Harvard Law School - Yearbook (Cambridge, MA)

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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

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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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and teaching in a law school from text books and by lectures and quizzes on the basis of text books. It must be remembered that in the Anglo-American legal system text books have no authority. Only statutes and judicial decisions have authority. The text book can do no more than bring together, arrange, and comment on these authoritative materials. With these things in mind, Langdell's statement of the basis of his method speaks for itself. In 1886 he said: If law be not a science, a university will best consult its own dignity in declining to teach it. Ifit be not a science, it is a species of handicraft, and may best be learned by serving an apprenticeship to one who practises it. If it be a science, it will scarcely be disputed that it is one ofthe greatest and most difficult of sciences, and that it needs all the light that the most enlightened seat of learning can throw upon it. Again, law can only be learned and taught in a university by means of printed books. If, therefore, there are other and better means of teaching and learning law than printed books, or if printed books can only be used to the best advantage in connection with other means-for instance, the work of a lawyer's office, or attendance upon the proceedings of courts of justice-it must be confessed that such means cannot be provided by a university. But if printed books are the ultimate sources of all legal knowledge, if every student who would obtain any mastery of law as a science must resort to these ultimate sources, and if the only assistance which it is possible for the learner to receive is such as can be afforded by teachers who have travelled the same road before him,-then a university for teaching and learning law. I wish to emphasize the fact that a teacher of law should be a person who accom- panies his pupils on a road which is new to them, but with which he is well acquainted from having often travelled it before. What qualifies a person, therefore, to teach law is not experi- ence in dealing with men, not experience in the trial or argument of causes,-not experience, in short, in using law, but experience in learning law, not the experience of the Roman advocate or of the Roman praetor, still less of the Roman procurator, but the experience of the Roman jurisconsultf' In saying that all available materials of the law are contained in printed books, Langdell meant that as between learning from imitation of one's elders in a law office, and learn- ing from study of the reported decisions of the courts, the materials of a science of law were to be found in the books. Questions which have arisen in the present century as to the need of going outside the authoritative legal materials in order to meet the exigencies of social transi- tion, had not then arisen. His proposition was that the law was to be learned through study of the authoritative legal materials themselves, not by study of what others had said about them, no matter how learned or how eminent those others might be. The traditional legal precepts, the authoritative technique of developing and applying them in the light of the received ideals, were set forth authoritatively in the law reports. Hence they should be studied at first hand as they appeared in those reports, not at second hand through some one's exposition of them. This was not revolutionary from a lawyer's standpoint, for the great lawyers had always mastered the reports and built up their systems on that basis. But it was revolutionary in law teaching. Such, in brief, was the case system. , It was some time before Langdell could convince all his own colleagues. It was twenty years before Keener, one of his pupils, took his method to Columbia and established it there, In time many who had studied under Langdell and Ames carried it to other schools. By 1900 Stanford had definitely set up a school of Langdell's type. In 1902 Beale had organized the newly instituted law school of the University of Chicago upon Langdell's model. Michigan turned decisively to the case method under Dean Bates about 1910, Yale about 1916. From these schools, next to Harvard, have come the great majority of the law teachers of today. In little l26i