Vol. 16 No. 3 (March, 2006) pp.261-263

 

YALE LAW SCHOOL AND THE SIXTIES: REVOLT AND REVERBERATIONS, by Laura Kalman. Chapel Hill: University of North Carolina Press, 2005.  488pp.  Cloth $49.95.  ISBN: 0-8078-2966-8. 

 

Reviewed by Patrick Schmidt, Department of Political Science, Southern Methodist University, email: pdschmid [at] smu.edu.

 

There were moments in the first 359 pages of Laura Kalman’s YALE LAW SCHOOL IN THE SIXTIES, to the end of the Epilogue, when one question in particular rattled around my brain.  When I turned to page 360, the beginning of an Afterword, I found Kalman articulating it: “A story about Yale Law School raises an obvious question. So What?”  But in seeing the question on the page, I immediately disavowed the thought and proclaimed that Kalman worried too much.  If “the sheer joy of telling” (p.360) is not enough, the responsibility to our collective memory justifies the historian’s task.  Every institution has its story, and each is worth collecting.  Yet, in reaction, my question morphed: why should anyone read this?  Having read, as distractions in the library, the institutional histories of various universities and law firms (frequently self-glorifying), I know that you do not have to dig very deep to find both intriguing politics and some echo of the zeitgeist in individual cases.

 

Kalman’s counsel in the Prologue that the institutional history of Yale Law only periodically brings its intellectual history to the fore (pp.8-9) and heightens the importance of the “why read it” question.  The conflict between students and faculty at Yale in the tumultuous late sixties mirrored conflicts around the country, so ideologies particular to Yale do not drive much of this tale, though they are never completely divorced from it.  Given that Kalman’s concerns lie elsewhere, why push forward?  If one does not have a personal connection with Yale, then the biggest reason to undertake a history of the law school might be that it was (and is) the stomping ground of giants, names we have known since we confronted graduate school reading lists.  The faculty portrait on page 78 (with some absent faces) is a who’s who—to name a few: David Trubeck, Robert Bork, John Hart Ely, Alexander Bickel, Thomas Emerson, Richard Abel, Charles Black, Ronald Dworkin, William Felstiner, Harold Lasswell, Charles Reich, and Fred Rodell.  The lure of some background gossip and spice (albeit with the historian’s distance) might be enough.  For those appreciative of Kalman’s approach in her other work, particularly LEGAL REALISM AT YALE, 1927-1960 and THE STRANGE CAREER OF LEGAL LIBERALISM, it might not.  This is not a story of mere personality, however.

 

The book begins against the backdrop of Langdell and the legacy that formalism left on legal education, with the Socratic method that, in the wrong hands – i.e. a professorate with pretensions – can be downright abusive.  Never far from the background, too, is Harvard, which dominates the very self-conscious community at Yale Law.  The long legacy of legal realism, then, both as a [*262] scholarly agenda and an approach to legal education, was to create some separation between the two schools.  Students who chose Yale Law did so for its reputation of progressivism and engagement, against Harvard’s commitment to legal process and its gateway to corporate law practice.  The reality was much less dramatic and noble, at least as it seemed to the Class of 1970 entering in 1967.  Here begins “the sixties”—indeed, Kalman’s title is misleading, because “the sixties” is not a chronological period but a mood brought to Yale by these students.

 

The heart of the book (Chapters 3 to 7) explores in great detail and with considerable skill the campus politics of 1967 to 1970.  With campus newspapers and meeting minutes exposed to view, Kalman lays out the goals and strategies of the leftist students fighting a faculty that felt conflicted in responding to calls for reform.  Joining the fray are the newly-emergent women and African American students.  The first fights concerned legal education, including the grading system and a (failed) quest for shared student-faculty governance.  Fueled by the counter-culture that flourished at Yale – the image of the inflatable structures in the law school courtyard, hosting Cosmic Labs “alternative reality” events is simply wonderful – the limits to reform radicalized the students and drove movements toward national issues and more fundamental challenges to the system.  Similar accounts have been written about the conflicts at other schools, and Kalman carefully attends to the parallels and divergences with those, just as she reflects on the general lessons that Yale Law offers for legal education and social change.  It is a testament to the importance of Yale both then and now that its politics shed light for the reader on the contours of issues ranging from affirmative action to RUMSFELD v. FAIR.  Further, the historical trail that Kalman produces is rich enough to allow those with other theoretical interests to write their own history of this period.  The dynamics of legal professionalism in the academy is one such possibility, as made explicit when Alexander Bickel defends faculty governance to student representatives by saying, “We’re professionals and . . . we have professional responsibilities.  You wouldn’t vote on a surgeon’s techniques” (p.129).  Nevertheless, the history in these chapters, as Kalman chose to write them, stands as a fine study of campus politics in the sixties, with a bonus that this story includes a law school student named Hilary Rodham.  Kalman’s historical approach is refreshingly honest, with a neutrality that never disables her ability to pass judgment on the ambition and logic of the parties to the conflict.              

           

Campus politics at Yale, and Kalman’s substantial volume, takes a turn to the next phase of the “sixties” in 1970, when a fire struck the law school library.  The fire was assumed arson (the evidence remains thin) but it unified the law school community, and with it the height of radicalism burned out.  Chapter 8 painstakingly details the early-1970s “purge” of six junior faculty members (including Trubek and Abel) as a way of understanding how significantly the sixties affected the faculty.  More importantly, for the book as a whole, the failure to promote or tenure these six changes Kalman’s agenda.  With [*263] honesty she writes, “I have struggled with this period in the law school’s history, often waking up one morning with the opposite opinion of the one I had the day before” (p.239), before noting that “the cases must be seen as intellectual, as well as institutional, history” (p.240).  What would become of legal liberalism and Yale’s legal realism?  Along with the second half of Chapter 8, Chapter 9, “The Most Theoretical and Academically Oriented Law School in America,” will undoubtedly be the favorite chapter for many readers, because it brings wider meaning to Yale’s institutional history (and the competition with Harvard) by exploring the path of Critical Legal Studies, the New Legal Process, and to a lesser extent other movements such as Law and Economics.  Numerous scholars receive attention, from Rawls to Ackerman and Mashaw to Minow, providing a useful window on the intellectual map of the present day.  The only drawback of this chapter may be that it does not stand alone very well; so much depends on the 272 pages that come before it.  The denouement blends the institutional history back into this intellectual one, to learn how Yale recovered, post-1970, just fine.  Kalman’s choice of a photo (p.356) tells it all: the visit from two alums, student political leaders in the vital period who, two decades later, were the occupants of the White House. 

 

That ironic juxtaposition of radicals becoming the establishment is emblematic of the greatest conclusions Kalman offers, which concern legal education more than legal ideas.  For whatever the depth of the radical challenge and the “crisis” that gripped the campus, today the continuities outweigh the differences.  No better testament to how far (or, rather, how little distance) legal education has come can be found than the journey of Duncan Kennedy through this book.  Author of “How the Yale Law School Fails—A Polemic,” an assault on the “collective terror” of the Socratic method as practiced while a student in that vanguard class of 1970, Kennedy ended up a professor at Harvard Law School as a Langdellian instructor of doctrine (p.361), albeit with a politically-conscious touch.  These are important observations available to us here with the historian’s perspective, skillfully done.  Although page-by-page much of the “action” seemingly will be of interest only to those vested in Yale’s inside baseball, in the aggregate Kalman has produced an institutional history that is very much worth reading. 

 

REFERENCES:

Kalman, Laura. 1986.  LEGAL REALISM AT YALE, 1927-1960.  Chapel Hill: University of North Carolina Press.

 

Kalman, Laura.  1998.  THE STRANGE CAREER OF LEGAL LIBERALISM.  New Haven: Yale University Press. 

 

CASE REFERENCE:

RUMSFELD v. FORUM FOR ACADEMIC AND INSTITUTIONAL RIGHTS (FAIR), 547 US ___ (2006).

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© Copyright 2006 by the author, Patrick Schmidt