The Harvard Law Record hlrecord.org Independent at Harvard Law School since 1946 Friday, November 8, 2019 Student Organization Tackles Interview with Jonathan Herzog Arbitration Agreements, — Your classmate Reform in the Judiciary running for Congress

By Diego Alvarez The Record: Why did you decide to take a leave from HLS, and how did you end up running for Congress? Among the many student organi- Herzog: Andrew Yang announced zations and affinity groups that try to his candidacy for President last year. focus on student advocacy and insti- At that point he was an unknown tutional improvements at HLS, one entrepreneur who founded Venture organization is setting its sights on for America. His thesis is that we are combatting arbitration agreements at going through the fourth industrial law firms and sexual assault reform revolution, the greatest economic and in the judiciary. technological shift in our history. It is The People’s Parity Project — for- why Donald Trump is our President. merly known as the People’s Pipeline We have automated away millions Project — is a relatively new organi- of manufacturing jobs in the swing zation, founded just two years ago states that you have to win. And we here at HLS, that has become a voice are now doing the same to millions of for some HLS students who end up retail jobs, call center jobs, fast food at large law firms or will be clerks for jobs, truck driving jobs, and on and judges. The PPP, through field orga- on. His flagship proposal was the nizers such as 2L Beth Feldstein and freedom dividend, a universal basic Credit: herzog2020.com 2L Andre Manuel, operates through income of $1,000 a month for every activism, editorials, and conversa- American adult to help us transition a self-regulating profession and that tions to pursue their goals of spark- through this economic shift. there are good principled reasons ing action and educate their peers. This felt deeply urgent to me. I looked for why you need to have barriers to “Our mission at its core is about Credit: The People’s Parity Project around and he was the only voice in entry, certifications, and safeguards finding the ways that the legal pro- our political process calling out what for the quality of legal practice to fession and the law have profound Feldstein said the issue is very sexual harassment or discrimination I saw to be the central high variance avoid exploiting people. At the same effects on consumers’ and workers’ relevant at HLS as judges get a large at work, they would not have a right challenge of our time. time, the current access to justice cri- lives,” Feldstein said. number of their clerks from the law to sue their employer.” That is why I took a leave: to help sis and the lack of access to basic legal The PPP does three main types school. The PPP looks at the barri- The PPP has so far been success- him qualify for the National Debate services suggests that we are defend- of work, including advocacy against ers the reporting system inherently ful in getting one major firm to drop Stage. I am happy to say that he is a ing the current status quo of regula- and for certain law firms, working on sets up and has been vocal about the their arbitration agreement from top four, five, or six presidential can- tory structures rather than reforming local legislation to support organi- importance of change. their employee contracts through a didate, depending on where you look. them. zations in Massachusetts that push heavy protest campaign. In coordi- And one of only two candidates to get The Record: Would commoditizing companies to end coercive practices, nation with other HLS groups, such and automating legal work and deliv- and general public education about We know that as Lambda, the organization is still ering legal services cheaply solve the the impact of forced arbitration trying to get other law firms to do so Much of entry-level access to justice issue or would it pri- agreements. The PPP has developed harassment in as well, Manuel said. marily put lawyers out of work? to pursue many objectives, but it was “By exerting pressure, we are able white-collar work, Herzog: This is why the foundation originally established in the wake of clerkships is to get a lot of major law firms such of a freedom dividend, a univer- numerous allegations against senior as Kirkland & Ellis, which is one of from corporate law to sal basic income to every American members in the judiciary. something that the largest law firms in the world, to adult, is so vital. “One of the reasons PPP was drop their forced arbitration clauses investment banking — We can try to plug the holes in the founded was Alex Kozinski,” Feld- happens, but people from their employment contracts,” he ship, wherever we find them. Today, stein said. “He was a very prominent said. “However, there are still some a lot of the work that 30% of American stores in malls are 9th circuit judge who was essentially don’t feel comfortable major law firms like Venable, Gibson closing. If you walk into a CVS or exposed as having repeatedly sex- Dunn, and DLA Piper that use forced most of our classmates McDonald’s, you have an automated ually harassed his law clerks for a reporting it. arbitration.” kiosk and a self-checkout. Tomorrow, period of decades.” The PPP has been pairing up with will be doing — is it might be accounting, corporate Kozinski was among several fed- multiple law schools across the coun- legal work, or any other entry-level, eral judges who were implicated in Along with sexual assault reform, try to target specific law firms, con- subject to automation. white collar work. sexual harassment claims. The main the PPP is also strongly determined vincing student groups at HLS to The reality is some professions have problem with the allegations in the to combat the pervasiveness of arbi- refuse funding from law firms that strong professional lobbies and oth- judiciary however, Feldstein said, tration agreements in consumer con- have arbitration agreements and set- more than 10% of Trump voters. If he ers do not. I do not think we should is there is a lack of information and tracts. Manuel said HLS students ting up more events to protest spe- gets the nomination, he will win. be protecting the job. We should be reporting. Feldstein said the PPP have constantly faced arbitration cific firms. The main goal concerning The reason I’m running for Congress protecting the people. We are at a plans on attempting to address the agreements upon entering law firms, law firms in the future is promoting is that Yang’s platform is a legisla- point where our GDP has gone up issue from HLS. so the PPP has strived to combat that. student activism and educating law tive platform. We have conflated to 20 trillion, but our life expec- “One of our initiatives for this “The origin of PPP’s work with firm employees. the executive with the legislative in tancy as a country has gone down semester is pushing HLS and other regards to forced arbitration was “This summer we actually orga- our national consciousness in many for three years, for the first time in law schools to do a climate survey exposing that law firms were forcing nized a leafleting campaign out- ways. But fundamentally you need a century. That is unheard of in an so that we can find out just what the many of their employees including side of Venable’s office in D.C. when the votes in the House to pass the advanced industrialized economy. extent of the problem is,” she said. “We summer associates who are peers at they were having a recruiting event freedom dividend law. My goal was We have hit the breaking point. We know that harassment in clerkships is HLS to sign forced arbitration agree- for rising 2Ls, so we were similarly to run in the only district I could, my already crossed the threshold. Our something that happens, but people ments giving away their right to sue if handing out flyers and trying to home district of New York, to try to focus has to be on building a more don’t feel comfortable reporting it — anything goes wrong,” Manuel said. advance so that we have the House there are a lot of retaliation concerns.” “In particular, if they face issues like Continued on page 2 united in 2021 to pass his agenda. The Record: Was there an expe- What would anyone rience you had at HLS that led you Jurisprudence, gives students the down this path? here do, if they 1Ls Petition for Right-of-Center Clinics opportunity to craft originalist Herzog: It is interesting because in arguments for federal appellate and many ways, this is not a “them” issue. knew that they By Eli Nachmany and Jacob Richards Supreme Court briefs. These student This is not a working-class issue. This briefs are not mere intellectual exer- is an “us” issue. I have HLS friends were guaranteed an Earlier this week, over 80 Harvard is something that George Mason’s cises; they have real-world impact who founded Evisort, an automated Law students (ourselves included) Antonin Scalia Law School currently and advance the development of law. contract review company that is get- unconditional income? signed a petition requesting more offers. Meanwhile, NYU Law offers a Justice Thomas even cited a clinic ting a fair bit of investment. We know right-of-center clinical offerings at Regulatory Policy Clinic, and George- brief in a dissenting opinion in 2013. that much of entry-level white-collar the law school. Our petition sparked town Law has a Federal Legislation As law students deeply concerned work, from corporate law to invest- human-centered economy that works a great deal of reaction online, Clinic which enables students to draft about the wellbeing of our country, we ment banking — a lot of the work that for everyone because the sky-high including a particularly vitriolic model legislation and regulatory long for opportunities for impact in most of our classmates will be doing — rates of anxiety, depression, suicidal response from Above the Law’s Elie comments. It is entirely appropriate areas that matter most to us. As future is subject to automation. From the sec- ideation, and unhappiness are not Mystal. The clinics for which we are for Harvard to afford clinical oppor- leaders in the conservative legal ond I set foot on campus, the changing unique to a particular job or a sector, advocating, however, are not without tunities to students interested in movement, we desire the opportunity role — the accelerating role — of tech- they pervade across the board. precedent. thinking critically about the admin- to learn, in a hands-on way, the nuts nology affecting our education, our The Record: Many suggest that Commenters have pointed out istrative state and applying what we and bolts of right-of-center legal advo- workforce, and our labor markets, was lawyers are unhappy. The access to that some of our clinical recommen- learn in our first year Legislation & cacy. And in an era where originalist omnipresent in my mind. justice crisis shows that we fail to dations focus heavily on issue advo- Regulation course. interpretive methods have become The Record: We do not spend a deliver legal services to most. Would cacy. This is true of a good number In addition, many law schools have mainstream and are prevalent at all lot of time here thinking about the automating lawyers be a net benefit? of clinics already at Harvard Law recently started First Amendment levels of the federal judiciary, we hope potential automation of legal work. Should the goal of HLS graduates be School, however. Look no further clinics — Virginia, Duke, Cornell, and to leave law school equipped with the How should we be thinking about it? to automate themselves? than Harvard’s Environmental Law Vanderbilt come to mind. And as for tools to make persuasive originalist Should we be furthering it? Protect- Herzog: My goal, my hope, is help & Policy Clinic, Democracy and the our mention of a Civil Asset Forfei- arguments, whether as judicial clerks ing our profession? Learning to code? transition us. To restore entrepreneur- Rule of Law Clinic, or Health Law ture Clinic, Cabrini Green Legal Aid’s or in other legal roles. Herzog: I should not shortchange my ship, creativity, vitality, dynamism & Policy Clinic for examples of clin- Civil Asset Forfeiture Defense Project Right-of-center law students care experience here because I did take a in the economy where the brightest, ics with a strong bend toward issue inspired us (along with Buffalo Law’s about helping underserved commu- class about these topics, Law 2.0 taught most talented, enterprising, agentic advocacy. It is, then, not a far leap Civil Liberties and Transparency nities just as much as our left-leaning by Ron Dolin, which featured really people are going to build enterprises to imagine a Second Amendment Clinic). We note that First Amend- classmates do. That we find different incredible guest speakers. But there and generate value in society. There Clinic, a Pro-Life Clinic, or a School ment and Civil Asset Forfeiture clin- causes to be more compelling is sim- are not that many law and technology are going to be lawyers for decades, Choice/Education Freedom Clinic ics need not be politically polarized, ply an indication that conservatives classes, and I think that we should centuries to come. There are going to engaging in similar advocacy work either. We are confident that the clin- and liberals have different world- integrate the subject into our curricu- be humans in every sector. and giving students hands-on legal ics would attract participation from views. These differences should not lum, just like any other core subject is I think there are strong parallels experience that aligns with their across the political spectrum. preclude us all from finding mean- integrated into our curriculum. between the law and other profes- career interests. Our inclusion of a Conservative ingful clinical experiences during our In terms of what to do about it, one sions. There are 3.5 million people Past these, when putting our list Appellate Advocacy Clinic looked time at HLS. of the proposals that came up in my who drive a truck for a living. They together, we did an exhaustive search to the Constitutional Jurispru- class was the reform of unauthorized spend 14 hours a day in their truck. of clinical offerings at peer schools. dence Clinic at Chapman Law. That Eli Nachmany (enachmany@ practice of law regulations. This is They provide fifty to eighty thousand Perhaps the most negative response clinic, developed in conjunction jd22.law.harvard.edu) and Jacob related to Eddie Hartman’s work, dollars to their family. In many ways, we have gotten online has been to with the Pacific Legal Foundation Richards ([email protected] the founder of Legal Zoom who was we should be celebrating the fact that our inclusion of a generic-sounding and affiliated with the Claremont vard.edu) are 1L students at Harvard a guest speaker in Professor Dolin’s “Administrative Law” clinic, but this Institute’s Center for Constitutional Law School. class. Eddie pointed out that we are Continued on page 2

Harvard Agrees to Divest — Student workers throughout Harvard University DisOrientation:A Call For What Every Harvard Law Student Should Just not from Prisons are voting to exercise our legal right to strike Self-Preservation Know About Blockchain p. 2 p. 3 p. 4 p. 6 2 The Harvard Law Record November 8, 2019 The Harvard Law Record Independent at Harvard Law School since 1946 · November 8, 2019 · Volume 146, Issue 2 The Record If you have a response is looking for 1L writers, to any piece in Editor-in-Chief Editors: editors, and designers. The Record, Robert Mahari ’21 Rex Bray ‘20 Chloe Field ‘21 Contact us at email us at Managing Editor Ryan Giarusso ‘20 Gavriel Schreiber ‘21 [email protected] [email protected]. Diego Alvarez ’22

down where these donations went, still a first step. By contrast, requests from tobacco, South African apart- the university is also acknowledging for information about the universi- heid, and PetroChina), Harvard has Harvard Agrees to Divest the influence donations can have on ty’s investment in the PIC have been come to the same conclusion as the research, highlighting the conflict of met by not only leaning into the nar- HPDC. All that’s left is to convince interests present in profiting from row understanding of the problem as the administration that state violence — Just not from Prisons prisons while also training future beginning and ending with private against marginalized communities judges, prosecutors, and legislators prisons, but also through complete falls on a different side of that stan- to expand prisons’ reach. silence, broken only after months of dard than corn syrup. By David Piña 3. …Even though this could be pressure by the HPDC. Even then, 7. Acknowledging Harvard’s difficult: President Bacow made a the administration alleges that the leadership position: As unfor- point of stressing that the decentral- total investments in the PIC amount tunate and unjust as it is, moves by In response to public pressure, shows that Harvard knows how to do ization of Harvard’s donation process to “only” $18,000, a number that the institutions like Harvard have an Harvard University President Law- the right thing — when it cares to. would make tracking Epstein’s dona- university refused to provide evi- outsized influence on other insti- rence Bacow recently announced a So, as a student here, I’m asking tions particularly difficult— but worth dence for and that has been contra- tutions and the country as a whole. plan to divest from a source of fund- Harvard to take another look at their the effort. This effort on their part dicted by independent research done That’s why excuses such as Harvard’s ing it called “utterly abhorrent” and message. I’m asking Harvard to lis- highlights another point of contention by the HPDC using what mandated position that the costs of divestment which it unequivocally condemned. ten to Harvard and … between the administration and the public disclosures were available. aren’t worth the alleged $18,000 The announcement addressed what 1. Show your values: The admin- HPDC: the definition of the Prison-In- 5. Repair the Harm by invest- invested in companies like CoreCivic Bacow presented as shared commu- istration opened their announce- dustrial Complex (PIC). While in one ing in impacted communities: fall so flat. With regard to the Epstein nity values; it gave cold, hard num- ment by immediately emphasizing instance Harvard specifies that it will Harvard plans to “redirect the unspent case, the administration is more than bers rather than talking around the the shared motivating values behind investigate not only Epstein’s direct resources to organizations that sup- willing to take on the mantle of the issue, and it laid out a plan to both their actions, expressing horror at the donations but also any donations that port victims of human trafficking and hero by declaring the university’s address the immediate harm and revelations, condemning the actions may have been directed by him, they sexual assault.” Acknowledging this intention to “engage [their] peer create structural change moving for- and losing no time in considering the also insist that only their investments as “an unusual” but “proper” step for institutions” in addressing the struc- ward. In other words, it agreed with victims. This kind of unequivocal in private prisons like CoreCivic and the university, Harvard reaches the tural problems identified above. In everything that the Harvard Prison language establishing shared val- GEO Group should even be up for same conclusion as the HPDC: It’s other words, when the values match Divestment Campaign has asked ues is exactly how all healing should debate. By doing so, they deny the exis- not enough to acknowledge the harm. up, Harvard knows even the alleged of the administration — just not for start. Their response to the HPDC, tence of the vast web of economic gains Apologies require action and change $18,000 is not actually $18,000; it prisons. however, has largely been to deflect that continues to incentivize the caging in behavior. In the Epstein case, Har- is, in fact, the limitless potential of The HPDC has been petitioning any commitment to values by hold- of Black and Brown people, including vard is reinvesting in groups helping a major voice in American discourse the Harvard administration to divest ing that divestment from prisons contracts with: telecommunications victims of human trafficking and sex- ringing the bell that something is from the complex web of companies would make the endowment “polit- companies such as Securus that are ual assault. The HPDC similarly asks wrong here and giving an example of propping up and incentivizing the ical.” First, holding that investment allowed to charge incarcerated people for re-investment of funds divested what can be done about it. continued construction and filling generally is not inherently political and their families exploitative rates; from the PIC into the communities 8. Show your values: Bacow of prisons — inevitably with Black, is a hell of a political privilege. More Taser manufacturers like Axon Enter- that have been and continue to be the closes his message both with one final Brown, poor, Queer and other polit- pointedly, prisons are themselves prise which have settled dozens of victims of state violence and political condemnation of the specific actions ically marginalized people. The the sites of concentrated sexual vio- wrongful death lawsuits, while Taser oppression. that prompted Harvard’s new stance group’s pleas and their arguments lence against Black and brown peo- use in US prisons have been the sub- 6. Think structurally: Rather on donations, and with the humbling have largely been met with silence, ple — including against minors. So ject of inquiries by the UN Committee than passing this off as an isolated posture that “Harvard is not perfect.” deflections to strawmen, or delay representing the horror of prisons against Torture; and bail bonds com- event having slipped through the Posturing as this may be, one of the tactics— as was the case with an as an issue to debated around, rather panies such as Tokio Marine Holdings cracks, Harvard takes ownership central pillars of healing and change October 26th meeting that had been than condemned as unequivocally as which use the PIC’s targeting of poor over the structures that allowed for is just such an acknowledgement. scheduled by the university months the human trafficking involved in the communities to further exploit those Epstein’s deep and ongoing relation- Justice, however, requires not only in advance, only for the President and Epstein case, points to a racist divide people’s position through threats and ships with the university, flagging acknowledgement of harm, but also members of the Corporation Com- on whose lives are valued. harassment. This expansive view — that this event “raises significant shifting one’s disposition towards mittee on Shareholder Responsibil- 2. Take responsibility and targeting not just the obvious faces of questions about how institutions grace and humility when discovering ity to refuse to state whether they’d take action…: Deflection tactics the problem but the many structures like ours review and vet donors.” new harms you’ve committed, not just even consider divestment, what the so thoroughly saturate our public that keep up political pressure to build In acknowledging that, Bacow speaking the words when your back is formal processes were for reaching a discourse that they’re barely given a more prisons and write laws to fill announced that he will be “convening against the wall. So, I’m grateful for decision to divest, or whether they’d second thought. The administration’s them — may make divestment more a group … to review how we prevent the words, but if Harvard is going to be willing to discuss asking their reaction in the Epstein case, how- difficult, but, as with the Epstein case, these situations in the future.” This truly acknowledge that it is not perfect external fund managers for reports ever — acknowledging that the rev- worth the effort. drastically departs from Harvard’s and that it will indeed “always strive on investments in prisons. elations raise “important concerns” 4. Be transparent, share your stance on keeping the endowment to be better,” then it should learn from By contrast, the revelations sur- and asking for a review of Epstein’s findings and your progress: The “apolitical” in explicitly creating stan- its own message and… rounding billionaire Jeffrey Epstein’s donations to Harvard rather than administration took another oppor- dards by which to judge the sources 9. Divest. human trafficking and his extensive simply apologizing and moving on tunity to tackle the issue directly of their donations (and, by extension, connections to Harvard led to a com- — dramatically contradict the “slip- rather than deflecting by not only their endowment). By admitting that David Piña is a second-year student munity-wide response in September pery slope” arguments comparing sharing hard numbers but also trust- such standards do exist (which we at Harvard Law School. A shortened that parallels the HPDC’s demands divestment from prisons to divest- ing and respecting their audience all knew, given that Harvard has, version of this letter appeared in the almost line by line. The response ing from corn syrup. By tracking enough to understand that this is after sufficient pressure, divested Crimson

Student Organization Tackles aims by expanding across law firms Interview with Jonathan or manipulate our perception can. The It is really challenging because Arbitration Agreements, throughout the country. The PPP Herzog — Your classmate hardest and most important thing is to according to the data we are actually Reform in the Judiciary encourages any and all HLS students running for Congress get to know yourself better. What do really bad at teaching entrepreneur- Continued from page 1 to join them in their pursuits by using Continued from page 1 you want to do? What is your compet- ship. We have seen a really marked their voice to advocate for others. itive advantage? What are the ways in increase in entrepreneurship pro- engage with people in conversation,” “We are cognizant that as future autonomous vehicles could be main- which you can contribute? You should grams and institutes at universities, Feldstein said. “We will try to show lawyers, especially Harvard-edu- stream in the next decade or so. It is constantly be questioning and testing, but our generation’s rate of entrepre- up at recruiting events or just out- not good for your body to sit in a vehi- ‘Do these align with the choices I am side their offices … with flyers that cle for 14 hours a day, and there is a making?’ Note that these are conscious outlined what forced arbitration is It has been our high incidence of chronic markers of choices, deliberate actions you are tak- There is nothing [and] why we have our campaign disease and illness in the industry. ing about how you spend your time and against them.” experience as a firm According to the New York Federal what you do in the world. Hopefully, stopping you or In response to a question about why Reserve, 44% of work is either repet- we can set paths that incentivize and law firms maintain their arbitration that arbitration is itive manual or repetitive cognitive make it easier for us to do the kind of anyone from setting clauses in employment contracts, DLA work. Even though lawyers and truck work we want to do. Piper shared a statement explaining a fair and efficient drivers serve very different functions, The Record: If members of our fac- out and actively why it chooses to include them. I think we are actually more alike than ulty or administration are reading this, “There are advantages and dis- way to resolve disparate. Again, it is not a “them” what would you want to say to them? making the change advantages to every type of dispute issue; it is all of us. Herzog: First, I want to celebrate and resolution process,” the statement internal disputes. The Record: What advice would call out some of the excellent examples you think is necessary. explained. “It has been our experi- you give to law students? To someone of what I view as progress in the right ence as a firm that arbitration is a who cannot code, who does not want direction. Glenn Cohen, for example, fair and efficient way to resolve inter- cated lawyers, we have a lot of priv- to run for Congress, and who is think- has integrated digital course materi- neurship is at multi-decade lows, in nal disputes, and one that benefits ilege,” Feldstein said. “We don’t just ing about going into big law? als and multimedia into his courses. part because of pervasive financial all parties in what are often sensitive want to be advocating for ourselves, Herzog: In many ways, this is the insecurity and being loaded up with matters for everyone involved.” Ven- we want to be advocating for workers challenge. In many cases on the mar- student debt, but also in part because able and Gibson Dunn could not be in all segments of the economy.” gin, our innate desire is to do some- Ron Dolin’s course the best way to learn something is reached for comment. thing socially productive and valu- by doing it. Right now, in the United This upcoming year, the PPP will Diego Alvarez is a 1L and the manag- able. We have set up a system where and Jonathan Zittrain’s States, 6% of high school graduates continue in their efforts to further its ing editor of The Record all the incentives push you the other go into vocational, technical, and way. At first you are loaded up with course should not apprenticeship training, where you tens of thousands of dollars in debt. are actually doing the work and not All the social rewards, structures, and be anomalies that just theorizing about it, while in a systems in place pave a certain path. country like Germany, it’s about 60%. This is partly why I think the incentive only few people can Clinical programs where you are out system, which is set at a federal level, there and actually doing the work are is an area for change: An area which take, but integrated a great way of moving the ball in the allows us to incentivize our people, our right direction. talented young people, to go do those and mainstream. The Record: Do you have any other productive things. thoughts you would like to share? What would you do? What would any- Herzog: We are in one of the most one here do, if they knew that they He has tried to be more topical in his influential, high agency, and high-po- were guaranteed an unconditional coursework. He also led 0L, which I tential environments, institutions, income? What if your basic means was lucky to play a tiny role in, which and cohorts of people. There is noth- of survival were not contingent upon provides a digital baseline for pre-law- ing stopping you or anyone from your work at a firm or earning subsis- school knowledge. That’s a really good setting out and actively making the tence wages? Or sitting for a nine to direction to head in. change you think is necessary. If not five a nine to nine, or a nine to mid- Ron Dolin’s course and Jonathan now, then when? If not here, then night? Often, we do not event ask this. Zittrain’s course should not be anoma- where? There is really nothing stop- We do not even ponder the possibility. lies that only few people can take, but ping you. What I would say is contemplate it. integrated and mainstream, an unques- As Yuval Harari says, the challenge of tionable a part of the fabric of people’s Jonathan Herzog is a JD student and our time is getting to know ourselves academic journey here. I think that is currently running for Congress as a Credit: The People’s Parity Project better than those who seek to exploit us would be a great direction to move in. Democrat in New York’s 10th District November 8, 2019 The Harvard Law Record 3

multiple means of communication about what issues they’re fighting for. HLS 1Ls in Support Student workers throughout In fact, we first learned about this change in the health policy through of Board of Student our union’s Instagram account, of all things. Harvard, on the other hand, Advisors Strike Harvard University are voting to didn’t care enough to make sure we knew. Dear Board of Student Advisors, Harvard has fought our union exercise our legal right to strike. every step of the way. First, it ille- We, the undersigned HLS 1Ls, are gally excluded hundreds of eligible writing to express our support for you student workers from voting for in going on strike to win a first union Law students should vote yes. our union. Next, it appealed to the contract. We appreciate how hard you Trump-controlled National Labor work to teach us legal research and Relations Board to attempt to pre- writing skills and to help us navigate By Sebastian Spitz, Jon Levitan, and Vail Kohnert-Yount vent student workers from get- our first year of law school. We believe ting a new and fair election — and you deserve fair compensation and a lost. (When even Trump’s NLRB meaningful voice at work. We also appointees think that you illegally believe that by going on strike to Did you know that the last time different career plans. For some guarantee that all student workers mistreated your workers, you know secure a fair contract, you will help Harvard gave its research assistants students, wages earned during the have health insurance. you’ve acted badly.) Then, once we build a more just and equitable Har- a raise was during the Bush admin- semester is an essential component Another major issue that has come won our union, it stalled on provid- vard for all students on campus. istration? (The younger Bush, but of their income and budgeting. Law up in bargaining is the university’s ing bargaining time with our bar- Since coming to Harvard, we have still.) This is just one of the many school is already stressful; it shouldn’t desire to carve out only the harass- gaining committee. learned about the graduate student reasons that we encourage our fellow be made more taxing by forcing stu- ment and discrimination procedures Harvard’s refusal to raise our union’s efforts to secure fair pay, com- law students to vote “yes” in the Har- dents to work for low wages. from the contract’s grievance pro- wages, improve our health care, or prehensive and affordable healthcare, vard Graduate Student Union’s strike Our union is negotiating for more cedure. For every other provision of include desperately needed protec- and protections against discrim- authorization vote this week. than just fair wages. While plenty of the union contract, the union will be tions against harassment and dis- ination and harassment. We have Currently, research assistants and law students are under 26 and are able to bring a claim that the univer- crimination in our contract is just learned that BSAs earn just $2,625 course assistants at HLS get paid only able to stay on their parents’ health sity has violated the contract before their latest tactic. Harvard has left us per semester, which is less than half $12 an hour — the Massachusetts min- insurance plan, many others are 26 an independent arbitrator. The uni- no choice but to authorize a strike — as much what teaching fellows in imum wage. We used to make $11.50 or over, or are otherwise not able versity does not want this to be an join us! other departments earn for teaching an hour, before the statewide wage to be on their parents’ plan. Health option in the event a student worker The simple truth is this: The one section. Moreover, while BSAs are increase raised our pay earlier this insurance should be affordable for all is harassed or discriminated against. labor provided by graduate students paid significantly less than equivalent year. BSAs get paid even less: By some students at the law school, if not free. Instead, the university wants student makes this place run. Legal Research positions in other parts of the univer- of their own estimates, they make as Currently, student health insurance workers to rely on the Title IX pro- and Writing (LRW) could not exist sity, you have been asked to take on low as $8 an hour, which is less than costs $3,700 per year, and it costs cess, the same process that has failed without the BSAs, and virtually all additional responsibilities this year the minimum wage. Meanwhile, HLS almost $12,000 a year to enroll a students in other Harvard schools. In the research published by HLS fac- with no additional pay. We are grate- is asking students to take on more and spouse and child. the Government Department, Profes- ulty relies on student research, just ful to have more class time with you more debt, as tuition has skyrocketed Harvard allegedly has a Student sor Jorge Dominguez was accused of to give two of many examples. If and we know that you enjoy teaching 57% in the same period of time. Health Planning Committee with sexual harassment multiple times, Harvard will not give us the wages, us, but we believe you deserve pay on This is not normal, and it is not student representatives who “provide for decades, yet continued teaching health care, and protection against par with your peers. We also know acceptable. Graduate student work- valuable input.” However, as law stu- until students inspired by #MeToo harassment and discrimination that graduate students like you have often ers at other schools within Harvard dents, none of us have ever received forced Harvard to take meaningful we have earned, we must be prepared struggled to access the mental health, are paid significantly better, often an email that mentioned the exis- action. to withhold that labor. Harvard has vision, dental, and dependent health- earning $20 an hour or more. We tence of this committee, much less This is in stark contrast to the left us no choice but to authorize a care services that they deserve, and shouldn’t have to be fighting tooth solicited our opinion. We also had Harvard Graduate Students Union, strike — join us! we have learned about the adminis- and nail for fair wages at the richest no say in which students represent which represents thousands of stu- tration’s failures to respond to stu- university in the world, but Harvard us, nor do we even know who they dent workers on campus. We elected Jon Levitan is a 1L, Sebastian Spitz is dent workers’ complaints of discrimi- has given us no choice. are to be able to pass along our con- our bargaining committee represen- a 2L, and Vail Kohnert-Yount is a 3L. nation and harassment. Students come from various cerns. Our elected union bargaining tatives in a democratic process, and All are members of the HLS Labor & Though we only recently arrived at economic backgrounds and have team, by contrast, is fighting hard to we regularly receive updates through Employment Action Project. HLS, we know that student workers have been working to secure a fair contract for a year and a half. And yet, the university administration has consistently stalled in negotia- tions and refused to address student workers’ core concerns. We believe Our Bicentennial Crisis: that a strike authorization vote — and potentially a strike — has become a necessary step in the effort to secure Remarks introducing October 2019 key rights and benefits in our union contract. As future RAs, TAs, and BSAs, we have an obvious interest in making sure that graduate student HLS Ralph Nader speech event workers are treated fairly, and we appreciate your efforts to that end. Harvard Law School has repeat- By Pete Davis edly emphasized the essential roles that BSAs perform as writing and research instructors and as men- tors and advisors for first-year law to summarize them, very briefly, here — to prepare us for good work that academy — including $18 million students during Orientation. As the today. could, together, earn similar celebra- from the Olin Foundation to Harvard wealthiest university in the world, tions of long-awaited triumph in the Law — to bend the law in a corporat- Harvard University has no excuse * * * future. ist direction. for refusing to provide fair wages and At the very least, Harvard Law And yet, in this time of crisis, we benefits for its student employees But before I do, I want to begin should introduce us about crises in at Harvard Law are failing as a com- who must balance their lives, their with a story. the law. And there sure are a lot of cri- munity to wake up to the seriousness courses, and their important job Has anyone here been to the ses in the law today. Judge Learned of this crisis. For every one student responsibilities as BSAs. We believe Orpheum in Boston? It used to be Hand, Class of 1896 said: “If we are going forth from HLS to work in orga- that you, our BSAs, deserve to be called the Boston Music Hall. And if to keep our democracy, there must nizations dedicated to helping the compensated and treated fairly — there is one event in American his- be one commandment: Thou Shalt bottom 90% of the income bracket, and we know that your working con- tory that I think every Harvard Law Not Ration Justice.” You are in law four to five students go forth from ditions are our learning conditions. student should learn about — it is school at a time when we are severely HLS to work in organizations dedi- We therefore strongly support you what took place there on December rationing justice. cated to helping the most wealthy and in exercising your right to strike. By 31, 1862. powerful people and organizations in doing so, you will help advance the At midnight that night, the Eman- America. mission of HLS — “to educate leaders Credit: Pete Davis cipation Proclamation would take You are in law This is because the major thrust of who contribute to the advancement effect. This was a big deal — it was the Harvard Law experience is in this of justice and the well-being of soci- Hello all — glad to be back at HLS! the culmination of decades of work school at a time direction. ety” — starting right here on campus. About two years ago, I published a by members of the abolitionist move- We have a culture that fails to report — Our Bicentennial Crisis — ment. And hundreds of abolitionists when we are severely spark public-spiritedness. The law is In Solidarity, that speaks to many of the themes were gathered in the Boston Music taught as a game — and “geniuses” are Ralph is going to talk about today. Hall to celebrate together. rationing justice. praised regardless of their civic com- 335Harvard Law School 1Ls The report came out of a tension On stage, William Lloyd Garri- mitment. A cult of smart dominates. I was feeling during my time at Har- son, the tireless abolitionist news- We have a curriculum that paci- vard Law. I bet it’s a tension many of paperman, wept next to Frederick In criminal law, we are rationing fies students. Our first year curric- you probably feel. As we were leading Douglass, the world-famous author justice. Since 1995, real spending ulum is stuck in a century-old mold HLS Student up to the Bicentennial, everyone was and orator who had escaped from on indigent defense has fallen while that exists outside of time. What do I talking about how amazing HLS is — slavery 24 years prior. Next to them felony cases have risen. ~95% of mean by exist outside of time? First, Organization we have Supreme Court justices, sen- was armed liberator and Union spy cases are settled through plea bar- it doesn’t teach the history of the law ators, famous alumni coming back to Harriet Tubman. Up on the balcony gains, without a trial by jury. For — too much time spent asking “Why Letter in Support party; look at all we’ve done in our was Harriet Beecher Stowe, author of many Americans, the experience of must the law be this way?” and too two hundred years; look how many Uncle Tom’s Cabin. their criminal defense is “Meet ‘em, little time spent asking “Why did of the HGSU Strike brilliant things have happened here. At midnight the clock towers tolled greet ‘em, and plead ‘em.” And this of Authorization Vote But at the same time as the admin- and the hall erupted. The Reverend course has contributed to the enor- istration was ramping up the cele- Charles Bennet Ray, an Underground mous spike in our prison population We at Harvard bration, public interest law students Railroad promoter and editor of The during our lifetimes. We, the undersigned official and were sounding the alarm: of a school Colored American, began to sign a In civil law, we are rationing jus- Law are failing as a unofficial Harvard Law School stu- overtaken by corporate interests and hymn that the whole crowd joined in: tice. 4/5ths of the civil legal needs dent organizations, represent a broad losing relevance to the average Amer- “Sound the loud timbrel o’er Egypt’s of poor Americans go unmet. Local community to wake cross-section of students and student ican; of a watchdog of the law largely dark sea! Jehovah hath triumphed, legal aid offices say “two-thirds of workers at HLS. After winning our asleep as the institutions of the rule His people are free!” those who walk through their doors up to the seriousness union in April 2018, we were excited of law and equal justice under law Their decades of work had paid off aren’t getting help.” This means to win a strong first contract that were under siege; and of a law school — they had won a victory of humanity. mothers evicted from their homes, of this crisis. guaranteed fair pay, comprehensive community that had lost track of its I wanted to share this story because domestic violence victims not getting and affordable health care, support declared mission to — and this is the the message you too often get at Har- restraining orders, elder abuse going for international student workers, formal Harvard Law mission state- vard Law School is that “it is what unchecked, and veterans not receiv- the law end up this way?” Second, and protections against discrimina- ment — “educate leaders who con- it is” that nothing ever changes and ing their rightful benefits. While this it doesn’t teach the future potential tion and harassment. tribute to the advancement of justice there’s nothing you can do about it. is happening, other nations are out- of the law — how things could be, Here at HLS, many hourly workers and the well-being of society.” What happened in the Boston Music spending us 10 to 1 on civil legal aid. what are ways the law could be trans- make just $12/hour (the Massachu- And while I was here, I didn’t buy Hall that night shows that when you And all the while, the top 100 most formed. Third, and most importantly, setts minimum wage) even though we the administration’s responses to this commit to cause — when you push profitable firms are making $28 bil- it doesn’t teach the present of the law, work at a university with a $39 billion tension. When I was a 1L, I brought at it over the course of a long time... lion in profits while only $1-2 billion what is the reality on the ground in endowment. Graduate student work- up concerns with a high-up admin- when you give your varied talents to it worth of lawyers time is spent annu- our legal system — our prison system, ers at other Harvard schools gener- istrator and they literally told me: (writers, speakers, organizers, think- ally on civil legal aid for the poor. our administrative agencies, the cor- ally make at least $25-$35/hour. At “You’ll understand why everything is ers, fighters, layers)... when you don’t And in political life, we are porate firms. HLS, no matter how many hours we the way it is when you’re a 3L.” But give up — you win. rationing democracy. Public interests We have a career-building system work, we need to pay thousands of when I became a 3L, that didn’t come lobbyists are outspent by corporate that nudges toward corporate law. dollars out of pocket for health care, to pass. So instead of getting jaded, * * * interest lobbyists 34 to 1. Tort law, The school treats corporate inter- increasing our already staggering I tried to articulate really clearly antitrust law, consumer protections est work as the “default option” — a six-figure student loan burdens. And, what was the problem — and what we Now I wrote Our Bicentennial are being crippled by corporate inter- process that culminates in first year if we face discrimination or harass- could do about it. Crisis because I think Harvard Law ests lawyers and lobbies. Corporate students being wine-and-dined by ment, we lack access to a fair, neutral, So, you can read about my findings should do a better job of helping interest foundations have paid tens in Our Bicentennial Crisis, but I want attach us to today’s respective causes of millions of dollars to the legal Continued on page 4 Continued on page 4 4 The Harvard Law Record November 8, 2019

HLS Student Organization Letter in Support of the HGSU DisOrientation: Strike Authorization Vote Continued from page 3

third-party grievance procedure A Call For Self-Preservation through which to bring our claims. Together with the 4,500 graduate For more information please read the DisOrientation Guide student workers across this univer- sity, we recognize that student work- ers should have a voice in the deci- sions that are made about our lives The students who excel in law while we are part of this institution. schools—and the best lawyers—are Over the past year, we have been the ones who are able to detach law disappointed to see the university and to see it as a system that makes administration stall in negotiations sense only from a particular view- and oppose student workers’ efforts point. Those lawyers can operate to secure basic rights and protections. within that view, and then shift out Over the past year, student workers of it for purposes of critique, analy- have: told our stories at the bargaining sis, and strategy. table; signed petitions; and held rallies, pickets, and work-ins. Despite these - Professor Mari Matsuda1 efforts, the administration has consis- tently failed to agree to a fair contract. Deal 1Ls, Therefore, we support and endorse the Harvard Graduate Students Union You are now in week 6 of strike authorization vote. We urge our your 1L year. You have sat through members who are working as BSAs, Contracts, Property, Civil Proce- TAs, TFs, and RAs at HLS or other dure, Torts, Criminal Law, and/or Harvard schools to vote “YES” in the LRW. You have probably experi- strike authorization vote. And we call enced heightened anxiety, nerves, on the Harvard administration to stress, or exhaustion from all the agree to the strong contract that stu- micro- and explicit-aggressions dent workers need and deserve. and emotional labor and boredom because of the unstimulating cur- Signed, riculum. You might have felt out of place because you are one of the American Civil Liberties Union - HLS few LGBTQ, low-income2, POC, American Constitution Society - HLS womxn, or differently-abled stu- Alliance for Reproductive Justice dents in many spaces on campus. Asian Pacific American Law Students You may have felt that students can Credit: Disorientation Association dismiss your entire existence when Black Law Students Association explaining the holding of a case of the legal profession, create a If you feel in any way similar school. The law is taught matter-of- Civil Rights-Civil Liberties Law Review and, then, when you speak up, you toxic law school environment that to this, it’s not you, it’s HLS. factly through colorblind discourse Coalition of International Students are labeled divisive. Yet, you weren’t produces real cognitive and psy- with the Professor concentrating the and Global Affairs prepared for any of this during your chological impacts. In a 2018 sur- In fact, it’s the entire law school production of knowledge. Students Disability Law Students Association orientation. vey, 25% of HLS students reported experience and legal profession, are indoctrinated to master case law, Harvard Law and Policy Review As you sit in class or walk that they experience depression which is designed to reproduce these internalize the rules and rationales, Harvard Legal Aid Bureau through the banal, white halls of and 24% reported suffering from oppressive social hierarchies. Spe- and communicate in a new abstract Harvard Parity Project HLS, probably putting on a mask anxiety, and 66% of respondents cifically, the toxic, competitive, and legal writing style. However, we are La Alianza at HLS for your self-preservation, you may only started exhibited these men- exhausting law school environment not encouraged to challenge, contex- Lambda at HLS have also felt the anxiety and stress tal health issues in law school. Yet, is intentionally designed to mold over tualize, dismantle, build community Labor and Employment Action Project of knowing that people back home HLS has refused to publicly release 80% of HLS students to enter the rat power, or develop new paradigms National Lawyers Guild - HLS are figuring out how to respond to findings following a student men- race of big law3. of decolonial knowledge. We often Progressive Jewish Alliance at HLS the injustice brought on by struc- tal health survey in 2017 or adopt If you feel that the law school cur- avoid open discussions of racism Project No One Leaves tural oppression. These experi- most of the requested changes to riculum does not speak to any of your and inequality while studying laws Tenant Advocacy Project ences, combined with the overtly the availability of mental health experiences or reasons for attending Unbound competitive and hierarchical nature services. law school, it’s not you, it’s the law Continued on page 5 Women’s Law Association

Our Bicentennial Crisis: Remarks And then there’s all the things not in terms of public interest careers in passed, he decried it for not including Reginald Heber Smith, who created introducing October 2019 HLS covered under pro bono. There was a non-profits, government and educa- voting rights. When the 15th Amend- the American concept of legal aid, Ralph Nader speech event “learn about pro bono” campus event tion? Yale, Georgetown, Northeast- ment passed, he decried it, because it and Charles Hamilton Houston, the Continued from page 3 put on by a major law firm. When I ern all outperform Harvard on public did not redistribute property to freed- man who killed Jim Crow. asked if a member of their firm could, interest work after graduation. And men. “Suffrage is nothing but a name There’s the Harvard that during corporate firms and an “Early Inter- say, use their pro bono hours to give CUNY Law trounces us. because the voter has not … an acre the Civil Rights Movement produced view Program” that streamlines cor- legal advice to Walmart employees A final excuse is usually, “Fine, but from which he could retire from the these reports in the Harvard Law porate interest recruitment. aiming to organize a union, the firm at least Harvard Law is a path to the persecution of landlords.” And soon Record: When I was here, we even had responded, “Well, no, Walmart’s one upper class for students — it’s a path the Radical Republicans in Congress “For the most part [3Ls] who a mandatory field trip to corporate of our clients.” to the American dream.” But avail- took up his cause. He became known have jobs in southern cities will be interest firm. The school career office Charitable giving is a similar able data shows that the majority of as “abolition’s golden trumpet.” doing corporate, tax and business even provided materials that encour- story. The most giving law firms only students at Harvard Law School are And not just that — he demanded work. Although a significant num- aged students to pursue revolving give about one tenth of one percent from families at the top of the income that the World Anti-Slavery Conven- ber expressed interest in criminal door work: Joining a firm, leaving for of their revenue to access to justice bracket. Available data indicates that tion have women delegates. He helped and civil rights cases, none said a government agency that regulates efforts. Total revenue for the Top 200 about 77.5% of Harvard Law students the National Women’s Rights Central they would seek them, particularly their clients, and then returning to the firms is $96.3 billion. Total funding are from families that make more Committee organize conventions in the first few years of practice.” firm to trade their government con- for all civil legal aid for low-income than $95,000 a year and have more throughout the 1850s. He advocated “A higher, but not high fraction nections for higher corporate salaries. Americans is $1.4 billion. Total dona- than $175,000 in net worth. This for the idea that the 15th Amendment of first- and second-year students Now think about what this means tions by all lawyers and law firms to means that if you come from a family granted citizenship to Native Ameri- showed interest in civil rights work, to Harvard Law’s relevance to the civil legal aid is $95.8 million. with double the median net worth of cans and demanded Andrew Johnson but only one expected to devote his country. If you’re a person in an There’s also the “everybody American families, you would still be create a cabinet position for indig- professional career to it.” overcrowded legal aid office and you deserves a lawyer” excuse. Sure, in the bottom quarter of the economic enous people’s rights. When opin- “One [3L] from the Deep South learn 80% of students receiving the everybody deserves a lawyer. But bracket at Harvard Law School. ion turned against Native American said he would consider civil best education in the country spend let’s look at who is getting lawyers in advocacy after the Battle of Little Big rights work “if there were any their time advancing the interests of this system. The reality is that a dis- * * * Horn, he arranged public forums to hope of doing any good. It takes the wealthy and power, what would proportionate number of corporate educate Americans on the harm of a lot of guts and idealism to go you think? If you’re a person plead- interest firm clients are white and And then there’s the worst excuse “Indian Removal” policies. back and work without a chance ing guilt to a crime you did not com- male, while a disproportionate num- — that there’s nothing we can do; of success.” mit after a 15-minute meeting with ber of public interest clients (govern- that it’s not worth fighting. I’d like to And there’s the Harvard Law your public defender, and you learn ment, legal services, education and respond to this excuse with another We have a choice where one student in the Class of hardly any Harvard Law students non-profit constituencies) are women story from that night in Boston Music 1964, Elizabeth Holtzman, had the go on to work in public defense after of color. Almost 70% of recent Har- Hall in 1862. There was a man on of what version of guts to spearheaded the Civil Rights school, what would you think? Does vard Law graduates work in just four stage that night named Wendell Phil- Research Council at Harvard Law, it matter to a refugee that we pro- states: New York, D.C., Massachu- lips. He was a member of the Harvard Harvard Law we want serve in Albany, Georgia for civil duced Supreme Court justices if more setts, and California. In fact, more Law School Class of 1834. rights groups during her summers, of us will spend our time filling out graduates work in New York than in Phillips was a born and raised to embody in our lives. and spend her time at HLS getting paperwork to help the powerful move 47 other states combined. Harvard man. Grew up on Beacon the word out about what was happen- money across borders than will spend Another excuse is that students Street, perfect manners, well-con- ing in the South and diverting some our time filling out paperwork to help might be going into corporate inter- nected, Boston Latin School, 7th in The whole time, he ruffled feathers. of Harvard Law’s resources to better the most vulnerable people at our bor- est work, but most will return to his class at Harvard College, entered He called Daniel Webster — whose support the cause. ders? If you’re a midwestern governor public interest work later. In fact, Harvard Law in 1831, got along with standing in Massachusetts was like There’s the Harvard Law of the looking for someone to staff a state Only 7.2% of Harvard Law graduates everyone. And of course, when he the Kennedys are today — “a great 2000s that hired two famous profes- agency, do you care about Harvard’s who are working at large firms three graduated in 1834, he started a fancy mass of dough.” Abraham Lincoln sors fresh off their apologetic for state placement rate at New York corporate years after graduation are working in law practice on Court Street. was a “huckster” — “the slave-hound killing — and the Harvard Law that interest firms? Seen through the eyes public interest organizations 12 years But one year out from graduating, of Illinois.” Harvard, to Phillips, was admitted Gina Clayton, Class of 2010, of America, we risk irrelevance. after graduation. he saw an angry mob storm a wom- controlled by businessmen — and who founded the Essie Justice Group en’s anti-slavery meeting, rough up dishonest about its commitment to to harness the collective power of * * * William Lloyd Garrison, and parade abolition. Southern sympathizers women with incarcerated loved ones Seen through the him mockingly through the street. and moderates hired brass bands to to fight mass incarceration. Now, when I raised these cri- What shocked Phillips most about the drown out Phillips talks. When he There’s the Harvard Law I talk tiques two years ago, there were a lot eyes of America, we mob was that it was largely composed died, one elderly Beacon Hill resident about in Our Bicentennial Crisis and of excuses — what some might call of fellow “gentlemen of property and — his own neighbor! — said that he today, and there’s the Harvard Law “work avoidance mechanisms” — that risk irrelevance. standing” — friends and acquain- would not attending Phillips’ funeral, that produced the creators of the Peo- the community throws up in defense. tances from his elite upbringing. but he wanted everyone to know that ple’s Parity Project, fighting forced But what I tried to do in the book is to His curiosity now shocked awake, he he approved of it. arbitration across the country. systematically examine each of these Let me put it bluntly. If the 1L class reached out to a recovering Garrison But because of this work, Phillips We have a choice of what version excuses — and when you do, they is no different than any other class, to ask him about abolition. There was got to celebrate up on that stage on of Harvard Law we want to embody don’t hold water. then about 400 of you are right now no going back. that night in 1862. He got to be eulo- in our lives. The first excuse is usually “pro interested in public interest careers. Phillips soon quit his law prac- gized as “the man who as a private Dorothy Day once said that “the bono work and charitable giving blurs If your class is the same as any other tice and started traveling around the citizen, has exercised a greater influ- biggest mistake sometimes is to play the divide” between public interest class, we can expect about only 100 country speaking out against slavery. ence upon the destinies of this coun- things very safe in this life and end and corporate interest work. But of you to pursue public interest work He was really effective, because his try than any public man of his age.” up being moral failures.” Many of us when you run the numbers, you find after graduation while 300 of you law school education helped sharpen came to law school because we have a that lawyers at major corporate firms will not. And then among those 300 his rhetoric — and his genial style * * * part of us that plays it safe — we have give less than eight minutes per day of you who immediately go into big helped sneak through the militancy a part of us that is risk averse about to pro bono. Only 18 of the nation’s firm work for 3 years, only about of his message. Picture this guy, Har- You probably wouldn’t have our careers. But with crises like the 100 biggest corporate interest firms 15 of you will have switched over to vard chipperness, saying things like: expected that out of a member of the ones we face today, there are bigger meet the 50 pro bono hours per year public interest work 12 years after “The spirit of freedom and the spirit Harvard Law Class of 1834. We must risks to consider. per attorney challenge. Our own graduation. of slavery are contending here for not get jaded — we must be open to Let’s get to work. career services office states: “Firms When we get to this point in the mastery...they cannot live together.” surprise. like to emphasize their commitment conversation, people like to say, “Well, He didn’t stop for the rest of his There’s always been two Harvards: Pete Davis ’18 was the editor in chief to pro bono,” but they “are increas- you might be right, but this involves life — he joined anti-slavery societ- there’s the Harvard that Upton Sin- of The Record and is the author of ingly mindful of becoming more like factors beyond Harvard Law’s con- ies, supported anti-slavery boycotts, clair said was a study in “class igno- “Our Bicentennial Crisis: A Call to a business where billable hours and trol?” But if that’s the case, why is wrote articles, and assisted fugitive rance, class fear, and class repres- Action for Harvard Law School’s profitability reign supreme.” Harvard losing out to other schools slaves. When the 14th Amendment sion”; and the Harvard that produced Public Interest Mission” November 8, 2019 The Harvard Law Record 5 Notorious RBG: The Life and Times of Ruth Bader Ginsburg A conversation with Josh Perelman, Chief Curator & Director of Exhibitions and Collections at the National Museum of American Jewish History

The National Museum of Ameri- RGB and her husband Marty, the arriving in the United States: the attended a dinner with the law school can Jewish History is debuting the significance of their relationship opportunity to arrive in the States dean, Erwin Griswold. One of his first-ever museum retrospective of to RBG, and the significance of the to define their own paths as individ- first questions to the women seated the Supreme-Court-Justice-turned- relationship to RBG’s career. uals, as Jews, and as professionals. in the room was how they could jus- pop-culture-icon, Ruth Bader Gins- Finally, RBG already has a presence Another aspect, which is extremely tify taking the place of a man in law burg. The exhibit is open from Octo- in this museum — her presence is relevant to the Jewish soul of the school. In many ways, this speaks ber 4, 2019 through January 12, sprinkled throughout our core exhi- museum, is the endemic story of jus- for the attitude at Harvard at that 2020. bition. Since we opened the museum tice that the exhibition represents time and the attitude of society at Credit: Notorious RBG book cover in 2010, part of the museum is an and that RGB represents herself. that moment in our history. illustration by Adam Johnson. Courtesy The Record: What was the moti- installation on the first floor called She has talked about the influence Later, her husband, Marty, was of HarperCollins. Photographs: Crown vation for the Ruth Bader Ginsburg “Only in America,” which features of Judaism and Jewish values on her diagnosed with testicular cancer. © by Hurst Photo/Shutterstock; Ruth exhibit and what would you like 20 prominent American Jews in its own moral compass and her own set She spent time taking care of him, Bader Ginsburg, Collection of the people to take away from it? hall of fame. It has films about each of values. and once he recovered and she was Supreme Court of the United States.” Perelman: First and foremost, the one of those people. One of them The Record: What can the HLS returning to her legal training, she exhibit is an opportunity for the features RBG talking about one of community take away from the wanted to finish her degree at Har- the mid-1950s. But unfortunately, National Museum of American Jew- her heroes, Louis Brandeis. In con- exhibition? vard but take her last few classes as Justice Ginsburg’s principle focus, ish History to tell the story of one of junction with the exhibition, we will Perelman: One of the marvelous Columbia. Dean Griswold did not gender discrimination, remains a the most prominent, influential, and be inducting RBG into the Only in things about Justice Ginsburg is her allow this, and she actually gradu- pervasive issue in our society. Some inspiring figures in our lives today. America Hall of Fame — a fitting capacity to have deep relationships ated from Columbia University. fifty years after RBG’s time at Har- To tell the story of Ruth Bader Gins- tribute that is happening in conjunc- with people of all political persua- The gender discrimination she vard, gender discrimination is tak- burg, an American Jew, who is so tion with the exhibition itself. sions. Her fundamental desire to experienced at Harvard reoccurred ing on new meanings that we need intimately involved in the interpre- The Record: Given the Museum’s expand freedom in this nation seem throughout her career. After she to confront. tation of the Constitution, from the focus on Judaism and Jewish life to me to be one of, if not the, hall- graduated from law school it was The Record: Is there anything location from where the Constitu- in America, how does Justice Gins- mark of her legal career, and some- extremely difficult for her to find a else you would like to tell the HLS tion was signed, is simply a remark- burg’s story relate to those overar- thing the Harvard Law community job. She eventually found a profes- community? able opportunity. ching themes? can take away from the exhibit. sional home, initially at the ACLU, Perelman: First of all, the Harvard Second, the exhibition is both enter- Perelman: RGB once said, “What’s The Record: How have you and her advocacy on behalf of wom- community should come and visit taining and deeply personal. While the difference between a book- explored the impediments Justice an’s rights was an uphill battle at the museum and see the exhibition! the cases it highlights are quite keeper in the garment district and Ginsburg faced as a woman? the time. Her own experienced with Second, for those who are inter- relevant to our own time, I do not a Supreme Court justice? One gen- Perelman: The exhibition is based gender discrimination and the pres- ested in American legal history or think it is an accident that RBG has eration.” Part of the story that this on the book “Notorious RBG.” It’s sures that she faced as a woman are specifically interested in RBG, I become such a prominent popular exhibition tells is about the chain authors, and therefore the exhibi- seeking to achieve in largely male think the uniqueness of the material culture figure. Part of that derives of generations within the American tion, highlight a number of the barri- world would be incredibly influential in the exhibition and the ability to not only from her leadership on the Jewish community, the progression ers that RBG faced along her career, on the choices that she would make explore RBG’s world from the inside Court, but also from what her life of Jews from immigrants, and their most principally barriers related to as a lawyer, as a judge, and now as a out is unique. For lawyers in train- represents: a life of perseverance, integration into American society. being a woman. Justice. ing at Harvard, understanding the of relentless idealism and a strong Clearly RBG is someone who has She faced these barriers when she The Record: What lessons do you legal history that RBG represents is sense of justice. been accomplished at the highest came to law school despite the fact think we can draw from Justice critical. I personally, in putting the exhi- level. Her statement about the dif- that she was an extremely high Ginsburg’s journey? bition together, developed a much ferences between a bookkeeper and achiever and one of only two women Perelman: Times have certainly More information about the exhibit deeper understanding of the inti- a Justice reflects the opportunities to make the Harvard Law Review. changed, and Harvard is a very can be found at www.nmajh.org/ macy of the relationship between that immigrants have had upon After entering law school, RBG different place now than it was in exhibitions/rbg/

DisOrientation: A Call For answers for. By failing to make these continue this fight. Groups on cam- adequate legal aid. They’re not here Self-Preservation substantive changes, HLS, and ten- pus are calling for gender equity at because too often brilliance is only Continued from page 4 ured faculty members who serve in HLS, ending harassment and dis- acknowledged when it accompanies a Why I’m leadership capacities, reproduce the crimination in the legal profession, certain race or zip code or pedigree that perpetuate, and are sometimes oppressive social hierarchies and a graduate student union and labor or socioeconomic status or gender explicitly rooted in, racism, white contribute to the justice gap. That protections, better financial aid poli- presentation. They are not here due Running for supremacy, xenophobia, ableism, and is, while over 80% of HLS graduates cies, ending racism on campus, estab- to the plunder and exploitation that social inequality. Our legal system work in big law, over 86% of low-in- lishing an HLS diversity & inclusion elite big law firms facilitate, and carries a legacy of genocide and cod- come people in the U.S. do not have committee, CRT and diverse faculty, because those intergenerationally at the Board of ifying forced displacement of Native their legal needs met annually and reparations, divestment from the the margins lack basic access to legal Americans, abuse and claimed own- 71% of low-income households expe- Prison Industrial Complex, estab- aid and services. ership of black and brown bodies, rience at least one civil legal prob- lishing a movement lawyering clinic, We invite all law students to Overseers and institutionalized injustice. Law lem, according to a 2017 report from and ending the US-backed Israeli set- engage in an act of self-preservation school is a political institution and, the Legal Services Corporation, an tler-occupation in Palestine. In 2019, and political warfare by preserving to the extent that it replicates a sys- independent government nonprofit. students organized the first Critical the many energies, ancestral sto- By Thea Sebastian ries, visions, struggles, peoples, and communities which inspired you to come to law school and fight for jus- As a student at HLS, I watched the tice. By hosting DisOrientation, we University struggle to navigate its refuse to continue to endure the bur- educational, ethical, and fiduciary den of neutrality and colorblindness responsibilities. I was a student placed upon students of color at this when a grand jury chose not to indict institution. We refuse to accept that in the Michael brown case, trigger- HLS is a neutral force in the world ing a wave of protests demanding and reject the legal fiction of objec- structural change. I sat in the WCC tivity and liberalism that HLS uses lounge, called “Belinda Hall” then, to stifle and suppress our demands. as student organizers recounted We acknowledge that the HLS cur- meetings with administrators. And, riculum is inadequate to address through these experiences, I real- the violent experiences of people ized something important: Students globally. By continuing this move- need a seat at the table. ment of resistance, and by bringing DisOrientation to Belinda Hall each year, we not only challenge the acts of silencing that this institution seeks to impose, but we do so through the power of coalition-building, ances- tral memory, and by producing our own knowledge and unabashed pride for our lived truths that have made us who we are today. This institution will not make us water down who we are in order to exist in its walls; rather, our self-preservation is the most powerful act of resistance we bring to this space. Today, and every day, we call upon our peers and com- munities to remain endlessly aware, Credit: Cloris Ying on Unsplash endlessly critical. We invite the law school faculty, tem in which resources and privi- HLS is complicit in making it struc- Race Theory Conference in an effort HLS students, and the community to leges are allocated in an irrational turally difficult for us to actually to increase CRT faculty, unite student engage with us. Credit: Clarissa Kimmey or unfair way, it is an instrument of serve those most in need in society efforts, and produce radical scholar- oppression. by funneling us to the highest cor- ship and new legal frameworks. As Signed, Harvard routinely makes deci- It is a political choice that HLS porate bidder. has been demonstrated, when we sions that affect students and recent does not offer a curriculum that HLS has always been a deeply organize, we win! A Collective of DisOrientation alumni deeply. The University could help law students build a more politically contentious environment. DisOrientation is meant to Student Organizers invests what could be billions in just, equitable, and free world. Yet Recently, HLS, through the Dean of reclaim our history of struggle and fossil fuels, though it’s our future HLS, like other law schools, contin- Students Office, has tried to surveil to organize our own production of 1 See Mari J. Matsuda, When the at stake, and maintains millions in ues to place high structural barriers and attempt to squash our voices, knowledge to create radical localized First Quail Calls: Multiple Conscious- a prison-industrial complex that’s in the way of our ability to pursue often by isolating students and knowledge, so that we may develop ness as Jurisprudential Method, 11 tearing families apart. Meanwhile, public interest work sustainably by, threatening disciplinary actions. our own decolonized praxis and not Women’s Rights Rts. L. Rep. 7 (1989). administrators are constantly for example, burying us in piles of However, we are reminded that his- use the master’s tools to dismantle 2 77.5% of HLS students are from navigating questions around sex- debt and structurally handcuffing us. torically students from marginalized the master’s house. DisOrientation families that make more than $95,000/ ual assault, institutional racism, For those of us from first-generation, communities – namely folx of color, critically acknowledges the native year and have more than $175,000 in resources for public interest, and low-income, or immigrant house- LGBTQ folx, womxn, and disabled Massachusett people whose land we wealth holdings. other issues that directly affect stu- holds (who must financially provide folx – have always fought (and even stand on and which was taken by the 3 See also, Ben W. Heineman, Jr. Wil- dents and recent students. It’s won- for our families while in law school), sued) the school to ensure that they Commonwealth of Massachusetts liam F. Lee, and David B. Wilkins, “Law- derful when administrators consult there are almost no roads to pur- could be here. Our existence, voices, via a mass genocide. We also recog- yers as Professionals and as Citizens: students on these vital topics. But, as sue social justice work as a career, and ideas are always points of conten- nize Belinda who, in 1783, sued the Key Roles and Responsibilities in the any burgeoning lawyer knows, insti- despite HLS’ $1.7B endowment. For tion and resistance on campus. For man who enslaved her, Isaac Royall 21st Century,” Center on the Legal Pro- tutional design matters: Real impact students of color, the racial dispar- decades, students, often supported – the same man whose slave trade fession at Harvard Law School. ht t p:// requires real power. ity in the amount, repayment, and by faculty, have continued the tradi- wealth established HLS – for unpaid www.law.harvard.edu/programs/ Our five-person Harvard Forward impact of student loan debt com- tion of not only fighting for space but compensation and won, securing corp_gov/articles/Heineman-HLS- slate, composed entirely of recent pared to white students is stark and for deep structural change. Students an annual pension of 15 pounds, 12 CLP-11-20-14.pdf (Discussing how the graduates, wants climate justice and places additional burdens. Yet, when have fought to reclaim our space and shillings. We also recognize all those for-profit companies and law firms a new framework for ethical invest- we advocate for equitable financial create new critical pedagogies that who cannot attend because they are establish the norms, required skills, and ing. Above all, though, we want to aid policies, we are largely denied. center the voices of marginalized behind the prison walls or deported market that law schools should adhere take your voices — and the voices of But why? This is one of the many people and view the law as a tool for by a society that criminalizes and to in developing its programs, curricu- recent alumni — and give your con- questions we are still waiting for structural social change. Today, we cages with impunity but who lack lum, and skill, and curriculum. cerns real force. 6 The Harvard Law Record November 8, 2019 What Every Harvard Law Cartel Control of Student Should Know Attorney Licensure and About Blockchain By Joel Weight the Public Interest

By Robert C. Fellmeth, Bridget Fogarty of true value ownership, we can now Gramme and C. Christopher Hayes securely transfer value without hav- ing to establish trust in the counter- party. No more fraudulent e-tickets. No fraudulent checks from Nigerian to the development of useful skills malpractice to recover from “client princes. The value is transferred in most of the 24 disparate areas of security funds”; and settles near instantly. No need actual practice (e.g., administrative, d) Do not require post-licensure for trust intermediaries to enable bankruptcy, corporate, criminal, “legal education” in the area of an exchange. family, taxation, et al.). And schools attorney’s practice; 4. Blockchain will affect most often pay scant attention to legisla- e) Do not test attorneys in the area industries including identity, land tion, administrative proceedings, or of practice relied upon by consum- titling, money, capital markets, sup- Credit: University of San Diego the distinct areas of law that will be ers—ever; and ply chain and voting. Where there’s a relevant to a student’s future practice. f) Respond to cost-effective, tech- ledger there’s a possibility (though not The purpose of regulating any Fourth, state bars rely on sup- nology-centric solutions to legal always a need) for blockchain. Infor- profession is to assure competent ply-constricting bar examinations of problems not by regulation to assure Credit: Medici Ventures mation about value can be shared practitioners, particularly where questionable connection to compe- consumer benefit, but by attempts to instantly helping remove friction in its absence can cause irreparable tence assurance. In the largest state categorically foreclose them in favor What it is: Blockchain is a shared current processes. harm. Regulatory “licensing” ide- of California, the bar examination of total reliance on often unavailable/ ledger that uses cryptography to 5. Blockchain isn’t inherently good ally achieves such assurance, while expensive counsel. ensure the validity of each transaction or bad, nor is it magic. Blockchain at the same time avoiding unneces- No area of state regulation has on a distributed network. is a new combination of existing sary supply constriction. The latter The universal more openly violated federal anti- 1. Blockchain holds the promise technologies. can mean much higher prices and an trust law than has the legal profes- of democratizing capital, eliminat- 6. When you stop hearing about inadequate number of practitioners. delegation to attorneys sion. The United States Supreme ing middle men, and re-humanizing blockchain you’ll know that it’s gone Regrettably, the universal delegation Court held in 2015 that any state body commerce. mainstream. You don’t hear about how to attorneys of the power to regulate of the power to controlled by “active market partic- 2. Blockchain enables true value an application is “database enabled.” themselves has led to a lose/lose sys- ipants” in a profession regulated is ownership. There’s no super user or Blockchain will be one more tool in the tem lacking protection from incom- regulate themselves not a sovereign entity for antitrust central administrator that can move IT toolbox. petent practice while also diminish- purposes without “active state super- value, only the owner can transfer that ing needed supply. The problem is has led to a lose/ vision.” Yet four years later, attorneys value to another. Joel Weight is the Chief Operations manifest in four regulatory flaws: continue to regulate themselves with- 3. Blockchain is to value as the Officer of Medici Ventures, a global- First, state bars—in combination lose system. out such supervision, overlooking the internet is to information. Because ly-leading blockchain accelerator. with the American Bar Association— threat of criminal felony and civil tre- require four years of largely irrele- ble damage liability. vant higher education for law school fails about 2/3 of its examinees. This entry. Most of this coursework com- system has fostered an opportunis- Robert C. Fellmeth (HLS ‘70) is a monly has nothing to do with law. tic cottage industry of increasingly consumer advocate and former Second, and related, these sev- expensive preparatory courses that state and federal antitrust prosecu- en-years of mandatory higher edu- further raise the cost of becoming an tor. Bridget Fogarty Gramme is the cation (that only the United States attorney—even after 7 years of higher Administrative Director of the Center requires for attorney licensure) education. for Public Interest Law and adjunct impose extraordinary costs. Those Meanwhile, the bars regulating professor at the University of San costs now reach from $190,000 to attorneys in the respective states: Diego School of Law. C. Christopher $380,000 in tuition and room and a) Do not treat negligent acts as a Hayes is a practicing attorney in San board per student— driven by shock- normal basis for discipline (outside of Diego, California. This summary was ing tuition levels lacking competitive extreme incapacity); reprinted in The Record with permis- check. b) Do not require malpractice sion from Robert C. Fellmeth. The full Third, attorney training focuses insurance—effectively denying con- version of this article may be found in almost entirely on a few traditional sumer remedies for negligence; the British Journal of American Law Credit: Launchpresso on Unsplash subjects, with little attention paid c) Do not allow clients injured by Studies. Complicity

By M. Kelly Tillery

Human chattel slavery existed bankers, manufacturers, railroads, make one physically ill – “Of Title The American legal system ini- first without prohibition by and later shipping companies, wholesalers, To Slaves,” “Of Mortgage of Slaves,” tially treated slaves as it did the with affirmative sanction of law in insurance companies – almost every etc. Reading the cases is even worse. most analogous personal property the colonies that would become and business and profession was to some Frederick Douglass often read slave – livestock. Just as the issue of a then in this country, for 246 years degree involved in, benefited by, or at statutes to his stunned lecture cow was legally the property of the and 4 months, from August 20, 1619 least consumed products created by audiences as stark evidence of the cow’s owner, so was the issue of a (first African slaves at Point Com- slave labor. Cotton, rice, sugar, and astounding inhumanity and complic- slave woman also a slave, belonging fort, VA) to December 6, 1865 (rati- other staples were exported from ity of judges, legislators, and lawyers. to her owner. The property analogy fication of 13th Amendment). From slave states to free states and over- There were, of course, many broke down, however, when the law the moment those first “20 and odd” seas, not to mention that the econo- notable lawyer exceptions. William had to consider non-bovine elements Africans were deposited on Virginia mies of the free states depended upon Wilberforce, one of the handful of – some black people were not slaves, soil, their “owners’” “rights” in and sales of their manufactured goods to abolitionists who brought slavery to and all were thinking property. How to them were defined and protected the slave states. 393,975 Americans an end in the British Empire, was a the legal profession dealt with these first by colonial, then state courts, (out of 31,182,582 – 1.26%) owned lawyer. In 1781, Theodore Sedgwick, anomalies is as creative as it was Credit: Pepper Hamilton LLP by analogy to English common law other humans in 1860. Most of those a slaveholding lawyer, filed a freedom reprehensible. Lawyers and judges of property, even though English law owners had lawyers who assisted made it up as they went along in order Seth Thomas was the antebellum itself did not recognize slavery. them in maintaining and expanding to ensure the sanctity and stability of go-to lawyer in Boston for slave own- Lawyers created and enforced this vile enterprise. One has to wonder this bizarre world. ers seeking to recover their runaway those laws for 2 ½ centuries. Schol- Lawyers represented the compa- Slaves were treated better than slaves – their “property” whom fel- arship covering the essential and nies that insured slaves, plantations, in what injustice livestock in only a few respects – a low Massachusetts lawyer Richard extensive involvement of our pro- and the products of unpaid labor, master, in extreme cases, could be Henry Dana called a “pimp.” Thomas fession in this nation’s greatest the banks that financed the slave we today may, in a held criminally liable for cruelty to or replied that he was “just representing economy, the mills that depended murder of a slave. Unlike livestock, a client in professional fashion and upon slave-produced cotton, and century or two, be slaves could testify in court, though they were entitled to representation Lawyers and judges the shipping and trading compa- not against the interests of any white under law.” True, but was that a suf- nies which shipped the slaves them- viewed as complicit? person, and they were subject to all ficient defense to Dana’s charge? made it up as they selves. Recent scholarship supports criminal laws which covered white One has to wonder in what injus- the theory that slavery actually laid people, plus many that applied only tice we today may, in a century or two, went along in order the foundation for modern Ameri- suit for his client, a slave known only to them. Yet like livestock, slaves be viewed as complicit? Climate dis- can capitalism, such as the creation as “Murbet,” resulting in, perhaps had no civil rights or privileges, and ruption, economic inequality, author- to ensure the sanctity of new financial instruments such as to his surprise, the judicial aboli- were not citizens. Judges were all too itarianism? Will future generations bonds using slaves as collateral. The tion of slavery in Massachusetts. In often willing to use their legal leger- look back on us, as we look back on and stability of this un-secret but seldom highlighted fea- 1777, Vermont lawyers made it the demain to achieve outcomes and cre- those who assisted slavery, and con- ture of the antebellum U.S. economy first state to legally abolish slavery, ate new rules that would maintain or clude that we were complicit, when bizarre world. is that it was completely dependent stating unequivocally in its Consti- even strengthen the chains of human we should have taken a stronger and upon the active and extensive partic- tution that slavery is a violation of bondage. earlier stand? While none of us will be ipation of, and monetary benefit to, a “natural, inherent and unalienable Needless to say, sadly, many in here in 2119, we should be concerned shame, however, is sparse, per- wide variety of professions, compa- rights.” Many abolitionist organi- our profession continued, even long about the legacy of our profession. haps because of complicity. There nies and individuals in the free states zations employed volunteer lawyers after the legal demise of slavery and is extensive literature on slavery - including our profession. who assisted slaves in freedom suits for the following 153 years, to create, M. Kelly Tillery is a Partner in the and the law, but little, and not one Legal academics published trea- and actions against abusive masters. support, and expand laws designed Intellectual Property Group of the book, which focuses on the multi- tises on the “law of slavery,” an oxy- Yet for every such noble member to maintain what Frederick Douglass law firm of Pepper Hamilton, LLP tude of American lawyers who cre- moron to be sure – Jacob D. Sheeler, of the Bar, there was an equal and called the “invisible chains of slav- in the Philadelphia office. He is the ated, perpetrated and, later, the few A Practical Treatise on the Law of opposite other in the South and in the ery” – Black Codes, Jim Crow, “sep- author of numerous articles on a who opposed and finally ended, the Slavery (1837), John C. Hurd, Law of North, willing to represent slave own- arate but equal,” voter suppression, variety of historical and legal topics. “peculiar institution.” Freedom and Bondage in the United ers, overseers, and those with commer- etc. His first book, Sidebar – Reflections of Of course, lawyers were far from States (1858), and T.R.R. Cobb, Law cial interests in slavery – to enforce the You may say that slavery was sui a Philadelphia Lawyer (CreateSpace, alone in centuries of complicity. of Negro Slavery in the United States Fugitive Slave Laws and to prosecute generis and there is nothing today 2018) will soon be followed by Presidents, Senators, Congressmen, (1858). A cursory review of just the those who opposed the Slave Power. with which our profession is as com- Sidebar, Too – More Reflections of a Justices, legislators, state executives, index of any of these is enough to For money, power, prestige - greed. plicit. Are you so sure? Philadelphia Lawyer (KDP, 2019).

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