Taking the Stand

by Alan Dershowitz

  4

  BEGINNING MY LIFE AS AN ACADEMIC

  Harvard Law School

  I arrived in the Boston area during the summer of 1964 with my wife and two sons, first renting an apartment in Brookline and then moving to Cambridge a year later.

  I began my teaching career at Harvard at the age of twenty-five, having been hired while still a law clerk, on the basis of my law school record and several articles I had published as a student. Some of my students were older than I was, and more experienced. I was called the “Boy Professor.”1 It was intimidating. It was also exhilarating to stand in front of 175 brilliant recent graduates of the colleges I couldn’t even have dreamed of attending—and teaching them. Here I could unload both barrels and not worry that I was offending a teacher or judge. I was the teacher. My students were worried about offending me!

  Preparing for classes that I had never before taught was a full-time job. When I began teaching, the two “best” teachers were reputed to be Clark Byse and Ben Kaplan. I wanted to learn from the best, so I asked if I could sit in on some of their classes. Both refused. Professor Kaplan asked me, rhetorically, whether I “allowed people to watch while you make love with your wife?” I replied, “Of course not.” He smiled and said, “Well, I make love with my students and don’t want anyone watching.” I was tempted to respond that if I had 175 wives and made love to them all at once, I wouldn’t notice if people watched. I had to figure out how to teach based on trial and error. For the first several years I did nothing but teach and write. It was a full-time job, and I had no time for cases or other outside activities.

  My first assignment was to teach the required first year course in criminal law.2 The men were dressed in shirts and ties; the handful of women wore skirts. The teaching style of the day was Socratic, with the teacher posing hypothetical questions based on real cases. The Socratic method came naturally to me because of my Talmudic background and argumentative nature. From the beginning I sensed that the traditional casebooks did not give the students an appropriate balance between the theory of law and its real-world practice. I decided to write my own book, along with my criminal law mentor at Yale, Joseph Goldstein.3 I also decided to supplement my book weekly with materials about current developments. My goal was to keep the students up-to-date while also preparing them to practice, teach, judge, or legislate until the end of their careers a half century hence. I also wanted to introduce my students to other disciplines—psychology, sociology, economics, biology, literature—that would enrich their lives as lawyers. I rejected any sharp distinction between “theoretical” and “practical” approaches to teaching, believing that theory must be tested by practice, and that practice should be informed by theory.

  From the first day, I loved the Socratic exchange with students. But I noticed that even though several of my students were older than me (William Bennett, who even back then was a brilliant, articulate, and unembarrassed conservative, was among them, as was David Gergen), many were intimidated by the fact that I was the professor. The professors depicted in the movie The Paper Chase were still the rule at Harvard, and students were terrified of making a mistake. I wanted to loosen them up, so I decided on a ploy. About a week into the class I deliberately made a mistake about a case, asking what the jury instruction had been. A student sheepishly raised his hand and said, “Professor, there was no jury instruction—the case was tried before a judge.” I said, “Woops—I made a mistake. You’re right,” and I moved on. After that “mistake” the students loosened up and were prepared to take more risks.

  Sometimes my mistakes in class were unintentional and embarrassing.4

  I offended some of my Jewish students while discussing affirmative action in Canada, where only “visible minorities” are eligible for preference. A student asked me whether Jews were a visible minority. I responded, “No, we’re an audible minority.” I got flack from a number of students who thought I was reaffirming a stereotype. I quickly learned that humor was important to my teaching, but that humor based on racial, gender, or religious stereotyping could raise sensitivities.

  I was sympathetic, therefore, when I asked a first year student how he would have responded to a particular plea bargain offer. His response: “I would have tried to Jew him down a bit.” The class was appalled at his ethnic slur. But I understood that he was probably just regurgitating what he had heard at his dinner table. I spoke to him after class. He was genuinely mortified. I’m sure he never repeated that slur.

  One day in Criminal Law I had a particularly obnoxious student who kept trying to one-up other students by referring to his background in philosophy. He would always begin his statements by saying, “Kant would say …” or “Hegel would say.…” We were going to be studying an essay by the great contemporary philosopher Robert Nozick. This was shortly after the release of Annie Hall, in which Woody Allen is standing in line for a movie and overhears a pretentious man regaling his date with information about Marshall McLuhan. Woody then pulls McLuhan from behind a sign and has him confront the man, saying, “You know nothing of my work.”5 I told Bob Nozick, who was a close friend, about the student, and on the day in question, Bob sat in the back of the room with a hat over his head. As soon as the student began, “As Professor Nozick would say …,” Bob took his hat off, strutted to the front, and declared, “You know nothing of my philosophy.” He then turned to me and said, “And neither do you.” We all had a good laugh, and Bob co-taught the rest of the class with me.

  Because I was a rookie, I tended to spend an enormous number of hours preparing for each class. I stayed up the night before planning my questions and strategies and got to the law school at 7 A.M., parking in the first available slot. Several days into the semester Professor Clark Byse mentioned at lunch that Dean Griswold was sizzling mad because someone was taking his parking spot. Nobody had told me that the first spot was traditionally reserved for the dean.

  Dean Griswold was quite concerned about my lack of sophistication. I had never been outside the United States, barely out of the Northeast. I still spoke with a Brooklyn accent and, occasionally, allowed Yiddishisms to creep into my conversation. Griswold decided to take me on as a project. In the spring of my first year, he told me that he wanted me to go to England and France to look into criminology institutes. The school would pay for the trip, and various alumni would show me around. I was a bit surprised when I got to Paris and discovered that there was no criminology institute to speak of. In London, I was invited to represent Harvard Law School at the 750th anniversary of the Magna Carta, at Westminster Abbey, where I sat several rows behind the Queen. It was only years later that Griswold acknowledged to me that the criminology institutes were just an excuse to have me travel and acquire a bit of culture. It worked. I bought my first piece of art in Paris on that trip—a Kandinsky lithograph for which I paid $25.6 While in Paris, I was offered the opportunity one night either to attend a Paris opera or to hear a new group of British pop singers. Because I was trying to acquire culture, I chose the opera, and missed an opportunity to hear the Beatles in person. My children still kid me about that one.7

  Shortly after I began teaching, the Harvard Law Record wrote an article, headlined “The Psyche and the Law,”8 describing my somewhat unusual approach to teaching.

  His course in criminal law seems to some not to be a law course at all. For in place of abstracted appellate decisions, the would-be lawyers read pages by Margaret Mead. Where one would expect a capsule treatment of criminal procedure, he is apt to find a papal lecture on medical research and morality. Instead of listing categories of offences, the students skim Alfred Kinsey’s report on the sex life of American males.9

  The article described me as “probably the youngest man ever named to the Harvard Law School faculty, [who] got his appointment at age 24.”10 It quoted me saying that “there’s no such thing as The Law.… Law is one of our many processes for ordering society. You can’t view this process as a neatly compartmentalized entity
. It must be viewed in its full perspective as an ongoing system.”11

  The article said that I saw my job not as teaching “the specifics of law in any jurisdiction; anyone can find that on his own,” but as teaching my students how “to ask the right questions and bring to bear the right information for the right purpose.”12 In other words, how to think critically and teach themselves.

  Some traditionalists were appalled. One alumnus wrote to the school newspaper:

  Professor Dershowitz seems to epitomize some of the lack of reality at the law school.… Until such time as our whole penological system is changed, the law student is going to have to know his “law” [to] do a lawyer’s job. One cannot deny the credentials of Professor Dershowitz’s genius, but I question whether the application of his genius as apparently applied, is of any help making good lawyers out of Harvard law students.13

  Justice Arthur Goldberg wrote a letter defending my approach, assuring my critics that “Mr. Dershowitz’s students will be the beneficiaries of his engaging personality and extraordinary insight into the subjects he will teach, just as I was.”14

  The Harvard Law Record also editorialized that

  it is good to know that many of these subjects are being injected into the Harvard Law curriculum by young Professor Alan M. Dershowitz; no doubt, even with our liberal arts backgrounds, we could stand and benefit from more such learning.

  Shortly thereafter, an article in the New York Times Magazine, comparing Harvard and Yale Law Schools, described me as “a fresh wind blowing through Harvard” and an extremely popular teacher.15 That article accorded me legitimacy even among some skeptics. At the end of my first year, I was given the highest teaching rating among the faculty. A subsequent article said that “his students have praised him as ‘the master of the hypothetical—answer one correctly, and he’s got one in his arsenal that’s guaranteed to tie your tongue in knots.’ ” Soon, younger teachers were asking to sit in on my classes. I said yes.

  I had the same goal for every class, and when I think back on it, it was far too ambitious: I had to say something original, teach something that had never been written before. That was my aspiration, and I worked hard to achieve it. Law, of course, is based on precedent: You got points for showing that someone, particularly a judge, had said earlier what you were saying now. I hated that approach. It reminded me of my yeshiva education. I wanted to be original. I knew the students wouldn’t appreciate it, because they wouldn’t know that what I was saying had never been said by anybody, but that was my way of satisfying myself. I would rip up my notes at the end of the year and start from scratch. I was an energetic teacher, trying to put everything I had into each class.

  Because I was teaching Criminal Law, I had a lot of freedom: No one really cared about Criminal Law at Harvard. Our students were unlikely to become criminal lawyers. In fact, I started out one of my classes by saying, “Statistically, more of you are going to be criminal defendants than criminal lawyers, so pay attention.” My first year “Crim” class was not a bread-and-butter course like those concerning corporations or tax. I don’t think I would have had the same freedom had I been assigned to teach contracts or property.

  From the very beginning of my career at Harvard, I taught the widest assortment of classes. If I wanted to learn a new subject, the best way was to offer a seminar in that subject and learn it along with my students. I measured the success of a class not only by what I had taught my students but also by what I had learned from them. My standard courses were Criminal Law and Criminal Procedure, as well as Law and Psychiatry. I taught those every year, though I varied the content. I also offered a course or seminar in a new subject that I had never previously taught. Often it reflected the passion of the times, such as the Vietnam War, racial violence, Watergate, and the like. It was a challenge to learn a new subject every year, but it kept me fresh and made me avoid the problem some teachers have of simply regurgitating the same ideas.

  One reason why so many teachers become stale is that their students spend the class time taking notes. Many students are quite adept at verbatim transcription, using various forms of shorthand. (Today, of course, computers are the note-taking tool of choice.) I hated to see my students behaving like courtroom stenographers, looking down at their notebooks while I or one of their classmates talked. To counteract this phenomenon, I would walk up and down the aisle, confronting students and asking them questions face-to-face, emulating the approach that had been used by Professor Bickel in his seminar. I loved Bickel’s style because I never took notes, but it had made some of my note-taking classmates nervous to miss getting down even a few of the professor’s pearls. It also upset some of my students. So I developed another approach.

  In my first year Criminal Law class, I prohibited (meturnished) any note-taking during the first two weeks, banning pens, pencils, and notebooks. I insisted that the students learn to listen, remember, and respond without any crutches. In exchange for denying them the right to take notes, I promised that none of the introductory material covered during this note-free period would be on the exam. This helped to loosen them up. By the beginning of the third week, when note-taking was permitted, many fewer students behaved like stenographers. More of them looked directly at me and their fellow students when we were speaking, and more of them participated in the class discussion.

  Although I came to Harvard Law School as an avowed liberal, I have tried hard not to use the classroom to propagandize my captive audience. My goal is not to turn conservatives into liberals, but to make conservatives more thoughtful conservatives, better able to articulate and defend nuanced positions. The same is true of liberals and everyone else. I always play the devil’s advocate, challenging every view and questioning every idea.

  Malcolm X at Harvard

  Shortly after I began teaching, students from the Harvard Law Forum asked me if I would introduce the controversial Malcolm X. He had been invited to speak, but no senior faculty member would agree to introduce him, and the rules required that a faculty member perform this function. I agreed, despite my disagreement with many of Malcolm X’s views. He had just returned from a trip to Mecca, where he embraced Islam and began to say some awful things about Israel, Zionists, and Jews. But, believing in free speech, I agreed to facilitate his appearance.

  As I introduced him, I noticed that he was wearing what appeared to be a large camera case slung over his shoulder. I later learned that it contained a gun, and that the reason no other faculty member would agree to share the stage with him was as much because his life was under constant threat as because of his controversial views.

  The event went smoothly. Archie Epps—a distinguished African-American Harvard dean—made introductory comments in which he sharply distanced himself from the views of Malcolm X. Then I made my somewhat more critical introduction. Malcolm X then proceeded to regale the crowd with his controversial views on black liberation.

  Following the speech, we went to dinner. I was seated next to Malcolm X, and we spent most of the dinner arguing about the Middle East. I asked if he would be willing to travel to Israel. He said no, because he regarded it as occupied Muslim land, but he added, “I would be much safer in Israel than in the Arab countries I visited, and safer than I am here in the United States.” Within months of making that comment, Malcolm X was gunned down in Harlem.

  Several years later, Dean Epps edited a book entitled Malcolm X: Speeches at Harvard.16 He included the speech as well as my critical introduction. But he excluded his own critical introduction. By this time, Malcolm X had become a martyr, and my critical views seemed out of place, so I called Epps and asked him why he decided to include my critical comments but not his own. He responded, “That’s the advantage of being the editor. You decide what stays in and what goes out.”

  Students who don’t read my outside articles are often unaware of my political views. For example, in class I generally make the case for capital punishment, because that is an unpopular view among
the students. I espouse other “devil’s advocate” positions as well. I also assign readings with which I fundamentally disagree, so long as they are well reasoned and present a perspective that the students are likely to encounter in the real world.

  A few years after I became a full professor, Derek Bok, then dean of the law school, called me into his office and told me that I was a very expensive professor. Since salaries are fairly standard at Harvard, I didn’t know what he was talking about. He pulled out a letter from a Harvard alum saying that he would make a very considerable donation to Harvard Law School on condition that I was fired. Many of the old-fashioned alumni were upset that I was teaching subjects like Psychiatry and Law, but this alum had a more personal grievance. I had successfully represented, on a pro bono basis, a young man I had grown up with in Brooklyn, who had been accused of making a bomb for the Jewish Defense League that had caused the death of a young woman employee of Sol Hurok’s.17 The young woman was the sister-in-law of this wealthy alumnus. If I were fired, he would donate a large building worth millions of dollars. I suggested to Derek Bok that maybe we could make a deal for a significant severance package. We both laughed, knowing that a great (and rich) university like Harvard could never, by the threat of withholding any amount of money, be intimidated into firing a tenured professor.

  In my second semester of teaching, I was assigned to teach Family Law, which was an elective popular with women—women lawyers were thought suitable to practice in such “soft” areas of law as divorce and child custody. My class included some of the most prominent women graduates of that era, including Liddy Dole, who became a United States senator; Elizabeth Holtzman, who became a member of Congress and the district attorney of Brooklyn; Elizabeth Bartholet, who is a professor at Harvard Law School; and several other prominent figures.