¹ Norbert Reich supplied this elegant substitute for all sorts of awkward phrases.Google Scholar

² Chase, Anthony, The Birth of the Modern Law School, 23 Am. J. Legal Hist. 329 (1979); Chase, Anthony, Origins of Modern Professional Education: The Harvard Case Method Conceived as Clinical Instruction in Law, 5 Nova L. J. 323 (1981)Google Scholar

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⁵ Which Tony Chase has clearly tried to do in his work.Google Scholar

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⁷ See, supra, note 3.Google Scholar

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¹⁰ Id., 23.Google Scholar

¹¹ Id., 25.Google Scholar

¹² Id., 27-28.Google Scholar

¹³ Id., 28.Google Scholar

¹⁴ Id., 30.Google Scholar

¹⁵ Id., 39.Google Scholar

¹⁶ Id., 40. Google Scholar

¹⁷ Id., 45-48.Google Scholar

¹⁸ Origins of Modern Professional Education (note 2). But cf. Anthony Chase, Lawyer Training in the Age of the Department Store, 78 Nw. U. L. Rev. 893, 906-08 (1983).Google Scholar

¹⁹ See, e.g., Langdell, Annual Report on the Law School, in Annual Report of the President and Treasurer of Harvard College 1883-84, 100-107; Langdell, Annual Report on the Law School, in Annual Reports of the President and Treasurer of Harvard College 1884-85, 112-16; Langdell, Annual Report on the Law School, in Annual Reports of the President and Treasurer of Harvard College 1887-88, 92-105.Google Scholar

²⁰ Wambaugh, Eugene, Professor Langdell - A View of His Career, 20 Harv. L. Rev. 1 (1906)Google Scholar

²¹ Langdell wrote about 200 pages of annual reports. In addition he penned the famous Christopher Columbus Langdell, Preface to A Selection of Cases on the Law of Contracts vii (1871); Langdell, Christopher Columbus, The Harvard Law School, 1869-1894, 2 Harv. Grad. Mag. 490 (1894); Speech at 250th Anniversary Dinner, 3 L. Quar. Rev. 123 (1887); and Speech at the 25th Anniversary of Christopher Columbus Langdell as Dean of Harvard Law School, 29 Am. L. Rev. 605 (1895). Out of this only the Preface; the 250th Anniversary Dinner containing the famous passages on legal science, portions of the reports of 1873-74 (importance of division into classes, library as laboratory), 1976–77 (admission to bar in New York, division of bar into attorneys and counsellors) and 1886-87 (importance of a thorough professional education in the science of law, necessity for scholarships to encourage such study); and the Deanship anniversary dinner (listing accomplishments) can even vaguely be said to have anything to do with legal education. Of this, only the brief passages on legal science, which are hopelessly confused can be said to be other than decanal clap trap.Google Scholar

²² The Harvard Law School 1869-1894 (note 21), 479-98Google Scholar

²³ Robert Gordon was the first person to point this out to me. A good illustration is found in the story about Langdell's equity course where he found Lumley v. Wagner to be simply wrong. See, Joseph H. Beale, Professor Langdell - His later Teaching Days, 20 Harv. L. Rev. 9, 10 (1906), and in the oft quoted statement, “The vast majority [of cases] are useless, and worse than useless, for any purpose of systematic study”. Preface to A Selection of Cases on the Law of Contracts (note 21), viii.Google Scholar

²⁴ See, supra, note 6, 87.Google Scholar

²⁵ Id., 84, 88.Google Scholar

²⁶ Robert Stevens, Law School: Legal Education in America from the 1850's to the 1980's (1983), 35-42, 51-57Google Scholar

²⁷ The Centennial History of the Harvard Law School 1817-1917 (1918), 36Google Scholar

²⁸ Al Katz pointed this out to me years ago.Google Scholar

²⁹ See, supra, note 26, 38, 60–61.Google Scholar

³⁰ See, supra, note 22.Google Scholar

³¹ As David Sugarman has now made crystal clear. Sugarman, David, Legal Theory, The Common Law Mind and The Making of the Text Book Tradition, in Legal Theory and Common Law 26 (Twining, William ed., 1986).Google Scholar

³² See, Langdell, Christopher Columbus, Annual Report on the Law School, in Annual Reports of the President and Treasurer of Harvard College 1890-91, 104, 116.Google Scholar

³³ See, Schlegel, John Henry, Between the Harvard Founders and the American Legal Realists: The Professionalization of the American Law Professor, 35 Legal, J. Ed. 311 (1985).Google Scholar

³⁴ The issue was still a live one as late as 1910. Langdell's strongest statements came fifteen years earlier. See, supra, note 22.Google Scholar

³⁵ See, supra, note 26, in the source of most of this paragraph.Google Scholar

³⁶ See, e.g., Koenig, Thomas & Rustad, Michael, The Challenge to Hierarchy in Legal Education: Suffolk and the Night Law School Movement, in Research in Law, Deviance and Social Control, 189 (1985).Google Scholar

³⁷ What follows is a summary of the argument in Schlegel, supra, note 33. That in turn draws heavily on Magali Larson, The Rise of Professionalism (1977) and Jerold Auerbach, Unequal Justice: Lawyers and Social Change in Modern American (1976). I have also wrestled with this problem in John Henry Schlegel, Langdell's Legacy, or the Case of the Empty Envelope, 36 Stanford Law Review (Stan. L. Rev.) 1517 (1984). I confess that I suspect that my friends in C.L.S. may well find this argument to be too functionalist and for this reason have chosen to ignore it. On this question see, infra, note 39.Google Scholar

³⁸ Langdell, Christopher Columbus, Annual Report on Law School, in Annual Reports of President and Treasurer of Harvard College 1876-77, 82, 88–92.Google Scholar

³⁹ To speak of “needs” raises the ugly question of “functionalism”. I use “needs” with a certain malice. I am tired of hearing functionalism dismissed as if it were somehow stupid to assert that the products of human activity such as law have or serve functions. While I can understand how one might be upset at the politics of the functionalists of the Post-World War II period, that upset is not an objection to functionalist explanations. A hammer and a crescent wrench may both be used to drive nails into wood. But a bit of work at the task is likely to demonstrate that one of these tools was designed to, is functional for the indicated task and I dare say that an anthropologist in 10,000 years will have little difficulty coming to the same conclusion.Google Scholar

Now, of course, some products of human activity, like legal education or negligence, are substantially more complicated to dope out than hammers and crescent wrenches. Indeed, it may be said that such complex products have multiple functions. (Then again, so do tools. A crescent wrench may be used to drive nails and, as I just checked out, a claw hammer, thought not a ball peen hammer, to tighten bolts and nuts.) But that only implies that the task of understanding the function is more difficult for complex entities.Google Scholar

There is the problem of necessary relationship, I suppose. To say, as I am saying above, that the structure of legal education had a function is not to say that only this structure could have served that function. State legislation directly limiting entry into the profession or a reinvigorated bar coupled with stringent, essentially class biased apprenticeship requirements could have done as well. And understanding why one route rather than others was taken in a society often tells much about that society. (Here the legislative route was unavailable because the relatively less elite legislatures would not go along; they even were unwilling to go along with the lesser entry requirements sought by the law schools. The apprenticeship route was unavailable because the corporate bar simply had no time to train the myriad of apprentices it needed; its desire to support university based education was a recognition that it did not wish the task.) But the existence of hypothetical alternatives or even of similar societies where different alternatives were actually taken does not undermine an assertion about the function of a product of human activity, at least unless one is caught in the clutches of a rather virulent sociological or historical positivism.Google Scholar

⁴⁰ See, supra, note 6, 82-87 gives content to the notion of the lawyers as the public statesman of Ciceronian virtue.Google Scholar

⁴¹ See, supra, note 33, 321.Google Scholar

⁴² See, generally, Laurence Veysey, Emergence of the American University (1965).Google Scholar

⁴³ See, supra, note 33, 313-14 for a rough description of the process and for sources on some of these disciplines.Google Scholar

⁴⁴ Id., 319-25. A similar, though by no means identical argument to what follows for the balance of this paper is Arthur Jacobson, Modern American Jurisprudence and the Problem of Power, 6 Cardozo L. Rev. 693 (1985). For its sheer elegance and the power of its categories, Jacobson's paper repays careful reading. At the same time, I am not convinced that the process we both seek to describe is as exclusively intellectual as his paper implies nor do I think he would be convinced that the process is an heavily social as I think it is.Google Scholar

⁴⁵ See, supra, note 33; Schlegel (note 37) provides support for this proposition. As a brief supplement, I would suggest that the failure of political science and sociology to identify a method appropriate to the discipline accounts for much of the sense that neither is a discipline, as well as for the attraction of a general statistical, empirical method for both disciplines.Google Scholar

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⁴⁸ Huffcut, Ernest, Cases on the Law of Agency (1895)Google Scholar

⁴⁹ wigmore, John, Select Cases on the Law of Torts with Notes and a Summary of Principles (1911-12). A study of why this book was rejected might well illuminate the contours of the late nineteenth and early twentieth century legal academic's intellectual world.Google Scholar

⁵⁰ See, supra, note 33, 321.Google Scholar

⁵¹ No adequate discussion of the impact, if any, of either the Continental Legal History Series or the Modern Legal Philosophy series is available, perhaps, because there was none. The latter is treated briefly in John Henry Schlegel, American Legal Realism and Empirical Social Science: The Singular Case of Underhill Moore, 29 Buffalo Law Review (Buff. L. Rev.) 195, 202 n. 20.Google Scholar

⁵² Thayer, James, The Teaching of English Law at Universities, 9 Harv. L. Rev. 169, 183 (1895)Google Scholar

⁵³ Ames, James, The Vocation of the Law Professor, in J. Ames, Lectures on Legal History 354 (1913); Ames, James, Remarks, in Proceedings of the Seventh Annual Meeting of the Association of American Law Schools 16 (1907). The precise origin of the phrase “thinking like a lawyer” is unknown to me.Google Scholar

⁵⁴ See, supra, note 21, 92–103.Google Scholar

⁵⁵ Id., 39-40.Google Scholar

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⁵⁸ Id., 128.Google Scholar

⁵⁹ Pound's work, scattered throughout the pages of the law reviews, is collected in his multi-volume treatise, Jurisprudence (1959) which is largely a compendium of his original articles, complete with original footnotes, with only limited new material. His version of the theory of interests is contained in vol. 3 from pages 5-341. Nathan Roscoe Pound, Jurisprudence (1959) 3, 5-341 (1959).Google Scholar

⁶⁰ Id., 16, 22.Google Scholar

⁶¹ Id., 101-341.Google Scholar

⁶² Hohfeld, Wesley, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16, 20 (1913)Google Scholar

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⁶⁴ See, supra, note 59, 233–35.Google Scholar

⁶⁵ Id., 328.Google Scholar

⁶⁶ Id., 330.Google Scholar

⁶⁷ Pound, Nathan Roscoe, The Causes of Popular Dissatisfaction with the Administration of Justice, in 29 Proceedings of the American Bar Association, 400 (1906).Google Scholar

⁶⁸ See, Singer, Joseph, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld, Wisc. L. Rev. 975, 1050-59 (1982).Google Scholar

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⁷⁷ Gray, John, The Nature and Sources of Law (1909), a proposition uttered for a thoroughly conservative purpose.Google Scholar

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⁸⁰ See, supra, text at notes 69-72.Google Scholar

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⁸² See, Schlegel, John Henry, Searching for Archimedes - Legal Education, Legal Scholarship, and Liberal Ideology, 34 Legal, J. Ed. 103, 107 (1984).Google Scholar

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⁸⁶ Id., 98.Google Scholar

⁸⁷ Twining, William, Karl Llewellyn and the Realist Movement (1973); Twining, William, Talk About Realism, 60 New York University Law Review (N.Y.U. L. Rev.) 329 (1985) attempts to develop the notion of a “dissenting tradition” in American jurisprudence, though in a thoroughly implicit fashion. Twining has used the phrase in conversation for years. He puts in the class of pre-Realist dissenters, Holmes, Gray, Corbin, Hohfeld, Pound and Cardozo. In addition to the works of these scholars noted above one needs to recognize Benjamin Cardozo, The Nature of the Judicial Process (1922); Corbin, Arthur, The Law and the Judges, 3 Yale Review 234 (1914); Pound, Nathan Roscoe, Liberty of Contract, 18 Yale L. J. 462 (1909).Google Scholar

⁸⁸ Dewey, John, Logical Method and Law, 10 Cornell L. Q. 17 (1924) is the usual cite. In fact Dewey's ideas on science were scattered all over until consolidated in John Dewey, Logic (1938)Google Scholar

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⁹⁶ Id., 94-96.Google Scholar

⁹⁷ Much of what follows in this paragraph summarizes Stevens, R., supra, note 26, at 172-199.Google Scholar

⁹⁸ Id., 136-37.Google Scholar

⁹⁹ See, Schlegel (notes 51 and 93).Google Scholar

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¹⁰² See, supra, note 82, 107; Schlegel, supra, note 51, 234.Google Scholar

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¹⁰⁵ See, supra, note 73, 74.Google Scholar

¹⁰⁶ Kantorowicz, Herman, Some Rationalism about Realism, 43 Yale L. J. 1240 (1934).Google Scholar

¹⁰⁷ Id., 1240.Google Scholar

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¹⁰⁹ Id., 1242.Google Scholar

¹¹⁰ Id., 1251.Google Scholar

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¹¹² Purcell, Edward, The Crisis in Democratic Theory: Scientific Naturalism and the Problem of Value (1973) lays out the entire literature which ranges from the serious and sensible, Lon Fuller, Law in Quest of Itself (1940), to the silly and offensive Philip Mechem, The Jurisprudence of Despair, 21 Iowa L. Rev. 669 (1936).Google Scholar

¹¹³ All of this paragraph and much of the next are derived from R. Stevens, see, supra, note 26, 205–231.Google Scholar

¹¹⁴ Duncan disowns ever having said this. The attribution is nevertheless correct and stealing someone else's metaphor, even a disowned metaphor, is a high crime.Google Scholar

¹¹⁵ Lasswell, Harold & McDougal, Myres, Legal Education and Public Policy: Professional Training in the Public Interest, 52 YALE L. J. 205 (1943)Google Scholar

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¹¹⁷ Id., 206.Google Scholar

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¹¹⁹ Id., 208.Google Scholar

¹²⁰ Id., 212.Google Scholar

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¹²⁷ Here there is no great book. The best entré into the mass of writings are two essays: Kenneth Winston, Introduction, in The Principles of Social Order: Selected Essays of Lon L. Fuller (Winston, Kenneth ed. 1981) and Peter Teachout, The Soul of the Fugue: An Essay on Reading Fuller, 70 Minn. L. Rev. 1073 (1986).Google Scholar

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¹³⁰ Ackerman, Bruce, Law and the Modern Mind by Jerome Frank, 103 Daedalus 119, 123 and see, supra, note 26.Google Scholar

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