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Crimson Tied

Crimson Tied

By Steven Stark - March 12, 2009

Barack Obama's presidential campaign was successful in part because he was able to cleverly negotiate and navigate the battles that have plagued the United States the last few years: the culture wars and constant red-state/blue-state bickering. Now, though, his leadership style is being placed at the center of a newly discovered confrontation, one whose rivalry dates back at least 100 years.

About a month ago, Noam Scheiber had a piece in the New Republic attributing many of the stylistic differences between Barack Obama and Bill Clinton to the fact that the former attended Harvard Law School and the latter Yale Law School. I'm sure that, when most non-lawyers hear of this conflagration, they yawn and wonder how, in this time of crisis, Harvard vs. Yale could be relevant to anyone. But as someone who graduated from Yale Law and once taught a course or two at Harvard, I think there's something to Scheiber's thesis. And, despite the surface snobbishness of such a debate, it says something important about this administration's approach to our problems -- and how that might cause trouble for the country.

Obama is, of course, a product of Harvard Law, and his books document the important influence of his Crimson experience. He has gone on to populate his administration with fellow Harvard Law grads and current profs, from former dean Elena Kagan to Cass Sunstein.

But the bottom line is this: if Scheiber is right in his initial thesis, what the times call for is a Yalie, not a Harvard man (or woman). He argues that different institutions produce different kinds of leaders, just as the military produces a different leadership style than, say, the political world. In a unique crisis like the present one, it makes all the difference what a leader's intellectual instincts are. And, taking off from where Scheiber began, it may well be that, at least now, Obama has exactly the opposite instincts we need.

It all has to do with how each of these two major institutions structures its approach to legal education and public policy. According to Scheiber, the much smaller Yale sees its mission (or at least it did when Clinton was there) to encourage its students to be more creative -- "to unlock students' innate brilliance in an atmosphere of freedom, intimacy, and intellectual ferment." And, Scheiber writes, as president, "Clinton was everything you'd want from a good Yale Law student: creative, deep-thinking, engrossed by public policy. But his White House was chaotic."

In contrast, Scheiber wrote, Harvard was more formulaic and traditional, priding "itself on instilling discipline . . . [It] was, in certain respects, a three-year hazing ritual." And Obama "absorbed the dispassionate, conservative, relentlessly logical mode of analysis a Harvard legal education was meant to convey."

It's certainly true, despite what Schieber writes, that the two schools are not that easily categorizable; there are plenty of Harvard types attending Yale or teaching there, and vice versa. And there is a bit of student self-selection that gives each school its personality: the kind of students who would turn down the better known Harvard to go to Yale are probably more apt to be a bit more non-traditional than their Cambridge counterparts. Certainly that may have been the case with both Clinton and Obama, who undoubtedly embodied some of the traits of their law schools long before they got there.

Nevertheless, assuming that law school is the great determinator, this is one time in our history when we may need the Yale approach more than the Harvard one. As the market and economy spiral down, it's becoming increasingly clear that the old, traditional models have failed -- and continue to do so. What's needed is something new, dramatic, and unusual. All things being equal, a group of Yale Law graduates is likelier to come up with something outside the box than their Harvard counterparts.

That, in fact, is the lesson of the early days of Franklin Delano Roosevelt's administration. At that time, Columbia Law School was the Yale of its era. In the 1920s and early 1930s, it was the center of the Legal Realist movement, with future New Dealers such as Felix Cohen and a young William Douglas on the faculty. The Realists insisted that legal education should include social-science analysis -- hardly a radical idea now -- but one resisted by many then, including the "formalists" at Harvard. Vastly oversimplifying, the Realists believed that the law was not something determinate but whatever any particular individuals (judges, legislators, etc.) decided at a particular time.

FDR, a fellow Columbian, relied heavily on a Columbia "Brain Trust" (including Adolph Berle and non-lawyer Rex Tugwell) when he constructed the largely experimental programs of the early New Deal. (It's worth mentioning that Harvard came to play a significant role, too, especially with the "Second New Deal," as Harvard Professor Felix Frankfurter, who argued against some of the more leftist programs of the New Deal, sent dozens of former students to DC to work in the administration.)

Experimentation or the tried and true? Creativity or discipline? The truth is we need a mixture of both. But if one is to be preferred to the other, when the Democrats had a choice this past spring between a graduate of Harvard Law and a graduate of Yale Law -- namely Hillary Clinton -- did they pick the wrong school?

To read the "Stark Ravings" blog, go to thePhoenix.com/blogs/starkravings.

Steven Stark

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