Judith C. Areen Interview 4

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Oral History of DEAN JUDITH C. AREEN
May 3, 2004
This fourth interview is being conducted on behalf of the Oral History Project of
the District of Columbia Circuit. The interviewee is Judith C. Areen, Dean of Georgetown
University Law Center, and the interviewer is Timothy G. Lynch. The interview took place in
Dean Areen’s office on May 3, 2004.
Mr. Lynch: This is part of the continuing oral history project. Good evening.
Dean Areen: Good evening.
Mr. Lynch: We had left in the early 1970s. We were working on your tenure piece. I don’t
know if we’d gotten to your receipt of tenure. Is there anything else from the
period when you were an associate professor that you want to add to your
history?
Dean Areen: No, I don’t there is anything in particular.
Mr. Lynch: You received tenure in 1976?
Dean Areen: Yes.
Mr. Lynch: What was that process?
Dean Areen: I remember that Bob Pitofsky was Chair of the Tenure Committee, and he was a
very wise chair and kept me informed along the way; it was relatively painless
as these things go. I carried the memory from it and try to build on that with our
young faculty. No matter how fair and balanced the process, it is still a source
of anxiety for the people going through it. More communication is better, but
you can’t relieve the anxiety until it’s done. And then it’s done and you forget
about it.
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Mr. Lynch: You had talked before about gender issues in the first go-around when you
applied to teach at Georgetown. Were there any gender issues with respect to
the tenure process?
Dean Areen: Nothing that I know officially. One colleague chose to tell me some years after
that he could remember the discussion and I think I mentioned to you when I
came, there was one woman on the faculty, Helen Steinbeinder, who was very
gracious to the young women as we arrived, but she’d had a rough time of it.
She had been the associate librarian and when there was first pressure to have
some diversity, was then brought onto the faculty, but in some ways I think she
was never really fully embraced as a member of the faculty and she developed
certain very idiosyncratic characteristics as a result of that. The colleague who
chose to tell me some years later said during the discussion there was some
concern whether I would be another problem the way Helen had been, but I
received tenure, so whatever the consideration, they decided and only history
will judge whether they made the right choice.
Mr. Lynch: What was it about that professor? What did the other professors think was the
problem?
Dean Areen: Right. Well she was very much a loner on the faculty and did not have, I think,
good relationships with her colleagues or many students. She was known as
very opinionated. But she was someone as I came to know her who obviously
did care deeply about her students and I think some of her quirks were a
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function, as I said, of having not really been welcomed to the community. It
had to be tough those years to be the only woman.
Mr. Lynch: Were you the first woman to receive tenure at the law school?
Dean Areen: Helen had been tenured but she was tenured at a time, and this has not really
been talked about at a level that I know clearly, but I gather we went from being
a law school where no one was tenured to a law school where a number of
people were tenured sort of all at one point in time as opposed to individual
consideration.
Mr. Lynch: When did that process happen?
Dean Areen: It would have been in the 1950s at some point is my understanding, late 1950s,
early 1960s. When I knew her, she was tenured. But someone later said I was
actually the first woman who’d been individually considered as opposed to sort
of a group of faculty as the school became the school it wanted to be among its
peers by having tenure. They simply had not had tenure I gather.
Mr. Lynch: How does one get tenure in a law school, and has that changed since when you
applied?
Dean Areen: I would say there has been a consistent raising of the scholarship bar. It has
always been very important at Georgetown for people to teach well, and I’m
pleased we’ve continued that commitment. Certainly the experience in higher
education generally in the 1990s is some of the great research universities have
talked a lot about the fact there isn’t enough of a commitment to teaching, so
Stanford issued reports, Harvard has done various things to improve the
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teaching. Georgetown never lost the commitment to teaching. What we have
done, particularly at the law school and throughout the university, is to raise the
expectation and the bar for your scholarly work. It’s very much tied to the
growth in the faculty because when you are teaching a very large number of
students for a significant number of hours, there simply isn’t time to meet the
kind of scholarship demands that are now taken for granted. It is still true that
law faculty are viewed by liberal arts faculty as overpaid and insufficiently
scholarly. The tradition here is you are tenured on the basis of several articles,
whereas in the Department of English or Philosophy, the expectation would be
at least a book if not several. Now it is certainly changing in terms of the
expectation that books are part of what to expected of the Georgetown faculty
and that was not true ten or fifteen years ago.
Mr. Lynch: Is it part of an expectation or is it sort of a backlash against law reviews and
their student editors?
Dean Areen: No. It’s an expectation, and our strongest scholars continue to publish in
reviews as well as write books, whether it’s a Mark Tushnet or a Larry Gostin.
Mr. Lynch: As of today, is there a magic number or roughly speaking a number that
associate professors need to get published in law reviews?
Dean Areen: It would be two major articles plus. Now the plus could be book reviews, could
be smaller articles. And major means both significance of the topic and quality
of the review in which it’s placed because as you know, there’s sort of a
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standard hierarchy, and depending on how significant and potentially influential
the piece is, you’re accepted at law reviews at stronger schools.
Mr. Lynch: You spent the next year here after you were tenured, is that correct?
Dean Areen: Yes, that’s correct.
Mr. Lynch: You were teaching family law at the time?
Dean Areen: Yes. I continued to teach property and family law and constitutional law.
When I came back from the Carter Administration, I taught administrative law
for several years because I’d done, I think I mentioned, a lot of work on
administrative law while I was at OMB.
Mr. Lynch: We haven’t really talked yet about your OMB experience. How did you get
involved? Did you do any work for the Carter campaign before you went to
OMB, before he was elected?
Dean Areen: I had worked not for the Carter campaign but had done work for the Democratic
National Committee, and that went back to 1974, the McGovern Rules were so
complicated, the political folks literally couldn’t apply them and so they
constituted a committee of volunteer lawyers, and I think I may have mentioned
that’s how I met my husband because he was one of the volunteer lawyers.
Mr. Lynch: No, we didn’t get into that.
Dean Areen: Oh, well, that’s true. So you never know when you join a committee what will
come out of it.
After the election [of Carter in 1976], and the process was beginning to fill
interesting positions, I had sent of a resume which was probably lost at some
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point. I mean, if you know the pattern after an election, it’s pretty chaotic as
people move from being in full campaign mode to governing. I was certainly
have been interested, had something interesting been raised as a possibility, but
nothing had really developed. And I remember it was about this time of year, it
was April, and I realized that it didn’t seem as if something interesting was
going to happen, so I decided I was going to really garden that summer. I
literally went off to Johnson’s Flower Center. I was there picking out fertilizer
for the garden and ran into somebody I’d known from the DNC, and he said,
“So, what are your plans?”, and I said, “Well I’m doing my gardening.” He
said, “No, no, in the Administration?” I said, “Well, no I wasn’t planning
anything,” and he said, “I hear so-and-so is looking,” and so two days later I had
a call and was brought in. Carter had promised, as part of the campaign, to
reorganize the federal government. In retrospect it seems so optimistic, so
grand. I was brought in and they said they wanted someone who would focus
on a range of legal issues. One was to look at the Department of Justice and
how it’s organized. There was a concern that it wasn’t particularly well
organized. I mean, there had been any number of administrative reforms in the
Defense Department or the Energy Department, and the last effort to reorganize
the Department of Justice had been done by Elliott Richardson and it was due to
go into affect the Monday after the Saturday Night Massacre so it never
happened. Lawyers are not known for their administrative talent, so there was
some sense that it just didn’t function well. Letters didn’t get answered, and
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policy wasn’t necessary formulated and presented to the Secretary in an
effective way. So that was one. Second and related, there have been fights for
most of this century as far as I can tell about which parts of the federal
government get to litigate their own cases in court. At the SEC you may know
the lawyers get to, but if you’re at the Department of Education, all the litigation
is done for you by a combination of the U.S. Attorneys or Main Justice, and at
various points in time, different departments and agencies have tried very hard
to get that kind of litigation authority. The Food & Drug Administration for
example does not have any litigation authority. Why would agencies want it?
Well, the judgment has been that you can attract stronger young lawyers if
litigation is one of the possibilities you have to offer. There were current fights
as I came in, in 1977, going on with the then-quite-new Department of Energy.
The Department of Labor historically had an agreement to do some of its own
so they’d have sort of peace treaties that had been signed between whatever
administration and the various agencies.
Mr. Lynch: Allowing them to litigate?
Dean Areen: Allowing them to litigate or not. Or saying for certain kinds of cases, which is
what Labor had.
Mr. Lynch: Were they criminal or civil cases?
Dean Areen: All civil. It was clear that all criminal would be handled by the Department of
Justice. So that was one of the challenges; those were the two projects I started
on.
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Mr. Lynch: Who did you meet with when you first interviewed?
Dean Areen: I think I recall interviewing directly with Harrison Welford who was – I won’t
recall his precise title, but he was essentially two levels down in OMB,
responsible for the overall reorganization. So I worked on those projects for the
first couple of years. I think I did mention then being asked to work on the
energy legislation because they knew I was a law professor and so figured I
knew a lot about administrative procedure. I really didn’t, but it was a great
way to learn it. I spent most of my last year [1979-1980] going to the House
and going to the Senate as bills worked their way through as the substantive
legal person on regulatory reform. The last two years I served as general
counsel for the project as well as we set up the Department of Education. So it
was a wonderful way to see a lot of the federal government.
Mr. Lynch: We actually haven’t touched on that stuff much, so I wonder if we could break
it down a little bit. The first year you were OMB. Where was the office? Was
it in the White House?
Dean Areen: Physically it was in the new EOB, so that’s the red brick building across the
street from the old EOB.
Mr. Lynch: What was it like to be there during the Carter Administration?
Dean Areen: There was a sense, particularly at the beginning, of great possibility. There was
a general feeling that this was an interesting time. Carter, given his science and
engineering background, there were some comparisons to Hoover, was really
interested in structural things, hence this promise to reorganize. He, coming
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after the Nixon Administration, was viewed as somebody who would not lie to
the American people and was interested in promoting good government. There
was a great sense of possibilities in the beginning. By the end, and as you know
he was only a one-term president, the feeling, the assessment of history, was
that he was somehow bogged down too much in the detail and that he never
developed the right relationship with the Congress. It’s interesting again,
looking back now from a few more years, he went on to become, in my
judgment, one of the best former presidents we’ve ever seen. So again, today I
think people see the Carter that we had hopes for at the beginning of the
Administration. He was a very good man, a very decent man, who was willing
to put himself on the line, whether it was peace negotiations in other parts of the
world or Habitat for Humanity, and that is the part that was very attractive at the
beginning. But whatever the high hopes and ambition and excitement of the
new Administration, you pretty quickly run into some of the realities of
Washington, and the bureaucracy resists being changed in any way, and the
Congress has its own way of doing things, so there was a lot of learning that
went on. I would say one lesson I took from it that I certainly tried to follow
when I became dean here, wherever the winning candidate comes from, then
suddenly that’s the in-crowd, so, you know, we lived through when Reagan
came in, it was California, right now it’s Texas. So it was Georgia. If you were
from Georgia or had friends from Georgia, you were suddenly, whether it was
invited to the parties or at the table as policy was made. But each of those
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groups I saw, certainly the Reagan people, I don’t know the Bush people as
much, came in feeling and Carter started it, Reagan continued it, ran against
Washington in some ways because after all Carter was running against the
Washington of Nixon and the corruption of fundamental government. So if you
weren’t a Georgian, you were suspect. I guess by virtue of being a law
professor I was around enough they trusted me with more things along the way,
but they were most mistrustful, and this I view as a mistake, of the career civil
servant. And if there were anything I stumbled onto and certainly watched is, I
mean these are wonderful people who’ve seen a lot. They stay through the
administrations and while any new political administration has reason to worry
that they’d be against being reformed or changed in any way, I didn’t find that.
There’s a lot of information and talent if you’re willing to open up and listen to
them. I think it’s one of the reasons the Carter White House didn’t do better,
they were a little bit insular.
Mr. Lynch: Were there any specific instances that you care to comment on?
Dean Areen: Let me think on that. Nothing comes to mind right now that I’d want to talk
about, but I guess I would just say generally whether – because we were going
into the details of how things should be done. I’ll give you one instance of what
we did as opposed to what some people didn’t do. We went and visited Elliot
Richardson and it was a great talk. I suppose at some level you might say well
this is a Democratic administration, how could we be talking to a member of the
previous Republican administration. They had put together a very good plan for
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the Department of Justice. It had some very good things in it, and he was happy
to talk about it. I mean, we’re all Americans, we want the government to be
better. Some of those fundamental good governance ideas should and can
transcend political differences.
Mr. Lynch: Were there other issues that you can remember in the Justice reorganization or
the Justice part of this?
Dean Areen: Yes. In addition to who can litigate, a major issue – now remember, this is
1977, 1978 – had to do with access to computer databases and it was just
stunning to me, not that we were that far along at Georgetown but coming in,
there was no way the U.S. Attorneys could communicate, and there was a
system of research that had been put together essentially by the Uniformed
Services called – I’ll have to go back and find some notes to refresh my memory
– so they were not using Lexus or any of the commercial databases. There were
also real limitations to it. They didn’t have a case management system. Now
this is all pre-Web, so you really have to go back in your mind, but the notion
that one U.S. Attorney would not know what another U.S. Attorney was
investigating much less litigating. I mean the first time you would find out you
had cases in conflict is when they came into the Solicitor General’s Office.
There was no notice system about what was coming up through the various
U.S. Attorney’s Offices, much less a method for sharing briefs and work
product. It is one government, but it was really operating in all these
independent fiefdoms. So we went out of our way to talk about how there could
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be better communication and access to legal research and more effective
lawyering as a result of that. There was an Executive Order Carter issued, I
should go back and dig it out, but it puts all this in place. Now with the Web, it
seems pretty simplistic, but it was very important then.
Mr. Lynch: It’s hard to imagine life without it.
Dean Areen: Exactly. But it just didn’t exist.
Mr. Lynch: Did you follow Vice President Gore’s effort to reinvent government? Is what
you did similar to that project in any way, or does that indicate anything about
government bureaucracy?
Dean Areen: Well, sure there are always some similarities. I guess I would say I came out of
it feeling that there is no right way to organize the government and you can
always sort of rearrange the boxes. You can put together all the people who
deal with external matters – there was a plan floating around then that would
have done some of what Homeland Security has done. But at the time, without
the sense of terrorism, the issue was did you really want to move the Customs
Bureau out of Treasury, take parts of INS, the border guards, and put them in
one agency. There isn’t a right way, and I think it’s very important therefore for
somebody not to come in and say the focus will be drawing the lines, or
redrawing the lines. In the end, it should not be about process. It really does
have to be about other objectives, and I think it may have been a distraction for
Carter.
Mr. Lynch: Did he personally get involved in this project? Did you feel his presence?
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Dean Areen: We would send decision memos into him, and so yes, he did seem to, on an
ongoing basis, stay involved. Now how much of his time went into it, that I
can’t judge. We certainly for both of the projects had a meeting – I guess I
don’t have that photo here, but it’s my one time in the cabinet room with the
President as we presented the Department of Justice projects and another one
for the Department of Education.
Mr. Lynch: Is that including the Special Counsel to the White House Task Force on
Regulatory Reform or was that a different project?
Dean Areen: It was a different group within the White House, but the two worked in tandem.
Mr. Lynch: I’m looking at your resume, “Director of the Federal Legal Representation
Project,” is that what we’re talking about?
Dean Areen: That’s the Department of Justice. The first is who gets to litigate and the other
was the Department of Justice.
Mr. Lynch: Are there other experiences during the Carter Administration that you recall that
you’d like to have in your history?
Dean Areen: I think this is a good place.
Mr. Lynch: Can we go back a little bit? You said you had done work for the DNC for years.
What was that work, and how did you get involved?
Dean Areen: Starting in 1974. It’s interesting, I thought I talked about it. There was a
wonderful first-year student in my class, his name is Scott Lang, who was a
special assistant to the then Executive Director of the Democratic National
Committee, and this issue came up of how they were going to interpret these
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very complicated rules, McGovern rules, they’d adopted about how the
convention would be structured and how the states could form their delegations.
It was very complicated.
Mr. Lynch: Who had written the rules?
Dean Areen: They had arisen as a political matter in response to – then you have to go back
to 1972 when the McGovern folks challenged the process of some delegations,
so the result of it was they sat down and wrote new rules they would impose
themselves, but they were pretty complicated. A committee was set up, and it
was Scott who was in my class who said, “Gee, I think you’d be good at this,
wouldn’t you like to come be part of this committee?” So on a volunteer basis
in 1974 and 1975, I did that. It was very interesting. I then knew all the
delegate selection rules and ended up as Deputy Counsel to the Credentials
Committee in 1976.
Mr. Lynch: What were the issues raised by the 1972 rules, and what was the Committee
trying to do for 1976 that made it better?
Dean Areen: There were rules that changed and I won’t recall 1972 in precise detail, but it
used to be there were so-called super delegates, so basically your members of
Congress, both House and Senate, counted as part of the delegation, and then
there were rules about how the delegates were to be selected. There were also
rules about when the primaries would be held. There were challenges to some
of the delegate selection processes, and during that period some of the southern
states raised racial challenges to bias in the selection process, so the party had to
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set up – the courts didn’t want to touch this, appropriately – procedures that
were fair to make sure that the delegates’ credentials reflected a fair process at
the state level. It could get very complicated as racial challenges might arise.
Mr. Lynch: You said that you met your husband during this process?
Dean Areen: Yes, he was at the law firm then of Williams, Connolly, and Califano, and
Califano had been the chair of the Credentials Committee in 1972 and there had
been some follow-up litigation over Watergate because the DNC was also trying
to get access to some of the information, and they worked together on that.
Mr. Lynch: What information?
Dean Areen: About Watergate. It was just at that period, because the DNC is where the
break-in occurred; so they had brought litigation trying to understand more
about what was going on and at what level at the same time the Post is covering
through Woodward and Bernstein the sort of story unfolding from the reporter’s
point of view. The DNC was through civil process, using discovery to try and
get at more information.
Mr. Lynch: Who was the main defendant?
Dean Areen: James McCord.
Mr. Lynch: That was played out in D.C.?
Dean Areen: Yes. Federal Court. Just before the convention in 1972, the lawyers for the
Committee to Reelect the President got a stay in the civil litigation or more of
the Watergate story might have come out before the election. As you know, in
the end, really the story didn’t come out until after the election. Having worked
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on all of these matters, my husband was asked to be counsel of the Credentials
Committee. We didn’t know each other at the time. I had gone off to the
University of Michigan in 1976 to visit.
Mr. Lynch: As a visiting professor?
Dean Areen: Right. And I remember getting a letter – well the first thing I remember is
getting a memo on some topic involving the challenges to the various
Credentials Committee rules and I looked at it and had this immediate sense of I
wonder who this Richard Cooper is, because all the legal work was done by
lawyers on a volunteer basis and, since they weren’t being paid, you didn’t
normally get the most careful work. I mean this was not only a very detailed
memo, it was fully footnoted and in blue book form and so forth. I later learned
he had been President of the Harvard Law Review, and I remember thinking
boy, I wonder who this Richard Cooper is, he sure can write a memo. Then
later, when I’m in Ann Arbor, a letter comes from Richard Cooper asking
whether I would be one of the deputy counsels to the Credentials Committee. I
was very flattered by that and wrote back yes. The first thing I discovered, it
didn’t take away too much, is that we deputies were perfect Democratic party
slate. He’d asked one woman, one African-American, and one, I’d forgotten the
third choice, but it was the appropriate balanced slate of all the special interest
groups. As far as I knew, that’s when we met, when there was the first meeting
of the staff of the Credentials Committee in June.
Mr. Lynch: Was the meeting in Washington?
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Dean Areen: Yes.
Mr. Lynch: Where was the convention that year?
Dean Areen: New York. By then I’d moved back to Washington, it was the end of the
semester. It was not until a significant period of time later, after we had not
only met and dated, maybe even after we were married, which was 1979, he told
me that actually that isn’t when we met. This is a very important family story.
It tells you a lot about my psychology because it was very important to me that I
be judged on the merits, so as far as I knew we had never met and he was
making a decision on the obvious good work I’d done, but some years later he
told me, actually he’d been at one of the meetings during that 1974-1975 period
with me and I didn’t remember him but he remembered me. It was still on the
merits, he assured me.
Mr. Lynch: When were you married?
Dean Areen: 1979.
Mr. Lynch: In Washington, D.C.?
Dean Areen: In Washington, February 17, which was a Saturday, and that Sunday was the
big snow. I mean the huge snow. Washington was shut down for three days.
There was much joking in our families because he was at that point Chief
Counsel for the Food & Drug Administration and I was at OMB, and so we
literally had not planned a honeymoon. We were ready to be married and it was
the right time so we did. But we were too busy to plan a honeymoon. We got
calls from our families saying, well, we’re glad you’re getting a honeymoon
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after all, but did you have to close down the whole city of Washington in order
to do it?
Mr. Lynch: Did you have any involvement in the convention for 1980?
Dean Areen: I helped prepare some briefing papers on some of the topics for – no, not in
1980 because our son was born in May of 1980, and so no I’m confusing dates.
It was in 1982 I did some work for Mondale who ran in 1984.
Mr. Lynch: What made you leave the White House?
Dean Areen: amin. [laughter] He was a week early which is rare for a first child, so I
actually hadn’t planned to leave until the week after, but these are wonderful
surprises. I enjoyed my work in the administration very much, I was glad to do
it, and they asked me at that point to move over to the Domestic Policy staff.
My portfolio would have been energy and the environment, and it would have
been very interesting, but it was very clear to me that it didn’t fit with having a
new baby so it was not hard at all to say no. I had something more important to
do. Now, as it turns out, since they were voted out of office, it would only have
been a couple of months anyway.
Mr. Lynch: What were maternity leave policies like then?
Dean Areen: I don’t think there were any so I had arranged to leave my job when he was
born. And I was returning to Georgetown. Ben was born in May so I knew I
was going back to the University as of September.
Mr. Lynch: Was your husband a partner at the time?
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Dean Areen: No, he also went in when I did, so I guess 1977 and went in as Chief Counsel
and stayed until the end of the administration.
Mr. Lynch: At the FDA?
Dean Areen: Yes, at the FDA. He was Chief Counsel.
Mr. Lynch: Who were some of the people that you became close with in the Carter
Administration?
Dean Areen: Harrison Welford, as I mentioned. Burt Carp was deputy director of the
domestic policy staff, and we worked together quite a bit. There was a large
group of people in the President’s reorganization project itself, PRP it was
called for short, and my staff on both of the Justice projects were made up of
people detailed from other agencies around the government, so it was actually
terrific and interesting because we brought in folks who had a lot of
information, and that’s part of why I have such respect for the good career
people we have in our government, and OMB was full of them. But I had the
sense even then because the folks who’d come in with Kennedy, some of them,
but even more I guess you’d go back, I guess we had people from the end of the
New Deal who were retiring and there are only certain periods where the stars
are aligned right for people to be drawn to public service. The New Deal
certainly did that. At OMB, at some of the highest levels, people who had given
a lifetime of great service and had so much knowledge, and I could see they
weren’t being replaced because Carter and then Reagan and it’s continued,
essentially ran for office against the government. To call it a bureaucracy as
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opposed to ask what you can do for your country, who would want to be part of
Washington? I worry about that still because then we end up with a government
that isn’t the government we would like to have.
Mr. Lynch: Back at Georgetown in 1980. What was it like to be back? You had taken a
sabbatical for three years?
Dean Areen: A leave without pay.
Mr. Lynch: What was it like to be back?
Dean Areen: It was mostly learning how to parent and continue working. I would say that
was the big challenge that stands out. The second was I did make some changes
in my teaching to reflect the experiences I had been through. I taught
Administrative Law and I remember the first time I did it thinking well –
because I had just been through this whole process – boy do I know
Administrative Law. We were in a case after a month, and I was teaching in the
evening, and somebody said, “Well, Professor, actually last week we rewrote
that regulation.” So you teach Administrative Law to a Georgetown class in the
evening at your peril because you have such experience right there in the room.
It’s terrific, but it’s daunting at the same time.
Mr. Lynch: Especially a legislative class, or anything involving statutes I would think.
Dean Areen: Exactly. Then the other interesting thing I had published the Family Law Book
before I went in, but I was now working on law, science, and medicine as a
topic which later became a book, and an opportunity arose from people in the
medical center to come and teach a course to medical students at the end of their
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second year. So they finish their basic science studies, and it’s just before they
start their clinical rotation. The philosophy of the course was a terrific idea.
They were going to pair experienced academics with doctors, so you had both
the theory and the practice on the topic. And a lot of the academics teaching
were philosophers by training. But they wanted a lawyer there, and I was
already starting to work on issues of informed consent and so forth. It was very
interesting. For the next several years I did that because the ages of our law
students and of our medical students were similar, and their backgrounds too in
many ways. You could see the differences the professional training produced.
Mr. Lynch: What are some of those differences?
Dean Areen: Basically at least as medical education was structured then, it was very much
lecture, memorize, regurgitate; and so their analytic skills and their writing
skills atrophied before your eyes. At the very time when we were strengthening
those skills in law students, you could see medical students turning into doctors
who couldn’t spell, who couldn’t even write clearly enough to do a prescription
pad. There was a lot of interest on the legal side in how informed consent was
going to transform the doctor/patient relationship, and it is a very important,
very interesting concept. You can write all the statutes you want or informed
consent forms, but if the doctor doesn’t accept the notion of why he or she
should want to better inform patients, nothing else will make it happen. So I
really felt good about teaching about informed consent to medical students
because I believed in this principal and that the relationship of doctor and
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patient should be a partnership, not a professional telling a lay person what to
do. I felt the best way to do that was to be part of the education of the young
physicians, for them to understand the benefit to them, that it wasn’t just legal
mumble jumble and there were good reasons as they could come to understand
it. I enjoyed doing that a lot and that took a lot of my energy and time those
first years back.
Mr. Lynch: How long did you do that?
Dean Areen: I kept teaching in that program until I became Associate Dean, so let’s see if I
can get the timing right. In 1982 and 1983, I don’t have it precisely, but that
academic year we were picking a new Dean. And as was true in 1975 and 1976,
I was again on the Dean search committee for some reason. It was again a very
interesting experience. In fact, I’m remembering now, the then-President, a
wonderful Jesuit, Timothy Healy, called me up and asked me to chair the
committee, and I refused and he was very unhappy and you don’t do this lightly,
but what I knew but could not yet explain was that we were still building our
family, and indeed by the time the committee was started, I was visibly
pregnant. Then he better understood why I hadn’t been willing to chair. At the
end of the process, Bob Pitofsky was picked as the new Dean and we were
thrilled. He came to me and asked if I’d become the – we have different titles
from then, but the primary academic associate dean. Basically what Associate
Dean Wendy Purdue does now. I said to him what I’d said to the White House;
this is not a first baby, it’s a second, and I know it’s only going to be harder, and
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I couldn’t possibly take that on a new job, and he said, “I’ll wait a year.” What
can you do? He was very good and waited a year, so I felt more pressure then
not to say no again. So in the Fall of 1984 I came in as Associate Dean.
Mr. Lynch: What was the dean selection process like, the first dean selection process you
were involved in?
Dean Areen: The first one was back in 1976, and it was a committee chaired by an alum,
Judge Tamm chaired it, and there were more alums than faculty or maybe an
equal number.
Mr. Lynch: Is that Judge Tamm on the D.C. Circuit?
Dean Areen: Yes. I remember we were doing our background checks on the candidates and
he said, “Oh I’ll have the FBI do it.” I don’t know if he did.
Mr. Lynch: What were the demographics?
Dean Areen: I was too young to understand much of what was happening then, I was mostly
watching it, and we were very lucky I think that Dave McCarthy took on the
task at the end of that process. He was a very good dean. He was not
particularly known outside of Georgetown, but he had such an ability to find
talented people and to organize an institution so it could work effectively, and
he created what is still today the basic structure that makes this very large law
school work. Some faculty come in part-time as associate dean but the real
work is done by this terrific group of full-time administrators who are assistant
deans. Despite the title, they really make it work. Dave McCarthy hired a
number of people who are still here today: Ruth Leonard Reeves, Edward
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Bellamy, I mean he had an eye for talent. I paid more attention to the search
committee that picked Bob Pitofsky, and it was a model that worked well so it’s
one we followed again this year as closely as we could. Basically, that
committee, like the one this year, had seven faculty from the law school plus
one from each of the other two campuses, so a total of nine faculty. One of the
law school faculty chaired the committee. In 1983 the chair was Jim Oldham.
There was a similar committee when I was picked, but obviously I don’t know
about that committee. Dave McCarthy, the former dean, chaired so we followed
that tradition for a second time this year, and Bob Pitofsky, a former dean,
chaired the committee. For those three searches, seven faculty from the law
school, one from each of the other two campuses, and a student. The one
change we made this year is we added an alum, and I would say that is a change
from fifteen years ago from the search in 1982 to now is the alumni are just so
much more involved and engaged and committed. I couldn’t imagine having
the search go forward without them.
Mr. Lynch: How was the 1976 process constituted? You said it was more dominated by
alums. Do you know who set that up?
Dean Areen: It was a committee picked by the president. Now what I don’t know is in the
1983-1984 search – I’m sorry it would’ve been 1982-1983 for Bob Pitofsky –
how much the then-dean Dave McCarthy was encouraging the president to do it
in this way, but there was clearly a dramatic change between the earlier search
and the search at the end of Dave’s deanship. My guess is that he both strongly
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encouraged the president to have a faculty-dominated committee, and I would
imagine the faculty itself had shown itself to be a much stronger group and
helped persuade the president to have confidence in their ability to really lead
the search. It’s very much the tradition at law schools not necessarily at all
schools of a strong faculty role in selecting a dean. If you’ve got a good faculty,
it seems to me an important tradition to maintain. I don’t recall how the faculty
were picked in 1982-1983, but in 1988-1989, where I was paying more
attention, it was a two-step process. First, Dean Pitofsky invited everybody in
the faculty to nominate, I’ve forgotten the number, but let’s say ten people who
they would like to have on the committee. He then went out to those who got
the most nominations and said if you’re selected by the president, are you
prepared to serve? That’s the time when somebody who thinks he or she might
want to be a candidate is supposed to say “no I can’t serve” for one reason or
another. Then the slate of nominees goes back out to the faculty and they vote
for those they prefer. The reason the final vote results were not made generally
public is that it gave the president some flexibility. Let’s say there were far
more women than men, he could add one more man to the committee.
Basically, President DeGioia was guided by the faculty and as I’ve said to the
faculty, he was very faithfully guided by the faculty. Although formally the
committee is appointed by the president, this early nomination process means
the vast majority of the committee are picked by the faculty themselves. Then
there’s a tradition of relying in part on the faculty senate or the other campuses
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for the other two faculty, and then for the student, the SBA nominated students,
and I sent those names into the president, and then for the alumni representative.
There’s a wonderful lawyer, Denny Meyer, who’s a partner at Baker &
McKenzie, who’s this year’s chair of the Board of Visitors, so he seemed the
ideal person and was willing to do it. That was the committee.
Mr. Lynch: What do you recall about the 1989 process?
Dean Areen: As little as I can. I was on sabbatical 1988-1989, so I really do not know much
about their process. In retrospect it was just fortunate. I went on sabbatical
because it was time and I had won a fellowship with the Woodrow Wilson
School, and it was just a wonderful year. It was my first-ever sabbatical
because I had held them in reserve when I was younger because there was no
maternity policy.
Mr. Lynch: When do you get sabbaticals? How long are they?
Dean Areen: It used to be every eight years, now it’s actually every seven. You either can
have a semester at full pay or, if you can get outside funding for part of it, you
can have the year at half pay. So because I had the fellowship, I was able to
take the full year. It was just wonderful. I went off with no intention of putting
my hat in, so I really paid very little attention to that whole process.
Mr. Lynch: Were you approached?
Dean Areen: Yes. Members of the committee that fall after the early applications had come
in, came to me and said they didn’t see among the applications that had come in
so far the person that they thought would be a good dean, so would I please,
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please, please put my name in. I gave it a lot of consideration and in the end I
did.
Mr. Lynch: What did you have to do to apply?
Dean Areen: Basically just say I’m applying.
Mr. Lynch: What happened next?
Dean Areen: Then the process started. But to trigger it, it was just to indicate a willingness to
go forward. We were treated well that year, and it pretty much was done that
way again, although I took myself very much out of the process this time. Some
deans try to influence the selection of their successor. It’s my strong belief that
it’s a faculty decision, and it was very important for me as dean to stay out of it
as much as possible. I viewed my role this past year as cheerleader which I’m
happy to do and spent time with any and all candidates who had any questions
to let them know why this would be a great thing to do and to leave the decision
making to the faculty and the committee. But, as with faculty candidates,
there’s a process and the way they did it this year, each candidate had I think a
day and a half all told where they went to a series of meetings where faculty in
small groups could ask whatever they wanted. They also were asked by the
committee to prepare formal statements. I don’t recall doing that in 1989, but I
may just not have a clear memory. Then the faculty conveys back to the
committee after he or she has been through the process its feelings about the
candidate. There’s a AALS standard that says a dean is to be selected with full
consultation with the faculty, and there’s a regulation suggesting that if a
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majority of the faculty is opposed to a candidate, they should not be selected.
Thus, the views of the faculty are very important. But in the end, it is the
committee that decides who are the finalists and either ranks them or not and
sends those names to the president. In the end, the president picks from the
final group. I was one of three names that went in to the then-president,
Tim Healy. The same occurred this year, there were three names that went in to
President DeGioia.
Mr. Lynch: What were the issues that the faculty was concerned about, if you can recall, for
each of these processes? I’m most curious if you can recall for your selection
and the latest dean selection.
Dean Areen: I would say what’s similar is that at each stage, and it’s wonderful for the
school, this is a faculty that is only more ambitious every year for themselves as
scholars and teachers and for the school. So the general issue before any of the
candidates was, what is it you’re going to do to make this a better school, and
what are some of the things you care about, what will be some of your
priorities? In 1989, as I was going through the process, the library had just
opened, and there was a feeling that this is wonderful, we’ve got our physical
facilities, but already people knew it wasn’t enough. We have these five-year
long-range plans that we do, and that planning process was just coming to an
end; and in the plan was the statement that we really do need to do something
about housing for incoming students, so it was a concept but only that. It was
also clear we still had both too many students and too few faculty. In that
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process, I had been part of it the year before I went on sabbatical and stayed
with it even on my sabbatical a bit because it was so important. Mike Seidman
was on that committee and had begun talking about it being time to rethink the
first year. So the notion of Curriculum B was on the table, and one of the issues
was would a new dean agree with that and support it and find ways to turn that
into a reality.
Mr. Lynch: It was already on the table in 1988?
Dean Areen: As part of the long-range plan, yes. It’s interesting that we’ve got a long-range
plan that’s literally being finished up in the next month-and-a-half, so as
Alex Aleinikoff begins his deanship, he has before him this consensus statement
from the faculty. The issues continue to be to recruit and retain the very best
faculty, to continue to work on affordability, that was the other one on the list in
1989 and is still on the list in 2004. We’ve got to have more endowment for
financial aid. It’s just terrible the pressures these student loans have on our
graduates. The big difference I would say is there wasn’t much talk about
international things in 1988, 1989. A little but not much. There’s a lot of such
talk in 2004. We need to be more global, and we need to be very thoughtful
about how we do that. We don’t just invite random international faculty or
students, so they’ll actually have sort of a mini strategic plan on international
matters that Alex will put together as he starts his deanship. So that’ll be a
fundamental theme.
Mr. Lynch: I guess we should say for the record who is the new dean.
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Dean Areen: I’m sorry. The new dean is Alex Aleinikoff, who currently is the Associate
Dean for Research. It’s one of the very good things in my judgment, very
auspicious for his deanship, a year ago when I announced this would be my last
year, there was a question about who would fill the deanships for the last year,
and three people were willing to continue. Vicki Jackson had done a wonderful
job but really needed to get back to her scholarship, and so I approached Alex.
My philosophy over these years has been, especially the last six or seven, to
invite faculty who might well decide to go on and be a dean and invite them
either to be an associate dean or to chair a major committee or both, and Alex
was an obvious standout for that possibility. I went to him and there were lots
of reasons for him to say no. If he was being more ambitious than a good
citizen, he might well have said no, on the theory that, once you come in as an
associate dean and you’re making decisions, you’re going to anger some people;
so you may well lose some votes. On the other hand, it’s a big place, and if you
want to be an effective dean, it will really help to have spent time as an
associate dean. I can’t imagine how I could have done the job if I hadn’t put in
those three years as an associate dean. I thought it was a wonderful sign that
Alex agreed to do it, and he’s been a terrific associate dean, and he continues to
do world-class scholarship. His scholarship, which is in constitutional law and
immigration law and policy, means he really is positioned to lead the school not
only in spectacular hiring on the faculty academic side but on international and
global matters.
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Mr. Lynch: Is there a third rail in the dean selection process at Georgetown?
Dean Areen: No. I would say there’s no subject that is taboo. There’s certainly no subject
somebody on the faculty won’t ask you about. I would say that part of this
process of having people serve as committee chairs or associate deans means
the faculty tends to have some sense of how you’ll do. It’s not exactly the
same, but it is close. It seems to me some people who’ve had discretionary
responsibility as an associate dean or committee chair may have shown that, that
they didn’t exercise it in a way that won them support among the faculty. But
it’s not by topic, it’s by personal track record if you will.
Mr. Lynch: Who was the chair of the committee that produced the new dean?
Dean Areen: Bob Pitofsky, just as the chair when I was picked was the former dean then,
Dave McCarthy. We continued that part of the tradition, which put me in line
for work down the road. I’m sure it’s true at any selective law school, but it is
particularly true here because we’ve been through a lot of changes over 25,
30 years. I certainly began with great respect, and it only grew in the job, for
the deans we’ve had here. They’ve been terrific for the institution and were
terrific for me because they never got caught up in faculty politics over sensitive
issues while I was dean, they never initiated matters while I was dean, but if I
ever asked for help, they were absolutely willing to advise and counsel and be
available. So I’ve pledged to Alex I’m going to try to be the model former dean
that I was blessed with. The best part of the tradition, I have to say, as the
former soon-to-be, is to give the new dean real freedom. The former dean is to
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be away for a year, physically away. So my great “sacrifice,” I must be on
sabbatical for a whole year starting in July. As I’ve told you, I’ve only had one
in 32 years. I am very ready for my second sabbatical.
Mr. Lynch: That is a” sacrifice” that you just have to make. I’m sure you’ll miss it though.
Dean Areen: I’m sure there are things that I will miss, absolutely. But I am absolutely
content with my decision. It really is the right time. I think we have
accomplished things, and I say “we” deliberately. The associate deans, the
senior administrators, and the alumni have made possible the changes that I
sometimes am credited for. But when you take it on and you do five years at a
time, that’s the understanding, you’re responsible not just for sort of making
sure things work day-to-day but to think about moving it to a better place over
the next five years. Having tried that three times, I’m really ready for someone
else to take it on. I’ve had the opportunity to put into place most of the notions I
had of what might make the school better, and it’s really time for fresh vision,
and that’s Alex. So I feel very good about stepping down.
Mr. Lynch: I’m going to go out of order here. There are more things I want to talk about,
many more things about being a dean. Just to make sure we’ve covered
everything on this long resume, do you have anything to add about your time –
let’s see, it says Advisory Committee to the Secretary of Defense on Women
and the Services, 1979 to 1982. Is there anything that you want to add to your
history about your experience on that?
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Dean Areen: I’ll say a couple words about it, about DACOWITS, as it’s called for short. As
you will know, in the 1970s, the changes in the legal treatment of women were
really starting to hit everywhere, including the military. Someone I’d gotten to
know well was working for then-Secretary [of Defense] Harold Brown and told
me about the group and said they were trying to recruit women from civilian life
who could be helpful on these issues, because they knew changes were
necessary but they had to do it in a way that could be accepted by the military.
It’s a very interesting group because it was a mix of career women military and
civilians, and we dealt with a range of issues, including some quite arbitrary
limitations on what women in particular services could do. For example, there
were limitations in the Air Force on the kinds of flights you could do vis-à-vis
combat. There were comparable limitations throughout the Services. And the
problem is that the way the career ladder was designed, by barring women from
certain activities, it meant they could really never rise above a certain level on
the career ladder. There were also questions about the Service academies, not
the ones that have come out just in the past few years about sexual harassment,
but about opening them to women. I found it to be a very interesting committee
to serve on. We were advisory only. But I was pleased to be helpful in ways
that I could. Some of it was just spending time with some of the career military
officers who had never dealt with professional women, to help them reach a
level of comfort that it was possible, women could be given responsibility and
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carry it out and it would in fact be for the good of the Service. So we made
some progress during those years.
Mr. Lynch: Were there any formal changes made in terms of, for example, the flights or in
terms of what combat role women could have?
Dean Areen: There were the beginnings of change. There isn’t something large I can point to
and say this came out of the committee at that time, but I feel very good we
were part of a pattern of change that certainly has continued as we see in Iraq.
But we also see the downside of the change because if women are in combat,
some women will be captured and injured and killed. But I think that’s part of
opening positions on the merits that should not be in my judgment limited by
gender.
Mr. Lynch: I see from the dates you were there as well for a short sting during the Reagan
Administration.
Dean Areen: It’s just that your service on the committee carries over.
Mr. Lynch: Any significant difference in how – did that issue change?
Dean Areen: It did not at that point, but, as I said, my sense is it’s changed in the last couple
of years. Now it may be that enough has been accomplished they feel the
committee is not as important, and I have not been involved for nearly 20 years.
Mr. Lynch: The Board of Directors for the Society of American Law Teachers, from 1976
to 1978: is there anything you’d like to add to your history about that
experience?
Dean Areen: No.
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Mr. Lynch: The Board of Governors of the District of Columbia Bar, from 1979 to 1981.
Dean Areen: That was terrific. I really enjoyed doing that very much. I think all members of
the Bar should at some point provide service to the Bar. This is one of the great
bars in the country. It has a tradition of being thoughtful on important issues
and leading, not just following, on how we work out particular rules.
Washington has different lawyers than some other lawyers. Marna Tucker, of
course, is the first woman to be president of the bar here and is a graduate of the
Law Center. There are still too many bars that have not had women leaders.
Mr. Lynch: Was she president during your tenure?
Dean Areen: No, she was not.
Mr. Lynch: Do you recall who was president?
Dean Areen: Let’s see if I can get the order right. It was John Pickering my first year. Then
it was Steve Pollak, and, finally, Jim Bierbower.
Mr. Lynch: Did you stand for election?
Dean Areen: Yes. You’re elected. A ballot goes out to all members of the bar. I would say
the fact that I had a Georgetown affiliation probably made a difference because
there are a lot of Georgetown lawyers in the area.
Mr. Lynch: Were you approached to run for the Board of Governors? What was the
impetus?
Dean Areen: Someone asked me, but I don’t have a clear recollection of it all. At that point, I
knew I was not planning to stay on in the government, but I had enjoyed my
public service and I thought it was something I could do even as a mother.
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Mr. Lynch: Do you remember whether the bar was grappling with any particular issues
those two years?
Dean Areen: There was still a lot of tension, I don’t know that it’s gone away, between the
big firm lawyers and what were in those days at least referred to as the Fifth
Street Lawyers. My guess and concern is it still tends to be true: the
disciplinary actions tend to focus more on the individual lawyers, not because
they’re less ethical but they don’t have the resources and the partners and the
depth of staffing to be as organized on their cases. That created a certain level
of ill-will, I think it’s fair to say. There was a real effort made, and Steve Pollak
and John Pickering were so good about it, really to make sure that both, on the
Board and whatever committees were set up, that everyone felt they had a place
in the bar and were respected in the bar. I thought that was very important.
Mr. Lynch: In the time that we have left, depending on how much more time you want to
go, what I really want to talk about it is how do you teach the law and has your
view changed over time. What is it that law schools are trying to give to their
students?
Dean Areen: Great question. I hope it’s changed, and I hope the way I approach teaching is
more effective. We’ll really test it again because part of what I want to do on
this sabbatical is refocus the way I do some of my courses. I would say if I’ve
come to anything, it’s not startling, it is the importance of having a problembased
approach to teaching. When I went through law school, and there’s a
tendency to reproduce what you experience, it was very case-focused. I don’t
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mean that we should lose that, and I think the first year, in particular, still has to
really focus on what we call the case method, close analysis of cases and sorting
out what is precedent and what isn’t and what can be distinguished and what
can’t. They are fundamental tools. But it would be a great mistake to do that
for three years. That was Christopher Columbus Langdell’s breakthrough in the
19th Century, and a hundred years have gone by. By problem-based, I mean
first of all to make sure that on the table, as you deal with a problem, are nonlitigation
solutions. We’ve been too litigation-focused. It also means that
people have the ability not to just to tell you what happened in a case but to
think about, as a matter of strategy, how that will resolve a particular problem.
In family law, which is one of my areas, I take it one more step, which is to
think about the law’s impact on the individuals. It’s true in business law, but I
think we as human beings better understand the family law context. You can go
in and read a divorce case but somehow it’s just as important to find out what
happens in a year or four years or ten years to the parents, to the kids, to the
relationships set off by that interaction with the court system. Because if we fail
to do that, how can we ever improve the way the law intervenes at a particular
point in time? I think also it becomes a way of raising the ethical questions. It
isn’t that I think that lawyers are less ethical than other human beings. Who
knows, they may be more in some ways. But, unless you continue to emphasize
the ethical dimension of the job, when you’re teaching it, it won’t be second
nature when people go out and practice. I’d like to feel that we’re producing
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lawyers who are problem solvers, not just people who understand legal
precedents. That’s a different way of teaching.
Mr. Lynch: Is there something special about being able to manipulate precedent?
Fundamentally, is there something that makes law school the sine qua non of
being a lawyer, a practicing lawyer?
Dean Areen: Well certainly our early history is that people could read law [rather than go to
law school] and you can still take the bar in a few states, New York being one,
reading law. In that sense, it’s possible to be a lawyer without going to law
school. I think the experience of history is that those particular skills are
sharpened in a law school classroom in a way they can’t be reading law in a
lawyer’s office, in part because I do believe an important part of the education
happens with your peers. It’s not just interacting with the faculty member. It
isn’t that law school is the only way; at the moment, it’s the best way. Your
point about manipulating precedent, it seems to me so important for people to
understand that’s a tool but it doesn’t tell you where to come out, so having the
problem-based approach in your mind as you go through gets you more focused
on asking that question, all right, well if the precedent could go this way or that
way, what’s the right solution for this particular human dilemma, given all that I
know not just from precedent but from my understanding of history and human
psychology and economics. It’s also the creative part of lawyering.
Mr. Lynch: Within the realm of doctrine, not to be a doctrine hawk, but when you’re
standing up in the courtroom, there is still the belief by some judges, or at least
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the statement – some judges are more honest about it – that doctrine is itself, the
law in practice can be very formalistic.
Dean Areen: Absolutely.
Mr. Lynch: The belief or at least rhetoric suggesting that the law itself provides its own
answers to all legal questions and that having a problem-based methodology
constitutes taking a position on that, too.
Dean Areen: Well yes and no. You see, I’m saying in legal education it’s important that a
problem approach be taught, not just the case approach. Now, do I mean that
you take a problem approach in the courtroom? No. But being in the
courtroom is not the only way in which law resolves disputes, so there’s
analyses that are more or less important depending on the forum.
Mr. Lynch: With a first-year student coming in, what is being taught just when you consider
strictly the doctrinal approach? When you’re reading appellate decisions, what
is it one is doing or learning?
Dean Areen: It’s a great question, because I think it’s not clear. In a way, we are carrying out
this approach to teaching, as I said, that goes back to Langdell, and there are
different theories about what you’re accomplishing. You’re probably
accomplishing several different, his premise was that it was the scientific
method brought to cases.
Mr. Lynch: He was the dean of Harvard Law School?
Dean Areen: He was Dean of Harvard Law School in the late 19th Century and invented the
case method in the first casebooks; and the courses as he sets them up, in the
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1870s, look remarkably like the first year today. This is just after Darwin, it’s a
great flowering of the scientific method, so his notion was, we will go and
examine these cases and inductively draw out great principals of law just as
other people are going and studying bones and deciding a history of
development in a particular area of the world. And that’s true, so part of what
you’re doing is reading the cases for these grand principals, but of course the
minute you think about what’s in a casebook, you realize it’s an artificial
construct because you’re not reading all the cases. So you’re reading the cases a
particular professor chose to put in for a particular point of view, so that’s an
important caveat. I think, yes, you’re learning principles, but I think you are
also – and I’m not sure Langdell was as conscious of this at the time – you are
learning about an approach to solving legal problems because you see first of all
there’s a real problem presented, depending on the opinion, you probably learn
about the arguments on both sides, and then you see how in this case the
decision-making judge deals with those conflicting approaches to this set of
facts. So you’re not just learning the holding of the case, if you will. Certainly
my experience going through as a first year is this is very frustrating, why do I
have to read all this stuff, why don’t they just give a synopsis? Because you’re
learning much more than the holding of that case. You are learning about how
law engages the problems and over time can develop not just doctrine but better
solutions. That’s really the genius of the common law.
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Mr. Lynch: In terms of first-year students, do you see the change as they continue through
the year?
Dean Areen: I see it every Spring. It’s quite wonderful, when we have our Leahy
competition. They haven’t even had a year of law school, and I’m usually there
for the finals. Four students get up, and typically they are in different first-years
sections, so there are all these first years in attendance [their classmates], and
real judges, as you know, preside. The first year students then argue and they
are more professional than some of the people I could go over and hear in the
federal courthouse this very week. You also can see it on their faces. The
students realize they actually have learned a whole set of skills that they didn’t
quite understanding they were imbibing as they went through all those cases and
exams and everything during the year, and it’s wonderful. And the judges see it
too, because they see the talent and the intelligence in these young ones.
They’ve only had a year of law school but are more articulate in some ways and
more thoughtful in their arguments than are some practicing lawyers. It
happens that quickly.
Mr. Lynch: Does it not take in some people?
Dean Areen: I suppose. I mean certainly there are a few people every year who don’t want to
stay in law school. I suppose that’s the most extreme, pretty small group.
There’s a larger group who never practice law although time and again when I
see them as alumni they say. “but I use it every day,” whether they’ve gone into
business or real estate or whatever it might be. Because we’ve taught you to
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analyze several things. We’ve taught you to analyze the problem, we’ve taught
you to organize facts, we’ve taught you to evaluate arguments and counterarguments.
That’s a powerful set of tools. There are certainly things that don’t
work well in law school, but I must say I think one thing that continues to work
really well is the first year. Over the years we’ve had a number of people
who’ve already had a PhD who enroll and tell us that this is just so much better
than the education they received in graduate school.
Mr. Lynch: In what way? The rigorousness of the analytical thought?
Dean Areen: Yes. It’s not that they’re reading great literature.
Mr. Lynch: This brings me to a different topic, but when you said great literature, I think it’s
Judge Posner who said that law is really just rhetoric, it’s not precedent, it’s
your ability to convey an argument.
Dean Areen: I’m sure he says it as a law professor. Now as judge, I’m sure he expects people
to follow his holdings as if they are wholly real.
Mr. Lynch: I wonder if Seventh Circuit litigants feel the same way.
Dean Areen: Exactly.
Mr. Lynch: I know there’s a legal research and writing class taught here as a mandatory
class for first years, to what extent are students required to write beyond that?
Is there an A and a B requirement?
Dean Areen: We’re actually down to an A, so you do a major paper either second or third
year, or more than one if you want, there are electives. I would say we continue
to struggle with doing enough writing training although I will add where there
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are problems, and there are some, it’s people who come in from very good
colleges with fairly weak writing skills. I don’t know if this the revenge of
television or not but it does seem to me – I think every generation says it – but I
sense that there are just weaker writing skills and so it translates into weaker
legal writing.
Mr. Lynch: Does that correspond to a particular type of college major?
Dean Areen: No. We’ve looked, and it varies. Some students are wonderful writers, but we
have some students who come in who are not good writers, and it’s hard to do
enough at this point in their education to overcome fundamental deficits in
organizing clear sentences.
Mr. Lynch: How many first year sections does Georgetown have?
Dean Areen: Three day sections follow the more traditional curriculum; the fourth is what we
call Curriculum B. The evening division curriculum is also the more traditional
one, so there are a total of five sections.
Mr. Lynch: Now, you said in 1989, but even back in 1988?
Dean Areen: It was 1989 when we developed an alternative first-year curriculum. It’s been a
hundred years since Langdell. So we took a full cross section of faculty, one
contracts professor, one torts professor, one constitutional law professor, one
criminal professor, and gave them all reduced time to work on the new
curriculum. We received a grant from the Department of Education, the only
grant they’d ever given to a law school, for curriculum innovation. It took more
than two years. And the faculty basically talked through a new curriculum and
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then wrote in effect five new casebooks. They haven’t been published that way
but they each did a full, new curriculum for their subject matter. Several things
showed up immediately. The students who do Curriculum B like that the
faculty all are linked in a common enterprise more than the five who are
randomly put together in Section 2, for example. Indeed, often, not every year,
but depending on who’s teaching part of the curriculum, you’ll study the same
case the same week in both civil procedure and torts for example. It’s nice to
see connections because in the traditional sections it seems as if these are five
silos that never talk to one another. There is also much more emphasis in
Section 3 on reading secondary literature, some of the great articles. Being able
to understand more of the history in the late 19th and 20th century of the
evolution of approaches to law, understanding legal realism, et cetera, and yet
still covering the same content of the traditional first year, including enough
case analysis to be able to do it. It took the faculty two years to put it all
together, and then we started teaching it. For the first two years, a member of
the faculty who was not part of this group either attended or listened to every
class that was taught so there was a really full assessment by the non-advocates
on the faculty. We also tracked the students, so we could check whether, as
they went into second-year courses, because they were randomly mixed, was
there any difference in their grades, was there any difference in their ability to
find employment? We concluded there was no difference. Now you might say
so then why do it, but that was taken to mean well we’re doing it in a different
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way and yet it is as effective in measurable ways, and in terms of satisfaction,
for those who were in Curriculum B it’s higher. There’s also been, as is
inevitable, it’s not good social science but it’s the way human beings do this,
there’s a way in which the sections resemble each other more. We had just put
in small sections into the traditional, so they created extra sections of the course
Legal Justice so they would have a small-group experience. We redid the
traditional sections and there were still two or three courses that went all year
and reduced everything to not more than four hours, so that created a window in
the spring, and there’s a series of electives that are set up, not any upperclass
courses, they’re set up for first years, and they tend to be as we call them
perspective courses, so it’s a course in legal history or a course in legal
philosophy, a course in comparative law, and in those subject matter courses,
you get more of the perspective interdisciplinary approach that is a major
feature of Section 3. Then there’s faculty. There are faculty who teach one year
in a traditional section and the next year in Section B, and vice versa. So, with
the same person teaching, although the course name may change, the
approaches may overlap. As a result, the traditional sections are in some ways
more like Section 3, and Section 3 is in some ways less different from the
traditional sections.
Mr. Lynch: Who was on that first committee if you recall?
Dean Areen: Mike Seidman was the moving person. It was Dan Ernst, I believe, Warren
Schwartz, but I’d have to check myself on that, Gary Peller, and I think
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Bill Eskridge. He certainly taught in it, I’d have to double check that he was
part of the original drafting group, but I think so.
Mr. Lynch: Was Mark Tushnet involved in the original drafting group?
Dean Areen: I’m sorry. Mark definitely was too, and he developed the course on government
process. I’m pretty sure it was Bill Eskridge who developed super procedure,
which was both civil and criminal. It was Dan who did property in time and
Mike who did political theory and constitutional law.
Mr. Lynch: Was Professor Allen involved, because I know she taught Legal Justice?
Dean Areen: So she might have. I should check to be precise.
Mr. Lynch: Who was the faculty reviewer of all those?
Dean Areen: There was a separate committee, so they shared it. There was a review
committee that for two years did nothing but review, and so the first question
was – and then we gave an interim report, things looked good, and then we had
a long faculty meeting with a lot of discussion about has it gone well enough,
we’re now four years into it, to make it a permanent alternative, and we did.
What’s nice is that the students who elect Section 3 finish feeling this was a
much better first year; they couldn’t imagine having done anything else. And
the students who don’t select Section 3 feel the same way. So we’ve been very
fortunate.
Mr. Lynch: Was there opposition? A lot? A little? If so, what was the grounds?
Dean Areen: There was less opposition than there would have been to redoing the first year
as a whole because if you try to impose a new curriculum it meant everybody
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would have had to change the way they teach. In a way, the genius of doing one
section was as long as you can find in a given year six faculty who believe in it,
you can have the alternative section. So I think that’s part of why it went down
more smoothly.
Mr. Lynch: Over time, did people volunteer?
Dean Areen: Absolutely. And just as with any section, we’ll go out and recruit people for
those courses. As I said, over time far more than six faculty, two or three times
that, have taught at least once in Section 3.
Mr. Lynch: What have you heard from the professors who usually teach the second- and
third-year classes about the students who come out of Section 3?
Dean Areen: The general consensus is they are better read in the secondary literature, which
you would expect. They’ve read more of the interesting law review articles.
They know a set of arguments around realism or gender discrimination or
gender approaches to law.
Mr. Lynch: Are they weaker on doctrine?
Dean Areen: No.
Mr. Lynch: They just have more tools.
Dean Areen: Right. More tools. And particularly to academics, that’s good. Now it’s not as
clear for employers, but we’ve watched it and we can find no difference in their
attractiveness to an employer. For a while, for several years, people had to
explain these funny names, what is democracy and coercion.
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Mr. Lynch: How would you compare the stereotypical Yale first year to the Curriculum B
first year?
Dean Areen: I don’t really have a way to compare because Yale is pretty traditional. The
interesting place to compare and the influence on Georgetown was Harvard
because three years before we started – no, it was longer ago than that because I
was in the Carter Administration – we had Abe Chayes come down and he
visited for a year and they had developed what they call the Bridge Curriculum.
They would do the traditional first year and then they’d teach a week on
jurisprudence and then they’d do another month of traditional class and then
they’d teach a week on legal realism, and they did it in one section only, and it
was very well received. He came and visited and brought some of his materials
and people were inspired by it and said, well if it works to do that periodically
in the traditional first year, wouldn’t it be better to have it throughout the first
year? That was the genesis of the idea, could we do a whole curriculum.
Mr. Lynch: Now that the process has been in place for almost ten years, or has it in fact
been 10 years, has there been any thought anew about converting the whole
first-year curriculum?
Dean Areen: I don’t sense pressure for that, and students continue to vote with their feet.
Each year more than a section’s worth are interested in Curriculum B, but it
varies a little. It’s not a huge amount more, so it works well and we don’t get
people disappointed, at least over time, who didn’t get in; and there aren’t huge
numbers who are clamoring to get in. There continues to be talk about well
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maybe we should have a flavor to each section. You know, one could be a
section focused on public interest law; one could be a section focused on
international law. Now the proposals tend to be made by faculty who’ve never
staffed the courses and whoever the deans are responsible for getting courses
taught usually turn a bit green at the thought of the complications of that
because people go on sabbatical, and you know maybe you’ll do it for a year but
are you going to do it every year and can you move people around?
Mr. Lynch: I think is probably a good time to end.