hupper: educational ambivalence

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Educational Ambivalence: The Rise of a Foreign-Student Doctorate in Law

GAIL J. HUPPER

To its array of innovative legal programs, Yale Law School has added yet anothera Ph.D. in Law. Yales Ph.D. in Law is designed to prepare students who have earned a J.D. degree from an American law school to enter careers in legal scholarship. It will give students a broad foundation in the canon of legal scholarship and provide them the support and specialized training they need to produce their own scholarship. The Ph.D. will stand alongside Yale Law Schools other very successful law teaching degreesthe J.S.D. and LL.M.which are designed primarily for students who received their initial legal education outside the U.S.

Yale Law School Announcement July 11, 20121

INTRODUCTION

ale is promoting its new Ph.D. in law as an alternative to two common paths that prepare people for law teaching careers in the United States. The first is the two-year non-degree fellowship, which

gives participants the opportunity to develop the record of publication that is now essential for securing entry-level teaching jobs. Yale argues that the Ph.D. will offer more in-depth scholarly training2 than is possible in a non-degree fellowship program. The second is the practice, common in our

Visiting Scholar, Harvard Law School. (Remarks delivered at New England Law Review

Symposium, Educational Ambivalence: The Story of the Academic Doctorate in Law, on

November 5, 2014.) My warmest thanks to the New England Law Review for convening the

symposium, to my co-panelists for participating, and to the many others who have provided

invaluable help and support along the way. Please address correspondence to

[email protected]. 1 Yale Law School Introduces Innovative New ProgramPh.D. in Law, Yale Law Sch. (July

11, 2012), http://www.law.yale.edu/news/15782.htm [hereinafter Yale Law School

Announcement]. 2 Id.

Y

320 New England Law Review v. 49 | 319

era of interdisciplinary scholarship, of obtaining both a J.D. and a Ph.D. in another discipline. What the Ph.D. in law offers that a Ph.D. in another discipline does not: a focus on the questions and practices of the law itself.3 The implication is that a scholar with a Ph.D. in another discipline tends to look at law through the lens of the other discipline, missing insights that are specific to law.

The announcement has provoked a variety of reactions in the blogosphere. Chicagos Brian Leiter has questioned the premise behind the degree, arguing that in our post-Langdellian, post Legal Realist era there is insufficient wissenschaft or science in law to merit advanced study. All of the interesting insights, he argues, come from looking at law from outsidei.e., other disciplines.4 Others have questioned whether the Ph.D. will work: whether it will attract the top teaching prospects that Yale is targeting, whether there will be sufficient Ph.D.-specific course work to make the degree distinctive, whether people will be able to finish their dissertations in the prescribed three years, and whether schools will be interested in hiring the programs graduates. On the positive side, commentators have noted that a Ph.D. in law may improve the quality of academic legal scholarship, and that offering teaching practice (as the program plans to do) will help improve the quality of teaching. A final observation: if any law school can pull this off, it is probably Yale.5

This Article has a somewhat different, but related, take on the Yale announcement. Notice that the press release says: The Ph.D. will stand alongside Yale Law Schools other very successful law teaching degreesthe J.S.D. and the LL.M.which are designed primarily for students who received their initial legal education outside the U.S.6 On its face, the distinction makes sense. Although the J.S.D. is also a doctorate, it is understandable that the school would offer a degree with more immediate name recognition to U.S.-trained lawyers going into the U.S. teaching market. Moreover, the needs of foreign-trained lawyers are different. Their educational backgrounds are different, as is the nature of their work most plan to undertake upon completion of the degreeteaching back in their

3 Id. (quoting Dean Robert Post) (internal quotation marks omitted). 4 Brian Leiter, A Potted History of American Legal Education and Scholarship in the 20th-

Century, with Special Reference to Why There Is No Longer a Scholarly Wissenschaft in Law, BRIAN

LEITERS L. SCH. REP. (Oct. 15, 2012), http://leiterlawschool.typepad.com/leiter/2012/10/a-

potted-history-of-american-legal-education-and-scholarship-in-the-20th-century-with-special-

refere.html. 5 See, e.g., Paul L. Caron, Reactions to Yales Ph.D. in Law, TAXPROF BLOG (July 13,

2012), taxprof.typepad.com/taxprof_blog/2012/07/reactions.html. 6 Yale Law School Announcement, supra note 1.

2015 Educat i onal Ambiva lenc e 321

home countries.

Though plausible, this explanation ignores the history of the J.S.D. degree. In fact, Yales J.S.D. initially was designed as a teacher training degree for U.S. law graduates planning to teach on the U.S. market. The degree was the site of some of Yales early Legal Realist experiments, including interdisciplinary seminars with other university departments. It was also influential: from the establishment of the Jur.Dr. (the J.S.D.s predecessor) in 1910 through the time the United States entered World War II, Yale conferred some 130 doctoral degrees on U.S.-trained law graduates, over 60% of whom pursued law teaching careers. Their ranks include the likes of Karl Llewellyn, Myres McDougal, Wesley Sturges, Lewis Simes, Paul Bruton, and Jacob Beuscher.7 Indeed, as of the mid-1950s some 20% of Yales own faculty (all of them American) held the degree.

Why, then, is the Yale J.S.D.like J.S.D. and S.J.D. degrees at other U.S. law schoolsnow designed primarily for international students? This Article addresses that question by looking at seven of the eight schools that have conferred the most J.S.D. or S.J.D. degrees during the degrees hundred-year history: Columbia, George Washington, Harvard, Michigan, N.Y.U., Wisconsin and, of course, Yale.8 The Article relies primarily on archival materials in the respective law schools and universities collections, and to a lesser extent on secondary sources concerning the schools, individual faculty members, and the programs themselves. I also conducted background interviews with faculty members who were familiar with events of the time. Because many of the schools records from the post-World War II era were not available to me, my answer to this question must be understood as incomplete.9

Subject to those qualifications, then, the answer lies in a confluence of

7 The degree was originally called Jur.Dr., but was renamed J.S.D. in 1924. Gail J.

Hupper, The Rise of an Academic Doctorate in Law: Origins Through World War II, 49 AM. J. LEGAL

HIST. 1, 26 (2007) [hereinafter Hupper, Origins]. For information on doctoral degrees conferred

and the background and careers of those who earned them, see Gail J. Hupper, Database of

S.J.D./J.S.D. Graduates (Nov. 21, 2014) (unpublished database) (on file with author) (listing of

graduates derived from archival and other materials) [hereinafter Database]. McDougal was

technically not a U.S.-trained law graduate, in that he did his initial legal studies at

Oxford. See Hupper, Origins, supra note 7, at 39. 8 The eighth school is Stanford, which surpassed George Washington in total degrees

conferred around 2006. Stanford did not confer its first J.S.D. until the late 1950s. Hupper,

Origins, supra note 7, at 3 n.9. 9 With respect to archival materials, I had only limited access to the files of the appropriate

faculty committees and limited access to the respective schools faculty minutes. I also

conducted only a limited review of individual dissertations from the era. Where my sources

are particularly thin, I indicate that specifically.


circumstances during the thirty or so years following the end of World War II. Briefly stated, what had made the law doctorate attractive before the warthe unique learning opportunities it afforded, its relative ease of completion, and its prestigebegan to fade soon after the wars end. Moreover, after the war, the fanfare of the Legal Realist movement gave way to a return to legal educations roots: professional training in the Hessian tradition. When interdisciplinary work gained new traction in the 1960s, the schools innovations took place largely outside of the law doctorate. Thus, despite the best efforts of the schools offering the degree, fewer and fewer U.S. law graduates were interested in pursuing it, and by the late 1960s it had been largely devalued as a sign of academic achievement.

That could have spelled the end of the degree, but it did not. Particularly at the elite schools, the years immediately following World War II were characterized by an explosion of interest in international legal studies. Fueled by the United States growing status as a world power and the accompanying fears of catastrophe in the post-war era, U.S. law schools added courses, research and other internationally oriented programs at an astonishing pace. These initiatives included a range of programs for foreign-trained lawyers, who were by then flocking to U.S. universities. While most of the programs were designed at the masters or non-degree level, a few schoolsYale among themexperimented with foreign students in their doctoral programs. As the U.S. core of the degree began to collapse, foreign-trained students took their place. To some extent this happened by osmosis, but it was also fueled by efforts of individual faculty members and broader institutional initiatives.

This Article is the third in a three-part study that also examines the early history of the S.J.D./J.S.D. degree at the seven schools, then looks at the degree in its current form. The study seeks to understand not only the history of the degree, but also the degrees distinctive contribution to the diffusion of ideas about law, both in the United States and abroad. Specifically, the history of the doctorate is partly a story of how U.S. legal education borrowed practices from continental European legal education, then digested and modified them to suit the needs of a rapidly evolving legal system. It is also a story of how, after World War II, U.S. law schools redirected the flow of ideas elsewhere. By training teachers in particular, U.S. law schools helped shape the basic ways in which lawyers in other countries think about law.10

In this context, the doctorates story is a chapter in the continuing saga

10 Gail J. Hupper, The Academic Doctorate in Law: A Vehicle for Legal Transplants?, 58 J. LEGAL

EDUC. 413 (2008) [hereinafter Hupper, Legal Transplants]; Hupper, Origins, supra note 7.


of legal educations divided self. One set of recurring themes is the extent to which legal education is professional training as contrasted with an academic discipline. To the extent that it is an academic discipline, to what extent must one look outside of lawi.e., to other disciplinesto understand law itself? Another set of questions concerns the communities that U.S. legal education serves. Today approximately half of ABA-approved law schools offer graduate programs for foreign students,11 and the globalization of legal education is a widely accepted phenomenon. However, it has not always been that way. The doctorates history is one small piece of the larger story of how we reached where we are today.

I. Historical Background

Todays J.S.D. and S.J.D. degrees trace their origins to the late 1800s, an era in which law study was emerging as a discipline that took place in universities rather than law offices. Since the main event at university law schools was the professional degree (the LL.B.), many of those who taught at the new schools were part-time faculty who were practitioners first and teachers second. However, the move to universities brought with it three ideas imported from continental European legal education: the idea of law as a science, the full-time law professor, and advanced study for individuals who hoped to become legal scholars. The LL.B. curriculum, which was primarily private law-based, could not accommodate all of the work that the schools faculty thought important in this context. Graduate degrees emerged during this time as a substitute for extending the duration of LL.B. study, first from two to three years, then from three to four years. These early degrees included Yales Doctor of Civil Laws, or D.C.L., a two-year degree established in 1876 that required both course work and a thesis. During the next thirty years, a veritable alphabet soup of graduate and quasi-graduate degrees followedB.C.L., D.C.L., LL.M., J.D., etc.

Then, in a turning point for doctoral education, Harvard established its S.J.D. degree (as it came to be known) in 1910. In its early form, the S.J.D. was a one-year course work-based degree designed to give students training in public law and cultural subjects imported from the

11 In addition, some 54 ABA-approved law schools offer an S.J.D. or J.S.D. degree, and two

others offer either a D.C.L. or Ph.D. Post-J.D./Non-J.D. Programs By School, AM. BAR ASSN,

http://www.americanbar.org/groups/legal_education/resources/llm-degrees_post_j_d_non_

j_d/programs_by_school.html (last visited Apr. 7, 2015); Post-J.D. Programs By Category, AM.

BAR ASSN, http://www.americanbar.org/groups/legal_education/resources/llm-degrees_post

_j_d_non_j_d/programs_by_category.html (last visited Apr. 7, 2015). Most of these programs

are directed primarily at foreign-trained students. See Database, supra note 7.


continental curriculumjurisprudence, legal history, and comparative and international law. As a course-based degree, it looked nothing like what we think of as a doctorate. However, it became an important vehicle for spreading Harvard Dean Roscoe Pounds idea of a sociological jurisprudence, a pre-Realist understanding of law that rejected the idea of law as a closed system and looked towards how it functioned in society. Within a few years, Harvards S.J.D. sparked similarly-structured degrees at Yale, N.Y.U., and Michigan.

The transition to a research-based doctorate began at Columbia, which established a graduate J.D. in 1923.12 Harvard, Yale, and Michigan quickly followed, initially with watered-down versions that could be completed in a year or slightly more. The primary purpose of these degrees was teacher training. The four schools were among the most prestigious of the era, and their LL.B. programs had produced the lions share of the countrys full-time law teachers, Harvard most of all. Graduate teacher training was a highly efficient way to augment this base. The school would take people who either already were teaching or who were interested in teaching, give them a year of specialized training, and send them back out to teach. The graduate programs new structure supported two other important goals: developing the scholarly abilities of the teachers it was training, and producing research into the nature and functioning of the legal system. During this time the traditional cultural courses gave way to interdisciplinary experiments, particularly at Columbia and Yale.

By the late 1920s, however, a tension had emerged between the degrees teacher training function and the implication of advanced, high-quality work inherent in the term doctorate. Some of the schools offering the degree (particularly Columbia, Harvard, and Yale) treated it as a kind of missionary exercisea way to propagate their facultys approach to law and legal education at other schools, upgrade the quality of legal education elsewhere, and create influence for their own school. This approach necessarily involved enrolling graduates of far-flung schools with very different academic standards, and many of these students were not as talented as the doctoral schools own LL.B. students. There were many very talented students as well (some of them graduates of elite schools), but the presence of the weaker students in an advanced degree program produced a series of backlashes in the early 1930s.

As a result of these backlashes, the schools restructured their doctorates to look more like a Ph.D. in another university discipline. In

12 Columbias political science department had previously offered a research-based Ph.D.

in law, and the new J.D. was administered jointly by the law school and the political science

department. Hupper, Origins, supra note 7, at 25.


particular, the schools became more selective at the admissions stage and more demanding of the thesis. This reduced the number of people earning the degree, and those who did so required more time to complete the thesis. For those who did not complete the thesis, or otherwise did not meet the standards for the doctorate, the schools had by then created the LL.M. degree as an alternative. By this time, however, the sheer number of law teachers around the country who held the doctorate ensured its propagation in a second generation of schools. Among them were Wisconsin, which designed its degree to produce leaders of the state bar, and George Washington, which created the degree to promote research into public law.

The previous discussion focuses on U.S.-trained students, who were the doctorates primary constituency.13 Almost from the beginnings of U.S. graduate legal education, however, a few foreign students enrolled. After World War I, the trickle became a flow, and between 1920 and 1939 some 100 foreign-trained students earned doctorates from the seven schools. Many of these early students were from China and the Philippinesareas in which American lawyer-missionaries (to borrow Paul Carringtons term) were engaged in efforts to transplant American legal ideas.14 Others who earned the doctorate (mostly at Harvard) included a smattering of continental Europeans and Canadians. A few others were not really foreign: these were Americans who had done undergraduate arts and sciences degrees in the United States, then pursued law degrees in England (in some cases as Rhodes Scholars) before returning to study at Harvard or

13 See generally Hupper, Origins, supra note 7 (discussing the rise of an academic law

doctorate for U.S.-trained students, and the growing tension between the degrees teacher

training function and the high-quality work normally required of a doctorate). 14 PAUL D. CARRINGTON, SPREADING AMERICAS WORD: STORIES OF ITS LAWYER-

MISSIONARIES 5 (2005) (using the term lawyer missionaries); id. at 98, 10406, 11115, 11924

(discussing the work of lawyers with ties to Harvard, Michigan, Wisconsin, and Yale in East

Asia and the Philippines). The pre-World War I group included a few students from Japan, in

addition to China and the Philippines. See id. at 121 (concerning Chinese students studying at

Harvard); Jerome A. Cohen, Japanese Legal Studies, HARV. L. SCH. BULL., Summer 1977, at 21, 24

(concerning Japanese students at Harvard); Univ. of Mich., Dept of Law, Annual

Announcement, 19041905, and Catalogue of Students, 19031904, U. BULL., May 15, 1904, at 39;

Univ. of Mich., Dept of Law, Annual Announcement, 19071908, and Catalogue of Students,

19061907, U. BULL., Mar. 1907, at 38; Univ. of Mich., Dept of Law, Annual Announcement,

19091910, and Catalogue of Students, 19081909, U. BULL., Apr. 1909, at 37; Univ. of Mich. Law

Sch., Annual Announcement, 19151916, and Catalogue of Students 19141915, U. BULL., June

1915, at 47; YALE UNIV., DEPARTMENT OF LAW (YALE LAW SCHOOL) 190203, at 24 (1902); YALE

LAW SCH., LAW DEPARTMENT OF YALE UNIVERSITY 190304, at 37 (1903); YALE LAW SCH., LAW

DEPARTMENT OF YALE UNIVERSITY 190405, at 57 (1904). A few even earned Yales D.C.L. See

Database, supra note 7.


Yale.15

Given the linguistic and other hurdles many foreign students faced in U.S. law study, their presence was in tension with the schools scholarly aspirations for the doctorate.16 This tension was apparent in the tentative posture of most schools towards foreign students before the war (only Harvard and N.Y.U. enrolled significant numbers)17 and in the deliberations of a special AALS committee during the war. In 1943, a committee made up of Yales then Dean and the faculty responsible for graduate work at Columbia, Harvard, Michigan, and N.Y.U., maintained that the doctorate should both encourage a view of law as social engineering and raise the standard of legal education elsewhere in the country.18 In order to maintain high standards for graduate degrees, the committee took a distinctly skeptical posture towards foreigners pursuing graduate work of any kind. Such students were most likely to need training in basic American law subjects, which should not be considered graduate.19 By 1945, however, the same committee was faced with the coming end of the war and the reality of the United States emergence as a world power. This raised the competing objective of encouraging foreign students to study in the United States, for both educational and geopolitical reasons.20 This dynamic would shape the development of the doctorate for the next thirty years.

15 See Database, supra note 7; see also Minutes of the Faculty of Yale Law School (Feb. 11,

1932), Yale Law School Faculty, Governing Board and Board of Permanent Officers Meeting

Minutes (RU 450), Manuscripts and Archives, Yale University Library [hereinafter minutes of

Yale faculty meetings are cited as Yale [date] Minutes]. 16 For discussions of these difficulties, see Report of Committee on Graduate Instruction 6 (Apr.

1930), in COLUMBIA UNIV. SCH. OF LAW, FACULTY REPORTS AND STUDIES INCLUDING MATERIAL

ON THE CURRICULUM 192831, Special Collections, Arthur W. Diamond Law Library,

Columbia University [hereinafter 1930 Colum. Report]; COMM. OF THE FACULTY OF THE

HARVARD LAW SCH., REPORT ON ADVANCED DEGREES IN LAW 15 (1933) [hereinafter 1933 HARV.

REPORT]; Yale 1/17/35 Minutes, supra note 15. Beginning in 1937, Yale began to require that

civil law-trained students be in residence for two years in order to qualify for the doctorate.

Yale Univ., The School of Law for the Academic Year 193738, BULL. YALE U., 1937, at 1213. 17 See Database, supra note 7; 1933 HARV. REPORT, supra note 16, at 4049. 18 See Frederick J. de Sloovere et al., Committee on Graduate Work in Law, ASSN AM. L. SCH.

HANDBOOK 148, 150 (1943) [hereinafter 1943 AALS REPORT]. 19 Id. at 16364. 20 See Frederick J. de Sloovere et al., Special Report of the Committee on Graduate Work in Law

on Degree Requirements for Graduates of Foreign Law Schools, ASSN AM. L. SCH. HANDBOOK 133,

13638 (1945) [hereinafter 1945 AALS REPORT].


II. The Post-War Commitment to Graduate Legal Education

During World War II itself, graduate legal education essentially shut down at the seven schools. After the war, returning veterans, funded by the G.I. Bill, flooded the schools LL.B. programs. As a result, it was a few years before most of the schools could reinstitute their graduate programs in earnest.21 They were committed to doing so, however, for a range of reasons: institutional leadership, the needs graduate work served, and the freedom to experiment. Understanding the doctorate requires, first, understanding this larger picture.

The commitment to graduate work was not simply or even primarily a commitment to the doctorate. At most schools, non-degree students and students working towards masters-level degrees far outnumbered those working towards doctoral degrees.22 Moreover, the purposes of graduate

21 See YOUNG B. SMITH, COLUMBIA UNIV., REPORT OF THE DEAN OF THE SCHOOL OF LAW FOR

1945, at 21 (1946) [hereinafter COLUM. 1945 DEANS REPORT] (noting the difficulties that young

teachers faced in taking a year off for graduate work); Memorandum from E. Blythe Stason to

Members of the Law Faculty 1, 56, 24 (Oct. 31, 1947), included with Minutes of the Faculty of

the University of Michigan Law School (Oct. 31, 1947), University of Michigan Archives,

Bentley Historical Library, Law School (University of Michigan) collection, Subseries: Faculty

Minutes, 18591960, Box 61 [hereinafter Stason to Faculty 10/31/47; hereinafter minutes of

Michigan faculty meetings are cited as Mich. [date] Minutes] (contrasting Michigans post-war

students with their stronger pre-war counterparts); N.Y. Univ. Sch. of Law, Report of the Self-

Survey Committee of the School of Law to the Directing Committee of the University Self-

Study Office of Institutional Research and Educational Planning 126 (draft of Dec. 3, 1954),

New York University Archives, Elmer Holmes Bobst Library [hereinafter N.Y.U. 1954 Self-

Study] (contrasting younger members of the faculty, who do not have graduate degrees

because of the wars interruption of graduate study, with older members who do have

graduate degrees). 22 By masters-level degrees I refer to both the LL.M. and masters degrees created

specifically for foreign-trained students. See infra notes 28891 and accompanying text. For

illustrative figures, see, e.g., William C. Warren, Report of the Dean of the School of Law, June 30,

1956, COLUM. UNIV. BULL. INFO., Nov. 17, 1956, at 15 [hereinafter COLUM. 195556 DEANS

REPORT]; Minutes of a Meeting of the Faculty of the Law School (Oct. 6, 1959), RG0002, Box 52,

Folder 4, Office of the President Records, Special Collections Research Center, Estelle and

Melvin Gelman Library, The George Washington University, Washington, D.C.; Erwin N.

Griswold, Law School, in REPORT OF THE PRESIDENT OF HARVARD COLLEGE AND REPORTS OF

DEPARTMENTS 195051, OFFICIAL REG. HARV. U., Apr. 2, 1954, at 355, 365 [hereinafter HARV.

195051 DEANS REPORT]; Erwin N. Griswold, Law School, in REPORT OF THE PRESIDENT OF

HARVARD COLLEGE AND REPORTS OF DEPARTMENTS 195758, OFFICIAL REG. HARV. U., Aug. 31,

1959, at 321, 33839 [hereinafter HARV. 195758 DEANS REPORT]; Memorandum from Allan F.

Smith to Law School Faculty, Report on Graduate ProgramDomestic Students 3 (Oct. 30,

1956), University of Michigan Archives, Bentley Historical Library, Law School (University of

Michigan) records 18521999, Subseries: Topical Files, Box 102 (Folder Graduate and Research

Committee, 19561959) [hereinafter Smith to Faculty 10/30/56]; University of Michigan Law


work varied. For U.S. students, these purposes included teacher training and research at both the masters and doctoral level. Another objective was refresher work for veterans in the immediate post-war period and, more generally, advanced training in specialized areas.23 Indeed, work for practitioners was the centerpiece of N.Y.U.s enormous graduate program, which by 1950 was enrolling over 700 students annually.24 Some schools emphasized the intellectual broadening function of their work for students

School Program of Foreign Graduate Study and Research 7 (Mar. 15, 1954), University of

Michigan Archives, Bentley Historical Library, Law School (University of Michigan)

collection, Subseries: Deans Files, 18521975, Box 54 (Folder Ford GrantOriginal papers)

[hereinafter Mich. Ford Proposal 3/15/54]; UNIV. OF MICH., INTERNATIONAL LEGAL STUDIES AT

THE UNIVERSITY OF MICHIGAN LAW SCHOOL, REPORT FOR 195960, at 1112 (1960) [hereinafter

MICH. ILS REPORT 195960]; N.Y.U. 1954 Self-Study, supra note 21, at 97; RUSSELL D. NILES,

NEW YORK UNIVERSITY, REPORT OF THE DEAN OF THE SCHOOL OF LAW FOR THE YEAR 195354, at

11 (1954) [hereinafter N.Y.U. 195354 DEANS REPORT]; Yale Univ., Law School for the Academic

Year 195455, BULL. YALE U., Aug. 15, 1954, at 4647, 61 [hereinafter YALE 1954-55 BULL.]; infra

notes 26, 255 and accompanying text. The statement is technically accurate as to Wisconsin,

but the numbers were very small. Between 1946 and 1953, for example, the school conferred

all of eighteen LL.M. degrees and five S.J.D. degrees. See Memorandum from Research Comm.

to Law Faculty, Requirements for the S.J.D. and LL.M. Degrees (Dec. 10, 1953), University of

Wisconsin-Madison Archives, Steenbock Library, Law School AdministrationCommittees,

Series 11/1/7, Box 2 (Folder Research Committee) [hereinafter Wis. Memo 12/10/53]; Database,

supra note 7. 23 See Columbia Univ., Announcement of the School of Law for the Summer, Winter and Spring

Sessions 194748, COLUM. U. BULL. INFO., June 28, 1947, at 26 [hereinafter COLUM. 194748

BULL.]; Columbia Univ., Announcement of Graduate Studies of the School of Law for the Winter and

Spring Sessions 195455, COLUM. U. BULL. INFO., June 12, 1954, at 5 [hereinafter COLUM. 1954

55 GRADUATE BULL.]; RUSSELL D. NILES, NEW YORK UNIVERSITY, REPORT OF THE DEAN OF THE

SCHOOL OF LAW FOR THE YEAR 194950, at 78 (Oct. 1, 1950) [hereinafter N.Y.U. 194950

DEANS REPORT]; Letter from Oliver S. Rundell to E.B. Fred (Sept. 17, 1946), University of

Wisconsin-Madison Archives, Steenbock Library; Wis. Memo 12/10/53, supra note 22, at 1, 3.

At the time, changes to the organization and functioning of business and growth in

government regulation had created the need for more specialized study. See Elliott Cheatham

et al., Report of the Committee on Graduate Training, PROCEEDINGS ASSN AM. L. SCH. 184, 19192

(1955) [hereinafter 1955 AALS REPORT] (noting a shift in graduate work, away from teacher

training and towards specialized study for practice); Maurice S. Culp et al., Report of the

Committee on Continuing Legal Education, PROCEEDINGS ASSN AM. L. SCH. 158, 159 (1957)

(discussing the growth of continuing legal education programs). 24 See ARTHUR T. VANDERBILT, NEW YORK UNIVERSITY, REPORT OF THE DEAN OF THE SCHOOL

OF LAW FOR THE YEAR 194546, at 1011 (Sept. 1, 1946) [hereinafter N.Y.U. 194546 DEANS

REPORT]; ARTHUR T. VANDERBILT, NEW YORK UNIVERSITY, REPORT OF THE DEAN OF THE

SCHOOL OF LAW FOR THE YEAR 194748, at 2526 (Aug. 31, 1948) [hereinafter N.Y.U. 194748

DEANS REPORT]; N.Y.U. 194950 DEANS REPORT, supra note 23, at 78; N.Y.U. 195354 DEANS

REPORT, supra note 22, at 11; N.Y.U. 1954 Self-Study, supra note 21, at 9495; Russell D. Niles,

A Graduate Program for Lawyers, 1 J. LEGAL EDUC. 590 (1949).


pursuing a variety of careers.25 Finally, this was also the period in which the schools significantly expanded graduate work for foreign students.

Except at N.Y.U., the number of students was small: even fifteen years after the war, the graduate student population (including foreign students) was less than 10% of the number of LL.B. students. At Wisconsin, the figure was on the order of 2%. The picture is somewhat different, however, when expressed in terms of financial expenditures. By the late 1950sprobably the high water mark in the availability of graduate fellowship fundingColumbia, Harvard, Michigan, and Yale were spending on total graduate student fellowships between 60% and 70% of what they were spending on total LL.B. student scholarships. On a per student basis, graduate student fellowships at three of the schools dwarfed LL.B. student scholarships by a ratio of ten to one or more.26

25 See COLUM. 194748 BULL., supra note 23, at 26; COLUM. 195455 GRADUATE BULL., supra

note 23, at 5; Erwin N. Griswold, Graduate Study in Law, 2 J. LEGAL EDUC. 272, 279 (1950);

HARV. 195051 DEANS REPORT, supra note 22, at 366; Univ. of Mich., Law School Announcement

19461947 With List of Graduates, U. MICH. OFFICIAL PUBLICATION, Dec. 8, 1945, at 13

[hereinafter MICH. 194647 BULL.]; N.Y. Univ., School of Law Announcements for the One

Hundred and Twelfth Session 194647, N.Y.U. BULL., Jan. 10, 1947, at 39 [hereinafter N.Y.U.

194647 BULL.]; Niles, supra note 24, at 59091. 26 The following are approximate figures:

School 195960

graduate

students

Late

1950s

graduate

funds ($)

Late 1950s

funds per

graduate

student ($)

195960

LL.B.

students

Late

1950s

LL.B.

funds

Late 1950s

funds per

LL.B.

student ($)

Columbia 48 60,000 1250 790 100,380 127

Harvard 101 154,998 1535 1496 229,770 154

Michigan 39 62,195 1595 850 91,015 107

Yale 40 73,168 1829 519 120,000 231

See WILLIAM C. WARREN, REPORT FOR THE YEARS 195962, THE SCHOOL OF LAW, COLUMBIA

UNIVERSITY 13, 15 (1962) [hereinafter COLUM. 195962 DEANS REPORT]; Columbia Law School,

Graduate Law Students 195960, Special Collections, Arthur W. Diamond Law Library,

Columbia University, Box Law School Archives / Graduate Legal Studies [one of several lists

of Graduate Students, Scholars and/or J.S.D. Candidates in Residence for 195455 through

198586; hereinafter cited individually as Columbia Student List [year] and collectively as

Columbia Student Lists]; Harvard Univ., The Law School Catalogue for 196061, OFFICIAL REG.

HARV. U., Apr. 4, 1960, at 150 [hereinafter HARV. 196061 BULL.]; Erwin N. Griswold, Law

School, in REPORT OF THE PRESIDENT OF HARVARD COLLEGE AND REPORTS OF DEPARTMENTS

195960, OFFICIAL REG. HARV. U., Dec. 28, 1961, at 405, 426; Annual Report of the Graduate

and Research Committee Concerning the Research Budget of the Law School for the Fiscal

Year 195859 (Apr. 5, 1958), University of Michigan Archives, Bentley Historical Library, Law


The commitment to graduate work was fueled in part by institutional leaders who themselves held graduate degrees, particularly doctorates. For example, the Deans at Harvard and Yale immediately after the warErwin Griswold of Harvard and Wesley Sturges of Yaleboth held doctorates from their respective schools. Griswold seemed to have a particularly strong personal commitment to graduate work. He served on Harvards Graduate Committee for much of the 1950s,27 and published an enthusiastic article about the schools program in the Journal of Legal Education in 1950.28 Other Deans during this period included Russell Niles, Yale J.S.D. 1931, who became N.Y.U.s Dean in 1948; William Van Vleck, Harvard S.J.D. 1921, who was Dean of George Washington until 1948; John Fey, Yale J.S.D. 1952, who became George Washingtons Dean in 1953; and John Ritchie, Yale J.S.D. 1931, who was Dean at Wisconsin from 1953 to 1957.

School (University of Michigan) collection, Subseries: Deans Files, 18521975, Box 52 (Folder

Grad. Res. Comm. 1); WILLIAM B. LOCKHART & CHARLES B. NUTTING, THE UNIVERSITY OF

MICHIGAN LAW SCHOOL, REPORT OF AN EVALUATION MADE ON APRIL 2324, 1959, at 8 (1959)

[hereinafter MICH. SITE EVALUATION 1959]; Memorandum from Graduate & Research

Committee to Planning Committee, Self-Survey Report 13 (May 1, 1959), University of


collection, Subseries: Deans Files, 18521975, Box 40 (Folder Committee, Misc. 1) [hereinafter

Mich. Report 5/1/59]; Univ. of Mich., Law School Announcement 19601961 With List of 1959

Graduates, U. MICH. OFFICIAL PUBLICATION, 1960, at 60 [hereinafter MICH. 196061 BULL.];

Proposal of the Law School for an Expanded Program in Foreign and Comparative Law 3

(Mar. 9, 1961), University of Michigan Archives, Bentley Historical Library, Law School

(University of Michigan) collection, Subseries: Deans Files, 18521975, Box 40 (Folder Ford

Foundation) [hereinafter Mich. Proposal 3/9/61]; Eugene V. Rostow, Yale Law School/Report of

the Dean and of the Librarian, BULL. YALE U., June 1962, at 5556 [hereinafter YALE 1962 DEANS

REPORT] (reporting enrollment for 195960 and average annual grant funds for 195960

through 196162). 27 Concerning Griswolds service on the Graduate Committee, see Graduate Students

Harvard Law School1951, HARV. L. SCH. BULL., Feb. 1952, at 4; William G. Rice, Foreign

Graduate Students at the Harvard Law School 4 (July 1954), University of Wisconsin-Madison

Archives, Steenbock Library, Jacob H. Beuscher Papers, Series 11/2/133, Box 1 (Folder Law

Research CommJuly 19541955) [hereinafter Rice Memo 7/54)]; Memorandum from Erwin

N. Griswold to Faculty, Faculty Committees (Sept. 18, 1962), Harvard University Archives,

Harvard Law School, Faculty Records, 19351970, UAV 512.10, Box 4 (Folder Faculty, 1963).

Concerning his commitment more generally, see Letter from Erwin N. Griswold to Dyke

Brown (Nov. 20, 1956), Harvard University Archives, Records of the Office of the Dean, 1910

1982 (inclusive), Harvard Law School, UAV 512.26.18, Box 30 of 44 (Folder (Graduate

Fellowship) Ford Foundation, Training Teachers); ERWIN N. GRISWOLD, OULD FIELDS, NEW

CORNE: THE PERSONAL MEMOIRS OF A TWENTIETH CENTURY LAWYER 7677 (1992). 28 Griswold, supra note 25 (describing the graduate program from its inception and its

effects on legal education).


Everywhere except Columbia, there also were built-in constituencies of faculty who themselves had done graduate work. This phenomenon was most prominent at George Washington, where approximately one-third of the full-time faculty held a law doctorate through at least 1956. Some 20% to 30% of Michigans full-time faculty held the degree during the same period, and by 1956, close to 25% of Wisconsins faculty held the degree. At Yale and N.Y.U., the proportion was approximately 20%, and at Harvard the proportion ranged from 15% to 20%.29 Still others held LL.M. degrees.

In sum, all of the schools were committed to graduate work for U.S.-trained students, and the doctorate was an important part of the whole. The post-war explosion of interest in international legal studies added a new component to the mix in the form of graduate work specifically targeted towards foreign-trained students. Over time, these students represented an increasing share of the schools graduate student population, primarily at the masters-degree level. A few went on to the doctorate as well, but at most schools this occurred through a series of fits and starts rather than any overarching plan. By the 1960s, the doctorate was falling out of favor with U.S.-trained students, leaving a vacuum into which international students could move. In a process fueled as much by inertia as by any conscious institutional decision, the doctorate slowly became a degree pursued by foreign-trained students.

29 See George Washington Univ., The Catalogue Issue, GEO. WASH. U. BULL., July 1947, at 96;

George Washington Univ., The Law School 195152, GEO. WASH. U. BULL., May 1951, at 1016;

George Washington Univ., The Law School 195657, GEO. WASH. U. BULL., Mar. 1956, at 912

[hereinafter G.W. 195657 BULL.]; Harvard Univ., The Law School Including Courses of

Instruction for the Academic Year 195051, OFFICIAL REG. HARV. U., Apr. 1950, at 57; Harvard

Univ., The Law School 195556, OFFICIAL REG. HARV. U., Apr. 1, 1955, at 57 [hereinafter HARV.

195556 BULL.]; Univ. of Mich., Law School Announcement 19441945, 19451946, U. MICH.

OFFICIAL PUBLICATION, May 15, 1945; Univ. of Mich., Law School Announcement 19491950 With

List of 1948 Graduates, U. MICH. OFFICIAL PUBLICATION, Sept. 28, 1948 [hereinafter MICH. 1949

50 BULL.]; Univ. of Mich., Law School Announcement 19541955 With List of 1953 Graduates, U.

MICH. OFFICIAL PUBLICATION, Mar. 26, 1954; Univ. of Mich., Law School Announcement 1959

1960 With List of 1958 Graduates, U. MICH. OFFICIAL PUBLICATION, Nov. 26, 1958 [hereinafter

MICH. 195960 BULL.]; N.Y.U. 194647 BULL., supra note 25, at 67; N.Y. Univ., School of Law

Announcement for the One Hundred and Nineteenth Session 195354, N.Y.U. BULL., Jan. 26, 1953,

at 1013 [hereinafter N.Y.U. 195354 BULL.]; N.Y. Univ., School of Law Announcement 196061,

N.Y.U. BULL., Mar. 14, 1960, at 79 [hereinafter N.Y.U. 196061 BULL.]; Univ. of Wis., The Law

School Announcement of Courses 194647, BULL. U. WIS., May 1946, at 4; Univ. of Wis., The Law

School Announcement of Courses 195153, BULL. U. WIS., Sept. 1951, at 4 [hereinafter WIS. 1951

53 BULL.]; Univ. of Wis., The Law School Announcements 195658, BULL. U. WIS., Apr. 1956, at 4

[hereinafter WIS. 195658 BULL.]; Yale Univ., Law School for the Academic Year 195657, BULL.

YALE U., Aug. 15, 1956, at 67 [hereinafter YALE 195657 BULL.]. I define full-time faculty

members as a schools Dean, Professors, Associate Professors and Assistant Professors.


This Article addresses these developments as follows. Part III examines the post-war evolution of the doctorate from the perspective of its initial purpose: training U.S. law graduates for teaching and related careers. Part IV then takes up the gradual transition to a primarily foreign-trained student population. By framing the analysis in this way, I do not mean to understate the extent of cross-fertilization between often-simultaneous developments on the domestic and international sides. Indeed, cross-fertilization lies at the heart of the story of how, having imported continental ideas about law starting in the late 1800s, U.S. law schools actively redirected the flow of ideas elsewhere during the post-World War II era.

III. The Doctorate for U.S. Law Graduates

During the first fifteen years after the war, the schools actively promoted the S.J.D./J.S.D. as their apex academic degree. The degree initially retained much of its pre-war prestige, particularly for teacher training, and both the schools and foundations offered generous fellowship funding to those pursuing it. As time went on, however, growing numbers of faculty came to doubt the degrees value, particularly in light of its associated costs. These doubts came to a head in the 1960s as shifts in the educational and external environment made the degree increasingly irrelevant. A few schools tried to develop new models for offering the degree, but their success was mixed. By the end of the 1960s, the doctorate had been largely devalued as a sign of academic achievement.

A. The Initial Push

It took most of the schools time to reestablish their programs after the war, but by the end of the 1950s the seven schools had put tremendous money and energy into their graduate work for U.S. students. As before, the doctorate in particular was designed primarily for teacher training and research, and to a lesser extent building knowledge and training specialists in particular fields. The seven schools conferred doctorates on 155 U.S.-trained students in the 1950s alone, and more candidates were in the pipeline. Those who did earn the degree generally found (or returned to) teaching positions along the way, including placements at the eras top schools.30

30 These included Clyde Summers of Yale (Columbia J.S.D. 1952), Covey Oliver of Penn

(Columbia J.S.D. 1954), John Reed of Michigan (Columbia J.S.D. 1957), Robert Keeton of

Harvard (Harvard S.J.D. 1956), Alfred Hill of Columbia (Harvard S.J.D. 1957), Mortimer

Caplin of Virginia (N.Y.U. J.S.D. 1953), John Merryman of Stanford (N.Y.U. J.S.D. 1955),

Richard Donnelly of Virginia and Yale (Yale J.S.D. 1949), and Quintin Johnstone of Yale (Yale


1. For Teacher Training

Before World War II, teacher training had been the main purpose of the doctorate at Harvard, Yale, Columbia, and Michiganthe four most prestigious schools of the group. The teacher training focus continued in modified form after the war, for both these schools and a fifth (N.Y.U.) that was trying to join their ranks. By the late 1950s, competition among the schools for top teaching prospects had become fierce, even if those prospects did not ultimately earn the doctorate.31 This competition was fueled in part by teacher training grants the Ford Foundation made in the mid- to late 1950s: ten-year grants to Columbia, Harvard, and Yale, and a five-year grant to N.Y.U.32 Michigan did not have a Ford grant, so funding

J.S.D. 1951). See Database, supra note 7. 31 See Paul R. Hays, Report of the Chairman of the Committee on Graduate Instruction

(Feb. 2, 1954), Walter Gellhorn Papers, Box 157 (Folder Columbia Faculty 19531954 (folder

2)), University Archives, Rare Book & Manuscript Library, Columbia University in the City of

New York [hereinafter Colum. Report 2/2/54] (Columbia has fallen far behind [Harvard, Yale

and Michigan] in its graduate program.); Memorandum from Graduate Comm. to Members

of the Law Faculty, Prospects for 195859 Ford Fellowships 1 (Nov. 12, 1957), Special

Collections, Arthur W. Diamond Law Library, Columbia University, Box Law School

Archives / Graduate Legal Studies [hereinafter Colum. Memo 11/12/57] (imploring the faculty

to beat[] the A.A.L.S. bushes for our five 195859 Ford Fellows in the face of competition

from Harvard and Yale); Letter from Walter Gellhorn to Harry W. Jones and Robert P.

Hamilton (Jan. 5, 1959), Walter Gellhorn Papers, Box 158 (Folder Columbia Faculty 195859

(Folder 1)), University Archives, Rare Book & Manuscript Library, Columbia University in the

City of New York (asking whether Columbia should try to match Harvards and Yales higher

fellowship awards); Mich. Report 5/1/59, supra note 26, at 2 (noting competition with Harvard,

Yale, Columbia, and N.Y.U. for graduate students who were already teaching); Memorandum

from R.A. Smith et al. to Faculty, Report and Recommendation by Committee on Graduate

Studies and ResearchGraduate Student Stipends 2 (Oct. 21, 1960), University of Michigan

Archives, Bentley Historical Library, Law School (University of Michigan) collection,

Subseries: Deans Files, 18521975, Box 40 (Folder Committee, Misc. 1) [hereinafter Smith to

Faculty 10/21/60] (recommending that the school increase its fellowship awards to candidates

with two or more years of experience, in part to compete better with what Harvard,

Columbia, and N.Y.U. were offering); Ernest J. Brown et al., Report of the Special Committee on

Graduate Study, PROCEEDINGS ASSN AM. L. SCH. 130, 132 (1961) [hereinafter 1961 AALS

REPORT] (noting reported competitive bidding by member schools for the better graduate

student prospects). 32 See William C. Warren, Report of the Dean of the School of Law, June 30, 1957, COLUM. UNIV.

BULL. INFO., Oct. 12, 1957, at 16 [hereinafter COLUM. 195657 DEANS REPORT] (describing a

$250,000 grant); Memorandum from James R. Reynolds to Erwin N. Griswold (July 12, 1956)

(attaching letter from Joseph M. McDaniel, Jr. to Nathan M. Pusey, July 9, 1956), Harvard

University Archives, Records of the Office of the Dean, Harvard Law School, 19101982, UAV

512.26.15, Box 51 (Folder Ford FoundationDec. 1964 (2 of 2)) (describing Harvards $500,000

grant); RUSSELL D. NILES, NEW YORK UNIVERSITY, REPORT OF THE DEAN OF THE SCHOOL OF LAW


for doctoral students (which was considerable) came from internal sources.33

i. Why Train Teachers?

For the four most prestigious schools, the primary motivation seems to have been educational leadershipa variation on the pre-war missionary function of the doctorate. As before, graduate work helped propagate a particular conception of law and legal education at other schools across the country, adding to the influence of the graduate school in the process. This was joined by a new sense of responsibility on the part of the so-called national law schoolsan amorphous group that was defined as much by resources and prestige as by the geographic origins of its students.34 As Harvard explained to the Ford Foundation, one of the best ways to strengthen legal education at the so-called local law schools was to enable the teachers from these schools to spend a year at Harvard, or at one of the other national schools, deepening their understanding of the law and law teaching, observing new developments and techniques, and reflecting on their tasks and objectives.35 This motivation gathered strength during the 1950s, as the ABA and AALS began to impose heightened accreditation requirements on law schools, including raising the minimum requirements as to full-time faculty.36

This orientation was most pointed at Harvard and Yale, which were

FOR THE YEAR 195758, at 34 [hereinafter N.Y.U. 195758 DEANS REPORT] (describing a

$252,500 grant); Letter from Joseph M. McDaniel, Jr. to A. Whitney Griswold (Nov. 4, 1955),

reproduced in Memorandum from Eugene V. Rostow to Yale Law School Faculty, Yale Law

School Records (RU 449), Manuscripts and Archives, Yale University Library, Accession 1981

A014, Box 69 (Folder 127 Ford Foundation 195356) [hereinafter Ford-Yale Grant Letter]

(describing a grant of approximately $500,000). 33 See infra notes 12629 and accompanying text. 34 See generally Harry W. Jones, Local Law Schools vs. National Law Schools: A Comparison of

Concepts, Functions, and Opportunities, 10 J. LEGAL EDUC. 281 (1958) (discussing the distinction

between national and local law schools). 35 Report for the Ford Foundation on Graduate Fellowships for Law Teaching at the

Harvard Law School 1 (June 15, 1959), Harvard University Archives, Records of the Office of

the Dean, Harvard Law School, 19101982, UAV 512.26.15.1, Box 2 (Folder Ford Foundation

Fellowships for Law) [hereinafter Harv. Ford Report 6/15/59]; Report for the Ford Foundation

on Graduate Fellowships for Law Teachers at the Harvard Law School 196364, at 1 (Dec.

1964), Harvard University Archives, Records of the Office of the Dean, 19101982 (inclusive),

Harvard Law School, UAV 512.26.18, Box 30 (Folder (Graduate Fellowship) Ford Foundation,

Training Teachers) [hereinafter Harv. Ford Report 12/64]. 36 ROBERT STEVENS, LAW SCHOOL: LEGAL EDUCATION IN AMERICA FROM THE 1850S TO THE

1980S, at 20610 (1983) (discussing ABA and AALS moves).


then the leading suppliers of the countrys law teachers.37 At Yale, a seminal 1946 report of the Curriculum Committee articulated the schools mission in the following terms: We believe that Yale should continue to be a small school, with the special justification of intellectual leadership in the training of highly selected students, many of whom will go into law teaching, government service, and other positions of potential influence on policy.38 Harvards Dean Erwin Griswold wrote in 1950 that [a]n institution of the standing and background of the Harvard Law School should be a center for advanced legal thinking and research. The graduate students, particularly [the S.J.D. candidates], help the School to meet this part of its responsibility to the community.39 Teacher training was part of that role: as the schools first Graduate Bulletin indicated, [t]he training of prospective teachers and provision for advanced study by those already engaged in teaching have been and continue to be a major concern of the School.40

37 Some 20% of the 1222 full-time teachers listed in the 1951 AALS Teachers Directory held

a Harvard degree. The schools closest competitor was Yale, whose degree holders accounted

for roughly 10% of the total. Some additional number had studied at each school without

receiving a degree. Of each schools group, approximately half held the schools LL.M. or

S.J.D./J.S.D. degree, as contrasted with its LL.B. degree. See ASSN OF AM. LAW SCH.,

TEACHERS DIRECTORY 195152 (1951) [hereinafter 1951 AALS DIRECTORY] (listing only

teachers in AALS member schools, plus Northeastern and Lincoln Universities). For

discussions of Yales competition with Harvard during this period, see Robert Stevens, History

of the Yale Law School: Provenance and Perspective, in HISTORY OF THE YALE LAW SCHOOL: THE

TERCENTENNIAL LECTURES 1315 (Anthony T. Kronman ed., 2004); Laura Kalman, The Dark

Ages, in HISTORY OF THE YALE LAW SCHOOL: THE TERCENTENNIAL LECTURES 154, 15556

(Anthony T. Kronman ed., 2004). 38 Memorandum from Eugene V. Rostow et al., Report of the Committee on Curriculum

and Personnel 1 (May 8, 1946), Yale Law School Records (RU 449), Manuscripts and Archives,

Yale University Library, Accession 1981A014, Box 66 (Folder 87, Curriculum Committee

1946) [hereinafter Yale Report 5/8/46]. Concerning the graduate programs emphasis on

teacher training, see Wesley Sturges, Law School / Report of the Dean 19481949 / Reports of the

Librarian 19471949, BULL. YALE U., Sept. 1, 1949, at 5 [hereinafter YALE 194849 DEANS

REPORT]; Statement for Ford Foundation Submission Approved by the Faculty and Acting

Dean of the Yale Law School, Yale Law School Program for Training Law Teachers, Legal

Specialists, and Potential Leaders of the Legal Profession 7 (Apr. 1955), Yale Law School

Records (RU 449), Manuscripts and Archives, Yale University Library, Accession no. 1981A

014, Box 69 (Folder 127, Ford Foundation 195356) [hereinafter Yale Ford Proposal 1955];

Eugene V. Rostow, Yale Law School/Report of the Dean, BULL. YALE U., July 1966, at 1725

[hereinafter YALE 196365 DEANS REPORT]. 39 Griswold, supra note 25, at 286. 40 HARVARD UNIV., THE GRADUATE PROGRAM AT HARVARD LAW SCHOOL 195051, at 1

(1950), Special Collections, Harvard Law School Library; see HARV. 195051 DEANS REPORT,

supra note 22, at 366; Erwin N. Griswold, Law School, in REPORT OF THE PRESIDENT OF HARVARD


Columbia and Michigan were close on their heels. Teacher training was particularly important for Columbia, which was then viewed (along with Harvard and Yale) as one of the countrys three most prestigious schools.41 As of 1950, Columbia called train[ing] selected graduate students for careers in university law teaching one of its five principal objectivessecond only to professional training of LL.B. students.42

At Michigan, a 1944 Graduate Committee report to the faculty noted:

[I]t would seem that the offering of an adequate course leading to the S.J.D. degree has become the mark of a member of the top group of law schools in the United States. Law teachers expect the big four schools to offer graduate work leading to the doctors degree in law.43

COLLEGE AND REPORTS OF DEPARTMENTS 195556, OFFICIAL REG. HARV. U., Dec. 30, 1957, at 399

[hereinafter HARV. 195556 DEANS REPORT]. 41 See Jones, supra note 34, at 28185 (implying that Harvard, Yale, and Columbia were the

countrys three most prestigious law schools, and that Michigan was not far behind); Letter

from Willard Hurst to Joseph Willits (Mar. 20, 1957), J. Willard Hurst Collection, University of

Wisconsin Law Library, Series VII: Correspondence, available at library.law.wisc.edu/hurst/

correspondence.html [hereinafter Hurst to Willits 3/20/57] (putting Harvard, Yale, and

Columbia in their own category of the best law schools from a professional training

perspective; from the standpoint of substantial pioneering towards broader intellectual

horizons, adding Chicago and Wisconsin). 42 Harry Jones et al., Report of the Committee of the Faculty of Law to the Presidents

Committee on the State of the University 1, 5 (Nov. 30, 1950), Walter Gellhorn Papers, Box 150

(Folder Col. Committee on DevelopmentResearch Inst. 195253 (folder 2)), University

Archives, Rare Book & Manuscript Library, Columbia University in the City of New York

[hereinafter Colum. Report 11/30/50]; see William C. Warren, Report of the Dean of the School of

Law, June 30, 1955, COLUM. UNIV. BULL. INFO., Nov. 26, 1955, at 17 [hereinafter COLUM. 195455

DEANS REPORT] (observing that Edwin Pattersons work with graduate students made the

Law School one of the countrys outstanding institutions for the training of American law

teachers); Colum. Memo 11/12/57, supra note 31, at 1 ([I]t is important to Columbia Law

Schools influence and prestige that our Ford Fellows be men of achievement and high

scholarly potential.). 43 Edgar N. Durfee et al., Report of the Committee on Graduate Work 7 (Mar. 10, 1944),

included with Mich. 3/28/44 Minutes, supra note 21 [hereinafter Durfee Report 3/10/44] (also

noting that offering graduate work adds to the schools influence); see also Mich. Ford

Proposal 3/15/54, supra note 22, at 15 ([A] high percentage of [American graduate students]

are prospective American law teachers.); Mich. Report 5/1/59, supra note 26, at 1 (The

present graduate program is aimed very largely at law teacher training.). Indeed, as of 1953

Michigan had surpassed Columbia as a supplier of teachers to U.S. law schools. See David F.

Cavers, The Harvard Law Schools Contribution to the Education of Law Teachers in the

United States (Dec. 19, 1960), Papers of A. James Casner, Harvard Law School Library, Box 43

(Folder 434, Typescript: The Harvard Law Schools Contribution to the Education of Law

Teachers in the U.S. 1960) (showing that, among teachers listed in the 1953 AALS Directory


N.Y.U.s situation was somewhat different. Although a well-regarded school before World War II, its student base was primarily from the New York area, and it commanded nothing like the prestige of the other four. Beginning in 1943, the schools new Dean, Arthur Vanderbilt, spearheaded an enormous effort to upgrade the schools image.44 Vanderbilts signature contribution was the law center idea: the notion of combining LL.B. and graduate education, continuing legal education for practitioners, research, consulting, and assorted other activities under a single roof.45 Vanderbilt did not pay particular attention to either teacher training or the schools J.S.D. program, which was not training teachers in any event. However, when Russell Niles took over the Deanship in 1948, the number of graduates who entered teaching positions became an indicator of the schools growing success. A graduate teacher training program became one of his signature projects.46

who had received their first law degree between the early 1940s and early 1950s, holders of

Michigan degrees ranked third (behind Harvard and Yale)). 44 Norman Dorsen, How NYU Became a Major Law School, N.Y.U. L. SCH. MAG., Fall 1991, at

42, 4344. N.Y.U. still was not appearing on informal lists of leading or national law schools

as of the mid- to late 1950s. See Letter from Eugene V. Rostow to Dyke Brown (Jan. 21, 1957),

Yale Law School Records (RU 449), Manuscripts and Archives, Yale University Library,

Accession 1981A014, Box 69 (Folder 126, Ford Foundation 195657); Hurst to Willits 3/20/57,

supra note 41; Jones, supra note 34, at 28283; Confidential Rough Draft / Law School,

Columbia University / Minimum and Immediate Requirements of Faculty 1 (Dec. 8, 1961),

included with Minutes of the Faculty of Law (Dec. 15, 1961), Columbia University, Minutes of

the Faculty of Law, University Archives, Rare Book & Manuscript Library, Columbia

University in the City of New York [hereinafter Colum. Draft 12/8/61; hereinafter minutes of

Columbia faculty meetings are cited as Colum. [date] Minutes]; see also N.Y. UNIV., THE NEW

YORK UNIVERSITY SELF-STUDY: FINAL REPORT app. B at 55 (1956) [hereinafter N.Y.U. 1956 SELF-

STUDY]. 45 See N.Y.U. 194546 DEANS REPORT, supra note 24, at 910; N.Y.U. 194748 DEANS

REPORT, supra note 24, at 2426. 46 Initially, the schools various specialized programs (in taxation, labor law, food law, and

foreign/comparative/international law) enabled it to train teachers in these fields. Then, as of

the early to mid-1950s, the school made a direct bid to train teachers in any field of their

election. RUSSELL D. NILES, NEW YORK UNIVERSITY, REPORT OF THE DEAN OF THE SCHOOL OF

LAW FOR THE YEAR 195859, at 2122 (Sept. 1, 1959) [hereinafter N.Y.U. 195859 DEANS

REPORT]. On teacher training in general at N.Y.U., see N.Y.U. Faculty Interviews (on file with

author); N.Y.U. 195354 DEANS REPORT, supra note 22, at 12; RUSSELL D. NILES, NEW YORK

UNIVERSITY, REPORT OF THE DEAN OF THE SCHOOL OF LAW FOR THE YEAR 195455, at 1314

(Sept. 1, 1955) [hereinafter N.Y.U. 195455 DEANS REPORT]; RUSSELL D. NILES, NEW YORK

UNIVERSITY, REPORT OF THE DEAN OF THE SCHOOL OF LAW FOR THE YEAR 195556, at 45 (Sept.

1, 1956) [hereinafter N.Y.U. 195556 DEANS REPORT]; RUSSELL D. NILES, NEW YORK

UNIVERSITY, REPORT OF THE DEAN OF THE SCHOOL OF LAW FOR THE YEAR 195657, at 12 (Sept. 1,

1957) [hereinafter N.Y.U. 195657 DEANS REPORT]; N.Y.U. 195758 DEANS REPORT, supra note


ii. The Content of Teacher Training

As the special AALS committee urged in 1943, a key component of teacher training was fostering an understanding of law as social engineering. As Yales Curriculum Committee stated in 1946, We take it to be self-evident that law is one of the social studies, and that the study of law will be most fruitful and critical when the skills and perspectives of history, economics, statistics, psychology, political science, sociology and psychiatry are fully and effectively used in the work of law schools.47 At the graduate level, this translated into the policy science view of law developed by Graduate Committee Chair Myres McDougal and his collaborator Harold Lasswell.48 Harvard had a more diffuse commitment to exploring the ways in which the resources of the law may be applied to emerging social problems. . . [T]he graduate program should enable a student to see through some of the traditional classifications within the law and beyond some of the traditional boundaries between the law and other disciplines.49 Similar commitments were in evidence at Columbia, Michigan, and N.Y.U.50

32, at 34 (According to an impartial survey of present teachers of law, our school has

contributed more teachers than any other, except for Harvard, Yale, Michigan, and Columbia,

and during the last five years our program has had much the most rapid rate of growth.). 47 Yale Report 5/8/46, supra note 38, at 1. 48 This view treated law as a way to implement the values of a given community, and

included an elaborate framework for determining what those values are and how they may be

implemented. See, e.g., Harold D. Lasswell & Myres S. McDougal, Legal Education and Public

Policy: Professional Training in the Public Interest, 52 YALE L.J. 203 (1943); W. Michael Reisman,

Myres S. McDougal: Architect of a Jurisprudence for a Free Society, 66 MISS. L.J. 15, 2021 (1996). 49 HARV. 195051 DEANS REPORT, supra note 22, at 366 (quoting then Graduate Committee

Chair Paul Freund); see also Griswold, supra note 25, at 279; David F. Cavers, How to Become a

Law Teacher, HARV. L. SCH. BULL., Feb. 1957, at 9, 11 [hereinafter Cavers (2/57)]; HARVARD LAW

SCH., REPORT OF THE COMMITTEE ON PLANNING AND DEVELOPMENT 87 (Sept. 1964), Special

Collections, Harvard Law School Library [hereinafter HARV. REPORT 9/64]. 50 See WILLIAM C. WARREN, REPORT FOR THE YEARS 196263, THE SCHOOL OF LAW,

COLUMBIA UNIVERSITY 15 (1963) [hereinafter COLUM. 196263 DEANS REPORT] ([T]he

emphasis of the [J.S.D.] program is on the development of a philosophical and broadly

synthetic approach to legal problems . . . .); Memorandum from Graduate Comm. to Faculty

of the Law School, The Proposed Curriculum Revision in the Jurisprudence Field (Dec. 12,

1957), University of Michigan Archives, Bentley Historical Library, Law School (University of

Michigan) records 18521999, Subseries: Topical Files, Box 102 (Folder Graduate and Research

Committee, 19561959) (We feel that the graduate student should be exposed to law as a

philosophical matter, law and its relation to social developments, and an analytical study of

how our legal system operates to attain socially desirable ends.); Durfee Report 3/10/44, supra

note 43, at 3 (opining that a prospective law teacher pursuing graduate study wants the

broadening effect of courses in Jurisprudence and Comparative Law); N.Y.U. 195354


To a great extent students acquired such an understanding by osmosis, particularly at the top schools. They were in an environment in which faculty taught that way; the student merely had to follow along. In addition, many graduate students enrolled in jurisprudentially-oriented courses in the schools regular curricula, including Hart and Sacks The Legal Process at Harvard and Lasswell and McDougals Law, Science and Policy at Yale. The schools also offered special graduate student seminars in jurisprudence, legal philosophy, and comparative law. Explicitly interdisciplinary opportunities were available, in the form of joint seminars or coursework in other university departments.51 Otherwise, there were informal conversations with other graduate students and faculty; and the opportunity to sit back and reflect in an intellectually stimulating environment.52

DEANS REPORT, supra note 22, at 12 (Each year, the summer teacher training program plans to

offer one basic cultural course, . . . a seminar on problems of legal education[, and] from time

to time courses involving other disciplines . . . .); N.Y.U. 1954 Self-Study, supra note 21, at 99

100 (describing general cultural subjects available to graduate students). 51 See infra note 66 and accompanying text (concerning broadening course work); infra notes

7074 and accompanying text (concerning interdisciplinary work). 52 See COLUM. 195455 GRADUATE BULL., supra note 23, at 5 (describing resources available

to J.S.D. candidates); Memorandum from Russell N. Fairbanks to Members of the Graduate

Instruction Committee, Ford Foundation Presentation (Sept. 29, 1966) (attached letter to

William Pincus at 23), Walter Gellhorn Papers, Box 151 (Folder Professor Gellhorn /

Graduate Information), University Archives, Rare Book & Manuscript Library, Columbia

University in the City of New York [hereinafter Fairbanks to Committee 9/29/66] (The Ford

teaching fellows who were chosen to spend a year in reflective study, acquired deeper

insights into the functioning of law in society and into laws sources, philosophy, and

relations with other social sciences and institutions.); Memorandum from Walter Gellhorn to

Faculty of Law (Jan. 30, 1976), Special Collections, Arthur W. Diamond Law Library,

Columbia University, Box Law School Archives / Graduate Legal Studies [hereinafter

Gellhorn to Faculty 1/30/76] (providing comments from former J.S.D. candidates concerning

the broadening effect of their year in residence); Letter from Robert R. Wright to Walter

Gellhorn (Sept. 16, 1975), Walter Gellhorn Papers, Box 164 (Folder Columbia Fac. 19751976),

University Archives, Rare Book & Manuscript Library, Columbia University in the City of

New York [hereinafter Wright to Gellhorn 9/16/75] (commenting, as Dean of a state school

outside the top tier, on the important broadening effect Columbias program provides

graduates of non-elite institutions); Griswold, supra note 25, at 27881 (discussing the aims of

graduate student work); Memorandum from Olin L. Browder, Jr. to Members of the Graduate

and Research Committee, The Domestic Graduate Program 12 (Feb. 10, 1965), University of


collection, Subseries: Deans Files, 18521975, Box 54 (Folder Graduate Office) [hereinafter

Browder to Committee 2/10/65]:

[T]here is nothing quite like being immersed and uninterrupted and

largely alone for a year in some untidy but challenging spot in the law for


Teacher training also increasingly included instruction on the purposes and methods of legal education. Here Columbia was the real leader. The school required its Seminar in Legal Education of teaching prospects after the war, as it had in the late 1930s.53 By 1955 Harvard and Michigan had established their own Seminars in Legal Education (in Michigans case, at the instigation of Columbia J.S.D. graduate John Reed),54 and by 1954 N.Y.U. was offering such a seminar in connection with a new summer teacher training program.55 Some of the schools also instituted teaching

unleashing such creative talents as one possesses. To have such an

experience in a lively institution of the first rank, in the company of

others similarly engaged, and with the opportunity to resort to the

cultural benefits of an academic community at large, can so nourish the

seed of scholarship that our budding scholar will become committed and

cherish the experience so long as he lives.

Id. at 4 (noting the importance of training that will challenge a man and stretch him to the

limits of his ability); YALE 196365 DEANS REPORT, supra note 38, at 19 (For young teachers

in/graduates of small U.S. law schools, a years residence in a major university is an event of

crucial importancenormally a turning point in their development.); Letter from Quintin

Johnstone to Myres McDougal (Oct. 9, 1950), Myres Smith McDougal Papers, Manuscripts

and Archives, Yale University Library, Accession no. 1995M002, Box 54 (Folder Johnstone,

Quintin)

Kansas certainly is not Yale. The transition back to a conventional law

school is not easy to make. A full blown law, science and policy course is

needed here to blast into the students (and facultys) heads that there is

more to the law than a set of doctrinal Corpus Juris rules.

53 Columbia Univ., Announcement of the School of Law for the Summer, Winter and Spring

Sessions 194849, COLUM. U. BULL. INFO., July 17, 1948, at 46 [hereinafter COLUM. 194849

BULL.]; Columbia Univ., Graduate Studies of the School of Law 195758, COLUM. U. BULL. INFO.,

Apr. 13, 1957, at 5 [hereinafter COLUM.195758 GRADUATE BULL.]. 54 Concerning Harvards seminar, see Harvard Univ., The Law School Courses of Instruction

Academic Year 195354, OFFICIAL REG. HARV. U., Apr. 15, 1953, at 51 [hereinafter HARV. 1953

54 BULL.]; David F. Cavers, The Seminar in Legal Education, HARV. L. SCH. BULL., Apr. 1956, at 3.

Several years later, the seminar became a non-credit Colloquium on Legal Education. Harvard

Univ., The Law School Catalogue for 196162, OFFICIAL REG. HARV. U., Apr. 4, 1961, at 8283. As

to Michigan, see Olin L. Browder et al., Report and Recommendation of Curriculum

Committee re Proposed Seminar in Legal Education as Part of Graduate Curriculum 4 (Feb.

23, 1955), included with Mich. 2/25/55 Minutes, supra note 21 [hereinafter Browder Report

2/23/55]; Letter from John W. Reed to Paul R. Hays (Sept. 13, 1955), Paul R. Hays Papers, Box

27 (Folder Graduate StudentsJohn W. Reed), University Archives, Rare Book & Manuscript

Library, Columbia University in the City of New York [hereinafter Reed to Hays 9/13/55];

Univ. of Mich., Law School Announcement 19581959 With List of 1957 Graduates, U. MICH.

OFFICIAL PUBLICATION, Dec. 24, 1957, at 19 [hereinafter MICH. 195859 BULL.]. 55 See sources cited infra note 95.


fellows programs in which graduate degree candidates could participate.56

Finally, teacher training included two other things. The first was research. By the 1950s, research was an acknowledged function of the full-time law professor, if not as deeply entrenched a function as it is today.57 One important function of research training, then, was to inculcate habits of scholarship that would result in valuable research products later in the

56 For example, Columbia instituted an Associates programessentially a teaching fellows

programbeginning in 1948, and beginning in 1953 J.S.D. candidates became eligible to

participate in that program through an extended residency period. YOUNG B. SMITH,

COLUMBIA UNIV., REPORT OF THE DEAN OF THE SCHOOL OF LAW FOR 194748, at 11 (May 17,

1948) [hereinafter COLUM. 194748 DEANS REPORT]; William C. Warren, Report of the Dean of

the School of Law, June 30, 1954, COLUM. UNIV. BULL. INFO., Feb. 5, 1955, at 15 [hereinafter

COLUM. 195354 DEANS REPORT]; Columbia Univ., Announcement of the School of Law for the

Winter and Spring Sessions 195354, COLUM. U. BULL. INFO., Sept. 26, 1953, at 10, 17 [hereinafter

COLUM. 195354 BULL.]; Columbia Univ., Announcement of Graduate Studies of the School of Law

195657, COLUM. U. BULL. INFO., Sept. 22, 1956, at 25 [hereinafter COLUM. 195657 GRADUATE

BULL.]. George Washington instituted a similar program in 1953, though the only degree

offered in connection with it was an LL.M. See George Washington Univ., The Law School

195354, GEO. WASH. U. BULL., Feb. 1953, at 19 [hereinafter G.W. 195354 BULL.]; George

Washington Faculty Interviews (on file with author). N.Y.U. also offered teaching fellowships

that permitted a modified program toward an advanced degree. N.Y. Univ., Graduate

Division of the School of Law, Announcement for the 61st Session 195152, N.Y.U. BULL., Sept. 24,

1951, at 27 [hereinafter N.Y.U. 195152 GRADUATE BULL.]. Harvard established a similar

Teaching Fellows program in the late 1940s, but did not permit Fellows to simultaneously

pursue a graduate degree until the early 1960s. See Erwin N. Griswold, Law School, in ISSUE

CONTAINING THE REPORT OF THE PRESIDENT OF HARVARD COLLEGE AND REPORTS OF

DEPARTMENTS FOR 194849, OFFICIAL REG. HARV. U., Apr. 30, 1952, at 420, 421 [hereinafter

HARV. 194849 DEANS REPORT]; Harv. Ford Report 12/64, supra note 35, at 2. However,

Harvards longstanding Ezra Ripley Thayer Teaching Fellowship, which was almost the

equivalent of a visiting professorship, was available to graduate students, and three mid-

1950s fellows ultimately earned the S.J.D. See HARV. 195354 BULL., supra note 54, at 100;

Minutes of a Faculty Meeting (Feb. 5, 1952), Harvard Law School, Minutes of Faculty

Meetings, 18701965; Minutes of a Faculty Meeting (Apr. 8, 1952), Harvard Law School,

Minutes of Faculty Meetings, 18701965; Database, supra note 7. Yale began offering a Tutors

in Law program to supervise first-year student writing assignments in the mid-1950s, and

some graduate students were appointed Tutors. Eugene V. Rostow, The Deans Report, YALE L.

REP., Winter 1958, at 4, 9. [hereinafter YALE 195657 DEANS REPORT]; YALE 1962 DEANS

REPORT, supra note 26, at 1011. Whether these Tutors degree requirements were modified to

facilitate their participation is unclear. The program eventually disappeared. STEVENS, supra

note 36, at 212. 57 See, e.g., 1943 AALS REPORT, supra note 18, at 151 (noting that legal scholarship is part of

[t]he [v]ocation of the [l]aw [p]rofessor); Cavers (2/57), supra note 49 (observing that

evidence that a candidate for a law teaching position can write for publication is warmly

received).


persons career.58 This kind of training included help with formulating a research projectone that was both topical and connected to broader conversations in the particular field, society, and about law.59 Such training also involved giving feedback on the students work in progress, and help in producing a high-quality result. More generally, research training helped stimulate creative insight and clarity of thought, qualities that enhanced not only the research product but also students teaching ability.60 Second, some of the schools emphasized helping students acquire an in-depth knowledge of their fields. This was accomplished partly through individual research projects, but also through related course

58 As Michigans Olin Browder put it:

If we are going to subsidize a graduate program at all, I do not think we

can justify it on the basis that we will get the best immediate research

results that our money will buy. If we are going to attract men to, and

train them for, a life of scholarship and teaching, we will inevitably get

men whose potential for fruitful research has not yet been fully

developed. It is our business to develop it.

Browder to Committee 2/10/65, supra note 52, at 34; see also Minutes of the Graduate and

Research Committee 3 (Sept. 18, 1964), University of Michigan Archives, Bentley Historical

Library, Law School (University of Michigan) collection, Subseries: Deans Files, 18521975,

Box 54 (Folder Graduate Office) [hereinafter Mich. 9/18/64 Committee Minutes]; Legal

Research at Michigan / A Report of the Graduate and Research Committee to the Law Faculty

11 (Apr. 8, 1965) (as amended and approved by the Faculty, Apr. 23, 30, and May 5, 1965),

University of Michigan Archives, Bentley Historical Library, Law School (University of

Michigan) records 18521999, Subseries: Committees, Box 94 (Folder Graduate Research

Committee, 196569 (later Graduate and Research Committee) [hereinafter Mich. Report

4/8/65]; 1943 AALS REPORT, supra note 18, at 166. 59 See 1943 AALS REPORT, supra note 18, at 15657, 16769 (discussing expectations for

graduate student theses and dissertations); COLUM. 196263 DEANS REPORT, supra note 50, at

15 (No matter what topic may be chosen by the doctoral candidate as his specific area of

research, the emphasis of the program is on the development of a philosophical and broadly

synthetic approach to legal problems . . . .). At Yale, a synthetic approach typically

required structuring the dissertation according to the Lasswell-McDougal law, science and

policy framework. See Letter from Myres S. McDougal to Hessel E. Yntema (Apr. 7, 1959),

Myres Smith McDougal Papers, Manuscripts and Archives, Yale University Library,

Accession no. 1995M002, Box 58 (Folder Correspondence file Hessel E. Yntema); Yale

Faculty Interviews (on file with author); Luther L. McDougal III, Professor Myres S. McDougals

Contribution to Legal Education, 66 MISS. L.J. 27, 33 (1996). 60 See COLUM. 196263 DEANS REPORT, supra note 50, at 15; Griswold, supra note 25, at 280;

Durfee Report 3/10/44, supra note 43, at 3; Memorandum from Allan F. Smith & Samuel D.

Estep to Faculty, Proposal to offer an alternative program leading to the LL.M. degree or the

S.J.D. degree in connection with work done while employed by the Legislative Research

Center 3 (Nov. 2, 1954), included with Mich. 11/5/54 Minutes, supra note 21 [hereinafter Smith

& Estep to Faculty 11/2/54]; Mich. Report 5/1/59, supra note 26, at 2.


work.61

iii. The Doctorate in this Context

a. Formal Structure

At this point it becomes important to distinguish the LL.M. and the doctorate as components of the graduate world. The LL.M. was generally a one-year course-based degree that might or might not require a thesis. The doctorate, on the other hand, took the form of a year in residence involving some combination of coursework and research, followed by an additional period in which the student completed his or her dissertation.62 There were three basic paths to the doctorate: direct admission, admission after some period of work on a non-degree basis, or admission after completing an LL.M. degree.63 At some schools, the doctorate was the only degree

61 This seems to have been particularly important for N.Y.U. See infra notes 13032 and

accompanying text. See also Cavers (2/57), supra note 49, at 11 (noting the utility of intensive

work in a particular field); Edward S. Godfrey, Advanced Study for Law Teachers / Ford

Foundation Fellowships, HARV. L. SCH. BULL., June 1958, at 67 (speaking as a Ford Fellowship

holder). 62 See, e.g., COLUM. 195354 BULL., supra note 56, at 1618; COLUM. 195657 GRADUATE

BULL., supra note 56, at 4; Harvard Univ., The Law School Including Courses of Instruction for the

Academic Year 194950, OFFICIAL REG. HARV. U., Apr. 1949, at 4243 [hereinafter HARV. 1949

50 BULL.]; HARV. 196061 BULL., supra note 26, at 2931; Univ. of Mich., Law School

Announcement 19471948 With List of Graduates, U. MICH. OFFICIAL PUBLICATION, Jan. 2, 1947,

at 1718 [hereinafter MICH. 194748 BULL.]; N.Y.U. 194647 BULL., supra note 25, at 4243; Yale

Univ., Law School for the Academic Year 194748, BULL. YALE U., 1947, at 1115 [hereinafter YALE

194748 BULL.]; YALE 194849 DEANS REPORT, supra note 38, at 7. An exception: the LRC path

to Michigans S.J.D. typically involved a twoyear required residency. Smith & Estep to

Faculty 11/2/54, supra note 60, at 12. 63 At Columbia, the only stated approach was direct admission. See COLUM. 195354 BULL.,

supra note 56, at 10; COLUM. 195657 GRADUATE BULL., supra note 56, at 3. The approaches of

Harvard, N.Y.U., and Michigan were somewhat different. Until 1960, Harvard offered two

tracks to doctoral admission: either completion of the Harvard LL.M. degree with high

rank, or having demonstrated a special capacity for legal scholarship, evidenced, ordinarily,

by published writing. HARV. 194950 BULL., supra note 62, at 13. The latter approach

permitted direct admission to the S.J.D. For changes implemented in 1960, see infra note 107.

N.Y.U. permitted direct admission to the J.S.D. through 1949. N.Y. Univ., School of Law

Announcement for the One Hundred and Fifteenth Session 194950, N.Y.U. BULL., Jan. 3, 1949, at

47 [hereinafter N.Y.U. 194950 BULL.]. In 1950, it began to require a prior LL.M. degree (from

N.Y.U. or elsewhere) with an average of at least middle B, except if the applicant were a

teacher in an approved law school. At the same time, the school also began to require the

applicant to submit a published law review article or its equivalent as evidence of his

ability to do independent legal research. N.Y. Univ., School of Law Announcement for the One

Hundred and Sixteenth Session 195051, N.Y.U. BULL., Jan. 28, 1950, at 52; N.Y.U. 195152


available after admission. Elsewhere, the student might also earn an intermediate LL.M. degree at the end of the year in residence.64

The structure had two consequences. First, depending on the students path to the doctorate, the required residency would be either one or two years.65 Self-evidently, the length of residency had a major impact on what the student gained from the degree. In particular, there was a tension between the intellectual broadening function of the degree and the need to complete a dissertation on a relatively narrow topic. For students admitted directly to the doctorate, this placed particular demands on the year in residencespecifically the appropriate balance between coursework and writing during that year. Most of the schools, for example, required or encouraged some broadening courseworktypically two or three seminars

GRADUATE BULL., supra note 56, at 16. At Michigan, students initially were admitted only to

graduate study; the students classification in regard to degree candidacy [was] determined

after a period in residence based on his or her academic performance during that period.

MICH. 194647 BULL., supra note 25, at 14; MICH. 195859 BULL., supra note 54, at 15. Until the

late 1950s, the relevant period was a semester, see MICH. 194647 BULL., supra note 25, at 14;

this then became a year, see MICH. 195859 BULL., supra note 54, at 15. Students hoping to earn

the S.J.D. would pursue a course of study during the year in residence designed to satisfy the

S.J.D. requirements, but [f]inal admission as a candidate for the S.J.D. [did] not take place

until near the end of [the students] year in residence. To All Graduate Students Who Plan to

Qualify for the S.J.D. Degree 1 (undated, probably around 1957), University of Michigan

Archives, Bentley Historical Library, Law School (University of Michigan) records 18521999,

Subseries: Committees, Box 94 (Folder Graduate Research Committee, 195460 (later Graduate

and Research Committee)) [hereinafter Mich. S.J.D. Instructions]. The reason for the separate

admission to candidacy decision was to weed out the considerable number of students who

were not likely to submit a satisfactory thesis. John P. Dawson et al., Report of the Committee

on Graduate Work (undated, probably 1951), University of Michigan Archives, Bentley

Historical Library, Law School (University of Michigan) records 18521999, Subseries: Topical

Files, Box 102 (Folder Graduate and Research Committee, 19481955) [hereinafter Mich.

Report 1951]. As to Yale, see infra notes 97101 and accompanying text. 64 Columbia authorized the conferring of an intermediate LL.M. degree in 1930, and

Michigan adopted the same approach in 1941. See Hupper, Origins, supra note 7, at 46, 4849.

Yale followed suit in 1947. Yale 12/11/47 Minutes, supra note 15. Starting in 1950, N.Y.U. J.S.D.

graduates who were law teachers before starting seem to have earned the LL.M. along the

way, which suggests that N.Y.U. granted an interim LL.M. as well. Among those who earned

the Harvard S.J.D. in the 1950s, a prior LL.M. was exceptional. See Database, supra note 7. 65 There is some ambiguity as to whether Harvard S.J.D. candidates normally did one or

two years in residence. Compare Database, supra note 7 (showing that only one of the schools

S.J.D. graduates during the 1950s had done a second year of residence), with Rice Memo 7/54,

supra note 27, at 3 (noting that, at Harvard, two years of residence, except for those who have

had teaching experience, is usual for achievement of an S.J.D. degree). See also HARV. 196061

BULL., supra note 26, at 3031 (permitting LL.M. candidates who transfer to the S.J.D. to count

the LL.M. as their S.J.D. residency year); HARV. REPORT 9/64, supra note 49, at 91 (A number

of candidates for the doctorate now spend only one year in residence . . . .).


in jurisprudence, legal theory, comparative or international law, and/or legal education.66 A few schools went further than this, also requiring coursework that supported the dissertation.67 On the other hand, some schools (particularly Colu

hupper: educational ambivalence

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