The Socratic Method: Dershowitz on Legal Education

The Socratic Method: Thanks so much for agreeing to talk to us. We thought, given all the conversation in America today about legal education it would be interesting to interview professors who have written and thoughts about it. So, when and why did you decide to become a law professor?

Alan Dershowitz: I decided to become a law professor when I was a student at Yale and all my teachers told me I should be a law professor – that, you know, I had the knack for teaching students and I had an inquiring mind – and I had a million articles and books I wanted to write. So far only I have only succeeded in writing thirty of them and probably thirty articles. But I love writing, I love teaching, and I love being able to influence students who will be practicing 50 years from now. When I look out at my students I see future presidents of the United States, future justices of the Supreme Court, great lawyers, journalists, leaders in every field. So a teacher has the remarkable ability to influence the future beyond her or her own lifetime. So for me teaching was the most natural thing.

TSM: And do you see part of your role as a teacher as shaping the directions and the career path those students are likely to take?

AD: I would like to think so, but I don’t think I’ve been particularly successful. Harvard Law students tend not to go into criminal law. In fact I start my class often by saying that statistically, a Harvard Law School graduate is more likely to become a criminal than a criminal lawyer. And that’s true. More of my students have gone on probably to commit crimes than to defend others who have committed crimes. So I think the law school can do more as an institution to encourage students to become criminal defense lawyers because criminal defense lawyers really staff the emergency rooms of our legal system. The people who need defense are the poorest and those most likely to be accused of crime, whether falsely or correctly. So I think we can do more to encourage our students. Now the realities of the profession make that difficult. The students graduate here with a quarter of a million dollars worth of debt. And they can’t pay that back going to work as criminal lawyers. They can pay that back going to work as corporate lawyers.

TSM: What do you think Harvard could be doing better to make that choice easier for students?

AD: First of all, we should figure out better ways of financially encouraging our students to have lower paying careers in the public interest. That’s the most important thing. Second, we should make sure we continue to recruit interesting and experienced practitioners of criminal law, who can really teach the students how to become criminal lawyers.

TSM: There is obviously a loan forgiveness program at Harvard…

AD: It’s not good enough. It’s not good enough.

TSM: What do you think is lacking about it?

AD: Well it helps for a few years. But it hasn’t had enough of an impact on shaping future careers. It’s not a problem limited to Harvard Law School. It’s true of every law school. It’s true of every business school, and of every professional school. We all have to do more to make jobs in the public interest more appealing for students. We also need more role models on the faculty. There are a few now. People like Charles Ogletree and Professor Sullivan and others who have been excellent criminal law practitioners who come to the faculty – and Nancy Gertner is another example – but we need more of that.

TSM: And do you think this is a problem specific to Criminal Law?

AD: I think it’s specific to public interest law, by which I mean criminal law, environmental law, civil rights, civil liberties, rights of women, rights of gays, I think anything that doesn’t have high paying…anything but corporate law.

TSM: And whose responsibility do you think it is to shape how Harvard Law School can do a better job of this?

AD: I think it’s the responsibility of the faculty and the administration and the financial aid office, the admissions committee. It’s a collective responsibility of the entire enterprise. But we’re always going to be at a slight conflict because our funding comes largely from large corporate law firms and large corporate executives and they’re not necessarily interested in promoting an ethos that is inconsistent with their own financial interests.

TSM: What role do you think students can have in trying to push for this?

AD: Students have to first vote with their feet. They have to take classes and pursue careers that they would really like to pursue. When I teach first year I ask my students at the beginning of the first year how many would like to practice criminal law. A large number of the students raise their hands. By the end of the third year the number is much, much lower – traditionally I have taught both in the first year and the third year – and the three years at the law school changes career plans a lot and so we have to do something to reverse that. We shouldn’t be changing students’ interests from public interest to private interest. It’s not we who do it alone – it’s the realities of the legal profession, of course.

TSM: Do you have any thoughts on the recruitment processes like the Early Interview Program?

AD: I think it’s a real problem that students’ careers are determined so early in their legal career. In my autobiography, which is coming out in October – Taking the Stand – I write about my own career choices and my own early career and how I decided not to go to work for big law firms, and in those days it was because big law firms engaged in discrimination based on religion and race and gender. That’s not any longer true, for the most part, but big law firms today don’t do enough to promote the public interest, and students can also have an impact if they act collectively on law firms and insist that they be allowed to work in the public interest while making a lot of money for their firms and that that not be counted against them in partnership decisions.

TSM: What role do you think Harvard Law School has in the legal profession more generally in shaping this, because this seems to be a problem beyond just legal education?

AD: No question. We have an enormous influence on the legal profession in general. We helped to change it when we admitted women back fifty years ago. That had a big impact on the nature of the legal profession. We helped to change it when we engaged in affirmative action programs. So we should never underestimate the impact we can have on the profession as a whole. Law firms still look to law schools for some guidance on ethical matters and general matters and I think we should take advantage of that.

TSM: Do you think students’ career goals are really changing over time, or are students somewhat unrealistic when they come in, or do they think that saying they want to do public interest is how they get into Harvard Law School?

AD: Well first of all, I like unrealistic students. I prefer unrealistic students. I was an unrealistic student. I didn’t want to fit into anybody’s pigeonhole. I think more students have to think of their lives in terms of somewhat riskier careers rather than following the traditional corporate law career. I wish we had more risk-takers. I wish we had more unrealistic students. We have too many realistic students. I think today the problem is too many students come into the law school with their career plans very clearly set and those mostly are students who want to follow the conventional path either into the corporations or the corporate law world, because that’s the easiest path – the path of least resistance. I think we need to have more risk takers, and that can be a function of the admissions committee in part, but we have to be concerned about students who are willing to tell the Admissions Office what they think the admissions office wants to hear. We don’t really do follow up. We don’t insist that if our students go into this law school based on a premise that they continue to operate on that premise.

TSM: Do you see this moving in a better direction or a worse direction? One statistic is that I think record numbers did the Early Interview Program this past August.

AD: Oh I think the trends are in the wrong direction. I think that the economy has pushed the trends in the wrong direction. When we have a thriving economy with many opportunities students are freer to take risks. And now it’s a little harder and therefore I can understand why the early process has come to dominate. I think that’s too bad. I think that recruitment and job seeking has played too great a role in the life of law students and I wish that weren’t the case. But I understand. I understand why. Realities are such that I’m not going to tell a student not to participate in the program.

TSM: If you were advising someone considering applying to law school and wanting to work in the public interest, outside criminal defense, would you hesitate about advising them to go to law school because of this?

AD: No, I still think law school gives the best and broadest education for a career in the public interest. Better than business school. Better than the Kennedy School. And better than graduate degree programs. I think a law degree opens up more career choice and it gives a broader education than the other educations that we’re talking about and so I would encourage – when in doubt to go law school rather than any of the other professional schools I think and I think careers prove that. Our graduates have simply been more successful in terms of broad career choices. Not more successful if you measure it just by how much money they make. But by every other measure our law school should be very proud of its graduates except to the extent of not enough of them going into public interest.

TSM: What part of your autobiography, Taking the Stand, might be particularly interesting to current Harvard Law students?

AD: Well, I wrote the book for current Harvard Law students and for current law students all over the country. I wrote the book to provide them an alternate career path. To show that there are other ways of having a good life beyond the corporate law firm. I’ve been very very lucky. I’ve not only had a career in teaching, I’ve had a full career as a litigator. I’ve litigated thirty-six murder cases. I’ve done hundreds of appeals and I’ve written thirty books and hundreds of articles and I’ve been able to do all of those things without working for a corporate law firm and I was able to pay off my debts. And I have been able to have a good career financially, academically, and I think all of our students who graduate from Harvard Law School can do that. But you have to be willing to take some risks and you have to be willing to do it on your own, and not count on somebody else to make your career and I think that’s important for more of our students to go off on their own and do exciting and interesting things and I hope my book inspires people to do that. I was inspired as a lawyer by books written by Ed Bennett Williams and other lawyers – Clarence Darrow – and other lawyers, and my hope is that my book will inspire some generations of young people to go into law but to go into a law career other than corporate law. That’s my goal.

TSM: It seems to me that the major problem in the legal profession is that so many people don’t have access to any legal resources whatsoever. Criminal defense, but all kinds of other ones as well. And a few more Harvard Law students going into criminal law wouldn’t solve the structural problem.

AD: No. Look, we are a monopoly. You have to be a lawyer to go into court. We’re a monopoly. And every other monopoly has an obligation to service everybody. Doctors are a monopoly and they have an obligation to allow anybody into their emergency wards. As a legal profession we should start on the premise that everybody is entitled to a lawyer above a certain level of seriousness of their case. It needn’t only be criminal but we have to start with criminal. The promise of Gideon v. Wainwright has not been fulfilled. But even in serious cases involving child custody, everybody should have a lawyer. In cases involving being dispossessed from one’s home, or the bank taking your home because you default on a mortgage, there should be lawyers. And we the legal profession have an obligation to provide them.

TSM: Do you see any changes, perhaps to the 1L curriculum that could be made promoting this? How about the inclusion of social justice issues within the curriculum?

AD: I think that no student should graduate Harvard Law School without having had some social justice component in their education. And some of my friends and former students are trying to raise money for a chair in my name, called the Alan Dershowitz Repairing the World Chair. And it would be a chair that would be devoted to social justice because that’s what my life has hopefully been devoted to. So I’m hoping if that were to happen it would be an enduring chair that would focus on social justice for the future. I think social justice is the most fundamental component of our legal system and we have to figure out a better way of making the law reflect justice rather than, as Oliver Holmes once said many years ago, the law has nothing to do with justice. He was wrong and we have to correct him. The law must have something to do with justice.