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An Offprint from: Pressing Problems . I in the Volume 2 WHAT ARE LAW .SCHOOLS FOR? Edited by P. B. H. Birks

I

OXFORD PRESS· 1996

I 1. Scholarly and Professional Objectives in Legal : American Trends and English Com- parlsons• JOHN H. LANGBEIN*

have been asked to discuss for English law the study of law as an undergraduate discipline. teachers the great changes that American legal while requiring a university for entry into I education has been undergoing in recent the profession. American law schools thus are gate­ years. The main theme I wish to sketch is that. over keepers to the profession. a profession that has the past generation. the English and American legal become enormously lucrative and influential. I have exchanged their leadership roles. In would also remind you that American university the mid-1960s when I first encountered both systems legal education is terminal, in the sense that there is of legal education as a student at the two Cam­ no American counterpart to the obligatory post-uni­ bridges. English legal education was in important versity courses that the Law Society and the oper­ respects more scholarly than American. American ate in England. 1 Nor do American university law law schools devoted themselves almost exclusively graduates undergo any organized apprenticeship to training for the . Today, the lead­ such as the system of or ' articles ing American law schools have transformed them­ in England, although the early years of law practice selves into temples of scholarship. while English law operate for most of our graduates as a de facto schools have striven to become stronger as training apprenticeship. The American law student pursues a centers for the profession. There is much that is three-year degree. sits a bar exam a month or two benign in these developments. but also some strands later. and thereafter is licensed to practice. that I find quite worrisome. England in the 19605 When I first encountered the At the outset, a word of caution: American legal two systems in the 1960s. the contrast between education is a sprawling enterprise. I have spent my American legal education as professional training career in one comer of it. at the schools attached to and English legal education as undergraduate study national research -in my case. at Har­ was starkly reflected in the curriculum. vard as a student. and at Chicago and Yale as a law At least in theory and to some extent in practice. teacher. Some of the trends that I shall be describing the university study of law in England was thought have been felt less intensely at American law schools to be a species of liberal arts education. fungible in a that are less affected by the ethos of the research uni­ sense with classics. or history. or literature. or chem­ versities. Still. the case for focusing on my end of the istry. This conception of university legal education American spectrum is strong. The national law naturally affected the curriculum. There was no schools influence the others in many ways. most study of -a grievous shortcoming importantly. by training the majority of American that still characterizes much of English university law teachers. legal education. (The longer I study . Undergraduate versus graduate education. I begin the more deeply I am persuaded that legal procedure with the enduring contrast between American and is the 'grand discriminant·2 among legal systems. Dif­ English legal education. English law students are ferences in procedure•.and in the legal institutions undergraduates. and many have no desire to enter that operate the procedures. explain more about legal the legal profession. Until lately, university legal systems than anything else. IfI were given the power study was not a prerequisite for either branch of the to make one change in English legal education. it English legal profession. When I began reading the would be to have civil procedure taken seriously.) law tripos at Cambridge thirty years ago this fall, In my day as an undergraduate at Cambridge. we there were still leading figures on the English studied the basics of . . . . who had studied maths or greats or whatever. but . and the . but little in the way of who had not read any law at university. advanced law-little or no company law. taxation. American law students are intending professionals. bankruptcy. .·empnal procedurtf~ari1ily university graduates for whom the study of law is an law, employment law. English legal education was advanced degree. The Americans effectively forbid not meant to be closely practical.

* Chancellor Kent Professor of Law and . Yale attend a few hours per year ofrefresher courses, called "contin­ University. This paper is based on remarks presented to the uing legal education". 1994 meeting of the Society of Public Teachers of Law in Nor­ Z The term appears in Benjamin Kaplan, An American wich. in the Queen's : Impressions of English Civil t In some states admitted to the bar are required to Procedure. 69 Michigan L. Rev. 821, 841 (1971). 1 Scholarly and Professional Objectives in Legal Education: American Trends and English Comparisons

On the other hand, reflecting its location in the words, writing was directed back on the classroom. If noncod heart of the university, where undergraduates are the law teacher of that day published articles or mainly taught, English legal education had an emphasis on books, the work was centered overwhelmingly on the Pennsy' certain scholarly fields, fields for which there was needs ofpractising lawyers and . Most scholar­ Trusts i scant market among practising lawyers. , ship was doctrinal, and its highest expression, of Trus', English legal history, the law of nations, and legal achieved by the ablest or most driven of the writers, bering. philosophy-these were the glory fields in which the was the practitioner treatise. Profe. English law schools3 were at their best, and in which The American megatreatise The treatise tradition legal ac they provided scholarly leadership for the common has an interesting transatlantic history, which has 1960s­ law world. been brilliantly sketched by Brian Simpson.4 From There, American legal education in the 1960s American English beginnings at the end of the eighteen~ cen­ law fac law schools of the 1960s were relentlessly practical tury, the treatise was extensively developed by Story outstan· training academies fo;r the profession. The introduc­ and other Americans in the 1830s and 1840s. Leader­ Holmes tory phase ofthe American curriculum resembled the ship in the genre passed back to the English for the and wl English curriculum, although the American version last two thirds of the nineteenth century, but in the school. was more demanding. As in England, the core was early decades of the twentieth century, the Ameri­ practiCE tort, contract, property, and crime, together with a cans produced what Simpson calls the ultimate or also in large dose of civil procedure. But the American law megatreatises, typified by Wigmore on Evidence, recruit school curriculum of my day had a second level of Powell on Property, Scott on Trusts, and Corbin on virtuall' aspiration-in the upper curriculum-that did not Contract. have ar have much counterpart in England. The size and ambition of the American megatrea­ branch American law schools expected to teach. a great tises was, of course, deeply affected by the great advanc£ deal of advanced law, that is, to provide specialized structural difference between English and American it in th£ training for law practice. At the Harvard law. The English operated a unitary legal system, Washin; of the mid-1960s, students were required to study whose single pyramid of courts usually produced Thus, company law, taxation, , accounting, authoritative outcomes even at the frontier of the educath and of course, the law of the American constitution. - law. The Americans, by contrast, had fifty-odd legal law scb Other practice specialties were encouraged, includ­ systems, and on close questions of decisional law, their mi ing securities , business planning, corpo­ these were bound to split. Not only did legal ed rate and international taxation, , the Americans produce a sheer quantity of ous, ref] bankruptcy, , labor law, trusts, and legislative and regulatory authorities that was for the r planning, evidence, copyright and patent law, without counterpart in England, the Americans also Engla regulated industries, federal , and anti­ had to live with perpetual discordance in these pri­ the 199 monopoly (antitrust) law. No one student imbibed all mary legal materials. On close questions, the Penn­ That co of this, but most of us took most of it. The American sylvania rule would be X, the Illinois rule Y, the pIes of law student expected to come out of law school California rule Z. training knowing a lot of law, which was a good idea, since In England it was usually possible for the treatise remotes' we would plunge into practice within weeks. writer to expound the law as a body of coherent English This conception of the curricular mission of the authority. Far more than in England, it fell to the central. American law school naturally affected the work of American treatise writer not only to analyze and they die American law teachers. There was in most law organize but also to probe and to criticize and to rec­ they do schools a strong emphasis on classroom teaching, ommend, in order to, respond to the discordance in advance typically a version of the so-called socratic method. the primary sources. Still in my day as a law student, lams Our law teachers were bred for circus performer treatise-writing-that is, guiding the work of the writing j traits, suitable for holding the attention of 150 stu­ courts and the profession in some significant sphere and the dents in a lecture hall. of legal doctrine-was regarded as the highest form juristic' As late as the 1960s, I think it is fair to say, schol­ of American legal scholarship. lated d( arship was a sideline and a relative rarity among Another characteristic activity of the national law decades, American law professors, even at the elite schools. faculties, closely related to the systematizing work of specialh Law teachers who wrote anything tended to focus on the treatise writers, was law reform. The Restate­ scholarl' the casebook or other teaching materials. In other ments, those distinctive American forms of codifiod longer ~

3 Cambridge in my time was also a distinguished center for 4 A.W.B. Simpson, The Rise and Fall of the Legal Tre8ti~tt, 4/1 two other academic specialties, criminology and comparative U. Chicago L. Rev. 632 (1981). 5 For an law. School as 2 John H. Langbein sonst'r':"~ .• .. ~., .. '-.

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noncodifications of the , emanated versity-based journals. I suspect that the specialized room. If mainly from Harvard, but also from the University of character of the newer journals, many of them propri­ ides or Pennsylvania and Columbia. Scott's treatise on etary and hence driven by market acceptability, has yon the Trusts is so tightly organized around the Restafement provided some discipline of what gets written for scholar­ of Trusts that it even employs common sectionnum­ them. The practitioner audience that the new jour­ Jression, bering. nals cultivate will not tolerate the self-indulgent con­ writers, Professorial careers The career line of American tent and unbounded length that increasingly legal academics-of the people who taught me in the characterize law journal articles on my side of the :radition 1960s-ean be described quite straightforwardly. Atlantic. There are, to be sure, dangers in having the dch has There were two patterns. Some joined the Harvard practitioner market determine academic standards, l.4 From law as novices-the bright youngsters with but because the English practitioner journals supple­ n~ cen­ ment rather than supplant the academic journals, by Story outstanding law school records who clerked for . Leader­ Holmes, Brandeis, Frankfurter, Hand. and Friendly, that danger is not at the moment very intense. :l for the and who then came immediately back to the law The most important force that has been energizing ~t in the school. The other track to the faculty lay through English doctrinal writing is European integration. ~ Ameri­ practice. Especially in the business curriculum, but The European Union has touched every field of imate or also in litigation-driven fields, it was common to English law, some quite profoundly. Every field has ;vidence, recruit experienced practitioners. It was, however, required rethinking, reorganizing, restating. I suspect orbin on virtually unheard of for a Harvard law professor to that future generations looking back on this period in have an advanced degree-a Ph.D. in some other English law will compare it with the early decades of negatrea­ branch of knowledge. If my professors brought the nineteenth century, the last great epoch of funda­ the great advanced knowledge to the law school, they acquired mental reordering in English law, the period during \.merican it in the trenches, that is, at the bar in New York or which the atrophy of the writ system provoked the l system, Washington. reformulation of English law into its modern cate­ produced Thus, to sum up the transatlantic world of legal gories-when assumpsit gave way to contract, eject­ ar of the education as I experienced it in the 1960s, English ment became property, trespass on the case became odd legal law schools were distinctively scholarly, reflecting , and so forth. In that epoch as now, con­ onal law, their mission for . American tact with European law provided important concep­ : only did legal education was distinctively practical and rigor­ tual grounding for the task of ordering English law. ~eflecting 'case law ous, its orientation on training and Writing American legal education in the 19905 And now to that was for the needs ofpracticing lawyers and judges. the huge changes that have swept across American leans also England in the 19905 Let me now jump forward to law schools over the past quarter century or so. If I these pri­ the 1990s. It will be obvious where I am heading. were to try to encapsulate the development in just a the Penn­ That contrast between English law schools as tem­ sentence or two, I would say that the model that I lIe Y, the ples of scholarship and American law schools as sketched for you of American law schools in the training centers for the profession no longer bears the 1960s as centers of professional training has been :le treatise remotest relation to reality. For a variety of reasons displaced. A contrary conception prevails today, at : coherent English university law schools now occupy a more least at the national law schools and at those law cell to the central role in the training' of the professions than schools most influenced by the currents emanating alyze and they did a few decades ago, and, in consequence, from the national schools. The modern American.law md to rec­ they do a better job than they used to do in the school now styles itself a center of scholarship, at Jrdance in advanced curriculum. which the demands of professional training have 5 w student, I am struck by the quantity and quality of doctrinal been subordinated. Jrk of the writing in England. The treatise survives and thrives, My two themes, therefore, are the lurch to the .ant sphere and the work of the law courts is taken seriously in scholarly and the concomitant decline in legal-pro­ ghest form juristic writing. Among the factors that have stimu­ fessional training. lated doctrinal scholarship in England in recent There have been two great scholarly growth indus­ ltionallaw decades, I would point to two. First, the profusion of tries in American law schools over the past quarter mg work of specialized law journals has expanded the forum for century. One is and constitutional ie Restate­ scholarly writing. English legal academics are no theory, the other is law-and-economics. There has also of codified longer as constrained by the relative shortage of uni- been a great countertrend, distinctly nonscholarly in

UTreatise, 48 S For an early and instructive sighting of these trends see George L. Priest. Social Science Theory and Legal Education: The Law School as University, 33 J. Legal Education 437 (1983). 3 Scholarly and Professional Objectives in Legal Education: American Trends and English COIb.parl8O

character, which is the rise of so-called clinical legal I have had relatively little to do with the workshops BconOl education. I need to say a word about each of these journals, and other trappings of the law-and~ . that is, subjects. economics movement. I tend to snooze off at the : greate~ Constitutional law In retrospect, the intense inter­ sight of higher mathematics disfiguring a i corpor est in constitutional law seems easy enough to under­ page. I have been involved with the application of . law; tt stand. Constitutional law and theory are efforts to one set of law-and-economics insights, called mod­ ing an account for and to influence the awesome expansion em portfolio theory, in the world of trust and pen­ regula' of the regulatory state and the federal judicial power. sion investment law that I inhabit, but nobody been ( The emphasis on vindicating the Bill of Rights is should mistake me for a law-and-economics person. I propel importantly connected to the tragedy of American speak as an outside observer, not a movement tial in race relations, and·to the effort to eradicate deeply groupie. much embedded patterns of racial injustice. In my day as a There is a tendency among English academic marke law student, Harvard offered a basic constitutional lawyers to view the various 'law-and' adventures in The law course, devoted almost entirely to the Commerce the American law schools as rough equivalents. That the ne Clause, and a seminar or two. The Harvard catalog is a serious mistake. Law-and-literature may be inter­ andth for 1992-93 lists 19 different constitutional law offer­ esting, but ifit disappeared tomorrow, only a handful iar: cc ings. Yale and Chicago-the other lliw schools that I of literati would notice. Law-and-economics, by con­ instruJ know well-have experienced a similar growth. trast, is an alternative mode of legal conceptualism­ ness tc A striking attribute of the vast profusion of schol­ a different way of doing law, of resolving legal legal 1 arly writing about and constitu­ problems. It has achieved enormous influence with post d tionallaw is that less and less of it seems directed to American courts and policymakers as well as among ket fa lawyers and judges. The audience for scholarly writ­ scholars. I think that one simply must have some which ing has changed importantly. Increasingly, the schol­ appreciation of law-and-economics in order to under­ activit ars are writing for other scholars, rather than for the stand modern Alnerican law. privatt legal profession. The new constitutional scholarship The point has been made, but bears repeating, that The draws upon sources and literature quite remote from arose from the success of legal titione traditional case law, including philosophy and politi­ realism, the intellectual movement that inflicted such cal science, but also schools of literary and even reli­ wreckage upon conventional doctrinal approaches to econOl gious interpretation of texts. It has become ever more the law. The realist movement made American law in the common for participants in· the new constitutional vulnerable to law-and-economics. If legal rules are ing cc scholarship to have advanced training in philosophy, thought to be mere excuses, or worse, a pack of lies, withF , history, literary criticism, or what­ it is hard to take the study of legal doctrine very seri­ forth ( ever. ously. A good place to sense the nexus between legal court J On the subject of history, I should add that the realism and law-and-economics is Richard Posner's of Chi, boom in constitutional law has contributed to a gloating account of the failure of law as an and remarkable growth in curricular and scholarly inter­ autonomous discipline.6 The realists directed atten­ Clark, est in legal history, much of it directed to the history tion to the question of how law really works, but they econOl of race relations and gender issues, subjects deeply were not able to give much of an answer. The law­ anothf affected by constitutional law in the American and-economics scholars brandish a comprehensive Whi scheme. account of what law does. If you ask the question of infIuel Law-and-Economics The other growth stock of why the law-and-economics movement should have agenci American legal education has been law-and-eco­ originated in· the United States,. as opposed to Ger­ mover nomics. If there is one message that I could leave many, France, or England, part of the answer is that, towar( with an audience of English legal academics, it for different reasons, the legal-doctrinal tradition sur­ fields would be to emphasize the fundamental and revolu­ vived in these other legal systems in so much better the sel tionary importance of law-and-economics, not only health. Many English law teachers will recall Hart & elling, for American legal education, but for the shape and Honore's critique of the American tort-law realists.7 The character of American law. Hart & Honore is English doctrinal scholarship at its Ameri I need to establish my credentials for bringing you best, a counterrealist book, bent on showing that doc­ law se this message, and I am pleased to say that I have trine does indeed matter. none. Altl;t.ough I have spent my career at dominant Law-and-economics has transformed the study of d centers of law-and-economics scholarship in the US, many central fields of American law. Since law-an -

6 Richard A. Posner, The Decline of Law as an Autonomous Discipline, 100 Harvard L. Rev. 761 (1987). 7 H.L.A. Hart & A. Honort~. Causation in the Law (1959). 4 John H. Langbein

economics is centered in classical microeconomics, corporations. By comparison with what went on a 3hopa, yo-and­ that is, in the study of markets, its iilfluence has been couple of decades back in a or property course at the .~ greatest on legal fields that are market-dominated: at a law-and-economics center such as Yale or 'eview corporations; bankruptcy; contract and commercial Chicago, today's course will emphasize economic ion of law; the various branches of , includ­ analysis and de-emphasize decisional law and legal mod­ ing antitrust law and patent and copyright law; and doctrine. I pen­ regulated industries. Core common law fields have In my day as a law student, English and American obody been deeply affected-especially torts, contract, and law schools shared their curriculum in the fields of rson. I property. Law-and-economics has been less influen­ torts and contract. The structure was the same, the ement tial in those spheres-, , and rules were similar, and many leading cases were much of constitutional law, for example-in which English. Today, because English law schools have demic market forces are less pronounced. been so little touched by the law-and-economics tres in The themes of law-and-economics that permeate movement, we are experiencing in scholarship and :. That the new scholarship, and increasingly, the language curriculum a marked separation in the once-common inter­ and the work of the American courts, are now famil­ culture of the common law. American legal aca­ mdful iar: concern with efficiency as both a norm and an demics tend to view the English literature as exces­ y con­ instrument of evaluating competing legal rules; alert­ sively preoccupied with parsing tedious House of lism- ness to substitution effects in devising and applying Lords decisions, while English academic lawyers legal legal rules; marginal cost analysis; the ex ante/ex find the American literature ever less lawyerly and } with post distinction; concern with externalities and mar­ ever more given over to the seemingly esoteric unong ket failure; and so-called public choice analysis, agenda and repulsive argot oflaw-and-economics. some which identifies much and regulatory The decline oflaw Mine is a rise and fall story, and mder- activity as rent-seeking capture of public goods for I need to turn now to what has been lost in the private advantage. United States as a result of the developments I have g, that The appointment of Stephen Breyer, a master prac­ described. Recall the distinguishing traits of the f legal titioner of law-and-economics, to the US Supreme national law school into the 1960s: (1) the law school I such Court is a measure of how mainstream law-and­ was centered on teaching rather than scholarship; (2) :hes to economics has become. Half the sitting federal judges it emphasized advanced fields of legal practice; (3) it III law· in the US have undergone law-and-economics train­ was staffed by a professoriate laden with experienced es are ing courses. Richard Cudahy complains that former practitioners; (4) outside the classroom law )f lies, with Richard Posner and Frank Easterbrook holding professors served the organized profession through y seri­ forth on the Seventh Circuit Court of Appeals, that law reform work; and (5) treatise-writing was the .1 legal court has become a 'branch campus of the University highest expression of legal scholarship. lsner's of Chicago'.8 The law school deans of Yale, Harvard, This vision of the mission of the national law as an and Chicago-Kronman (succeeding Calabresi), school has largely vanished. atten­ Clark, and Baird-are accomplished law-and­ Scholarship Treatise writing has practically disap­ it they econoInics scholars. Law-and-economics is not just peared from the national law schools. I can think of e law­ another law-and. no treatise writer at Yale or Chicago, and only a cou­ ensive While law-and-economics has had an important ple ofsurviving graybeards at Columbia and Harvard. ion of influence on American law courts and regulatory Legal doctrinal writing apart from the treatises has 1 have agencies, other strands of the law-and-economics also declined precipitously. A good way to see what o Ger­ movement point away from the profession and has happened is simply to compare the law reviews s that, towards the academic departments. Even in practical for then and now. I recently had occasion to check lU sur­ fields like and corporations, ever more of something in the 1967-1968 Yale Law Journal, where better the scholarly writing is high-tech mathematical mod­ I noticed a three-part article on federal tax liens.9 I Hart & elling directed primarily to an audience of scholars. think you'd probably have to establish your own law alists.7 The law-and-economics movement has affected review today in order to publish a three part article ) at its American law school curricula deeply. The national on tax liens. The current diet in the leading journals at doc- law schools now routinely offer courses and semi­ is mostly high falutin' constitutional law and theory, nars on the economic analysis of law, but the more gender and racial issues, and law-and-economics. striking development has been the reshaping of tradi­ Doctrinal analysis is disfavored, and a good rule tional courses, such as tort, contract, property, and of thumb is that the 'better' the journal the less

8 Robert E. Norton, Reagan's Imprint on the Courts, Fortune, g William T. Plumb, Jr., Federal Liens and Priorities-Agenda Nov. 24, 1986, at 121 (quoting Cudahy). for the Next Decade, 77 Yale L.J. 228, 605, 1104 (1967-68). 5 Scholarly and Professional Objectives in Legal Education: American Trends and English ~~PariSO

doctrinal scholarship it will publish. The presump­ the past three decades American law exploded in its only ( tive audience for the leading law reviews has scope and complexity. Whole fields such as environ­ adjun­ changed. Whereas they used to be addressed to the mental law and pension law have appeared, and tra­ reguh courts and the profession, today they aim mainly for ditional fields have expanded to take account of new Clii a readership in legal academia. waves of regulatory activity and case law. The para­ regulr Coursebooks and teaching materials continue to be dox is that as the law expands so relentlessly, the schol published by faculty at the national law schools, but national law schools are teaching less and less of it. a cOl: the leadership in this work has been shifting to In our teaching as in our scholarship, we have educr authors located at the state law schools. An attitude become more theoretical, but less attentive to the unde, of derision now attaches to teaching books at the grist ofthe professional mill. whilf national law schools. What 'counts' in hiring, promo­ A generation ago, the figure who dominated the syste: tion, and esteem is the scholarly monograph. law teaching profession was the charismatic class­ thec The last quarter century has been a golden age for room teacher. Today, the commanding figure is the litiga American legal scholarship. We have seen a profu­ scholar whose work governs academic discourse. cond­ sion of scholarly publication whose range, ambition, Teaching and scholarship need not stand in opposi­ of la' and quality is without compare in the history of tion, and I certainly adhere to that article of fait.~ of grow: American law schools. Yet ever less of our scholar­ the research university that scholarship informs ter Cl ship engages the inner life of the law at a level acces­ teaching. But a professoriate that is ever more theo­ misgi 1o sible to judges and practicing lawyers. More and retically inclined is in tension with the instructional tion, more, the scholars write for other scholars. needs of novice lawyers. As the national law schools rise c Career paths As American law teachers have have become ever more research-driven, their com­ legal become more scholarly and less oriented to the legal mitment to teaching has been subordinated. dent~ profession, the training patterns that produce them Upper level course requirements have been abol­ and: have changed. Just a generation back, I have said, ished everywhere. The expectation that governed the them young law professors who did not come directly from thinking of curriculum planners a generation ago was disp( judicial clerkships were recruited mostly from the that law schools should teach a great deal of law, that As t: bar, and virtually never from other academic depart­ they should produce graduates who were in some what ments. Today it is common for law teachers to have sense quasi-specialists. I think that the national law demr advanced degrees. Yale's experience, while hardly schools have largely abandoned that aspiration. They shou typical, is worth mentioning. Four younger profes­ feel obliged to offer no more than introductory ing tt sors have recently joined us with tenure, all holding courses in the main specialties, and they remit a lav or completing Ph.Ds (in economics, history, philoso­ advanced training to whatever on-the-job and do-it­ lectu phy); we have offers outstanding to two others, both oneself education their graduates can assemble in ting\) holders of Ph.Ds in economics. Doctoral degrees have law practice. not yet become union cards at the national law In fields of law that have an intensely practical schools as in the arts and sciences faculties, but the component, the national law schools find it difficult trend is unmistakable. to recruit permanent faculty who work at levels of Law reform Law reform work in the service of the theoretical ambition appropriate to the new norms. organized bar has faded from the elite law schools. Thus, as the seasoned specialists of the passing gen­ Restatement reporters no longer come from Harvard, eration retire in fields like taxation, securities, com­ and the Harvard seat on the Massachusetts mercial law, banking. employment law, and so forth, to the Uniform Law Commission simply lapsed in they are often not replaced. Increasingly in such the mid-1980s from disinterest. A broadly compara­ fields, the curriculum is taught by practicing ble disdain for the work of superintending and lawyers-so-called adjunct professors. Ifyour histori­ updating the close details of the law can be traced at cal vision is long enough, you can see in this devel­ Chicago, Columbia, Yale, and the rest. Today's opment an eerie turn of the circle back to the Restatement and Uniform Law Commission reporters apprenticeship patterns of legal education that pre­ come prevailingly from the state law schools. vailed in the nineteenth century. Before there were Curriculum The most worrisome decline, in my law schools, practicing lawyers trained law students view, has beEm curricular. The faculty of the national in law offices. Today we have practicing lawyers law schools seem ever less interested in law. Across training law students in university law schools. Not

10 Judge Edwards sounded this theme in an important paper. (1992). For responses see Symposium. Harry T. Edwards, The Growing Disjunction Between Legal 1\i1ichigan L. Rev, 1921 (1993). Education and the Legal Profession. 91 Michigan L. Rev. 34 6 John H. Langbein

din' only do we have practitioners serving episodically as national law school. To speak in the jargon of Ameri­ n.viro • adjuncts, we also have practitioners serving under can course numbering, I worry that the law schools nd tra.. regular appointments as so-called clinical professors. are offering Stratosphere 101 in the classroom and of new Clinical legal education As the orientation of the Xeroxing 101 in the clinic. We are neglecting ever e para. regular academic faculty has become ever more more just that level of intermediate aspiration that ly, the scholarly, the national law schools have experienced was our comparative advantage, the rigorous explo­ is of it. a countertrend of sorts, in the rise of clinical legal ration of legal doctrine and legal procedure. ~ have education. The clinics originated as public service Concluding comparisons English and American to the undertakings, to provide legal assistance to the poor legal education have so often influenced each other while giving law students some exposure to the legal that I remain optimistic that comparison continues to ed the system in operation. The clinical faculty who oversee have the power to instruct. I have pointed to the class- the clinics are not expected to be scholars. They are American law-and-economics movement as a funda­ is the litigators. Their job is to supervise students in the mental change in the nature of legal conceptualism. I ~ourse. conduct of litigation, agency work, and other forms am not calling on English law teachers to take up lpposi- of law practice. At most schools, the clinics have slide rules and burn their treatises, but I do caution ilith of grown immensely in prominence over the last quar­ that English law teachers cannot remain at the fore­ J.forms ter century. This is not the place for me to air my front even of classical common law fields if they } theo- misgivings about the boom in clinical legal educa­ remain as ignorant oflaw-and-economics as most are. ::tional tion, but it is worth mentioning that one factor in the The techniques and the findings of modern law-and­ chools rise ofthe clinics has been the decline ofprofessional economics are simply too powerful to ignore. : com- legal training in the academic curriculum. Our stu­ As for my colleagues in the national law schools in dents, intending professionals that they are, want the US, I would wish for them to reacquaint them­ I abol- and need more training in the skills that will help selves with the doctrinal life of the law in some of ed the them become practicing lawyers than we now seem the depth that it is still studied in England. Guenter ~o was disposed to teach them in the academic curriculum. Treitel spoke to me not long ago of the 'intellectual IV, that As the academic faculty increasingly defaults on feast' that he finds in the English law reports. Like some ~hat it used to do so well-providing intellectually their Continental counterparts, English legal aca­ allaw demanding training in advanced fields of law-we demics still take legal doctrine seriously. I should . They should not be surprised to see our students gravitat­ like to think that the pendulum will swing back in uctory ing to the clinics. In truth, dabbling with litigation in that direction in the United States, not to suppress remit a law school clinic is a frail substitute for the intel­ the new strands of academic law. but to achieve a do-it- lectual rigor and breadth of coverage that used to dis­ beUer accommodation between the scholarly and the ble in tinguish the upper level curriculum of a great professional. iCtiCal £licult -els of torms. g gen- com- forth, such tieing istori- fevel- a the .t pre- were !dents wyers ,. Not ~ ..

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