Judging the Legal System

The Harvard Law School has become a center of activism and controversy over the last two years. Last year, President Bok used his annual report to take a highly critical look at the American legal system and the role of law schools. Last spring, student concerns such as minority hiring and student input into administrative decisions led to a vocal and protracted sit-in at the Law School Dean's office.

In order to discuss some of these issues. The Crimson sponsored a roundtable discussion with two-Harvard Law School professors--Charles Fried. Carter Professor of General Jurisprudence, and Richard D. Parker--and third-year law student, Ibrahim Gassama. The discussion was led by Crimson editor Mark E. Feinberg '85

Crimson: In President Bok's annual report last year he said, "This nation, which prides itself on efficiency and justice, has developed a legal system that is the most expensive in the world, yet cannot manage to protect the rights of most of its citizens." Could you comment on this quote?

Parker: I think, by and large, Bok's diagnosis is absolutely correct.

Fried: I agree with it in terms of the legal system being inefficient and expensive. Whether it manages to protect the rights of citizens. I think is more complicated, because a lot of rights are in fact protected. They are just protected at enormous cost. But the picture in that statement which is that the society is essentially or substantially lawless seems to me incorrect.

Gassama: I suppose I come at it from a much more critical perspective. One of the things that struck me about his report is that for somebody in his position, of his reputation, it is almost hypocritical for him to make some of the statements that he made. The problems with the legal system are much more fundamental, much more basic than the surface analysis that he presented in his report. This society has developed over a period of years a way of managing problems by not actually dealing with them, and I think the legal system has become the way of not actually dealing with the problem.

Fried: I think we can be in agreement that the legal system does seem substantially to bring about those results which whoever it is that is in control of the legal system has decided should be brought about. Your point of attack and criticism relates to who it is that's making those decisions and the substance of the decisions that are being made. You're not that much concerned with the fact that the decisions that have been made are not being fully implemented. You think they're being substantially implemented, but they're the wrong decisions.

Parker: My view would be that there are, in law, bases for all sorts of arguments critical of the status quo and of the people whom you're referring to, Charles. And I think that insufficient resources have been allocated to those who would make arguments critical of the status quo, but the resources for making those arguments are there in the law. I'm not as vulgar a Marxist as you are, Charles. That's what I'm trying to say. I don't believe the law is strictly the instrument of the ruling class.

Fried: Well, I think it's the instrument of the ruling class in the United States, because I think the ruling class is simply the society as a whole. I think that we are a democratic society.

Parker: I think that's nonsense.

Crimson: Now that we've gone through that major question, maybe we can focus in on law school education and its impact on these larger questions.

Parker: I would say, briefly, that the education at this law school is getting gradually better and better and better. I think there's a great deal more variety here than there was 15 years ago, and that most-of the changes that make for that variety have been in a very good direction. I think it's certainly true and deplorable that a vast majority of our students go on to a very narrow sort of work in corporate law, but I don't believe that's the fault of the law school. I think it's problem rooted in the social and economic system.

Fried: I think that the assumptions that Richard Parker states are totally wrong in a number of important ways. First of all, there is no great problem about where our students are going. The fact of the matter is that our students are disproportionately influential in the governing of the country rather than not sufficiently represented. I would think that if you look at the major bureaucracies, if you look at state, local and federal government, that Harvard Law School graduates are there, present and powerful to a remarkable degree. In fact, it's really hard to imagine how one could make an argument that a single institution should be even more influential in the public government of the society than this one is. I believe that Harvard Law School graduates are very prominent in public service. Now, by public service. I do admit that I mean positions of influence and authority at all levels of government. Now that seems to me, in a democratic society, to be public service.

Now, as to what has happened to legal training at the Harvard Law School, in some respect I agree with Richard. I think that it has gotten broader and more interesting, more variety. In some respects, however, I think it has deteriorated. I think it's deteriorated because there has crept in an attitude, both among students and faculty, that rigor in thinking and careful, painstaking work is somehow not worth it, because one should jump rather quickly to "the big issues." I see it in classes every where, that there is a decline in the willingness to really deploy evidence carefully, to study details in the law and to master them because it is somehow thought to be unimportant. And I think, to the extent that it has happened, that's a loss, but there's a gain that's come across as well in terms of breadth and variety.

Parker: Well, in response to the last statement. I would say first that it's simply not true that the courses taught by some of the people who have come here in the last 10 years or so, fail to attend to details in a rigorous fashion I deny that Secondly, and probably more importantly, it seems to me that to teach law without attending very importantly to the assumptions upon which legal discourse is based is radically unrigorous and indeed sloppy.

Fried: I agree with that.

Gassama: What has been happening here is that there has been a reaction to the formal way of teaching the law--the exclusion of these concerns--and so there has necessarily been a period in which students have gone the other way. But it is not necessary for it to be that way. If professors were to start out with a recognition of all concerns, not just one particular concern based on their up-bringing or their understanding of society. I think one would find a better atmosphere for critiquing various postions in great depth.

Dealing with your first point. Professor Fried about Harvard students being present at all levels of government and defining that to be public service. I think there is a vast segment of society that is still without representation. I'm not saying that it's necessarily the fault of the law, the legal profession. But we cannot neglect the fact that of the many Harvard students that end up in government. I don't think we find a vast proportion beginning at the bottom rungs of government and working their way to the top I think they generally start out somewhere in private service and then, later on, make some lateral moves.

Fried: That's certainly true, but the experience going back to the New Deal and before has shown quite clearly that excellent lawyers--whose careers began in corporate law--coming into public service are able to take a very broad view, and represent the public rather than the narrow interests that they have been paid to represent while they were in private practice.

Crimson: Do you want to comment on that?

Parker: I would say that people whose careers are built in large corporate firms, which are fundamentally bureaucratic operations, these people become highly polished bureaucrats, they become hierarchy addicts. When they move into government, many of them, of course, don't simply serve the narrow interests of their former clients but they nonetheless remain polished bureaucrats. And I think the American people are increasingly expressing their dissatisfaction with a government run by such people. I think there is evident in the primary elections right now a growing populist mood in the country, and I hope that one day fewer of these polished bureaucrats from corporate firms will fill government offices.

Crimson: Why don't we talk about minority hiring here at the law school? That might have been the issue that sparked a lot of the activism we've been seeing at the Law School over the last year.

Gassama: I think the students here are increasingly recognizing the political nature of the law, the relationship that the law has to what life is all about. And we are beginning to realize the importance of getting various viewpoints, that our education is not complete, that some people cannot tell us about certain things as well as others can. And that is what I think is behind this current demand for increased minority faculty.

Fried: I think there is a deep and fundamental fallacy to what Ibriham said, and that is the fallacy that there is some overlap or necessary connection between minority hiring on the one hand, and different points of view on the other. I think that is an undemonstrated assumption and, in fact, it's an assumption which, if really examined, would not be accepted. Because what's wanted in a person who is teaching law is an ability to think about and communicate the range of issues at the levels of detail and breadth that Richard set out, and which I agreed with, and I don't believe that a person's race is a relevant factor in identifying the ability to do that. It would seem to me that the way you identify the ability to think broadly, deeply and powerfully about the law is in terms of your accomplishments at the time that you are being considered for hiring. And there are white people who have a powerful sense and sensitivity to problems of oppression and there are non-white people who are not particularly interested in that issue. And the question is the actual perspective, and race is not really a useful surrogate for that.

Now, if what you were doing was picking 10,000 people, then you might want to use race as a surrogate to produce that variety. I think if you were picking several thousand people, as when you are picking a student body, you might want to do that. Because there what you are doing is you are picking people necessarily without a closely individualized look at what they have accomplished. But when you are picking a faculty member, you are picking in a very close way. You are looking at a lot about the person. This is a person who is not an unformed person and, at that point, what the person has done provides all the evidence you need for that decision.

Gassama: I think what is dangerous about what Professor Fried has said is the fact that there are many people, including the dean and president of this University, who believe that. And may I also suggest that probably only a white male can make the statement that was just made with such confidence. I think that there's a definite inconsistency in what you say, but first of all you're making a clever move in trying to reduce the demand for diversity in the faculty to one based solely on the candidate's race, dismissing the importance of what makes race important in this question. I think what makes race important is that a certain race of people have been excluded from the decision-making process of society. What they can do however, is demand that they be allowed to participate, demand that their viewpoints be taken into account, and that's what the issue is. My contention is that you and the other people who set the standards for hiring here simply do not recognize the contribution that can be made by people of different social and racial backgrounds. And we are saying that you are not qualified to determine the scholarship of these people, because of your background, because of your focus, because of the way you think about the law. We just simply have a different way of thinking about the law, of looking at the law.

Fried: Well, I think that is a deeply anti-intellectual statement. It turns an academic institution into a kind of United Nations. And ideas are not United Nations. An idea can be understood by anybody who seeks to understand it, and if it cannot be then it is not worthy of being taught, because it is not an idea.

Gassama: Who makes the decision that the idea cannot be understood? What if the Black students here unanimously decide after three years of law school that half of what you're teaching simply is not capable of being understood by them? Who decides then that should not be taught?

Fried: But that is, of course, not what's being said. They're not saying...

Gassama: That's not true, Professor Fried. I think if you take a poll of the Black students here, with one or two exceptions, you'll find a uniform view of the question of how, for example, criminal law is being taught here, as a Black person. If only some of them would have the courage to tell you, if only you would take the time to find out from them.

Parker: I think to call Ibriham's point of view anti-intellectual is just utterly wrong. It seems to me that his argument is one based on the sociology of knowledge, which is a well-recognized and, I think, correct point of view that knowledge is rooted in experience. I don't see the issue as communication. I see it more as one of quality and relevance. But I don't think it's inevitable that including non-whites and women on the faculty will necessarily make for diversity in the point of view. But I think that it probably will. Its very strong tendency is to make for diversity in the point of view because of the sociology of knowledge perception that what one regards as most relevant and important and the way one goes about portraying and critiquing it will be rooted in one's experience.

Fried: My difference with you is, if what we are talking about is the selection of faculty members, which is a very careful individual selection, one can go directly to the point of view, one need-not pass through surrogates to indicate it.

Crimson: I would like to focus this a little more on Harvard.

Parker: To my mind the reason to integrate our faculty, bringing both women and non-whites onto the faculty, doesn't, most importantly, have to do with diversity of point of view. It has to do simply with justice. In 1954, the Supreme Court said that primary and secondary schools must be integrated. Fourteen years later they said. "The time is now We're going to judge by results, not by good intentions or promises" It seems to me at Harvard we're in that position Perhaps we were in that position long ago, but certainly in 1984, we're at a stage where we should judge by results. Do we have as many non-whites and women on the faculty as we ought to? And it seems to me that the answer is clearly, no

Fried: Well, Richard, when you speak of justice, then that suggests that people should be on a faculty at a major university because a group they purport to represent, and that representation is itself a very troublesome and dubious notion, but a group that they purport to represent is owed, as it were, a certain proportion of seats It's the United Nations conception of a university.

Parker: Not at all No. I don't see a law school as a United Nations where the mere fact that there are numbers of people in certain groups out there requires that you have the same number here. My assertion is that there are plenty of non-whites and plenty of women who are qualified to teach here, and we don't have enough of those qualified people here.

Fried: Now, the word "qualified" is often used, and it is of course the central weasel word in this debate. I can't imagine what it means to be qualified to teach at the Harvard Law School, because qualification suggests some kind of minimum standard in the way that somebody might be qualified to be a policeman, or somebody might be qualified to get a driver's license. I suppose that the notion at institutions such as Harvard is not to get people who are qualified, which is a minimum standard, but to get those who are the best.