The HLS public interest fight in Harvard Magazine

Over the past year, in the Harvard Law Record, I have been agitating for Harvard Law School to better live up to its public interest mission: “to educate leaders who contribute to the advancement of justice and well-being of society”.

The same cause was spotlighted in a recent Harvard Magazine article, “The Purpose of Harvard Law School“:

“Between the well-established path to corporate law and the demands of a just society, HLS takes no position on where its graduates ought to work, and struggles to articulate a role for itself in a broader justice system. Career options are framed as a matter of personal choice or market demand rather than public need, reflected in the recruiting structure that accommodates corporate law. How pervasive should corporate law be at a top law school? What do Harvard graduates owe to the public? These are questions Harvard hasn’t answered—but the controversies of the last year, and the ones sure to come, suggest that perhaps it needs to.”

Pete Davis calls for a broader view of the law school’s responsibilities in the justice system. The nation can’t sustain a just legal system unless its civil institutions are committed, actively, to promoting access to legal resources: “Harvard pretends not to take policy positions, but it does. We took a position on the DREAM Act, for example, which said that to fulfill our duties as a university, we need immigration reform,” he says. “The issue of funding public defense is very simple to solve. There is already a Legal Services Corporation, there’s already a source of funding for public defenders, but they don’t have enough money, and because they don’t have enough money, the legal system is skewed. The deans of the top five law schools could all go to Congress and say, ‘We cannot keep producing lawyers for a legal system that isn’t working,’ and call on lawmakers to adequately fund public defense.”

Read the incisive and insightful article here.

Beware the Merchant of Certainty

We live in uncertain times. Our governing institutions are rusty and corrupted. Our workforce is going through a painful transition from a manufacturing economy to one based on services and information. As our media expands to welcome voices it once unjustly excluded, our national culture is fracturing. While our real-world communities wither, our millions of screens display disparate messages and no moral leader has emerged to break through the white noise and point the way towards national solidarity. Given these circumstances, it’s no surprise that our politics has left us disoriented and bewildered.

This uncertainty is uncomfortable. The slow and staggered death of old ideas and the fits and starts of new ones, the scripted choruses of outrage and the disappointments of failed prophets can wear a people down. For many, the consequences of our uncertain times spill out beyond the dizzying screenscape to cause real human pain: children imprisoned by fear-mongering policies, livelihoods lost in changing industries, and neighborhoods cored out by corporations that paid the watchmen to look the other way.

This discomfort and pain leaves us susceptible to fear. Specifically, it leaves us susceptible to the fear of what will happen if we do not escape our uncertainty soon, if we do not grasp for some quick and certain resolution to the day’s tough questions.

This fear creates a market for merchants of certainty. Like the cosmetics shills who tell you why you are ugly to sell you makeup, these con men also sell the problem and the solution in the same pitch: why you should be afraid and how you will be protected if you only follow them.

Many a nation have fell victim to this pattern: uncertainty leading to discomfort leading to fear leading to a successful con by a merchant of certainty. When at our best, America is a nation specifically built to avoid this fate. We have baked into our being a democratic faith that places our hopes not in heroic strongmen at the center of power but rather in extraordinary ordinary citizens spread out across the land. Trusting in the strength and kindness and wisdom of our citizens and communities, we have aspired to be an open nation, trading traditional dogmas and central planners for a government and economy and culture that welcome anyone’s participation, no matter their background.

But this American idea – of a strong people and an open nation, of a democratic faith in ordinary citizens – only works if we ceaselessly reject fear. This is why the last President to chart a course out of gravely uncertain times told us that the only thing Americans have to fear is fear, itself.

The latest merchant of certainty is running the same old con: selling us on fear and its antidote in one pitch; telling us we have no voice and that only he can be our voice; telling us we cannot fix the system and that only he can fix the system. He says he ran for President so that “the powerful can no longer beat up on people who cannot defend themselves.”

But he’s wrong. We can defend ourselves. We can fix the system. We can have a voice. We can have more faith in our neighbors than he does. We can let that covenant from the Book of Isaiah seep deep down in our souls:

“Do not be afraid. I am with you.”
“Do not be afraid. I am with you.”
“Do not be afraid. I am with you.”

We live in uncertain times. But what has made America great has been our ability to muster the strength and openness to hold on through the tension of uncertainty without resorting to the quick and easy fix. What has made America great has been those generations who took the long and hard way out of each moment of uncertainty: those who devoted their lives to solving a tough problem or building a robust system or hosting a difficult conversation or growing a loving community. What has made America great has been our rejection of fear. As this year’s merchant of certainty inches frighteningly closer to sealing his biggest and darkest of deals, I can’t help but think that our only hope — to stop not only today’s menace but tomorrow’s as well — is to make America great again.

What does it mean to “Humanize the Caring Economy”?

At the Progressive Alternative, our initiative to broaden the vision and restore the integrity of the Democratic Party, we mention “humanizing the caring economy” as one of our planks:

We need to return to our heritage of participatory direct care. We should support projects that humanize the support for our sick, imprisoned, young, old, mentally ill, and destitute. The third-party bureaucracies that we currently pay to unburden us from responsibility towards one another should be supplemented with a culture of widespread participation in direct care for each other.

Inspired by a recent episode of the podcast Invisibilia about how one town in Belgium uses participatory care to treat those with mental illnesses, I just published an essay explaining what we mean by this idea:

Those on the margins of our conception of “normal life” — the physically and mentally ill, the imprisoned, the very young, the very old, the destitute, the displaced — used to be wholly and directly cared for by their families and neighbors.  In recent centuries, three trends changed this: (1) old models of family (e.g. multi-generational households) and community (e.g. caring about your neighbors) began to change; (2) we developed public standards of care that cast light on the failures of local, organic systems to adequately care for those in need; and (3) we developed modern state and commercial bureaucracies capable of funding, engineering and providing care.

However, in transitioning away from a model of participatory and community care and towards an institutionalized and bureaucratized model of care — one managed by a mix of professional experts and mistreated, low-wage workers — we lost many of the benefits of the old model.  If we can develop systems that supplement the current model of care with more opportunities for community members to participate in their neighbors’ care, we could preserve the benefits of our current model while salvaging the benefits of the old.  Not only would those being cared for be helped by more organic, neighborly relationships; those doing the caring would also be served by re-engaging in our most human practice: caring for each other.  Even more, our anxieties stemming from the “abnormal” elements in our own personal and family lives would lessen as the normal abnormalities of life move out of the managed shadows. The solidarity and understanding of a shared, sacred project replaces the fear and isolation of a universal, shameful secret.

Read the full essay — Towards Participatory Care — here at the Progressive Alternative.

Latest All Rise! episodes

I have a long-form interview podcast over at the Harvard Law Record called All Rise!  We just released our 4th and 5th episodes to complete the first season.

In the 4th episode, we interview former ICC Prosecutor Alex Whiting:

In the 5th episode, we interview legal historian Tomiko Brown-Nagin:

Subscribe to All Rise! on iTunes here.

New Progressive Alternative Essay on Deepening Democracy

At the Progressive Alternative, our initiative to broaden the vision and restore the integrity of the Democratic Party, I just published an essay explaining that deepening democracy doesn’t always mean “everybody voting on everything” — it means building participatory institutions that open up power to more people in more ways:

When most people imagine deepening democracy — increasing citizen participation in power — their mind often jumps to the furthest extreme of direct democracy: endless meetings of every citizen ignorantly voting on every issue.  If this is what deep democracy means — all of us taking time to discern the right policy regarding inland fisheries regulations and medical device taxes — then deep democracy is ridiculous.

But this is the wrong way to think about deepening democracy. Rather than seeing a deep democracy as a system where every citizen has a vote on every issue, we should imagine it as a system where every citizen has a variety of open avenues to having their voice heard and ideas realized. To deepen democracy is to open up power — the power to start projects, change projects, and stop projects — to more people in more ways.

The mechanism for deepening democracy is the participatory institution: a system that gains political power for the purpose of distributing it to a wider variety of people. A deep democracy would consist of a dense array of interconnected participatory institutions.

One such category of participatory institutions are what one might call “passive input tools”: avenues built into closed governing bodies to allow citizens to directly engage with legislative processes when they have reason to do so. A prime example is the “notice and comment” periods that federal agencies host before enacting new regulations and city planning boards host before approving new zoning changes. Each citizen does not vote on every regulation or zoning change, but when a new change arises that they wish to have input on, they have the opportunity to have their voice heard. Less potent examples include surveys and listening sessions that governing bodies utilize and town hall meetings that legislators occasionally hold.

Even better are “active input tools”: systems which force governing bodies to actively seek citizen participation on certain governing decisions.  One example is participatory budgeting, which sets aside a portion of a governing body’s budget to be decided on by the citizens themselves. Another example is the periodic community visioning, which invites the whole community to come together to lay out its priorities and ideas for the coming years.  One could imagine other active input tools, such as a requirement that Congresspersons hold Congressional District visionings to set priorities for the coming term or a system by which an annual citizen convention is held to place, say, five issues on the ballot without having to go through the initiative or referendum process.

Perhaps the most effective participatory institutions are what we, in the Progressive Alternative intervention, refer to as participatory counterbalances to corporate and state power.  These are standing participatory organizations that address the same issues as bureaucratic entities, but are organized to better engage and amplify the unorganized public at large. The classic example is the trade union, which organizes workers to counterbalance employer power. But other examples include: consumer purchasing cooperatives, which organize consumers of certain projects to counterbalance seller power; tenant unions, which organize tenants to counterbalance landlord power; and the Advisory Neighborhood Commissions in D.C., which organize neighborhoods to counterbalance city council power.

Read the full essay — Deepening Democracy: The Varieties of Participatory Institutions here at the Progressive Alternative.

Beyond Hashtag Bitterness: Campaign Season vs. A Politics of Public Projects

i. Politics as public projects; elections as terrain-setting

Politics, to me, is the word we use to describe the interplay of our public projects. These projects range from the specific (“We want to regulate this product”) to the conceptual (“We want to achieve equal justice under law”); from the bounded (“We want policies that protect our family”) to the grand (“We want an international climate plan”); from the self-interested (“We want this tax break for our income bracket”) to the civic-minded (“We want to ameliorate this social ill”); from the state-centered (“We want to end this war”) to the culture-centered (“We want to change this practice”) to the market-centered (“We want to modernize this industry”). These projects advance through struggle: against inertia, against friction in the institutions that can help realize them, and against each other.  We identify with some of these projects and their respective struggles, while disdaining and fighting other ones. We treat most as practical steps to address complicated challenges, but experience a special few as simple religious crusades. These public projects — and the struggles for them, the fights between them, and the processes that grant them power — are the meat and potatoes of politics.

We care about elections because we care about our public projects. I like to think of elections as contests to determine the legislative terrain on which our various public projects will interact in the coming years. Seen this way, voting in elections is like picking the arena where the real match will eventually take place: though the possible arenas may vary widely — with each possible arena advantaging some projects and disadvantaging others — they are not the matches themselves. The matches themselves are between the actual public projects that we continually struggle for every year regardless of which terrain was selected in the last election year.  No matter how lopsided an elected arena’s terrain is — no matter how much this year’s batch of elected officials will advantage certain public projects over others — Election Day is not the closing bell but the opening one; and the true players are not the various candidates, but us.

ii. The bitterness of abstract fights

But in the heat of campaign season, our passion for the public projects we care about and our passion for the campaigns we feel will advantage them in the coming years blend together. In fact, Presidential campaigns want them to blend together: the most successful campaigns become so abstract as to make millions of us see their candidate as the one who will, in the coming years, best advantage all of our varied public projects.

This is why election seasons become bitter: we all get defensive about our preferred candidates because attacks on them are perceived as attacks on our beloved projects.  And, adding more fog to the forest, we all perceive candidates differently and cannot know which projects our neighbors are reading into their candidates or our own.

Put another way, behind any given “#FeelTheBern” or “#ImWithHer” typed into a Facebook post is a bundle of public projects that a specific neighbor cares about; yet, all we can see is the abstract hashtag. Therefore, all we often do to understand what our neighbors are expressing is apply our own, personal bundle of meanings for that abstraction. Again, this is what campaigns want us to do: they want to temporarily boil our varied desires into one broth; they prefer pliable and profitable hashtag-based politics to stubborn and concrete project-based politics.

Like most of us throughout the past year, I have experienced this bitterness of abstract fights. I have bristled at attacks on Bernie Sanders, because when I see #FeelTheBern, I see single payer health care, freeing Congress from monied interests and the great, catch-all project of the Left: opening up power to more people in more ways. I cringe when I see #ImWithHer because, to me, it means meritocracy over democracy, professional class interests over the interests of the poor and working classes, and centralized management over decentralized participation.

But to other people, #ImWithHer doesn’t mean that; it means the projects of applying modern expertise to complex public problems, the hand-to-hand defense and inch-by-inch advancement of progressive policy in a compromised age, and — as touted by the campaign this week — the historic advancement of professional women. That’s why, I suspect, some people take personal offense at skepticism towards Hillary: to them, it’s skepticism towards the projects they hold near and dear.

This abstract shadow boxing — multiplied by millions of conversations, amplified by the internet, stoked by the campaigns themselves and drawn out over a year — results in the state of hashtag bitterness that we Democrats currently find ourselves in.

iii. Up from bitterness

Some may think that I am queuing up an argument that the path out of this bitterness is to stop caring about elections: if we all experience each campaign differently — and if these different experiences divide us and distract us from advancing the projects we care about — then why don’t we just stop fighting for one candidate over another?

But that, of course, should not be the answer, because election results still matter to our projects. The difference in legislative terrain between a future where Democrats win in November and one where Republicans win in November is significant enough to make it worth our while to expend some time and effort over the coming months to come together and build a coalition to elect a slate of candidates — in my previous metaphor, to select a legislative arena — that we believe will be more beneficial to our projects over the coming years.

But in the long run, the only path up from hashtag bitterness — up from the abstract acrimony that makes so many people find politics unpleasant — is to remember that before we were #WithHer or before we were #FeelingTheBern — even before we were #MakingAmericaGreatAgain or chanting #YesWeCan — we were citizens who cared about a certain set of public projects.

When we start treating politics not just as the choosing of leaders — not just as the deciding of whose #side we are on — but also as the advancing of public projects, the whole experience of political engagement becomes much more heartening. We begin to take the long view, liberating ourselves from the biennial boom and bust of electoral victory, defeat, and post-Inaugural disappointment. We begin to see the citizenry — rather than the politicians — as the agents of political change, quieting the endless national psychodrama of constantly examining the souls of and relationships between our leaders. We begin to find hope outside of Washington when Washington fails us, because public projects, unlike electoral campaigns, can be advanced at various levels and on multiple fronts.

And, most importantly, to begin to practice a politics centered on public projects rather than public figures is to begin to practice a politics conducive to national solidarity, because, contrary to popular belief, it is in concrete projects, not abstract ideals, where we can find the most common ground. In this age of the culture war, achieving consensus on what America is or on who the heroes and villains of history are or on which values to prioritize over others is a much more quixotic project than achieving consensus on, say, steps to improve our prison system, promote clean energy or increase neighbor-to-neighbor interaction. This is the mistake of President Obama’s theory that transcendent rhetoric could end the culture war: it is not our shared ideals that will bridge our partisan divides; it is our shared projects that will.

iv. Fighting electoral abstraction with neighborhood reality

And yet, campaign season continues to pull us, en masse, away from this productive and hopeful mode of project-based politics. This would be fine if it were an infrequent and temporary pause — a bounded burst of passionate coalition-building and chest-thumping for the sake of having your majority win a preferential legislative terrain for the upcoming years — but campaign season, in recent years, has ceased being bounded and temporary.  Rather, campaigns now begin years before each election and the cults of personality generated for campaigns extend years into governing terms. Cable news networks and clickbait websites carry on the abstract warfare 24/7, 365 days a year. Dissent from the party line — protests that were at one time only discouraged in the weeks directly preceding Election Day — now are met with calls for team unity even during non-election years.  

As the campaign season mindset engulfs all of politics, we start to neglect the public projects that drew us into politics in the first place.  Having been hooked on the dramatic and easily-quantifiable politics of elections, we become bored by the day-in-day-out, year-in-year-out work of pushing concrete proposals forward. Our hashtags cease being symbols representing deeper projects and instead become hollow shells. Our politics becomes stuck in abstraction, only coming down to the real world to gather anecdotes that validate our side in the symbolic fights. The bitterness smothers our hope and, with it, our motivation to continue participating in politics.

That’s why it’s so important that we, even in these months leading up to Election Day, consciously re-commit to the long-term public projects that transcend our electoral campaigns. The best way to do this — to re-cultivate our passion for concrete public projects — is to move down the abstraction ladder and renew our love for the real-world people and places we hope to serve. I have been arguing that before we are electoral campaign supporters, we must first be activists.  But before we are activists, we must first be neighbors. Before we can change communities, we must first be members of them. This is what we mean by citizenship — serving a community — and patriotism — loving a place. The more we become citizens of real communities and patriots of real places, the more fire we will have in our belly to fuel the long and hard work of advancing important public projects.

dorothy-dayThe great American Catholic, Dorothy Day — one of our history’s shining examples of deep citizenship and patriotism — never voted herself, but she cared enough about the vote to get beat up for it. In 1917, she picketed the White House over the treatment of imprisoned suffragettes and was subsequently arrested herself. She was sentenced to 30 days in Occoquan prison, where she was reported to have been slammed into an iron bench multiple times by guards. After Day went on a hunger strike with her fellow suffragettes, President Woodrow Wilson ordered their release two weeks early and shortly thereafter announced his support for Women’s Suffrage.

However, Day never saw the vote as the center of politics. Rather, she worked tirelessly every day to care for real people and real places, while, at the same time, translating her neighborhood experiences outwards into larger projects. She took a vow of poverty and opened up Houses of Hospitality across the country to feed the hungry, shelter the homeless and serve as community centers. She started the Catholic Worker newspaper to report on what she saw and learned: evictions, unemployment, strikes, pickets, lynchings, child labor and poor factory conditions. She weathered scorn when she took a pacifist stance against World War II, arguing that war was incompatible with Christ’s teachings and prefiguring the Catholic Church’s broader support for non-violence decades later. She held weekly meetings where speakers would come, present points of view and lead discussions. She started farms to hire the unemployed and provide food for her Houses of Hospitality. She was a woman of many public projects.

To Dorothy Day, the most important house in American politics was not the White House, but the house in any neighborhood across the country where the doors were open: where the hungry were fed, the homeless were sheltered, and the isolated were organized. She believed the vote exemplified the idea that man “wants a part to play, a voice to speak in his community,” but also that our votes were insufficient to fully realize our parts and our voices. She likely preferred some leaders to other ones — and was not opposed to forming coalitions with others or having audiences with the powerful to achieve certain ends — but she steadfastly saw us neighbors and citizens — not far off politicians — as the agents in advancing what to her was the overarching project of political life: building “a society in which it is easier for people to be good.” She advanced that project in a practice of long-view politics that was anchored in a lived reality too visceral to allow one to get caught up in abstract fights.

She called on us to join her in that project and that view of politics.

I’m with her.

Getaway’s New York Expansion

Getaway — our startup that builds tiny houses, places them in the woods and rents them out by the night to folks looking to getaway — is expanding to New York. Bloomberg News put the word out:

“I like to call it the anti-vacation,” said Chief Executive Officer Jon Staff, who launched Getaway with his friend Pete Davis, a first-year student at Harvard Law School.

For the past half-century, the American vacation model was to spend a small fortune to fly to a faraway place to which the vacationers would likely never go back, said Staff, 28, who is completing an MBA at Harvard Business School. “You’re probably only going to go there once, so you feel incredible pressure to do lots of things.” Now that Americans work longer hours and spend their nights and weekends chained to handheld devices, there’s less call for capital-V “Vacations” and more for basic respite, he said.

Clara-by-Getaway-1Travel + Leisure magazine has more info:

Between noisy hotels and constant access to wi-fi, finding a true getaway can be nearly impossible. That’s exactly why a year ago two former Harvard classmates built three 160-square-foot homes on trailers, drove them to the outskirts of Boston, and rented them out to overworked city folks starting at $99 a night. Now they’re making them available to New Yorkers.

Starting in June, guests can book one of three tiny houses for a mini (seriously) vacation about two hours outside of NYC. There’s a catch: you don’t find out the exact location until the day before.

“Our vision was always that this was wellness experience not a hospitality experience,” Chief Executive Officer Jon Staff, who launched Getaway with his friend Pete Davis, tells Travel + Leisure. “That’s part of the reason we don’t tell people where they are before they go. It’s about being on this land and not looking at your phone. We’ve been pleased to find that it’s connecting with people.”

Book a New York Getaway at

“All Rise!” – our long-form interview podcast for the Harvard Law Record

This past month, Brady Bender and I launched All Rise!, a long-form interview podcast for The Harvard Law Record. Each week or two, Brady and I interview members of the Harvard community.

Our first episode is with Randall Kennedy, Harvard Law professor and author of multiple books on race and the law:

Our second episode is with Jeannie Suk, Harvard Law professor, New Yorker writer, and feminist legal scholar:

Subscribe to “All Rise!” on iTunes here.

Community-building in the wake of divisive incidents

My latest essay in the Harvard Law Record is in response to a recent campus incident that has become all too common on campuses across the country: boiled over tension between racial justice advocates and their critics citing free speech concerns. I try to parse through the debate in an attempt to find steps forward for building a moral community on campus:

The first editorial published in the Harvard Law Record this year was entitled “We Owe Each Other a Moral Community.”  This project — of doing the hard work of turning spaces into places, strangers into neighbors, and a professional training ground into a moral community — has seen better weeks than this one.  It is strange to see warring groups of our neighbors communicate via the symbolic tit-for-tat of postering, ripping, and re-postering.  It is disturbing to see one of our neighbors videotaping another one so as to provide clickbait for his political tribe’s media outlets. The events of the last two days may have created new heroes and villains, may have scored a few points for a few folks within their respective filter bubbles, and may have made most of us — and the distant readers reading about us — angry.  But what these events did not do was build understanding.  This is a shame, because if we are to build a moral community together, we must work to understand each other.

Any attempt to understand this controversy must begin with taking seriously the enduring civic plague at the center of it: racial disparity in America.  The problem has been articulated multiple times by Reclaim Harvard Law, but it is always worth restating. Four in ten black children in our country live in poverty. The 2011 median white household had $111,146 in wealth holdings, while the median black household had $7,133.  Among Fortune 500 CEOs,only five are black, while 75 corporations in the S&P 500 have not a single black director. The NFL, NBA, and MLB have 92 teams, of which only one is principally owned by a black man.  While only 1.4% of the top 1% of households by income are black, 40% of incarcerated Americans and 35% of death row inmates are black. This racial disparity is a national emergency to which our generation must urgently respond.

However, if we dismiss the vocal critics of Reclaim Harvard Law as (at best) priggish or (at middle) provocateurs or (at worst) racist, we miss the chance to understand an issue of importance to a small group of culturally conservative Harvard students. There is a dominant cultural and economic ideology at Harvard: corporate liberalism.  Most Harvard Law students are secular liberals on cultural issues and corporate-minded technocrats on economic issues. Put another way, they are skeptical of moral language and groups (with the exception of rhetoric around individual rights and tolerance), but faithful to the powerful, centralized institutions — be they powerful law firms, corporations, universities, media outlets or government entities — that most of them populate after graduation.  Meanwhile, half of American believe the opposite: almost half of American women are pro-life; about half of Americans say grace before meals; Rick Warren’s The Purpose Driven Life is the best selling hardcover book in American history; and trust in national institutions is at an all-time low. The silence around this disparity is a source of consternation among our campus’ few cultural conservatives.

Read the full essay — The Moral Community in the Wake of Postergate — here at the Harvard Law Record.