by Carol S. Steiker*
I was thrilled to learn of the birth of the new Harvard Law & Policy Review and happy to be invited to comment on its potential as a new feature of the Harvard Law School and ACS landscape. I feel a little bit like one of the fairies in the Sleeping Beauty fairy tale who were invited to the baby princess’s baptism and came offering gifts. So, here are my offerings:
Wearing my law professor hat, I offer the new baby journal a hammer – the “hammer of justice” from the famous folk song, “I’ve got hammer.” As a teacher, I worry sometimes that by teaching our students all the multifarious and subtle moves of legal argument, we somehow unwittingly and unintentionally convey the message that because there is no single “right” legal answer to difficult legal questions, all legal arguments are created equal and that “rightness” in the moral sense drops out of the picture as well. Nothing could be further from my own deeply held beliefs, and nothing could help sustain students more in their attempts to hold onto and deepen their moral commitments than participation in publishing a journal with an openly normative aspiration.
Wearing my legal scholar hat, I offer the new baby journal a bridge, to connect the ivory tower of legal academia with the world of legal policy and practice. The legal academy has moved, in what I believe has been a largely salutary development, toward more robust interaction with and reliance upon specialized academic disciplines like economics, history, political theory, sociology, and philosophy. More and more entry-level teaching candidates, at least at the upper-echelons of legal academia, hold advanced degrees in one of these fields, and legal scholarship itself reflects the change. A quick look at the titles of some recent legal scholarship makes my point: “What Divides Textualists from Purposivists?” in the Columbia Law Review (2006); “Bilateral Accidents With Intrinsically Interdependent Costs of Precaution” in the Journal of Legal Studies (2005) (with pages and pages of equations), and “Extra Rempublicam Nulla Justitia?” in Philosophy and Public Affairs (2006). Now, I’ve read every word of these three articles (though perhaps not every equation in the “Accidents” piece), and these pieces are all excellent examples of current legal scholarship. But there is certainly room for and a great need for normative doctrinal and policy work, which is in danger of becoming unfashionable. A first-rate journal published at a first-rate law school that seeks out and generates high-quality work of this type will help to fill a widening and lamentable gap in the world of published legal scholarship.
Wearing my hat as Dean Elena Kagan’s “Special Advisor on Public Service,” I offer the new baby journal a map, to foster exploration of the routes that connect legal education to world of public service. The Dean and I and many other members of the faculty and staff of Harvard Law School urge our students not to forget their opportunities and obligations to promote the public good as lawyers. The conversations and interactions that the new journal will foster among students, scholars, policy makers and activists will serve as signposts along the many roads that law students can follow to promote the public good with their newly developing legal skills.
And finally, wearing my hat as one of the Co-Chairs of the ACS Issue Group on Criminal Justice, I offer the new journal a visitor’s pass to our nations prisons and jails. The perspective of the policed and imprisoned is often missing from our nation’s many discussions of criminal justice, because the more than two million Americans who are currently incarcerated are among the poorest, least educated, most disenfranchised, and least powerful people in the country. They are also disproportionately drawn from racial minority groups, and thus our quest for criminal justice is inextricably tied to our nation’s difficult quest for racial justice. The new journal would do well to use my pass to look carefully at America’s enormous commitment to imprisonment and its impact on the communities which are most affected by our current criminal justice policies.
Remember that in the Sleeping Beauty story, the one fairy who was not invited to the baby’s baptism was enraged by the omission and showed up anyway, bestowing a curse on the baby that she would prick her finger on her 16th birthday and fall fast asleep (at least until rescued by her prince). The new journal should remember always to include those who question or even passionately reject the journal’s own progressive vision. Progressive activists for social change must welcome these sorts of challenges in order to widen and deepen their visions and to become compelling agents for change. Otherwise, we’ll all nod ourselves off to sleep in a stupor of self-satisfied agreement. We can’t afford to wait for a prince to come and wake us up. So, baby journal, be your own alarm clock and keep us all awake with your incessant, exciting buzz.
*Carol Steiker is Professor of Law at Harvard Law School and a Faculty Associate at the Harvard University Edmond J. Safra Foundation Center for Ethics.