Tulane University of Louisiana Law School: Monte M. Lemann, Charles

The following papers were read:

PRESIDENT'S ADDRESS

K. Burdick, D. O. McGovney.

Julian W. Mack, Ernst Freund.

University of Colorado School of Law: Lucius M. Cuthbert.

University of Denver College of Law: George C. Manly.

University of Illinois College of Law: Edward S. Thurston.

University of Kansas School of Law: Henry C. Hill, W. L. Burdick.

University of Michigan Law School: Evans Holbrook, J. L. Clark, Henry

M. Bates.

University of Minnesota College of Law: James Paige.

University of Missouri School of Law: Manly O. Hudson, Selden P. Spencer, John D. Lawson.

University of Nebraska School of Law: Henry H. Wilson, E. B. Conant. University of North Dakota Law School: Luther E. Birdsall, Harrison Bronson, A. A. Bruce.

University of Pennsylvania Law School: William E. Mikell, Crawford D. Hening, James T. Lichtenberger, Ralph C. Baker, William Draper Lewis.

University of Southern California College of Law: Earl K. Backus. University of Texas Department of Law: B. D. Tarlton.

University of Wisconsin Law School: H. S. Richards, W. U. Moore, E. A. Gilmore, John B. Sanford.

Washington College School of Law: E. B. Osborn.

Western Reserve University Franklin D. Backus Law School: Alexander Haddon, Homer H. Johnson.

Yale University: William R. Vance, Arthur L. Corbin, Henry Wade Rog

ers.

of Law

By WILLIAM R. VANCE Professor of Law, Yale University

The work of the Law School in the American university is now so fully established in public estimation that it is fitting that this Association should seriously consider what is the ultimate function of the teacher of law as a factor in the complex scheme of our social organization. The primary and recognized function of the law teacher is to give to his students such technical training in the law as will prepare them for efficient

service at the bar; and this is to be accomplished principally by teaching them to reason accurately in terms of those rules of law and procedure that have been laid down by the courts in the United States and England. The secondary function of the law teacher, and that which will ultimately prove to be of no less importance, will be to serve as an efficient agency in bringing about the wise, comprehensive, and prompt adaptation of our law and procedure to the new and changing needs of society. It is the purpose of this address to discuss this secondary or ultimate function; but in order to do so it will first be necessary to consider those circumstances in the development of our system of legal education that gave rise to the segregation of teachers of law as a class.

In early days young men just grew up into the legal profession, somewhat after the fashion of Topsy. It is true that they usually entered the office of a friendly attorney, who was supposed to direct the student's

reading in the meager library possessed by lawyers of that time; but it is probable that in the great majority of instances the direction was perfunctory, and the student was compelled to educate himself. George Wythe complained that he was wholly neglected by his instructor, and considered the time spent in his office wasted, while Joseph Story wrote that, when he went to read law in the office of Samuel Sewall, of Marblehead, that excellent man put into his hands for reading "Coke on Littleton," and left forthwith for Washington to enter upon his duties as a member of Congress. At first Coke was too much even for Story, for we are told that. after a day spent in a fruitless attempt to read with understanding that truly dreadful book, he sat himself down and wept bitterly. If such was the experience of the patient and incredibly industrious Story, we shudder to recall what must have been the sufferings of the less gifted law students of the day. Pat

rick Henry did not even go through the form of reading under an attorney, but wholly without assistance contended with Littleton's Tenures and a volume of the acts of the Virginia General Assembly for a period of six weeks, after which he secured admission to the bar of which he afterwards became so conspicuous an ornament.

Indeed, the biographies of lawyers of this early day show clearly that the ceremony of admission to the bar had little relation to the candidate's existing knowledge, but turned rather upon a rough estimate formed by the examining committee as to his capacity to qualify by the time he might be able to secure clients. This appears clearly in the account given of the examination of Patrick Henry. All of his distinguished examiners were agreed that he had no knowledge of the law, but only one of them, George Wythe, refused to sign his certificate of qualification, and that on the ground that he had not sufficient ability either to learn or practice the law.

The earlier law schools, like those of Judge Reeves, at Litchfield, and of Judge Tucker, at Winchester, Virginia, and even the more scientifically conceived one at William and Mary were essentially personal in their nature, not unlike Mr. Tidd's class in London (whither the desire to master the intricate details of pleading turned young Jock Campbell, just entering upon the career that set the friendless Scotch boy upon the woolsack). Here a lawyer who was proved to possess the gift of teaching was sought out as instructor by a score or so of young men, who thus as a class obtained better instruction than would have been the case had they been distributed among as many separate offices. It was still the old method of preparing for the bar by reading in the office of an attorney, advanced one step towards greater efficiency; the teacher's efforts being actuated partly by his desire to help worthy young men forward to the realization of their ambition, and partly by the fees paid by his pupils. The conviction was deep-rooted in the profession that reading in an office was the only practical method of qualifying for the practice of the law. The idea of institutional training in the law as a science, as one of the activities of the college or university, was so foreign to the professional mind that even Sir William Blackstone's elegant and luminous lectures at Oxford could not render it popular in England. In this country the attempts made by the University of Pennsylvania, in 1790, and Columbia College, in 1793, to establish and maintain courses of instruction in law were total failures, though they were able to command the services as professors of such men as James Wilson and James Kent. Nor was the effort of Harvard University, made in 1817, much more successful until Justice Story brought to it, in 1829, his great name and great

learning, and, better still, his indefatigable industry and kindly interest in the young men who gathered about him. The law school established at William and Mary College, in 1779, and that inaugurated at the University of Virginia, in 1824, were rather more successful, on account of the enlightened state of opinion in that commonwealth, due to the leadership of the remarkable group of able and cultured lawyers which glorified the first half century of Virginia's history as a state.

While the practicability of preparing young men for the bar in law schools, conducted as parts of University organizations, was thus slowly being demonstrated in a few more favored educational centers, the very great majority of young men were still reading for the bar in law offices, and the few law schools that sprang up in various parts of the country were little more than groups of students gathered in the offices of lawyers, whether in practice or on the bench, who had the gift of teaching.

But even in the best law schools, those incorporated within institutions of higher learning, there was scarcely a suggestion, prior to the Civil War, of the formation of a class of teachers of law, as distinguished from those lawyers engaged in practice. It was taken for granted that the law teacher must be one who had achieved eminence at the bar or on the bench, and that he should give to his students such time and thought as the demands of his practice or of his judicial office would permit. There were a few instances in which the incumbent of a professorship of law withdrew from practice, as at Harvard and the University of Virginia, but such withdrawals were rather from necessity than from design. In other words, the idea still persisted that a young man should qualify for the bar by reading under the direction of one actively engaged in the administration of the law.

The quarter century following the Civil War is an interesting period in the history of legal education in America. First, it saw a marked increase in the number of law schools and of the students attending them, due to a growing recognition of the superiority of the training received in the law schools over that had in law offices. Secondly, it gave rise to the night law school, sometimes established and maintained by men eminent at the bar or on the bench, with the generous intent to afford opportunity to young men of ambition and ability, but without financial resources, to secure a legal education, but often as a commercial enterprise, intended to add to the incomes of those engaged in promoting and conducting it. Thirdly, the most important event of the period was the slow emergence of the teachers of law as a separate class among lawyers. Many different conditions conspired to bring about this result. The most obvious cause is to be found

in the fact that many of the new State Universities, located in small communities, in which no considerable legal business was to be had, established departments of law and called to the professorships distinguished retired jurists, who were quite content with the dignified ease with which they occupied the teacher's chair, or practicing lawyers, who, in the university town to which they were compelled to remove, found themselves marooned in a desert place, not fruitful of litigation.

A more significant reason for the differentiation of the law teachers as a class from those practitioners giving instruction incidentally in law schools, lies in the fact that slowly came to be recognized by the profession and the public generally. The instruction given by those men who, like, for instance, the great Virginia teacher, Professor John B. Minor, devoted twelve hours a day to the task of learning what is, in truth, the law, and how to teach the law so learned, was far superior to that given by equally able and conscientious men who could give to the heavy task of the teacher only such bits of time as could be snatched from the exacting demands of a large practice. The result was that the law schools employing only practitioners as teachers inevitably began to lose standing, and the pressure to call in men who were willing to devote all of their time and interest to the work of teach. ing became too great to be withstood. But the real determining cause of the development of the class of law teachers lay deeper than either of the considerations just mentioned. It is to be found in the peculiar character of American case law. It is far more difficult for the lawyer in any American state to determine what is the law governing a doubtful question than for his English brother. In England there is substantially but the one jurisdiction, and the one court of last resort. A decision of a higher court, once rendered, stands as the law for the whole land, unless it be reversed on appeal. But not so in the United States. Not only has the lawyer in any state to analyze and harmonize the often discordant and conflicting decisions of the highest court of that state, but he must also bring into his mosaic of "matched cases" the decisions of the federal courts sitting in his state, which, on matters of general commercial law, are not bound even to try to follow the state courts. But that is not all. If his case is absolutely concluded by a previous decision exactly in point in his state appellate court, he may rest with a mind easy save for the faint fear that his precedent may be overruled. But if his precedent is a little "off center," he may expect it to be distinguished away by reasoning drawn from similar, but conflicting, cases found in any one or more of fortyfive other states, or even in England or Canada. And if there are no precedents in his

own state clearly applicable to the case at bar, in supporting his contention, he is, in sporting language, up against the whole field.

Under such circumstances, in the search for authorities, state lines are not very broad. In a very wilderness of inconsistent and perplexing decisions rendered in almost a half hundred jurisdictions, he must first find the cases that are pertinent, and then he must by a process of pure reasoning sift out those cases that are well reasoned from those that are not, and make manifest to his court the correctness of his conclusions. But even this is not the whole of his task, difficult as it is. Aided by steam and electrical communication, commercial and industrial conditions are changing with a rapidity before undreamed of. Lord Bowen Isaid that the law follows business. But the law is a notorious laggard. If business has greatly increased the speed of its progress, and the law keeps its ancient and slow pace, the interval of its lagging will become disastrously great. Therefore the law must quicken the pace of its development. The business interests, armed with arguments based on great economic truths, are pressing hard on the courts. The lawyer must know and appreciate these business interests and economic truths, and so present them to the court that the ancient rules of law may be applied to modern industrial conditions in such a manner as to be consistent with the great economic principles and not in opposition to them.

It is clear that the task of the lawyer is a heavy one. No rule of thumb will help him. No statement in a text-book, whether in black-letter or italics, will answer his need, nor will any general principle of law that may have fallen, however eloquently, from the lips of a distinguished lecturer. The only help for our lawyer lies in his capacity to reason accurately and convincingly from fixed precedents. Hence there. slowly arose a recognition of the fact that that law school did most for its students which taught them to think clearly and accurately in terms of settled legal principles, to analyze, test, and weigh precedents under the fierce light of reason, and trained them in the art of applying old principles to new states of fact.

Mr. Langdell had appeared on the scene at Cambridge, and had demonstrated that law should be taught inductively, as well as any other science. His views and his methods have spread over the land, until it is difficult now to find a place so remote from the strong current of educational thought as not to recognize that the mere imparting of information as to rules of law, however important that may be, is but secondary to the chief work of the law teacher in training his pupils how to think clearly along legal lines.

Recognition of this as the proper function

of the teacher compels the lawyer in the law school to make his election as to whether he will serve his clients or his students. He cannot serve both as they should be served. If the law is a jealous mistress in the courthouse, she is a veritable tyrant in the modern law school. The teacher who endeavors to teach properly courses extending over seven or eight hours a week by the so-called case system may spend all of his possible time in preparation, without any regard whatever to union limits, and yet feel no little trepidation as he faces a class of fifty or a hundred bright young men who have spent hours in reading, comparing, and discussing the cases on the subject-matter of the lecture, and who have been trained to demand the reason why.

By the process thus described there has been developed, and now exists, a very considerable body of lawyers whose time and thought are primarily devoted to the teaching of law, and who may well enough be called professional teachers. There are many other able and admirable men, lawyers in practice and judges on the bench, who lecture more or less in law schools to the distinct profit of the students. There are many of them who, undoubtedly, are induced to do so by the highest motives, and I would guard myself against being thought to disparage the value of their services to legal education. But in the nature of things they cannot find the time, even if they can command the intensity of interest, necessary for the kind of work now expected of the class of professional teachers. Again, by way of precaution, I should state that all recognize the fact that there are dull, lazy, and inefficient teachers of the professional class, whose work is in every way inferior to that of the occasional lawyer, who brings from his busy office to the classroom such a brilliant mind, coupled with a genius for teaching, that his lack of time for classroom preparation is offset by his unusual natural endowments. But it is of the class of professional teachers that I wish to speak further.

With the recognition of the law teacher as a lawyer withdrawn from practice and its emoluments, and of the university law school as a place where the law is scientifically studied and taught for the good of the state rather than for the commercial gain of the teachers, the administrative authorities of our great universities are beginning to regard the law school in a different light. Heretofore, with but few exceptions, the law school's connection with its university had been little more than nominal. It was regarded rather as an affiliated, independent school than as an integral part of the general scheme of higher education, and as such it was expected to pay its own way from the fees received from students, and was not allowed to share

in the income from endowments of privately endowed institutions, or in the appropriations made for the maintenance of state universities. Indeed, such is still the attitude towards the law school in many institutions.

But a marked change is in progress. Quite a number of the law schools of privately endowed institutions have now received separate endowments, or are allowed to participate in the income from general endowments, and in many of the state institutions the law schools are no longer expected to support themselves, but are maintained by the state in the same manner as other important departments of the university. The result of this changed attitude, in relieving the law school of the necessity of earning each day its daily bread, has been to improve greatly the methods of instruction and standards of scholarship, and to add greatly to the dignity of the law professorship. Salaries have been increased, not, it is true, to such an extent as to compare favorably with the income of successful lawyers in practice, but yet so as to provide a fair livelihood, and so to render professorships attractive to such of the abler members of the profession as may chance to possess scholarly tastes and the teacher's gifts and temperament. But, most important of all, with the banishment of the pernicious idea that each teacher must earn his keep in the fees paid by the students that sit under his instruction, there has arisen a tendency to lessen the number of hours of instruction required, and to recognize the fact that in effective study and research in the nature and history of the law and its present state he is rendering a valuable service. It is in this latter tendency that we see hope of the development, on the part of law teachers, of a function of the first importance to the profession of the law and to society at large.

That there is widespread discontent with the state of our law is beyond question. That our system for the administration of the law is not working as well as we could wish is evidenced, not only in the reported cases that now fall upon us "thick as leaves in Vallambrosa," but in every daily newspaper that one may take up. The meaning of it all is that many of our rules of law, that were sweetly reasonable when applied to the conditions that gave them rise, now no longer fit when those conditions have radically changed. Our law has lagged too far behind our business-is too little suited to the needs of an advanced society. In some of our states there exists in a flourishing condition in this year of grace 1911 rules of law five hundred years out of date -as, for instance, the rule in Shelley's Case (or the legal theory of rents, which has, however, been so covered over with a statutory crazy quilt, that we get on with it

very comfortably). There still exists in our law rules that were unreasonable at the time of their origin, and are even more so now-as, for instance, the doctrine of warranties in insurance law, and the so-called rule in Spencer's Case, both now badly battered by statutory assaults. The call for law reform is heard from every corner of the land. All the bar associations pass resolutions about it, and appoint committees, the labor unions insist upon changes, and, it is said, the "malefactors of great wealth," and those other "undesirable citizens" who once rejoiced in the proud title of Captains of Industry, occasionally gather in some secluded office in Wall Street, and utter a whispered prayer for a change in the laws.

But, granting that it were a good thing that our substantive law were better adapted to our present industrial and commercial conditions, and our procedure so reformed that the vexatious delays and miscarriages of justice that too often distress the unfortunate litigant would give place to speedy justice, yet how are we to go about securing the wished-for betterment? It is perilous to change isolated rules without careful regard given to the indirect effect that will be produced upon other parts of our complex and extensive legal system. The state legislatures are always busy applying statutes here and there, but such patchwork rarely improves the appearance of the "seamless garment of the law," and sometimes fails to make it fit any better. Bentham and his followers thought the remedy lay in clear statement; but codification has not brought legal salvation. The clear statement of a rule that is unsound or unsuitable, economically or sociologically, will not prevent the rule in operation from working mischief to the body politic.

In latter days many people and some political leaders have sought to go to the root of the difficulty by holding a bludgeon over the judges designated to administer the law, and by the recall to discharge ignominiously those judges who enforce the law in such a manner as seems to the people unfit. Under the recall one would be uncertain whether to feel more sorry for the judge who is sworn to administer the law of the land, and yet must be retired in disgrace if in so doing he renders a judgment that seems to the populace unjust, or for the poor lawyer, who, in advising a client, may have to balance the shifting state of an unsettled public sentiment against the fixed unreason of a settled rule of law.

But it is clear that there is only one class of men who can perform this necessary task of adapting the law, our corpus juris, to the needs of society under existing industrial and sociological conditions. It must be done by the lawyers. But, having reached this conclusion, we are met with another difficulty that seems heretofore to have

proved fatal. The successful accomplishment of this work of adaptation will require intellectual ability of the very highest order, and wide and balanced learning in a field as broad as our social organization itself and as varied as human activities and interests. It will also demand immense labor, involving the expenditure of much time in research, in comparing, restating, remolding, and readjusting our conceptions of the right and wrong of social and industrial relations, and our notions of the procedure by which the right is to be upheld and the wrong prevented. And with it all is the ever-present necessity of maintaining the continuity of the great current of the law that has come down to us through the centuries, swelled to an ever fuller tide by the successive judgments of the generations that have gone before, embodying their conceptions of what is right, and of the procedure by which the right is best preserved.

What lawyer, or set of lawyers, engaged in active practice, can be expected to assume the burden of such a task, with full knowledge that their compensation will be found only in the consciousness of a valuable service rendered, but not paid for? The practicing lawyer, who has the ability, the learning, and the sound judgment of affairs necessary to the accomplishment of this great work of adaptation, is sought by many clients, bearing shining fees in their hands. He naturally undertakes their business. He must keep up with the hurrying procession of lawyers that press on to leadership at the bar. Having become attorney for his clients, he cannot be false to the trust they have reposed in him. He must conduct their affairs properly, and in so doing his time and his strength are consumed. It is not reasonable to expect him to turn his back on his clients, to pause on the open road to fame and fortune, in order to take up the doubtful cause of so impersonal and ungrateful a client as Society at large. And he has not done it. We should pause here, by way of fairness, to say that lawyers as a class have no less of public spirit than other men, and to note that many honored men have made themselves exceptions to this broadly stated rule by devoting much time to the unremunerated service of the legal profession and of the public. In the small class of philanthropists of this order one naturally thinks first of the late David Dudley Field; and among the living it would be possible to mention other great lawyers who have given nobly of their time and labor in advancing the interests of the public in the better administration of the law. But such workmen are too few, and their opportunities too restricted, for the achievement of so great a labor.

But who, then, is to do this work, crying so loudly to be done? Not those lawyers in practice who have much unused time be