Is It Back to the 1980s at Harvard Law School?

Harvard Law School was a troubled institution when I was a student there in the 1980s. The faculty was bitterly divided between liberal Democrats and radicals, and the radicals tried to take over. Three decades later it is hard to exaggerate the craziness of that time—demonstrations and mass meetings that were ripples from the power struggle among the professors. For instance, the faculty considered taking class participation into account in second and third year classes. The idea was to enliven classes so that they were no longer like the morgues many resembled. But some students and professors protested that the scheme was a plot to mark radicals down. And one of the radical professors memorably got up on the steps of Langdell Law Library to orate about how the proposal showed what a “repressive place” HLS was.

News of what became known as the “crit wars” got out to the alumni, the President appointed a new Dean, Bob Clark, and HLS slowly ceased to resemble Beirut on the Charles. But not before substantial damage was done. Many faculty members became even less interested in teaching than usual.  The best teacher in my entire educational career, Paul Bator, decamped to Chicago. Student leftists were emboldened and got the Harvard Law Review, unlike other major law reviews, to embrace ethnic and racial preferences, replacing a century old tradition where selections were made based on merit alone.  But worst of all there was the dispiriting sense that even at the heart of a university, power rather than reason was the coin of the realm.

HLS again seems to be convulsed along a similar fault line. Students protesters have been occupying  a portion of a classroom building. A group shouted down Dean Martha Minow at a ceremony at Brandeis at which she was receiving an award. And it has just come out that some radical faculty members are seeking to exploit the protests to hire more radicals and politicize the first year curriculum. The craziness is back: One radical is quoted as saying that the HLS faculty is “ conservative”—there at place where 98 percent of those contributing gave to Democrats!

I do not know enough about the internal dynamics at HLS to be able to tell whether the threat is as great as the 1980s. On the positive side, the proportion of radical faculty members seems somewhat lower than then. On the negative side, the protesters are making full use of the diversity claims, and in my experience that slogan can be used at a university to cover a wide variety of bad causes that have little to do with any plausible concept of diversity. But sadly, the turbulence at HLS reflects more generally the bad political climate of our nation, where reason is losing power to identity politics of one kind or another.

John O. McGinnis

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His book Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the coauthor with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

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  1. libertarian jerry says

    The problems with the Harvard Law School,and for that matter much of Academia,is caused by the final fruition of the almost Century long “march through the Institutions”,chartered by the Frankfurt School of Cultural Marxism. The Marxists knew almost 100 years ago that the chances of taking over the organs of society in the West by violent revolution was almost impossible because of the large Middle Classes in the Western World who had something to lose. Instead of revolution the Marxists decided to build socialism incrementally. By taking over and thus influencing the Media,the Arts,Entertainment plus sources of information like Hollywood and TV plus Public Education and Academia the Left could control what is seen,heard and learned by the general population. Now,save for a few instances,the Left is in control of ideas.
    With this control comes the influencing of legislation aimed at the growth of a collectivist government and its inherent society. In essence the laws that we are supposed to live under and the judges who are to judge us have left behind much of traditional law,property rights and in essence the common law and instead we are now living under corporate and admiralty law. Basically the American population has had their status changed from that of citizen to that of numbered subject. The Left couldn’t get their progressive programs into place without the aiding and abetting of the judicial system. This is why the appointment of judges plus the education of the lawyers who will in the future become judges is so important to the Left. Control the Law,and by implication the force of law,and you control the people. Communist dictator Kruschev once stated about 60 years ago that “we will bury you.” He explained that in a generation or two the children and grandchildren of the American population would grow up under communism. Good old Nikita understood what Cultural Marxism would do to America. It looks like he was right.

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