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Broken Contract: A Memoir of Harvard Law School.

In Dickens' Great Expectations, there is a law clerk named Wemmick. Wemmick is a mere functionary by day, brusque and legalistic. But when he crosses the drawbridge to his home at night he becomes a different man--his own man: an avid gardener who cares lovingly for his aged father.

Wemmick's bridge is a central theme in a course taught by psychiatrist and author Robert Coles at Harvard Law School. It represents what Coles sees as a deep split in the psyches of many of his students: the values they will embody as high-priced cogs at corporate law firms and the social causes they tell themselves they still support. In Washington terms, it is the gulf between Lloyd Cutler's water-carrying for corporations and his efforts on behalf of worthy causes.

Why, Coles asks his students, do you think you have to trudge off into divided lives? Aren't there other paths--like those followed by Atticus Finch, the lawyer in To Kill a Mockingbird, or in real life, Ralph Nader? Most in the class listen but don't hear, says Richard Kahlenberg, a 1989 Harvard Law graduate who recounts how he narrowly escaped the lemming-like march out of Harvard into the world of corporate law.(*1) "I entered committed to public interest law," he recalls, "but after three years I came within one day of joining the vast majority of my classmates in practicing law at a large corporate firm, a career which I, along with most of them, would find lucrative, prestigious, challenging, and ultimately unsatisfying."

Broken Contract is the story of how Harvard Law School fosters lives divided by Wemmick's bridge. It starts with Kahlenberg's buoyant if wary idealism and concludes with a twist on the ending of The Graduate: Offer in hand from Covington and Burling, Kahlenberg has until April 15th of his third year to come up with a job on Capitol Hill that will save him from a fate he both wants and doesn't. In between, it's a kind of Pilgrim's Regress, in which the son of an idealistic minister, whose heroes are Ralph Nader and Robert Kennedy and who spent a year in Africa before enrolling in law school, gets spiritually derailed by an institution that supposedly represents the zenith of the American legal tradition. Kahlenberg's public service aspirations have an elitist bent; he wants a prestigious position in Washington, only with the good guys. Even so, Harvard Law, and the culture of law generally, do much to evoke the worst in him and little to evoke the worthy.

Though debunking Harvard Law is not exactly new territory, Kahlenberg deals quickly with the tyrannies of the Socratic Method and addresses the larger social point. How does this place manage to take hundreds of the nation's brightest young people, most of whom enter with Leftish politics, and turn them into apologists for the very interests they intellectually oppose?

This issue has been lost in the recent commotions at Harvard Law, including the current one over a callous parody of a feminist article in the Harvard Law Review. These disputes have essentially been intramural: about who teaches at Harvard, what they teach, and whether people there are sensitive to one another. These are all important. But Kahlenberg probes the question that should matter to the rest of us: What do Harvard lawyers contribute to their society after they get out?

The point is not that private practice is always evil, but that so many who enter Harvard get turned away from their original goals. Seventy percent enter saying that they want to do public interest work; 95 percent leave to work in law firms, banks, and the like. This is quite a feat, especially at a time when, to hear conservatives tell it, academia is teeming with Marxists bent on tearing the system down. Harvard Law has its share of Marxoids, known there as proponents of Critical Legal Studies. But Kahlenberg shows--and this is probably his most important insight--how the Crits help create the corporate hired guns they deplore. Deconstructing the law, they deconstruct their students' idealism as well.

Fare Harvard

Much of this story has less to do with Harvard Law School than with the nature of the law itself. I went to the University of Pennsylvania Law School, and it was nothing like the Harvard that Kahlenberg and others have described. It's about half the size, with about a third the pretense. The teaching was very, very good, and I never once felt intimidated or bullied. I was a mediocre student, yet one of my professors--a New Deal trustbuster, Louis B. Schwartz --took a personal interest in me and got me started in public interest work. To some extent, those who strive for the ultimate credential of a Harvard degree get what they deserve, and Kahlenberg isn't oblivious to this point. He's aware that the dread he feels at being called on in class and the overwhelming tension that grips him when the first-semester grades come out stem from the beast in him as well as the one in the school.

Yet even at the benign (at least for me) Penn, it was a lot easier to be drawn away from one's social convictions than to have them encouraged and reinforced. In ways hard to convey, the study of the law tends to diffuse the native sense of right and wrong. "Thinking like a lawyer" means thinking about the 49 things that don't much matter rather than the one that does. In my third year, I signed up for a course in corporate tax, not to become a tax lawyer, but because I thought tax would be a way to understand the workings of the coporate machine. In this spirit of espionage, I took my seat the first day. The professor was Bernard Wolfman, whom I vaguely knew to be involved in liberal causes. Yet we immediately plunged into the murky waters of corporate reorganizations, buy-outs, and the like, and never came up for air. I had no idea what the companies we studied produced or how the takeovers would affect localities and customers. I felt like a trainee in the engine room of a submarine, learning to attend to one gear while the sub plowed on to points and for purposes unknown. Even to raise questions about the social impact of these tax maneuvers would be unmanly. We were discussing important business here.

And you know, it was kind of fun. Once the sheer complexity and weight of it numbs the sense of purpose and you buy into the premise, it becomes a challenging puzzle. There is excitement, an aesthetic kick almost, in devising a clever strategy to minimize what we called "tax exposure." Competition sets in to do it better than the next guy. And best of all, you realize that, in most cases, there are no widows and downtrodden, no clear-cut moral melodramas, only contending groups of shareholders, at whose plight you can become surprisingly indignant. If you aren't doing anything especially noble and right, neither are you doing anything obviously wrong.

The thought did cross my mind that one could make a comfortable living practicing this kind of law and at the same time devote oneself to worthy causes "on the side" (a hypothetical realm of life that becomes ever larger in the imagination as one tries to rationalize the decision to shunt one's better instincts aside). I have to admit too that when the law firms came recruiting during the winter of third year, I put my name on some of the lists. It's hard to explain why--a combination of insecurity, the wearing-down process, and a fear of being left out. Most law jobs entail representing those with the money to pay. In my own case, I was fortunate to have influences pulling in the other direction, but I can empathize with what Kahlenberg was going through. And I had to feel for him when he was grubbing around to raise a little money so he could spend a summer doing public interest work (which to him meant the prestigious U.S. Attorney's office for the Southern District of New York) while classmates were getting offers for the same amount weekly at private firms.

There are other forces at work as well in luring young lawyers to the overrepresented--enormous student debts that turn graduates into a conscripted army for the wealthy, for example. Students graduate from Penn today with an average debt of almost $36,000. (Harvard has an enlightened program of debt forgiveness for those who choose public service work, but undergraduate debts still loom large.) There are the Bacchanalian overtures of law firms, who, according to the placement office, spend more money courting Harvard Law students than the school spends to educate them. After his second year, Kahlenberg makes $1,050 a week at Ropes and Grey, the august Boston firm, to do little more than write memos on tedious aspects of estate law and enjoy fancy lunches and outings. Anyone who still believes in the wondrous efficiency of the private sector should read Kahlenberg's account of a summer spent in legal representation of it.

On top of all this, however, Harvard Law seems to create a peculiar and pernicious undertow of its own. Take 500 or so hyperachievers who think that just getting in puts them several notches above the crowd. Thrust them into a game in which points are awarded mainly for grades, law review spots, and job offers afterwards. And then give them faculty role models who by and large represent the view that the law is an elite calling regardless of whom it represents. At the end, provide a red carpet to jobs that start at $70,000 or more.

Kahlenberg's narrative voice engages trust. Aware of his susceptibility to blandishment and lucre, as well as his insecurity about straying from the pack, he wisely avoids the moralistic high horse, and his assessments of others are measured and thus convincing. he had the foresight to take detailed notes of his job interviews and the like, and this gives his account a novelistic sense of character and scene. He captures ably, for example, the awkwardness of law firm interviews at which he really has nothing to say, and where the main reason for being there--the money--is the one thing that can't be discussed.

Nor does Kahlenberg make excuses: for dropping out of Legal Aid after he marries, for grubbing with the rest for a cherished spot on the law review, or for pursuing clerkships and law firms like a third-generation Sammy Glick. He was all too willing to be seduced, he says. But his honesty gives him standing to deplore the hypocrisy among the student body. The same Lefties who wax indignant when a professor wonders aloud whether it's always fair to exclude a victim's sexual history in rape cases will turn around and refuse to share lecture notes, for fear of helping a rival get ahead. Then they'll cut their hair to impress the recruiters at the corporate firms. (The thing to bear in mind about the ruckus over the law review parody is that three years from now most of the students involved will probably be working to advance the interests of the wealthiest 10 percent of Americans.)

At one point, Kahlenberg walks into a meeting of the Law School Democratic Club in search of a constructive alternative to the Crits. There he hears a black student he calls Jackson Shelby proclaim that "For black people, the difference between the Democratic Party and the Republican Party is the difference between indentured servitude and slavery." "I shook my head," Kahlenberg recalls. "Jackson would be taking his Princeton coffee mug in the summer to Kirkpatrick and Lockhart, a Pittsburgh law firm, which had no black partners and only one black associate among its 118 lawyers. Was this radical rhetoric a way of atoning for his embrace of the establishment?" (My Penn classmate who led the law school protest against Nixon's bombing of Cambodia had spent the previous summer researching franchise law for a law firm, and in a month or so after graduation was similarly employed.)

The faculty, meanwhile, is generally too distant to care. One of the enticements of Broken Contract is the chance to see some of the nation's legal big shots up close. A little to my disappointment, Alan Dershowitz, the legal Zelig found frequently at the side of big-bucks misdoers like Mike Tyson and Leona Helmsley, comes off as basically a good guy, who encourages moral qualms among his students. "Look to your left and look to your right," he tells first-year students. "Because by the time you graduate, there will be no Left." (I wonder, though, if Dershowitz's own lucrative cases subtly rewrite this message: Have qualms, but represent the rich anyway.) Lawrence Tribe, the noted constitutional lawyer, has a boyish enthusiasm and even forgets when the class is supposed to end. Anthony Lewis, The New York Times columnist, is an engaging raconteur but has little time for his students. His only comment on a paper Kahlenberg has poured himself into--delivered over the telephone because Lewis is so busy--is "fine." (Then, too, maybe that's the price of seeking to be anointed by people like Lewis, as opposed to getting a more personal if less prestigious education elsewhere.)

But with the exception of Robert Coles, who isn't a lawyer, and Alan Morrison, Nader's top litigator, who taught a course at Harvard (and who was making $40,000 a year when he probably could have been making 10 times that in private practice), few of these people really push the moral question. For the most part, the school functions as an enabler, providing students with the self-justifications and spiritual numbness they will need when moving on to Blow, Blow & Blow. During his first year, Kahlenberg attends a meeting with the school's public interest adviser (a position since eliminated), who cites estimates from Cutler: 95 percent of the nation's legal time is spent serving the wealthiest 10 percent, 5 percent on the poor through legal services, and virtually nothing on the 160 million Americans in the middle.

"I almost raised my hand to ask why Lloyd Cutler's Washington law firm spends thousands of dollars every year recruiting law students to represent the wealthiest clients if Cutler was really so disturbed," Kahlenberg writes. "But I thought it might be impolite."

Crits and bloods

The Crits are not much better than the rest. They begin with a valid theoretical point: The law is not neutral and objective, but rather reflects the economic interests and power relations that give rise to it. (So what's new?) But where a Nader goes out into the world and tries to right the balance, the Crits write arcane pieces for law reviews, all the while enjoying the handsome salaries and prestige of an institution with which they profess fundamental disagreement. The effect on students is a nihilism that encourages them to just shrug their shoulders and think, "What the hell?"

Kahlenberg's account gibes with my own experience teaching magazine writing at New York University. Contrary to what I expected, my students were acutely tuned into problems of poverty, the environment, and so forth. If anything, they were more informed and sophisticated than I was at their age. But many were also jaded, as though by a surfeit of bad news. I began to wonder if the innocence of the fifties hadn't done us early Baby Boomers a favor, by giving us a naive faith in America that enabled us to feel personally violated--and therefore moved to action--when we discovered things were otherwise. For these kids there seemed to be no such discovery, and hence much less sense of violation.

Kahlenberg is at his best when he confronts dilemmas that may on the Left can't muster the honesty to acknowledge. He confesses to twinges of resentment at affirmative action, for example, when he realizes that the minority students standing in line with him to pick up packets for a law review competition are starting with an automatic leg up. In America, cops and other blue-collar workers are much more likely to taste the bitter side of affirmative action than liberal lawyers are, and Kahlenberg grasps the political implication. (The thing he admired most about Robert Kennedy was his ability to speak to blue-collar concerns with a progressive populism that was very different from the elitist liberalism he finds at Harvard.)

The liberals here often come off poorly. There's a portrait of Charles Nesson, the lawyer who defended Daniel Ellsberg in the Pentagon Papers case, collapsing into a puddle of self-accusation and guilt when students accuse him of being sexist. (He's the one who admitted his quandary over evidence in rape cases.) He takes to wearing a leather jacket to class and, by way of penance, using the pronoun "she" instead of "he."

The Crits were up in arms during Kahlenberg's years over the denial of tenure to one of their number, a teacher by the name of Claire Dalton. The Dalton case became a cause celebre; students wore arm bands at graduation. Kahlenberg thinks the Crits had a point: Conservatives on the faculty were trying to do the Crits in. But he studied contracts under Dalton and has to acknowledge something unmentionable on the Left: "She was the worst teacher I had ever had."

The paper waste

Kahlenberg may have permitted himself to be seduced a bit by the law firms in order to have a story to tell. But when he's seeking judicial clerkships and jobs on Capitol Hill, his adrenaline is clearly flowing. This is where my patience begins to wear thin; he seems a decent guy, but he pursues the public interest with a calculating careerism that is off-putting in the extreme. He goes through endless ruminations and consultations regarding whether to go to a law firm first, the better to slide over into a high Hill staff position. Meanwhile, lawyers at Washington firms have been advising him on the "resume builders" among public interest firms. (These include the Children's Defense Fund and Public Citizen.) A few people try to set him straight. Richard Moe, Walter Mondale's former chief of staff, who is holed up at the Washington office of Davis, Polk to put his kids through college, tells him that if he's drawn to public service, then he should do it.

Still, he keeps weighing the careerist pros and cons, dallying with the big-foot law firms and comparing Hill committee staffs as though he's trying to decide between securities law and M&A. He doesn't seem to grasp that he's missing the point. I wanted to take him by the lapels and scream, "Dammit, just do something you think is important, and let the career part take care of itself!" This is the ultimate irony of Harvard Law: It narrows horizons. Being the ultimate credential, it makes graduates feel compelled to step into ready-made niches where the credential will be valued. Having been educated at the top, they seem to feel that anything below it is a step backwards.

Yes, Kahlenberg has a child by this time. Still, it never seems to occur to him that there are lots of alternatives to Congress, big law firms, and prestige public interest groups. If one really wants to "effect policy," small venues like D.C.'s City Council, for example, can be a lot more promising--if less prestigious--than Capitol Hill. That, at least, was my experience. Then, too, there is a whole array of groups and causes that fill Washington's remaining low-rent office space. People who make a difference on important issues--who are committed to helping rather than careers--tend to rise, wherever they start. Yet in Kahlenberg's frame of reference, eschewing Covington and Burling for a Senate committee (granted, at about half the pay) seems just short of going to India to mediate in a hut. Anything outside the K Street-Capitol Hill axis isn't even on the map.

By the end of Kahlenberg's memoir, I had an emotion I never expected regarding Harvard Law School: pity for many who have gone there, and genuine gratitude that it once turned me down.

(*1) Broken Contract: A Memoir of Harvard Law School. Richard Kahlenberg. Hill and Wang, $22.
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Author:Rowe, Jonathan
Publication:Washington Monthly
Article Type:Book Review
Date:Jun 1, 1992
Words:3384
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