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1965 The Research Program of the American Bar Foundation Geoffrey C. Hazard Jr. UC Hastings College of the Law, [email protected]
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Recommended Citation Geoffrey C. Hazard Jr., The Research Program of the American Bar Foundation, 51 A.B.A. J. 539 (1965). Available at: http://repository.uchastings.edu/faculty_scholarship/915
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Hazard, Jr. Geoffrey Author: Geoffrey C. Hazard, Jr. Source: American Bar Association Journal Citation: 51 A.B.A. J. 539 (1965). Title: The Research Program of the American Bar Foundation
Originally published in the AMERICAN BAR ASSOCIATION JOURNAL. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The Research Program of the American Bar Foundation
The American Bar Foundation, organized in 1952 as an integral step in the creation of the American Bar Center, is the largest legal research institution created in the United States since World War H. The present Administrator of the Foundation describes some of the broad and ambitious research programs it has attempted and some of the lessons it has learned. He also lists the Foundation's current programs and some that are under consideration.
by Geoffrey C. Hazard, Jr. * Administrator of the American Bar Foundation
THE AMERICAN BAR FOUNDA- history of this project, for it illustrates scientists in the country. Indeed, it is TION was incorporated in 1952 as an difficulties with which the Foundation precisely because those who conceived integral step in the creation of the then had to contend and which to a the project were so able that the prob- American Bar Center, the headquarters large extent attend any attempt at lems inhering in the project are worthy of the American Bar Association and empirical study of legal institutions. of present attention. its companion organizations. The The plan for the survey of criminal objectives of the Foundation stated in justice was later described as "the Limitations Hamper its articles of incorporation were: most ambitious and important research the Project project which has been conducted by The fact is that although intensive To study, improve and to facilitate 2 the Foundation". Indeed, the plan efforts were devoted to the criminal the administration of justice; to pro- mote the study of the law and research remains one of the most ambitious justice project from 1955 through therein, the diffusion of knowledge research proposals that has ever been 1957, physical, financial and indeed thereof, and the continuing education advanced in the legal world. It called political limitations made it possible in of lawyers; also to foster the integrity for a detailed study of all the processes that interval to do no more than the of the legal profession; to publish sig- of criminal justice from arrest to ap- field work and preparation of a prelim- nificant materials on legal subjects; to peal in all types of communities in a maintain a law library; and to pro- inary report of findings for cities in mote legal education. 1 dozen states from coast to coast. It three states which had been made the contemplated both an intimate ac. subject of a pilot study. Since that The research program of the Foun- quaintance with the subtleties of ad- time, these findings have been in the dation was formally initiated in 1954 ministrative operations and concrete, process of digestion and interpretation with the publication of The Adminis- objective comparative data. The di- under the direction of Frank J. Rem- tration o Criminal Justice in the Unit- mensions of the undertaking were not ington, professor of law at the Univer- ed States: Plan for Survey. This was minimized by its initiators, among sity of Wisconsin. the operational design for a project, whom were some of the most thought- A series of commentary volumes conceived in the first instance by the ful and sophisticated lawyers in the based on the survey is in preparation. late Justice Robert H. Jackson, for a country. Nor were its dimensions un- The first, on arrest, by Wayne R. La- comprehensive study of the processes known to its principal financial backer, of the administration of criminal jus- the Ford Foundation, whose staff and 1. Article V, Articles of Incorporation of the tice. It is worthwhile even this long leadership included some of the most American Bar Foundation, November 1, 1952. 2. AMERICAN BAR FOUNDATION ANNUAL RE- after the event to reflect briefly on the thoughtful and sophisticated social PosT, 1957-1958, page 14.
June, 1965 * Vol. 51 539 The Research Program of the American Bar Foundation
Fave, associate professor of law at the to learn the hard way, how to do em- developed in a particular project de- University of Illinois, was published in pirical research in legal institutions. pend very largely on the rigor and March, 1965. The remaining volumes, Much of the learning took place in the thoroughness of the analysis of the it is hoped, will come out during the Foundation. It is a testimonial to those problem that is made before going out forthcoming year. Proposals for select- who over the years have been the after the evidence. To put the matter in ed studies on limited topics and with Foundation's officers, staff and patrons more familiar terms, the evidence that limited objectives have replaced the -notably, the Ford Foundation, the will be developed by a research study original plan for a large-scale, nation- American Bar Association Endowment depends, in the same way as the evi- wide study patterned after the pilot and the Fellows of the Foundation- dence developed at a trial, on a formu- project. that this educational adventure per- lation of the issues at stake and an In retrospect the criminal justice severed even in the face of recur- assessment of the evidence appropriate research proposal appears much too rent disappointments. Fortunately, to illuminate those issues. Rigorous broad and complex. Indeed, it is not an the Foundation's program was bal- analysis of the issues is as important in exaggeration to say that the Founda- anced by successful completion of field research as it is in any other legal tion's research program staggered other, more modest projects. enterprise. Field research is expensive; under the administrative and intellec- if it is done pursuant to faulty analysis, tual burden of that project and another Experience Was a Good it will consume enormous amounts of money with little return. equally broad and engulfing study of Teacher for the Foundation modern law practice and legal ethics 4. The answer to the question The salient lessons learned in the that was undertaken at about the same whether in any particular project the Foundation and elsewhere concerning time. The consequent operational aim ought to be to obtain relatively empirical legal research are these: problems, let it be said again, flowed precise data, rather than seeking out 1. Empirical research cannot pro- not from the lack of foresight, skepti- more general, schematic or conclusory cism or energy of the authors of these duce evaluations of legal institutions. information, calls for a balancing of projects, nor of those who sought to At most it can develop evidence of conflicting considerations. These in- varying strength: There can be "hard" carry them out. It flowed from the clude the present state of knowledge simple fact that there was very little evidence, consisting of measured quan- and of research in the field in ques- practical experience, and virtually tities of things or events identified with tion; the relative public importance of none within the preceding decade, in relatively sharp clarity and discrimina- the subject matter; the foreseeably tion. There can be "soft" evidence, doing empirical research in legal insti- available funds and personnel with descriptive accounts of institutions and tutions. The ambition manifested in which to mount the project; the the American Bar Foundation's Plan processes considered as a whole. What strength of existing beliefs concerning for Survey was by no means unusual one obtains in the way of evidence, the subject matter; the time pressures, compared to research enterprises that speaking generally, can be no more internal and external, that exert them- 3 were undertaken about the same time, precise-no "harder"-than what one selves "to get something done"; and nor, indeed, compared to many over- sets out to find. the intrinsic complexity of the issues optimistic proposals that are being 2. The more precise the information and the availability of evidence--in advanced in one quarter or another sought, the more expensive, difficult any acceptable form-that could en- now. and time consuming it is to discover it. lighten the issues. It is a question of My purpose in reciting this record The questions that lend themselves to judgment, and as such it requires of the early years of the Foundation's precise answers at a reasonable ex- exploration, deliberation and consulta- research enterprise is not to reflect pense are narrow and neutral. For tion. And as with any question of adversely on the past and certainly not example, one can find out that pretrial judgment, in the end it calls for a to compare it invidiously with a glow- has some measurable effects on the decision based on an estimate of ing future. Rather, it is to point out outcomes of trials, and if sufficient probabilities. how terribly difficult, how complex, time and money were spent one could Another kind of research also was how time consuming and how expen- determine other effects of pretrial, but contemplated for the Foundation. This sive it is to study legal institutions one could not determine through em- consists of more traditional legal re- empirically. Putting it another way, pirical research whether pretrial is search, usually conducted in smaller 4 once it is decided that legal research clearly a good thing. In consequence, scale projects, aimed at ascertaining shall extend beyond a study conducted the inherent general interest of a re- the law in a particular field for a in books-the cases and the statutes search question and the degree to particular practical purpose or set of and the secondary sources-enormous which it is susceptible of precise proof purposes. This kind of research is difficulties in conception and technique are usually inversely related to each often essential or useful to enlighten are encountered, difficulties for which other, so that particular research can the work of the active agencies of the the lawyer's formal training and (gen- be either highly interesting or highly erally speaking) his practical exper- precise, but ordinarily not both. 3. Cf. Hazard, Book Review, 48 CALIF. L. ience simply do not equip him. 3. The relative precision and conse- REv. 360 (1960). 4. See ROSENsERG. THE PRETRIAL CONFERENCE It has been necessary to learn, and quently the value of the information AND EFFECTIVE JUSTICE (1964).
54,0 American Bar Association Journal The Research Program of the American Bar Foundation organized legal profession-the Sec- alization in the Medical and Legal tions and Committees of the American Professions (1964). Bar Association and comparable units The Foundation also developed the of state and local bar organizations. serial index Current State Legislation, The Foundation has conducted re- whose publication has now been as- search of this type since its inception, sumed by the University of Pitts- most notably in its Research Memo- burgh; a series of checklists of the randum Series. holdings in the Cromwell Library at the Bar Center, with special attention Research Program Must Be to publications of the organized Bar; a Planned and Balanced series of reports on the economic sta- A research program, as the Founda- tus and distribution of the legal profes- tion has come to know, does not-or at sion; and a number of monographs on a wide variety of subjects, many of least ought not-simply to happen. 6 Each project that is a component of the them published in the law reviews. program should be undertaken only The projects in progress, most of after a satisfactory accommodation has them commenced in Dean Stason's been reached among the competing administration, reflect an even greater A member of the Oregon and considerations involved. And at any diversity. The principal ones, in no California Bars, Geoffrey C. Haz- given stage in a program of research special order of mention, are: art, Jr., was graduated from there should be several projects vary- Corporate Debt Financing (in Swarthmore College (B.A. 1953) ing among each other not only in sub- special co-operation with the Section and Columbia Law School (LL.B. ject matter but also in scope, cost, of Corporation, Business and Bank- 1954). After practicing in Ore- schedule and hoped-for precision. ing Law): The development of modcl gon and serving as the state's Research is a risky business and in any instruments of a corporate debenture Deputy Legislative Counsel and as risky business it is prudent to have not indenture and a corporate mortgage, Executive Secretary of the Oregon only several eggs but several baskets. under the direction of Leonard Adkins Legislative Interim Commission From its beginning under John and Lawrence Bennett of New York. on Judicial Administration, he joined the law faculty of the Uni- Cobb Cooper as Administrator, the Federal Tax Procedure: T h e versity of California at Berkeley Foundation followed such a policy. Foundation-Brookings Institution study in 1958 and remained there until Mr. Cooper, indeed, is associated with of federal administrative and judicial he was appointed Administrator one of the Foundation's earliest major procedures in enforcement of the in- of the American Bar Foundation publications, Sources of Our Liberties, come tax law, by Professors L. Hart in 1964. In addition to those a compilation of chief documents in Wright and Alan N. Polasky of the duties, he serves on the faculty Anglo-American constitutional history University of Michigan. with accompanying notes and com- of the University of Chicago Space Law: An expanded study of mentary by Richard L. Perry. E. School of Law. the law of outer space, by Professor Blythe Stason, who became Adminis- Howard J. Taubenfeld of Southern trator of the Foundation in 1959 and Methodist University and S. Houston Fundamentals of Legal Draft- served until 1964, broadened the poli- Lay of the Foundation staff. ing: By Professor Reed Dickerson of cy of diversification in the Founda- the Indiana University. tion's research program. 5 In addition Lawyer-Legislator: A study of the Case Law L e g a I Research by to pursuing the criminal justice stud- ethical problems of lawyers who are in Computer: An analysis of methods ies, the Foundation under his adminis- legislatures, by Professor Howard R. by which case law might be searched tration completed and published: Sacks of Northwestern University. by computer techniques, by William B. Trends in Consumer C r e d i t The Model Business Corporation Eldridge of the Foundation staff and Legislation: An analysis of legisla- Act, Annotated (in special co-opera- Sally F. Dennis of International Busi- tion regulating the business and practi- tion with the Section of Corporation, ness Machines Corporation. ces of consumer finance, by Barbara Business and Banking Law) (1960). Hospitalization and Discharge Curran of the Foundation staff. Lipson and Katzenbach, The Law of of the Mentally III and The Men- Outer Space (1961). Representation of Indigent Ac- tally Ill Criminal Offender: Two Lindman and McIntyre, The Mental- cused Persons: A survey of the forms ly Disabled and the Law (1961). and availability of legal representation 5. He had been Dean of the University of Eldridge, Narcotics and the Law for poor persons accused of felony, by Michigan Law School for two decades before assuming leadership of the Foundation on his (1962). Lee Silverstein of the Foundation staff. retirement from Michigan. In the fall of 1964 he resumed teaching, as professor of law at MacKinnon, Contingent Fees for State Administrative Law: By Vanderbilt University. Legal Services (1964). Professor Frank E. Cooper of the Uni- 6. A complete list of the Foundation publica- tions appears in AmiascAN BAR FocanATON, Greenwood and Frederickson, Speci. versity of Michigan. 10TH AINIVERSARY REPORT 1963-1964, pages 24-32.
June, 1965 * Vol. 51 541 The Research Program of the American Bar Foundation parallel studies of the procedures, civil seems to me, ought to be to direct most influential. For another, the law and criminal, for determination of attention at the institutional aspects of will always require intensive analysis mental illness, by Richard Janopaul, the law. By this, I mean the organiza- of its terms and its purposes. Dr. Marcus Jacobson and Ronald tions, both public and private, and the But to identify at any given time in Rock of the Foundation staff. processes, both formal and informal, any given field what are the law's Trends in Continuing L e g a 1 through which the law functions. To terms and its purposes is not to guar- Education: By Carroll C. Moreland use a phrase that is inelegant but ex- antee the achievement in fact of an of the Foundation staff. pressive, the Foundation studies "law intelligent and effective administration Evaluation of the Canons of in action". I use the term to contrast of the law. To apply its terms and to Lcgal Ethics: A study in co-opera- this sort of research with doctrinal fulfill its purposes, the law requires tion with the American Bar Associa- research, the study and analysis of people, organizations, financial re- tion Special Committee on Evaluation what the law in some sense "is", and sources, political support and a viable of Ethical Standards, by Professor with legal policy research, the consid- reduction of social cross-purposes. It is John F. Sutton, Jr., of the University eration and exploration of what the a problem of means to ends, a question of designing ways to realize to a satis- of Texas. law ought to be. These are not, of There are other projects in the plan- course, exclusive categories, for a factory extent legal terms and objec- ning stage, including further studies of study of legal institutions requires an tives already identified and agreed to the administration of criminal justice, understanding of the law as it "is" and for the time being. a study of the conciliation services for a sense of what it ought to be, and a divorce courts that have developed in study of what the law is or ought to be Foundation Attacks Problems recent years, and research in the legal requires understanding of its institu- of Means to Ends problems of the poor. Still other proj- tions. But there is a difference in point In a complex society such as Ameri- ects are in the preliminary stages of of view and emphasis, and it is in ca's has become, the means problem- discussion, criticism and evaluation terms of this difference that the Foun- the problem of institutions to achieve and so are yet to be officially born. dation's program has taken principal legal ends-has become increasingly shape and will develop in the future. intricate, acute and challenging. It is Research Program Must Have It may be appropriate in this respect no accident that the legal research Unifying Conception to sound a historical note. It seems fair institutions created since World War In diversity there must also be unity, to say that, aside from the university II, of which the American Bar Foun- lest there be chaos. It is essential that law schools, the most significant insti- dation is certainly the largest and there be a unifying conception of the tution of legal research created in the perhaps the best known, have been Foundation's program so that it has an two decades following World War I concerned chiefly with these institu- administrative coherence, so that its and now surviving is the American tional problems. This concern is the various individual projects reinforce Law Institute. Originally conceived present program of the Foundation. each other in development of knowl- chiefly to rescue the common law from The program of the American Bar edge and of research technique, and so a supposed confusion, it is known best Foundation is an implementation of that there is a reasonably orderly de- for the Restatements, which are unequi- the Foundation's originally stated ployment of the resources put at the vocally research in what the law "is" objective "to study, improve and to Foundation's disposal. It is important and what it ought to be. The A.L.I. facilitate the administration of jus. also that the Foundation, insofar as continues to flourish not only in the tice". The task of the Foundation's possible, complement rather than com- Restatements Second, but also in its research program is to make it possible pete with the activities of other legal newer enterprises of model legislation, to know better the limits and the op- and social research organizations. The notably the Model Penal Code, which portunities for reform of the law and extent of ignorance about the structure represent policy analyses of what the its administration, to know the eco- and dynamics of legal institutions is law ought to be. nomic and social environment in which great enough to accommodate almost I do not wish to question the useful- members of the legal profession per- limitless research enterprise, but at the ness or worthiness of these types of form their functions and to establish same time it is not so great as to ob- research or of the institutions endea- the basis for hard-headed pursuit of viate the necessity for some co-ordina- voring to realize their achievement. On the public good. In a larger sense, it is tion of effort. The Foundation has the contrary, I think for one thing that a quest for the intelligent pursuit of sought and will continue to pursue a the Model Penal Code ought to go ordered liberty. These are the proper role in legal research that is both need- down as one of the most important aims of the organized legal profession ful and distinctive. works of scholarship in Anglo-Ameri- and the proper objects of study for its The basic role of the Foundation, it can law and surely it will be one of the research organization.
542 American Bar Association Journal