REVIEWS: IS THE REFORM OF LEGAL EDUCATION HOPELESS? OR, SEEING THE HOLE INSTEAD OF THE DOUGHNUT

DOIhttp://doi.org/10.1111/j.1468-2230.1985.tb00876.x
Publication Date01 Nov 1985
728
THE
MODERN
LAW
REVIEW
[Vol.
48
REVIEWS
IS THE REFORM OF LEGAL EDUCATION HOPELESS?
OR,
SEEING THE HOLE INSTEAD OF THE DOUGHNUT
LAW SCHOOL: LEGAL EDUCATION
IN
AMERICA
FROM
THE
1850s
TO
THE
1980s.
By R. STEVENS. [Chapel Hill and London: University
of
North Carolina Press.
1983.
xi and
334
pp.
f17.00,
hardback
only.]
I
INSUFFICIENT attention has been paid to the history
of
legal education and
thought. Moreover, lecturers and lawyers alike have often betrayed little
interest
in
legal education as a topic worthy
of
sustained examination.
Thus, the publication
of
Robert Stevens’ magisterial survey,
Law
School,
is heartily welcome. It is a major achievement in every sense of the word.
It is the first comprehensive history
of
modern American legal education’;
and it raises important questions about legal education, its relation to the
profession and legal studies and the
failure
of
law schools adequately to
sustain research on the meaning, impact and history of law in society.
Stevens’ book is essential reading for anyone concerned about legal
education. The footnotes are a mine of information, sometimes exceeding
the length
of
the chapter they accompany. And there is an invaluable,
twenty-six page bibliography appended to the text. This is also one
of
those rare law books that is a pleasure to read.
In what follows I shall, first, try to sketch out some of Stevens’ major
arguments. I shall then consider the extent to which he succeeds in
producing the total history to which he aspires. In essence, I shall argue
that despite his efforts to link law schools to their wider contexts, he has
nonetheless been unable to transcend the limitations of focus associated
with the dominant form of law school historiography, namely, institutional
history.2 In other words, the methodology Stevens uses to explicate the
intellectual, social and political dimensions
of
legal education is unable to
meet the task. This, and his rather cavalier approach to the problem of
method and, therefore, “context” in history produces a history of the law
school which either neglects
or
considers all too summarily important
facets
of
that history. As a result, the history
of
legal education appears
more linear and the forces which sustained it seem more overarching,
deterministic and debilitating than, perhaps, was (and is) the case. Stevens’
book provides a timely, unique and salutory guide to some
of
the fetters
that bind legal education and inhibit its reform. Nonetheless, his
methodology encourages a greater cynicism as to the real.achievements
of
law schools and the possibility of reforming them than may in fact be
warranted.
Other valuable work includes
J.
Auerbach,
Unequal Justice
(1976); Chase, “The
Birth
of
the Modern Law School”, (1979) 23
American Jr.
Legl.
Hist.
329;
J.
H.
Schlegel, “American Legal Realism and Empirical Social Science” (1979) 28
Buffalo
L.
Rev.
459 and (1981) 29
Buflualo
L.
Rev.
195.
For
an excellent overview see A.
S.
Konefsky and
J.
H. Schlegel. “Mirror, Mirror on the Wall: Histories
of
American Law
Schools”, (1982) 95
Hurvurd
L.
Rev.
833.
*
On this
genre
see Konefsky and Schlegel
ibid.
Nov.
19851
REVIEWS
729
I1
The story
of
American legal education, as told by Stevens, neatly
divides into four stages. Stage one, concentrating upon the period 1850-
1870, rapidly surveys its pre-modern origins. During this phase, the paths
to becoming a lawyer were relatively unbounded. Jacksonian egalitarianism
had decreed that any American over 21 could practice law. In fact, most
lawyers were admitted to practice after a spell of apprenticeship. Here
Stevens reveals what becomes one
of
his
idkes
jixes,
that American legal
education has been visited by two general dilemmas which haunt it to this
very day: the conflict between “academic” and “practical” law, and
between the demand for “equality” versus the desire for “excellence”. The
history of American legal education has been an unceasing battle as
between these polar ideals. And the message of his book is that generally
speaking the imperatives
of
“practice” and “excellence” have won out over
“scholarship” and “equality”. Put baldly, the reason for this is that legal
education is trapped within the structures that constitute it. Despite
repeated efforts to break out
of
its iron-cage, legal education was and is
unlikely to transcend the profession-orientated forces which have controlled
most law schools most of the time. A pessimistic and disturbing conclusion,
no doubt; especially
so
for
U.K.
scholars who usually envy the ways their
American counterparts have supposedly succeeded where they have failed.
How was it that the history of American legal education came to
resemble a history
of
defeats? Stevens’ answer to this question is largely
contained in what is the core section
of
the book
-
that devoted to phase
two, the period 1870 to 1920. This was the period when a pluralistic
system
of
education and admission gave way to one which was uniform,
national and elitist. Intellectually, the period was dominated by the rise
and rise
of
the Harvard Law School and the “case method” associated
with that most improbable father-figure
of
modern legal science, Christopher
Columbus Langdell. Since 1870, when he discovered Harvard (then the
archetypal American college), Langdell has become the “brooding
omnipresence” in America’s legal firmament. Langdell’s achievements (if
that is the correct word for it) were: to limit admission to law school to
college graduates; to extend the period devoted to legal studies to three
years; to assert (in rather mystical and general ways) that law was a
“science”; to teach law by means
of
cases discussed in class (the so-called
Socratic question and answer method, as seen on film and on television, in
“The Paperchase”); to teach law on a full-time basis, taught by professional
academics; and to fashion and install a curriculum
of
“pure law”, that is,
to treat private law as the core
of
legal studies, excluding subjects such as
jurisprudence, public law, international law, legal history and the sociology
of
law. In short, the Langdellian revolution (aided and abetted by Eliot
and Ames), established the form, content and pedagogy
of
modern legal
education and scholarship. Every law school
“.
.
.
became a little Harvard,
if only in its mind’s
eye.”3
Stevens observes that, “The lasting influence of
the case-method wzs to transfer the basis
of
American legal education
from substance to procedure and to make the focus of American legal
scholarship
(or
at least legal theory) increasingly one
of
process rather
than d~ctrine.”~
Id.,
848.
p.56.

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