Letters

A vindication of the physical object

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Credit: David Pohl

I received the new issue [Winter 2012] in the mail yesterday, and I have to tell you it was fantastic—filled with really interesting content, which made me feel just wonderful about my association with HLS. But strikingly, it was also beautifully designed. The fonts, layout, graphics were lean and powerful, bold and dynamic. It all suited the content and made me want to dig into it. It supported and reflected the idea of a law school bridging theory and practice, past and future. Each page was a well-composed course in the visual and intellectual meal. Even the paper—no longer the “impressive” glossy stock, but more matte and tactile, and smartly square-bound—contributed to my engagement with the magazine. It’s possible that the current format has been in place for a few issues now, but this is the first time I’ve had the time to really engage with it, and it’s just really engaging.

The whole thing is a vindication of the physical object in a world of virtual media. A glowing 9-by-7 screen is nothing like an 8.5-by-11 page in ambient light with a nice feel in the fingers, a two-page view, the ability to fold the page over to remind me to come back to it and the ability to scribble my reactions in the margin.

It’s quite exciting to see magazines adapt to the Internet and iPad era (The New York Times Magazine, e.g., has done it well, I think), and it seems that this challenge has made the HLB even better than it was before. Kudos.

Defending a law that limits rights of a minority is not value-neutral advocacy

In “Defending Unpopular Positions Is What Lawyers Do” (Winter 2012), Paul Clement makes a claim (astonishingly echoed by Attorney General Eric Holder) that is as plainly wrong as it is self-serving. Claiming that representing Congress in its defense of DOMA is “not that different from representing Guantánamo detainees” fundamentally misunderstands the role of lawyer and intentionally draws a false equivalence. In Clement’s formulation, it is no more noble for a lawyer to represent Dred Scott or Oliver Brown than to represent Sandford or the Topeka Board of Education, nor should representing Sandford or Topeka be grounds for criticism. The principle that even unpopular people and ideas deserve legal advocacy stems from the idea that lawyers and courts must protect unpopular minorities from potential majority oppression. It is incoherent at best to argue that defending a law passed by a majority of Congress whose very purpose is limiting the rights of a historically unpopular minority is value-neutral advocacy and what “lawyers do when we’re at our best.”

More disclosure needed on ‘partisan’ views

In Katie Bacon’s article on the new HLS-Brookings Institution Project on Law and Security (“Double Strength,” Winter 2012), co-founder Benjamin Wittes claims that the project will “[produce] nonideological analytic work” for the benefit of policymakers. The project may indeed bring together students and academics to approach national security issues, such as the government’s “secret” drone assassination program and its apparently endless imprisonment of suspected “enemy combatants” without charge or trial, from a variety of perspectives. Some, perhaps, will conduct their analyses free of ideology.

But Ms. Bacon should have noted that Mr. Wittes takes the field very much as a partisan: a partisan not of either party, but of broad fealty to executive power, official impunity and extraconstitutional detention policy. To take one example, Mr. Wittes has argued on his Lawfare blog against legal accountability for the policymakers and lawyers who constructed the Bush administration’s secret prison and detainee torture regime (even in Ms. Bacon’s article, Mr. Wittes dismisses the notion of “endless events talking about interrogation techniques”). The Obama Justice Department’s abdication of its responsibility under the Convention Against Torture and the War Crimes Act to credibly investigate the torture program suggests that Mr. Wittes’ views are in line with those that prevail in the halls of power. Those views nevertheless represent a particular ideology, extreme in its exaltation of the prerogatives of authority at the expense of universal human dignity. As we enter our second decade of post-9/11 wars, it would have been helpful if Ms. Bacon had reminded the Bulletin’s readers where Mr. Wittes, and the Brookings Institution, are coming from.

Remembering Derrick Bell

Your recent “Tribute” to the late Professor Derrick Bell aptly identified him as an “iconoclast” and “community builder.” Professor Bell was certainly those things, but he was also much more.

I first met Professor Bell in the summer of 1970, right after my first year at HLS and right before he became the first tenured black professor on the Harvard Law School faculty. It was a time of turmoil (both at HLS and in the country as a whole) over the Vietnam War, social unrest and strident political disagreement. I had the honor of serving as his research assistant that summer (and for some time thereafter), as he was beginning to compile materials on racism, slavery and the development of civil rights law in the United States, for what ultimately became his casebook, “Race, Racism and American Law,” which as your “Tribute” notes “became a staple in law schools and is now in its sixth edition.”

I spent much of that summer deep in the stacks of Widener Library finding source materials on slavery and racism, often returning to his office covered in dust with the volumes he needed. I also remember sharing a table in a corner of Professor Bell’s office, where for months I helped him review, sort and analyze these materials, while he shaped them into what would become his casebook.

Working at the side of this pioneering and young law professor, I learned much about the law and benefited from Professors Bell’s critical thinking every day. But even more importantly, I learned what a warm, caring individual he could be, as he thoughtfully and supportively directed my efforts and graciously made me feel that we were in a collaborative, creative effort together.

In those days, it was difficult to get to know our professors. We had very large classes, few opportunities for extended interactions with faculty, and the disruptive impacts of student strikes and the Vietnam War to distract us. But that summer, when I spent extensive time with Professor Bell, I was privileged to work at his side each day. I learned about racism which he confronted both personally and as a lawyer, about his litigation at the forefront of the civil rights effort. I began to grasp, for the first time, what it truly meant to have a life in the practice of law. I also began to appreciate much more fully the importance of the rule of law in the American democratic process and the role of lawyers in protecting rights of the poor and underrepresented in our society.

I felt like I had won the lottery, working for Professor Bell that summer. He had a profound influence upon me and upon many other law students, at HLS and elsewhere. He was a passionate advocate for the causes he advanced, and we shall miss him.