This mammoth (858 page) book, The Intellectual Sword: Harvard Law School, The Second Century, is the sequel to the same authors’ On the Battlefield of Merit: Harvard Law School, The First Century. That volume broke the boundaries of conventional institutional histories, which are mostly coffee-table celebrations of successive deans and of the buildings erected during their tenure. The authors situated the Harvard Law School (HLS) in the middle of ferocious party-political struggles and the Civil War. They produced the most thorough and searching description and analysis of C.C. Langdell’s famous experimental reforms of the 1870s and 80s in legal education. And they advanced the argument—pursued at much greater length in their new book—that HLS set the template not just for legal, but for professional education generally in the 20th century.
The structural argument. The central argument of the book is that financial structure determined the character and destiny not only of HLS and other American law schools, but to some extent of medical and business schools as well. HLS from the start was locked into a syndrome of dependence on tuition for revenue, which meant that it had to admit a large number of students. To service those students, it had to hire more faculty and acquire more building space, to pay for which it needed to continue to keep its enrollments high. At the same time, to maintain quality and plausibly certify its graduates as the cream of meritocratic competition, it had to flunk out many of the entering class and ruthlessly sort and rank those who remained. The results of high enrollments were very large faculty-student ratios and large classes, dependent on teacher interactions with the most aggressive and articulate students in them to keep Socratic dialogue going; a harsh boot-camp training method, leading to Darwinian competition; equation of “merit” (universal legal competence) with performance on first-year exams, and demoralization and alienation of the non-elite students.
Once the system of tuition dependence was established, it was hard to escape. It produced, the authors argue, an “illusion of prosperity”—law schools seemed to be rolling in money, because they could educate so many so cheaply. University presidents (except Yale’s) thus saw no need to subsidize them. At HLS the deans and faculty perversely converted high student-faculty ratios into virtues. For the professors, teaching large classes, and for the high-achieving students, competing and surviving in them, became proof of Spartan manliness and self-reliance: this ethic served as one of many excuses for not admitting women until the 1950s. First-year grades, Law Review editorships, and federal clerkships became unique signs of grace and qualification for faculty hiring. Many of the great majority of students whose grades did not qualify them for the elite were alienated and periodically complained about the Spartan system; but the faculty steadfastly continued to resist student demands for smaller classes and pass/fail options in grading.1
This structural argument is very convincing and is buttressed by two interesting comparative chapters. Chapter 9 compares law schools to other major professional schools in medicine and business in the same era. All had initially the same structural problems as HLS (indeed partly so because of HLS, commonly pointed to as the successful model of professional education). The other professional schools, however, managed to escape sole dependence on tuition: business schools by attracting major donations from wealthy businessmen, medical schools by attracting philanthropic donations and government research funding. Kimball and Coquillette provide a dismal chronicle of HLS’s many attempts in the first half-century, often remarkably lackluster and incompetently managed, to raise money from outside sources. It could not attract much alumni or donor money drawn to charitable causes, since its graduates were presumed to make money; and the school was almost completely unable to make the case that its teaching and research functions were of benefit to society at large, rather than simply a vehicle conveying graduates to professional status and comfortable incomes. Not until the 1950s, when Dean Erwin Griswold improved the fundraising apparatus and personally reached out to alumni, did outside funding increase; and not until the 1990s, under Dean Robert Clark, did HLS run really successful capital campaigns. The occasional windfalls from donors were rapidly eaten up by new building costs and new programs, such as Roscoe Pound’s graduate program.
Another revealing structural chapter (Chapter 15, “The Harvard-Yale Game”) tells the history of the rivalry between HLS and Yale Law School. This chapter opens with some relatively familiar points: that the differences between the schools in legal theory are exaggerated; that Harvard was a pioneer in “law-in-action” and “legal realist” approaches, and in the study of administrative law and legislation (think Pound, T.R. Powell, Frankfurter, Landis), which came to be more associated with Yale; and that Yale was not really a serious competitor for able students until the 1960s and 70s. Yale eventually reaped its comparative advantages in a more favorable faculty-student ratio, and close and more informal faculty-student relations, because it could afford a deliberate decision to keep the number of admitted students low. This was because Yale’s central university, unlike Harvard’s, funneled it generous subsidies.2
Unhappy deanships. The rather grim structural story frames much of the narrative. Every one of HLS’s deans between Langdell’s successor, James Barr Ames (who let the school’s finances drift and had to resign because of growing dementia) and Erwin Griswold, was “broken” by the strain of administering the school. Ezra Ripley Thayer committed suicide (when his health collapsed after he had graded 552 (!) exams in Evidence and Torts). Roscoe Pound, probably the most esteemed jurist in America at the time he took up the deanship, lost the confidence of his faculty in part because of weakness, vacillation, inattention to the school’s finances, and flirtation with Nazis.3 James Landis, following a brilliant career as New Deal administrator, broke down after an affair and divorce and was sent to jail for tax evasion. Griswold was the authoritarian, a heavy-handed but surprisingly flexible autocrat who rescued and rebuilt the school in the 1950s and 60s. One of the best features of this history is its measured, sympathetic but critical, treatment of this central figure in the school’s history. After Griswold, the unhappy history of deanships resumed: Derek Bok survived student protests over race and Vietnam to become Harvard’s President; but his successors, Albert Sacks and James Vorenberg, were plagued by faculty schisms and stalemates over appointments, related in the final chapters.
Political and social context. As with their Volume 1, the authors give much of their attention to political events and other social changes affecting HLS. U.S. involvement in World War I was short and barely affected the school. World War II effectively closed it down; but the huge influx of returning veterans financed with GI Bill money regenerated its finances. It also caused the school to reform its admissions policies: HLS took advantage of the rise in applications and the invention of the LSAT to shift to selective admissions rather than attrition as its chief means of quality control. But that change in turn meant that the school had to raise tuitions repeatedly to balance its budgets. The Vietnam War was, of course, very disruptive to the life of the school. The draft was a potential threat to every student and the escalation of the war and Nixon’s Cambodia incursion mobilized both students and many faculty in protest.
The book usefully gives a lot of attention to the ethnic, racial, and gender composition of the school. In the 1920s and 30s, there were quotas for both students and faculty, especially under Harvard’s President Lowell, who was determinedly anti-Semitic and saw his university as the breeder of a genteel ruling class. Dean Pound was a timid leader on these (as well as many other) issues, and some Jewish faculty were not hired as a result (This aversion to Jews seems to have mostly dissipated after World War II, when the faculty was repopulated with ex-New Dealers and Frankfurter protégés). The law faculty voted to admit women in the 1920s but were overruled by Lowell and the Harvard Corporation. Women were finally admitted beginning with 14 new students in 1950, despite Griswold’s belief that they were taking men’s places and likely to drop out reinforced by his frosty and formal response to their presence. HLS was slow to hire women to the faculty. Between 1971 and 1986, HLS hired 19 women with temporary or visiting appointments; but only two got tenure. Admission of Black and ethnic minority students was very rare for most of the period of this book, and hiring of Black faculty even more rare, notwithstanding some highly distinguished graduates like Charles Houston, William Coleman, and William H. Hastie.
Like the country, the school suffered through several Red Scares. Some alumni were very upset by faculty (Zechariah Chafee, Felix Frankfurter) support for radicals like war objectors and Sacco and Vanzetti in the 1920s, and tried to get the professors fired. Lowell defended them. More serious crises for the school arose in the 1950s. The most serious concerned two students, the brothers David and Jonathan Lubell, who joined the local chapter of the National Lawyers Guild. They were subpoenaed to appear before Senator William Jenner’s anti-Communist committee and pleaded the First and Fifth Amendments. At the time HLS’s position on testimony before such committees was that it was legitimate to invoke the Fifth only if the questions concerned actual criminal activity; and that if one did plead the Fifth, it would necessarily put one’s career in jeopardy. After their testimony, one of the brothers was eligible to join the Law Review, but a majority of editors refused to admit him. The Lubells’ story has been told before in bits and pieces: the version here is the most exhaustive. Its most interesting conclusion is that the Lubell case caused Griswold to change his mind about the proper use of the Fifth Amendment and to approve of its use even as a response to inquiries about non-criminal behavior. Coming from such a pillar of the establishment as the HLS dean, Griswold’s widely published views mattered considerably.4
Another innovative section of the book is Chapter 18, “The World of the Students.” This attempts to recreate in detail the thick community of student organizations of the time—the proliferation of multiple law reviews, social clubs, and other ventures. It also reliably reports on the frustrations students repeatedly experienced at the faculty’s and administrators’ tendency to stonewall expressions of alienation and discontent over the huge classes, lack of feedback, lack of faculty-student interaction, evaluation solely by grades, and inattention to any but the highest-achieving students.
Conclusions. This is a very rich and interesting book. Its findings are supported on a massive bedrock of research: hundreds of papers written by law students (apparently as seminar papers for courses on the history of HLS) on specialized topics and multiple detailed oral histories of members of the faculty. The structural thesis by itself would make an important monograph. The stories of the administration of the school, of the rise and fall of its deans and their many tribulations, are high drama. The school itself is one of the key institutions of higher education and the legal profession, not only for its own achievements and standing, but because of its enormous influence on other schools. In the depth of its research, the originality of the questions it asks, the broad scope of the project, this book outclasses not only prior histories of the Law School, but professional school histories generally. It is also clearly and engagingly written, such that the detail informs rather than overwhelming the reader.
The reader—or at least this reader—feels the book comes up slightly short of an ideal history because of its relative lack of attention to two topics: (1) the intellectual content of the school’s scholarship and teaching; and (2) the character of the professional world for which the school’s graduates were being trained and in which they spent their lives in practice.
(1) What did the faculty write about, and what did it teach in the classrooms? A big component of Volume 1 is taken up with describing the substance and classroom performance of the case method, especially in Langdell’s Contracts classes. We don’t learn anything comparable about either scholarly production or classroom content in Volume 2. One would have expected more at least on the faculty projects that were the most distinctive and impressive forms of scholarship in the early 20th century, the great common law treatises like Williston on Contracts and Scott on Trusts; and the faculty’s contributions to codifications, Restatements, and the like. We’re told that Griswold was unhappy with the low productivity of the faculty and encouraged the production of casebooks—interesting, because by the 1980s and 90s casebook and treatise production were no longer seen, for the most part, as high-prestige forms of scholarship. The Legal Process course created by Henry M. Hart, Jr. and Albert Sacks was practically compulsory and hugely influential for 20 years It goes unmentioned here.5 What a reader would like to know is: What does a typical doctrinal article—or doctrinal class or casebook—look like in different phases of this story? The closest the authors get to intellectual history is in their accounts of Harvard’s contributions to legal realism and law-and-society empirical studies in Pound’s deanship and then again in their very brief discussions of the work of the Michelman Committee and the battles between Critical Legal Studies and traditional scholars in the 1970s and 80s—and these passages are necessarily (because of their brevity) somewhat superficial.6
(2) HLS sent off its students into a world of practice and its basic reason for being was necessarily, as a professional school, its function as preparation for practice. Yet in law schools, much more than at business or medical schools, there has always been an odd disconnect between the academic and the practice world. Harvard simply never undertook to do practical training in a clinical sense—and as the authors show, even when clinics came into the school, they were kept at a safe remove from the primary educational function. Until late in the century, HLS deans and faculty never thought to ask: What do our students need to learn for practice? Instead, they believed they knew the answer: rigorous training in legal-doctrinal analysis, in “thinking like a lawyer,” was presumed to be a sort of universal competence. In this book, the profession is very much offstage—appearing only in cameo roles, mostly in the form of alumni not willing to give much money to the school (or complaining about Reds on the faculty).7 The book gives only a few numbers on career choices. Even in the 1970s, almost everyone was still going to corporate firms or clerkships on graduation! Griswold seems to have been content with the near-exclusivity of this private-practice career path, although he himself made notable contributions to public service. Anyway, 20th century HLS has always had a tight umbilical connection to the practice worlds of Boston and New York, particularly to the great corporate firms of Wall Street. And its macho, aggressive style of teaching-learning seems in tune with the notoriously abrasive world of New York City litigation practice and the firms’ grueling competition-to-partnership tournaments. Joel Seligman, in his muckraking book about the school, The High Citadel (1978), took for granted that the school was basically an annex of Wall Street and that the implicit message of its teaching and learning was support for the establishment of corporate law firms and their clients (That relationship came under some strain in the 1930s New Deal period, when Professor Felix Frankfurter hired many HLS graduates to staff the New Deal, and again in the 1960s-70s civil rights and antiwar periods, when HLS alumni helped to found the public interest bar). The stern meritocratic ethic of the Law School, which yielded predominantly Jewish names on every year’s masthead of the Law Review, was regularly betrayed when most prominent law firms refused to hire Jews until the mid 1970s. It is odd that a book on professional education should be so reticent about the professional worlds for which its graduates are being educated. Even while they are still in school, the job search claims the largest share of attention from students after the first year.
- The rigors of the system were finally softened and modified in the kinder, gentler era of deanships under Elena Kagan and Martha Minow (2003-2017).
- The subsidies continued until YLS Dean Guido Calabresi adroitly disconnected the law school’s finances from those of the university in the economic downturn of the 1970s.
- Pound had a second career post-deanship as a PR spokesman for the plaintiff’s trial bar, an episode the authors tactfully pass over without mention.
- This book also makes an original discovery of a case involving an HLS alumna victimized by the Red Scares. She was Marcia Harrison, purged from the federal government after appearing on one of McCarthy’s lists, and unable to get rehired despite clearances. She applied to HLS, was admitted, and supported by the Dean and faculty for other government jobs after graduation.
- Henry Hart is confused with H.L.A. Hart, the English legal philosopher, in the book’s index.
- On the intellectual history of the HLS curriculum a more reliable guide is Laura Kalman’s Legal Realism at Yale, 1927-1960 (1986), which has chapters comparing HLS to YLS.
- During the New Deal many alumni disapproved of any attention given to social science, theory, or social justice. One is recorded as recommending in 1934 that any student “reference to Brandeis, Cardozo, or Holmes result in expulsion.” (P. 277.)