Harvard Law School - Yearbook (Cambridge, MA)

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commonwealths to receive and adopt a general Anglo-American legal system instead of experi- menting with codes. Such were the conditions to which the school of Story and Greenleaf 11829-48, responded. The spirit and methods of academic training were combined with the spirit and aims of professional training. Also, what was more important, law was taught and studied from a national or general point of view. The school of Parsons, Parker, and Wash- burn f1848-7Oj carried on and in a sense completed the work of the Story-Greenleaf period. In the latter part of the nineteenth century a new need arose. For a time the need was to digest what had been absorbed in the period of growth. For a season the need was, not to create, but to order and systematize. Langdell and his pupils and his followers addressed themselves to this need, and met it so thoroughly that the profession is now proceeding with assurance in a restatement of the law. It is significant that this restatement is chiefly in the hands of teachers trained by Langdell's method. The school of Langdell and Ames f1870-19101 had for its task organizing and sys- tematizing the law by the analytical and historical methods, reorganizing teaching method, raising the standards of admission and graduation, and, above all, development of a new type of law teacher. By the end of that period, the methods developed at Harvard had been adopted by the leading university law schools, which in turn had taken the leading place in American legal education. During the deanship of Ezra Ripley Thayer 11910-150 the work of the school of Lang- dell and Ames was carried on, but new tasks and new problems began to give concern, and since the war they have become pressing. As expressed in scholastic terms, these problems are: the training of teachers competent for a new period of legal growth, the training of scholars competent for a new type of legal research, the adaptation of Langdell's case system to the vast mass of material in the law of today, the continually increasing number of candidates for admission. As expressed in national terms, the economic unification of America and the transition from a rural-agricultural to an urban-industrial civilization, calls once more for a creative juristic method. The legal materials given shape for nineteenth-century America must be reshaped and adapted to twentieth-century America. The criminal law, conspicuously the weakest point in our polity, must be overhauled. Legislation must be made a more effective instrument of lawmaking. Enforcement of law must be studied scientifically and put on a more assured basis. There must be a better adjustment between law and administration than the traditional common law had provided. There must be an individualizing of the application of legal precepts and of the administration of justice, so as to give the largest scope for the individual life under the conditions of urban society, the technique of which is still to be worked out. There must be a growth of preventive justice, something which has barely begun. For all these things we must rely chiefly upon the law schools. Response to these needs has governed the development of the Harvard Law School in the present century. In order to meet these problems, the School has had to amplify its purpose. For a century the single professed aim was to conduct what is called a national school, seeking to prepare students to practise in any jurisdiction whose institutions are based upon the English common law. Down to 1871 there was a further aim of affording legal training to those intend- ing to enter public life or business, but Langdell made the School purely professional. From 1871 to 1928 the statement in the catalogue spoke only of such a training in the fundamental principles of English and American law as will constitute the best preparation for the practice of the profession in any place where that system of law prevails. Since 1928 the announced i221

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law in colleges without law teaching, and teaching of law in schools which in spirit and method were but law offices. Uniting the two ideas, combining the English idea of apprentice training with the continental idea of academic law teaching, as suggested by the Vinerian chair at Oxford, the Harvard Law School was the first university school of law in any common-law land. To the Litchfield sort of school it added a moot court, after the manner of the Inns of Court, and lec- tures by a university professor. Its possibilities were in the direction of an academic professional school, as contrasted with the purely academic law schools of Continental Europe, and the purely professional legal education which prevailed in England. It was the beginning of what has become a distinctively American type. A school of the Litchfield kind was suited to the condition of American law in the period immediately after the Revolution. In that period the task of legal education was simple. It was no more than to provide competent practitioners in the courts at a time when the chief work of the lawyer was in the trial of causes. Knowledge of the local procedure and ability to move juries were sufficient professional equipment. As yet there was no special requirement of anything which a law school could do better than a law office. Yet the Harvard Law School of this era did succeed in doing something more. At the end of the first decade Stearns could say with truth that he had raised the general standard of professional education by introducing a more methodical and thorough course of instruction. The course of reading and instruction at Harvard was adopted by other schools as well as by private preceptors, and no less than sixty members of the bar in different states had used it for a model. Thus the influence of the School upon legal education began at the outset. Change from a professional school under the eaves of a university to an academic professional school came with the appointment of-Ioseph Story as Dane Professor in 1829. By this time a new need had become manifest. English law could not be received exactly as it stood in the English books. There was need of legal provision for many things which were not dealt with by English legislation and which English judges had had no occasion to consider. Much in the English law had been given shape for conditions widely different from ours. It was needful to develop a system of law adapted to a new and growing country, to work out certain and detailed legal precepts equal to the requirements of American life. Apprentice- trained lawyers, knowing chiefly the mechanics of procedure and thinking locally, could not meet this demand, only law schools and law teachers could. Story was a common-law lawyer, and the traditions of English legal teaching en- sured that a law school under his guidance would be a professional school. But the philosophical ideas of the time in which Story was trained ensured that a school over which he presided would be a school of law, not a lawyer's office teaching rules of thumb. Also Story's zealous exposi- tion ofthe doctrines of English law in the light of a natural-law philosophy and of comparative law, enabled the school in which he taught to remain a school of common law. From Story to the American law schools of today is a continuous evolution. It has given us a system of legal education which grows out of and expresses the spirit of our law as completely as the Continental system expresses the spirit of the modern Roman law, and as the English system expressed the spirit of the medieval common law. Nathan Dane, in 1825, had the vision to see what was needed, and his endowment of the Dane professorship for Story was a turning point in American legal education. The re- sulting treatises, representing Story's teaching, met the need for an American development of equity and commercial law on the basis of English law, with the help of comparative law and rational philosophical speculation. Also Story's treatises made it possible for new American i2ll

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purpose of the School has included this with two other aims: to train law teachers, and to in- vestigate problems of legal adjustment of human relations and discover how to meet them effectively. These three functions have been implicit in the School since the time of Story, and how well the School met them is shown by the long line of treatises of the first importance that have been published during the last century, and the large number of teachers furnished by the school of Langdell and Ames to national law schools throughout the country. In 1918, about seven-three teachers in thirty-six schools, members of the Association of American Law Schools, had studied under Langdell, or Ames, or both. Until the present century it was possible to combine the three functions of professional training, training of teachers, and research, without any formal differentiation. It is no longer possible. In the year 1909-10 provision was made for graduate instruction, in 1912 there began to be a special programme for the training of teach- ers, and in 1926 endowment for research was provided. As things are today, sound and useful law, the object proposed by Nathan Dane, calls for more than the occasional writing of a law book by one whose primary task is teaching. It must depend in large part on investigation car- ried on by legal scholars who devote their lives to functional study of some Field in the legal adjustment of human relations, thinking ahead of legislation and adjudication, in order to teach us what the problems are, and how to meet them effectively by means of the law. Since Langdell joined the Faculty in 1870, it has been chiefly composed of pro- fessional teachers giving substantially their whole time to the School: men who had chosen law teaching and legal scholarship as their life work, not retired judges or practitioners. Stearns was a practitioner and teacher-preceptor at the same time. Professor Story was at the same time justice of the Supreme Court of the United States, and Professor Greenleaf went on with his practice. But since 1848 no teacher holding a professorship has tried to combine teaching with regular, continuous practice of his profession. Thus the conception of the professor of law as a full time teacher, giving substantially his whole energies to the school, goes back to the middle of the nineteenth century at Harvard. Elsewhere it made its way slowly. It had not come to prevail generally until the present century, and full time teachers were not required for member- ship in the Association of American Law Schools until 1916. Thus before Langdell the change had been made from a judge or practitioner who also taught, to a professor who might have been a judge or practitioner but gave his full time to his chair. A new departure came with the appointment of Langdell. He was a practitioner of experience. But he was chosen by President Eliot for his legal scholarship, his conception of legal education, and his calling to teach, rather that for conspicuous achievement in practice. Soon after his appointment Langdell took a radical forward step. Hitherto no one had been chosen to teach law at Harvard until after a long professional career. Langdell urged the appoint- ment of Ames without any practical experience because of his remarkable legal mind and suc- cess as a college teacher. In his report for 1873-74, President Eliot frankly refers to the appoint- ment as an experiment. The conspicuous success of this experiment made it the settled policy of the School to choose part of its teachers from recent graduates on the basis of scholarship, and with reference to their scholarly and teaching promise, In the present century this policy has become accepted by university law schools. In the modern world law teaching takes three forms: the continental academic type running back to legal education in ancient Romeg the English modified apprentice type I23l