Systemic Justice at Harvard Law

Fenster writes:

Harvard Law is starting something new, which it calls a Systemic Justice project.  Here is a write-up from the Boston Globe.

What is it?  That’s emerging.  “None of us really knows what ‘systemic justice’ is—yet you’re all here,” says Professor Jon Hanson to a full class.

The class Hanson teaches

is part of a new Systemic Justice Project at Harvard, led by Hanson and recent law school graduate Jacob Lipton. They’re also leading a course called the Justice Lab, a kind of think tank that will ask students to analyze systemic problems in society and propose legal solutions. Both classes go beyond legal doctrine to show how history, psychology, and economics explain the causes of injustice. A conference in April will bring students and experts together to discuss their findings.

It is a little too soon to evaluate this. Hanson acknowledges no one knows yet what systemic justice means. And a review of the Systemic Justice blog does suggest that the program is in its infancy–there’s not a lot there. That may suggest the impetus is at least partly market-based: as Hanson acknowledges, students are showing up even though they also don’t know exactly what “it” is. What is not to be doubted, though, is that the current generation of students is highly interested in the kinds of things the project is up to: food policy, racial justice, etc., and Harvard seems out to provide “it” to them.

The program tilts left, for sure, but not as dramatically as, say, Critical Justice Theory. As it is, Systemic Justice feels middle-class, a kind of Critical Justice Lite, nodding toward systems of power but less willing to use the CJT’s hard left confrontational lingo of race, class and gender oppression. Harvard students will like it!

So it will probably be popular.  Is it a good idea?

That depends on direction.  It is completely true, as advocates argue, that the law is inherently political.  But what of it?  Even if it is political, there are reasons society has seen fit to emphasize its instrumental qualities in the practice of it.  It’s kind of like the Separation of Powers doctrine.  Human nature wants to fuse executive, political and judging instincts all the time, and human nature ensures that a lot of that fusing is inevitable.  But that’s why we have the doctrine in the first place: to remind us to keep some sort of boundaries in place.  Something there is that doesn’t love a wall, and it is up to us to make for the good fences that make for good neighbors.

So too with the practice of law.  We need the illusion that law is instrumental.  Otherwise people–including attorneys!–would be too prone to conclude that law x has no weight due to the injustice and bias present at its creation.

Does that mean no one should question the law and that all must be blind to its political character?  Of course not.  The intersection of politics and the law — including the question of power and justice — is an important issue and fair game from an academic point of view.  And in fact courses of study dealing with such things are quite common in departments of political science and schools of public policy.  In fact, a quick perusal of the Harvard Systemic Justice website suggests that the curriculum there would not be out of place in a school of public policy, albeit a school with a distinct left bias.

So if Harvard intends to examine the connections between law and policy the better to inform the many lawyers who will graduate and not practice law per se, more power to ’em.  But beware the morph from a policy emphasis to a taking of sides in a political process.  There, a lawyer has no special claim on the truth by virtue of a legal education.  Stand in line with the rest of us in trying to influence the political process.

The article approvingly quotes the dour pessimist Holmes, who wrote in 1897 that “for the rational study of law the blackletter man may be the man of the present, but the man of the future is the man of statistics and the master of economics.”  Just so.  But Holmes is speaking of the need on the part of the law to go beyond an expressive function and understand actual effects.  I do not think he meant that lawyers ought to be part of an advanced cadre, one that is happy to hijack the normal political process in the name of some superior version of justice made possible by a legal education.

About Fenster

Gainfully employed for thirty years, including as one of those high paid college administrators faculty complain about. Earned Ph.D. late in life and converted to the faculty side. Those damn administrators are ruining everything.
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6 Responses to Systemic Justice at Harvard Law

  1. agnostic says:

    Typical liberal morality bias — harm + fairness. Don’t hold your breath waiting for the Systemic Purity series.

    Even adhering to their limits of justice only, there are too many cases where we already know more or less how the laws can change to produce a more just society. Change the income tax schedule back to what it was during the 1950s, for starters.

    But we don’t live in a 1950s climate, so that radical change would be met with a massive counter-attack. That’s where the Best and the Brightest ought to apply their brains and experience — how to concretely and practically neuter or minimize the counter-attacks to a more egalitarian income tax schedule, that policy-makers in the I Like Ike era did not have to deal with, as they weren’t living in the second Gilded Age.

    Law students typically have zero experience, having been insulated their whole lives, but they do have brains and reasoning powers. And at least in principle those big brains could acquire lots of relevant knowledge through reading histories, case law, and so on.

    As the series is actually proceeding, though, it’s just another glorified science fair, albeit of the type you’d find at a sci & tech magnet school. Flatter the egos of a bunch of sheltered children-students by asking them to dream up the biggest dream they possibly can, and give them a pretty blue ribbon to reward their effort (not their boring pointless result).

    Effusive intellectual circle-jerk ensues. At least the nerds discovered a new source to draw an endorphin rush from.

    Like

  2. These guys are just trying to make a name for themselves by founding a movement, right?

    Like

    • Fenster says:

      It’s probably worse than that. A number of commenters point out that the idea of tilting a law school curriculum toward social values is hardly new, and that a lot of non-elite law schools have been doing it for a long time, no doubt having to justify training lawyers who do not end up in Biglaw the way Harvard grads do. The truly cynical interpretation, which feels about right, is that no only are these guys trying to make a name for themselves but also that they are pretending it is something new.

      Liked by 1 person

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  4. Sherwood says:

    As a community of ratepayers we have struggled to have a municipality that was built on “democracy” (following the provincial Elections Act, the Municipalities Act, the Planning and Development Act) and a dream of diversified economic growth for our region. EXCEPT . . . . After 15 years of trying to achieve our dreams, we the citizens have realized we are up against ‘systemic injustice’ – corporate economic bullies from neighbouring municipalities. With a provincial governing party supported by ‘bully’ dollars, intimidation, and a tinkering with the law to cover up their ‘mistakes’ , we are now being asked to forego our aspirations of growing our region. This has cost our little municipality millions not to mention the personal toll it has exacted on our leadership. Identifying with the movie, “Selma” our goal is still to ‘cross the bridge’ to fairness, equality and economic prosperity. We wish that there was a legal system that would see that we have been in a web of corpoate economic greed and a lack of political integrity – ‘systemic injustice’. Our community is excited to have someone move out of the “old boys network” into a progressive expanding view of law.

    Like

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