Ralph Nader: on Harvard Law School and Systems of Justice in America


PETE DAVIS: Hi, everyone,
I’m Pete Davis– 1L. For students like us, the
pre-professional rat race has a certain
gravitational pull, diverting our focus from the
structural to the trivial, blurring our sense
of right and wrong, caging our moral imagination,
and diminishing our belief in our own civic power. Fortunately, there is hope. If we build up a sense
of systemic justice and a knowledge of
today’s injustices, then we can inoculate
ourselves from this pull, liberating our civic powers,
to take an alternative path of serving the public interest. We are blessed that certain
law students in history have taken this
alternative path. If this Harvard
Law student with us here today had not taken
this more visionary path, we would never have
had the Freedom of Information Act or the
Clean Air and Water Acts. If this Harvard
Law student with us here today had not taken this
more transformative path, we would have
smoking on airplanes, and the word “whistleblower”
would not have a popular use. If this Harvard Law student had
not take the more just path, we wouldn’t have the
Occupational Health and Safety Administration,
nor the seat belts and airbags that have saved
millions of American lives. In an effort to begin our own–
here in the audience, everyone here today– path toward similar
transformative legal vocations, we present the founder of
the modern consumer movement, the original Nader Raider, the
one-time host of Saturday Night Live, the only man to
convince Sesame Street to have a song sung about
consumer advocacy, America’s chief public
citizen, and a hero of mine, Mr. Ralph Nader. RALPH NADER: Thank
you very much, Pete and Michael and everybody
who directly made this happen and the dean of
students who facilitated it. And thank you all for coming. I just want to recognize one
person here in the audience– Jason Atkins who graduated here
in the same class as Barack Obama. And he’s the chair of
Public Citizen, which is a good litigation
group and Congress watch and has made a lot of changes. I suppose I should
start by saying it’s a lot easier than we think
to turn this country around in many important re-directions. Because we grow up corporate,
we grow up looking at the world through thousands of
ads, and we grow up with that kind of vision. And early on, we
think it’s really pretty impossible to take on the
giants, so why not join them. And Harvard Law School
obliges with that. 85% of the graduates or so
go into commercial practice of various kinds. The rest either
go into government or become government
employees or they go to legal services,
which unfortunately has not been expanding very much. Legal Services for
the Poor, by the way, was conceived by
two law students at Yale Law School– husband and
wife team, Edgar and Jean Cahn. They wrote it into
The Yale Law Journal. This is in the ’60s. They then went to
Washington and developed a very effective lobbying
effort, including changing the mind of the
American Bar Association, and got the bill through. And year after year, 4,000
legal services lawyers were able to at least minister
to a good portion of the people in need of legal services. Now, we are part
of a profession, by the way, that
is rather unique. Most people in this
country can’t afford us. 80% or so of the lawyers
represent 20% of the people. And the corporations,
of course– that’s probably a conservative
mis-deployment estimate of where a million lawyers
are licensed to practice law around the country. I remember– it might have been
right here– when I was a 1L, we listened to Dean
Erwin Griswold orient us. And the first
thing he said to us was, you are now members
of the legal profession. We sort of looked at each other. We hadn’t even cracked a
book, and we were members of the legal profession. He didn’t elaborate
what that meant, but then he went on
to his famous phrase that he gave to every 1L class. He said, at the
Harvard Law School, there are no glee clubs. And we all knew what that meant. In other words, total
immersion in the work. A few weeks later, we
were in Austin Hall, and the head of the University
of Chicago, Robert Hutchins, came to speak to us. He was, I think,
dean of Yale Law School when he was 29 before he
went to University of Chicago. A very irreverent political
legal philosopher and agitator. He got rid of the football team
at the University of Chicago right away. And the thing I remember
about that speech was he said, what is the purpose
of the Harvard Law School? And we didn’t even know
what he was talking about. We were all worried about
the morass of property tort contract procedure. And we never discussed that
question throughout our three years at the law school. And that’s what I
want to touch on now, and I want this
to at least spark some extensive deliberations
later in the coming days. And the Record is
putting out a book of some of the major articles
in the Record in the last 16-18 months that I think
will provide material that you don’t get exposed to
in your law school classes. It’s very hard to get out of the
cocoon of law school classes. When I was at the
law school, you’d be in Harkness– the
dorms– and you’d go eat at Harkness Commons. Then you’d go to Langdell Hall. And going to Harvard Square
was like a trip abroad. It was extremely parochial. They call it silos now. But the law school
knew what it was doing. It was a very powerful
acculturation for us. It wanted us to become
sharp by becoming narrow. They didn’t quite
put it that way. That’s the way it turned out. And they wanted us to have
our own pantheon of heroes, which were mostly judges. They weren’t advocacy lawyers
for the poor and the deprived, et cetera. So as a result, we went through
three years almost completely tone deaf by your
standards today. Almost completely tone deaf. I just want to
illustrate some examples. You wouldn’t even believe
it, but it’s true. First of all, I kept
asking professors after class questions that
I suppose irritated them. We’d go to these classes–
it would be Socratic method, and that was a game only
one can play, as you know. So I would put some
questions, and a lot of things appeared bizarre to me. I had taken an anthropology
course at Princeton, so I was able to step
back a bit and look at this tribe and its rituals. And the first question
I asked is, why aren’t there many women here? Why are there so few? And Harvard allowed
women here in 1950. That’s when the first
women were allowed here. And in our class, there were 15. And they were unfortunately made
to feel quite uncomfortable, as you might imagine. And the answer coming
back– now, mind you, these are professors who
are the best and brightest. If you had any doubt about it,
all you had to do was ask them. And watch the way
very smart people can engage in self deception
and with bad consequences. The rationale for
not having many women is that a seat at Harvard
Law School is valuable. It’s meant to be filled by
people who practice law. Women who graduate are likely to
get married and have children, and they’re not going
to practice law. Why waste seats? That was the
conventional explanation. When the question was, why
are there so few blacks– they were called Negroes then. There were three, I think,
in our class– maybe. The conventional response by
the best and the brightest– we admit all qualified Negroes. We don’t discriminate
against Negroes. And all qualified Negroes
meant getting a high LSAT score, which was a clear
class-based biased system if you come from very
poor areas and have been deprived in a variety
of ways in our country. So what we need to
do– and I’ve got to develop some
predicates here, and this is true of our year
as well as yours– you’re not very factually
prepared to enter law school. That’s why you’re
very vulnerable to the ideological
underpinnings of law school education, its content,
and where it stops, and where it starts. You’re not very
factually prepared because, like everybody
else, we grow up corporate. We look at the world from
the ads and the kiddie shows. From A to Z, we are surrounded
by a corporate environment, and we look at the world through
advertisements and products and jingles and so forth. And we don’t get much counter
evaluation of corporate power in high school,
obviously, or in college. When I was here
at the law school, there were no courses
on corporate crime. Believe me, there was
corporate crime in those days. And to the extent that
they even mentioned it. It was called
white collar crime. A teller cheating a
bank, but not the banks cheating millions of people. So the curriculum was a
reflection of the job market. The job market, in terms
of prestige and money at that time– and the
top salary was $7,500, but the tuition was
only $1,000 a year. The curriculum reflected
the job market. Therefore, you had a
lot of commercial laws of different variations, and
you didn’t have poverty law. You didn’t have
women’s rights law. You didn’t have
minority civil rights. We had a course on
estate planning, but the estate was
a very rich estate. And we had no courses on
environmental planning. We could learn about
collapsible corporations– a rather arcane aspect
of corporate law– but nothing about
collapsing tenements. And so the oscillation
was quite clear. We had a course called
creditors’ rights, not debtors’ remedies. We had a course called
landlord-tenant. We kept waiting to
get to the tenant. Because Harvard Law
School graduates were designed to represent
landlords, not tenants. Creditors, not debtors. And this was never really
very widely discussed. But one of the ways
they acculturated us was through jokes. Not jokes against lawyers,
just in house law school jokes. And I remember hearing
one professor saying at Harvard Law School,
in the morning, we distort the law of contracts. And in the afternoon, we
contract the law of torts. And we’re all supposed
to chuckle accordingly. Now, little did we know
that 50 years later, that’s exactly what’s been happening. What we were told
were the two pillars of our legal system–
contracts and torts– were being shriveled. People are being denied
contractual freedom by fine-print contracts–
what Senator Elizabeth Warren has called mice print
full of tricks and traps. And that’s 99% of
all the contracts we’ll ever sign or click on. And the law of wrongful injury
has been severely compromised by what is grotesquely called
the corporate insurance tort reform movement– tort
reform meaning taking away people’s rights,
caps on damages, all kinds of obstructions. To make the fraction of people–
the fraction, less than 10% of the people wrongfully
injured ever get a lawyer or go to a lawyer
or file a claim. So what were we
to think of that? We never knew about it. It was Hadley verses Baxendale,
and it was all these cases. And they were cocoons of
thought where we parsed them and what was the
legal reasoning. And maybe someone would say
something like, it wasn’t fair. That was public policy. That was an intrusion
into the pedagogy. You can’t believe what
the atmosphere was. The Socratic method is
very good in some ways, but when it’s taken
to an extreme, it’s a form of
intellectual arrogance that was turned into
a pedagogical tool. And it was intimidating when
it was taken to extreme. When it was done by Warren
Seavey of torts or Williston with contracts, it
was a thing of beauty. But at times, it was
very intimidating. And if you read
that book One L, you could understand what was meant. Now, is the law really a lie? Is the law a lie when you study
it as it is on the statue books but you don’t study it as it
plays out in the corridors and arenas of raw power? And the law’s mission
is, obviously, to restrain, direct,
channel, or eliminate raw, cruel, vicious power. And if the law has
any meaning, it has to connect with
justice and fairness. I know the complexity
of the law stretches out the sequence of that flow,
and sometimes you never even get to talk about it. But without the law meaning
justice and fairness, what does it mean? It means that it becomes
an instrument of oppression itself, as a lot of
poor people have seen in the criminal justice system. It means that as
an instrument it becomes just the opposite
of what it should be. It becomes a form
of concentrating more and more corporate power
in fewer and fewer hands so that it begins to emerge
as a maturing corporate state. That is exactly what
Franklin Roosevelt said to the US Congress in
1938 when he recommended the establishment of
a commission to study concentrated corporate power. He says– a rough
paraphrase– quote, whenever government
is controlled by private economic power,
that is fascism, end quote. So the question we have to
ask– and it’s not a new one, but it has to be
asked incessantly– is what are you being trained
for and are you being educated? You’re going to be trained here. The law school is
very good at that. About being educated,
that’s another question. A lot of students do not
take certain courses here because the subject is
not asked on the bar exam. Rest assured, do not
worry about the bar exam. It’s eminently cram-able
in more than one sense. Do not pick your courses
on the basis of that. They do a very good cram
course job after you graduate, and you’ll have very
little trouble with it. So don’t avoid
taking jurisprudence or legal philosophy or,
above all, legal history. There isn’t a single
professional school where the student
should not take the history of the profession,
whether it’s accounting, medicine, economics, whatever. Once you do that, you
have a higher horizon. You begin asking
yourself, what do I want to do with my
professional life? You’ve got 2,500,
3,000 weeks left– maybe 17,000 to 18,000 days. Did last week go quickly? You haven’t seen anything yet. Ask your parents and
grandparents how fast it goes. And what are you
going to look back on? I remember interviewing a
lawyer– a corporate lawyer– for our book No Contest,
which is in your library, on corporate lawyers. And I said, what
have you been doing? Well, for almost 15 years,
he was representing a company in New Jersey called
Geritol, which was a drink. And it advertised itself
as being good for, quote, “tired blood.” And the Federal Trade
Commission went after them for deceptive advertising. And he spent the
better of a dozen years sending his kids through
college with that retainer. Do you want to
look back on that? Do you want to look
back like some lawyers now who are retired and they
represented the carcinogen industry of our age– tobacco? Or they represented the Broad
Form Deed in Appalachia that took poor Appalachian
farmers for $0.50 an acre, all the minerals underneath,
with freedom to pollute the air and the water at will because
they were so desperately poor in the ’20s and ’30s. Would you be proud
of representing that? Would you be proud
of representing the corporate crooks
in Wall Street? What is the purpose of
the Harvard Law School? Well, you know who knows
what the purpose is? The corporate giants. They know exactly
what the purpose of the Harvard Law School is. It’s to provide endless
relays of lawyers who service their
interests, who justify not taking their
conscience to work by saying they are required
to zealously represent their clients. It’s as if they’re
representing indigents where if they didn’t
represent them, they wouldn’t have
representation. But I think you could agree
that Goldman Sachs will always find lawyers to represent them. Harvard Law is
not an institution that provokes any kind
of consternation or fear among the power structure. Just the opposite. It’s an institution–
and I’ll get around to the exceptions–
on the whole. It’s an institution that
rationalizes corporate power brilliantly, services
corporate power brilliantly with its graduates and some
of its departments here. It’s an institution that invites
corporate criminals and war criminals and gives them
ovations at the law school, whether they were involved
in the sociocide of Iraq or the military
industrial complex fraud that Eisenhower warned about as
being a threat to our liberty in his farewell address. Or whether they sank
Wall Street with criminal and
criminogenic behavior that almost destroyed
our economy. Unemploying 8 million
workers, shredding trillions of dollars of pensions–
other people’s money, Brandeis called them. And trillions of
dollars of mutual funds. And then had the gall
after they jumped ship with their golden severance
pays of millions of dollars in sinking their own companies. Citigroup, Merrill Lynch,
AIG– they had the gall to go to Washington for
a taxpayer bailout that was anything but lawful. In fact, the former
chief of Goldman Sachs, Mr. Paulson, who
became Secretary of the Treasury at the time
when George W Bush wanted Wall Street to bail out itself
was quoted in the Washington Post as saying about
all the things he did, quote, I never had the
authorities to do what I did, but somebody had to
do it, end quote. And it didn’t even ruffle
the legal profession. Do you know what he was saying? He was maneuvering
trillions of dollars, often with secret deals
on weekends, bailing out Citigroup, that he
was violating the law or he didn’t have the
authority to do what he did, and he did it anyway. And it didn’t ruffle
anybody in Washington and the legal profession,
even though the admission was on page one of
The Washington Post. I want to set a few
quick predicates. Before I do, I want to
ask you to put yourself in the place of law students
in the ’50s and ask yourself how would you have reacted,
given what you know now? Because most of us didn’t react. We just took it. We assumed it. At law school, there
was only one clinic. It was legal aid. How many do you have now? Plenty. There were no
courses, as I said, on corporate crime, poverty law,
consumer or environmental law, or a distinct civil rights
course on women and minorities. And this was after Brown versus
Board, which came out in 1954. There was a distinct reluctance
for these law students to question their professors. I assume that’s not
the case anymore. I’ll give you an example. I think it might have been
right here in Langdell South– is that where we are? It was a constitutional
law course, and the professor was
the ultimate you, you. And he asked the
question, why did the jury come in in
this criminal case in a southern state
the way it did? And so 11 hands went up. And he said, ridiculous. Did you sleep last night? Try again. Just like that. And there was a guy in
the back, and he had like three strikes against him. First of all, he was out
of his seat assignment. Second of all, he had
dungarees– all dressed up. And third, he had his foot on
the back of one of the chairs. But he’s the only guy who
had a hand up at the end. And the professor says, you! And he said, well, professor,
maybe the jury came in this way because it was all white. You could have heard a pin drop. People turned around and
looked at this pariah. Who’s this pariah descending
with this ridiculous public policy intervention? Now watch. It was only a few years
later that the Supreme Court of the United
States declared unconstitutional
discriminatory jury selection. Another example of
how in those days you could never accuse Harvard
Law School of foresight simply because you
couldn’t footnote it. That was the atmosphere. Now it changed, right? So fast forward. You’ve got all kinds
of clinical courses. You even have a semester
course on corporate crime. You have a much broader
curriculum, unbelievable number of seminars, couple
dozen clinics, each one very tempting, each one inviting
your hands-on experience with the real clients
under supervision of your clinic directors. And how did all that happen? And what did it take to happen? It started with people
getting beat up in the south. That’s how it happened. It started with sheriffs
and bloodhounds and prisons and all the things
you know about in the civil rights movement. It started with people
being drafted and sent to the war in Vietnam. It started with the early
latest stage women’s rights, which were demonstrations
and sit-ins. It started with four black
engineering students who sat in in a restaurant
where they weren’t supposed to in North Carolina and
took it all the way up for unanimous decision– nine
nothing– on their behalf. And all that morphed into some
of the uprisings in the cities. Newark blew up. Detroit blew up. And finally, all
this illuminated with returning students
from summers in the south and elsewhere– it
illuminated the conscience of the law school. It wasn’t enough the
intellect should do that, it was the fires in the country. And then the students
came back, and they started making demands. And the faculty, some
of them joined them. And the administration
began to concede. It all started with
the people out there that you’re supposed to
serve but unlikely will, and it all started with
the students– a handful. And if you actually added
it up in terms of hours, in terms of people, you
can come to the conclusion that it was a lot easier than
we thought to make these changes at the law school. Because the real brunt of
the burden in making them were those people out there
who were being disrespected, excluded, unlawfully imprisoned,
under-insured, defrauded, and so on. That’s a good lesson. The further predicate
is you may not be discussing in three
years the difference between an attorney
and a lawyer. Have you ever had that
discussion in 2L, 3L? An attorney, that’s
something both of you– it’s a dual role for you. That is, once you
get licensed, you have a role as an attorney
to attorn for your clients and your retainers, et cetera. But that’s not your only duty. Most of the courses
at law schools train you to be an
attorney, more or less. They don’t educate
you to be a lawyer. Being a lawyer means
reflecting the overall concerns of injustice in the country. That’s your duty. Why? Because as an attorney, number
one, you have a monopoly. And number two,
you are immediately designated once you’re licensed
as an officer of the court. And those entail
obligations that have been ensconced into various
professional canons of ethics. I’ll read you a
very short segment from the American Bar
Association’s Model Rules of Professional Conduct. Listen very carefully
here because it’s ignored overwhelmingly
by a million lawyers. Thank goodness for
the handful who don’t. Quote, “A lawyer is a
representative of clients, an officer of the legal
system, and a public citizen, having special responsibilities
for the quality of justice. As a public citizen,
a lawyer should seek improvement of the law,
the administration of justice. A lawyer should be
mindful of deficiencies in the administration
of justice.” End quote. How much content is
there here for that? There’s quite a bit in
the clinical courses, but then they fall off
a cliff because they don’t provide you with the jobs,
to use the conventional word. They don’t provide you with
enough public interest jobs. Any profession worth its
salt should tithe itself so that at least 10%
of the profession can deal with the
professionals’ mission, not the making money mission. The mission of doctors to
prevent trauma and disease. And if they can’t,
then they minister them and make a living. The number of public
interest lawyers in this country who work full
time outside of legal services and not in the
government– people like ACLU lawyers, Natural
Resources Defense Fund lawyers, NAACP lawyers,
Sierra Club lawyers. Take them all together,
they are smaller in number than the number of lawyers
who work for Cravath, Swain or who work for Baker and Botts
or who work for DLA Piper. Just think of that. And think of what
they’ve accomplished. Think of what these few lawyers
have accomplished in every area that concerns you. Think of what a handful
of citizen groups– nonprofit advocacy
groups like, again, Sierra Club or ACLU or
Hispanic civil rights groups or NAACP or Public Citizen
or Common Cause or People for the American Way. Put them all together,
add up their budget, it’s less than Steve
Schwarzman, the head of Blackstone Investments,
made two years ago. He made $640 million. One person. Not exactly doing
the kind of work that one would elevate him
to the horizon of justice. How many of you heard Senator
Elizabeth Warren speak here? Are you here? You make sure you
have her come back. She’ll say things she didn’t
say when she was here. There are all kinds of
taboos in all professions. We self-censor ourselves,
and it’s a matter of degree. There’s certain things we
don’t like to talk about, certain topics that are taboo. And I’m not talking about
politically incorrect here. I’m talking about
things that upset the world view of a particular
profession or a law school. And I’m going to run
through a few of these, not that they’re
entirely foreign to you. But just look. As we didn’t adequately
have a sensitivity in the ’50s to the
issues I talked about, what are we inadequately
attending to today? What’s the version today? And to what extent
is there a huge gap between your law school
courses and the reality out there on the ground? Like you study
international law– what’s the reality on the ground? Systemic, massive violation
of international law. Do you study that, or do
you study international law as it should be and as some
cases have decided it is to be? First, we start
with the destruction of freedom of contract. Fine print contracts are
destroying your right of freedom of contract. That’s hardly news. When you click
on, you don’t even read the contract before
you buy the service or you sign on the dotted line. What is news is that you’re
not in an uproar about it– that you’ve accepted
the cultural denial of a legal ideal, which
is freedom of contract. You talk to conservatives,
that’s a big thing– freedom of contract. And your courses
are overwhelmingly training you to deal
with negotiated contracts between corporations,
corporations and governments, labor unions and corporations. That’s where the money is. That’s where the jobs are. And so, in a rough
survey of law schools, the course on contracts
in most law schools devotes one to two hours at the
most to fine print contracts. The fine print
contracts are far worse than they were in the ’50s. So the contract professors
are presiding over a disappearing subject
matter for 99% of the people. The contracts now are
cannibalizing tort law. When you sign these
contracts and you agree to compulsory
arbitration or you agree to the total
nullification– have you heard of this one? Unilateral modification. The vendor induces your
consent in this torrent of fine print– another legal
fiction– to say they can change the terms
and you’re bound by them. Like frequent flyer miles,
to take a simple example. They can expand the
number of miles, and it doesn’t
matter retroactively. Now, this is why Professor
Margaret Radin just came out three or four
years ago with the book called Boilerplate–
Michigan Law School. Brilliant analysis. And one of her conclusions
was that fine print contracts are themselves a tort. Themselves a tort. It’s a very erudite book, and
I encourage you to read it. How about the
non-enforceability of the laws. Who are we kidding here? You study fair housing laws. They’re massively unenforced. You study consumer protection
laws, massively unenforced. You name it– environmental
laws, water pollution permits. You read about it in
The New York Times, but it doesn’t filter
in to the classes. There should be courses
called illegality. Just illegality. Non-enforcement of the law. So you have to face it. A few hundred yards
away is Malcolm Sparrow, professor at the Kennedy
School of Government. Anybody hear of him? Now, watch our culture. Watch our culture. Anybody hear of George Clooney? How about Taylor–
what’s her name? Taylor Swift. All right, watch. He’s got a little expertise. He is the nation’s expert–
he’s an applied mathematician. He’s the nation’s expert on
computerized billing fraud and abuse in the
health care industry. His minimal estimate– minimal–
is $300 billion a year. 10% of all the spending. Minimal. Never discussed in
elections, never discussed in Congress hardly. He’s testified once in a
while, and they thank him. And he packs his bags and
comes back to Cambridge. You should invite him here. You should invite him
here, so he can tell you why the country doesn’t
seem to be upset about it because people don’t feel
that third party payment, et cetera– Medicare fraud. But it’s just another example. It’s like fishing off the Grand
Banks of Newfoundland in 1700. It’s all over. Its rampant. Non-enforcement of the laws. We’re not talking about nuanced
prosecutorial discretion due to minimal budgets. That’s bad enough. Ask yourself, there
are three branches of government in
the states, what do you think the core
budget is for the judiciary? It’s less than 2%. Why are we rationing justice? You remember Learned
Hands dicta on that? If you have a democracy, thou
shall not ration justice. So I can go into
more illustrations, but we’re running short on time. But I do want to point one out
that is very close to the law school, and that is
the outlaw nature of the modern presidency. The presidency now and the
so-called War on Terror, the president can
be judge, jury– the president can be
prosecutor, judge, jury, and executioner all in secret. This should really disturb
the Harvard Law School, since the president now is a
graduate of the Harvard Law School, former president
of the Law Review. The Law Review could be
less interested in this. There’s a lot of documentation
that the violation of constitution, federal
statutes, Geneva Convention is not episodic, it’s systemic. It’s daily. The New York Times wrote an
article called killer Tuesday, when the president is
surrounded in the White House with his security
advisers, and they decide who they’re going to kill
3,000, 4,000, 5,000 miles away, including signature strikes
in places like Yemen. A bunch of young
men– they don’t know their names– they’re
just huddled together, and they’re considered suspects. And they’re evaporated. Signature strikes. Not a ripple in a law school
except for a few stray law professors here and there who
are very concerned about it. Well, let me put it all
in a bundle for you. Should we be concerned
about the following. Secret laws, secret evidence,
secret courts, secret prisons, secret wars, secret
torture, secret un-auditable
expenditures, redacted published judicial opinions. Imagine that– redacted
published judicial opinions. Arbitrary state secrets defense
against judicial recourse, routine violations of due
process, probable cause, habeas corpus. That should be everybody’s
business, no matter what their specialty is,
if they are a member of the legal profession. We should not be allowed to
escape ourselves from what’s going on in this country. When we were at
law school, we’re worried about Joe McCarthy and
his intimidations, his slander, his red-baiting. That was his big thing. Joe McCarthy, by
comparison with what’s going on today in your country,
was a miserable sideshow by comparison. Look at Guantanamo. Look at our prisons. Look at our solitary
confinements. I look out at the
students here, and I’m saying in the back of my mind,
what a wonderful diversity. You have women,
men, minorities– not as many as you would like,
but compared to the ’50s. What’s the value of that
other than equal opportunity for an upwardly mobile career
defined by male standards. You go on to the
corporate law firms defined by male standards. You go to the
Department of State, defined by male standards
before women and minorities ever got in there. What’s the point? What do you bring to the
profession, to the country, to the world because you’re
part of a breakthrough diversity core? What do you bring to it? Well, you might bring
more sensitivity to certain women’s issues,
reproductive rights, daycare. But in the all-encompassing
corporate domination of our society, all important
deterioration of our democracy, we all have to put
another burden on our back if we were from
excluded groups so we can tutor the dominant groups. There’s always a
rationalization– oh, it’s not my specialty. I’m not into
presidential powers. I just deal with bankruptcy. Well, you know, Dean Erwin
Griswold was a tax lawyer here. He was a tax professor. And he was one of
the first deans– and you can’t believe the
courage this took– to publicly challenge Senator Joe McCarthy. He didn’t say, oh,
I’m a tax lawyer. I’ve just got to
deal with tax issues. Watch for those easy
rationalizations. The key point is that if
the law school does not reinvent itself, if it
does not split into two curriculums– one,
the normal servicing of the commercial economy. You want to do that, fine. And the other,
servicing civic values, servicing justice,
servicing fairness, servicing shift of
power, servicing modes of organizations
of the citizenry, servicing electoral reform. That’s what needs to be done. We need thousands
of lawyers who do this as lawyers, who take
their conscience to work, and who begin to reshape power. Otherwise, all you’re going
to see in the coming 50 years is a few breakthroughs
here and there. But by and large, the
drift of global corporatism is concentrated power defined by
commercial standards and values running roughshod over the
far more important civic and spiritual values that
spell a civilized society and a world. Every major religion
warns its adherents not to give too much power
to the merchant class. What did they know? Was it something conveyed
to them from on high, or was it reflecting
a common experience that the monomaniacal-driven
motivation of the prophet instinct brooks no challengers
in its mission for aggregating profits. It will diminish, control,
co-opt, or destroy other value systems that are
nowhere near as well-organized. That’s why every major
religion issued those warnings. So what would I have
Harvard Law School do once they break into
these two curriculums? Once they redefine their
mission, which is justice, what would we have them do? We would fill the
courses– all of them– with empirical reality. The courses are heavily
empirically starved. That’s not true
for your clinics. That’s not true for
some of your courses. It’s not going to be true for
Professor Jon Hanson’s course on systemic justice
and the Justice Lab. Something you should pay
a lot of attention to. It’s probably not true for
Lucian Bebchuk’s courses on corporate governance. It’s probably not
true for Roberto Unger on building democratic societies
or the omnipresent Lawrence Lessig on campaign
finance reform. But by and large, the courses
are not reflecting what’s going on back on the ground. The second thing that
Harvard Law School should do is redirect massive
resources into justice, either by its
leverage– prestige all over the country with alumni
as well as with foundations and other sources of money. You know, you have
nanotechnology coming, biotechnology coming,
artificial intelligence coming that have no framework– no
legal and moral framework. No legal and moral framework. When Bill Joy of Sun Micro
wrote his fabulous article in Wired magazine
in 2000, the title was “The Future
Doesn’t Need Us.” And what he meant was that
unless we bring under control whatever, you may disagree
how, artificial intelligence, biotech, and
nanotech, the future is not going to need
us because they’re the future autonomously. Now, the Harvard Law School
class of 1958– our class– got together at one
reunion and said, why don’t we do something other
than talk about our practice? And most of them were
corporate lawyers. I felt a little lonely. But we knew each other
when we were law students. There was a cohesion
there– a familiarity. And we started the Appleseed
Foundation, and we funded it. It now has started 16
centers for law and justice all over the country. That’s one law school class. By the way, it was
not exactly encouraged to talk with other
alumni reunions by Dean Clark when he was
in charge of the law school. But now, I guess,
they have good access. Now, what if other law
school classes did that? What if Harvard took it to
dozens and dozens of law schools and said, 30 years and
out, 35 years and out, you’re going to start looking to move
from success to significance, to quote a felicitous phrase
by one of the alumnus. You would have thousands of jobs
that would be recruiting here and other law schools in
public interest advocacy. I’ll give you an example. You’ve heard Warren Buffett
say that he’s under-taxed– that his secretary is taxed
at a higher rate than he is. There are about a dozen
enlightened multi-billionaires and billionaires
who are appalled by the tax law and its
grotesque provisions and its perverse incentives
and its lack of fairness and its tax havens
and all the rest. What if Harvard Law School
invited these billionaires to a round table
and basically showed that all this brainpower
on tax reform, which never went anywhere
in terms of change, is available if they would put
in over three years a billion dollars to organize every
congressional district meticulously, swarm Congress
with tax reform advocates, and have a national
media campaign? Stanley Surrey was a tax
professor here years ago, and he went into the
Kennedy Administration. He had tax reform. They got a little bit. But by and large, nothing
has occurred since. It’s gotten worse and worse. Our generation has an
obligation to provide you with public interest positions. It’s not enough just to talk. We have to build
the institutions. We have an
underdeveloped democracy and an overdeveloped
plutocracy and oligarchy. We have got to
mobilize ourselves. We have to exhort
ourselves, especially you, to higher levels
of significance. Do not minimize yourself
and sell your talents to go to work on
lucrative trivia or destructive retainers. Do not do that under
any circumstance. You’ll feel rotten about it. You’ll be in your 30s
and 40s, and you’ll hate your work, even though
the monthly check is very nice. Let me just end
with an exhortation. I know what I’m talking about
about the potential of Harvard Law students. Many of our groups
were run and staffed by Harvard Law students. We used a legislative
research drafting group here, which doesn’t exist
anymore, right? Do you have
legislative drafting? They drafted some of our
laws which we got enacted. Major check-offs for
consumer protection against utility companies. They did an excellent job. A lot of us on the
hustings in Washington don’t have quite the
patience that law students do to develop very, very refined
statutory language that anticipates and foresees and
forestalls as well as enables. So let me end with these words. My expressions are
conveyed as an invitation for collaborative introspection
by you and your faculty. And you have some very good
faculty for that purpose. Look forward. Be your own stare decisis. Start your own
revolutionary traditions, in the spirit of
Thomas Jefferson, who suggested that
maybe there should be a revolution every 15 years
for unresponsive governments. I don’t think he was
talking about violent, but you know what he
was talking about. Supplant your campus
small talk with big talk. There’s nothing more irritating
to some of our generation than to walk through
law school campuses and never be able to look
a law student in the eye because they’re all like this. This is devouring you. Think of the
implications of looking at screens and endless
text messages that have minimal gravity. Think of the implications
hour after hour. Look up from your
stupid smartphones and see the horizons before you. Experience the life
of joy and justice. Avoid like the plague the
plague of mining yourself in rigid routines daily that
draw even tighter circles around you. Start a visiting victims
program in your classes. Have them sprinkled
through your class– three or four out of 80–
visiting for a few days. Absorb their reactions
from their very different perspectives. What would happen in
your labor law class or in your civil rights class or
in your consumer classes if you had in your course,
in the classroom, visiting injured
workers, migrant workers, defrauded debtors, malpractice
patients, excluded investors, child custody nightmares,
falsely convicted inmates, refugees from America’s
empire, dissenters jailed without charges, people
in solitary confinement, farmers driven to the
wall by oligopolies, homeowners underwater due
to Wall Street crimes, pensioners fleeced by
their employers, punished whistleblowers from
giant corporate law firms and national security agencies? They’re all willing to come. And we’re not talking about
anecdotal phenomena here. We’re talking about refugees
from systematic patterns of injustice. You can add your own list–
a visiting victims program. Leave Harvard Law School
very different than when you entered it. Take the Harvard Law
parallel to the Athenian oath of citizenship. In Periclean Athens,
they took the oath to leave Athens better
off than they entered it. To know and not to
do is not to know. That came out of a 14th
century philosopher in the Ming dynasty. Just think of that– to know
and not to do is not to know. On the other side of
the world, Marcus Cicero gave us what I think is the
best definition of freedom. He wrote, “Freedom is
participation in power.” How many times do you
hear that context? How long is it going to take
for us to catch up with Cicero and this Chinese philosopher? How can you, chosen to journey
through this high citadel called Harvard Law School,
from among the thousands of applicants who
are rejected, not have a higher estimate
of your significance, soaring beyond the ceiling and
the selling of your talents for lucrative trivia or worse? In the coming days,
a book collection of wise and experienced recent
submissions to the Harvard Law Record will be available in
print– in print, by Jove, imagine– for you to digest. In the coming school
year, the Record wishes to be your vibrant
forum for going valiantly where few law students
have gone before. Connect with the students there. Write for it. Stand on the shoulders
of your most illustrious forebears– your
courageous forebears– who changed what I described
in the ’50s so much for the better. Catapult from stagnant
silos or corrosive cocoons into making the
improbable here possible. The lawyers of this country
and the people of this country need you. We’re not engaging in
exhortation and generational flattery. We need you. We need your idealism. You may not know it, but
the legal profession often looks at students at law
school as their conscience, having no axe to grind. They can tell it the way it is. The sum and substance
of legal education and its ultimate
intellectual challenge has got to be the realization
of legal systems furthering justice and fairness for all. Back to Robert Hutchins–
what is the purpose of the Harvard Law School? If you like some
of these remarks and they generate some
discussion in the coming days, I suggest you establish
an ad hoc committee titled The Harvard Law Students’
Committee to Establish– excuse me, to Establish
a Committee of Inquiry and Resolve. That’s a nice phrase I think–
the Harvard Law Students’ Committee of
Inquiry and Resolve. So you can continue
these explorations. Harvard Law School is
mimicked by other law schools, for better or worse. Make sure that
whatever you do here that breaks new ground travels
throughout the law school community and beyond
after graduation. Thank you very much.

21 comments

  1. Every law student will have to pay for their kids education and care financially for their future family..Who is going to sacrifice alll that? The system is self destructive

  2. HA HA , HAIL HAIL THE GANG'S ALL HERE–HELLO EDUCATION FOUNDATION….
    MAY THE WHISTLES BLOW FOR ELIZABETH & RALPH!!!!!!!!!!! PWW

  3. I agree with Nader's fight against increasing corporate government fascism, but he loses me on demonizing Joseph McCarthy. He ignored the then serious Communist
    infiltration of American government and Hollywood. When McCarthy was silenced, that enemy had a free reign to destroy the Constitution as they have now done.

    Internet has lately revealed the Zionist hand behind Communist Jewish Bolshevism that occupied Russia for 70 years. When the USSR fell those Bolsheviks were hired by Rockefeller only to over-run him and morph into the GOP Neocons. They bankrupted the USA with wars for a Zionist "Greater Israel", and for creating a fascist NWO.

  4. If you look of the word "justice" in the dictionary, you will find a picture of Ralph Nader – a national treasure…

  5. thay fouind i he was insent of the crime but now he in asity & thy say he for binden to go to a coumeaty funcion or thanking mille or crimastmasmil or prad not thing but be home band

  6. Someone tell me why charge their own people for "law School"" private" schools . being a private school they can charge and only have selected backgrounds or rich people ? only a selected few can join why are the big ass schools private ,?
    he says himself and people ate it like like pudding

  7. and of course general
    public Dont have access to how the works in the use their own people citizens
    snakes ,

    private party being that they have their own rights cant be questioned or give out anything and who funds the privacy of those school what are they keeping private , the fact only Rich people have access to the law or Harvard school concerns me , what kind of party would sponsor schools like this

    I don't know how or when there was a bill , law or legislative act passed that their own people own citizens have to pay for law school to know the law, humans right, a birth right. , why not (US government) fund public law school for the general public HOW IT SHOULD BE.

  8. citizens can't afford the lawyers?Let's put price caps and flat fees on these greedy immoral rats!

  9. Any politician who doesn't enforce the law must be jailed for 25 years without parole. Then we will see a responsive government!

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