Human Rights, Legal Systems, Technology, and Law School: An Interview With Martha Minow

Martha Minow, the 300th Anniversary University Professor and former Dean of Students at Harvard Law School, has taught at the law school since 1981. Before teaching at Harvard, Minow clerked for Judge David Bazelon of the United States Court of Appeals for the D.C. Circuit and for U.S. Supreme Court Justice Thurgood Marshall. She is an expert in human rights law and minority advocacy and has written numerous books and scholarly articles. Minow has also served on the Independent International Commission Kosovo, has received nine honorary degrees from schools around the world, and was appointed to the Legal Services Corporation by President Barack Obama in 2009. She received her undergraduate degree from the University of Michigan, her master’s degree in education from Harvard, and her law degree from Yale Law School.

This interview was conducted in March 2021. It has been edited for length and clarity.

Harvard Undergraduate Law Review (HULR): I understand that you clerked for the U.S. Court of Appeals for the DC Circuit and for the U.S. Supreme Court, and I would love to hear more about what you learned from those experiences. 

Martha Minow: Being a law clerk is an extraordinary opportunity. It's a ringside seat to the decision-making of important conflicts. Those are two important courts, and I worked for two individuals who I admired enormously. So I learned a lot about how courts work, how arguments are made, particular subjects, and what makes a good argument. But I also had some life lessons from those individuals.

 From David Bazelon at the Court of Appeals, I learned that lawyers should not narrow their world to be only about law. He would always open up his chambers and have meetings with people just to learn what was going on in the world; that was a huge lesson for me, and it's affected my life ever since. I also learned, from him, a more technical point, which is to always dig into the record. The record is the underlying materials that are developed at a trial level. He was quite distinctive as an appeals court judge, always diving back into the facts and seeing if there were issues that have not been fully explored. To pursue that, he would, at times, have the court appoint a new lawyer to help develop the arguments that hadn't been developed.

The Supreme Court is unique–there's only one United States Supreme Court–and it was an extraordinary experience at a time of political change. And working for my lifelong hero, Thurgood Marshall, meant that I had the chance to hear, firsthand, many of the stories about the civil rights litigation for which he is, rightly so, revered. I learned from him, personally, a couple of lessons. One is to pick your battles, and that was surprising to me–seeing someone who had always been known as such an advocate. He said you can't win everything, so decide where to put your efforts. Another thing that I learned from him is the importance of stories and storytelling. There was no better storyteller than Thurgood Marshall, and he would tell stories out of court, in his opinions, always keeping the humanity of individuals at the forefront.

HULR: Obviously, you had those remarkable experiences in law as a clerk, but what made you ultimately choose to pursue the academia side of law and become a law professor rather than pursuing the commercial side?

MM: I had never intended to be a commercial lawyer. I went to law school with an interest in social justice. That was my motivation, and it remains my motivation. My plan was to work for the government or for an advocacy organization, and I had a job lined up to work at the Department of Justice. But a president was elected, and I did not want to work in his administration. I was lucky to have an opportunity to teach and literally thought it would be a short term. So the surprise is that I didn't exactly decide to make a career as an academic–that happened over time.

HULR: Something else that interests and inspires me about your work is that you've dedicated so much time to helping countries redevelop following wars and instances of violent extremism, and you've dedicated so much time to human rights. Specifically, your work on the Independent International Commission Kosovo comes to mind. Would you elaborate on the work you've done helping nations recover from human rights atrocities?

MM: Thanks for the kind words. I've been so lucky to have the opportunity to do work of that nature. I wrote a book following an intensive collaboration with a group called “Facing History and Ourselves” that develops curricular materials for middle and high schoolers around the world to deal with hatred and prevention of genocide and to strengthen democracy. The person who wrote the preface for that book was Justice Goldstone from South Africa. Facing history connected me to him. I had never met him in person when he called me up and asked if I would join this commission on Kosovo. I was, of course, deeply flattered, and I did join and learned a tremendous amount. It was an international commission sponsored by the government of Sweden and some other entities, including NYU. We held hearings all over the world, met with people in the region, and addressed two fundamental questions. Well, I guess, three. Was the NATO humanitarian intervention a violation of international human rights law? Secondly, even if it was a violation, was it justified? And third, what should be, at that point, the future status of Kosovo?

We developed our conclusions, and I did change my mind in some respects. I do think it was illegal, but I did, over time, come to believe it was justified. On the future status, we actually continued to work on that issue for some time. The most surprising thing about the commission experience, though, was that we issued our report on September 10, 2001, and then September 11th happened. We concluded that a lot of our own conceptions of what could happen at the global level had changed, so we continued our work. We issued a supplemental report about how the war on terror would change our recommendations.

One of the things that I learned that really has affected me ever since was that in Kosovo, to have even a functioning court system was very challenging after the war. There was such distrust across the communities that if someone who is associated with the Serbian community was the judge, that wouldn't be respected by others, and vice versa, if they had ties with the Christian community, or what have you. So they actually brought in judges and police officers, and others from around the world.

I also saw how if they didn't have a functioning legal system, it didn't matter how much humanitarian aid they had from other countries because people could pour in resources, and then they'd get stolen unless they had some sense of right and wrong and rules that would be followed. It really was, for me, a wake-up call–surprising because I'm a lawyer–to see how fundamental law is, even in an emergency situation like that.

HULR: Right. And it's almost the hardest to have a just legal system when it's most needed. It’s so sad.

MM: That’s absolutely right­–or even to be perceived as just.

HULR: Pivoting to today, with social media’s overwhelming presence, it's definitely easier for people to speak publicly by merely posting a comment online; however, before social media existed, you would need to be published or speak on a news channel to be heard publicly, which had oversight and editing. This shift has empowered many hate groups, as it gives them the ability to mobilize online and post hateful comments. Given your interest in First Amendment law and human rights, I'm wondering what you think social media companies’ role should be in moderating these hate groups and, more generally, hateful content and hate speech? Do you think that the First Amendment should or shouldn’t apply in these situations?

MM: A colleague and I, Vicki Jackson, recently published a comment about what we think the Facebook oversight board should do with regard to the decision by Facebook to exclude former President Trump from the platform, and we specifically urged that oversight board, which is an international entity created by Facebook–but independent from it, to apply international human rights law. And we cautioned their tendency to be influenced more by the First Amendment, which is not relevant because Facebook is not a government. It is a private actor. It is not bound by the First Amendment. And also, because Facebook is a global actor, and it is not simply operating in the United States, which is where the First Amendment applies. So that's a specific effort that I've engaged in recently, on the question that you asked.

I have a book coming out in June that argues that, in fact, the government of the United States is not barred from and indeed is obligated to do something to improve the situation with the news media in the United States. It's related to your question about hate, but it's also related to the destruction of the news industry because they're tied together. If we don't have a believable, legitimate news industry, we can't have a democracy. In that book, I examine the ways in which I think the First Amendment has been wrongly interpreted to prevent government action, but in this specific area of the social media platforms, they are not bound by the First Amendment. They are private actors, and they can come up with their own rules. I argue, in the book, that the government ought to develop more standards, requiring the platforms to develop and enforce their rules–and also that the government should enforce existing and future rules that protect consumers and users. I'd argue that the First Amendment allows that, although not everyone agrees with me.

HULR: Do you think that the government should have the ability to regulate Facebook's actions to an extent or that it should encourage them to act in certain ways?

MM: Well, those are different: to regulate and to encourage. I think there's some latitude for action, but it gets pretty tricky. The First Amendment does restrict what the government can do when it gets to speech. But the government can certainly regulate monopolies. And the government can regulate to the extent of protecting consumers from false and deceptive information. Finding a way to thread that needle is what the project is about.

HULR: While technology gives these hate groups the opportunity to organize online and perpetuate violence, technology more generally–not only social media–also facilitates complex counterintelligence systems and allows for faster communication for defense in unsafe situations. Social media also allows peaceful groups to come together online. Do you believe that technology perpetuates human rights abuses, or do you think that technology plays an important role, in the end, in defending victims and attempting to minimize violence and human rights abuses?

MM: Technology is simply a tool, and it's used by human beings. Human beings can use the tool for good or for bad, and we are currently using it for both. You know, the Arab Spring made a lot of people think that technology was going to be the harbinger of human rights revolutions all around the world. It certainly supported some of them, but it also supported a backlash. We then learned that governments have the power to shut down social media as well–not to mention to track people and extend surveillance and oppression as a result. So it's a tool. I think that we are in great need of global cooperation about shaping these tools, but the tool alone doesn't tell us what direction it will be used for.

HULR: I have one final question. The Harvard Undergraduate Law Review’s primary readership is students–I’d assume primarily undergraduate students, but also some older and younger students–that are interested in law and are potentially are looking to attend law school. I know that you attended Yale Law School after attending Harvard’s Graduate School of Education. What made you decide to attend law school later on, and what advice do you have for prospective law school students deciding when to attend law school?

MM: Well, I went to the University of Michigan and spent the time while I was there also working in a legal aid office, assisting a lawyer who served low-income individuals. I highly recommend anyone who's thinking about law school to spend time working with a lawyer or in a court or some other legal setting to see if it's something that you really want to do. I did pursue work in education and continue, to this day, to work in that field. I have been involved in three pieces of litigation about education rights in the last two years. But while I was at the Graduate School of Education here at Harvard, I discovered that so many of the issues I cared about–racial justice, financial equity–were being decided by lawyers. So I went to law school out of self-defense.

I think that it's really important to have a reason to go to law school and not to go out of default or just because you don't like money and you don't like blood or whatever. It's a lot of commitment–time and money. It is the case that a law degree does not dictate what your future is. Lots of people have law degrees and don't ever go to a court, for example. And many people have law degrees and never really engage in the practice of law, even as a counselor or advisor. It's a set of problem-solving tools and methods for understanding how power operates. It's like a decoder ring that helps people navigate public and private institutions.

I do also highly recommend that people take time between college and whatever they do in advanced study afterward. People have been in school since the age of three. It's very good to do something else, and if people do end up in law school, it's incredibly helpful to be able to draw on life experience and perceptions about how institutions work, whether they are legal or other. When I was dean, I actually changed our admissions criteria to prefer people who have some experience between college and law school. And we are all very happy with the results–the students and the faculty and the employers. 

HULR: I have a quick follow-up question: what did you learn from your time as a professor at Harvard, and as Dean, that you maybe wouldn't have learned otherwise because Harvard is such an amazing place?

MM: Well, Harvard is an amazing place, and this is my 40th year. So it's certainly been a journey. You know, those students are extraordinary, and I learn every day. I learned this morning from students in my class. I have learned so so much, but among the things that I've learned is that character and qualities like tenacity are as important as smarts– maybe because I'm surrounded by so many smart people, I see that that sometimes is not enough. Sometimes, people who may not be the best in class may be more effective as lawyers or more effective at getting things done. So finding ways to value and cultivate those other talents has been an important part of my work as a professor and as a dean.

In addition, over those forty years, of course, I've seen so many changes in the world and law. We are far more global and interconnected than we were forty years ago, for good and for bad, but I do feel very strongly that no one should imagine that they are only operating in one country. We are all living in a globally interconnected world, and if we had any doubts about that, the pandemic is a pretty good lesson.