Covering the Front and Back Pages of the Newspaper
November 19, 2002
LAW: Nesson and Rosenberg
Either things have changed quite a lot since I graduated in 1996, or Dorothy Rabinowitz is entirely overwrought in her conclusion that "At Harvard Law today, skill in hard combative argument is no longer prized, nor even considered quite respectable. Indeed, first-year law students can hardly fail to notice the pall of official disapproval now settled over everything smacking of conflict and argument." True, with the death of Philip Areeda, HLS is down to just one agressive practitioner of the Socratic method (Arthur Miller), and the school no longer flunks a lot of students. But I'd invite her to attend one of Alan Dershowitz's classes, or any Con Law section, if she thinks that argument and intellectual combat have given way to holding hands and singing 'Kumbaya.'
The real, and more substantial charge in her article is that the administration caved in too easily to demands from the Black Law Students Association for punishments for Professors Charles Nesson and David Rosenberg for alleged racial insensitivity. Now, you have to get the background here. Nesson is a strange, strange man (some of you may remember his protrayal as 'Billion-Dollar Charlie' in the book A Civil Action, or as one of the moderators of Fred Friendly's 'Ethics' series on CBS in the 1980s, which brought together congresspersons, network anchors, priests, generals and judges to discuss difficult hypothetical questions of ethics), who has spoken publicly about his drug use and generally worked hard to be seen as an eccentric who's not afraid to force people to look at things from different directions. Indeed, Nesson's favorite illustration in his Evidence casebook is the 'Necker cube," the box of lines that seems to change directions depending how you look at it. I personally didn't find his "Introduction to Lawyering" class exceptionally useful, but he did give us some real-world examples of things like obstructive conduct in the defense of depositions that are rarely seen in the law school environment but all too often displayed in the real legal profession. Nesson's attempt to put the user of a racial slur on trial, with himself as defense counsel, is of a piece with this; maybe (as Dershowitz did when my Criminal Law class discussed rape), he should have warned people that if they'd be too upset to listen to this discussion, they should leave the room and come back in a few days (then again, now that I think of it, Dershowitz also devoted a third of the final exam to rape shield law, so maybe that's a bad example). But it's really sad if law students think that some things are so upsetting they can not even be put on trial and opened to debate.
As for the other accused professor, I suppose some people just don't like Professor Rosenberg. I had Rosenberg for first-year torts, and he presented himself as an outsized caricature of the politically incorrect professor. He threw a casebook at the wall the first day of class and argued that most of the 'law' of torts was useless and meaningless in the real world; when anyone would get too far into actual doctrine he would snap, "when you graduate you can hire people from Yale to make dumb arguments like that." He claimed to hand out grades via a roulette wheel in his office. He also made an obviously tongue-in-cheek show of being politically incorrect, like claiming to enjoy clubbing baby seals for sport. One guy in my torts class did nothing but take down funny sayings of Rosenberg (and he got an A+, so who am I to argue?). Anyway, taking a stray remark from David Rosenberg as the cause for theatrical outrage seems to be an obvious case of a complete failure of the irony detector.
It's been a tough year for Dean Clark, who may have felt pressure to throw a bone to perennially dissatisfied campus Leftists after the Solomon Amendment compelled him to go back on HLS' policy of discriminating against military recruiters. Law students are never a happy bunch; we used to joke about the fact that the business students all cheer their dean at graduation, while law students are always in the middle of some mass protest. And giving people permission to cut class is no great revolution; some people don't go to class at all, ever, anyway (some of the school's urban legends suggest that Nesson was one of these in his student days). I can't necessarily fault Dean Clark for letting Nesson step down voluntarily, since Nesson has come under disciplinary scrutiny before, and his voluntary withdrawal may actually serve as a bit of a lesson here itself.
In other words, I don't entirely fault the administration here; far harsher measures were available, and I'm sure the BLSA is deeply dissatisfied with the response anyway. Nor do I suspect that open and contentious debate generally is endangered at HLS; the more likely result is simply that debate on race is stifled. But even that seems overstated; you can still take a class on race relations with Randall Kennedy, who's just written an entire book on the N-word. Another tempest in a teapot, but life will go on.