Our Bicentennial Crisis

Overview

Here’s the summary of the book:

Harvard Law School's stated mission is "to educate leaders who contribute to the advancement of justice and the well-being of society." But with only one-fifth of graduates pursuing public interest work after law school, Harvard Law is falling short of its mission. In this comprehensive call to action, Pete Davis examines the source of this civic deficit and proposes what, in Harvard Law's third century, the school community can do to rectify it.

The book aimed to document: first, the crisis of mass exclusion from legal power for the average American (in the criminal justice, civil justice and political systems); second, Harvard Law’s failure to address this crisis, and the inaccurate excuses our school community tends to give for not addressing it; third, what accounts for this civic deficit; and fourth, twelve reform proposals that aim to help us better live up to our mission.

From the late 1970’s to the early 1990’s, a flurry of critical works — including Duncan Kennedy’s “Legal Education and the Reproduction of Hierarchy,” Joel Seligman’s The High Citadel: The Influence of Harvard Law School, Richard Kahlenberg’s Broken Contract, and Scott Turow’s famed One L — helped set Harvard Law School on a course from the hide-bound, lily white school of The Paper Chase to the more diverse and pluralist school it is today.

I hoped for this book to also have a motivating impact, inspiring the community to transition from a school where four out of five graduates deploy their legal educations to advance the legal interests of a wealthy and powerful few to one where a majority of students use their education to serve the interests of the vast, underserved public.

The book is split into four parts:

Part 1: The Crisis of Our Time: Mass Exclusion from Legal Power

First, the report offers an explanation of how the vast public is excluded from legal power in the United States:
…in the broken criminal justice system: how most public defenders are grossly underfunded and understaffed— a contributing factor to prosecutorial abuses and our ballooning prison system.
 

…in the inaccessible civil justice system: how 86% of the civil legal needs of the poor going unmet; how America ranks 50th of 66 wealthy countries in terms of “the ability of people to obtain legal counsel.”…in the indentured political system: how public interest lobbyists are outnumbered 34-to-1 by corporate interest lobbyists in D.C.; how tort law and antitrust law are crippled by corporate interest lawyers; and how the John M. Olin Foundation paid Harvard Law School $18 million to teach what they admit is “conservative constitutional law.”


Second, the report offers an account of the legal profession’s failure to address this exclusion:
...England spending 13 times as much per capita and Canada spending three times as much per capita as the United States does on civil legal aid.

 
The top 100 most profitable law firms making ~$28 billion in profits while only ~$1-2 billion worth of lawyers’ time is spent annually on civil legal aid for the poor.


Part 2:Harvard Law’s Failure to Lead

The report next moves on to Harvard Law School, explaining how for every one graduate of Harvard Law School who goes on to work in public interest law, government or education, four graduates work for corporate interest firms or businesses.


The report then proceeds to debunk various excuses put forth by school administrators regarding these lopsided career trajectories:

Excuse #1: “Pro bono work and charitable giving blurs the divide”
In fact, lawyers at the major corporate interest firms give less than half an hour a week and half a dollar a day to pro bono service and legal aid.


ABA survey data shows that only 36 percent of attorneys do 50 hours or more of pro bono work per year
The most giving law firms only give about one tenth of one percent of their revenue to access to justice efforts

Excuse #2: “Everybody deserves a lawyer”
A disproportionate number of corporate interest firm clients are white and male, while a disproportionate number of public interest clients (government, legal services, education and non-profit constituencies) are women of color.



Almost 70% of recent Harvard Law graduates work in just four states: New York, D.C., Massachusetts, and California.  In fact, more graduates work in New York than in 47 other states combined.


The report asks: “Harvard Law prides itself on its diversity of inputs: students of all races from all around the country. However, when viewed in light of the narrow range of outputs, a disturbing picture emerges of a school that attracts a diverse set of students from all across the country and sends them to New York to serve a disproportionately rich and white client base. If everybody deserves a lawyer, should not Harvard work to encourage the lawyers it trains to go where people are underserved?”
Excuse #3: “Graduates take public interest jobs later”
In fact, only 7.2 percent of Harvard Law graduates who are working at large firms three years after graduation are working in public interest organizations twelve years after graduation.Of the 303 members of the 2015 graduating class working in 100+ lawyer firms after graduation, we can expect only 22 to be working in public interest organizations nine years later.



Excuse #4: “Students are free to choose”
In fact, there is a major “public interest drift” among students who are interested in public interest work (government, non-profit and educational work) upon admittance but end up in corporate interest work.
Whereas 35.4 percent of newly admitted students planned to work for law firms or businesses after law school, 63 percent planned to work for law firms or businesses by graduation.


Excuse #5: “This involves factors beyond Harvard Law’s control”
In fact, Harvard is losing out to other schools in terms of public interest placement into non-profits, government and education: Yale, Georgetown, Northeastern and CUNY Law.

Excuse #6: “Harvard Law is a path to the upper class”
In fact, available data shows that the majority of students Harvard Law School are from families at the top of the income bracket.
77.5 percent of Harvard Law students are from families that make more than $95,000 a year and have more than $175,000 in net worth.
This means that if you come from a family with double the median net worth of American families, you would still be in the bottom quarter of the economic bracket at Harvard Law School.

Part 3:How Did It Get This Way?

The report proceeds to explain how the school fails to live up to its civic potential:

A culture that fails to spark public-spiritedness: Harvard Law has an entrenched culture of competition, in which the law is viewed as game and “geniuses” are praised regardless of their civic commitment. This law school culture provides a smooth transition to the culture of corporate interest legal work.
A curriculum that pacifies students: the first year curriculum of Harvard Law School is stuck in a century-old mold— and students do not get exposed to any pluralist curricula until their second and third years… when they have already made their decision to pursue corporate interest legal work.
A career-building system that nudges toward corporate law: The school treats corporate interest work as the “default option,” a process that culminates in first year students being wined-and-dined by corporate firms and an “Early Interview Program” that streamlines corporate interest recruitment. At its worst, the school provides materials that encourage students to pursue revolving door work: joining a firm, leaving for a government agency that regulates their clients, and then returning to the firm to trade their government experience for higher salaries.
A cost structure that dissuades students from public interest work: Despite Harvard Law School’s efforts made to lower the debt burden of students pursuing public interest work, most students still see their law school debt as a major reason for pursuing corporate interest legal work.
Part 4:Steps Forward in Our Third Century

The report concludes with twelve reform proposals:

Reforming our culture:
Reform #1: Measure public interest commitment: Harvard Law should join Yale in measuring graduate employment five years and ten years beyond graduation.  With that measurement, the school can better set a goal of having a majority of its graduates to pursue employment that serves the legal interests of the public at large.
Reform #2: Promote a culture of civic ambition: School leadership should work to center its stated mission — “to educate leaders who contribute to the advancement of justice and the well-being of society” — in the school culture.
Reform #3: Spotlight civic intelligence: School leadership should hold up lawyers who are examples of civic intelligence, rather than just narrow, analytical prowess.
Reform #4: Admissions should account for public interest commitment and experience: The school should adjust its admission criteria to more heavily weigh “civic intelligence” and commitment to the school’s public interest mission in crafting upcoming classes.
Reforming our curriculum:
Reform #5: Learn from Gary Bellow’s Clinical Institute model: Clinical education is the best way for legal education to be, to use a turn of phrase from Ralph Nader, empirically rooted and normatively fired up.
Reform #6: Learn from The School of Public Justice model: Just how medical education separates learning how to be a doctor from learning how to be a public health specialist, legal education should incorporate both training in being an attorney — an advocate for specific clients — and development as a lawyer— an officer of the court tasked with caring for the state of “public justice.”
Reform #7: Incorporate practice and theory into the first year curriculum: The current first year case method teaches the law outside of time and outside of lived practice. A first year curriculum that incorporates the history, philosophy and sociology of the law — paired with real-world clinical experiences — would better orient students to be change agents.
Reforming our career system:
Reform #8: Fund and promote career offices around a goal of 51% of students pursuing public interest work: Instead of funding career offices around current demand — the school should aspirationally fund the public interest placement office based on the goal of inspiring a majority of students pursuing public interest work.
Reform #9: Supplement career-building with vocation-building: Students should more formally be invited to integrate the professional, the personal and the civic — “what opportunities are available?”, “what am I called to do?”, and “what needs to be done?” — in developing their post-graduation plans.
Reforming our cost structure:
Reform #10: Limit the real and psychological debt burden of students aiming to pursue public interest work: The school should work towards a system where students committed to a certain period of public interest work are not burdened by tuition debt.  Though this is achieved, in large part, by Harvard Law’s current Low Income Protection Program (LIPP) — the psychological baggage of holding immense tuition debt without total certainty that it will be paid off by LIPP should be addressed.
Reform #11: Lobby aggressively for civil legal aid funding: Like how the school community took a firm public stand on the DREAM Act, the law school should take a firm public stand on civil legal aid funding and deploy its heft to influence Congress to better fund “equal justice under law.”
Reform #12: Lead a network of needs-based residency programs: The school should follow the lead of the Appleseed Centers for Law and Justice — started by the Class of 1958 to create local centers for public interest lawyering — and deploy its endowment and alumni base to build institutions that serve the dual purpose of (i) providing career-starting jobs (or, to use the medical education term, “residencies”) for recent public interest graduates; and (ii) serving communities in need of legal aid and civic support across the country.

For a write-up I wrote for the Harvard Law Record on the 12 reform proposals in the book, click here.

Here’s some blurbs for the book:

"Pete Davis' 'Our Bicentennial Crisis: A Call to Action for Harvard Law School's Public Interest Mission' is a must-read for anyone who cares about legal education and the role of lawyers in society. Our nation's legal system shuts out ordinary Americans. Most of the legal needs of Americans, except for the wealthy, go unmet. More lawyers work for corporations than for people. Many students come to Harvard Law School to prepare for public service careers. But along the way, most of these students abandon their ideals to seek out jobs in corporate law. Davis shows that Harvard is more than just complicit in building the hydraulic pressure that alter career paths. The messages are rarely overt, but Harvard, like its elite law school peers, lets students know that public interest work is less prestigious and less rewarding than corporate law. Davis makes a powerful case that it is time for Harvard to try to understand this phenomenon and ask 'why?' As Davis points out, Harvard Law School's stated mission is to 'To educate leaders who contribute to the advancement of justice and the well-being of society.' Graduating armies of Wall Street lawyers is hardly faithful to that mission. Davis does far more than throw down the gauntlet. He supplies answers to that question, and proposes many measures that Harvard, and other elite law schools, should take to fulfill the promise of Harvard. If law is an means to the goal of justice, it is time for America's elite law schools to take Davis' proposals to heart." -David C. Vladeck, professor at Georgetown University Law Center

"Peter Davis reminds us that law is a calling not a trade. This report is both a critique and a road-map. Law schools have a fiduciary obligation to credential officers of the court who are servants of justice." -Edgar S. Cahn, professor at University of D.C. Law School and co-founder of Antioch School of Law

"While Harvard Law School rightly celebrates its Bicentennial, 3L Pete Davis brilliantly focuses on the horizon of the possible.He explains how even a great law school is under-performing and how to do it better." -Mark J. Green (HLS '70), New York City's first public advocate

"If you want to know what Harvard Law School can do to improve access to justice in this country and encourage, not discourage, its students to find a career outside large corporate firms, Pete Davis has scores of thoughtful and realistic options in this book." -Alan B. Morrison (HLS '66), Associate Dean for Public Interest & Public Service at George Washington University Law School, co-founder of the Public Citizen Litigation Group

"The Davis Treatise evokes deserved discomfort as it compares our self-described aspirations with our performance as a profession. Davis explores our performance as a school and as a profession on access to due process and on the needs of the citizenry at-large. Our actual priorities serve the powerful and the organized. As he argues, the interests of the diffuse and of the future, what we leave behind for the many, is properly our highest priority. Regrettably, he is able to document its general evasion in our torrent of hypocrisy." -Robert C. Fellmeth (HLS '70), professor at San Diego School of Law and Executive Director of the Center for Public Interest Law

Live events surrounding the book

After I published the book, an open forum was held with four Harvard Law professors: Randall Kennedy, Todd Rakoff, Carol Steiker and Duncan Kennedy. Here is a video of the event:

The Harvard Crimson covered the event:

The event, titled “Harvard Law and the Public Interest,” revolved largely around a report titled "Our Bicentennial Crisis" by Law student Pete D. Davis ’12. Panelists Randall L. Kennedy, Carol S. Steiker ’82, Duncan Kennedy ’64, and Todd D. Rakoff ’67—all Law School professors—agreed that public interest law is essential for fighting inequality and that the Law School has the power to promote that interest.

“We’re talking about the everyday things of making sure that people get proper treatment for their special needs trial or getting the consumer complaint that they have settled in a fair way. I think those things are very important,” Rakoff said to Davis. “I completely agree with you that the underserving of that kind of everyday legal problem in our society has very corrosive social and political effects.”

Steiker admitted that since the Law School relies largely on alumni donations, it might need to change its financial model in order to encourage students to pursue public interest law, which typically pays less than private law firms.
In response, Davis offered several proposals for how Law School administrators can improve the prevailing culture at the Law School. He also said he supported increasing economic diversity at the school.

Earlier, Ralph Nader came to campus to discuss the report:

Here’s the Crimson report on that visit:

Ralph Nader, a political activist and repeat third-party presidential candidate, called on Law School students to protest what he characterized as the school’s excessively “corporate” focus at a visit to the school Wednesday.
Nader, a Harvard Law graduate, drew a grim picture of the American legal system, saying that Harvard churns out “lucrative cogs in the corporate wheel.” He referenced student debt, hidden bank fees, and unintelligible contracts that consumers don’t read as examples of injustice in the legal system.

“The curriculum is built around corporate law, and corporate power, and corporate perpetration, and corporate defense,” Nader said.

In an interview last week—before Nader came to campus—Dean of the Law School John F. Manning ’82 discussed the Law School's efforts to promote public interest careers, saying that students in the class of 2017 spent an average of 586 hours working pro bono.

“Harvard Law School is very supportive of public interest,” Manning said. “From the very outset we have a very large, energetic office of public advising, we have a program on law and social change that really helps people identify and think about careers that try to affect social change.”

Pete D. Davis ’12, a third-year Law School student who authored a report also criticizing the Law School’s public interest resources, invited Nader to speak at the Law School. In the report, Davis wrote that ordinary Americans lack legal power and encouraged the Law School to “better live up to our mission”.

And here’s The Crimson coverage of an open letter in support of Our Bicentennial Crisis from Ralph Nader and six other alumni:

A group of seven Harvard Law School alumni wrote an open letter Monday asking Law School Dean John F. Manning ‘82 if he intends to publicly respond to a report published last fall that criticizes the school’s commitment to public interest.

The report, titled “Our Bicentennial Crisis: A Call to Action for Harvard Law School’s Public Interest Mission,” argues that the Law School is primarily geared towards corporate law and needs to shift its focus to public interest careers.

The report, primarily authored by third-year Law student Pete D. Davis ’12, is divided into four parts. It argues that the average American is largely excluded from legal power, and charges that the Law School has failed to address this problem. Davis also published the report in book form.

Monday’s open letter criticized Manning’s silence on the report. Alumni wrote that six months after the report’s release, Manning has still failed to deliver “a considered written response to its cogent points” or have “a general meeting with the students for a public discussion.

Earlier, Nader had published an editorial on the report:

As Harvard Law School celebrates its 200th anniversary with two days of events attended by hundreds of alumni, some law students, led by Pete Davis (’18), are inviting the Law School to engage in extraordinary introspection as it looks toward its third century.

Mr. Davis, after two years of observation, participation, conversation and research, has produced a major report titled “Our Bicentennial Crisis: A Call to Action for Harvard Law School’s Public Interest Mission.” Over the past sixty years, many of the beneficial changes at the law school were jolted, driven or demanded by a small number of organized students calling for clinical education, for women and minorities to be admitted as students and faculty, for more affordability, for more realism in their legal education and for more intellectual diversity among the professors. (The critical legal studies scholars obliged them up to a point.) Over time, the law school administration, with faculty persuasion, responded.

The bicentennial report by Pete Davis asks important questions about the law writ large square in the context of the law school’s long declared mission statement: “to educate leaders who contribute to the advancement of justice and the well-being of society.”

In 2018, I was invited to share a message about Harvard Law’s public interest mission for HLS’ 1L orientation. Here’s the video that I shared: 7 Things I Wish I Had Known as an Incoming 1L:

Nader and I also returned to Harvard Law School in 2018 to speak:

The Crimson covered the speech:

Former U.S. presidential candidate and attorney Ralph Nader spoke at the Harvard Law Forum Thursday to discuss the need for more public interest lawyers and his belief in Harvard Law School’s obligation to support public interest careers among its graduates.

Pete D. Davis ’12, the author of “The Bicentennial Crisis,” a book-length report that criticizes the Law School, joined Nader to speak in front of about a hundred people in the Law School’s Ames Courtroom in Austin Hall.

Introduced by Harvard Law Forum President Martin T. Drake, the speakers split the two-hour event to both critique the state of the legal profession in America and call current law students to serve the public.

Public service and its connection to the Law School has been an ongoing discussionover the past year. In February, Davis and four Law professors held a forum titled “Harvard Law and the Public Interest” to debate the school’s perceived disconnect with public service. Nader has been an active participant in the discussion as well — criticizing the Law School for its “corporate” focus at an event last year as well as in an open letter with six other alumni to Law School Dean John F. Manning ’82 published in April.

At Thursday’s event, Davis enumerated the history of public interest law participation at the Law School and described his vision of a majority of Law graduates working in public interest careers. The proportion of graduates entering public service law positions stood at 16.87 percent among 2017 graduates.

“Does the mother getting evicted from their house care that we created a bunch of Supreme Court clerks?” Davis said. “Seen through the eyes of America, we risk irrelevance… When our grandkids ask what we did, we want to tell them we advanced the legal interest of the many rather than entrenched the power of the few.”

Davis pointed to the discrepancy between the proportion of students who enter the Law School wanting to work in the public interest and those who graduate with a job doing so.

“Something is changing you while you’re here,” Davis said.

Following Davis, Nader first spoke about lawyers’ need to promote of the rule of law to defend justice. Nader accused the Law School of failing to promote justice in its practices, instead producing graduates who bend to corporate interests.

Press response of the book

Harvard Magazine‘s run-down of the HLS Bicentennial mentioned Our Bicentennial Crisis:

For this anniversary, a third-year student published a book-length polemic called “Our Bicentennial Crisis,” sounding an alarm that the school​ is now “​overtaken​ ​by​ ​corporate​ ​interests​ ​and​ ​losing​ ​relevance​ ​to​ ​the​ ​average​ ​American;”​ “​largely​ ​asleep​ ​as​ ​the​ ​institutions​ ​of​ ​the​ ​rule​ ​of​ ​law​ ​and​ ​equal​ ​justice​ ​under​ ​law​ ​are​ ​under​ ​siege;” ​and “​​has​ ​lost​ ​track​ ​of​ ​its​ ​declared​ ​mission​ ​to​ ‘​educate​ ​ leaders​ ​ who​ ​ contribute to​ ​ the​ ​ advancement​ ​ of​ ​ justice​ ​ and​ ​ the​ ​ well-being​ ​ of​ ​ society.​'"

In 2018, The Harvard Crimson had a full feature in their graduation issue about our push for the public interest:

Fast forward to the present day, and a similar call to action has emerged.
Pete D. Davis ’12, who will graduate from the Law School this month, authored a report on public interest offerings at the school that has since gained widespread attention. The report, timed to coincide with the Law School’s 200th birthday, argues that while public service opportunities have increased and more graduates are opting for careers in the public sector, the school still has an obligation to further incentivize its graduates to pursue careers in public service.

Students and alumni have also voiced concerns about the Loan Income Protection Plan, the school’s loan repayment plan that assists graduates who pursue low-paying legal jobs. A group of Harvard Law students formed a coalition in the fall with the goal of improving the program and ensuring that students who wish to enter public service jobs can do so without crushing debt.
As the Law School enters its third century—and amid a political climate characterized by increasing public distrust in government—questions about its purpose and duty to the world have caught the attention of its students, faculty, and alumni. Echoes of Seligman's words can be heard in the recent wave of student activism around public service, which looks unlikely to die down anytime soon.
...
Davis first published “Our Bicentennial Crisis” in November. The book-length report charges that Harvard Law School—as the “longest continuously running law school in the United States”—must play a role in addressing public distrust in the American legal system.

The report describes itself as a “call to action for Harvard Law School’s public interest mission,” and it specifically challenges the school to meet a threshold of 51 percent of graduates going into public service.

The Nation also covered Our Bicentennial Crisis:

That work became “Our Bicentennial Crisis: A Call to Action for Harvard Law School’s Public Interest Mission,” an exhaustively researched report written by Pete Davis, a third-year HLS student who throws down the gauntlet to his school as it enters its third century to live up to its mission statement’s promise to educate leaders who contribute to the “advancement of justice.”

Eminent law professors like Randall Kennedy, Carol Steiker, Todd Rakoff, and Duncan Kennedy joined a roundtable discussion last month at Harvard that Davis led to discuss the report and its implications—and the obligations demanded. The students, faculty, staff, and clinic leaders that filled the Weissman Campus Center were deluged with facts, delivered with a touch of humor (in his opening, Davis relayed a story of when he asked a powerhouse firm’s rep if he could do pro bono work to unionize Walmart employees. Came the reply: No, they’re one of our clients).

Over two hours in Cambridge and over the 176 pages of his treatise, Davis challenged the nation’s law schools—most especially his own—to resist the temptation to churn out corporate lawyers (just one reason among many why public-interest lobbyists are outnumbered in Washington by corporate lobbyists 34 to one) and instead advance the public interest. He methodically picked apart excuses both tired (even Goldman Sachs has a right to a lawyer) and more reasoned (Harvard as a stepping stone to the upper class) for not doing so and, while strenuously reserving judgment about paths law graduates take, set a moonshot of 51 percent of Harvard Law grads to pursue public-interest work. To do this, HLS students may utilize the Low Income Protection Plan, where graduates working in public-interest law pay a limited portion of their income toward their loans, while LIPP covers the rest. Other schools offer a loan-assistance repayment program for those pursuing careers in public service.

Some of the early research and analysis that eventually went into the book was also spotlighted in the 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.”

Earlier writing on law schools’ public interest missions

The book emerged out of a series of essays and letter in The Harvrad Law Record and elsewhere. Below are some of them, with excerpts:

Resist the Cult of Smart, Embrace the Call of Citizenship (Harvard Law Record, August 30, 2017)

Many factors account for this transformation of public interest 1Ls into corporate interest graduates: a competitive culture that fails to spark public-spiritedness; a curricular system that pushes contextualized and experiential education — the types of courses that teach students about the real-world crises in the justice system — into second- and third-year electives; a career-building system that sets corporate interest law as the default career option for students; and a tuition debt structure that dissuades students from public interest work.  

Today, however, I would like to focus in on one factor fully within your control as first-year students: participation in our school’s “cult of smart.” See, from the very beginning of your time here, there will be a push to hold those with the sharpest and narrowest analytical skills in acclaim, regardless of their moral or civic orientation.

The introductory rites of this “cult of smart” occur in the first-year classroom, with student acclaim for smart professors. The first-year classroom, as Professor Lani Guinier points out, centers all attention on the professor, with “professors fishing for the ‘right’ answers, and students trying to catch the hook.” Professors frame the whole ‘game’: the questions that should be considered important, the eventual ‘correct’ answers to those questions, and the affirmative and negative reactions to students’ guesses. Since bringing in outside morality or ideology (or even facts from the real world) into the environment is discouraged, students evaluate the entire exercise on the cleverness of their professors’ analytical gymnastics. That is how, Guinier argues, being smart becomes “a value itself, detached from what people want to accomplish with their mastery.”

This cult of smart eventually expands out from students’ views of professors to students’ views of the judges they are reading. It is not uncommon to hear classroom comments like “I might disagree, but this argument is so clever and well-written,” or “Say what you want about what he advocated for, he was a genius.” This is reinforced by the physical school environment, which hangs pictures of academic faculty and ‘genius’ jurists — as opposed to clinicians and courageous reformers — most prominently on the walls.

And finally, this cult of smart eventually trickles down into student culture. The students who are best at the game of law school — those who might be the research assistants for the smartest professors or clerks on the Supreme Court — are often the object of peer fascination, with little regard given in the hallway chatter to their moral courage or to which legal interests they plan to serve after graduation.

This cult of smart is dangerous because it obsesses over means — one’s ability to complete legal tasks efficiently and cleverly — at the expense of discussing ends —  reflecting together on which legal tasks are worth our time. When we give too much acclaim to clever means and not enough to moral ends, we misallocate legal resources on a grand scale, leaving some of the most important legal projects of our era — building an economy and democracy that works for everybody, shrinking our monstrous prison system, mitigating climate disaster — underserved, while at the same time leaving perhaps the least important legal projects of our era — advancing the legal interests of the already wealthy and powerful — overserved.  

Dear 1Ls: Consider the Clock (Harvard Law Record, August 27, 2016)

How did it come to this? We at Harvard Law School forgot about Time. We teach the law like it exists outside of Time. We do not discuss the history of how the law got made, the future of how the law could be different, or the present of how the law works in the real world today. In the coming years, Class of 2019, we need your help in again steeping this school in Time.
If we can do better at teaching the history of the law, we can cut the present order down to size, showing how it came to be and how that process was often less reasonable than one would expect. If we stop asking “Why do you think this law is set up this way?” and instead ask “How do you think this law wound up this way?”, we can better remember that the folks who made the present order were no better than we are.

If we can do better at teaching the future of the law, if we can discuss not just how to navigate the legal order, but also how to change it, then we will better prepare ourselves to join our ancestors in co-creating our social order. If we start remembering how much can happen in a generation’s lifetime — how many Constitutional amendments or political watersheds can come to pass in just a couple of decades — we will start valuing not just legal analysis, but also legal imagination.

And finally, if we can do better at teaching the present of the law, if we expanded our curriculum beyond case studies to include direct experience with the realities of the justice system, then we would learn not just how to think like attorneys — advocates for specific clients — but also how to think like lawyers — members and caretakers of the legal profession, tasked with serving the justice system and advancing its public interest mission. (Our only required field trip in my 1L year was to a corporate interest law firm. If you, as a class, can advocate to have yours be to a border detention center or a union hall or a prison, your class will be better equipped to, as we are instructed by Canon 8 of the American Bar Association’s Model Code of Professional Responsibility, “participate in proposing and supporting legislation and programs to improve the [legal] system.”)

An Open Letter to the Harvard Law Review: Break Open HLS’ Inner Ring (Harvard Law Record, April 30, 2016)

Here at Harvard Law School, we are especially susceptible to Inner Ringing. I think it is safe to assume that the desire for “being on the inside” was a major reason in why we all applied to come here. But this desire, as Lewis argued seventy years ago, is a danger. And this desire, in America — a nation built on the democratic faith in open institutions where all people, not just a select few, possess the constructive genius to co-create our shared world — is a vice. We should be working together to wean ourselves off this desire and become a community of sound craftsmen, devoted to our work — work, as our school’s mission statement impels, to advance justice and societal well-being — as an end in itself.  

Unfortunately, as it is currently structured, the Harvard Law Review, which selects about 8% of students to be welcomed into Gannett House each year and leaves hundreds of our community members outside, feeds this dangerous desire.  It is time to open up the Review — to break open Harvard Law School’s Inner Ring — and let any student who wants to participate to participate. This is assuredly workable: if the Review truly is the most impactful law journal in the country, it certainly has challenges, research opportunities, and areas of development and expansion to which more students could be of use.

Some may argue that exclusion is a fact of life. Indeed, Lewis draws a distinction between accidental or necessary exclusion versus Inner Rings that exist solely to exclude:

"In any wholesome group of people which holds together for a good purpose, the exclusions are in a sense accidental. Three or four people who are together for the sake of some piece of work exclude others because there is work only for so many or because the others can’t in fact do it. Your little musical group limits its numbers because the rooms they meet in are only so big. But your genuine Inner Ring exists for exclusion. There’d be no fun if there were no outsiders. The invisible line would have no meaning unless most people were on the wrong side of it. Exclusion is no accident; it is the essence."

We should ask ourselves whether the Review’s desire to exclude resembles the former or the latter: whether its policy of exclusion is necessary due to a lack of available tasks or whether its policy of exclusion is because “there’d be no fun if there were no outsiders.” If it is the former — if there are not a sufficient number of tasks to welcome all interested students on staff — I would challenge the Review to have a higher estimation of its own civic potential. There are major crises in the law — mass incarceration, unequal access to justice, a weakened tort system that leaves consumers unprotected, and the institutional failure of Congress, to name just a few — that a larger, more ambitious Review could better help tackle. It would be a shame to let these crises go unnoticed by the Review next year due to a lack of staffing precipitated solely by a desire to exclude.

“You are on a list of students…”: The Office of Career Services Tracks and Nudges Public Interest Students (Harvard Law Record, March 7, 2016)

Last November, in a letter to Dean Martha Minow, I attempted to account for why it is the case that for every Harvard Law School graduate in 2014 who pursued work designed – as our mission statement impels – to advance justice and societal well-being, five graduates joined corporate interest law firms. I argued that the school does not explicitly tell students to pursue corporate interest legal work, but rather nudges students into such work by making it appear that the “default option” for students is to go into such work. 

Examples of such nudges include the fact that: the hypotheticals in courses often presume you are working for a corporate client; the only required field trip for 1Ls is to a corporate interest law firm (at the end of the winter Problem Solving Workshop); the office primarily tasked with encouraging corporate interest careers is given a generic name (The Office of Career Services) while the office tasked with encouraging public interest careers is given a specific name (The Office of Public Interest Advising); and the structure of student loan forgiveness results in those pursuing corporate interest careers having not just an easier, but a simpler, time paying back their loans than those pursuing public interest careers.

Today, we can add “tracking and pursuing students not interested in corporate interest work” to the list of ways Harvard Law School nudges students into corporate interest work. This morning, every 1L who has not expressed interest in participating in the Early Interview Program — HLS’ program designed to lubricate the process of entering corporate interest work — received the following email from the Assistant Dean of the Office of Career Services:

Subject Line: Checking in about EIP Orientation
Hi there – I am writing because you are on a list of students who have not yet RSVP’d for the EIP Orientation and Market Mixer event which takes place this Wednesday, March 9, from 5:00 – 8:00 p.m.in Milstein. If you plan to participate in the Early Interview Program (EIP) in August, then I highly encourage you to attend this program which will address important information about preparing for EIP over the coming months. This will be the last program about EIP before August. Additionally, you will be able to meet a lot of employers from the specific markets in which you are interested. It’s actually a lot of fun and there will be tons of food.

I know that some students have classes that evening. However, even if that is the case, I’m encouraging you to attend after classes end. If you are going to be late, please just let us know.

To RSVP click HERE. If you are going to be late, in addition to RSVP’ing, please reply to this email letting us know that you will be there after your class ends.

I hope to see you on Wednesday.

This reminder email was not sent to every student: it was only sent to students who had not shown an interest in pursuing corporate interest legal work. It resembled an official administrative email aimed at everyone — similar to ones that remind you to register for courses or to sign up for on-campus housing — rather than one about career or extracurricular opportunities specific to certain groups of students. In saying that students uninterested in legal work serving corporate interests were on a “list of students” who had failed to complete a task the administration was tracking, the email embodies the exact “default option”-setting that I described in November: it implies — like with the in-class hypotheticals, the Problem Solving Workshop field trip, and the loan forgiveness structure — that corporate interest legal work is the presumptive career choice for Harvard Law School students.

Follow Professor King’s Lead: Without Experience with Legal Realities, 1Ls Left Unprepared to “Think Like A Lawyer” (Harvard Law Record, January 27, 2016)

It is often said that the purpose of Harvard Law School’s 1L curriculum is to prepare each student to “think like a lawyer.” It would be much more accurate to say that the present curriculum aims to prepare each student to think like an attorney. The distinction is rarely articulated to students: an attorney is a legal representative to a specific client, while a lawyeris a member and caretaker of the legal profession, tasked with serving the justice system and advancing its public interest mission. Solely understanding important cases involving the major areas of law (Contracts, Torts, etc.) may be sufficient to “think like an attorney,” but if Harvard Law is interested in also helping each student to “think like a lawyer,” we must expand our 1L curriculum beyond solely case studies to include direct experience with the realities of the justice system.
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Similarly, in the present arrangement, Harvard Law cannot ensure that its degree-holders have ever visited a prison, met an asylum-seeker, or saw what a public defender’s office looks like relative to that of a white collar defense firm. Voluntary elements of the Harvard Law experience are often sorted by what we were already predisposed to be interested in, resulting in the most important learning experiences — the future prison reformer hearing from a victims advocacy group, the future prosecutor learning from a formerly incarcerated person, the future corporate interest lawyer experiencing a union meeting or a visit with victims of corporate malfeasance, and the future government regulator meeting a startup entrepreneur — never happening. If we believe those experiences are necessary to “think like a lawyer” in 21st century America and if a Harvard Law degree is supposed to signify that its holders have been through the experiences necessary to “think like a lawyer,” then the curriculum of Harvard Law should incorporate those experiences. In short, we should put our mandatory 1L curriculum where our mouth is.

The first thing we do is nudge the lawyers (Aeon, January 26, 2016, adapted from an essay in the Harvard Law Record)

In early 1969, Ralph Nader placed an ad in the Harvard Crimsoncalling on law students to apply to work with him to investigate various federal agencies. The group of young lawyers would become known as ‘Nader’s Raiders’: an iconic posse aiming to shake up Washington in the name of ‘the public interest’ (an old phrase they would come to repopularise). The next summer, thousands of students from prominent law schools, including a third of Harvard Law School’s student body, applied for 200 positions. They wanted to be, as Nader explained to Life magazine, a ‘new generation of lawyers’ who would be a civic-minded counterforce to a system where ‘all the lawyers are on the corporation’s side’.

Four decades later, the millennial generation of lawyers, by the numbers, looks less like the new generation of public-interest lawyers that Nader was rallying and more like the generation of corporate lawyers he was aiming to counterbalance. At the top five ranked law schools in the United States, only 9 per cent of the class of 2014 pursued public-interest work after graduation. Only 15 per cent of Yale Law School’s class of 2016 spent their 2L summer working for justice-centred organisations. For every Harvard Law School graduate of 2014 who pursued work designed – as the school’s mission statement impels – ‘to contribute to the advancement of justice’, five graduates joined corporate-interest firms. In fact, the 1960s’ public-interest fervour has faded so much that more students from the top five ranked law schools went to work for Nader himself in 1970 than took up postgraduate employment with any public-interest organisation in 2014.

End OCS’ Complicity in D.C.’s Revolving Door Corruption (The Harvard Law Record, January 13, 2016)

The OCS-endorsed recommendation reads like a corrupted version of President Kennedy’s inaugural address. Instead of calling young people to work for the federal government by challenging them to “ask what you can do for your country,” the Office of Career Services at the law school of Kennedy’s university is directing students to statements that call students to work two-to-three years for the federal government by challenging them to ask what you can do to gain knowledge and skills for deep pocketed future clients. “The federal government,” Point 12 reads, “is a great place to gain practical experience and training.” Indeed, the school whose mission is “to educate leaders who contribute to the advancement of justice and well-being of society” frames government work no longer as service to our national community, but rather as experience to be strategically monetized.
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America does not need young law students working for our national government with the mindset that they will bring the intel they learn there back to serve powerful interests. If our nation’s oldest law school is going to recommend people to go into government work, it should only be in the context of entering such work as a public servant with our national community’s interest in mind while one works there.

A Mission in Winter (Harvard Law Record, January 7, 2016)

Dear Harvard Law School Class of 2018,

Harvard Law School’s stated mission is “to educate leaders who contribute to the advancement of justice and well being of society.” Every January, when the sun sets early and corporate interest law firms flock to campus to wine and dine us, that mission can fade to the background. It is important that we do not let the hustle and bustle of Big Law receptions crowd out the reason we are here: to launch not prestigious careers, but rather transformative vocations that serve to advance justice and societal well-being.

There exist great civic challenges of our time. One in four American children grow up in poverty. Our nation’s Congress has been corrupted by money. A warming globe threatens humanity’s most vulnerable. One in three of our black male neighbors will be locked in prison at some point in their life. These challenges need all hands on deck. These challenges need the Harvard Law School Class of 2018.

We came to law school to develop a skill with a proven track record of tackling great challenges such as these. In winter, though, as we are shuffled from corporate interest reception to corporate interest reception, doubting questions cloud our memory:

If most students are going into corporate interest law, it must be crazy to pursue a different path, right?

If legal work designed to serve those without money is — as one professor recently told our class — “the Lord’s work” and I am no martyr, am I not fit to pursue it?

If serving the interests of a wealthy and powerful few can provide stability to my life, but serving the interests of the public will require periods of uncertainty, would it be best for me to play it safe?

As these doubts grow bigger with each passing winter night, it becomes easy to ignore the civic challenges calling us and forget the reasons we came here in the first place. Left to its own devices, the creeping belief that there is no alternative but using our skills to serve wealthy interests will take hold of us. Our ambitions to build transformative vocations will be suppressed and delayed. Our dreams of living Big Lives will be shrunk to the consolations of Big Law: “…there will be some pro bono work, I guess…” “…wealthy folks need lawyers, too, you know…” and“…maybe later…”

We must remember, though, when we find a quiet moment during these snowy, winter nights and contemplate what we want to labor for during our brief and precious time here on this Earth, that there is always an alternative. It is an alternative that we are blessed to have had so many Harvard Law alumni take up: to trade the prestigious certainty of corporate advocacy for the transformative citizenship of contributing to the advancement of justice and well being of society. To name just few:

After graduating from Harvard Law School in 1992, Jennifer Gordon founded the Workplace Project, a non-profit worker center, which organizes immigrant workers and fights for stronger state labor protection laws. After graduating from Harvard Law School in 1970, Mark Green spent the Seventies publishing various books on reigning in corporate power, culminating in his founding of the New Democracy Project, a public policy institute.
After graduating from Harvard Law School in 2010, Gina Clayton founded the Essie Justice Group to support and empower women with incarcerated loved ones to help end mass incarceration.

Gordon, Green, and Clayton — as well as hundreds of their fellow citizens over the years who pursued a civic-minded vocation right out of Harvard Law School — faced the same winter of doubt that we face today. But they listened to that voice that drew them to law school in the first place: we have a mission to serve, we have great challenges to tackle, we have skills to deploy in service of our human community and we cannot let fear of uncertainty distract us.

Unfortunately, for every 2014 Harvard Law graduate who pursued work in organizations designed “to contribute to the advancement of justice and well being of society,” four graduates joined firms designed to serve wealthy clients’ interests. We, the Class of 2018, can take a different path. We can have a higher estimation of our own civic significance. We can survive this winter with our vocations intact.

Sincerely, 
Pete Davis