The Law School and the Law
A "Benthamite" Dean lets a hundred legal flowers bloom
by Brock Brower
Rest assured, Harvard Law School is still teaching the law
by the Socratic method--even over the Internet. "I've just
started this privacy course," Bromley professor of law Arthur
R. Miller, LL.B. '58, explained last spring. "The first attempt
to use the Socratic method on line." Offered through the
school's Berkman Center for Internet and Society, the course could
be taken free on the World Wide Web at cyber.harvard.edu/privacy.
"At last count we had over 1,200 students from 41 countries,"
Miller recalls, awed himself at how far his legal dialectics can
reach out into cyberspace.
Such endeavor is academically noble, but that same spring,
Miller signed up with another, very different Internet venture,
the Concord University School of Law. Concord's students--some
170 enrollees, seeking a dot.com law degree--go on-line for an
annual tuition of $4,200. They are mentored, tested, and graded
via e-mail on their coursework by Concord's own law faculty. That
coursework now includes 11 videotaped lectures on civil procedure
by a celebrated Harvard law professor, already famous on TV, a
highly visible and electrifying--and compensated--presence in
Concord's virtual classroom.
That has not been considered so noble, and the law school has
communicated with Miller about his compliance with the University's
rules requiring prior permission from one's own faculty dean's
office for outside lecturing--especially, these days, on the Internet.
"I don't like being treated as a lawbreaker on this issue,"
Miller recently told the Wall Street Journal. He cannot believe
that "preparing a few hours of thoughts about civil procedure
on videotape for use by another educational institution via frontier
technology" is any different from publishing a casebook,
or distributing audio/video tapes of his lectures, which he has
been doing for the past 25 years. "How much of Arthur Miller,"
he asks, "does Harvard own?"
Miller has been teaching at the law school for more than three
decades, since the sterner days (1946-1967) of Dean Erwin N. Griswold,
LL.B. '28, S.J.D '29, LL.D. '53, when "the Grizzer made you
teach what he wanted you to teach"--contracts one semester,
criminal law the next, or torts, property, civil procedure--an
academic discipline that Miller recalls as "this great tradition
of rotating many, many teachers through the first-year curriculum,
way out of their specialties." And despite advancing technology
and a law school catalog full of new, specialized courses, Miller
still believes "these basics remain the most important teaching
we do." On his wall is his ancient credo from Socrates: Education
is the kindling of a flame, not the filling of a vessel.
Equally important, Miller argues, is how the basics are taught.
Legal education is not some paper chase after legal concepts,
but practiced verbal pursuit of judgment, consistent with the
law's rhetorical traditions, no matter what new media come into
play. "The law is a highly oral profession," he insists.
"One of our jobs is to develop the oral skills through the
classroom, and I have fought the very lonely battle over many
years for my right to take classroom performance into account."
A stickler then, a dedicated practitioner of the case method,
a self-described "Archie Cox kind of person," who teaches
in what was once called "the Grand Manner." So it is
all the more significant that Arthur Miller has joined the great
pedagogic outreach, the rapid expansion of legal education by
all technological means at the century's end.
For Miller, it began when he lost patience with the "ideological
warfare" among the faculty in the late 1970s and '80s. "I
literally stopped going to faculty meetings," he says. "My
life here was so uncollegial and aggravating." He turned
instead to outside interests, and "just sort of fell into
television." Television producer Fred Friendly, putting together
a series of nontelevised public-affairs panels, was told of Miller's
Socratic repute by a Harvard Law School graduate on his staff.
Friendly picked Miller to moderate--at first allowing only private
taping for the record--but these "Fred Friendly seminars"
turned out to be such fine television that they were soon being
broadcast in prime time over public TV.
Miller realized that "there was a public out there who
needed to be informed and educated." Always further honing
his dialectical skills, he kept extending his teaching through
the media, such as Miller's Court on Boston's WCVB-TV, a commercial
station, as well as guest appearances on Good Morning America.
"Occasionally I describe the Socratic dialogue as a life
form," he says. "It's storytelling. And that is exactly
what we are trying to do on the Internet right now."
That very day, Miller's on-line "hypothetical"--Lesson
Five: "Cookies and Clickstreams"--told this story: After
a boring day at work, you log on to the Internet to look for a
new job in Texas and, moments later, are hit with on-line ads
from a résumé writer and the U-Tow moving company
in Austin. What right does any merchandiser have to track your
private inquiries, without your permission, via attachable electronic
"cookies" that follow you along your "clickstream"?
What laws should protect your personal privacy on the very medium
on which, eerily, you are presently taking Arthur Miller's "Privacy
in Cyberspace"?
n many ways, Miller's transformation as a teacher--bringing
his Socratic method from the classroom through television into
the chat rooms and virtual lecture halls--exemplifies the institutional
life passages the law school itself has experienced during those
same decades. Under Griswold, a consensus held about teaching
the basics, but that was torn asunder by the rebellion of a radical
group of law professors. Only a more open curriculum, matching
the demands of an ever-expanding legal system as well as the wishes
of the students, restored academic calm. The great growth of the
law school, accelerating sharply since 1990, has created immense
choice for its 1,800 students, who can develop a specific legal
knowledge base from the wide array of courses now available. Griswold's
benign autocracy, delimiting as it did a small core curriculum,
no longer suffices, however worthy its standards.
Yet Miller prefers to identify himself, proudly, as "an
old fogy." "I believe," he says, "that this
is a professional school. I believe that our primary mission is
to train people for a great profession that can be filled with
honor and dignity. But what has happened is the demeaning of the
law as a profession." A harsh finding, but one borne out
by today's adverse legal climate, and he assigns several blames.
"Now that's partly the Crits. It's partly the times. It's
partly the changing of the generations."
Succinct in his charges, Miller presents a fair brief on what
has happened to the majesty of the law. The first attack came
from within the law schools themselves, particularly Harvard,
back in the 1970s, when the Critical Legal Studies scholars ("Crits")
sought to dismantle the basic legal training that Miller so stoutly
defends. If the rule of law goes by the rules, the Crits argued,
better take a hard look at who is writing the rules--very likely
in their own self-interest. These academic battles are long over,
and better told elsewhere, but Duncan M. Kennedy '64, Carter professor
of general jurisprudence, makes clear how determined he and other
radical Crits were on a confrontation with Miller's generation.
"They thought of themselves as profoundly disinterested,"
Kennedy says. "We drove them crazy, and they got a lot less
detached. I thought it was a big favor we were doing them."
But nobody took it as any favor. Opposition formed within the
faculty, led by Robert C. Clark, a professor who taught corporate
law. Fights over tenure erupted, and then Harvard president Derek
Bok--a former law school dean--finally had to step in. By 1990,
Bok had appointed Clark the new dean, leaving the Crits sitting
like a rump within the law faculty. "We were both stopped
and defeated and bought out at the same time," Kennedy says.
"And also given a share of the action." But he admits,
"The left is very, very weak." He sees himself as "the
archivist scurrying around to keep alive the rebellious impulse,
in my role as a coopted member of the State."
A counterrevolution might well have been expected, but what
occurred instead is a remarkable reorientation in the breadth
of legal studies--having very much to do, as Miller argues, both
with the changing times and with a generational shift--that has
all but transformed the law school. Some of these developments
may have lessened the stature of the profession, but more generally
they have heightened the impact of the institution, to a point
where Harvard, the largest law school in the world, is rapidly
becoming the leading law school for the world.
First came a deliberate shift toward the study of what is called
law and economics. That dual discipline, predominating at the
University of Chicago Law School--particularly through the intellectual
influence of Richard A. Posner, LL.B. '62, chief judge of the
Seventh Federal Circuit--emphasizes social efficiency in pursuit
of justice. (Significantly, Posner has been appointed the arbitrator
in the economically complex antitrust case against Microsoft.)
The discipline tallies the economic effects of rule-making, employing
cost-benefit analysis to adjudge the effect of a particular law
on society. Law and economics, writes Mary Ann Glendon, BI '76,
Hand professor of law, follows Oliver Wendell Holmes's ideal "of
thinking clearly about the structure, operations, and impact of
law. Legal economists have revolutionized antitrust law and the
proof of damages, and have importantly influenced how lawyers
think about securities regulation, environmental law, and the
regulatory activities of the state."
Law and economics was Clark's own specialty, even his passion,
which he always championed against the neo-Marxism of the Crits.
But the reality is that the pressures of free enterprise, particularly
from the creation of global markets, were already compounding
society's demand for more lawyers to handle the intricate ordering
of growing economic complexity.
"What are lawyers?" Clark asks. "Lawyers are
professionalized specialists who handle norms and rules and not
necessarily the rules that are authored by the state--that is,
not just laws on the books. A lot of what lawyers do is make up
rules for clients in the form of negotiating contracts. But it
is the same sort of thing as finding rules and applying rules.
Lawyers find them, make them, preserve them, adapt them, and then,
when necessary, seek to enforce them. That's a really important
function, and we need more of it as the economy gets more complicated
and interactive."
Inevitably, this economic approach has led to broadening the
scope of a legal education, once the basics are laid down during
the rigorous first year. The law school, at last count, offers
257 upper-level courses. "An all-time high," says Clark.
"When I graduated, it was 99. When Erwin Griswold was dean
in the 1940s, it was 47, and when he came here himself, there
were 16 upper-level courses, mostly required." During that
nearly half century, the student body has greatly changed, especially
after the acceptance of women, but during the past decade of curricular
expansion, Clark has managed to keep the student-faculty ratio
constant. "Same number of J.D. students, but a dozen more
primary faculty. And we use a lot more visitors and lecturers."
The biggest single course change has been the continuing expansion
into international law. The catalog already offers three dozen
such upper-level courses, led by human rights, but covering European,
East Asian, Japanese, Korean, Talmudic, and Islamic legal studies.
"This isn't coming from some top-down ivory-tower notion
that it's a good idea to study the world's legal systems,"
Clark goes on. "It's being driven by the fact that a larger
and larger percentage of all the securities offerings in the world
are being done with an international twist in multiple countries.
You can't do it without lawyers, and the lawyers have to know
how to interact among legal systems."
But that interaction goes beyond the economic imperative. "It's
the same with the migrations of people across political borders,"
Clark says. "That's pretty important, just like the migration
of goods and services, or money. You need rules about that, which
calls for people who are skilled at interfacing cultures and also
dealing with different normative systems--namely lawyers. Can't
be avoided. We're going to need people with a different kind of
legal training. And we're positioned at Harvard to help do something
constructive about that demand."
Clark has pushed hard for overseas enrollment, and 15 percent
of the students are foreign nationals, the largest such mix of
any law school's student body. He takes pride in the Olin Fellows,
100 overseas scholars brought to Harvard during the past decade,
21 of whom are now teaching law, many of them abroad. Significant
funding from the $182 million raised during the recent capital
campaign has gone into international programs. The school's international
law center was named after Reginald F. Lewis, LL.B. '68, when
he donated $3 million. As CEO of TLC Beatrice International, Lewis
was the foremost black entrepreneur in this country, but since
more than half of Beatrice's sales were in Europe, he was also
a leading global executive.
Clark is determined that every teacher share in this international
legal education, says Mary Ann Glendon. A scholar of comparative
law, Glendon has been writing Rights from Wrongs, a history of
the Universal Declaration of Human Rights, that is scheduled for
publication next year. Somehow she manages to slip the subject
into her first-year property course. "The students are always
asking, 'What's this doing here?'" she says. But knowledge
of human rights is all part of understanding different world views
on social democracy, including property rights. "The dean
loves it," Glendon adds. "He often speaks of Harvard's
aspirations to become a world law school."
In June 1998, Clark held the school's first worldwide
alumni conference, in Rome; half the 400 alumni in attendance
came from outside the United States. While in Rome, he presided
over the installation of the first foreign president of the Harvard
Law School Association--Jacques Salès, LL.M. '67, of Paris.
At an audience with the pope, arranged by Glendon, he delivered
what he calls "his Gettysburg address on the law school"
to the pontiff. His last two (out of three) sentences state: "We
are dedicated to spreading the rule of law around the world. Like
you, we promote the common good and bring justice to all persons."
In 2001, he plans to return to Europe for another worldwide alumni
conference, this time in Paris.
o accomplish this ambitious worldwide reorientation, Clark
has had to recruit and develop a new faculty of interdisciplinary
scholars. That had not been the past strength of law school teachers,
and this intellectual upgrade came, fortuitously, just at the
moment the humanities fell upon hard times in American academia.
Initially, that affected law school applicants.
"In the 1970s and '80s, we began to get a lot of refugees
from the arts and sciences," says Beneficial professor of
law Charles Fried, who has been teaching at the law school, on
and off, since 1961. From 1985 to 1989, he served as Ronald Reagan's
solicitor general, then returned to Harvard, where he was subjected
to a 1992 sit-in. (Fifteen students invaded his office to protest
his opposition to then Weld professor of law Derek A. Bell's arbitrary
call for tenuring "a woman of color." He sought administrative
charges against those who could be identified--the "Fried
Four"--but the matter was settled by an apology and a reprimand.)
In 1995, he was appointed an associate justice of the Massachusetts
Supreme Judicial Court, but he left the court last summer to resume
full-time teaching. From that long perspective, he recalls the
excitement of teaching these "refugee" students "who
had gone pretty far in a graduate program, who may have already
been teaching. Lots of economists, lots of political scientists,
lots of historians, some philosophers. Then we began to get faculty
members with some of that background. That made for a more academic
place--and all to the good."
That, in fact, pretty well describes the career path of Robert
Clark. He started out studying to be a priest at Maryknoll
College, then switched to graduate study in philosophy at Columbia.
But analytic philosophy never appealed to him. "I felt to
be really good, you had to know something substantively to philosophize
about," Clark explains. "If I was going to be more than
a hack philosopher, I really ought to get a degree in something
else, where I would understand better how social institutions
work." He thought about another Ph.D. in sociology, but decided
on a law degree, "on the theory that lawyers seemed to be
people who best understood how institutions work. Then maybe I
could devise a philosophy of social science that would go down
in history, instead of just teaching at a community college. That
was the whole theory: to go to law school to be a better philosopher."
Clark picked up his Columbia Ph.D. in 1971, his Harvard J.D.
in 1972. By then, he had spent summers working at several law
firms, found the law was "much more fun and interesting than
I had ever imagined, and decided I would do that instead of the
philosophy thing." He practiced briefly, then taught four
years at Yale Law School before returning to Harvard in 1977,
expert in all matters corporate. That social treatise he had originally
planned on writing turned out to be Corporate Law, published in
1986 and still the definitive text in its field.
The point is that Clark--"an incredibly intelligent man,"
says Fried, "who understands the substance of legal issues"--was
developing his own criteria for legal scholarship, not just in
his chosen field, but across the curriculum, demanding this same
substantive, interdisciplinary rigor in all areas of legal endeavor.
"Bob Clark is an absolute tiger on this," Fried says.
"He really insists on produced, published, public scholarship."
That is what chiefly distinguishes American legal education
from the training provided lawyers at law schools elsewhere in
the world, Clark argues. "It's a process in which there is
a lot of reference to what you learn in other disciplines--particularly
economics, but also political science and history--in order to
assess rules and their impacts and argue about what should be
the right system."
This search for the right system can make a real difference
in the efficacy of legal remedy out in the actual, law-abiding
world. Consider, for example, A Measure of Malpractice, written
in 1988 by Paul C. Weiler, LL.M. '65, Friendly professor of law.
In the healthcare field, Weiler proposes a series of reforms for
malpractice compensation, based on astonishingly detailed research
into the occurrence of iatrogenic--or physician-caused--injuries.
Weiler's Harvard Medical Practice Study Group examined all
medical records for 1984 in 51 hospitals, roughly 20 percent of
the facilities in New York State. Of these 30,121 cases, they
honed down the total iatrogenic injuries (1,278) to those that
actually involved physician negligence and also went to litigation.
There were only eight--a surprising disconnect between doctor
error and lawyer suit. From further findings, Weiler deduced means
of compensation that would take care of all iatrogenic injuries
in New York hospitals for the $1 billion these hospitals are presently
paying for medical malpractice insurance. His findings have since
been tested in the Utah and Colorado hospital systems, with confirming
results.
Weiler has gone on to develop coursework and
texts in entirely different areas of the law. Since 1993 he has
been teaching a seminar in sports and the law, for which he had
to produce the casebook. This June, Harvard University Press will
publish Leveling the Playing Field: How the Law Can Make Sports
Better for Fans, setting forth his conclusions on the law's social
impact in the sports arena.
In 1997 he published Entertainment, Media, and the Law, a much-needed
casebook for his new course on how "the Supremes decide to
what extent the First Amendment governs speech for fun and profit."
"Five years ago Clark came and asked me to do the entertainment
and media course," he explains. "And I found there was
a problem because again there wasn't really a book we could use.
That's why my students pressed me. You've got to get us a book
to do what I'd already done in the sports area." Weiler was
"pushed to turn 'Entertainment, Media'"--originally
a seminar--"into a full course. Last year I had about 275
applicants for 80 places, so there's a real demand for it."
What's significant is that Clark asked Weiler to develop the
course. That is another strategy he has adopted in response to
the demand for legal specialization. He is constantly out to improve
the ever-expanding curriculum according to what he hears, along
the intellectual grapevine, from faculty members, alumni, and
particularly students.
"Every spring I'll get visited by little groups of students
who say, 'You know, it's really awful that Harvard Law School,
which you think of as the best law school in the world, doesn't
have a full-time professor in food and drug law, or intellectual-property
law, with all its subparts like the Internet.' Sometimes one's
instinct is to say, 'Come on, the basic education is the main
thing,' but then you begin to think, well, there's a point there."
Again, Clark reasons from law and economics. "The legal
system has grown relative to the size and complexity of the economy
in terms of the number of subject-matter areas and the kinds of
law practiced. We ought to do a better job of sampling, offer
good courses in different types of law and law practice that give
you a generalizable knowledge."
Which might cause one to wonder, is this all a legal smorgasbord?
Does Clark, in pursuing his goal of establishing a world law school,
have any underlying philosophy for legal education?
"I go along with Jeremy Bentham on that," he says,
straight out. "The greatest good for the greatest number.
"It's clear to me that the rule of law is essential to
civilization," he backs up his premise. "And civilization
is a good thing. The more rule of law we have, the better off
the world is, we all are. All you have to do is look at the developing
countries to see they don't have as much law as they would like.
It's fairly basic. We're talking about courts that are independent
and not corrupt, about enforcing contracts, about basic things
that can make a huge difference in how well society runs."
This eclecticism, his Benthamite embrace of all tenable options,
is the real key to Clark's decade as dean. It also marks the passage
of the law school from a distressful period of ideological confrontation
to the greater calm of "letting a hundred legal flowers bloom."
Clark may have started his fight against the Crits from a narrow,
even partisan, focus, but he has gone on to listen equably to
all concerned voices and foster the law school's growth like a
utilitarian, with an open-ended legal pragmatism. What better
way to educate future lawyers who are constantly lobbying for
one more speciality among a diverse range of the newly minted
legal skills necessary for lawyering in the twenty-first century?
hat may also be the most practical way, many would argue, to
deal with inherent discord. The Crits were only one manifestation.
Harvard law professors are increasingly visible on public issues.
Back in Erwin Griswold's day, there was acrimonious legal debate
over Communist affiliation within the academy, including Griswold's
own forthright advocacy of a Fifth Amendment defense against answering
congressional investigators' question, "Are you now, or have
you ever been...?" But Griswold waited until long after his
deanship to back civil-rights legislation. Today, with the McCarthyite
threat gone, the issues have turned more volatile and, often as
not, are presented to the court by a Harvard law professor as
counsel. Take the two leading liberals, Tyler professor of constitutional
law Lawrence H. Tribe '62, J.D. '66, and Frankfurter professor
of law Alan M. Dershowitz. Tribe is frequently before the Supreme
Court, arguing abortion-rights, right-to-die, privacy, and sex-discrimination
cases. Dershowitz is also in court, but more often on TV, defending
O.J. Simpson or trying to free Jonathan Pollard. Both were deeply
involved in the debate over President Clinton's impeachment, arguing
against its legality, Dershowitz with sharp attacks on the right
wing for "sexual McCarthyism."
How does such issue advocacy sit with the dean? "It does
get segments of the public riled up, and then I have to deal with
that," Clark says. "But it's far, far better than isolation.
If it's done in the right amount--and we have rules to insure
this--it is extremely helpful." Harvard allows faculty members
to do outside consulting so long as it takes up only 20 percent
of any professor's "total professional effort" and does
not conflict with their teaching at Harvard (the crunch point
with Arthur Miller over his outside Internetting).
"He learned rather quickly to manage this ménage
of prima donnas," Fried calculates. "You can see him
swallowing and holding his tongue." Weiler traces this tolerance
to a genuine change of heart on Clark's part. They are old friends,
but Weiler frankly remembers when it was "Bob Clark on one
side, and Duncan Kennedy on the other, and I was kind of the person
caught in between." That might well have led to Armageddon.
"What happened is that while Bob has remained very committed
to serious scholarship, he has really opened up to intellectual
diversity. That is much more important than demographic diversity."
That latter-day issue--should race and/or gender influence
faculty appointment--was once as divisive as the Crits' attack,
but seems symbolically put to rest by the arrival of Lani C. Guinier
'71. Her appointment as professor of law has been read as a concession
to former professor Derek Bell's demand that the school tenure
"a woman of color." Bell went on strike in 1990 over
that issue, and has never returned. After Guinier's appointment
was announced, he spoke to a Washington, D.C., gathering of some
200 former students who had supported his ultimatum to their law
school. Why, he asked, did it take seven years? But Guinier did
not attend, and shows little inclination to serve as a poster
girl.
She has already faced her harsh share of political controversy--labeled
a "Quota Queen," unfairly many would argue, when President
Clinton chose her to head the civil-rights division at the Department
of Justice. Her articles on voting rights, arguing for weighted
balloting to overcome minority disadvantage at the polls, were
roundly attacked by the right wing, and Clinton withdrew her nomination.
She returned to teaching at University of Pennsylvania Law School,
but Harvard, having wooed her for almost a decade, finally convinced
her to join its law faculty in 1998.
"She was actually advocating the kind of voting system
we have right here in Cambridge," recalls Weiler, who headed
the committee that first offered her a visiting lectureship for
1992-93. Professor of law Randall L. Kennedy, another black legal
scholar, who was impressed by her writings, had first put forth
her name. "But we were outbid by the president," says
Weiler. When the controversy broke, Senator Joseph Biden asked
Lawrence Tribe to vet her articles. Tribe did so over a weekend,
then personally called Guinier to compliment her scholarship.
And later, it was Charles Fried who presented her candidacy to
the faculty committee that voted her tenure. "I think very
highly of her work," he says. On super majorities and weighted
voting? Fried nods. "And also, I like her very much. She's
a vibrant, interesting person." Even Alan Dershowitz, though
he opposed her nomination to the Justice Department on grounds
that she did favor a form of racial quota, welcomes her as a colleague.
She now speaks her mind on voting rights in her public-law
seminar, but her other core subject area is professional responsibility,
and there Guinier is primed to offer even more provocative insights,
especially about gender.
"A federal judge just sent me a survey," she explains,
"showing how people are more impressed with the ability of
women lawyers to listen, to understand their concerns, to diagnose
their complaints properly." Yet Guinier has long been concerned
about the underachievement of women generally in law schools--their
tendency to hang back, not answer in class, defer to their male
classmates. "It bothers them that they don't participate
in class first year," she found from one study. "Third
year they still don't participate in class, and it no longer bothers
them!" She has been mulling over such data collaboratively
with other women law professors, and has reached some initial
conclusions.
"Many of my colleagues say that means the women need to
become gentlemen, learn how to function like men. But what I'm
seeing is that women are approaching the law in a way that I see
as valuable because they want to solve problems. They are happy
to advocate on behalf of somebody else. They are not prepared
to advocate on behalf of themselves. Lawyers generally advocate
on behalf of someone else, but too many of them also advocate
on behalf of themselves." In other words, women lawyers are
different, and the law should make the most of it. "There
is this energy and perspective that women are bringing, that we
are not tapping into. Now everybody could learn from that. Not
that men have to become women, but that there is a legitimacy
to the women's perspective."
uch an approach takes on more significance as the enrollment
of women rises at the law school. The class of 2002, which entered
this fall, is nearly 47 percent female, up from a steady 41 percent
female enrollment for recent first-year classes. Female applicants
chose Harvard over other prestigious competitors because they
are no longer wary of the law school's once-poor record on appointing
women to the faculty, epitomized by the internecine fight over
Clare Dalton's failure to gain tenure in the 1980s. All that has
changed, and as Weiler says, "That is really giving the students
what they're paying for. Full exposure to the range of legal and
scholarly intellectual perspectives they know they are going to
encounter, or they're going to find out that they are going to
encounter, over the next 40 or 50 years of their lives."
Gender issues and new pedagogy aside, Robert Clark still holds
firmly to the traditional first-year curriculum. "It's not
just thinking techniques we teach," he says. "It's actually
a set of concepts and principles and standard arguments that have
a long, useful life and general applicability in the law."
But after that grounding, students should make their own choices.
"Our students are very smart. They get a sense of what may
be important to them from working their first and second summers
in law firms." That was his own experience. "They come
back with an altered perception of what courses might be important
to them in the long term. They may be wrong, but second-guessing
them--especially by professors who haven't practiced in 20 years--would
be a terrible mistake."
Certainly the students want this large and opportune array
of courses, as diverse as they are themselves. They do pick and
choose their druthers, even if it means studying the Bible and
the Koran with Dershowitz to learn about the religious underpinning
of the law. That would have been unheard of in days of yore, but
so would a film course on moral issues in the media, offered as
a seminar by Touroff-Glueck professor of law and psychiatry Alan
Stone, or the seminar this spring on animal rights.
As always, students today reflect every new trend in society
(see box at left). But they are also strongly career-oriented,
and cannily adept at harnessing any new trend's legal thrust to
their own ambitions. "They are absolutely more conservative,"
Miller says. "For years and years, in my civil-procedure
class, there would come a point, around late October, early November,
when I would dramatically stop, and shove it into these first-year
students' faces that they were plaintiff-oriented. They assumed
the plaintiff always had a just claim.
"Then, probably six or eight years ago, it became obvious
to me that there was no longer any plaintiff orientation. It had
become a defense orientation. So now I have to stop the same way,
and point out to them that they are defense-oriented." He
sees this in their rising interest in big law firms and their
diminishing inquiries about public-interest practice.
Dershowitz disagrees. "Many have a real social conscience,
but they come out of Harvard with an enormous debt load. Immediately
they're shown the pot at the end of the rainbow, and it leads
in one direction: to the corporate law firm." The students
come to talk with him, often from minority backgrounds, "and
they feel terrible. But I encourage them to follow the pot. They
shouldn't feel guilty, they have a right to establish themselves."
Later, if and when they make partner, they can contribute to society.
Still others come to him, tantalized by other aspirations arising
out of that cornucopia of available courses. "They are interested
in living interesting lives, doing things that are very gratifying.
Twenty to 25 students come to me every year, and want to know
how they can break into Hollywood," says Dershowitz, who
should know. "I tell them to be a good law student. That's
the best way to break into anything. And it's true."
Weld professor of law Charles R. Nesson finds students complaining
they've become "more boring people while they are in law
school." They say they were "more lively, more imaginative"
before they got into this system of education that is "heavily
doctrinal, all about how you manipulate the passwords."
"The biggest problem I have--my mission as a teacher--is
somehow to convey to the students a sense of the nobility of the
law, so they see it as a field for truly creative work,"
Nesson continues. "These kids come with some ideals of truth
and justice, but they're already sorely damaged. They come with
a huge cynicism about the law." Nesson teaches evidence.
"For me to try to teach them that when they get into litigation,
they should play by the rules--discovery, turning over documents,
not tampering with evidence--it's an uphill fight."
He decided to try a fresh approach, through the Internet. "I
don't want to be too negative," he says. "These students
are ready to reconnect with their ideals, but it takes some engagement
with real-world events. Once they have a client, suddenly things
go from the abstract to the real, and they emotionally engage."
With a $10,000 grant, he rented 20 computers, divided his class
into "12 groups of 12, all jury size," and wired them
together to create a network and a website. He first set them
to work on the O.J. Simpson trial, e-mailing their legal advice
directly to counsel. Then he went the final step: "We actually
took on clients in the class." Consider Kevin Ackerman, a
junior at Boston University who was arrested for arson while walking
home one night. "He had an alibi, and the complaining witness
was very unbelievable when you looked at it closely." But
Ackerman couldn't get his case dismissed. One of Nesson's pods
took it on. "They investigated it and worked with his lawyer
and told his story on the Internet. They focused enough attention
on it so that the prosecutor recently dropped the case. Charges
dismissed. Case closed."
The advantage of the website is "the ability to get the
information out, make it publicly available. You can access the
documents and the kids' work, see the whole thing played out."
He pushes his students beyond the classroom Socratic dialogue
to all but practicing law.
Direct engagement with a client erodes any vestigial cynicism
about the process, since that engagement puts a real human premium
on their ethical behavior. Besides: "They are going to be
lawyers in an era of integrated electronic networks, so we'd better
prepare them in a clinical networking environment," Nesson
says.
But he has a deeper rationale for the course. He is critical
of how the law school ignores the art of legal advocacy. "There
is a tension between those who look at law from a rhetorical perspective,
and those who look at it from a scientific perspective,"
he points out. That tension has always existed, right back to
the days when Roman rhetoricians quarreled with the Justinian
Code, but here is how Nesson sees it playing out lately: "Clark
is very much of the science school, emphasizing law and economics,
and that school--I think, to its discredit--treats rhetorical
approaches as lacking substance. But there really has to be a
balance between the two. Law is largely a matter of persuasion.
It's a matter of settling disputes by allowing people to tell
their stories in ways that give them some satisfying feedback
from a relevant audience"--eventually from a jury of their
peers, if a dispute goes to those lengths.
"That rhetorical side of things has to come back,"
Nesson avers. "It's key to helping with the disputes we still
have around here. Left/right differences persist over time and
context. They change coloration, but you can always find the left
and the right. And for left and right to get along, we have to
learn how to talk about our differences across the boundary line.
And that's a rhetorical problem. It's a question of how you engage
each other, and more attention to that question would be hugely
helpful to the law school. And beyond."
o there is still dissent, and surely debate over the law's
majesty and/or delay, but no longer discord. Nesson and his colleagues
at the Berkman Center are out on the Internet--formidably--advocating
the use of open operating systems to set up new rhetorical forums.
"Open-source software," they have declared, "shares
the strength and resiliency of the scientific method and Jeffersonian
democracy." Hence, it is now possible, worldwide, to take
a law-school course from Miller on "Privacy in Cyberspace,"
or to "attend" a lecture by Jonathan L. Zittrain, J.D./M.P.A.
'95, the Berkman Center's executive director, on restraints in
trade alleged against Microsoft, or even join Nesson's own students
in support of a Harvard junior-faculty member's unsuccessful challenge
of the University's decision not to grant him tenure.
Nesson takes great pride in the outreach of the
Berkman Center's experimental teaching, measured in "hits"
by the thousands from around the world, often posing questions
in the Socratic chat rooms attached to each on-line course. One
possible such question, hitting close to home: how does this rhetorical
freedom in cyberspace fit in with Dean Clark's view of the growing
complexity of the law and the need to rationalize the legal system
through more efficient rule-making in the real world?
One take on such a real-world future, from National Law Journal,
envisions megafirms of 10,000 lawyers by 2020 (at top starting
salaries of $270,000). Already there exist some megalike global
professional service firms, accounting conglomerates such as PricewaterhouseCoopers
with 1,663 lawyers in 39 countries. Is this where the next great
debate over the future development of the law might be joined,
at the juncture--both virtual and moot--of the Internet with the
growing complexity of the world economy and global society?
"It's an experiment," the practical Clark says, cautiously,
of the Berkman Center's pioneering into cyberspace. "Let's
see how it plays out. These are professors accumulating knowledge
for the public good, and setting up courses to distribute this
knowledge to the whole world." But that creates "a dilemma"
for Harvard over "the sustainability of these knowledge bases."
Clearly that is why Clark chose to invoke the rules against professors
teaching law outside "virtual Harvard" and, according
to Miller, personally dropped by last summer to admonish him about
taping lectures for the Concord University School of Law's website.
Immense enterprise, over more than a century of scholarship,
has gone into building this world law school. Harvard has recruited
a faculty of the foremost intellectual rank, and accumulated unrivaled
apparatus in support of legal research, such as its collection
of 1.9 million volumes, more than twice as many as any
other law school's library. It is one thing to put a thirteenth-century
manuscript like Henry of Bracton's On the Laws and Customs of
England up on the school's home page. Scholars around the world
are benefiting from such free access to this rare legal treasure.
But it is another matter altogether to move the curriculum--including
how many of those 257 upper-level electives?--onto the Internet.
Open-sourcing these intellectual assets poses a quandary. "You
can't just be giving things away," Clark says. "And
that's not in conflict with our commitment to seek and disseminate
knowledge. We're devoted to achieving excellence, but if you don't
exercise custodial care over your knowledge base, you will destroy
it." Other parties can freely tap into this large reservoir
of legal knowledge that many scholars' intellectual
labor has accumulated, draining away the law school's
academic strength and prevailing liberality.
That issue itself inevitably raises practical questions of
law--intellectual property, proprietorship, rules of incorporation--in
fact, folds right into the social consequences addressed by law
and economics. "The only reason I ever took this job as dean,"
Clark says, with the clearest conviction, "is because I believe
Harvard is important, and so is the law." And he can be counted
upon to defend their joined cause, pragmatically, in the Grand
Manner.
Brock Brower, L '56, left the law school after
his first year to take up a Rhodes Scholarship at Merton College,
Oxford. He became a journalist and novelist, but later served
two years at the Justice Department (1989-1991) as the speechwriter
for Attorney General Richard Thornburgh. He has depended much
on his past training in the case method, and so decided to take
another look at what the school, these days, has to offer.
