Does Harvard Teach Law Anymore?
This column by ACRU Policy Board Member J. Christian Adams was published June 17, 2015 by PJ Media.
Harvard is to law what Winchester is to bolt actions. Powerful, dependable, well engineered and the mark of a serious craft, at least that’s what I was told.
These days, Harvard graduates probably don’t know much about bolt actions, unless they are a member of the Harvard Law School shooting club. A stroll through the Harvard Law School course catalog also makes you wonder how much they know about the real practice of law.
The course catalog from Harvard Law School hints that the answer might be —- not as much as we thought.
The Harvard Law School course catalog frequently reads more like an ideological training academy than it does a program for teaching lawyers how to practice law.
I may be unqualified to opine about Harvard Law considering that I went to a law school in the SEC. That’s the Southeastern Conference, not the Securities and Exchange Commission. As such, I spent most of my law school years taking courses that trained future lawyers to practice real law in real American courtrooms: remedies, civil procedure, criminal procedure, legal writing, trusts, evidence, and even more civil procedure.
Six of nine United States Supreme Court justices attended Harvard, so they must be doing something right. But the course catalog at Harvard reveals a great divide emerging in American legal education.
Is law school about learning to practice law, or fundamental transformation?
Elite universities are graduating lawyers who seem most qualified to engineer fundamental social change, not represent clients in court. Law schools in most of America still seem to focus on graduating lawyers who know how to practice law. The course descriptions, below, reveal a different approach to legal education at Harvard. The political ramifications for the nation should be obvious, especially when so many positions of power are filled with graduates of elite law schools. That’s not just me saying it, Harvard’s own website boasts of this fundamental transformation:
Harvard Law School recently undertook a sweeping overhaul of its first-year curriculum. The new curriculum reflects legal practice in the 21st century, adding courses in legislation and regulation and international and comparative law to the traditional curriculum of civil procedure, contracts, criminal law, property, and torts…. In the second and third years of law school, Harvard students shape their own courses of study, selecting among a wide offering of electives…. Five optional Programs of Study —- Law and Government; Law and Social Change; Law and Business; International and Comparative Law; and Law, Science and Technology developed by the Law School faculty provide pathways through the upper-level curriculum.
Sorry, but “legislation” doesn’t reflect the “legal practice in the 21st Century.” I took legislation in law school, and a small fraction of lawyers ever dabble in the area. Lawyers inside the D.C. Beltway seeking to expand the power of the federal government are one exception. I’ve sat in courtrooms listening to thousands of docket calls, and never once heard “comparative law” on the menu. Worse, in most of America, no lawyer has any use for nonsense like “Law and Social Change,” unless politics are on the agenda instead of law.
Classroom blackboard at Harvard Law
Joel Pollak, a graduate of Harvard Law School and editor at Breitbart News, told me that the shift isn’t always passive, where Harvard law students can hear both sides and peacefully choose. “Many of the professors who teach the ‘core’ classes are conscientious about fostering debate, open to different perspectives, and able to separate their own political views from their pedagogy. Others, however, seem unable to resist the urge to foist their personal ideological convictions onto their classes, resisting questions from students who disagree.”
And therein lies the danger —- law professors with a captive audience of first year students turn law into political ideology, a training academy for the institutional left at an elite law school. And after the first year of core classes ends, just imagine what happens in these actual classes (detailed below) that are now taught at Harvard Law School:
“We will bring into the classroom as visiting lecturers leaders from the worlds of policy, practice, and academia —- people who have themselves operated as successful change agents and who represent different disciplines, career paths, and strategies for change.”
“This seminar will develop a theory of interpretation for the Constituiton [SIC!!!!!] of the United States tied to a particular conception of interpretive fidelity. The aim is Dworkinian —- to develop the theory that best explains and justifies our constitutional tradition.” A screenshot from the Harvard Law catalog, errata included.
“This course will survey the most important sources of feminist thinking in and around law and law reform, with attention to the ways in which differing feminist ideas have and have not become operationalized as law that actually governs. We will pay attention to the rise and fall of feminist ideas; to competitor theoretical frames and ongoing contests among different feminist worldviews for influence on law; to nonwestern sources of feminist legal thought; and to modes of transmitting feminist ideas from one national, regional, and/or international system to another. A constant theme will be the collaborations among and conflicts between feminist social movements and social movements for emancipation of groups other than women: racial minorities, sexual minorities, immigrants, the poor.”
Ironically taught by Professor David Cope: “Love, jealousy, guilt, anger, fear, greed, compassion, hope, and joy play important roles in the lives of lawyers and those with whom they interact.”
Professor Lani Guinier teaches Law and the Political Process. “Prerequisites: None. Constitutional Law is strongly recommended but is not a prerequisite for this course.” No surprise in a Guinier-taught course.
“The question of whether courts can not only call for modifying legislation and policies but also enforce affirmative entitlements to care has been answered in many contexts. Yet questions still persist as to when and how litigation can lead to greater equity in health and enhance the functioning and oversight of health systems, rather than distorting priorities and budgets.”
A course, perhaps, about laws surrounding animal-based commodities? Maybe a survey of useful contractual issues involving agricultural commerce? Stop it, this is Harvard, not the University of Wyoming!:
“The course will also engage with fundamental questions about animals and the law, such as: Are some animals more deserving of protection than others, and if so, on what basis? What role does culture and belief play in animal law —- why are dogs considered pets in the U.S. and food in some parts of the world, for example? Does the status of animals as property pose an insurmountable barrier to increasing protections for animals? What are the advantages and disadvantages of the concepts of “animal rights” and “animal welfare”?
“This course interrogates the ways in which democracy, as practiced in the United States, continues to form. In doing so, it explores provocative themes and questions of citizenship, self-governance, accountability and inclusion in American democracy while grappling with issues of [wait for it… here it comes!] race, class and gender. It moves beyond limited representations of democratization as the quest for universal suffrage and fair elections to a more fluid, real-time construct of competing interests, negotiated outcomes, stressed and malleable institutions, and tumultuous changes. It further clarifies the democratic process as one subject to ongoing interpretation, challenge and renewal.”
This course “will use the law of citizenship to explore the historical and philosophical linkages in the U.S. between full inclusion and judgments about property ownership, [wait for it… here it comes!] race, gender, and immigration. In the process, we will also assess how accounts of political participation, economic independence, and American power have shifted over time.”
“It situates this loaded imaging process within an appropriate social and historical context while considering how the quest to maintain a normalized national identity competes with evolving notions of [wait for it… here it comes!] race, culture and gender. Such imaging —- commonly a dual process involving contestation between a group’s projected image and one being projected upon them —- will be discussed through literature, journalism and visual media.”
“This seminar considers issues in 20th-century movement for social reform from the perspective of legal history and the legal profession. It emphasizes matters of [wait for it… here it comes!] race, class and gender inequality and readings cover the civil rights movement, women’s liberation, the labor movement and anti-poverty struggles.”
Alas, perhaps we have a course about the slaughter of Christians in the Middle East? Maybe a class on the erosion of religious liberty in the United States? Just joking, this is Harvard:
“Human rights norms and discourse are employed widely by advocates around the world in their struggles for social justice. This course explores what it means to be a human rights advocate, whether one is engaged in debates over U.S. policy at home and abroad, the role of corporations in alleged violations, or the role of rights in times of transitions from conflict…. To that end, the seminar engages seriously with the major critiques and dilemmas faced by human rights advocates, in particular by lawyer-advocates from the Global North. The seminar also grapples with the limits of established approaches of the movement such as litigation, naming and shaming, and explores community lawyering and human rights. How do we engage without perpetuating power differentials along geopolitical, [wait for it… here it comes!] class, race, gender, and other lines?”
For Americans not familiar with the proper noun the “Global North,” you probably call it Western Civilization. Naturally, the Global North merits heightened scrutiny at Harvard Law.
But not everyone is allowed to take this gem of a class. Applicants must know the secret passwords: “Prerequisite: Admission is by permission of the instructor, based on your statement of interest submitted to Chanda Smart at firstname.lastname@example.org.”
It’s hard to imagine a course description that better captures what is happening in America’s elite law schools: “This seminar will focus on the relationship of [wait for it… it’s coming again!] race, gender, and class to different social change strategies. We shall explore the role of lawyers in influencing contemporary public policy and the role of legal discourse in framing issues such as access to, the diversity of, and participation within higher education; the use of the criminal justice system as a major instrument of urban public policy; gay marriage; issues of assimilation v structural reform; the role of gender within the larger society as well as within communities of color.”
“The law is awash in stories. Stories from within and beyond the walls of the courtroom shape our experience of justice; they challenge or affirm our social norms; they help us make sense of the world and its complexities. Yet the way we construct and comprehend these narratives is in flux, constantly evolving in response to a variety of factors, one of which will serve as a focus of this course.”
The course is taught by Rebecca Richman Cohen, who served as a first assistant editor of Michael Moore’s “Fahrenheit 9-11”.
This course will teach students about how to brief legal issues related to non-citizen removability in the context of the categorical and modified categorical divisibility analysis in the Supreme Court case of Descamps. Not really. Instead it teaches the topics students really crave:
“This course touches upon the major policy debates currently surrounding immigration reform and policy. This course will survey social changes and developments in immigration law over the last few decades, including the emergence and role of social change movements. Topics will include the intersection of immigration law and criminal law, national security, labor rights, border security, and state and local enforcement as well as refugee and asylum policy and other topics. The course will bring leading immigration and refugee advocates, scholars and policy-makers into the classroom, engaging students in important debates about what immigration policy should be.”
“King Lear, Othello, The Merchant of Venice, Measure for Measure, As You Like It and Hamlet (Texts, Commentary and Films). The students will be expected to write and present four response papers in the course of the seminar.”
“Attending Modernist works and actions in these domains was a more nebulous but identifiable culture of Modernist sensibility that included fashion, architecture, dance, and politics. Among the themes central to Modernism in these different areas are challenges to the confidence in progress thought to typify the Enlightenment, self-reference, self-consciousness and even skepticism about the capacity of language and art, and the faculty of reason accurately to represent an external world, and an emphasis on creativity in everyday life as a key to fulfillment or even spiritual liberation.”
“It will highlight efforts and strategies to advance change in each branch of government (state and federal) as well as in public opinion.”
“How do, or should, human rights of migrants constrain national policies for migration control and enforcement? Readings will include primary materials from international bodies, which have taken different approaches to these issues, and analyses by scholars and advocates.”
“Justice Lab seeks to develop a new way of approaching societal injustices, while providing students with experience operating in a think tank environment. Students will work in teams drafting policy papers and taking part in the running of The Justice Lab…. Other papers will concern ‘problem causers,’ the often unseen or unmanageably large forces that contribute to many specific problems.”
[The description doesn’t reveal what happens to the Problem Causers after they are identified as enemies of the people.]
“Alice Munro is the author of short stories spanning half a century.”
“Historically and today, groups such as racial and ethnic minorities, Native Americans, immigrants, people with disabilities, and single parent households have borne the brunt of US poverty. “Poverty law,” which has its roots in the old English ‘Poor Laws,’ can be viewed as both a cause of these groups’ economic marginalization and a tool that activists use to promote their social rights.”
“This course uses a multidisciplinary lens to explore the linkages between global poverty, human rights, and development from an historical, theoretical, institutional, and policy-making perspective. Its departure point is the emergence of a recent ‘human rights and development’ trend, both in academia and policy, as a result of the combined failure of development economics and the human rights movement to effectively address the challenge of global poverty and inequality.”
“The course aims to join the doctrinal black letter law and the conceptualization of these issues as both matters of health and rights, and place our discussion in its multifaceted political context.” [We would expect no less!]
“After providing an introduction to Islamic law, the course will address difficult questions at the intersection of human rights law and some interpretations of Islamic law.”
“The course will consider the role of of technological change in shaping social and economic patterns, focusing in particular on the distribution of wealth in society.”
“This class analyzes public narratives, and deconstructs them to understand how they form and then how they are reshaped —- based on available evidence or contravening it —- to carry forward specific public goals. . . . Who shapes them, how and why, will be examined in regard to seminal issues of principle and practice —- from the U.S. engagement in torture to campaign finance reform to race-based preferences and protections.”
“The effects of incarceration fall disproportionately on communities of color and perpetuate the cycle of poverty.”
“This course traces the trajectory of select sentiment, ideology and media relevant to the recent concept of a ‘post-racial’ American society. While the successful campaign of President Barack Obama certainly acted as a galvanizing force for post racial conceptualizations and discourse, this course will consider this political watershed within a larger context of the historical and current factors facilitating the development of such a debatable construct.”
“How ought one to go about mapping the political implications of expertise, and how interpret the stakes in choosing an expert vernacular?”
“This reading group will examine misdemeanor offenses, crimes that are seldom discussed in the media or first year criminal law classes, but have a profound impact on society and the criminal justice system as a whole.”
“This course will examine how visual representations affect the theory and practice of human rights advocacy.”
“Then the course looks at law from the standpoint of a number of larger theories, considering law in relation to social theory, literary understanding, moral psychology, and the critique of liberalism. The last two sessions ask how law might go forward on premises of critical jurisprudence.”
“Does equal protection itself have a gendered meaning and reality?”
And what description of Harvard Law course offerings would be complete without….
“This course will consider one of the newest intellectual currents within American Legal Theory —- Critical Race Theory. Emerging during the 1980s, critical race scholars made many controversial claims about law and legal education —- among them that race and racial inequality suffused American law and society, that structural racial subordination remained endemic, and that both liberal and critical legal theories marginalized the voices of racial minorities.”
So who stands athwart this new model of legal education? Who on the law school campus brings balance?
Not many. A few law school professors with roots in American classical traditions perhaps, and a law school student organization called the Federalist Society. Pockets of constitutionalism still exist at American laws schools —- particularly in flyover country. But at the law schools we’ve been told are the best, that pocket is shrinking fast.