.”
Harvard Law students honorably participate in pro bono activities during their time in school. But the Our Bicentennial Crisis report is not solely focused on increasing the pro bono activities of Harvard Law students during their time in school. It is focused mainly on addressing the inequalities of legal power produced by the institutions that Harvard Law graduates predominantly serve after their time in school — and, specifically, what Harvard Law, as an institution, can do to (1) seriously confront those inequalities in the legal system from campus and (2) inspire its students to confront those inequalities in the legal system after graduating. It is about asking, as Anand Giridharadas similarly asked so acutely in his recent book Winners Take All: The Elite Charade of Changing the World: how can Harvard Law graduates not only do more good in the world, but also do less harm in the world? This is a serious question that deserves a more comprehensive answer from Dean Manning and the Harvard Law administration than simply repeating the number of pro bono hours Harvard Law students complete.
12 ways Dean Manning can respond to our crisis
If Dean Manning is serious about addressing Harvard Law’s public interest participation crisis in our era of severe legal inequality, here are twelve reforms he could begin advancing:
Cultural Reforms
First, we can reform our culture. In the report, I document the problematic orientation given to students at Harvard Law School—one of ambient competition that evolves into a
game-oriented consciousness and results in a “cult of smart” enforced by rigid ranking. To change, we need a different orientation.
Reform #1: Measure public interest commitment
You are what you measure. As Dan Ariely explains in a 2010 Harvard Business Review op-ed:
Human beings adjust behavior based on the metrics they’re held against. Anything you measure will impel a person to optimize his score on that metric. What you measure is what you’ll get. Period.
When we, as a school, began caring about gender and racial parity in admissions, the first thing we did was: (1) surface the metrics of our gender and racial disparity by tracking the percentage of admittees that were of each gender and race; and (2) set a goal of having our gender and racial diversity better resemble the nation’s gender and racial diversity.
Similarly, if we care about a majority of our students pursuing work in the public interest, we should start measuring and publicizing how many of our graduates, over time, are pursuing work in the public interest.
As required by the American Bar Association, Harvard Law School provides clear data annually on how many recent graduates are set to be employed in each of the different legal sectors (government, public interest, business, education, law firm, etc.). However, there is very little consistent data on where alumni work years out from graduation. This is important information, because many students make employment decisions based on assumptions regarding the ease at which they can switch legal sectors. For example, many civic-minded students assume that it is common to pursue corporate interest legal work for a few years and then switch to public interest legal work later.
However, as shown in the report, if the ad hoc data collected over the years is correct, this common assumption is not true. Such revelations demonstrate the clarity and power of gathering data on alumni employment beyond graduation day. This is likely why Yale Law School consistently conducts a First Non-Clerkship, 5th year, and 10th year employment survey. Since Harvard Law does not do the same, our knowledge of the career trajectories on which we are launching Harvard-trained lawyers remains, to most students, shrouded in myth and informed by only ad hoc insight. And, more importantly, because goals that are prioritized are generally measured and publicized, the lack of measurement and publicity around raising public interest employment numbers signals that raising public interest employment numbers is not prioritized.
This could be alleviated by adopting Yale Law School’s post-graduate employment surveys so as to consistently gather and publish data on each graduating class’ first non-clerkship employment, employment five years after graduation, and employment ten years after graduation.
If survey data is kept in a way that tracks each individual graduate’s career goals and trajectories, they can be even more useful in demonstrating how graduating classes move through different sectors at different points in their life and how career-building aspirations match up with career realities.
Such consistent data would make great strides in informing and clarifying student employment decisions following graduation, as well as administrative decisions in crafting admitted classes to ensure graduate career trajectories are balanced across different legal fields and needs. It is could also serve as the policy foundation for what I called in the report “The Bicentennial Challenge”: setting a target of having a majority—51 percent—of Harvard Law graduates devote a significant portion of their careers toward advancing the legal interests of the poor and the public at large. Since our paths after law school inform the culture of the law school, this simple challenge, undergirded by measurements of public interest commitment, could serve as a keystone to a larger reorientation of Harvard Law, changing what and how we teach, as well as what we value and fund, so as to better serve our school’s public interest mission.
Reform #2: Promote a culture of civic ambition
Harvard Law can do a much better job at centering messaging on the school’s mission “to educate leaders who contribute to the advancement of justice and the well-being of society.” One transfer student from The Notre Dame Law School, for example, informed a 2016 Student Government Focus Group that administrators and professors at his previous school had constantly emphasized their mission to incoming students, ensuring the students were persistently reminded of why they were in law school. He was surprised by how little his new school’s mission had been emphasized since he transferred.
The researchers Bonita London, Geraldine Downey, and Vanessa Anderson have shown that law students internalize their school’s culture within the first three weeks of law school. It is in these early days that school elders can ensure that a message of civic ambition can inoculate against and transform the amoral, game-oriented impulses that tend to dominate student culture.
In the High Citadel, Joel Seligman imagines such a message in an opening speech from a future Dean:
“You are about to enter a profession considered noble because under the United States Constitution and the traditions of the common law, it has an ideal of providing equal representation to all. No matter how great the disparities of wealth or talents elsewhere in society, both the adversary system and the democratic practice demand formal equality before the law. Accordingly, we expect you to spend some of your time working in a free clinic for disadvantaged people in this area. For the practice of law, we must never forget, is a monopoly. We deserve the security and dignity of our profession only if we satisfy the public’s need of adequate legal representation.”
I would add that our ABA Model Code Canon 8 duties — “to recognize deficiencies in the legal system and to initiate corrective measures therein” — should be emphasized early and often. In the same vein, I would also add that the distinction between thinking like an attorney — advocating for specific clients — and thinking like a lawyer — taking care of the legal system — should be one of the first lessons taught to incoming students. Finally, a focus on our futures rather than our pasts should dominate early messaging: students do not “deserve” to be at Harvard Law based on what they have done; what matters is how students use the resources gathered here to serve the public interest mission of the school.
Such cultural messaging can have a big impact on students and graduates. My father’s alma mater was Antioch College, where the motto was: “Be afraid to die until you have won some victory for humanity.” A few years ago, I ran into two elderly Antioch alumni. When I started saying the mission statement, they completed it for me and then talked about how they still live by it in their careers. Imagine if we instilled the mission statement of Harvard Law School so well that when HLS alumni run into each other decades later, they discuss how best to advance justice and societal well-being!
Reform #3: Spotlight civic intelligence
In the report, I decried Harvard Law’s “cult of smart,” where those with the sharpest and narrowest analytical skills are held in acclaim regardless of their moral orientation. We should displace this cult by holding up lawyers who are examples of civic intelligence, rather than just narrow, analytical prowess.
The paintings and photographs of academic faculty and powerful jurists that adorn our campus walls should be supplemented by paintings, photographs, and quotes spotlighting activists and trailblazers. Portraits of Supreme Court Justices should be joined by portraits of, say, Reginald Heber Smith, the HLS alum who popularized legal aid for the poor with his groundbreaking 1919 book Justice and the Poor, or Jennifer Gordon, the HLS alum who founded the Workplace Project, a non-profit worker center which organizes immigrant workers and fights for stronger state labor protection laws. Campus buildings and rooms named after former deans, wealthy donors, and corporate law firms should be joined by buildings named after activists like Gary Bellow and Jeanne Charn, the HLS dynamic duo who set the standard for clinical instruction at American law schools, or Archibald Grimké, the HLS alum and tireless racial justice advocate who went on to co-found the NAACP .
Additionally, the experience and wisdom of living outsiders who made a difference in society as a lawyer should be integrated into the 1L experience. This can be done by supplying a steady stream of public heroes to interact with each class, not at voluntary lunch talks, but at mandatory section meetings. Students need to hear — together — from those who, in the words of Ralph Nader, “prevailed over overwhelming odds, primarily because they brought to a set of facts values backed by stamina, a sense of strategy and willingness to see it through.”
Harvard Law, for example, could develop a calendar of internal holidays to spotlight different heroes and movements within the history of the law. This could provide moments of collective reflection, providing the opportunity to teach the “why” of a legal career to supplement the more-common “how.”
Finally, students, staff, and faculty who demonstrate moral courage and civic creativity should be spotlighted often. Take Harvard Legal Aid Bureau Faculty Director Esme Caramello as an example. When Massachusetts courts were awarded a grant to increase access to justice last year, Caramello stepped up to help lead the state’s working group on increasing access to justice in housing law. It is often faculty members like Caramello — clinical professors and podium faculty who have extensive experience in the field — who offer students the best example of “advancing justice and the well-being of society.” They should be the center of our school’s culture.
The proposals above are all small changes alone. But together, they can help displace a hierarchy of prestige and narrow analytical intelligence with a culture that honors civic virtue and moral intelligence.
Reform #4: Admissions should account for public interest commitment
If we aim to have a majority of students pursue public interest work and we are still not achieving that goal under today’s admission criteria, we cannot simply throw up our hands and say, “there is nothing we can do.” If we, for example, did not have a majority of graduates passing the bar, we would not give up: rather we would, in addition to other reforms, adjust our admissions policy. If we are serious about a Bicentennial Challenge to more than double our public interest commitment, the admissions office has to participate. It is time for us to more heavily consider “public interest commitment” in assessing applicants.
As Lani Guinier has explained, what the admissions office calls “merit” is a political question:
“Merit is value judgment and opinions about what virtues or skills are most essential to a lawyer or law student are as divided as opinions about any other political question. To say that a law student is meritorious because he or she does well at taking examinations offends those who consider a meritorious lawyer one who is dedicated to performing community service.”
Guinier continues:
“To argue that merit can be measured in terms of common legal skills such as writing ability, advocacy or organization is to denigrate such virtues as imagination, honesty, persistence, or compassion, which are not lesser virtues merely because they are more difficult to quantify.”
Of course, assessing any abstract quality in applications is an imprecise art. But if we have no problem assessing the abstract quality of “analytical intelligence” in determining one’s admittance to Harvard Law School, why cannot the equally abstract quality of “civic intelligence” — seriousness of devotion to public service and problem solving — be assessed as well? There is no reason the admissions office cannot better incorporate such factors in admissions criteria in the service of an institutional goal of increasing Harvard Law’s public interest employment rates and, equally importantly, convening admitted classes that more vigorously enliven our school in the spirit of our mission.
Curricular Reforms
Second, we can reform our curriculum. In the report, I described how past curricular reform efforts, most of which resulted in increased second- and third-year electives, have been rendered moot by the 1L curriculum’s resistance to change. To have a serious impact, we will need to build an integrated curriculum that avoids the “let them eat electives” escape valve.
In building that integrated curriculum, one has to grapple with an age-old debate among curricular reformers between those who say the curriculum can be more practical by supplementing the abstract case method with concrete practice opportunities, and those who say the curriculum can be more theoretical by supplementing the rootless case method with a historical and theoretical exploration of the meaning and purposes of the law.
These reform efforts are not mutually exclusive. Today, both efforts should be pursued — not as electives tacked on to a static framework, but rather as integrations into an enlivened first-year curriculum.
Two models are instructive here, both of which are derived from the world of health education.
Reform #5: Learn from Gary Bellow’s Clinical Institute model
In pursuing a more practical legal education, we have a lot to learn from Gary Bellow, who was a trailblazer for Harvard Law’s clinical programs. He liked to analogize clinical education to teaching hospitals. At teaching hospitals, he explained, there were clinical instructors, who would have their own cases, but also devote time to supervising and educating students in clinical cases. “Their instructor and practitioner roles mix,” he observed. That is where his original idea for clinical work at Harvard Law began:
“We believe that every student would benefit from practice-based instruction and that careful mentoring of course-focused student practice in teaching hospital type settings… most effectively allows students to grow and learn. Our experience has again and again confirmed these premises.”
Bellow was successful at expanding clinical education at Harvard Law. But he dreamed bigger than a voluntary clinical program for some students. Rather, as mentioned before, he envisioned an integrated “Legal Services Institute,” where courses would be taught on site at legal services offices and mix practice, social analysis, theory, and doctrine. He wanted clinical education at both the macro and micro levels.
His original effort at such an Institute, he recalled, “really started down this path of an integrated experience in which you do housing work and study housing policy; you do welfare work and you study welfare policy.” It was open to students from all law schools and required graduates to commit to a period of legal services employment. Unfortunately, it was shut down in 1982 due to cuts by the Reagan administration to the supplemental funding the federal government was providing to the Institute.
Edgar and Jean Cahn proposed a similar model to Bellow’s in D.C. Their Urban Law Institute began with a “boot camp” of intensive training in legal ethics, negotiation, and legal analysis in the neighborhood where students would be serving. Then year-round clinical work would begin, integrated with five months of normal first-year courses. School would be on a year-round basis and students would eventually rotate between three clinics.
Growing a clinic beyond a one-off elective, Cahn shows, allows it to supplement “rights-based clinical education” with “powers-based clinical education.” “Clinics of Rights,” Cahn explains, are about vindicating specific rights in court. “Clinics of Powers,” on the other hand, are about building clients’ and client communities’ power inside and outside of the justice system. When clinics are limited to being one class for a limited time, they often focus in on routine, individual cases that can help teach rights-based advocacy skills rather than systemic problems that can help teach powers-based tools of system change. To Cahn, both rights and powers are important, but it is the powers side that is too often ignored in clinical legal education. If clinical education was more integrated into the full three years of law school, the “Clinic of Powers” model would have more fertile soil in which to grow.
Even incorporating the clinical mindset into standard classes would be a step forward. For example, the standard case method could be expanded to invite students to not only think like the judge in a case, but also to think like the lawyer who brought the case in the first place. Incorporating discussion of the litigation strategies of effective public interest figures and organizations into first-year courses would make great strides in centering public interest lawyering in legal education.
All such educational models above have what Ralph Nader once described as the two qualities required of a legal education: being “empirically rooted and normatively fired up.”
Reform #6: Learn from The School of Public Justice model
In pursuing a more theoretical legal education, another analogy from the health education world is useful: the school of public health.
Until recently, there had been no conception of “public health.” The discipline was previously a patchwork of efforts created to address ad hoc public health challenges with no unifying institution or theory. It was not until 1872 that the American Public Health Association was founded. The first school of public health was not founded until 1918, after an influenza pandemic with millions of fatalities.
The justice system is in same state that the health system was in a century ago: a patchwork of local organizations to fight public justice challenges, with few centralized institutions or theories. Advocates over the past decades have called attention to a similar need for a concept of “public justice.” Former deputy cabinet secretaries Thomas Ehrlich and Jane Lakes Frank have argued that we can minimize “common legal problems of the public through aggregation.” Susan Kellock of the Equal Justice Foundation has called for a “wholesale approach to access-oriented reform.” Nader has called for a raising of lawyers’ visions beyond client advocacy and toward public problem-solving. Cahn put it best:
“Just as in health care, physicians are charged with increasing awareness of the ‘social determinants of health’, we, as stewards of the legal system need to develop a heightened awareness of the ‘social determinants of justice.’”
It is time to bring this concept into legal education and build a proverbial “School of Public Justice” within Harvard Law School. Just how schools of public health supplemented anatomy and genetics with the philosophy, sociology, politics, and economics of health, courses in a “School of Public Justice” framework would supplement, say, criminal law and civil procedure with broader questions about the law: what is its history, what are its competing theories, where should it go as a whole, and how do the social sciences enlighten our understandings of its problems and paths forward?
In the report, I compiled critiques of the curriculum offered by Guinier, Duncan Kennedy, Martha Minow, and Todd Rakoff. Many of their critiques would be addressed in a School of Public Justice model. The adversary frame for conflict would be supplemented with “deliberative, legislative, transactional and collaborative” approaches. The problem of “sharpening the mind in order to narrow it” would be avoided by valuing the “social, political and economic context” of law as the centerpieces, not the marginalia, of a legal education. “Legal imagination” could be fostered.
Boston University School of Law professor Khiara Bridges explained in a Harvard Law Record interview how such a model could be realized through a first-year “toolbox course”:
“In that course I would offer various ways of thinking about the law… I would offer theoretical frameworks for thinking critically… about the law. I imagine in this toolbox course you will be introduced to Critical Race Theory…. Legal Realism… Feminist Legal Theory … Queer Theory… Law and Economics… you would be introduced to all sorts of theoretical traditions so that you have tools… so that you can go back to your contracts course and think about offer and acceptance in a way that is not like just like you are receiving the information… I think it would be empowering for every student, not just the people who want to challenge… I remember being in my first year and knowing that I didn’t have the vocabulary to challenge anything that anybody said…and I was silent. I wanted to think differently and I wanted to challenge the result… but I just didn’t have to tools to do it.”
Another way of realizing a School of Public Justice model has been the effort by Harvard Law professor Jon Hanson and Jacob Lipton to develop a “systemic justice” curriculum. As they explain, systemic justice courses focus on the problems in the law and their causes. They avoid being trapped by standard legal categories, instead turning to social science, centering context-building, and supplementing a litigation-mindset with other “incentive-altering policies and institutions.” They train students to not just identify bad actors, but also build capacities in altering “the structures, systems, ideologies, and institutions that shape human behavior.”
And yet, despite their inspiring success at carving out space at Harvard Law for systemic thought, Hanson and Lipton’s reforms still remain stuck in the “let them eat electives” reform trap. They serve to inspire students who opt into them, but have yet to make a dent on the 1L curriculum. If it is to have a significant impact, nascent efforts at building a “School of Public Justice” model must be integrated into the first-year experience, and not just for those students randomly placed into Hanson’s first-year section, which is known for its public-interest focus.
A “School of Public Justice” mindset would not only serve to guide students — it would also inspire faculty to be more ambitious in their work advancing justice and societal well-being. There are a few professors at Harvard Law School who pursue large-scale civic projects: Carol Steiker’s decades-long effort to abolish the death penalty, Lawrence Lessig’s booster shot to the anti-corruption movement, and Charles Ogletree’s ambitious founding of the Charles Hamilton Houston Institute for Race and Justice come to mind. However, the Harvard Law faculty has yet to bloom into the vigorous national sentinel of the justice system that it has the potential to be. Seeing itself in this more ambitious and dutiful role would be a first step in realizing its civic potential.
Reform #7: Incorporate practice and theory into the first year curriculum
A revised 1L curriculum could incorporate both above models. One could imagine a new first-year curriculum split into thirds.
The first third would be the current curriculum of classical courses in doctrine. In these courses, the standard case method would be supplemented with context that historicizes, presents present-day challenges, and explores future alternatives in the fields of tort, contract and criminal law.
The next would take lessons from the Clinical Institute model. It would bring 1Ls into contact with clients and pair their experiences with courses on the public policy realities that they are witnessing first-hand.
A final third would take lessons from the School of Public Justice model. It would merge philosophy, theory, economics, psychology, sociology, and problem-solving skills, training students to not just think like attorneys for future clients, but rather like lawyers, devoted to the justice system as a whole.
This, of course, would be a major change that would require experimentation and tinkering. One model to look toward as a first step would be Georgetown Law’s “Curriculum B” model. At Georgetown, four sections are instructed under “Curriculum A,” which resembles a traditional first-year curriculum. However, students can opt-in to one section instructed under Curriculum “B,” which offers a justice-minded, innovative, and integrated approach to legal education. Instead of classic courses, first-year students taking “Curriculum B” participate in such innovative, contextualized courses as: Bargain, Exchange, and Liability; Democracy and Coercion; Government Processes; a Legal Justice seminar; Legal Process and Society; and Property in Time. Such a model, which has been successfully in effect since 1992, has allowed the school to experiment with justice-minded reforms without changing their curriculum wholesale.
Career system reforms
Third, we can reform our career system. In the report I described how the career-building system sets corporate interest law as the default option in students’ minds, nudging students away from public interest careers. To change, we need to end this default option-setting. To achieve this, there is both a practical and transformational reform opportunity.
Reform #8: Fund and promote career offices around the 51% truce
Students and administrators often decry the “public interest”/“corporate interest” divide. The public interest students feel that they are marginalized at the school. The corporate interest students feel that the public interest students are judging them. A Bicentennial Challenge — with a goal of 51 percent of Harvard Law graduates pursuing public interest work — could help bring a truce to the divide. We could build an understanding that some Harvard Law students would go into corporate interest law and should be aided by the school in their pursuit, while coupling that with an understanding that the institution, as a whole, aims for a majority of its students to pursue public interest work.
What reforms would come from such an understanding? First, there should be a concerted effort to avoid setting corporate interest law as a default option in the school culture. Professors should be encouraged to cite all legal professions, not just corporate interest professions, in their class hypotheticals. Career office names should be changed so as to avoid neutrality being associated with corporate careerism. First-year students who are defaulting to corporate interest law careers should be affirmatively encouraged to “try out” a public interest path.
Second, the Office of Public Interest Advising should be aspirationally funded. Rather than adjusting funding to meet current demand, it should adjust funding to meet the Bicentennial Challenge of a majority of students pursuing public interest careers. We should fund our career offices in line with our mission statement. The career office that explicitly aims to help students “advance justice and the well-being of society” should thus be funded more.
Finally, the dominance of the Early Interview Program should end. There are two ways this could be achieved. First, it could be eliminated altogether. There is no rule that a school must make it easier for its students to pursue corporate interest legal work: corporate interest firm recruiters can run their own recruitment fairs.
If the school chooses to continue facilitating this process, the date of EIP could be moved back from the summer before 2L year to the spring of 2L year to ensure that students have more time to think about their career trajectory before committing to corporate interest law.
At the very least, the marketing for EIP should avoid the appearance of institutional endorsement from the school: students should not be “highly encouraged” to attend EIP info sessions any more than they are to attend public interest career events; students not participating in EIP should not be pursued any more than students not participating in civic-minded summer jobs.
Reform #9: Supplement career-building with vocation-building
A more transformational reform would be to empower Harvard Law’s career offices to take an affirmative role in re-orienting the student body’s career-building efforts into vocation-building efforts. Instead of segmenting the academic, the professional, and the personal, — as is the case today — the career office should attempt to re-integrate them, drawing professors, curricula, employers, alumni, and administrators into the process of helping students form vocations.
Angela Duckworth, the nation’s foremost expert on grit, instructs us to trade “What do I want to be when I grow up?” for “In what way do I wish the world were different?” Those who have service-minded ambitions rather than lifestyle ambitions have career passions that last longer. They are more at ease near the end of their careers. They better avoid the psychodramas of competition and ego.
At Harvard Law School, the career offices can take the lead in carving out space for students to explore these vocational ideas: of assessing what is important and what is not, of making commitments to things bigger than ourselves, and of foregoing options for the sake of doing what it takes to advance justice.
The career offices could establish routine, intimate, and mandatory events where students share their vocations or where alumni come in to discuss hard choices through a vocational lens. One simple way to take the lead is to encourage students to make a commitment to a vocation — like a cause, a community, or an institution — during their time in law school. Simply writing down what one believes can have powerful effects.
If such activities seem soft or goofy, we should ask ourselves why they are not too soft for the efficiency obsessives at Harvard Business School. Across the river, classes on leadership and purpose development are routine, and one of the most popular HBS programs involves sharing your life story and future dreams with your classmates.
Under a vocation-building model, a public interest career would not be considered “a sacrifice” of a lucrative, “natural” career option. Moral arguments that supplement student self interest with other values would be welcomed into the conversation. Hear, for example, the argument of the Class of 2017’s Simmi Kaur at a recent student-driven vocation-building event:
“A public interest job is not a sacrifice. You are not entitled to power that oppresses others. You are not entitled to wealth that further entrenches poverty and inequality. None of us are entitled to that and neither are our families, no matter how much we love them.”
Or take the direct messages of iconic civil rights lawyer Marian Wright Edelman regarding our public duties as citizens:
“Service is the rent we pay for being. It is the very purpose of life, and not something you do in your spare time.”
“Education is for improving the lives of others and for leaving your community and world better than you found it.”
“Never work just for money or for power. They won’t save your soul or help you sleep at night.”
Sentiments like Kaur’s and Edelman’s are rarely heard at Harvard Law today, but it does not have to be that way.
At the very least, we can better inform students on the data regarding happiness and the legal profession. As Lawrence S. Krieger and Kennon M. Sheldon show in their illuminating George Washington Law Review article, “What Makes Lawyers Happy?: A Data Driven Prescription to Redefine Professional Success,” attorney well-being is much more correlated with what they call “internal factors,” like meaningful work and autonomy, than with “external factors,” like income and status. As a result, public interest attorneys, despite having much lower pay, were found to be much happier than corporate interest attorneys at large firms. If we care about fully informing students about the legal profession, we cannot hide from these realities.
When asked by Humans of New York about the time he felt the most broken, Barack Obama explained that any time he was worried about himself — anytime he was asking “Am I succeeding? Am I in the right position? Am I being appreciated?” — he snapped out of it by reminding himself that “it’s about the work”: “If you can keep it about the work, you’ll always have a path… there’s always something to be done.”
Vocation-building is about discovering what “The Work” is for ourselves. It is about practicing the virtue of snapping out of self-focused questions so that we can return, over and over again, to the work that needs to be done. Here, we often ask ourselves and each other if we are succeeding, if we are in the right position, and if we are being appreciated. In the cutthroat era of Harvard Law documented in Turow’s One L, we often answered “No.” Today, in the pleasant era ushered in by Kagan’s deanship, we often answer “Yes.” But perhaps we are asking and answering the wrong questions. Our career offices should help us ask the right ones.
Cost structure reforms
Finally, we need to reform the cost structure of law school. Again, there are both near-term and transformational reforms.
Reform #10: Limit the real and psychological debt burden of students aiming to pursue public interest work
Efforts should be made to change the psychology of tuition debt and loan forgiveness. As mentioned earlier, despite the Low Income Protection Plan ensuring that few graduates need to pursue corporate interest legal work to repay law school loans, many students continue to believe in that false necessity. This misconception is likely due to the psychology of tuition debt: when tuition debt is taken on during law school, students are still psychologically inhibited by it, even if they have support to pay it off later. It helps set corporate interest work as the default option for loan repayment, as the high salaries of firm work are seen as the simple path to loan repayment while LIPP is seen as something one must “opt in” to.
It is time to re-open discussions around changing the structure and timeline of tuition debt and loan forgiveness. As mentioned above, the default option could be switched to public interest career-building if: (1) upon admission, you commit to a public-interest career in exchange for attending tuition-free; (2) if you follow through, then you never hold any tuition debt; and (3) at any time, you can file to opt out of your commitment, at which point the school will transfer tuition debt to you, pro-rated to the number of years you worked in public interest, lower-income employment. The final financing could be roughly the same, but the default professional options would be switched and all the built-in biases towards defaults would benefit civic-minded career-building. Students would view opting out of their free tuition as a loss to be avoided and inertia would keep students on the public interest career path.
The details would have to be experimented with, as they were during the Public Service Initiative experiment in 2008 (which I documented in the report). Also, other factors might have to be put on the table to make such a system work, including raising tuition for students pursuing corporate interest legal careers and lobbying for tax policies that enable such a system to work. However, we cannot cite the complexities as a reason to ignore the standing challenge: to figure out a way to supplement LIPP, which limits actual student debt for students pursuing public interest, with systems that could limit the psychological debt aversion that students still have despite LIPP. At the very least, we should double down on efforts to explain to recently admitted students that LIPP will significantly limit tuition debt for graduates who pursue public interest work.
Again, lessons could be learned from the world of medical education. Peter B. Bach, director of the Center for Health Policy and Outcomes at Memorial Sloan-Kettering Cancer Center, and Robert Kocher, special assistant to President Obama on health and economic policy from 2009 to 2010, have proposed that, in an effort to increase primary care doctors, medical schools could be made free for $2.5 billion annually by offsetting general education costs with charges for specialty training. A similar model, applied to legal education, could be to offset the cost of “primary care” legal education with charges for specialty corporate interest legal training.
Again, any change of this sort requires experimentation, insight from the financial services office, and a larger conversation. However we achieve it, though, it is time to set an institutional goal of having those 51 percent of students who we aim to have pursuing public interest legal work attend Harvard Law School tuition-free.
Reform #11: Lobby aggressively for civil legal aid funding
Beyond adjusting our own contribution to public interest employment economics, the law school could also take a more active role in lobbying state legislatures and Congress to better fund public interest employment. Anything that increases the number of public interest law jobs available to recent graduates and narrows the pay gap between public interest and corporate interest legal work will help to increase the number of Harvard Law graduates dedicated to advancing the legal interests of the public after graduation.
It was Harvard Law graduate Reginald Heber Smith who first proposed legal aid in his groundbreaking work Justice and the Poor. His proposal? Levy a tax on all legal profit to pay for legal aid. “Without equal access to the law,” he wrote, “the system not only robs the poor of their only protection, but it places in the hands of their oppressors the most powerful and ruthless weapon ever invented.” Imagine if the Harvard community gave as rousing a call today as he did the American Bar Association back in 1920:
“If we were to take command of the moral forces which are now stirring throughout the nation, we shall find public opinion ready to fight staunchly at our side. Let us assume that leadership by declaring here and now, that henceforth within the field of law, the mighty power of the organized American Bar stands pledged to champion the rights of the poor, the weak and defenseless.”
In an incisive 2014 New Republic essay, Noam Scheiber makes a modern-day case for nationalized legal care that Smith would be proud of. Most Americans, Schreiber explains, have improperly come to see legal help as a luxury good: something, like a Gucci bag, that you can have if you earn enough money. Even more, he argues that those who do fight for increased legal aid improperly argue that legal aid is like a social entitlement or positive right: something, like healthcare and education, that progressives find to be an essential material service.
But if legal aid is not a luxury good or an essential material service, what is it? Schreiber believes the proper analogy is voting: something that should be given to everyone equally in a democracy; something that is a zero-sum civic good, where more given to one person means less given to another. He explains:
“If Bill Gates got three votes for every one I did, it wouldn’t just empower him. It would disempower me. Of course, many will say that we tolerate disparities of this sort all the time. Gates doesn’t personally get more votes than I do, but he can drown out anyone he cares to by spending his money on issue advertising or political contributions. At which point, it’s worth noting that most liberals think this is outrageous. They want to stop it.
In fact, because legal rights arguably trump political rights, equalizing access to lawyers is potentially far more important than campaign-finance restrictions. Political rights, like voting and donating to politicians, are about who we hire to make and enforce the rules we live by. Legal rights are the rules themselves. You could lose all political rights and still, in principle, live a decent, contented life as long as you had some basic legal rights (though I don’t recommend it). If you lost your legal rights — if, say, you could be thrown in jail at any moment for no reason, or if fellow citizens could beat you and steal from you with impunity — it would be little comfort that you could vote in the upcoming midterms.”
There have also been less comprehensive pushes for increased national legal aid. There has been a long-standing “Civil Gideon” movement to extend the Gideon v. Wainwright guarantee to civil cases as well. The movement’s main initiatives are, as summarized by Vladeck, to: (1) restore and expand funding to the Legal Services Corporation; (2) lift restrictions on the case LSC lawyers may bring, including class actions; (3) end the lawyer monopoly on the provision of routine legal services; and (4) implement mandatory pro bono programs. Vladeck makes another comparison to the health system: “Hospitals must accept indigent patients; why not law firms?”
There have also been efforts in Congress. Former Boston housing court legal aid volunteer and current Congressman Joe Kennedy III of Massachusetts, as well as Republican ex-prosecutor Congresswoman Susan Brooks of Indiana, have founded the Congressional Access to Civil Legal Services Caucus. The caucus arranges briefings to educate members and their staff on the importance of civil legal aid. Brooks has stated that the mission of the caucus is to make sure “that when civil disputes are brought to our judicial system, those involved, regardless of financial means, have access to appropriate legal resources and representation.”
It is time for Harvard Law — administrators, professors and students — to take a much more muscular stance towards civil legal aid funding. Harvard has not shied away from national issues before. In 1979, the Harvard Corporation denounced the South African apartheid system as “repugnant and inhumane.” Harvard President Drew Faust has expressed Harvard’s support for the Development, Relief, and Education for Alien Minors (DREAM) Act and lobbied the Massachusetts congressional delegation to resist cuts to the Deferred Action for Childhood Arrival (DACA) program. We must speak out again — not just through the occasional op-ed, but through aggressive community-wide lobbying — in the fight for adequate funding to ensure equal justice is extended to all.
Reform #12: Lead a network of needs-based residency programs
In the medical education system, most students must complete a residency period before being licensed to practice medicine. Via a national matching program, students are placed in hospitals across the country to serve medical needs under the guidance of an attending physician. Residency programs are not viewed as vestigial add-ons to medical school. Rather, they are an integral part of medical education and the medical system as a whole. Also, they are consciously planned on a national level to support entry into practice fields and geographic areas where health needs are greatest.
In this bicentennial era, we could take up the ambitious project of starting the process of mirroring the medical residency model in the legal education system. We could, together, set course toward a vision where law students, upon graduating from law school, are matched to legal residency programs around the country to serve, for a year or two, the most pressing legal needs of the American public.
Such a vision will only be achieved with coordination between federal funding sources, the legal community as a whole, and the entire legal education system. Harvard Law School — with its large endowment, wealthy alumni, and national clout — is best equipped to lead the way.
There are plenty of inspiring precedents to draw from as we design the first steps in the direction of this vision.
The first is Harvard Law’s own Public Service Venture Fund, which awards over a million dollars in grants each year to help Harvard Law graduates pursue public service work right out of law school. Expanding the fund to a size that could support a majority of students pursuing public service work after graduation would be an a worthwhile aspiration in our third century.
Another precedent is the Reginald Heber Smith Community Lawyer Fellowship, which was hosted by the University of Pennsylvania Law School and lasted from 1967 through 1985. The program was inspired by OEO director of legal services Earl Johnson’s goal of increasing the number of ambitious law graduates participating in OEO-funded legal services.
The first class of “Reggies,” as fellowship recipients would come to be called, consisted of fifty recently-graduated attorneys. They received five weeks of intensive, specialized summer training in law reform issues and were sent around the country for one- or two-year tours of duty at 39 Legal Services agencies. They returned to Philadelphia often to compare notes and build camaraderie. By 1969, the program had grown to 250 attorneys. 85 percent of Reggies stayed on doing legal services work after their fellowship term was complete.
Due to federal budget cuts, the program shut down in 1985. But we still have a lot learn from the Reggies’ experience. Mark Reinhardt, a Reggie from 1971 to 1973, talks about how learning first-hand what it felt like to be “on the side of the good guys” made him want to do public interest legal work for the rest of his life. Michael Allen, a 1980s Reggie, said the program taught him and his fellow Reggies “to look holistically at a poor person’s needs rather than responding just to the crisis that brought them to our office.” Leah Hill, a Reggie placed at Harlem Legal Services, explains what that “holistic” view means:
“Because I was a Reggie, my idea for legal representation was much more holistic, because problems don’t come so neatly packaged as just landlord/tenant. Sometimes people have other kinds of legal problems they’re facing… So being aware of that and also trying to find resources…, I began to develop a sense of holistic representation while I was a Reggie. It was my very first job and already I was thinking in terms of the big picture.”
Allen explains that the magic of the Reggies was its focus on moving beyond funding job placement and toward building a mission-driven network of mentorship and fellowship:
“A new Reggie-like program [should be one] that builds camaraderie, that connects people with a sense of mission instead of ‘oh I got money to do a job at some far-flung place’… If the idea is not simply to give some people jobs for a year, but to equip them with the skills to really be poverty or disability or civil rights lawyers…, they ought to be put in places where people care deeply about mentoring and are very affirmative about raising a new generation of public interest advocates, rather than simply making sure these one hundred people get represented in a family law hearing this month…”
If a national residency program were established, it would need to be paired with a network of local institutions ready to receive placements. On this front, an interesting precedent comes from Edgar and Jean Cahn’s writings on the “neighborhood law firm” in their famous “The War on Poverty: A Civilian Perspective” article. Their idea was to establish law firms in underserved neighborhoods across the country. The firms would be tasked with the mission of representing “persons and interests in the community with an eye towards making public officials, private service agencies, and local business interests more responsive to the needs and grievances of the neighborhoods.” They would be connected to nearby universities and would, like any other law firm, have staffs of lawyers, research assistants, and investigators to support their mission.
At their 35th reunion, the Harvard Law School Class of 1958 created The Appleseed Centers for Law and Justice in a similar spirit to Cahn’s neighborhood law firm. The 17 Appleseed centers — spread out from Hawaii to Mexico City, from Louisiana to D.C. — aim to work systematically, challenging, in the words of Appleseed’s founding member Ralph Nader, “the practices, conditions and regulations that underlie our social problems.” They work with “community groups to identify areas of concern and develop solutions” through “a variety of working tools beyond litigation.” Each local center functions independently, but all are linked together through a national organization that supports them through training and technical assistance.
Appleseed’s impact is inspiring. Texas Appleseed’s advocacy for the de-criminalization of truancy, for specialized training of school-based police officers, and against out-of-school suspensions for minor incidents has chipped away at the Texas school-to-prison pipeline. Nebraska Appleseed led the way on restoring prenatal care coverage to low-income children in Nebraska, regardless of their mother’s immigration status. D.C. Appleseed spearheaded an effort to challenge BlueCross BlueShield’s excessive cash reserve holdings. In 2014, D.C. insurance regulators ordered the insurer to spend $56 million on community health needs in the District.
If one graduating class of Harvard Law School was able to build an international institution that has spread to seventeen cities in only 25 years, it is not naïve to think that all Harvard Law alumni, in concert with university endowment funding, could build a comprehensive residency network for graduating law students. What a wonderful bicentennial moonshot such a vision could be!
Living up to our public interest mission
The most serious crisis in American law today is that the vast public’s legal needs go unmet and legal interests go unadvanced. Millions of Americans are excluded from legal power by their inability to afford a personal lawyer, the lack of career public-minded lawyers representing their interests, and the procedural coup by corporate interests to limit the use of tort and contract law to advance public interests. Georgetown’s David C. Vladeck summarized the crisis well:
For most Americans legal services are generally unavailable, not by reason of their poverty—most of these people are not poor—but simply because they are not wealthy. (I call these people “the un-rich”). Indeed, the difficulty of finding affordable legal services for most Americans is so profound that they cannot afford anything but the most routine legal services (e.g., the preparation of a will), and the poor, unless they are the lucky ones who win the legal services lottery, are simply denied access to the justice system altogether.
If the rule of law is to be preserved in this country, the legal system must be reformed to extend equal access to justice to every citizen, not just the wealthy few. We do not have much time for this reform: the more that people are excluded from legal power, the less they believe in the legal system and the more susceptible they become to handing over our precious inheritance—the aspiration for equal justice under law—to despots with more immediately satisfying quick fixes than what former President, and Harvard Law alumnus, Barack Obama calls “the hard and frustrating but necessary work of self-government.”
But the legal profession has been like the proverbial frog in the boiling water: unresponsive, because the threat has grown so gradually. Our only hope is for a watchdog to wake up our profession. Our nation’s law schools—the legal institutions most free from the pursuit of money and state power—must be that watchdog, the conscience of our profession.
Harvard Law School has, at various times throughout its two-hundred-year history, taken this responsibility as the watchdog of the law very seriously. It has baked its desire to lead in this regard right into its mission statement: “To educate leaders who contribute to the advancement of justice and the well-being of society.” At its finest moments, it has produced students and staff to whom the broad public could honestly say: “Harvard Law School is extending power to me; Harvard Law School is giving me more faith in the law; Harvard Law School is relevant to me.” And when Harvard Law has taken up this responsibility, it has influenced the whole legal profession, using its large student
body, powerful alumni base, representation on federal courts and in government, and cultural heft to make change. When activated, it proves to be an effective fulcrum through
which to reform the justice system.
However, when it comes to the legal issue most relevant to the lived experience of most Americans today—the mass exclusion from legal power—we have failed to lead. Instead of leading, we at Harvard Law School have simply mirrored the profession’s crisis, producing graduating class after graduating class who, instead of reforming our unequal legal system, quietly files into it. Despite the efforts of a few lone voices for reform and a minority of graduates, most of the educational resources poured into Harvard Law students during their three years in Cambridge still end up being deployed to advance the interests of a wealthy and powerful few rather than to open up legal power to more people in more ways.
But it does not have to be this way. If Dean Manning were to decide to take this crisis seriously — and if he were to be backed by a dedicated group of students, staff and faculty ready to join him in his effort — Harvard Law could undergo a civic revival. All it would take is a choice, a commitment, and a consistent, piece-by-piece, effort to better fulfill our public interest mission. A lot can be accomplished in one deanship — and there is no better time to start then now, when the American people are pining for a civic institution worthy of their trust again. As a community, we have it within us to do what is right. Let’s get to work.