01/12/2014 09:35 pm ET | Updated Mar 14, 2014

American Legal Education: The First 150 Years

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Why do law schools educate new lawyers the way they do, not only through the "case method" and Socratic questioning, the methodology made famous in the 1973 film The Paper Chase (though hardly any professors are as mean as the film's notorious Professor Kingsfield), but also through interdisciplinary education in economics, history, psychology and the like?

Two individuals loom large in the story of American legal education over the last (almost!) 150 years. Christopher Columbus Langdell, Dean of the Harvard Law School from 1870 to 1895, set the paradigm for what law schools and legal scholars should do, a paradigm that lasted for nearly a century, until my colleague Judge Richard Posner finally upset it in the 1970s. That gloss perhaps exaggerates the influence of these two individuals, but only slightly.

In the 19th-century, the idea arose, beginning in Germany, that a subject requiring university study should be a Wissenschaft, a "science," though the Anglophone connotation of natural science is misleading. A Wissenschaft was any body of knowledge characterized by distinctive and rigorous methods that, when deployed correctly, would secure the reliability of its results. If law was to be a subject for university study, then it had to be a Wissenschaft.

For Langdell, the scientific method for law was the careful study of the opinions of the courts--not a surprising view, since in "common law" countries like the U.S. it is understood that courts are charged with developing the law incrementally over time. Carefully study of these opinions could elicit the general principles and rules of law that explained the particular decisions. The task of legal scholars was to articulate these general principles, and the obligation of the law students was to study the cases to discover the general rules for themselves.

In the 1920s and 1930s, another group of law professors and lawyers known as the "American Legal Realists" challenged Langdell's approach, noticing that the legal principles the Langdellian scholar latched on to were often pitched at too high a level of abstraction from the particular problems the courts were confronting. Sensitivity to economic and social context was often necessary to make sense of the decisions, not just knowledge of abstract rules. The American Realists accepted Langdell's ambition to make the study of law scientific, but they thought Langdell's science was shoddy, and their view prevailed.

Consider a famous Realist example from the 1920s, due to Herman Oliphant, then a Columbia Law School professor. Oliphant examined dozens of cases involving contractual "promises not to compete," yet found that sometimes the courts enforced the promise, and sometimes they did not. The general principles of contract law -- consideration, mistake of fact, implied conditions -- made no sense of the actual outcomes. Oliphant showed, however, that whenever the promises were enforced, it was a seller of a business who had promised not to set up shop and compete with the buyer. If those promises were not enforced, those transactions would have been economically pointless. And when the promises were not enforced, all those cases involved employees forced to sign contracts preventing them from competing with the employer after leaving his employ. Trade guilds at the times disfavored such provisions as inequitable over-reaching by the economically more powerful party, the employer, and judges were clearly sympathetic to that view.

This merged Langdell/Realist paradigm became dominant for a good half-century. One needed to understand economic and social context to understand what the courts were doing, and one needed to look beyond vague generalities about legal doctrine, to tease out the situation-specific factors to which the courts were sensitive.

Richard Posner is, like Langdell, the other decisive figure in the history of American legal scholarship and education. He did not invent economic analysis of law--such credit goes, if it goes to any one person, to his Chicago colleagues Ronald Coase and Aaron Director--but he had the intellectual energy and ingenuity to show in the course of the 1970s how the economic way of thinking could both explain what the courts were really doing (and do so more effectively than the Realists had done) and upset what most traditional scholars were saying about it.

The economic approach started from a simple assumption: individuals are instrumentally rational in trying to get what they want. Their interactions with the law, so the economic story goes, are no different. If the law imposes penalties on certain conduct, people will respond to that incentive and adjust their behavior accordingly, in order to get what they really want--unless, of course, the legal burdens become too costly. Those simple "rational choice" assumptions had radical consequences, or so Posner and Posnerians argued. And here they pierced the vulnerable underbelly of the Realist attack on Langdell. For the Realists operated with "common sense" assumptions about how law would influence behavior, a "common sense" that had not really taken account of how actors in capitalist societies tend to think, namely, in terms of the self-centered costs and benefits of different courses of conduct. The greatest success of economic analysis has been precisely in those commercial domains where actors really did think the way the economist supposed.

The victory of Realism and Posner's economically flavored Realism meant the end of Langdell's idea of a "science" of law: there are no distinctively legal methods or tools beyond the ones Langdell envisioned, but those are now seen to be inadequate to understanding the law in action. Law schools still teach the Langedellian Wissenschaft, since it is our lingua franca, and students can master it within a year or so. But once a student has learned the Langedellian Wissenschaft, what she really needs, in our Realist-Posnerian world, is something very different: history, economics, political science, psychology, etc. ..

One of my colleagues, Anthony Casey, spent a decade in practice before becoming a law professor. In a recent address to our incoming students , Professor Casey told of speaking at a conference before financial professionals:

I had just finished explaining that lenders often use negotiation leverage to exercise certain rights against bankrupt corporations. I viewed the statement as uncontroversial, but an analyst who works for one of these lenders jumped up and challenged me. "I do this for a living," he declared. "And none of the things you say lenders do is provided for in the contract. Are you suggesting that we exercise rights not in the contract?" I was surprised by the question and responded with a tentative, "yes." He explained that I was crazy and that his lawyers never did such a thing. He was wrong...

What differentiates good lawyers... is the ability to advise clients about what... laws and documents actually mean in the real world, how they affect human interaction, and most importantly, how those effects can be changed. To prepare you for this... we will teach you to explore how rules, policy, and human behavior interact. It is precisely for this reason that law school is (more than any other area of study) so interdisciplinary.

And that story sums up why the Realist vision, with its Posnerian modifications, now dominates the study of law in the United States.

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