Sarah Ludington: The Dogs that Did Not Bark: Academic Freedom, Tenure, and the Silence of the Legal Academy During World War II
During World War II, the legal academy was virtually uncritical of the government’s conduct of the war, despite some obvious domestic abuses of civil rights, such as the internment of Japanese-Americans. This silence has largely been ignored in the literature about the history of legal education. This Article argues that there are many strands of causation for this silence. On an obvious level, World War II was a popular war fought against a fascist threat, and left-leaning academics generally supported the war. On a less obvious level, law school enrollment plummeted during the war, and the numbers of full-time law professors dropped by half. Of those professors “laid off” during the war, many took employment in government agencies and thus effectively silenced themselves. Finally, the American Association of Law Schools had only adopted a strong position on academic freedom and tenure in 1940. The commitment to academic freedom and tenure was insecure in many institutions and was only weakened by the severe economic strain of the war. To illustrate the effect of these larger forces, this Article tells the stories of five professors who criticized domestic policy during the war and the institutional consequences of their dissent. Of those professors, only one – a tenured professor at New York University – was fired during the war. While the basic building blocks of legal academies are the same today as they were in World War II, other factors such as strong institutional commitments to academic freedom and tenure, a robust First Amendment, and economic prosperity have significantly changed the roles that law professors are empowered to play in society, most significantly as the watchdogs of government.