Four years ago, when I was at Harvard Law School, I published a report—Our Bicentennial Crisis—on the state of the law school’s public interest mission. The report came out of a tension I was feeling during my time at school—one that many of you probably feel too. As we were leading up to the law school’s Bicentennial, everyone was talking about how amazing Harvard Law is. “We have Supreme Court justices, senators, and famous alumni coming back here to party; look at all we’ve done in our 200 years; look how many brilliant things have happened here.”
But as the administration was ramping up the celebration, public interest law students were sounding the alarm: of a 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 are 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.” (This is the formal Harvard Law mission statement—or at least it was until I started pointing it out as a law student, after which it was scrubbed from HLS’s website.)
I did not, and still don’t, buy the administration’s responses to this tension. When I was a 1L, I brought up my concerns about HLS’s corporate-interest focus with a high-up administrator and was told: “You’ll understand why everything is the way it is when you’re a 3L.” Maybe I missed something, but I never got the memo. Instead of becoming cynical, I tried to articulate the problem in Our Bicentennial Crisis—and consider what we could do about it.
The book aimed to document: 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 school community tends to give for its failure to address it; third, what accounts for this civic deficit; and fourth, twelve reforms that could help us better live up to our mission.
You can read about my findings in full in Our Bicentennial Crisis (Available on Amazon and for free at: HLSReport.org), but I want to summarize them for you here.
Judge Learned Hand, Class of 1896, said: “If we are to keep our democracy, there must be one commandment: Thou Shalt Not Ration Justice.” The report begins with an exploration of the various ways our legal system rations justice.
In criminal law, we are rationing justice. Since 1995, real spending on indigent defense has fallen while felony cases have risen. About 95% of cases are settled through plea bargains, without a trial by jury. For many Americans, the experience of their criminal defense is “meet ‘em, greet ‘em, and plead ‘em.” And this of course has contributed to the enormous spike in our prison population during our lifetimes.
In civil law, we are rationing justice. Four-fifths of the civil legal needs of poor Americans go unmet. Local legal aid offices say “two-thirds of those who walk through their doors aren’t getting help.” This means mothers evicted from their homes; domestic violence victims not getting restraining orders; elder abuse going unchecked; and veterans not receiving their rightful benefits. While this is happening, other nations are outspending us ten to one per capita on civil legal aid. And all the while, the top hundred most profitable firms are making $28 billion in profits while only $1-2 billion worth of lawyers’ time is spent annually on civil legal aid for the poor.
And in political life, we are rationing democracy. Public interest lobbyists are outspent by corporate interest lobbyists 34 to 1. Tort law, antitrust law, and consumer protections are being crippled by corporate interest lawyers and lobbyists. Corporate interest foundations have paid tens of millions of dollars to the legal academy—including $18 million to HLS from the Olin Foundation—to bend the law in a corporatist direction.
In this time of crisis, HLS is failing as a community and as an institution to use its resources to respond. For every one student going forth from HLS to work in organizations dedicated to helping the bottom 90% of the income bracket, four to five students go forth from HLS to work in organizations dedicated to helping the most wealthy and powerful people and organizations in America.
(A technical note: In my study of HLS graduates, I defined ‘public interest’ work as governmental, education, direct service, and advocacy work, as opposed to in-house legal work in corporations or corporate interest legal firm work. For a more nuanced look at the history of the definition of “public interest” legal work, see the full report on HLSreport.org.)
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This is because the major thrust of the Harvard Law experience is in this corporate interest direction.
We have a culture that fails to spark public-spiritedness. The law is taught as a game — and “geniuses” are praised regardless of their civic commitment. In place of moral values, we’re ruled by a cult of smart.
Our first year curriculum is stuck in a century-old mold that exists outside of time. It fails to teach the history of the law—spending way too much time wondering “why must the law be this way?” and too little asking “how did it end up this way?” Nor do we learn the future potential of the law — how things could be or how the law could be transformed. Most importantly, it doesn’t teach the present of the law: the reality on the ground in our legal system, from our prison system to our administrative agencies to the corporate interest firms.
We have a career-building system that nudges students toward corporate interest 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.
When I was at Harvard Law, we even had a mandatory field trip to a corporate interest firm. The school career office even provided materials (removed from the school’s website after I reported on them) that encouraged 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 connections for higher corporate salaries.
Think about what this means to Harvard Law’s relevance to the country. If you’re a tenant waiting in line for help in an overcrowded legal aid office and you learn that 80 percent of students receiving the best education in the country spend their time advancing the interests of the wealthy and the powerful, the ultimate landlords—well, what would you think? If you’re a person in a rural area pleading guilty to a crime you did not commit after a 20-minute meeting with your public defender and you learn that hardly any Harvard Law students go on to work in public defense after school, what would you think? Does it matter to a refugee that we produced a bunch of Supreme Court justices if those justices principally vote to exclude them—and HLS grads refuse to fight back? If you’re a governor looking for someone to staff a state agency, do you care about Harvard’s placement rate at New York corporate interest firms? Seen through the eyes of America, we risk irrelevance—at best. Contempt is probably likelier.
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When I raised these critiques four years ago, there were a lot of excuses—what some might call “work avoidance mechanisms” (to use Ron Heifetz’s great phrase)—thrown up in defense. Most of these came from the administration. What I try to do in the report is systematically examine each of these excuses. It turns out that, for the vast majority of cases, they don’t hold water.
The first excuse is usually that “pro bono work and charitable giving blurs the divide” between public interest and corporate interest work. When you run the numbers, you find that lawyers at major corporate firms give less than eight minutes per day to pro bono work. Only 18 of the nation’s hundred biggest corporate interest firms meet the fifty-pro-bono-hours-per-year, per-attorney challenge. (Yes, that’s fifty per year.) Our own career services office states that “firms like to emphasize their commitment to pro bono,” but in fact “are increasingly mindful of becoming more like a business where billable hours and profitability reign supreme.”
And how about the things law firms can’t do because they would conflict with their actual purpose: Advocating for their corporate-interest clients? When I was at school, I attended 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.”
Charitable giving is a similar story. The most giving law firms only give about one-tenth of one percent of their revenue to access to justice efforts. At the time I wrote the report, total revenue for the Top 200 firms was $96.3 billion. Total funding for all civil legal aid for low-income Americans was $1.4 billion. Total donations by all lawyers and law firms to civil legal aid was $95.8 million (with an “m”).
There’s also the “everybody deserves a lawyer” excuse. Sure, everybody deserves a lawyer. But let’s look at who is getting lawyers in this system. 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 and people 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. 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, shouldn’t HLS work to encourage the lawyers it trains to go where people are underserved?
Another excuse is that students might be going into corporate interest work now, but most will return to public interest work later. In fact, less than one in ten Harvard Law graduates who are working at large firms three years after graduation are working in public interest organizations twelve years after graduation.
Let me put it bluntly to today’s 1Ls: If your class is no different than any other class, then about 400 of you are right now interested in public-interest careers. If your class is the same as any other class, we can expect about only about 100 of you will actually pursue that interest. Among those 300 of you who go into corporate interest work, only about 15 will have switched over to public-interest work twelve years after graduation.
When we get to this point in the conversation, some people like to say, “Well, you might be right, but this involves factors beyond Harvard Law’s control.” But if that’s the case, why is Harvard losing out to other schools in terms of public interest careers in nonprofits, government and education? Law schools at Yale, Georgetown, and Northeastern all outperform Harvard on public-interest work after graduation. CUNY Law trounces us.
A final excuse is usually, “fine, but at least Harvard Law is a path to the upper class for students — it’s a path to the American dream.” You might also hear this phrased as: “There are students here who cannot afford to go into public-interest work.” This is, for all but a small percentage of HLS students, intended to obfuscate. Available data in the mid-2010s showed that the majority of students at Harvard Law School are from families at the top of the income bracket. Available data also indicated that about three out of every four 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 came 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.
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I haven’t yet mentioned the worst excuse: that there’s nothing we can do; that it’s not worth fighting.
You don’t even need to look beyond Harvard Law’s own alumni to combat this excuse. There’s always been two Harvards. There’s the Harvard that Upton Sinclair said was a study in “class ignorance, class fear, and class repression,” and the Harvard that produced Reginald Heber Smith who created the American concept of legal aid — not to mention Charles Hamilton Houston, “the man who killed Jim Crow.”
There’s the Harvard that abolitionist Wendell Phillips said was controlled by businessmen—and dishonest about its commitment to abolition. And there’s the Harvard that graduated Phillips, himself—a man who was called “Abolition’s golden trumpet” for his tireless work joining anti-slavery societies, supporting anti-slavery boycotts, penning anti-slavery jeremiads, assisting fugitives from slavery, demanding the World Anti-Slavery Convention have women delegates, and arranging public forums to educate Americans on the harm of “Indian Removal” policies.
There’s the Harvard that during the Civil Rights Movement produced these reports in the Harvard Law Record:
“For the most part [3Ls] who have jobs in southern cities will be doing corporate, tax and business work. Although a significant number expressed interest in criminal and civil rights cases, none said they would seek them, particularly in the first few years of practice.”
“A higher, but not high fraction of first- and second-year students showed interest in civil rights work, but only one expected to devote his professional career to it.”
“One [3L] from the Deep South said he would consider civil rights work ‘if there were any hope of doing any good. It takes a lot of guts and idealism to go back and work without a chance of success.’”
And there’s the Harvard Law where one student in the Class of 1964, Elizabeth Holtzman, had the guts to spearhead the Civil Rights Research Council at Harvard Law; serve in Albany, Georgia for civil rights groups during her summers; and spend her time at HLS getting the word out about what was happening in the South and diverting some of Harvard Law’s resources to better support the cause.
There’s the Harvard Law of the 2000s that hired two professors soon after they wrote an apologia for state killing — and the Harvard Law that admitted Gina Clayton, Class of 2010, who founded the Essie Justice Group to harness the collective power of women with incarcerated loved ones to fight mass incarceration.
There’s the Harvard Law I talk about in Our Bicentennial Crisis and today, and there’s the Harvard Law that produced the creators of the People’s Parity Project, fighting forced arbitration and other legal injustices across the country.
We have a choice of what version of Harvard Law we want to embody in our lives. Dorothy Day once said that “the biggest mistake sometimes is to play things very safe in this life and end up being moral failures.” Many of us came to law school because we have a part of us that plays it safe—we have a part of us that is risk-averse about our careers. That’s okay. But with crises like the ones we face today, there are bigger risks to consider. Let’s get to work.