Learning Law in New Haven

Draft of September 2004

For two centuries, the American legal profession was unlike any other in the world in its political importance and its independence.  Although generally self-regulated in the English manner, the American profession has otherwise bore little resemblance to the English profession from which it set itself apart in the late 18^th century.[1]  While many of the nation’s founders were lawyers, they gave little prior thought to the consequences for their profession of provisions in state and federal constitutions subjecting democratic politics to legal constraints.  Those provisions placed in political cockpits not only the state and federal courts but the profession of which the courts are a part.  As a political institution in a democratic society, the profession’s ability to regulate itself was constrained by its need to be representative.  At the same time, the doctrine of separation of powers cautioned against its regulation by legislatures and executives. 

Because of the novelty of its political role and the absence of coherent regulation, the training available to, or required by, Americans as preparation for careers in law, took diverse forms.  The major recurring differences were two.  Some members of the profession have longed for the more secure antecedent English tradition of apolitical technocracy while others saw themselves as mainstays and sources of political wisdom for democratic government.  And, some members of the profession have sought the elite social status associated with the English bar while others have sought to assure all participants in the democratic process appropriate access to the profession’s political role.  The tensions among these competing visions of the profession have never been fully resolved.   Nor has their story ever been fully told.

Indeed, in 1981, John Henry Schlegel and Alfred Konefsky in the fashion of that day “trashed” the existing histories of law schools as a genre of literature but little elevated from commercial advertising for the institutions whose pasts they recorded.[2]  They had a point, although they omitted reference to a stunning essay by Brainerd Currie recalling the curriculum dispute at Columbia in the 1920s.[3]  However, since their complaint was voiced, numerous meritorious works about American legal education have appeared.  In the year in which Schlegel and Konefsky published their assault, Charles McManis in a seldom noted article called attention to some of the earliest efforts of American colleges to train American lawyers.[4]  In 1983, Robert Stevens published Law School, a slender volume on the history of American legal education, directed chiefly at events after 1870 as the ideas associated with Christopher Columbus Langdell and the Harvard Law School spread and were resisted.[5]  In 1986, Laura Kalman published an insightful work on the self-styled “Realists” at Yale Law School in the mid-20^th century.[6]  In 1994, William La Piana published a worthy work that, even more than that of Stevens, was centered on the role of Langdell.[7]  In 1995, Schlegel contributed an excellent work centered on the same era as Kalman’s.[8]  In 1997, N. E. H. Hull added her thoughtful observations about that same period.[9]  In 2001, Morris Cohen assembled into one volume the useful monographs written by Frederick Hicks about the history of the Yale Law School.[10]  In 2003, George Liebmann produced a thoughtful analysis of events at the University of Chicago in that same sensitive time in the mid-20^th century.[11]  Now, in 2004, Dean Anthony Kronman has edited a volume of worthy lectures by distinguished authors recording stages in the development of his Yale Law School.[12] 

This essay is chiefly a response to those lectures, but it is also an observation about the other works mentioned.  Because like the other work noted, the essays are preoccupied with particular moments at a particular place, they leave the reader at risk of supposing that the Yale Law School made itself, or that its deans or faculties made it out of whole cloth.  The point of this essay is that Yale, like other law schools and like the profession of which all are a part, is a product of the distinctive American culture formed in the 18^th century as that social order has been transformed by subsequent events.  While this point may seem obvious, it is worth making in a context in which it is frequently overlooked.

ANTEBELLUM TIMES

The Yale story begins with the Litchfield Law School in Litchfield, Connecticut, which was an important institution for a half-century beginning in the 1780s.[13]  As John Langbein observes in one of the lectures in Dean Kronman’s book,[14] it directly influenced the shape of legal education at Yale for a half-century beginning in 1827.  Litchfield was a manifestation of the New England Puritan culture depicted by Robert Stevens in his introductory lecture to the same volume.[15]  Yale College was in the 18^th century very much a part of that Puritan culture.  Puritans, it is useful to recall, were hard-line Calvinists committed to predestination; they shared little or no hope for the improvement of individual mortals or their social order.  Good things could happen in the Puritan republic only by the will of God, and not as a result of free choice by its citizens.  The Puritans early developed a form of tribal law administered by their clergy.  Dissenters and violators of the scriptures as interpreted by their ministers of the faith were simply driven out of the community.  They reviled the legal profession as their parents had known it in England,[16] and it was not until the 18^th century that their descendants began to tolerate lawyers in their presence for the limited purposes of drawing contracts, deeds and wills.[17] 

Litchfield’s founder and principal teacher, Tapping Reeve, was not only a Puritan, but he was also a high Federalist dubious about the ideology of the War for Independence and about the merits of the Union established in Philadelphia in 1789.[18] By that year, he had trained over 200 lawyers in his office, which had become a school.  By 1795, he was providing his clerks with 139 lectures a year.  His Federalist connections led to his appointment to the Connecticut bench in 1798,[19] but he continued to run his school.  In 1804, so great was Reeve’s venom toward President Jefferson that he advocated secession by the New England states.[20] In 1806, his vehement denunciations of the President's alleged abuses of power resulted in his own indictment for seditious libel by a grand jury over which he was himself at the time presiding. [21] 

Reeve restricted his teaching to private law, omitting any discussion of constitutional law, criminal law or public agencies.  He taught no Roman law and no international law.  His promotional pitch to tuition-paying students was that a structured study of the leading texts would be more thorough and efficient than the helter-skelter of study in other lawyers’ private offices pursued while copying instruments and running errands.  Hence his students would gain wealth and status more rapidly if they spent some time and money at Litchfield taking notes on his lectures or those of his former student, colleague and successor, James Gould,[22] than if they undertook conventional apprenticeships.  Happily for Reeve, Connecticut law imposed no limit on the number of clerks who could be trained at once by a single mentor, and so Reeve’s students could qualify for admission without further inconvenience.  On completion of his course, they were awarded not a degree but a license to practice law in Connecticut, or possibly another state.  Their shared aim was that of 18^th century English barristers as expressed by Alfred Tennyson:

Mastering the lawless science of our law,

That codeless myriad of precedent,

That wilderness of single instances,

Thro’ which a few, by wit or fortune led,

May beat a pathway out to wealth and fame.[23]

This idea would in the 20^th century acquire the name of human capitalism.[24]  If there was an element of civic or moral education in the Litchfield program, it seems not to have been articulated.  

As Langbein demonstrates, Litchfield was the school that William Blackstone envisioned for 18^th century England.  Neither Reeve nor Gould was given to legal philosophy but, had they been, it seems certain that they would have been attracted to a jurisprudence suited exclusively to private law such as that later articulated by John Austin, who viewed law as an isolated discipline not to be conflated with morality or public policy.  His theory fit neatly the apolitical role of the English judiciary in the time of Blackstone,[25]  and equally well the Litchfield program.  In the Puritan culture represented by Litchfield the community’s moral and political decisions were left to the clergy, just as in the England of Blackstone and Austin complete trust was vested in Parliament as the exclusive source of public policy. 

But the Austin vision of law as an independent system never fit the scheme of government initiated by American state and federal constitutions assigning large political roles to courts and thus to the legal profession of which courts are a part.  This was immediately apparent to many lawyers of the founding generation  It was made obvious to all by the action of John Marshall in 1801 in inventing the opinion of the Court. That device obligated judges and hence their lawyers to come together on a statement of the principle being enforced and an explanation of the reasons for its application to the case at hand.[26]  Such opinions, especially in the early decades, required resort to first principles resting on visible moral and political premises.  No one who read his work could think that John Marshall’s discipline was independent of political considerations.  While neither Blackstone nor Austin had denied that English judges made the common law, that law was not in their view made consciously or overtly but could  be discerned only by skilled professionals making sensitive interpretations of individual judicial utterances articulating sensed directions from the past.[27]  By 1815, the opinion of the court had spread to all American appellate courts.[28]  Lord Tennyson’s wilderness of single instances was no longer an apt metaphor.

Despite the obsolescence of the theoretical premise of the Litchfield program, a similar institution emerged in New Haven.  After 1827 it bore Yale’s name and Gould at Litchfield was soon thereafter complaining that it was keeping Yale College students from coming to him as they had in the past.[29]  Like Gould’s school, the New Haven counterpart had at first been proprietary with no connection to Yale College.  The College was in the 1820s still very much in the control of the Puritans’ Congregational Church notwithstanding the separation of church and state effected in Connecticut in 1818.[30]  It was led by Timothy Dwight, no less a harsh Puritan and no less a high Federalist than Tapping Reeve.[31]  Under his leadership, Yale was not receptive to the ideas expressed in the Declaration of Independence then circulating in the former colonies that were feeling their way toward “a republican form of government.”  An English visitor in 1827 was delighted to find that at Yale "so many good old usages and orthodox notions [are] kept up as vigorously . . . as possible."[32]  In 1828, the Yale faculty made a report to its governing board[33] that was widely circulated. “Although there was not an original idea in it,"[34] it was well received by those sharing traditional English views about higher education.  It favored retention of the classics as the required core of the curriculum and it explicitly rejected both the alien influences of German education that had by then infected Harvard[35] and the elective system then recently inaugurated at Virginia.[36] 

Notwithstanding this traditionalism, there was a little space within Dwight’s college for civic training.  His predecessor had been Ezra Stiles, an extraordinary Puritan clergyman who admired Jefferson and who himself studied law in order to teach Yale students about their civic duties,[37] so Dwight perceived a need for a few lectures on the Constitution of the United States.  He recruited David Daggett to give them; Daggett was a defeated Federalist Congressman whose politics closely resembled those of Reeve and Dwight.  He disapproved popular self-government; he had supported the disunion movement at the Hartford Convention of 1814;[38] he had been virulent in his opposition to the separation of church and state in Connecticut;[39] and one of his judicial decisions[40] prefigured the racist opinion of Chief Justice Taney in Dred Scott.[41]  As Langbein notes, it was probably Daggett who brokered the relationship between the local law school of the Litchfield sort and Yale.  It may be that part or all of his compensation for his lectures at the College was its sufferance of the use of its name on the proprietary law school of which he was part owner.[42]  In any case, Yale in 1827 accepted a nominal connection with Daggett’s school that Langbein rightly disdains.[43]

Because Massachusetts law was less liberal in the number of clerks a lawyer could train at one time, the Litchfield model was less easily replicated at Harvard College.  It was tried there, but, being unable to supply its graduates with professional licenses, it failed for lack of students.[44]  However, Harvard was by the 1820s different from Yale.  While it had shared Yale’s Puritan origins and had been like Yale governed by Federalists who vigorously opposed “Mr. Madison’s War,”[45] by 1820 it resided amidst events later described as “the flowering of New England,” a remarkable moment marked by the advent on Beacon Hill of an intellectual community and by the emergence of the abolition movement.[46]  Emerson would put the difference bluntly.  "I do not speak with any fondness," he said, "but the language of coldest history when I say that Boston commands attention as the town which was appointed in the destiny of nations to lead the civilization of North America."[47]  The Harvard Overseers were increasingly Unitarian rather than stern Calvinists in their beliefs,[48] and hence increasingly optimistic about the possibility that their graduates might make a positive difference in the life of the Republic.  Prospective faculty members were sent to Germany to study and observe the development of the modern university.[49]  It was said of John Thornton Kirkland, Harvard’s president in that time, that he “believed it his patriotic duty to produce from democratic materials an educated elite who would guide the Republic in paths of wisdom and virtue."[50]  

Accordingly, Harvard was receptive in 1828 when Nathan Dane offered to finance an effort to perform that patriotic duty with a new law school, and to retain the services of Justice Joseph Story for that purpose.[51]  Students came from the South as well as the North to sit at Story’s feet and prepare themselves for a role in the life of the Republic.  As a result, the Harvard Law School under Story was in the 1830s an important national institution while the Yale Law School languished as a forlorn replica of Litchfield.  Perhaps because Harvard flourished, the Yale Law School in antebellum times may have thought of itself defensively, as it so often would in the future, as a rather divine counter-reaction to the benighted leadership of the Harvard men who had forsaken the true Calvinist faith and Austinian vision of law.  It would seem to some a century later that Harvard had somehow regained the true faith while Yale was at last losing it.  Despite the similarities in the origins and traditions of the two colleges, their law schools would long remain on opposite sides of a mobile divide.

Dean Kronman’s History of Yale Law School, like most of the other works mentioned, does not notice events west or south of the Hudson River.  Those events made the Yale Law School as it was in 1840 not only an anachronism but an anomaly among schools or departments then teaching law within American academic institutions.  Langbein notes the importance of the leadership of Theodore Woolsey, the President of Yale College, who undertook to revive its moribund law school in 1869.[52]  While Woolsey was important, his thinking was far from original.  In 1874 as the retired President of Yale speaking to the law alumni,[53] he articulated for Yale the same hope that had been expressed a half-century earlier by Harvard’s President Kirkland and before that by numerous others. 

In fact, the most prominent champion of his optimistic vision of legal education as training for public service had been Thomas Jefferson.  Jefferson had acted on the premise that training lawyers in a republic calls for broad intellectual and moral engagement in the appraisal of public issues so that those so trained might better pursue the common good by making better law while participating in public life.  As Governor of Virginia in 1779, he directed the founding of the William and Mary Law Department on that premise,[54] and, after his presidency, he strove to erect the University of Virginia around a law department that would be fashioned on the same idea.[55] 

Jefferson got his ideas about education from his own law teacher, George Wythe.  Wythe was a classicist as much as a lawyer, and a man of Quaker origins making him a political radical for his day.[56]  His vision of the law to be taught to Americans was not framed by the reports of English judicial decisions, but by the demands of constitutional politics in a republic.  His students were not strangers to the work of Adam Smith[57] or Emer de Vattel,[58] nor to the Roman law tradition.  His one-year course included not only an introduction to comparative and international law, but a practicum in legislation conducted in the colonial capitol at Williamsburg.[59]  As a classicist, his purpose as a teacher was to nurture in the legal profession of the Commonwealth of Virginia the civic virtue that Pericles was said to have attributed to his fellow Athenians, i.e., the willingness to bear burdens and assume responsibilities for the public good.[60]   This was first and above all moral education, and secondly broad intellectual development; his lawyers were not technocrats but moralists and intellects.  He taught chiefly by example, apparently recognizing the difficulty of teaching morals by preaching.[61]  He taught law to less than two hundred students.  Among their number were three immortals: Jefferson, John Marshall, and Henry Clay.  On this evidence, it seems fair to say that he retired the trophy for effective law teaching. 

Among Wythe’s many contemporaneous admirers and emulators was Yale’s President Stiles, who even asked the state of Connecticut to fund a program at Yale resembling that at William and Mary.[62]  His request apparently foundered on the unwillingness of the legislature to turn public money over to Yale’s private trustees, a decision that seems to have been well advised in light of developments at Yale in the ensuing decades.

Institutions other than William and Mary that actively sought to emulate Wythe’s law teaching in the 18^th century included Princeton, Pennsylvania (then the College of Philadelphia), Brown (then the College of Rhode Island), Columbia, North Carolina, Middlebury, and Dartmouth.[63]  The Wythe tradition was perpetuated for a time at William & Mary by the first American editor of Blackstone, St. George Tucker.[64]  The Wythe vision of legal education was pursued with the greatest investment of energy by the Law Department of Transylvania University in Lexington, Kentucky.[65]  That institution, now forgotten, was quite possibly more important to antebellum America than Joseph Story’s Harvard Law School.  The University was founded by Presbyterians, who resembled Puritans in their fidelity to the faith of Calvin, but who embraced the liberating optimism of the Scottish Enlightenment.[66]  In early times Transylvania was spoken of as “Kentucky University” because it had financial support from that Commonwealth.  It opened its law department in 1799 under the leadership of a group of former students of Wythe.  Among them was Henry Clay, who was for two years its principal teacher and for decades its champion.  Transylvania also maintained a separate department of medicine.  It attracted students from all states west of the Alleghenies.  In 1830, with over 400 students, it was for a brief moment the largest university in America.[67]  It awarded law degrees only to those who attended for two terms and passed an examination administered at the end of that period of study.  Its law library was funded by a tax on tobacco auctions imposed by the city of Lexington.  Its three faculty members were judges.  When the definitive ten-volume set of biographies of Great American Lawyers was assembled at the end of the 19^th century by William Draper Lewis, three of the seventy-seven subjects were Transylvania law teachers.[68]  The university occupied perhaps the handsomest facility of any college at that time; its Morrison Hall was erected, at the suggestion of Clay, by one of his wealthy clients.  Its curriculum, like that of Wythe and Tucker, included not only public law, but international law and comparative law, as well as the common law, and its students were instructed to elevate their understanding of law by considering its political consequences.  Its premier teacher for many years, George Robertson, was also the Chief Justice of Kentucky; his teaching was devoted chiefly to the subject of the Constitution, and to its moral and political import.  He vigorously urged his students to serve the Republic and many did.  Seven Transylvanians were in 1850 among the fifty United States Senators who participated in the Great Compromise fashioned by Clay to save the Union at a time when few were likely to have risked their lives to preserve it.[69]  We may therefore owe our nation’s unified existence to the Transylvania Law Department.  That institution might be considered an early example of what Yale’s Law School would later seek to become, but resisted becoming in antebellum times.

The Transylvania Law Department was elitist in its pretensions, and hence encountered resistance from Jacksonian populists.  Governor Joseph Desha, while eliminating Kentucky’s subsidy to Transylvania, explained that the state had "lavished her money for the benefit of the rich to the exclusion of the poor; the only result is to add to the aristocracy of wealth the advantage of superior knowledge."[70]  The Governor’s words reflected a deep current of anti-intellectualism in the Jacksonian politics of that time perhaps best expressed by William Leggett, a popular journalist in that day:

Take a hundred ploughmen promiscuously from their fields, and a hundred merchants from their desks, and what man, regarding the true dignity of his nature, could hesitate to give the award of superior excellence, in every main intellectual, physical, and moral respect to the band of hardy rustics, over that of the lank and sallow accountants, worn out with the sordid anxieties of traffic and the calculations of gain?[71]

This sentiment was almost certain to be shared by frontiersmen whose contact with professionals of any kind was not the sort to evoke confidence in their competence or their integrity.

But even persons holding such Jacksonian sentiments saw a need to train lawyers for public service.  A serious effort to create an avowedly Jacksonian law school was made at New York University soon after its founding in the 1830s.[72]  The program was intellectually ambitious; it proposed to create an elite that would not be too elite.[73]  A similar law school was established at Hamilton College by John Hiram Lathrop, who was an ardent Jacksonian;[74] he would move on to the University of Missouri as a stern advocate of egalitarian education,[75] leaving the Hamilton program in the hands of Theodore Dwight.  Also less vulnerable to Governor Desha’s concerns about snobbishness was the School of Law of Cumberland University in Lebanon, Tennessee, which was conducted by men of modest pretense who kept to a narrow vision of their subject but who enjoyed considerable success making theirs the largest law school in America for a time in the 1850s.[76]  

In addition to Harvard and Transylvania, there were other law schools or departments that were well received in the late antebellum era and that viewed themselves as institutions pursuing a public purpose.  These were at the University of Pennsylvania,[77] the University of Virginia,[78] Louisiana University (that became Tulane),[79] the University of North Carolina, and the law school founded in Cincinnati by Timothy Walker that became the law department of that city’s university.[80]  While there were in most communities of any size entrepreneurial lawyers supplementing their incomes in the manner of Tapping Reeve at Litchfield, the Yale Law School was in antebellum times an exception among university law departments in its singular preoccupation with private law. 

The Transylvania law faculty like the Litchfield faculty were not legal theorists or authors.  However, St. George Tucker, Timothy Walker, and Joseph Story did write as well as teach law in the early years of the Republic, and they were all concerned with the role of lawyers in its governance.   Hugh Henry Brackenridge, later a judge on the Supreme Court of Pennsylvania, wrote the first American novel; it was about the public duty of lawyers in a democratic society.[81]  James Kent[82] and Frederick Grimké,[83] whose careers were devoted chiefly to judicial service, also wrote learned books that addressed the legal issues arising in the conduct of democratic government.  Grimké was especially emphatic in depicting American courts as powerful political institutions.  But the premier antebellum American thinker about the role of law and lawyers in American society was Francis Lieber.[84]  Lieber spent most of his academic career at the College (later University) of South Carolina.   He was never licensed to practice law.  An unwelcome radical in his native Prussia, he migrated to Boston in 1828 already holding a German doctorate and after experiencing intellectual contact with such eminent persons as Reinhold Neibuhr and John Austin.  Joseph Story, who greatly admired him, advised Lieber that it would be a waste for him to devote the time to routine tasks required for him to acquire a lawyer’s license.  But had he done so, he would have been less likely to be disregarded by lawyer-historians, as he often has been.

Lieber’s major works were his two-volume Manual of Political Ethics published in 1836, Legal and Political Hermeneutics published in 1837,[85] Property and Labor[86] published in 1840, and Civil Liberty and Self-Government published in 1852.  All but Property and Labor were elaborations of the premise that a republic requires lawyers who strive to know the common good and to practice at least a measure of civic virtue; his elaborations were enriched with examples drawn from classical and more recent European experience.  He was acknowledged as Tocqueville’s principal American informant on American culture, and in 1849, having been pardoned for his youthful transgressions, he responded to a call to advise the King of Prussia on the democratization of his native land.  His work was in part a reaction to Jacksonian populism.  He was contending that the farmers and villagers of his day needed professional help of the sort he described in order to achieve effective self-government and the protection of civil liberty. 

Lieber’s Hermeneutics was rooted in German literature written to convince Protestants that there can be a correct reading of a text such as the Bible, or at least that all its interpretations are not equally correct, and therefore that it is useful to have professional pastors available to help Christians understand the teachings of Christ.  While printing had made the Word generally available and thereby liberated the faithful from the interpretations of the papacy, it was not to be supposed by these German Protestant sources that just anyone could get Christianity right without professional help, given the regrettably human impulse to interpret sacred texts to justify one’s selfish impulses.  Lieber adapted that Lutheran literature for use in American politics by substituting judges and lawyers for the clergy and adjuring them to maintain the professional discipline previously imposed on pastors interpreting the Word, thus to assure that democratic law, like the teachings of Christ, would be faithfully and virtuously enforced.  He did not present this synthesis as an original insight. 

Lieber acknowledged, with later Legal Realists and practitioners of Critical Legal Studies, the freedoms of those who interpret, for his aim was to caution interpreters against self-indulgent readings of legal texts.  Recognizing the inevitability of ambiguities in legal texts, he insisted on the moral duty of their interpreters to consider the consequences of various possible meanings and to employ every available insight in making such assessments.  Thus, he suggested that lawyers cannot “read Shakespeare too much”[87] because of the power of that author’s insights into human motives, insights much needed by the interpreter of legal texts.  This was a conventional wisdom of the time.[88]   But Lieber did not limit his own understanding to insights provided in literary classics.  His Property and Labor was a primitive exercise in law-and-economics providing economic explanations of the law of property.  He had earlier done an empirical study of penology,[89] and was attuned to the appropriateness of the use of data to understand law.  In the breadth of his interests, his impulses resembled those of Jefferson who never encountered an art or a science or a discipline that he did not relish and try to apply to his work.

Lieber’s books led, among his other triumphs, to his recruitment in 1858 by the trustees of Columbia University to be the teacher to revive the law department that had earlier been the scene of James Kent’s unhappy efforts to teach.[90]  It was Lieber who selected Theodore Dwight, then at Hamilton College, to come to Columbia as Lieber’s colleague in the re-founding of the department; together, they would meet the trustees’ vision of a program to train professional lawyers as public citizens.  As Langbein notes, Dwight was at Hamilton an entrepreneurial teacher and so it was arranged that Dwight would not be on the college payroll as Lieber was.  While Dwight’s department of municipal law was to be separate from Lieber’s department of public law for financial purposes, it was envisioned that the two would complement one another in providing instruction to students who would become lawyers and leaders of the Republic.  This was the scheme in place at Columbia when the nation fell apart.[91]  Yale had still not seen the light.

THE LATE 19^TH CENTURY

In considering Yale’s path in the later 19^th century, it is well to recall the sad state of the nation after an extraordinarily sanguinary civil war.  Moral exhaustion was widespread.  There was insufficient moral energy to sustain the Reconstruction, and so it was that the institutions of slavery were partially redeemed after 1875.  Corruption in government seemed the order of the day.  Almost all the antebellum law departments were devastated by the Civil War.  Transylvania’s had been closed, never to reopen.  The sad states of the Harvard and Yale Law Schools in the late 1860s expressed the sad state of the nation.

Yet, two law schools opened in 1858 and 1859 were prospering a decade later.  The latter was Columbia’s.    Lieber had spent three years of the war in Washington, first drafting the military orders that later became the international law of war, and then conducting the inquiry leading to the decision not to prosecute Jefferson Davis or other Confederate leaders.[92]  He returned to Columbia to teach for a time, but died in 1872.  Dwight therefore played the major role in teaching a rapidly growing number of law students who relished his instruction.  But the role envisioned for Lieber was maintained and later performed by his protogés John William Burgess, a noted scholar of comparative constitutional law,[93] and Frank Goodnow, the author of an extraordinarily original work on comparative administrative law.[94]  Goodnow was mentor to Ernst Freund, the founding intellect of the University of Chicago Law School, and was to become the president of Johns Hopkins University.  Dwight’s teaching of private law was the major attraction of students, but the public law program also grew to provide the basis for Columbia’s emerging and related program in political science.  Columbia Law students regarded the elective course in comparative constitutional law as an important feature of their curriculum.[95]

The other big success of the 1860s was the University of Michigan Law Department led by Thomas McIntyre Cooley, a man who had experienced very little formal education and who came from a vigorously Jacksonian background.[96]  Cooley and his colleagues were avowedly preparing lawyers to lead a republic.[97]  Although charged no tuition, most of the students remained for only the one year in which they could attend Cooley’s lectures.  Scores of his students would later serve in high public offices. 

Cooley’s Constitutional Limitations,[98] a publication of his lectures examining the powers of state legislatures as constrained by the federal and state constitutions, appeared in 1868 and was quickly acknowledged as a classic.  He was the most widely read and respected American legal scholar of the second half of the 19^th century.[99]  When Harvard gave him an honorary degree in 1886, he took the occasion to express to the audience a stern caution against intellectual pretense and snobbery.[100] Cooley had encouraged the development of a program in his university to study politics; like the program at Columbia, it was available to law students and many participated in it although it was not a requirement for the law degree.  In 1885, when Cooley stepped down from his leadership role at the law school, he relocated himself in that program.[101]

It bears notice that, in addition to Cooley, the other three legal scholars of note in the early 1870s were also in universities in the west.  One was William Gardiner Hammond, the premier legal historian of the day, who was the founding spirit of two law schools, at the University of Iowa and then at Washington University in Saint Louis.[102]  A second was John Forrest Dillon,[103] the author of admirable works on local government law[104] and on federal jurisdiction,[105] who was Hammond’s colleague at Iowa.  The third was John Norton Pomeroy, a founding spirit of the Hastings Law School of the University of California,[106] whose literary efforts resulted in extended works on diverse legal topics.[107]  His masterpiece was a three-volume treatise on Equity Jurisprudence,[108] an unfinished effort to salvage principles of Equity whose "disappearance would be a long step backward in the progress of civilization."[109]    None of these authors was insensitive to the social and political consequences of the laws about which they wrote.

Notwithstanding the general moral depression of their time, there were also in the 1870s distinguished citizens who were exhilarated by the victory of the Union and saw their time as one of great promise for reform.  Some of them had in 1865, only weeks after Appomattox, organized as the American Social Science Association, a group meeting annually to prescribe great reforms in American law and society.[110]  Its spirit was expressed by Daniel Coit Gilman, then a dean of the Sheffield School at Yale and later the founding president of Johns Hopkins University; Gilman told fellow Association members in a presidential address that America was through the efforts of the Association soon to become "an earthly paradise -- an enchanted ground void of crime, poverty, and unjust discrimination or privilege.”[111]  ASSA’s Social Economy Department was charged with the elimination of poverty; the person in charge was Yale’s President, Theodore Woolsey.  Its Jurisprudence Department was charged with harmonizing the law and resolving “questions of justice;” the person initially in charge was Francis Lieber.  The member responsible for its program to eliminate crime was Lieber’s Columbia colleague, Theodore Dwight.   In that role, Dwight was among the first Americans to voice the ambition to use criminal law to rehabilitate criminals; although the grandson of Yale’s Timothy Dwight, his was not the voice of a Puritan or of one who dissociated law from its political context and social consequences.  The Civil Service Act of 1883[112] and similar legislation creating career service opportunities in state and local government were responses to ASSA initiatives.  So were the amendments of state constitutions providing for “home rule,” i.e., a measure of independence of local governments from legislative control, a movement first appearing in Missouri in 1875[113] and prefigured by the advocacy of Lieber.[114]

Alas, ASSA members inspired by rhetoric such as Gilman’s did not accurately assess the limited capacities of amateurs such as themselves to comprehend complex social and economic problems and foresee the secondary or tertiary consequences of well-intended reforms.  Nor did they notice that professional experts on whom they came to count for the needed empirical work would be limited in their resources and capacities, that empirical data would oft-times be too difficult to acquire, too limited, too complex or too ephemeral to sustain sound judgment, that experts would have divergent and conflicting personal agendas making their opinions unreliable or even suspect, or that people and their politicians could and would retain beliefs even in the face of overwhelming scientific disproof.  These were among the reasons that the discovery of social science did not make America at once, or even later, an earthly paradise.  But ASSA remained a force for a quarter century, until it was displaced by the social science professions whose members suffered under some of the same disabilities of perception.  It can hardly be doubted that ASSA, notwithstanding its failure to achieve the goals set by Gilman, reinforced the ambition of its members to make America a more humane and virtuous republic.  President Woolsey as one its leaders plainly shared that ambition of his ASSA colleagues.

In was in this time and context that President Woolsey commenced in 1869 a rehabilitation of the Yale Law School.  In 1874, he urged his law school to teach “the law of nations, the doctrine of finance and taxation, the general doctrine of rights and the state, the relation of politics and morals . . . Roman history and Roman law, comparative legislation, and even less immediately practical subjects such as feudal and canon law.”[115]  Such an institution, he proclaimed “would reach into the halls of Congress, into the departments of government, [and] might become a fountain of life throughout the whole land.”[116]  His successor, Noah Porter, likewise urged the school to pursue the studies of ethics, politics, and sociology, and to avail itself of the talents of other Yale professors knowledgeable in those fields.[117]  This was soon done, in the form of special lectures for law students presented by diverse Yale professors.  Their aim was not intellectual breadth for its own sake, but to prepare Yale law graduates for leadership in a self-governing society.  These ideas were new to Yale, but not to many earlier American legal educators.

Woolsey’s vision of legal education at Yale was also informed by the direct relationship between Woolsey and Lieber, his colleague in ASSA.  When Lieber died in 1872, Woolsey undertook to edit and republish Lieber’s Civil Liberty and Self-Government,[118] and then went on to produce a new edition of his Political Ethics.[119]  Woolsey was not alone in this undertaking to revive Lieber’s work.  In 1880, President Gilman (as he then was) edited and published a volume of Lieber’s essays,[120] and Chancellor Hammond (as he was then designated) produced a new and heavily documented edition of Legal Hermeneutics.[121]

What circumstance led to this Lieber revival?  Numerous professions were in the 1870s seeking to establish the validity of their members’ claims to status on the basis of their knowledge of similar mysteries not available to the ordinary mortals they claimed to serve.[122]   The movement to technocratic professionalism in all fields seems in part to have been a response to industrialization and the accompanying urbanization.  It was much in the mind of Charles Eliot, the Harvard President, when he commissioned Christopher Columbus Langdell to devise a science of law.  Implicit in the ambition to be elite professionals was an expectation that one’s field of study was accessible only to the anointed, so it was a time in which numerous academic disciplines were isolating themselves from one another.  New professions were being formed, sometimes around academic disciplines newly devised to justify the claim to professional status.

Responding to Eliot’s direction, Langdell found the needed “science of law” in the English jurisprudence observed by Lord Tennyson, as quoted above.  The case method was for Langdell a method of “mastering the lawless science of our law” as the means to fame and fortune.  It was a queer form of science and its unrealistic perception of American law was privately reviled by Langdell’s more distinguished and more thoughtful colleagues -- James Bradley Thayer, John Chipman Gray, and Oliver Wendell Holmes, Jr.[123]  But by extending the course of study to three years, he had rediscovered the principle of human capitalism that was in 1880 a popular rage, if not yet known by that name.  Langdell’s case method was the stated justification for that reform.

In reviving Lieber’s works, Woolsey, Hammond and Gilman were moving in a very different direction from that of Eliot and Langdell.  When Lieber had taught that farmers and villagers need lawyers to govern themselves, the lawyers he had prescribed were to be persons of broad vision but sensitive to the concerns, values and interests of the citizens they were to serve.  Because that notion of the lawyers’ professional discipline was to a degree deferential to common sense and popular morality, as well as to the interrelatedness of knowledge, it was incompatible with the emergent vision of technocratic professionalism regarding law as a mystery open only to the select few.  In staging a Lieber revival, his posthumous editors were reinforcing the conventional American (Whig if not Jacksonian) ideal of law as a well-informed and studious profession sharing public responsibilities with a self-governing people. 

While it may be supposed that Langdell’s jurisprudence and vision of the profession followed his case method and dominated the thought of American lawyers, the ASSA vision of law as a political instrument and legal training as moral education was voiced not only by Woolsey, Hammond, and Gilman, but by many other legal educators in the late 19^th century, albeit generally without attribution to any of the antecedents listed here such as Lieber or his editors, or to the antebellum law schools such as Story’s Harvard or Robertson’s Transylvania.   Indeed, one American university after another sent its law school on the mission of service to the Republic to be performed by training lawyers of intellectual breadth and wisdom.   This was most explicit at the University of Wisconsin under the leadership of President John Bascom, an active member of ASSA, who ascended to the leadership of that university in 1874 and initiated “The Wisconsin Idea” that the whole university had a primary responsibility to improve the social and economic order of the state.[124]  The school established by Hammond at Iowa was not so different; he and Dillon also aspired to elevate the ability of their students to perform public service.[125]  The Cornell Law School was established in 1887 by its President Charles Kendall Adams,[126] a former colleague of Thomas Cooley as well as a member of ASSA.  He hired Cooley acolytes to make the start, explaining that “there never was a time when there was so much need of wisdom in the direction of governmental affairs as there is at the present time.”[127]  When Stanford University opened its law school in 1894, it employed as its leader a former President of the United States, Benjamin Harrison, with the expectation that he would lead his students to engage honorably in the affairs of the Republic.[128]  The University of California established in Berkeley in 1894 a new department of jurisprudence, so named to distinguish it from the Hastings Law School and to emphasize its even more distinctive public responsibility to provide lawyers with the intellectual breadth required for constructive public service.[129]  The same idea of a “school of jurisprudence”[130] to train broad-minded and public-spirited lawyers echoed in the corridors of other universities contemplating entry into the field of legal education – Chicago, Hopkins, Princeton.  The University of Chicago Law School under the intellectual leadership of Ernst Freund reflected his standing as an intellectual descendant of Francis Lieber, notwithstanding the effort of its founding dean, the Langdellian Joseph Beale, to limit his influence.  Freund, like Wythe, was a role model; he devoted his life to public service and encouraged his students to do the same.[131]  Matters were not so different at the Northwestern University Law School led by John Henry Wigmore, who was an intellectual descendant of James Bradley Thayer, a comparatist, a legal historian, a colleague but not a follower of Langdell, and above all a man dedicated to his vision of public service.[132]  This list could be extended. 

In light of these developments, it is apparent that there was nothing novel about President Woolsey’s thoughts as he undertook to revive the Yale Law School in 1869.  He had at last for Yale seen the light that had long been guiding many others, even in remote corners of the nation.  It was the wisdom of George Wythe and the Transylvanians that Woolsey himself perpetuated in editing the work of Francis Lieber as well as in redirecting the Yale Law School. 

As the contributors to the History of Yale Law School acknowledge, it was Harvard, almost in the person of Langdell, that provided the model of what the Yale Law School was not after its revival under President Woolsey, and never would be, even if in antebellum times it had been pre-Langdellian in its confined view of its subject.  It was perhaps the competitive instinct of Yale that set the stage for generations of Legal Realists and their successors to condemn Langdell as a prince of darkness and to attribute his Puritan-Austinian vision to their less intellectually aggressive colleagues.

The person appointed by Woolsey to implement his conventional wisdom about legal education in America was Simeon Eben Baldwin,[133] an extraordinary person who receives little attention in the History lectures.  He was in some ways a curious choice to pursue Woolsey’s aims.  He was the descendant of Puritan Federalists.  He had paid a substitute to take the place he was called to serve in the Union Army, in part because he sympathized with the South.  He was a railroad lawyer with scant compassion for lesser citizens whom the Republic professed to serve. 

Baldwin in 1875 devised the first American graduate program in law, emphasizing specified law-related disciplines and employing the talents of much of the Yale faculty, as Presidents Woolsey and Porter had proposed.  This program afforded a third year of instruction leading to a Master of Laws, and a fourth leading to the Doctor of Civil Law.  In 1898, he published a work on law and politics[134] that gained a substantial readership for his views although it lacked novelty.  It reflected the influence of his Yale colleague, the sire of American Social Darwinism, William Graham Sumner, who was among those Baldwin invited to lecture to Yale Law students[135]

Notwithstanding his elitist politics, Baldwin’s concern for the civic duty of the legal profession was clearly visible in the imprint he made on the American Bar Association, an organization he called into being at Saratoga in 1878.  It was a pretentious and self-important group, to be sure, but they took seriously the duty of their profession to shape America’s legal institution to the public need as best they could identify that need.[136]  The first article of its constitution written by Baldwin declared the objects of the association; they were “to advance the science of jurisprudence, promote the administration of justice and uniformity of legislation throughout the union, uphold the honor of the profession of the law, and encourage cordial intercourse among the members of the American Bar.”

In 1893, the Association created a Section of Legal Education.  Baldwin was elected its first chair.  In its first report, it described legal education in Europe, recommended that law schools be subject to public authority requiring each to have at least four well-paid teachers and requiring instruction in thirteen subjects that included Roman Law, International Law, Comparative Law and Political Economy.[137]  Baldwin himself became a President of the American Social Science Association, of the American Historical Association, of the American Political Science Association, as well as of the Association he called into being at Saratoga.  He was also later a member of the state’s highest court and, finally, Governor of Connecticut.  He was thus in no respect a Langdellian.    As the Progressive era dawned, Baldwin’s Yale Law School was well suited and well placed to move to the front of American legal education, as indeed it did at last begin to do in the era recorded by Robert Gordon in his contribution to Dean Kronman’s book.[138]

 THE 20^TH CENTURY

The Yale essays take no explicit notice of the Progressive Era, perhaps because the Yale Law School scarcely participated in it.  The beginning of that Era was marked by the Johnstown Flood of 1895 that brought to many minds the need to protect citizens from the brutal indifference to their fates of those with great economic power.[139]  Perhaps the era ended with the coming of war in 1917.  It was during that time that the Wisconsin Idea held its broadest sway, leading young Harvard Professor Felix Frankfurter to make the anti-Langdellian suggestion that it be adopted at Harvard and other law schools as a commission to reform all American law.[140]  Members of the newly established sub-profession of academic law were in that era finding many opportunities to participate in law reforms.  Law professors were for the first time sufficiently numerous to have their own organization; the Association of American Law Schools was establish in 1900 under the aegis of Baldwin’s American Bar Association. [141]  Their influence was first widely noticed in 1906, when Roscoe Pound, then dean of the University of Nebraska Law School, challenged the American Bar Association to deal with the many “causes of popular dissatisfaction” with the law[142] and excited wide interest in judicial law reform.[143] 

In 1910, Governor Woodrow Wilson observed to the same audience:

I suppose that all struggle for law has been conscious; that very little of it has been blind or merely instinctive.  . . . [B]ut in very few ages of the world has the struggle for change been so widespread, so deliberate, or upon so great a scale as that which we are taking part in.  . . . Society is looking itself over in our day from top to bottom . . . and stands ready to attempt nothing less than a radical reconstruction.[144]

The relationship between this Progressive ferment and the legal profession was explained by Herbert Croly, who in 1902 founded The New Republic as the leading voice of that ferment.  As a non-lawyer, he saw legal education as a centerpiece of Progressive politics and he precisely stated its problem in the new century:

If the lawyers have any reason to misinterpret a serious political problem, the difficulty of dealing therewith is much increased, because in addition to the ordinary risks of political therapeutics, there will be added that of a false diagnosis by the family doctor.  The adequacy of the lawyers’ training, the disinterestedness of their political motives, the fairness of their mental outlook, and the closeness of their contact with the national public opinion -- all become matters of grave public concern.

Croly perceived that this concern ought be elevated by the tide of technocratic professionalism that the Langdell vision was riding:

Since 1870 the lawyer has been traveling the same path as the business man and the politician.  He has tended to become a professional expert, and to give all his time to his specialty.  The greatest and most successful American lawyers no longer become legislators and statesmen as they did in the time of Daniel Webster.  They no longer obtain the experience of men and affairs which an active political life brings with it.[145]

As Croly rightly perceived, Langdell’s science could not fill the public’s need.  But could “schools of jurisprudence” informed by “the Wisconsin Idea” meet that need?

Robert Gordon notes that many schools were “Harvardized” during this time.[146]  This is so in the sense that a growing number of law schools joined the parade of institutions seeking to elevate the status of their students by extending the duration of the period of study required for a degree and requiring more years of study to gain admission.  They also made their students read cases and withstand public interrogation about them.  William Keener took the case method to Columbia, and Joseph Beale took it to Chicago.  The attractions of the case method that caused it to sell were the assurances it gave that students would have primary responsibility for their own intellectual and moral development and that their teachers would have material to teach sufficiently difficult to justify an elevated status for the profession.  It served to fill the three-years that it was deemed important to fill if law was to be adequately esteemed as a learned profession.  But while the premise of law as a sterile wilderness of single instances may have been embraced by some students taught by the case method, it seldom penetrated the thinking of Progressive lawyers and law professors who were attentive to what was happening in the world around them.

Thus, Wigmore introduced the case method at Northwestern, but he was no missionary for the ideology that accompanied it in the mind of its designer.  He accepted the teaching method for the reason that Langdell’s skeptical colleagues Thayer and Gray did, that it was a superior means of initiating students to the American legal culture and the morals of law.  When Arthur Corbin began to teach cases at Yale in 1906, he was assuredly not presenting a wilderness of single instances to be synthesized without regard for the consequences of the principles to be derived from them, but was bringing to bear on selected issues of contract law his considerable fund of wisdom drawn from diverse sources.  Wesley Hohfeld, a younger member of the Yale Law faculty in 1914 presented an elaborate jurisprudence to the Association of American Law Schools, one calling for better legislation informed by wise academic counsel who should be better informed than their forebears.[147]  But except for its complexity, Hohfeld’s presentation was conventional Progressivism agreeable enough to much and probably most of the subprofession to which it was addressed.

A caution to this observation may be derived from the location and design of the buildings erected for the use of university law schools.  Rarely were they located at the center of a university,[148] but generally on the margins, where they were at less risk of suffering an impairment of their independence of other academic disciplines.  And some resembled fortifications equipped to resist penetration by alien thinkers.[149]  But no law school was more isolated from its university than was Wigmore’s.   Few Progressives would have challenged Lieber’s or Wigmore’s advice to read Shakespeare, or Wythe’s to read Adam Smith and Emer de Vattel, for Progressive politics was not only a rejection of the Social Darwinist politics of the Gilded Age that had produced Langdell’s Litchfield-Blackstone-Austin revival but was itself an echo of much antebellum thought about the relation of American law to politics and of the program of ASSA.

There were, however, few if any members of the Yale law faculty who were actively engaged in Progressive politics.  William Howard Taft had joined the faculty after leaving the White House with his credentials as a Progressive in tatters.  While Simeon Baldwin was in some respects ahead of his times and had been a political Mugwump, he was, like Taft, out of sorts with the Progressive dogmas of the next generation.  In 1897, Baldwin was a voice for applying the lash to minor offenders and requiring prisoners to wear ball and chain.[150]  He opposed progressive taxation.  Not only as a lawyer representing railroads, but as a student of railroad law, he opposed federal regulation of the roads.

In 1909, while sitting on the Supreme Court of Connecticut, Baldwin led his court in holding that the Federal Employers' Liability Act, designed to assure compensation for injured railroad workers, was an unconstitutional impairment of the freedom of contract,[151] a conclusion that was destined to be repudiated by the Supreme Court of the United States in 1917.[152]  The decision was widely celebrated by employers and widely denounced by workers and others concerned for their welfare, and it led Baldwin into a prolonged name-calling match with Theodore Roosevelt.[153]

In the 1920s, Legal Realism became the cry of many of the most aggressive law professors, who in the age of post-Progressive “Normalcy” received scant encouragement for their impulses as law reformers and were hence left in the cloister to theorize.  In part, theirs was a call for resistance to what Thurman Arnold aptly labeled as the folklore of law,[154] the unfounded assumptions on which legal doctrine can often be found to rest.  Realism led to such events as an attempt at radical reorganization of the curriculum of the Columbia Law School along what were deemed to be functional lines, an attempt that resulted in deep fractures in that community.[155]  Two stars of the Columbia law faculty, William O. Douglas and Underhill Moore, moved to Yale.  Yale took on a new look.[156]

Realism was, among other things, a call for empirical research of the sort favored by Lieber and his ASSA colleagues.  Many Yale law professors were filled with this ambition.  They were led by Charles Clark, a dean who himself undertook empirical research.  Empirical work required money, and it also required strong insights and intuitions about what can be usefully measured and how.  Yale empiricists encountered some of the same problems earlier encountered by ASSA.  The career of Underhill Moore provided a premier example.[157]  His moral courage in devoting years of study to traffic patterns in New Haven merits admiration even if his results were not instructive, but at least in hindsight his project seems to have been hopeless. 

Moore was not alone in pursuing questionable insights from other disciplines.  Jerome Frank was a part-time member of the Yale Law faculty when he, with the encouragement of his colleagues, in 1930 published Law and the Modern Mind, a clever application of the teaching of Freud to the study of judicial decision-making to suggest that subconscious motives overpower conscious deliberation about the meaning of legal texts.  Arthur Corbin recognized this as nonsense and deployed his influence to prevent Frank’s regular appointment; time has been on Corbin’s side of the issue.[158]  Other examples of misdirected interdisciplinary work are not hard to find, and there may be reason to suppose that Yale may have produced more than its fair share.[159]

The Yale law faculty, as Gordon again notes, also became in the 1930s heavily engaged in law reform on a national scale.  In this commitment to law reform, they had been anticipated by Baldwin who had been at all times engaged in public affairs, if on the other side of most issues from those who came later.  They were also following the path marked by numerous law teachers in the Progressive Era, perhaps most notably at Wisconsin.  Indeed, Underhill Moore and Walter Wheeler Cook had earlier taught at Wisconsin[160] and had there been engaged in law reform efforts.[161] 

Numerous Yale Law professors were deeply embedded in the New Deal.  Many spent a lot of time in Washington, and some stayed there.  This generally reflected their commitments to public service and the high regard for their professional judgment maintained by their peers.  But they were not alone in the capital.  In the early years of the New Deal, no one exceeded the influence of Columbia’s Adolph Berle.[162]  And Harvard Law graduates, sometimes referred to as Felix Frankfurter’s Happy Hot Dogs, were numerous throughout the government.[163]  Indeed, the New Deal was described by Jerold Auerbach as a Lawyers’ Deal.[164]  The lawyers were not, however, free of the cynical assessment of one old hand who dismissed them as a “plague of young lawyers.”  The person applying that term to their appearance stated that he “never found out why they came, what they did or why they left.”[165]  But they pursued a widely shared impulse to serve the Republic that had been nurtured in their law schools.

Gordon concludes that the law reform efforts imposed some costs on the Yale Law School, but these were fully repaid with its establishment as “a safe haven for critics and reformers, visionaries and rebels.”[166]  And that in the end the experiments were subordinated to or assimilated into the narrower concerns and routines of preparing students to practice a profession.

Professors advocating significant law reform require a measure of academic freedom and this proved to be a bit of a problem at Yale, just as it had at Wisconsin,[167] and elsewhere.  Gaddis Smith’s lecture in Kronman’s book is devoted to that subject.[168]  He slyly refers to Chief Justice William Howard Taft, the former Yale Law professor, as “a weighty influence” protesting political leanings he discerned in Dean Robert Hutchins and some of his faculty who supported the radical Felix Frankfurter in his protest over the notorious case of Sacco and Vanzetti.[169]  Later, Smith reports, came protests from the business elite and their lawyers about Thurman Arnold’s radical revelation that corporations are not in fact people,[170] and Eugene Rostow’s subversive preference for market competition in the oil industry.[171]  Yale was often less than full-throated in its defense of academic freedom.  Thomas Emerson, Abe Fortas, and Harold Lasswell’s appointments survived misguided opposition in the governing board, but Vern Countryman’s did not.[172]  He was a casualty of McCarthyism and so had to end his days as a professor at Harvard.  These problems seem to have been laid aside when the University at last agreed to allow the law school a substantial measure of fiscal autonomy, enabling it to acquire a separate endowment of size, and thus strengthening its ability to withstand the stress of displeasure on the part of trustees and alumni.

Notwithstanding these impediments, the Yale Law School did become the epicenter of interdisciplinary studies, academic law reform efforts, and Legal Realism.  But Legal Realism remained undefined and indistinguishable from much that was said about American law in the 19^th century.  In the hands of Karl Llewellyn, Legal Realism was an enjoyable taunt of Harvard’s aging Dean Roscoe Pound, who by some lights had himself been in his youth a Realist.  Arthur Corbin wrote a treatise widely regarded as one of the best ever, and it tended to take issue with Harvard’s Samuel Williston and with the American Law Institute’s Restatement of the Law.  Perhaps Williston’s work could be described as no more than a mastery of the forest of single instances, but whether Corbin could be said to be a Legal Realist remains unclear.  It seems fair to say that he was insufficiently iconoclastic to be a serious Realist and Williston’s autobiography indicates that he was not blind to political realities.

Along the way, Yale became the most exclusive law school.[173]  When it announced a limitation on the size of its entering class to 100, the cynic Thurman Arnold explained that this was to assure that they would some day attract a class of that size.[174]  In fact, this proved to be an ingenious move reflecting an insight deeper even than that expressed by Charles Eliot when he told Langdell to make Harvard Law School long and hard.  Yale made it not quite so hard to get through, in part by making it harder to get in.  So those admitted to its class could claim the status of selectivity at the outset of their study, with less of the anxiety and trauma imposed by Langdell’s scheme.  The economists’ principle of human capitalism employed by President Eliot was not rejected but was qualified to embrace the psychologists’ insight into the appetites of prospective students for comfort and security.  The student selection process was self-reinforcing, resulting in ever more rigorous competition to gain admission.  Having the most highly selected students helped attract and hold an increasingly eminent faculty.  It may be that it was its early commitment to selectivity that best explains the presently elevated status of the Yale Law School.  The relatively classless America of the 19^th century was changing in the 20^th century to make academic snobbery increasingly prized.

But then came the students in the “dark ages” whose mischief is recorded in the Kronman book by Laura Kalman.[175]  As she reports, students infected with an enlarged sense of their importance and radicalized by the thought of compulsory military service in Viet Nam thought they detected in the Yale Law School a duplicity in evil corporate imperialism.  But they, like the passionate anti-Communists of the 1950s would “pass and be forgotten like the rest.”  Their protests, like those of President Taft, can be viewed as foreseeable and inevitable consequences of running a law school that seriously and critically examines the relation of the law to its consequences and seeks to enlarge the critical faculties of its students.  Such teaching will agitate and provoke in a way that teaching law as envisioned by William Blackstone and expressed by Lord Tennyson, seldom will.

Thomas Jefferson himself had moments as a university founder and trustee when he did not tolerate political differences with the teachers he hired or did not hire.[176]  Nevertheless, it seems likely that he would on reflection have saluted the kind of institution the Yale Law School became as just the sort of training ground he sought to create in Virginia to nurture the civic virtues for which he hoped, and that Francis Lieber enumerated.

It seems unlikely that all the rebels Kalman described came to the Yale Law School to learn how to serve their Republic.   Even George Wythe’s students were not all patriots, and few of us indeed are persons of pure civic virtue, never mind our disagreements about the identity of the public good we might be willing to serve.  Students then as now came with a mix of motives that included the hope of academic and professional status as well as that of earning a living and a mix of premises from which to assess the public good.  Yet even the students who went to Litchfield were often seen later to engage themselves in public causes and careers, notwithstanding the apparent indifference of their teachers to any such endeavors.   We are told that Horace Mann, a premier 19^th century American example of civic virtue, acquired or at least elevated his willingness to bear burdens for his fellow citizens as a result of his contact with James Gould, his teacher at Litchfield.[177]  Gould was apparently unable to teach even the “lawless science of our law” without causing at least some of his students to reflect on law’s social and political underpinnings and on their own opportunity to make a difference in the life of their Republic.  Yet surely the chances of producing a Horace Mann were better in the Yale Law School of the mid 20^th century, and even in Kalman’s “dark ages,” than they had been in the time of David Daggett.

CONCLUSION

Felix Frankfurter was wrong when he proclaimed that it is the law schools that make the lawyers, and thus presumably the social order of which they are a part.[178]  It is more nearly correct to proclaim that it is the social order that makes the profession that makes the schools.  The 21^st century Yale Law School isan almost inexorable result of the forces at work in America since 1776.

Because it is so profoundly American the Yale Law School became very rich and strong, and its faculty very secure.[179]  That is also why, as Kalman especially emphasizes, many of its students are hung up on its social and professional status as reflected in such ultimately meaningless trivia as its elevated ranking by US News and World Report.   And why, alas, the political sentiments of its trustees, faculty, and students have sometimes overridden the civic virtue that the ideal law school as envisioned by Wythe and Lieber should have been perpetuating.  It may also explain why its faculty and students have sometimes been perceived by others to be drilling intellectual dry holes and erecting unsightly monuments in the terrain of alien disciplines.  And why both its faculty and students may perhaps be seen at times, like other Americans, to consume more than they produce.  In all these respects, one can say that the Yale Law School forsook its Puritan past to become in the 20^th century, for good or ill, a quintessentially American institution with common American faults as well as strengths and virtues.

NOTES