CHAPTER XI. LEGAL EDUCATION.1 By HENRY M. BATES, Dean of the Law School, University of Michigan, Ann Arbor, Mich. GROWTH OF LAW SCHOOLS. The outstanding fact in legal education in this country during the past 25 years is the shift from the law office to the law school as the avenue of approach to the bar. This is shown both by the increase in the number of students in the law schools and by the increase in the number of schools themselves. In 1891 there were 96 schools, with a total attendance of 12,516 students. In 1916 there are, according to the reports of the United States Bureau of Education, 124 schools, with an aggregate attendance of 22,993 students.2 The following is a summary of the statistics for the year ended June 30, 1916: Number of law schools__ Instructors___ Law schools, 1915-16. Students (men, 22,306; women, 687). Students with college degrees- Graduated in 1916___. Volumes in libraries__ Value of grounds, buildings, equipment, etc--- Amount of permanent endowments or productive funds__. 124 1, 531 22, 993 4, 451 4,323 1, 164, 687 $5, 593, 740 $2,091, 592 $1,500, 669 This increase in the number of institutions teaching law and in the number of students preparing for the bar in this way makes on the whole for improvement, but the ointment is not without its flies. The change has been brought about by a number of causes, chief of which is that the average law office has become a much less effective place than it formerly was for the purpose of instruction. It has been pointed out repeatedly that the successful lawyer of to-day is 1 The Report for 1914, Vol. I, Ch. X, contained an analysis of conditions to which this review is supplementary. There was no chapter on legal education in the 1915 report. 2 The Carnegie Foundation for the Advancement of Teaching, which is conducting an exhaustive study of legal education, reports 137 schools conferring degrees, 10 resident schools that do not confer degrees, and 17 correspondence schools. For list see end of chapter. 61355°-16 -15 197 too busy to give anything like adequate time to the instruction of young men in his office. A second cause, resulting of course somewhat from the first, is that the American Bar Association and many State associations have recommended; and even urged, that young men going to the bar should seek their instruction in law schools. Unfortunately some lawyers, and some persons who are not lawyers, have seen in this tendency and in this organized professional support of the law schools an opportunity to make money out of the functions of legal instruction. Thus it is that there are a large number of proprietary schools organized on a commercial basis, advertising extensively, frequently without any regard to the dictates of good taste or of ordinary honesty. It is only fair to add that there are some proprietary schools conducted by conscientious men and with as much adherence to the requirements of a sound educational policy as is possible within the limitations under which they necessarily work. Many high-minded lawyers give of their time and energy to the work of instruction in such schools, not infrequently for wholly inadequate compensation, and in some instances without any compensation at all. They are led to do this largely out of a desire to be helpful to young men seeking the profession to which they themselves have devoted their lives. Sometimes such men give really adequate instruction, but the instances of this are necessarily growing increasingly rare, for the work of legal instruction has become more and more a distinct profession, with an increasingly growing appreciation by practicing lawyers of the demands made upon the time, energy, and devotion of the really scientific law teacher. Men engaged in the active practice of law, especially if they are able and successful, have neither the time nor the energy left after the day's work in the practice of their profession to do the work absolutely necessary for developing the highest type of scholarship or for acquiring the technique of law teaching in its modern development. It is important, of course, that law teaching shall be in close contact with specific and practical needs of the profession; but, on the other hand, if law is to grow, if it is to become liberalized, and if it is to meet the wants of the changing community, it is extremely important that the function of legal education should be in the hands of men who are able to view law in something of a scientific and a philosophical spirit and with a consciousness of its evolutionary character. For these reasons and others more obvious the proprietary city school can seldom give to its students a sense of the importance of making the law conform to changing conditions of society in performing its prime function of accomplishing justice. Despite the brilliant things. that have been said about the difference between law and justice, and conceding all that any rational person would claim as to the necessity of certainty and such permanence as may be possible in the rules of law, there are nevertheless overwhelming reasons why the endeavor should be to make law coincide with justice to the fullest possible extent. MULTIPLICATION OF SCHOOLS. It is with these thoughts in mind that one can not but deplore the growth of mushroom schools in the commercial centers. California, for example, has at least two excellent schools, amply equipped in every way to train all the lawyers the State can possibly need, except those who for one reason or another wish to go outside for their legal education. Nevertheless, according to the Carnegie Foundation study, there were in 1915 seven other schools in California, and the past year has witnessed the addition of still another to the list, its faculty being made up of men actively engaged in practice at the bar. The same situation in multiplication of schools subject to such limitations that they can not possibly do the best work is to be found in New York, Philadelphia, Chicago, and other large centers. Frank speaking on this subject is unfortunate in that it is almost certain to give offense to high-minded, conscientious lawyers who are giving their time to instruction in such schools from motives altogether creditable to themselves. But the future of legal education and indirectly of the bar and of the great work which it is its duty to perform for the State make it a plain duty, however unpleasant, to insist upon a conscientious and open-eyed consideration of the situation. Men like to speak of lawyers as officers of the court, and such they are in some sense and to a large extent, and in just that sense and to that extent they are public officers; and irrespective of their official status they are of course the most powerful single agency in making, declaring, and enforcing the principles of private law. Upon their intelligence, their knowledge of legal principle, and their real understanding of the function of law depends in no small degree the very future of the law itself. Furthermore, as judges, as legislators, and as administrators they affect powerfully the administration of law and the accomplishing of justice in the State. This being the case, it should be frankly recognized that the practice of law is not a matter of private right, but a privilege, and a privilege, moreover, which should be controlled by the public in the interest of the public alone. These considerations require that the matter of legal education should be looked at in the same light and controlled in the same way and for the same reasons. These purposes are so nearly self-evident, and they concern community interests so important, that it is amazing that their force should not be recognized by the public in an insistence that legal education and admission to the bar should be regarded as wholly without the scope of mere private right or enterprise. A man should no more be permitted to practice law merely because it would be for him a gainful occupation, or because for other reasons he wishes to, than a man should be permitted to become a judge or legislator for the same reasons. With almost as much truth it may be said that the function of legal education should not be confided to persons or institutions merely because the exercise of the function may be profitable or agreeable to such persons or institutions. The State, in this matter, should insist only upon the best available methods and instruments of legal education, and should not tolerate the suggestion that it be satisfied with instrumentalities and methods which may perhaps suffice to give a man a smattering of the law or even to enable him to pass examinations for the bar. This last assertion is made with confidence, because with the means at hand and with the time and other limitations under which boards of law examiners must act under present conditions, the bar examination, however valuable, can not answer as the sole means of determining a candidate's qualifications for practicing law. IMPROVEMENT IN REGULATIONS. It is gratifying to note important advances made in public opinion regarding these matters, and in some cases the actual effectuation of that improved public opinion. In New York, Illinois, Michigan, Kansas, and other States steady improvement in the regulations for admission to the bar have been made during the past three or four years, and even a cursory examination of the questions asked upon examination for admission will show how these questions are improving in many States. In Ohio the matter of admission to the bar has been in the hands of the supreme court, which acts through a board of examiners that has been steadily improving the type of its questions and the method of marking answers. The Ohio State bar association at its annual meeting in July unanimously adopted a resolution recommending that four years of law study instead of the prevailing three be required of all candidates for admission to the bar, except those who are college graduates. In Michigan a law passed in 1913 has this year for the first time become fully operative. This law has repealed the old statute exempting the graduates of law schools of the State from the State examination. All candidates for admission to the bar are now required to take these examinations, which are given by a competent and conscientious board of five examiners. POLICIES AND METHODS. The past two years have witnessed no radical changes in the law school curriculum or in policies or methods. The case method of instruction has been fully vindicated and is now the principal method in a large majority of the law schools. But no adherent of the case method, however devoted to it he may be, believes that it contains the last word on the subject of legal education. Changes in general education, shifting industrial, commercial, and social conditions and the gradual rise of new types of law business will necessarily bring about modifications in present methods of legal instruction. There are now so many good law schools in the country, and there is among them such generous rivalry to attain high efficiency and usefulness, that there need be no fear that modifications will not come rapidly enough. Indeed, there may be some danger that experiments and changes will be tried too freely and without sufficient consideration of the fundamental functions involved. There can be little doubt that the law schools of the country have reached a measure of efficiency beyond that of many other institutions of university or college rank. This is due in large measure to forces and conditions for which college teachers are not to blame and for which the law-school teachers can claim no credit. In the first place, the function of the law school is narrower and simpler, and however important it may be, the field of law-school endeavor is much smaller than that of the college. It is very much easier, too, for the law faculty to get serious, hard work from its students than for the college professor to obtain the same result from college boys. The law student is older; moreover, the law student feels that he is forging the very instruments with which he is to make his living, whereas the college student is altogether too apt to think that his work is lacking in practical value. CURRICULUM PROBLEMS. One thing the law school has done it has "stuck to its last." It has recognized that it had a definite and important function to perform. It has insisted that that function be performed only in the best possible way, all conditions being taken into account. It has felt that to wander from the main highway of legal instruction into the by-paths of matters of relative insignificance or only collateral to law would be to impair the efficiency of its work. It has, moreover, insisted in the main that only such subjects should be taught as were susceptible of treatment with sound pedagogical methods. For these reasons the law school of to-day excludes from its curriculum subjects which it may be well for the lawyer to know something of, but which are not immediately and necessarily constituent |