7
A Blow on the Head

Hutchins became secretary of Yale on January 1, 1923, and on January 2 he received an invitation to speak to the Montclair, New Jersey, Alumni Association. He asked the secretary of the association what he wanted him to talk about. The secretary said he didn't care as long as what he said was vivid, sympathetic, and gutsy. Hutchins subsequently told his friends that he had spent the rest of his life trying to rise to the standards set by the Montclair alumni. During the two years in which (as he told his friends) he was doing oratorical work for Yale University, he delivered the customary talk about Yale as a glorious opportunity for young men of courage, brains, and ability, with its trained and devoted group of teachers, its great library, its monumental buildings, its twenty different sports. As a traveling salesman he had the advantage of appearing to be the product of the product he was pushing. He was—hadn't he dreamed of being one ten years before?—a missionary.

His one-night stands were never farther than a couple of hundred miles from home base; what would one day be the Boston-Washington corridor was where the alumni and the prep schools were clustered. Rising early and retiring late, always working and never doing anything else, neglecting his wife as he would later neglect his wife and children (and, of course, himself), he sandwiched his oratorical duties into his administrative job. The job was everything President Angell had said it was. It put him in a position to learn how a fairly large and expensive institution of higher learning was run and to see its operation as a whole. At twenty-four he was interning for a university presidency.

His interview with Angell had had an offhand quality which he himself would later display in hiring people. Something was said about a twenty-million-dollar endowment campaign, and the secretary of the university

had to organize and manage it. It involved an analysis of the university's finances and the priority of its needs. It involved preparing and disseminating propaganda at a variety of levels, right up to the presentations to the foundations and the individual cultivating of the rich. This devolved on the president and the board members, but the secretary was called in on it, not merely because he was an able protagonist but because he represented to potential benefactors the kind of man they envisioned at the helm in the next generation.

His internship proceeded, not only in New Haven but, significantly, in Manhattan. The endowment campaign put him into contact with big money for the first time in his life. He would never be out of contact with it again. He discovered how the rich were located, how they were approached, how they were dealt with. This was what a university president would have to know. The endowment campaign was the capstone of his internship. He learned early that mass alumni giving is essential, but the money that counts is the big money, which does not proceed from speeches about young men of courage, brains, and ability. The young Hutchins who had lately swept floors at sixty cents an hour was now talking about hundreds of thousands, and about millions, of dollars. None of the dollars belonged to him, or ever would; no matter. The twenty million came in.

The Expense-Account Way of Life was a decade ahead. He didn't "have" an expense account; he was reimbursed for out-of-pocket expenditures in the line of duty, and he would always be as meticulous as he had been with his own sixty cents. But the comfortable reality would grow from a novelty to an unconsidered habit. Before he was thirty, he would no longer marvel to find himself in the most expensive hotels and restaurants, to find himself in the most exclusive clubs and doctors' and lawyers' offices and barbershops and haberdasheries, picking up the tab with a cursory affectation (if that much) of interest in its constituent items. He would never himself become a rich man. He would never become a sybarite. He would never become a fool. He would devote his attention and his energies to money and the moneyed—and snatch an hour early in the morning or late at night to do the things he thought a man should do, namely, thinking, writing, teaching, and arguing important issues. The things he thought a man should do he would do, the rest of his life, on the side.

Yale, which had robbed him of some of his innocence, was robbing him of more. He was still opposed to the idea of staying in education—"there was nothing I was more opposed to."^[1] He didn't know why, except that educational institutions had so little to do with education and so much to do with the three deadly sins of triviality, amusement, and business. Rus-

tling up rich donors for Yale, and the money to provide their amenities, dejected him. If he didn't want to be an educator, he certainly didn't want to be an educational administrator. Evidence shows that no sooner was he ensconced in his new job as secretary than he made a bee-line back to the law school and asked Dean Thomas W. Swan if he could resume his studies there out of hours. Swan agreed, and Professor Charles Clark—the man his entrance examination had impressed two years before—took him on as his assistant. "Being secretary of Yale didn't turn me around. It was Charlie Clark and the law school that began to turn me around. The law turned out to be completely fascinating."^[2] Not because of the case method of teaching, which was employed in a superficial way; still less because of "the turgidities of some of the masters of the split infinitive" that served as teaching materials; least of all because of the trade-school purpose of the teaching. The law itself was fascinating, because it was an introduction to the liberal arts and the life of the mind.

He was graduated in June 1925, magna cum laude —nobody got a summa —which placed him at the head of his class and admitted him to the professional honor society, the Order of the Coif. Professor Clark was a perceptive man. He perceived in Hutchins both the mind and the missionary. He saw that "Oberlin" would never let the missionary engage in the practice of law (that is, the practice of money-making in the law). But he saw the gift for jurisprudence, the facility in penetrating the morass of fact, and the instinct for the issue of principle. He saw the educator beneath the disdain for a career in education.

Charlie Clark was perceptive. He was also the most influential member of the Yale Law School faculty.

Shortly before graduation a man who was to come to Yale that summer as a lecturer in public utilities law came down with appendicitis. The concatenation of this unhappy accident with the happy accident that the secretary of the university—"he's already on the payroll"—was just then graduating at the head of his law school class and did not want to practice law was an easy opening for Charlie Clark. The day after his graduation Hutchins was a lecturer in the Yale Law School.^[3]

It took some fast footwork. The university required an advanced degree of every member of its faculty. There was no giving a doctorate—it would have had to be honorary, of course—to a man who had got out of law school the day before. And the matter was urgent. Dean Swan went to President Angell. The president agreed to Hutchins' part-time appointment on the condition that Hutchins remain on the job as secretary of the university. A master's degree was, technically, an advanced degree. So Robert Maynard Hutchins was immediately awarded a Master of Arts, the

first of many honorary degrees conferred upon him in the course of his career. The two baccalaureates, AB and LB, were the only degrees he would ever "earn."

His qualifications for teaching public utilities law in the Yale Law School were exceptional. First, he did not want to be a teacher of anything (except insofar as teaching provided the teacher with the opportunity to learn). Second, he had never studied public utilities law (which he had to teach immediately). And third, he considered public utilities law a particularly unattractive subject. He was taken with the idea of law. He was not taken with its practice or the preparation of students for its practice.

Yale's was a how-to-do-it school; they all were. Its object was to teach the student "to make a noise like a lawyer . . . to memorize and manipulate the rules. This is what the School held itself out as doing. This is what the students expected. They were impatient with anything else, and they had the powerful support of the Bar."^[4] "Anything else" was jurisprudence, the philosophy of law. (The best law schools offered an elective course in jurisprudence, generally in the last year; Yale's never attracted more than 10 percent of the graduating class. Hutchins was among the few who had taken it.)

He had already discovered that law schools prepared their charges by teaching that law was what the courts would do. "There were some progressives who thought that what the courts would do was principally determined by what the judges had for breakfast—what might be called digestive jurisprudence. But the more authoritative view was that the courts would do what they had done."^[5] The study of precedent and prediction meant analyzing the opinions of the courts of last resort and confining your students to the cases and the statutes—the way Hutchins had confined his Lake Placid pupils to the reading that could get them past the College Boards. The case method had its uses. But the Yale catalogue informed the prospective student that all its courses were taught by that method. You might try to reconcile Justice White's opinion in the American Tobacco case with his opinion in the Standard Oil case. But if you couldn't—and you couldn't, without going to the principles behind the cases—you could go no further because there was no allusion to such principles in the record and no suggestion that such principles anywhere existed.

"We knew that it shouldn't be done that way, but there was nothing we could do about it. It had 'always' been done that way, and the bench and the bar consisted almost entirely of men who did it that way and expected it to go on being done that way. The last thing a justice was expected to ask was where justice lay; the possibility that it lay altogether outside the

body of decisions that served as precedent was generally thought to be irrelevant, incompetent, and immaterial, and probably unpatriotic."^[6] The greatest justices were those who were concerned with justice—but they were almost always in dissent, and their dissenting opinions did not constitute precedent until ten, or fifty, or a hundred years later the courts or the legislature adopted them.

It was almost forty years later that the ex-lecturer in the Yale Law School was the speaker at a dinner in honor of one of the great dissenting justices who had lived to see some of his lonely opinions accepted, Hugo L. Black. The ex-lecturer recalled his own days of teaching public utilities law.

"In Smyth v. Ames the Supreme Court had held—that was in 1898—that regulatory bodies could not constitutionally fix rates that did not give a fair return on the fair value of the property, and fair value came to mean cost of reproduction new less depreciation. My course was based on Smyth v. Ames . What a bonanza the rule of Smyth v. Ames turned out to be. Almost everybody, except the public, profited by it. When New York City began its rate case against the Edison Company, that corporation's expenditures for appraising, accounting, and legal fees were over $4,000,000. The New York Telephone's, in a similar case, were over $5,000,000. And in 1932 it appeared that the valuation of the American railroads, which had been going on for eighteen years, had cost $178,000,000.

"No sooner had Justice Black got on the Court than he attacked the rule of Smyth v. Ames . Perhaps little more could be expected of a man who as a Senator had announced that stare decisis —adherence to precedent—did not apply to the Constitution. We law school teachers took some comfort in the fact that his attack was a dissent. But such was the pertinacity and persuasiveness of the dissenter that by 1944 he had brought the majority around to his opinion, and Smyth v. Ames was overruled. Thus at one stroke Justice Black hit the utilities and the appraising, accounting, engineering, and legal professions a tremendous blow in the pocketbook—and repealed everything my students ever knew."^[7]

The ex-lecturer shuddered "to think of those aging law students of mine, now fifty or sixty years old, wandering around the streets of New York trying to figure out what had happened. Did I lie to them? No, I don't think I lied to them consciously. What I did was to tell them what the law was, and, as of the date on which I told them, I think I was substantially correct. But as of the date on which they had to put it into practice I was overwhelmingly wrong. The reception accorded to the Warren Court was a perfect example of what I mean. The American bar as a whole could

not understand the Warren Court because it couldn't understand the United States of America. There was no way in which my students could have come to understand the United States because we never mentioned it."^[8]

His students were now living lives of perpetual dismay. They had been required to memorize Smyth v. Ames so that they could use it in any court in the land and cite it in objection to any evidence the other side presented. They had not been taught to understand the rule. That would have required a grasp, however primitive, of economics and politics—and they were studying, not economics and politics, but precedent and prediction. Hugo L. Black had been their ruin and the shame of their teachers.

"And what Justice Black did to me and my students he did to my colleagues of those days and their students. He assailed the rule, unquestioned since 1842, on the interpretation of state law by the Federal courts, and got it overturned in 1938. He inveigled the Court into upsetting an almost equally ancient tradition by holding that insurance was commerce. He seemed to suggest, in Marsh v. Alabama , decided in 1945, that corporations under certain circumstances might be subject, like governments, to the prohibitions of the Bill of Rights. In the Lovett case he renovated an almost forgotten piece of furniture, the bill of attainder, and turned it into a weapon with which he repulsed a rapacious majority in Congress.

"Nor is this all. If we explore the Black country, the world of Justice Black's dissenting opinions, we see that if we lived there we should be living in a different atmosphere. The protections accorded the accused in criminal cases would be extended. Aliens would be treated almost as well as citizens. The protection of the Fifth Amendment would be broadened. It would be regarded as guaranteeing the right to be silent; the waiver of the privilege would be more narrowly interpreted; and no governmental penalty of any kind could be inflicted on a witness availing himself of it. The immemorial rule permitting the trial of criminal contempts without a jury would be abolished. So would blue-ribbon juries. The rights of labor unions to picket peacefully and to engage in political activity would be widened. No test oaths of any sort would be permitted. Censorship, obscenity legislation, and group libel would be unconstitutional. A corporation would not be a person within the meaning of the Fourteenth Amendment, contrary to the rule ever since Roscoe Conkling, by carefully editing history, convinced the Court many years ago. The Federal government would be held to have completely preempted the field of repressing subversion. The House Un-American Activities Committee would be regarded as an un-American activity. The whole of the Bill of Rights would operate against the States. The doctrine that the necessities of the com-

munity must be balanced against the rights of the citizen, so that the citizen usually loses, would go out the window. Neither subway conductors nor applicants for admission to the Bar would be declared unreliable because they refused to answer questions about membership in the Communist Party."^[9]

The lawyers in every field, like the Smyth v. Ames public-utility practitioners, would have to unmemorize everything they had memorized if they found themselves living in "the Black country." And so would their teachers—unless law schools should come to confess that the law is more than precedent and prediction, more, indeed, than law, and recognize it as the application of the principles of human life and of human society to the legal process—principles argued and understood, not memorized. And even then—unless the whole of education was changed from the bottom up—the law schools would find themselves having to go on teaching college graduates the things they could have begun learning at the age of six, or four; a student of law ought to be able to read and write before he begins his study of it.

But the law school was under the thumb of the bar, and its object all mundane was identical with that of Lake Placid: to get its uneducated students past the examinations. The students regarded themselves as receptacles into which the answers to the questions were to be poured and out of which, at the bar examination, they would be poured again. The depressed and dejected young lecturer walked into his first class meeting and asked if the students had any questions on the reading assignment for that day. None of them had. The lecturer said, "This is one of the most difficult aspects of this branch of the law. Questions will undoubtedly be asked about it on the bar examination. I congratulate you on not having any. Class dismissed." After that, some of the more ingenious of his students tried to think up questions to ask.

He was a great success that summer, and when a full-time lecturer resigned Charlie Clark saw no reason why Hutchins should not be put on full-time. Nor did his colleagues. Nor did the president or the board—as long as Hutchins continued his work as secretary of the university. It meant a wage raise—"he's on the payroll anyhow."

So he became a full-time lecturer three months after his graduation. One of his courses was Code Pleading, which nobody would care about in another twenty years (and which Justice Douglas would one day characterize as an example of "the sway that arid technicalities can acquire over the human mind"). His other course was Evidence. Hutchins was not interested in code pleading or evidence and, of course, had never studied them; his qualifications to teach them were identical with his qualifications

to teach public utilities law. But Dean Swan and Professor Clark wanted to hang on to him; they thought he might do something some day.

While evidence didn't interest him, it bothered him as soon as he began to teach it, and the botheration gave rise to his philosophy of education as an undertaking that, whatever else it was, had to be general in character. The botheration proceeded from the same kind of question he had asked himself when he taught Smyth v. Ames without bringing in politics and economics. The test of the validity of evidence obviously lay outside the law, in the realms of psychology and logic—which neither he nor his students had ever studied (nor, with exceptions, had the bar or the bench). He couldn't understand what made the law of evidence go, separated as it was from nonlegal disciplines. There was the rule, for example, that the evidence of flight from the scene of a crime is admissible as tending to show guilt. After painful research the only foundation he could find for this rule was the statement he remembered having heard at his father's preprandial reading on Elm Street: "The wicked flee when no man pursueth, but the righteous are as bold as a lion." There was another rule that, in cases of homicide, the dying victim's statement, "Hutchins shot me," was admissible because the victim was about to meet his Maker and would not say a thing like that about Hutchins if it weren't true. And there was a related rule called Spontaneous Exclamation, under which an exception is made to the Hearsay Rule and utterances are admissible without direct or cross-examination if they were made immediately after any sudden shock, such as a blow on the head. This rule appeared to rest on the principle that a blow on the head prevents, momentarily but effectively, even the habitual liar from indulging in the exercise of his low habit.

These rules, and, indeed, the whole of the law of evidence, were ancient, honorable, and, supposedly, self-evident and incontrovertible. They were inferred from a long line of decisions made by a long line of judges about the way human beings behave. Since the rules were unchallenged, it was a fair assumption that the courts would always decide the way they always had. But the heretical question injected itself: Do people actually behave the way the rules say they do? If they didn't, the rules ought to be changed. (If they did, the rules ought to rest on a less sandy foundation than the decisions of men who, for the most part, were neither learned nor inquisitive.) Do the wicked really flee when no man pursueth? Are the righteous really as bold as a lion? Can you really startle a liar out of his disregard for the truth? Is the reliability of a dying victim's statement assured by his being about to meet his Maker?

The academic year 1926-27 was passing in the same wearying and wearisome way, the heretical questions unejected, when Robert Maynard

Hutchins suffered a blow on the head. He who had been given the rank of part-time lecturer the day after graduation, and the rank of full-time lecturer three months later, was appointed professor of law at Yale University beginning in September 1927. He was twenty-eight.

The lecturer is not a member of the faculty proper; he is not on the promotion track, or the tenure track, or the salary track. The lowest formal faculty rank is instructor. Somewhere between his third and sixth year of annual reappointment as instructor—he may, in the meanwhile, have been promoted to the rank of assistant professor—he comes up for tenure. If he gets tenure he becomes an assistant professor or associate professor at the same time. (As an associate professor he is regarded as a member of the senior faculty, but with no special prerogatives.) From five to ten years later he may be elevated to the top of the heap with a full professorship. Or he may not; some faculty members neither publish nor perish after they get their tenure and remain assistant or associate professors the rest of their lives. In the 1920s the measured rise through the ranks still took ten or fifteen (or even twenty) years; the exaltation in a professional school was especially slow.

At twenty-eight Professor Hutchins was old enough to have come to the settled conclusion that he was not going to get the answers to the heretical questions about the fleeing wicked, the righteous bold, the startled liar, and the dying victim. He was not going to get the answers or even ask the questions—not in the law school, nor, he realized, in Yale University as it was then organized and staffed. If the questions had been scientific questions he could properly have conducted laboratory experiments. But the questions were psychological and logical; even, for all anybody knew, moral; even theological. "I could not think about them, because I had no education. The psychologists and logicians I met could not think about them, because they had no education either. I could think about legal problems as legal. They could think about psychological or logical problems as psychological or logical. I didn't know how to think about psychological or logical problems as psychological or logical; they didn't know how to think about psychological or logical problems as legal."^[10]

Hutchins went on being bothered by the law of evidence. The relevant literature, produced by the psychologists, the logicians, and the legalists, was prolific without being rich—or even, on close examination, relevant. But there was a young psychologician at Columbia who was actually examining the seven-volume bible of Professor Hutchins' specialty, Wigmore on Evidence .

Mortimer Adler and another young upstart at Columbia, Jerome Michael, were writing on the psychology of law, in the learned journals.

Hutchins corresponded with Adler and then sat himself down to write something serious about the law of evidence and the heretical questions it raised. Before he could write he had to find out something about psychology. But his efforts to communicate with his colleagues in the psychology department were fruitless until he happened upon a young instructor, by name Donald Slesinger. (He would later bring Slesinger to Chicago with him as his dean of social sciences.) The two of them undertook the preparation of heretical articles in the learned journals. The articles, like Adler's and Michael's, had no effect whatever on the course of legal study at Yale or Columbia or anywhere else.

Since he could not be both a professor and an administrative officer, Hutchins resigned as secretary of the university. Now he would have time to think about the law. But not for long.

In the spring of 1927 Calvin Coolidge appointed Dean Swan to "the Yale seat" on the United States Court of Appeals for the Second Circuit. The law school faculty, which had the prerogative of nominating its dean, was unable to agree on a successor. The faculty was hopelessly divided between the traditional case-and-rules method of teaching and the "realistic" movement that asked the kinds of questions that Hutchins did. The realists were the leading members of the faculty—Walter Wheeler Cook, Arthur L. Corbin, and, of course, Charles E. Clark—but they did not have the numerical or chronological muscle they needed to overturn the traditionalist faction. The stalemate indicated the one-year appointment of an acting dean. Nobody wanted the acting appointment, and nobody objected when Clark suggested Hutchins (even though Hutchins was thought of as a Clark man).

The one-year appointment was an interruption to the life of the mind—which had only just begun its struggle to come to birth. But it was only a temporary interruption. The acting dean was the youngest member of the faculty and therefore the likeliest to take on the administrative chores without the exercise of power. He had had some administrative experience as secretary of the university and was understood to have performed successfully in the dismal art of management. He could do no harm, and no good, and he could hold the place together until the struggle over the deanship was resolved. In his circumscribed role as gap filler, or walk-on, the suspicion of the traditionalists that he had nontraditional tendencies was of no consequence. He'd be out of the acting deanship in a year.

He was out in six months.

In the late fall of 1927 Charlie Clark struck again. An extraordinarily persuasive man, he had the respect even of those who disagreed with his "realist" principles. He addressed himself to the Greater Good of the law

school and its neglect by the university and the corporation, both of them preoccupied with the development of Sheff—the Sheffield Scientific School—and the undergraduate college. Their persistent indifference was a mortal danger to the standing of the school. Harvard in particular was running away with legal teaching. What was wanted was a man who could reverse the process, who had worked with the university and the corporation and was friendly with them, who had influence in those two quarters where, when it came to getting the money to rescue the school, influence counted, a man who, moreover, would grow over the years and put the school back where it belonged: in a word, Hutchins.

By now the factions of the faculty recognized that the prospect was remote of their agreeing to fill the post with a man of eminence; every man of eminence who was otherwise acceptable was an established factionalist unacceptable to the other faction. Hutchins was scandalously young and had risen scandalously fast. He was not even a member of the Connecticut Bar and—imagine, the dean of the Yale Law School—would have to take the bar examination. His credentials were inconsequential—a couple of articles in the journals. And the burdens of the deanship were not likely to leave him the time to accumulate any more. On the other hand . . . on the other hand. . . . It would be a sensational appointment—and he did have the ear of the university and the corporation. And as dean, in the present stalemate, he would certainly be diffident about upsetting anybody's applecart. And the school could be sure he'd move on—if not in five years, surely in ten.

Move on where? And why "surely" in ten? The answer to the second question was obvious: At forty he would still be very young for the "Yale seat" on the U.S. Court of Appeals for the Second Circuit, the famous "CCA 2," but not impossibly so after ten years as dean. Dean—now Judge—Swan had succeeded Judge Henry Wade Rogers on CCA 2, and Rogers had been Swan's predecessor at Yale. (Hutchins' own successor as dean would be Charles Clark, and be later moved on to a brilliant career in the "Yale seat.")

Between his presidency of the United States and his appointment by President Harding to the Supreme Court, Chief Justice William Howard Taft had been professor of law at Yale. With men like Harding (and Coolidge, and Hoover) in the White House, the chief justice's influence with judicial appointments was (like the chief justice himself) immense. It wouldn't be easy for the diehard Taft (if he should still be around five or ten years hence) to propose the young scalawag who was already challenging the unchallengeable rules of evidence; still, the chief justice was the most loyal of Yalies and the most observant of any and all traditions.

Clark reported his maneuver to Hutchins. The young professor was ambitious to lead the life of the mind. He was equally ambitious to save himself from the stultifying routine of educational administration. But something had happened to him as he was being carried from crest to crest. He had become ambitious—period.

The ultimate ambition of the dean of a great law school was appointment to the federal appellate court. Its calibre was at least as high as the Supreme Court's because its appointments were usually freer of political considerations and public attention, and its decisions often ploughed significant new constitutional ground because its members were often more scholarly and independent. Judge Learned Hand of the Second Circuit was a great jurist; Chief Justice William Howard Taft of the Supreme Court was not. Still, a law school dean who went to CCA 2 in early middle life stood an actuarial chance of ascending to the highest court on one of those infrequent occasions when a man of independent eminence might be named without reference to his regional, denominational, or political or governmental background. A professor of law could be forgiven for dreaming of ending his days as one of the fabled few Great Dissenters like Oliver Wendell Holmes and Louis Brandeis, whose minority opinions would ring through the years and ultimately be accepted by their successors.

The deanship of the Yale Law School might be the long, long way around to the life of the mind, but the men who survived it might live the life of the mind and make that life an instrument for shaping the life of the law and the life of the country. On December 21, 1927, Yale University announced the appointment of Robert Maynard Hutchins as dean of the law school.

In another three weeks he would be twenty-nine years old.