Harvard Law Bulletin

In the Classroom

Lawyers as Advisers

A joint-degree program seminar bridges law and public policy

Since the first meeting of the seminar taught by David Barron ’94 of Harvard Law School and Archon Fung of Harvard Kennedy School, students had been using case studies co-written by the two professors that put them in the situation room with advisers on real-world problems at the intersection of law and policy.

But during a session of Public Problems: Advice, Strategy and Analysis in November, a player in the case they were discussing sat at the table with them: Josh Stein J.D./M.P.P. ’95, North Carolina state senator and Democratic minority whip, who had firsthand experience with an innovative but contentious piece of legislation—the North Carolina Racial Justice Act.

Passed in 2009, the act allowed prisoners on death row to challenge their sentences “on the basis of race” and to draw on broad statistical evidence of bias. By early 2012, a judge had commuted the sentence of one of the state’s death-row inmates to life without parole (the act’s remedy), and nearly all other North Carolina death-row prisoners had filed challenges. But in June 2012, the Republican-dominated state Legislature radically narrowed the statute.

The course—the bridge seminar for the Harvard joint-degree program in law and government (see sidebar)—aims to teach students to give advice on issues that have both legal and policy dimensions but also to understand the stakes for the institutions involved. Stein, who had just been elected to his third term in the North Carolina General Assembly, engaged students in a candid discussion of the twists and turns in the act’s evolution and the legislative process that led to its passage—and its eventual curtailment.

In a down-to-earth style, he described the complicated dance between the overlapping but not identical interests of the act’s supporters (including anti-death penalty activists and members of the NAACP) in a state that has been struggling with a legacy of racially flawed prosecutions while remaining strongly pro-capital punishment.

As it emerged that when the act was first drafted, it contained no remedy, the class discussion came to a boil. One student argued that without a remedy, it wasn’t primarily anti-death penalty legislation but had more to do with fairness—like a truth and reconciliation commission. Another student said that wouldn’t do much for those on death row: “If it’s a statement, there are better ways to make it.” Others speculated that activists must have hoped the legislation would make it through without a remedy, to allow leeway for resentencing and possible eventual release.

Stein replied frankly, describing the reality of state politics in general and North Carolina’s in particular. When he was elected to the Senate in 2008, he was one of 30 Democrats and 20 Republicans. By 2010, he became the Democratic Senate minority whip after his party lost 11 seats in that chamber. Barron passed around a copy of a mailer that targeted a politician who had supported the act.

For Ruthzee Louijeune J.D./M.P.P. ’14, Stein’s perspective was sobering, “but really good information to have about what it’s like to work in the political framework to advance a cause when you are in the minority.”

Other guests to the class have included Professor Daniel Meltzer ’75, former principal deputy White House counsel, who taught a case on the Defense of Marriage Act, and Mary DeRosa, National Security Council legal adviser to President Obama, who led a case on the executive order to close Guantánamo.

Barron himself served in the Obama administration as acting head of the Justice Department’s Office of Legal Counsel. He said it was that experience that made him want to teach this seminar.

“Nothing convinces you more of the need to have people give you good legal advice than having to make decisions,” he said. “You realize how dependent you are on people who are advising you. I wanted to make sure our students focus attention on what it means to provide advice in these complex public settings.”

In addition to the joint-degree candidates, the class also included students from both schools who have done related work, such as the LL.M. candidate who is an adviser to the deputy prime minister in Australia or the Kennedy School student who was a political consultant to the Mexican government.

Matt Ivey LL.M. ’13, an active-duty Navy JAG officer, praised the applicability of the course to his experience in the military and the lawyering he hopes to do in the future. “A lot of law school classes are from the 5,000-foot level,” he said. “This class brings us back down to the ground to where most of us will probably start or continue our practice.”

Ryan Rippel ’12, who took the class last year, said he often applies its lessons in his job at the Bill & Melinda Gates Foundation. Rippel is now focused on “participatory slum upgrading in five cities in Africa,” trying to get the cities to be more responsive to the needs of the urban poor and to help those living in slums organize themselves to have a voice in local decision-making to secure domestic resources.

“A lot of my work begins with looking at law,” he said, “but what the class made very clear is that you need to understand the context in which the law is operating. That requires some sense of politics, the economy and the markets. But more than anything, it requires a sense of the personality of the decision-makers and the various constituencies you are trying to partner with.”

—Emily Newburger

See also:
Where Law and Public Policy Meet

Next: Administering Justice

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