Luce, Kenneth K.

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Marquette University Law School

Marquette Law ReviewVolume 30Issue 3 December 1946 Article 2Thoughts on Legal EducationKenneth K. LuceFollow this and additional works at: http://scholarship.law.marquette.edu/mulrPart of the Law CommonsThis Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion inMarquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contactmegan.obrien@marquette.edu.Repository CitationKenneth K. Luce, Thoughts on Legal Education, 30 Marq. L. Rev. 177 (1946).Available at: http://scholarship.law.marquette.edu/mulr/vol30/iss3/2THOUGHTS ON LEGAL EDUCATIONKENNETH K. LUCE*An interesting article appeared recently in the September issue ofthe American Bar Association Journal, written by the Honorable Ar-thur T. Vanderbilt, and entitled: "The Law School in a ChangingSociety: A Law Center." The article is critical in approach, andperhaps Mr. Vanderbilt has deliberately over-stated his case, but thereader is left with the general impression that, in the opinion of theauthor, the average American law school today has made little effortto meet, and is largely unaware of the problems of legal educationin this developing society. Numerous recommendations are suggestedfor change in and addition to modern law school curricula and ac-tivities, and they are of such nature that hardly anyone could findreason to oppose the proposals made viewed generally and in theabstract. The fighting issue which emerges from any effort to placesuch proposals into practical operation is one of emphasis. The prob-lem of emphasis is not insoluble. The article in question does notpretend to deal with it, and it is the purpose of this paper to outlinesome aspects of the problem in the light of the suggestions Mr. Vander-bilt has made.It is suggested that the law schools enter more actively than theyhave into the field of legal education for the graduate lawyer. Thelatter may find himself lacking in technical knowledge required fortax work, or in certain corners of the administrative law. Legal prob-lems may be considered in the light of general public interest throughdiscussion in institutes, and in conferences among lawyers, judges,educators and business men sponsored by the law schools. Beyondquestion the law schools should enter into this work in cooperationwith the Bar Associations and other groups, and in varying degreemany of them already have done so. But here there is only oneanswer to the problem of emphasis. The law school must expandits activity absolutely. There must be no cutting into, no sacrifice ofthe training given to the undergraduate law student, and no shift inemphasis by the faculty from the continual improvement of that train-ing to unrelated activity. The law school dean or professor who isforever attending conferences, conventions and institutes soon crossesthe line where his school, his classes, and his students begin to suffer.The article states:'"Again, most members of the Bar scorn the criminal lawas beneath their dignity (excepting, perhaps, anti-trust suits),* Associate Professor of Law, Marquette University Law School.'Vanderbilt, "The Law School in a Changing Society: A Law Center," 32 Am.Bar Ass'n. Journal 525 (1946).MARQUETTE LAW REVIEW'an attitude quite incomprehensible to English lawyers, for theirleaders often excel in such practice. But how many law schoolspay more than lip service to criminal law in an attenuated firstyear course in the subject?"The writer is inclined to question whether the very considerablenumber of American lawyers who practice outside the larger cities"scorn the criminal law as beneath their dignity", except for the lu-crative anti-trust suit, or whether a leader of the English Bar wouldexcel in the criminal practice over a leader of the Bar in an averageAmerican community of ten thousand people. And assuming suchaversion to the criminal practice to exist, query whether the lawschools are responsible. The writer graduated from one mid-westernlaw school, and is teaching in another, and can testify that disrespectfor the criminal practice and supine willingness to accept its defectsas they are do not prevail as the general attitude of faculty and studentin either. It is true that the average law school devotes one courseto criminal law as such, but the shadow of the criminal penalty iscast in every other subject in the curriculum, and is frequently notedif the course is properly taught. And if the one course in criminallaw is increased to two or three, the problem of emphasis raises itsugly head.It is suggested that increased attention be devoted to a long listof subjects including administrative law, foreign relations, world or-ganization, international law, the civil law and comparative law gener-ally, government and public law, and apparently it is felt that thestudy of law in the schools of today amounts to little more than adiscussion of technical rules. All law schools known to the writerinclude in the curriculum courses in administrative law, municipal law;and constitutional law covers a broad range and is not slighted. Manyof them include courses in legislation and international law. And re-gardless of the name of a course it appears obvious that whether itis presented as a collection of technical rules in a vacuum, or as abody of living law in a background of human relationship whereverit may extend today, must depend very largely upon the approachof the individual teacher in the class room. Statistics and general con-clusions cannot paint a correct picture of the condition of our lawschools in this respect. The writer feels certain that the condition isfar from deplorable, and is progressing in the right direction.Perhaps the law schools should increase the length of the coursefrom three to four years.2 But if any detailed attention is to be givento any considerable number of the suhjects suggested and activitiesindicated by Mr. Vanderbilt; if they are to be placed in the curriculum2Mechem, "The Proposed Four-Year Law Curriculum: A Dissenting Opinion,"38 Mich. L. R. 945 (1940).[Vol. 30LEGAL EDUCATIONas courses with distinct recognition; then the law school course mustbe increased beyond four years to five or six, or some of the coursesnow considered basic, such as contracts, torts, agency, corporationlaw, criminal law and procedure, and evidence must be curtailed oreliminated altogether. Of course such alternatives are nonsense. Thereare already so many courses that the student cannot take them allin the three years allotted him, so why add more? You cannot makea social minded being, an effective political reformer, or an inter-nationally minded thinker of a student, by adding more courses tothose already offered, all on the theory apparently that the coursesnow offered teach him nothing and make him anti-social. The coursesystem is nothing more than an expedient concession to method inthe first place, designed to avoid the haphazardness of just readinglaw. With this in mind it should be clear that there should be nomore courses in the curriculum than the student can take in threeyears, and these should contain all the law, philosophy, foreign re-lations and what have you that the school can offer to train the manfor a career in which he can make a living and find a useful andconstructive place in the legal profession. 3 The content of the coursespresents a problem in method and emphasis, but the much neededreform must come within this limited number of courses, and sinceit is a lawyer who is being trained the writer sees no reason not tocall the courses contracts, torts, evidence, criminal law and procedure,and agency. The system of courses now generally in operation hasgrown like Topsy since the early years of this century, and is toolong, but it is no solution to pile on more courses with each socialupheaval, each war, and each technological advance.The possibilities of reform toward an integrated body of coursesare unlimited. The case system is under attack because of its failurein its pure form to provide the student with the historical and in-formational background necessary to a proper understanding of theproblems. Professor Llewellyn cites the illustrative and amusing ex-ample of the student who can juggle the principles of Bills and Noteswith the mental dexterity of an Einstein, but who has never seena bill.4 The requirements, or lack thereof, for pre-legal education areunder fire, and it is pointed out that the law schools themselves havedone next to nothing about it. Law teachers are puzzled and ex-asperated because college graduates seem unable to read or write theEnglish language. Can the school give to the student a proficiency3This might be subject to a very few. exceptions: namely patent law and perhapsadmiralty, where the technical and informational background departs moreradically from that normally possessed by the lawyer.4 Llewellyn, "On What Is Wrong With So-Called Legal Education," 35 Col L.R. 651 (1935), at page 669.MARQUETTE LAW REVIEWin modem administrative and governmental problems, and a broadsocial outlook by adding courses to the curriculum with new names?Our reform of the educational process must begin before that, anddifferently. Must there be a new course for the background and his-tory and social implications of the labor movement, or can the casesystem be adapted to present some of this in connection with, say,the injunction, in a course already contained in the curriculum andcalled Equity, or Contracts? Of course the concepts underlying theafter acquired property clause in a corporate mortgage and the doc-trine of potential possession are meaningless without their businessbackground and historical development, but is there any objection todoing it all in Sales? The ideal should be the graduate who is alawyer and a gentleman, who, incidentally, can read, write and speakEnglish. This business of reform in the educational system is a bigorder, and the writer feels much more optimistic about the prospectivegraduate if the family and home have produced a gentleman who haslearned to write and speak English upon enrollment in law school.For if he is not a gentleman then, will he ever be the kind of publicminded lawyer both the writer and Mr. Vanderbilt are talking about,regardless of technical training in the law obtained usually after at-taining the age of maturity?Justice Holmes stated in one of his opinions :-"General propositions do not decide concrete cases. Thedecision will depend on a judgment or intuition more subtlethan any articulate major premise."There is the crux of the situation. It is so easy to err in adjustingthe emphasis in technical and informational training between practicein the courts, practice before a myriad of administrative tribunals,or the drafting of legislation. But if the judgment and intuition re-ferred to by Holmes are developed sufficiently, the errors are muchless likely to prove fatal. And development of this judgment andintuition must and can proceed in every course offered, regardless ofspecific content or name. Furthermore it would seem apparent thatsuch judgment can arise only from some philosophy about law, de-veloped in the process of orderly and disciplined thinking as dis-tinguished from vague and haphazard speculation at close rangeupon ever shifting external phenomena in social and economic life.There are those who believe it might help to return the high schooland college student to some of the menial discipline found in ancient5 Lochner v. New York, 198 U. S. 45 at 76 (1905).[Vol. 30LEGAL EDUCATIONlanguages and pure mathematics., Those of us who adhere to naturallaw feel there are some enduring beacon lights requiring changes ofcourse when the currents of a time point the positive law in the direc-tion of the rocks. Justice Holmes professed to be a skeptic,7 but thejudgment or intuition which he possessed and to which he referredwere things subtle and inarticulate, and obviously not the result aloneof technical skill or cleverness.Courses in Legislation and Statutes are urged. Can any one thinkof more productive laboratories for the study of legislation in actionthan the bearded courses in negotiable instruments, sales, corporations,and constitutional law? If we can't get it across to the student there,we never will by adding courses and changing names. If the processrequires inroads upon the case system to furnish time for draftingexercise and the like, it certainly can be done. All of the fine workproduced by the American Law Institute and the Commissioners onUniform State Laws is available and waiting. But again the caveat- what is the technically skilled legislative draftsman without a phil-osophy and a judgment or intuition to do but dash hither and yonupon the current and mayhap in a fog? How is he to know that theso-called administrative organism he is defining may not fit into theright legal scheme because of the possibility of development alongauthoritarian lines? If the men who control it do know, then it willbe made to fit even though the conditions which gave it birth requiredchanges in legal machinery. The rocks are always there, and donot move.6 Pound, "A Generation of Law Teaching." 38 Mich. L. R. 16 (1939), where theauthor states at pages 24-25: "Yet looking back over forty years of teaching(for I began law teaching in 1899), I seem to see certain effects of collegeteaching of the social sciences to students with no training in logic or inlanguages requiring accurate attention to accidence, grammar and context. Iseem to feel an increasing difficulty in teaching the technique of legal reasoningto students with a predominately literary training, satisfied with plausible spec-ulation and clever writing, with no sound basis in exact information, no clearphilosophical background and no habits of consecutive thought. Certainly thecontrast between the feeling of students today and those of yesterday about acourse in the law of real property is significant. It did not seem hard to thestudent of my generation, although it took up more of the curriculum than itdoes now. The first year course in property in 1889-90 covered more groundthan has generally been attempted in recent years, and covered it thoroughly.Today, the subject seems to bewilder students. The things which are simplyso and must be learned as such, and the exact logical development of proposi-tions to reach assuredly predictable results are not congenial to the habits ofthinking and study of a generation not raised on the Latin grammar, the Greekverb, and compulsory mathematics."7 Holmes, "Natural Law," 32 Harv. L. R. 40 (1918).

Thoughts on Legal Education

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