Logic and Experience: The Origin of Modern American Legal Education.

• Author: Gordon, Robert W.

William LaPiana(1) has for years been one of the most learned and acute scholars of nineteenth-century American legal thought. In his most recent book, he is both scholar and advocate. He has a client and a cause to defend. LaPiana's client is Christopher Columbus Langdell, who, as Dean of Harvard Law School in the 1870s, developed what would become the prototype for modern legal education in the United States: the three-year, postgraduate sequenced curriculum of private-law courses staffed by a faculty of full-time academics teaching by the "case method" -- the interrogation of students primed with the reading of appellate cases. LaPiana's cause is Langdell and his faculty's larger vision that underlay their reforms: their ideals of legal science, their theory and practice of the case method, and their projects of professional improvement. LaPiana believes that we tend to view Langdell's ideas and practices through the distorting lens of the legal-realist generation that followed. The realists liked to quote Oliver Wendell Holmes's description of Langdell as "the greatest living legal theologian,"(2) without realizing how much Holmes actually shared and furthered Langdell's vision of law as science. They scoffed at legal science as empty scholasticism and lumped it -- under the derogatory label of "formalism" -- with the conservative constitutional doctrines of the "Lochner era" judiciary. They criticized the case method as an unduly narrow means of skills training and as an obstructed window into the legal system.

LaPiana wants to revive the power and plausibility of Langdell's system by placing it in the context in which it arose -- the intellectual and social world of the 1870s. After this task is completed, one would realize that Langdell was no fool; indeed, he was an accomplished practitioner whose ideas about law and how to study it not only were well grounded in contemporary jurisprudence but also strongly reflected the experience of practice under the great changes wrought by code pleading.

[LaPiana] also suggest[s] that the appeal of "Langdellianism" -- of the case method and the careful creation of a structure of rules of law -- was based on its practical effects. To be sure, the skills of case parsing that it taught were truly useful; moreover, the rigorous academic legal education it fostered helped assure the social position of the bar in a rapidly changing world. The construct Langdell and his contemporaries worked to create was a melding of logic and experience: the use of science to better understand and practice. [pp. vii-viii]

LaPiana tells a rich and complex story illustrated with a wealth of detail. He has dug up more material from contemporary sources, both published and unpublished, on Harvard, American legal science, and American legal education than any other scholar who has published in this area. The book contains many fascinating small discoveries and iconoclastic insights. We learn, for example, that James Coolidge Carter, the famous practitioner-jurisprude, recommended Langdell to Harvard's President Eliot (p. 12); that Langdell had not succeeded as he deserved in practice because he had developed a "hearty disgust for the means & methods by which business, place & reputation are...gained [in New York City practice]" (p. 12); that Eliot -- not Langdell -- appointed the Harvard law school's faculty (p. 15); that Langdell was a dreadful administrator (p. 19); that in the first years of his experiment, his school actually lost students (p. 19); and that in the early 1880s, when a successful practitioner earned approximately $20,000 a year, a Harvard law professor earned a mere $4500 (p. 20).

LaPiana's thesis rises above all of this detail. Although LaPiana does not put it quite this way, his thesis is: Langdell's Harvard experiment succeeded and spread, while so many previous experiments in American legal education had failed, because it was able to develop a better professional product -- a more rigorous and practical legal science and teaching method(3) -- than its predecessors and rivals. Harvard also succeeded in creating the right niche market for its product: an elite postbellum bar anxious to upgrade its prestige and supply certifiably smart talent to the new corporate law firms.

In contrast to Langdell's Harvard, antebellum legal education aimed both too high and too low. Like Langdell and his colleagues, the leading early nineteenth-century lawyers aspired to construct, and to teach in law schools, a legal "science of principles" derived by induction from reported cases. They believed a scientific -- or as we would now call it, a theoretical -- approach was required to lift the lawyer above the "mere case-lawyer" who can reason only by analogy and to distinguish him from the journeymen and "pettifogging" elements of the profession (pp. 29-38). LaPiana suggests that the antebellum brand of legal science failed to take hold in the routine training of lawyers because it was too abstract, composed of "great universal principles which, once understood, will reveal to the scientist the nature of the world and, indeed, the very mind of its Creator" (p. 58). Such natural-law principles had little connection with the "practical science of procedure," the pleading rules derived from the common law forms of action, that made up the day-to-day, bread-and-butter materials of practice (pp. 38-44). Law school curricula based on the grand principles were therefore shunned as impractical, while curricula based on the pleading rules -- such as the one at New York University -- duplicated what was better taught through apprenticeships and failed to deliver the social cachet and general culture of law-as-science. The antebellum Harvard Law School did attract students with the prestige of its faculty -- which included Justice Joseph Story, Joel Parker, Theophilus Parsons, and Emory Washburn -- and with the enticement that it equipped its graduates with the ability to practice anywhere by teaching them truly national law in the form of general principles. Nonetheless, Harvard teaching, though based on interactive discussion and lectures, had by mid-century become desultory and undemanding. As a first-year student, Joseph H. Choate, later famous as an advocate and diplomat, stopped taking notes in October, remarking in his notebook, "at this point Parsons became Pathetic!" (p. 51).

By the time Langdell became Dean of Harvard in the 1870s, conditions had become more favorable for a more rigorous and practical version of legal science and for university-based legal education in general. Procedural reforms, pioneered by David Dudley Field's 1848 Code in New York,(4) shifted the basis of pleading and therefore of practical knowledge from formulas to facts, from skill in the technicalities of the pleading game to the search for cases "on point" -- cases with similar facts (pp. 70-73). These reforms, which Langdell witnessed firsthand as a New York practitioner, furthered his project in several respects. First, Harvard's claim that its case method was a clinical-training method became more plausible, as it taught the skills of parsing, analogizing, and distinguishing cases (pp. 102-09, 148-52). Second, it facilitated the development of a more genuinely empirical legal theory -- a theory that would organize thinking about law into broad substantive categories based on the facts of cases.(5) Finally, the production of such a theory to organize the chaotic new case-filled world of the judges and practitioners demanded a new cadre of academic specialists. LaPiana summarizes the new Harvard thinking:

Only full-time scientists can properly pursue legal science. Their task is to find principles in the original sources of the law, which are the cases. Understanding the opinions of the courts will reveal the true basis of the law. That basis is not grand principles related to the ultimate ordering of society, but the narrow, technical principles that make up the real work of the lawyer, which courts use to decide real cases. [pp. 57-58]

LaPiana argues that, aside perhaps from James Barr Ames, Langdell's Harvard colleagues -- such as Oliver Wendell Holmes, John Chipman Gray, and James Bradley Thayer -- created scholarship that echoed their Dean's view of a secular, positivist, case and fact-based legal science based on John Austin's jurisprudence. In Austin's model, law derives its authority from the "commands" of a legal sovereign rather than from moral principles or universal truths, and legal science describes "law as it is and not as it should be." The positivists aimed to create an autonomous field of knowledge: "The creation of a modern science of law was their common goal, and the separation of that science from every other science was their common method" (p. 169).

Harvard's gamble, after a slow start, finally paid off. An active group of alumni -- including James Coolidge Carter and Louis Brandeis -- propagandized the virtues of the case method to the practicing bar. The intellectual demands of the method, as well as tighter entrance requirements, sequenced courses, and regular examinations, certified the Harvard Law School graduate as educated and rigorously trained. The invention of the law review -- and its membership based on class rank -- also helped to sort and certify a legal elite whose members were in sudden demand as associates in the new metropolitan corporate firms. The notion of a legal science appealed to the elite bar's aspirations to raise its status by associating itself with the prestige of new models of professionalism founded on the mastery of apolitical, secular, objective, university-based bodies of learning (p. 161). Law schools like Columbia and Yale at first tried to hold out against the pull of the Harvard model in order to preserve an older conception of the law school as designed to train generalist lawyer-statesmen. They were nonetheless converted to...