Professional Documents
Culture Documents
BRUCE A. KIMBALL
INTRODUCTION
Professor of Educational Studies, The Ohio State University; A.B., Dartmouth College;
M.Div. and Ed.D., Harvard University.
1 See Gail. J. Hupper, The Academic Doctorate in Law: A Vehicle for Legal Transplants?, 58 J.
LEGAL EDUC. 413, 414 (2008); Gail J. Hupper, The Rise of an Academic Doctorate in Law: Origins
Through World War II, 49 AM. J. LEGAL HIST. 1, 3 (2007).
2 Gail J. Hupper, Educational Ambivalence: The Rise of a Foreign-Student Doctorate in Law, 49
NEW ENG. L. REV. 319 (2015).
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450
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See LAURENCE R. VEYSEY, THE EMERGENCE OF THE AMERICAN UNIVERSITY 17475, 26466
(1965).
6 Nancy McCall, The Gazette Online: The Newspaper of the Johns Hopkins University, JOHNS
HOPKINS GAZETTE (Feb. 12, 2001), http://pages.jh.edu/~gazette/2001/feb1201/12garret.html;
Historical Facts, HARV. U., http://www.harvard.edu/historical-facts (last visited Mar. 16, 2015).
7 JEFFREY L. CRUIKSHANK, A DELICATE EXPERIMENT: THE HARVARD BUSINESS SCHOOL, 1908
1945, at 185 (1987); ABRAHAM FLEXNER, MEDICAL EDUCATION IN THE UNITED STATES AND
CANADA 2527 (1910), available at http://archive.carnegiefoundation.org/pdfs/elibrary/
Carnegie_Flexner_Report.pdf; cf. BRUCE A. KIMBALL, THE INCEPTION OF MODERN
PROFESSIONAL EDUCATION: C. C. LANGDELL, 18261906, at 34951 (2009).
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The reasons for this shift fell into two categories: (1) the declining
interest of U.S. students, and (2) the growing incentives for foreign
students. In the former regard, it is noteworthy that the graduate program
enrollments were always small and never more than 10% of the LL.B.
enrollments, as Hupper observes.14 This factor deserves emphasis
becausein contrast to medicine, the other major domain of professional
education15law schools had lower admissions requirements, as a general
rule.
After the appearance of the Flexner Report in 1910, American medical
schools rapidly adopted the admissions requirement of a four-year
bachelors degree during the following decade. In 1893 HLS had become
the first law school in the country to require a bachelors degree for
admission, and other law schools slowly followed along. 16 In 1905 the
percentages of college graduates among students at leading university law
schools were: Harvard 99, Columbia 82, Chicago 60, Yale 35, Pennsylvania
35, Northwestern 31, Michigan 13, and Cornell 10.17 It was not until 1950
that three years of college work became the normal prerequisite for U.S.
law schools and not until 1970 that four years became the norm. 18 In light
of this, the entire project of graduate legal education in the 1910s appeared
almost fifty years ahead of itself, because the combination of a four-year
bachelors degree and a three-year law degree far exceeded the educational
norm of practicing lawyers and, therefore, sufficiently qualified law
professors. By comparison, medical schools had not tried to introduce a
post-M.D. degree even though that degree stood on a higher and broader
academic foundation than did the LL.B.
A second reason for U.S. law graduates declining interest was the
continuing variation in admission standards of law schools, which was
much greater than medical schools.19 As a result, the law schools became
highly stratified by their academic standards, and the pedigree of the LL.B.
degree remained the most distinguishing criterion among law graduates.
Many U.S. students enrolling in the graduate programs were therefore
18 ROBERT STEVENS, LAW SCHOOL: LEGAL EDUCATION IN AMERICA FROM THE 1850S TO THE
1980S, at 209 (1983).
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seeking to upgrade their law degree, and were not as strong academically
as the LL.B. law students at the same schools.20 The uneven composition of
the graduate student body therefore weakened the appeal of the graduate
degrees to the strongest LL.B.s.
Third, even though HLS and other law schools were spending ten
times more in scholarship aid per graduate student than per LL.B. student,
the lack of financial support for the thesis-writing year prevented many
S.J.D. students from completing their degrees.21 The low completion rate
thus became a detriment to the doctoral programs and a disincentive to
enroll.
A fourth reason for U.S. law graduates declining interest was the
contemporaneous rise of the judicial clerkship as an alternative route to the
law professoriate.22 In 1930 Congress first authorized support for a clerk for
each federal circuit judge and, in 1936, for certain federal district court
judges.23 By 1942 almost half of the states supreme courts had some
provision for clerks.24 As a result, the proportion of full-time law faculty
who clerked rose from 11% for the 790 faculty who graduated from law
school during the period 19461955 to 22% for those who graduated
between 1966 and 1975.25 The emergence of this alternative path to the
faculty naturally lessened the incentive or necessity to pursue a graduate
degree.26
A final reason, likely the most significant, was:
an enormous expansion of the legal Education market, and more
specifically the total number of full-time law teachers, beginning
in the mid-1950s. The underlying causes included a more
widespread belief in the power of law as an instrument of social
change, particularly in the civil rights era; the post-war baby
boom . . . and the availability of educational deferments from the
Vietnam war draft.27
More broadly, the period between 1945 and 1975 is often called the
Golden Age of higher education by scholars. During this period, federal
20
24
Id.
See Hupper, supra note 2, at 373.
26 See id.
27 Id. at 374.
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financial aid for students grew enormously due to the G.I. Bill of 1944, the
National Defense Education Act of 1958, and the Higher Education Act of
1965. Meanwhile, the research universities received vast new financial
resources through federal funding for research, led by the National Science
Foundation, which was established soon after World War II. As a result,
between 1950 and 1970 undergraduate enrollment in the nation increased
nearly four times, from 2.3 million to 8.6 million, while the number of
colleges and universities rose from about 1,800 to about 2,800. 28 The
number of accredited law schools grew from 111 in 1947 to 124 in 1952 to
136 in 1977, while the number of full-time law faculty rose concurrently
from 991 to 1,182 to 2,264an increase of 128 percent from 1947 to 1967.29
In such an expanding market, the abundance of faculty openings reduced
the incentive to pursue graduate education in law.
Meanwhile, foreign students were increasingly attracted to study in
U.S. law schools after 1945. The first reason was the status and strength of
the U.S. as a world power. A second reason was the rising prestige and
reputation of U.S. universities, which remained in the shadow of European
universities prior to 1940. Third, the law schools actively encouraged
foreign students to attend.30 HLS Dean Griswold voiced this
encouragement in his first annual report, addressing the year 19461947:
With the scientific developments of our times, it becomes
apparent that the preservation of civilization depends upon the
extension of the rule of law from local to international and world
affairs . . . . Harvard Law School, as one of the centers where the
rule of law is nurtured, may well feel that it is performing an
important task in the service of mankind.31
GEIGER, supra note 10, at 11011, 114; Hupper, supra note 2, at 404.
ERWIN N. GRISWOLD, ANNUAL REPORT OF THE DEAN OF HARVARD LAW SCHOOL 194647,
at 405 (1947).
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As a result, between 1945 and 1959 Harvard and Yale conferred more
than half of their law doctorates on foreign students. By the latter date
Harvards graduate program enrolled over sixty foreign students, while
those at Columbia, Michigan, Yale, and New York University enrolled over
twenty each.34
Notwithstanding this shift, graduates of the S.J.D and LL.M. programs
still constituted about one-third of U.S. law faculties in the 1970s. In the
19741975 academic year, almost 25% (955) of U.S. law professors
possessed the LL.M. degree, nearly 4% (144) had the S.J.D., and another 4%
(151) had both.35 Most of these faculty earned the graduate degree in the
prior generation, but at HLS, the graduate student enrollment continued to
be split between American and foreign students. Most of the U.S. students
were enrolled in the S.J.D. program, and most of the foreign students were
enrolled in the LL.M. program.
The U.S. students continued to enroll in the S.J.D. because the prestige
of the HLS degree still made it worth the effort for U.S. graduates of other
law schools who were seeking faculty positions. Foreign students enrolled
predominantly in the LL.M. for two paradoxical reasons: some students
did not have sufficient preparation to broach the doctorate, while some
European universities viewed the American S.J.D. as less demanding than
their law doctorate.36 Hence, the S.J.D. requirements were either excessively
or insufficiently rigorous for some foreign students. Whatever difference
existed between the S.J.D. and the European doctorates may be attributed
to the fact that the U.S. LL.B. required a bachelors degree by that point,
and that requirement did not exist in most European countries. Hence, the
U.S. law doctorate may have been less extensive than some European law
doctorates, but the overall course of postsecondary education was no less,
due to the longer, underlying course of study.
In sum, the enrollment shift from U.S. students to foreign students at
HLS and elsewhere after 1945 was shaped by the broad development of
U.S. higher education from 1870 to 1970 and by the distinguishing
33
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Robert C. Clark & Archibald Cox, In Memoriam: Erwin Nathaniel Griswold, 108 HARV. L.
REV. 979, 98688 (1995).
39 ERWIN N. GRISWOLD, Law School, in ISSUE CONTAINING THE REPORT OF THE PRESIDENT OF
HARVARD COLLEGE AND REPORTS OF DEPARTMENTS FOR 194647, OFFICIAL REG. HARV. U., Dec.
1, 1949, at 405; ERWIN N. GRISWOLD, Law School, in ISSUE CONTAINING THE REPORT OF THE
PRESIDENT OF HARVARD COLLEGE AND REPORTS OF DEPARTMENTS FOR 194748, OFFICIAL REG.
HARV. U., May 16, 1950, at 38485; Arthur E. Sutherland Papers (June 2, 1958), Special
Collections, Harvard Law School Library, Box 66, Folder 10, Harvard University Law School.
40 Danielle R. Coquillette, In Memoriam: Arthur T. von Mehren, 119 HARV. L. REV. 1949, 1950
(2006).
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Ford declined to fund the World School of Law, and HLS submitted a
scaled-down proposal in 1953. In a speech at the University of Chicago
41
Interview with Harold J. Berman, supra note 37; Interview with Arthur von Mehren,
supra note 36.
42 Interview with Harold J. Berman, supra note 37.
43 Id.
44 ERWIN N. GRISWOLD, REPORT OF THE PRESIDENT OF HARVARD COLLEGE AND REPORTS OF
DEPARTMENTS, 194950, at 451, 457 (1954), available at http://pds.lib.harvard.edu/pds/view/
2582287.
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By this point, Katz had returned from Europe and joined the Ford
Foundation, which was developing a deep interest in international affairs,
and in the mid-1950s the foundation made a number of ten-year grants in
international legal studies.46 In total, New York University received
$450,000, Michigan $500,000, Yale about $700,000, Columbia $1.5 million,
and Harvard $2.5 million.47 Awarded in January 1955, the HLS grant
included $500,000 to build a new wing of the library to house the
international legal studies collection and programconditional upon
raising a matching amount within two yearswhich the school
accomplished belatedly in three years. 48 Another component was $750,000
for research fellowships, and the final component was $800,000 to endow
two professorships. Katz was appointed to one of these professorships
when he returned to HLS during the academic year 19541955.49
45 ERWIN N. GRISWOLD, THE FUTURE OF LEGAL EDUCATION, HARV. L. SCH. BULL., 4.1, at 6
(Feb. 1953); see A Project for a Program in International Legal Studies (Aug. 28, 1953), Louis B.
Sohn Papers, Special Collections, Harvard Law School Library, Box 146, Folder 7, Harvard
Law School.
46
49 Interview with Harold J. Berman, supra note 37; Memorandum from Erwin N. Griswold
to the Faculty Building Fund for International Legal Studies, Confidential (Dec. 4, 1957),
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Interview with Detlev Vagts, Harvard Law School History Project (1999) (on file with
author); von Mehren, supra note 36.
56 ERWIN N. GRISWOLD, SOME THOUGHTS ABOUT LEGAL EDUCATION TODAY, HARV. L. SCH.
BULL., 11.3, at 3 (Dec. 1959).
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relations among states and the law of world organization. Louis Sohn,
among others, taught in this area. A second domain was comparative
lawthe study of legal systems of other nations. Thus, von Mehren taught
the European civil law system, or French and German law, while Berman
taught Soviet law. This second domain was therefore divided among
independent subfields. A third domain was international economic law,
including such subjects as international trade and international tax, which
Detlev Vagts studied.63 Although some students, faculty, and visiting
scholars praised this range of academic areas, 64 the diversity exacted a cost
in scholarly collaboration and interaction because several HLS
International Legal Studies faculty had more expertise in common with
those outside the program than their colleagues inside.
In the view of some faculty, the lack of cohesiveness in International
Legal Studies at HLS stemmed from the Directors lack of vision and
organizational management. Though encouraging and helpful to those
who took initiative, Katz did not present a consistent or comprehensive
mission, and the program could not build systematically through hiring
faculty and allocating resources. In June 1956 Griswold expressed his
dissatisfaction with the programs lack of direction and management to
Katz, who agreed to rectify it. But when Katz retired from HLS in 1978, the
International Legal Studies program remained a disparate group of
distinguished scholars pursuing unrelated lines of study and teaching.
Berman observed, Each of us was going his own way.65
CONCLUSION
As Hupper insightfully explains, by the late 1970s, the graduate
programs in International Legal Studies at HLS, like those in other law
schools, were moving to the margins of the educational enterprise.66
Nevertheless, when Griswold stepped down in 1967, he appropriately took
measured satisfaction in the accomplishments under his administration.
63
Interview with Harold J. Berman, supra note 37; Interview with Arthur von Mehren,
supra note 36.
64 See EZEKIEL SOLOMON, POSTGRADUATE STUDY AT HARVARD LAW SCHOOL: AN
AUSTRALIAN TELLS AUSTRALIANS ABOUT LEGAL STUDIES AT HARVARD LAW SCHOOL, HARV. L.
SCH. BULL. 14.3, at 56 (Dec. 1962).
65 Interview with Harold J. Berman, supra note 37; see Letter from Erwin N. Griswold to
Milton Katz (June 20, 1956), Records of the Office of the Dean (19101982), Box 57, Harvard
University Archives; Letter from Milton B. Katz to Erwin N. Griswold (Sept. 19, 1956),
Records of the Office of the Dean (19101982), Box 57, Harvard University Archives; Interview
with Arthur von Mehren, supra note 36.
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Erwin N. Griswold, Intellect and Spirit, 81 HARV. L. REV. 292, 29798 (1967).