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Our Bicentennial Crisis OUR BICENTENNIAL CRISIS OUR BICENTENNIAL CRISIS A Call to Action for Harvard Law School’s Public Interest Mission Pete Davis The Harvard Law Record The Harvard Law Record Corporation 1563 Massachusetts Avenue Cambridge, MA 02138 Printed in the United States of America. ISBN-13: 978-0-692-97027-0 Library of Congress Control Number: 2017916238 The Harvard Law Record is the oldest law school-affiliated newspaper in the United States. It has been published since 1946, and its contributors have included presi- dential candidate Ralph Nader, Supreme Court justice William Rehnquist, notable law professors, and writers who have gone on to win Pulitzer, O. Henry, and PEN Prizes. The newspaper has been the recipient of several American Bar Association journalism awards over the past decade. Visit www.HLRecord.org for more information. Contact the author at [email protected] or through www.HLSReport.org. TABLE OF CONTENTS 1. HOLMES’ CHALLENGE 1 2. THE CRISIS OF OUR TIME: MASS EXCLUSION FROM LEGAL POWER 3 2a. Mass exclusion from legal power in the criminal justice system 4 2b. Mass exclusion from legal power in the civil justice system 9 2c. Mass exclusion from legal power in the political system 15 2d. Canon 8 ignored 24 2e. The ability to respond 30 3. HARVARD LAW’S FAILURE TO LEAD 35 3a. Excuse #1: “Pro bono work and charitable giving blurs the divide” 38 3b. Excuse #2: “Everybody deserves a lawyer” 43 3c. Excuse #3: “Graduates take public interest jobs later” 49 3d. Excuse #4: “Students are free to choose” 54 3e. Excuse #5: “This involves factors beyond Harvard Law’s control” 57 3f. Excuse #6: “Harvard Law is a path to the upper class” 59 3g. Harvard Law through the eyes of the poor 63 • v • 4. HOW DID IT GET THIS WAY? 67 4a. A culture that fails to spark public-spiritedness 68 Part 1: Competition as an organizing mechanism 70 Part 2: Competition becomes “The Game” 71 Part 3: The winners of the game: “The Cult of Smart” 74 Part 4: Rankings as enforcement mechanisms 75 A smooth transition to corporate interest firms 76 Alternatives hamstrung 77 4b. A curriculum that pacifies students 81 The Socratic method 81 The case method 84 The reform movements 87 The Great Compromise: “let them eat electives!” 91 The curriculum’s complicity 94 4c. A career-building system that nudges toward corporate law 98 Genericizing corporate interest work 100 Presuming corporate interest recruitment participation 101 The public interest career office’s fight for parity 106 The moral argument quieted 109 4d. A cost structure that dissuades students from public interest work 116 5. STEPS FORWARD IN OUR THIRD CENTURY 121 5a. Reforming our culture 123 Reform #1: Measure public interest commitment 123 Reform #2: Promote a culture of civic ambition 125 Reform #3: Spotlight civic intelligence 127 • vi • Reform #4: Admissions should account for public interest commitment 129 5b. Reforming our curriculum 130 Reform #5: Learn from Gary Bellow’s Clinical Institute model 131 Reform #6: Learn from The School of Public Justice model 133 Reform #7: Incorporate practice and theory into the first year curriculum 136 5c. Reforming our career system 137 Reform #8: Fund and promote career offices around the 51% truce 138 Reform #9: Supplement career-building with vocation-building 139 5d. Reforming our cost structure 142 Reform #10: Limit the real and psychological debt burden of students aiming to pursue public interest work 142 Reform #11: Lobby aggressively for civil legal aid funding 144 Reform #12: Lead a network of needs-based residency programs 148 6. OUR BICENTENNIAL CHOICE 153 INDEX 157 • vii • “If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice.” learned hand, harvard law class of 1896 “To educate leaders who contribute to the advancement of justice and the well-being of society.” the harvard law school mission statement 1. HOLMES’ CHALLENGE Harvard Law School prides itself on being a leader in legal education. As we, the Harvard Law School community, cele- brate our bicentennial this year, we will surely be reminded of the lengthy list of Harvard Law’s historic accomplishments. We are the longest continuously running law school in the United States. It was our Christopher Columbus Langdell who not only standardized the content of the first-year legal curriculum, but also, in joining the case method to the Socratic method, invented the dominant pedagogical model through which that curriculum was to be, and still is, transmitted to American law students. Our Legal Aid Bureau, Law Review, law school newspaper, alumni association, and public interest placement office are each the longest running of their kind.1 “By the visibility of our example,” Joel Seligman writes in The High Citadel, Harvard Law School has “dominated American legal education.”2 When at our best, we have remained relevant for two centu- ries by acknowledging and responding to what our own Oliver Wendell Holmes, Jr. once called “the felt necessities of the time.”3 When the economy modernized and nationalized at the 1 This essay was written with the help of research and aid from Douglas Grant. 2 Joel Seligman, The High Citadel: The Influence of Harvard Law School (1978). 3 Oliver Wendell Holmes, Jr., The Common Law 1-2 (1881) • 1 • turn of the twentieth century, Dean Roscoe Pound worked to have Harvard Law follow suit. When the New Deal called for supplementing the study of the common law with the study of legislation and regulation, we added courses on administrative law and statutory interpretation. In the reformist 1960s, Harvard Law students formed the Black Law Students and Women’s Law Associations, pressed for clinics in environmental and consumer protection, and forced the administration to accept a pluralist approach to legal curriculum and campus life. In the late 1990s, while many were dismissing cyberlaw as a niche subfield—in one judge’s argument, the concept of “cyberlaw” would be as useful as the concept of “horse law”—we were presciently launching the Berkman Center for Internet & Society to address the unique legal quandaries of the digital age.4 If we wish to continue this tradition of leadership in legal education into our third century, we must take up the task of addressing and responding to today’s most pressing legal needs. Indeed, if we aim to remain relevant during our tricentennial, the most important question we should be asking ourselves during our bicentennial is the one that would make Holmes proud: What are the felt necessities of our time? 4 Amy Harmon, The Law Where There Is No Land; a Legal System Built on Precedents Has Few of Them in the Digital World, The New York Times, Mar. 16, 1998 (1998), http:// www.nytimes.com/1998/03/16/business/law-where-there-no-land-legal-system-built- precedents-has-few-them-digital-world.html?pagewanted=2. • 2 • 2. THE CRISIS OF OUR TIME MASS EXCLUSION FROM LEGAL POWER Our generation has witnessed a widespread collapse in trust in the national institutions that unite and empower America. Gallup reports that Americans’ average confidence in U.S. institutions— measured through an index of 14 key institutions, from banks to newspapers to the medical system—languishes at 32 percent.5 Most Americans have come to view our national systems as closed cartels that serve the few rather than open forums that empower the many. The more that Americans lose faith in our institutions, the more cordoned off those institutions become— and the more alienated Americans feel from them. This vicious cycle has not only left us to navigate the confounding forces of modern life alone; it has also left us susceptible to demagogues who, instead of doing the hard work of re-opening these institu- tions to us, further divide and alienate us. With the doors of our nation’s institutions closed to her, the average American is left outside asking: “What is America to me?” Our legal system has not been spared in this collapse. Trust in the judicial branch is down 12 percentage points from 1999.6 5 Jim Norman, Americans’ Confidence in Institutions Stays Low,Gallup , June 13, 2016 (2016), http://www.gallup.com/poll/192581/americans-confidence-institutions-stays-low.aspx. 6 Jeffrey M. Jones, Trust in U.S. Judicial Branch Sinks to New Low of 53%, Gallup, Sept. 18, 2015 (2015), http://www.gallup.com/poll/185528/trust-judicial-branch-sinks-new-low.aspx. • 3 • Only 23 percent of Americans say they trust the criminal justice system a “great deal” or “quite a lot.”7 Our courts and legislatures are viewed as tools of the few, monetized at the expense of the many. To the average citizen, justice is inaccessible. Indeed, the most serious crisis in American law today—the “felt necessity” most relevant to the American public—is that the vast public’s legal needs go unmet and legal interests go unadvanced. Millions of Americans are excluded from legal power by their inability to afford a personal lawyer, the lack of career public-minded lawyers representing their interests, and the procedural coup by corporate interests to limit the use of tort and contract law to advance public interests. Georgetown’s David C. Vladeck summarized the crisis well: For most Americans legal services are generally unavailable, not by reason of their poverty—most of these people are not poor—but simply because they are not wealthy. (I call these people “the un-rich”). Indeed, the difficulty of finding affordable legal services for most Americans is so profound that they cannot afford anything but the most routine legal services (e.g., the preparation of a will), and the poor, unless they are the lucky ones who win the legal services lottery, are simply denied access to the justice system altogether.8 2a.
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