BY
Congratulations, Professor Kagan, on your ascension to the High Citadel. Following the great quantitative expansion of Harvard Law School’s endowment, facilities and programs under Dean Clark, you have the challenge of reorienting the Law School toward more civic purposes to balance better the overwhelming, historical uses of the institution in the service of commercial practice. That, at least, is the gist of what seemed to be your comments on the occasion of your selection. I wish to make some suggestions:
HLS has been the site of a model of legal education that prepared its students for counseling and innovating the commercial framework of our political economy. Of course! That is where most of the jobs were available, especially the more lucrative positions. The corporate law firm was seen by the law school’s culture as the apex of ambition.
Upon the New Deal under FDR, some graduates began to see that government service was an attractive and challenging option. But even during that period and the later tumult of the Sixties and early Seventies, most HLS graduates went into business practice or, to a much lesser extent, taught the pertinent courses at numerous law schools. With every passing decade, Harvard Law, its students, faculty and administrators, were exposed to more reasons to lose their innocence over teaching and readying thousands of students for such a pronounced skewering of lawyerly deployment in our society.
While there were notable faculty exceptions to obtuseness and while the number of clinical courses has risen sharply, there is still lacking a public philosophy, in contrast to a corporate philosophy, as another way to answer a question that Robert Hutchins put to our class in 1956 at Austin Hall. At his lecture, the former very young dean of Yale Law School and President of the University of Chicago asked, “What is the purpose of the Harvard Law School?”
I recall snickers, puzzlement and defiance among those students and few professors coming out of the hall after the lecture. What an un-law school-like question appeared to be their collective shrug. Yet whether admitted or not, law schools develop philosophical routines that reflect operational priorities which in turn reflect rather than expand beyond the mirror images of the job market. A book we sponsored on HLS and its extraordinary replicative model at other law schools called High Citadel (1978) by HLS graduate Joel Seligman, who is now Dean of Washington University Law School, was similarly shrugged off.
Now you have the grandest of opportunities. More than your predecessors, you have experience in observing how raw power distorts, diminishes or disregards the law. You have seen corporate lobbyists in Washington try to weaken and codify downward the civil justice system by PAC-greased legislators. You are aware of the great unmet demands for justice – civil and criminal – by the majority of the American people for whom the legal system and its price are forbiddingly off-limits. More recently, you have seen how vulnerable are our civil liberties and how restrained, if not cowed, have been the leaders of our profession in defending them.
In your acceptance remarks, you suggested that HLS “work to … ensure that our educational programs are the best they can be, enhance our sense of community … and strengthen ties to the profession, including through the promotion of public service.” I read these words to mean going beyond sensitizing students to the array of needs for law and justice by so many people and children in our country that are partly exhibited in the clinical courses.
Just as rights require remedies and remedies require facilities, all of the aforementioned require the expansion or creation of institutions to serve the unrepresented and the collectively anonymous necessities for a just society. Apart from the job market, the numerous course offerings in the catalogue reflect the intellectual interests of the professors. There is a course on Sports and the Law – which is important – but there appears to be no courses on corporate crime (not white collar crime), notwithstanding the corporate crime wave that has drained trillions of dollars from workers, their jobs and pensions as well as often bankrupted their companies in the past three years alone (www.corporatecrimereporter.com).
Clark is receiving much praise these days. He was very good for the conventional corporate purposes of the Law School, however unspoken. But he never seemed to understand what could be the structural civic contributions of his nonprofit, tax-exempt institution to the society at large.
I am not just referring to broadening the horizons of the students to other careers, as 1L George Farah has pointed out regarding the representation of individuals as plaintiffs, or even to having the curriculum represent the rights of those locked out from using the legal system, or, as in the exploited ghettos, defending themselves from the misuse of the law as an instrument of oppression. What I do wish to note briefly is the Law School’s great potential to facilitate, through thinking and doing, actual career opportunities and institutions that translate into delivering justice, which Daniel Webster once called “the great work of mankind on Earth.”
When our marvelous alumni class initiators (HLS ’58) launched the Appleseed Foundation about a decade ago to create Centers for Law and Justice in state after state that work on systemic change (www.appleseed.net), Clark and his associates were cool and at times actively unhelpful toward our efforts to speak at specific alumni reunions and alumni associations. It is long overdue to start asking the HLS administration for some reciprocity – not just to ask the alumni for money but to give something back to alumni who desire to work with the Law School and elaborate the law as if people mattered. Just the way HLS has for decades researched, taught and promoted the law and its frameworks as if corporations matter. The two really do have distinctive needs.
You said, “I can’t wait to start.” Well, there are more than a few alumni I know who can’t wait to see you get started. We have waited a long time for a new birth of justice from scholars, students and alumni that will radiate through our land.
– Ralph Nader ’58