HLS in the World | How Harvard Law School Has Shaped the Law

HLS in the World | How Harvard Law School Has Shaped the Law

Articles, Blog , , , , , , , , , , , , , 0 Comments


IMELME UMANA: Good
morning, everyone. We’ll go ahead and get started. Well, welcome, and thank
you everyone for coming. As you know, we’re
here today to discuss how Harvard has shaped the law. Noticeably, the title
of today’s event is not “Has Harvard
Shaped the Law?” While that may have been
a lot less presumptuous, it would have made for
a pretty short panel. Of course, the answer is yes. And we’re very fortunate
to be affiliated with a historic institution that
has played such a central role in crafting the law,
from how it’s taught, to how it’s practiced. And today’s panelists
bring a phenomenal amount of wealth of expertise
to a wide array of disciplines within the law. And the Harvard
Law Review recently published its bicentennial
issue featuring essays by our panelists exploring
the ways in which Harvard Law School shaped the evolution
of their discipline, and in some instances, how
their discipline has shaped HLS. So today we’re joined by, of
course, Dean John Manning. In his essay on
statutory interpretation, he studies the work of a
discordant group of Harvard Law theorists who, despite
deep differences, found common ground in the
shared project of rejecting the idea of legislative intent. We’re also joined by Professor
Kimberle Crenshaw, who in her essay
narrates the Harvard origin to the critical
race theory as a movement and as an approach
to legal education. And in her essay
on legal education, Professor Jeannie Suk Gersen
examines the Socratic method pioneered at Harvard Law
School and its possibilities for equipping students
to be thoughtful lawyers and members of society. And weaving together
strands from Holmes to Thayer to Brandeis
Professor Vicki Jackson comments on how
the role of courts in our system of
government have played a role in pushing constitutional
law to constitutional justice. Professor Adrian
Vermeule engages with multiple generations
of Harvard scholars, including Justice Kagan, who
have probed the legitimacy of the administrative state. And finally, Professor
Frank Schauer, in his writing on
American jurisprudence, notes that Harvard
Law School has been influential on widening
the scope of sources that constitute law. I think we’re in
for a real treat. And this panel
would not have been possible without the
guidance from Dean Minow, who wrote the fabulous introduction
to these collection of essays, as well as the advisement
and encouragement of Dean Manning and Professor Lazarus. I’m also so grateful for the
editors of the Harvard Law Review for their tireless
and exceptional work. So we’ll begin with
each Professor giving the 200-year summary of
their field of expertise in about five minutes. And then we’ll move into
a moderated discussion before opening it up
for Q&A. And we’ll start with Dean Manning. JOHN MANNING: Thank
you very much, Imelme. And it’s great to be here. Let me just say it’s
great working with you. Imelme was my student in
legislation and regulation, and fantastic that you’re
president of the Law Review. And working with the Law Review
on this and every other piece of work I’ve done
with them has been a tremendous,
tremendous experience. And working with the editors
as they conceived of this issue and executed it and
brought it to fruition was just a model of
professionalism on their part. And so it’s great
to be here, and I’m delighted to be here with this
very, very distinguished panel. So I wrote about– I write about, or maybe
that was the right tense. I wrote about statutory
interpretation. And when I went to law school– and I started 35
years ago this fall– we didn’t talk much about
statutory interpretation. What was assumed
was that you looked for the legislature’s intent. And there’s a certain
common sense to that, right, when we think about
what we mean in conversation. We care a lot about
what the people we’re talking to intended
by what they said. And so you say, oh,
I didn’t intend that, or, I wonder what he or she
intended when they said that. And it extends to the
idea of, sometimes people say things
they don’t intend. So if a friend sends
a note that says, let’s meet for lunch
at 1:00 AM, you know, I’m pretty sure that
there’s a typo there, that they intended
it to be 1:00 PM, and I’ll show up at
1:00 PM, even if I haven’t contacted that person. And sort of the idea of
statutory interpretation when I went to law
school and when some other people in this room
probably went to law school was that that’s what
judges were trying to do. They were trying to figure
out what Congress intended by the words that they used,
and that meant go and look at what the drafters said. So look at some
legislative history, and try to figure out what
the principal sponsors or the committees that
drafted the legislation meant. And that was intentionalism. It was very, very
widely accepted. It went largely unchallenged
for many, many years and was taken for granted
in the law schools and in the profession. And so the big challenge to
that was modern textualism. Modern textualism is
associated most closely with a graduate of this law
school, Justice Scalia, who made a broad-ranging critique. He and some other judges
made broad-ranging critiques of the idea of looking
for legislative intent. And one of the central
tenets of what they said was that legislatures
on any hard question simply don’t have an intent. So if you think about
the proposition that underlies legislative
intent, it presupposes that you can discern on a hard
question what 536 people spread across three institutions– I’m counting the
President in here– intended about something that
they didn’t express clearly. And you add to that the fact
that the process of legislation is so complex, has
so many veto gates, there are so many ways
for legislation to die, it’s very hard to
reconstruct what legislation was meant to do. And so textualists say,
just read the words. All right. So that’s sort of
the baseline here. What I discovered
when I went and I read about a bunch
of Harvard theorists is that this idea about
intense skepticism, not textualism but intense
skepticism, cuts really deep, and it cuts across all
sorts of different theories, including some that are
very, very inconsistent, incompatible, with the theory
of textualism that’s most closely associated with it. So I found that Harvard’s
legal realists, progressives, New Dealers, legal
process purposivists, along with its textualists,
all were intent skeptics. And I’m not saying
that everybody who’s ever been associated
with the Harvard Law School is an intense skeptic. There is ample evidence
to the contrary. But what I am saying is
there’s a deep tradition and a very impressive lineup
of people going way back who were intent skeptics also. So I can’t mention every one. The article runs 36
pages, and I’m only going to mention three
quick examples, just to show the range of
views that are associated with intense skepticism. So Roscoe Pound, who was a
professor and a former dean of this law school,
was one of the leaders of the progressive
movement, and he was associated with
a movement called sociological jurisprudence, the
idea that judges should ground their interpretive decisions
in social realities and the imperative
of justice not in the formalities of
statutory text or common law. And yet this view,
which is very different from modern textualism,
was grounded on the idea that– and I’m quoting
here– the legislature has, quote, “no actual
intent” and that, quote, “the difficulties of
so-called interpretation arise only when the legislature
has had no meaning at all.” So here’s a second example, also
a professor and a former dean, James Landis. He was one of the great
intellectual architects of the New Deal. And what his main
argument was was that American judges
inherited equitable powers from English judges. And therefore, they
could readjust a statute to make it more
coherent and fair, even if it didn’t
match up with the text. Again, very different from what
modern intent skeptics argue. He also said that
most of the time quote, “the meaning
of the legislature is not discoverable.” And he said that courts only
invoke legislative intent to elide, quote, “their
role as actual law givers.” All right? That’s example two. Third, and this was the one
that surprised me the most, is Professors Hart and Saks. For those of you who have taken
Legislation and Regulation– and many people in
the room probably took the Legal Process course– you’re familiar with the
legal process school. It was the dominant
school of interpretive thought for two generations,
three generations, after World War II. It’s a very sort of
constructivist theory of interpretation. And what it says is laws should
be interpreted purposefully, and we should presume
that legislators are reasonable persons pursuing
reasonable purposes reasonably. This was the dominant approach
on the court for decades. And it’s often
associated with the idea that you can reconstruct
what Congress wanted to achieve, their intent. But Hart and Saks
said the following. In most cases, quote, “the
overwhelming probability is that the legislature
gave no particular thought to the matter at all, and
had no intent concerning it.” So all of these theories
very, very different theories of interpretation,
all rest on the idea that you can’t reconstruct what
Congress was actually deciding. And I think that
this, if you want to call it the Harvard
School, the Harvard School of Statutory
Interpretation, to me has two virtues. One is it seems right. Right? It seems right to think that if
you’ve got a hard interpretive question, then 536 actors
spread across three institutions in a very,
very complex, opaque, path-dependent process have not
decided the question at issue. So it seems right. The second thing
is, it seems to me to be a more forthright way
of thinking about the problem of interpretation. All of these theorists grappled
with very hard questions about interpretation. And the questions
they grappled with were, in our
constitutional system, how is the power of
law-making allocated. When does Congress make law? And when does it fall to
legislatures and agencies to make law when
Congress hasn’t decided? And that seems to me
to be a more accurate, and I do think forthright way,
about thinking of the problem of statutory interpretation. It was really fun
to write this essay. I’m very happy and grateful
to have been invited to do it. And I have now subsided. [LAUGHING] KIMBERLE CRENSHAW: So
I’m also delighted to be part of this special issue
and part of this conversation. I’m going to shift the
question just a little bit. And Imelme already
said that I was going to more or less talk about
the influence of things that happened here at Harvard
on the way we think about and engage law and its
relationship to race. I’m going to start with
just a couple of snapshots of some things that I’ve noticed
over the last couple of months. Just two days ago, I
was at Brandeis meeting with several graduate students. These graduate students
had created a course on critical race theory. These were not graduate
students in a law school. These were graduate
students who were studying international
relations, sociology, political science. Last month, I was in Germany
for the inaugural conference around a center called the
Center for Intersectional Advocacy and Policy in Europe. The two months
before that, there was a critical race theory
conference in Germany. And the year before
that, there was a similar conference in the UK. The year before that, I heard
about the creation of a Center for Intersectionality
Studies in Canada. What do all of these things have
to do with Harvard Law School? All of these have been
outgrowth of a particular moment in Harvard Law School history in
which competing ideas about how to think about race, how to
think about racial power, and its relationship
to law came to a head. Out of that coming-to-a-head
came the movement of critical race theory. And out of critical race
theory came intersectionality. So I’ve told you more or less
sort of the end of the story. Now I want to roll
it back and tell you a little bit of the
conditions of possibility and one of the stories that
I talk about in my article. So one of the stories
that I elevate is the moment when
an NAACP civil rights lawyer wrote a
piece called “Nine Men in Black Who Think White.” It was basically an
assessment, a critique, of the Supreme Court’s
performance in racial justice issues, in particular, the
celebration of Brown I, which established the principle
of non-segregation in public schools, to
Brown II, which established the fact that it
would take at least 10 years before the Supreme
Court would revisit it again in a significant way to force
significant integration. So his point of
departure was that there was a celebration of
the law, a celebration of the idea of the
Supreme Court as being the font of moral as well
as constitutional judgment around racial equity, and at
the same time, the reality that there were many
opportunities that were apparently being missed
in the aftermath of Brown. For writing this article, he
was summarily fired by the NAACP without any process,
without any review, without any conversation. And the counsel general, who
went onto become Judge Robert Carter, also resigned. The entire legal staff of the
NAACP resigned at this moment. This is not a story that’s
well-known to students of civil rights law,
students of race history, students of constitutional
law, students of social justice activism. I wanted to bring
that story forward to say that this story is
simply one of many moments where there were conflicts
between different ways of thinking about race and law. One of the sites
of that conflict was Harvard Law School. I came to Harvard Law
School in the early ’80s, during a time that Derrick
Bell had recently left. We, as students, coming out
of the civil rights movement, were here to learn how to extend
the reach of the civil rights movement, to learn the skills,
the tools about how to go about civil rights advocacy. And we thought that Derrick
Bell’s presence here was one of the main attractions. When the law school expressed no
commitment to rehiring someone to teach his courses or to
teach his actual courses, it began a series of
protests and interactions and actions that heightened the
tension between these two ways of thinking about race and law. One was the
traditional way, which was law was basically
a referee about and around racial conflict. It was a way of
managing racial groups. It was a way of determining
when certain outcomes could be traced to illegitimate
biased decision-making, and when certain
outcomes were just that natural outcomes of the
fact that people are different and races are different. That was a traditional way. It was a way of thinking
that had bona fides. It was a way of
thinking that shaped the decision of the NAACP
to fire Lewis Steel, because Lewis Steel
was undermining that particular vantage point. Another way of
thinking about race in law, one that was in many
ways represented by Derrick Bell but then heightened by the
interaction between this way of thinking and
critical legal studies, was that law wasn’t
just a referee of race. It wasn’t just a post
hoc institution that determined when race
could or could not be a basis for distributing
things like jobs, or burdens like
incarceration, but law helped to actually
constitute the things that it claimed to simply manage. That was an idea
that thought more about law as a system of power. It thought about race
as power relations, and law played a
significant role in rationalizing the
current distribution of who gets what in society
and naturalizing that. These ideas I say now, as
though they are always there, they were always relevant, but
they were not always there. In fact, we were
prompted by the failure to actually include such
courses to actually come up with our own course as a way
of exploring, understanding, and developing an approach
that I’ve just mentioned. That political moment and
that institutional moment was all the arena out of which
critical race theory came out. The short story is
simply the convergence of students who were both
interested in a race project and interested in a critical way
of thinking about law actually came together in
the struggles here at Harvard Law School around
the alternative course, and the struggles here at
Harvard Law School about how we think about race and law. So my piece is basically a way
of going back to that history, telling the story in terms
of, we became critical race theorists because we
fell through the cracks of traditional liberal
approaches to race, and traditional critical
approaches that did not yet have an approach to race. So critical race
theory is not so much a thing with a
lot of stuff in it but a series of interactions. And these interactions help
constitute our understanding about how race and power occupy
institutions like Harvard, and then by a greater
extension, how race and power might
be thought about across the social terrain. JEANNIE SUK GERSEN: Thank you. I wrote about something
that is probably near and dear to all of your
hearts, the Socratic method. So as many of you may
know, Harvard Law School is the birthplace of the
Socratic method of teaching. It began as the case method
or the Langdell method, and it was named for
its first practitioner at Harvard, Christopher
Columbus Langdell. And so when he joined
the faculty in 1870 after having been a
practicing lawyer, he looked around and thought,
the way they’re teaching law is boring. It’s not engaging. It doesn’t make students think. And I want to do it differently. And so the old way, prior
to Langdell’s intervention, was that professors would
stand at the head of the room, kind of like we’re
doing right now, and just talk, maybe even
read aloud from treatises, and just summarize what
was in the textbook. And the students would listen. And they would take notes. And then maybe once
in a while they might ask a clarifying
question and then receive an authoritative
answer, and that would be the way that the class went. And so in 1870, when
Langdell decided that this wasn’t the
way he wanted to do it, he got a lot of pushback
from his colleagues because what he
was trying to do, they thought, was
really radical. It was very innovative. And what he proposed
to do is, first of all, don’t read from
textbooks and summaries, but rather use the primary
material, the cases themselves. And so give the
students the cases to read, and then have them
engage in interpretations of those cases by
being asked questions, and then asking the students
to reason about those cases, and then maybe putting them
into discussion with each other. And maybe disagreements
would come out, and then also he
assigned dissents. Because it wasn’t
just about summarizing the state of the
law, what the law was, but about reasoning
and different reasons for coming to
different conclusions. And that was the method
that he innovated. He started using it. Lots of other
professors at the school thought, this is
never going to work because we have so much
material that we need to cover. And if we start
asking them questions about individual cases, that’s
just going to take forever, and we’re not going to get
all the coverage that we need. Well, the other thing
that was disturbing was this disruption of
classroom hierarchy. If you have the professor at the
head of the room just telling the students what’s
what, that was one way of ordering hierarchy. But here, his idea
anyway, was that students should be at the center
of the classroom, and their thinking and reasoning
process should be really what everyone was focused on. And so a lot of
students who experienced Langdell’s new method, they
didn’t like it because they weren’t used to it. They thought, I came to class
to hear a wise professor, and instead I’m listening to Mr.
Jones and Mr. Fessenden and Mr. Smith. And that’s a waste of my time. And so they really revolted. And in fact, in his first year,
students just stopped coming. And like, only a
handful of students would show up to class. And there were even
incidents where people threw objects–
like, there were cushions that they would sit
on in the classrooms, and they would
throw the cushions to express their consternation
about what was going on. But what I take from it
is this focus on students and their minds as
learners and thinkers, not on the professors
and the professor as the keeper of knowledge and
the person imparting knowledge. OK. So that was the new
innovation of the 1870s. So now let’s fast forward
at Harvard Law School to maybe, like, 100 years. So the next figure that
I’m going to focus on is Duncan Kennedy, who I
believe is here in this room. Yes. So Duncan Kennedy– so in
fact, it started a little bit before he was at Harvard
Law School, when he was a student at Yale Law School. And he wrote this essay while
he was a student there called “How the Law School Fails.” And it was a very acid
attack on the Socratic method as it was practiced in legal
education at that time. He called it an assault– that the way it is
practiced is an assault by the professors
on the students, that they were
inflicting emotional harm on their students, that
they were being sadistic. And then a little
later on, he published a famous essay called legal
education and reproduction of hierarchy, in which he
took that further and said that the Socratic method
is a way of enacting that hierarchy so that the
professor asking the question is kind of encouraging
the student to submit, inducing them to
submit to authority. So these are two very different
pictures of what’s going on. One is Langdell’s vision. Students are going to become
more independent, more autonomous, and they’re going
to have more self-confidence, and they’re going
to have a capacity to criticize and to
say, well, maybe this isn’t the way we should do it. In Duncan Kennedy’s
vision, what’s actually happening on the ground
in law school classrooms is that it’s a
mode of interaction that is actually not cultivating
that independence and autonom. It’s, in fact,
doing the opposite. So over the past decades,
other people, of course, have observed the connection
between the legal professional style, the pedagogical
techniques of the classroom, and then what happens to the
students and how they feel. And Lani Guinier is another
figure who talked about the way that the legal professional
style is white, male, and middle class, and that
that comes out in the way that it’s practiced
in the classroom in the Socratic method. And lots of people, lots of
students have, in fact, said, and they’ve even told
me, that encountering the Socratic method for
the first time as 1Ls impacted their sense of
well-being and equality. And some people
have talked about a disproportionately negative
impact on women and minorities. So that’s another moment and a
critique of the Socratic method that I’m very concerned about. So in recent years, we
have seen also this turn toward thinking
about the connection between the Socratic
method and the harm to students as a form of trauma
in which people think that, for example, when
you call on students that it’s kind of
like subjecting them to a kind of trauma. And in fact, there’s a
student group here at Harvard called Harvard
Assault Law Student Training that warns
on their website that professors should try
not to use the Socratic method because it can invoke a fight or
flight reaction causing people to shut down and
freeze and dissociate as if they’re being attacked. And I think that there’s this
comparison of an assault, an attack, aggression. It’s as if the use of
the Socratic method is being analogized to a kind
of assault, and especially a gendered assault, with
the attention to the way that the Socratic method
has been less comfortable empirically, just when you
talk to women versus men, or people of color
versus white students. So I think that I
lay all that out just to say that the Socratic
method has survived a great deal of
legal developments at Harvard and elsewhere over
a very long period of time. And the paper that I wrote
is about the Socratic method, but it’s getting at something
a little larger than that, which is how to retain the
possibility of open discussion, of debate, of disagreement,
and yes, of confrontation of different ideas among people
who really may see things differently in a classroom
and in a university that’s increasingly diverse, maybe
even divided, and also right now at this moment in
time, on campuses, where we are having these very
intense debates about what it means to be inclusive, and what
it means to have a safe space, and what it means to
actually have open debate. I think this is a time when
the classroom is increasingly perceived as a potential
site of trauma, and it’s been common to hear
references to a lot of things that people may dislike or
feel uncomfortable about, as if they were a trauma. And I have to say that
I routinely now hear from colleagues at this
school, at other schools, who say they are limiting or
refraining from teaching certain subjects because
they’re just too hot to handle in the law school classroom, or
at the very least, they won’t use the Socratic method
for those subjects– like, for example, race or
gender or sexual violence or sexual harassment. They’re not going to
employ the method, or they’re just not
going to teach it at all because of the fear
of subjecting students to distress. I happen to use the method. I happen to think that it’s
part of the solution to gender, race, and class
disparities in law school performance and comfort. I can say a little bit
more about that in the Q&A because I don’t want
to go beyond my time. But I believe the
classroom should be a space for confrontation,
for problems that feel urgently alive and relevant,
and for reasoned argument about politically
and morally contested matters. And the harder that it may
be to have reasoned dialogue about matters of importance in
our society, the more important it is for professors to practice
doing so with their students. I don’t think the Socratic
method is the only way to do it, but it is a way
that was developed here at Harvard that also
was used to great effect by Duncan Kennedy
throughout his career and has survived many,
many different iterations of legal theory,
such as legal rules and legal process, the critical
legal studies movement. And I hope that at the 300h
anniversary of the school, we’ll still be grappling
with the Socratic method and its effects. Thank you. VICKI JACKSON: Thank you. So these prior presentations
have been so interesting that I kind of want
to engage with them, but I’m supposed to talk to
you about something else. I’m very happy to be here. I want to thank the law
school, the Law Review, for organizing it. I want to thank both
last year’s board of the Law Review and
this year’s board, because all of these
two groups of students worked incredibly
hard on the issue. So what I wrote about were
three Harvard Law School alumni, James Bradley Thayer,
Oliver Wendell Holmes, Sr., and– Junior, sorry, Junior,
there we go– and Louis D. Brandeis, all
of whom have had outsized impacts
on judicial review, how it is conducted
and conceived. None of these were originalists. All supported deference
to legislatures, albeit for different reasons. Thayer, who was
a professor here, supported deference to
Congress for many reasons. First, he argued
there may be more than one reasonable
interpretation of a constitutional provision. Moreover, he argued, too active
a form of judicial review might lead members
of legislatures to take their own
responsibilities less seriously. Moreover, too aggressive
a form of judicial review might produce legislative
backlashes that would undermine judicial independence. He more strongly favored
deference to Congress, however, than to state legislatures. As I mentioned, he was
not an originalist. He urged courts engaged in
judicial review to combine, and I quote, “a lawyer’s
rigor with a statesman’s breadth of vision.” Justice Holmes also
favored deference, especially on what
liberty was protected by the due process clause. He famously argued in
his Lochner dissent that the 14th Amendment did
not enact Mr. Herbert Spencer’s social status. Holmes’ writings reflected
a degree of majoritarianism born of his jurisprudential view
that laws essentially reflected the dominant power in society. Not only did he
emphasized the need to distinguish the study of
law from moral considerations in his famous essay called
“The Path of the Law,” which was in the Harvard
Law Review in 1897, but in his later years, he
seemed almost exasperated with those who sought to bring
law closer to conceptions of morality or justice. I’ll quote from a
letter he wrote in 1929. “I hate justice,” he
said in this letter. “I know that if a man
begins to talk about that, he is shirking thinking
in legal terms.” Justice Brandeis favored
deference to legislatures, especially when they
were acting to respond to new economic challenges. Unlike Holmes’ deference,
Brandeis’ deference was designed to advance
his understandings of social justice. He sought, through improved
understandings of the facts, to bring what he called
legal justice closer to what he called social justice. To achieve this
goal, Brandeis, who was one of our first
public interest lawyers, sought to bring– although also a very
successful commercial lawyer– he sought to bring to the
attention of legislatures and to the attention of
courts the social facts about the world he was living
in through the Brandeis Briefs that he popularized. And these presented the
kinds of social facts on which legislatures
could have relied to support their legislation,
and he presented them in an effort to persuade
courts to uphold laws that courts at the time
were experiencing as novel and weren’t quite
sure what to do with. Now, the influences
of these three jurists endure in US constitutional law. They endure in at least
rhetorical commitments to judicial deference
to legislatures and in a certain Holmesian
value skepticism. Let me illustrate
with a brief anecdote. The first time I taught
Federal Courts here, which would have
been around 2012, I used a handout,
a hypothetical, at the end of our study of
the very complex law that had developed around
habeas corpus for state court-convicted prisoners. Very, very complicated. And the handout said, you’re
a legislative assistant in the office of the senator who
runs the Judiciary Committee. How would you reform it? Would you abolish habeas? Or would you get rid of
various judicial doctrines? And the questions
went across a spectrum of how one might respond. And I had used this in teaching
at a prior school I had taught at for many, many years. And students always
wanted to talk. I put the problem out in
my Federal Courts class, and no one wanted to talk. It was one of those awkward
moments where there’s silence. And I decided not to use the
Socratic method at that point, but to try and
elicit volunteers. And after a couple of minutes
of trying my best to elicit, I gave up. So a couple of weeks later,
I was taking a dozen students or so from that
class out to lunch. And halfway in,
I said, you know, I had a pedagogical failure in
class a couple of weeks ago. Remember when I
tried to ask people about how you would proceed if
you were in the legislature? And they said, yes,
they remembered. And I said, well,
could you explain to me what was going on there? I was really confused. Long silence. And finally, one of the
students said, well, you know, Professor,
it sounded like you were asking us to talk about
what would be fair or just. And I said, well,
yeah, yeah, I was. What’s the problem? And a student said, well,
you know, Justice Holmes. I was really startled by this. That’s an illustration
of the continued influence of what some see as
the justice’s value skepticism. Now, in the paper, I argue that
these two features, deference to legislatures and
value skepticism, help explain why proportionality
review, an approach to constitutional rights
adjudication widely used in other constitutional
democracies, has not been adopted here. What’s proportionality review? It’s a structured
doctrine designed to test the constitutionality
of government action claimed to intrude on a realm
protected by rights. It does so by asking a
sequence set of questions. Is the measure directed
towards a legitimate goal? Is it rationally directed
towards that goal? Are the means chosen
minimally impairing of rights? And are the values
served by the legislation of enough importance to
justify whatever intrusion on the realm of rights exists? The emphasis on deference
to legislators by these influential American jurists, as
well as Holmes’ skepticism that constitutional values can
be deduced apart from what majorities want– and this
is outside of the free speech and takings area, where
he had different views– have been very
influential, I think. Although Justice
Breyer has argued that proportionality
review might be an appropriate
approach for a range of constitutional questions. And one thing I
and other scholars have argued is that
proportionality review actually can be conducted with
deference to the legislature as primary decision
maker, and that it offers some benefits
in terms of increasing the likely judicial
candor of reasoning, the transparency of
reasoning, and offers the possibility of bringing
constitutional law closer to conceptions of justice. Now, proportionality review
and many other constitutional approaches rest in part
on judicial evaluation of the facts the legislature
could reasonably have found. The Supreme Court,
in recent decade, has tended to focus much more
on its law-declaring function, which is surely of
great importance. But I urge more appreciation
of the importance of having relatively
objective evaluations of fact finding in
constitutional challenges to government action. Article III courts bring
independence and procedurally regular and adversarial
methods of the judicial process to decision-making that can
be very helpful in evaluating whether the facts on
which legislation is based exist within some range of
reasonableness or plausibility. We live in an age of
truthiness, a word coined by Stephen Colbert in around
2005, an age of fake news, of legislative polarization, and
as Senator John McCain recently complained, a decline of
regular order, the existence of what some call kabuki
theater in legislative hearings, to say nothing of the
relatively new conception of alternative facts. In this period, courts are
among the major institutions of government perhaps
most likely to provide publicly transparent and
impartial public interest in decision-making
about facts relevant to the constitutionality
of laws, whether under proportionality
review or other doctrines. So deference may be appropriate,
as Thayer, Holmes, and Brandeis in different ways urged. But I suggest it
should be deployed in ways responsive to the facts
about different governmental decision-making processes. Brandeis, in particular,
urged deference because he thought generally
legislatures were seeking to advance social justice in
ways responsive to developing social facts. I think Brandeis
might well have been alert to the new
facts surrounding the legislative process. His biographer,
Philippa Strum, has written, “Although
Brandeis did not address the problem
directly, he presumably would have followed
his own logic and said that if the
legislature failed to amass factual data
before enacting a statute and its lawyers
could not themselves demonstrate its
social rationality, the law should be struck down. Where other branches
do not engage in anything that could
be fairly characterized as an objective consideration
of social facts, courts may need to be
less deferential in order to help keep our constitutional
system in balance.” Thank you. ADRIAN VERMEULE: Are
we going alphabetically or in order of seating? IMELME UMANA: Seating is good. FREDERICK SCHAUER: You’re up. ADRIAN VERMEULE: Thank you. Thank you for having me. I want to thank the
Law Review and the Dean for convening this. Imelme gave me an
assignment, which was to speak for less
than five minutes about how Harvard has
shaped administrative law. And having an
extraordinarily literal mind, that’s what I propose to do. [LAUGHTER] So to invoke John’s example,
I will meet you for lunch at 1:00 AM, so please be there. OK. And an interesting
question, if anyone wants to do a
student note on this, you could correlate people’s
views about textualism with their literalism
in their personal lives. I think that would be
an interesting question. [LAUGHTER] So there’s a problem about
the Harvard tradition of administrative
law, and the problem is an embarrassment of riches. The tradition’s just too
rich, and the current bench is too deep. And I think that’s
because Harvard’s always been way more directly involved
with government than a number of our putative peer schools. So just a few names of famous
Harvard administrative lawyers, in no real order. But, you know,
Roscoe Pound, Dean and architect in
part of the APA, or of one sort of
take on the APA– I’ll get to that in a second– Felix Frankfurter, Supreme Court
Justice, and faculty member James Landis, chair of the
SEC, Dean Louis Jaffee, professor and one of the
great legal theorists of the 20th century, Clark
Byse, Antonin Scalia, Supreme Court Justice, Stephen
Breyer, Supreme Court Justice, Elena Kagan, supreme
cour justice. All of these are central figures
in American administrative law. Among current faculty,
it’s almost absurd. Jody Freeman, Jake Gerson,
John Manning, Todd Rakoff, Daphna Renan, Matt Stephenson,
Cass Sunstein, and I could go on. It’s quite remarkable,
our administrative law richness here. The way of breaking
down this richness maybe is to think about
Harvard’s influence both historically
and conceptually. So let me try those two in turn. Historically, we might
distinguish some very broad eras of administrative law. This is almost cartoonishly
oversimplified, but in the interest of
time, the New Deal era, the kind of new settlement of
the Administrative Procedure Act in 1946, the
legal process era, the problems of the
Great Society in the ’60s and ’70s, the bipartisan growth
of presidential administration and technocratic
managerialism after about 1980 and continuing until
today, and most recently, what we might call the legalist
and originalist critique of the constitutional
underpinnings of the administrative state. In all these areas,
Harvard lawyers have been leaders in
one way or another. So I mentioned
Frankfurter and Landis, both intellectual architects
of the New Deal, as John said. I mentioned that Roscoe
Pound, on behalf of the ABA, was a kind of ringleader of
the conservative bar’s counter attack, if you like,
on the New Deal, resulting in a kind
of peace treaty– that is, the Administrative
Procedure Act. I think it’s best seen
as a kind of a peace treaty between
different social forces struggling over
the shape and scope of the administrative state. Jaffe wrote a treatise
on judicial review of administrative action
that defined the field for a whole generation. For the legal
process generation, this was this sort of
quasi official view of the administrative state. Coming more into our own era,
Steve Breyer and Cass Sunstein have been central in the
effort to rationalize administrative
governance, especially through cost benefit analysis
and through executive branch institutions. In one of Breyer’s
early books, he called for the
creation of a office within the federal government
that would essentially use cost benefit analysis
in a synoptic way to rationalize administrative
programs across a range of federal bureaucracies. And OIRA, the Office of
Information Regulatory Affairs, has come to be
something like that, starting with Ronald Reagan’s
cost benefit executive orders in the early ’80s. Moving into the Clinton
administration, the George W. Bush administration, the
Obama administration, a growing theme is
presidential administration. And where to look for
understanding of this, well, Elena Kagan’s article
on presidential administration published in the
Law Review in 2001, is the master text for this. And it has shaped
our understanding of this phenomenon ever since. And last but not least, I do
want to mention John’s work, because his work bridging
constitutional and administrative law
has in important ways laid the foundation
for some very central current controversies. So one of the main controversies
in administrative law today is the role of
judicial deference to agencies with respect to
both statutory interpretation and agency interpretation
of their own regulations. And a lot of this goes
back to John’s work about the constitutional
underpinnings and limits of deference. So historically,
Harvard people have been leaders at every stage. Let me also offer, however,
a conceptual lens as well. I have to be
grandiose for a moment and say that the
administrative state has always been a terrain for
a kind of cyclical, if you like, struggle
among competing principles of legitimacy. These are competing
principles that try to make sense of the
administrative state, given our 18th century
constitution which says almost nothing about
the vast bureaucracy that governs us today. So these principles
appear, reappear, go in and out of fashion. It’s somewhat akin to
the eternal struggle among East Asia, Eurasia,
and Oceania in 1984. And we might call them
democratic accountability, technocratic rationality,
and legal validity. So these are the
principles I discuss in my essay for the Law Review. And here too, Harvard figures
have been central in each camp. So Elena’s article on
presidential administration emphasizes democratic
accountability. Jody Freeman’s work has
said important things about democratic accountability,
in particular with respect to the problem one sees
over and over again in the administrative
state nowadays, which is how to manage administrative
problems under statutes decades old that can
no longer realistically be updated because of
the essentially broken national law-making process. Technocratic rationality
I’ve talked about. This is Breyer and
Sunstein and others. Legal validity,
I want to compare and contrast very briefly
Roscoe Pound in John’s work. These have different emphases. So Roscoe Pound’s focus
was on common law legalism and an attempt to
retrench, as against the administrative
state baselines derived from the common law. John’s emphasis
is very different. It’s on a written
textualist constitutionalism and its structural implications
for the administrative state, but there is a shared legalist
orientation across these two Harvard Law deans, I believe. So both historically
and conceptually, administrative law
has fundamentally been shaped by Harvard. And I think that’s true
of no other school. And I want to conclude with
just a thought experiment. Imagine that one or another
of the leading American law schools had simply
never existed. Which one’s absence
would have the greatest effect on administrative law? So I can certainly
imagine administrative law without Stanford. Even more easily I can
imagine it without Yale, although my normative views
may be infecting that part of the thought experiment. I think the loss of Chicago or
Columbia would be more serious. That is, maybe particularly
without Columbia, administrative law would be
missing a limb or something, but it would still
recognizably exist. I just think it’s impossible
to imagine administrative law without Harvard. In some sense, there
wouldn’t be a field to talk about
because of the role, especially of the early
architects, both pro and con the
administrative state– Frankfurt and Landis on the one
hand and Pound on the other– in shaping what we now think
of as administrative law. So thank you. FREDERICK SCHAUER: So my
somewhat daunting assignment has been to talk about 200
years of jurisprudence, 200 years of legal theory,
with a focus on the Harvard Law School. And I do that in this issue
in an article entitled “Law’s Boundaries.” I should mention that
it is good to be back. I spent many years here, and
I’m delighted to be back. So in 1906, at a
memorial service for the often mocked
Christopher Columbus Langdell, Joseph Beale, himself also
often mocked these days, observed that Langdell’s
students complain not only about the method,
as Jeannie talked about, but also that what Langdell
was teaching was not law. Huh? How could anybody possibly think
that English and American cases on contracts and suretyship
and the like were not law? And the answer is that
prior to Langdell, the prevailing view
was that law consisted of enduring principles set
forth in legal treatises. The cases were mere
illustrations, mere examples. And so when Langdell
insisted that cases were law, that they were the
primary materials of law, that was, in fact,
a radical departure. He not only startled and
annoyed his students in that, but he expanded the very
idea of what counts as law– that cases were themselves
law, they counted as law, was itself an expansion of what
was understood to be the law itself. The point of the anecdote
is to suggest not only that many of the most enduring
jurisprudential debates of the last 200 years have
been about what counts as law, about the law and
non-law boundary, and indeed about whether there
even is a law and non-law boundary, but also that
many of these debates have taken place literally or
figuratively at the Harvard Law School. Thus, even post Langdell, we
have Oliver Wendell Holmes insisting that the
life of the law was empirical experience and not
syllogistic or even inductive logic. And Holmes also suggesting
that knowledge of statistics– which for Holmes meant the
broad area of empirical inquiry and not statistics in
just the narrow sense– knowledge of
statistics was the key to the future mastery
of law, and not just knowledge of cases and
formal legal doctrine. In that sense, he challenged
Langdell not only about logic in the narrow sense but
challenged Langdell in terms of just what counts as law. Where do the law’s
boundaries lie? Then we have Roscoe Pound,
more of a legal realist than his well-known debates
with capital R Realists might suggest, seeking
to expand the law to encompass a huge swath of
sociological psychological, political, economic, and
other empirical data. The important
contribution of Pound was not only that
these were also fields that people trained in
law and practicing law should know about and use, but
that these were fields that were themselves part of law. They were within
law’s boundaries rather than something just
outside of law’s boundaries that lawyers should know about. If we jump up ahead a
little bit in history, we find Lon Fuller insisting– and I should
mention as an aside, I took jurisprudence
from Lon Fuller. I know that for
some of you, that’s like describing personal
experiences with Joseph Story or John Marshall. But I took jurisprudence
from Lon Fuller. Lon Fuller insisted,
most prominently against HLA Hart, no
relation to Henry Hart, in their 1950 debates in
this very institution, that law included
morality, particularly Fuller’s particular variety
of procedural morality. But the basic idea was
that law included morality, that the understanding
of what law was was that morality was a
component, a constituent part of law itself. A little bit thereafter, Harvard
Law School graduate Ronald Dworkin, arguing again
against HLA Hart and others, insisted that moral, legal,
and political principles were part of the law,
and a part that could not be captured by a so-called, as
the legal positivists put it, rule of recognition that enables
us to pick out what is law and what is not. For Dworkin, moral, legal, and
political principles are part of what judges do,
they are part of law, and that law cannot be
encapsulated by any conception of a rule of recognition. Most recently,
Harvard Law School graduates Judge Richard
Posner and Justice Stephen Breyer, the latter also for many
years a faculty member here, have very controversially been
at the forefront of the view that it is both appropriate and
necessary for appellate judges to engage in their own empirical
and factual and scientific research, even extending to
sources not litigated below, and even extending to
sources not contained in the appellate
record or the briefs. This is not just a debate
about legal research by appellate judges. It is a debate about
what counts as law. It is a debate about
law’s boundaries. It is a debate about the
very conception of law. All of these debates are about
the central jurisprudential question of our time. Is law a limited domain
of pedigreed authoritative sources? Or, as people at this
institution going back as well to Duncan Kennedy and legal
formality in the early 1970s have argued, is it domain
that cannot be identified, cannot be limited by any
particular form of, as I said, rule of recognition? And even if the idea of
a rule of recognition can indeed explain all
of this expanding domain, then what is or should
be the nature and content of that rule of recognition? These debates about
what counts as law and what does not count as
law are likely to continue. They are very likely
to take place, as they have in the past,
at the Harvard Law School. Thank you. IMELME UMANA: Great. So just a few questions
before opening it up for Q&A. Of course, I
think a common theme across these remarks
is that you’ve described how Harvard has had
obviously a huge influence on shaping the law. And I kind of want to turn to
a more normative question about whether or not
this concentration of outside influence at
Harvard has been a good thing. Although I think I know
Professor Vermeule’s response. But Professor Suk
Gersen, you mention that you disagree with
Professor Duncan Kennedy’s fear of the Socratic
method reproducing hierarchy, and Professor
Vermeule, the very influential dialogue you talk about about
the administrative state, though across generations,
it was largely contained to Harvard– albeit of course,
an embarrassment of riches in one sense–
and Professor Crenshaw, you speak about how
these conversations about legal education
reproducing racial hierarchy are not new to today, they’ve
been around for a while. And so has the critical race
project gone far enough? And if not, is Harvard to blame? And so, even if we can agree
that the legal traditions that came out of Harvard
were good, how should we think about where
they came from, and who was wielding
power at the time they were developed in
thinking about the traditions? So that’s for anyone. VICKI JACKSON: OK. So in my paper, I suggested
that there were both good things and bad things. I think that to the extent that
Justice Holmes was read to say, don’t think at all about
justice when you’re doing law, I think that’s a
negative influence. On the other hand,
there’s much that’s positive about the
developments, including the emphasis of the
three thinkers I wrote about on the importance
of legislatures and how to think about
that is something others have comments on. So I’ll subside. FREDERICK SCHAUER: Let me
say one very quick thing about outside influence. Let me be the skunk at
a picnic for a moment. I think it is wonderful
and entirely appropriate that Harvard celebrate
its influence. But at least in
jurisprudence, especially in an analytic version
of jurisprudence, let’s not forget that there are
also important traditions that have not taken place here. That if we start
with Jeremy Bentham and go from Jeremy
Bentham to John Austin, from John Austin to Hans Kelsen,
from Hans Kelsen to Joseph Raz, there is a long,
analytic legal positivist tradition that has largely
taken place elsewhere. Whether that’s a
good thing or not, I will leave for
people to talk about and argue about and so on. But much of Harvard’s influence,
as I tried to talk about, has been about this
question of what counts as law and
about legal reasoning and about what
judges do, and so on, as well as various other topics. There are other important
strands of jurisprudence that are less
judge-focused of which certainly the work of Bentham,
Austin, Kelsen, and so on is an example that
may have taken place or had less connection
with Harvard. I’ll leave it for
others to decide whether that’s good or bad. JEANNIE SUK GERSEN:
And I will say on the topic of legal
education and this method that now, within a few years
of Langdell introducing it, really became the dominant and
universal method at law schools all over the country, much too
many law students’ chagrin– and Harvard is to blame
for that development– but also I think you said that
I disagree with Duncan Kennedy. I don’t quite disagree
with Duncan Kennedy. I believe absolutely that the
way it was used, and maybe even is still being is
in some contexts, really was, in fact, to
do exactly as he said, which was to retrench
hierarchy, to reproduce it, and also to oppress
students, and to suppress their individuality, and
autonomy, and all of that. However, I have to say that as
a student at Harvard Law School, the classes in which I
experience the most freedom to think and the joy
of debate and conflict, the exploration of ambivalence,
all of that was achieved, when I was a student, through
certain faculty members’ uses of the Socratic method. And there’s a way in
which we should not impart all of the
ways in which it has been used to the
actual inherent qualities of the method itself. It is a tool, much like law. And different things
have been done with it. And I really hope that
these explorations about how it’s being
used can develop teachers and their approaches,
as well as students’ orientation toward it. KIMBERLE CRENSHAW: Well,
I guess since my song was a little in the key
of sort of C minor, to continue the kind
of implicit story– so Harvard’s
influence, I would say, around questions about how
race and law are thought about and talked about can be
expressed in the fact that the response to us created
a moment of galvanizing both traditional civil
rights constituencies– and I’ll say more
particularly, the civil rights establishment– to identify the
kind of conversation that we were having
here as being, in many ways, the same
kind of conversation that they were
trying to suppress on the other side of the line. In other words to talk
about race and power and law in the same sentence sounds
like we’re talking about racism. It sounds like it is
precisely the thing that we’re looking to law to transcend,
not to in some way embed and normalize. So for many of us in that
post-civil rights generation, this moment was shocking. For us, many of
us thought we were doing at the law what our
predecessors were doing at the lunch counters, that
we were more or less staging an intellectual sit-in
at the site where race and power were normalized. But when the response from
many people that we respected identified us as outliers,
and the institutional response to that was to double down
on that outlier status, I think that had an impact
on the capacity and the way in which these conversations
might have been replicated more broadly had it not
been for the backlash, or had it not been
for the retrenchment. And then I’ll say, just
that at a higher level, one of the conditions
of possibility for the development of this
critical way of thinking about race and law was the fact
that critical legal studies was also in the building. So we had access to
both faculty members who were willing to support
the independent study, were willing to support
the alternative course, willing to bring young scholars
into intellectual spaces and groom them to
be legal scholars. Critical legal studies
was largely crushed, and the crushing of
critical legal studies contributed to the
failure of other spaces to provide precisely
that kind of onboarding for these kinds of projects. Now, that doesn’t mean that
people of color and women weren’t coming
into the profession in significant numbers
around the ’80s and the ’90s, but that’s also a
product of the fact that the profession was growing. So women and people of
color had a stake in that. They had more access to
these jobs than before. But the terms upon which many of
the second and third generation came into the legal
profession were already shaped by what
had happened here, the tenure denials,
the way in which Harvard was
presented in the news as basically being the
outlier, the place where if we really want to
defend law, we have to push out this conversation. So when you ask about, has
the influence been negative, I would say that
the story that I try to tell about
the ongoing salience and significance of
critical race theory is a tale against the
dominant way in which many of these conversations
that were begun here and shut down in
particular ways here has been replicated elsewhere. So some of this stuff is
in spite of the backlash against this set of ideas. JOHN MANNING: So I
think if you look at the long sweep of
history of this law school, a couple of things stand out. So one is, we’re a
very big law school, and that means we’re
large in scope, but also large in the scope
of ideas that take hold here and that flourish here. And one of the
things that struck me in working on the
essay I worked on here and in thinking about our
history over the last number of years is how
many times you’ll find the leading voices on both
sides of an important debate here. So if you go back and
you looked at Langdell, the great formalist,
where was the beginning of the realist response to that? It was Oliver Wendell Holmes,
another Harvard person. They’re having an argument
about the nature of law. You fast forward to what
Professor Vermeule was talking about, and you have a
really very deep struggle over the shape
and the legitimacy of the administrative state,
and who are the leading voices on both sides. The leading architect of the
intellectual defense of the New Deal is James
Landis, whose book, The Administrative
Process, remains the sort of most influential
defense of a form of government that doesn’t fit neatly
with a tripartite view of the separation of powers. And on the other
side is Roscoe Pound, arguing that the
deproceduralization of law is a threat to liberty. And so again, it’s Harvard
voices on both sides. And if you move forward and
you think about sort of, really, three movements
that have been prominent here in the last 50 years– so you have the legal
process movement, which was sort of the dominant view. It was predicated
on a notion that we can identify
reasonableness, and which is itself premised on
a notion that there’s a capacity for consensus. And then also out
of Harvard comes the critical legal
studies movement, which is a critique in
part of the legal process theory, and also modern
textualism and formalism, also a critique of
legal process theory. And all of these have
very deep Harvard roots and are associated
with this law school. And I think one of the things
that we’ve tried to do, and I think been successful
in doing in many instances, is to encourage a kind of
disagreement that produces productive debate,
and that makes us better at what we
do, and brings us closer to understanding and clarity. IMELME UMANA: Another these
across the essays, at least– and many of the
remarks have been pointing to legal
scholarship and identifying that as an example of
Harvard’s impact on the law. And Professor
Schauer, your essay notes that the debate between
Hart and Fuller, of course, took place in the pages
of the Harvard Law Review. And Professor Manning,
you know the impact. One of the first skeptical
accounts of legislative intent was then Judge Oliver
Wendell Holmes’ famous article on the theory
of legal interpretation. And Professor Jackson,
you mentioned also his path of the law. So I was wondering if this
highly consequential nature of legal scholarship
may be a focal point for thinking about the future
of Harvard’s impact on the law. Many students here today
are on HLS journals. And bearing in mind
that, of course, when you publish an
article, you privilege one specific type of
understanding of the law or a legal tradition. And also recognizing that,
as this panel represents, these series that we
publish today kind of can carry over for decades,
if not centuries to come. And how, if at all,
should students think about or
internalize a future of normative implications for
selecting works on journals? FREDERICK SCHAUER: Let me say a
tiny thing anything about that. One of the things
about the debates that we’ve all
been talking about is that they were debates. And I think that, at least some
of the ones that I mentioned, the major contributions have
been presented as counterpoints to the views of others. Holmes responds to Langdell. HLA Hart responds
to John Austin. Dworkin responds to Hart. Fuller responds to Kelsen. And it may be
important to recognize that a perfectly legitimate
and maybe even better form of scholarship is
to recognize that we build on the work of others. It is less important
to say, here is my brand new theory of truth,
justice, equal protection, and the American way of
life than engaging directly with someone else. All too often in the
worlds in which we travel, direct engagement with the
scholarship of someone else gets derided as derivative
or something of that sort. That’s a mistake. None of us are truly novel. None of us are truly original. And the more that we can engage
with what has been done before, including on the pages of
journals like the Harvard Law Review, I think the
better off we are, and the better off we
are in understanding our own limitations
and our own modesty. VICKI JACKSON: I had
jotted down notes that were basically identical
to what Professor Schauer just said. My experience is that
claims of newness, claims of complete
originality, tend to be very appealing to the
student edited journals. And it is something to
be very cautious about. I couldn’t agree more that it
is the engagement with the work of others that often yields
the best understandings and advances knowledge. And it’s hard for students who
are in the process of learning these bodies of law literature
to always know enough to be able to situate work. So on the other hand, I think
the Law Review has developed really good practices of asking
people with more experience to provide a little
bit of advice, and you have a wonderful
internal vetting process. But I just want to associate
myself with Professor Schauer’s comments. KIMBERLE CRENSHAW: Well,
going back to C minor, I guess I want to lift up a
possible way in which students might hear what
has been presented as both sides of debates. And at least with respect
to critical race theory, a question about whether
both sides of the debates are even familiar to people. So one of the reasons
why I wrote my piece as an interrogation of
race liberalism is I think many people think
the two sides of the debate are between race liberals
and conservatives. There is a debate,
and that has been largely what has been reproduced
in law reviews for the last 30 years. What has not been
reproduced in law reviews is, in fact, that
there is a deeper conflict between race liberalism
and critical race thinking. And as far as
that’s concerned, I would think that
perhaps students might infer that if they were
interested in that debate, perhaps that is not a fully
legitimate framework to engage. It is not one in which
it is often mentioned that we have both sides. Most institutions do not. Most law reviews do not
publish in this arena. So we could either
take this moment as a moment of saying
and reflecting back how have we come to this. And given that
Harvard is very much a site of the development
of critical race theory to engage in a
corrective discourse around that, which would
mean publishing more, which would mean understanding
that actually liberal race liberalism is not the same. Or it could be that this is
just a part of our history. We could probably identify
other debates that at one point in history
were significant that no longer grace the
pages of the review, or no longer are
clear areas of study and areas of teaching
that a school like Harvard or other places would do. But that is a question
that I would be surprised if students didn’t notice it or
think that it was meaningful. ADRIAN VERMEULE: Just in the
interest of conversation, I want to register
maybe a partial dissent from the Schauer-Jackson view. So let me explain. And let me come at it
negatively by just saying a word about the
pathologies of peer review and contrasting it with a
possible virtue of the law review publication process. So standard pathologies
of peer review arise when you have a group
of established scholars who more or less
control a field. And the most obvious
risk is suppression of alternative viewpoints. And I don’t actually
think that’s the risk that most often materializes. I think the risk that
most often materializes is suppression of
alternative subjects. That is, these
established scholars keep making people talk
about the same topic over and over and over again. And I tend to think
this is maybe something that Fred disagrees
with, but I tend to think that a problem with
jurisprudence, Anglo-American jurisprudence, has
been the inability to stop talking about
ever more refined versions of the positivist problem
out to the 14th decimal. And this is actually
an example– this is actually an
example of the phenomenon I’m talking about. In light of that, what’s
the virtue of the law review publication process
is that there’s a certain kind of freshness
that arises when law reviews are more open to allowing
scholars, especially sometimes younger scholars,
to bring wholly new subjects to the table. And sometimes,
these are scholars who actually know something
about the world that is less familiar
to people engaged in the current problematics. So just to tie it to one of
the examples I mentioned, Elena’s article on
presidential administration came from an important
part from her experience in the Clinton administration. And its great virtue
was that it brought to light a set of
practices and facts about the world that
had not previously been on the radar screen of
many administrative lawyers. So it wasn’t just another move
within a conventional topic or within a
preestablished topic. It was bringing to the table
a whole new set of problems. And I think the law
review process makes space for that in
a way peer review doesn’t, and that’s something
not to lose sight of. FREDERICK SCHAUER:
I should mention, I actually agree with
Adrian’s example. There is a reason why in
talking about the history of jurisprudence I
might have stopped– Posner and Breyer apart in terms
of their use of other sources– might have stopped in 1980
in what I wrote and so on. I mean, we do not need one
more article on inclusive versus exclusive positivism. And the great and deep
and profound insights of at least many of the
figures that I mentioned and some number
of others have not been matched in contemporary
work, which gets too refined for its own good. So no disagreement on that. IMELME UMANA: So I think we have
time for one or two questions, if anyone has them. Yes? AUDIENCE: So thank you. This has been really,
really wonderful. One kind of overriding
theme of many comments has been the
pedagogical influence of Harvard Law School
nationwide, something that I think many of us forget. We’re too ensconsed
in Harvard Law School, to Professor Suk Gersen’s
comments about Socratic Method. But also the fact that
Harvard Law School itself has often been so court-centric. And it really struck me from
Professor Jackson’s comments that when you asked
in class about what aesthetic council should
do, what the senate should do with a particular issue,
they cited Justice Holmes and said fairness can’t
be taken into account. But Justice Holmes was
focused on the judiciary and actually said, if I were
a legislator in [INAUDIBLE],, I might do something different. And so one of the things– I know you’ve thought about
this, Professor Jackson. Is there a way in which
the Harvard Law School could get away from
the court-centricism of its teaching
and start to think about the way other
institutions may approach legal questions, whether
the interpretive enforcement of constitution provisions
and other such things. So, for anyone. JEANNIE SUK GERSEN: Yeah,
I’ll just go first on that. Yeah, I think that that is
one of the disadvantages that we have inherited because
of the Socratic method, the case method. The two of them are
so tied together that our dominant pedagogy was
originated at the same moment– that this was about cases
and the work product and the written
product of judges. And that, of course, contributes
greatly to this court obsession that we have, starting
with the very materials that we’re studying. I think that over
time, we can decouple that method of questioning and
of debate and of discussion from the idea that what we’re
doing is only studying cases. And because, obviously, there
are many, many different kinds of materials in the
world that one can have this questioning process over. And I think over time,
we do see that we are no longer exclusively
doing the case method. We’re looking at
different materials. We’re looking at
legislative materials. We are engaging in exercises. We’re not just asking
students to pretend that they were judges,
and what would they say about it as a
judge, but rather asking them to do exactly
the kind of things that Vicki asked
her students to do. I think that there’s more
of that going on now. And even staging things
like client meetings– not just oral
argument in a court, but in legislative hearings
or different negotiations. I think more and more teachers,
even though their mainstay might be the Socratic method,
that might be their go-to, they have more and more of those
different approaches coming in. And I think over time, we’ll
see a much more diverse of materials. VICKI JACKSON: I agree
with what my colleague has said in terms of the
practice at the law school. I will tell you how I
made a minor adjustment in how I taught
subsequent federal courts classes that worked. And so what I did, either right
before that or at the beginning of classes is I said,
now sometimes, I’m going to ask you a question
about what legislatures should do, and you need to know
that good lawyers need to have the skill of
persuading decision-makers that what they’re
being asked to do is not only consistent with
the law but the right thing, because decision makers
like to feel that they’re doing the right thing. So part of being a good,
well-trained lawyer is to know how to make arguments
from justice and from fairness. And once I said that in
class, that problem got fixed. Another approach is
I’ve been trying, so far without much success,
to generate scholarly interest in the idea of more
fully articulating what a good constitutional
representative does. We have a very thick idea
about what good judges do, although it’s very contested. And I’ve been trying
to spark interest in a similar conversation
about representatives, about which I sought
advice from Professor Schauer many years ago. I don’t know if you remember. FREDERICK SCHAUER: I should
mention in this regard, the other side of my life
does a little bit of writing about free speech issues. In my teaching and writing,
the most important institution for me at the moment and for
my students and in my classes is the Charlottesville
City Council. I live in this newly
famous community of Charlottesville, Virginia. What the city council has
done and what it is doing and what it is thinking
of doing is now central to how I think
about all these things. JOHN MANNING: I just
sat on a university committee put together by the
Bok Center about case learning. And what’s happening in other
parts of the university is that they’re trying to move in
the direction away from– which we did more
than 100 years ago– away from lecturing
and more toward problem-oriented and inductive
ways of teaching and learning. And so I think there are
a lot of different ways that you can use cases. So in a lot of other
schools, they put together case studies that
unfold a problem, and then you analyze
the problem that’s presented in the case study. And anybody who’s taken
the California bar will know that there’s a big
chunk of the California bar that’s built this way. It’s not pleasant. But there’s a way of
thinking of the cases that we study as sort
of collecting a problem, identifying it, laying it out,
and an opportunity to look at all aspects of the problem
rather than simply trying to figure out what’s the
holding in this case, and what’s the reasoning. And I think that’s a very
good way of using cases. And I hope that we’ll use
them more in that way. To me, one of the advantages
of actual cases versus case studies is that
they focus the mind on a problem that’s happened. And for the same
reason that judges want cases or controversies
because it sharpens and focuses the mind, to me, an
actual case or controversy sharpens and focuses
the mind in a way that I sometimes find case
studies to be more diffuse. That may be a point of
personal preference. And there are different ways
that people like to teach and different people
like to learn, and I don’t think there’s
any one right way on this. But to me, I think that is an
advantage of the case method. IMELME UMANA: Thank you. It’s 12:30. I think we’ll have to end there. And I certainly cannot think
of a more knowledgeable group of scholars to provide us
with such a rich perspective on the history of Harvard
and its influence on the law. And so I think it’s
fitting to give this panel a round of applause. [APPLAUSE]

Leave a Reply

Your email address will not be published. Required fields are marked *