SOWING THE SEEDS OF CHANGE
T
he NYU School of Law did not pioneer the teaching of legal philosophy, of course. Let’s not forget Plato, Kornhauser notes dryly, as well as Jeremy Bentham, John Austin or Oliver Wendell Holmes, among others. However, the Law School was part of a sea change in the teaching of philosophy that began in the early 1960s. Until then, when it came to legal philosophy, the scholarship tended to be weak on the philosophy side. As Murphy says, there were faculty who could “talk the talk” of philosophy but who brought little in the way of original thinking. Everything began to change in 1961 with the publication of H.L.A. Hart’s book The Concept of Law, according to Leiter, the founder and director of the Law and Philosophy Program at the University of Texas School of Law. “Hart was really the person who brought technical philosophical skills into the analysis of law and legal problems,” says Leiter, who, in addition to surveying law school faculty quality, runs a widely read legal education blog called Leiter Reports. Philosophy started taking a higher profile in law schools, no doubt helped along by more mundane, economic reasons as well. A fair number of people who had Ph.D.s in philosophy discovered how “dreadful the academic market was for philosophy” and so decided to obtain J.D.s, says Leiter. They then moved into the legal academy for understandably practical reasons: Philosophy teachers earn on average far less than law school instructors, and they also get tenure far less frequently. Law schools, for their part, found these liberal arts folks attractive for more than their interdisciplinary knowledge. “People you hire with Ph.D.s become easier to tenure” because they know how to research and write scholarly papers, says William Nelson, the Judge Edward Weinfeld Professor of Law. Beginning in the 1960s, the Law School began to build an impressive base of legal philosophy faculty—sometimes in unusual and creative ways. Graham Hughes, who taught from 1965 to 1999, was a serious figure in legal philosophy and criminal law who wrote The Conscience of the Courts: Law and Morals in American Life. Around 1970 Larry Sager (who would later play a pivotal role in the school’s leap forward) arrived from UCLA. Dworkin began teaching an intensive six-week seminar in 1975, and Frances Kamm, a moral philosopher who focuses on both normative theory and on bioethics, joined the philosophy department of the University in 1979 and within a few years begin teaching at the Law School as an adjunct on her way to becoming an affiliate professor in 1998. In 1977 both David Richards and Lewis Kornhauser became full professors at the NYU School of Law. Richards had not only undergraduate and law degrees from Harvard, but a Ph.D. in moral and political philosophy from Oxford University. Kornhauser’s appoint‑
28
THE LAW SCHOOL
ment was groundbreaking, in a way. He believes that he was one of the first people in the “modern age” who had a Ph.D. in economics and a law degree (both from the University of California at Berkeley; he has undergraduate and master’s degrees from Brown University). “Law and economics started in the ’60s but there weren’t that many people doing it,” says Kornhauser, whose attire leans to black jeans and sneakers. His best friend on the faculty was Larry Sager, so it wasn’t long before the economics wonk found himself hanging with the philosophy crowd, including Richards. “They posed questions that were very interesting and they were very smart,” Kornhauser recalls. “And there are questions in economics that are connected. I was interested in welfare economics, problems of collective decision-making, which raise and intersect with problems of political and moral philosophy. So I’ve been tied to these guys for a long time.” Three years later, in 1980, the NYU philosophy department hired Thomas Nagel. Wooed from Princeton, where he was already a major figure in philosophy, Nagel was finally working in the same city in which he lived. “I love New York. I was very happy academically at Princeton but finally I was prepared to make the move to NYU,” Nagel says. While he did not have a law degree, Nagel says he was attracted to the idea of being in closer proximity to Dworkin, Sager, Richards, Kornhauser and others with philosophical interests.