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Your independent source for Harvard news since 1898

Graduate Schools

The “Upstander”

2.27.17

Martha Minow

Photograph by Ken Richardson


Martha Minow

Photograph by Ken Richardson

Dean Martha L. Minow has two desks in her Harvard Law School office. The one she sits at is a rosewood partners’ desk, wide enough for two people to work at face to face. It belonged to Joseph Story, A.B. 1798, LL.D. 1821, who in 1812, at 32, became the youngest person to take a seat as a Supreme Court justice and, in 34 years on the Court, one of the most influential legal figures of his era. He was also a law professor at Harvard for 16 of those years, and wrote much of his Commentaries on the Constitution—regarded as an essential reference for students of the Court in the nineteenth century—at this desk.

The mahogany stand-up desk belonged to Oliver Wendell Holmes Jr., A.B. 1861, LL.B. ’66, LL.D. ’95. Holmes was on the Court from 1902 until 1932, retiring when he was almost 91, the oldest justice ever. Like Story, he is considered one of America’s most illustrious justices. He, too, was a professor at the law school, and author of the American legal classic The Common Law. He wrote most of his opinions, notable for their polish and concision, while standing at this desk in his study in Washington, D.C. He told visitors: “There is nothing so conducive to brevity as a feeling of weakness in the knees.”  

As the law school (HLS) celebrates its bicentennial this year, no one is more important in its pantheon than these two men. Story, as a Harvard Overseer, helped create the school while serving on the Supreme Court. Daniel R. Coquillette and Bruce A. Kimball, historians of the law school, have called it “a radical innovation” as “a free-standing professional school.” Story was also responsible for its ambition to be an American rather than a New England school, “designed to develop a national leadership” by “attracting and educating a meritocratic elite.”  

Holmes personified that elite, but also its skeptical side. In 1870, four years after he graduated from HLS, he and a co-author called it “almost a disgrace to the Commonwealth of Massachusetts.” The school was meritocratic in theory, but not in practice. While Christopher Columbus Langdell, its newly appointed and first dean, would transform the school in the next decade, in quality, size, and national impact, Holmes was critical of Langdell’s view that law could be taught as a science—as a series of formal principles deduced from appeals-court opinions through his “case method” of instruction.

When Minow, now Chu dean and professor of law, accepted an offer to join the faculty in 1981, at 26, she was part of a wave of new, young professors hired to liberate the place from the ossifying legacy of men like Story and Holmes. But it was the traditions they established that drew her to the school: the ambition to educate national leaders, while pressing students to be skeptical about the law they were learning.

Minow (pronounced “minnow”) had earned an A.B. from the University of Michigan in 1975, Phi Beta Kappa and magna cum laude; an Ed.M. from the Harvard Graduate School of Education in ’76; and a J.D. from Yale in ’79. (She was articles and book-review editor of the Yale Law Journal.) She had clerked at the Supreme Court for Justice Thurgood Marshall, a giant in American history because of his leadership as a lawyer in making segregation illegal, but also, as Minow wrote about him, in looking out for the interests of people “misunderstood or disregarded” by the Court.

Progressive HLS scholars attracted her as colleagues because they were surfacing what Minow described in a law-review article as “powerful unstated assumptions about whose point of view matters, and about what is given and what is mutable in the world.” She recognized that law was often shaped as if a man’s perspective was the norm, never a woman’s; the white race’s, never a minority’s; an able-bodied person’s, never a disabled person’s; and so on. Her work in family law, feminist legal theory, civil procedure, constitutional law, and many other facets of legal affairs built on the skeptical stance of the school of thought known as critical legal studies. With the Crits, as they were called, she shared a passion for exposing inequities embedded in American law and for helping create a more egalitarian society.

 

A Reformer

By disposition, though, Minow is a reformer, not a rabble-rouser—eager to identify tools that can advance the interests of society’s most vulnerable. A few years ago, she wrote “A Field Guide” to legal scholarship, describing seven different types ranging from reorganizing the basic ideas animating a field of law (for example, Loeb University Professor Laurence Tribe’s Constitutional Law) to analyzing the consequences of a legal policy (as in Wasserstein public interest professor of law Elizabeth Bartholet’s Nobody’s Children: Abuse and Neglect, Foster Drift, and the Alternative of Adoption, which documented the detrimental effects of the child welfare system and the positive alternative of adoption). In her 36 years as a Harvard professor, Minow has done innovative and cross-disciplinary work of all seven kinds. She has also become one of the country’s most important advocates for access to justice, as vice chair of the federal Legal Services Corporation, one of her many pro bono, national, and international community-service activities.

Minow learned the word “upstander” from her former student Samantha Power, J.D. ’99, until recently American ambassador to the United Nations. The opposite of bystander, it means someone who stands up against injustice, bigotry, violence, or other wrongdoing. As an upstander herself, Minow proselytizes in favor of seeking a sense of common purpose that makes all of us more likely to stand up against wrongs and on behalf of rights. She does this with a realism that does not reduce the optimism of her public persona, which is upbeat, a touch rabbinical, and full of heart.

She has won wide admiration as a consensus-builder. In 2003, then-HLS dean Elena Kagan asked Minow to lead an extensive reform of the school’s first-year curriculum. Two decades before, progressive and conservative faculty factions had thwarted a similar effort, voting down a major overhaul of the curriculum, despite consensus that it was long past time for the school to reduce its reliance on the case method and expand options for learning—in seminars about law through the lenses of economics, history, political science, and sociology; in legal clinics where, working with experienced lawyers, students learn while representing clients; and in other ways.

The lesson Minow took from that debacle was that the committee she led should not put its recommendations in a report that their faculty colleagues could shoot down. Instead, she advised Kagan that her group would undertake a process of study and consultation—with legal scholars, faculty at other kinds of professional schools, and practicing lawyers—and either produce real change or not. The result was what Kagan called “the most significant revisions” to “the basic law-school curriculum” in 130 years—since Langdell’s case method became the model for American legal education during the twentieth century.

With the faculty’s unanimous approval in the fall of 2006, the school added three first-year courses: in international and comparative law; legislation and regulation; and complex problem-solving (which teaches practical skills through simulated interviews with clients, mock negotiations with actual lawyers, and other means). Changes adopted for upper-level students use classroom, clinical, research, and work opportunities to help them pursue specialties like law and government, or law, science, and technology.

When President Barack Obama chose Kagan to be solicitor general in 2009, Minow was an obvious candidate to become the school’s twelfth dean. She accepted a five-year appointment after deciding that the job would give her the opportunity to continue to lead the school as Kagan and her predecessor, Robert C. Clark, had done—with students at the top of the priorities list, and with a mission to be a justice school as much as a law school.

Those five years have grown to eight and, in January, Minow, now 62, announced that she would step down as dean at the end of this academic year. Her tenure has redefined the school. Beyond the new curriculum, 80 percent of students are engaged with legal clinics; they are required to do 50 hours of pro-bono legal services before graduation (and the current average is around 500). HLS has initiated a series of lectures on “Diversity and U.S. History.” (The first, on “567 Nations: The History of Federal Indian Law,” was delivered by her husband, Bussey professor of law Joseph William Singer.) And a new complex of buildings has transformed virtually every aspect of life at the school. “Welcome to the Law School’s living room, welcome to the new shape of legal education,” Minow said at the dedication of the complex. It has increased the engagement of faculty with students and students with students; the vitality of student organizations; the frequency of visits from people in the world of legal affairs with something to teach HLS students; and more.

The period has also been tumultuous.

 

A Testing Time

Minow became dean in the most harrowing economic period since the Great Depression. In the fiscal year ending on June 30, 2009, the University’s endowment plummeted almost 30 percent; HLS’s fell from $1.90 billion to $1.36 billion. The acting dean who served between Kagan’s departure and Minow’s July 1 start severely cut the school’s operating budget for the 2010 fiscal year. Minow restored some items (e.g., money for a Spanish translator at the school’s Jamaica Plain legal clinic), but had to refuse funding requests for virtually any new initiative.

Her biggest headache was the complex of buildings then under construction along Massachusetts Avenue. At a cost of around $266 million, according to The Boston Globe, it had dug a huge hole in the school’s budget, despite gifts from alumni and other donors. Minow told me recently that she asked herself: “Could I, in good conscience, as the steward of the school, approve completion, knowing that we didn’t have all the money to pay for it,” and that HLS finances were tautly strained? She chose to proceed because the complex would meet longstanding needs: space for law journals, other student organizations (including the school’s legal clinics), and socializing, as well as for classrooms seating 50 or fewer students. But proceeding obligated the school to assume significant debt that would have to be serviced, along with the added operating costs, when the complex came on line in 2012.

Meanwhile the recession had produced large layoffs in the legal profession and other far-reaching changes that inevitably hit law schools hard. Between 2011 and 2015, the American Bar Association reported, the number of applicants dropped significantly at all the top 15 law schools except Stanford and the University of Pennsylvania. HLS applications dropped around 18 percent, having already dropped by nearly that percentage from 2010 to 2011.

The decline in the endowment reduced its contribution from 40 percent of the school’s operating revenue in 2009 to 33 percent in 2015—increasing the contribution from student tuition from 37 percent to 46 percent. But students’ employment rate after graduation held fairly steady at around 95 percent, as it had for two decades, and the school increased the amount of financial aid it offered by 50 percent. It also bolstered its low-income protection plan, allowing twice as many graduates with student debt to take public-service jobs by paying part of their monthly loan costs.

Minow dealt with the financial calamity, a faculty member said, as some American parents dealt with the Great Depression while shielding their children: she found a path out of the crisis for the law school without telling faculty members or students how dire it was. When other law schools saw Harvard’s vulnerability as a chance to hire away HLS faculty members, Minow was on many occasions in the thick of successful efforts to retain them—and to strengthen the faculty, as well. Her hires include Bancroft Prize-winning legal historian Tomiko Brown-Nagin; Pulitzer Prize-winning legal historian Annette Gordon-Reed; Vicki Jackson, one of the world’s premier scholars in comparative constitutional law; Richard Lazarus, a top scholar in environmental law; and other national leaders in their fields. She has also hired a cluster of junior faculty members who are said to be off to exceptionally productive starts.

During her tenure, the faculty’s composition has shifted from 13 percent people of color and 20 percent women to 18 percent people of color and 28 percent women. There are six black women on the faculty, instead of only one. Half the offers Minow has made to new faculty members have been to women.

She has also modified the admissions policy, favoring a higher percentage of applicants who do something between college and law school—starting businesses, serving in the military, working in government, teaching English in China—rather than enrolling immediately after their undergraduate studies. “I just knew that we were facing a tumultuous time for lawyers, and that we need people with resilience, self-knowledge, and a sense of purpose,” she explained. “They need to want to be here and bring a reason to be here.”

In the J.D. class of 2019, some 80 percent were out of college at least a year before law school, and 62 percent were out for two years or more—up from 60 percent and 43 percent, respectively, for the class of 2012, at the start of Minow’s deanship. Other characteristics have changed, too: the proportion of students of color has risen to 44 percent from 32 percent, and of women in the class to 51 percent from 48 percent. The number of undergraduate schools represented increased to 188 from 159, and the share of foreign students to 17 percent from 6 percent.

Meanwhile, the school’s Campaign for the Third Century, launched in 2015, has already reached its goal of $305 million and will continue until next year. And the school reports that it was able to shift back to a pre-crisis financial budget two years ago—two years ahead of schedule—and that it has been reducing its debt.

When Joseph Story taught at the school, he was one of two faculty members. When Oliver Wendell Holmes Jr. taught there 40 years later, he was one of five. There were 72 professors when Minow joined the faculty in 1981. Today, there are 111—and more than half the classes they teach are for 25 or fewer students. In legal philosophy, method of research, political outlook, geographic focus, demographics, and other ways, the faculty is more diverse than it has ever been. HLS remains some things it has long been—intimidating because of its size, for instance, and navigated best by articulate, self-possessed students—but it also has the verve, again, of a thriving and striving institution.

          

Bridging Divides

Minow is among the minority of law-school deans whose mark on their schools strongly reflects their scholarly interests. In thinking and writing about social justice, she has developed three big themes, about identity, diversity, and responses of institutions to injustice.

She sees the first as an individual quest inescapably affected by an individual’s group identity (gender, race, ethnicity, community, and more), which frames the fundamental challenge for citizens in a democracy of “forging commitment to others without relinquishing commitment to oneself.”

She addresses diversity through the exploration of differences, and regards diversity within institutions as a way to resolve the dilemma of differences: denying them means denying the need to make up for injustice resulting from them; acknowledging them can sharpen the sense of separateness that differences cause and can trigger discrimination against groups that have already endured injustice. Embracing diversity is a way to avoid the unfairness of treating as normal the experience of whatever group (men, Caucasians, the able-bodied, and so on) is considered not different. It is a way to raise the chances of establishing practices— norms—that take different interests into account.

She addresses the third theme in her scholarship by pointing out how the law and legal institutions often promote resolution of disputes without fostering understanding between parties who despise each other out of ignorance. Alexandra Lahav, J.D. ’98, of the University of Connecticut Law School, one of Minow’s coauthors on a popular civil-procedure casebook, told me, “There are generations of students Martha has influenced, even though civil procedure is not her main field of scholarship. I’m one of them. One of her views, which she presents in a moderate tone but is really radical, is that legal procedures appear to be neutral, but they express power in the form of who wins and who loses. In the final class of the course I took with her, she underscored the biggest challenge for procedures in the law: How do we create ways for antagonists to understand each other across their often bitter divides?”

In Minow’s writing about extreme violations of human rights, and about vengeance and forgiveness, she favors forgiveness as a means of promoting understanding. (Her conditions for forgiving include identification of wrongdoers, their acknowledgment of their wrongs, and the opportunity for perpetrators as well as their victims to be heard about these transgressions.) But her writing also explains the utility of vengeance better than some prominent believers in it do: “Although this word may sound pejorative, it embodies important ingredients of moral response to wrongdoing.” She notes that, “Through vengeance, we express our basic self-respect,” and that “Vengeance is also the wellspring of a notion of equivalence that animates justice.” Her writing leaves the impression that she wants readers to look at differences and the disputes they lead to with fresh eyes, so the normal will appear strange and we will see and comprehend it more fully.

The most radical of her approaches as a scholar may be to resist single narratives as explanations of law, history, or the forces shaping both. In her 2010 book In Brown’s Wake: Legacies of America’s Educational Landmark, she reckons with what the 1954 ruling in Brown v. Board of Education “did and did not accomplish when it banned official racial segregation in public schools.” But she also “traces the direct and indirect uses of Brown by advocates and policy-makers” in the education of immigrants, of students learning English as a second language, of American Indians and Native Hawai’ians, and in Northern Ireland, South Africa, and eastern Europe. None of these influences is part of the standard narrative about Brown.

Minow’s way of resolving the dilemma of difference through diversity reflects her belief in the strength of pluralism and the imperative of understanding multiple experiences and meanings as a strength of American democracy. In her view, the American motto E pluribus unum—“From many, one”—is as much about the many as about the one. In character and style of leadership, scholarly interests and deep intelligence, kindness and decency, no HLS dean could have been better equipped than Minow to manage the turbulence on campus caused by social unrest about racial injustice in the United States in recent years.

In February last year, five HLS students attended the ceremony at which Brandeis University gave Minow a prestigious award for making “a lasting contribution to racial, ethnic, and religious relations.” Instead of going there to cheer her, however, they joined a small group of Brandeis students in a disruptive protest. Speaking directly to her, they shouted: “You came to Brandeis to talk a big game, but injustice is in Cambridge. Your school is racist. Your school is not inclusive.” They mocked her for her “hypocritical tendency to ‘talk justice, but do injustice,’” for being a bystander, not an upstander.

The Harvard students were part of an umbrella group called Reclaim Harvard Law School which, from the fall of 2015 through the spring of 2016, made a series of demands. They began with a call to remove from the school’s seal the family crest of Isaac Royall Jr., a slave-owner and son of a slave trader whose donation to Harvard supported the founding of the law school. After someone defaced photographs of most of the school’s African-American professors by covering their faces with black tape, Minow appointed a committee to recommend whether to retain the shield.

The committee “heard directly from well over 1,000 members of the larger Law School community” and, last March, recommended that the shield with the Royall family crest no longer represent HLS, because it does not “closely represent the values” of the school. The Harvard Corporation approved the recommendation and the creation of “one conducive to unifying the Law School community rather that dividing it.”

By then, verbal attacks on Minow had grown so personal that a group of faculty members wrote an open letter to the school community in her defense. The letter expressed pride in the “activism, motivation, and goals” of Reclaim and acknowledged that the University decision to retire the shield would not have happened if Reclaim and others had not “pressed the school to face up to this part of its history.” But the letter also said that Reclaim was “both wrong and counterproductive” in singling out Minow for “such sharp and unfair criticism.”

Friends of Minow’s said her distress from the attacks was visible in her pallor. In long meetings with students, evidence of her effort to understand them was also visible: she took copious notes. They seemed less intent on understanding her interests, and more intent on using her deanship to call attention to their protest. In The Harvard Law Record, A.J. Clayborne, who was a spokesperson for Reclaim, quoted a 1991 article by Minow called “Breaking the Law,” summarizing its argument as “protest is not polite” to justify why the students were protesting “her” (his italics). He wrote, “Dean Minow is clothed with the prestige and power of administration,” so protesting her was protesting Harvard Law School, because “there is no institution that more deeply influences the legal universe.”

 

A “Snap-Into-Focus Moment”

I asked Minow about Reclaim and its demands, which included the creation of a critical race theory program at the school and reform of the mandatory curriculum, “to ensure the integration of marginalized narratives and a serious study into the implications of racism, white supremacy, and imperialism in creating and perpetuating legal analysis and thought.

In her view, HLS was already addressing those interests in many ways. But in the view of some students, she had acceded to only one demand and had otherwise waited them out. As a student told me, there was an element of tragedy in their dean’s dealings with Reclaim: members knew that she cares deeply about racial justice, yet she failed to find a way to convince them that she was on their side.  

Minow told me, “I would be very sad to be at a law school where students didn’t see the connection between what’s happening on campus and injustices in the world, and didn’t want to make that part of their education. I was a student activist and insisted that there be more relevance in the classroom and I engaged in protests. I think that’s a commendable American tradition. Students are here to learn, and we’re here to learn with them. I am sad that not enough of our students have the chance to learn from our negotiation teachers the basic point that there’s a difference between interests and positions—to understand that behind positions, which seem unmovable, are interests; discussing what are your interests, and what are mine, we can often find approaches and so unions that advance all our interests.”

The tension with Reclaim members was one chapter in a volume with many other chapters, most of them remarkably constructive under taxing circumstances. It was a reminder of the competing narratives about every era of the law school and about its dean.

The result of the 2016 presidential election became “a snap-into-focus moment” for Minow, who decided to step down as dean to resume her vocation as an activist: “I thought about the marginal difference between what I could accomplish in another year or two as dean, versus my sense of the urgency in speaking and advocating as a scholar and individual. I have spent much of my professional life trying to strengthen and cultivate the respect for people across differences, whether race, religion, age, or disability—particularly differences marking the most vulnerable. To be human is to notice differences among human beings. The question is whether those differences are allowed to become vehicles for assertions of power and oppression. Unscrupulous leaders in human history have exploited fears of difference. I am concerned that we are living in one of those periods, in this country and in many parts of the world. I feel very strongly about this and want to be able to work on combatting fears and exploitations of difference, and strengthening the commitments to respect and decency.”

In a 2007 essay about “Tolerance in an Age of Terror,” she observed that, in periods like the current one, it’s common to regard the biggest challenge as making the right trade-off between liberty and security. She argued instead that “the security we seek includes the liberty we cherish”—the ideals of freedom that have been a beacon for immigrants to this country since its founding. With her friend Robert Post ’69, Ph.D. ’80, the dean of Yale Law School, she recently published an opinion piece in The Boston Globe about the ideals that matter most to her now.

The op-ed is about the risk that, as a consequence of President Donald Trump’s division of the world into friends and enemies, he will make “an enemy of the law and the Constitution.” They wrote, “We are deans of respected law schools. We have dedicated our professional lives to the proposition that law overrides violence with reason. Law stands for what we have in common, not merely what divides us.” In its eloquence and force of insight, the piece reflects one kind of contribution that Minow plans to make a high priority after she steps down as dean.          

 

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