Harvard Law School - Yearbook (Cambridge, MA)

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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

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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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going back to the medieval conception of the profession as analogous to a craftg and the Ameri- can academic professional type. In the maturity of Roman law in the ancient world, the writings of the chief juris- consults of the classical era had been given statutory authority. It was the task of the teacher to interpret and expound these authoritative texts. Likewise in medieval Europe, the Corpus juris was a body of binding legislation, admitting only analysis of the text and interpretation. As academic teaching of Roman law became the practical teaching of law for Western Europe, there developed two characteristics which persist to this day on the Continent. It is primarily a teaching of the art of using authoritative texts as the basis for administering justice. The law has been codified in substantially the whole of the Roman law world. But the modern codes assume a background of the modern Roman law which is the common law in all the jurisdictions in which these codes obtain. The method of teaching law under these codes is an academic method, by lectures, study of academic commentaries on the texts, and study of doctrinal treatises. The law taught is a university made law. From the beginning, English law has been a law of the courts. The great names of English law are the names of judges, not teachers. All teaching of law must be primarily a teaching of the traditional technique of developing the received legal materials, and of finding in them the grounds for decision of particular cases. In England, the art to be taught is a law- yer's technique of developing and applying the materials to be found in the law reports, not a teacher's technique of developing and applying written texts. Thus English law teaching has been a developed apprentice teaching carried on by practitioners. If the modern Roman law is jurist made, and English law is court made, American law has been given shape by courts, guided a.nd inspired by jurists who worked scientifically in schools upon a proved body of experience in the administration of justice. In American constitutional law, federal and state, we have had the same problem of developing a body of law through enduring texts, to which the science of the Roman law has been addressed for cen- turies. Here judges and teachers have each had a part. Thus there are two elements in our technique as distinctly as there is but one element in that of each of the others. As American law teaching grew to maturity, it was inevitable that it should develop its own method. In the school of Stearns f1817-29j instruction took the form of lectures and of ap- prentice work as in a law office, with the advantage of the school library, whereas in most law offices of the time books were relatively few. Stearns' lectures supplemented the office reading and the apprentice work of copying pleadings, conveyances, and legal documents. What Stearns called the course of instruction was no more than a course of reading such as a student might have pursued in a lawyer's ofhce. A distinct change comes with the endowment of the Dane Professorship and the appointment of Story thereto in 1829. Under Story, it is true, Professor Ashmun kept on much in the manner of Stearns. But with the advent of Greenleaf in 1833 came subdivision of the School into classes, thus departing decisively from the apprentice model. In 1846, this departure was carried still further by laying out courses in different subjects, after the manner of a college curriculum, in place of study of particular treatises after the manner of reading in an ofhce. From 1846 to 1870 there was a threefold course of study. The first part was elementary, study of l24l