Abbildungen der Seite
PDF
EPUB

study, quizzed upon these, expounded and summarized their doctrines, added comments of his own and kept the students abreast of the development of the law in current judicial decisions. He gave instruction to the first year class in general commentaries upon municipal law, upon contracts and upon real estate. The second year included equity jurisprudence, commercial law, torts, crimes, evidence, pleading and practice.

Professor Dwight has borne testimony to the fact that he entered upon his new field of labor with many misgivings. Chancellor Kent had failed to build up a law school at Columbia, although but for his unsuccessful attempt as a teacher, his Commentaries would not have been written. Justice Wilson of the United States Supreme Court also had failed at Philadelphia, and Justice Parker of the Massachusetts Supreme Court had met with little encouragement at Harvard. It is true, the Harvard School had enjoyed prosperity under the stimulus of Justice Story's personality, but from his retirement in 1845, it “lost ground as to resources, number of students, and condition of the library." When Professor Dwight went to Columbia, the law schools in this country numbered less than twenty with a total attendance of about five hundred students. It was not strange that he considered his venture a doubtful one. His misgivings proved groundless, however. Thirty-five students were enrolled at the opening session. The next year the number was sixty-two. In the third year there were a hundred and three. Many of the students were already members of the bar, and the instruction was aimed primarily to fit men as legal practitioners.

In 1870 Mr. Langdell was called to the deanship of Harvard Law School and entered upon a career which was destined to revolutionize law teaching. He found a school in which but ten lectures a week were given to 115 students, and “the degree was conferred after one year of residence upon persons admitted to membership without any evidence of academic requirements and sent from it without any evidence of legal acquirements." The new dean introduced a new method of legal study. Instead of reading lectures to students or assigning textbooks for their reading, he put into their hands a collection of cases selected with a view to showing the development of a particular branch of the law. These were to be analysed by the student and discussed in the classroom under the leadership of the instructor, for the purpose of inducing the student to make his own generalization from these orignal sources. His first casebooks, those on Contracts and on Sales of Personal Property contained an Index and Summary of the principles underlying the cases, as did Professor Ames's casebook on Bills and Notes. This new departure in law

a

teaching has been referred to as one of the earliest attempts “to apply the inductive method of the laboratory to matters foreign to the natural sciences."

In a modified form, we of the original faculty employed it in the Cornell College of Law at its foundation in 1887. It superseded the textbook and expository lectures at Columbia University upon the retirement of Professor Dwight in 1891, and has become the prevalent system throughout the United States. In connection with this change in educational methods, and partly because of it, has come an extension of the law course. No school with any reputation for thoroughness undertakes to fit its students for practising law in less than two years, while a three year course is now the rule. The number of hours in the classroom has been increased, and the examinations leading to the LL.B. degree have been made frequent and searching.

It has been noted above, that Harvard required no examinations either for admission or graduation, prior to 1870. In states where graduation from a law school entitled the holder of the degree to admission to the bar, examinations were not severe a generation ago, as the writer can testify from his experience as a student examinee and a court-appointed examiner. At Columbia, until the change in 1891, the required classroom work consisted of seven and a half hours a week, during two academic years; and at Harvard, until 1870, attendance upon ten lectures a week for one year was all that was required. Now, the latter requires 12 hours a week during three years, with three annual examinations, and bestows the degree as a rule only upon college graduates, while Columbia has similar requirements. Under Professor Dwight, lecture hours were arranged so as to give students the opportunity of spending most of the day in a law office. Since his era, a different policy has prevailed. Students are not encouraged to divide their time between office and classroom, and lectures are arranged not for the convenience of office clerks, but for the benefit of those who devote themselves exclusively, during the course, to a scientific study of the law.

That the change is conducive to an improved legal scholarship cannot be doubted. Even in universities where hard work is not considered good form on the part of undergraduates, it is deemed most commendable among law school students. Football stars shine with a brighter luster when they tackle their cases in classroom with the vim and success which have gained them a reputation out of doors. Still better evidence of scholarly improvement is afforded by the legal magazines now issuing from our law schools. They are unconscious self-revelations of the ideals and the scholarship of these institutions. I refer not so much to the leading articles, though many of these reflect

the new spirit of legal research now prevalent among teachers of law, as to the notes and comment on current cases by the student editors. These have come to attract wide attention, and, like the leading articles, are frequently cited by practitioners, judges and writers. They not only serve as an advertisement of the school but also supply a test of current law school work. A comparison of the Columbia Law Review, for example, with The Columbia Jurist and The Columbia Law Times, published in the eighties, will show how great an advance in legal culture has been made at that law school during the last thirty years.

The training which student editors get in preparing notes for law school reviews is of great value to them and to the school. I have described it in the following terms: "It requires the students to engage in genuine legal research. A note is often a fine monograph on a novel topic, or on one where authorities are divided. In its preparation, the editor will consult his instructors and will receive hints and suggestions as to authorities and lines of investigation. But when finished, the note is the product of a particular editor; it is the result of his research and of his thought, it is indicative of his grasp of legal principles, a test of his legal culture. No wonder, therefore, that the leading law offices are on the look-out for Review editors as they pass from their law school training to actual practice."

Indications are quite clear at present that the development of legal education is not at an end. The American Bar Association at its annual meeting in 1918 adopted a resolution that two years of prelegal college education are necessary for a first class law school. The Executive Committee of the Association of American Law Schools has issued a report within the last few months in which it recommends a law course of four years. Both of these actions are indicative of the same desire-namely, that lawyers shall be thoroughly equipped to enjoy a life of culture, as well as to meet the manifold opportunities in practice and in public life which are increasingly open to members of the legal profession. That a foundation of liberal education is highly desirable to the study of the law is now widely recognized and acted upon by American universities. It is also becoming increasingly felt that even three years are hardly enough for all that a law school should give. Courses in both private and public law have multiplied in our law curricula amazingly until they crowd each other for time, and now the international situation which is developing from the world upheaval of the last four years, is giving new meaning to International Law, and will naturally encourage the study of the Civil Law and of Comparative Law. Will the result be a four years' course in our better law schools? If so, will the existing tendency towards making

law schools more generally graduate schools be arrested, and supplanted by a new tendency towards making the normal maximum of prelegal requirement two years of college work? These are questions which the next decade will naturally answer. I had a part in legal education during a third of a century while the normal law course was increasing from one to two years and then from two years to three; I have watched prelegal requirements rise from zero to a present minimum of high school graduation and a maximum of four years of college work. I now wait with much interest to learn what the new developments will be.

Teaching Civil Procedure

BY CUTHBERT W. POUND

The early lawyer saw the law in the form of an action. Right and wrong grew out of such forms. Unless there was a remedy there was no right. "So great is the ascendency of the law of action in the infancy of courts of justice, that substantive law has at first the look of being gradually secreted in the interstices of procedure.” (Maine's Early Law and Custom, 389). The study of law was the study of practice. That, however, was a long way back. The New York Code of Civil Procedure provides for one form of civil action, declares that the distinction between actions at law and suits in equity has been abolished, and says that the plain and concise statement of the facts constituting the cause of action, defense or counterclaim, is sufficient. Simplicity is thus suggested. The Code contains, or has contained nearly 3,500 sections, each one a dangerous pitfall for the unwary. Court rules add to the perplexity. Detail, whereby the weightier matters of the law are disregarded while tithe is taken of the mint, anise and cummin, is thus inevitable.

Under these conditions it is not strange if the modern student looks upon substantive law as a philosophic development of principles and regards simplified procedure as a system which, promising freedom from technicality, is, in truth, one of technical forms unrelated to the merits of the controversy. The end of procedure is to make plain the essential fact and to bring speedily a decision. Remedial justice makes litigation an appeal to reason rather than to force or fetish. If all went smoothly, the law of rights would be enough, but without some degree of skill in the preparation and trial of cases, a knowledge of the general rules of substantive law is a vain thing in a litigious world. With experience in the art or trade of legal presentation a mediocre practitioner may succeed in moving a tribunal to favorable action. Without such skill, the most learned jurist may be unable to make a start. It follows that the law school which neglects to develop a proper foundation for the trial of issues because it is the work of the artisan rather than the scholar graduates brief makers who must learn somewhere how to practice law; men who are full of theory and abstractions but who have no handicraft; splendid raw material, but not a finished product.

a

Associate Judge of the New York Court of Appeals. Professor in the Cornell University College of Law from 1895 to 1904.

« ZurückWeiter »