Earlier this year, Harvard Law School posted examinations given at the institution between 1871 and 1995. I spent a little time the other day skimming through them, concentrating on examinations given in Torts and Constitutional Law courses.
With Torts, as with other classes, the most obvious change involved the gradual lengthening of exam questions. Gone are the days when a professor could ask, “What is an assault? How does it differ from a battery?,” questions posed on this 1871 Torts exam. But more than the questions have changed; one also can detect many shifts in the substantive law by reviewing the tests.
For example, old Torts exams concentrated upon the intentional torts. Of the 14 questions on the 1871 examination, four involved trespass; two, defamation; and there were also questions on nuisance, conversion, assault and battery, false imprisonment, fraud, and malicious prosecution. Modern tests, as one would expect, are much more concerned with the nuances of negligence doctrine.
The exams also illustrate how a given issue may “move” from one area of law to another, as time passes and new fields emerge. Some questions in early Torts exams would today seem much more at home in a Criminal Procedure or Antitrust final. (Consider, for instance, the 1873-1874 Torts question, “When can an officer arrest without a warrant, and when can a private person arrest without a warrant?”)
Trends aside, some of the most interesting questions in old exams were wholly topical at the time they were written. Professor James Thayer’s Constitutional Law examinations, in particular, skewed toward current events. Take, for example, this question, from an examination given during the 1881–82 academic year: “Could Guiteau have waived a jury? Would it make any difference if we suppose a statute purporting to authorize this? Why?” Guiteau, of course, was the (likely deranged) assassin of President James Garfield.
Or this, from Thayer’s 1896–97 examination (with my apologies for the incorporated language, which was, of course, a product of the time): “The State of X forbids the carrying of negroes or other colored persons and whites as passengers in the same car on any railroad in the State. In returning from a “Parliament of Religions” at Chicago, a Hindoo, a Moor, an Ethiopian and Mr. Booker Washington had taken passage from Chicago on a through train, making no separation of passengers, to a point requiring them to pass through State X. On reaching the line of that State, these travelers were all required to shift into a car for negroes. They refuse to go and were ejected from the train. In an action for assault against the conductor the question is raised of the constitutionality of the State law. How should the question be decided? Why?”
Sound somewhat familiar? Personally, I find this question interesting mostly because Thayer tees up the issue by way of an assault action. But then, I teach Torts.