The Geologic Strata of the Law School Curriculum

INTRODUCTION The modest aim of this piece is to supply some historical background to the other contributions to this Symposium. The modern American law school curriculum is the product of a few but critical choices of design, some of them over a century old. In this Article, I seek to (1) outline how the basic structure and content of the modern American law school curriculum came into being and what were the main competitors that curriculum displaced; (2) describe some of the ways in which the curriculum's basic structure and content have changed since its inception; and (3) point to some of the main sources and motors of change. I. ORIGINS OF THE BASIC STRUCTURE AND CONTENT OF THE MODERN AMERICAN LAW SCHOOL CURRICULUM The American law school-in the basic shape we recognize it today-originated with the model of legal education that President Charles W. Eliot and Dean Christopher Columbus Langdell established at Harvard in 1870. At first, Harvard's model seemed as if it might fail: the school had lost enrollments and had to make its way against rival models and hostile critics. By 1900, however, Harvard's success was assured. Its example-sometimes transmitted by Harvard's own former faculty as pro-consular deans, such as William Keener at Columbia and Joseph Beale at Chicago-spread to other leading law schools between 1895 and 1925; and between 1925 and 1950 virtually every full-time university-based law school in the country had adopted the Harvard model's basic elements. This story of convergence on a uniform model is all the more remarkable when one considers that all of these law schools were preparing their students for a wide variety of roles and careers in the United States' highly stratified and segmented legal profession. A. The Bedrock: The Harvard Template and Its Rivals In the period of its adoption, Harvard's model was distinctive in both structure and content.1 1. Structure Harvard instituted a three-year curriculum of courses to be taken in a prescribed sequence, with all first-year and most second-year courses required, along with examinations in all courses and a high flunk-out rate for those who failed them. (This replaced the casual system in which students could casually drop in, attend a course of lectures, and then drop out.) Harvard also led the way to making law a post-graduate education by requiring (starting in 1895) a college B.A. as a precondition to admission. Finally, it replaced the usual cadre of law teachers of the time-part-time practitioners and retired judges-with full-time law professors. The professors were freed from the demands of practice-although some, such as James Barr Ames, had no practice experience to start with-and received salaries adequate to fund careers as scholars and teachers. 2. Content Except for Criminal Law (a first-year required course) and Constitutional Law (a third-year elective), the Harvard curriculum was made up entirely of private-law subjects. From 1889 to 1890, for example, the required first-year curriculum consisted of Property, Contracts, Torts, Civil Procedure, and Criminal Law. During the second-year, students could choose five from among seven courses: Bills of Exchange and Promissory Notes, Quasi-Contracts, Evidence, Equity, Advanced Property, Sales, and Trusts. In the third-year, students could select five or six courses from among Agency, Constitutional Law, Equity Jurisdiction, Partnership and Corporations, Suretyship and Mortgages, Federal Jurisdiction, the Law of Persons, Conflicts, and Legal History.2 The Harvard brand eventually came to be largely identified with one of its innovations, the "case method": Socratic inquiry directed at large classes of students primed with reading appellate cases, collected in "casebooks" edited by the faculty. Since Harvard aimed to be a national school, recruiting from and sending its graduates out to practice in every region, it taught (and by so doing hoped to help create) a generic "common law. …