« ForrigeFortsett »
parative study of procedure; and this study which need demand but little of the student's time, might easily and should be so directed as to instil in students an intelligent desire, and a purpose to work, when admitted to the Bar, for reform and at least something approaching uniformity in procedure throughout the country.
As to improving the organization of our courts, the law schools as such probably cannot have as great influence as in other matters. Law schools may give impetus to such a movement, but the dominating influence must proceed from the Bench and the Bar. Comparative studies in court organization and other contributions by law teachers to the literature of the subject may, however, be of the greatest value. We have already had some instances of good work in this field which will prove a fruitful one for further study. Moreover, there is a growing feeling among. law teachers, that at the outset of the course, students should be given more systematic instruction in the history, organization and jurisdiction of courts, and either then, or more properly perhaps, in the senior year, there might well be given a few lectures, setting forth the powerful influence exercised by court organization upon procedure and upon the achievement of justice itself. A graphic comparison, in such a course, between the centrally administered, simple, business-like and efficient reformed judicial system of Great Britain, and the cumbersome, disjointed, uncontrolled systems prevailing in most of our states would certainly produce a profound impression upon students. We need not go beyond our own borders for helpful models of judiciary organization. The Municipal Court of Chicago, with its responsible, supervisory head, its simple procedure, its branches to serve special needs and localities, its bureau of information, its statistical records, is and long will be (unless the quality of its judges, and through them its general efficiency is impaired by the imperfect scheme of primary elections there prevailing) a shining example of the adaptability, the quick dispatch of business, the efficiency and the general satisfaction-giving results of an organization carefully designed to meet contemporary and not mediæval conditions. If the facts and their consequences ascertained by such
comparative studies as I have indicated should be given in some effective way to the students in all our law schools, can there be any doubt that the demand and the movement for better organized court systems would soon receive powerful and well-directed stimulus from the newer generation of lawyers?
In the investigations into the history of law, which it has promoted, in the development of the historical method of study the American law school has done much to give to many lawyers a conception of the basic fact that law has always been a changing thing, and of that other fact, more difficult of a realizing application, that it must continue to change as long as society lives. Thousands of lawyers imbued with these ideas have gone from our schools to the Bar, during recent years, but they have become absorbed into the much larger mass of lawyers, more dogmatically . trained and inclined. In the contact with this larger mass and with the commercialism now so prevalent, many of them perhaps have lost their ideas and their ideals of a truly adaptable and serviceable law. At any rate, the dogmatic, the narrowly legalistic view still too strongly prevails, and the dogmatists still maintain their claim of guarding the temple of justice. Their obstinate resistance, their cramping of the streams of justice, are largely responsible for the turbulent and turgid mass of ill-considered, carelessly drafted, inconsistent and often dangerous legislation which our courts and society in general are vainly endeavoring to understand, apply and assimilate. The gospel of a living, growing and ever refining law must still be taught, and if possible more effectively taught, if the Bar would retain its traditional hold upon legal institutions. Granted that present improved methods of legal instruction have not yet had time to accomplish their complete potential effects, it is still worth while to inquire if we may not increase their effectiveness in teaching a law which shall be supple as well as tough. Whether this be possible for the law school alone, certainly it is a proper function for the university as a whole. To quote a philosopher who has had his attention attracted to juristic problems:
"The task of bringing the new economic and social sciences into legal doctrines is quite as evidently laid in large measure
upon the university, which will thus follow in the line of the church, the customs of merchants, and the legislation of the last century as liberalizing agencies for the common law. And another influence may be expected to flow from university contacts. One source of strain in the accommodation of law to present needs, we are told, is that lawyers on the whole still appear to hold, consciously or subconsciously, that principles of law are absolute, eternal, and of universal validity.' Philosophers have frequently held the same thing about morals. But the spirit of a modern university, quick with inquiry, seeking the origins of suns and atoms and organic life, of language, customs, government, morals, and religions-this spirit must prepare the future lawyer and jurist to say with Kohler: There is no eternal law. Law must adapt itself to constantly advancing civilization. This civilization it must aid, not hinder or repress.'
But the efforts of the university to accomplish this task can have little, save indirect, influence. The university even yet reaches too few law students, and the "new economic and social sciences" are not brought into direct relation with legal doctrines. Law is then superimposed upon the college structure, in an educational stratum so segregated and differentiated from what has preceded it in the student's mind, as to resist, if not to dissipate, its liberalizing influences. A few universities have endeavored to avoid this result by coalescing and telescoping the so-called liberal with law studies in the combined arts and law courses. But it cannot be said that this plan has met with conspicuous success. In the first place, it affects but a small proportion of even those who go to the Bar through our law schools. Moreover, in the university with which I am most familiar, and I believe the experience elsewhere has not been materially different, the beginning of law studies in the second or third year, and continuing the liberal subjects into the fourth and fifth year, has not produced important liberalizing effects which are apparent, and on the other hand it has seemed to impair that efficiency in law work which is and must continue to be a prime desideratum. On paper the plan seems a promising one, though
Tufts. The University and the Advance of Justice, 5, Univ. of Chi. Mag. 193.
there are two obvious and related objections to it. It brings the student to the study of fundamental divisions of the law, with a year or two of less intellectual maturity than does the older plan, and during a period when the side show activities of college life, by natural associations, seriously impair the earnestness of purpose of the average student at least. Nevertheless, perhaps a longer trial, or the further application of the dove-tailing of liberal and law studies, may yet prove the value of this plan. While under present conditions it can affect only a small proportion of all law students, those few may be enough to leaven the lump.
A few schools have recently begun the effort to accomplish this same liberalizing effect by the introduction of courses in jurisprudence, Roman law, the history and philosophy of law, for advanced students. The men electing these studies are usually looking forward to teaching careers, and there can be no doubt that they will thus acquire a breadth of view and a more comprehensive grasp, which will inure in turn to the benefit of their students. Any immediate or direct effect upon the Bar is scarcely to be looked for. It has been argued that putting work of this character in a fourth year comes " dangerously near to inverting the pyramid," at least for prospective practitioners. Granted that there is strength in this argument, the well-nigh conclusive answer is that until a student has acquired some mastery of a single system, such as the common law, jurisprudence and legal history are practically meaningless to him.
If the law course could be properly lengthened to four years, the problem might be solved by telescoping these extra-legal subjects into the regular law curriculum. And despite the fact that economic and social considerations make it highly desirable that we decrease rather than increase the age at which our students may go to the Bar, yet the growing pressure from the expanding bulk and new extensions of the law will almost surely force the four-year course upon us, if some other solution of the difficulty is not found. It is freely conceded that students who have received sound training in the greater part of the law may "work up" the remaining part for themselves, but it is submitted that many of them will never do so with distinct success. The students
in a number of our leading schools are unable, under present conditions, to cover in the three-year period several of the regular, important courses offered in the curricula. This cannot but be in some measure unfortunate. That students are of this opinion has become apparent to us at Michigan in the growing tendency of many of our best men to enroll in our summer sessions, not for the purpose of shortening their period of preparation, but to pursue under instruction subjects which otherwise they could not take in course.
The removal or amelioration of the fourth defect in our jurisprudence, its lack of co-ordination and of system would go far to solve all of the law school problems which we have been considering. In this matter of fundamental importance, perhaps our schools have been doing all that they can effectively attempt. The brilliant work of Langdell, Cooley, Ames, Williston and Beale and others whose names readily occur to us, in restating accurately many branches of the law, and in impressing their views upon thousands of prospective lawyers, has been an indispensable and most productive step in the evolution of an integral system of common law.
The day of corpus juris is, I fear, far distant. A great deal more of the kind of work just referred to must be done in other topics of our law; the enlightening work of historical exploration, as outlined or at least suggested by Thayer in his essay on the teaching of English law, must be more nearly accomplished before we can safely venture to codify. But perhaps something more toward the realization of that hope may be profitably undertaken by law schools. Mr. Cook's paper read at our last meeting, the discussion by Messrs. Schofield and Williston, and the paper by Mr. Hohfeld in the June number of the Michigan Law Review touched upon a proposal which may well be a preliminary step in the systematizing of our law. It is to be hoped that we may have further discussion, enlightened by experience, as to the teaching of equity. In the picturesque language of Mr. Kales, has the new cock proved its ability to fight?
Other fields of law afford at least equally inviting opportunities for a redistribution of topics. Perhaps this is particularly true