New England Law Review: Volume 49, Number 3 - Spring 2015

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

GAIL J. HUPPER*

[49 NEW ENG. L. REV. 319 (2015)]

To its array of innovative legal programs, Yale Law School has added yet another—a Ph.D. in Law. Yale’s 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 School’s other very successful law teaching degrees—the 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

Yale 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 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. Chicago’s 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 outside—i.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 program’s 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 School’s other very successful law teaching degrees—the 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 degree—teaching back in their home countries.

Though plausible, this explanation ignores the history of the J.S.D. degree. In fact, Yale’s 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 Yale’s 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 Yale’s 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 schools—now 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 degree’s 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 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 war—the unique learning opportunities it afforded, its relative ease of completion, and its prestige—began to fade soon after the war’s end. Moreover, after the war, the fanfare of the Legal Realist movement gave way to a return to legal education’s 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 master’s or non-degree level, a few schools—Yale among them—experimented 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 degree’s 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 doctorate’s story is a chapter in the continuing saga of legal education’s 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 law—i.e., to other disciplines—to 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 doctorate’s history is one small piece of the larger story of how we reached where we are today.

I. Historical Background

Today’s 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 Yale’s 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 followed—B.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 continental curriculum—jurisprudence, 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 Pound’s 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, Harvard’s 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 lion’s share of the country’s 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 degree’s 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 exercise—a way to propagate their faculty’s 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 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 doctorate’s 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 Philippines—areas in which American lawyer-missionaries (to borrow Paul Carrington’s 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 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 Yale’s 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.

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 master’s-level degrees far outnumbered those working towards doctoral degrees.²² Moreover, the purposes of graduate work varied. For U.S. students, these purposes included teacher training and research at both the master’s 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 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 1950s—probably the high water mark in the availability of graduate fellowship funding—Columbia, 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

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 war—Erwin Griswold of Harvard and Wesley Sturges of Yale—both held doctorates from their respective schools. Griswold seemed to have a particularly strong personal commitment to graduate work. He served on Harvard’s Graduate Committee for much of the 1950s,²⁷ and published an enthusiastic article about the school’s 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 Washington’s Dean in 1953; and John Ritchie, Yale J.S.D. 1931, who was Dean at Wisconsin from 1953 to 1957.

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 Michigan’s full-time faculty held the degree during the same period, and by 1956, close to 25% of Wisconsin’s 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 master’s-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.

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 degree’s 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 era’s top schools.³⁰

1. For Teacher Training

Before World War II, teacher training had been the main purpose of the doctorate at Harvard, Yale, Columbia, and Michigan—the 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 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 leadership—a 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 schools—an 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 then the leading suppliers of the country’s law teachers.³⁷ At Yale, a seminal 1946 report of the Curriculum Committee articulated the school’s 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 Harvard’s 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 school’s 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

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 country’s 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 objectives—second 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 doctor’s degree in law.⁴³

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 school’s new Dean, Arthur Vanderbilt, spearheaded an enormous effort to upgrade the school’s image.⁴⁴ Vanderbilt’s 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 school’s 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 school’s growing success. A graduate teacher training program became one of his signature projects.⁴⁶

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 Yale’s 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

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 McDougal’s 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

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 Michigan’s 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 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 person’s career.⁵⁸ This kind of training included help with formulating a research project—one 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 student’s 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 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 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 student’s 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 residence—specifically the appropriate balance between coursework and writing during that year. Most of the schools, for example, required or encouraged some broadening coursework—typically two or three seminars 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 Columbia and Michigan) also expected students to get a significant amount of research and writing done on their dissertations.⁶⁸ Tipping the balance too far in either direction came at a cost.⁶⁹

This balancing act would place a particular strain on work that purported to draw on other disciplines. This had been a preoccupation of Columbia’s and Yale’s programs before the war, with limited success. After the war, more schools encouraged this kind of work. At Yale, the Lasswell/McDougal framework was required learning in the graduate program, and the school also offered various courses integrating social science thought.⁷⁰ At Harvard, S.J.D. candidates had access to other University resources, and the school also offered a few joint seminars with other university departments.⁷¹ Michigan’s Legislative Research Center studies, which were a common form for the dissertation, drew on insights from other disciplines.⁷² N.Y.U.’s summer teacher training programs periodically offered an interdisciplinary course.⁷³ By the 1960s, the law doctorates generally permitted coursework in other departments.⁷⁴ However, interdisciplinary methodologies were still in their infancy, even for people with time to devote.⁷⁵ For the S.J.D. or J.S.D. student, one or two courses, on top of everything else he or she was doing, would not be nearly enough.

There was a second consequence of the doctorate’s structure. The requirement (or option) of an interim LL.M. before the doctorate meant that many people who had moved to the dissertation phase already held an LL.M. degree. One did not need to have completed the doctorate to find a teaching position—indeed some two-thirds of those who earned the doctorate from Columbia, Harvard, or Yale between 1946 and 1969 either found or returned to teaching positions immediately after finishing the year in residence.⁷⁶ However, the interim LL.M. could be a useful badge of achievement, particularly for people who were looking for, as contrasted with returning to, teaching positions.⁷⁷ Once someone was teaching, the incentive to finish the dissertation fell dramatically. Moreover, finishing the dissertation took time, and the press of teaching and other duties prevented people from doing so unless they could take additional time off.⁷⁸ Over time, this had an important impact on both the number of doctorates conferred and the prestige value of the degree.

b. How the Schools Treated the Degree

Otherwise, the main differences between the doctorate and the LL.M. were selectivity and prestige. As the schools’ primary teacher training vehicle before the war, the doctorate was by far the more prestigious of the two degrees. Its perceived benefits were threefold: the fact that the student acquired valuable knowledge from pursuing it; the doctor appellation, which suggested high achievement in an academic discipline;⁷⁹ and the fact that it was conferred by the era’s leading law schools. As such, the degree had been sought after before the war, and some very talented people pursued it. There were limits, however. As the schools themselves admitted, many who earned the doctorate were not particularly strong academically. And most law teachers, including many stars of the era, had no graduate degree at all.

The doctorate’s prestige, such as it was, had two major second-order effects. First, merely offering the degree could be a mark of distinction for the school. During the 1940s, for example, the special AALS committees had resisted ABA pressures to regulate graduate work, on the grounds that (a) graduate degrees had nothing to do with the ABA’s central concern, which was the training of practicing lawyers, and (b) regulation would inhibit the schools’ freedom to experiment.⁸⁰ The implication was that the schools offering graduate work were a cut above the vast majority of schools, whose sole preoccupation was training for practice.⁸¹ It was only when a broader range of schools began offering the doctorate that the top schools changed their tune, supporting regulation in order to guard against the debasement of the doctorate by institution of doctoral programs in schools that are incapable of administering them effectively.⁸² Second, maintaining the degree’s prestige required keeping admissions and degree requirements selective, but not to the point of pricing the degree out of the target student’s range.⁸³ Achieving the right balance proved to be tricky, as illustrated by the range of approaches the schools adopted after the war.

For many years, the LL.M. paled by comparison. Before the war, the LL.M. had been viewed variously as a degree for practitioners (as at Harvard), an intermediate degree for students who ultimately wanted the doctorate (as at Columbia and later Michigan), or as a kind of consolation prize for students whose performance did not warrant conferral of a doctorate (as at Yale and, to some extent, Harvard). Nonetheless, for a substantial number of people, the LL.M. had in fact been the terminal teacher training degree. This was particularly the case at Columbia, whose J.S.D. completion rate was unusually low. It was also the case at Harvard (though to a lesser extent), particularly after the school adopted a research model of the doctorate in the early 1930s.⁸⁴ The distinction became even less clear after the war.⁸⁵

Columbia and Michigan, for example, treated the doctorate as the centerpiece of their teacher training efforts after the war, reserving candidacy (and funding) for that degree to the most talented applicants.⁸⁶ For these schools, offering the doctorate as the centerpiece of graduate teacher training helped attract prospective teachers for a year of graduate study.⁸⁷ This continued well into the 1960s.⁸⁸ However, the degree’s completion rate remained low at both schools. Since both schools granted the LL.M. as an intermediate degree, that degree accounted for far more of the graduate students the school placed in teaching positions than did the doctorate.⁸⁹ As Columbia’s Walter Gellhorn would comment in 1958:

I am moved to ask whether we should reexamine our own requirements for the doctorate. I think I have one or two graduate students who are now about to become senior members of their respective law faculties; I can scarcely remember what it was we talked about in the dear old days when we agreed on their dissertation topics.⁹⁰

N.Y.U.’s posture was similar, but with a twist. There, upgrading the doctorate was one element of the school’s efforts to enhance its image. Before the war, the doctorate had not been particularly selective (despite occasional claims to the contrary), nor was it a vehicle for training teachers.⁹¹ This continued into the immediate post-war period: during the five-year period from 1946 to 1951, the school granted twenty-four J.S.D. degrees to U.S.-trained candidates, of whom only four went into teaching.⁹² Shortly after Russell Niles became Dean in 1948, he oversaw a radical upgrading of the standards for awarding the degree, limiting it only to the very few who have earned the high honor.⁹³ By 1954 he would comment that the J.S.D. has been limited primarily to law teachers and research scholars. As a consequence only one doctorate was awarded this year.⁹⁴ Meanwhile, N.Y.U. had instituted a summer teacher training program taught in part by distinguished scholars from other schools,⁹⁵ and shortly thereafter the school received a five-year teacher training grant from the Ford Foundation. The number of teachers who earned the N.Y.U. J.S.D. during the