Yale Law School and the Sixties

Revolt and Reverberations

Laura Kalman

• Editorial: The University of North Carolina Press
• Año: 2006
• ISBN:
  9780807876886
• Categoría: Law
• Categoría: Legal Education

The development of the modern Yale Law School is deeply intertwined with the story of a group of students in the 1960s who worked to unlock democratic visions of law and social change that they associated with Yale's past and with the social climate in which they lived. During a charged moment in the history of the United States, activists challenged senior professors, and the resulting clash pitted young against old in a very human story. By demanding changes in admissions, curriculum, grading, and law practice, Laura Kalman argues, these students transformed Yale Law School and the future of American legal education. Inspired by Yale's legal realists of the 1930s, Yale law students between 1967 and 1970 spawned a movement that celebrated participatory democracy, black power, feminism, and the counterculture. After these students left, the repercussions hobbled the school for years. Senior law professors decided against retaining six junior scholars who had witnessed their conflict with the students in the early 1970s, shifted the school's academic focus from sociology to economics, and steered clear of critical legal studies. Ironically, explains Kalman, students of the 1960s helped to create a culture of timidity until an imaginative dean in the 1980s tapped into and domesticated the spirit of the sixties, helping to make Yale's current celebrity possible.

Chapter One
Setting the Stage: Law Schools and the Sixties

Every year, new books about the undergraduate revolt during the sixties appear. And we know that while medical students remained less activist than undergraduates, some combined white coat with clenched fist, protesting racism and the Vietnam War, urging their schools to provide better community health care, and working for changes in admissions, grading, governance, and faculty recruitment. Yet although many characterized law students as “the future leaders of the nation,” law schools and students during this period have received short shrift. That is ironic, since both undergraduates and medical students proved more satisfied with their education than their counterparts in law schools.¹

Law students during the 1960s found plenty to be concerned about besides racism and the war—the method of instruction, the tenseness and tedium of the classroom, a system of education that gave them little sense of how well they were doing at the same time it made grades all important, the impact of school upon their personal and professional lives, and the inattentiveness of legal education to the poor’s problems. It all made for turmoil in elite law schools across the nation as students’ unease with school and society led them to lodge a variety of grievances. Who pressed for change, what complaints and demands were articulated, and what conflicts resulted?

A PORTRAIT OF THE ACTIVIST AS A YOUNG MAN

Thanks to the work of Richard Flacks, Kenneth Keniston, and others, we possess a portrait of the wave of American undergraduate activists from the early sixties to the end of 1968—at least, of the young white men who dominated the protesters. They were bright individuals from relatively affluent backgrounds who attended elite institutions and disproportionately studied social sciences and the humanities. They echoed their parents in identifying with liberalism or the left and in feeling a sense of social responsibility. Though a disproportionate number of activists were Jewish, they also followed their parents in defining themselves as nonreligious or nontraditional practitioners of their religion. Despite disagreement about the students’ motivation, it seems more likely that they reflected rather than rebelled against many parental values. They had much in common with their professors too. Seymour Lipset repeatedly pointed out between 1964 and 1970 that most professors and students were closer to each other, politically, than either group was “to the rest of the American body politic.”²

No matter. Bring such youths into the undemocratic, competitive, impersonal, authoritarian multiversity, or even elite private colleges, where they could not escape paternalism’s lash or a sense of powerlessness, “and poof!” Whatever had started the protesters down the road to revolution—be it the war, their institution’s links to the military-industrial complex, racial inequality, curricular irrelevance, a dislike of deferring to teachers and administrators, the repressiveness of parietal rules and definitions of permissible speech, and/or the university’s encouragement of competitiveness and its failure to allow for self-determination—many students could join forces to demand student power. They sought to transform institutional structure and to help change the way they learned. As Gerald Farber famously put it in a much-cited essay, activists shared a sense of “the student as nigger.” Theirs was a mood aimed at democracy and citizenship, more than an ideology.³

In contrast, there are few empirical studies of law student activists during this period. As Robert Stevens once observed, legal scholars who write about education become polemical, refusing to “soil arguments with data.” Stevens’s work on students at Boston College, USC, Yale, and the Universities of Connecticut, Iowa, and Pennsylvania Law Schools remains the only large-scale and comparative empirical study of law students during the late 1960s.⁴

At all schools, “students were becoming openly hostile to legal education, especially to the case and Socratic methods.” At the same time, over the decade between 1960 and 1970, entrants “became increasingly liberal or radical,” and their interest in public interest law increased dramatically. That should have put them in line with their professors, for like undergraduate teachers, most academic lawyers identified themselves as liberals. But it was Yale, Harvard, and the other prestigious law schools, Stevens stressed, that “had become part of the student revolution,” just as elite undergraduate institutions proved its center.⁵

The profile of Yale students, the most “radical” of those in Stevens’s study, bears some resemblance to that of undergraduate activists. Most undergraduate activists were male, as were most Yale students. More than 90 percent of the members of the class of 1970 and 80 percent of the class of 1972 were male, and almost all were white. Most of the men hailed from relatively privileged, well-educated families. Almost 30 percent were Jewish. Virtually all had graduated at the top of their college classes, where nearly three-quarters of them majored in the social sciences, and a quarter in the arts and humanities. Fifteen percent of the members of Yale’s class of 1970 and 32 percent of the class of 1972 described themselves upon entry as “far left” as compared to “liberal” (62 and 45 percent, respectively; of course, in the context of the 1960s, loaded words such as “liberal” and “far left” possessed many meanings). Well over a third of the students in the class of 1970 and nearly 60 percent of those in the class of 1972, a significantly higher percentage than at the other schools in the study, characterized their desire to restructure society as “great.” So, too, more Yale students declared their “great” desire to serve the underprivileged—more than a quarter of those in the class of 1970, and nearly half in the class of 1972. Indeed some entered with experience in the civil rights movement, the New Left, and the antiwar movement. Stevens included no data about parental politics. Further, by 1969, Yale’s relatively few women and minorities proved more likely to identify with the left than men, a pattern that may have held true elsewhere in universities by the post-1968 period. Otherwise, beginning law students at Yale and elsewhere (if Stevens correctly used Yale to generalize about elite law schools) apparently fit the model of undergraduate activists.⁶

Many Yale law students, however, found professional training particularly dissatisfying. While over 60 percent of first-year students in the class of 1970 at Boston College, Connecticut, Iowa, and USC found law school more intellectually stimulating than college, at Yale, only one-third did. For students at similar institutions in particular, attending law school during the late sixties “was like having to go to summer school while your friends were all out playing ball.” And with the war in Vietnam raging on, many students at elite law schools faced boot camp should they leave school. It only seemed that they had entered it already.⁷

THE UNCHANGING NATURE OF ELITE LEGAL EDUCATION: “BOOT CAMP” CIRCA 1967

Students in the class of 1970 faced a system of legal education changed only slightly since Christopher Columbus Langdell revolutionized it when he became Harvard’s dean in 1870. Acknowledging how little difference a century made, the Harvard catalogue boasted that “[i]n the first year of law school, the predominant method of instruction is the case method, first developed as a technique for law teaching by Dean Langdell in 1870, and since extensively employed in virtually all American law schools.” Transport a first-year student out of a 1967 Contracts class back into Langdell’s, and it would have felt familiar. Langdell would have paid more heed to English law, but the basic diet would have remained the same—“casebooks, large classes, Socratic dialogue, and single written examinations.” Transport the student of 1967 into a Contracts class at another prestigious law school, and he would have felt the same way. Elite legal education was remarkably static and uniform, its structure, style, and content set by Harvard, just as it had been in 1870.⁸

Recent scholarship suggests that no figure in the history of American legal thought and education has been more unfairly maligned than Langdell. Yet the changes he wrought, with the support of Harvard University president Charles Eliot, secured the law school a place in the modern university at a time when other disciplines were riding similar intellectual currents toward concentrating on thinking about, as opposed to memorizing, texts. Even so, Langdell became the favorite whipping boy for every woe in legal education. In part, it is because of the life he breathed into the case and Socratic methods; in part, because the professionalization of legal education in the late nineteenth century shaped the contours of modern law practice.⁹

There were professional law teachers before him. Yet the site of legal education B.C. (Before Christopher) was mainly the office, with most students learning as apprentices. Wherever they studied, they likely memorized and recited Blackstone and Kent, among others. If law students were in offices, they also did clerical work and ran errands; if in school, their classes were often taught by part-time practitioners, many of whom lectured. Wherever they learned, many likely hoped to become lawyer-statesmen and leave their footprints on law and public affairs.¹⁰

Langdell centered legal education in the university and shifted its explicit focus away from statecraft. He had the prestige of Harvard and Eliot behind him, and the two men understood that if they made university law study “hard and long,” prospective students would line up “to prove they could do it, and so acquire status within the profession.” Thus the new dean tightened admissions requirements, lengthened the course of study, introduced grades, and insisted on instruction by full-time teachers.¹¹

These changes formed the backdrop for Langdell’s popularization of the case method. Because “the number of fundamental legal doctrines is much less than is commonly supposed,” he explained in the introduction to his collection of appellate contracts cases, “it seemed to me, therefore, to be possible to take such a branch of the law as Contracts, for example, and without exceeding comparatively moderate limits to select, classify, and arrange [in a casebook] all the cases which had contributed to any important degree to the growth, development, or establishment of any of its essential doctrines” for “all who desire to study that branch of law systematically.” This large claim would be whittled down in time. Where Langdell touted studying appellate opinions as a way of acquiring substantive knowledge and mastering legal reasoning, his successors celebrated the case method principally because it taught legal reasoning.¹²

That was no small thing. Recognizing the potential of classroom case study, Langdell had turned students toward close reading of the appellate opinions rendered in disputes, forcing them to hone in on the legal questions at issue and focus on rendering legal rules “consistent and coherent with each other, so that like cases are treated alike.” He had introduced them to doctrinal analysis.¹³

But Langdell did not stop there. He paired appellate cases with the Socratic method. He and his colleagues embraced the cold call, engaging individual students, apparently selected at random, in a series of questions about a case without ever identifying the correct answer, a process designed to elicit the kernel from the nut and communicate the lawyer’s craft. The law school could justify its large-class instruction because teaching by “hazing” guaranteed attentiveness. The danger they might be called upon next and the unacceptability of pleading lack of preparedness induced students watching the teacher-controlled “dialogue” to read assigned cases beforehand and “to participate vicariously—to silently pretend that they must answer the question.”¹⁴

Ideally, the case and Socratic methods inculcated students into the distinct language of the law. They launched neophytes on a voyage of discovery designed to teach them the difference between arguing from law and from other disciplines or from policy or morality. Langdell and his colleagues were hardly unaware of law’s relationship to social science, but there was little room for it in their curriculum. That was for college. Nor, despite the growth of the regulatory state, was there space at first for administrative law, legislation, constitutional law, antitrust, or jurisprudence. Tyros learned how to distill facts; derive legal rules and principles from cases; determine their precedential status; apply precedent, principles, and rules to different fact-situations; engage in case analysis, “the art of generating broad holdings for cases, so they will apply beyond their intuitive scope, and narrow holdings for cases, so that they won’t apply where it at first seemed they would”; and articulate the grounds, such as the need for certainty and flexibility, that “lawyers use in arguing that a given rule should apply to a situation, in spite of a gap, conflict, or ambiguity, or that a given case should be extended or narrowed.”¹⁵

But to enthusiasts, the combination of case and Socratic methods taught something more—clear thinking, judgment, and toughness. In their own way, they prepared law students for public service or anything else. At Harvard, Edward “Bull” Warren became a legendary instructor in the early twentieth century. In his memoir, appropriately entitled Spartan Education, Warren warned young law teachers that “too much lecturing is bad” for students—“very bad.” It had produced the “large proportion” of the young, who, “on coming to law school fresh from the dolce far niente college years, would rather walk two miles than think for three minutes.” The law professor’s task was to train students “to become accurate, clear, and terse in their statement of facts and issues, and sensible in their exercise of judgment.” That required the teacher to be “a full man,” a master of his topic, and “a ready man,” good on his feet. His students must learn to manipulate law with quickness and confidence. One Harvard Law graduate of this period, Dean Acheson, confronted Franklin Roosevelt; another, Joseph Welch, Joe McCarthy. “If you could stand up to The Bull, you could stand up to FDR or Joe McCarthy.”¹⁶

The gendered nature of Warren’s language was appropriate. Even after Harvard began to accept women in the mid-twentieth century, the school remained “a totally aggressively male institution.” Each year, at the annual dinner Dean Erwin Griswold and his wife hosted for the few women students, the dean famously would ask his guests, after the stewed chicken and lima beans, “Why are you at Harvard Law School, taking the place of a man?” When one replied that she had come to Harvard because Yale had rejected her, Griswold, in the recollection of future congresswoman Pat Schroeder, went “crazy, flaming crazy, saying, ‘That’s not true, Yale always lets more women in than we do,’ and so forth, the implication being that Yale had much lower standards than Harvard.” Like most other elite law schools, Harvard enrolled few usurpers. Of the practicing lawyers in the United States in 1960, just over 7,500 were women compared to more than 205,000 men. (Both women and men, of course, were disproportionately white.) Further, professors and courses universally stressed skills then associated with men—rationality, the ability to draw distinctions, razor-sharp incisiveness.¹⁷

Thus students learned to “think like lawyers” as they began to understand how to state the significant facts and issues of a case and apply principle, rule, and precedent mined in a multiplicity of scenarios spun out in classroom hypotheticals. In a case in which a person held in a nursing home claimed false arrest, for example, the professor’s questions first guided the students through the dispute and opinion to the legal principle that the litigant must prove “direct restraint.” Then the “what ifs” began: What if the plaintiff were in a locked room on the first floor, but the windows h...

Índice

• Cover Page
• Yale Law School and the Sixties
• Copyright Page
• Dedication
• Contents
• Illustrations
• Acknowledgments
• Prologue
• Chapter One Setting the Stage: Law Schools and the Sixties
• Chapter Two The Yale Law School on the Eve of the Sixties
• Chapter Three The Sixties Come to Yale
• Chapter Four Student Power
• Chapter Five Alumni Weekend, 1969
• Chapter Six Trials and Tribulations
• Chapter Seven Bringing Us Together Again
• Chapter Eight After the Fire
• Chapter Nine The Most Theoretical and Academically Oriented Law School in America
• Chapter Ten Epilogue
• Afterword
• Notes
• Index