As a student at the Harvard Law School (HLS) in the Fifties, I used to wonder what that pre-eminent institution would be like years later. With all my imaginings, I guessed wrong. The school neither remained the same nor did transform into an active center for the analysis and advancement of justice in America. Instead, Harvard Law School is in a crisis of confidence on a directionless highway.
At a recent reunion with my classmates, there was an opportunity to speak with students and faculty and listen to the alumni’s reactions. Lest readers think this is a parochial subject, it is well to observe that HLS for decades virtually defined what was legal education in America. This philosophy in turn shaped the horizons of tens of thousands of lawyers practicing throughout the land or holding important political and corporate posts. A few years ago we thought sufficiently of its influence on the law and its unfulfilled potential to devote a book, called “High Citadel”, dedicated to its redemption.
Today, three traumas are hammering at the School’s traditional mode of operation. First, the big law firm market demand for HLS graduates has sent annual starting salaries soaring — nearing $50,000 right after graduation. Second and third year law students get some basic training in during the summers at $800 to $1000 per week! With the demand for their services massively up during the past twenty five years, there are no more HLS students to go around. They still number just over 500 students per graduating class.
So the big law firms wine and dine them, flying them to their cities for interviews and giving them the expense—account time of their school days. Not surprisingly, the students believe that they have it made as soon as they are admitted to HLS or certainly after they get through their first year creditably. The students register this smugness in their classrooms. Absenteeism is high. Line Professor told me that at any given day in the fall over 1 0% of his students are flying around the country interviewing at law firms. The students who show up are often unprepared, listless and in no mood to be called on by “Paper Chase” Law Professors.
Many Professors no longer call on students whose hands are not in the air volunteering. As if all this is not sufficiently upsetting to the proud teachers, the students have lost their awe of the Professors, seeing them as irrelevant to their career possibilities. (A few years ago, grade inflation reflected these realities.)
The second trauma is the assault on the older faculty by the younger faculty loosely united by what is called the “critical legal studies” challenge. “They’re wearing us down and we’re not getting any younger,” a fiftyish Professor told me. Critical legal studies is a jurisprudential shredder, gulping and chewing out dollops of old guard assumptions about how the legal rules work. The shredder appears, steeped in unfathomable prose, in lengthy law review articles. This written form is an important part of the assault, for the old guard at HLS admires intricate law review articles even though it has trouble producing them (too perfectionist to publish is its defense).
“Critical legal studies” does not propose new legal futures or modes of justice; it breaks down the old thought order, pillar by pillar. Professors Duncan Kennedy and Roberto Unger are among the leaders in this dismantling operation. While the older Professors often are puzzled by or cannot understand Unger’s writings, they admire his “pure mind” and the “sheer magical, mystical quality of his classroom lectures” as one old guard faculty member put it.
Having lost their students’ awe and much of their younger faculty’s respect, the old guard and the School’s deans are being treated to a traumatic drive by students wanting a greater role in curriculum and grade policy. Last spring hundreds of students mounted a Sixties-type march and sit-in to protest what they saw as an arbitrary addition to grade determinations.
One Professor told my classmates that the Law School is in big trouble, noting that it no longer is able to attract as many super achievers. This is another way of exemplifying the disarray at the School. The old guard that still rules the training grounds offers little purpose to students other than making them “think like a lawyer.” With the country in urgent need of lawyers working on preventing conflict, on serving the deprived and unorganized, on challenging centers of power abuse, on building the democratic legal structures of the future, on developing procedures that advance the public interest in health, opportunity and justice, Harvard Law School wallows in a welter of moods going nowhere.
The dismantling of the old order at the Law School is now creating a vacuum of sorts. What fills this vacuum in the coming years will affect this country’s justice well beyond the Cambridge confines of this cold bed of legal talent.