Reflecting on 200 Years: A Q&A with Former Dean Anthony T. Kronman

When you reflect on Yale Law School’s 200-year history, what milestones or themes stand out to you?

For the first 100 years of its existence, Yale Law School was far from the national institution that it is today. It principally served the Connecticut Bar. It drew some students from farther afield, but it was a regional law school not yet enjoying anything like the prestige of Harvard Law School or Columbia Law School, which had already achieved a measure of fame that Yale didn't yet enjoy.

All of that changed pretty dramatically in the late 1930s when Yale Law School became famous for being the center of a new — and at the time quite radical — approach to the study and teaching of law: legal realism. The legal realists were the “bad boys” of legal education. They challenged a lot of stuffy, old-fashioned ideas that were no longer defensible, most fundamentally the idea that the law is a body of doctrine that you can study in a classroom by reading a series of cases organized into a structured form by the professor who would draw out of the cases the fundamental rules of whatever the subject at hand happened to be.

As the realists said, if you want to understand what the law truly is, you need to study the law in action. How does it work in the real world where the rubber meets the road? Do judges, when they decide cases, follow the law as it appears in statute books and case reports? To a degree, of course. But they are guided by many factors that fall outside the four corners of legal doctrine, by their intellectual and ideological predispositions, by their social upbringing and habits, and by, as one realist said, what they had for breakfast that morning. This was anathema to the old guard at Harvard Law School because it seemed to open the possibility that the law is an arbitrary exercise of undisciplined power.

Realism flourished here in the 1930s and still flourishes to this day. And not just here. Every law school faculty in America now is a faculty of realists to one degree or another. In that sense, the “bad boys” of the Yale Law School of the 1930s triumphed and their victory is plain if you survey the landscape of legal scholarship today.

For a long time, Yale Law School did not challenge — rather, it relished — its reputation as an eccentric outlier, not in step with professional norms as represented by Harvard Law School. We were delighted to be the bad kids on the block, and as a result tended to attract faculty and students who enjoyed that and relished the prospect of being part of such a rambunctious and contrarian operation. That lasted for a really long time — I would say up until the eve of the modern ranking system, which thankfully we are now beyond.

Something else that happened in the 1930s, which also marked and continues to mark the character of the School in its second century, is the very close connection between the academic study of law and the use of law as an instrument of reform — of institutional reform, political reform, world reform. The legal realists of the 1930s were not only intellectual renegades who had new and challenging theories about what the law is and how it works. They were committed to putting their new ideas into practice. A number of them shuttled back and forth during the early years of the Roosevelt administration between New Haven and Washington where they advised various agencies or ran them, taking a temporary leave from the faculty. There was a tremendous back and forth between their academic work and their active involvement in the great issues of the day. That has remained an unbroken tradition at the School. Of course, the issues have changed. The forms of involvement have metamorphosed and mutated, but the idea that the law is a discipline for the improvement of the world and the independent delight we take in its study have both remained defining characteristics of the place.

Kronman at a Kamel Center lecture in 2015

In addition to legal realism, in what other ways do you believe Yale Law School has shaped legal education?

In the most immediate way possible. We produce a disproportionate fraction of the nation's law teachers and have for quite some time. Whatever wonderful and liberating virus they pick up here, they carry it with them and infect the faculties they join.

We have had, for a very long time, an aggressive program of academic job placement. Yale Law School has thought of itself and has been thought of by others as the place to go if you want to have an academic career. That's one of the odd, almost contrapuntal qualities of the place; it's a school for academics and the academic-minded, and yet it's a school predominantly for those who want to practice law and are committed to using the law in some purposeful and constructive way to improve the world.

In your book, History of the Yale Law School: The Tercentennial Lectures, you talk about how in the beginning the School was tiny and there were times when it almost didn't survive. How do you think that evolution was accomplished?

In the earliest period, it survived through the love, attention, and generosity of a handful of individuals, and it might very well have perished. It's entirely possible. A lot of schools did. Like Yale, many of the country's other leading law schools also began as for-profit shops started and run by practicing lawyers who discovered that they could, as we would put it today, scale up the old apprentice model. Instead of taking one young man into their office to work at their side as a clerk and to learn the craft by doing, they took a whole bunch at the same time and taught them as a class. This is what happened at the Litchfield Law School, essentially. There were a number of these, and many of them failed. A few of the more successful ones attached themselves in the first half of the 19th century to one or another of the nation’s colleges.

It wasn't until much later — I would say by the turn of the 20th century — that the place of Yale Law School was secure. That, in part, was because it was now training so many Connecticut and New York lawyers that it had an established reputation, though it didn't yet have a truly distinctive identity. There have been moments along the way when the School was at risk, not in an existential sense that its very being was threatened, but rather its reputation, its standing, its finances — all of these were jeopardized in one way or another.

The Law School has shown a remarkable power to rejuvenate, even to reinvent itself. This always comes with challenges and risks. The older faculty want the traditions of the School to be maintained, but the most important of our traditions is the willingness to take risks and go out on a limb and do the wild and crazy thing — that goes back at least to the legal realists in the 1930s. If you're not prepared to appoint faculty to whom you will hand over the responsibility to do wild and crazy things, you're not going to have the same Yale Law School. You'll have some unsubtle, less interesting, less weird and wacky version of it.

Kronman at a Yale Law School commencement

What state was the Sterling Law Building in when you came in as dean, and what changes were being worked on throughout your deanship? What do you consider to be the most significant changes, and how did they impact the School?

Guido Calabresi ’58 had reached the conclusion, quite correctly, that the building was in shambles and needed to be repaired, although I think when he first conceived the idea, none of us yet had an understanding of the full scope of the work that would be required. I’ve joked with my classmates about sitting in class with dust balls the size of large tumbleweeds rolling across the room and our not being able to hear the professor because of the clanking of the radiators. Things were falling down. It was horrible.

Guido said we needed to do two things: rebuild the building and raise the money to do so. He had plans to start a capital campaign with the goal of raising enough money to rebuild the building. Then he was appointed a United States Circuit Judge and left. His bequest to me was to fill out the capital campaign and raise the rest of the money, which I did, and then some. I was very proud of what we were able to accomplish in that campaign.

It was such an enormously complicated project because we were living in the building at the same time as we were rebuilding it. But we did it. Our overriding goal was to meet our space needs, to upgrade all of the mechanical systems, and to refurbish the fabric of the building so it would be as lovely to the eye as it had been in 1931 when they cut the ribbon and dedicated the building. I was absolutely determined that we not cut corners. I wanted this place to be the noble edifice that it had always been.

When I was meeting with our graduates to raise money to complete the building project, I would remind them — and they all appreciated this — that if Yale Law School blew down in a hurricane and miraculously no one was injured, and we had to reassemble and conduct a business in a Quonset hut on the New Haven Green, it would still be Yale Law School. Of course it would be Yale Law School. Yale Law School isn't a wall or a window or anything like that, but the human beings, pursuits, and ideals that live within its shell. Still, it’s wonderful to have such a lovely, comfortable home!

What do you believe to be the greatest challenges facing the legal world today, and how do you hope the School will address it?

Americans have two deep and abiding commitments. One is to democracy, to the principle that the people decide. At the end of the day, you take a vote, and by a show of hands you go this way or that. This is an exercise of popular will. The other commitment is to the rule of law, which depends on the authority of courts, judges, and deference to legal norms. There's a tension between these two. Democrats fear the oppressive, oligarchic rule of judges and courts. They want to get the courts off the people's backs. Those who stress the other side of the equation worry about a rampant and destructive populism that tears at the settled institutional fabric of the country. Maintaining a dynamic, robust balance between these two isn't a new challenge. It has been a challenge since 1787, if not before. It's with us still.

Lawyers play a vital role in leading the way to a workable accommodation between these strong but not perfectly harmonious commitments. One of the responsibilities of lawyers in the period ahead — I feel this very acutely at the moment, given the depth and strength of the political divisions in our country — is to see to it that we keep on our American course, which has always been fraught. This is part of what it means to be America. It's the glory of our country but a standing risk. Lawyers have a special obligation to help ensure we manage the delicate dance.

The law schools that train the country’s lawyers have a lasting responsibility to see that their students and graduates develop not just the technical skills, but the habits of mind and heart that are needed to do this effectively. This isn’t just a matter of knowing some rules. It’s having the right commitments. It’s being a good American — not in some rigid, old-fashioned sense, but in the sense of understanding the need to keep our wonderful, tumultuous democracy in sound working order and to preserve, in some rough, collaborative relation, our devotion both to the will of the people and to the rule of law.