Reprinted with permission. Draft – not to be quoted. THE REPUBLIC OF MERIT: HARVARD LAW SCHOOL,
THE FIRST CENTURY (1817-1910)
THE BICENTENNIAL HISTORY OF HARVARD LAW SCHOOL,
VOLUME I
Daniel R. Coquillette
J. Donald Monan S.J. University Professor, Boston College Law School
Charles Warren Visiting Professor of American Legal History, Harvard Law School
Former Dean, Boston College Law School
Bruce A. Kimball
Professor of Professional Education and Former Director, School of Educational
Policies and Leadership
Ohio State University
1 Reprinted with permission. Draft – not to be quoted. PREFACE: RADICAL IDEAS
“Radical,” from the Latin radix or radicis (root), is not the term that would
routinely come to mind as a preface to the history of the first century of a school
that is, today, a cornerstone of the legal establishment. But the greatness of
Harvard Law School has its origin in radical thinking, in ideas that literally went to
the roots of preceding institution and ideologies, pulled them up, and replaced
them with something new. As Langdell wrote, “Warn students that I entertain
heretical thoughts….” 1
As with any important school, Harvard Law School in the nineteenth century
was impenetrably complex, full of the innumerable narratives and intellectual
debates that mark the human spirit in all ages. But three fundamental ideas, three
transformative, radical ideas, stand out, rise above the static of the usual discourse
in a way that is really beyond argument.
A. THE FOUNDING IDEA
Legal education before 1817 took many different forms throughout the
world. From the Roman law based canon and civilian studies of the great
European universities to those great trade guilds, the London Inns of Court. It was
a rich mix of tradition, pedagogies, successes and failures. Further, America had
its own traditions.
And then there was a strong system of legal apprenticeship. Recent study
has shown this system to be more interactive, systematic, and effective than
previously suspected, a cornerstone of legal elitism in key colonies. John Adams,
Josiah Quincy, James Madison, Robert Treat Paine, James Otis, John Marshall,
Joseph Story and, of course, Abraham Lincoln were great lawyers – trained by
apprenticeship.
But the small group of men that gathered in Cambridge in 1815 to figure out
what to do with a modest bequest to Harvard College followed none of these paths.
1
See Bruce Kimball, “’Warn Students that I Entertain Heretical Opinions, Which They are Not to Take as Law’: The Inception of Case Method Teaching in the Classroom of the Early C. C. Langdell, 1870‐1883,” 17 Law and History Review (1999), 57‐140. 2 Reprinted with permission. Draft – not to be quoted. Isaac Royall, a wealthy plantation owner and slave master, had made a will whose
intent was conventional. Following the lead of Oxford’s Vinerian Chair, founded
by Charles Viner in 1756, and numerous American imitations, he wished to
establish a chair in law or medicine. Harvard was to choose. The purpose was to
provide an enriching, humanistic perspective for college undergraduates. It was a
generous, but, by the time, a routine notion. What motivated the likes of Chief
Justice Isaac Parker, President Josiah Quincy, and Overseer Joseph Story – pretty
conventional establishment figures – to reject the donor’s clear will and do
something totally different? This remains a true mystery story.
What they created was a radical innovation, a free-standing professional
school within a University “for the instruction [in law] of graduates of this or any
other University, and for such others as, according to the rules of admission, as
attorneys may be admitted after five years study in the office of some
Counsellor.…” 2 With narrow exceptions, the great English and Continental
universities did not teach the professional practice of law, and the great guilds of
the Inns of Court were not universities. Nor were the proprietary schools, such as
Litchfield, which were really extensions of successful law firm apprenticeship
programs. What came into existence in Cambridge in 1817 was different –
fundamentally, radically different. And, after ten years, it appeared to have failed
completely. In 1827 the school had either one, two, or three students. 3
2
Resolution of the Corporation of Harvard University, May 14, 1817, paragraph 1. See Charles Warren, History of the Harvard Law School and of Early Legal Conditions in America (New York, 1908), vol. 1, 305‐307. (Hereafter, Warren). 3
Joseph Story, writing in retrospect in his 1842 will, said that “When I came to Cambridge [August, 1829] and undertook the duties of my Professorship, there had not been a single law student there for the preceding year.” Life and Letters of Joseph Story, vol. II, 532. O. W. Holmes, the literary father of the great Justice, who entered the Law School in September, 1829, said that there was “one solitary individual.” John T. Morse, in Life and Letters of Oliver Wendell Holmes (Boston, 1890), vol. I, 62. Arthur Sutherland, to whom I owe the above reference, argued that there must have been “more than one student actually in residence” because the corporation, in its April 16, 1829 vote accepting Stearns’ resignation, allowed him “his usual tuition fees… for the students in the Law School at the time of his resignation.” Arthur Sutherland, The Law at Harvard: A History of Ideas and Men, 1817‐1907 (Cambridge, 1967), 89. (Hereafter, Sutherland). The chronological list in the Quinquennial Catalogue of the Law School of Harvard University (Cambridge, 1935), gives the names of three students who left in 1829: John William Pitt Abbott, LL.B. 1830, Edward Holyoke Hedge, B.A. ’28, and John Parker Tarbell, B.A. ’26, neither of whom stayed to earn the LL.B. Id., 5. According to Samuel F. Batchelder, it was Tarbell who was the “solitary student” surviving. Bits of Harvard History (Cambridge, 1924), 205. No matter if the number was one or three, it would still be the best faculty to student ratio in the School’s history! 3 Reprinted with permission. Draft – not to be quoted. B. STORY’S IDEA
In the early nineteenth century, American legal education was profoundly
local, with the noted exception of Litchfield. The occasional wealthy, and usually
Southern, young man would be sent to the Inns of Court, often by doting parents
that were unaware that the Inns had become a hotbed of dissipation… but that was
the exception. 4 Each state had its own laws and legal culture, and apprenticeship
was, first and foremost, local.
In addition, the American bar was hardly meritocratic. Quite apart from the
complete apartheid against women and blacks, young men were ranked at Harvard,
not by ability, but by social standing. 5 Part of the essence of the Federalist
ideology was that family counted, and that civic duty was passed from generation
to generation. Even in Harvard’s twentieth century, Abbott Lawrence Lowell –
unlike his successor, James Conant – saw virtue in family continuity and elite
upbringing, and looked down on immigrants and Jews. 6
Nathan Dane, wealthy, like Vines, from the publication of a legal
abridgement, watched the Law School’s decline with increasing horror. Only one
man, in Dane’s opinion, could save the School. Joseph Story, at age thirty-two,
was the youngest United States Supreme Court Justice in history. Far more
important, as an Overseer of Harvard he had participated directly in the bold
experiment of 1817. Dane would endow a second chair in the Law School, and
build a building, on the one condition that Story would be appointed.
4
See E. Alfred Jones, American Members of the Inns of Court (London, 1924), IX‐XXX. “In fact, many Virginians who were members of an Inn had no intention of ever practicing law but joined for purely social purposes.” W. Hamilton Bryson, Legal Education in Virginia 1779‐1879 (Charlottesville, 1982), 9. On the “marked decay” of the Inns as a “‘system’ of legal education,” see David Lemmings, Gentlemen and Barristers: The Inns of Court and the English Bar 1686‐1730 (Oxford, 1990), 75‐109. 5
See Samuel Eliot Morison, Three Centuries of Harvard, 1636‐1936 (Cambridge, Mass., 1965). “[B]y 1749 the entire class were placed in the order of the presumed official or social rank of their parents….” Id., 104‐105. 6
See Morton Keller, Phyllis Keller, Making Harvard Modern: The Rise of America’s University (updated edition, Oxford, 2007, 14‐26. (Hereafter, Keller.) Lowell “attempted in the 1920s to restrict the number of Jewish undergraduates and keep black freshmen out of the Harvard dorms.” Id., 14. See generally Alex Duke, Importing Oxbridge (New Haven, 1996). 4 Reprinted with permission. Draft – not to be quoted. Of course, Story would not be required to resign his judgeship and, on being
approached by Quincy, he insisted that the Royall be used to appoint a “Mr. Inside”
to cover the day-to-day operation of the School. This led to what Sutherland has
called “a shameful chapter” in the School’s history, when Asahel Stearns, despite
an honorary degree from Harvard, was forced out, and replaced by Story’s man,
John Ashmun, the successful teacher at the Northampton proprietory law school.
With his commitments in place, Story began to pursue the second great,
radical idea in Harvard Law School’s history. Despite his Salem origins, Story was
not a Federalist, but a Republican. He was repulsed, all his life, by hereditary
entitlement. But neither was he an egalitarian. Jacksonian Democrats could hardly
be entrusted with the New Republic, pandering to the lowest political
denomination. The answer was not equality – people were not equal in ability –
but equality of opportunity. An elite of merit, chosen for motivation and natural
talent. These would be the Ciceros of the New Republic. 7
But this was not all. America could no longer survive as a string of colonies
along the ocean, only vaguely in communication with each other and deeply
divided in professional and legal culture. The New Republic had to be a true
nation, and this meant truly national institutions, designed to develop a national
leadership.
A national law school, dedicated to attracting and educating a meritocratic
elite! This was Story’s vision. Combined with the first great radical breakthrough,
to which he also contributed, we have a truly professional law school, sponsored
by a great university, attracting a national applicant pool, chosen not for political or
social connections, but by merit and motivation. In 1827, this was a radical idea,
and, indeed, it would take generations to achieve in practice. But it was a very
great idea – and, to this day, it is at the heart of the Harvard Law School. It is its
ideological soul.
The supreme irony is that the onset of the Civil War underscored, in blood,
the success of Story’s dream. Story saw the disaster coming, and the result was his
notorious cases supporting the Fugitive Slave Act. Most horrible was Prigg v.
Pennsylvania (1842), where a slave mother and her two children, born free in
7
See R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (Chapel Hill, 1985), 11‐
36, 239‐270. (Hereafter, Newmyer.) 5 Reprinted with permission. Draft – not to be quoted. Pennsylvania, were returned to slavery in Maryland. 8 Story, who sought to
establish a national federal law in Swift v. Tyson (1842), knew that a national law
school required a nation. 9 To save that nation, he was prepared to take steps that,
today, are hard to accept on any terms and which, in the 1850s, led the Southern
students at Harvard Law School to call their pro-slavery association the “Story
Society” in Story’s honor.
Largely due to Story’s efforts, the 1850s saw more than two hundred and
seventy students from slave states at Harvard Law School. Over two hundred and
twenty six fought for the Confederacy, in addition to seven more from non-slave
states. Three Confederate major generals, eight Conferderate brigadier generals,
sixteen Confederate colonels, and nine members of the Confederate Congress were
Harvard Law School alumni. More than forty-eight died in combat, an appalling
fatality rate of over twenty percent. 10
They died fighting their classmates. Three hundred and twenty six fought
for the Union, and over fifty two died, a seventeen percent fatality rate. Altogether,
1865 saw more than one hundred Law School alumni dead, closely divided
between North and South, a total, given the School’s small size, that exceeded all
subsequent American wars combined. It was the virtual equivalent of two entire
classes, and it was the nightmare that Story feared. 11
C. LANGDELL’S IDEA
One student not killed in the fighting was Oliver Wendell Holmes, Jr. It was
a miracle. Wounded at Ball’s Bluff, Antietam, and Fredericksburg, he nearly died
8
Id., 365‐374. See Prigg v. Pennsylvania, 16 Peters 539, 41 U.S. 539 (1842). 9
Newmyer, supra, 334‐342. See Swift v. Tyson, 16 Peters 1, 41 U.S. 1 (1842). 10
I am most grateful to my research assistant, Bridget Devoy, Harvard 2012, and to my former student Andrew S. Friedberg, Harvard 2004, for their excellent assistance on establishing these figures. See Andrew S. Friedberg, “The Forgotten Sons: Harvard Law Students in the Confederacy, 1861‐1865,” unpublished paper on file with author, 2004. See also the thorough work of Helen P. Trimpi, Crimson Confederates: Harvard Men Who Fought for the South (Knoxville, 2010). (Hereafter, Trimpi.) 11
See Newmyer, supra, 344‐378. The simple fact of slavery’s growth frustrated Story’s efforts. “In 1790 there were 697,624 slaves, in 1840, there were 2,487,355….” Id., 366. 6 Reprinted with permission. Draft – not to be quoted. twice, but he survived. Following the war, he attended Harvard Law School,
graduating in the class of 1866. The war had smashed Holmes’s faith, and Harvard
Law School was a deep disappointment. In 1870, writing with Arthur G. Sedgwick
’67 in the American Law Review, Holmes called the School “almost a disgrace to
the Commonwealth of Massachusetts.” 12
The new President of Harvard, Charles Eliot, took note. He was destined to
serve for an incredible forty years, from 1869 to 1909. Eliot saw modernizing the
Law School, together with the Medical School, as a top priority. Some would say
the great radical decisions of the 1870’s were Eliot’s. The first was to appoint a
Dean to the School, a hitherto unknown notion. More important was who he
appointed as Dean. Eliot recalled an odd man, old to be a graduate student, who
ate supper with him at the Old Divinity School. This man captivated Eliot, a
chemist, by describing legal study as “a science,” arguing that, as in a laboratory,
dissection and analysis of legal cases could derive fundamentally true principles of
justice. In 1869, Christopher Columbus Langdell had no academic experience at
all, and was practicing law in New York. Eliot tracked him down, and offered him
the Deanship of Harvard Law School on the spot. It was a long shot.
Christopher Columbus Langdell was one of the great appointments of all
time. His approach to conventional law school pedagogy was revolutionary, and
within ten years he had transformed the School. The outcry, both by faculty and
students, would have defeated most modern deans, but relentlessly backed by
Eliot, Langdell cast Harvard in his intellectual mold and, as it turned out, most of
American legal education as well.
Here was Langdell’s great idea. Like natural science, law has certain formal
principles that can be intellectually demonstrated. And like science, the most
effective way to teach these principles is in the laboratory of ideas, where students
can interact directly with raw data and, through their own efforts, demonstrate the
truth. The data in the science of chemistry, for example, might take the form of
natural compounds, and the interaction, laboratory experiments, run by the students
themselves, testing formal principles against the raw data. In law, the raw data are
the reported cases of the courts, and the laboratory is the interactive classroom,
12
See American Law Review, October 1870, set out in Joel Parker, The Law School of Harvard College (New York, 1871), 3‐4. (Hereafter, Parker.) 7 Reprinted with permission. Draft – not to be quoted. where individual students are tested in Socratic examination to derive, for
themselves, the formal principles of the law.
To advance these goals, Langdell published, in 1871, the first casebook. 13
The students were appalled. There was no commentary at all, just the cases
organized into chapters. What is worse, class consisted not of the teacher
explaining these opaque cases, but asking the students to explain them. It was
ridiculous.
But this was not all. Langdell’s formalism was hardly Holmes’s choice as a
good solution for the School’s decline, but Langdell took very seriously Holmes’s
concern with quality. Story’s great idea of national meritocracy must be achieved
in practice, not just in theory. Its enemies were absence of structure, social elitism,
and lack of accountability. As a poor farmer’s boy from New Hampshire, Langdell
had contempt for the socially “wired” establishment of Boston. His solution,
something Story dared not attempt, was a fixed, required curriculum, and
autonomous, graded examinations. 14 His hope was that public ranking of
examination results, i.e., “rank in class,” together with “grade on” honorary clubs –
such as the Law Review, the Board of Student Advisors, and the Legal Aid Bureau,
would supplant the social elitism of the moot court clubs – such as the famous Pow
Wow Club – with a true meritocracy.
The financial underpinning of this vision was large classes with a small
number of faculty, resulting in an annual operating surplus. Attendance soared
from 125 in 1872 to over four hundred in 1892. From 1878 to 1911 there was a
surplus every year, with a faculty built on just four great teachers, Langdell,
Thayer, Gray, and Ames. Austin Hall, completed in 1883, was the physical
manifestation of this vision, with only four huge classrooms accommodating over
one hundred thirty students each, a library, and a few faculty study areas.
Given these conditions, the pedagogy of the “Socratic Method,” which puts
every student, even in a very large class, on constant alert, together with the
analytical study of cases through “case books” was a true stroke of genius. From a
beginning of consistent skepticism and doubt, Langdell’s ideas of combining
13
Christopher Columbus Langdell, Cases on the Law of Contracts: With References and Citations (Boston, 1871). 14
See generally Bruce A. Kimball, The Inception of Modern Professional Education: C.C. Langdell, 1826‐1906 (Chapel Hill, 2009), 130‐165. 8 Reprinted with permission. Draft – not to be quoted. Story’s meritocracy with formalist pedagogy began to gain national attention. By
1906, a grand new building – named for Langdell – was opened. Like Austin Hall,
it contained only large classrooms and an upstairs library. The remaining surplus
established the Langdell Chair in 1903, initially occupied by Eugene Waybaugh.
Even today, we can say to our students that their legal education – casebooks,
Socratic method, required first-year curriculum, compulsive competition for grades
and rank in class, “grade on” law reviews, poor faculty-student ratios, and
mandatory three year duration – owes more to Langdell than any other figure, not
just in the last century and a half, but in all history.
D. IDEAS AND IDEOLOGY: SO WHAT?
These three great “radical” transformational ideas: the founding concept of
the professional, university law school, Story’s idea of a legally trained national
“elite,” and Langdell’s idea of a formalist pedagogy that leveraged small faculties
and promoted meritocracy, were hardly the entire story of Harvard’s nineteenth
century. It was far more complex, far more interesting than that, and figures like
Simon Greenleaf and James Barr Ames, men of genius themselves, had their own
major contributions, both academically and ideologically. Other major figures in
the Law School’s history, including Oliver Wendell Holmes Jr., aligned themselves
against Langdell’s formalism, if not his pedagogy.
The century concludes with the fifteen year deanship of James Barr Ames
(1895-1910), Langdell’s loyal disciple. In many ways, this was Harvard Law
School’s “golden hour,” its national stature and its academic dominance unrivaled
as it prepared to celebrate the Centennial. But, as we shall see, the elevation of
“radical” to “orthodox” brought with it the seeds of decay, financially,
ideologically, and morally. Operational surpluses led to disastrous failure to raise
endowment. Formalism would paralyze important social realist thought, vital to a
new century. The “level playing field,” so important to Story and Langdell’s vision
of a national, meritocratic elite, was not extended equally to Latinos, blacks and
Jews. There were no Asian-Americans. To women, no opportunity was extended
at all. Charles Eliot resigned in 1909, declaring Langdell’s appointment as one of
his “two major achievements” in forty years as President – together with reforming
9 Reprinted with permission. Draft – not to be quoted. the Medical School. But the hour of Abbott Lawrence Lowell, LL. B 1880, the
archetypal anti-Semitic academic conservative, was soon to come.
Great ideas have a force of their own, independent of ambiguous historical
contexts and the frailties of their authors. Harvard Law School’s first century is far
removed from our lives, its leaders long dead, and even most of its second century
can seem like a different, remote world. But for those that believe in the unity of
professionalism and academic excellence, for those that hope for national
leadership based on merit alone, and for those that aspire to radical, ongoing
reform of legal science and pedagogy, Harvard Law School’s first century, with all
its triumphs and failures, is not about antiquarianism, much less nostalgia. It is a
living challenge. It dares us to look again at our own biases and assumptions. It
asks if we have the courage and humility to defend what is priceless in our
ideological roots, and to change what is wrong and defective. For all their faults,
the leaders of the Law School’s first century pursued a great vision, and today, in
many ways, it is still our goal, and our duty, to make the best of that vision real,
and to forthrightly amend the rest. Thus our dedication: “From the Age that is
Past to the Age that is waiting before.”
10