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Why Harvard Law School Matters: A New Critique

As Harvard Law School celebrates its 200th anniversary with two days on October 26 and 27 of events attended by hundreds of alumni, some law students, led by Pete Davis (’18), are inviting the Law School to engage in extra-ordinary 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.”

Out there in the country, the rule of law and justice is relentlessly overwhelmed by concentrated, unjust power. Just consider the stark reality that our profession’s legal services are unaffordable to most Americans and, as retired Justice Sandra Day O’Connor has been tirelessly arguing, legal aid resources for access to justice are consistently pathetic.

But the reality of raw economic, political and technological power over a just legal order has broader consequences. From the lawlessness of Presidential war-making exercised daily abroad, to the plutocrat-shaped and dominated corporate state, to stifling the fair usage of our two pillars of private law – contracts and torts – there is an undeniable crisis outside of Harvard Law School that Davis factually and normatively contends is aided and abetted by the culture, incentives and practices at our alma mater.

The underlying moral basis of law has been supplanted by the commercial motivations and their tailored analytic skills. For most students, Harvard Law has long been a finishing school, a farm team, if you will, for lucrative corporate law practice in service to ever larger global corporations. The corporate attorneys weave strategies that mature the authoritarian corporate state (recall President Eisenhower’s warning about the military-industrial complex as one example) to undermine a weakening democratic society and support corporate supremacy.

As institutionalized lawlessness robs our country of its potential and promise, the opportunities for Harvard Law, a well-endowed, proud historic law school, to be a leading institution for justice, become ever more significant and urgent. The civic jolt, as always, comes from the rising of the deprived, denied, excluded and disrespected citizenry, from an informed and motivated student body — seeking higher estimates of their own significance in contemporary history and drawing on their forebears’ finest initiatives — and a faculty that lifts its horizons beyond its specializations and moves from knowledge to action— as a few Harvard professors have done. It helps to nourish a media that recognizes law schools as heavily underutilized but very important national resources. In short, law schools need a constant dose of demands and invitations that come from higher public expectations.

Looking at HLS 200: HLS in the World – Friday’s numerous sessions – one wonders about key subjects left out – such as corporate crime, consumer protection and the role of large corporate law firms – and who was invited and not invited to participate based on knowledge, record and something to say.

Our Bicentennial Crisis was written by Pete Davis to be discussed, analyzed and amplified by the Harvard Law School community, including its alumni, and the affected public at large, Copies will be distributed to all the law schools in the country and other civic and public organizations.

The law school administration, so historically adept at waiting out its student and alumni critics, would do well to engage with an open and sensitive mind. With Dean John Manning taking the helm, a fresh attitude, unencumbered by past decisions, can encourage constructive engagements in the coming weeks. Our country’s crises are worsening, the needs are great and the existing capacities at HLS should rise to meet, in the words of Oliver Wendell Holmes Jr., “the felt necessities of our times.”

(“Our Bicentennial Crisis” is available online here. For a hard copy, email PeDavis@jd18.law.harvard.edu.)

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Ralph Nader is a consumer advocate, lawyer and author of Only the Super-Rich Can Save Us! 

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