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There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924076568272 THK CARNEGIE F5UNi>ATION .->' - :'f, . •■ , FOR THE ADVANCEMENI' OF TEACHING THE CASE METHOD IN AiiEiRICAN LAW SCHOOtS BUtUJTIN NUMBEE EIGHT THE COMMON LAW AND THE CASE METHOD IN AMERICAN UNIVERSITY LAW SCHOOLS A REPORT TO THE CARNEGIE FOUNDATION FOR THE ADVANCEMENT OF TEACHING BY Professor Dr. JOSEF REDLICH OF THE FACULTY OF LAW AND POLITICAL SCIENCE IN THE UNIVERSITY OF VIENNA BULLETIN NUMBER EIGHT NEW YORK CITY 576 FIFTH AVENUE D. B. UPDIKE, THE MEEEYMOUVT PRESS, BOSTON CONTENTS PAGE V Preface Introductory 3 Early Methods of Legal Instruction: The Law Office; Lecture and Text-book Schools 7 Rise of the Case Method 9 The Law conceived of as an Inductive Science 1 5 The Law as a Practical Profession 1 8 Shift of Emphasis under LangdeU's Successors ; Training the Legal Mind 23 Personal Observations of the Case Method 26 Practical Success of the Case Method ; Contributory Reasons for this Success : Inci- dental Instruction; Moot Courts; Student Spirit; Clubs and Periodicals 29 Essential Reason for the Success of the Case Method; Nature of Anglo-American Law 35 Accompanying Weaknesses of the Method on the Scientific Side ; Suggestions look- ing toward Improved Instruction 41 The Improvement of Legal Scholarship and the Promotion of Legal Research 48 True Significance of LangdeU's Invention in the Development of Legal Science 54 Importance of the American University Law School for the Future Scientific Devel- opment of the Common Law 60 Legal Instruction Outside of Universities in the United States and Germany 67 Index 75 PREFACE The Carnegie Foundation for the Advancement of Teaching administers two endow- ments. The larger of these is devoted to the payment of pensions to teachers in col- leges and universities. The income from the second endowment is expended, under the terms of the gift, in the study of educational questions. This department of the Foundation's work is known as the Division of Educational Enquiry. It has been the effort of the trustees and of the officers of the Foundation to take up through this division, and by means of this endowment, the study of those larger educational ques- tions which can be best approached from a point of view free from institutional and local interests. Amongst the enquiries which have been prosecuted is a Study of Medical Educa- tion. Two bulletins have been issued, one dealing with medical education in the United States and Canada, the other with medical education in Europe. The second of these bulletins was issued in 1912. A report on Education in Vermont was published in 1914. Studies on the Engineering Curriculum and on the Training of Teachers are in progress. In 1913 the trustees approved a plan for the Study of Legal Education in the United States, involving not only an examination of existing law schools, but also of methods of instraction, of bar examinations, and of the relation of these matters to the quality of legal practice. The general conduct of this enquiry was entrusted to Mr. Alfred Z. Reed, who began his work in the spring of 1913. The task has proved a difficult and arduous one, involving as it does not only a study of the law schools of the whole country, but also of the methods of bar examinations in forty-nine jurisdictions and of the relations of the various methods of legal training to the larger problems in- volved in the practice of the law. Excellent progress has been made in this work. It has been carried on with the cooperation of many able teachers of law in America and with the advice of leading practitioners of law; but the amount of material to be dealt with is so enormous and so complex that a year and a half will probably elapse before a final report can be presented. At the outset of this study, one question quickly presented itself which involved fundamental ideas as to methods of instruction. Teachers of law in the United States were, broadly speaking, divided into two rather distinct groups in their attitude toward what has come to be known as the Case Method of Instruction. The extreme advocates of this system are inclined to look upon it as a finished and perfect thing. The extreme opponents, on the other hand, can see nothing good in this method of teaching. The question involved is largely one of educational philosophy and method. To give an intelligent opinion upon it requires not only practical teaching experi- ence, but also wide knowledge of the law, a familiarity with its practical administra- tion, and, above all, a scholarly and broad-minded view of education and its function in civilization. vi PREFACE It seemed clear to the officers of the Carnegie Foundation that it would be difficult to obtain from any teacher of law or any practitioner of law in America a thoroughly sound, fair-minded, and scholarly report upon this question. We therefore turned to England and the Continent to see if some one could be found who would take up this enquiry in a sympathetic spirit, and who could bring to it the requisite educational and legal discrimination. After very carefiil consideration Dr. Josef Redlich, Professor of Law in the Univer- sity of Vienna, and member for some years of the Austrian Parliament, was invited by the trustees to make this study. Dr. Redlich is well known to English readers as the author of two books — Local Government in England, published in 1904; and The Procedure of the House of Cortv- mons, published in 1907. By his training as a scholar, as a teacher of law, as a prac- tical legislator, no less than by his knowledge of the English common law and of the English language, Professor Redlich was admirably prepared to undertake this study. He had made already a somewhat extended visit to America, in which he had visited some of the law schools. The trustees of the Foundation felt themselves fortunate that a man of these qualities was willing to take up the study of this question in so de- voted and open-minded a spirit. Professor Redlich came to America in October, 1913, and spent some two months in the country, in the course of which he attended class exercises in ten law schools. This group included six of the eight largest law. schools in the coxmtry, schools which in respect to numbers, at least, stand in a class by themselves. Of the other schools visited, three were of approximately half this size, and one was a much smaller insti- tution. A majority of these institutions, large and small, employed the case system, at least to a great extent. Four, however, did not employ the case system at all; and in these four the methods of instruction varied widely and were representative of those commonly in use. Finally, evening schools as \veU as day-time classes were vis- ited by him, schools which were in some instances departments of universities, some- times only loosely connected with a university, and, in other instances, schools entirely independent of any college or university connection. Every effiart was made, in other words, to enable him to visit a thoroughly representative list of law schools, the grounds of selection being completely objective, qualified only by the exigencies of time and of geogi-aphical distribution. In the course of these visits in different parts of the country. Professor Redlich, as he explains in his paper, was brought into contact not only with students and teachers of law, but also with many men of eminence in the legal profession. He took counsel with a large number of leading judges and lawyers with regard to the varied problems of American legal education. Perhaps more than any other foreign visitor who has come to our institutions, he was by this process enabled to apprehend the different points of view of American teachers of the law and was put in a position to sui-vey our situation sympathetically and yet from an impartial standpoint. PREFACE vii The outcome of this study is the report which is here presented. It is not too much to say that this paper is worthy of the scholarship and high legal position of its author. His impartial attitude appears throughout the report. The discriminating analysis which he there gives, both from the standpoint of the teacher and of the lawyer, cannot fail to be of the highest value to serious students of American legal education. It is presented by the Carnegie Foundation as a paper preliminary to the general report on legal education now being prepared, in the hope that it will receive a careful and impartial study. The report cannot be judged from any abstract. It must be read in its entirety to appreciate both the philosophical reach of its treatment and the attention to legal technique and to the practical administration of the law which are always included in its point of view. Professor Redlich makes clear that the case method cannot be properly appraised by itself, but must be considered in connection with the entire system of legal edu- cation in America, and, indeed, with an understanding of Ameiican politics and social ideals. Within this broad field he reaches conclusions which are almost startling in their freshness and originality. Thus it will doubtless be something of a surprise to some American lawyers to read that the case method schools are not, in the opinion of the author, too academic, too "transcendental," as they are often charged with being, but that on the contrary the success of the case method in training practition- ers is really its most vigorous quality. Moreover, Professor Redlich finds that the Lang- dell method is not merely a very practical one in its results, but that it is essentially empirical, "casuistic," — to employ an old word in a somewhat unfamiliar sense; but there is no reproach in Professor Redlich's use of these terms, since he considers the case method none the less strictly scientific. The grounds upon which he considers it scientific are not, however, those usually adduced ; and his high commendation of the method does not prevent him from indicating measures which, in his judgment, are essential in order to make it fuUy effective. Finally, there is food for thought to all interested in this subject in the fact that a man who makes so much of science as Professor Redlich does, and who finds so little of science outside of the case method school, can at the same time find other schools successfully pursuing a quite different aim, and can feel that this aim also is not without warrant. An attitude like this helps to take us out of our ordinary formulas and out of the contentious tendency to argue that because such and such things are true, such and such other things cannot possibly be tnie. In the law no less than in other fields of education there are few specifics. To have our institutions pictured in this bold and vigorous perspective cannot fail to be of the highest value. The following extracts indicate in a general way Professor Redlich's conclusions as to the strength and the weakness of the case method of instruction:* 'Pages 39, 41, 45. viii PREFACE "As the method was developed, it laid the main emphasis upon precisely that aspect of the training which the older text-book school entirely neglected: the training of the student in intellectual independence, in individual thinking, in digging out the principles through penetrating analysis of the material found within separate cases: material which contains, all mixed in with one another, both the facts, as life creates them, which generate the law, and at the same time rules of the law itself, component parts of the general system. In the fact that, as has been said before, it has actually accomplished this purpose, lies the great success of the case method. For it really teaches the pupil to think in the way that any practical lawyer — whether dealing with written or with unwritten law — ought to and has to think. It prepares the student in precisely the way which, in a country of case law, leads to full powers of legal understanding and legal acumen; that is to say, by making the law pupil familiar with the law through incessant practice in the analysis of law cases, where the concepts, principles, and rules of Anglo-American law are recorded not as dry abstractions but as cardinal realities in the inexhaustibly rich, ceaselessly fluctuating social and economic life of man. "Thus in the modern American law school professional practice is preceded by a genuine course of study, the methods of which are perfectly adapted to the nature of the common law. The average student at Harvard or Columbia who starts with the requisite general education and capacity, who takes full advantage of his three years' course, and who proves this by his success in the yearly written examinations, enters finally the practice of the law office — and a law office that is busy, too, with difficult legal questions — better prepared than a graduate of any other school in America, England, or on the European continent. In his prac- tice he has only to continue to exercise and to develop the manner of thinking that he has already brought to a very high degree of perfection in the school. By the side of this, what he has still to learn in his law office (especially in the fields of procedure and of written forms in general) is of very subordinate importance; although in this connection it must of course again be emphasized that this knowledge can never be gained in any school, anywhere, any more than any law school of Europe or America can teach the future lawyer the ethics of the legal profession or the peculiar instinct {Tdkt') of the successful lawyer or judge. In this calling, as in every other, only the direct atmosphere of daily professional life can furnish to the beginner certain experiences and qualities which are of great prac- tical importance. But apart from this the American student gains in the modem law school of his country aU the practical knowledge of the law that any school can give to a future attorney or judge, in unparalleled manner." "Herein we find the strength, but herein also the weaknesses, of the case method. These weaknesses, to sum up the writer's opinion in a word, lie on the scientific side of American legal instruction in its present form. In this connection we may distinguish between, first, the influence exerted by the case method upon the scientific comprehension of law by the students, that is to say, upon legal instruc- tion proper; and secondly, its reaction upon the scientific elaboration of law in general, that important function of law faculties which we must consider apart from their purely pedagogic aims. ... It is characteristic of the case method that where it has thoroughly established itself, legal education has assumed the form of instruction almost exclusively through analysis of separate cases. The result PREFACE IX of this is that the students never obtain a general picture of the law as a whole, not even a picture which includes only its main features. This is, in my opinion, however, just as important for the study of Anglo- American law as for the codi- fied continental systems, and is a task which should also be accomplished by the law courses in the universities. To this end, the following seems to me above all things requisite: "First, as an introduction to the entire curriculum, care should be taken to in- troduce to the students, in elementary fashion, the fundamental concepts and legal ideas that are common to all divisions of the common law. Or, to express it in a word current in European pedagogy, the beginners in American law schools should be given a legal' Propddeutik, or preparatory course, which in a simple yet scientific manner shall set forth the elements of the common law; shall fur- nish, that is to say, a comprehensive view of the permanent underlying concepts, forms, and principles, not forgetting the elementary postulates of law and legal relationships in general. The more rigorously casuistic the case method of instruc- tion which then follows necessarily has to be, the more important it seems to me it is to make clear to the students at the very beginning certain fundamental facts and guideposts of the law which are removed from all casuistry and theoretical controversy. Only in this way wiU their future studies rest upon a solid and scien- tifically grounded foundation. "Classical Roman law at its height developed, as is well known, a special liter- ary type, the Institutes. This was a comprehensive presentation of the elements of law, intended to introduce and facilitate the regular course of study, and the fact that Justinian retained it as an introduction to his code shows what importance was attached to it. . . . "Similarly, in my opinion, in American university law schools the students ought to be given an introductory lecture course, which should present, so to speak, 'Institutes' of the common law. Every department into which the Ameri- can law is divided, whether as common law or equity, employs certain common elementary ideas and fundamental legal concepts which the student ought to be made to understand before he is introduced into the difficult analysis of cases. Con- cepts such as choses in action, person and property within the meaning of the law, complaint and plea, title and stipulation, liability and surety, good faith and fraud, should, in these introductory lectures, be given to American students in connection with a system of the law, even although this should include only the general fundamental features. They should not, as usually occurs to-day, come to the students unsystematically and unscientifically, as scraps of knowledge more or less assimilated out of law dictionaries and indiscriminate reading of text- books." " It seems to me very advisable to add also at the end of the course lectures which shall furnish the American law student once more, before he steps out directly into practical legal life, a certain general summing up and survey of the law. If the student has mastered all essential institutions and doctrines of the common law during his three yeai's' course, through the analysis of countless cases, he will certainly now be, sufficiently matured to undertake, with full understanding, two important tasks. First, he should be able to grasp the general scientific theory of the law as one of the great dominating phenomena of human civilization and human thought. Secondly, he should now be fully prepared to cast to great X PREFACE advantage a comparative glance at that second mighty system of law which has shaped the history of humanity, namely the B,oman law. "The first mentioned task corresponds pretty closely to what has for a long time been designated by English and American teachers of law by the term ' Ju- risprudence,' and is taught as such in several universities. By this is understood, broadly speaking, a presentation of the leading fundamental principles that are more or less common to the modern law of every civilized people, considered both as products of a developing positive law and as influenced and perfected by the theories and ideas of legal philosophy. Historical, philosophical, and sociological aspects of the law have here to be bound together in harmony with one another, in order to help erect a theory of the fundamental principles of law which shall rest upon the surest possible foundations. The concept of law in general, the con- cept of sovereignty, of law as an objective norm on the one side, as subjective authority on the other; the various classifications and divisions of the law — pub- lic, private, and international; the various manifestations of the law — custom- ary, written,and judge-made; in connection with this, moreover, a general theory of the sources of law; further, the philosophic basis of the great legal institu- tions of possession, of property, of inheritance, of contract, and of damages; in connection with this the theory of the will in law; and finally the great basic forms and fundamental principles of the safeguard of law, of procedure; these, and many other fundamental theoretical problems besides, could be presented to the mature students in such a course of lectures, under the head of Jurisprudence, to their great advantage. "The second course of lectures, on the other hand, those dealing with Roman law, would also, of course, be primarily so planned as to bring the outlines of this system of law into comparison with the common law, already familiar to Ameri- can students at this stage. The analogies and the differences which are brought out sharply by the comparative method would go far to make the features and characteristics of the native law still clearer to the students, and to deepen their understanding of their own law through their insight into that of other peoples." Briefly stated. Professor Redlich estimates the case method of teaching law to be the practical and efficient method by which the student learns to do independent think- ing , by which he is brought into actual touch with the living questions of the law. On the other hand, he argues that before he enters upon this method of study, he ought to have a certain foundation upon which to build, which should give him a perspec- tive and should acquaint him with the elementary ideas and fundamental concepts common to all branches of the law — in some such way as the student of engineering first studies mathematics and physics in order to be familiar with those physical con- cepts which underlie the practice of engineering, or the student of medicine takes a pre-medical course in chemistry and biology in order that he may have in his grasp the fundamental chemical and biological concepts which underlie medical thinking. Simi- larly, Professor Redlich advocates at the end of the term of study an effort to give to the student, whose powers of thinking have been sharpened by the CAse method of instruction, a comprehensive view of the law as a whole and of its relation to the PREFACE XI administration of justice. In order to secure time for both these additions to the cur- riculum, he advocates a lengthening of the course to four years. Those interested in this bulletin may obtain it by application to the Carnegie Foundation. Following this introductory bulletin there wiU be published later a description of the systems of admission to the bar in force in the several states, and a comprehensive study of existing law schools. Heney S. Peitchett, President of the Carnegie Foundation. December, 1914. THE COMMON LAW AND THE CASE METHOD IN AMERICAN UNIVERSITY LAW SCHOOLS INTRODUCTORY The following report upon the use of officially reported law cases as the basis of legal instruction has been prepared at the request of the Carnegie Foundation for the Advancement of Teaching. In accepting this honor, and in venturing to set forth my views in regard to this contemporary method, now almost exclusively employed in the leading law schools of the United States, I am well aware that the task presents extraordinary difficulties to a foreign lawyer. These difficulties originate, of course, in the complete dissimilarity between the law of England and America and that of continental Europe. An additional obstacle is to be found in the fact that the general traditions and the organization of legal educa- tion in the United States are quite peculiar to this country and differ not only from the corresponding institutions of France, German^, and Austria, but from those of England as well. It is a ftirther and a very appreciable handicap to a citizen of con- tinental Europe who attempts to appraise the American system of legal education, that he approaches the problem more or less unfamiliar with American legal life as a whole as well as with its separate organs. Any one who is asked to pass judgment upon the value of a method of legal in- struction wiU of course feel the need at the very outset of gaining a working insight into the living forces which underlie the actual legal practice and legal terminology of the country concerned. He must form an idea of the part played in legal life by the judge and by the attorney, by the individual parties who are seeking justice and by the state, if he is to render even a provisional judgment as to the extent to which the prevailing methods of legal education fulfil their purpose. Moreover, in the narrower field of legal education proper the foreign critic has the not inconsiderable task of appraising to some extent the character of the law students themselves, the general and special preparation they have had before entering the law school, and in addition to all this the ideas cun'ent among students and in the community at large as to the nature and purpose of legal education. In this connection, too, he must become familiar with the actual conditions under which the teachers in the law schools approach their work, and with the point of view held more or less generally by the professorial body toward the problem of legal education in America. All of these difficulties were clear to me at the outset. What persuaded me more than anything else, however, that I might conscientiously accept the honor of under- taking the task was the conviction that, in spite of dissimilarity in the law itself and the peculiarities of the American system of education, nevertheless there exists between Europe and the United States, in their legal thought and in their efforts toward edu- cational improvement, a very close and even intimate relationship; a relationship which makes it possible for the continental jurist to form a judgment as to the inherent efficiency of the American system of legal education and also, if he disregards certain purely technical features, as to the extent to which that systeni fosters legal science. 4 THE CASE METHOD IN AMERICAN LAW SCHOOLS I may also point out another circumstance which influenced my decision, namely, the fact that my scientific study of English law and institutions, extending over a period of many years, rendered me not an entire stranger in this field, at least with respect to the main features of the common law, and thus facilitated my approach to the prin- ciples of American law. I may say, too, that during my extended visit to the United States in 1910 I came somewhat closely into contact with American institutions in general, and particularly with those pertaining to the legal profession, and that in the meantime I have kept in close touch with the leading tendencies of American universities and law schools. Nevertheless, in spite of the fact that these circum- stances have been of material assistance to me in the specific study and criticism of the methods of American legal education, I wish this to be clearly understood, that I am entirely conscious to how great an extent the value of my studies and observations must be limited by the difficulties indicated above. With this in mind, then, I shall have to ask forbearance and considerate judgment in those cases where the American critic may discover gaps in my observations or error in my conclusions traceable to these difliculties. My task as I conceived it was to endeavor, in the comparatively short time at my disposal, to gain at first hand as varied and vivid impressions of American legal edu- cation as possible. For this purpose I visited ten law schools, among these a major- ity of those generally ranked as the best in the country, and in each of these insti- tutions I attended several lectures or practical exercises. I was enabled to enter into intimate relations with the law schools and, thanks to the exceedingly hospitable re- ception tendered me everywhere, was able to get into direct touch with the professors and instructors and to profit by a lively and extremely suggestive exchange of views in all these schools, and often to enjoy exhaustive discussions. Further, by talking to the students I endeavored to gain an insight into their work and methods of study ; I was allowed to examine their note-books ; and of course I familiarized myself so far as possible with the printed means of instruction. Collections of examination papers and announcements of courses of many different schools were also placed at my disposal. It was also of the utmost value to me that, by the good offices of my American friends, I was enabled to meet many men of prominence in the legal profession of America, and to converse with leading judges and lawyers in regard to the varied problems of American legal ^education. The number of different personalities with whom I thus came into contact was sufficient to insure the discussion of the problem under consideration from the most diverse political and professional points of view. For this reason the impression made upon me was all the stronger when, upon cer- tain points, I found complete or almost complete unanimity. Finally, in addition to the material gained by first-hand observation and experi- ence, there should be mentioned the assistance ofifered me by the vigorous and quite recent development of a very notable literature dealing with the condition of Ameri- can legal life and with the reciprocal relations of courts, lawyers, and law schools. INTRODUCTORY 5 The criticisms and views of theorists and practitioners, especially as they find expres- sion in the proceedings of the American Bar Association and the Association of American Law Schools, are of the greatest interest and importance for an under- standing of the problems of American legal education. These volumes show an in- creasing appreciation on the part of American judges and lawyers, and a more ex- tensive and deeper comprehension on the part of practitioners, of the questions and principles of legal education and legal training in general. The papers and treatises also of leading professors in the law schools of the country have been of particular value to me. The undoubtedly increasing influence that American university pro- fessors of law exert upon the appreciation and treatment of the fundamental problems of the legal profession in America, and the recognized importance of these professors in the development of the entire legal system, should be noted as constituting one of the most encouraging features of American public life.'^ Before presenting the conclusions which I have drawn from the experience and the data outlined above, let me note that the essential problem before me has been to pass judgment upon the nature and success of the so-called case method. It wiU of course be understood that in rendering such a judgment other methods of legal edu- cation cannot be completely disregarded. Indeed, a German lawyer, whose own train- ing was received chiefly through lectures and text-books, could hardly avoid drawing certain comparisons. It seemed to me, however, that the first task to be accomplished was to obtain the most exact conception possible of the nature of the case method and to make an objective examination of its efiect. Accordingly I endeavored at the outset to inform myself as completely as possible as to the historical circumstances under which the case method originated and developed, and also as to those facts which are important for the understanding of American legal education as a whole. In this connection the most important point to bear in mind is that although, from the point of view of European educational history, special law schools, as independ- ent institutions of learning, came into existence in the United States comparatively late, nevertheless, during the last third of the nineteenth century they developed to an extraordinary degree. Indeed, the existing American system of legal education has hardly a rival worth mentioning in the entire great jurisdiction of the English ■ In addition to the works cited below (page 9) relating more particularly to the life anA work of Langdell, see also the following treatises: H. Waentig: "Die amerikanischen Law Schools und die Reform des Rechtsunterrichtes in Preussen," in Schmol- ler'ajahrbuehfur Gesetzgebung, Verwaltung und Volksmrtschaft,1902, pages 1489 etseq. (This very valuable essay is the only descriptipn and criticism of the American universities known to me which discusses in detail law schools and their methods of instruction. It is to be noted that Professor Waentig not only commends most emphatically the excellence of Langdell's system of legal education, but also sets up Harvard and Columbia as models for the legal faculties of Germany.) Roscoe Pound; The Evolution of Legal Education, an Inaugural Lecture, Lincoln (Neb.), 1903. A. V. Dicey: " The Teaching of English Law at Harvard," 13 Harvard Law Review (1900) 422-440. Harlan F. Stone: "The Function of the American University Law School," paper read before the Association of American Law Schools, 36 Bep. Am. Bar Ass. (1911) 768. Henry M. Bates: "Some Problems in Legal Education. in a Period of Transition in Law," paper read before the Association of American Law Schools, 38 Bep. Am. Bar Ass. (1913) 890. W. Harrison Moore : "Legal Education in the Vmte6.Sta,tes,"13u.s.Joumalof the Society of Comparative Legis- lation, 207 et seq. 6 THE CASE METHOD IN AMERICAN LAW SCHOOLS common law. Neither in England itself, nor in the great English colonies, has sys- tematic instruction in law achieved a development so intensive and at the same time so comprehensive as in the United States. EARLY METHODS OF LEGAL INSTRUCTION THE LAW OFFICE ; LECTURE AND TEXT-BOOK SCHOOLS The prevailing method of legal instruction in America, up to the middle of the last century, was the purely practical training of young law students in the office of a judge or practising attorney; and even at the present time, in spite of the develop- ment of so many law schools, a great number of lawyers in the United States still receive their training entirely or almost entirely in the same manner. Admission to the bar stiU continues — in sharp distinction from German and Austrian require- ments — to have no necessary connection with university work. If any general educa- tion is required, it is never more than graduation from a high school. In order to prove that one possesses sufficient technical knowledge of the law to entitle one to be admitted into practice, it is sufficient to pass a bar examination conducted by a court or by a board acting under judicial direction. The knowledge necessary to pass this examination may be picked up wherever the candidate thinks he can find it. Theoretical legal education in America clearly had its origin in these purely prac- tical needs and considerations. The oldest American law school, that of Judge Reeve in Litchfield, Connecticut, was originally established towards the end of the eight- eenth century on a very small scale, and was exclusively a creation of practitioners. For several decades young candidates for the legal calling received their training here through lectures and instruction by Reeve and his assistants, always practising lawyers and judges. This oldest American law school was, of course, a purely private undertaking. In time, however, there arose a number of competitors, and law courses had also been introduced here and there in conjunction with existing colleges. Among these was Harvard College, whose first professorship of law dates from 1816, but it was only after the appointment of Story in 1830 that this school attained its posi- tion of great and rapidly increasing significance for the development of legal instruc- tion in the United States.^ AU the older American law schools started by being so-called lecture schools. Blackstone's Commentaries, which, as we know, were used for purposes of instruc- tion earlier and with far more lasting effect in America than in England,* formed the almost exclusive basis of the work. Within a generation there developed very natu- rally out of these same lectures a literature of text-books; and straightway the second method of American legal education in order of time — the text-book method — came into being. The essential feature of this was, and still is, that, from recitation period ' Cf. J. B. Ames: " The Vocation of a Law Professor," mhisLectures on Legal Historv, Cambridge, 1913, pages S54 efsegf. Ames points out here that the iirst chair of jurisprudence was established under the influence ofThomasJef- ferson at the famous old College of William and Mary, in Virginia, 1779, and that John Marshall heard the lectures of Chancellor Wythe, the first professor, there. How little these early law professorships or schools amounted to, how- ever, is shown by the fact that in the year 1883, when the school at Litchfield was closed, there were scarcely 160 students in the 7 university schools then existing. In 1850 there were 14 schools ; in 1860, 23, with 1000 students alto- gether; these schools, with a single exception, all forming a department of a university. In the year 1901 Ames counted 105 law schools, with 13,000 students, and at present there are more than 160 schools, with over 20,000 students. '. Vide infra, page 62, note. 8 THE CASE METHOD IN AMERICAN LAW SCHOOLS to recitation period, the students are assigned a specified portion of a regulation text- book to study, and for the most part to memorize; this is then explained by the teacher and recited on at the next period. In this method of instruction one part of the hour is occupied with the more or less purely mechanical testing of the knowledge learned by the students, the so-called " quizzing." Frequently also, in such schools, particularly where the number of students is large, the instruction was, and stiU is, supplemented by the appointment of special assistants — quiz masters — who conduct this part of the instruction in special hours. The two methods which I have thus briefly described — the method of instruction by lectures as it originated in the old lecture school and the text-book method — were in the newer schools, and are at present almost always, combined, and are often handled very effectively. Even to-day legal education in the United States is very commonly imparted by these methods, sometimes without change from the old ways, sometimes again with aU sorts of improvements in detail. I wiU return later to the character of instruction in these text-book schools. Suffice it to note here in passing that both in the old lecture law school, now considered almost extinct, and in the later text-book method especially associated with the activity of Dwight in New York, the teaching of law possesses throughout a dogmatic character. The law is organized in definite courses corresponding to its separate main heads, and is presented in such a way that the students are introduced more or less systematically to the separate great legal institutions and are given a methodical and comprehensive survey of the most essential subjects and principles of common law and equity. In the exposition the good representatives of this method include old and new statutory rules and refer to those judicial decisions which are of especial importance from the point of view of the principle contained. Sometimes a large number of cases are thus cited, but always in a purely illustrative way, for the purpose of elucidating and furnishing a better understanding of the dogmas and principles of the law. RISE OF THE CASE METHOD These two older forms of the American law school show, it may be here remarked, the closest relationship, with the methods of legal education that had long been in use on the European continent. Following these appeared that mode of instruction which, historically considered, is the third and most recent in American law, the so-called case method. Whatever judgment may be passed upon the significance and value of this method, one thing is clear at the outset even to the continental observer : it is an entirely original creation of the American mind in the realm of law, and must be comprehended and appraised as such. It is indeed particularly noteworthy that this new creation of instmction in the common law sprang from the thought and individual characteristics of a single man, Christopher C. Langdell, who, as the originator of this method, became the reformer of the Harvard Law School, and in this way of American university law schools in general.-"- In trying to explain the essence of Langdell's method, one is involuntarily reminded of the proposition that all great discoveries are, at bottom, extremely simple; that once these innovations have been pushed through, they are regarded as almost self- evident. Great as was the opposition and antagonism which Langdell's method of legal instruction encountered at the outset, it has now for some time been just as warmly defended by many American lawyers, as the only conceivable and successful method of teaching English law. Before I come to pass judgment upon this view, which prominent American lawyers have often expressed to me, I must necessarily first pre- sent with the requisite thoroughness the essential features of the method. No better account of what Langdell sought and to a great extent himself accom- plished, when he created his method of instruction, can be given than in the works of Langdell himself. In the preface to the first edition of the first book planned by him as an aid to the new method, namely in A Selection of Cases on the Law of Con- tracts (1871), he has analyzed in words, simple but weighty, his view of how the Eng- lish common law must be taught. Since, curiously enough, Langdell seems never after- ' For Langdell's career and significance cf. Ames's essay, "Cliristoplier Columbus Langdell," in Lectures on Legal Sistorp, pages 467 et seq. (reprinted from Lewis, Great American Lawyers, Philadelphia, 1909, vol. viii, pp. 463 et seg.) ; also Charles Warren, History of the Harvard Law School and of Early Legal Conditions in America, New York, 1908, vol. ii. -Warren in a series of chapters gives an account of the method of teaching developed by Langdell and his pupils at Harvard, and adds a great number of utterances of American law professors concerning this inno- vation. ■Valuable material bearing upon this problem, and a good review of the varying views held by practising la-wyers and law teachers, is found in the Reports of the American Bar Association for the last two decades. These volumes include the reports of the Committee on Legal Education and Admission to the Bar, the papers and proceedings of the Association's Section of Legal Education, and the papers and proceedings of the independent Association of American Law Schools. See especially the papers read before the Section in 1894 by Woodrow Wilson, Edmund Wetmore, and William A. Keener, with the resulting debate, 17 Rep. Am. Bar Ass. (1894) 873-387, 43*490. Also In 1903 an exhaustive discussion took place in the Association of American Law Schools following a paper by Simeon E. Baldwin, 26 Bep. Am. Bar Ass. (1903) 659-670, 673-690; and compare also the Beports for 1906, vol. ii. See also obituary and appreciations of Langdell in 20 Harv. Law Bev. (1906) 1-13, 56, and an article by William Schofleld in 16 n. s. American Law Register (1906), quoted by Warren. The Harvard Law Review contains numerous articles dealing with the problem of methods of instruction in law ; note, in addition to Dieey's article, already cited (page 6), Baldwin's "Teaching Law by Cases," in volume xiv (1900), pp. 268-261. See also contributions by Keener, Edward J. Phelps, and John C. Gray to the first volume of the Yale Law Journal (1892), pages 189-161, com- paring as to this last 22 Am. Law Rev. (1888) 756-764 ; and a final article by Judge Baldwin, "The Study of Elementary La-w, the Proper Beginning of a Legal Education," in 13 Yale Law Journal (1903) 1-15. 10 THE CASE METHOD IN AMERICAN LAW SCHOOLS wards to have expressed himself concerning the entire question of method, and never himself entered into the lively battle of words that for two decades waged round his innovation, it appears to me particularly important to set down here in its entirety Langdell's analysis of his method as he expounded it in 1871 in the introduction in question. He says: "I cannot better explain the design of this volume than by stating the circum- stances which led me to undertake its preparation. "I entered upon the duties of my present position, a year and a half ago, with a settled conviction that law could only be taught or learned effectively by means of 'cases in some form. I had entertained such an opinion ever since I knew any- thing of the nature of law or of legal study; but it was chiefly through my expe- rience as a learner that it was first formed, as well as subsequently strengthened and confirmed. Of teaching indeed, as a business, I was entirely without experi- ence; nor had I given much consideration to that subject, except so far as proper methods of teaching are involved in proper methods of study. "Now, however, I was called upon to consider directly the subject of teach- ing, not theoretically but practically, in connection with a large school, with its more or less complicated organization, its daily routine, and daily duties. I was expected to take a large class of pupils, meet them regularly from day to day, and give them systematic instruction in such branches of law as had been assigned to me. To accomplish this successfully, it was necessary, first, that the efforts of the pupils should go hand in hand with mine, that is, that they should study with direct reference to my instruction ; secondly, that the study thus required of them should be of the kind from which they might reap the greatest and' most lasting benefit; thirdly, that the instruction should be of such a character that the pupils might at least derive a greater advantage from attending it than from devoting the same time to private study. How could this threefold object be ac- complished? Only one mode occurred to me which seemed to hold out any rea- sonable prospect of success; and that was, to make a series of cases, carefully se- lected from the books of reports, the subject alike of study and instmction. But here I was met by what seemed at first to be an insuperable practical difficulty, namely, the want of books ; for though it might be practicable, in case of pri- vate pupils having free access to a complete library, to refer them directly to the books of reports, such a course was quite out of the question with a large class, all of whom would want the same books at the same time. Nor would such a course be without great drawbacks and inconveniences, even in the case of a single pupil. As he would always have to go where the books were, and could only have access to them there during certain prescribed hours, it would be im- possible for him to economize his time or work to the best advantage; and he would be liable to be constantly haunted by the apprehension that he was spend- ing time, labor and money in studying cases which would be inaccessible to him in after life. "It was with a view to removing these obstacles that I was first led to inquire into the feasibility of preparing and publishing such a selection of cases as would be adapted to my purpose as a teacher. The most important element in that inquiry was the great and rapidly growing number of cases in every department of law. In view of this fact, was there any satisfactory principle upon which such RISE OF THE CASE METHOD 11 a selection could be made? It seemed to me that there was. Law, compered as a science, consists of certain principles or doctrines. To have such a mastery of these as to be able to apply them with constant faciiity and certavnty to the ever-tangled skein of hitman affairs, is what constitutes a true lawyer; and hence to acquire that mastery should be the business of every earnest student oflaw.^sjiSa. of these doctrines has arrived at its present state by slow degrees ; in other words, it is a growth, extending in many cases through centuries. This growth is to be traced in the main through a series of cases ; and much the shoilest and best, if not the only way of mastering the doctrine effectually is by studying the cases in which it is embodied. But the cases which are useful and necessary for this purpose at the present day bear an exceedingly small proportion to aU that have been reported. The vast majority are useless and worse than useless for any purpose of systematic study. Moreover, the number of fundamental legal doctrines is much less than is commonly stipposed; the many different guises in which the same doc- trine is constantly making its appearance, and the great extent to which legal treatises are a repetition of each other, being the cause of much misapprehension. If these doctrines could be so classified and arranged that each should be found in its proper place, and nowhere else, they would cease to be formidable from their number. It seemed to me, therefore, to be possible to take such a branch of the law as Contracts, for example, and, without exceeding comparatively moderate limits, to select, classify, and arrange all the cases which had contributed in any important degree to the growth, development, or establishment of any of its es- sential doctrines; and that such a work could not fail to be of material service to aU who desire to study that branch of law systematically and in its original sources. "It is upon this principle that the present volume has been prepared. It be- gins the subject of Contracts, and embraces the important topics of Mutual Con- sent, Consideration, and Conditional Contracts. Though complete in itself, it is my expectation that it will be followed by other volumes upon the same plan ; but I have as yet formed no definite opinion as to how far the design wiU be car- ried. A volume upon Sales of Personal Property is more than half completed, and will be published within a few months." ■"■ Seemingly, then, LangdeU's great innovation consisted in his desire to see the whole study of law built exclusively and directly upon the study of the separate cases. His purpose was that the doctrines and principles — relatively few in his opinion — which make up the whole body of law should be derived and grasped, both in their histori- cal development and in their systematic classification, from the direct study of cases, — the real and only sources of the common law. The number of cases which need to be drawn upon for this pui-pose is, he held, very small in relation to the prodigious mass of the Law Reports. Hence it is the more important to make a suitable selection of cases and to arrange them in such an order that their study shall on the one hand yield a clear and complete systematic view of that entire branch of the law, as for in- stance the law of contracts, and at the same time shall make as clear as possible, within ' C. C. Langdell : A Selection of Cases on the Law of Contracts : With JReferences and Citations, prepared for Use as a Text-Book in Harvard Law School, Boston, 1871. 12 THE CASE METHOD IN AMERICAN LAW SCHOOLS the separate parts of this subject, the manner in which, through judicial decision, the separate principles and doctrines have historically developed. These fundamental ideas were realized by LangdeU in the creation of his first text-book. Cases on the Law of Contracts. This pioneer work was soon revised and followed by many such case-books, until, ultimately, there arose in America a whole great literature of this sort, at present including pretty nearly the whole domain of private, criminal, and constitutional law and the law of procedure, with the various institutions and natural divisions of the law more and more specialized and differ- entiated. In the compilation of these case-books, from the beginning, the text has regularly contained no table of contents of the separate cases, such as is contained in the Law Reports, nor any brief statement of the rules of law involved, such as is reg- ularly inserted by the official reporter. In this Langdell has recognized an extremely important pedagogical principle ; a principle peculiar to the case method, and one to which aU later pupils and followers of Langdell have adhered. The intellectual labor, namely, of disentangling the facts and the leading train of thought from the report of each decided case is to be performed by the students, quite independently, even although carried on to a certain extent under the guidance of the teacher. The cen- tral idea of the new method was thus indicated from the start. According to Lang- dell and his pupils, the law — meaning of course the English common law as it has been developed in America — should be acquired methodically from the original ma- terial of all principles and doctrines of the common law, — that is to say, from the decided cases, — by individual, purely personal, intellectual labor on the part of the student. To this end a further device was employed. Langdell began his actual teach- ing by having each of the cases, which the students had to study carefully in prep- aration for the class, briefly analyzed by one of them with respect to the facts and the law contained in it. He then added a series of questions, which were so arranged as gradually to lay bare the entire law contained in that particular case. This stimulated questions, doubts, and objections on the part of individual students, against whom the teacher had to hold his grpund in reply. Teacher and pupils then, according to Lang- deU's design, work together unremittingly to extract from the single cases and from the combination or contrasting of cases their entire legal content, so that in the end those principles of that particular branch of the law which control the entire mass of related cases are made clear. The two ideas taken together suggest and are sufficiently weU described by the term "Socratic method," — an expression which was indeed early employed by Langdell and his pupils. It is only necessary to picture to one's self the practical working of this Socratic method in order at once to recognize how completely opposed it is to the method of instruction by means of text-books and lectures, the method which up to this time had been the one exclusively employed in American law schools. Without a doubt Lang- dell's method created an extraordinarily radical change, as it were at a single stroke. Up to that time the main feature in American law schools had been the memorizing RISE OF THE CASE METHOD 13 of more or less stereotyped subject-matter, systematically presented in the text-book. It is true that it was then the teacher's task to encourage, by lecture and explanation, independent thought on the part of the students, and to make clear the connection between the separate rules of law; and there is also no reason to doubt that this task was actually accomplished by many teachers according to their powers, and that it is so even to-day in these text-book schools, in a very satisfactory manner. In this con- nection it should be borne in mind that this older method of teaching has always been combined with the regular questioning of a number of students, a part of each period or special periods being reserved for the so-called recitations and quizzing of the students. The new method, on the other hand, proceeds from a fundamentally dif- ferent conception of the task both of the teacher and of the student in legal instruc- tion, and attempts, without any compromise and in the shortest way, to realize this new conception. To Langdell and his followers the most important means of instruc- tion is the analysis of the separate cases by the student. The analytical decomposition of the separate cases, and the distillation of the legal principles contained in each such case; the construction, on the basis of the analysis of the separate cases given in the case-book, of a system, historically and logically accurate, of the entire legal institu- tion or field of law, — all these are in the first instance tasks for the students, who must perform them, even though under the guidance and direction of the teacher, as inde- pendently as possible. It is easy to recognize wherein then the fundamental difference lies. Under the old method law is taught to the hearer dogmatically as a compendium of logically connected principles and norms, imparted ready made as a unified body of established rules. Under Langdell's method these rules are derived, step by step, by the students themselves by a purely analytical process oi;it of the original material of the common law, out of the cases ; a process which forbids the a priori acceptance of any doctrine or system either by the teacher or by the hearer. In the former method all law seems firmly established and is only to be grasped, understood, and memorized by the pupils as it is systematically laid before them. In the latter, on the other hand, everything is regarded as in a state of flux ; on principle, so to speak, everything is again to be brought into question. Or, in other words, in the method of legal instruc- tion developed by Langdell law is conceived as the expression of social order in ju- dicial form, which begins its separate existence all over again in every single case. Teacher and pupil approach it in the same way, the learner discovering it, under the guidance of the teacher, as a new and original joint creation. Opposition to innovation is deeply rooted in human nature. It is not astonishing, then, that when, as in the present instance, the new method was obviously also the more exacting, it should have had to make war with the old, and have established itself only with difficulty.' It is more surprising that the war should have come to an end relatively soon. In one decade Langdell had already converted the whole Harvard Law ^ At the first class held by Langdell in Contracts, the students all gradually dropped out, with the exception of seven, who were called Langdell's freshmen. 14 THE CASE METHOD IN AMERICAN LAW SCHOOLS School to this method, notably his contemporary Thayer, who through his own powers ripened into a legal historian of the first rank. At this time Langdell had among his pupils Ames, the man who was to be the most prominent exponent of his method, and whose work for its propagation was so significant that he may well be called its most successfiil apostle. After another decade Langdell's method was in a fair way to triumph. A great num- ber of pupils, whom he and his successor Ames had trained, were spreading the new method, particularly in the academic law schools of the country, in the universities that had long been accustomed to compete with Harvard in the most diverse fields of knowledge. At the same time an extensive literature of text-books constructed according to the new method — of "Case-Books," in other words — began to develop. In the year 1909 Professor Ames felt justified in stating that, "To-day the LangdeU method is adopted in whole or in part in a majority of the schools of the country, and in nearly all' the best schools."^ The outward success of the Langdell method of teach- ing showed itself above all, however, in the transformation of the Harvard Law School itself. In the year 1871, when Langdell became professor there, he, with three other professors, constituted the faculty, which at that time had to instruct 165 students. In 1895, when Langdell resigned his office as Dean, the school consisted of ten pro- fessors and over 400 students. Ten years later the number of students had risen to more than 760,^ and has since then exceeded even this figure. In this connection it is espe- cially noteworthy that this increase in attendance took place in spite of the fact that during the same period, and owing indeed to the influence of Langdell and Ames, not only were the entrance requirements made more strict, but the examinations became much more difficult in character. In the year 1871 students of the Harvard Law School were entitled to receive their degree after a course of study extending over a year and a half; since then the required period of residence has been increased to three years, conditions for admission, based upon evidence of previous education, have been made extraordinarily difficult, and in addition, strict annual examinations for each of the three years have been introduced.' These reforms, also, have served as models for the law faculties of the great universities throughout the country, and have been adopted by them. The study of law in American universities has, accordingly, through Lang- dell's method, and in consequence of its development, been advanced to an extraor- dinary degree, and has been placed on the same level as that which was attained, at almost the same time, by the other great branches of scientific study and instruction.* * " Christopher Columbu? Langdell." (Lewis, Great American Lawyers, Philadelphia, 1909, vol. viii, p. 484; Ames, Lectures on Legal History, Cambridge, 1913, p. 479.) ' Warren, History of the Harvard Law School, vol. ii, p. 520. ' Lectures on Legal History, p. 477. * Warren shows also that the first period of American law school development was strongly and decisively influenced by Harvard, especially after Story's remarkable work. Under the influence of the earlier success of the old Harvard Law School, most of the law schools existing in connection with colleges were established : Cincinnati, 1833; Dick- inson, 1836; Louisville, 1846; University of Pennsylvania, 1860; Albany, 1851; Columbia Law School, reestablished, 1868; Northwestern (Chicago) and University of Michigan, 1859. Again, more recently, since the success of Langdell's reform, the Harvard method of instruction has become the general mode of teaching law in the prominent univer- sities; thus in the Columbia Law School by the appointment of Keener in 1890; in Northwestern through Wigmore and Nathan Abbott, 1898 ; in the new University of Chicago through Beale, 1902, etc. THE LAW CONCEIVED OF AS AN INDUCTIVE SCIENCE In order properly to appraise the case method, one must, I think, consider critically its origin, its results, and its present relation to the general development of American higher education and institutions of higher learning. LangdeU expressly designated his method as a "scientific method," and in its adoption he saw the only possible way of cultivating and continuing legal education as a fully recognized and respected branch of university teaching. He expressed himself clearly on this point in a speech delivered November 5, 1886, in which he enunciated the following propositions: "First, that the law is a science ; secondly, that all the available materials of that science are contained in printed books. If law be not a science, a university will best consult its own dignity in declining to teach it. If it 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 of the greatest and most difficult of sciences, and that it needs all the light that the most enlightened seat of learning can throw upon it."' If these ideas of Langdell's are kept in mind, and if at the same time it is remem- bered under what circumstances the originator of this case method was called directly from practice to become a teacher in the Harvard Law School, it wiU be possible, in my opinion, to explain the advent of the case method into American legal educa- tion, — an advent apparently sudden, almost inexplicable, and triumphant only because of Langdell's personality. It is well known that it was President Eliot, the great second founder of Harvard, who, on his own initiative and through his own insight, singled out Langdell, a hitherto obscure New York lawyer, to be the reformer of the Harvard Law School, and at the very beginning of his presidency put through the appointment in the face of very real obstacles. Langdell's striking personality had impressed itself upon Eliot many years before, when he himself, as a young student of the physical sciences at Harvard, had made the acquaintance of this more mature student in the law school and tireless worker in the law library. Even then Langdell's views concerning the nature and purpose of legal education, which he occasionally ex- pounded to Eliot, made a great impression on the latter, — an impression by no means effaced by the long interval that intervened before Langdell's appointment. To an en- thusiastic scientist like Eliot it was an illuminating and attractive idea, this favorite one of Langdell's, that the law ought to be studied from its own concrete phenom- ena, from law cases, in the same way that the laws of the physical sciences are derived from physical phenomena and experiments. He was ready to subscribe to the theory that just as the laws of physical science, so here the principle, the inile, should be derived and taught in a purely inductive manner. Concerning the limited and merely relative accuracy of these views, more will be said as we proceed. The point which is here made is that they must necessarily have ' Charles Warren, Historv of the Harvard Law Sctiool, vol. ii, p. 374; 3 Law Quarterly Beview 124. 16 THE CASE METHOD IN AMERICAN LAW SCHOOLS been exceedingly effective at a time when the old, strictly classical ideal of college instruction in America, as it had existed unchanged even in Harvard up to the days of Eliot, was yielding in favor of a new theory of education; that theory according to which the more practical branches of knowledge, or as they are termed in Europe, "realistic" subjects, are to be especially recognized and encouraged. This reform was carried through at Harvard in the first place under the dominant influence of Eliot, but it at once appealed to a great number of American colleges as the correct expres- sion of contemporary educational ideals, and has long since been almost completely realized. There would seem to be a very real connection between this prevailing vogue of the physical and applied sciences and the fact that Langdell's innovation in legal education was also introduced comparatively quickly, and into almost all of the law schools that are connected with colleges. If one was disposed to identify science with the employment of the inductive method, as used in the investigation and teaching of the physical sciences, then it was quite obvious that a remodeling of the method of legal instruction to correspond to this view was needed in order to preserve — or, as many believed, even to establish for the first time — its scientific character. Whether one accepts or rejects this assertion that the origin and development of the Langdell method was influenced by the modern study of science, so much is cer- tain : For some time the opinion has been held almost universally in the law schools of American universities that American law has been scientifically treated, and its study has become a coordinate branch of university work, only since instruction in it has been based on a study of practical cases, that is, only since the time of Langdell. Again and again, in conversation with professors of the leading American law schools, have I been given to understand that the "Case method" is nothing but the appli- cation of the universal scientific method of induction to law in particular; and in the literature concerning the problem of legal education this thought has also found repeated expression. Tlius Professor Keener, who is justly regarded as one of the most zealous and successful of reformers, in Langdell's sense of the word, says in the preface to his book, A Selection of Cases on the Law of Quasi- Contracts (1888): "Under this system [of the case method] the student must look upon law as a science consisting of a body of principles to be found in the adjudged cases, the cases being to him what the specimen is to the geologist." Professor Roscoe Pound, in his inaugural lecture of the year 1903, expresses himself in a similar way, when he endeavors to explain as follows the original opposition of the American teacher of law to Langdell's method : "As teachers of science were slow to put the microscope and the scalpel into the hands of students and permit them to study nature, not books, so we have been fearful of putting reports into their hands, and permitting them to study the living law." ' * Roscoe Pound, The Evolution of Legal Education^ an Inaugural Lecture, Lincoln (Neb.), 1903, p. 14. THE LAW CONCEIVED OF AS AN INDUCTIVE SCIENCE 17 If one adopts this point of view assumed by the leading American teachers of law, according to which Langdell's mode of instruction is nothing more than the applica- tion of the inductive method to the study of law, then, cei-tainly, his reform appears no longer as an organically disconnected intrusion into the historically developed sys- tem of American legal education, but rather as a natural link in the chain of univer- sal reform which affecjted all American higher education, and especially the Ameri- can college, during the last half-century, and most strongly after 1870. As Flexner has shown in his spirited book on the American college, the critical hour for this had then come.^ Under the pressure of public opinion the old course of study, domi- nated, and from this point of view deadened, by classical instruction, could no longer remain. It must, rather, adapt itself to the pressure of the modem tendency origi- nating, in all American education, in the unbounded progress of the technical and natm-al sciences. The whole traditional system of education in America had to try to measure up to the needs of the new social development, the ideas and demands of so- ciety in an industrial age. Thus the college has been transformed from its old, simple organization of instruction into its present system of many different curricula from which the individual students may choose more or less freely. Thus again, out of the college has developed the university in the American sense, the university, that is to say, of the most diverse educational means and aims; the outward and administra- tive union of an ever-increasing number of inherently independent schools, each spe- cializing in a separate branch of theoretical or applied science. Herewith, however, a strong incentive was given to each one of these different professional schools to develop itself along special lines, as regards curriculum and method, corresponding to the single profession for which it was preparing. The traditional law schools, with their recitations and their quizzes, naturally seemed old-fashioned and unscientific be- side the schools for natural science, medicine, and the technical professions, which were of recent origin, and aimed to show their strictly scientific character by utilizing mod- em, experimental, and inductive methods. The method of LangdeU and his pupils, taken in connection with the simultaneous appearance of important investigators in legal history, such as Thayer, Bigelow, and others, lifted law schools at one stroke, as it were, to this same level of genuine "science." From now on, for lawyers also, study was to be based directly upon the original material of the matter studied, upon the cases. From now on, the critical analysis of the law case was established as that application of inductive methods which alone was thoroughly suited to the nature of Anglo- American law. ' Abraham Flexner, The American College, New York, 1908, pages 27 et sea- THE LAW AS A PRACTICAL PROFESSION In dealing with the law schools, moreover, as with all the departments of the modem American university, a second tendency must be taken into consideration, whose in- fluence especially upon law schools has been open and avowed. I refer to the practi- cal, utilitarian tendency of modem systems of education. American law schools have always had to pursue, and always actually have pursued, the aim of preparing their pupils directly for the practical calling of an attorney. From the beginning they have therefore entered into competition with all other institutions and undertakings intended to serve the same purpose. In this connection the first kind of legal instmc- tion to be considered is that which consists exclusively in learning the law through an apprenticeship in an attorney's office. As has already been stated, in every state of the Union even to-day the law office trains directly a large number of future law- yers and judges. A great many young men gain admission to the bar, and are thus put in the path of preferment to the bench, on the basis of legal knowledge picked up during a clerkship in a law office, rarely extending over a period of more than two or three years. If any general knowledge is required in addition, it is never more than that given by a high school. Obviously these law students, acting merely as apprentices in the legal business, require, in addition to this purely practical train- ing, a certain amount of theoretical instruction. Law schools, since their establish- ment in the beginning of the nineteenth century, have tried to respond to the need of these candidates for the legal profession in various ways, but mostly through the organization of evening schools with abbreviated courses. This state of afiairs has in the main, in spite of the great and significant development of law schools, con- tinued unchanged until the present. It may confidently be asserted that a very large percentage of existing American attorneys and judges received their theoretical in- struction at the same time that they were serving as lawyers' clerks and assistants. To this circumstance also one part of American legal literature owes its origin and character; it has led to the preparation of the most varied legal compilations of a text-book nature, and of aids to study of all kinds, often arranged in the form of questions and answers and catechisms. Added to this there is the second and no less significant fact already mentioned, that even to-day, in all the states of the Union, definitive admission to the bar has no necessary connection with the manner in which the candidates acquired their the- oretical and practical knowledge of the law. Admission to the bar may always be se- cured by passing a specific bar examination, conducted by a court or by a committee or board of examiners acting usually under judicial direction. In connection with this examination evidence of preliminai-y general education is sometimes demanded; sometimes, also, evidence must be presented that a certain period of time has been devoted to legal study; and sometimes, if an applicant has been graduated from cer- tain law schools situated within the state, he does not need to take the examination ; THE LAW AS A PRACTICAL PROFESSION 19 but never is it positively required that his studies shall have been pursued in a par- ticular school or type of school, or in any school at all. "In an attorney's office or a law school, or partly in one, partly in the other," is the usual formula. All the law schools of America, the best as well as the worst, have to reckon with this fundamental fact, and the result is that all the law schools of America are exposed, though in very dif- ferent ways, to absolutely unrestricted competition with every undertaking, eveiy in- stitution, that attempts to perform a like service for legal education. On the other hand, however, it is of some advantage to the law schools, and especially to the uni- versity law schools of America, that they are not legally compelled, as in Austria and Germany, to pay any attention to the bar examinations, as such. They establish, there- fore, the general educational requirements for entrance to the school solely from the point of view of their own ideals ; and also with respect to the manner in which they test the accomplishments of their students thi'ough their own annual examinations, they are completely independent. It has been of the greatest significance for the development of the American bar, and through it for the whole history and structure of American legal education and university law schools, that there exists in the United States of America a tradition (peculiar to this country) concerning the constitutional freedom of the legal profes- sion, — a tradition which even to-day is expressly affirmed in the constitution of one state. This tradition is to the effect that it is the inherent right of every free Ameri- can citizen to engage as an attorney in the practice of law just as fi'eely as in any other business or calling. Professor Pound expresses himself in regard to this phenom- enon and its results, in a noteworthy manner: "First among the obstacles which have retarded the development of our law schools, we must put the strange notion of an inherent natural right of the citi- zen to practice law, long dominant in the public mind and widespread in the profession. Until very recently there were no serious requirements for admission to the bar outside of a few of the older states. Many states to-day, some of them old and intelligent, are substantially without such requirements. In Indiana, by express constitutional provision, good moral character is the sole requisite to ad- mission. Any legal voter of good moral character may practice. In Wisconsin, in 1849 the legislature enacted a statute to the same effect. So completely has this natural right to practice been deemed inherent in men as men, that one court has been required to discuss gravely the admission of a Chinaman. Within the last few years, the supreme court of Illinois has been compelled to deny the power of the legislature to prevent the court from imposing necessary qualifi- cations for admission to practice and to insist that the judiciary could not be obliged to put up with ignorance and incompetence at the bar merely because the legislature so desired it. In Kentucky, as late as 1902, a member of the State Bar Association, in addressing his fellows, felt it necessary to argue that 'it is no more an abridgement of the rights of the citizen to prescribe the legal eligibility of those who propose to practice law than it is to prescribe the legal eligibility of those who are to interpret and apply the law.'" * ' Roscoe Pound, 77ie Evolutimi ofLeaal Education, ISOSi pages 8, 9. 20 THE CASE METHOD IN AMERICAN LAW SCHOOLS Ex-President William H. Taft, too, recently wrote as follows in his article, "The Social Importance of Proper Standards for Admission to the Bar:"^ " There is a spirit of hostility manifested by some courts and lawyers, and some who are not lawyers, to the suggestion that a fundamental general education is necessary to the making of a qualified member of the legal profession. In Indi- ana the constitution impliedly forbids the imposition of examination for admis- sion to the Bar. The argument is: 'Look at Abraham Lincoln. He never had any education of any sort. He educated himself, and note his greatness both as a lawyer, a statesman and a man.' Such an argument would do away not only with the necessity for education at the Bar, but the necessity for Schools or col- leges of any kind."^ Constitutional and statutory provisions of this same general character were once far more common than they are to-day. As a result of thepractical demands of the legal profession, the extreme democratic conception of the law as an open profession has been pretty generally abandoned, and almost every state now demands of the attor- ney a certain amount of professional knowledge. Nevertheless, the inevitable conse- quence of the phenomenon cited above, and especially of the example of Lincoln, has been that the American people continues to impose upon law schools the traditional standard of practical utility; to justify them, if at all, on the ground that they pro- vide the speediest and most successful preparation for the practice of the law. Even if, as has been said, recognition of the actual qualifications demanded of a successful lawyer and the realization of the growing public need of a sound legal profession have made it customary, at least in the eastern states, for graduates of law schools before starting independent practice to spend an additional one or two years as apprentices in a lawyer's ofiice, the fundamental conception of the legal profession remains un- changed; the popular idea is deeply rooted that the law school at bottom is, and must be, merely an institution for the training of young lawyers and judges. Not even the law schools themselves, not even those connected with the most prominent universi- ties, have ever attacked this conception on its own merits ; they have, rather, accepted it as a most essential point of departure for the elaboration of their own curricula, and as the legitimate standard wherewith to test their own success in teaching. In consequence of this even Langdell's new method, specifically termed, as we know, the "scientific" method, started out from the beginning with the claim that it was the best and most effective method for training practical American lawyers. So famous a representative of the case method as Professor Keener expressed himself on this point quite clearly when he said:' ^ Paper read in joint session of the Association of American Law Schools and Section of Legal Education. 38 Rep. Am. Bar Ass. (1913) 924-926. ' Edmund Wetmore in this connection, in a paper read before the Section of Legal Education of the American Bar Association. 1894, on the raising of standards for admission to the bar, says : "It would not be difficult to find those, in some parts of our country, who insist that it is an impairment of natural right to impose any requirement in the way of previous education upon any one who desires to practise law, and the logical outcome of this belief was illustrated in a Western state a few years since by the election to the bench of a candidate who had never either studied or practised law at all." 17 Rep. Am. Bar Ass. (1894) 463. ^ "The Inductive Method in Legal Education." 17 Rep. Am. Bar Ass. (1894) 489. THE LAW AS A PRACTICAL PROFESSION 21 "That it is by the study of cases, that one is to acquire the power of legal rea- soning, discrimination and judgment, qualities indispensable to the practicing lawyer; that the study of cases best develops the power to analyze and to state clearly and concisely a complicated state of facts, a power which, in no small degree, distinguishes the good from the poor or indifferent lawyer." And Professor Keener made this explicit assertion : "That the student, by the study of cases, not only follows the law in its growth and development, but also acquires the habit of legal thought which can be ac- quired only by the study of cases, and which must be acquired by him either as a student or after he has become a practitioner if he is to attain any success as a lawyer." It was upon just this point, moreover, that grave doubts were expressed from the first as to the case system. Thus Judge Baldwin, in an article published in the Har- vard Law Review, 1900, in which he criticized the case method vety sharply, denied that the Langdell method was especially successful from the point of view of the train- ing of practical lawyers. The ordinary American law student, it seems, aims at noth- ing more than to become sufficiently equipped for the practice of law; he has not the slightest desire, at the age of twenty-five years, to "shine as a jurist," but merely wishes to know the current law and to be prepared to apply it practically in proper fashion. The correct way to achieve this end, according to Baldwin, is by no means to employ Langdell's method, but rather the method whereby the instructor system- atically teaches the principles of the law by means of good text-books and oral ex- planation of the more difficult problems."^ Baldwin's criticisms stand, however, some- what alone. In opposition to them, at the time of the literary controversy as well as at present, the case method has been described by members of the most prominent law faculties of American universities as precisely that kind of instruction in Anglo- American law which alone has been found fitted to assure to the student clear com- prehension and full mastery of objective law. Of course we must not overlook the fact that there are well-defined limits to the success of any merely theoretical system of instruction in law. Dean Stone shows very pertinently^ that no theoretical mode of teaching can furnish the student with practical routine and experience, such as are gained only by immediate participation in legal activity in the law office. Yet in this respect, too, the modern case method, compared with the other traditional methods of American legal instruction, is held to have proved itself without doubt the most efficient. The danger which must still be avoided is that legal education may become too "academic." To obviate this danger. Dean Stone recommends that as a rule there should be appointed as professors in law faculties only men who have already had adequate experience as practitioners. As a mattei- of fact this requirement, so far as 1 14 Haro. Law Rev. 269. ^ "The Function of the American University Law School," paper read before the Association of American Law Schools. 36 Bep. Am. Bar Ass. (19U) 768. 22 THE CASE METHOD IN AMERICAN LAW SCHOOLS I could see, has been actually met in the overwhehning majority of cases. I believe that the mere theorists, who have never practised for any length of time as attorney or judge, constitute at present a small minority of the teachers of law in American universities. SHIFT OF EMPHASIS UNDER LANGDELL'S SUCCESSORS TRAINING THE LKGAL MIND For the further progress of this discussion it is necessary to keep in mind these two directions in which the new Langdell method has exerted its influence for reform. On the one hand it pi'ofesses to be the first really scientific method of treating the com- mon law; indeed, the general opinion seems to go so far as to hold that the appli- cation of the principle of induction to separate law cases is the correct method of studying any sort of law, and that the innovation introduced by Langdell and his pupils must be recognized as a genuine discovery in the realm of teaching.' Secondly, there is claimed for this new method, at the same time, an increased efficiency in the purely pedagogic aspect. As the common source of this far-reaching scientific signifi- cance and practical efficiency, inherent in the method, the circumstance is noted that essentially the case system consists of nothing more than the careful analysis of the law and the facts of each separate case, for the purpose of establishing the general principles and doctrines of law that determined that particular decision. Professor Keener says very clearly in regard to this: "While this method of teaching does not at all proceed on the idea that the common law is wanting in jurists, its advocates regard the adjudged cases as the original sources of our law, and think that it is better for the student, under proper advice and guidance, to extract from the cases a principle^ than to accept the statement of any jurist, however eminent he may be, that a certain principle is established by certain cases. When the student has by the study of cases grasped a principle, it has assumed to him a concrete form, and he can apply it because it was by studying it in its application that he has acquired his knowledge. Under this system the student must look upon law as a science consisting of a body of principles to be found in the adjudged cases." ^ In another place this same distinguished law teacher defines the belief of the repre- sentatives of the case method thus : "That the system produces a lawyer more quickly than the text-book system, for the reason that, in their opinion, the powers of analysis, discrimination and judgment which have been acquired by the study of cases by the student before graduation must be acquired by the student of the text-book system after he has ceased to be a student and has become a practicing lawyer."' In conclusion Professor Keener sums up his views as follows: "That it [the case system of instruction] is best adapted to exciting and hold- ing the interest of the student, and is, therefore, best adapted to making a 'Keener, in the passage cited above, advanced the theory " that law, like other applied sciences, should be studied in its application if one is to acquire a working knowledge thereof ; that this is entirely feasible for the reason that while the adjudged cases are numerous the principles controlling them are comparatively few." ' William A. Keener, Preface to A SeUctUm of Cases on the Law of Quasi-Contra^ts, Cambridge, 1888. ' 17 Bep. Am. Bar Ass. (1894) 487. M THE CASE METHOD IN AMERICAN LAW SCHOOLS lasting impression upon his mind ; . . . that it is a method distinctly productive of individuality in teaching and of a scientific spirit of investigation, independ- ence and self-reliance on the part of the student." ^ . . . "This method of teach- ing does not consist in lectures by the instructor, with reference to the cases in support of the propositions stated by him. The exercises in the lecture room con- sist in a statement and discussion by the students of the cases studied by them in advance. This discussion 'is under the direction of the instructor, who makes such suggestions and expresses such opinions as seem necessary. "The student is required to analyze each case, discriminating between the relevant and the irrelevant, between the actual and possible ground of decision. And having thus discussed a case, he is prepared and required to deal with it in its relation to other cases. In other words, the student is practically doing as a student what he will be doing as a lawyer. By this method the student's reasoning powers are constantly developed, and while he is gaining the power of legal analy- sis and synthesis, he is also gaining the other object of legal education, namely, knowledge of what the law actually is."^ These last quotations, however, clearly reveal the development which the case method has already received in the hands of Langdell's eager disciples. We recall the ideas, incomparable in their simple clearness, with which LangdeU introduced his re- form. He was concerned simply with the establishment of the principles in separate law cases, and with nothing else. The law consists, he believes, only in these princi- ples. Through the analytic treatment of the cases under the direction of the teacher, the student gains knowledge of the law. LangdeU's pupil, however. Professor Keener, goes much farther; he attributed to the Langdell method the pectiliarity that through it the law student, above all, "learns to think legally," and by this means obtains the intellectual training necessary for practical legal activity. Herein Keener, and with him most of the eminent law teachers of America, sees the peculiarly "scientific" character of this method. Brief reflection shows plainly that it is only a step from this to a completely changed conception of the purpose of legal education as a whole ; to the conception, namely, that the real purpose of scientific instruction in law is not to impart the content of the law, not to teach the law, but rather to arouse, to strengthen, to carry to the highest possible pitch of perfection a specifically legal manner of thinking. This step, after the new method had reached its fuU development, was unhesitatingly taken by the foremost American teachers of law. In discussing this matter I have again and again encountered the very emphatic opinion that the really great accomplishment of the case system consists in the "training in characteristically legal thinking," and that therein also is to be seen the great practical significance of this new method. For example. Professor James Brown Scott, in an address delivered in 1906,' ex- pressly says: '17 Bep. Am. Bar Ass. (1894) 489. * Preface to Cases on the Law of Quasi'Contracts. ^ At George Washington University. 2 Ajn. Law School Review 4. SHIFT OF EMPHASIS UNDER LANGDELL'S SUCCESSORS 25 "That method which best trains the student in legal thinking and in legal reason- ing is necessarily the best method for the student of law;'' and Professor Ames, too, in the last year of his activity, added the weight of his great authority to this view, when, in a debate of the "Association of American Law Schools'" in 1907, turning to the representatives of the older methods of legal edu- cation, he expressed himself as follows: "The writer of the paper and I seem to differ radically in regard to the object of the three years of law school. I should infer from the paper that to the author the main object is knowledge. The object arrived at by us at Cambridge is the power of legal reasoning, and we think we can best get that by putting before the students the best models to be found in the history of English and Ameri- can law, because we believe that men who are trained, by examining the opinions of the greatest judges the English Common Law System has produced, are in a better position to know what legal reasoning is and are more likely to possess the power of solving legal problems than they would be by taking up the study of the law of any particular state." ^ We see, then, that LangdeU's principle of instruction, in the period of four decades dui'ing which it has spread, experienced also a significant inner development. Origi- nally thought of, in essence, as a mere aid in teaching, the case method for its most enthusiastic adherents has become to a certain extent an end in itself. In the place of the old ideal of instruction, the ideal of imparting the greatest possible amount of knowledge, there has arisen a new ideal: the specific training in that manner of legal thinking which is peculiar to and necessary for the practising lawyer. It is true that the aim of imparting legal knowledge is not completely put aside. That would be ab- surd. Indeed, attention is called to the fact that, as experience shows, the old method of instruction by text-books imparts no lasting knowledge, that knowledge which is thus imparted does not " stick ; " while on the contrary, the positive knowledge and the grasp of legal principles which are imparted by the case method are permanently assured to the student, simply because of this method of self-teaching. But there can be no doubt that with many American law teachers to-day the tendency is to regard the transmission of positive legal material to the student as a secondary consideration, compared to the special intellectual training provided by the Socratic method. The observations that I have made have left no doubt in my mind that the devel- opment of the case method in American law schools has produced a far-reaching change in the general conception of the nature and purpose of legal education ; a phenome- non which transcends the boundaries of Anglo-American legal life, and demands the attention of all modem lawyers. *S1 Eep. Am. Bar Ass. (1907) 1026. PERSONAL OBSERVATIONS OF THE CASE METHOD I TUBN now from the abundant literature dealing with the case method to the per- sonal impression produced upon me by visits to a number of law schools. I have been able to observe the application of the case method in its home in Harvard, in Co- lumbia University in New York, in the University of Michigan Law School at Ann Arbor, in the University of Chicago, in Northwestern University, situated in the same city, and in the Law School of the New York University; and I have observed its application in different fields of law. How this method is actually handled has been often described, and can accordingly be told here in a few words. The case-books, of course, form the foundation of the study. These are generally very carefully ar- ranged in such manner that the material of the whole field of law appears system- atically organized in the choice and order of the cases, this organization being also clearly indicated by the titles of the separate parts of the book and the headings of subordinate sections. In each section or subdivision the cases themselves are again so chosen as to form a well-conceived pedagogic whole, since regularly the case which illustrates the main principle — the so-called "leading case" — comes first, and the immediately following cases are intended to show individual extensions or limitations of the principle. Occasionally there are found, as, for instance, in Gray's famous case- book on Real Property,^ excerpts from old English statutes which ai-e virtually part of the common law, and brief notes, generally of an historical nature; these, however, are isolated exceptions. As a rule the book contains only reports of actual law cases, in which first a brief statement of facts appears, then the arguments of the two con- tending parties, and finally, in full, the decision of the court and the grounds upon which it was rendered. Every lawyer, even the European colleague, who examines the many prominent case-books will readily recognize the enormous intellectual labor which has been expended upon these aids to modern American legal education. The task which has confronted the law teacher here is to make the proper choice from among the thousands, even tens of thousands, of decisions contained in the Law Reports, so that as far as possible all relevant rules and principles of that particular branch of the law may be made perfectly clear in aU their various practical appli- cations; so that, furthermore, as much light as possible may at the same time be thrown upon the historical development of these legal principles; and so that, finally, the whole may constitute a systematic structure. This very difficult task has been accomplished in a great number of case-books with really remar'kable success. The objection frequently made by the critics of this method, that case-books soon become obsolete because new cases are continually creating new law, seems to me to offer no argument against the case-book that could not be advanced against text-books in general, whether it be here or in Europe. Dogmatic text-books also have to be con- ' John C. Gray, Select Cases, and other Authorities on the Law of Property, Cambridge, 1888-92. PERSONAL OBSERVATIONS OF THE CASE METHOD 27 tinually supplemented at frequent intervals, and brought up to the latest stage of the literature and of the decisions of the highest court. The case-books are now every where used in the following manner: TTie students study thoroughly a number of cases at home and strive to master the actual facts involved as weU as the rule of law; usually they prepare a very brief abstract of each separate case, which they bring with them to class. In the actual class exercise the professor calls on one of the students, and has him state briefly the content of the case. Then follows the interchange of question and answer between teacher and stu- dents; in the course of the discussion other students are brought in by the teacher, and stiU others interject themselves in order to offer objections or doubts or to give a different answer to the original question. The whole exercise generally moves quickly and yet with absolute quiet and with undivided attention on the part of the class. It must indeed make a strong impression upon every visitor to observe, as, for instance, in the Harvard or Columbia Law School, classes of 100 to 150 students engaged in this intensive intellectual work; all the students intent upon the subject, and the whole class continually, but to a certain extent imperceptibly, guided by the teacher and held to a common train of thought. The thing that specially impressed me was the general intense interest displayed by the whole class in the discussion, even by those who did not take part in it themselves ; I do not remember that a stu- dent, when called upon, was confused or unable to reply, although of course not all gave an adequate answer. The transition from one case to another followed quickly, and indeed in general the tempo is a rapid one, and always only the matter in hand is discussed and superfluous generalities are avoided. Digressions from the theme are as a rule dismissed by the lecturer with a short remark; pauses seldom occur, for if the professor notices a general lack of understanding of the case, he then interposes with a lengthy explanation. The great majority of the students make notes during the course of the discussion. I looked at many of these note-books and found in them the principles of the case jotted down, almost always briefly but inteUigibly, and for the most part in ordinary long-hand writing. Up to this point case method instruction goes on evei-y where in about the same way, naturally more or less modified at times by the individuality of the professor. When, however, the case or the several cases have been exhausted, when the analysis has been carried sufficiently far, then we reach that stage of instruction in which a different application of the method by different teachers of law may undoubtedly be observed. Some find it then necessary to sum up the whole discussion to some extent; to estab- lish explicitly the theoretical result, the abstract proposition that was reached; and to give a very brief lecture of some minutes' duration which brings the rule or prin- ciple into relation with other propositions of the law. Also many professors at this point cite other cases from the Reports and occasionally even give references to single prominent legal works; in short, several further "aids to study" are made known to the students and eagerly noted down by them. Other professors, among whom are many 28 THE CASE METHOD IN AMERICAN LAW SCHOOLS of the strongest representatives of the case method, abstain from any summary resume of the discussion, and even scrupulously avoid in any way formulating the result for the hearers, or presenting to the students their own view of the legal principles of the case. And this occurs, as I have learned from many conversations with law teachers, as the result of definite convictions in regard to method.^ They feel that the case method, correctly understood, ought to avoid any dogmatic instruction of the pupils by the teacher. The students, through their own study and through the analysis which goes on in the class exercises, must themselves find the law contained in the cases. Nay, more, they must themselves systematically put together the knowledge gained from hour to hour; or, as it has been repeatedly expressed to me by distinguished law teachers, instruction by the case method should make the students competent to com- pose their own text-books.^ ^ It is characteristic that Lan^dell added to his Cases on the Law of Contracts — the first case-book ever published — a special part called " Summary," which is nothing more than a dogmatic presentation of the common law of con- tracts, strictly limited, of course, to the preceding cases and therefore not exhaustive. Later, in 1880, this summary was published as a separate volume. ^ Thus I was told in Chicago that the students have coined a particular expression for the synopsis of legal rules which they prepare at the conclusion of each case-book section. They call this the "dope sheet," and the better stu- dents take a great deal of trouble to make it as complete as possible. PRACTICAL SUCCESS OF THE CASE METHOD CONTRIBUTORY REASONS FOR THIS SUCCESS : INCIDENTAL INSTRUCTION ; MOOT courts; student spirit; CLUBS AND PERIODICALS As Keener says in the repeatedly quoted article upon the inductive method in legal education, the case method has two aims: the development of the logical, legal power of thinking, as well as the acquisition of positive knowledge. A student who learns from a text-book only appropriates the intellectual work of another instead of himself working out the principles and legal rules from the material of the cases. The mem- ory of a student taught by text-books is like a sieve that lets most of what was poured into it run out again ; he, however, who works out the abstract thoughts for himself also keeps a firm hold upon them, and thus the case system is precisely the method which really does impart legal knowledge.^ Most of the leading law professors of America, after an experience with the method for twenty years or more, agree with these views. One who intends to pa^s judgment upon the case method certainly cannot ignore this fact. Nor can any one deny that as a general principle in all realms of human knowledge, and so in legal education, too, the independent acquisition of knowledge is the highest form of teaching psy- chologically, and ethically is the most fruitful. Apart from certain limitations which must here be made, and to which I shaB. shortly recur, I must not neglect, on the basis of the impressions that I received, to recognize again explicitly the great value of this Socratic method of instruction, and to testify to my conviction of its great success. I visited particularly classes of the third year, in which difficult cases, as for example cases involving a " conflict of laws," were analyzed by the students with great readiness and grasp of the subject-matter ; classes in which there stood out strongly not only excellent logical training, capacity for independent study, and especially for quick comprehension of the actual point of law involved, but also indisputable know- ledge of positive law. I gained the impression that law students of the third year in our European law schools would hardly ever be found competent for such work. On the other side, however, I am just as positive that, if all first attempts are difficult, this is especially true of legal education according to the case method. Eminent pro- fessors of law have repeatedly explained to me that it takes a long time before the excellent effects of instruction by law cases are evident. The beginners are, as a rule, rather confused by what is demanded of them in class, and usually for a consider- able period only the particularly quick or talented students take part in the debate ; but after some weeks or months, things become clearer to the others also ; the students begin to grasp what it is all about, and there soon follows the hearty cooperation of the majority. Mr. Justice Holmes tells in characteristic fashion of his own experi- ences when, not without some misgivings, he first began to use this method : ' 17 Rep. Am. Bar Ass. (1894) 482 et sea. 30 THE CASE METHOD IN AMERICAN LAW SCHOOLS "The result was better than I even hoped it would be. After a week or two, when the first confusing novelty was over, I found that my class examined the questions proposed with an accuracy of view which they never could have learned from text-books, and which often exceeded that to be found in the text-books. . . . My experience as a judge has confirmed the belief I formed as a professor." ^ In order to account completely for this success of the case method we must, how- ever, make clear the peculiar conditions under which this mode of instruction is carried on, — conditions upon which that success is in large measure dependent. Above all we must not overlook the fact that the case-books and accompanying discussions are not by any means claimed by the representatives of the case method in Harvard, Colum- bia, Chicago, and other institutions, as the solitary and exclusive means of instruction. "The distinctive feature of the case method is not the exclusive use of cases," says Professor Keener, "but that the reported cases are made the basis of instruction, not used merely as illustrations."^ The object of the case system is not to have students memorize cases but to analyze them. Text-books are not in any way barred, but are used and recommended by the professors both to explain individual cases and more broadly to assist the students in finding their bearings. It is characteristic of the Har- vard Law School, and also of most of the academic law schools, that regularly, usually in the afternoons, the professor receives those pupils who wish to secure advice. As a matter of fact, most of the professors at Harvard, for example, place a very considerable portion of their free time at the disposal of students, in their oflSces at Langdell Hall, and it is at these interviews that the students are often referred to further means of assistance. In response to my repeated question as to how the beginners secured that elementary knowledge of law without which even the simplest case cannot be under- stood, I was always informed that this need was met partly by the broad introductory lectures, partly through references dictated by the professors. It is expected also that the students will get for themselves this elementary knowledge of the law, as for example the meaning of the current legal concepts and technical terms, out of law dictionaries and encyclopedias. Indeed, I may forestall my subsequent suggestions in regard to this matter of independent work, by saying that in my opinion a great deal — I fear too much — is demanded and expected of a novice in the law school. Of course it is also assumed that the students, especially those of the second and third years, study for themselves the standard works of English and American law, such as Blackstone, Story, Anson, Pollock, Thayer, and Wigmore, in connection with the corresponding parts of their law course. But even the hours devoted to purely oral instruction are not exclusively taken up by the Socratic method. In most of these law schools there appears in addition, as a second very important means of instruction, the practice courts, or moot courts, held ' Speech delivered at the quarter-millennium celebration of Harvard University, November 6, 1886. S Law Quar- terly Review 122. ' 17 Sep. Am. Bar Asa. (1894) 487. The italics are Keener'a. PRACTICAL SUCCESS OF THE CASE METHOD 31 every week or eveiy fortnight. These are practical exercises in the shape of judicial trials or cases which the professor prepares, and in which the whole class takes active part. I visited, for example, a trial of this sort in the Law School of the University of Chicago, and found this method of teaching excellently developed there. In a civil suit two students represented the plaintiff's attorneys, two others those of the de- fendant; the professor presided as judge. The complaint, pleas, and other trial papers had been worked out on the basis of a statement of facts given beforehand to the students. The pleadings then took place before the whole class, and at the end the professor rendered the decision and the "opinion." In another action to recover dam- ages, since a question of fact was involved, after the pleadings a jury of the students was formed, both attorneys addressed the jury, and one of the students sitting as judge also charged the jury. The whole affair proceeded very smoothly and showed especially great fluency in speaking on the part of the student-attorneys and the student-judges. But also the purely legal arguments, conducted with abundant cita- tions of precedent, gave the impression of adequate familiarity with the objective law. I had the feeling about this whole exercise that it assuredly did not fall below the level of an average court of the first instance in this country or in any other country. This custom of forming such practice courts for the purpose of legal instruction is, it should be noted, traditional in America. Under the name of moot courts they were used for decades in Harvard, for instance, as well as in other schools, although at Harvard itself they have for some time been replaced by another institution. I found the cus- tom of holding such moot courts almost universal, even in schools which are dominated entirely or predominantly by the text-book method.^ The incidental devices just spoken of, as in use in law schools in order to supple- ment instruction by cases, constitute, however, only one of the conditions which are responsible for the great success of the method. Of still greater significance, and in my opinion of really decisive consequence in this connection, is a general factor that I might briefly term the general "atmosphere" of the American university law schools ; a phenomenon which has not its like in the most remote degree anywhere else in the world to-day, and which can hardly be too much applauded. This specific "atmos- phere," without which so successful an application of the case method would be dif- ficult or even impossible, consists above all in the extraordinary strong spirit of fel- lowship, in the spirit of professional comradeship, that pervades the young people in all these important law schools in varying degree, but nowhere in so peculiarly powerful a way as in Harvard. From the first day each new class forms a unified whole from which only a very few hold themselves aloof, usually those very ones who later drop out of the course altogether. The whole class feels itself as a sort of free association of students who spend almost the entire day in close contact : mornings in the class-rooms ; during the intervals between classes and during recreation peri- ' Cf. William G. Hastings, " Practice Courts," paper read before the Association of American Law Schools, 37 Bep. Am. Bar Asa. (1912) 1010 ; Edson R. Sunderland, "Teaching Practice," ibid. (1913) 908. 32 THE CASE METHOD IN AMERICAN LAW SCHOOLS ods in the Common Rooms of Austin Hall and Langdell Hall; afternoons and even- ings, when no classes are held, in the library of the school, where the cases that happen to be up for discussion at that moment form the main topic of conversation. With great eagerness, so I was assured on all sides by former students and by the professors, and so I could myself observe, actual legal problems, incorporated in liv- ing cases, are here continually being argued. In this way mutual emulation and a con- tinuous mutual instruction and teaching are brought about, as could never be done either through lectures or through individual study of text-books. It is significant, too, that this part of the student body takes little or no part in the athletics which bulk so large in the life of other American students. This spirit, at once professional and cooperative, which dominates the student body, finds especially strong expression at Harvard, for instance, in the formation of the so- called law clubs, which have here come completely to take the place formerly filled by the moot courts. These law clubs exist at Harvard in great numbers, and have above all the function of conducting, usually once a week, the already described moot courts. They constitute accordingly a voluntary organization of students for supplementing the teaching activities of the school. The best known of these clubs, the Pow Wow Club, founded in 1870, is so constituted that there is an approximately equal number of members for each one of the three years. These form three courts for each year, each of which consists of eight members, the Superior Court, the Supreme Court, and the Court of Appeals.^ In the free organization of these clubs, which always enjoy the thorough coopera- tion of the professors, there is clearly displayed the intellectual independence and in- itiative of the American university student, — qualities which the case method claims as most important pedagogical forces and to which it appeals most emphatically. These qualities find, however, an even wider and more distinguished field of opera- tion. This is provided in the really astonishingly comprehensive and highly fruitful activity of the students in the technical periodicals connected with the separate law schools — the Law Reviews. Here, too. Harvard has led the way, and almost all the more prominent academic law schools have followed; thus there are to-day, besides the famous old Harvard Law Review (founded in 1887), a Columbia, Michigan, Illinois, University of Pennsylvania Law Review, and so forth. Following the Harvard ex- ample, these periodicals are generally arranged in two main parts. The first consists of scientific legal discussions which are written by members of the faculty or other legal scholars. The second part, on the other hand, is composed and edited entirely by students and consists of three sections: first, of the so-called Notes, which give short essays upon separate legal problems, based upon one or more recent decisions; second, of the Recent Decisions, a section under which a large number of important recent ' Cf. Warren, History of the Harvard Law School, vol. ii, pp. 319 et seg. Law clubs have existed in Harvard since 1826, the oldest called the Marshall Club after the famous Chief Justice of the United States. At present there are a large number of these law clubs, for the most part called after famous teachers, e.g., Ames Club, Thayer Club, and every student belongs to at least one such club. PRACTICAL SUCCESS OF THE CASE METHOD 83 decisions of the courts are analyzed and criticized ; and finally there follows a series of critical reviews of the most recent publications in legal literature. The whole periodical is published by a committee formed from the student body, — the Edito- rial Board, — the members of which share the entire editorial work of the second part, under the direction of an elected editor-in-chief. In Harvard, for example, the Editorial Board consists of twenty-four members who belong to the second and third years of the Law School ; at the end of a year the twelve members of the third year withdraw, and their places are taken by twelve from the new second year, the seven who stood highest in the last annual examination being taken on at once and these during the course of the year choosing five additional members. The professors may, of course, give advice in regard to the choice of these persons and the appointment of the editor-in-chief, but the actual determination of aU these questions is made by the students themselves. The principal labor of the Editorial Board, and the one which has the greatest importance from the point of view of instruction, consists in reading all the Law Reports which are issued during the year, the most important being dis- cussed in the Review. From time to time a so-called "case-meeting," i.e., a general meeting of the Board, is held, at which individual members report upon the cases as- signed to them, and the whole body decides upon the selection of the most important. It does not require extended discussion to show what great importance this activ- ity, always limited, to be sure, only to a picked few in each class, has for the gen- eral training of the young law students. In this way there is formed for the school a kind of legal general staff": that is to say, a number of young men who have all the advantages and accomplishments, which the case training particularly develops, in the highest degree. Naturally, too, membership on the Editorial Board of the Law Re- view is the highest distinction which a law student in Harvard or Columbia can attain, and the distinction is the greater because every one knows that this place of honor can be gained only through one's own exertions and ability. What an impulse this gives to the whole of legal education in American universities may easily be estimated. We have here, indeed, a stimulus of the highest ethical force, which is made especially strong by the complete publicity with which everything takes place, as well as by the inviolable democracy of the " Class," and of the system of instruction, in general. These special institutions undoubtedly count for a great deal in the practical success of the case method of teaching, a practical success no longer seriously disputed by any one in the United States. We have, however, reached certain questions which present themselves in this enquiry, and must now be faced. First: What are the essential causes of this success? Second: In how far is this method really a scientific method of legal education, and in how far do the representatives of this method make good their claim to have revo- lutionized thereby legal education in general.? 84 THE CASE METHOD IN AMERICAN LAW SCHOOLS And the further question must be put: Are the best American law schools justified in suppressing, to the extent that they do to-day, text-books and ipstruction based upon text-books and lectures? All these questions are intimately connected with one another, and in this connec- tion they must be answered. ESSENTIAL REASON FOR THE SUCCESS OF THE CASE METHOD NATURE OF ANGLO-AMERICAN LAW In answering the fii"st question I will lay down first, for the sake of clearness, the following propositions : In so far as the aim of legal education is practical activity in the law — the develop- ment and training, that is to say, of young attorneys — the case method is undoubt- edly successful. The most essential reason for this success is the peculiar condition in which Anglo-American law finds itself, as unwritten law, in the present stage of its development. Secondly: this success is, further, in large part due to the conditions, peculiarly favorable for it, which existed, or which could be developed, first at Harvard and then in more or less equal degree in the law schools of other American universities. These conditions indicate also from the outset limits to the peculiarly successful operation of this method. I will now explain these two propositions. It has been said, the success of the case method is an educational success achieved by the American university law school from the point of view of methodical preparation for the practical calling of the law. This success is attested by many well-known phenomena in the legal life of America, and especially by the fact that the best law offices give to the product of Harvard, Columbia, Chicago, the preference over other applicants. Indeed, the continually in- creasing influx of students into these schools constitutes the best proof of its prac- tical success, especially in a country like America where there are no legal regulations requiring law school attendance as part of the preparation of lawyers. It may be said, I think, that the fight for and against the case method has been just as much settled in favor of the method among practitioners as it was long ago among university law teachers. I said, further, that the fimdamental reason for this success is to be found in the present condition of American law, and within this especially in the unshaken author- ity of the common law. Unchecked by the voluminous output of statutory law, in aU conceivable fields of law and in all the states of the Union, the law of America has still remained, above all things, common law. It may even be maintained that the numerous legislative performances that prove the incapacity of democratic bodies to give anything like correct legal expression to their projects of law, and the great number of such statutes, which usually amount to nothing more than clumsy bUls of particulars, with no attempt to develop legal concepts, — that all this has actually helped to preserve the ascendancy of the common law in spite of its often fossilized or insufficiently developed principles. And this is so, even where, as in the field of Civil Procedure, an attempt has been made to "codify," or to formulate anew, sep- arate branches of the law. But common law is case law and nothing else than case law. This indicates, however, to borrow an illustration from physical science, a very 36 THE CASE METHOD IN AMERICAN LAW SCHOOLS peculiar molecular structure of the law, and at the same time a definite stage in the process of development of law in general. In this stage law appears, not as a system of norms and general principles, of abstract commands and prohibitions, which the state as the highest power sets up by direct ordinance as the general rule of life, and which is laid upon the people, as it were, from the outside; on the contrary, the law appears here in its original form £is the rules of law found by the judges in every single case that has come up for decision. Considered from the point of view of the people, law always appears an all-embracing network of legal relationships which exist between one individual and another, and between individuals and the state; as universal order indispensable to life, and growing out of life as it were spontaneously. Wherever this order is violated or contested, however, in any point, it is the sovereign judge who by his decision creates the law, and thus continually reestablishes the old order. Grand as has been the development of the English law in the eight centuries of its history, and greatly as it has been deepened and refined in many of its component parts, both through natural growth and through the influence of foreign law, nevertheless, up to the present it has never passed beyond this original, relatively fluid condition of "judge-made law." Those Germanic peoples, on the other hand, who at a definite stage in the development of their national law submitted to the so-called "reception" of the Roman Law, gained thereby a system of abstract legal institutions which in the refinement and finish of its concepts had already been brought to the highest perfec- tion. It is true that this system of abstract laws or rules remained for a long time for- eign to the habits of life of those peoples, so that a development of centuries was re- quired in order to complete the necessary adjustment between the inherited legal ideals of the people and the foreign system of law that had been "received" or taken over. In this way, on the European continent very often the original law, and above all in Germany the German legal thought, has remained the core even though overlaid with the perfected, definite concepts of technical Roman Law. The development of the law of the English people was quite different, for their law, the common law, in spite of occasional strong influences of Roman and canon law, remained really inviolate in form and content. That is to say, even at the present time the common law, in its general aspect and in the nature of its concepts, has remained stationary in that phase of development of all national laws which precedes the formation of a strictly abstract codified sys- tem of law : that phase in which objective law appears in principle as a complex of legal relationships, from a practical forensic standpoint as a catalogue of writs and legal remedies. To the German and Frenchman of our time, therefore, the law appears always in popular thought as the abstract rule, as the general principle, to which all individ- ual relationships of the citizens are a priori and for its own sake subordinated. To the Englishman and the American, on the other hand, the law appears rather as the sin- gle case of law, as the single subjective suit, conducted by the regular judge, and de- pending only upon his " finding of the law." The task of the European judge is to find REASON FOR THE SUCCESS OF THE CASE METHOD 87 which of the rules and principles of law that are contained in the system of law gov- erns the state of facts in question. Here, however, in the common law country, the law appears in the national thought as a quality which to a certain extent comes of itself to men and to the relations which bind men together; as something that is always there and for that reason is known and understood by every one of the people them- selves. When, accordingly, in the single case, the rights of a fellow countryman come into question, it is the judge's duty to extract from the existing state of facts the law which is already contained in it, and to declare in his decision how, from the point of view of the law, the human relationships involved ought to have been, or ought now to be, ordered; in which task the only guide he can use is not an abstract norm or principle, but only the decisions of other judges in similar cases. It is true that the decision gives for the single case a rule which rests upon a legal principle. This rule, this principle, however, does not exist as a general and abstract norm, but appears only in the single case, and to a certain extent exists only for the need of the parties involved in this particular decision, even though as a precedent it possesses a certain directive force for future cases of the same or similar nature. The whole law lies in the reports of single cases which have been accumulating for centuries. Common law is case law, and the handling of such law is the practical calling for which the American student demands preparation. Clearly this characteristic feature of the common law must have decisive and prac- tical significance for legal education also. A law like the Anglo-American common law, for which the maxim stiU holds that it lives in the breast of the judge, and the rules and principles of which are made known not through statutes as abstract norms but only in the application to the separate case and through the voice of the judge, — a law so formed must be studied in its native environment, in the court of justice, and must be obtained from the decisions of the judge. Legal education in England has been governed by this point of view from the beginning, from the time when the Inns of Court arose, and with them the first law schools of a practical kind in which the young students of law, in daily intercourse with judges and lawyers, learned the law as novices and apprentices learn a craft or trade. Thus it was in England for cen- turies, and thus it is at present, for even to-day, whether or not they have formerly busied themselves with jurisprudence at Oxford or Cambridge, and whether or not they later attend the lectures on common law and equity, on criminal law and pro- cedure, given under the direction of the legal guild, "reading in chambers," study of cases, direct participation in the practice of the law ofiice and in the court, is the method by which young English lawyers acquire the requisite knowledge of the ex- isting law. Considered from this point of view, the case method is, then, in a certain sense, nothing but the return to the principles of legal education demanded by the vei-y nature of the common law. The manner in which this occurs, however, shows a great advance in the first place over the pure apprenticeship in the law office as tradition- 38 THE CASE METHOD IN AMERICAN LAW SCHOOLS ally practised in England and America; and also in the second place over the method of school instruction by text-books and lectures, as it was created in the nineteenth century. The purely empirical '"prentice-like" preparation for the law naturally takes away from legal education at the outset every characteristic of scientific teaching, since from the outset it leaves to chance the amount of legal knowledge which the student can actually acquire. Every possibility of methodically covering the entire field of the law as a great whole, logically and historically coordinated in all its parts, is lacking here. From the outset everything is based upon the intellectual power and the independent character of the individual student; upon that depends the extent to which through study of the law cases he can master common law and equity. In this method of preparation eveiy young lawyer must conquer the legal world and the legal way of thinking, each time newly for himself; must create for himself, em- pirically, so far as he can, principles and system. His personal talent for legal thought and the measure of his forensic success are here the decisive actual factors. Now, the older type of law school, with its text-book method, can in no way replace those particular qualities which practice alone can give ; let this be expressly empha- sized. No theoretical instruction in the law, whether in a country of codified law or in a country of common law, can do this. But this school and method proceeds from the correct point of view that, on the other hand, practice, the routine of the law office, whether in England or in America, is not real instruction. Important though it is, it can, even under the most favorable circumstances, supply only empiricism — that is to say, habitual use and practical familiarity joined to irregular acquisition of know- ledge. No matter howindispensableis this stage in the training of the legal practitioner, it presupposes the existence of, and is made vastly more effective by, a preliminary course of systematic and theoretical instruction in the principles of law in its entire compass. On the basis of this belief there grew up first systematic lectures, then text- books, as the literary precipitate, so to speak, of the preceding. Both proceed from the conviction that even in English and American law a system of legal principles exists, and they obtain this system from the real source of the common law, from the decisions of the judges, gladly availing themselves, at the same time, of the classical work on the common law, BlacJcstone's Commentaries, as the most important means of instruction. But instruction based upon such lectures and upon various topical text- books which have grown out of them is to be carried on in a purely "academic" manner, that is to say, as dogmatic teaching, which rests upon the authority of the book and of the teacher who explains it. Judge Baldwin, one of the most zealous repre- sentatives of this older method of teaching law, says:* "No general method of studying law is likely ever to be discovered which is bet- ter than that of requiring the scholar to read daily and read with care a chapter or two from such a book, and then to be ready to explain the principles of decision '■ 14 Hon). Law Rev. (1900) 260. REASON FOR THE SUCCESS OF THE CASF METHOD 39 applicable to states of fact slightly variant from those given in the example put by the author." The main defect in this mode of teaching is clear from these very words: it lies in the fact that law is taught here as a kind of elementary instruction of immature pupils, like any branch of knowledge in the high school. The principles are laid down in the text-book and in the professor's lectures, ready made and neatly rounded, the predigested essence of many judicial decisions. The pupil has simply to accept them and to inscribe them so far as possible in his memory. In this way the scientific ele- ment of instruction is apparently excluded from the very first. Even though the rep- resentatives of this instruction certainly do regard law as a science, that is to say, as a system of thought, a grouping of concepts to be satisfactorily explained by histori- cal research and logical deduction, they are not willing to teach this science, but only its results. The inevitable danger which appears to accompany this metTiod of teach- ing is that of developing a mechanical, superficial instruction in abstract maxims, instead of a genuine intellectual probing of the subject-matter of the law, fulfilling the requirements of a science. For as things now are, the empirical routine of the law office is preceded by a schoolmaster's routine of a sort of legal dogmatism, by which scarcely anything is gained for the development of the future lawyer, and certainly time is lost. This is where the Langdell case method steps in. It proceeds upon the assump- tion that these threatened disadvantages of text-book instruction havegenerf Uy been realized. It emphasizes the scientific character of legal thought; it goes now a step further, however, and demands that law, just because it is a science, must also be taught scientifically. From this point of view it very properly rejects the elementary school type of existing legal education as inadequate to develop the specific legal mode of thinking, as inadequate to make the basis, the logical foundation, of the separate legal principles really intelligible to the students. Consequently as the method was developed, it laid the main emphasis upon precisely that aspect of the training which the older text-book school entirely neglected : the training of the student in intel- lectual independence, in individual thinking, in digging out the principles through penetrating analysis of the material found within separate cases: material which contains, all mixed in with one another, both the facts, as life creates them, which generate the law, and at the same time rules of the law itself, component parts of the general system. In the fact that, as has been said before, it has actually accomplished this purpose, lies the great success of the case method. For it really teaches the pupil to think in the way that any practical lawyer — whether dealing with written or with unwritten law — ought to and has to think. It prepares the student in precisely the way which, in a country of case law, leads to full powers of legal understanding and legal acumen ; that is to say, by making the law pupil familiar with the law thi-ough incessant practice in the analysis of law cases, where the concepts, principles, and 40 THE CASE METHOD IN AMERICAN LAW SCHOOLS rules of Anglo-American law are recorded not as dry abstractions but as cardinal realities in the inexhaustibly rich, ceaselessly fluctuating social and economic life of man. Thus in the modern American law school professional practice is preceded by a genuine course of study, the methods of which are perfectly adapted to the nature of the common law. The average student at Harvard or Columbia who starts with the requisite general education and capacity, who takes full advantage of his three years' course, and who proves this by his success in the yearly written examinations, enters finally the practice of the law office — and a law oflice that is busy, too, with difficult legal questions — better prepared than a graduate of any other school in America, England, or on the European continent. In his practice he has only to continue to ex- ercise and to develop the manner of thinking that he has already brought to a very high degree of perfection in the school. By the side of this, what he has still to learn in his law office (especially in the fields of procedure and of written forms in general) is of very subordinate importance ; although in this connection it must of course again be emphasized that this knowledge can never be gained in any school, anywhere, any more than any law school of Europe or America can teach the future lawyer the ethics of the legal profession or the peculiar instinct {Takt) of the successful lawyer or judge. In this calling, as in every other, only the direct atmosphere of daily professional life can furnish to the beginner certain experiences and qualities which are of great prac- tical importance. But d,part from this the American student gains in the modem law school of his country all the practical knowledge of the law that any school can give to a future attorney or judge, in unparalleled manner. ACCOMPANYING WEAKNESSES OF THE METHOD ON THE SCIENTIFIC SIDE; SUGGESTIONS LOOKING TOWARD IMPROVED INSTRUCTION Herein we find the strength, but herein also the weaknesses, of the case method. These weaknesses, to sum up the writer's opinion in a word, lie on the scientific side of American legal instruction in its present form. In this connection we may distin- guish between, first, the influence exerted by the case method upon the scientific com- prehension of law by the students, that is to say, upon legal instruction proper; and secondly, its reaction upon the scientific elaboration of law in general, that important function of law faculties which we must consider apart from their purely pedagogic aims. With respect to the first point, it seems to me that the following consideration is of some importance. It is characteristic of the case method that where it has thor- oughly established itself, legal education has assumed the foiTti of instruction almost exclusively through analysis of separate cases.^ The result of this is that the students never obtain a general picture of the law as a whole, not even a picture which in- cludes only its main features. This is, in my opinion, however, just as important for the study of Anglo-American law as for the codified continental systems, and is a task which should also be accomplished by the law courses in the universities. To this end, the following seems to me above all things requisite: First, as an introduction to the entire curriculum, care should be taken to intro- duce to the students, in elementary fashion, the fundamental concepts and legal ideas that are common to all divisions of the common law. Or, to express it in a word cur- rent in European pedagogy, the beginners in American law schools should be given a legal Propddeutik, or preparatory course, which in a simple yet scientific manner shall set forth the elements of the common law; shall furnish, that is to say, a comprehen- sive view of the permanent underlying concepts, forms, and principles, not forgetting the elementary postulates of law and legal relationships in general. The more rigor- ously casuistic the case method of instruction which then follows necessarily has to be, the more important it seems to me it is to make clear to the students at the very be- ginning certain fundamental facts and guideposts of the law which are removed from all casuistry and theoretical controversy. Only in this way will their future studies rest upon a solid and scientifically grounded foundation. Classical Roman law at its height developed, as is well known, a special literary type, the Institutes. This was a comprehensive presentation of the elements of law, in- tended to introduce and facilitate the regular course of study, and the fact that Jus- tinian retained it as an introduction to his code shows what importance was attached ' Judge Baldwin (14 Harv. Law Bev. 268) replies to the question : What is a case-book ? in the following words: "It is in substance a series of fragmentary discussions of particular topics, interspersed with fragmentary portions of opinions f5rom reported cases. . , . No science can be learned purely from particulars. The universals must be studied to discover what the particulars mean and whence they sprang," 42 THE CASE METHOD IN AMERICAN LAW SCHOOLS to it. Now when at the beginning of the nineteenth century in Germany, thanks to the yvovk of Savigny, modern teaching of the so-called German common law came to be developed, the real foundation for this new teaching was the reception of the Roman law; and so, naturally enough, the name and form of the Institutes were taken over for the introductory legal instruction. In all the German law faculties it became the invariable practice to begin legal instruction with a so-called "Institutes-course" (InstUutionenvorlesung), which usually comprised, first, a general elementary discus- sion of the relation between law and the state; next, some account of the external his- tory of the Roman law ; and finally, a description of the fundamental institutions and main principles of the Roman private law in its important divisions, such as the law of persons, of property, of liens, of inheritance, of obligations, etc.; in connection with which the main events of the inner legal history, that is to say the development of the most important concepts and doctrines, were also presented. When, later, codi- fication began in the great German provinces, scientific instruction in the law (the Codes again being in large part founded upon Roman legal thought) very soon re- covered from the error, which it originally committed, of immediately beginning to teach these new law codes dogmatically. The faculties returned rather to the practice of introducing scientific instruction in law by thoroughly inculcating the fundamen- tals of the historic Roman law, and so again, at the very forefront of this instruc- tion, stood an InstUutionenvorlesung. This can be traced with especial clearness in the history of legal education in the Austrian universities, where, about the middle of the nineteenth century, the reforms connected with the name of Josef Unger occurred in the manner described. In the German Empire, too, although the Civil Code, since its introduction, as a matter of course constitutes the core and the main substance of legal instruction, the custom of prefacing an "Institutes-course" has continued. Similarly, in my opinion, in American university law schools the students ought to be given an introductory lecture course, which should present, so to speak, "In- stitutes" of the common law. Every department into which the American law is di- vided, whether as common law or equity, employs certain common elementary ideas and fundamental legal concepts which the student ought to be made to understand before he is introduced into the difficult analysis of cases. Concepts such as choses in action, person and property within the meaning of the law, complaint and plea, title and stipulation, liability and surety, good faith and fraud, should, in these intro- ductory lectures, be given to American students in connection with a system of the law, even although this should include only the general fundamental features. They should not, as usually occurs to-day, come to the students unsystematically and un- scientifically, as scraps of knowledge more or less assimilated out of law dictionaries and indiscriminate reading of text-books. And there is a second consideration which must be taken into account as bearing upon this question of the comprehension of law as a whole. The current common law of England and America is an essentially historical law. Many of its current concepts WEAKNESSES OF METHOD ON SCIENTIFIC SIDE 43 and doctrines go back through a development of centuries, and can be comprehended only on the basis of a fundamental historical explanation. For Anglo-American law just as much as for the common German law of the nineteenth century, the birth and powerful influence of the new historical method marks the turning-point at which the inheritance of the Middle Ages — legal craftsmanship and practical expertness in law — becomes converted into legal science. What Savigny and his pupils and the entire legal-historical school of Germany accomplished for the common law of Germany has been performed in no less admirable fashion in the last half-century for the English common law by such men as Thayer, Langdell, Ames, and Bigelow in America, and in England by that incomparable genius, F. W. Maitland. The task which now in our time confronts scientific legal instruction in America, the task of teaching the historical development of the separate doctrines and principles of the common law, is already in part being most excellently performed in those schools where the neces- sary case-books have been provided, and where the case method is so handled as to lay proper emphasis, in the analysis of the separate cases, upon the historical point of view. But here, also, it seems to me that the historical scaiFolding of the English common law, as a general introduction to the analytical study of Anglo-American law, is extremely desirable and of the greatest importance. A scientifically constructed survey of the main sources of the common law and of their relation to one another ; of the concepts of customary and positive law; a short external history of the law, which should include the origin and development of the English courts of justice; a brief exposition and development of the nature and extent of the concept of equity ; a description of that institution so important for Anglo-American law, the Reports, and of the concept of precedent ; finally also a glance at the phenomenon of statutory law (legislation) and its nature and forms; all these things and much else connected with them ought to be furnished the students at the beginning of their studies, before their introduction to the analytical study of the cases. The fact that this ground can be covered only in elementary and summary fashion need not prevent the presenta- tion from being thorough and scientific. This, then, would be another task to be accomplished by an "Institutes-course" in the English common law. A farther service would be the introduction of the students from the beginning into the atmosphere peculiar to legal science, through direct lec- turing on the part of a living teacher. I attach very great importance to the direct lectures of a legal scholar who has been trained in a thoroughly scientific manner. It is simply doctrinaire exaggeration on the part of many contemporary law teachers in American universities, when, in order to preserve the exclusiveness of the case method as a unique, hermetically sealed system of teaching, they reject every lecture a limine as a means of instruction ; when they describe such lectures as mediaeval and therefore obsolete; when they declare that lectures to-day do not easily arouse, and stiU less easily hold, the interest and attention of the students. In the same way that the stu- dents put down in fheir note-books the main points which are brought out by dis- 44 THE CASE METHOD IN AMERICAN LAW SCHOOLS cussion in the pure case method exercises, so they can just as well jot down the train of thought of a series of such lectures, in which the elementary concepts of the law and the most important details of legal terminology are explained to them. Such a course of preliminary lectures, whose nature throughout should be that of talks to beginners, would, in my opinion, with great profit, take the place of the now customary, unscientific introduction to the law, through law dictionaries and discursive reading. The course of lectures on Institutes, which I here recommend to serve as authorita- tive introduction to the study of law, would naturally divide itself along the two lines of approach already indicated. First would come a sort of "general part," an exposi- tion of an essentially dogmatic kind, in which the main legal concepts, forms, and fun- damental institutions, corresponding to the examples I have already cited, should be systematically set forth, while the second part should give a beginners' course in the sources of the law, and a historical survey of the main events in its development. Such a course of lectures, which should be given for about three or four hours a week, would doubtless extend over a part of the first year of study, at least the first third or the first half. On the other hand, there is no reason why a part of the case method exer- cises which are now conducted during the first year in separate fields of the common law should not also go on simultaneously. If, however, during the first few weeks of study, the main task of the pupils consisted in a course of "Institutional Lectures," then, in my opinion, we should essentially shorten and diminish that confusion and obscurity which — as is admitted by even the most zealous advocates of the exclusive case method — troubles most of the young men at present during a large part of their first year in their attempts to analyze the cases. They would enter upon the analysis with a certain amount of definite knowledge, and certainly with a better understand- ing of the sense of the entire machinery of the law. They would learn more quickly to group under several general heads the particulars with which the study of the cases supplies them, and thus from the beginning would introduce a certain orderly arrange- ment into their growing knowledge of the law. In other words, the accumulation of the material of legal thought, taking place daily through the analytical exercises, would from the beginning take place systematically and with a certain consciousness of purpose. Such an introduction to the law, eflfected by means of a scientifically systematized course of lectures, would in my opinion enhance those great advantages which subse- quent instruction under the case method undoubtedly possesses for the students. Par- ticularly would this be true for those who by mental aptitude incline more to the dogmatic or synthetic method of thought than to the analytic, a distinction which is given by nature, and to which far too little importance is attached by the advocates of an exclusively analytic method. An introductory course of lectures, then, upon the Institutes of the common law seems to me extremely desirable, in order that before the student enters upon the WEAKNESSES OF METHOD ON SCIENTIFIC SIDE 45 casuistic study of law — lasting several years and of necessity splitting the topic up into fragments — he may be given a general survey of legal organization, and may thus be made to see the system of law as a living whole, the product of centuries of development. I go farther than this, however. It seems to me very advisable to add also at the end of the course lectures which shall furnish the American law student once more, before he steps out directly into practical legal life, a certain general summing up and survey of the law. If the student has mastered all essential institutions and doctrines of the common law during his three years' course, through the analysis of countless cases, he wiU. certainly now be sufficiently matured to undertake, with fuU understanding, two important tasks. First, he should be able to grasp the general scientific theory of the law as one of the great dominating phenomena of human civilization and human thought. Secondly, he should now be fiiUy prepared to cast to great advantage a comparative glancfe at that second mighty system of law which has shaped the history of humanity, namely the Roman law. The first mentioned task corresponds pretty closely to what has for a long time been designated by English and American teachers of law by the term" Jurisprudence," and is taught as such in several universities. By this is understood, broadly speaking, a presentation of the leading fundamental principles that are more or less common to the modem law of every civilized people, considered both as products of a devel- oping positive law and as influenced and perfected by the theories and ideas of legal philosophy. Historical, philosophical, and sociological aspects of the law have here to be boimd together in harmony with one another, in order to help erect a theory of the fundamental principles of law which shall rest upon the surest possible founda- tions. The concept of law in general, the concept of sovereignty, of law as an objec- tive norm on the one side, as subjective authority on the other; the various classifi- cations and divisions of the law — public, private, and international ; the various mani- festations of the law — customary, written, and judge-made; in connection with this, moreover, a general theory of the sources of law; further, the philosophic basis of the great legal institutions of possession, of property, of inheritance, of contract, and of damages; in connection with this the theory of the will in law; and finally the great basic forms and fundamental principles of the safeguard of law, of procedure; these, and many other fundamental theoretical problems besides, could be presented to the mature students in such a course of lectures, under the head of Jurisprudence, to their great advantage. The second course of lectures, on the other hand, those dealing with Roman law, would also, of course, be primarily so planned as to bring the outlines of this system of law into comparison with the common law, already familiar to American students at this stage. The analogies and the differences which are brought out sharply by the comparative method would go far to make the features and characteristics of the native law stiU clearer to the students, and to deepen their understanding of their own law through their insight into that of other peoples. 46 THE CASE METHOD IN AMERICAN LAW SCHOOLS Now, it is perfectly true that through both of these additions — the institutional lectures at the beginning and the two encyclopedic courses at the close of the course of study — the curriculum, already very comprehensive and with difficulty to*be covered in a three years' course, would be very appreciably enlarged. Indeed, the subdivision of the three original departments of the law — common law, equity, and procedure — has now been pushed so far and the number of specialized courses has thereby become so great, that three years appears entirely too short for a legal edu- cation, pursued with the earnestness and thoroughness which characterize the lead- ing university law schools of America at present. A glance at the annexed curricu- lum offered at Harvard brings this fact out unmistakably. First Fear; Agency; Civil Procedure at Common Law; Contracts; Criminal Law and Procedure; Property; Torts. Second Year: Bills of Exchange and Promissory Notes; Equity; Evidence; Insurance; Property; Public Service Companies; Sales of Personal Property; Trusts; Damages; Law of Persons. Third Year: Conflict of Laws; Constitutional Law; Corporations; Partnership; Property; Suretyship and Mortgage; Bankruptcy; Equity; Municipal Corpora- tions; Quasi-Con*tracts ; Admiralty. Harvard, realizing this fact, and at the same time desirous to take a step forward in the development of legal scientific studies, introduced several years ago an optional fourth year, open, of course, only to graduates. As appears from the list given below,^ there are offered in this fourth year, besides legal philosophy, general jurisprudence, and Roman law, a number of special courses which from their very nature can avail themselves of the analytical case method only in part. Assuredly, then, if an obliga- tory fourth year should be added to the American university law curriculum, enough time would be gained to find place not only for the courses here suggested, but also for special lectures, and for special practical analytic exercises conducted by the case method ; so, in particular, in international law and American administrative law. There would also be time for lectures upon legal reform, designed to give the students, even before they go out into practice, some critical guidance in the problems of the lex ferenda. In general this lengthening of the period of law study would undoubt- edly permit a deepening in various directions of the students' theoretical knowledge of the law, and this, again, would act as a powerful stimulus to many, after they have left the school, to continue their scientific studies. If we glance now at the Harvard curriculum, we must recognize that here already the right path has been entered upon, and entered upon very well — the path which leads, if I may so express myself, to a classical perfection of modern legal education in America. May we not hope that Harvard, again assuming the lead, will pursue this ' Qraduate Courses; Roman Law and the Principles of the Civil Law and Modern Codes as developments thereof; Criminal Procedure and Procedural Reform; Administrative Law; History of the Common Law; International Law as administered by the Courts; Introduction to the Year Books; Jurisprudence. WEAKNESSES OF METHOD ON SCIENTIFIC SIDE 47 path to the end, and make the fourth year obhgatory ? And may we not expect that in this instance again Harvard's example will be followed by its traditional rivals among American university law schools ? It is not as though this lengthening of the legal cur- riculum necessarily meant any loss of time ; this need not be the case if the year be taken away from the place where, at present, it is spent to the least advantage, namely from the college. It would lead me too fai-, and I ought not to venture on the basis of my own very insufficient personal experiences, to say here anjrthing definite in regard to the efficiency of the present-day American college. The question is too difficult, and in- volves too many important considerations. But much that I have heard and read of the college and of its success in its present form, much that I could observe for myself, leads me with all caution to the conclusion that in those very institutions in which col- lege work is taken as a preliminary to law, the benefits of the college training could easily be secured to future law school students by setting a more rigorous pace in a period of time shortened by a year. The gain of this fuU year would undoubtedly, however, be a good thing for the law school and hence for legal education. Harvard would not have to alter much in its present graduate courses to reach for all its students the goal which it already almost touches, — a goal which can be defined in a single word : to be, in our day, absolutely the best school for lawyers. There is no doubt that Columbia University, that the excellent Chicago faculties, led by Hall and Wigmore, and with them, or soon after them, still others of the more progressive university law schools, would attain the same high goal. THE IMPROVEMENT OF LEGAL SCHOLARSHIP AND THE PROMOTION OF LEGAL RESEARCH It has already been remarked that the modifications here suggested are of a sort to exert a beneficial influence not only upon legal education but also upon American legal science in general. This point will now be very briefly developed. A glance over the history of American legal education reveals clearly how the rise of numerous law schools resulted immediately in intensive literary activity on the part of lawyers. On the basis of the lectures given at the schools there appeared numer- ous treatises and text-books covering separate fields of the law. The scientific value of this literature, the type of which continued unchanged until far into the second half of the nineteenth century, is not, it must be confessed, very great. Like the Eng- lish legal literature of the century following Blackstone's work, it is reaUy confined to commentaries, or to compilations and fragmentary discussions of the most impor- tant decisions in the separate fields of law. Almost uniformly, both in England and America, this literature is intended either for young candidates for admission to the bar, or for the use of practising attorneys, and has accordingly no higher aim than to make it easier for judges and lawyers to master the ever-increasing flood of judi- cial decisions. Still, even in this period, some notable literary production was achieved by American lawyers; above all. Chancellor Kent's famous commentaries supplement- ing Blackstone, and the writings of Story, are not only among the best literary efibrts in the field of the common law, but are among those which are most used by the pro- fession in actual practice. The activity of both these men, however, was completed not long after 1840. From that time on, for a generation, American legal literature, while continuing to broaden its field to an extraordinary extent, remained consist- ently upon the level of manuals of instruction (and instruction, note, of high school grade), or of aids to practice. So much the more remarkable, then, is the significant change which occurred after the year 1870. Doubtless influenced to a considerable extent by the new spirit evoked by Langdell's reform, there began, first in Harvard and soon in university law schools generally, a new epoch for American literature. A series of works was produced which rose to the level of European legal science, and need not fear comparison with the new English legal literature which at about this same time also came into being. Through the writings of Maine, Bryce, A. V. Dicey, Anson, Sir Frederick Pollock, and F. W. Maitland, Oxford and Cambridge became small but influential and efficient centres for a scientific treatment of the common law — scientific in that high sense which the term has possessed in Germany since Savigny and Jhering. It is significant that it was again the historical method, the creation of a new history of law, using in its investi- gations all modem scientific methods, which also in England changed the legal scholar from an industrious compiler of decisions and statutes into a scientific investigator in the full meaning of this word. Similarly in America, it was Langdell and Thayer, Bige- IMPROVEMENT OF LEGAL SCHOLARSHIP 49 low and Ames, who as keen historians of the common law laid the foundations for a new, truly scientific, activity in American law. At the same time, in the really clas- sical work of Oliver Wendell Holmes upon the common law, there appeared the first philosophical theory of Anglo-American law to be produced in this country; a most admirable performance from a literary and from a scientific point of view, being based upon a masterly command of the legal literature of Germany and France, and possessing a value for the whole science of law which, in my opinion, is only beginning to be recognized.'- This newly founded American science was shortly reinforced by the younger generation of scholars, trained first in the Harvard Law School, and later also in the other university law schools, who created, first of aU in the Harvard Law Review, their literary meeting ground and powerful organ, but have also, for some- thing like a decade, found expression in the more recent publications mentioned above, of the other university law schools.^ The amount of scientific legal labor which has gone into the making of the twenty-six volumes or years of the Harvard Law Re- view is a wonderful accomplishment on the part of teachers and pupils of modem American law faculties employing the analytic method. In men like Roscoe Pound and John Wigmore the younger generation possess two eminent masters of legal research and of comparative legal theory; and it is one of the most encoiu-aging features of present day legal life in America that such men are in a position to influence the tide now plainly setting in towards a systematic, scientifically grounded reform of great parts of current American law — notably its thoroughly antiquated rules of civil and criminal procedure. Now, although, as has bfeen said, the LangdeU reforms were really responsible for the first scientific treatment of the law, and consequently for a scientific legal litera- ture in the sense in which European jurisprudence employs this term, nevertheless it cannot be denied that the literary powers of the new generation of American teach- ers were for many years very largely expended upon supplying the new aids to law school work and instruction — the case-books, that is to say — which the new method demanded. This task has been accompHshed in the last generation in an eminently comprehensive and satisfactory manner.' Undoubtedly this work of making from out of the almost incalculable mass of pubHshed cases, contained in thousands of volumes of English and American reports, a continually better selection of those which are to be used in teaching, and of arranging these again systematically in the case-books, has been performed admirably. But on the other hand, it is equally certain that this ' The appearance of Leonhard's translation at Breslau, in 1913, gives German legal science the greatly desired oppor- tunity of now spreading Holmes's work widely over the legal world. ^ In England, for almost a generation, the celebrated Law Quarterly Review, now edited by Sir Frederick Pollock, has been the literary stronghold of the modern, strictly scientific legal research of England. ^ In the year 1908 there were at least eighty-six different case-books ; since then the number has considerably in- creased. At that time there was announced for publication, under the editorship of Professor James Brown Scott of Washington, a special series, which was designed to embrace, within the compass of about twenty-five volumes, the entire private and public law, and thus to place at the disposal of American law schools a standard type of case-book, constructed with the greatest possible uniformity and care. 50 THE CASE METHOD IN AMERICAN LAW SCHOOLS kind of literary activity has prevented many forceful writers among modem Ameri- can law teachers from cultivating the fields of legal history and dogmatic literature as fruitfully as they might otherwise have done. The already suggested obligatory lengthening of the law course to four years would undoubtedly greatly stimulate the production of strictly scientific literature in American law. For this would render possible a larger number not only of analytic exercises, but also of lecture courses ; lectures upon separate legal institutions resting in large part upon statutory law, as well as courses upon problems of legal history and of comparative legal science, such as Harvard already oiFers to its voluntary fourth year students. Perhaps the thought may be here expressed that, in connection with this, a certain disadvantage which the case system possesses for the scientific activity of law teachers would be diminished. The case method claims, as has been remarked above, an un- common amount of time and devotion on the part of the teacher in connection with the oral instruction, and so already reduces very seriously his opportunities of com- posing extended works in legal science. Furthermore, in the prosecution of legal in- struction by means of analytical exercises, a great part of the teacher's important intel- lectual work (which consists in preparation for the exercises, as well as in conducting them) survives only in the tradition of the pupils and finds as a rule no literary expres- sion. From this point of view also a certain amount of lecture work, such as is here suggested, would give the law teachers of American university schools somewhat more leisure for literary activity. In general I cannot forbear to remark that the burden of purely pedagogical labor which rests upon American law teachers is extraordinarily great, and that, furthermore, there is not as much division of labor, in this direction, as I should consider necessary. If I am not mistaken, the view stiU very commonly pre- vails in American universities that in reality every law teacher ought to be competent to conduct case method exercises in every part of the common law, and as a matter of fact we find professors who (to cite an example) offer, concurrently or successively, criminal law, contracts, and then again equity pleading and admiralty law. Now, it seems to have been well established from the development of European science that, in the realm of legal science as in other sciences, truly intensive scientific work can as a rule be accomplished only by restricting one's self to definite, more or less connected parts of the entire content of the law. Thus, for example, in the German, Austrian, and Swiss universities, it would be absolutely out of the question for civil and crim- inal law, both, to form the field of work of a legal scholar. Civil law and criminal law on the Continent are sometimes connected with civil procedure and criminal proced- ure, but further than this the field of a single legal scholar is not extended. Public, commercial, and criminal law form completely independent subjects, each sufficient to occupy the entire working life of a single legal scholar, and recently the tendency toward specialization has proceeded much further still, both in Germany and in Austria. A similar development wiU have to take place in the American university law schools, and then the strength of the individual teacher of law, already so strongly IMPROVEMENT OF LEGAL SCHOLARSHIP 51 taxed by the analytic method, may be devoted somewhat more freely to his own lit- erary activity. In connection with the number of the professors and the distribution of work among them, I might perhaps mention here a second fact which is not, as would seem at first sight, of merely superficial importance for the university law schools, and which seems to me, moreover, to react upon instruction. I refer to the relatively smaU num- ber of the professors working in the institutions, on the one side, and the great number of students in the separate classes and exercises, on the other. In the Harvard Law School in particular this circumstance struck me most forcibly. It results, first of all, in the general overburdening of the professors which has been already criti- cized; then, in the necessity for one and the same teacher to teach at the same time relatively distinct portions of the law, as, for example, private law and criminal law. A further serious consequence, however, is the overcrowding of the classes, which has a natural connection with the limited numbers of professors. I have seen classes in Harvard and Columbia which were regularly attended by 100, 120, 150, and perhaps even more students. Under these conditions inevitably only a very small fragment of the students present can actively participate in the exceedingly fruitful and instruc- tive analysis of cases according to the Socratic method. It is obvious that inside of this small fragment, again, there will always be a tendency — simply for the sake of the more rapid progress of the analysis — for certain of the more talented students to be generally called upon and drawn into cooperation by the professor. Now, al- though it is true that those other students — the great majority — who listen silently and make notes, also learn much, nevertheless, a very valuable element of this whole method has undoubtedly been destroyed for them. In fact, the complete effectiveness of the Langdell method, and for that matter of any instruction which involves an exchange of questions between teacher and student, is always conditioned by the re- quirement that oidy a limited number shall take part in the exercises. In the PraJc- tika which are customary in the legal seminars of our German and Austrian univer- sities, the small number of the participants is taken for granted as a part of the sys- tem. It seems to me, therefore, important and urgently desirable that, particularly in the leading schools of Harvard and Columbia, the classes should be farther subdi- vided and the teaching force increased, to the end that the number of direct partici- pants in the analytic instruction may reproduce the originally very favorable condi- tions which surrounded Langdell and his pupils. For one should never overlook this fact: the living influence of the teacher upon the individual hearer who has been questioned or who has entered into the discussion is an irreplaceable element of the entire method. If this is weakened, or if in any way the direct personal contact be- tween teacher and pupils fails, it will be only a matter of time before the success of the whole method of teaching, and of the law schools dominated by it, will be open to discussion. 52 THE CASE METHOD IN AMERICAN LAW SCHOOLS Summarizing the preceding remarks, I may say that the proposition with which I started as to the value of the case method, and the conditions as well as the reasons for its success, has now been fully discussed. The mode of instruction created by Lang- dell has proved itself to be an unrivaled method for training the American law student to independent thought and to the keenest powers of legal reasoning, and for leading him at the same time to the knowledge of what the law really is. It should be strongly emphasized here, however, that it can concern itself only with the knowledge of that law which may be designated as the general common law of America. That is to say, at the university law schools the student becomes acquainted with those principles of the whole common law which are more or less current in all the separate states of the Union. It cannot, of course, be denied that in this process no account can be taken of those not inconsiderable local variations in the law which are due in part to the legislation of individual states, in part to deviations made by the courts in certain fields from the general norm or standard of the common law. Assuredly in this fact, as Professor Albert M. Kales of Chicago has recently pointed out in a keenly reasoned and very forcibly written article,^ there lies a certain disadvantage, which has also been emphasized differently from another side ^ by New York practitioners, for in- stance, who criticize the prominence of Massachusetts law in the case-books used in Harvard and Columbia. We may concede that these imputed disadvantages of the case method exist in some degree, but should be careful not to attach too much importance to them. In a field of law as enormous as that of the Union, with its forty-nine separate jurisdic- tions and its equal number of highest courts, a certain local or — if one may so ex- press one's self without wounding the state pride of the members of the Union — a provincial variation in the separate fields of the common law is unavoidable. No law school, and no method of legal instruction ever devised, could accomplish this : on the one hand, to fulfil unexceptionably its great task of teaching, in a period of three years, the principles of the common law, which have been developing for eight hundred yeai's, and since the Declaration of Independence have been continued independently in each separate state; and on the other hand, to take especial care that every new student, whether he comes from California to Harvard, or from New York to Chicago, shall find the peculiarities of his home state fully treated. To ask this is to ask the impossible. The demand for stronger emphasis of the local law of that state or group of states, in which the individual law school is situated, may doubtless be met to a certain ex- tent by special lectures, exercises, and case-books, through which students who have finished the regular course may pick up the variations in question. It must always be borne in mind, however, that a scientific education in American law can only be an education in the general common law, and it must be said that no science — and the aim since Langdell's time has been to teach the law as a science — can have any other • " The Next Step in the Evolution of the Case Book," paper read before the Association of American Law Schools. 81 Rep. Am. Bar Aas. (1907) 1091-1119; 21 Harv. Law Rev. 92-119. IMPROVEMENT OF LEGAL SCHOLARSHIP 53 aim than the establishment of general principles, ruling the mass of single facts. Cer- tain it is, that local divergences or deviations of special judge-made or of special statutory law do not lend themselves to scientific instruction, and the eloquent plead- ers for the consideration of this "exceptional law" (Sonderrecht) in theoretical legal instruction may be consoled by the fact that such law will sooner or later tend to dis- appear, because of the well-known strong tendency of the American judiciary to main- tain in all important points the legal unity of the common law. TRUE SIGNIFICANCE OF LANGDELL'S INVENTION IN THE DEVELOPMENT OF LEGAL SCIENCE I PASS now to the question of whether we are justified in considering the case method, irrespective of the manner in which, in points of detail, it may be modified or supple- mented, as essentially a scientific method at all, and if so, on what grounds we may so consider it. I have already designated as the most noteworthy attribute of the Ameri- can university law school the fact that it is an educational institution which leads directly into practice, and is thought of as existing only for this end — that it is a "professional school," in other words, in the full sense of this expression. This very quality has, as was remarked above, without doubt been responsible for its great suc- cess. LangdeU's intention, however, went much farther than this. He expressly postu- lated the existence of a science of the common law, and, arguing from this premise, in the first place claimed legal education as a branch of university work, and in the next place ascribed to the analytic method the special characteristic of a thoroughly scienti- fic manner of instruction. When we recall his words, we must perforce recur to this point of view, and appraise finally the case method in its present relation to legal science. The questions involved were phrased above in the following order. We enquired, first, in how far a scientific method of legal instruction really exists here; fui-ther, in howfar legal education in general has been thereby revolutionized; and finally, whether the university law schools of America are justified in suppressing to the extent that they do to-day, text-books and lectures. I think that I have already answered the last question. I have shown that the vigor of American legal science is the result of the deepening which all legal education has received through the analytic method. I have, however, in my positive suggestions also pointed to the necessity of supplementing these analytic exercises, both at the beginning and at the conclusion of the course, by scientific, systematic lectures, and finally I have also referred to the fact that a more extensive growth of scientific legal literature in the United States may be ex- pected with full certainty from the forces now at work, and fortunately so, for the reason that it seems essential to further progress. Therefore I do not hesitate to say again expressly that the unqualified rejection of the lecture from the curriculum of the university law schools, and the extraordinary slighting of literary aids to the study of law, seems an error and a prejudice which has its origin in an undoubted exag- geration of the value of the analytic method in and for itself; and possibly also in an exaggeration of the value in scientific instniction of "method" in general. This exaggeration comes out also in that assertion of American law teachers, so often heard, that the case method, first and alone, made possible the scientific study of the common law; that only through it can the study of law gain the character of science, because in the case method we find the application of the "inductive method" to the study of law, and science can be built up only by induction. This ever- recurring proposition of the identity of the inductive method and the case method TRUE SIGNIFICANCE OF LANGDELL'S INVENTION 55 betrays clearly the misunderstanding which here exists. In the first place it is not correct to say that science, or even physical science alone, avails itself only of the inductive method, that is to say, of inference from the particular to the general. In the construction of every science, and especially of the exact sciences, deduction plays as large a part as induction ; no one has expounded this more clearly than John Stuart Mill in the second volume of his Logic. Prominent though experimental and in- ductive methods are in the sciences which serve physical research, we press a gener- alization much too far when we make of the inductive method the sole criterion of scientific intellectual activity. But even apart from aU this, the analogy between legal science and physical science so frequently drawn by modern American lawyers in their discussions of method is, in everything that concerns nature and method, itself inaccu- rate.* In so far as modem "comparative" leged science investigates the law as an histori- cal manifestation of social life, and therefore as a natural, because a social, phenome- non, it may indeed be permissible to speak of " induction," for in the method of thought that is here applied to the law we strive, after observation of separate historical and statistical facts, to pass beyond the concrete manifestations and operations of legal in- stitutions to a study of the sequence, and of the simultaneous appearance among dif- ferent peoples, of these manifestations of popular life, and so, finally, establish certain "laws" (Gesetze) which govern the development of "Law" (Recht). If this were what is meant by legal science, then legal science might by all means claim to be proceeding by the inductive method, and therefore following in its methods the same path as phys- ical science. The end aimed at, however, in these modem sociological, legal-historical, and cultural investigations — useful and important as these certainly are — is not at all legal science in the sense in which this expression has been used for centuries, — in the only sense in which legal science or legal education is understood, when Langdell and his followers indicate the case method as its most important instrument. Rather, legal science, according to the traditional and established view, shared also by Langdell and his followers, is to be understood as the science of positive law, which is always to be cultivated through the study of the sources of law; in the case I ^ The same may be said of the comparison* so frequently made, between the law library with its thousands of vol- umes of reports and the laboratory of the chemist or the research institute of the physiologrist; as also of the propo- sition advanced by Keener, "that law, like other applied sciences, sj^ould be studied in its application." Such com- parisons can signify at bottom nothing: more than that the exact knowledge of the original material with which they work is common to all sciences ; but the knowledge to which this study tries to attain is quite different in phys- ical sciences, on the one side, and in the science of positive law, on the other. The latter is not an applied science in the sense that chemistry, for instance, is; for the rule of law, the norm, whether the law is codii^ed or not, is not found first through the "application," that is, through the individual law case of the court, — in the way in which a physical law is found through an experiment,— but it is present from the very first as an abstract norm — in the common law mostly in the precedents; its application in the individual case serves only to analyze its content of thought. This content of every legal norm is, however, inexhaustible and must be analyzed again and again, for the reason that every norm comes into contact with a continually changing state of facts whose potentialities no law can express, no judicial decision can provide for once for all, nor anticipate by a general legal rule. The "finding" of the law by the judge is, therefore, confined, from the very first, within the narrow circle of the single or of the several legal principles which alone can be involved in the particular case. The student who then studies the "ap- plication" of the law in the particular cases does not stand in the same relation to these as does the physical sci- entist in relation to natural phenomena. These latter are the result of forces of nature that are to be investigated. Judicial decisions, on the other hand, are special acts of the will, which have been reached by a process of logical interpretation ftom a more general declaration of the will, contained in each positive legal principle. 56 THE CASE METHOD IN AMERICAN LAW SCHOOLS of the common law, therefore, through the study of the decisions of English and American courts of law. Legal science, in the traditional sense of the word, is scien- tific knowledge of the positive law, and as such is one of the so-called intellectual sciences (Geisteswissenschaften); or, to use another expression current in German, it is conceived of as a normative science (Normwissenschaft) in contrast to all sciences which rest upon observation, experience, and investigation of natural phenomena, and have to make clear and to explain the general laws governing life and matter. For the positive law rests entirely upon "norms," that is to say, upon commands or prohibitions, denoting something which "ought to be" rather than something that "is." Every single decision of a court of law contains nothing else than the regulation of a legal relationship, a regulation which, for the single case, gives actual expres- sion to this something which ought to be. In essence, legal science can, therefore, only consist in comprehending all these commands and prohibitions, these norms, in the inner historical and logical relation which they bear to one another. In the immense confusion of individual legal relationships it can have no other purpose than to create order; first by distinguishing the great branches of the law as a whole; then, within these branches, by bringing into clear relief the leading institutions, forms, and doc- trines of the law, as they have been developing for centuries ; and finally by arranging again the general concepts thus obtained into a system, as logically coherent as possi- ble, that shall express the fundamental ideas of the national law. The science of law does not work, then, with physical facts, but with the products of the human will, which has been directed to the ordering and guidance of the individual and social life of humanity. This holds good for a science of the English common law just as much as for that of the Roman law or of the law of a modem, code-ruled nation. The notion that the separate cases, in which the common law always expresses itself, are somewhat like the separate observations or experiments of the physical investigator, and that just as the physical investigator by means of the inductive method derives the generally valid law of nature out of the separate phenomena of life, so also the lawyer, on his side, out of the separate law cases extracts the general rule, the law, — this view I consider an erroneous and merely superficial analogy. For legal science cannot deal with law in the sense of the physical investigator, but only with law in the sense of definite norms, willed by men, and intended to guide and limit the business of men. Even in the unwi-itten customary or judge-made law of England and America, these general norms have long existed, developing richly and in manifold ways out of primitive germs and rudiments, and bound together into a whole which, even if still incompletely developed itself, tends none the less to be logical and systematic. The judge who, in the individual case, decides according to the common law, applies, con- sciously or unconsciously, to the state of facts then before him, one of these already existing norms, or several of these norms in logical connection, and pronounces, as the result of his intellectual process of thought embodied in the judgment, only the TRUE SIGNIFICANCE OF LANGDELL'S INVENTION 57 rule or norm applicable to the specific case. His intellectual activity in this is, there- fore, essentially deductive; for by deduction we mean the application of an already existing general rule to the particular case. The fact that these norms of the common law are not codified, that they have not been set up in their entirety as fixed law, that is to say, by a single act of the lawgiver, does not alter the fact that they exist, and that from the very beginning they dominate all legal life, both the parties who seek the law and the judge who declares it. The illusion that all existing legal de- cisions should be regarded in the same light as physical facts, as a sum total of sep- arate phenomena, from which the judge and the legal scholar, in the same way as the physical investigator, have to extract by induction the principle, the "law," — this illusion is produced by the fact that the common law judge in framing his decisions enjoys the freedom (in practice greatly limited by the principle of stare decisis) of formulating to some extent anew in each case the norm which is to be applied to it. Out of the entire body of law,-published in the form of an enormous mass of prior decisions, he finds the norm, as it were. The principle, however, that resides in the norm, and that finds expression also in the particular decision, has always existed a priori, and its application in the particular case is an instance of logical deduc- tion from that principle. Even when the common law judge in a particular case enun- ciates, because of the nature of this case, an apparently entirely new principle, — wipes out existing norms, that is to say, and puts in their place a new rule, — even in this case, more careful enquiry will show that this decision, which apparently states new law, is really logically connected at the core with some other fixed point of the legal system, with 3ome already existing legal principle. It not only is thus connected. It must be thus connected. It could not otherwise exist. So that even in this case knowledge of the law follows in the end a deductive, not an inductive, path. Not in induction, then, as Langdell and his successors would have us believe, is the scientific character of the case method to be found. It lies rather in the logical and systematic development of all fundamental norms of the common law out of the origi- nal sources of this law, namely, out of the decisions of the courts. The innovation of Langdell and his followers, so fruitful and so important for legal education, consists herein: that they do not present these norms and doctrines in the manner of the older method of teaching, as completed abstractions having behind them, in the absence of a codification of Anglo-American law, only the authority of the text-book or the lecturer; but that the modem American law teachers teach these norms and doctrines of the common law in their practical form, as it daily arises in the courts of justice, and thus oblige the students to obtain a first-hand knowledge of positive law out of its actual application. Not induction but empiricism is in my opinion the characteristic feature of this method of instruction. This notion of teaching law empirically, however, is of course no discovery of Lang- dell's. With due recognition of the great sei-vice performed by Langdell and his fel- low workers in the revival of American legal education, it must be maintained that 58 THE CASE METHOD IN AMERICAN LAW SCHOOLS the so-called case method is really nothing more than a form of the long existing em- pirical method of studying and teaching positive law; a form better adapted to mod- ern resources for the study of the common law. From time immemorial the common law has been taught empirically in England, and will be so taught so long as there is a tradition of ordered legal life. For it was empirical instruction and nothing else that the young law apprentices since the thirteenth century sought and received in the Inns of Court, in the hostels or assembly places of the lavpyers' guilds; and even to-day, as the institution of "reading in chambers" indicates, instruction in the com- mon law of England may be termed almost exclusively empirical.^ This kind of purely practical instruction in the positive law of England is very closely related to, is indeed almost identical with, that kind of practical lawyers' training which even to-day consti- tutes the entire preparation of a very large number of American attorneys and future judges. I mean all those who, after passing through the public elementary or high school, enter as clerks into an attorney's office, and are engaged for the requisite num- ber of years in the practical business of law. In this connection it matters littlp whether these candidates for the bar, who are thus trained directly by the lawyers' office, ac- quire in addition a certain amount of knowledge in one of many night law schools, or whether they interrupt their office activity for a year and attend a day law school, for in any case the purely practical technical information and training gained in the law office is the real foundation for the later examination and so for admission to the bar. Now, the great and inestimable advance which Langdell and his pupils have brought about consists, in the first place, in the fact that they substituted for this more or less unorganized and crude empirical training a genuine theoretical instruction in the com- mon law covering three fiill years (a period quite suitable for the purpose in view). In the second place, understanding the true nature of the common law, they have based this instruction not, like the text-book schools, upon the memorizing of text-books or lectures and of the abstract propositions contained therein, but upon the study of the true sources of the common law itself, upon the decisions of the law courts. We may regard the epoch of the absolute supremacy of the text-book school merely as a digression from the ancient Anglo-Saxon tradition of purely practical training in the attorney's calling and say that, in this respect, the advocates of the new system returned to the traditional method of instruction in the common law, namely to its empirical study. But, of course, in so doing they introduced in place of more or less unorganized and unsystematic "reading in chambers" or in the office, the success of which was often determined by accident, a well-planned, exhaustive course of instruc- tion by specialists, by professors of the law, who out of the law cases taught both the historical development of common law doctrines and their logical expansion. Thus • The efforts of the Innsof Court to impart to the candidates for the bar, enrolled as students of law, a regular theo- retical education by the establishment of courses of study and lectures, have changed the centuries old, purely prac- tical education of lawyers in England just as little as has the organization of a course of study leading to a doctor's degree in law at the Universities of Cambridge and Oxford. This latter has virtually nothing to do with the common law and preparation for the bar. It concerns itself, rather, with the study of general legal science, of general juris- prudence, not with a methodical study of the common law. TRUE SIGNIFICANCE OF LANGDELL'S INVENTION 59 they were able to inculcate, at one and the same time, both knowledge of the posi- tive law and also that peculiar mode of thought by means of which a, lawyer, when given the state of facts existing in a particular case, is able, alone and unaided, to find the rule of law applicable to that case; out of the principles and norms, which in their entirety go to make up the common law, to pick out those which regulate that par- ticular human relationship. The really new thing, therefore, in Langdell's contribu- tion is the transformation of the old empirical method of teaching into a new em- pirical method; and the actual ingenious "discovery" that he made in this connection, and which his pupils later perfected, is at bottom only the modern case-book, through which it has become possible to put directly into the hand of the student those cases from out of the sources of the common law which are most important for the know- ledge of its doctrines and for the study of law in general. While still in school the student is thus trained to use intelligently the whole mass of existing Reports, and becomes able immediately, or after a short initiation into office routine, to undertake successfully the work of a practising attorney. In spite, therefore, of the fact that this purely practical aim has been the ruling purpose in the development of all American law schools, — of schools connected with the university equally with those not so connected, — Langdell and his followers are none the less entirely justified in describing their method of legal instruction as truly scientific. The case method schools are thus distinguished from almost all other Ameri- can law schools, for while these latter dole out a certain amount of legal information on the plane of secondary instruction. Harvard and Columbia, and the more or lesscom- parable sister institutions in the fiiUy developed American universities, strive zealously for an intellectual mastery of the entire content of the law, through independent effort of the students; make their students seize the law itself, in its logical and historical setting, directly out of the sources. Not on the ground that it is an inductive method, but on the ground that it is that method of instruction which is entirely suited to the established character of the common law, to independent intellectual assimilation of positive law from its sources, and to the highest development of the ability to think logically and systematically — on these grounds the case method must indeed be rec- ognized as the scientific method of investigation and instruction in the common law.* * I must not neglect to note here the excellent and clear distinctions established by James Bradley Thayer, the great American legal scholar, in his discussion of the case method and legal instruction in general. In the preface to his case-book on Constitutional Law, he says : "Of teaching there has never been at this school any prescribed method. There never can be, in any place where the best work is sought for. Every teacher, as I have said elsewhere, 'in law, as in other things, has his own methods, determined by his ovm gifts or lack of gifts, — methods as incom- municable as his temperament, his looks, or his manners.* But as to modes of study, a very different matter. Dean Langdell's associates have all come to agree with him, where they have ever differed, in thinking, so far at least as our system of law is concerned, that there is no method of preparatory study so good as the one with which his name is so honorably connected, — that of studying cases, carefully chosen and arranged so as to present the development of principles. Doubtless, the mode of study must greatly affect the mode of teaching; if students are to prepare them- selves by studying cases, their teachers also must study them. And, moreover, while good teaching will differ widely in its methods, there is at least one thing in which all good teaching will be alike: no teaching is good which does not rouse and *deplilegmatize' the students, — to borrow an expression attributed to Novalis, — which does not en- gage as its allies their awakened, sympathetic, and cooperating faculties. As helping to that, as tending to secure for an instructor this chief element of success, I do not think that there is, or can be, any me1:hod of study which is comparable with the one in question." Cases on Constitutional Law" Cambridge, 1896, p. vi. IMPORTANCE OF THE AMERICAN UNIVERSITY LAW SCHOOL FOR THE FUTURE SCIENTIFIC DEVELOPMENT OF THE COMMON LAW The present condition of the English common law may be well illustrated by that of the Roman law during its first formative period, when, although already influenced (as we now know) in many parts of its development by foreign elements, it was still the thoroughly national law of Rome, for both the people and the lawyers. This clas- sical Roman law was thorough case law; always connected, that is to say, with law practice, with particular cases, or with the clauses of the praetorian edict. "If we com- pare," says one of the most learned and keenest of German experts in Roman law, Professor Lenel, "the remains of Roman legal writings with modem legal literature, we notice first of all that the ancients do not by a long way carry abstraction, the reduction of particular phenomena to general concepts and of legal propositions to general principles, so far as we do. In a hundred places they discuss separate ques- tions which have to do with the invalidity of legal action ; but they have no general concept and no general theory either of the void or of the voidable. They give us a detailed account of the conclusion of certain obligatory contracts — but the concept of contract, and still more, of course, the concept of legal transaction {Rechtsge- schaft), remained unknown to them. They speak of error on the most varied occa- sions — of error in general we find only a couple of arid commonplaces." TTie undying service of the Romans lies, as Lenel says, not in what they accomplished for the knowledge of Roman law, but in the fact that they created Roman law, or at least that part of it that has lasting value. The great men among them were not theorists but ingenious practitioners, and to them we owe the art of legal technique : the art of utilizing the legal mechanism already at hand to satisfy the newly arising need; the art of building upward and outward from the firm foundation of the law; the art of discerning, in every relationship of life, those sides which the law must regard, if it is not to crystallize into unreasonable rigidity. The science of the Romans remains, therefore, essentially casuistic; even their commentaries and systems are casuistic. But it is not that hair-splitting, scholastic casuistry that takes pleasure in solving the most strange and paradoxical combinations, but a living, practical casuistry which strives only to embrace and to rule the wealth and the variety of actual life."^ And corresponding to this fluid condition of classical Roman law, we find also cas- uistic characteristics in its methods of instruction. Legal education, at the time of the great jurists, was based not only upon lectures, but often also upon oral debates and disputations between teachers and pupils upon particular law cases and legal opinions. Up to a certain point, in short, the well-defined parallel which can be traced in many respects between the two world systems of law — the Roman law and the 'Cf. Lenel in HoltzendorfTs Encyklopddie der Bechtsimssenschaft, ed. 1904, vol. i, pp. 128-lSl. IMPORTANCE OF AMERICAN UNIVERSITY LAW SCHOOL 61 English common law — obtains also for the methods of legal science and legal in- struction. At this point, however, the parallel — since it covers only the stage already reached in the development of the common law — ceases. For while the Roman law has been extremely fruitful, and during a period of almost a thousand years has been recon- structed into a mighty scientific and comprehensive system, and into a unity of liv- ing law; on the other hand the common law of England and America until the pres- ent moment has not passed out of its historically developed casuistical condition. Not merely were the creators of the common law, like those of the Roman law, above all things practitioners, and as such expert in legal technique, but even to-day the sub- stance of the sources of the common law is what the great judges of England in the eighteenth and nineteenth centuries, and those of America since the formation of the Union, have contributed in legal sagacity and legal productiveness. In the opinions delivered by these men we hear solemnly pronounced the fundamental thoughts and principles of the common law developed by the Anglo-Saxon race — those thoughts and principles which are continually at work as creative forces of practical legal life. This powerful intellectual contribution of the practitioners, however, recorded in a literally overwhelming mass of English and American reports, has not been ac- companied by a corresponding development of legal science. When Professor Roscoe Pound lamented recently, as one of the great defects of the common law, the lack of a genuine legal system,^ it must be said that this phenomenon is primarily due to the fact that, up to the present, legal science has not kept pace with the remarkable wealth of the common law in legal substance, in legal forms and fictions, in almost inexhaustible legal ideas and legal remedies. Now it is a fact that the Roman law, too, so long as it was the law of the Roman people, that is to say, in its unparalleled abundance and intellectual vigor, of which the Corpus Juris has by lucky chance kept so much for us, did not produce any legal science in the sense of a systematic reduction of the entire content of the law. After the settlement of the law by Justinian, the formation of a complete legal science out of the Roman legal material was brought about, not by the Romans themselves, but by other peoples, and of course under quite different conditions of life and civilization from those of imperial Rome. It was through the enormous intellectual labor of Ital- ian, French, and German scholars, and under the constant influence of the practical needs of those countries in which it was received, that the Roman law first became moulded into the incomparable system upon which the whole modern jurisprudence of the European continent now rests.^ " Roscoe Pound, "Tauffht Law," paper read before the Association of American Law Schools. 37 Rep. Am. Bar Asa. (1912) 975 et sea. ' It is interesting to trace the varying methods of instruction employed during this long period of development. After the time of the great jurists, the decline in the productive legal power of the Romans was accompanied by a more formal instruction, a process which finally reached its almost absurd expression in the "citation laws" of the fifth century emperors. When, then, Justinian, out of the great abundance of the law of the Roman people, had the Corpus Juris composed and published as statute, legal instruction also came under the control of the state, and at once (as has almost always been the fate of the generation of law teachers immediately following a modern codification) 62 THE CASE METHOD IN AMERICAN LAW SCHOOLS To set down the reasons why England did not develop such a science would lead much farther than is permissible here. Assuredly, however, one of the principal causes is the unassailable position maintained by the ancient legal guilds of London at the centre of legal life, and their exclusive control of the training of future lawyers. Legal education thus became permanently and completely isolated inside of purely practical legal life; the universities of England — and thus the great currents of sci- entific development of the modem intellect — remained cut off from any direct or powerful influence upon the common law and the traditional English legal instruc- tion. In the nineteenth century, to be sure, a free, unacademic thinker, whose fame is now a century old, Jeremy Bentham, had, as a theorist, an extraordinarily strong influence upon the development of English law. But the building up of a system out of the historical legal material of the common law could not and never can be the work of a single man. Such a building up can be accomplished only by a generation — say rather by several generations — of legal scholars, as occurred in the case of the Roman law in Italy, France, and finally in Germany. And although the English uni- versities, thanks to the life work of several creative legal scholars, have accomplished during the last decades — above all in the domain of legal history — a great deal, still the unchanged ascendancy of England's purely practical, so to speak, "craft guild" system of legal instruction hinders, now as always, any movement to an-ange the common law, in gi"oss and in detail, into a system; into something which might serve both as basis of a legal science of the common law and also as foundation for a sys- tematic reform of the current law. Here, then, is the point which I am really trying to make. In sharp distinction from England there has been developed in America during the nineteenth century a genuine legal education, which, unlike the condition in the English mother coun- try, has from the beginning cultivated the common law as a coherent whole, as a branch of the great tree of all the intellectual sciences, in special educational insti- tutions.^ These institutions, in spite of their eminently practical aim of training di- became bound to the letter of the written law and thus deprived of its creative power. If we follow now the later history of the Roman law and of instruction in it, we find that in the great epochs into which its history falls,— the epochs of the Glossarists, of the Italian, French, and German law scholars in the period of humanism and the renas- cence of classical studies, and final ly the epoch of the great scientific renascence of the Roman law through the Ger- man legal science of the nineteenth century,— that in all these epochs scientific advance in the law, as well as its practical development in the courts, goes hand in hand with a return in investigation and instruction to the origi- nal legal sources ; coincides with a more intensive and deeper research into the original material of the Roman law contained in the Corpus Juris, and above all into the opinions and decisions of the great jurists of classical Rome contained in the Digests. And in the same way we see how, in all these epochs of advancing legal science, legal instruction in Roman law is transformed ft-om the method of mere memorizing of the content of the law and of schematic assimilation of the doctrines, definitions, and norms, into a method of living grasp of the law as it appears in its practical casuistic application, under active cooperation of teacher and pupils. '■ Thayer, in his paper read before the Bar Association's Section of Legal Education, " The Teaching of English Law at the Universities," 18 Bep. Am. Bar Ass. (1895) 409; 9 Barv. Law Bev. 169; Legal Essays, Boston, 1908, p. 367, has very well shown that the idea of organizing special law faculties as constituent parts of the universities has been carried out only in America, up to the present time, but that the first impulse toward it came ft-om England and that from no less significant a person than Blackstone. This great master of English legal literature began his lec- tures in 1758 in Oxford, and after Viner's death became the first professor of the common law at an English uni- versity; in 1765 he published the first volume of his famous Commentaries and hoped to put into effect his plan of the establishment of a College of Law in Oxford; however, in 1766 he gave up this plan and abandoned his profes- sorship. The impression of his work on the lawyers in the colonies was originally deeper even than in the mother IMPORTANCE OF AMERICAN UNIVERSITY LAW SCHOOL 63 rectly for the attorney's calling, have had, nevertheless, from the beginning the avowed characteristic of institutions for theoretical teaching. The reform of Langdell — as simple as it is far reaching — now places the best of these institutions upon a truly scientific foundation ; and this reform creates at the same time a second : it develops a new theoretical calling, that of the non-practising law teachers of America. By this means, for the first time in a common law jurisdiction, the study of this.law has become a career, an independent profession.* In this way, through the law schools of the American universities, there has been brought about that condition which I in- dicated above as indispensable to the construction of a system of the common law : the existence of genuine schools of law, in the institutional as well as in the purely intellectual sense of this word. In the United States the second generation of lawyers is already at work. Many of the best intellectual powers of the country are engaged in the historic and dogmatic working over of the common law; teachers and learners cover all branches of the law in its daily manifestations in the courts, and a literature highly noteworthy in quantity and quality has come into being. The merely indus- trious commentator, the compiler of useful works of reference for busy lawyers and judges, in short, the technical day laborer of various kinds, no longer monopolizes the field of common law literature. What is more, he is gradually disappearing. With the passing of old forms and methods of legal instruction in those institutions to which the best prepared young men resort, the old manner of teaching, which tried through cheap generalizations and shallow schematization to furnish the students with legal equipment for the most immediate practical use, is on the decline; its place is being taken by a laborious linking and logical dogmatic probing of the substance of the law. With this there has been awakened in the law schools of the American uni- versities a really scientific spirit, — a spirit which not only supplies to pupils aiming solely at practical legal life a real knowledge of the law, but out of these very pupils produces ever new forces eager and qualified to continue this scientific treatment of the law. Herewith, I believe, however, that the two great problems are revealed whose solu- tion devolves upon American jurisprudence : the creation of a scientific system of the common law, and a reform of the current law in the direction of that movement which is becoming more and more pronounced among the people of the United States in favor of a simplification, a greater efficiency and improvement, of substantive law as well as of civil and criminal procedure. Such a reform will, of course, not be produced by statutory decree alone. In my opinion this goal can be reached only through long and fruitful labor on the part of all elements of American legal life, the judges, the attorneys, the university law schools, and the legal scholars of the country. A broad- eountry ; twenty-flve hundred copies of his worlc were sold in America by 1776. To this influence was due the found- ing of chairs of common law in America for the first time at William and Mary College (Virginia) and (abortively) at Harvard in 1779. However great Blackstone's literary influence in England was, chairs of common law in Oxford and Cambridge were established only in the second half of the nineteenth century. • Cf. Ames, "The Vocation of the Law Professor," in Lectures on Legal History, Cambridgqi 1913, pages 3B4 et sea- 64 THE CASE METHOD IN AMERICAN LAW SCHOOLS ening, a deepening, and a developing of modern legal instruction upon the magnifi- cent foundations created by Langdell ; the thereby increased intellectual powers of the practical legal profession ; the unmistakably successful efforts that are also proceed- ing from the bar in the direction of higher ethical standards ; the creation of a lit- erature that is scientific while yet resting throughout upon the living judge-made law; — all these factors, already firmly rooted in American soil, will produce a scien- tific system of the common law and ultimately, as the slowly ripening fruit of this last, a reform in the law also. Scientific instruction in the universities ; development of a scientific literature of high rank ; intellectual and ethical advancement among lawyers and judges, who, under these influences, wiU be better qualified than before to reform the common law "from the inside," in the traditional manner of a law that has been made by lawyers; this appears to me the goal of American legal life to-day, — a goal that is placed very high, and that can therefore only with difficulty be attained, but that is none the less completely attainable. I know very well the objections that are often advanced against such a task and such a future for American legal science, by many of its best supporters. The grounds for this scepticism must certainly be very seriously examined, especially when set forth by a man like Professor Roscoe Pound, whose legal talents and erudition assure to him, not only in America, but in Europe also, a place among the first scholars of our time. With masterly brevity Pound paints the present condition of American law in the fol- lowing words: " Long and thoroughly as we have studied the common law, we have no system of the common law as a whole at a time when a system of law as a whole, including both the imperative and the traditional elements, is coming to be much needed. Our law is cut and cross cut in three directions by three great lines of cleavage — common law and legislation, law and equity, real property and personal property. In consequence nearly every question involves two and often three modes of approach. Nearly every rule has to be learned over again in two other ways, or is subject to the qualification that it is thus if one sort of relief is sought and other- wise if another procedure is open, or thus if one sort of property is involved and otherwise if another. All kinds of combinations of these three are possible, and singly or in combinations they give rise toagi-eat variety of arbitrary rulesand dis- tinctions. Thus, in contracts (regarded as a matter for proceeding at law) we have rules as to conditions based on fundamental ideas of justice, which, when one pro- ceeds in equity and so has to do with essentially the same questions from a histori- cally wholly different standpoint, are replaced by rules as to risk of loss, proceed- ing upon theories of equitable ownership, or of mutuality based upon notions of fairness in awarding extraordinary relief In sales of personalty, we have doctrines now become legal which give results that in case of sales of land do not apply at law and may be reached only circuitously in equity. And yet the line here is by no means clear and plain. Judicial absorptions of equity into law and piece- meal statutory changes have made the line exceedingly irregular and at places difficult to draw with precision. . . . These lines of cleavage are purely historical in origin and subserve no useful purpose. On the other hand, they lead to diffi- IMPORTANCE OF AMERICAN UNIVERSITY LAW SCHOOL 65 culties of procedure and to technicalities of substantive law which impede the administration of justice by causing uncertainty, injure respect for law by mak- ing it appear arbitrary and irrational, and hinder the progress of the law by compelling teacher and student to busy themselves in learning the details of logi- cally arbitrary rules." ^ No clearer exposition can be imagined than this of Professor Pound as to the diffi- culties which, because of the historically determined conditions of the common' law, to-day confront legal instruction, legal science, and legal reform in America. Where the evil is so clearly recognized, however, the way to reform seems to have been opened up ; how great is the advance which this recognition alone signifies, every one acquainted with the customary attitude in England and America toward the common law and its scientific treatment will realize. If men like Roscoe Pound and John Wigmore are the very ones upon whom we pin our faith that modern American jurisprudence will be able to solve step by step the mighty problems confronting American legal life, then I may recall here the suggestions which I made above. These had as a cardinal feature the addition of an obligatory fourth year of law study at the universities and, in intimate connection with this, the organization of lecture courses and exercises of a strictly theoretical and comparative nature, serving as conclusion to the case method study of American law. What has qualified Pound and Wigmore for their deservedly valued and admirable achievements as legal writers and teachers is — apart, of course, from the personal talent of each — precisely that comprehensive outlook with which the deep understanding of the Roman law and of the modern codes of continental Europe, as well as their broad command of legal philosophy, has endowed them. The deep understanding of the modern social function of law, moreover, which showsplainly in the writings of both these leading representatives of American jurisprudence, frees them from the easily satisfied traditionalism of the English or American common law lawyers; qualifies them to do creative work as law teachers in the true sense of the word, and to gain an influence over the practical reform of the law. It seems to me, accordingly, that if the American university law schools should adopt the policy of extending the course, and above aU of deepening it on the side of strictly theoretical legal science and comparative law, so as to try to reveal to the younger generation in the law schools the true problems of the common law and of modem legal development in general, this policy would be in line with that of these typical men, and may be expected, despite all scepticism, to inaugurate a new era in the de- velopment of Anglo-American law and of its science. Then also, as Professor Pound so thoughtfully explains in the treatise already refeiTed to,^ the " socialization of legal training" for which he hopes will be made possible; then one may feel confident that the capacity which the common law has exhibited through so many centuries,' of flex- ibly adapting itself to the needs and the economic life of the people, will again be dis- 1 "Taught Law," paper read before the Association of American Law Schools. 37 Bep, Am. Bar Ass. (1912) 983, 984. ' 37 Rep. Am. Bar Ass. (1912) 989 et sea. 66 THE CASE METHOD IN AMERICAN LAW SCHOOLS played, and that the law will prove equal to its next great task, inexorably imposed upon it by the modern organization of a completely industrialized democracy; and then the new legal science will be the fructifying source from which the common law will draw this very power for regeneration and renewal. LEGAL INSTRUCTION OUTSIDE OF UNIVERSITIES IN THE UNITED STATES AND GERMANY This brings to a close what I have to say concerning the case-teaching system. A few remarks, however, seem to me still necessary in order to prevent a very possible mis- understanding. The conclusions I have drawn concerning legal education in America, and what I have said about the outlook which, in my opinion, is indicated as the result of the method and form of legal educatiqn developed in the last generation, applies entirely to those law schools with which I have been principally concerned ; namely, to the law faculties of the fully developed universities of America. It would be an error to assume that I intended by this to say that in the future only these law schools will be called into service in the United States. So far as I myself can judge, there is not going to be any important break within any period of time that we can now fore- see in the American tradition that, independent of systematized legal instruction, the legal profession is open to any citizen exclusively on the basis of a bar examination, for which he may procure the necessary knowledge in his own way. This view is too deeply entwined with the roots of American democracy and of the entire organiza- tion of American legal and business life, and too deeply involved with the traditional status of the lawyer in the economic life of the Union, to be sacrificed by the people to any more or less theoretical, even if obvious, considerations of educational policy. This is equivalent to saying that the many still existing day and night law schools , which offer various abbreviated law courses in preparation for the bar examination wiU continue to exist for a long time, if not indefinitely. In my opinion, however, the condition that is thereby created is not in the least an obstacle to the further invigora- tion and expansion that I have pictured in scientific legal instruction at the univer- sities. Nor do I think that this condition is a specifically American evil, nor, when considered from the point of view of the interests of the whole American people, an evil at aU. This difFer^tiation of legal instruction in America, which has long existed, and which in consequence of the stronger development of the scientifically conducted uni- versity schools will undoubtedly become even more marked, does not by any means stand alone among contemporary systems of legal education. A comparison with the present condition of the law faculties and of their teaching activity in the great states of Europe shows this at once. It is of course impossible for me to go into this matter further than to touch upon the present condition of law study in the German Empire or Austria. But some few observations upon this point seem to me necessary for the purpose of a correct judgment as to American conditions. Legal education in the German and Austrian law faculties is distinguished from that in American university law schools primarily by a fundamental dissimilarity in the entire conception of the nature of a university. There is no "instruction," such as is practised in American law schools, in a single one of our legal faculties. Ger- 68 THE CASE METHOD IN AMERICAN LAW SCHOOLS man and Austrian professors in the law faculties do not instruct at all, in the Amer- ican sense of this word. They deliver lectures, in general and special lecture courses, but the students are theoretically free as to the choice of the courses which they wish to attend, and also completely free as to whether and how often they wish to appear in the lecture halls.-' Here there is no catalogue of students as in the American law schools ; the professor knows but a few, perhaps none, of his students personally ; only in the seminars and practical exercises held by certain professors does a personal con- tact exist between professors and students. In these seminars and exercises those stu- dents who regularly attend are assigned certain tasks, consisting for the most part merely in the preparation and delivery of single lectures upon some problem or other of legal science. But only a very slight percentage of the entire number of law stu- dents — those students who are particularly industrious or who are particularly inter- ested and enthusiastic in regard to legal science — attend these seminars. For the law student body in general we still have the old principle which, though it has undergone extensive changes in the study of philology and history, and especially in the practical sciences such as physics and medicine, still dominates the character of the entire Ger- man university — the principle of complete freedom in choosing and attending lec- tures.^ Freedom for the student to do and to leave undone what he pleases, to study or not to study, and in studying to find so far as possible his own way. Freedom for the professor: the German university professor of legal science delivers his lectures, con- ducts his exercises, will gladly accord advice and assistance to any student who asks for it, but as for methodical instruction, in the manner of American law schools, he simply does not give it, nor is such a thing ever expected. This would contradict the entire tra- ditional nature of the German universities. Just as, until graduation from the Gymna- skim, not the slightest academic freedom exists for the pupil and hardly any even for the teacher (everything here being established and regulated by official ordinance), so, on the other hand, the most complete freedom for both sides is the inviolable prin- ciple of university life. Our law faculties exist above all things for the cultivation of legal science. The results and existing state of this science, in all divisions of the law, are placed at the students' disposal in the shape of carefully worked out lectures, but how much profit the individual student can and will get out of this is his affair. Instruction arranged according to classes, and continuous questioning on what has been learned, exist no more than do annual examinations. The lecture courses en- deavor to present exhaustively the content of their particular fields of law, and rest everywhere, in the first instance, upon the statute-books, the codes, illustrated here and there, to some slight extent, by the decisions of the highest courts. After complet- ing the curriculum prescribed by the state in Prussia or Saxony or Bavaria, for exam- ^ In Austria, however, the curriculum is closely prescribed, and the first state examination, to be passed after the third or fourth semester, is upon legal history, which is thus separated from the later work in current law and political science, ^ Concerning the university instruction and especially the value of the lecture course as the prevailing means of instruction, cf. F. Paulsen, Die deutschen Universitdten und das Universitdtsstudium, Berlin, 1902, pp. 2S6-S36, 363- 379, 892 et seg. \ LEGAL INSTRUCTION OUTSIDE OF UNIVERSITIES 69 pie, every law student takes his Referendar examination, held by the state with the cooperation of the faculty, on the basis of which he is admitted to practical work in the court and later to a law office or to an administrative position. The university offers him the opportunity, also, to prove his scientific knowledge by passing the doc- tor's examination — in connection with which a dissertation must usually be written as well — and in this way to attain a doctor's degree. This, however, has nothing to do with legal practice. Always the Grerman lawyer has to spend several years in unpaid work in a court or in an administrative position, and, on the basis of this three or four years' practice, he has then to pass a second examination conducted by the state and called in Prussia the Assessor examination. Only on the strength of this can he practise as an attorney, or receive a permanent appointment to an administrative or judicial office. The striking difference between this system of legal study, which offers no instruc- tion, and the modern American law school method of training in the common law, is very clear. On the one side, complete independence on the part of the students and complete indifference on the part of the professors in respect to the question of whether the students actually study law or not. On the other side, the obligation of studying law directly from the cases for three years, under the strict supervision of the pro- fessors, who even keep track of class attendance personally ; a method which makes the greatest demands both upon the independent thought and industry of the stu- dents and upon the resources of their teachers, who must be constantly prepared, in the lecture hours and out of them, by guiding, by asking questions, and by answer- ing questions according to the Socratic method, to train the students into lawyers. But furthermore, in order to draw the picture accurately on each side, on the German and on the American, a pendant must be added. In Germany and Austria we have our seminars in which professors of law, many of whom enjoy a European reputation, cultivate real legal science with a small group usually of the older or graduate stu- dents; out of this aristocracy of talent, very small in relation to the entire number of law students, is recruited the magnificent rising generation of German legal schol- ai"s, and also the best, the really scientifically trained, governmental employees and judges. On the American side, on the contrary, there stands beside the dazzling pic- ture of the modem university law school with its characteristic devotion and tireless activity on the part both of teeichers and students, the picture of the many law schools and law courses in which "legal knowledge" is inculcated like stenography, or book- keeping, or any other useful art; in which pupils with little previous education are taught by methods that rarely rise above the level of secondary instruction, by reci- tations from a memorized text-book, assisted by cheap quiz-books or other super- ficial aids and more or less illuminating lectures. The pupils of these institutions represent often, although not invariably, a definite social interest in legal education, for those who attend these schools are, for the most part, young people who are earning their living as clerks in law offices, and are try- 70 THE CASE METHOD IN AMERICAN LAW SCHOOLS ing to gain the qualifications for passing the bar examination, in order either to be- come lawyers themselves, or, as is often the case in Washington, for example, to make themselves eligible for higher clerkships in the governmental service. For the most part these young people are not willing or able to bear the higher cost of attending university law schools like Harvard or Columbia. It is true that even in these latter schools there are not a few students who have great trouble in paying their tuition fees, or who earn their own living during their studies. The Harvard Law School should by no means be considered an aristocratic institution or an institution of the higher classes, like most of the English colleges of Oxford and Cambridge. The fundamentally democratic idea which pervades everything in America, including its educational life, is much too strong for that. Even in the Harvard Law School, and to a large extent in the excellent law schools of the state universities of Michigan and Wisconsin, or in the two Chicago universities, students of all classes of the popu- lation are to be found, the sons of farmers as well as of those belonging to the urban middle classes. Nevertheless, this much may be said, that many of the law schools that are not connected with universities, — the "proprietary law schools," — aiming as they do to combine the quickest, the most practical, and the cheapest possible train- ing for the bar examination with the greatest possible return upon the capital in- vested in the school, supply the needs primarily of those social strata whose sons are not thinking of university education in either the American or the continental sense. They consider the legal profession as a trade, like any other, and regard legal edu- cation in the same light as commercial education in a commercial school. It must be remembered that many American attorneys, among whom, of course, the distinction between barrister and solicitor does not prevail, are during their whole life nothing more than pure business men, and that their entire activity is taken up with looking after commercial interests. Such men act as real estate agents or brokers, have gen- eral charge of their clients' property, or are occupied with formal legal papers, the drafting of deeds, or other similar functions. This being so, it wiU readily be seen that for this type of legal activity the instruction which is obtained in one of these proprietary law schools is on the whole adequate. And this is true not only for the country lawyer, but also in the large cities, where a certain differentiation has begun to develop in the profession, prominent lawyers and their staff being engaged by those attorneys who do principally a solicitors' business, as counselors or experts on difficult points of the law, or again to do trial work for them. It must accordingly be said that these more or less commercial law schools, in which the old manner of teaching American law has been retained, correspond to real re- quirements of the American people. Although they have not the slightest significance from the point of view of scientific legal instruction, with which they do not concern themselves at all, nevertheless they have their warrant in the economic life of the nation, and are firmly rooted in the old democratic view of the legal profession as a practical trade. In so far, then, this kind of legal education, which, as I have repeatedly LEGAL INSTRUCTION OUTSIDE OF UNIVERSITIES 71 explained, is connected with the scientifically undeveloped condition of the common law as caiTied over from England to America, may be described as an organically related phenomenon, grounded in the historical development of America, and fully warranted even to-day, within the specified limits. A very different judgment must be passed, however, upon the corresponding devel- opment of a very singular "dualism" in German legal education in the universities of both the German Empire and Austria. Only by a very brief description of this phenomenon will the parallel drawn here between the teaching systems of the two great nations become absolutely clear. The American school of law, like all other higher educational institutions of the American people, has, as we know, originated and developed quite freely without co- operation or legislation by the state; so that out of this absolutely free growth there have resulted, under the influence of different social forces and educational ideas, great differences within the separate types of schools in general and of law schools in par- ticular. Legal education in the German states, on the other hand, has at all times been practised and developed only in the universities, and has therefore remained uniform in all fundamental features. Since the end of the eighteenth and the beginning of the nineteenth centuries the governments have regulated by statute the legal training of administrative employees, and of judges and attorneys, without thereby impair- ing, however, in any way the monopoly enjoyed by the university law faculties in the entire field of legal education. This state of affairs has continued unchanged up to the present. Just as legal science in Germany has always possessed complete freedom as against the state, so, on the other hand, in everything that has to do with legal edu- cation a definite order has been imposed by the establishment of a state curriculum for candidates preparing themselves for the bar, the bench, and the administration ; though of course the manner of instruction, the method, and the whole conduct of the teaching by the law faculty are, as in aU other branches of university work, en- trusted entirely to the professors.^ So much the more remarkable is it, then, that in spite of the statutory monopoly enjoyed by the law faculties as law schools, neverthe- less in Germany and Austria a kind of private instruction has started up in connec- tion with the state examinations which, as was remarked before, every student must undergo before he can begin his apprenticeship year in a court, or in an administra- tive position, or in a law office. The occasion for this peculiar phenomenon is the well- known fact that the law lectures at German universities are regularly attended by only a part of the matriculated students. After the Grerman student has passed from the discipline of the Gymnasium into the freedom of the ahna mater studiorum, pub- lic opinion universally accords him full liberty to give himself up more or less com- pletely, for several months, to the enjoyment of student life; and in no faculty to so ^Only in so far as the state — but always with the agreement and at the instigation of the professors — allows special appropriations for seminars or special practice courses, and for the libraries connected with them, has it made its influence felt here also. 72 THE CASE METHOD IN AMERICAN LAW SCHOOLS great an extent as in the law, is use made of this tradition. Hence in many univer- sities the lecture courses of the law teachers are very often only sparsely attended. Then, when the end of the course and the examinations draw near, there arises for a number of young jurists the absolute necessity of procuring the knowledge necessary for the state examination in the greatest haste. This pressing, practical need is will- ingly met by private law courses conducted by practitioners, former judges for the most part, or even active officials versed in the law, who find herein an extra source of income, and often their real vocation. Every one who is acquainted with the study of law in Germany and Austria is familiar with this characteristic figure of the cram- mer (Einpauker), and it is also worth noting that out of the original simple "re- peater" {Repetitor) there have developed whole permanent courses, often called by this name {Repetitorien), which, year in, year out, prepare a great number of students for the state examination. Indeed, in the last decade this phenomenon has often taken on a formal institutional character, especially in Vienna, at whose university more than twenty-five hundred law students are matriculated. Here the movement has progressed so far as to produce genuine private law schools in which an entire staff of teachers cover for the students the whole four years' course, squeezed into a much shorter pe- riod, and charged for at very substantial rates. The study of law in these law courses and law schools, corresponding to its purely practical aim, is conducted, of course, not at all in the same way as in the university ; not scientifically, but chiefly through appeal to the memory. From hour to hour a certain quantity of material is recited on from special text-books, skilfully compiled for this purpose. As helps in teaching, various kinds of catechisms, collections of examination questions, and other memory aids are used, in which, characteristically, attention is often paid to the lectures and text-books of the examining university professors. Often devices known to the Amer- ican proprietary schools are found here — quiz-books and similar practical aids. Now, if this kind of legal education — mere preparation for an examination and memory work — is comprehensible in America, where it is organically connected with the development of the law, with the general nature of education, and with the pre- vailing attitude toward the legal profession, in Germany and Austria, on the other hand, the corresponding phenomenon in private law schools attached to the universi- ties can be regarded only as a sign of degeneracy in our traditional German study of law. Without a doubt we have here a very serious situation. It is well known that the last two decades have produced an extraordinarily rich and in many ways extremely valuable literature concerning the needed reform of legal education in Germany and Austria.' It is an expression of the extensive and profound dissatisfaction with the ^ To cite only one of many excellent utterances concerning the reform of legal study'in Germany, — the author in this case being one of our greatest living legal scholars, — let me reproduce here some remarks from the work of Pro- fessor Ernst Zitelmann, Die Vorbildung der Juristen (.The Training of Lawyers), Leipzig, 1909, pp. 4-6, 11 : " Above all the legal faculties fail to-day in their essential purpose as teaching institutions in that a great number, indeed I fear I must say the majority, of the students make little or no use of the instruction or means of teaching in the university. It is an open secret that the lectures and exercises, especially the first, are in point of fact— as measured by the ratio between those who register and those who actually come — very poorly attended. This may differ from university to university, and within one university from teacher to teacher, but it is more or less the case every- LEGAL INSTRUCTION OUTSIDE OF UNIVERSITIES 73 current form of our law studies, the present situation of which is characterized by most law teachers in the universities, and also by prominent judges and attorneys, as really critical. And in the first rank of the numerous and varied aspects that are touched upon by this criticism belongs this recently developed " dualism," as I have called it, in legal education, which places side by side with the century-old faculties and their law studies a complete, rankly growing organization of private legal instruction.* Zitelmann puts it neatly: "This is a strange picture, though: on the one side, kept up with great expense and enjoying a teaching monopoly, public institutions of learning which are not used; on the other side, not recognized by the state, and standing outside the universities, preparatory courses, in which the young lawyers seek their training. If we look these facts resolutely in the face, we are brought to this alternative : either this state of affairs works — in which case the legal faculties are super- fluous as teaching institutions, the expense for them can be saved, and they should be done away with as teaching institutions as soon as possible ; or the theoreti- cal preparation of our lawyers is defective — in which case ways and means must be found to improve it." Utterances like this of Professor Zitelmann's might be reinforced by many of similar import from no less considerable authorities, all tending to show that the long re- nowned study of law in the German law faculties has undeniably failed at a vital point, namely, in respect to the method of study. It would certainly be very useful and interesting to enquire whether, even in Ger- many, there is not a connection between changes in the social function of the pro- fessions that are related to the study of law and the rise of these private law courses or cryptogamic schools; whether the employment of large numbers of legally trained officials in the state administration of the German Empire and of Austria does not necessarily bring with it an element of shallowness into the study of law; whether also, to a certain extent, the enormous capitalistic growth of Germany does not bring about a commercialization of the Gemian bar, more and more engaged with the de- fence of property and business interests. All this, of course, cannot be discussed in this connection. My purpose in drawing attention to these phenomena is simply to show my friends and colleagues in American universities that the continuance of numerous inferior law courses, of which they often complain, will certainly not hinder the fur- ther strengthening and progress of American legal science and of the scientific study of law. The German faculties, in spite of the partial failing of their powers as insti- where. . . . Even to-day numerous students start in to do serious work in legal science only after one and a half or even two years ; and then they do not try to make up the lectures they have missed, but attend only — in case they make use of university instruction at all— those lectures which they would have had to attend in regular order if they had already studied during the preceding semesters. Of course attendance of this kind is as good as useless— they are building upon sand! Most of them continue their policy of non-attendance, and take part, instead, in the much discussed preparatory courses, given by persons not connected with the university —courses which are euphe- mistically termed 'repetitions,' although there is nothing there to repeat." ' In Austria it seems impossible to suppress these private law schools in any way for the reason that the fundamental law of the state allows every one to teach privately. 74 THE CASE METHOD IN AMERICAN LAW SCHOOLS tutions for teaching the law, have not only maintained in our time their old scien- tific and literary fame, but have undoubtedly enhanced it. Moreover, in the instruc- tion afforded by the seminars and practical exercises they can point to a highly respectable success, even if only with a small number of students. If, in spite of this, the leading spirits of German law faculties demand a transformation of the general study of law, which shall insure to the great mass of the students a truly fruitful education, they represent in this demand, above all, the gi-eat interests of state and nation, which everywhere are intimately bound up with successful and effective legal education. In these efforts of the German legal world toward reform, more account, in my opin- ion, will have to be taken than heretofore of the products and achievements of the leading law schools of American universities. And with this I have now returned ab- solutely to my starting-point; it forms, in truth, also the conclusion of my entire train of thought. The case-teaching system, as created at Harvard and now practised and applied with excellent effect in numerous other law schools of American universi- ties, must serve very largely as a model in the coming reform of our German law study. Even though by reason of fundamental differences in the structure of the common law on the one side and of the German or Austrian civil law on the other, an exact replica is impossible, still the fundamental thought which this method of teaching embodies will have to be made more familiar to our faculties than it is at present. They will have to realize that, in the study of law, independent intellectual labor on the part of the students must form the real vital force of legal education, and that, on a larger or smaller scale, the accompanying teaching must be joined to the practical application of the law, as it presents itself in the decisions of the courts or in hypothetically con- structed law cases. But again the American law teachers of our time, in their turn, should not doubt that the great reform in teaching which Langdell introduced is the very thing which qualifies them, and earnestly summons them, to do the great work that lies before them now: namely, to apply the resources of European legal science, with its development of nearly two thousand years, to the establishment at last of a scientific system for the common law, thereby opening the way for a most fruitful development of national law and procedure and raising and invigorating the principle of social and economic justice in the life of the American people. INDEX INDEX Abbott, Nathan, introduces case method into Northwestern University, 14 (noi«). Admission to the bar In America, 7, 18. Effect of, upon legal education, 19. PossibiUty of change in, 67. In Germany and Austria, 7, 19, 68-69. In England, 37, 58 {note), 62. Admission to law schools, see Entrance require- ments. Albany law school established, 14 (note). America (United States) Conditions peculiar to this country, 3. Admission to the bar in, 7, 18. Development of law in Poor quality of statutory law, 35. Suggestions looking toward, 48 et seq. Importance of universities in, 62 et seq., 74. See also England and America, Common law. Legal instruction in, see Case method. His- tory, Lectures, Recommendations, Text- books, etc. American Bar Association Importance of proceedings, 5, 9 (note). Reports cited, 5, 9, 20, 21, 23, 24, 25, 29, 30, 31, 5S, 61, 62, 65. Committee on Legal Education, Section of Legal Education, see these heads. Ames, James B. Sketches development of law schools, 7 (note). Pupil and successor of LangdeU, 14. Testifies to general adoption of case method, 14. Raises requirements at Harvard, 14. Discusses purpose of legal education, 25. Contribution of, to legal scholarship, 43, 49. Articles cited, 9, 63. Ames Club at Harvard, 33 (note). Anglo-American law Development of, 35-37, 60 et seq. See also Common law. Anson, W. R. Works used in connection with case method, 30. Contribution of, to legal scholarship, 48. Apprenticeship as a means of legal training Prevalence of, in America, 7, 18, 58. Discussed by LangdeU, 15. Results in developing evening law schools, 18, 69. Competition with other methods of training, 19. Sometimes required in addition to law school training, 20. Cannot be entirely replaced by law school edu- cation, 21, 38, 40. In England, 37, 58 (note). Limitations of, 38. Organically related to case method, 57-58. In Germany, 69. Association of American Law Schools Importance of proceedings, 5, 9 (note). Papers or discussions of, cited, 20, 21, 25, 31, 52, 61, 65. ' Atmosphere"of American university law schools, 31. Austria, see Germany and Austria. JDALDWIN, Simeon A. Criticizes case method, 21, 38, 41 (note). Article cited, 9. Bar Association, see American Bar Association. Bates, Henry M., article cited, 5. Beale, J. H., introduces case method into Uni- versity of Chicago, 14 (note). Bentham, Jeremy, influences development of English law, 62. Bigelow, M. M., contribution of, to legal schol- arship, 17, 43, 48. Blackstone's Commentaries Influence of, upon legal instruction in Amer- ica, 7, 38, 62 (note). Used in connection with case method, 30. Supplemented by Chancellor Kent, 48. Influence of, in England, 62 (note). Bryce, James, contribution of, to legal scholar- ship, 48. Cambridge, University of How related to admission to the bar, 37, 58 (note). Contribution of, to legal scholarship, 48. Case-books Description of, 11-12, 26. Commended, 26, 49. Compilation of, unfavorable to productive scholarship, 49-50. Criticisms of, for not containing the law of the particular jurisdiction, 52. Constitute distinguishing feature of case meth- od, 59. Case method (theoretical discussion) Commended by Waentig, 5 (note). Germany and Austria have much to learn from, 5 (note), 74. Origin of, under LangdeU, 9 et seq. 78 INDEX Termed also Socratic method, 12. Now commonly followed in American univer- sity law schools, 14. Connected with general reform in American college, 15-17. Claims to be scientific and inductive, 15-17. Claim to be scientific allowed, 39-40, 54-59. Claim to be inductive disallowed, 54-57. Effect in stimulating legal scholarship in America, 17, 48-49, 54. Claims to be adapted to training practising attorneys, 20, 54, 62. Success in accomplishing this result, 29 et seq., 35, 40. Reason for this success, 30-33, 35 etseq., 58. Later development of, 23-25. Subordinates imparting of legal information to development of reasoning power, 23-25. Claims to be adapted to imparting of legal in- formation also, 25, 29. Reasons for success of, 29 et seq. Is method demanded by the common law, 35 et seq. Weaknesses of, 41 et seq. Inapplicable to local law, 52-53. Essentially empirical, 57. Organically related to apprenticeship, 57-58. Case-books constitute distinguishing feature, 59. Case method schools, criticism of Difficulty of beginners in, 29, 30. Give no comprehensive view of law as a whole, 41. [54. Ignore scientific value of direct lecturing, 43, Attach exaggerated importance to ' ' method," 43, 54. Favor the analytic at the expense of the syn- thetic type of mind, 44. Cover too narrow a field of law, 45. Sacrifice development of legal scholarship, 49 et seq. Have too few instructors, 50-51. Have too large classes, 51. Ignore text-books to too great an extent, 54. See also Recommendations. Case method schools, description of Distinguished from lecture and text-book schools, 12-13. More scientific than these latter, 39, 58, 69. Competition -with these not harmful, 67 et seq. Case-books in, 12, 26. Conduct of class exercises in, 12, 27 et seq. Students in Personal activity of, 12, 31-33. Better than German, 29, 71-72. Too many in class, 51. Instructors in Former practitioners, 21-23. Personal activity of, 30 et seq., 50, 69. Non-practitioners, 63. Incidental aids to instruction in Note-books, "dope sheets," 27, 28 (note). Summaries by instructors, whether permit- ted, 37, 28 (note). Text-books, 27, 30. Dictionaries and encyclopedias, 30. Consultation hours, 30. Moot courts, 30-31, 32. Student law clubs, 32. Student law reviews, 32, 49. Opportunity oflfered to, in development of American legal science, 63 et seq. Cases on Constitutional Law, by J. B. Thayer, cited, 59. Cases on the Law of Contracts, A Selection of, by C. C. LangdeU, cited, 9-12, 28. Cases on the Law of Quasi-Contracts, A Selection of, by W. W. Keener, cited, 16, 23, 24. Chicago, University of, law school Case method introduced, 14 (note). Csise method observed in, 26. Text-books not excluded in, 30. Conduct of moot court in, 31. Success of its graduates an evidence of value of case method, 35. Commended, 47. All classes of population found in, 70. Cincinnati, law school established, 14 (note). Civil law (as distinguished from criminal law, etc.), distinct field of work in Germany and Austria, 50. Civil law (Roman law), see Roman law. Civil procedure, American Codes of, 35. Needed reform in, 49, 63. Classes in certain American law schools too large, 51. Clubs, student law, 32. Codes, codified law In America, 35. Place of, in development of law in general, 36. In Germany and Austria, 42, 68. In Rome, 61 (note). Columbia University, school of law Associated with activity of Dwight, 8. ReestabUshed, 14 (note). Case method observed in, 26. Intensive intellectual work of students in, 27. Text-books not excluded in, 30. Success of its practitioners an evidence of value of case method, 35. Classes too large in, 51. INDEX 79 Case-books used in, have been criticized, 52. Cannot teach local law, S2. Pursues a scientific method, 59. Tuition higher than in evening schools, 70. Columbia Law Revimo Established, 32. Membership on, coveted, 33. Committee on Legal Education of American Bar Association, reports of, cited, 9. Common law, the (Anglo-American) StiU the predominant law of England and America, 35 et seq. Identical with case law, 36, 37. Transitional stage in the development of law in general, 35 et seq., 60 et seq. Demands the case method, 37 et seq. Lectures on historical development of, recom- mended, 42-43. Local variations in, cannot be taught scientifi- cally, 52-53. Tends to become unified, 53. Compared with Roman law of the classical period, 60 et seq. Common law, German, 42, 43. Comparative law Courses in, recommended, 45, 50, 55. An inductive science, 55. Constitutional right to practise law, American tradition of, 19-20, 67 et seq. Courseof law study, lengthening of, to fouryears recommended, 46,50, 65. Courses of lectures recommended, in conjunction with the case method, 41 et seq. Criminal law, not taught by instructor of civil law in Germany, 50. Criminal procedure, need of reform in America, 49, 63. Curriculum Expansion of, recommended, 41 et seq., 65. Of Harvard Law School, 46. Prescribed by the state in Austria, 68 (note). DiCET, A. V. Contribution of, to legal scholarship, 48. Article cited, 5. Dickinson College, law school established, 14 (note). Dictionaries, law Use of, under case method, 30. Criticism, 42, 44. Doctor's degree in law In England, 58 (note). In Germany and Austria, 69. Dogmatic instruction in law In lecture and text-book schools, 8. Whether permitted at all by the case method, 27-28 and note, 41 et seq. Criticism of instruction conducted only in this way, 39, Dwight method of teaching, 8. iiiLioT, Charles W. Brings LangdeU to Harvard, IS. Empiricism Defined, 38. Traditional method of legal instruction in Eng- land and America, 38, 57-58. Characteristic of case method, 57. Encyclopedias, law, 30. England Legal instruction in Contrast with America, 6, 62. Practical nature of, 37, 58 (note). Controlled by legal guilds, 58, 63. i See also Oxford. Admission to the bar in, 58 (note), 62. England and America, development of law in, 35-37, 60 et seq. See also America, Common law. Entrance requirements, law school Made more strict by Langdell, 14. Now extraordinarily difficult, 14. American law schools in advantageous posi- tion regarding, 19. Ethics, legal, cannot be taught in a law school, 40. European continent Development of law on the, 36, 61. Development of legal instruction on the, 61 (note); see also Germany and Austria. Resources of its legal science should be utilized in America, 65, 74. Evening law schools Developed out of apprenticeship system, 18, 58. Competition with other schools, 19. Likely to endure, 67, 70-71. Competition of, not harmful to university schools, 67 et seq. Examinations Bar, see Admission to the Bar. Law school Annual, introduced by Langdell, 14. American schools in advantageous position regarding, 19. Not held annually in Germany and Austria, 68. For the doctor's degree in Germany and Austria, 69. Facttlties of American law schools too small, 50-51. Fourth year Optional at Harvard, 46. 80 INDEX Addition of obligatory, recommended, 46, 50, 65. George Washington University, address deliv- ered at, 24 (note). Germany and Austria Admission to the bar in, 7, 19, 69. Development of law in, 36, 61. Legal instruction in Introductory lectures, 42. Based on study of code, 42. Specialization of courses, SO. Seminars, see this head. Detailed discussion of, 67 et seq. > Should profit by example of case method, 74. Oesetz distinguished &om Becht, 55. Gray, John C. Case-book contains historical notes, etc. , 36. Article cited, 9. Guilds, English legal Courses of lectures established by, 37, 58 (note). Control legal education in England, 58, 62. Harvard law school Established, 7, 63 (note). Reformed by Langdell, 9, 15, 48. Converted to case method, 13. Standards raised in, 14. Influences other schools, 14 (note). Case method observed in, 26. Text-books not excluded in, 30. Consultation hours for students in, 30. Moot courts at, 31, 32. Student spirit, 31. Student clubs at, 32. Student periodical at, 32-33. Success of its practitioners an evidence of value of case method, 35. Curriculum of, 46. Offers optional fourth year, 46, SO. Encouraged to make this obligatory, 47. Contribution of, to legal scholarship, 48-49. Classes too large in, 51. Case-books used in, have been criticized, 52. Cannot teach local law, 52. Pursues a scientific method, 59. Tuition higher than in evening schools, 70. All classes of population found in, 70. Case method created at, 74. Harvard Law Review Described, 32-33. Contribution of, to legal scholarship, 49. Articles cited, 5, 9, 21, 38, 41, 52, 63. Historical method in legal education, 43, 48. History of legal instruction in America Prior to 1870, 7-8. Development of the case method, 9-14, 23-25. Holmes, O. W. Personal experience with the case method, 39. Contribution of, to legal scholarship, 49. Illinois Law Review, 32. Incidental aids to case method Note-books, "dope sheets," 37, 28 (note). Summaries byinstructors, whether permitted, 27, 28 (note). Text-books, 27, 30. Dictionaries and encyclopedias, 30. Consultation hours, 30. Moot courts, 30-31, 33. Student law clubs, 32. Student law reviews, 32, 49. Inns of Court, 37, 58. " Institutes-course" recommended, 41-44. Instruction, legal More developed in America than in England, 6, 63. Purpose of, 18-20, 24-25. In Rome, 41, 60, 61 (note). Historical method in, 43, 48. On the European continent, 61 (note). Private, 67 et seq. Germany and America will learn from each other in, 74. See also England, Germany and Austria, Case method. Text-books, History, Recommen- dations. Instructors under case method Former practitioners as, 7, 21-22. [69. Personal activity of, in teaching, 30 et seq., 50, Non-practitioners as, 63. Jefferson, Thomas, influence upon estabUsh- raent of first American chair of jurisprudence, 7 (note). Jhering, R. von, contribution of, to legal schol- arship, 48. Judge-made law, 36 et seq., 45, 53, 56, 64. See also Common law. Judicial precedent, doctrine of, 37, 43, 57. Jurisprudence Taught at Harvard, 45, 46 (note). Concluding lectures in, recommended, 45-47. Kales, Albert M. , criticizes neglect of local law under case method, 52. Keener, William A. Introduces case method into Columbia, 14 (note). Draws analogy between law and the physical sciences, 16. INDEX 81 Claims that it is the most effective for training practitioners, 20-21. Emphasizes its effect in developing reasoning power, 23-24.. Cites double aim of method, 29. Permits use of text-books under case method, 30. Writings cited, 9, 16, 23, 24. Kent, Chancellor, contribution of, to legal schol- arship, 48. . Lang DELL, Christopher C. Originator of case method, 9-17 et passim. Contribution of, to legal scholarship, 17, 43, 48. Case-book contains simamary, 28 {note). Preface to case-book quoted, 9-12. " Law," double sense of, distinguished, 55. Law (in general) Two conceptions of, 13! As an inductive science, 15 et seq. As a practical profession, 18 et seq. Development of In England and America, 35-37, 60-62. Place of a codified system in, 36. On the European continent since the Renas- cence, 36, 61, 62. In Rome, 60 et seq. Impending in America, 62 et seq. Present condition of, in America responsible for success of case method, 35 et seq. Distinguished from physical sciences, Siet seq. Not an inductive science, 54 et seq. Not an applied science, 55 (note). Law, common, see Common law. Law, comparative, see Comparative law. Law, judge-made, 36, 45, 53, 56, 64. See also Common law. Law, local or exceptional, see Local law. Law clubs, student, 32. Law course, length of, 14, 46-47, 50, 58, 65. Law library Compared with chemical laboratory, etc., 55 Of German seminars, 71 (note). Law ofiSce as training school,«ee Apprenticeship. Law reform Courses offered in, 46. In America, 49, 63 et seq., 74. In England, 62. Law Reports Selection from mass of, in preparation of case- , books, 11, 96, 49. Selection of cases from, discussed in law re- views, 33. Description of, recommended in introductory course, 43. Law reviews, student, 32, 49. Law teachers in America, importance of, 5, 49. See also Instructors. Lecture schools Early, 7. [13. Distinguished from case method schools, 12- Superiority of, to ofSce training, 38. Less scientific than case method schools, 39, 58. Lectures Introductory course of, recommended, 41-4i4. Error in rejecting, 43, 54. Value of, as stimulus to student, 43. Concluding course of, recommended, 45. Value of, as affording opportunity for produc- tive scholarship, 50. Legal mind, training of, as end of instruction, 23 et seq. Legal scholarship Contribution of case method to, 17, 48-49, 54. Improvement of, 48 et seq. Contribution of English universities to, 48, 49 (note), 62. Criticism of case method schools from this point of view, 49-50. Future contribution of American vmiversity law schools to, 63 et seq., 74. European should be utilized in America, 65,74. Contribution of German imiversities to, 68, 69, 73-74. See also Historical method. Litchfield, first American law school established at, 7. Local law not susceptible of scientific treatment, 52-53. Louisville, law school established, 14 (note). JMaine, H. J. S., contribution of , to legal schol- arship, 48. Maitlarid, F. W., contribution of, to legal schol- arship, 43, 48. Massachusetts law. New York practitioners find over-emphasized in certain case-books, 52. Method of instruction In America prior to 1870, 7-8. Historical, 43, 48. Exaggerated importance attached to, 43, 54. Distinguished from modes of study, 59 (note). See also Case method. Lectures, Text-books, Instruction, etc. Michigan, University of, department of law Established, 14 (note). Case method observed in, 26. Commended, 70. All classes of population found in, 70. Michigan Law Review, 32. Moot courts, 30-31, 32. INDEX ^ ATioKAL law in America, see General common law. Natural right to practise law, American tradi- tion of, 19-20, 67 et seq. New York practitioners find Massachusetts law over-emphasized in certain case-books, 52. New York University law school, case method observed in, 26. Night schools, see Evening law schools. Northwestern University law school Established, 14 {note). Case method introduced in, 14 (note). Case method observed in, 26. Commended, 47. All classes of population found in, 70. Note-books under thecase method, 27, 28 (note). Office training of law students, see Apprentice- ship. Oxford, University of How related to admission to the bar, 37, SS (note). Contribution of, to legal scholarship, 48. Work of Blackstone at, 62 (note). x EirarsvLVANiA, University of, law school estab- lished, 14 (note). Pennsylvania Law Review, 32. Pollock, Sir Frederick Works used in connection with case method, 30. Contribution of, to legal scholarship, 48. Edits Law Quarterly Review, 49 (note). Pound, Roscoe Draws analogy between law and the physical sciences, 16. Discusses tradition of natural right to practise law, 19. Contribution of, to legal scholarship, 49, 64, 65. Laments absence of a system of the common law, 61, 64-65. Article cited, 5. Practice courts, 30-31, 32. Practitioners as instructors, 7, 21-22, 63. Practitioners, training of American legal education in general concerned with, 18-20, 58. Case method concerned with, 20, 54, 62. Success of case method in, 39 et seq. , 35. Reasons for this success, 30-33, 35 et seq., 58. Precedent, judicial, doctrine of, 37, 43, 47. Preliminary training of lawyers (other than in the law), 7. Private legal instruction In America, 67, 70; see also Evening law schools. In Germany and Austria, 71 et seq. Procedure, American Codes of, 35. Needed reform in, 49, 63. Professors of law in American universities Importance of, 5, 49. See also Instructors. Quiz classes In America, 8. In Germany, 71 et seq. Reasoning powers, development of, as an end of legal education, 23 et seq. Recht distinguished from Oesetz, 55. Recommendations Introductory course of lectures, 41-44. Concluding course of lectures, 44-45. Lengthening of course of study, 46-47, 50. Greater specialization in the faculty, 50-51. Reducing the size of classes, 51. Laying greater emphasis upon literary aids to law study, 54. Reeve, Judge, establishes first American law school, 7. Reform [17. Of American legal education by Langdell, 9- Of American college and university during last half-century, 16, 17. Of the law, see Law reform. Of Austrian legal education by Unger, 42. Of German and Austrian legal education now demanded, 72 et seq. See also Recommendations. Reviews (student law journals), 32, 49. Right to practise law, American tradition re- garding, 19-20, 67 et seq. Roman law Place of, in the development of modern Euro- pean law, 36, 61. Place of, in the development of Anglo-Ameri- can law, 36. Concluding lectures on, recommended, 45. Classical period of, compared with the com- mon law, 60 et seq. Savigny, F. K. von, contribution of, to legal scholarship, 42, 43, 48. Science, legal Comparative weakness of American law schools in, 41 et seq. Not exclusively inductive, 54 et seq. Distinguished from physical sciences, 54 et seq. Defined, 55, 56. Is not an applied science, 55 (note). Aim of, 56. Principal object of German law faculties, 68. See also Law, Scholarship, Scientific method. INDEX Scientific method Case method claims to be, lS-17. Claim allowed, 39-40, 54-59. Camiot be appUed to local law, 52-53. Scott, J. B. Defines aim of legal education as development of reasoning power, 24. Edits uniform series of case-books, 49 (note). Section of Legal Education of the American Bar Association, proceedings of, cited, 9, 20, 63. Seminars, legal, in German universities Small number of participants in, 51. Personal contact between professors and stu- dents in, 68. Value of, 69, 74. Special appropriations for, 71 (note). Socialization of the law, 67, 74. "Socratic method" term applied to case method, 12, 25, 29, 30, 51, 69. SpeciaUzation, should be carried further in American legal instruction, 50-51. Statutory law Poor quality of, in America, 35. Place of, in development of law in general, 36. Basis of legal instruction in Germany, 42, 68. Lectures upon, recommended, 43, 50. Local, not susceptible of scientific treatment, 52-53. Deprives Roman law of its creative power, 61 Stoqe, Harlan F. Emphasizes necessity of office training, 21. Recommends experienced practitioners as teachers, 21. Article cited, 5. Story, Justice Develops Harvard law school, 7, 14 (note). Works used in connection with case method, 30. Contribution of, to legal scholarship, 48. Summaries, whether permitted by case method, 27-28. Systematization of the law Is a later stage in the development of, 36. How produced in continental Europe, 61. Absence of, a defect in Anglo-American law, 61. America rather than England will produce, 62 et seq. Resources of European legal science will assist in, 64, 74. Taft, William H., discusses tradition of natu- ral right to practise law, 20. Text-book schools Early, 7. Distinguished from case method schools, 12- 13. Superiority of, to office training, 38. Less scientific than case method schools, 39, 58, 69. Are a digression from the traditional Anglo- American system, 58. Likely to endure, 67, 70-71. Competition of, not harmful to case method schools, 67 et seq. Text-books, legal Development of, out of lectures, 7, 38. In connection with evening schools, 18. Not barred under the case method, 27, 30. Improvement in the quality of, 48 et seq. Slighted under the case method, 54. Thayer, James B. Converted to the case method, 14. Contribution of, to legal scholarship, 17, 43, 48. Works used in connection with case method, 30. Distinguishes between methods of instruction and modes of study, 59 (rmte). Describes work and influence of Blackstone, 62 (note). Three years' course Lengthening of, recommended, 46-47, 50, 65. Suitable for Langdell's purpose, 58. Traditions in America affecting legal education Right of every citizen to practise law, 19-20, 67 et seq. Empirical method of study, 58. "Training the mind" as the end of legal instruc- tion, 23 et seq. U NGER, Josef, reforms legal education in Aus- tria, 42. United States of America, see America (United States). Universities Importance of their law professors in Amer- ica, 5. Relation of, to legal education in Germany and Austria, 7, 67-69, 73-74. Case method commonly adopted by Ameri- can, 14. Definition and development of, in America, 17. Historical method in, 43, 48. Relation of, to legal education in England, 58 (note), 62 and note; see also Oxford. Opportunity offered to American, in legal sci- ence, 62 «i seq., 74. Need not fear competition of evening schools, etc., 67 etseq. INDEX vV ETMORE, Edmund Discusses tradition of natural right to prac- tise law, 20 (note). Article cited, 9. Wigmore, J. H. Introduces case method into Northwestern University, 14 (note). [30. Works used in connection with case method. Contribution of, to legal scholarship, 49, 65. William and Mary College, first American chair of jurisprudence established in, 7 (note), 63 (note). > Wisconsin, University of, law school Commended, 70. All classes of population found in, 70. Wythe, Chancellor, earliest American law pro- fessor, 7 (' ZiTEEMAinr, Ernst, shows need of reform in Ger- man legal education, 72 (note), 73. THE STUDY OF LEGAL EDUCATION FROM THE REPORT OF THE PRESIDENT OF THE CARNEGIE FOUNDATION FOR THE ADVANCEMENT OF TEACHING FOR 1916 NEW YORK THE CARNEGIE FOUNDATION FOR THE ADVANCEMENT OF TEACHING 1916 D. B. UPDIKE • THE MEERYMOUNT PRESS • BOSTON THE STUDY OF LEGAL EDUCATION Some three years ago the study of legal education, including a study of methods of admission to the Bar, was begun by the Foundation. The work was placed in charge of Mr. Alfred Z. Reed, and has been pushed skilfully and energetically under his direction. The labor involved has been far greater than was anticipated. Altogether this is the most far-reaching and difficult study that the Foundation has attempted. All the material for this study has been gathered and is partially arranged and digested. The material is complicated and its mass is enormous. The discussion of it is proceeding as rapidly as the nature of the case will permit, and it is hoped that the report may be ready within the coming year. Some of the difficulties which have been encountered in gathering this information may perhaps be interesting, and may throw some light upon the precision of such enquiries. In the last statement of progress in this study it was recorded that of resident law schools founded prior to 1913, all had been visited except a small but important group near the Atlantic coast. These schools, which included Harvard, Yale, the Uni- versity of Pennsylvania, and those of New York City, were visited during the past year. Thus ends the itinerant portion of the enquiry, extending from October 20, 1913, when Mr. Reed began his visits of law schools, to May 12, 1916, when he com- pleted the Isist one. Three hundred and sixty-five days in all were devoted by him to' this phase of the work, as appears from the following table : Number of Schools visited Number of Days absent from. Office 1913-14 55 154 1914-lS 60 136 1915-16 17 75 132 365 The distances of the West account for part of the time consumed during the first year, while the size and complexity of long-established Eastern institutions are re- flected in last year's figures. In general from a day and a half to a fuU week has been devoted to a school of any pretensions. The problems involved in the teaching of law are in many ways more un- settled, standards of comparison are less clearly defined, than are those of medical edu- cation. Making allowances for those portions of the year when regular school sessions are interrupted by vacations or examination periods — making allowances also for the exigencies of office work covering other phases of the enquiry — it would have been difficult for a single visitor to have collected in a shorter time the information we now have; while if additional members of the staff had been assigned to the task, the problem of coordinating this mass of material would have been almost insuperable. The delays incident to such work are illustrated in the history of a preliminary question blank sent out in May, 1913. It was returned within four months by forty schools, or a little less than one-third of the whole number. This is about the usual 2 EDUCATIONAL ENQUIRY proportion of replies that may be counted on, where strong motives of self-interest are not appealed to. Friendly reminders brought the total, during the next six months, up to ninety, or just about two-thirds — not all of them by any means filled out fully or carefully. However, no real delay was occasioned by this, for it was during these months that our enquiry into bar admissions was being organized, and Professor Redlich was being accompanied in his visits. Furthermore, no great reliance can in any case be placed upon information secured by preliminary "questionnaires" from institutions so different, one from another, as are American law schools. The chief function of these blanks has been to indicate which schools were cordially disposed, and to give a general view of these, which lightened the labor of the actual visits. The blanks were taken back to the schools. Where answers had already been given ambiguous points were cleared up, and the replies brought down to date. In other cases the information was written down ck novo on the spot, to the extent to which the elaborateness or good-will of the institution made this formal approach appro- priate. The information has been vitalized by glimpses of student classes of each year at work and by informal conversations with members of the faculty. Throughout, printed foi-ms have been treated, not as procrustean pigeon-holes into which the man- ifold developments of a living organism must be forced to fit, but rather as partially systematized memorandum pads, on which are set down the results of personal enquiry. The advantages of this method of procedure are obvious. Its disadvantages are per- haps inseparable from all attempts to obtain a true picture of complex facts, rather than to support a preconceived theory. These blanks and supplementary ones contain a large mass of first-hand data, covering such matters as the history and organization of the school, the division of the curriculum, the working of the elective system, the rules for the admission and the graduation of students. Some of the facts recorded ai-e intrinsically interesting and even entertaining. Such, for instance, are the pictur- esque chains of events by which several schools — notably correspondence schools — have come into being. Others are highly technical and dull, such as the dry but appar- ently necessary details as to length of class exercises, of academic years, of vaca- tions, of examination periods. All have been recorded not in a spirit of judgment that this is good and that is beid, but rather in one of scientific curiosity, not unmixed with amazement that institutions professedly pursuing similar ends should diverge so fre- quently in the paths they have taken. As has already been said, all the information is only partially systematized in the blanks, and necessarily so. To cite one illustration : Everybody who is interested in education knows that around the term "special stu- dent" cluster a variety of practices and a variety of problems. But no one who has not tried to get at the heart of this matter in many schools can fully appreciate the vary- ing terminology, the many angles of approach, the confusing interpretations of statu- tory and customary law by which distinct categories of students — special, unclassi- fied, irregular, partial, hearers, auditors, conditioned, certificate — come into being. To state clearly how the schools differ in this respect from one another — to indicate fur- THE STUDY OF LEGAL EDUCATION 8 ther which practices seem commendable, which are open to criticism, which are trivi- alities not worthy of mention — is only one of many tasks which cannot be completed until the material is all in, and cannot be completed then without much thought and patience. In addition to the somewhat loosely organized information mentioned, secured di- rectly from the deans or other responsible authorities, forms were printed to cover statistics of law libraries, of financial operations, and of student attendance. In schools of any pretensions which would permit it, the registrar's records of admissions and grades have been inspected, a census taken of the entering class, and copies made of the academic history of from six to a dozen students taken at random. The interpre- tation of this material is in itself a considerable task if it be borne in mind that it is always easier to be captious than to be fair, and that the mere existence of an adequate recording system is a sign of merit. It is hoped, furthermore, in connection with the advancing standards of the schools, to indicate the influence of the United States Commissioner of Education, of the American Bar Association and Association of American Law Schools, and to summarize current discussion, including that aroused by Professor Redlich's paper. And finally, since law schools can be understood only when seen against the background of the conditions they have to face, a very consid- erable body of material has been collected bearing upon the systems of admission to the Bar, the admittedly unsatisfactory condition of American law and legal proced- ure, and the efibrts which have been made or are being made to better these condi- tions. It is obvious that only by a process of rigorous compression and omission can our report be brought within reasonable limits. That other reasons than the abun- dance of the material have contributed to our delay may be made clear by a few spe- cific illustrations. Our library blank, calling for an enumeration of the books under the heads of Reports, Statutes, Textbooks, etc., was plainly headed :" Bound Volumes." This blank was left at a given law school in the spring of 1914. Reminders sent out in December of that year, and in April and October of the year following, finally produced the fig- ures in November, together with the dean's honorable explanation that each volume of the National Reporter System had been counted as three. An immediate request for figures corrected to correspond with those from other schools, followed by a reminder the following April, finally produced revised figures in July, 1916, or more than two years after the original visit. The number of United States (state and federal) Reports in the school library was reduced almost one half by this painful process. In another institution the preliminary information requested did not appear for nine months. Information as to student attendance arrived fifteen months after it was asked for, and then only in an elementary form and after appeal to a higher au- thority. It took three exchanges of letters to secure from this same authority a verification and correction of financial information originally given us as "substan- tially correct." 4. EDUCATIONAL ENQUIRY In the preceding instance, we should not have secured a complete picture of the financial operations from the higher authority unless we had secured the "substan- tially correcf' information first. The general advisability, however, of not accepting, as final, figures secured from any source other than the Treasurer's books was well exemplified in another case, where there was a difference of $750 between the appro- priation for library purposes as given by the dean and the amount found to have been actually expended. It has been the exception, rather than the rule, that the indi- vidual instructors'' salaries, as given by the dean, when totaled up, agree with the total expenditures for instructors' salaries, the discrepancy in one case being as high as In one important institution, visited in the spring of 1915, and, like all those already referred to, a member of the Association of American Law Schools, library and stu- dent attendance figures first requested in the spring of 1915 and again in October, in April, in June, and in August, 1916, have now, after fifteen months, not yet arrived, altho undoubtedly to be expected. It would not be easy to do justice to our efforts to secure from four busy law school deans the gradings of specimen bar examination papers referred to in my last Annual Report. By the dry method of careful statistical count, it may be recorded that in the prosecution of this interesting bit of, laboratory experimentation forty-six letters or telegrams have been exchanged with members of this single examining board, and no less than one hundred and eleven with the deans: fifty-nine between April 7, 1915, when the notion was first broached,' and September 1, 1915, when the preliminary conference was held; fifty- two since then. The net result of eighteen months' labor is that the examining board and one dean have sent in their grades ; three deans, of whom one had never fully committed himself to the work, are still to be heard from. There is nothing particularly unusual about the preceding episodes, in which there has been no question as to the good faith and good will of the participants. Ad- vancing years, iUness, over-sanguine estimate of how much work can be crowded into a day, honest misunderstanding, necessity of responding to unexpected and impera- tive calls, lack of an administrative force adequate to cope with additional burdens, — these are among the causes which must be expected to delay what is essentially a coop- erative undertaking. Of a different character are certain evasions that have been prac- tised upon us. Only four schools have definitely declined to participate in any way in the enquiry. Only three have greeted us cordially at first, and then definitely withdrawn when it was discovered that we were attempting a searching study. But in addition one school has pursued the policy of failing to respond to our repeated advances in any way, while several others have neglected to send in specific categories of information. The pre- cise number of these latter is difficult to state, for if, on the one hand, we have never stood upon our dignity in the matter of making repeated requests, on the other hand it would have been an excess of method to push very hard in the case of obviously THE STUDY OF LEGAL EDUCATION 5 feeble institutions. Confining ourselves to schools sufficiently developed to be a power for good or ill in their co mmunities, the number would be about ten. Concerning these schools — none of them, of course, of the first importance, and some of whom may yet prove to be repentant sinners — the statement may fairly be published that certain information requested by us (usually of a financial nature) has been neither refused nor furnished. AU things considered, however, the enquiry has proceeded with much less friction than might have been anticipated in view both of its extent and of its delicacy. A regrettable misunderstanding of our attitude toward denominational education, alluded to in my Eighth Annual Report, has simmered down to the refusal, already noted, of four (out of sixteen) Roman Catholic schools to participate in the enquiry at all. Our previous study of medical education, altho bequeathing to us a certain heritage of institutional antagonisms, has in the main been of assistance by stimulating interest and confidence in a profitable outcome. Because of the absence of a united body of professional opinion, we have sought light on many questions where light was not to be found; have wasted much time learning elementary facts, and turned tem- porarily sympathetic ears to some fanciful propositions. The secretary of one school quoted the libel laws to Mr. Reed, and the president of one university intimated that he might give him a job, but on the whole the best of feeling has prevailed. The schools have been singularly patient under our exactions; gratifyingly hopeful that out of our joint labors results of value may ensue. We on our side have tried to remember that it is pleasanter to ask questions than to b# asked them, and that if some minor educational misdemeanor should not in justice be imputed as a cardinal sin, still less should we let our patience be tried and our power of judgment warped by the appear- ance of normal human traits among our co-workers. Procrastination and evasion, mis- understanding of motives and undue sensitiveness to criticism, even clumsy efforts to intimidate the supposedly weak or to stand in well with the supposedly powerful — these are all unimportant. Such manifestations of human nature must be expected when individual interest and institutional pride are touched, and while they necessarily complicate, and in the aggregate delay, our work to some extent, they are passing details, not to be taken seriously. It is in no spirit of excuse that this account of our delays is rendered. We, afte^ all, are ultimately responsible for the scale and pace at which we proceed; whether, when we receive a temporary check, we shall pass on, or whether we shall pause to smooth out a difficulty. There is of course a limit beyond which encyclopedic comprehensive- ness becomes a vice. But there is hardly a limit to the precautions which should be taken against committing unintentional injustice. We believe that much is expected of this enquiry, partly because of the time and labor which already have been put into it, but more because confidence is placed in its fairness and honesty. 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