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HARVARD AND THE BIRTH OF MODERN LEGAL EDUCATION

James Kent was among the nations generation of legal scholars sometimes referred to as the great commentators whose scholarship contributed to shaping and developing American law. Another important commentator was Joseph Story, his great influence bestowed on the program at Harvard. But unlike Kent, Joseph Story had a distinguished legal career long before venturing into the realm of legal education, including serving as associate justice of the United States Supreme Court from 1811 through 1845. Obviously, the work load of Supreme Court justices was far lighter during Story's tenure, as it is impossible to conceive of a current member of the U.S. Supreme Court having time to simultaneously take on the responsibilities of a full-time law school faculty member.

Before Story came on the scene at Harvard, that institution began its venture into legal education with the creation of the Royall Professorship of Law in 1816. Massachusetts chief justice Isaac Parker was appointed to this new professorship and was given wide latitude in fulfilling his role. The basic requirement was to deliver a series of not fewer than fifteen lectures covering law and government ". . . and generally those topics connected with law as a science which will lead the minds of the students to such inquiries and researches as will qualify them to become useful and distinguished supporters of our free systems of government, as well as able and honorable advocates of the rights of the citizens." Parker sought to avoid James Kent's practice at Columbia of lecturing to a mixed audience of both undergraduates and professionals, and pleasing neither. Rather, Parker chose to use his new professorship as an opportunity to create an entire school specifically designed for training lawyers, much in the same style as the Litchfield Law School. Moreover, the law school envisioned by Parker was to be a graduate school, modeled after the schools of theology, that was to provide instruction to "resident graduates in jurisprudence" and not compete with the Harvard College undergraduate program for students. This was a radical departure from the simple law professorships begun at other universities, including those at Columbia and William and Mary.

Harvard supported key elements of Parkers plan and allowed him to move forward in developing a somewhat financially independent professional law school. The following year the law school was launched under the direction of Asahel Steams, an out-of-office politician. Steams was formerly appointed University Professor of Law, but this position was to be supported entirely from student fees, as were most of the school's other expenses. Parkers plan to make the law school a graduate program and to limit enrollment was defeated in the interest of financial expediency. Students were needed to finance the school, and admission was thrown open to anyone. The program at Harvard, therefore, was less different from the Litchfield school than Parker had envisioned. although it soon was recruiting more new students than Litchfield: in its third year of operation, Harvard had nineteen students, against Litchfield s eighteen

Other universities followed Harvard's precedent of conferring the prestige of its name on fairly independent professional schools. Several years after the foundincr of the Harvard Law School, Yale began its affiliation with a law school in New Haven, which was operated in conjunction with the law offices of Staples and Hitchcock. In 1824, Yale appointed a member of that firm, Senator David Daggett, to its vacant professorship of law, and the names of his thirteen students were included in the Yale catalog. Like Parker at Harvard, Daggett became a member of his state s highest court, and management of the law schools daily operations fell to his junior associate. It took several more decades before the law school at Yale was more fully incorporated into the university, and during the interim it made no pretensions of limiting its program to those courses appropriate for university training. Rather, the program at Yale was unabashedly a full practitioners course, which lacked the graduate level aspiration and vision of the one attempted by Parker at Harvard. However, during this early period the two law schools were similar in what they offered their students.

Another early American legal scholar, Nathan Dane, provided additional resources for Harvard to expand the development of its law school. Dane was the author of an Abridgement of American Law, which was similar in design to Charles Viner's English Abridgement, titled General Abridgement of Iaw and Equity. Further following the example of Viner, who endowed a professorship in English common law at Oxford first filled by William Blackstone, Dane offered to fund a chair in law at Harvard, with the provision that the first incumbent be the highly regarded American jurist Joseph Story. Dane also stipulated that Story should be allowed time to publish as well as teach, perhaps having the work of Blackstone and Kent in mind. Story accepted the appointment in 1829, and immediately retained assistance for the practical business of running the law school by hiring John Hooker Ashmun, a legal educator from a proprietary law school in Northampton, Massachusetts, modeled after the one at Litchfield. Ashmun brought students to the program, and Justice Story's reputation helped attract even more. By 1844, just before Justice Story's death, Harvard's enrollment reached 163 students, which was huge by contemporary standards. Prior to Story's appointment, Harvard had averaged only nine students per year. However, admission standards to the Harvard law program remained lax, and students who would not have been accepted into Harvard College were able to enroll and come and go as they pleased, the tone of instruction under the initial direction of Ashmun being that of a trade school. Nevertheless, Joseph Story's appointment as law professor, and the freedom he was given to produce scholarship in that role, added a new level of prestige to the Harvard program and set it on a course to be the preeminent law school in America. During Story's tenure at Harvard he produced a wealth of legal treatises, on topics ranging from constitutional law to equity. These commentaries helped define the course and direction of American law, and set the style for producing legal scholarship over the following years. The new holder of Harvard's Royall chair, Simon Greenleaf, also wrote legal treatises in addition to his role in the classroom, reinforcing the dual role of university law professors as both teachers and legal scholars.

The success of the law program at Harvard under Story and Greenleaf signaled a major change in American legal education. The elite of the bar were no longer being trained in law office apprenticeship programs or proprietary law schools, but more often were studying law at university-based programs, such as the one at Harvard. In 1855, Abraham Lincoln noted this change in reply to a question of why he was still studying law when he was already at the head of his profession in Illinois:

" Oh yes, I do occupy a good position there, and I think I can get along with the way things are done there now. But these college trained men, who have devoted their whole lives to study, arc coming West, don't you see? And they study their cases as we never do. They have got as far as Cincinnati now. They will soon be in Illinois. I am going home to study law. I am as good as any of them, and when they get to Illinois I will be ready for them".

For all the changes in the education of America's lawyers, the method of instruction at all of these university-based programs remained remarkably similar and dull. From the newly re-established law program at the University of Pennsylvania to the more interdisciplinary program of study at the University of Virginia, the professors lectured from dry monologues. Students continued to read Blackstone and Kent, augmented by the texts of Story, Greenleaf, and others. All of this would soon change for the better, with the appointment of Christopher Columbus Langdell to the newly created post of dean at the Harvard Law School in 1870.

The growth in university-based legal education accelerated following the close of the Civil War, and the number of degree-granting programs expanded from just fifteen in 1850, to twenty-two in 1860, to thirty-one in 1870. These included new part-time programs at institutions like Columbian (now George Washington) and Cincinnati Law School, in Ohio, and a new law school for African-Americans at Howard University in Washington, DC. In terms of size and influence, the most significant of these programs included the one at the University of Michigan, which shortly after the Civil War boasted the largest enrollment in the country with nearly four hundred students, and Columbia's law school, which ranked second in enrollment with two hundred law students in 1870. The popular lecture-based system of instruction developed by Columbia's Theodore Dwight helped boost enrollment at that institution to more than five hundred students by 1872, pushing it ahead of Michigan. During this period, Harvard remained the most prestigious law school in America, but following the end of Justice Story's reign its enrollment had slipped to fourth place, and it appeared to be losing its position of leadership. Further, university legal education in general retained its trade school approach, consisting of one to two years of instruction by lecture and lacking the requirement of even an undergraduate degree for admission.

The appointment of Charles Eliot as the new president of Harvard in 1869, and Christopher Columbus Langdell as the first dean of the Harvard Law School in 1870, helped propel Harvard back into a clear leadership role and transform American legal education lasting well into the next century. Improvement of professional education at Harvard was at the top of Eliot's goals when appointed president, and being trained as a chemist he readily supported Langdell's belief that law should be studied as a science. In turn, Langdell subscribed to Eliot's goal of improving the state of professional education. While other legal educators, including Columbia's Theodore Dwight, shared Langdell's scientific notions of legal study, Langdell's approach was entirely different. Dwight s maxim was principle before practice, and through his lectures he sought to teach his students the principles and classification schemes of law in the same manner that Linnaeus classified plants. His system of instruction was to recite lectures outlining lists and rules illustrated by cases, which his students were required to memorize. In contrast, Langdell's approach to law study and teaching was to have students go directly to the cases. Instruction consisted of analyzing the reasoning of these cases in class through employment of the Socratic method, whereby students engaged in a dialogue with the instructor. A former student librarian at Harvard's law school, Langdell later wrote in the Law Quarterly Review (1887) ". . . law is a science, and . . . all of the available materials of that science are contained in printed books." He further added, ". . . the library is the proper workshop of professors and students alike; ... it is to us all that the laboratories of the university are to the chemists and physicists." Surely, these are words to warm the hearts of all librarians, and they did as much to spur the development of law school libraries as they did to transform legal education. The library at Harvard Law School, which had been sharply criticized in several reports prior to Langdell's appointment, grew rapidly in size and scope of coverage, although with Langdell's focus on case law, statutes were not collected until some years later.

Langdell's deanship at Harvard continued for twenty-five years, from 1870 to 1895, during which period the rapidly expanding industrial economy of America demanded more highly skilled lawyers to manage the intricacies of an ever-expanding body of legal regulations. Langdell was able to institute a number of changes, which soon became commonplace in law schools across the nation and helped shape legal education for the next century. Beyond his case approach to studying law, and the Socratic question-and-answer method of instruction, these changes included extending the program of study from eiahteen months to two years (and in 1899 to three years), increasing the standards for admission, as of 1909 requiring graduation from college as a prerequisite for admission, and lastly, implementing rigorous annual examinations. By 1900, there were 102 law schools in the United States, and 40 percent of these came into operation within the previous ten years. The size and influence of Harvard was so powerful that most other university-based law programs soon followed suit. Even Columbia's law school turned to the case method of instruction, with the appointment of William Keener in 1890, which led a number of Columbia faculty, including Dwight, to resign in protest. With the appointment of Harvard s Thomas Swan as dean at Yale in 1916, it became clear that the Harvardization of legal education was near complete.

 

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TITLE: Law and Legal Services at CitiMall Shopping Mall

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