The Ghost of Louis Brandeis on How to Teach Law School
Hello again Co-Op! I’m happy to be back for a short guest-blogging stint that was, er, supposed to start in January but Danielle graciously allowed me to postpone into February. I’m hoping to make up for the radio silence in the last couple of weeks of the month. Anyway, without further adieu, today’s topic: Over at Prawfsblawg, a vibrant debate is going on about the perennial subject of how to best teach law school. There’s a lot of good things to be said on both sides of the that debate. I’d like to call attention in particular to the comment by Ray Campbell, which is devoid of the absolutes that tend to abound in this area. I’ve expressed my own thoughts on this topic during previous go-rounds here and here and here.
But by “perennial,” I meant that this debate is really ancient. It far pre-dates the recent financial crisis and downturn in the legal market. It pre-dates the Carnegie Report in 2007. It pre-dates the MacCrate Report in 1992. It pre-dates the 1921 Carnegie Report. Indeed, it pre-dates most law schools altogether. Benjamin Spencer’s recent article on the skills vs. doctrine debate — which includes the question of who would be the best teachers for whatever it is the students should be learning — shows that it goes back to the 1870s, and an ABA Report that concluded that the existing method of study — one taught mainly by professors with substantial practice experience — was “too brief for useful purposes,” and that the schools were inviting “unfit” and unprepared students to fill their seats, were giving “examinations, which are such only in name,” and were allowing “degrees [to be] thrown away on the undeserving and the ignorant.”
I was reminded of the length of time these sorts of discussions have been going on when I recently stumbled across a letter from the man pictured above, Louis Brandeis, to Dean Christopher Columbus Langdell of Harvard Law School. Langdell, of course, is possibly the single person most responsible for the form of legal education we have today. It was his idea at Harvard to replace classes taught by practicing lawyers with classes taught by academic law professors, hired soon after graduation after perhaps only a short judicial clerkship, and to extend the length of the program from eighteen months to three years. In particular, it was Langdell’s idea to teach law as a science, devoted to learning the general principles that pervade the law as revealed in cases, but not necessarily constituting the law of any particular jurisdiction. That is, Harvard would focus on a generalized notion of tort law, contracts law, etc., one that had the advantage, as Charles Whitebread used to say about the Model Penal Code, of being equally the law nowhere.
Brandeis was a product of that model. He graduated from Harvard Law School in 1878, eight years after Langdell had started reforming Harvard and the first year the program was extended to three years. But a little more than ten years later he thought substantial alterations should be made to the curriculum. Brandeis worried, in effect, that Harvard Law students were not learning enough actual law:
To Christopher Columbus Langdell
December 30, 1889 Boston, Mass.
My Dear Prof. Langdell: My experience as one of the examiners for admission to the Suffolk bar has impressed upon me the importance of adding to the instruction at the School a thorough course on the peculiarities of Massachusetts law. I am aware that the introduction of such a course involves apparently a departure from the present policy of the School, but my experience and observation have convinced me that such a course would increase the usefullness as well as the membership of the School, and I therefore venture to submit to you with some detail my views of the proposed course, and the reasons which induce me to advocate it.
The course should not be confined to the peculiarities of Massachusetts law of pleading, practice and evidence, but should extend generally to the main branches of substantive law, including alike those variations from the general law which have been made by statute, and those which have been the result of peculiar local practice or decision; in other words the course should be a Massachusetts supplement to the general instruction at the School. The familiarity which the student would have gained with the general law on these subjects through the other instruction during his three years study would enable him to pass with comparitive rapidity over the different subjects so far as treated in the proposed course, and an exercise of two hours each week would enable the instructor to accomplish his work with comparitive thoroughness. Obviously the course should be one of the third year electives, and the treatment of the subjects in it could be so arranged that the student would have practically completed his studies in the general law of each course pursued by him in the three years, before he would be called upon to consider the variations in the law of Massachusetts from the law generally prevailing. Preferably the course should be one of those which could be taken by the student to make up the requisite number entitling him to a degree, but even if it should be made an extra course, no additional burden would be cast upon the student contemplating the practice of law in Massachusetts since most of them while attending the School pursue the same studies under less favorable circumstances. If the right person could be found to undertake the course he could doubtless, with the assistance which the other professors would be willing to give him, properly prepare for such a course of instruction during the next academic year.
My reasons for advocating the introduction of such a course are mainly these:
1. A large proportion of the students of the School enter upon the practice of law in Massachusetts. The examinations for admission to the Suffolk bar show that our men, even those who have completed the full three years’ course, are but poorly qualified for practice at the bar here according to the standard which has been adopted by the examiners. It cannot be said that such standard is influenced by views of the qualifications requisite for a lawyer which would not obtain at the school, because until the recent appointment of Charles Theodore Russell, Jr. as one of the examiners, all five were former members of the Harvard Law School. The superior training which our men receive, and the superior quality of mind with which we have ordinarily to deal at Cambridge, as compared with the Boston University Law School, particularly when taken in connection with the experience which most Harvard men have had in written examinations, would lead us to expect better papers from our men than any others. Such has not, however, been my experience. On the contrary the best examination paper which I have found has been from a graduate of the Boston School, and the average examinations of the men from that school has also been as high as compared with those coming from our own. On the other hand it cannot be asserted that this defect in the knowledge of our men is rapidly overcome. So far as my experience goes I find that throughout my ten years’ practice I have been confronted with unfamiliarity with Massachusetts law generally, and I find my own experience painfully confirmed by my observation of others. You are perhaps aware that for nearly eight years it has been our custom to employ, not as students merely, but as salaried assistants, young lawyers. With one exception all of these have been from the Harvard Law School, and in most instances we have selected men whom we have understood were among the leaders of their respective classes and most strongly recommended by the professors. In every instance we have found the usefulness of such assistants seriously impaired by their ignorance of Massachusetts law. A thorough knowledge of Massachusetts law at the time of entering upon practice would be of great financial value to the students of the school, and would protect the school from adverse criticism to which it has been exposed in Massachusetts through the ignorance of our own men at times to the peculiarities of local law and practice, as compared with the knowledge possessed by those who have obtained their preparation elsewhere. The reputation of our school at home, and justice to the large proportion of students at the School contemplating practice in Massachusetts, demand that the grounds for such adverse criticism be removed.
2. The introduction of a thorough course in Massachusetts law would tend to increase the membership of the school. The growth of the Boston University in the past is to be accounted for partly by the belief in the advantage of students being in the office of a practicing lawyer; by the doubt as to the efficiency of the Case system; and by the conviction that the instruction at the Boston School was peculiarly adapted to the preparation for the bar of Massachusetts. The influence of the first two of these sources of growth of the Boston School is rapidly diminishing. An increasing number of lawyers believe that the student of law should not be interrupted by the distractions of an office life; an increasing number of lawyers believe that the Case system as applied at Cambridge offers the best training for a lawyer. If the lawyers in Massachusetts once find that the student of law has the opportunity of preparing himself at Cambridge particularly for the practice of law in Massachusetts, a considerable number of those who otherwise would attend the Boston School will go to Cambridge; and a large proportion also of those who now enter an office in Boston instead of taking the third year course at Cambridge will remain at our school for the full term of three years. The advantage of winning for the school new converts at home, and diminishing further the proportion of adherents to the Boston School cannot be over-estimated.
3. The growth of our School and its increased resources will make it possible to add to the instruction at the School, and furnish grounds to believe that our ambition to make it a University of Law may be realized. Logically the increase of instruction would undoubtedly occur in the line of increasing the subjects treated before undertaking to give instruction in the law of a particular community; but in the development of schools as in the growth of other institutions the logical order must sometimes be departed from, and the local position of the school would justify such a departure in this case. If the proposed course should prove a success it might be deemed wise to introduce a similar one in reference to the law of New York.
I trust that the Faculty will give these suggestions careful consideration. If you think that there are any points on which I could, by personal presence, give any aid in the consideration of the matter at the meeting of the Faculty, I should, of course, be glad to attend, and perhaps my presence there, at your invitation, might be justified through the honor which the Overseers have recently conferred upon me in appointing me to an office, whose duties I but imperfectly comprehend.
Louis D. Brandeis