Post Date: January 17, 2005

Every day on university campuses, graduate students defend their scholarship in front of faculty panels whose interrogations can be withering.

At Harvard Law School, the tables are being turned. Professor Kingsfield is in the hot seat, and the students are doing the questioning.

This fall, Professors Richard Fallon and Heather Gerken offered more than 30 students a rare chance to review and challenge works-in-progress by some of the country’s leading scholars in law. The setting was the Public Law Workshop, a series of seminars attended not just by the enrolled students and visiting scholars but routinely by other HLS faculty members.

Fallon and Gerken encouraged participants to probe, prod and troubleshoot the work of established legal scholars from Harvard and other law faculties, to help fine-tune their research and make midcourse adjustments to book drafts and law review articles in the field of public law, which Fallon described as a “broad, vague and not well-defined” area that combines constitutional and administrative law.

“Public law is basically shorthand for any area of law in which the government has a strong interest or would be a party to a lawsuit,” Fallon said. For the students—many of whom are considering academic careers—the workshop was a primer on standards and methods of legal scholarship. “This was a tremendous opportunity to find out how top-quality scholarly work is produced,” said one student after a workshop in December in which Professor Steven G. Calabresi of Northwestern University School of Law presented research supporting his view that the Independent Counsel Act was unconstitutional.

For more than two hours, Calabresi defended various aspects of his methodology in the face of wide-ranging questions from students and faculty members who had received advance copies of his work. In the words of one attendee, “He let us kick the tires and take it for a test drive.”

Fallon and several students pressed Calabresi to focus on how he could best persuade different factions among constitutional scholars who are divided on the question of whether the Independent Counsel Act was constitutional. At the end of the session, Calabresi remarked on the breadth and depth of the questions, saying the experience would help him sharpen his focus and revisit some assumptions.

“We’ve had an extraordinary group of scholars,” said Gerken, mentioning Calabresi and faculty from other law schools, including Cass Sunstein ’78 of the University of Chicago, Jeremy Waldron of Columbia, Robert Post and William Eskridge from Yale and John Ferejohn of New York University. “Dick Fallon and I made up our dream list of invitees and, much to our surprise, virtually everyone accepted the invitation. That means that the students are getting a chance not only to survey the most important areas in public law scholarship, but to do so with the best people in the business.”

She added: “The students have certainly risen to the challenge. They offer critiques of the papers that are often at the level one would expect from a colleague, and every single faculty presenter has commented on the quality of the discussion. And it’s been a lot of fun to watch the students start to develop a scholarly voice over the course of the semester as they begin to realize what they find interesting in the work and what they have to contribute to the project at hand.”

Fallon said the workshop is modeled after similar HLS sessions in law and economics. New workshops in cyberlaw and international law also offer students interested in academic careers the chance to participate in critiques of faculty work.

“Many of these students are plainly destined for impressive academic careers,” said Gerken. “I feel lucky to have been with them as they began that journey.”