The History of First Century American Legal Education: A Revisionist Perspective

Washington University Law Review Volume 59 Issue 3 Legal Education 1981 The History of First Century American Legal Education: A Revisionist Perspective Charles R. McManis Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview Part of the Legal Education Commons Recommended Citation Charles R. McManis, The History of First Century American Legal Education: A Revisionist Perspective, 59 Wash. U. L. Q. 597 (1981). Available at: https://openscholarship.wustl.edu/law_lawreview/vol59/iss3/2 This Symposium is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact . THE HISTORY OF FIRST CENTURY AMERICAN LEGAL EDUCATION: A REVISIONIST PERSPECTIVE CHARLES R. MCMANIS* With little apparent fanfare, American legal education is entering its third century.' The lack of fanfare is hardly surprising, for contemporary legal educators seem only dimly aware of the first century of American legal education. The irony of this state of affairs is that the third century of American legal education will likely bear a greater resemblance to the broad model of legal education that held sway at the beginning of the first century than to the narrow model that came to predominate in the second. In order to create and maintain a rigorous system for training lawyers, legal educators during the past century have felt obliged to take a narrow view of legal education. The subject-matter of law study has primarily been case law and the judicial process, with less concern for legislative or administrative law and processes or the study of extralegal materials. Likewise, the methodology of law study has consisted primarily of analyzing appellate judicial decisions in order to inculcate basic analytic skills, with far less concern for either applied skills training or the empirical or humanistic study of law. Finally, the objective, and hence the structure, of American legal education has been devoted largely to providing training for those seeking to enter the private prac* Associate Professor of Law, Washington University School of Law. B.A., 1964, Birmingham-Southern College; M.A., J.D., 1972, Duke University. The author gratefully acknowledges his debt to Barbara M. McManis, B.A., M.Ed., J.D., an attorney for the Monsanto Company, whose research on the first century of American legal education provided the inspiration for this article. The author also acknowledges the invaluable research assistance of Mark Hochman and Thomas Lammert, students at the Washington University School of Law. I. Whether American legal education has already or is merely about to enter its third century depends on how one chooses to define the term "legal education." The first academic law professorship, providing general as well as professional legal education, was established in 1779. See text accompanying notes 74-77 infra. The first proprietary law school, devoted solely to the training of lawyers, began in 1782. See text accompanying notes 128-34 infra. Thus far, the bicentennial of American legal education has received little notice. For one of the few explicit references to the coming third century of American legal education, see McKay, Legal Education, in AMERICAN LAW: THE THIRD CENTURY (B. Schwartz ed. 1976). The McKay article, however, was marking the bicentennial of the American Revolution, not the bicentennial of the founding of American legal education. Washington University Open Scholarship 598 WASHINGTON UNIVERSITY LAW QUARTERLY [V/ol. 59:597 tice of law, with far less concern for the training of public officials and administrators and virtually no concern at all for nonprofessional legal education. Law schools in the United States, in short, are not "law schools" at all but "lawyer schools," whose curricula are heavily weighted in the direction of providing basic analytic skills training for those who intend to engage in the private practice of law and, more specifically, to represent private interests before judicial tribunals.2 Credit-or blame-for the development of the narrow professional model of American legal education has traditionally gone to Christopher Columbus Langdell, Dean of the Harvard Law School from 1870 to 1895, who at the outset of the second century of American legal education introduced what eventually became its hallmark-the "case method" of law study. While the case method has been the subject of constant criticism and debate since its introduction in 1870, Langdell's innovation is generally viewed as "the '3most significant event in the evolution of American legal education." One unfortunate consequence of the prevailing narrow model of American legal education, however, is that legal educators have tended either to neglect their own history' or to perceive it "largely through the lens of present professional concerns and assumptions."' A careful examination of the first century of American legal education will reveal that the narrow view of academic legal education was in fact developed 2. The narrow professional model of American legal education stands in marked contrast to continental European legal education. See, e.g., Merryman, Legal Education There and Here. A Comparison, 27 STAN. L. REV. 859, 865-66 (1975): "[L]egal education in the civil law world is, at bottom, general education, not professional education .... Law is merely one of the curricula available to undergraduate students .... The professional side is taken care of after the university." 3. A. HARNO, LEGAL EDUCATION IN THE UNITED STATES 59 (1953). A similar view is implied in the title of a more recent history of American legal education. Stevens, Two Cheers /or 1870: The American Law School, in LAW IN AMERICAN HISTORY (D. Fleming & B. Bailyn eds. 1971). 4. Robert Stevens noted as recently as 1971 that little has been written about the evolution of American legal education. That hiatus, Stevens points out, is but one aspect of a phenomenon many have noted-the absence of a developed literature on American legal history. Stevens, supra note 3, at 406. See also D. BOORSTIN, THE AMERICANS: THE NATIONAL EXPERIENCE 444 (1965); G. GILMORE, THE AGES OF AMERICAN LAW 102-03 (1977); Murphy, The Jurisprudence of Legal History. Willard Hurst as a Legal Historian, 39 N.Y.U. L. REV. 900 (1964). 5. W. JOHNSON, SCHOOLED LAWYERS: A STUDY IN THE CLASH OF PROFESSIONAL CUL- TURES Xi (1978). See also D. BOORSTIN, supra note 4, at 444 (noting that one explanation for the lack of a solid body of historical writing about the American legal past is the increasing professionalism of American law schools and their "myopic pre-occupation with what is in current demand by practitioners"). https://openscholarship.wustl.edu/law_lawreview/vol59/iss3/2 Number 3] REVISIO (...truncated)