Legally Bland: Harvard Law School in the 20th CenturyJohn Thelin | Professor of Higher Education and Public Policy, University of Kentucky
Today Harvard Law School is prominent and prestigious. How did it achieve this stature? A good explanation comes from Bruce Kimball and Daniel R. Coquillette whose new book about Harvard Law School in the twentieth century is built on great historical research about a great institution. It avoids both celebration and sensationalism
This book is sober and sobering. The authors rely on memoirs, official records, budgetary analyses, data on admissions, and other primary sources that render their study both thorough and fair. It is well written and tells a fascinating and complex story that is often surprising. Exemplary of this is Chapter 15, “The Harvard-Yale Game, 1900-1970,” which transfers the American spirit of Ivy League competition from the football stadium to the high-stakes arena of law school rivalries.
A disconcerting message is that Harvard Law School is a leading institution that often has not been a leader. It often is “legally bland.” Inertia and insularity, ranging from admissions and education to fundraising and governance have been persistent features of the organizational culture. Every college needs a motto and a legend. For HLS, its Dean proclaimed in the 1890s that it stood for the “Intellectual Sword” and “Neither gives nor asks for quarter.” That was a bold statement, especially since it has not been evident that HLS has always fulfilled that promise, nor is it clear that it’s a very interesting approach to sharpening the intellect of future lawyers. Harvard Law School’s reputation often has surpassed its realities of demonstrated excellence in teaching and research.
By 1900, HLS had a distinctive curriculum defined by emphasis on case studies. Its admission policy was selective in that it required all entering students to have earned a bachelor’s degree. It also had a large endowment. A decade later, HLS hired a new dean, Ezra Thayer, who epitomized “The Bright Young Men of 1910.” He had been first in his class at Harvard College and then, first in his class at HLS. How and where did he lead HLS? He struggled with his teaching, once noting that his coming year of teaching would be good because it could not possibly be as bad as the previous He could not bring himself to complete writing an article. He fell way short on fundraising goals. He oversaw a teaching model that emphasized low tuition, easy admission, followed by high attrition rates. Unsurprisingly, HSL alumni did not think fondly of their alma mater and gave little back to it in donations. HLS eroded its once substantial endowment. The tragic ending was that the dean could not fit into the very model he championed. He committed suicide in 1915.
This was not an isolated instance of institutional excess. Rather, it was one of many dubious practices pervading HLS. Consider the case of Edward “Bull” Warren – the legendary professor encountered by generations of Harvard first-year law students (known as “One L’s”) whose teaching style of hard-nosed questions and grilling combined with insults to students whose responses in class he did not find adequate. On balance, The Bull was a bully. His advocacy for what came to be known as a “Spartan” culture was dysfunctional, yet, unfortunately, was influential over many decades. One account described studies at HLS as “an elimination contest.”
The quantitative data over time illustrated this qualitative claim that deans seldom explained their decisions with reasonable accountability. HLS adopted a financial model of low tuition, easy admission, followed by a high drop-out rate. It was not unusual in the 1920s to have a total enrollment of over 700 students, taught by nine professors–-and with an attrition rate between 25% and 37% at the end of the first year. An academic culture of faculty indifference promoted disdain for many students. Core practices of teaching and learning were based on beliefs whose effectiveness were either untested or untestable. Course grades were based on a year-long term and a single final exam. HLS predictably admitted a lot of applicants it knew were not good students. Flunking them out was good riddance but bad educational practice. Nonetheless, the culture persisted. After World War II faculty worried that HLS was “getting soft,” a violation of the codes of the “Spartan culture.”
Was the “Spartan culture” really fostering the “Intellectual Sword” of “no quarter”? What was “intellectual” about bullying, brow beating, and argumentation? How did HLS faculty know that they were rewarding genuine analytical abilities and professional talent? There was little indication that in the late- and mid- 20th century, HLS professors and their courseswere connected with the great, diverse scholarship taking place elsewhere on university campus in numerous academic disciplines that might have enriched the study of law.
By 1950, the new dean, Erwin Griswold, showed some signs of improvement, as HLS was able to raise money. Unfortunately, he was more adept at spending it, leaving the school with a relatively low endowment and chronically dependent on tuition revenues. A major fundraising campaign in 1970 did meet the goal of raising about $15 million, but it included no major gifts from HLS alumni. HLS did not have an impressive, successful capital campaign until the 1990s.
More troubling than the fundraising shortfalls was the finding that there was little transparency or accountability for the myriad decisions that shaped the present and future of HLS. Admissions was selective, but the resulting entering classes were homogeneous in gender, race, ethnicity, college origins, and family income. Faculty vacancies were seldom if ever advertised. Criteria for tenure and promotion were vague, and there were few announcements about faculty records in scholarly publication. Grading students in courses continued to be tied to an arcane point scale that was then transposed into “class ranking,” an approach that perpetuated reliance on insignificant differences. This was the coin of the realm in determining awards and rewards, such as selection for the editorial board of the student journal, The Harvard Law Review.
The HLS professors who were demanding in their expectations of student exam writing, were often unclear and inconsistent in their own writing and in their own judgements of faculty scholarship. Even as late as 1978 the HLS faculty awarded promotion with tenure to a young professor who had never published an article, let alone a book.
Shared governance was not impressive. When faculty did consider reforms, the results were underwhelming. Between 1979 and 1981, one faculty committee on educational planning and development failed to deliver a report. Authors Kimball and Coquillette also reported substantial signs of hatred toward one another within the factions of the HLS faculty.
HLS did not have an exemplary record in searching widely for diverse talent, whether in student admissions or faculty hires. After World War II, women were finally admitted, but they represented a small percentage of the HLS student body. Once enrolled, many of the faculty treated them with indifference or disdain. It was acceptable for one professor to refuse to call on women students in classroom discussions except during designated sessions he called “Ladies’ Days.” Ruth Bader Ginsberg, prominent and respected now as a Supreme Court Justice, entered HLS in fall 1956, and at the end of two years, was first in her class. Yet, she did not receive her law degree from Harvard because her request to complete her third and final year at Columbia Law School so that she could care for her seriously ill husband who lived in New York City was turned down by the dean. Analysis of the professional paths of the pioneering women at HLS indicated that their job offers were limited, whether in law firms, courts or academia. The Class of 1974 marked the first year that women represented more than 10% of the entering student cohort.
How then, did HLS manage to maintain a strong reputation? One partial explanation is that being part of Harvard University provided a halo effect leading to reflected prominence. My estimate is that the strong reputation has been due largely to the HLS students. HLS has long been one of the largest law schools in the United States. Since the 1930s this usually has meant an annual enrollment of about 1,600 students. And, whether by accident or design, within that relatively small group, there have been a large number of excellent students. Perhaps many did good work independently from the HLS ethos? There were flashes of defiance, such as the students of the ‘70s known as “The Harvard Backbenchers,” who refused to participate in contentious debates.
Evaluating the achievements of alumni is difficult. HLS can, of course, take justifiable pride in the fact that in 2020, five of the nine Supreme Court Justices of the United State had attended HLS. That is, however, only one sample of assessing students and alumni. Most HLS graduates in recent years have pursued careers at major corporations and established law firms.
Authors Kimball and Coquillette end their history of HLS in the 1980s. Reading this memorable study leaves us with lessons from the past and perhaps some prospects for healthy change at HLS in recent decades. It’s an important case study because HLS has had great influence on law schools and all professional schools nationwide whether in the 19th or 21st century.
Author Perspective: Administrator