Hello all — glad to be back at HLS! About two years ago, I published a report — Our Bicentennial Crisis — that speaks to many of the themes Ralph is going to talk about today.
The report came out of a tension I was feeling during my time at Harvard Law. I bet it’s a tension many of you probably feel. As we were leading up to the Bicentennial, everyone was talking about how amazing HLS is — we have Supreme Court justices, senators, famous alumni coming back to party; look at all we’ve done in our two hundred years; look how many brilliant things have happened here.
But at the same time 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 were under siege; and of a law school community that had lost track of its declared mission to — and this is the formal Harvard Law mission statement — “educate leaders who contribute to the advancement of justice and the well-being of society.”
And while I was here, I didn’t buy the administration’s responses to this tension. When I was a 1L, I brought up concerns with a high-up administrator and they literally told me: “You’ll understand why everything is the way it is when you’re a 3L.” But when I became a 3L, that didn’t come to pass. So instead of getting jaded, I tried to articulate really clearly what was the problem — and what we could do about it.
So, you can read about my findings in Our Bicentennial Crisis, but I want to summarize them, very briefly, here today.
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But before I do, I want to begin with a story.
Has anyone here been to the Orpheum in Boston? It used to be called the Boston Music Hall. And if there is one event in American history that I think every Harvard Law student should learn about — it is what took place there on December 31, 1862.
At midnight that night, the Emancipation Proclamation would take effect. This was a big deal — it was the culmination of decades of work by members of the abolitionist movement. And hundreds of abolitionists were gathered in the Boston Music Hall to celebrate together.
On stage, William Lloyd Garrison, the tireless abolitionist newspaperman, wept next to Frederick Douglass, the world-famous author and orator who had escaped from slavery 24 years prior. Next to them was armed liberator and Union spy Harriet Tubman. Up on the balcony was Harriet Beecher Stowe, author of Uncle Tom’s Cabin.
At midnight the clock towers tolled and the hall erupted. The Reverend Charles Bennet Ray, an Underground Railroad promoter and editor of The Colored American, began to sign a hymn that the whole crowd joined in: “Sound the loud timbrel o’er Egypt’s dark sea! Jehovah hath triumphed, His people are free!”
Their decades of work had paid off — they had won a victory of humanity.
I wanted to share this story because the message you too often get at Harvard Law School is that “it is what it is” that nothing ever changes and there’s nothing you can do about it. What happened in the Boston Music Hall that night shows that when you commit to cause — when you push at it over the course of a long time…when you give your varied talents to it (writers, speakers, organizers, thinkers, fighters, layers)… when you don’t give up — you win.
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Now I wrote Our Bicentennial Crisis because I think Harvard Law should do a better job of helping attach us to today’s respective causes — to prepare us for good work that could, together, earn similar celebrations of long-awaited triumph in the future.
At the very least, Harvard Law should introduce us about crises in the law. And there sure are a lot of crises in the law today. Judge Learned Hand, Class of 1896 said: “If we are to keep our democracy, there must be one commandment: Thou Shalt Not Ration Justice.” You are in law school at a time when we are severely rationing justice.
In criminal law, we are rationing justice. Since 1995, real spending on indigent defense has fallen while felony cases have risen. ~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. 4/5ths 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 10 to 1 on civil legal aid. And all the while, the top 100 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 interests lobbyists are outspent by corporate interest lobbyists 34 to 1. Tort law, antitrust law, consumer protections are being crippled by corporate interests lawyers and lobbies. Corporate interest foundations have paid tens of millions of dollars to the legal academy — including $18 million from the Olin Foundation to Harvard Law — to bend the law in a corporatist direction.
And yet, in this time of crisis, we at Harvard Law are failing as a community to wake up to the seriousness of this crisis. 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.
This is because the major thrust of the Harvard Law experience is in this 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. A cult of smart dominates.
We have a curriculum that pacifies students. Our first year curriculum is stuck in a century-old mold that exists outside of time. What do I mean by exist outside of time? First, it doesn’t teach the history of the law — too much time spent asking “Why must the law be this way?” and too little time spent asking “Why did the law end up this way?” Second, it doesn’t teach the future potential of the law — how things could be, what are ways the law could be transformed. Third, and most importantly, it doesn’t teach the present of the law, what is the reality on the ground in our legal system — our prison system, our administrative agencies, the corporate firms.
We have 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 wine-and-dined by corporate firms and an “Early Interview Program” that streamlines corporate interest recruitment.
When I was here, we even had a mandatory field trip to corporate interest firm. The school career office even provided materials 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.
Now think about what this means to Harvard Law’s relevance to the country. If you’re a person in an overcrowded legal aid office and you learn 80% of students receiving the best education in the country spend their time advancing the interests of the wealthy and power, what would you think? If you’re a person pleading guilt to a crime you did not commit after a 15-minute meeting with your public defender, and you learn 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 Supreme Court justices if more of us will spend our time filling out paperwork to help the powerful move money across borders than will spend our time filling out paperwork to help the most vulnerable people at our borders? If you’re a midwestern 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.
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Now, when I raised these critiques two years ago, there were a lot of excuses — what some might call “work avoidance mechanisms” — that the community throws up in defense. But what I tried to do in the book is to systematically examine each of these excuses — and when you do, they don’t hold water.
The first excuse is usually “pro bono work and charitable giving blurs the divide” between public interest and corporate interest work. But when you run the numbers, you find that lawyers at major corporate firms give less than eight minutes per day to pro bono. Only 18 of the nation’s 100 biggest corporate interest firms meet the 50 pro bono hours per year per attorney challenge. Our own career services office states: “Firms like to emphasize their commitment to pro bono,” but they “are increasingly mindful of becoming more like a business where billable hours and profitability reign supreme.”
And then there’s all the things not covered under pro bono. There was 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. Total revenue for the Top 200 firms is $96.3 billion. Total funding for all civil legal aid for low-income Americans is $1.4 billion. Total donations by all lawyers and law firms to civil legal aid is $95.8 million.
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 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, should not Harvard 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, but most will return to public interest work later. In fact, Only 7.2% of Harvard Law graduates who are working at large firms three years after graduation are working in public interest organizations 12 years after graduation.
Let me put it bluntly. If the 1L 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 100 of you to pursue public interest work after graduation while 300 of you will not. And then among those 300 of you who immediately go into big firm work for 3 years, only about 15 of you will have switched over to public interest work 12 years after graduation.
When we get to this point in the conversation, 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 non-profits, government and education? Yale, Georgetown, Northeastern all outperform Harvard on public interest work after graduation. And 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.” But 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% 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.
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And then there’s the worst excuse — that there’s nothing we can do; that it’s not worth fighting. I’d like to respond to this excuse with another story from that night in Boston Music Hall in 1862. There was a man on stage that night named Wendell Phillips. He was a member of the Harvard Law School Class of 1834.
Phillips was a born and raised Harvard man. Grew up on Beacon Street, perfect manners, well-connected, Boston Latin School, 7th in his class at Harvard College, entered Harvard Law in 1831, got along with everyone. And of course, when he graduated in 1834, he started a fancy law practice on Court Street.
But one year out from graduating, he saw an angry mob storm a women’s anti-slavery meeting, rough up William Lloyd Garrison, and parade him mockingly through the street. What shocked Phillips most about the mob was that it was largely composed of fellow “gentlemen of property and standing” — friends and acquaintances from his elite upbringing. His curiosity now shocked awake, he reached out to a recovering Garrison to ask him about abolition. There was no going back.
Phillips soon quit his law practice and started traveling around the country speaking out against slavery. He was really effective, because his law school education helped sharpen his rhetoric — and his genial style helped sneak through the militancy of his message. Picture this guy, Harvard chipperness, saying things like:“The spirit of freedom and the spirit of slavery are contending here for mastery…they cannot live together.”
He didn’t stop for the rest of his life — he joined anti-slavery societies, supported anti-slavery boycotts, wrote articles, and assisted fugitive slaves. When the 14th Amendment passed, he decried it for not including voting rights. When the 15th Amendment passed, he decried it, because it did not redistribute property to freedmen. “Suffrage is nothing but a name because the voter has not … an acre from which he could retire from the persecution of landlords.” And soon the Radical Republicans in Congress took up his cause. He became known as “abolition’s golden trumpet.”
And not just that — he demanded that the World Anti-Slavery Convention have women delegates. He helped the National Women’s Rights Central Committee organize conventions throughout the 1850s. He advocated for the idea that the 15th Amendment granted citizenship to Native Americans and demanded Andrew Johnson create a cabinet position for indigenous people’s rights. When opinion turned against Native American advocacy after the Battle of Little Big Horn, he arranged public forums to educate Americans on the harm of “Indian Removal” policies.
The whole time, he ruffled feathers. He called Daniel Webster — whose standing in Massachusetts was like the Kennedys are today — “a great mass of dough.” Abraham Lincoln was a “huckster” — “the slave-hound of Illinois.” Harvard, to Phillips, was controlled by businessmen — and dishonest about its commitment to abolition. Southern sympathizers and moderates hired brass bands to drown out Phillips talks. When he died, one elderly Beacon Hill resident — his own neighbor! — said that he would not attending Phillips’ funeral, but he wanted everyone to know that he approved of it.
But because of this work, Phillips got to celebrate up on that stage on that night in 1862. He got to be eulogized as “the man who as a private citizen, has exercised a greater influence upon the destinies of this country than any public man of his age.”
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You probably wouldn’t have expected that out of a member of the Harvard Law Class of 1834. We must not get jaded — we must be open to surprise.
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, and Charles Hamilton Houston, the man who killed Jim Crow.
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 spearheaded 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 famous professors fresh off their apologetic 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 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. But with crises like the ones we face today, there are bigger risks to consider.
Let’s get to work.
Pete Davis ’18 was the editor in chief of The Record and is the author of “Our Bicentennial Crisis: A Call to Action for Harvard Law School’s Public Interest Mission”