The Case of the Co-opted Critic: Ralph Nader and Harvard Law School
Bernabei, Lynne
The Case of the Co-opted Critic: Ralph Nader and Harvard Law School by Lynne Bernabei There may be institutions in our society that have never felt the sting of social criticism, but law...
...is a clerk for a federal disrrict courr judge in Washington...
...Faculty are supposedly chosen strictly on their academic and professional credentials...
...Were we setting ourselves apart from our teachers and fellow students, somehow excluding ourselves from the collegiality of law school...
...In 1948, there was a major study of the Harvard curriculum...
...Yet somehow, they replicate themselves with astounding precision generation after generation...
...The teaching of jurisprudence at Harvard Law School has little noticeable political content...
...That is why so many of the students working on The High Citadel felt the anxiety they did and dropped out...
...Lawyers did not analyze or even acknowledge the consequences and values inherent in their actions...
...Suddenly I had the feeling that even those whom I had expected to be our allies, those who had been critical of the faculty and the law school in the past were not what they appeared...
...The big money firms were the ones that hired so that is why most of us would end up there...
...of getting ahead and staying there...
...In fact, they were all good liberals...
...Their tastes are just not as catholic as they might be...
...The Socratic method and the refusal of faculty to talk about values and social goals get much of the blame...
...These same professors were graciously setting up interviews and talking to the Nader group, even if circumspectly and off-the-record...
...Archibald Cox was reported to have asked in the faculty dining room, “Who are the students working on the Nader book...
...I can’t tell you,” he said...
...On another level, interviewing faculty brought with it considerable worry...
...The usual explanation for the homogeneity among law professors is that blacks, women, and social theorists do not meet the standards called for...
...The professors we talked to were not unpleasant people...
...Around 1959, another faculty group made another study and came up with the same conclusions...
...He was fired after he lobbied other collaborators to shun publicly any connection to Nader...
...Thinking about that-and we did all the time-was ultimately a depressing task, and combined with the external pressures, it forced most of the Nader group to abandon the project long before the work was done...
...Richard Parker, proud of his work registering blacks for two weeks in Mississippi and conducting research one summer for Nader, advised me to ask the Dean most of my questions...
...Still, they are a decided minority, segregated from the power factions in the faculty, and not growing in numbers...
...It is not obvious how law schools mold and narrow their students...
...Part of the answer lies with law schools that teach that values don’t matter and t h a t lawyers aren’t supposed to take principled positions...
...It suggests that the faculty broaden its approach to hiring to bring in clinical teachers, government lawyers, and specialists and scholars in the social sciences...
...We became despondent...
...He later insisted that he was just trying to keep me on good terms with other faculty members...
...Felix Frankfurter and Learned Hand, its forebears, talked of judicial restraint, the need for courts to avoid the resolution of constitutional questions whenever possible...
...It is the true legacy of Harvard Law School as a graduate school...
...I would venture...
...He had become discouraged by the small, ever declining number of public interest lawyers in each Harvard graduating class...
...Soon after, Dean Albert Sacks requested that Seligman submit the final Nader conclusions to the law school faculty and not publish them in book form...
...We had to face our feelings about the legal profession and about the fact that most of us would end up joining the world of corporate law...
...Nader was a Harvard Law School alumnus and a longtime critic...
...The more different frameworks you expose yourself to the more wellrounded you will be...
...The real tragedy is that the final product never came to grips with the \substantive problem of reforming law school...
...Finally, there is the issue of hiring faculty for Harvard Law School...
...But just as important are the subtle and not-sosubtle pressures of grades and Law Review...
...Finally 1 caught on...
...From our professors and classmates we gain our credentials-our status as lawyers...
...A lawyer may, with honor, represent anyone or anything...
...How one uses one’s skills as a lawyer is insignificant since the adversary system in which everyone has an attorney guarantees that justice, somehow, will win out in the end...
...But that brief fling with conscience faded with the 1960s, and by 1975 law schools were smug, self-satisfied places...
...Most recent graduates went to corporate law firms...
...Where did they come from...
...There is no feeling in those classrooms that the whole point of law is that what is right ought to be what prevails...
...He compiled a competent if not exciting bibliography on legal education and surveyed the s c h o o 1 ’s outstanding projects and committees...
...Yet an inquiry about his professional goals turned up the response that it was more important to be a well-rounded professional lawyer...
...One woman, for example, who had earned a spot on the Law Review and had turned it down, decided to work on the book...
...in making the world a better place...
...Law school had returned to normal...
...It became a constant topic of discussion...
...Even young teachers who had represented radical clients did not seem to know where they were headed...
...More often he spends his time outside the school or in the modern, hidden faculty library...
...He thought t h a t some professors might not speak to students associated with so vocal a critic of Harvard Law School as Ralph Nader, and suggested the group be called “The Book Group” instead...
...Harvard Law School is, above all, an apolitical place...
...The final product deserved the reviews it received-it M’US timid, it pulled its punches, presented no bold ideas for change, and took no strong position on any issue it discussed...
...The reviews were mostly unfavorable, but not because The High Ciradel was harsh or unreasonable in its call for reform...
...The formidably inaccessible Harvard faculty became eminently accessible to us...
...Most law school students come to see the issue of corporate lawyering in simplistic terms, as utterly black and white...
...From my vantage point as a member of the Nader team, I came away from the project convinced that if Harvard Law School-and the rest of America’s law schools-are to ever give us a different breed of lawyers, they need to instill an entirely different atmosphere into legal education...
...In 1975, Ralph Nader decided to find out why law schools turn out the kind of lawyers they do...
...Gary Bellow, a former devotee of Cesar Chavez, called me at 7:30 one morning to ask if I were going to show my draft chapters to the faculty I interviewed...
...They were losing their status...
...The Nader group had good reason to worry, it seemed...
...Ironically, the same pressures the school used to finesse, nudge, and shove students into corporate law worked on the group writing the Nader book...
...In terms of living a life,” he said, “having a career, being in a profession, long-term respects having to do with o r i e n t a t i o n and perspective, i t obviously helps to be reflective about what one is doing or thinking...
...At the bottom of the method is the implicit belief that the abstract concept of “justice” always prevails-thus it matters little which side of the case you are on...
...The four corners of the case are all-its facts become hypothetical problems and students are trained to become mechanical problem-solvers, using the same kind of deductive reasoning a mathematician might use...
...From the classroom we learn the language of the law which befuddles the rest of society...
...I said I would only with specific faculty members and only if 1 had agreed to do so beforehand...
...He never said a word about the value of the work they do...
...In October Seligman chose five students, including myself, to work on the project...
...Students enter law school with aspirations of changing the world and leave as legal counsel to ITT...
...In the course of my research, I found example after example of that inherent double standard, but unfortunately The High Citadel barely mentions them...
...But it won’t happen for all people automatically...
...Asked why so many Harvard Law School graduates work in large corporate firms, Archibald Cox replied that work there was more challenging, more demanding, there was more competition to be met and better associations to be made...
...We were interviewing faculty about it and talking to our fellow students about it...
...From the beginning, the faculty and administrators revealed their anxiety about the project...
...It teaches students to use a legalistic jargon that is ultimately “neutral with respect to right or wrong,” according to one Harvard professor, a jargon the layman can never comprehend...
...The Legal Realists of the 1920s and 1930s criticized law schools for teaching students law entirely through the case method...
...A few blacks, one or two women, a few heretical scholars creep in...
...They were doing something that wasn’t done in law school...
...And it became the force which gutted the Nader critique...
...Who asked you to try to get ahold of my notes and draft chapter...
...And I haven’t fashioned a way to give students this kind of experience...
...The Case of the Co-opted Critic: Ralph Nader and Harvard Law School by Lynne Bernabei There may be institutions in our society that have never felt the sting of social criticism, but law schools will never be counted among them...
...But most of the faculty voted Democratic, and none openly opposed the inclusion of blacks and women on the faculty...
...One black member of our group admitted feeling uncomfortable with the project after one interview in particular, in which the professor told her that in 1970, when the blacks at the law school were holding sit-ins, he had been among th.ose who had spoken out in their favor...
...Lack of values, and the lack of nerve that follows ineluctably, is the heart of credentialism...
...The same student who wrote the early report was the first of this original group to leave...
...What I found in conducting my interviews for the book was a faculty that lacked direction, and that is part of the problem at Harvard...
...In 1959, a neophyte law professor named Roger Fisher summed up the dilemma as well as anyone when he asked: “I would guess that among the entering first-year students, a high percentage would express an interest in public service, in politics...
...of eventually being employable...
...Quite the opposite: ;The N ~ MYo)rk Times called it “timid and shallow...
...Kenneth Edelin, and Emile de Antonio...
...The average law school professor is surrounded by p r o t e c t i v e s e c r e t a r i e s when in residence in his office...
...the old boy network makes sure the standards are not applied evenly...
...They felt they were losing the respect of their colleagues and professors...
...What had begun as insecurity over criticizing professors turned to anxiety about our own work as law school students as the year wore on...
...He was to draw up a blueprint for student researchers and writers to follow during the coming year...
...Abe Chayes, law professor and former legal advisor to President John Kennedy, convinced the student to let him see this preliminary outline...
...But at the same time, the professor is instilling a sense of skepticism...
...Why is there so little passion for justice...
...Timid and Shallow’ Earlier this year, the results of the Nader study were published as a book, The High Citadel: The Influence of’ Harvard L a i t ’ School, authored by project director Joel Seligman, now a law professor at Northeastern University...
...And nowhere could those pressures be seen as plainly as with the people who worked on The High Citadel...
...Corporate firms gobbled up their best and brightest with alarming regularity...
...This time, the request wa’s turned down...
...We began to feel that the project wasn’t worth it-that the problem of students turning almost exclusively into corporate lawyers was bigger than any of us, and our efforts were therefore hopeless...
...The choice of institution for the Nader-sponsored investigation was an apt one: Harvard Law School, in name at least, the preeminent law school in America...
...Since the early 1900s, law schools have had their share of critics, sometimes in vogue, more often not, but their refrain has invariably been the same...
...He had been at the school too short a time to be of much help, he insisted...
...The realists said graduates did not know how to deal with facts and complexities and reallife legal situations...
...Courts leave rather ill-defined “political questions” to the executive and the legislative branches...
...In addition to its prestige, its power and its tradition, Harvard Law School was also the place which originally developed the teaching method-the so-called Socratic method-that has been universally adopted as the way to teach law in this country...
...But, the book says, the present law school Appointments Committee and the faculty do not discriminate...
...Rigorous legal analysis demonstrates that any chain of reasoning (and thus, any real value system) leads inevitably to illogical conclusions...
...An Apolitical Place The tragedy of The High Citadel, however, is not that some law students ended up co-opted by Harvard Law School-that happens all the time...
...Or they could “sell-out” with the big firms and make money...
...Law schools, they say with considerable justification, accept large numbers of idealists and then transform them in three years into mechanics, people who have rejected the social values they entered with and replaced them with the hired gun mentality that dominates the legal profession...
...All in all it was a sad performance, made even sadder when Seligman showed his original draft to about 15 professors and then deleted from the final version some of the criticisms they objected t 0. Little Passion For Justice Reforming Harvard Law School is not a new idea...
...Is the law school also a school in cynicism...
...We rationalized: students were just reacting to the job market...
...a somewhat friendlier reviewer labeled it “mild...
...He added that he always kept up his credentials so he could move around...
...In practice, at Harvard Law School, the hiring criteria are discriminatory...
...How was it affecting our grades or our chance for a job or clerkship recommendations...
...Yale historian Robert Stevens describes the cyclical process of criticizing legal education: “As all the basic arguments about curriculum reform are trotted out in each decade in apparently blissful ignorance that they have ever been discussed before, so in terms of legal research the wheel is reinvented with depressing frequency...
...At the beginning, Nader had an eager cadre of student researchers...
...The students on the Law Review flatly said she was “crazy” for doing so, and she spent most of her time on the project agonizing over her decision...
...So nothing much has changed since 1920...
...The Internal Pressure But perhaps the most painful pressure we felt was not the external, but the internal-every day we worked on the Nader project we were facing something most other law students pushed to the backs of their minds or ignored completely...
...A second-year student was hired to write a report on the literature on legal education and the structure of the school...
...This was a rude jolt to Nader who just six years earlier had seen signs for hope, signs that things might be turning around...
...that among the third-year graduating students this percentage is far less...
...Many on the Harvard faculty had been clerks to the two Supreme Courtjustices who epitomized this way of thinkingFrankfurter and Justice John Harlan...
...Over and over, she covered the same questions, never resolving whether she had done the right thing...
...We never had any support from the student body...
...Even though they did not have the standard credentials, they would enrich the school by their diversity...
...The people you worked with were brighter, more intelligent...
...In effect, Harvard Law School co-opted the very book which was supposed to be its critique...
...And on the matter of Harvard’s teaching method, The High Citadel gives chapter and verse on its history, but makes no effort to determine whether it is good, bad, or indifferent...
...These came to be overriding concerns...
...In fact, the purpose of law school in large measure is to confer status on a small, select group of people who get to be called lawyers...
...They can retain their integrity, byjoining the public interest community or doing legal aid work, but they wouldn’t make much money...
...As it turns out, that student was wrong...
...I asked...
...He laughed...
...The faculty would consider seriously any criticism made by the group...
...It’s not too painful to criticize people you don’t like...
...The Socratic method, that grueling method of case analysis of appellate court opinions, never seeks a larger context...
...By the end almost all of them had left...
...As things stand now, the real lesson taught by Harvard Law School is that no values are really very important...
...Law students,” he wrote in 1969, “began to turn away from private practice...
...a graduate of Harvard Law School...
...Some of us became frightened by professors’ reactions to the project...
...But would I mind showing him the manuscript...
...The problem, and the one which neither The High Citadel nor most other past calls for reforms explore, is that law schools do not instill a sense of the law as a means to justice...
...In one sense, we probably had hoped for that-for that would make the task of criticizing them and their law school much easier...
...Anxiety About the Project The three-year saga of writing 7he High Citadel began in the summer of 1975...
...Those who went directly to the firms were less than enthusiastic...
...The big corporate firms in New York and Washington began to detect early signs that their boot camps were not responding to the customary Loreleis of the metropolitan canyons...
...For one thing, it became increasingly difficult to see much sense in attacking the professors, the school, the teaching method-and by implication, the legal profession itself, which we were about to join...
...That, after all, was a large part of the project...
...Frank Michelman, rather an intellectual for a law school professor, awkwardly admitted having little purpose in teaching...
...Charles Nesson has represented Daniel Berrigan, Daniel Ellsberg, Dr...
...This postwar group came to the same conclusions as the Legal Realists...
...We become the legal haves, everyone else is part of the have-nots...
...One woman was afraid to interview a professor from whom she had received a B grade...
...It has been resurrected with eerie regularity every 15 or 20 years...
...The paranoia of the younger, seemingly liberal, faculty members infected the group’s enthusiasm...
Vol. 10 • October 1978 • No. 7
