XIV

Becoming a professor in a law school is not the same thing as becoming a professor in an academic discipline.^[12] Competing directly with the profession, law schools pay higher salaries and give instant or virtual tenure to attract and retain young recruits. The law professors under

whom I studied at Harvard Law School were categorizers of the law, organizing decisions for the purposes of teaching and, sometimes in proposed uniform codes, for the benefit of the profession and the country. Of course the major law schools housed researchers (as Harvard did Sheldon and Eleanor Glueck to study juvenile crime) and a handful of scholars who taught legal history, jurisprudence, and sometimes Roman law or contemporary foreign law. At Buffalo, in contrast with such recondite work, I taught a third-year seminar on the ordinances of the city of Buffalo. And I did what law professors do, which is to "keep up" with developments in the law by reading the advance sheets, that is, skimming through recent decisions in the areas of my teaching or research. But this harvest was not nourishing to me unless I was on the trail of a specific topic, such as the studies of defamation in comparative perspective to which I will come in a moment. Nonlawyers often have read the opinions of some of the virtuosos of literature and the law, such as Oliver Wendell Holmes, Jr., Benjamin Cardozo, Learned Hand, or Louis Brandeis. But most judges are journeymen who crib from the briefs of counsel, do not employ an annual crop of Harvard, Columbia, Michigan, or Yale clerks, and provide the case materials by which the professors in the major national law schools, who are brighter and better educated, can develop their not always endearing classroom sharpness. In comparison with the excitement I found in reading Democracy in America or The Protestant Ethic and the Spirit of Capitalism, the regular gruel of the law appeared thin. I could teach it in a sufficiently evocative way to relatively unsophisticated students who had to face the bar examination and the practice of law.

I shared many interests with my Buffalo Law School colleagues. But I differed from them and from the other law professors I came to know in several significant respects. I have mentioned my belief that the Fifth Amendment was a harmful archaism. (I had a similar view of several others.) I was opposed to the use of the First Amendment in what I thought to be a vigilante way to oppose aid to parochial and other church-related schools. Although I cared about intellectual freedom (as my later writings attest), that did not make me an automatic supporter of the agenda of the American Civil Liberties Union. Mark Howe was offended by my skepticism and, as a stoic, disapproved of my psychoanalysis. My colleagues and many other law professors found their involvement in New Deal reforms and the corresponding legal questions rejuvenating, but neither for pedagogic nor research purposes did I see superiority in the new subjects. I published an article, "Government

Service and the American Constitution," that developed some of the work I had done with Friedrich.^[13] I wrote another article on a topic still germane—the question of legislative restriction on the freedom of Americans to travel abroad and fight in foreign armies, as some Americans were doing at that time in support of the Loyalists in Spain.^[14] I wrote essay reviews of books such as Otto Kirchheimer's Punishment and Social Structure and Edwin Mims's offbeat Majority of the People .

After the intense work of learning to teach three courses, I cast about for a research topic that might relate my interests in public opinion to the law. Defamation, though in all countries a tort or civil wrong and in some still considered a crime, was not a major interest of professors of torts. What I wanted to understand in comparative perspective was themes in the scattered American case law concerning defamation, that is, libel (written) and slander (oral). The cases and comments on them indicated that in the United States not only politicians but also ordinary folk were supposed to be able to take it and, if need be, dish it out. Successful libel suits were uncommon. By contrast, in England, Austria, Argentina, and elsewhere slander and libel were deemed extremely serious in both criminal and civil proceedings. What did all this imply concerning American public opinion and attitudes toward individual privacy, publicity, and the press? In an earlier day in our history did different attitudes prevail, when someone might issue a challenge to a duel—at least against a social equal, perhaps especially in the South—in response to regarding himself as having been defamed? Along with Friedrich I had done some work for the Council for Democracy, a group combating fascist tendencies in the United States and Hitler and Mussolini abroad. I wondered whether the Jews, as a defamed group, might bring suits for libel, and I observed the use of libel suits by fascists to intimidate their critics in the press—much as Ariel Sharon, the former Israeli defense minister, recently attempted to do vis-à-vis Time magazine, and General William Westmoreland, no fascist but supported by the radical right, vis-à-vis CBS.

I recruited one of the refugee lawyers I had met, Lucie Krassa, as a research assistant and embarked on a comparative study eventually published in 1942 as "Democracy and Defamation."^[15] In that work, and in a long essay, "Civil Liberties in a Period of Transition," I made use of cases as a social historian would, as clues to the temper of a country, region, or epoch. On the basis of such partially empirical grounding, I was prepared to speculate concerning the public policy that might permit freedom of opinion while exploring how the intimidation

of opinion through defamation, as well as suits for defamation, might be prevented. I did not then, and do not now, believe that I found a "solution" to these again vexing problems, but at least I did not approach them on the basis of flat American contemporaneity.^[16]

Among the law professors I knew, there was intense focus on the Supreme Court as it began to uphold, rather than interdict, New Deal legislation. The social-psychological and cross-cultural themes that interested me rarely had immediate focus in public policy through law. A handful of law professors, such as Willard Hurst, who taught legal history at the University of Wisconsin, and a cluster of the lively men at Columbia Law School could respond to my interest in the significance of defamation in an amiably tolerant way more characteristic of colleagueship among law professors than of that among comparably ambitious faculty members in arts and sciences. The people from whom I was learning, however, were primarily not in the law but in the social sciences. Robert and Helen Lynd's Middletown had attracted me during my student days, and I was delighted to meet them in New York and to begin to exchange ideas with them. I think it was through them that I met Paul Lazarsfeld and then Marie Jahoda. I also met Franz Neumann, a refugee political scientist and analyst of Nazism.

In 1940 I applied for a Guggenheim Fellowship to devote full time to this research; but I chose instead to accept a visiting fellowship for 1941–42 at Columbia Law School, which provided an office and potential universitywide colleagueship. New York also had the advantage of allowing more frequent analytic work and intellectual companionship with Erich Fromm.

Of the people Evelyn and I met in New York, Lionel and Diana Trilling were particularly important. Many of their interests overlapped with ours. They introduced us to their circles at Columbia and to editors and writers for Partisan Review . We met other writers, artists, and intellectuals through Dorothy Norman, founder and coeditor of Twice a Year, a journal devoted to the arts and civil liberties where an article of Evelyn's had been published. We met Selden Rodman, with whom I played tennis, mostly unsuccessfully; he edited the irreverent journal Common Sense, which supported the isolationists (as did my cousin Fred Rodell, one of the Legal Realists at Yale), fearing that America's involvement in the war might irretrievably destroy the country's liberties. Some of my colleagues at Columbia Law School (Karl Llewellyn, Herbert Wechsler, Paul Hays, and Walter Gellhorn) had broad intellectual and cultural interests in and beyond the law. I met Ruth Benedict

and joined the ever-expanding circles around Margaret Mead.^[17] Fromm and Helen Lynd were teaching at Sarah Lawrence, where a number of "New York intellectuals" taught part-time.

Friedrich had counseled me to pursue a Ph.D. in government. The financial constraints of a wife and three children aside, I never came to the point of seriously considering the idea. Moreover, as I got more deeply immersed in sociological questions and preferred to start with empirical data, the concerns with political theory of Friedrich and his disciples began to seem a bit abstract to me. In other words, I was in search of a mode of work more empirical—ethnographic, even—than government as it was then being taught could provide. If Robert and Helen Lynd had given me an opportunity to take part in a community study, I think I would have welcomed the chance. Innovative law deans at the University of Wisconsin, Ohio State University, and the University of Oregon offered me joint positions in law and political science. However, since my primary base would still have been in a law school while coping with a new intellectual challenge, I hesitated to commit myself and was inclined to return to Buffalo.

Soon, with American entry into the war, the Buffalo Law School prepared to close, and the question of returning there was rendered moot. I thought it likely that despite having three children, I would have to enter military service. (I also had some inclination to do so, and unsuccessfully sought commissions, knowing enough from others to fear the ordeals of basic training.)^[18] Then by chance a Harvard Law School friend and classmate, Whitman Knapp, offered me a position as deputy assistant district attorney of New York County, working in the Appeals Bureau under Stanley Fuld, legendary for his erudition and his scrupulousness. It seemed like an interesting temporary job at that unsettling time, and wishing to remain in New York, I took it.