Harvard Law School - Yearbook (Cambridge, MA)

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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

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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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Blackstone's and Kent's Commentaries, and was given each year. The second part, comprising what were regarded as the fundamental subjects QReal Property, Equity, and Constitutional Lawj, was given each year following the elementary part. The third part, comprising what were held to be the less fundamental subjects, was given concurrently with the first and second parts, but not the whole in any one year. For eight of these subjects, Pleading, Bills and Notes, Do- mestic Relations, Evidence, Shipping and Admiralty, Bailments, Wills and Administrations, and Partnership, the alternation was kept up with reasonable regularity, for others, such as Insurance, Sales, and Agency, a two-year interval sometimes intervened. Corporations, significantly, was given but seven times in twenty-four years. Teaching method developed with the curriculum. Before 1836 students came and went as they saw fit, exactly as they might have done in a lawyer's office. There was no regular time of entering or of leaving. In 1836, although there was still much irregularity in entering, it became the practice not to leave before the end of the term, in January otjuly. This made for more effective instruction. What was more important, Story and Greenleaf laid stress upon the scientific aspects of the law. As may be seen from Story's books, he relied much upon com- parative law, tried the traditional English doctrines by comparison with the modern Roman law, and sought to demonstrate their accord with the ideal principles which in the philosophy of his time stood for universal law. What had been good in the apprentice system, the close personal contact between preceptor and pupil, remained. This contact necessarily declined under Parsons, Parker, and Washburn Q1848-70j, when the several professors came to meet the students as a body only in the lecture rooms. For the rest, each was in his room studying and writing, receiving the students only one by one. From Greenleaf's day until the coming of Langdell, the curriculum changed little. The change was rather in teaching method. There was study of required texts. with quizzes in class upon the texts and oral comments by instructors. Gradually this developed toward a sys- tem oflectures on the several subjects, with an occasional quiz on the texts. In time this system became, as it were, stereotyped. No attendance and no preparation were required. There was no test of the work done. New subjects of the first importance in the law could arise and take a conspicuous place in the reports, yet be unnoticed by the teachers. Such was the case with the law of Torts, on which the first text book was published in 1859, and yet the School did not recognize it until Langdell's reorganization. Such a condition called for change, and the change came with Langdell. His first act was to rearrange the curriculum on a logical plan. Instead of teaching all the fundamental subjects in alternate years to a mixed class, first-year students took First-year subjects, and were not allowed to take second-year subjects until the examinations of the Hrst year had been passed. The elementary course in Blackstone and Kent was given up. Instead, the students picked up the elementary conceptions, and acquired the vocabulary of the law as they went along, and ac- quired a mastery of them by working out their application to concrete problems and their use in reported decisions. The law of Torts, the coming subject, was included in the first-year course along with the law of Real Property, Contracts, Civil Procedure, and Criminal Law. These five have stood ever since where Langdell put them, and this conception of the beginning of a legal curriculum has come to prevail generally. Equity and Constitutional Law, although funda- mental subjects, were rightly regarded as not beginning subjects and were put later in the course. To understand the method of teaching introduced by Langdell, it is needful to con- trast it with the methods which it superseded, namely, apprentice instruction in a law office, l25l