Harvard Law School - Yearbook (Cambridge, MA)

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examination is not a mere measure of work. It is a measure of achievement. It rounds off the year's work with an exercise which fixes the results of that work as permanent acquisitions. Under Langdell, training for practice of the profession was the sole explicit aim of the Law School. In the present century it became increasingly apparent that the School was not doing its whole duty when it had sent forth well-trained men to take up the practice of the law. There was a growing consciousness that the lawyer had more to do than earn a livelihood by faithfully advising and representing his clients. Today he has a creative task before him, to be carried out in bar associations, in the legislature, and as a citizen, in maintaining the law as an effective instrument ofjustice, and to further its development. Nor is the task ofa national law school done when it has bred lawyers equal and disposed to that work. It has to organize and carry forward the research which must go before creative lawmaking. Under Ames a continually increasing number of graduates began to teach in other law schools. Also new movements in the law were calling for a development of the science of law beyond the possibilities of the analytical and historical jurisprudence ofthe nineteenth century. Ames, in particular, was impressed with the renewed insistence on the ethical element in law which was manifest at the beginning of the present century. There was need of providing for further training of those who had already chosen law teaching as their life work. There was coming to be need of providing a more specialized training for graduates in law who intended to go into teaching. These needs were the first to attract attention, and led to the organization of graduate instruction. A project for graduate courses leading to a graduate degree was first considered in 1906. After three years of discussion in the faculty, it was recommended to the Corporation in 1909, and the degree of S.j.D. fDoctor ofjuridical Science, or Doctor of the Science of Lawj was established, but the one year's course of study for it was not organized until 1911. From 1912 to 1923 candidates for the SJ.D. usually studied Roman Law and Comparative Law,juris- prudence, Administrative Law, International Law, History of English Law, or topics in the Con- flict of Laws. This work proved too heavy. Of thirty-three who sought the doctorate in the first five years, only eighteen ,including twelve teachers in other law schools, were successful. This led to the establishment of the degree of Master of Laws fLL.M.j in 1923, a year's course designed primarily for students who intended to practiseg while the doctor's course, reorganized primarily for teachers of law, became more flexible. An essential part of it was to be directed research, or an approved programme of intensive study in some subject which the candidate expected to teach. By 1928, the development of graduate seminars and the provision in the new endow- ment for research, led to a new plan. A seminar injurisprudence had grown up as a supplement to the lectures. Later a seminar in Roman Law grew up in the same way. Administrative Law was given as a seminar course after 1920. Since that time a number of other seminars have been added, primarily for graduates, but open to third-year students of high rank, with the consent of the Dean and the Instructor. Under the plan adopted in 1928, the requirements for the mas- ter's degree remained much as before, and that degree became prerequisite to candidacy for the doctorate, unless the applicant had taught for three years, or shown his fitness for research. For the doctorate a general oral examination, and two written examinations, all to be passed with distinguished excellence, were prescribed in addition to a thesis. Thus, after fourteen years of cautious development, graduate study in law was put upon a solid basis. In 1926 an endowment of 352,250,000 was raised for research. In the programme for carrying out the purpose ofthis endowment, distinction is made between mere search by students i281

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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-

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for what is already known, and research, by those suitably trained, in order to get at new, hidden, or unrecognized truth through investigation scientifically conducted and directed. There are two main types of work to be provided for. One is the writing of books on various topics or items of the law. Dane's gift provided for this, and the long succession of treatises which have come forth from the School since Story's time speaks for itself. The chief items are worth recounting: Story on Bailrnents 0832, nine editionsj, on the Constitution 0835, six editions and translation into Frenchj, on the Conflict of Laws 0834, eight editionsj, on Equity jurisprudence 0836, fifteen American and three English editionsj, on Equity Pleading 0838, ten editionsj, on Agency 0839, nine editionsj, on Partnership 0841, seven editionsj, on Bills ofExchange 0843, four editions and translated into Germany, on Promissory Notes 0845, seven editionsjg Greenleaf on Evidence 0842-53, seventeen editionsjg Parsons, on Contracts 0853-55, nine editionsj, on Partnership 0867, four editionsj, on Promissory Notes and Bills ofExchange 0868, two editionsjg Washburn, The American Law of Real Property 0860-62, six editionsj. The American Law of Easements and Servitudes 0863, three editionsjg Langdell, Brief Survey of Equity jurisdiction 0904, two editionsj, Gray, on Restraints on the Alienation ofProperty 0883, two editionsj, on The Rule Against Perpetuities f 1886, four editionsj, The Nature and Sources ofthe Law 0909, two editionsj' Thayer, Preliminary Treatise on Evidence 0898jg Ames, Lectures on Legal History fposthumous 1913j, Wyman, on Public Service Companies 09115, Beale, Law of Foreign Corporations 0904j Law of Innkeepers and Hotels 09065, Beale and Wyman, Railroad Rate Regulation 0906, two edi- tionsj, Brannan, The Negotiable Instruments Law 0908, four editionsjg Williston, on Sales0909, two editionsj, onContracts 0920-22, new edition appearingjg E. H. Warren, Corporate Advantages without Incorporation 0929jg Beale, on the Conflict of Laws 0935j, Griswold, on Spendthriji Trusts 09361 To these treatises a long line of case books may be added, since the latter certainly have had quite as real an influence upon the growth of the law as the classical text books of the time before Langdell. The endowment raised in 1926 will make it possible for teachers in the School to continue this notable tradition of text writing The other type of work is exemplified by the survey of criminal justice in Boston, of which three volumes have been published. The en- dowment of 1926 was expected to provide for such work also. 1 9 Q Isaac Parker's plan 0816, called for a school for the instruction of resident gradu- ates. It was a long time before this ideal of a purely graduate professional school could be realized. President Eliot puts the matter well in his report for 1875-76: The Faculty have greatly advanced the standard of the Law School since 1869-70, but it will still be some time before they reach the level upon which judge Story proposed to place the School in the year 1829-30-the first year in which he held the Dane Professorship. In the annual catalogue for that year, under the head of the Law School fp. 24j, the following announcement was made: 'Gentlemen who are graduates of a college will complete their educa- tion in three years: those who are not graduates will complete it in five years.' For five years this was the avowed policy of the School, but. in the catalogue for 1834-35, the sentence just quoted no longer appearedg and in its stead the following announcement was made fp. 29j: 'The degree of Bachelor of Laws is conferred by the University on students who have com- pleted the regular term of professional studies required by the laws or rules in the state to which they belong, eighteen months thereof having been passed in the Law School of this institution.' From this position the School gradually declined by a series of small descents, until, in 1869-70, all persons who had been eighteen months in the School were entitled to the degree of Bachelor of Laws without examination or inquiry of any sort into their attainments. The rapid rise of the School from this humiliating position during the past seven years gives strong assurance that, in due time, it will return substantially tojudge Story's original policy. 'l29l