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. Read More