Harvard Law School - Yearbook (Cambridge, MA)

Page 28 text:

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

Page 27 text:

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

Page 29 text:

more than a generation Langdell's ideas had prevailed, his case method was decisively es- tablishedg the apprentice idea was wholly abandoned. In Langdell's time it was still possible to put all, or substantially all, the authoritative materials on any fundamental point before the student in a case book. Thus Langdell's Cases on Contracts Q1871j brought together all the cases on the crucial problems of offer and accept- ance. It was ceasing to be possible or profitable to do this even when Langdell compiled his first case book. Ames changed the plan in his case books published between 1874 and 1905. He chose so far as possible the cases from which doctrines started, and printed them along with typical cases on the crucial points, with citations of all the other cases in the common-law world grouped about the type cases. Today the development of an apparatus of digests of and in- dexes to decisions, which did not exist in Ames's day, makes a case book of this type unneces- sary. The case book of the present takes up the fundamental doctrines of the subject and selected problems, with typical cases for the one and cases chosen from each side for the other, and such citations as will bring out special applications or special problems bearing on the theory of the fundamental doctrines. The material on every subject of the law has become so vast that the case book must select and organize, where in Langdell's day the student could be given the whole mass to organize for himself. Another important change should be noted. In 1888, when Gray began the publica tion of his pioneer collection of Cares on Property, he could assume confidently that a decision of the highest courts of one of our jurisdictions, unless quite out of line with established ideas, would be followed in the others. Hence he could cover the whole field of property with what might reasonably be taken for authoritative statements. There is no longer any such assurance. The materials of assured general authority in common-law jurisdictions are of limited extent. For the rest, we have no more than competing starting points for legal reasoning. Consequently, in the present century monumental collections such as Gray's Cares on Property, or Thayer's Carer on Comtitutional Law, are not usable as the basis of instruction. Case books must now be devised for the purpose of bringing students to learn how to discriminate the authoritative ma- terials, and to acquire those settled fundamental propositions without which legal questions may not be treated in a lawyerlike way. Also they must be directed to developing in students a power of using the received technique of the common law upon the authoritative legal materials, so as to be able to reach assured judgments as to how courts will decide, and to make convincing arguments to courts as to why they should so decide. Yet this change in the content and make-up of case books since Langdell in no wise affects the change which he brought about. For the purposes of today, instruction on the basis of decided cases continues to be most effective. Study of how courts have decided typical cases, analysis of the process of decision, observation of how the teacher analyzes that process in par- ticular cases, discussion of the analysis with the teacher and fellow students, and, above all, practice in answering hypothetical cases and writing out the reasons for the solution, have proved themselves by experience as the means by which the aims of today may be attained. Undoubtedly these methods put a heavy burden upon the teaching staff, and in consequence signs of restlessness on the part of teachers are observable. It is much easier to lecture than to conduct the sort of exercise, sometimes discussion, sometimes lecture, sometimes a putting of hypothetical cases to be canvassed without any dogmatic solution, which these methods call for. Moreover, the reading of examination books where these methods obtain is an irksome task. But Langdell's conception of an examination in the form of hypothetical cases calling for reas- oned solutions has proved one of the most fruitful features of his method of teaching. Such an i271-