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Edgar Cahn's Challenge to Harvard Law Students

Tuesday, December 17, 2013   (0 Comments)
Posted by: Joe Libertelli
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UDC Clarke School of Law Professor Edgar S. Cahn, Co-Founder of the Antioch School of Law, recently addressed - and challenged - Harvard Law students with the remarks below.   

Legal Education - Unasked Questions - Unwelcome Answers - Where Next?

Edgar S. Cahn

The official mission of Harvard Law School is: "To educate leaders who contribute to the advancement of justice and the well being of society." I promised some Unasked Questions. By way of preface, here are some of the ones I think are worth asking:

● What is justice?

● Does your law school promote justice or injustice through its admissions?

● What happens when the real injustice is systematic and therefore requires system change?

● Are you being trained to challenge systems or just deal with some of the road kill inflicted by the system?

I am an outsider here. A Yale Law School Graduate. And since, when I graduated from Yale, I was incompetent to help anyone else – had never seen a client, negotiated a contract, been inside a courtroom, I thought, wouldn’t it be nice if, after three years, one was actually competent to help someone. And wouldn’t it be a good idea if graduates had an idea that law was a calling, not just a way to earn a living.

So a few years after graduating, my wife and I launched a new law school. Before then, we had launched the Legal Services program in the War on Poverty – but we did not think much of the kinds of graduates coming out of law school those days. So we started our own law school. The Antioch School of Law. All incoming students had to actually live with the clients for the first six weeks. Maybe, that is why it is now the University of the District of Columbia David A. Clarke School of Law -- the official public law school of the nation’s capital.

We worked with people like Garry Bellow, one of Harvard’s legends who founded your own Jamaica Plains office. I want to acknowledge the steps that Jeanne Charn, Charles Ogletreem many others and certainly your dean, Martha Minow have taken and are taking to change Harvard. And one of our two sons, Jonathan Cahn, is a graduate of Harvard Law School – so I don’t hold that against you. In fact, he has done a number of things I’m quite proud of – as counsel to the African Union NEPAD bringing the internet via submarine cable to most of Africa, as counsel to the Government of Guinea regarding development of a railroad and a deep water port, as counsel to the government of Kazakhstan on constitutional reform, civil law reform, and economic reform, and external debt and using his expertise in resource financing to ensure that peoples in the developing nations got a fair price for the extraction of oil, gas and other resources by American corporations.

So let’s get back to my questions --

Question 1. Has any professor asked you: "What is justice?" At my law school, the very first class they take is titled Law & Justice. And we ask another question: "What do you know about injustice?” Each and every student shares the essay the essay he or she wrote in their admissions application: "Describe an instance of injustice to which you were personally subjected or that you personally witnessed. What did you do then? And in retrospect, what would you do now?" So we get educated by the students. More specifically, I get educated by my students - because I teach that course. And we believe the profession is enriched by the addition of a stream of graduates who actually know something about injustice!

And since the course is called Law & Justice, I put myself on the line to share the definition of justice which my father taught me.

He didn’t think human beings could grasp what justice was. It was too general, too vague, too abstract, too ideal and absolute. But he believed and I believe we are born with an innate capacity to recognize and respond to injustice, to disparities of treatment or outcome that were so unjustified as to be simply unacceptable, intolerable. As a starting point in your legal careers, I ask my students to adopt as a provisional definition the one that my father, the legal philosopher Edmond Cahn taught me:

Justice means the active process of remedying or preventing what would arouse the sense of injustice.

That may be "unwelcome answer” number one.

Now Question 2. What happens when law schools, however inadvertently, promote injustice by limiting access to the profession? Do you know that the LSAT does not even purport to predict lawyering competence. It only predicts test taking capacity. There is extensive documentation of the racial and ethnic disparities in standardized testing performance and its effect on admission to law school.

Do you know that there is an admissions test that does not have a racially discriminatory impact on admissions and that is far better than the LSAT in predicting success as a lawyer. It was developed at Boalt Hall, University of California at Berkeley. [Marjorie Shultz and Sheldon Zedeck, Predicting Lawyer Effectiveness: Broadening the Basis for Law School Admissions Decisions, 36 Law& Social Inquiry 620 Summer 2011] It measures personality constructs, interests, values and situational judgment. This alternative admissions test draws on an extensive study that found 26 factors important for lawyering effectiveness based on a survey of responses from 2,012 alumni of UC Law School Berkeley. You may be interested in this excerpt from their study:

"Significant positive correlations existed between only 8 out of 26 effectiveness factors and the LSAT measures; those found were fairly weak. Correlations existed mainly where out effectiveness factors overlap with skills the LSAT specifically seeks to measure. However, we also found two factors – Networking and Community Service – were negatively correlated with the LSAT.”

That may be unwelcome answer number 2.

Unasked Question 3. What do we do when an entire system that we study perpetuates injustice, and responding to injustice requires system change? You will be studying different systems where law suits have been brought: health care, juvenile justice, criminal justice, child welfare, urban development, environmental protection. Many of those systems are broken in different ways. They fail to fulfill their critical public purpose.

How do we deal with whole systems that don't work. In clinical programs, we represent individuals and also bring class actions. -- but typically our cases involve randomly selected casualties, road kill of broken systems. For instance, take special education litigation. At my law school, we secure an IED for one or a dozen students- but there is not a single public elementary school in the wards of Washington DC where most of our children grow up where even 50% of the third graders enter fourth grade able to read at a third grade level. And in some of the schools, only 15 or 18 or 25 percent have attained adequate third grade competence.

So is law school providing you with the tools needed to effect system change? There is received wisdom on strategies to change closed systems.(See Leon de Caluwe and Hands Vermaack Learning to Change, A Guide for Organization Change Agents and William De. Eggers & Paul MacMillan, The Solution Revolution) But let me let you in on a secret: the most potent strategy that I have identified builds upon a concept named by Nobel Prize winner, Elinor Ostrom, called co-production: enlisting the so-called recipients, beneficiaries and consumers of services as active co-producers of outcomes. (I know the significance of that concept having given what I thought were brilliant lectures only to read final exams.) The consumer needs to put in some work - and there needs to be a process that transforms them from passive consumer to active co-worker). See Cahn, Co-Producing Justice: The New Imperative. 5 UDCLR 105 (2000) and No More Throw Away People (2000) System change is different from problem solving. Problem solving is what one does on behalf of a client. System change is what is needed to advance a vision of the world we want to create and the world we want to leave for those who come after us.

Unwelcome Answer Number 3. Public systems need more than individual, piecemeal litigation. The answer is not to do away with those systems. We know where laissez faire leaves "inalienable rights” to life, liberty and the pursuit of happiness. As Charles Houston noted: Lawyers are either social parasites or social engineers. We have a choice.

Unasked Question 4. How do we deal with the pervasive racial disparity that permeates virtually every public system (child welfare, academic achievement, school dropouts, juvenile justice, substance abuse, foster care, corrections, health care)? For nearly four decades, the intent requirement set forth in Washington v. Davis 426 U.S. 229 (1976) has thwarted efforts by lawyers for civil rights groups to dismantle systems that produce those disparities. Recently the Kellogg Foundation invested in a Racial Justice Initiative by TimeBanks USA that undertook a new way to turn that requirement into a source of leverage. It builds upon language in City of Canton v Harris, 489 U.S. 378 (1989): intent can be inferred when government policymakers decide among alternatives to follow an injurious course of action, demonstrating a "deliberate indifference” to rights protected by the United States Constitution and federal laws. The really radical idea is this: Can we compel officials to make use of knowledge – knowledge about alternatives that work, that are less expensive and that reduce disparity when current practice generates disparities.

The approach that TimeBanks USA developed involves a public notice forum that puts officials on formal notice of two things: the disparity produced by present practice and the existence of alternatives that have been validated, would save money and reduce disparity. Once on notice, going back to business as usual amounts to an intentional decision to reject making use of knowledge of what works, saves money and reduces disparity.

That means your legal education about remedies needs to extend beyond damages and specific performance to knowledge about the vast array of projects, innovations, and creative alternatives that have emerged and will continue to emerge. Harvard is a vast repository of such knowledge gleaned from foundations, government research and extensive academic research. The question for your legal education needs to be: is Harvard merely a Mausoleum for the storage and burial of that knowledge? It is time to ask: What is Harvard prepared to do, and what are you prepared to do to convert that knowledge into a catalyst for change?

Unasked Question 5. Have you considered whether the legal delivery system itself perpetuates injustice. I don't know of many lawyers who can afford a lawyer, let alone mere people except the extremely wealthy and mega corporations. Isn't time we look at what we ourselves are producing and ask: what can be done to reconfigure the legal system itself to produce justice. States report that in family law, domestic violence, land-lord tenant, and small claims matters, 65% to 98% of cases involve at last one unrepresented litigant. Efforts to establish a right to counsel in civil cases (Civil Gideon) have been rejected as too costly. So called unbundled legal services (providing just initial counseling) has proven ineffectual. Confronting this reality, new clinically based scholarship is now advancing what is characterized as a demand side approach, that would call on trial courts to start making serious efforts to assist the unrepresented in preserving and advancing the merits of their cases. Procedural reform, evidentiary reform, and quasi-inquisitorial judging are elements. Treating these as system errors calls for system reforms. The same is true on the criminal side where plea bargaining brands people with a criminal record and where minor violations of probation keeps prisons full of persons who have committed no new crime. We need radical system change -- including new models for law practice, new forms of legal insurance, new ways to co-pay for legal services with community service, and more extensive development of law-help software systems to supply the alchemy needed to transform the law's rights and duties, powers and privileges into Equal Justice. My own efforts these days is to utilize co-production: enlisting the clients of legal service programs as co-producers of justice. So TimeBanks USA is now partnering with my law school to provide legal services to homeless veterans in return for them helping other veterans get their benefits and secure housing. Similar efforts are being developed to provide legal help for the elderly in return for their undertaking to "pay it forward.”

So my unwelcome answer number 5 is this: We need new types of law firms and law clinics and legal insurance and loan repayment via community service. And we need to enlist the consumers of legal services as co-producers of justice.

Unasked Question 6. We know that a monoculture in agriculture may produce immediate profits but it depletes the very soil from which that profit is extracted. If we know that biodiversity is essential to a sustainable planet, why do we live with a fiscal monoculture that relies on government issued money as the exclusive medium of exchange? If money is supposed to be so efficient in linking supply and demand, why do we have such vast untapped capacity and vast unmet need. Do we need other currencies with other characteristics to create the kind of world we want. Money does some things with extraordinary efficiency. In The Death of Money, Joel Kurtzman, then executive editor of the Harvard Business Review and former editor of the Sunday Business section of the New York Times wrote that of the Two trillion dollars that change hands in world markets each day, only 20% has anything to do with goods, services or capital investment. Arbitrage and hedge funds account for most of that 80 percent. Arbitrage and derivatives are what Aristotle characterizes as "making barren metal breed.” Our major growth industry, the finance industry, is in the business of manufacturing digits in cyberspace. Economists are now discovering an invisible economy: household, family, kinfolk, associates, neighborhood, community, civil society. It does nothing of economic significance: just rearing children, making neighborhood safe and vibrant, taking care of the elderly, holding officials accountable, advancing social justice, preserving the capacity of the planet to sustain life. Nothing important. The labor pool responsible for the sit-ins of the 60's, the battle to end Apartheid, the preservation of endangered species is not paid minimum wage. Think of a computer as an analogy. The icons on the screen activate powerful, multi-purpose programs: Excel, Word, PowerPoint and all kinds of Internet-based programs. But underlying all of those is an operating system. When it goes down, nothing works. Everything crashes. Well, the operating system of our society is family, neighborhood, community, civil society. The work it takes to maintain that operating system used to be exacted invisibly by labor exacted from the subordination of women, discriminatory wages paid to minorities, exploitation of undocumented immigrants. As we make progress in eliminating subordination, exploitation, discrimination, we need a new operating system. That has major economic implications. If you think that this is just flowery, nebulous, fluffy stuff, ask Bill Gates about whether an operating system has economic significance.

Maybe the redesign and upgrade of the economic system that can underwrite democracy, advance knowledge, provide caring, promote justice and incorporate a distributive system that enables all to enjoy a minimally adequate level of subsistence might be a worthy undertaking -- even for Harvard. Why not ask: how do you use what you are learning to get us there? And why are we not questioning the very nature of the medium of exchange that now defines Return On Investment, Cost-Benefit Analysis – and success as an alumnus?

Unasked Question 6. Does your curriculum, curriculum or any grading system, speak to lawyering competence in responding to injustice? Or is it designed to merely evaluate student test taking competence. I can only tell you that at the law school we designed -- we decided that a simple, overall grade told us nothing so that every clinical professor has to make a separate assessment of competence in problem solving, practice management, professional responsibility, communication (oral and written) as well as legal analysis. And the grading system is based upon risk to the consumer, the client: what degree and intensity of supervision is needed to protect the client from malpractice and to assure appropriate level of competence in representation.

Law is a calling, a higher calling. Harvard Law School’s mission is "To educate leaders who contribute to the advancement of justice and the well being of society." But Harvard Law School itself is a system And as I indicated earlier, the most effective approach to system change is co-production: turning students into co-producers of outcomes. So my last unwelcome answer is this:

All of you, in applying to law school wrote about the work you did to make a difference to other people or to society? What use of that knowledge, of all you know and all you did is being put to use here, is even known by folks outside of the Admissions Office. Many of you, perhaps all of you here today, came to Harvard to gain the tools and credentials you needed to build on what you did before you came to Harvard Law School. Are you learning to put together what you are learning with what you did and the things you want to change and the reasons you came to Harvard?

What do you know about the volume of pro bono and system change work that is done by your faculty and your school. Why not undertake a study that surveys and compiles what is actually done. And why do you not create an award for faculty that recognizes their contribution to system change that advances justice and contributes to the well-being of society.”

So my last unwelcome answer is: It is time for Harvard Law School to embrace co-production by its students to live up to its mission. If not now, when? And if not you, who?

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