Kimball: The Context of Graduate Degrees at Harvard Law School Under Dean Erwin N. Griswold, 1946–1967

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In conjunction with her previous two articles on the subject, Educational Ambivalence: The Rise of a Foreign-Student Doctorate in Law establishes Gail Hupper as the leading authority on the history of graduate degrees at United States’ law schools. The research is deep, the coverage is comprehensive, the analysis is insightful, and we are indebted to her for illuminating this important development in legal education.In light of Hupper’s thorough treatment, this brief Essay addresses some contextual issues concerning the development of these graduate degrees in two respects: broadly in higher education and locally at Harvard Law School (“HLS”), particularly during the administration of Dean Erwin N. Griswold (1946–1967), which I have been studying. My intent is to adumbrate certain aspects of the historical context in which the graduate programs developed, particularly at one institution, given that her Essay appropriately addresses the law schools at seven different universities that produced the most law doctorates in the twentieth century: Columbia, Yale, George Washington, Michigan, Wisconsin, New York University, and Harvard.

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The Context of Graduate Degrees at
Harvard Law School Under Dean Erwin
N. Griswold, 1946–1967: Commentary on
Gail Hupper’s Educational Ambivalence:
The Rise of a Foreign-Student Doctorate in
Law

BRUCE A. KIMBALL

INTRODUCTION

I

n conjunction with her previous two articles on the subject, 1 Educational
Ambivalence: The Rise of a Foreign-Student Doctorate in Law establishes
Gail Hupper as the leading authority on the history of graduate degrees
at United States’ law schools.2 The research is deep, the coverage is
comprehensive, the analysis is insightful, and we are indebted to her for
illuminating this important development in legal education.
In light of Hupper’s thorough treatment, this brief Essay addresses
some contextual issues concerning the development of these graduate
degrees in two respects: broadly in higher education and locally at
Harvard Law School (“HLS”), particularly during the administration of
Dean Erwin N. Griswold (1946–1967), which I have been studying. 3 My


Professor of Educational Studies, The Ohio State University; A.B., Dartmouth College;
M.Div. and Ed.D., Harvard University.
1 See Gail. J. Hupper, The Academic Doctorate in Law: A Vehicle for Legal Transplants?, 58 J.
LEGAL EDUC. 413, 414 (2008); Gail J. Hupper, The Rise of an Academic Doctorate in Law: Origins
Through World War II, 49 AM. J. LEGAL HIST. 1, 3 (2007).
2 Gail J. Hupper, Educational Ambivalence: The Rise of a Foreign-Student Doctorate in Law, 49
NEW ENG. L. REV. 319 (2015).
3

See DANIEL R. COQUILLETTE & BRUCE A. KIMBALL, ON THE BATTLEFIELD OF MERIT:
HARVARD LAW SCHOOL, THE FIRST CENTURY (forthcoming 2015); DANIEL R. COQUILLETTE &
BRUCE A. KIMBALL, THE INTELLECTUAL SWORD: HARVARD LAW SCHOOL, THE SECOND CENTURY

449

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intent is to adumbrate certain aspects of the historical context in which the
graduate programs developed, particularly at one institution, given that
her Essay appropriately addresses the law schools at seven different
universities that produced the most law doctorates in the twentieth
century: Columbia, Yale, George Washington, Michigan, Wisconsin, New
York University, and Harvard.4
I.

The Evolution of Advanced Legal Degrees and the Shifting
Enrollment
In the 1870s full-fledged universities offering graduate studies first
emerged in the United States and then proliferated by the 1900s. 5 This
development prompted efforts to elevate certain domains of professional
education to the graduate level. In 1893 Johns Hopkins University
established the first U.S. medical school that required a bachelor’s degree
for admission, and in 1908 Harvard University founded the first graduatelevel business school in the nation: Harvard Graduate School of Business
Administration.6 In 1910 the Carnegie Foundation for the Advancement of
Teaching published the famous “Flexner Report,” which called for all
medical schools in the country to require a bachelor’s degree for
admission.7 Riding this wave, in 1893, HLS became the first U.S. law school
to adopt that requirement, and in 1910, HLS introduced the law doctorate
(S.J.D.) as a preparation for U.S. law graduates who wished to become law
professors.8
As Hupper demonstrates, Yale, Michigan, and New York University
rapidly followed HLS in establishing similar one-year S.J.D. programs,
which gave instruction in public law and “cultural” subjects outside of the
common law curriculum, such as jurisprudence, legal history, and
comparative and international law. In subsequent decades, the “cultural”
(forthcoming 2017).
4 Hupper, supra note 2. As of 2006, Stanford University Law School passed George
Washington University Law School in the number of law doctorates granted.
5

See LAURENCE R. VEYSEY, THE EMERGENCE OF THE AMERICAN UNIVERSITY 174–75, 264–66
(1965).
6 Nancy McCall, The Gazette Online: The Newspaper of the Johns Hopkins University, JOHNS
HOPKINS GAZETTE (Feb. 12, 2001), http://pages.jh.edu/~gazette/2001/feb1201/12garret.html;
Historical Facts, HARV. U., http://www.harvard.edu/historical-facts (last visited Mar. 16, 2015).
7 JEFFREY L. CRUIKSHANK, A DELICATE EXPERIMENT: THE HARVARD BUSINESS SCHOOL, 1908–
1945, at 185 (1987); ABRAHAM FLEXNER, MEDICAL EDUCATION IN THE UNITED STATES AND
CANADA 25–27 (1910), available at http://archive.carnegiefoundation.org/pdfs/elibrary/
Carnegie_Flexner_Report.pdf; cf. BRUCE A. KIMBALL, THE INCEPTION OF MODERN
PROFESSIONAL EDUCATION: C. C. LANGDELL, 1826–1906, at 349–51 (2009).
8

See Hupper, supra note 2, at 323.

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character of several of these graduate programs shifted toward a “social
scientific” perspective on legal study, responding partly to the
jurisprudential movement of Legal Realism. During the 1930s the schools
restructured the S.J.D. to look more like the Ph.D. with higher admission
standards and the requirement of a thesis. Concomitantly, the LL.M. was
created and conferred upon those who did not or could not complete the
thesis. The LL.M. soon became the more common graduate degree.
Meanwhile, the deans of Harvard, Columbia, and Yale agreed to
collaborate on planning graduate work and awarding fellowships. 9 This
elaboration and stratification of law degrees and students fit closely the
broad pattern of events in U.S. higher education from the 1910s to the
1940s.10
Meanwhile, the law doctorate fulfilled its purpose. During the 1950s, at
least 20% of the law faculty at Yale, Michigan, Wisconsin, Harvard, and
George Washington had earned an S.J.D., as had the deans at Harvard,
Yale, Wisconsin, and George Washington. These leading academics
naturally felt some commitment to sustaining the degree, and during the
1950s the seven law schools above conferred 155 doctorates on U.S. law
graduates.11 By that decade, however, the central purpose of the graduate
programs began shifting to training international students, who had
started enrolling in the programs during the 1930s. During the 1960s the
shift continued, as fewer U.S. law graduates viewed a graduate law degree
as necessary or helpful in obtaining a faculty position in a law school. Some
law faculty also began to question the cost of the graduate programs,
although grants from the Ford Foundation to support teacher training
alleviated the cost of the graduate programs at several leading law schools
during the 1950s and 1960s.12 Nevertheless, during the 1960s the number of
law doctorates conferred by the seven leading schools on U.S. law
graduates fell to 110; by the 1970s, that number dropped to sixty-five.
Conversely, at that point, foreign students were earning two-thirds of the
doctorates conferred by the seven schools.13
9 See id. at 327 & n.17; Letter from Charles E. Clark to Roscoe Pound (Feb. 8 and May 11,
1933), Roscoe Pound Papers, Harvard Law School Library Special Collections, Box 68
(microfilm edition, drawer 849, reel 22, frame 25).
10 See generally ROGER L. GEIGER, TO ADVANCE KNOWLEDGE: THE GROWTH OF AMERICAN
RESEARCH UNIVERSITIES, 1900–1940, at v–vii (New York: Oxford University Press, 1986)
(describing the external factors crucial to the institutional development of research including:
the acquisition of social resources, converting resources into research conditions, and the
extramural supply of resources earmarked for research).
11

See Hupper, supra note 2, at 332.
Id. at 330–32 & n.32.
13 Id. at 395; see ERWIN N. GRISWOLD, OULD FIELDS, NEW CORNE: THE PERSONAL MEMOIRS OF
12

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The reasons for this shift fell into two categories: (1) the declining
interest of U.S. students, and (2) the growing incentives for foreign
students. In the former regard, it is noteworthy that the graduate program
enrollments were always small and never more than 10% of the LL.B.
enrollments, as Hupper observes.14 This factor deserves emphasis
because—in contrast to medicine, the other major domain of professional
education15—law schools had lower admissions requirements, as a general
rule.
After the appearance of the Flexner Report in 1910, American medical
schools rapidly adopted the admissions requirement of a four-year
bachelor’s degree during the following decade. In 1893 HLS had become
the first law school in the country to require a bachelor’s degree for
admission, and other law schools slowly followed along. 16 In 1905 the
percentages of college graduates among students at leading university law
schools were: Harvard 99, Columbia 82, Chicago 60, Yale 35, Pennsylvania
35, Northwestern 31, Michigan 13, and Cornell 10.17 It was not until 1950
that three years of college work became the normal prerequisite for U.S.
law schools and not until 1970 that four years became the norm. 18 In light
of this, the entire project of graduate legal education in the 1910s appeared
almost fifty years ahead of itself, because the combination of a four-year
bachelor’s degree and a three-year law degree far exceeded the educational
norm of practicing lawyers and, therefore, sufficiently qualified law
professors. By comparison, medical schools had not tried to introduce a
post-M.D. degree even though that degree stood on a higher and broader
academic foundation than did the LL.B.
A second reason for U.S. law graduates’ declining interest was the
continuing variation in admission standards of law schools, which was
much greater than medical schools.19 As a result, the law schools became
highly stratified by their academic standards, and the pedigree of the LL.B.
degree remained the most distinguishing criterion among law graduates.
Many U.S. students enrolling in the graduate programs were therefore

A TWENTIETH CENTURY LAWYER 235 (1992).
14

See Hupper, supra note 2, at 329.
Nathan Glazer, The Schools of the Minor Professions, 12 MINERVA 346, 347–48 (1974).
16 See C.C. LANGDELL, ANNUAL REPORTS OF THE PRESIDENT AND TREASURER OF HARVARD
COLLEGE 1893–94, at 131–32 (1895).
17 CHARLES W. ELIOT, REPORTS OF THE PRESIDENT AND TREASURER OF HARVARD COLLEGE
1904–05, at 41 (1906).
15

18 ROBERT STEVENS, LAW SCHOOL: LEGAL EDUCATION IN AMERICA FROM THE 1850S TO THE
1980S, at 209 (1983).
19

See Hupper, supra note 2, at 324–25.

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seeking to upgrade their law degree, and were not as strong academically
as the LL.B. law students at the same schools.20 The uneven composition of
the graduate student body therefore weakened the appeal of the graduate
degrees to the strongest LL.B.s.
Third, even though HLS and other law schools were spending ten
times more in scholarship aid per graduate student than per LL.B. student,
the lack of financial support for the thesis-writing year prevented many
S.J.D. students from completing their degrees.21 The low completion rate
thus became a detriment to the doctoral programs and a disincentive to
enroll.
A fourth reason for U.S. law graduates’ declining interest was the
contemporaneous rise of the judicial clerkship as an alternative route to the
law professoriate.22 In 1930 Congress first authorized support for a clerk for
each federal circuit judge and, in 1936, for certain federal district court
judges.23 By 1942 almost half of the states’ supreme courts had some
provision for clerks.24 As a result, the proportion of full-time law faculty
who clerked rose from 11% for the 790 faculty who graduated from law
school during the period 1946–1955 to 22% for those who graduated
between 1966 and 1975.25 The emergence of this alternative path to the
faculty naturally lessened the incentive or necessity to pursue a graduate
degree.26
A final reason, likely the most significant, was:
an enormous expansion of the legal Education market, and more
specifically the total number of full-time law teachers, beginning
in the mid-1950s. The underlying causes included a more
widespread belief in the power of law as an instrument of social
change, particularly in the civil rights era; the post-war baby
boom . . . and the availability of educational deferments from the
Vietnam war draft.27

More broadly, the period between 1945 and 1975 is often called the
“Golden Age” of higher education by scholars. During this period, federal

20

See id. at 324.
See id. at 329 n.26.
22 See id. at 373–74.
23 JOHN B. OAKLEY & ROBERT S. THOMPSON, LAW CLERKS AND THE JUDICIAL PROCESS:
PERCEPTIONS OF THE QUALITIES AND FUNCTIONS OF LAW CLERKS IN AMERICAN COURTS 18
(1980).
21

24

Id.
See Hupper, supra note 2, at 373.
26 See id.
27 Id. at 374.
25

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financial aid for students grew enormously due to the G.I. Bill of 1944, the
National Defense Education Act of 1958, and the Higher Education Act of
1965. Meanwhile, the research universities received vast new financial
resources through federal funding for research, led by the National Science
Foundation, which was established soon after World War II. As a result,
between 1950 and 1970 undergraduate enrollment in the nation increased
nearly four times, from 2.3 million to 8.6 million, while the number of
colleges and universities rose from about 1,800 to about 2,800. 28 The
number of accredited law schools grew from 111 in 1947 to 124 in 1952 to
136 in 1977, while the number of full-time law faculty rose concurrently
from 991 to 1,182 to 2,264—an increase of 128 percent from 1947 to 1967.29
In such an expanding market, the abundance of faculty openings reduced
the incentive to pursue graduate education in law.
Meanwhile, foreign students were increasingly attracted to study in
U.S. law schools after 1945. The first reason was the status and strength of
the U.S. as a world power. A second reason was the rising prestige and
reputation of U.S. universities, which remained in the shadow of European
universities prior to 1940. Third, the law schools actively encouraged
foreign students to attend.30 HLS Dean Griswold voiced this
encouragement in his first annual report, addressing the year 1946–1947:
With the scientific developments of our times, it becomes
apparent that the preservation of civilization depends upon the
extension of the rule of law from local to international and world
affairs . . . . Harvard Law School, as one of the centers where the
rule of law is nurtured, may well feel that it is performing an
important task in the service of mankind.31

Hence, Hupper astutely observes that the graduate programs’
recruitment of foreign students was “animated in part by a kind of
missionary function: a desire to spread U.S. legal models to other parts of
the world.”32 Indeed, Griswold recounted in his autobiography:

28 RICHARD M. FREELAND, ACADEMIA’S GOLDEN AGE: UNIVERSITIES IN MASSACHUSETTS
1945–1975, at 20–120, 355–401 (1992) (discussing enrollment regarding undergraduate schools
and universities); see LOUIS MENAND, THE MARKETPLACE OF IDEAS: REFORM AND RESISTANCE IN
THE AMERICAN UNIVERSITY 63–73 (2010).
29 Donna Fossum, Law Professors: A Profile of the Teaching Branch of the Legal Profession, 1980
AM. B. FOUND. RES. J. 501, 505.
30

GEIGER, supra note 10, at 110–11, 114; Hupper, supra note 2, at 404.
ERWIN N. GRISWOLD, ANNUAL REPORT OF THE DEAN OF HARVARD LAW SCHOOL 1946–47,
at 405 (1947).
31

32

Hupper, supra note 2, at 434.

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I regarded this as a very important part of the role and mission of
the Harvard Law School, I looked upon these students as future
leaders in their countries, and I felt that the development of able
people in various parts of the world, who had a common tie,
would contribute materially to world progress and peace.33

As a result, between 1945 and 1959 Harvard and Yale conferred more
than half of their law doctorates on foreign students. By the latter date
Harvard’s graduate program enrolled over sixty foreign students, while
those at Columbia, Michigan, Yale, and New York University enrolled over
twenty each.34
Notwithstanding this shift, graduates of the S.J.D and LL.M. programs
still constituted about one-third of U.S. law faculties in the 1970s. In the
1974–1975 academic year, almost 25% (955) of U.S. law professors
possessed the LL.M. degree, nearly 4% (144) had the S.J.D., and another 4%
(151) had both.35 Most of these faculty earned the graduate degree in the
prior generation, but at HLS, the graduate student enrollment continued to
be split between American and foreign students. Most of the U.S. students
were enrolled in the S.J.D. program, and most of the foreign students were
enrolled in the LL.M. program.
The U.S. students continued to enroll in the S.J.D. because the prestige
of the HLS degree still made it worth the effort for U.S. graduates of other
law schools who were seeking faculty positions. Foreign students enrolled
predominantly in the LL.M. for two paradoxical reasons: some students
did not have sufficient preparation to broach the doctorate, while some
European universities viewed the American S.J.D. as less demanding than
their law doctorate.36 Hence, the S.J.D. requirements were either excessively
or insufficiently rigorous for some foreign students. Whatever difference
existed between the S.J.D. and the European doctorates may be attributed
to the fact that the U.S. LL.B. required a bachelor’s degree by that point,
and that requirement did not exist in most European countries. Hence, the
U.S. law doctorate may have been less extensive than some European law
doctorates, but the overall course of postsecondary education was no less,
due to the longer, underlying course of study.
In sum, the enrollment shift from U.S. students to foreign students at
HLS and elsewhere after 1945 was shaped by the broad development of
U.S. higher education from 1870 to 1970 and by the distinguishing

33

GRISWOLD, supra note 13, at 235.
Hupper, supra note 2, at 400.
35 Fossum, supra note 29, at 509.
36 Interview with Arthur von Mehren, Harvard Law School History Project (2000) (on file
with author).
34

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characteristics of legal education, among fields of professional education,
within that context.
II. The Rise of International Legal Studies at HLS
After 1945 the development of the graduate degree programs at HLS
was entwined with the resurgence of “international legal studies.” In the
decades following World War II, International Legal Studies at HLS
became the foremost such program in the world and, at its height in the
1960s, included sixteen faculty members teaching courses.37 Dean Roscoe
Pound laid the foundation for the program during his administration from
1916 to 1936 by assembling in the HLS library a large foreign law collection
that had no peer in the United States. But academic work in this area
declined after Pound stepped down, and published memorials credit
Griswold with resurrecting this academic endeavor. 38 Indeed, Griswold
publicly supported the work in the late 1940s, and as early as 1958 he wrote
to Arthur Sutherland that international legal studies should be featured as
a significant topic in the sesquicentennial history of the school, to be
published in 1967.39 By the late 1950s Griswold already seemed to consider
International Legal Studies part of his legacy.
However, HLS faculty recall that, in the transition period of 1945–1946
when the school was somewhat rudderless in the final year of the
administration of Dean James M. Landis, it was Professors David Cavers
and Lon Fuller who successfully rebutted the proposals of some HLS
faculty that the school should dispose of its large foreign law collection. In
addition, it was Fuller who arranged for Arthur von Mehren to travel to
Switzerland and spend the academic year 1946–1947 studying in the
Rechtsfakultät at the University of Zurich, just after von Mehren had
completed his Ph.D. in Government at Harvard and been appointed to the
HLS faculty.40 This preparatory year rested on the nineteenth-century
precedent when Harvard had sent George Ticknor, in 1828, and Henry
37 Interview with Harold J. Berman, Harvard Law School History Project (1998) (on file
with author).
38

Robert C. Clark & Archibald Cox, In Memoriam: Erwin Nathaniel Griswold, 108 HARV. L.
REV. 979, 986–88 (1995).
39 ERWIN N. GRISWOLD, Law School, in ISSUE CONTAINING THE REPORT OF THE PRESIDENT OF
HARVARD COLLEGE AND REPORTS OF DEPARTMENTS FOR 1946–47, OFFICIAL REG. HARV. U., Dec.
1, 1949, at 405; ERWIN N. GRISWOLD, Law School, in ISSUE CONTAINING THE REPORT OF THE
PRESIDENT OF HARVARD COLLEGE AND REPORTS OF DEPARTMENTS FOR 1947–48, OFFICIAL REG.
HARV. U., May 16, 1950, at 384–85; Arthur E. Sutherland Papers (June 2, 1958), Special
Collections, Harvard Law School Library, Box 66, Folder 10, Harvard University Law School.
40 Danielle R. Coquillette, In Memoriam: Arthur T. von Mehren, 119 HARV. L. REV. 1949, 1950
(2006).

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James, in 1881, to Europe to study immediately after their appointments.41
Upon returning, von Mehren became one of the cornerstones of the
International Legal Studies program.
Another cornerstone was Harold Berman, whom Griswold appointed
in 1948 as a visiting assistant professor to teach Soviet law. Berman, a
graduate of Yale Law School, had been studying in conjunction with the
Harvard’s Russian Research Center. This “was a very bold move for
Erwin . . . . To appoint somebody to teach Soviet law was very unusual.”42
Concurrently, Louis Sohn was appointed as a visiting professor to teach
international law, and Manley O. Hudson continued in his role as Bemis
Professor of International Law. In addition, during the 1946–1947 academic
year, HLS Professor Milton Katz returned from his leave in Washington,
where he aided the war effort, and in 1948, left for Europe to serve as the
Director of the European Recovery Program (Marshall Plan).
Consequently, the International Legal Studies faculty was still inchoate in
the late 1940s, and it was Cavers and Fuller who conceived of establishing
a World School of Law at HLS; in 1950, they submitted an ambitious
proposal to the Ford Foundation for ten million dollars to fund it.43
In his annual report, Griswold explained the potential for this project:
What the School has done on a national basis, it might well do on
a broader, although smaller, scale for the world community . . . .
With a modest amount of support, we could establish here a
program which would bring to Cambridge selected students—
students who might well become in time leaders in their own
countries—to work together, and with similarly selected
American students, on legal problems which are necessarily
involved in any sort of stable world political and economic
organization. If we had a group of fifty foreign students each year
there would, in the course of twenty years, be a thousand
graduates of the program in legal work and public office
throughout the world. All would have a better understanding not
merely of international legal questions but also of each other, and
of their respective approaches to legal problems. The
potentialities of such a program seem very great indeed.44

Ford declined to fund the World School of Law, and HLS submitted a
scaled-down proposal in 1953. In a speech at the University of Chicago
41

Interview with Harold J. Berman, supra note 37; Interview with Arthur von Mehren,
supra note 36.
42 Interview with Harold J. Berman, supra note 37.
43 Id.
44 ERWIN N. GRISWOLD, REPORT OF THE PRESIDENT OF HARVARD COLLEGE AND REPORTS OF
DEPARTMENTS, 1949–50, at 451, 457 (1954), available at http://pds.lib.harvard.edu/pds/view/
2582287.

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Law School, Griswold again justified the initiative, calling for:
a considerable expansion in the fields of international law and
relations. Already there is great demand for lawyers trained and
able to work in this field. With the development of international
relations, with the growth and multiplication of international
organizations, there is constant need for legal talent trained in
international problems; and there are many tasks which the
lawyer can do in a more hard-headed and articulate way than
they can be done by persons trained in other fields. A hundred
and sixty-five years ago there were no federal lawyers. Without
prophesying at all that there will be, fifty years from now, any
sort of a world organization comparable to our own federal
government, it does not seem too much to think that any world
with the frequent contacts now available, modern speed of
communication, and extensive and expanding trade, will
necessarily have some sort of a structure, and that lawyers will be
called upon to handle many of the problems which inevitably
arise in the operations of such a structure, and out of such
relationships. Persons who do this work will have to be trained,
and law schools will have to do much of that training.45

By this point, Katz had returned from Europe and joined the Ford
Foundation, which was developing a deep interest in international affairs,
and in the mid-1950s the foundation made a number of ten-year grants in
“international legal studies.”46 In total, New York University received
$450,000, Michigan $500,000, Yale about $700,000, Columbia $1.5 million,
and Harvard $2.5 million.47 Awarded in January 1955, the HLS grant
included $500,000 to build a new wing of the library to house the
international legal studies collection and program—conditional upon
raising a matching amount within two years—which the school
accomplished belatedly in three years. 48 Another component was $750,000
for research fellowships, and the final component was $800,000 to endow
two professorships. Katz was appointed to one of these professorships
when he returned to HLS during the academic year 1954–1955.49

45 ERWIN N. GRISWOLD, THE FUTURE OF LEGAL EDUCATION, HARV. L. SCH. BULL., 4.1, at 6
(Feb. 1953); see A Project for a Program in International Legal Studies (Aug. 28, 1953), Louis B.
Sohn Papers, Special Collections, Harvard Law School Library, Box 146, Folder 7, Harvard
Law School.
46

Hupper, supra note 2, at 332–33.
Id. at 399.
48 See Frederick W. Byron, Jr., Law School Gets Year Extension to Raise Funds: Ford Grant
Withheld Until School Earns Required $500,000, HARV. CRIMSON (Feb. 5, 1957),
http://www.thecrimson.com/article/1957/2/5/law-school-gets-year-extension-to/.
47

49 Interview with Harold J. Berman, supra note 37; Memorandum from Erwin N. Griswold
to the Faculty Building Fund for International Legal Studies, Confidential (Dec. 4, 1957),

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Supported by Katz’s “dowry” from the Ford Foundation, the HLS
International Legal Studies Program entered the Golden Age of higher
education.50 The growing program required “an appropriate administrative
structure”; Griswold appointed Katz as Director of the program, and
observed in his annual report:
By reason of the long tradition and the nature of a lawyer’s
training and professional position, the legal profession in the
United States bears a heavy responsibility for leadership in the
community life, business, and local and national government. As
the United States moves forward in its task of international
leadership, it can do so only with the steady support and
understanding of the American people. When the issues turn on
remote and far-flung events, in Korea or Indo-China or Formosa
or Suez or Iran, or even in France or Germany or Britain, popular
understanding is hard to achieve. These situations place a special
responsibility on . . . leadership at the national level. In view of
the historic role of the legal profession in American life, it seems
reasonable to assume that the effort to meet these needs would be
facilitated by an informed and understanding bar. As
international legal studies come to be incorporated in the normal
context of legal education, they may help to serve as a
professional window opening upon the problems of foreign
policy and international relations.51

The International Legal Studies program rapidly exercised influence
throughout the HLS curriculum by offering courses and seminars. During
the 1954–1955 academic year, about 19% of third-year law students and
14% of second-year law students in the LL.B. program took at least one
such offering; while about 60% of LL.M. and S.J.D. students did so. In the
following year, the International Legal Studies program offered twenty-one
courses and seminars to HLS students. 52 The focus expanded beyond
Continental Europe. In 1956–1957 International Legal Studies introduced
an exchange program that brought Japanese judges, scholars, and graduate
students to HLS over the next ten years. 53 Meanwhile, encouraged by
Erwin N. Griswold Papers, Box 29, Folder 14, Special Collections, Harvard Law School
Library; ARTHUR E. SUTHERLAND, THE LAW AT HARVARD: A HISTORY OF IDEAS AND MEN 1817–
1967, at 336–37 (1967); Interview with Arthur von Mehren, supra note 36.
50 Interview with Harold J. Berman, supra note 37; Interview with Arthur von Mehren,
supra note 36.
51

ERWIN N. GRISWOLD, REPORT OF THE PRESIDENT OF HARVARD COLLEGE AND REPORTS OF
DEPARTMENTS 1954–55, at 602–03, 607 (1967).
52 Id. at 603.
53 See generally ERWIN N. GRISWOLD, REPORT OF THE PRESIDENT OF HARVARD COLLEGE AND
REPORTS OF DEPARTMENTS 604–05 (1956) (noting the program was enriched by foreign
lawyers’ participation).

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Griswold’s special interest, the program arranged for scholars and
graduate students from British Commonwealth countries to visit HLS.
By the late 1950s International Legal Studies was flourishing, and new
young faculty were hired to bolster offerings. These included Detlev Vagts
and Stephen C. Schwebel, who began serving as Assistant Professors in
1959–1960.54 The former remained at HLS and became a leading authority
on laws relating to international commerce and business; the latter left HLS
in 1962 and eventually became President of the International Court of
Justice.55 Meanwhile, Griswold was actively boosting the value of
international legal studies by helping U.S. law faculty and lawyers better
understand their own system. In an address to the University of Michigan
law school, he stated:
[W]e are so immersed in our own extraordinary legal system, its
many details and problems, that we find it very difficult to
evaluate it with any sort of objectivity . . . we might be helped if
we could get a broader point of view, and an opportunity to
consider our problems with more perspective than is available to
us in our day to day work.56

The increasing enrollment of foreign students in the graduate
programs was therefore not lamented. The HLS graduate programs were
“turning out a lot of good students. Many of them are teaching in various
European universities or are leading judges or practitioners.”57 At that
point, in fact, HLS was “the leading law school in the country in the
international legal studies field . . . . It was absolutely head and shoulders
above any other school.”58
III. International Legal Studies Encounters Difficulties
In the mid-1960s International Legal Studies and the graduate
programs at HLS began to encounter difficulties. Though supported by
54 See Jon Chaplin, An Unwavering Believer in International Law, HARV. L. TODAY (Jan. 1,
2014), http://today.law.harvard.edu/detlev-f-vagts-51-1929-2013/; The Network for International
Arbitration, Medication and ADR, International Investment Law and Transnational Dispute
Management, TRANSN’L DISP. MGMT. J. (2014), http://www.transnational-dispute-management.
com/about-author-a-z-profile.asp?key=673; see also ERWIN N. GRISWOLD, REPORT OF THE
PRESIDENT OF HARVARD COLLEGE AND REPORTS OF DEPARTMENTS 323 (1959).
55

Interview with Detlev Vagts, Harvard Law School History Project (1999) (on file with
author); von Mehren, supra note 36.
56 ERWIN N. GRISWOLD, SOME THOUGHTS ABOUT LEGAL EDUCATION TODAY, HARV. L. SCH.
BULL., 11.3, at 3 (Dec. 1959).
57

Interview with Arthur von Mehren, supra note 36.
Interview with Harold J. Berman, supra note 37 (observing this point during his time
teaching Soviet law and international tax).
58

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Griswold, efforts made over several years to hire or to train scholars in
Latin American or Islamic law proved unsuccessful. More generally, the
International Legal Studies faculty found it increasingly difficult to hire
visiting foreign professors. Eventually they relinquished the effort:
because it was so hard to convince the [HLS] faculty that the
person proposed met our standards. The faculty wanted the
greatest scholar that ever existed. The best you can do in practice
is to get a scholar who is reasonably good, and if he’s extremely
good, so much the better. But he must speak English, be
interested in coming, and so forth . . . . Even if you get someone
that you think is really very good, you have to spend a great deal
of time persuading others that there’s no one available that’s
better.59

In order to circumvent some of these problems, von Mehren developed
a plan to employ the available resources, time, and energy more efficiently.
He tried to convince the law schools at Stanford and Chicago to collaborate
with HLS, so that each school would direct its efforts toward the law in
different foreign countries. But the schools could not agree on how to
allocate the countries to study.60
Similarly, neither the International Legal Studies nor the graduate
programs developed robust collaborations within HLS. Although the
graduate seminars attracted LL.B. candidates, few of those students had
interest in pursuing graduate degrees, and the LL.B. courses were not
suitable for the foreign students who planned to return to their countries.
Hence, International Legal Studies and the graduate programs became
somewhat isolated from the larger HLS student body.61 In addition, the
ten-year Ford Foundation grant ended in 1965, and no other grant funding
supplanted it at the same level. The post-war concern for international
problems was being displaced in the national consciousness by the
domestic controversies over civil rights. Furthermore, the tone and
substance of Griswold’s annual reports in the mid-1960s suggested that he
was less engaged in leading the school after nearly two decades in office. 62
But the fundamental problem was, perhaps, a lack of cohesiveness in
International Legal Studies. Conceptually, the HLS program was divided
into three domains. One was the traditional subject of international legal
59

Interview with Arthur von Mehren, supra note 36.
Interview with Detlev Vagts, supra note 55; Interview with Arthur von Mehren, supra
note 36.
61 Interview with Louis Toepfer, Harvard Law School History Project (1998) (on file with
author); Interview with Russell Simpson, Harvard Law School History Project (2001) (on file
with author).
60

62

See Hupper, supra note 2, at 330.

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relations among states and the law of world organization. Louis Sohn,
among others, taught in this area. A second domain was comparative
law—the study of legal systems of other nations. Thus, von Mehren taught
the European civil law system, or French and German law, while Berman
taught Soviet law. This second domain was therefore divided among
independent subfields. A third domain was international economic law,
including such subjects as international trade and international tax, which
Detlev Vagts studied.63 Although some students, faculty, and visiting
scholars praised this range of academic areas, 64 the diversity exacted a cost
in scholarly collaboration and interaction because several HLS
International Legal Studies faculty had more expertise in common with
those outside the program than their colleagues inside.
In the view of some faculty, the lack of cohesiveness in International
Legal Studies at HLS stemmed from the Director’s lack of vision and
organizational management. Though encouraging and helpful to those
who took initiative, Katz did not present a consistent or comprehensive
mission, and the program could not build systematically through hiring
faculty and allocating resources. In June 1956 Griswold expressed his
dissatisfaction with the program’s lack of direction and management to
Katz, who agreed to rectify it. But when Katz retired from HLS in 1978, the
International Legal Studies program remained a disparate group of
distinguished scholars pursuing unrelated lines of study and teaching.
Berman observed, “Each of us was going his own way.”65

CONCLUSION
As Hupper insightfully explains, by the late 1970s, the graduate
programs in International Legal Studies at HLS, like those in other law
schools, were moving to “the margins of the educational enterprise.”66
Nevertheless, when Griswold stepped down in 1967, he appropriately took
measured satisfaction in the accomplishments under his administration.

63

Interview with Harold J. Berman, supra note 37; Interview with Arthur von Mehren,
supra note 36.
64 See EZEKIEL SOLOMON, POSTGRADUATE STUDY AT HARVARD LAW SCHOOL: AN
AUSTRALIAN TELLS AUSTRALIANS ABOUT LEGAL STUDIES AT HARVARD LAW SCHOOL, HARV. L.
SCH. BULL. 14.3, at 5–6 (Dec. 1962).
65 Interview with Harold J. Berman, supra note 37; see Letter from Erwin N. Griswold to
Milton Katz (June 20, 1956), Records of the Office of the Dean (1910–1982), Box 57, Harvard
University Archives; Letter from Milton B. Katz to Erwin N. Griswold (Sept. 19, 1956),
Records of the Office of the Dean (1910–1982), Box 57, Harvard University Archives; Interview
with Arthur von Mehren, supra note 36.
66

Hupper, supra note 2, at 440.

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“With foundation help . . . . we have moved into the international field
and . . . helped to meet the very large demands for persons with
international competence . . . not only from governmental organizations,
national as well as international, but also from law offices and corporate
legal departments.”67

67

Erwin N. Griswold, Intellect and Spirit, 81 HARV. L. REV. 292, 297–98 (1967).

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