What’s Going On At HLS?

I have been following the news from Harvard Law School, my law school, with concern. What is going on at HLS? I want to note two items that were worrying to me and maybe to you.

The first is the anti-Semitic remarks that, according to a published report, an “HLS student, who is the president of a student organization on campus,” made to Tzipi Livni, a member of the Knesset and former foreign minister of Israel, while she was taking questions at a program run by Harvard’s excellent Program on Negotiation:

At the Q&A section of an event last Thursday, an HLS student asked Jewish, Israeli dignitary Tzipi Livni: “How is it that you are so smelly? … A question about the odor of Ms. Tzipi Livni, she’s very smelly, and I was just wondering.”


I understand that we live in a time when anti-Semitism in all its ugliness has reemerged on both the left and the right, in its leftist form notably on university campuses. But surely Harvard Law School, where Louis Brandeis gave his great (and perhaps apocryphal?) “I am sorry I was born a Jew” speech, should be a place where this kind of thing has no place. 1 The more elite the institution, the more concerning the reemergence of anti-Semitism on campus.

Second is the list of demands made by a student group that has been occupying the student center. Some of the group’s ideas may or may not have merit, but I find their ideas about curriculum troubling. There is to be a “Diversity Committee” that is to have a “full and equal seat at the table for all discussions and decisions on curricular changes.” The group demands that HLS “reform the existing mandatory legal curriculum at Harvard Law School, through meaningful student input and transparency, 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.” This includes, among other things, “a mandatory 1L course that addresses and contextualizes racial justice and inequality in the law, with respect to both historical issues and recent events. (The course must have a credit level that reflects its equal or greater importance to traditional 1L courses.)”

There is nothing sacred about the 1L curriculum. I was glad when Harvard added an international or comparative law requirement to the first year curriculum. I wish evidence were mandatory, and although I know it’s not in the cards, I think there should be a requirement in legal history, because I really think so much of the law is difficult to understand without it. But the 1L curriculum should be made up of areas of the law that you really, really need to know in order to be ready to learn how to be a lawyer. (I put it this way because if there’s one thing law school doesn’t do, it’s teach you how to be a lawyer. At most it gets you ready to learn how to be a lawyer). When I say that law students are not in any position to know what they need to know in order to become ready to learn how to be lawyers, I speak from experience. So if the goal is to learn how to become ready to learn how to be lawyers, you can’t seriously consider replacing, say, contracts with a “course that addresses and contextualizes racial justice and inequality in the law, with respect to both historical issues and recent events.” If that’s not the goal, well, then there are bigger issues.

All is not right at HLS. I hope the school and the students can get it together.

Update (4/20): The student who made the outrageous remark has apologized. Here is the apology:

I am writing to apologize, as sincerely as I can via this limited form of communication, to anyone who may have felt offended by the comments I made last week. To be very clear, as there seems to be some confusion, I would never, ever, ever call anyone, under any circumstances, a “smelly Jew”. Such a comment is utterly repugnant, and I am absolutely horrified that some readers have been led to believe that I would ever say such a thing. With regards to what I actually did say, I can see now, after speaking with the authors of this article and many other members of the Jewish community at HLS, how my words could have been interpreted as a reference to an anti-Semitic stereotype, one that I was entirely unaware of prior to the publication of this article. I want to be very clear that it was never my intention to invoke a hateful stereotype, but I recognize now that, regardless of my intention, words have power, and it troubles me deeply to know that I have caused some members of the Jewish community such pain with my words. To those people I say, please reach out. Give me an opportunity to make it right.

It is hard to treat this apology as sincere because the person who is apologizing has not taken responsibility for the remarks he or she made by taking the simple step of acknowledging that he or she made them, that is, by using his or her name. In any event, I find it incredible to think that the speaker had no idea that his or her remarks could be construed as antisemitic. Even if the speaker had never heard the stereotype before, the fact is that he or she made the remark to an Israeli speaker. It is inconceivable to me that the speaker would have made the remark to, say, a Chinese government minister, or an Egyptian government minister, or whatever. In today’s social context, I find the speaker’s contention impossible to believe.

Notes:

  1. I’m not sure how familiar Brandeis’s speech is to non-Jewish readers, though for kids in Hebrew school growing up Louis Brandeis was like the Sandy Koufax of the law. Here is Anita Diamant’s account from Choosing a Jewish Life (Shocken Books 1997): “A story is told about Louis Brandeis (1856-1941), who was a student at Harvard Law School at a time when there were explicit limits on what Jews could hope to achieve. Quotas were in effect and many law offices were completely closed to Jewish attorneys. When Brandeis was in school, his colleagues would say, ‘Brandeis, you’re brilliant. If you weren’t a Jew, you could end up on the Supreme Court. Why don’t you convert? Then all of your problems would be solved.’ Brandeis did not respond to such comments, but on the occasion of his official introduction to an exclusive honor society at the law school, Brandeis took the podium and announced, ‘I am sorry I was born a Jew.’ His words were greeted with enthusiastic applause, shouts, and cheers. But when the noise died down he continued. ‘I’m sorry I was born a Jew, but only because I wish I had the privilege of choosing Judaism on my own.’ The initial response of stunned silence slowly gave way to awed applause. Ultimately, his anti-Semitic peers rose and gave him a standing ovation. In 1916, Louis Brandeis became the first Jew appointed to the United States Supreme Court.”

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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