Goldstein, Abraham S.

English

University of Miami School of Law

University of Miami Law Review Volume 21 Number 3 Article 3 5-1-1967 Education Planning at Yale Abraham S. Goldstein Follow this and additional works at: https://repository.law.miami.edu/umlr  Part of the Legal Education Commons Recommended Citation Abraham S. Goldstein, Education Planning at Yale, 21 U. Miami L. Rev. 520 (1967) Available at: https://repository.law.miami.edu/umlr/vol21/iss3/3 This Article is brought to you for free and open access by the Journals at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in University of Miami Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact library@law.miami.edu. EDUCATIONAL PLANNING AT YALE*ABRAHAM S. GOLDSTEIN**Professor Johnstone has asked me to speak about educational plan-ning at the Yale Law School. I should like to paint in broad and impres-sionistic strokes the intellectual currents which frame the inquiry we havebeen conducting at Yale over the past several years, and then try to setthose currents against some central problems of curricular planning.We cannot begin to talk about curricular development and plan-ning without understanding something of the impact of legal realism andthe functional approach upon our attitudes toward legal education, thework of the scholar within the law and the shape of the profession. Thelegal realist movement, which was largely a product of the '20's and '30's,set out to explode the notion that legal doctrine existed in a world apart.In a remarkable set of writings, it demonstrated in considerable detailthat there were important behavioral assumptions underlying legaldoctrines, that legal doctrine was not exclusively judicial in nature, andthat law could be understood only if its study encompassed not only thefull range of adjudicative processes but also the informal processes whichprecede and follow the trial and the legislative and executive institutionswhich precede and shape controversies and implement decisions. Therewas a great deal of pressure to see law and legal institutions in theiroperational setting-to examine the men who make doctrine, the institu-tions which apply it, and the institutions which compete with law in theperformance of social functions.It is all too easy to assume that the intellectual ferment of thatperiod and '30's was rapidly translated into detailed product. Nothing canbe farther from the truth. If you examine the literature, you will find theperiod of ferment followed by one of remarkable quiescence. The reasonfor the change is not difficult to find. The depression, the New Deal andWorld War II diverted much of the available intellectual energy towardreshaping the society. During that period, law and lawyers were toobusy doing to have much time to study what was being done. As aresult, we came to the period following World War II with legal scholarsnever having had the time, the resources, or the constancy of purposeto do what had been called for in the '20's and '30's.Meanwhile, law and legal institutions did not hold still waiting to bestudied. Both the New Deal and World War II introduced us to the eraof big government. Our experience with law as an instrument of socialaction made us turn more and more to law to solve the most fundamental* A paper presented at the Round Table on Curriculum of the American Associationof Law Schools, Washington, D.C., December 28, 1966.** Professor of Law, Yale University.LEGAL EDUCATIONproblems of the society. This development coincided with another phe-nomenon we have all noted and commented on again and again. As thehome, the church, and other elements in the society began to lose theircohesive force, "law" was increasingly looked to as a way not only ofexpressing preexisting norms but also of creating them.What problems result from all this? Most of us who came intoteaching after World War II felt quite keenly that we had been educatedby our teachers to adopt an institutional approach-an operational ap-proach, a close and critical approach-to a wide variety of legal institu-tions but the outlines had not been filled in. We had this marvellous in-tellectual heritage but we did not know, either technically or by way ofdetailed theory, what we were to do next. And as we reflected on our con-fusion, law was occupying ever more fields, creating ever more roles forthe lawyer and compounding the confusion we already felt about how todo the jobs the legal realists and the functionalists had urged upon us.If I may, I should like to translate these brush strokes to questionsof educational policy: To what extent is our curriculum tied to archaicconceptions of the profession and of law practice? To what extent havewe rationalized these archaic conceptions into a mystique of the lawyeras a generalist? To what extent have we committed our resources aseducational institutions to fields which are important only to certainsegments of the private practice of law, at the expense of other areaswhich may be more important either to the society or to the developmentof scholarship? And how can we bring into the curriculum, into ourteaching materials and into our research, the full range of considerationswhich are relevant to the several roles I have mentioned-the role ofthe lawyer as practitioner, the lawyer as public official and the lawyeras student of his own processes? We face these questions at Yale in asetting and in a school which wants to do everything equally well. Wewant to prepare lawyers for the Bar. We want to prepare them for publicservice and we want to prepare them to take the lead in scholarship andresearch of the most adventurous sort.As if these substantive questions were not enough, we confront themat a time when the society sends to us an entirely new breed of lawstudents, who are much more demanding and much more critical thananything we have ever encountered before. We have at our law school,and this is an increasingly evident phenomenon around the country,law students who are better educated than ever before. We now get largenumbers of students who know something about the disciplines which wehave been exhorting each other to incorporate into the study of law. Theycome to us as well-trained economists, political scientists, etc., hearing ofthe promise of the Yale Law School, the whisper of interdisciplinary ad-venture, looking at us suspiciously to see if we can deliver on the promises.These students come also as products of a period of prosperity. They lookUNIVERSITY OF MIAMI LAW REVIEWfar less than in the past to the practicing lawyer or to the Bar examinationto see what courses they should take. They tend to follow genuine interestsand intellectual excitement. In short, they begin to resemble the generalclass of university students and to move away from the professional moldwhich had previously held them. Though they are more talented thantheir predecessors, they are less certain of their professional identification.And they are probably more moved to social action by a society whichmakes evident its reliance on law to solve its most complex legal problems.In this time and place, with these currents and these students, wehave tried through a broadly based educational planning committee todeal with a few major problems. We found ourselves operating withincertain assumptions which proved to be widely shared. The first of theseis that planners should not create structures which bind too tightly orwhich are not congenial to the institution and its resources. We agreedfairly early that we wished to retain the ideal of the relatively small lawschool-to put against the pressure for large size a counter pressurefor intimacy, for relatively small sections through frequent seminars, forample time for faculty and students to pursue their own interests. Wetook it as given that the heart of our enterprise must continue to be toprepare lawyers for the profession, but we were much less certain what ittakes to do so today. And we operated within the context of a curriculumwhich already had a bare minimum of required courses and which alreadyallowed for a very high degree of specialization, through a wide variety ofelective offerings and seminars.We began our work last year with two kinds of activities. The firstwas the beginning of a general curricular review. And the second was amore detailed examination of certain areas of work within the law school.So far as the curricular review is concerned, we determined fairly early toseparate out the educational planning function from the curriculumcommittee function. We didn't want to contaminate the planning functionwith too close a concern with schedule making. Instead, we raised thelarge question of what new courses, what new seminars, and what kindsof research resources were needed to have the Yale Law School moveideally into the future?We selected three trial areas to test the sorts of answers we mightget: governmental regulation, criminal law and property. It soon becameapparent in each of the fields that, to a quite remarkable degree, yester-day's advanced courses and seminars had become today's introductorycourses. Courses like administrative law, labor law, land finance, landplanning, criminal procedure, and psychiatry and law were drawingmassive enrollments, including large numbers of second year students.And having elected them early, students wanted to pursue these specialtiesfurther.[VOL. XXILEGAL EDUCATIONIn field after field, as we looked closely, it became apparent that wewould have to develop a much more graduate-oriented curricular profilethan anything we had ever contemplated in the past. The pressure camefrom a pervasive sense of promises unfulfilled-on the part of studentsasking how to examine the institutions we were urging them to examine;on the part of students and faculty as we wondered how one comes toknow institutions well enough to examine them? What did we mean byexamination, after all? Who did we want interviewed and with what kindsof techniques? What theoretical structures were we working with? Ourfirst major conclusion was that we would have to develop a much moreadvanced curriculum. Fields like governmental regulation and property,for example, clearly demanded a great deal of curricular expansion. Andwe spent some time considering what such an expansion might involve interms of course offerings, personnel and research resources.There were, however, some areas which we regarded as extremelyimportant and as requiring special consideration. Law and behavioralscience, for example, was one such area because it was becoming evermore apparent that law students, who were being urged to examinelegal institutions in terms of impact and interrelationships, should betaught either how to do empirical research or to work with those who werespecialized in social research methodology. We soon realized that theproblem could be met only by creating a new field of work. Sociologistsand political scientists were not familiar enough with the legal processto produce impressive research and writing about it. Lawyers, on theother hand, were not sufficiently knowledgeable about research method-ology and social or psychological or economic theory to do the workthemselves. We concluded, therefore, that we should train a group ofpeople who could become the interdisciplinary teachers of tomorrow andto do so through a post-doctoral training program in law and behavioralscience. Our thought was to bring several behavioral scientists and somelawyers to us for a two-year period and encourage them to engage inserious field research under close supervision by interdisciplinary teams.Our hope is that in time monographs will be written which might beginto fill some of the void in the literature of legal institutions.The next major problem we considered was that of comparativestudies. We decided to move away from the notion of comparativelaw as a study essentially of civil law and to concentrate instead oncomparative governmental regulation-on problems of comparative ad-ministrative processes and comparative regulatory mechanisms of varioussorts-because we felt these were the major cutting edges of the future.Again, our primary interest is in attracting people from the United Statesand abroad to programs long enough in duration so that substantialresearch products might come of them.Third, stimulated by a major grant from the Ford Foundation, we1967]UNIVERSITY OF MIAMI LAW REVIEWdecided to use urban studies as a vehicle for developing the curriculumin a way which would be more responsive to the current needs I describedearlier. This required that we block out the major areas within which wewould offer courses and seminars and that we develop a graduate programwhich would help provide the research and writing which the new courseswould require. It became quite clear that to encompass the wide varietyof phenomena falling within the rubric of urban studies, it would be neces-sary to do some things which had not been done before and to do them byputting along side of each other people of a wide variety of specialtiesand backgrounds. Our planning in this area is still going on but is nearingcompletion.I am not going to take you through all of our deliberations. I shallmention briefly one or two others. We spent a good deal of time on clinicaland internship programs. We are probably a little more obsessed than weshould be with a fear of such programs. Nevertheless, we determinedearly that it was important to fulfill both the training and research focusand also to respond to the impulse to social action of some of our students-to provide a wide variety of occasions for students to get inside legalinstitutions and see what they are like. Our main thrust to date has beento build on what we have-to improve the legal aid offerings; to developadministrative and legislative workshops and to make available on anindividual basis the sorts of clinical and internship exercises which aretailored to particular programs.Another important area, which we have only just begun to addressbut which may in time pose the really critical issue for us, is the questionof "graduate" objectives within the LL.B. curriculum. There is an in-creasing feeling that, as our students come to us better qualified forresearch and writing, we should provide within the LL.B. curriculum analternate track alongside the professional one. Our thought is that aselected number of students might be accepted, by way of experiment, ina program moving after the first year toward a Ph.D. degree. When Isay "Ph.D." it is less important what the degree will be called than thatthe degree encompass a notion of independence in research and indepen-dence in scholarship transcending anything toward which professionalschools have aspired in the past. We should like to explore the possibilityof drawing from the top fifteen percent of our student body a half dozenstudents and asking these young men to write books by the time theyleave law school. Given the quality of our students, it seems a shame notto give them the opportunity to do work on a level comparable to thatafforded by the best graduate faculties in fields like history, economicsand political science.The largest conclusions I would like to draw from this sprint throughour educational planning venture is, first, that the implication for facultysize of the profile I have been sketching is quite clear. It contemplates a[VOL. XXILEGAL EDUCATIONmovement of law schools toward faculty-student ratios which resemblethose of graduate schools and graduate departments. Though the YaleLaw School already has the most favorable faculty-student ratio in thecountry among law schools, it does not begin to compare with that of theeconomics department or the political science department. Our 16 to 1ratio pales beside the exquisite tailoring-e.g., the 6 to 1 ratio-that agenuine graduate program entails. Too often, our graduate students havesimply been dropped along side our undergraduates and left to fare forthemselves.Second, there is implicit in what I have said the risk of a tremen-dous conflict between the objective of professional education and theobjective of treating law as a branch of political or social science. Myown feeling, and I think the feeling of many of us (and it may be aromantic one) is that there is a creative tension between the professionalmodel and the graduate model, that the professional model forces a degreeof responsibility upon the graduate model and that the graduate modelwould draw the professional model away from the smugness and self-satisfaction which has often pervaded it. The challenge we must face ishow to bend each of the models to the purposes of the other withoutsacrificing the professional school as we have known it.1967]

Education Planning at Yale

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