Three years ago, when Michael McConnell first decided to become a law professor, he began searching for a school at which to teach. He looked at Stanford, Yale, the University of Michigan, and the University of Chicago, but he didn't look at Harvard.
"I did not want to get mixed up in an ideological debate,' McConnell said.
McConnell, now an assistant professor at the University of Chicago Law School who recently testified in favor of the Supreme Court nomination of Judge Robert H. Bork, said that the political debates which have plagued Harvard Law School for several years make it a less attractive place to come and teach.
"[The political debates] must have some effect on the recruitment of faculty at Harvard, and it must be negative," he says. "I don't want my academic life to be consumed in academic infighting."
Harvard Law School's faculty has gained a reputation for destructive division among legal scholars across the country. In interviews during the past month, professors and deans from other law schools said that the political debate, which has attracted national media attention, will hurt the school in the long run. They said Harvard will find it more it difficult to recruit young scholars and that the division could create an adverse educational environment.
The bitter debate is a result of the rise of Critical Legal Studies (CLS) and, in turn, its vocal opponents at Harvard Law School. The schism between these two relatively small but intellectually agressive factions has grown wider and more public over the past few years--leading to full-fledged scholarly war during the past six months on the battlefield of tenure decisions.
CLS is a radical school of legal thought which holds that the law reinforces prevailing social and economic norms rather than representing fixed, abstract notions of justice. Those opposed to CLS, considered to be conservatives, argue that the teaching of law is based on absolute definitions of what is just. The natural academic battle between CLS adherents, called crits, and the conservatives has wracked the law school making the tenure process extremely volatile and public.
The only two assistant professors to be denied tenure since 1969 were crits. The second of these, Clare Dalton, asked President Bok in July to review her case. Last spring, she missed the two-thirds majority needed to recieve a permanent post by only three votes.
Dalton and her supporters have charged that a small group of conservatives launched an attack against her work after she received favorable tenure recommendations from outside reviewers. Bok has returned her case, with the internal criticisms that came after the outside review, to those same reviewers.
In addition, last spring a large majority of the faculty voted to offer Visiting Professor David Trubek of the University of Wisconsin a lateral appointment, but Bok overturned that decision at the request of a small group of professors. Trubek, a crit, was opposed by the conservatives. This case was the first time the president of the University overturned a decision of the Law School faculty.
Both these cases smoldered throughout the spring and summer. Dalton threatened to sue the University if Bok did not tenure her, and Trubek coined the phrase "the Beirut of legal education" to describe Harvard Law School.
As the crits and their supporters continue to make headlines, their opponents are reluctant to talk. Professors and administrators hesitate to speak about the internal problems of the faculty, saying that the tenure process should remain confidential.
Those outside the University say that the Law School is suffering badly from these battles both in recruitment efforts and public perception.
Although the 24 outside legal scholars contacted for this article have not all benefited from first hand experience of life at Harvard--and many refused to comment because they said they had imperfect information--all had read about the problems at the Law School and heard about them from their friends at the University.
The outside scholars, who range across the entire legal scholarship spectrum, pointed to many areas of school life on which the division is likely to have made an impression--from classroom atmosphere, to hiring difficulties, to professors leaving.
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