When I began teaching, Harvard Law School had been admitting women for only a decade, and some of the professors still didn’t believe that women could make good lawyers.18 I encountered this prejudice at the end of my first year.
The star student in my class was a woman from New York who eventually became a distinguished judge. She received an A grade on the final exam. Three of her other first year teachers also gave her A grades, but her Contracts teacher gave her a D. She asked me to read her exam. It was clearly of A quality. I was sure that her Contracts professor had simply made a transcription error, and so I went to his office to discuss it. He glanced at the exam and said, “Oh yes, I remember her. She doesn’t think like a lawyer. That’s why I gave her a D.” I later learned that this professor has been opposed to admitting women to Harvard Law School.
This episode persuaded me that something had to be done about the lingering prejudices of some of the faculty. Accordingly, I proposed “blind grading” of all exams, so that professors could not know the gender of the student until after the grades were submitted.
Decades later, my wife and I, and my son Elon, had dinner with then president Clinton and the First Lady. We had invited them to our synagogue on Martha’s Vineyard for Rosh Hashanah services, and they asked us to join them for dinner after the services. I asked Hillary why she had chosen Yale Law School over Harvard. She laughed and said, “Harvard didn’t want me.” I said I was sorry that Harvard had turned her down. She replied, “No, I received letters of acceptance from both schools.” She explained that a boyfriend had then invited her to the Harvard Law School Christmas dance, at which several Harvard Law School professors were in attendance. She asked one for advice about which law school to attend. The professor looked at her and said, “We have about as many women as we need here. You should go to Yale. The teaching there is more suited to women.” I asked who the professor was, and she told me she couldn’t remember his name but that she thought it started with a B. A few days later, we met the Clintons at a party. I came prepared with yearbook photos of all the professors from that year whose name began with B. She immediately identified the culprit. He was the same professor who had given my A student a D, because she didn’t “think like a lawyer.” It turned out, of course, that it was this professor—and not the two (and no doubt more) brilliant women he was prejudiced against—who didn’t think like a lawyer. Lawyers are supposed to act on the evidence, rather than on their prejudgments. The sexist professor ultimately became a judge on the International Court of Justice.
I told Hillary that it was too bad I wasn’t at that Christmas dance, because I would have urged her to come to Harvard. She laughed, turned to her husband, and said, “But then I wouldn’t have met him … and he wouldn’t have become President.”
Professor “B” was not alone in his negative views of women as lawyers. One teacher refused to call on women, except on one day of the year, which he called “ladies’ day.” On that day, he picked on them and verbally abused them to the point that some deliberately stayed away. Erwin Griswold, the dean of the law school and a great defender of civil liberties and civil rights, was a misogynist. Near the beginning of my teaching career, he invited me and all the entering women students—a small number—to his home for dinner. He warned the women that if they’d come to law school to find husbands, they would be disappointed: “Harvard Law School men don’t date Harvard Law School girls. They date girls from Lesley.” (Lesley was a neighboring women’s college.) He then went around the table asking each female student why she was taking up the place of a man who would actually practice law, while they got married and raised children.
Dean Griswold wasn’t particularly comfortable with Jews either. At the same dinner, he noticed that I didn’t eat the meat, and he asked why. I told him I was kosher, to which he responded: “Even the Catholics have eliminated the prohibition against eating meat on Friday. Don’t you think it’s time for your people to eat what everyone else eats?” I thought he was kidding, so I said: “I’ll check with my people.” He wasn’t kidding. The next time I saw him, I said: “I’ve checked with my people, and they said that they’ve been keeping kosher for thousands of years, so a few more centuries couldn’t hurt.” He didn’t laugh. I think this exchange kept me kosher for an extra few years!
For more than a year, Griswold called me “Shapiro,” which was the name of another assistant professor with a Jewish-sounding name. Griswold demanded that I teach classes on Saturday. I refused. He said he couldn’t make a special exception for me because I was a practicing Jew. I still refused. So he abolished Saturday classes.
Shortly after I was appointed to the Harvard Law School faculty, I had received a call from Judge Bailey Aldrich inviting me to present a talk to the members of his private club, called the “Club of Odd Volumes.” He assured me that its members included some of the best and most important lawyers in Boston, including several justices of the Supreme Court and other judges. “We invite all the new dons to tell us about their work,” he advised me.
Remembering Judge Bazelon’s refusal to speak at Justice Douglas’s restricted club, I politely told Judge Aldrich that I would get back to him. I then called the head of the Anti-Defamation League and inquired about the club. “They don’t accept Jews, Catholics, blacks, or women,” he responded. I called Judge Aldrich and told him that I had a strict policy against speaking at any “restricted” club and so I would respectfully have to decline his kind invitation. (I adopted that “policy” that day, having never before been invited to speak at a restricted, or any other, club.) He thanked me for considering the invitation. Within an hour, I was abruptly summoned into the dean’s office.
Dean Griswold informed me that I had offended one of the law school’s most important alumni, that I was the only assistant professor ever to turn down an invitation to speak at that club, and that it was important for untenured faculty to present their work there, because several of the members served on the Harvard Board of Overseers, which approved all tenure decisions. He chided me: “You’ve hurt your chances. Why did you decline their invitation? Will you reconsider it if I can get them to invite you again?”
I said no and explained my reasons. Griswold, who despite his Midwest origins considered himself an honorary Brahmin, was a cautious advocate of civil rights and civil liberties, so I thought he would understand. He paused, looked directly at me, and said, “While I don’t agree with you, considering your background I can understand why you would feel uncomfortable at that club. I’ll call Bailey and try to explain. I hope you haven’t hurt your chances.” That was the last I heard, until a few years later, when Dean Griswold informed me that the chairman of the overseers subcommittee being asked to review and approve the faculty decision recommending me for tenure was an active member of “the club.” I was ready for a fight. But I was approved, the dean later told me, by a unanimous vote.
Several years after I began teaching, I was invited to deliver a named lectureship at a major university. Following my talk, there was a dinner at the local university club. When I got to the club, several women were picketing because it was a men’s-only club. I refused to cross the picket line, and the dinner had to be moved to a different venue, over the strong objections of the chief justice of the state, who had sponsored the dinner. I had a similar experience in Columbus, Ohio, after I argued an important case on behalf of a law firm in the city. They invited my female associate and me to have dinner with them at the local university club. When we got there, they asked my associate if she wouldn’t mind walking in through the side door since the main entrance was for men only. Since she was a young associate, she reluctantly agreed, but I refused to let her demean herself. We had dinner at a local restaurant. Several years later, I was invited to Australia to give a series of lectures, and the Harvard Club of Sydney asked me to give a luncheon talk. I agreed. When I mentioned to a friend that I was going to be speaking at the Australia club, he advised me that it was closed to Jew
s, women, and blacks. I gave the club two options: I would keep my commitment, but I would speak about why it was wrong for Harvard to hold events at segregated clubs, or they could move the speech and I would give a talk about life at Harvard. They chose the second alternative. When I returned to Harvard, I wrote to the dean, and a memo was circulated mandating that henceforth no Harvard professors, speaking on behalf of Harvard, should appear in a segregated venue. When a Jewish country club in Boston asked me to talk, I declined the invitation. They explained that the club had been established in reaction to the unwillingness of other country clubs in the area to accept Jewish members. I told them that this did not justify further discrimination. The membership chairman called and told me that, in fact, the club had six non-Jewish members. I made the speech. A young member approached me and told me I had been conned: “Sure, we have six non-Jewish members, but they’re all sons-in-law of Jewish members.”
When I joined the Harvard Law School faculty, it was quite small—perhaps three dozen full-time professors. (Today there are more than one hundred, with a student body that hasn’t increased in size.) The entire faculty would meet for lunch in a small dining room, around a large table presided over by the dean. The discussions would revolve around legal issues. The criterion for judging an argument was its “soundness.” That word still rings in my ear, like my grandmother’s “meturnished.” All faculty nominees had to have “sound” judgment. Their writing had to be “sound,” rather than creative, speculative, quirky, or provocative. I was concerned because my views were anything but “sound”—at least as judged by some of the more traditional faculty members.
When I was choosing between teaching at Harvard and teaching at Yale, my Yale mentor, Professor Alex Bickel, who had been turned down for a professorship at Harvard because his views of constitutional law weren’t “sound” and who subsequently became one of the most distinguished law professors at Yale, advised me against going to Harvard. “You won’t fit in there,” he warned me. When I recounted this story recently to a Harvard colleague of fifty years, he replied: “Alex was right. You don’t fit in here.” I never tried to.
In order to obtain tenure, each assistant professor had to publish a “tenure piece.” I wrote an article on the relationship between law and psychiatry that was critical of the law’s overreliance on psychiatry in judging whether mentally ill criminals could be held responsible for their crimes and whether people thought to be dangerously mentally ill should be preventively detained in asylums.19 Because the article insisted that these decisions should be based on clearly articulated legal rather than on vague and subjective psychiatric criteria, and because it was somewhat critical of certain views espoused by Judge Bazelon—who was regarded as the epitome of unsoundness by the Harvard Law School establishment—it was deemed sound.
While I was being considered for tenure, I began to get offers from the other elite law schools—Columbia, Chicago, Stanford, Yale, NYU. I was earning $12,000 a year at Harvard and would be offered a raise to $14,000 when I received tenure. Stanford offered me $20,000, which at the time was the highest offer any assistant professor had ever received in the history of law teaching. It was well above what many full professors at Harvard were then making. I went to Dean Griswold and told him I couldn’t afford to turn down an additional $6,000 since I had two kids in private school and no money in the bank. He told me sternly that he could not pay me more than older professors. So he raised everyone’s salary, starting with mine, to $21,000. I became the most popular professor among my young colleagues, who all benefited from what became known as “the Dershowitz bump.”
In my early years of teaching, I was the only young faculty member who was clearly identified with civil liberties, teaching seminars and writing law review articles in that area. The faculty was largely conservative, though a few older members were active in liberal causes, the major one being racial equality. But freedom of speech and the rights of criminal defendants were not high on the agenda of most professors. So my active membership in the American Civil Liberties Union was viewed with suspicion, because some of the positions taken by that organization were not deemed “sound.” One faculty member—an old Brahmin named Mark DeWolf Howe—strongly encouraged me to become even more active, and he nominated me for membership on the national board of the American Civil Liberties Union, which I accepted. At the beginning of my tenure, the board was populated by genuine civil libertarians with no political or ideological agenda beyond the protection of everyone’s freedom of speech and due process right. My own approach to civil liberties was well represented by the final sentence of Thomas Paine’s essay on “First Principles of Government” (I own an original pamphlet):
He that would make his own liberty secure, must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself.20
It was for that reason, among others, that I supported the ACLU when it defended the rights of Nazis, Klansmen, and Communists to express obnoxious, even dangerous, views.
This neutral approach to civil liberties was challenged when efforts were made to impeach President Nixon in 1974. Nixon was indeed an enemy of civil liberties, and of the ACLU. (He apparently regarded me as an enemy as well, since I was repeatedly audited by the IRS during his tenure; I never had to pay a penny.) But when Nixon was named as an “unindicted co-conspirator” by a grand jury under the direction of the special prosecutor, I yelled foul. This caused some discomfort among my faculty colleagues, because the Special Prosecutor’s Office, originally headed by Harvard professor Archibald Cox, who was eventually fired, still had several Harvard people in important roles. But I thought it was unfair to designate the President as an unindicted co-conspirator, since a person in that status has no right to defend himself, because he is never brought to trial. I urged the ACLU to challenge this misuse of the grand jury and to protect our enemy’s civil liberties. The ACLU refused. Instead, it broke with its long-standing policy of not taking positions on political matters and officially called for Nixon’s impeachment. I dissented. I did not regard it as proper for the ACLU to take a position on so political a matter. It should have, in my view, defended Nixon’s civil liberties against unfair legal tactics.
Though I personally favored Nixon’s impeachment, the ACLU’s decision in the Nixon matter marked the beginning of a movement by the ACLU away from its longtime neutral commitment to free speech and due process and toward a more political, partisan, and ideological approach. The organization began to elect board members based on race, gender, and sexual orientation, rather than on commitment to neutral civil liberties. Board members so elected naturally regarded themselves as “representatives” of their constituencies and pushed the organization toward an agenda that emphasized the political goals of these groups, such as abortion rights and affirmative action—both worthy causes that I personally supported but did not regard as core civil liberties concerns. Before long, I left the board of the ACLU, though I continued to support its actions on behalf of civil liberties. I continued to teach and write in the area of civil liberties, using the Nixon situation as an example of the complexity of defending the civil liberties of those who would deny civil liberties to others.
In addition to teaching, my main job as a professor was to publish scholarship. During my first decade at Harvard, nearly all of my articles were published in law reviews. They focused on the role of prevention in our legal system. I wrote several long articles on preventive detention of persons believed to be dangerous, exploring the historical, empirical, and jurisprudential aspects of what I called the emerging preventive state.21 This was not only an important theoretical issue, it also had practical consequences, since more people were being confined based on predictions of what they might do in the future than on determinations of what they had done in the past.22 These “predictive prisoners” included hundreds of thousands of psychiatric patients, pretrial detainees, sexual predators, “persons in need of supervi
sion,” individuals with communicable diseases, material witnesses, and other deemed too dangerous to be left at liberty. I had become sensitized to the plight of these detainees without rights—this “black hole” in our legal system—through my work on psychiatry and the law, first at Yale and then during my clerkship with Judge Bazelon. I saw an opportunity both to do good on a practical level and to contribute to legal theory.
In one of my articles, I explored the history of prevention from the earliest biblical laws, through the British common law, to current American law. In another, I analyzed the claims of those who believed they could accurately predict future misconduct. I proposed a new jurisprudence designed to balance the need for preventive governmental action against the dangers posed by the preventive state. In my book-length article entitled “The Origins of Preventive Confinement in Anglo-American Law,”23 I issued a challenge to my fellow academics to help construct a new jurisprudence for the emerging preventive state:
Although preventive confinement has always been and will always be practiced, no jurisprudence of preventive intervention has ever emerged. It may sound surprising, even arrogant, to say this, but it appears to be true. No philosopher, legal writer, or political theorist has ever, to this writer’s knowledge, attempted to construct a systematic theory of when it is appropriate for the state to confine preventively.24
I then gave several reasons why there was no jurisprudence regulating prevention:
The mechanisms of prevention have been, for the most part, informal; accordingly, they have not required articulate defense or justification. Moreover, there are many scholars who simply deny that preventive intervention, especially preventive confinement, really exists; or if they acknowledge the existence of these mechanisms, they deny their legitimacy, thus obviating the need for a theory of jurisprudence. Finally, it is extremely difficult to construct a theory of preventive confinement that neatly fits into existing theories of criminal law and democracy.25
Taking the Stand Page 13
