Anyone over Thirty
The New York newspapers of December 22, 1927, announced on the front page the appointment of Robert M. Hutchins as dean of Yale Law School. The announcements did not report the date of his birth but only the date of his graduation from Yale College, 1921, leaving the alert reader to draw the untoward inference that he might be some twenty-seven years old. It was the last time, for a long time, that his precosity would not be overtly celebrated, stigmatized, or twitted.
A lifelong consequence attended his elevation to celebrity. While most of the associates in whose appointment (then and thereafter) he would have a hand would be men and women of his own age, the senior members of his faculty would many of them be his father's. His career as an administrator would associate him, day in and night out, with administrative superiors and then with directors, trustees, donors, and civil and political leaders—generally anywhere from thirty to forty, even fifty, years older than he. He would have to put up with the genteel condescension of associates who had the ultimate custody of the enterprises he directed and, as they came to care for him, the custody of his own frisky impulses. The habit of being young among the old would, in their presence, subdue him, and, in their presence and their absence, chafe him. He would have to wear the mask of solemnity. But he wasn't a solemn man.
Installed in February of 1928, he was immediately called upon from around the country for speeches about the Yale Law School, in particular what he intended to do about it. The first speech was at the Harvard Law Review dinner on April 2. For the most part his audience were his chronological peers, perhaps a year or two younger; the faculty were there on sufferance.
Here he was, making, he said, his first appearance at the school which
loyalty alone forbade his calling the country's greatest; he would content himself with calling it the most venerable. And here he was, he said, neither a lawyer nor a teacher of law but a traveling salesman, adducing in support of that characterization the fact that he had taken the Connecticut bar examination only a few weeks before and had only just got past it.
As for the Yale Law School, everything it had done or was doing or was trying to do turned out to be a pale imitation, or a still paler variant, of what was done better at Harvard. Great Harvard did marvelously well with large classes utilizing the case method of study; inept Yale did so badly that way that it was reduced to trying to teach small classes by the situation method—the discussion of an unassigned situation which covered many cases. The irony was graceful and unmistakable: the case method in large classes was no good. And so it went; Yale tried to copy Harvard, but didn't know how to, and it had to resort to tinkering with the curriculum "in the denseness of our ignorance."
But he hadn't been sure how the audience would receive him. He tried —it was the last time in his speaking career that he did—to be funny. His opening disclaimer—the traveling-salesman, bar-exam patter—was pleasantly acceptable. And then on to an obviously apocryphal account of a visit to the Connecticut Asylum for the Insane "to talk to the inmates about the Yale Law School. Several of them later applied for admission and were accepted." He continued in this vein with the report that one of the inmates, in the course of his talk, rose in the back of the room and screamed, "I can't stand it any longer," and the warden said to the speaker, "That's the first sane moment she's had in twenty years."
Twenty years later John Gunther pondered Hutchins' "curious juvenile streak which makes him like to affront dull people and say things he doesn't really mean." But the Harvard Law Review audience wasn't dull and wasn't affronted. Any Harvard-Yale affair was expected to be a monkeyshine.
Once he had run through the patter, he said things he really meant, with transparent irony. But his opening remarks at the Harvard dinner were undeniably juvenile. And juvenility is no small shortcoming in a twenty-eight-year-old called upon to make noises like a law school dean. It wouldn't ever happen again.
On the occasion of his first national public performance, April 28, 1928, he was almost certainly the youngest man in the hall by twenty-five or thirty years. The toastmaster and president of the organization was old enough to be his grandfather. Besides being old, he was George Woodward Wickersham, who had been attorney general of the United States when Hutchins was ten—and a senior member of the New York law firm
of Strong and Cadwalader when Hutchins was born. He was the Mr. Republican of his day, destined to crown his career a few years later with the Wickersham Commission's finding (in its studied report to President Hoover) that Prohibition was unenforceable but should be enforced.
The audience was crowded with the elite of the American bar. This was the sixth annual dinner of the American Law Institute (ALI), established to "clarify the uncertainties and simplify the complexities" of American law, and, in addition, "to promote those changes which will tend better to adapt the laws to the needs of life." The dinner address was the high point of the institute's meeting in Washington. The speaker was invariably a Supreme Court justice, an attorney general, a president of the American Bar Association, or the mellowed dean of one of the law schools. The address was invariably published, reprinted, excerpted, and cited in the professional journals and the schools.
Wickersham's presentation of the speaker is not recorded, but the speaker's response indicates its character. "I had some hope that your president would be the first toastmaster to introduce me without giving his audience a good laugh about my youth; never has hope been so rudely dashed. I had decided that if he said nothing about my age I should refer to him as the guardian of a beautiful flock. . . . Now I renounce him and all his generation." At this point the ALI Proceedings reports "[Laughter.]"
The dean's speech was met, so the Proceedings tells us, with "prolonged applause." Hutchins moved to, and through, his theme without a trace of irony, much less juvenility. The institute, he said, had made significant progress in its commitment to the clarification and simplification of the rules of law. He was graceful, gracious, and pointed. It now confronted its second commitment, "to promote those changes which will tend better to adapt the law to the needs of life." He reduced the issue to two questions: Do the rules work? and, How do we find out? To the second question the long, hard, even endless road was the massive accumulation and correlation of facts by responsible investigators of the effects of similar and differing procedures in representative jurisdictions (including those of other countries). As of now (by way of several examples he cited) the separate states have "wobbled back and forth between the abolition and the restoration of capital punishment according to the presence or absence of crime waves. Here there is exact information which might guide legislation, but information compiled by people without sufficient standing to influence the lawmaker." In the absence of the facts in every fundamental field of law, learned men of bench and bar were condemned to differ radically in their interpretation and application of the rules because they had to rely on chance impressions or speculation, on "introspective certain-
ties." "We pass judgment on the suggestions of courts, lawyers, and legislators largely through the exercise of those two dangerous synonyms: hunch and common sense."
Twenty years later—ten years later, five years later—the empiricist who called for the facts in 1928 would be under sustained attack by the whole body of empiricists as the man who despised facts and disparaged their collectors as "pebble-pickers" and "telephone-pole counters." In the vanguard of his critics would be the natural scientists and their sociological acolytes, deploring Hutchins' attachment to metaphysics—whatever that was—and the "prescientific" thinking of the Greeks and the medievals.
His insistence that he opposed, not fact-gathering but the faith that facts provided the basis of reasoning, would never overcome the hostility of the academic empiricists. They would be as hard-nosed as he, and their predispositions more popular than his. They would be as unacquainted with his legal papers and addresses as they were with the argument, a while before, between Hume and Kant. If they heard (which they wouldn't) that a speaker before the American Law Institute had said, "The history of science has been the history of the downfall of common-sense assumptions before the onslaught of scientific data," they would have agreed that the one man who could not possibly have made that statement was Robert M. Hutchins.
His colleagues in 1928 were better educated than his colleagues of twenty, ten, and five years later. For all the limitations of their training, they were men of the law, acquainted with the relationship, and the levels of relationship, between fact and principle. They comprehended his allusions to "the pitfalls that lie in the common-sense approach to law," without themselves falling into the pit of factuality unordered by the common sense of the race, common sense codified, however clumsily, in the statutes they used to make daily decisions involving specific observation and specific data. At professional issue was social action to be taken then and there, not mere accumulation and analysis.
The lawyers could accept Hutchins' answer to his second question, How do we find out if the rules work? But his answer to his first question was bound to come as uncomfortably to them as it would to any body of specialists: Do the rules work? When we have clarified and simplified the rules, then what? "Does the discovery of what a rule is always teach us whether it is accomplishing its object . . . how it is meeting the needs of life and the demands of society?" Can we improve the law by the study of law alone? "Our study may"—he graciously said "may"—"carry us into the social, economic, and political background of legal problems, raising questions about the family, about business practices, or about the organization
of governments." There was some thought being given to this matter at Yale. But he left the horrendous implication in the after-dinner-cigar-laden air: If the law was ever to be improved to serve "the needs of life," lawyers would have to be psychologists, economists, political scientists, and masters of that branch of philosophy vaguely known as ethics.
He dropped his bombshell—or time bomb—so gently that his audience had no defensive sense of being challenged, much less derided. His answer to his question, Do the rules work? was itself a diffident question: How can we find out unless we go beyond the law to the nature of man and society?—he was only wondering. Not a phrase, not a word that might jar his listeners; no suggestion that five years later he would be saying that professional men generally (including professors) were uneducated specialists. His low-key witness was sufficient unto the occasion.
His deanship established him. His salary was now ten thousand dollars—the counterpart of at least a hundred thousand a half-century afterward. It was within five thousand dollars of the highest income of any professor in America (always excepting the professors of medicine). What of his recollection long afterward that the driving force of his postgraduate life had been to make enough money to live and then, when he had done that, to continue to make enough money to live? Had he ever really been afraid that the Most Likely Yale Man to Succeed might find himself in the tenements? Or had "enough money to live" even then meant enough money to live the way so many Yale men were destined to? So much for the low ambition of an Oberlin boy—to make enough money to live.
But then there were those two negative ambitions that seemed to be honest. One was not to practice law—a fate that in every likelihood was now behind him. The other was not to be an educational administrator. That one caught up with him, for fair. But not—surely not—for the rest of a long life. In ten years, at the most, the Yale seat on the Second Circuit Court of Appeals would open up. He would be off the treadmill with a lifetime appointment. And beyond that, depending on the vagaries that might put an Al Smith or a Herbert Hoover in the White House, there was the Supreme Court. He would be a judge, and judges in the courts of last resort made law, as every mother's son knew. People paid lip service to the doctrine that legislators made it, but a "strict constructionist" like Hoover no less than a lax constructionist like FDR, would always do his damnedest to pack the Court with men of his own predilections.
Yale could be said in the 1920s to be one of the three most highly regarded law schools in the country. (The other two were Harvard and Columbia.) Dean Hutchins had just been through it as a student, had just done business with it as a junior administrator, and had just taught in it.
He thought that it wasn't a good law school (and that none of them was). He knew it wasn't. And he knew the reason why, as did a rambunctious minority of its faculty, which included some of its weightiest members.
The reason the law schools were bad law schools was, of course, their commitment to vocational training. Their purpose was to prepare young men to pass the bar examination and then to get a job. The traditionalist majority of the Yale faculty—and others—believed that the way to teach law was to teach a student how to draw up a will (which he could learn much faster in a law office), and to teach him the current rules of procedure (which could have been learned faster under supervision in court—and which, in any event, would be outdated by the time he was ready to apply them). The men in Constitutional Law, Contracts, Evidence, Criminal Law, Labor Law, Equity, Torts, each of them insulated from all the others, each perpetuating his insulation by bringing on his disciples through the ranks, took the rules as their subject matter and demonstrated the mechanical application of rules to cases. But the business of a university was understanding.
The catch was that the law school was not in the university, but only attached to it. This was true of all the professional schools. There was no contact among them, and no contact between the university and any of them. Hutchins and his supporters in the faculty—Cook, Corbin, Llewellyn (now at Columbia but teaching at Yale in the summer), and, of course, Clark, none of them yearlings—were not interested in feeding a yearly tribute of youth to Wall Street. They were interested in the improvement of the law as the architectonic component of political society. The improvement of the law required an understanding of it. The purpose of a university, and therefore of a law school in a university, was not to transmit knowledge—least of all transient knowledge—but to increase it.
Hutchins saw the law as "a dazzling panorama of the world showing what is happening to society and, in particular, what is happening to two basic American values, freedom and justice. To understand the law is to understand the stage of civilization mankind has reached and to develop some faint notion about how it might advance to a higher stage." And years later: "The Founding Fathers meant us to learn. . . . The reliance on us to continue learning is evident in every line of the Constitution and in the brevity of the whole. The Constitution is to be interpreted as a charter of learning. . . . Learning is a rational process. Law is an ordinance of reason, directed to the common good. The process of deciding to make or not make a law, or the process of reaching a judicial conclusion, is to be criticized in terms of its conformity not to local or popular but to universal standards of reasonableness. If the Constitution is to teach us, and we are
to learn under its instruction, the dialogue that goes on about its meaning must be about what is reasonable and unreasonable, right and wrong, just and unjust. The question is not what interests are at stake, not what are the mores of the community, not who has the power or who is the dominant group, but what is reasonable, right, and just. . . . Lawyers should understand that there is, or ought to be, a normative jurisprudence which prescribes something more than correct procedure. The lamentable state of legal education is one of the principal obstacles to our learning through the political community."
And, what was more: "Conformity to the precise words of the laws and the Constitution is not enough. It is well to remember that Hitler was called Adolf Legalité. Everything he did, like everything that is being done in South Africa, was strictly according to law. Critics of President Eisenhower were correct in saying that his defense of the desegregation decision—Brown v. Board of Education in 1954—was ineffectual. He should have said not merely that the decision was the law of the land, but also that it was based on reason, right, and justice. . . . Law does not represent that minimum of morality necessary to hold the community together. It stands rather for such moral truth as the community has discovered that can and should be supported by the authority of the community. The conception of law as coercion, or the command of the sovereign, or the expression of power, or what the courts will do, leads to the conclusion that every effort should be made to avoid law and that it is proper to do anything that no sovereign, power, or court can compel you to abstain from doing."
"Reason, right, and justice," "normative jurisprudence," "moral truth"—what had these to do with a law school? What had they to do with winning lawsuits? Fifty years later the after-Watergate analysts were trying to understand the gap between law and the lawyers. "The main evil involved," said the dean of the Ohio State University Law School, "is one which is prevalent throughout our legal system. Clients expect lawyers to do anything" to win their cases, and often lawyers "don't say no" to clients' demands for improper behavior.
Hutchins threw his weight behind the realists on his faculty, the men who taught that the business of the law school was to understand the law. Given the changing conditions of life and society and the diversity of statutes and judicial opinions, it was folly to arrive at decisions on the ground that (a) this is the way this kind of case has always been decided in this jurisdiction or (b) the weight of conflicting decisions seems to be on this side rather than that. Where Harvard's concentration on the case method of study had established it as the foremost legal plant in the land, a
few members of the Columbia faculty, notably Underhill Moore, Karl Llewellyn, and a young instructor named William O. Douglas, had become interested in what was then called the functional approach and was later known as sociological jurisprudence. This cut across the classic disciplines and went after the facts to try to determine whether and how the rules were actually working. The functional approach got no encouragement from Columbia's president, Nicholas Murray Butler—quite the opposite. But Hutchins had already established a bridgehead between New Haven and Morningside Heights, where Adler and Michael in the Columbia psychology department were kicking up the interdisciplinary dust; and within a couple of months after his elevation to the deanship the two schools had two joint legal research projects going, one on the psychology of evidence and one on the family and the law. But the proposition that law had something to do with life and society, was both easier said and done than understood.
With thirty thousand new opinions handed down every year by the courts of last resort, and legislatures enacting eight thousand new statutes annually, the obsolescence of legal data was as torrentious as the data were oceanic. Leaders in the law schools spoke of extending the curriculum from three years to four. But that would be no solution, if the last fact the student swallowed whole on the last day of his four years of gorging would be so much roughage by the time he entered practice.
What was wanted, when the law had been clarified and simplified, was "the accumulation and interpretation of facts concerning the working of the then restated law." "Hunch and common sense" had to be replaced by "the scientific approach to the law through the painstaking collection of facts as to its practical results." Though he thought that the scientific approach "may carry us into the social, economic, and political background of legal problems," he did not suggest that that background was other than factual; he seemed to be suggesting (and nowhere suggested anything different) that he would pile the fact-crammed social sciences on top of the legal facts for accumulation and interpretation. Interpretation by what yardstick? Presumably workability; we want to find out whether and how the rules work. But what is workability? Expedition? Efficiency? Uniformity? Public acceptance? There was no suggestion that the question had occurred to him then.
How was the scientifically accumulated mass of materials to be judged, some to be discharged as irrelevant or trivial and the rest to be ordered in terms of their significance and utility (once we had decided what was significant and useful, and why)? Could legal research or legal training be undertaken—could the law, any law, be justified—without agreement as
to the needs of life and the order of their urgency? How could the legal profession even begin to fulfill the obligation laid upon it by the American Law Institute, "to improve the law," without having first decided what improvement was?
The Hutchins of the Law Institute dinner in 1928, and the Hutchins who told the Connecticut Bar Association eight days earlier that "Our effort [at Yale], like that at Columbia, is focused on the facts," consistently talked law-school law (and the scientific approach to it) to the lawyers; his emphasis on reason, right, and justice, normative procedure, and moral truth seems only to have developed in the course of his year-and-a-half tenure as dean at Yale, from February 1928 to June 1929. He had been brought up on right and justice. His legal studies awakened his respect for reasoning. But he found that the data on which the statutes were based were confused and contradictory. Then he came to see that this confusion arose in part from the inadequacy of the data and in part from the isolation of the law from other humanistic and social disciplines. These were not remarkable discoveries. They were observations which other highly perceptive men had, like him, made on their own. They brought him together with men of the law—Charles Clark had been the first with whom he would undertake reforms of law and its teaching.
It wasn't until the end of his legal career that Hutchins seems fully to have comprehended the limitations of the functional, or scientific, approach to the law and the full significance of its scholarly isolation. Four years after he had left Yale, in "The Autobiography of an Ex-Law Student" (and ex-law dean), a speech delivered before the Association of American Law Schools, he said: "We must accumulate cases, facts, and data. But we must have a scheme into which to fit them. The law school that ignores the cases, the facts, or the social sciences will be a poor law school. The legal scholar who ignores these things will be a poor legal scholar. . . . [But] law is a body of principles and rules developed in the light of the rational sciences of ethics and politics. The aim of ethics and politics is the good life. The aim of the law is the same. Decisions of courts may be tested by their conformity to the rules of law. The rules may be tested by their conformity to the legal principles. . . . [But] the legal principles are derived from ethics and politics. The student and teacher should understand the principles of those sciences. Since they are concerned with ideas, they must read books that contain them. To assist in understanding them they should be trained in those intellectual techniques which have been developed to promote the comprehension and statement of principles. They will not ignore the cases, the facts, or the social sciences. At last they will understand them. They will be educated."
They weren't educated by the Yale Law School, either before or during his tenure: "Our curriculum was anti-intellectual from beginning to end. It involved not a single idea, not a single great book, not a single contact with the tremendous intellectual heritage of the law. We did not even expect intellectual exercise. We discussed the logic of cases; but none of us knew any logic. We could not engage in intellectual exercises because we were not competent in the intellectual techniques which it requires."
His experience at Yale carried him into principles of ethics and politics, whose aim is the good life. If the aim of law is the good life, so is the aim of education. The formation of a theory of how to learn and teach law turned out to be the formulation of how to learn and teach anything. The man of facts had become the man of ideas by discovering that ideas alone made the facts intelligible. By the time he got around to the formal presentation of the formula, his career and his formulation of the legal theory which turned out to be an educational theory were happily joined: in 1931, when he spoke on "The New Atlantis," the dean of a law school had become the president of a university.
Francis Bacon's New Atlantis in 1627 depicted a utopia in which men sought and got information—all the facts, all the discoveries and inventions their single-minded pursuit led to. Bacon maintained that his New Atlantis was a land of dreams to which we could never attain, a land too good to be true. "He was wrong. The New Atlantis did come true. We are living in it. We have more information, more means of getting more information, more means of distributing information, and more practical applications of the information we have than Francis Bacon in his wildest imaginings could have predicted." But "poverty, unemployment, crime, demoralization, and the race problems are with us still, and with us in new and discouraging shapes. Admitting that the more facts we have the better, we must confess that we do not know what to do with the facts we have. And yet this is Utopia."
The American educational system now reflected the aspirations of the New Atlantis. So startling and beneficent had the discoveries of the natural sciences been, that everybody wanted to be scientific. But "science"—this from the fact-gathering enthusiast of "the scientific approach" of a few years before—"is not the collection of facts or the accumulation of data. A discipline does not become scientific merely because its professors have acquired a great deal of information. Facts do not arrange themselves. Facts do not solve problems. . . . We must learn to think about the facts we have, and train up others to think more widely and more intelligently than we. We who have achieved the Baconian ideal and more must confess that something is missing from Utopia. It is ideas. It is not through facts but
through ideas that Utopia will be achieved. Insight, understanding, the appreciation of values, intelligence, ideas were not esteemed in the New Atlantis. We pay the penalty today. Leadership, direction, judgment critical and constructive, the ability to plan, to formulate policies, obtained no place in the New Atlantis. We seek and rarely find them now. . . . Upon the proper balance of fact and idea depends our eventual escape from the New Atlantis."
He was talking about balance, and would go on talking about it the rest of his life. But the New Atlantis address confirmed the suspicion of most of the natural scientists and social scientists with whom he would be wrangling, sometimes furiously, during the twenty-one years of his university presidency and beyond. Some of his allies blamed his rhetoric; it was brilliant, but it was cryptic—a kind of shorthand: "The most practical education is the theoretical education" could too easily be taken to mean that he despised data and data-gathering and data-measuring. What did he mean by "ideas," "values," "insight"? What did he mean by "principles"? He might have made his lot easier by talking about hypothesis instead of theory, but that would have been a surrender to his opponents—a surrender, and a dodge. "Hypothesis" had been preempted by empirical science, but by principles Hutchins meant hypotheses that were not scientifically verifiable. Men might, and should, argue that the aim of ethics and politics was or wasn't the good life; but they could not prove their case by public-opinion polls or by counting the number of hospitals, churches, and saloons, or by citing Supreme Court opinions. In neither experiential nor experimental terms could the case be proved at all. The men who enunciated the self-evident truths of the Declaration of Independence—Lord North called them self-evident nonsense—did not argue for them on the basis of either historical or contemporary social conditions.
So the ardent advocate of the scientific approach to the law was, almost overnight, to be seen as the implacable enemy of science. He might say, again and again, that he was talking about emphasis and nothing but emphasis. No use; his deemphasis of the facts defined his position, and Mortimer Adler's outspoken contempt for the fact-centered social sciences didn't help. Hutchins brought Adler to Chicago. Adler was his closest ideological associate. And Adler was not restrained either by administrative responsibility or by having been brought up to be polite. Actually, the limitations of the scientific method, insofar as the scientific method relied on raw data, were incidental to the "Hutchins-Adler" doctrine (if it could be said to be a doctrine). But the rhetoric of the doctrinaires, on both sides, would focus intellectual, and particularly academic, passion on the incidental argument, and in the popular apprehension of the great squabble
at Chicago it boiled down to facts versus ideas. In Hutchins' office at Chicago, and ever thereafter, would hang a New Yorker cartoon of James Thurber's, in which two barflies contemptuously contemplate a dejected third, sitting alone, and one of the two says to the other, "He doesn't know anything but facts."
All that was ahead, if only a year or two ahead; but it was incubating during that year-and-a-half of the deanship at Yale. The alternative to drowning in data was to try to understand law, not the laws, and to teach its understanding so that the practicing lawyer would be equipped intellectually to make sense of the data that would confront him. The understanding of the law was jurisprudence—the senior-year elective that almost nobody took at Yale (or anywhere else). Dean Hutchins and some of his realist colleagues, even while they pushed the "scientific approach," had crusaded for jurisprudence, for "the formulation of legal theory" on which the myriad materials of practice could be sorted. By the time he left Yale he was convinced that every law school should establish a department of jurisprudence. "Gradually its efforts would be reflected in the curriculum and studies of the law school. Gradually it would be discovered that its students were more successful at the bar and even in predicting what the courts would do than the progeny of the law school" —twenty years later he challenged one of his disciples, Dean Edward H. Levi of the University of Chicago Law School, to establish such a department and compare its graduates' performance at the bar with those of the orthodox curriculum—"and gradually, very gradually, the law might become once more a learned profession."
"Jurisprudence," said Professor Lon Fuller, "is concerned with the nature of law, its purposes, the means (institutional and conceptual) necessary to effectuate those purposes, the limits of the law's efficacy, the relation of law to justice and morality, and the modes by which law changes and grows historically." Obviously the law, on the jurisprudential reading of it, could not be understood, much less improved, in isolation. Fuller's definition required the law's integration into every other humanistic and social discipline; it required an intellectual community . To understand the law was to understand the nature of reason, right, and justice; to understand the nature of reason, right, and justice was to understand the nature of man and society. Law was ultimately inseparable from the humanities, which went to the nature of man; from the social sciences, which went to the nature of society; and even from the natural sciences and medicine.
This was the meaning of the word uni versity, which had lost its meaning in the departmental university. This was the e pluribus unum of learning and teaching which Hutchins would spend the rest of his life proclaim-
ing and promoting, only to see the intellect increasingly fragmented in every field and the world of teaching and research shattered into smaller and smaller units. At Yale Dean Hutchins pushed legal research as far as he could into the social sciences, even into the natural sciences; his transcendent triumph was a grant of seven million dollars from the Rockefeller Foundation for the establishment, with his friend Milton Winternitz, the dean of the medical school, of an Institute of Human Relations for the interdisciplinary investigation of the criminal law. The institute opened with a bang, but it needed time to assemble a faculty and become the intellectual community that Hutchins would, again and again, try to assemble. He sought men and women (almost exclusively men, in those days) who had come to see, as he had, that the compartmentalization of thought and action was the clue to the most mature of all mature realizations: that everything is somehow connected with everything else and that general intelligence, the intelligence which the specialist scorned as dilettantism, was the only hope. After Hutchins' departure and the retirement of Winternitz, the institute was absorbed into the medical school and the law school left it. Still, in those eighteen months Hutchins and his associates at Yale and Columbia made some apparent—if only apparent—progress.
The reason they did not make more, and did not make stick the progress they made, was what a famous football coach would have called the viscous circle. On taking the deanship at Yale Hutchins sat down to try to figure out what he wanted to do with the curriculum. He had not sat very long before he realized that he could not do very much. The curriculum was in the hands of the faculty (where, one supposed, it belonged); the power of the dean, like (he would discover) the power of the president, was the power of persuasion and nothing else. The curriculum could not be changed until the men who had power were changed. But the more power they had, and the longer they had had the power, the less likely it was that they would change; trying to persuade them meant succeeding in annoying them, and that got nowhere. To do anything about the faculty meant doing something about the curriculum; but to do anything about the curriculum meant doing something about the faculty. This meant hiring; and hiring, unless new money could be found, meant firing. But under the tenure system, firing could not be done directly. It could be done indirectly, by persuasion and low connivance. The long life of lofty persuasion and low connivance had begun. In his Go East, Young Man , William O. Douglas writes: "Law faculties were encrusted with heavy-footed traditionalists. Hutchins worked hard to get rid of two such men"—Douglas names them—"who had come to Yale from Harvard by subtly indicating
to Harvard that they wanted to return, implying that he would view such an event with sorrow. Sure enough, Harvard rose to the bait and made them offers which they accepted."
On the whole the projects that got off the ground during the months of the Hutchins regime at Yale were sporadic and ad hoc. There wasn't time to get the grand design—the intellectual community—off the ground. Not that the new dean was languid; not at all. He plunged, as he always would, with the deceptive languor of a man who had all the time in the world. His manner was gelatinously academic, his activity frenzied. There was no earthly reason for a dean to be teaching, especially a dean who was tearing sedately around the country making speeches, raising money, and raiding other schools' faculties in an effort to move his own. Except the Lake Placid reason that the only way to learn is to teach. So he went on teaching Evidence, this time with a psychiatrist as his coinstructor. He discovered that to teach the blow-on-the-head exception to the hearsay rule required not only a lawyer and a psychologist, but a neurologist; and so his friendship with Winternitz developed. In addition, he discovered that Evidence could use a theologian in teaching the prospective lawyer how to object to all the evidence the adversary introduced.
Ninety days after he took office in January 1928, Hutchins was making another of those after-dinner speeches, this one at a club in Pelham, New York. After the speech a cozy group assembled in the locker room (where the bootleg liquor was served), and when Hutchins was put aboard the New Haven train very late that night he had a quick conversation with a man from Yakima, Washington, by name William O. Douglas, then in his first teaching post in the Columbia law faculty. (He had declined an offer from Harvard.) At ten in the morning-after-the-night-before Douglas was awakened by a phone call. It was Hutchins, who had summoned his faculty to a 9 A.M. meeting and got them to offer Douglas an associate professorship at Yale. Douglas said (in all innocence), "Where is Yale?" Hutchins told him, and Douglas came in September.
The two men were made for each other—the polished Oberlinite and the unpolishable Yakimite. Douglas's teaching technique, by his own testimony, was "a rather hard-bitten approach, fashioned on the Socratic method. . . . I bore down hard. . . . I tended to treat the class as the lion tamer in the circus treats his wards. Soon the class was in protest, sending a committee to Dean Hutchins to have me fired." Hutchins called him in, and Douglas said that the students were "grandsons of very eminent and at times disreputable characters, and that as a result of the wealth of their ancestors they had been spoiled all their lives. I said I thought it was time they learned that when they stood before a court or a jury they would be
judged by their perception and fidelity to the law, not by their ancestors." "Wonderful," said the dean. "It's fine with me if you fire me. I'm inclined to bear down even harder with the brats." "Wonderful," said the dean, "revolutionary and wonderful."
They were the same age and they felt the same way about the law and what they were up against. Hutchins was an early retirer and an even earlier riser, but a fiery man like Douglas (or Felix Frankfurter of Harvard) could keep him awake until late. They sat talking about the profession into which they both appeared to be locked. "Finance was predatory"—this was Douglas—"and many men who managed it had predatory proclivities. Their lawyers took on the coloration of their clients and designed ways and means of accomplishing certain projects that should have been beyond the pale. . . . The great names in the law were, with few exceptions, attached to men who exploited the system. . . . Few had rendered public service, and those who did used that front merely to get more business." Teaching? "Why spend one's life teaching bright youngsters how to do things that should not be done?" A fellow might just as well go into practice "and use the new-found fitness for one's own benefit."
The trustees of Yale University, many of them lawyers, might have been interested in these midnight conversations—to the point of excruciation. They may even have imagined them and shuddered. But they didn't hear them. Neither did the trustees of the University of Chicago. What the trustees of both institutions—and of all the others—did hear was that this man Hutchins of Yale was pulling off some front-page coups in money-raising among the predatory financiers, including a handsomely endowed Sterling Research Chair for investigation. Hutchins had the magic touch in that magic year on Wall Street. By the end of 1928 the Yale law faculty, which had numbered fifteen a decade earlier, had increased to thirty-two, including a sociologist, an economist, and a psychologist.
Brilliant, and always controversial, men began moving over to Yale, among them Walton Hamilton, a Brookings Institution economist who had never studied law. Hamilton joined Charlie Clark in the latter's pioneering investigation of civil procedure (an investigation that ended in 1938 with the new Federal Rules of Civil Procedure, drafted by Clark's committee for Congress and the Supreme Court). The premature death of another newcomer, Walter Nellis, cut off his brilliant work in the hot-potato field of civil rights and labor injunctions. Wesley Sturgis came, and so did Thurman Arnold, whose Folklore of Capitalism would make a public splash when the Wall Street bubble burst in 1929. Within a matter of months the Yale Law School came alive, with men from other schools, at home and abroad, coming in and out; men like the great nontraditionalist
Harold Laski of the London School of Economics and the great traditionalist Felix Frankfurter from Harvard. They gave lectures, conducted seminars, and helped frame cooperative research projects with institutions like the Connecticut Judicial Council and the U.S. Department of Commerce (and, of course, with Columbia). There were anthropologists among them, even philosophers. Those years that Hutchins had spent in the central administration—"doing oratorical work for Yale University"—while he studied law were paying off now: the foundation people knew him; President Angell was tolerant of the high jinks, especially since Hutchins was able to raise the money; and so were some of the weightier trustees and alumni who had got to know him during his service as secretary. Not every last one of them: William Howard Taft was heard to say that the boy would wreck the law school, and when they were introduced he said, "Well, young man, I suppose you teach your students that the judges are fools," evoking the sassiness to which, as on so many such occasions, the sassy young man was entitled: "No, Mr. Chief Justice, we let them find that out for themselves."
Little by little, if only little by little, the Yale Law School curriculum was being remade. An honors program—small groups of students working on special problems and individual research—had been introduced in 1926-27 when the student body numbered 422. The doubling of the size of the faculty meant it was possible to extend the honors program, first to admit the best second-year students, and then the best first-year students. The dean made the headlines with the announcement that Yale would henceforth limit its first-year enrollment in law to one hundred, and the announcement at once attracted the best applicants in the country. (In the midst of the fanfare nobody thought to ask what the present first-year enrollment had been: it had been 106). Enrollment was further reduced—to 328 in 1928-29 (Harvard's was 500 and growing)—by the abolition of the so-called Combined Course, to which seniors in the College were admitted (as Hutchins himself had been). With no noise at all, almost surreptitiously, women were admitted to the law school; the dean, in his reports, still referred to the student body as "men."
It was a period of frank experimentation, Dean Hutchins told a professional audience who asked him what was going on there. "We hope we shall not recklessly abandon anything that is good or embrace new ventures simply because they are new. But we do not much care whether all our experiments are successful. We shall be satisfied if other law schools can profit by them if only to the extent of avoiding our mistakes. After all, the great thing about a university is that it can afford to experiment: and I use the word afford not in its financial connotation but to remind us that
a university is free to cultivate and exhibit independence of thought, the willingness to depart from tradition, the readiness to take a chance, if you will, that may come from the possession of a life that is nearly immortal."
The frank experimentation included new tests for admission, tests that went beyond the usual requirement of a high undergraduate grade average. What followed from this innovation—other schools were working on it, especially as regards college admission—was a much more fundamental innovation. If the undergraduate grade average was to be only one of the conditions for admission to graduate school, why should the graduate school grade average be the only condition for a law school degree? Grading was the most unreliable of measures. The sum of the number of courses taken and passed, perhaps just barely passed, did not make a man a lawyer; the "gentleman's C" was too often given because the candidate for it (or his grandfather) was a gentleman. If a higher standard was to be demanded of applicants for admission, a higher standard should be demanded of applicants for graduation. At the end of his first semester as dean, Hutchins informed the law school alumni that "the adding machine method of obtaining the graduate degree has departed. We plan to admit to candidacy only men who can accomplish creditable research work, and to award them only for its accomplishment. With the problem of how to tell a man who can accomplish creditable research work and with the definition of creditable we are still struggling." The adding-machine metaphor would become the operative symbol of this twenty-year crusade at Chicago to admit students at all levels whenever they were ready to enter college; at eighteen, or sixteen, or fourteen, or twelve; and to graduate them at forty, at twenty, or at fifteen—whenever they were able to demonstrate on general examinations, not that they had passed a required number of courses over a required number of years with a required accumulation of grade points, but that they had mastered the materials.
Forty years later Hutchins read an article in the current Yale Law Journal that reported legal education in ferment. It had been in ferment when he entered it fifty years before. "How can anything ferment for fifty years? There must be a process called pseudo-fermentation, in which gaseous bubbles rise constantly to the surface but the final, cheering, ambrosial draught is indefinitely postponed." The writer in the Yale Law Journal said that the heart of the trouble was vocationalism. "As long as we continue to see legal education as the acquisition of marketable skills, it will never cease to be anything more than a dreary task for a future payoff."
Hutchins was, according to Hutchins, a failure at Yale. He and his allies—the Douglases, the Clarks, the Corbins, the Hamiltons, the
Arnolds—wanted to shake the law school out of its how-to-do-it mold. They wanted to convert it into something like an intellectual community, with men from other disciplines. They failed because "the disciplines were even worse than the law." They failed because the bar, the bench, and the compartmentalized university were all organized to withstand all radical change.
But there had been vitality at the Yale Law School. The very few survivors from its faculty, forty years later, remembered it as exciting: "We were arguing about the aims and methods of education and trying to do something about them." Was there anything left of it forty years later? Hutchins thought that "its remains—and to some extent its spirit—are still to be seen." Douglas didn't think so: "The whole project gradually faded. The total effect of the Institute of Human Relations and of all our efforts was zero. . . . The same problems are being discussed today. . . . Yet almost nothing has been accomplished in all these years. . . . My years at Yale disillusioned me concerning the law as an instrument of power for the social good." That, in 1974, was the disconsolate view of the longest-tenured member of the United States Supreme Court in its history, who had now joined the very small coterie of the Great Dissenters.
Hutchins wanted to take Douglas to Chicago with him in 1929; with his characteristic audacity he had persuaded the Chicago trustees to offer his friend the law school deanship at twenty-five thousand dollars—two-and-a-half times the top salary of a professor—saying that (as the nominee recalled it) "I was 'the most outstanding law professor' in the nation," a statement that (again, according to the nominee) "insulted many law professors who defected as friends of Hutchins." Douglas accepted, but never took the job. He stayed on at Yale, as Sterling Professor of Law, until President Roosevelt appointed him chairman of the Securities and Exchange Commission in 1934. In his autobiography Douglas lists in chronological order the six men who, in his words, shaped his life: Robert M. Hutchins, FDR, Ben Cohen, Jerome Frank, Louis Brandeis, and Hugo L. Black.
The Yale Law School wasn't an intellectual community when Hutchins entered it as a college senior in 1920, or when he left it ten years later as its dean; and Yale University was less of an intellectual community in 1930 (and still less in each succeeding decade) than it was in 1920. Would there ever be an intellectual community, with a common preparation among its members and a common body of principles, assumptions, "hypotheses," grown out of that sort of preparation (and perhaps out of other, deeper roots of the sort that made Oberlin a community without the intellectualism): with a common dedication, a common vocabulary and a common
conversation; with a common comprehension that everything was somehow related to everything else and that nothing that touched men at the center existed in isolation? Would the law ever be a profession? Professing what? Would lawyers at last be educated men? And how would such a community producing such men ever be erected? And where? In a university?
The eight members of the United States Supreme Court—Justice Brewer did not participate—who heard the case of Plessy v. Ferguson in 1896 were all of them lawyers and university men. Seven of them found that racial segregation in interstate commerce was constitutional (providing that the separate facilities on the railroad train were equal). One member of the Court dissented: "The Constitution," said John Marshall Harlan, "is color blind."
Courts and justices came and went—lawyers, university men—for another fifty-eight years. In 1954 the Supreme Court unanimously reversed Plessy in Brown v. Board of Education and held that the Constitution is color-blind. What had John Marshall Harlan known—known —that his seven colleagues and their successors didn't? The Constitution? They all knew the Constitution, and the Equal Protection Clause of the Fourteenth Amendment was thirty years old when Plessy was decided. The law? Did Harlan know more law than his fellow lawyers and fellow university men of the high court? He had attended an undistinguished law school. Social data? Did Harlan have more social data available than his colleagues or their successors for fifty-eight years? It was as easy in 1896 as it was in 1954 to gather data that demonstrated that separate meant unequal.
What did John Marshall Harlan know that no Supreme Court would know for another half-century? Where, and how, had he learned it?
Reason, right, and justice; normative jurisprudence; moral truth—could they be acquired in a school? In a law school? In a university? Could they be acquired in an intellectual community?
Two-and-a-half millennia before Justice Harlan was taught and practiced law, the first recorded discussion of education opened with the question, "Can you tell me, Socrates, whether virtue is acquired by teaching or by practice—or in some other way?" Perhaps it would take another two-and-a-half millennia of frank experimentation, either of the sort that went on at the Yale Law School in the late 1920s or of some other sort. Two-and-a-half millennia; and on January 15, 1929, Robert Maynard Hutchins would be thirty years old.