Legal Education (History)
I am not a professional historian. I was, however, first drawn to this subject as the chair of an AALS Study of the state of legal education in 1970 funded by the Ford Foundation. Preble Stolz of the University of California was well informed and led us to examine a 1921 study of the subject that had been funded by the Carnegie Foundation.
In 1976, I attended a dramatic performance by Henry Fonda appearing as Clarence Darrow. I was shocked to learn that Darrow had studied law at the University of Michigan, and more so that none of my colleagues on the Michigan faculty knew that to be so. The Dean, Ted St. Antoine, allowed me to find a picture of Darrow to hang in our courtroom. He then later asked me to find a woman and a minority student, and one thing led to another. With some help from Joe Vining, I redecorated all the classrooms with institutional history. I got a lot of help from Jill Blixt, a professional photographer in Ann Arbor, but bore most of the cost myself. It appears that in the ensuing quarter century all my century that the material I displayed has now been lost, and even also all the ancient class pictures from which much of it was drawn. I make this observation not to complain, but to take note that the topic is one that has commanded very little attention over the years. The one exception has been the fascination of law teachers with Christopher Columbus Langdell, who became dean at Harvard in 1870 and is credited with inventing the case method.
The point of much of my work is that the fascination with Langdell is largely misplaced. The American tradition in legal education has always reckoned on law as a discipline laden with political consequences and calling for the application of social, political, and economic insights. That tradition was quite deliberately established by Thomas Wythe when he was appointed professor of law and police at the College of William and Mary in 1779. Wythe had taught law to Jefferson and would teach the subject to John Marshall and Henry Clay. Clay would be among the group transplanting Wythe’s ideas to Transylvania University in Kentucky. That university was for a moment the largest in America, and the Compromise of 1850 was wrought by Clay with seven colleagues who were alumni of that University’s law department. The department was a casualty of the Civil War and is now largely forgotten, but it was a vital extension of Wythe’s teaching. For that matter, the Harvard Law School led in antebellum years by Joseph Story pursued a similar mission by similar means.
The Harvard of Langdell was a reaction against a tradition then almost a century old. It did reflect the apolitical English tradition that had been maintained for a time at the free-standing Litchfield Law School, and at Yale. The wisest of Langdell’s colleagues thought his theories to be nonsense, as indeed they were. No one in the 20th century shared them. But a vast amount of intellectual energy was invested in refuting him. Mostly, 20th century law teachers shared Wythe’s vision of the role of law in America, but they almost never acknowledged the connection.
Anyone interested in following this theme is welcome to examine an essay that is still in draft. Learning Law in New Haven, which is a comment on several recent publications. Suggestions are especially welcome. None of my work, it will be noted is archival in nature. I tell stories as accurately as I can, relying on professionals to mine the archives.
My other works on this subject are:
Book Review, Stevens: Law School, 72 Calif. L. Rev. 477 (1984)
The Revolutionary Idea of University Legal Education, 31 Wm. & Mary L. Rev. 527 (1990)
Teaching Law and Virtue at Transylvania University: The George Wythe Tradition in the Antebellum Years, 41 Mercer L. Rev 673 (1990)
Teaching Law in the Antebellum Northwest, 23 U. Tol. L. Rev. 3 (1992)
Butterfly Effects: The Political Influence of Law Teachers, 41 Duke L. J. 741 (1992)
Law and Chivalry: An Exhortation from the Spirit of the Hon. Hugh Henry Brackenridge of Pittsburgh (1748-1816), 53 U.Pitt.L.Rev. 705 (1992)
The Aims of Early American Law Teaching: the Patriotism of Francis Lieber, 42 J. Leg. Ed. 339 (1992)
One Law: The Role of Legal Education in The Opening of the Legal Profession Since 1776, 44 Fla. L. Rev. 591 (1993)
Legal Education for the People: Populism and Civic Virtue, 43 Kan. L. Rev. 1 (1994)
The Missionary Diocese of Chicago, 44 J. Leg. Ed. 467 (1994)
Der Einschluss kontinentalen Rechts und Juristen und Rechtskultur der USA, 1776-1933, 11 Juristen Zeitung 183 (1995) republished as The Influences of Continental Law on American Legal Education and Legal Institutions, in Toward Comparative Law in the 21st Century at 1037 (Chuo University Press, Tokyo, 1998)
Hail! Langdell!, 20 J. Law & Social Inquiry 691 (1995)
William Gardiner Hammond and the Lieber Revival, 16 Cardozo L. Rev. 2135 (1995)
Professor Wigmore, 1 Toin L. Rev. 219 (1995)(in Japanese)
A Tale of Two Lawyers, 91 Northwestern Univ. L. Rev. 615 (1997)
Law as “The Common Thoughts of Men:” The Law-Teaching and Judging of Thomas McIntyre Cooley, 49 Stan. L. Rev. 495 (1997)
Law and The Wisconsin Idea, 48 J. Leg. Ed. 297 (1997) (with Erika King)
Ernst Freund, 7 American National Biography 470 (1999)
Tocqueville’s Aristocracy in Minnesota, 26 Wm. Mitchell L. Rev. 485 (2000)
Preface to George W. Liebmann, The Common Law Tradition: A Collective Portrait of Five Legal Scholars ix-xviii (2005)
A Tribute to Bull Warren, 59 J. Leg. Ed, 457 (2010)