cause they have few clients. The briefless barrister is justly feared as a reformer; for, though he be learned in the books of the law, if he has held himself out to serve clients, and had none, it is an adequate judgment that condemns him as being, for some reason, unfit for affairs. Then, again, who is to do this work? The answer is that the new class of lawyers just emerging into group consciousness, the law teachers in our great universities, will ultimately rise to the accomplishment of this work of adaptation, always with the ready aid given so cheerfully by lawyers engaged in active practice.

This idea will be shocking at first hearing to our brethren at the bar or on the bench, for they fear the college professor as a reformer even more than the briefless barrister. To the lawyer in practice the term "professor of law" ordinarily suggests two somewhat variant pictures: The one of a little man sitting in a large chair engaged in the occupation of causing the young men before him to regurgitate divers supposed rules of law that have been taken from some text-book and swallowed without mastication; the rest of his time being spent in the dull labor of grinding out text-books or cyclopedia articles which possess some value as collections of authorities to be rightly used by the able lawyer. The second is of a person possessing a brilliant, but erratic, mind, full of useless and obsolete legal lore, but without knowledge of the practical affairs of life, or interest in those human elements that have not less significance in the administration of law than reason and logic; one having the greatest interest in the ancient writ of ouster le main, but none at all in the question whether a writ of injunction may be had to free the great manufacturing corporation down the way from the line of pickets set before its gates by striking employés. It is quite true that it is possible to find individuals somewhat like these types among the teachers of law. But they are not numerous, and are fast giving place to men of a very different kind.

The profession, for the reasons heretofore stated, is becoming more and more attractive to the ablest class of young men who qualify for the bar. Already one may single out not a few who possess in a marked degree those qualifications of mind and temperament which would insure marked success at the bar. Some of these strain at the leash, and presently forsake the ranks of the teachers to seek the more exciting and lucrative life of the practitioner; but others remain because the tremendous significance of the teacher's work appeals to them, and they think more of the service to be rendered than of the pay to be received. Many of these teachers are alive to their very finger tips, and are even more interested in the live American of the twentieth century,

of the kicking variety, than in the dead feudal overlord of the fourteenth century, of the year book sort.

The nature of the work required of the present-day teacher of law, as shown above, compels him to be a student of the science of the law as a whole to an extent never possible to the lawyer in active practice. He has the opportunity to secure a perspective of the whole field of the law, an appreciation of the continuity of its principles and procedure, which, as we have seen, is absolutely essential to the successful work of adapting it to the changing needs of modern society. There is a tendency now developing, as shown above, to lessen the burden of classroom labor, so heavily laid upon him heretofore, with consequent time afforded for working at the problems presented by the present unsatisfactory state of the law. More and more there will be drawn into the teaching profession lawyers sufficiently able and possessed of that sound judgment in affairs necessary to any successful work dealing directly with human life and interests. Thus for the first time there is open to a class of lawyers able and qualified to do the work required an opportunity to gain a knowledge sufficiently broad for the task and the time necessary for careful reflection and sound construction. No one can accomplish it by himself, nor can ten; but a hundred law teachers, working at the same problem in generous emulation, over a number of years, will work out a solution.

Speaking broadly, there are three great channels through which the law teacher may make his work effective in aiding the accomplishment of this great task: First, by making use in his classroom of the opportunity to influence the students who are to be the lawyers and judges of the future; secondly, by research and publication; and, thirdly, by working directly with commissions, bar associations, and legislative committees charged with the duty of considering and recommending specific legal reforms.

Considering his work as a teacher from this point of view, it is to be observed that, while the function of the American law school is to give a working technical knowledge of the law as it has been made by the courts and the legislatures, it by no means follows that the function of the teacher is confined to imparting information concerning the rules of law, or to training men in the art of reasoning out solutions of legal problems. While information is unquestionably of the greatest value to the man who needs it, just as his tools are of the greatest value to the artisan at his work, or his weapons to the soldier on the firing line, yet the giving of information is not teaching in its wide and true sense. When we speak of the wonderful teachings of the Great Teacher of Nazareth, which trans

formed a handful of insignificant Galilean fishermen into a group of moral and intellectual giants, capable of setting on foot a movement that should dominate a world that for generations had looked with scorn and contempt upon the truculent and disorderly people of Palestine, we do not have in mind the information He imparted to His disciples. It was the truth that He taughtthose great basic principles of right and justice that tend to bring all the thoughts and acts of men into right relation the one with the other, and thus to make possible that marvelous state of affairs which we call Christian civilization. Clearly, then, the teacher of law is no true teacher unless he lays before his students and makes beautiful to their eyes those great principles of right and justice that either do underlie, or should underlie, all of our rules of law, and sends forth his students to the bar, not merely actuated by a determination to exact from the public as large a revenue as possible, but each fired with a zeal to promote justice among his fellows and to advance, as far as lies within him, the welfare of society, by making the law that is administered as nearly as may be the law that is needed.

As a further means of aiding the more rapid reduction of our complicated system of law toward simplicity and efficiency, law teachers may well publish the results of their studies of difficult and obscure principles of law, which, by reason of being misunderstood and misapplied, have worked injustice by promoting litigation. Perhaps the most striking example of a service of this kind rendered in our generation by the publication of a great and scholarly treatise is found in Mr. Wigmore's monumental work on Evidence. Among other conspicuous examples of such work one may mention the articles of Prof. Langdell and Prof. Ames, published in the Harvard Law Review, and the essays of Prof. Thayer and Judge Baldwin. There have also been published not a few clarifying monographs of greater extent that possess much value as simplifying and determining obscure rules of law, such as Prof. Gray's "Rule against Perpetuities" and "Restraints upon Alienation,” and Prof. Kale's "Future Interests in Illinois."

But the most direct means of influencing the adaptation of the law will be found in the teacher's growing opportunities to bring the results of his research and constructive scholarship before law commissions and legislative committees. Already there have been many instances in which scholarly and able teachers have rendered conspicuous services of this kind. Thus the conference of commissioners on Uniform State Laws have called upon distinguished professors of law to draft codifications of the law of Sales, of Warehouse Receipts, and of Bills of Lading. Other professors of law have at the

current session of the conference presented a draft of a Partnership Act. Yet other law teachers are busily engaged in working out, in congresses and in the public journals, the vexed problem presented by our Marriage and Divorce laws. Still another group have seriously undertaken the careful consideration and reform of our criminal law, and through the Institute of Criminal Law and Criminology, and its publications, are making marked progress. Similar activities are observed in other fields of the law, and it is to be noted that in these activities the best and most learned of our teachers of law are working in harmony and mutual helpfulness with those distinguished lawyers in practice who honor themselves by engaging in this unremunerated service.

When an accounting is really made, the high reward of honor is given to those that serve the best. If the teachers of law advance courageously and unselfishly along the broad path of opportunity that now lies open before them, and render this great service which the public so loudly demands, they will deserve and receive a reward that is none the less great because unpaid, save in honor.

Discussion

H. S. Richards, Dean of the University of Wisconsin Law School.

The President in his address suggests a twofold function for the law teacher: First, as a teacher; second, as a legal expert. Teaching is the primary function, requiring for its perfection a natural gift, coupled with unwearying industry. As a result of his studies incident to teaching, the teacher should acquire an expert knowledge of his subject, which in time should result in treatises or monographs that are authoritative. Most of the legal treatises, which are classical in our law, have resulted in this way. Such studies should give the teacher an intimate knowledge of the merits or defects of the existing law on the particular topic, and render his opinion or suggestions with reference to changes therein of particular value to reforming bodies and legislative committees. His judgment is not warped by a retainer, which should add to the value of his candid opinion.

I have made this rather obvious statement merely to emphasize the view that the teacher should come to his standing as a legal expert, not as an end in itself, but as the incidental result of his endeavor to make himself an efficient teacher, which he can only be, in the best sense of the term, when he has mastered his subject. But efficient teaching is the keynote. A man who regards his

teaching as drudgery, to be endured for the stipend, while his energies are directed to other matters, has no business in a law facculty.

The title of expert has been lightly bestowed in these days of rapid fluctuations in social and political theory. Two introductions in public as an expert is enough apparently to give an individual the title of an expert as far as the public is concerned. That

is not the happy fate of the law teacher, however. Law teaching as a profession is a comparatively new thing. The bar and the public has too long regarded law teaching as the side line of a practitioner or judge to receive the new profession with frank confidence. The profession, also, is too recent for any considerable number of law teachers to stand out conspicuously as legal experts. There are a few notable examples of law teachers who have attained reputations as legal experts, and the future is full of promise. Unfortunately the present agitation for law reform centers in questions of public law and procedure. Three-fourths of the course in a law school is occupied with courses in private law. It is absurd to expect that men whose whole study and experience has been with questions of private law can properly be regarded as experts in public law. Their opinions would be of little value in solving public law questions.

None of the law schools give comprehensive and thorough courses in the public law, and the same may be said of procedure, though in a less degree. Public law has been largely appropriated by the political science departments of the universities. The courses there given are as a rule extremely elementary, and are really courses in civil government under more ambitious titles. The president has suggested that political science professors are not in good standing with the law teachers. If that is true, it is because such courses are too pretentious, and further taught for the most part by men who have had no legal training, and therefore incapable of dealing accurately with judicial decisions. I am sanguine that we are to see more attention paid to public law in our law schools, and the men who develop them will be in a position to lend valuable aid to legislative committees.

Granting that the function of the law teacher is not only to teach, but to lend aid in public matters, the schedule of work should be so arranged that the teacher will not be compelled to do his full quota of teaching while engaged in this public service. We have recently had and are having a great deal of criticism of our judicial system, particularly that part dealing with the criminal law. The popular magazines teem with articles which are largely denunciations of conspicuous criminal cases. One would conclude that our whole judicial system had broken down and become an instrument of injustice,

instead of justice. It is impossible to sustain these conclusions, based on a slight fraction of the causes, criminal and civil, annually disposed of by our courts. No accurate information is available to show whether or not on the whole our present system is a success or failure. Every fair-minded citizen must admit that an institution or system must be judged by its work as a whole, and not by sporadic incidents and cases. Intelligent action is impossible in the present state of knowledge. It is possible to collect this information; but its sources are various, and the work of collecting it is expensive and laborious.

The law teachers, particularly those connected with state universities, can render a great service to the public by collecting and classifying the facts showing the present workings of our judicial system. In the University of Wisconsin a sum of money has been set aside for such an investigation, and a member of the faculty has been devoting a large part of his time to this work. All criminal cases for a period of ten years are being studied, to determine whether or not there are unreasonable delays in bringing a criminal charge and trying the same, as to whether causes are reversed or dismissed for purely technical reasons, not touching the merits of the case, etc. When this work is completed, we shall be in a position to say what defects, if any, exist, and be able to suggest appropriate measures to eliminate the evils in so far as they are due to the forms of procedure. Similar investigations should be made in every state. I can conceive of no greater service that the law teacher can perform for the public and the profession of the law than in throwing light on these vital problems.

Albert M. Kales, Northwestern Uni

versity Law School.

I object to Mr. Vance's references to "the ultimate function," as if there was and is and is to be only one ultimate function for the law teacher. I think we may premise from the very beginning that there was an ultimate function of yesterday which may be entirely different from that which we may have to-morrow; and in my conclusion I think I may have occasion to lay more stress upon the ultimate function of to-morrow than upon that of yesterday and to-day.

It always interests me to go back to what Prof. Langdell had to say. He said that law was a science. That to him meant that you should take cases, and by the inductive method reach from them certain principles of law. So long as you had all the data, you could do this, and the process was simply one of reasoning. You consider all the data which were in all the cases, and from them you obtain your principles. Then all you had

to do was to analyze, and reason with the proper logic. But suppose you have not all your data. Suppose you have only one-tenth of it with which to do your work. Can you perform this process of induction then? Clearly, your induction in that case becomes mere speculation as to what the rule ought to be, or what the principle ought to be, and, in order to apply any scientific method to it, you must perform experiments and put your conclusion to a test afterwards, by which you can determine whether your speculation is the law or is not the law. So long as a professor in this country was dealing with the law of England, he may be said to have had all the data at his disposal in the English If you will examine Prof. Langdell's work, I think you will agree with me that his constant application of logic, his constant analysis of the cases, all came from the feeling that when he had the English cases, at least those before the Judicature Acts, he had all the data, and all he had to do was to analyze them, and then reason out the conclusion. I have no quarrel with that.

cases.

But, when Prof. Ames came to look out upon the field of forty or fifty different jurisdictions which were supposed to be following the common law, he did not find the same situation. He did not find the data complete anywhere. True enough, if he could pick from here and there and everywhere, he would get a sort of complete data; but when that data was applied to any one of these many different jurisdictions it was apparent that in no jurisdiction was the data complete from which you could reason out your principles. These principles, therefore, so elaborately wrought out by a selection of cases from all over the English-speaking world, are mere speculations of what ought to be the law. As a whole they are not the law anywhere. What we have learned to call "general law" is nothing but the speculations of the law teachers who have made our casebooks as to what the law ought to be. That is all it is their speculations from imperfect data. The result is it is necessary now, if law is a science and we are to apply to it scientific methods, that we take some step to prove those principles. It is necessary to bring them to the test-to perform some experiments with them, before we can say that they are the law.

I believe the time has come when the law teacher must perform some of those experiments which will bring these principles of so-called "general law" to the actual test of experience, and the only laboratory that I know of for bringing these things to a test is the courts. There is something of an overproduction of speculations as to what the law ought to be. Too much time is spent in the repetition of speculations already made. The time has come when it might be just as well to restrict a little those speculations and to spend some time in testing those principles

in the courts. I believe the great question now before the law teacher is whether he will be the one to bring these principles to a test in the courts, or whether he is going to put it off on his students for another generation. Will he do it himself, or will he say that the students hereafter must bring the teacher's academic speculations to the test in the courts?

Now, I have only one answer to that, and that is that it is high time the law teacher undertook to do this himself. I am not speaking about the men over forty years of age. I am not speaking about the men who have been and are the representatives of the ultimate function of yesterday, which I think was in Mr. Vance's mind. But I am speaking about the young men that Mr. Stone spoke of, who are starting out fresh from the law school at the age of 25-who are caught young, as Mr. Richards said. What about them? They have not made any casebooks, they are not making any books, and I doubt if they are going to make any. They have the analyses of their casebooks that they used from their masters. They have got their notes, or, if not, they can secure them. And when they go into the classroom what do they do? They run off what has been handed to them, and if they have no other ultimate function, they keep on pouring out those speculations, with some additions, year after year, with the result that at forty years they have atrophy rather than progress to report. Therefore I prescribe for them this work of bringing to the test of the courts these principles of the general law which they have obtained from their instructors, together with any others that they can add.

To that end I would prescribe the following as something like the ideal progress for the young law teacher of 25, who has come out of a law school with a brilliant record and is now going directly into teaching, either with or without any experience in an office with a dozen clerks. Of course, he has his course and he has his teaching. That has all been made easy for him, as I have explained. I would set him at work at once on the local law. He needs to become expert and efficient in the analysis and the statement of the local law in some principal course which he teaches. The expectation is that at the end of five years he will have produced a treatise by which the bar and the bench may judge of him in that particular jurisdiction. He is not practicing during this time. He has his hands full, I admit. He is teaching new courses, and he is doing the work of getting up the local law. At the age of thirty years he should have produced something by which the particular community may judge him. If he has not done so, then I think his career as a law teacher ought to end pretty rapidly, or else he ought to be relegated to some distant place, where he can do the least harm.

But if he is fairly successful, then he has another step to take. It is then that he begins his effort to practice law. He practices law not at all as a practitioner in the ordinary American sense. He practices law as a law teacher, who goes in for the handling of difficult legal problems. He goes in for the handling of cases, not the taking care of clients the giving of opinions on difficult cases. That is the spirit in which he goes into his practice. If his subjects be in the torts and evidence group, why he ought to have a year off, and he ought to go into a state's attorney's office and try jury cases. Then, when he comes out of that apprenticeship and back to his law school, he should be restricted to retainers from other lawyers. He goes into his work as an expert, and naturally goes into the cases which involve the difficult problems in the subjects which he teaches. If he is in the property or in the commercial law group, of course he must use his best efforts to secure the confidence of older members of the bar, who have clients and who are willing to give the law teacher his chance -at first, of course, in a desperate case that nobody can win. At 35 years of age the law teacher ought to have made some progress toward a standing at the bar. Between 35 and 45 ought to be the great period of his life, when he begins to bring the principles of his group of courses taught him by his masters to some actual test in the courts of his state, or in the courts of other states, if his fame is great enough to enable him to get outside the narrow confines of his own jurisdiction.

That is the ideal training for the law teacher of to-morrow. His ultimate function-the ultimate function of the majority-is to bring the speculations of his masters and his own, if he has any, to the test of actual experience in the laboratory of the courts.

The Function of the American University Law School

By HARLAN F. STONE
Dean, Columbia University Law School

There has been no more striking movement in the history of education than the development of legal education in the United States in the past 50 years. Although the law demands that its practitioners possess trained powers of analysis and discrimination, and minds stored with knowledge which historically is the product of social and economic conditions running back into the Middle Ages, it is only in recent times that educational institutions as such have taken up the systematic training of candidates for ad

mission to the bar, with the purpose of fitting them for the practice of their profession. In 1860 there were 12 law schools in the United States, and of these not more than 2 or 3, and certainly less than half, could fairly be characterized as professional schools offering courses even approximately qualifying their graduates for the practice of the profession of law. At the present time there are 114 schools of law in the United States awarding to their graduates the degree of bachelor of laws or equivalent degrees, all avowedly existing for the purpose of fitting their students to take up the practice of law. Of these, 23 are proprietary, or at least are not affiliated with any college or university, and may be suspected of the faults which experience has taught are usually incident to the proprietary professional school. The remainder, or 81, are either departments of universities or affiliated with colleges or universities.

The proprietary law school came into being as a result of the unwillingness of the university to offer professional courses in law. With the proper development of the university law school and the consequent raising of standards of admission to the bar, it is inevitable that the proprietary school will in the course of time be replaced, just as the proprietary medical schools, which owe their origin to a similar condition, have been or are being replaced, by the better equipped and more disinterested professiona! schools maintained by colleges and universities.

Looking toward the future, then, the problem of legal education lies in the somewhat delicate adjustment of the function of the professional school, having the educational ideals of the university, to the practical needs and aims of professional training. What is the function of the university law school? Can there be any difference of opinion with respect to its proper sphere? One has but to turn to the catalogues or bulletins of information issued by the college or university law schools in the United States to receive an affirmative answer to this question. Realizing how often in this world performance falls short of promise, one is led to believe that the diversity of views as to the proper function of the law school is even greater in the practice than in theory. Of the 81 college or university law schools in the United States, 25, or nearly one-third, maintain a two-year course, and of these 9 maintain evening schools only. In the case of a very large percentage of college or university law schools it requires only a slight knowledge of their curricula to know that their university relationship is more nominal than real, so far as any influence is exerted on their scholarship, and the writer has no hesitation in asserting that an even larger percentage serve no educational purpose beyond the preparation of their students for