The common law and the case method in American university law schools; a report to the Carnegie foundation for the advancement of teaching online

mm






THE CARNEGIE FOUNDATION
FOR THE ADVANCEMENT OF TEACHING



THE CASE METHOD
IN AMERICAN LAW SCHOOLS



BULLETIN NUMBER EIGHT



1914



THE COMMON LAW AND
THE CASE METHOD

IN AMERICAN UNIVERSITY LAW SCHOOLS

A REPORT TO THE CARNEGIE FOUNDATION
FOR THE ADVANCEMENT OF TEACHING

BY
Professor Dr. JOSEF REDLICH

OF THE FACULTY OF LAW AND POLITICAL SCIENCE IN
THE UNIVERSITY OF VIENNA



BULLETIN NUMBER EIGHT




NEW YORK CITY

576 FIFTH AVENUE



D. B. UPDIKE, THE MERRYMOUNT PRESS, BOSTON



CONTENTS

PAGE

Preface v

Introductory S

Early Methods of Legal Instruction: The Law Office; Lecture and Text-book

Schools 7

Rise of the Case Method 9

The Law conceived of as an Inductive Science 15

The Law as a Practical Profession 18

Shift of Emphasis under Langdell's Successors ; Training the Legal Mind 23

Personal Observations of the Case Method 26

Practical Success of the Case Method ; Contributory Reasons for this Success : Inci-
dental Instruction; Moot Courts; Student Spirit; Clubs and Periodicals â–  29

Essential Reason for the Success of the Case Method; Nature of Anglo- American

Law 35

Accompanying Weaknesses of the Method on the Scientific Side ; Suggestions look-
ing toward Improved Instruction 41

The Improvement of Legal Scholarship and the Promotion of Legal Research 48

True Significance of Langdell's Invention in the Development of Legal Science 54

Importance of the American University Law School for the Future Scientific Devel-
opment of the Common Law 60

Legal Instruction Outside of Universities in the United States and Germany 67

Index 75



PREFACE

The Carnegie Foundation for the Advancement of Teaching administers two endow-
ments. The larger of these is devoted to the payment of pensions to teachers in col-
leges and universities. The income from the second endowment is expended, under
the terms of the gift, in the study of educational questions. This department of the
Foundation's work is known as the Division of Educational Enquiry. It has been the
effort of the trustees and of the officers of the Foundation to take up through this
division, and by means of this endowment, the study of those larger educational ques-
tions which can be best approached from a point of view free from institutional and
local interests.

Amongst the enquiries which have been prosecuted is a Study of Medical Educa-
tion. Two bulletins have been issued, one dealing with medical education in the United
States and Canada, the other with medical education in Europe. The second of these
bulletins was issued in 1912. A report on Education in Vermont was published in
1914. Studies on the Engineering Curriculum and on the Training of Teachers are
in progress.

In 1918 the trustees approved a plan for the Study of Legal Education in the United
States, involving not only an examination of existing law schools, but also of methods
of instruction, of bar examinations, and of the relation of these matters to the quality
of legal practice. The general conduct of this enquiry was entrusted to Mr. Alfred Z.
Reed, who began his work in the spring of 1913. The task has proved a difficult and
arduous one, involving as it does not only a study of the law schools of the whole
country, but also of the methods of bar examinations in forty -nine jurisdictions and
of the relations of the various methods of legal training to the larger problems in-
volved in the practice of the law. Excellent progress has been made in this work. It
has been carried on with the cooperation of many able teachers of law in America
and with the advice of leading practitioners of law; but the amount of material to
be dealt with is so enormous and so complex that a year and a half will probably
elapse before a final report can be presented.

At the outset of this study, one question quickly presented itself which involved
fundamental ideas as to methods of instruction. Teachers of law in the United States
were, broadly speaking, divided into two rather distinct groups in their attitude
toward what has come to be known as the Case Method of Instruction. The extreme
advocates of this system are inclined to look upon it as a finished and perfect thing.
The extreme opponents, on the other hand, can see nothing good in this method of
teaching. The question involved is largely one of educational philosophy and method.
To give an intelligent opinion upon it requires not only practical teaching experi-
ence, but also wide knowledge of the law, a familiarity with its practical administra-
tion, and, above all, a scholarly and broad-minded view of education and its function
in civilization.



vi PREFACE

It seemed clear to the officers of the Carnegie Foundation that it would be difficult
to obtain from any teacher of law or any practitioner of law in America a thoroughly
sound, fair-minded, and scholarly report upon this question. We therefore turned to
England and the Continent to see if some one could be found who would take up this
enquiry in a sympathetic spirit, and who could bring to it the requisite educational
and legal discrimination.

After very careful consideration Dr. Josef Redlich, Professor of Law in the Univer-
sity of Vienna, and member for some years of the Austrian Parliament, was invited by
the trustees to make this study.

Dr. Redlich is well known to English readers as the author of two books — Local
Government in England, published in 1904; and The Procedure of the House of Com-
mons, published in 1907. By his training as a scholar, as a teacher of law, as a prac-
tical legislator, no less than by his knowledge of the English common law and of the
English language, Professor Redlich was admirably prepared to undertake this study.
He had made already a somewhat extended visit to America, in which he had visited
some of the law schools. The trustees of the Foundation felt themselves fortunate that
a man of these qualities was willing to take up the study of this question in so de-
voted and open-minded a spirit.

Professor Redlich came to America in October, 1913, and spent some two months
in the country, in the course of which he attended class exercises in ten law schools.
This group included six of the eight largest law schools in the country, schools which
in respect to numbers, at least, stand in a class by themselves. Of the other schools
visited, three were of approximately half this size, and one was a much smaller insti-
tution. A majority of these institutions, large and small, employed the case system,
at least to a great extent. Four, however, did not employ the case system at all; and
in these four the methods of instruction varied widely and were representative of
those commonly in use. Finally, evening schools as well as day-time classes were vis-
ited by him, schools which were in some instances departments of universities, some-
times only loosely connected with a university, and, in other instances, schools entirely
independent of any college or university connection. Every effort was made, in other
words, to enable him to visit a thoroughly representative list of law schools, the
grounds of selection being completely objective, qualified only by the exigencies of
time and of geographical distribution.

In the course of these visits in different parts of the country, Professor Redlich,
as he explains in his paper, was brought into contact not only with students and
teachers of law, but also with many men of eminence in the legal profession. He took
counsel with a large number of leading judges and lawyers with regard to the varied
problems of American legal education. Perhaps more than any other foreign visitor
who has come to our institutions, he was by this process enabled to apprehend the
different points of view of American teachers of the law and was put in a position
to survey our situation sympathetically and yet from an impartial standpoint.



PREFACE vii

The outcome of this study is the report which is here presented. It is not too much
to say that this paper is worthy of the scholarship and high legal position of its
author. His impartial attitude appears throughout the report. The discriminating
analysis which he there gives, both from the standpoint of the teacher and of the
lawyer, cannot fail to be of the highest value to serious students of American legal
education. It is presented by the Carnegie Foundation as a paper preliminary to the
general report on legal education now being prepared, in the hope that it will receive
a careful and impartial study.

The report cannot be judged from any abstract. It must be read in its entirety to
appreciate both the philosophical reach of its treatment and the attention to legal
technique and to the practical administration of the law which are always included
in its point of view.

Professor Redlich makes clear that the case method cannot be properly appraised
by itself, but must be considered in connection with the entire system of legal edu-
cation in America, and, indeed, with an understanding of American politics and social
ideals. Within this broad field he reaches conclusions which are almost startling in
their freshness and originality. Thus it will doubtless be something of a surprise to
some American lawyers to read that the case method schools are not, in the opinion
of the author, too academic, too "transcendental," as they are often charged with
being, but that on the contrary the success of the case method in training practition-
ers is really its most vigorous quality. Moreover, Professor Redlich finds that the Lang-
dell method is not merely a very practical one in its results, but that it is essentially
empirical, "casuistic," — to employ an old word in a somewhat unfamiliar sense; but
there is no reproach in Professor RedliclVs use of these terms, since he considers the
case method none the less strictly scientific. The grounds upon which he considers it
scientific are not, however, those usually adduced ; and his high commendation of the
method does not prevent him from indicating measures which, in his judgment, are
essential in order to make it fully effective.

Finally, there is food for thought to all interested in this subject in the fact that a
man who makes so much of science as Professor Redlich does, and who finds so little
of science outside of the case method school, can at the same time find other schools
successfully pursuing a quite different aim, and can feel that this aim also is not
without warrant. An attitude like this helps to take us out of our ordinary formulas
and out of the contentious tendency to argue that because such and such things are
true, such and such other things cannot possibly be true. In the law no less than in
other fields of education there are few specifics. To have our institutions pictured in
this bold and vigorous perspective cannot fail to be of the highest value.

The following extracts indicate in a general way Professor Redlich's conclusions
as to the strength and the weakness of the case method of instruction: 1

1 Pages 39, 41, 46.



viii PREFACE

"As the method was developed, it laid the main emphasis upon precisely that
aspect of the training which the older text-book school entirely neglected : the
training of the student in intellectual independence, in individual thinking, in
digging out the principles through penetrating analysis of the material found
within separate cases: material which contains, all mixed in with one another,
both the facts, as life creates them, which generate the law, and at the same time
rules of the law itself, component parts of the general system. In the fact that,
as has been said before, it has actually accomplished this purpose, lies the great
success of the case method. For it really teaches the pupil to think in the way that
any practical lawyer — whether dealing with written or with unwritten law —
ought to and has to think. It prepares the student in precisely the way which,
in a country of case law, leads to full powers of legal understanding and legal
acumen ; that is to say, by making the law pupil familiar with the law through
incessant practice in the analysis of law cases, where the concepts, principles, and
rules of Anglo-American law are recorded not as dry abstractions but as cardinal
realities in the inexhaustibly rich, ceaselessly fluctuating social and economic life
of man.

"Thus in the modern American law school professional practice is preceded by
a genuine course of study, the methods of which are perfectly adapted to the
nature of the common law. The average student at Harvard or Columbia who
starts with the requisite general education and capacity, who takes full advantage
of his three years' course, and who proves this by his success in the yearly written
examinations, enters finally the practice of the law office — and a law office that
is busy, too, with difficult legal questions — better prepared than a graduate of
any other school in America, England, or on the European continent. In his prac-
tice he has only to continue to exercise and to develop the manner of thinking
that he has already brought to a very high degree of perfection in the school. By
the side of this, what he has still to learn in his law office (especially in the fields
of procedure and of written forms in general) is of very subordinate importance;
although in this connection it must of course again be emphasized that this
knowledge can never be gained in any school, anywhere, any more than any law
school of Europe or America can teach the future lawyer the ethics of the legal
profession or the peculiar instinct {Takf) of the successful lawyer or judge. In this
calling, as in every other, only the direct atmosphere of daily professional life can
furnish to the beginner certain experiences and qualities which are of great prac-
tical importance. But apart from this the American student gains in the modern
law school of his country all the practical knowledge of the law that any school
can give to a future attorney or judge, in unparalleled manner."

" Herein we find the strength, but herein also the weaknesses, of the case method.
These weaknesses, to sum up the writer's opinion in a word, lie on the scientific
side of American legal instruction in its present form. In this connection we may
distinguish between, first, the influence exerted by the case method upon the
scientific comprehension of law by the students, that is to say, upon legal instruc-
tion proper; and secondly, its reaction upon the scientific elaboration of law in
general, that important function of law faculties which we must consider apart
from their purely pedagogic aims. ... It is characteristic of the case method that
where it has thoroughly established itself, legal education has assumed the form
of instruction almost exclusively through analysis of separate cases. The result



PREFACE ix

of this is that the students never obtain a general picture of the law as a whole,
not even a picture which includes only its main features. This is, in my opinion,
however, just as important for the study of Anglo-American law as for the codi-
fied continental systems, and is a task which should also be accomplished by the
law courses in the universities. To this end, the following seems to me above all
things requisite:

"First, as an introduction to the entire curriculum, care should be taken to in-
troduce to the students, in elementary fashion, the fundamental concepts and legal
ideas that are common to all divisions of the common law. Or, to express it in
a word current in European pedagogy, the beginners in American law schools
should be given a legal Propadeutik, or preparatory course, which in a simple
yet scientific manner shall set forth the elements of the common law; shall fur-
nish, that is to say, a comprehensive view of the permanent underlying concepts,
forms, and principles, not forgetting the elementary postulates of law and legal
relationships in general. The more rigorously casuistic the case method of instruc-
tion which then follows necessarily has to be, the more important it seems to me
it is to make clear to the students at the very beginning certain fundamental facts
and guideposts of the law which are removed from all casuistry and theoretical
controversy. Only in this way will their future studies rest upon a solid and scien-
tifically grounded foundation.

"Classical Roman law at its height developed, as is well known, a special liter-
ary type, the Institutes. This was a comprehensive presentation of the elements of
law, intended to introduce and facilitate the regular course of study, and the fact
that Justinian retained it as an introduction to his code shows what importance
was attached to it. . . .

"Similarly, in my opinion, in American university law schools the students
ought to be given an introductory lecture course, which should present, so to
speak, 'Institutes' of the common law. Every department into which the Ameri-
can law is divided, whether as common law or equity, employs certain common
elementary ideas and fundamental legal concepts which the student ought to be
made to understand before he is introduced into the difficult analysis of cases. Con-
cepts such as choses in action, person and property within the meaning of the law,
complaint and plea, title and stipulation, liability and surety, good faith and
fraud, should, in these introductory lectures, be given to American students in
connection with a system of the law, even although this should include only the
general fundamental features. They should not, as usually occurs to-day, come
to the students unsystematically and unscientifically, as scraps of knowledge more
or less assimilated out of law dictionaries and indiscriminate reading of text-
books."

"It seems to me very advisable to add also at the end of the course lectures which
shall furnish the American law student once more, before he steps out directly
into practical legal life, a certain general summing up and survey of the law. If
the student has mastered all essential institutions and doctrines of the common
law during his three years' course, through the analysis of countless cases, he will
certainly now be sufficiently matured to undertake, with full understanding, two
important tasks. First, he should be able to grasp the general scientific theory
of the law as one of the great dominating phenomena of human civilization
and human thought. Secondly, he should now be fully prepared to cast to great



x PREFACE

advantage a comparative glance at that second mighty system of law which has
shaped the history of humanity, namely the Roman law.

"The first mentioned task corresponds pretty closely to what has for a long
time been designated by English and American teachers of law by the term ' Ju-
risprudence,' and is taught as such in several universities. By this is understood,
broadly speaking, a presentation of the leading fundamental principles that are
more or less common to the modern law of every civilized people, considered both
as products of a developing positive law and as influenced and perfected by the
theories and ideas of legal philosophy. Historical, philosophical, and sociological
aspects of the law have here to be bound together in harmony with one another,
in order to help erect a theory of the fundamental principles of law which shall
rest upon the surest possible foundations. The concept of law in general, the con-
cept of sovereignty, of law as an objective norm on the one side, as subjective
authority on the other; the various classifications and divisions of the law — pub-
lic, private, and international; the various manifestations of the law — custom-
ary, written, and judge- made; in connection with this, moreover, a general theory
of the sources of law; further, the philosophic basis of the great legal institu-
tions of possession, of property, of inheritance, of contract, and of damages; in
connection with this the theory of the will in law; and finally the great basic
forms and fundamental principles of the safeguard of law, of procedure ; these,
and many other fundamental theoretical problems besides, could be presented to
the mature students in such a course of lectures, under the head of Jurisprudence,
to their great advantage.

"The second course of lectures, on the other hand, those dealing with Roman
law, would also, of course, be primarily so planned as to bring the outlines of this
system of law into comparison with the common law, already familiar to Ameri-
can students at this stage. The analogies and the differences which are brought
out sharply by the comparative method would go far to make the features and
characteristics of the native law still clearer to the students, and to deepen their
understanding of their own law through their insight into that of other peoples."

Briefly stated, Professor Redlich estimates the case method of teaching law to be the
practical and efficient method by which the student learns to do independent think-
ing, by which he is brought into actual touch with the living questions of the law. On
the other hand, he argues that before he enters upon this method of study, he ought
to have a certain foundation upon which to build, which should give him a perspec-
tive and should acquaint him with the elementary ideas and fundamental concepts
common to all branches of the law — in some such way as the student of engineering
first studies mathematics and physics in order to be familiar with those physical con-
cepts which underlie the practice of engineering, or the student of medicine takes a
pre-medical course in chemistry and biology in order that he may have in his grasp the
fundamental chemical and biological concepts which underlie medical thinking. Simi-
larly, Professor Redlich advocates at the end of the term of study an effort to give
to the student, whose powers of thinking have been sharpened by the case method
of instruction, a comprehensive view of the law as a whole and of its relation to the



PREFACE xi

administration of justice. In order to secure time for both these additions to the cur-
riculum, he advocates a lengthening of the course to four years.

Those interested in this bulletin may obtain it by application to the Carnegie
Foundation.

Following this introductory bulletin there will be published later a description of
the systems of admission to the bar in force in the several states, and a comprehensive
study of existing law schools.

Henry S. Pritchett,
President of the Carnegie Foundation.

December, 1914.



THE COMMON LAW AND THE CASE METHOD
IN AMERICAN UNIVERSITY LAW SCHOOLS



INTRODUCTORY

The following report upon the use of officially reported law cases as the basis of legal
instruction has been prepared at the request of the Carnegie Foundation for the
Advancement of Teaching. In accepting this honor, and in venturing to set forth my
views in regard to this contemporary method, now almost exclusively employed in
the leading law schools of the United States, I am well aware that the task presents
extraordinary difficulties to a foreign lawyer.

These difficulties originate, of course, in the complete dissimilarity between the law
of England and America and that of continental Europe. An additional obstacle is
to be found in the fact that the general traditions and the organization of legal educa-
tion in the United States are quite peculiar to this country and differ not only from
the corresponding institutions of France, Germany, and Austria, but from those of
England as well. It is a further and a very appreciable handicap to a citizen of con-
tinental Europe who attempts to appraise the American system of legal education,
that he approaches the problem more or less unfamiliar with American legal life as
a whole as well as with its separate organs.

Any one who is asked to pass judgment upon the value of a method of legal in-
struction will of course feel the need at the very outset of gaining a working insight
into the living forces which underlie the actual legal practice and legal terminology
of the country concerned. He must form an idea of the part played in legal life by
the judge and by the attorney, by the individual parties who are seeking justice and by
the state, if he is to render even a provisional judgment as to the extent to which the
prevailing methods of legal education fulfil their purpose. Moreover, in the narrower
field of legal education proper the foreign critic has the not inconsiderable task of
appraising to some extent the character of the law students themselves, the general and