« ForrigeFortsett »
of public law. We are now giving courses in constitutional law, the law of public officers, of public corporations, administrative law, taxation and federal courts, with much of unnecessary overlapping and perhaps some gaps. The greater part of the courses in federal courts and taxation could be thrown into constitutional law, and a new course entitled " public law" might absorb all of the other topics named. Damages, quasi-contracts, conflict of laws might be distributed into contracts, torts and other subjects. These suggestions are made rather to raise the question of their advisability than to attempt to answer it now. It is not a clear case. There is some possibility that the process carried out would prove to be not much more than a substitution of horizontal for vertical sectioning. It would be a manifest mistake to abandon settled nomenclature and well-understood classification, unless clear gains can be made thereby in other respects, and there is at least distinct pedagogical advantage in having descriptive labels for the various topics of the law, provided the description conforms to the fact. The one important question is, Is there a possible rearrangement of the subjects now taught, which would tend to produce a more systematic knowledge on the part of students, and indirectly and ultimately an approximation to a genuine system of law? The question cannot be answered empirically.
The development and expression of an integral legal system will require an ability to perform constructive work, which the training of our law schools does little to produce. Our students are taught to analyze and criticize and refine, but they do little in the way of generalizing or of synthesis. It is true that critical analysis must precede any sound constructive or reconstructive work with pre-existing materials. The point is that we stop short of the latter steps. Constructive power must be perfected in the work which comes after formal education, but is it not possible that some impetus and some training in such work could be given in the schools? The writing of theses has not been productive of great results and has been abandoned in most of our schools. Perhaps with the adoption of higher educational requirements, and the increasing intellectual maturity of our students, the thesis in a modified form may be reintroduced to advantage.
Herein lies another of the benefits of a properly conducted practice court, for the development of the theory of a case, the preparation of briefs and arguments does require constructive effort. Of course the danger is that the result may be too strongly tinctured with advocacy.
The last of the grounds of complaint against the administration of law in this country is the inefficiency of the Bar as a whole. This is due principally to the fact that as compared with the legal profession in England, Germany and France, and with the medical profession in our own country, we have been content with, indeed have insisted upon notoriously low standards for admission to the Bar. The causes of this unfortunate fact are to be found in the conditions under which the profession of law had its early development in this country, and to the survival of certain early prejudices, clustering around the absurd belief that any American, with or without training, can successfully do anything, and that to require adequate education, general and legal, is to close the door of opportunity and is, therefore, undemocratic and unAmerican. The result has been altogether too much incompetence and slovenliness. Against this state of things the American law school has always fought with varying degrees of vigor, courage and skill. Of late years it has exerted powerful influence in this direction. But on the whole it has been too timid in pressing its views, in insisting on what it knew to be right. This timidity has doubtless been due in part to the consciousness of law teachers that they have not possessed the entire respect of the Bar, a respect it must be admitted which they have not always deserved. In the days when law teaching was mainly a by-product of practitioners, and when the law school was a refuge for lawyers who could not win success in practice, or for retired judges and attorneys, who desired to spend their declining years and waning powers in a respectable and dignified retreat, there was really no great reason why the Bar should give much heed to the opinions of such teachers. But with the rise of a class of professional law instructors, devoting their time and energy to the work of legal scholarship, the condition has rapidly changed. The demonstrated efficiency of the graduates of our better schools, and the
scholarly and very practical contributions of law teachers have achieved their natural conquest, many evidences of which were referred to earlier in this paper. The time for more assertiveness has come. The Bar is in need of all the help it can get, and it is my experience that with entire friendliness it is looking to the law schools for leadership along the lines which we have been traversing tonight.
That the teaching, practice and administration of law are not matters of common right, but privileges existing only for the benefit of the state and therefore to be granted only upon such conditions and subject to such supervision as the state may impose, are self-evident propositions, which, nevertheless, are too often ignored in practice. I believe it to be the duty of law school men, even in the face of misconstruction of their motives by interested or prejudiced persons, courageously to maintain these propositions, and in Bar Associations, state legislatures and elsewhere, to work for their actual acceptance in all schemes for admission to the Bar.
Law schools, it seems to me, and especially state law schools, perhaps, have duties in addition to the pursuit of scholarship, and the teaching of students who seek their instruction. They should seek to exercise a direct influence upon legislation, rules and conditions relating to admission to the Bar. They should by appropriate means oppose the acceptance or retention of standards lower than the highest which may be practicable in our several states, considering all of the conditions obtaining. This certainly means, for the majority, if not for all of our states, the exclusion from accepted methods of preparation for the Bar, mere office study or work in correspondence schools or others run primarily for revenue and at the expense of sound training. It is idle to say that this would exclude from the Bar worthy men. Even if this assertion were true, the fact that the practice of law is a quasipublic function, which must be regulated in the interest of the state, is conclusive. Where necessary the desire of the individual must yield to the welfare of society. But I deny the premise. In these days of public schools, colleges and law schools numerously dotted over the length and breadth of the land, no man capable of
achieving distinct success and usefulness at the Bar need gɔ without a reasonably good general and legal training. Moreover, the claim that there is need of an inferior grade of lawyers trained by cheaper and ineffective methods for rural or unimportant law business is equally fallacious. There is no need of poor lawyers anywhere. The market is glutted.
I am aware that these suggestions contain no new philosophy of law, no proposals of radical innovation in legal education. They urge but a careful scrutiny of our existing methods with a view to possible improvements, a change of emphasis here and there, and the exercise of a more aggressive and extensive influence by law schools and law teachers in legislation, particularly in efforts to codify, to systematize or make uniform our law, and in relation to standards for admission to the Bar. But only by such step-by-step processes, by changes based upon experience, study and analysis, do most institutions endure, prosper, and with increasing effectiveness serve their proper functions. And certainly this must be particularly true of any establishment which would serve the English common law. By such means, revolution is not accomplished, but rather the less wasteful, the more enduring processes of evolution. If the prospectus of law school men lacks dramatic thrills, there is in it, however, the greater satisfac tion which comes from facing a task which is long and difficult and of vital importance to society.
EDSON R. SUNDERLAND,
Criticism of the law, the courts, and the legal profession is one of the popular customs of the day. So constantly and so insistently are we told of the shortcomings of the Bench and Bar that it is hard to hold one's footing against the sweep of the current. One might well suppose from all the clamor that the ancient respectability of the law had suddenly been discovered to be a monstrous pretense-a fraud on the innocence and trustfulness of the people, a cloak for injustice and a mask for oppression.
But the whole phenomenon is simply an instance of the overemphasis which always characterizes the human attitude. And this is not to be deprecated, for only in that way can social inertia be overcome and the impulse toward reform be given the necessary momentum.
Progress is an alternating, not a continuous, movement. In all phases of life a period of hopeful activity is normally succeeded by a period of critical retrospect. We push ahead with our work and our plans until something goes wrong, and then we stop, try to diagnose the trouble, revise our program in the light of our experience, and go on again along new lines. This ebb and flow of thought and action is characteristic of life. Hegel, the greatest philosopher of modern times, found in it a basis for a theory of metaphysics in which he exhibited the world as a systematic selfdevelopment through the agency of this inherent tendency to intermittent movement due to the experimental nature of all rational progress. Such a philosophy is full of the sparkle of optimism, for it turns our mistakes into indispensable stepping stones to better things.
We are now in the midst of a critical stage in this process of social self-development. Things have not turned out as well as