Bob Kerrey, the two-term former Senator and governor of Nebraska, is considering a proposal to start an elite training ground for policy-makers at the New School University, where he became president in January 2001.
Mr. Kerrey-who said upon taking the New School post that he wanted to teach a government class himself-commissioned an investigation into the history of legal scholarship at the school. Two months ago, Mr. Kerrey got the results, and, sources at the New School said, momentum is gaining for the establishment of a program at the Greenwich Village university that would compete with top law schools and institutions like
HarvardUniversity’sKennedy School of Government to graduate top policymakers.
After about a year of digging in the private papers of former Supreme Court justice and legal legend Felix Frankfurter, Mr. Kerrey now has the ammunition-if he decides to-to push the project forward. Mr. Kerrey did not return calls for comment.
“Bob Kerrey thinks that this is a tradition we should be building on,” graduate faculty dean Richard Bernstein said of the discovery. “He’s exploring the possibility of a small and very distinctive law school-although at this point, it’s only just talk.”
The result of Mr. Kerrey’s investigation is a memo circulating among a few select members of the New School’s administration, trustees and graduate faculty. The memo details Frankfurter’s involvement, both as a lecturer and founding member, with the New School and chronicles the involvement of other contemporaries and lawyers, documenting a little-known legal heritage at the Greenwich Village school.
The memo was handed over to Mr. Kerrey, and no concrete proposal has been made or submitted to the board of trustees, sources said. Various possibilities are being considered, including an accredited law school and an institute for law and government. The law-school project, which Mr. Bernstein said would enroll no more than 50 to 100 students, so far appears to be the most widely discussed; the school would aim to produce lawyers specifically trained for public service.
“You do tend to find an awful lot of lawyers involved in public-policy decisions,” said Dan Glickman, director of the Institute of Politics at Harvard University’s Kennedy School of Government, who was Secretary of Agriculture from 1995 to 2001. “Lawyers are often the ones who are the facilitators of public policy, but it’s interesting to see the number of lawyers who know so little about public policy. So anything that can be done to train lawyers about the big picture of what’s happening in society would be a good thing.”
First Thing: Exhume the Lawyers
The New School, which in more recent years has had to battle a reputation as a haven for eccentrics, banks heavily on its golden age from the 1920′s and 30′s through the postwar years, when the school was dominated by public intellectuals like the philosopher John Dewey, who was part of the school’s original faculty; anthropologist Claude Lévi-Strauss, a refugee scholar during the 1940′s; and, later, political scientist Hannah Arendt, who taught there until her death in 1975. And nobody familiar with the discussions doubts that a law school or public-policy program conducted by the New School would include a heavy dose of social theory.
But the research commissioned by Mr. Kerrey has revealed a long-lost history of brass-tacks American legal scholarship at the school that could get trustees-and benefactors-interested in the idea.
According to the memo, sometime in the years 1933 to 1935, when New York and the U.S. as a whole became a haven for persecuted European intellectuals, Felix Frankfurter paid a visit to his mentor, Supreme Court Justice Oliver Wendell Holmes Jr., to ask a favor. As Frankfurter recalled in a letter to a friend, he walked down the hall to Holmes’ chambers feeling not very optimistic about his request: Would Holmes be willing to help with the University in Exile, the New School’s project to help fleeing German academics and offer them positions?
“In all my life, I have never joined anything to promote a cause,” Holmes is said to have responded. “This is different, because nothing less is involved than civilization itself.”
Skeptics, on the other hand, might point out that a university interested in establishing a law school would naturally look for roots in the discipline to establish a pedigree. But at the time of the school’s creation in 1919, three of the 10 or so founding members were legal scholars: Frankfurter, Judge Learned Hand and Harvard Law School dean Roscoe Pound.
The crop of lawyers who helped build the original New School were known as “legal realists”-legal intellectuals in the 1920′s and 1930′s who embraced the doctrine that law is not a self-contained set of unchanging rules, but instead should evolve with society and even help restructure it.
“This discovery has galvanized the university,” one New School source said on condition of anonymity. “It makes a compelling historical argument for the New School to do something based on their original mission in the field of law and government.”
The legal realists were firm opponents of the era’s reigning orthodoxy in training lawyers. Karl Llewellyn, one of legal realism’s advance guard, came onto the school’s faculty counsel at roughly the same time that Frankfurter, Hand and Pound were involved, the memo says. In the New School’s first year, one of the very few courses offered was “Problems of Law Reform in America,” which was taught by a dream team that included Frankfurter, Pound and Constitutional historian Charles Beard. At the time, the school didn’t have a tenured faculty, so most of these professors would leave their own universities for a day or two to come and give courses at the New School.
“I thought I could have told you everything I know about the New School,” said Harvard law professor Morton Horwitz, an eminent legal historian and specialist in the legal realists, who has seen the memo. “What’s interesting is how prominent law was in their curriculum. It’s a really distinguished history.”
Although Mr. Bernstein stressed that the legal-realist heritage would be embraced more in spirit than in practice, he seemed to think it would fit the school’s ambiance.
“We’re not mainstream,” he said. “We pride ourselves on being critical and being different.”
Mr.Horwitzhimselfwasapproached by the New School to discuss the potential creation of a small-scale law-oriented policy school, “a Kennedy School with a law degree,” as he described it. Mr. Horwitz speculated that most of its students would want to work in the bureaucracy and not in white-shoe corporate law firms upon graduation. He compared the idea to France’s Institut d’Etudes Politiques, the elite political-science university that trains students for distinguished public-service careers.
“That specific formula has never been tried [in this country],” Mr. Horwitz said. “And I think it’s fair to say that the New School in the 1930′s was already circling around it.”
Various schools have been interested in such a project in the past. Mr. Horwitz said that both Brandeis and Princeton universities had at one point expressed such an interest, and that the State University of New York at Buffalo, in the 1950′s and 1960′s, had a similar program. The Queens-based law school of the City University of New York, which has a public-interest slant, is geared more to training public defenders and practice-oriented lawyers, Mr. Horwitz said. A number of government schools around the country, like Harvard’s Kennedy School, offer the possibility of a dual degree with their affiliate law school, and the New School itself has taught classes in agreement with the Benjamin N. Cardozo School of Law on lower Fifth Avenue.
Many of the New School’s graduate faculty have an interest in legal issues, Mr. Bernstein said, especially since, in the past 10 years, the issues faced by the new republics of the Eastern European bloc have generated interest in the area of public policy and constitutional law. But no law-school project had ever been brought up before Mr. Kerrey’s arrival.
Another Third-Rate Law School?
Gerald Benjamin, the dean of the College of Liberal Arts and Sciences at SUNY New Paltz, as well as a professor of political science and a former Ulster County legislator, said the stakes for such a project are high-but so are the potential rewards.
“Specialized law schools are complicated to pull off,” he said. “People have to be prepared for practice and the bar exam, so there are certain fundamentals. But making public policy requires you to understand making law. It’s an interesting and challenging idea. It would be very good for New York if it came together, but it’s probably a little harder than it appears.”
There are a number of hurdles, sources both inside and outside the New School admitted, in creating an accredited law school on the West Village campus. The most notable is the university’s lack of funds.
“The New School is tremendously under-resourced,” Mr. Bernstein said. “It’s a great idea, but we shouldn’t do it if we don’t have the resources to do it first-rate. Nobody needs another third-rate law-school.”
And since a school that trains lawyers for public service can’t offer its graduates immediate six-figure satisfaction, the school can’t well saddle them with tuition debts that others would pay off by working in corporate law.
Today, the New School-which started out in 1919 offering graduate degrees in social sciences and various other fields-has expanded to include the Parsons School of Design and the Actors Studio Drama School. There are roughly 7,000 undergraduate and graduate students overall, with approximately 9,000 in continuing education and a much smaller number at the Graduate Faculty of Political and Social Science: about 600 attending classes and 400 working on a Ph.D., Mr. Bernstein said.
“Everybody has a concern that we shouldn’t have a law school that would overshadow us,” he added.
Another obvious hurdle would be the steep competition from other schools around the country and in New York itself. There already exists in New York an established trajectory from the country’s elite law schools to jobs in white-shoe law firms and the government.
“It’s exciting to see innovative proposals in legal education,” said Christopher Eisgruber, the director of the program in law and public affairs at the Woodrow Wilson School of Public and International Affairs at Princeton. “But obviously, the people of the New School know this. There are a lot of challenges when [one] wants to do something different in the law. Competing with schools with established track records is one of them: If a student with a great record is looking to get into government, they go to places like N.Y.U. and Yale, where people have been moving to clerkship and government, and where there are alumni that can help. Attracting students and faculty away from these places is tough; you have to prove to everybody in advance you’re going to make a better mousetrap.”
Reaction among the graduate faculty who have seen the memo and discussed the idea is one of cautious enthusiasm, Mr. Bernstein said, but they’re already meeting and discussing it informally.
“There’s intellectual enthusiasm for this if it’s done properly,” he said. “But this is an institution that hasn’t always done things properly.