the bar examinations, which in many of their respective states are notoriously lax and inefficient.

There can, of course, be no serious question in this gathering but that the university law school has a more important service to perform than the mere preparation of its students for bar examinations. But to what extent legal education should be made to conform to university standards of sound scholarship is a question to which there is no unanimous answer, even from the members of this association. Has the law school properly performed its function when it has fitted its graduates for admission to the bar and qualified them to begin their apprenticeship in law offices, or should it go further, and even at the sacrifice of immediate practical advantage bend its energies toward giving to its students sound theoretical training from the scholarly and possibly more academic point of view? A few of the law schools of the country, far too few, the writer believes, have answered this question in the affirmative; but the greater number yield in varying degrees to the ever-pressing and insistent demand for instruction which will fit the student for the bar examination, or carry him a little further along toward the completion of his law clerkship than he would have been carried by a like period of study in a lawyer's office.

In answering the question, What is the function of the university law school? it should be borne in mind that the entire history of legal education teaches us that the law school is peculiarly the place for the student to become master of the principles of law from the scholarly and theoretical point of view. It is because of this that the law school has succeeded in competition with the lawyer's office as an instrument of legal instruction. It is only in the law school that the student has opportunity for systematic investigation under competent instruction into the origin, history, nature, and application of the great body of principles which go to make up our common-law and equity systems. It is in the law school only that he can receive adequate training in those powers of analysis and discrimination in dealing with legal problems which are indispensable to the intellectual equipment of the competent lawyer. The training of the law office, even under the more favorable conditions which obtained one or two generations ago, could not compare in this respect with the advantages afforded by the efficient modern law school, and under modern conditions systematic training in legal principles in the law office is an impossibility.

But while the law office is not, and in the nature of things. cannot be, a competent school of instruction for systematic training, we are bound to recognize that no law school could be better adapted than the law office to give to the young practitioner some of the

training essential to his success. No law school, for example, is as well adapted to teaching the apprentice how to prepare a case for trial, or to conduct the trial, or for teaching him how to collect and make use of evidence; and it may be doubted whether the law school, when once the first principles are mastered, can ever surpass the law office as a place in which to train students in the drawing of pleadings and the preparation of the various practice papers incidental to a litigation.

In determining the function of the law school in the university, therefore, we must frankly recognize that it can only supply the student with a part of the intellectual training and experience necessary to make him a competent practitioner. But, on the other hand, it must be remembered that the absolutely essential and vital part of his legal education, viz., sound theoretical training, can be provided only by the law school which maintains the scholarly ideals of the university. It is therefore the function and duty of the law school to bring to bear all the powers of its scholarship and all the skill of its teaching in providing such training. Its first duty and highest privilege is the stimulation and training of the student's powers of analysis and discrimination in dealing with legal problems, to the end that its graduates may possess trained legal minds, familiar with legal principles, rather than minds stored with an accumulation of rules and exceptions, or lumbered with memorized precedents.

But if the law school is to devote itself primarily to training and to the study of legal principles, is there not danger that it will become too theoretical, too academic, and thus defeat its own purpose as a vocational school? This, of course, is a very real danger, if the law school does not so control and shape its instruction as to give to its training a practical character and application.

I well remember a young man who graduated from one of our best-known law schools and began his period of clerkship in a New York law office. On being directed to look up a point of law, he returned to his employer after a couple of days and reported that he had given the matter very careful thought and consideration and as a result he had come to the conclusion that the law was thus and so. His opinion was well reasoned and theoretically sound, but unfortunately, while there was no authoritative decision on the point by our higher courts, the Supreme Court, which is the court of original jurisdiction in our state, had taken a different and diametrically opposite view of the subject, and had expressed its view in a number of available opinions, search for which our young friend had not considered important, in view of his own carefully prepared opinion, and in the absence of a decision of our higher courts. It is only fair to say that that young man with increasing experience, has become an extremely sound and capable

lawyer, and he possesses a breadth of view and an understanding of the principles of the law which he never would have acquired had his legal education been limited to cramming his mind with rules and exceptions and the latest decisions of the particular jurisdiction in which he expected to practice. But it was not fair to the young man, nor to his profession, that the law school should give him such an impractical view of the law as was indicated in his first attempt to apply its training.

A well-known law office in New York City, which selects all its clerks from the graduates of two of our well-known schools, posts the following notices in its library: The first reads: "The law of New York is determined by the courts of New York." The second reads: "You will find an authority on every point in your case, if you search for it." The members of that firm recognize the value of the theoretical training given by those schools; but the notice posted in their library shows that they realize likewise the weakness and danger of such training, unless subjected to proper influences.

The use of decided cases as the basis of all classroom discussion, now generally adopted by the law schools of the country, not only tends to accuracy and precision of thought on the part of the student, but it gives reality and the immediate practical application to the theories which they embody, and is unquestionably of great advantage in giving the legal education acquired by that method a soundness and practical character which it would not otherwise possess. But there is always danger that the decided cases may be used to prove a theory rather than test its soundness, and unfortunately support may be found for almost any theory, if the instructor is not limited as to his jurisdiction. The young man to whom I have referred was trained under the case system, and my observation leads me to believe that his case was in no way exceptional. The danger, then, that the law school which is devoting itself primarily to legal training along the lines which seem most desirable will become too academic in spirit is not removed wholly by the study of law from cases.

To avoid this danger the instructor himself, particularly in private law, must have had experience, and must have been subjected to influences which will insure his emphasizing the true relation of his instruction, however theoretical, to the law as an actually existing practical system for the administration of justice. This experience and these influences come only from having actively engaged in the actual practice of the law. It is there that the lawyer becomes familiar with the difficulties in the application of legal theories and with the practical considerations which are important, if not controlling, in determining the forms of practice and

the substantive rights of litigants. It is believed that there is no more dangerous tendency in legal education at the present time than the too common practice of calling young men just graduated from a law school to the important work of law teaching, exclusively private law subjects, before they have had actual experience in practice. In making this assertion I am not unmindful of the brilliant and successful exceptions to what I believe is the sound general rule. If it is true that the function of the law school is to approach the study of law from the theoretical and scholarly side, it is equally true that it must not become so academic as to separate itself from the profession which it represents and for the practice of which it undertakes to train its students. Yet how can this result be avoided if its teachers, or any considerable number of them, have no actual experience in its practice and have never acquired by contact its sentiments and traditions?

But can the teacher, having had experience in practice, be depended upon to approach his subject from the theoretical viewpoint? I am aware that the opinion exists among law teachers and administrators that he cannot, or at least will not, so approach it, and that the practice of the profession for any considerable period tends to de stroy his capacity for what Profession Williston, in his admirable address of two years ago, called "idealism in law teaching." This is a grave charge to lay at the door of any profession, if true; but my observation leads to the conclusion that it is not true. The fact is that competent teachers of law are born, not made exclusively by training

or

environment. Of the thousands who prove themselves competent students or practitioners of the law, only a few can be depended upon to become successful teachers of law. Every law school administrator recognizes that success at the law is no guaranty of success in the professor's chair, not because the incumbent has been in practice, but because he does not possess the gift. This, then, does not mean that success at the law is inconsistent with successful law teaching. There are no data on which to base the conclusion that any lawyer who once possessed the gift of teaching law has lost or impaired it by engaging or continuing in practice. I have known personally too many examples of law teachers whose capacity for idealism in law teaching had been stimulated and expanded on the one hand, as well as tempered and controlled on the other, by experience in practice, to concur in any such view.

To insist as a general rule that the law teachers must qualify by a reasonable period of experience in practice seems not an unreasonable requirement, although it will undoubtedly add to the burdens and perplexities of the law school administrator.

He should, however, encourage the junior members of his teaching staff, having demonstrated capacity for law teaching to continue in practice for a period sufficient at least to give them the practicing lawyer's point of view, and to enable them to acquire a first-hand knowledge of those practical considerations which influence or control the application of legal theories. Ultimately the teachers in the law school, or most of them, should give their whole time to the work of law teaching and to promoting the interests of the law school as an educational institution. This would be the ideal condition. But, personally, rather than forego the benefit to legal education of instruction by teachers experienced in practice, I would gladly retain in a law faculty a number of practicing lawyers, provided, of course, they possessed the gift of teaching law from the theoretical point of view and devoted themselves unreservedly to the interests of the school. A faculty so constituted would, to my mind, be far preferable to one composed exclusively, or largely, of teachers without actual experience in practice, and would insure the full performance by the school so equipped of its functions as a Vocational school and as an educational institution in a larger and broader sense.

It is, perhaps, a corollary of the principle that the law school should approach its subject from the scholarly and scientific side, that it should not become localized either in spirit or in the application of its teaching. It cannot be scholarly or scientific if it teaches the law with reference only to its peculiar development in the local jurisdiction, and consequently without that breadth of view and that searching inquiry which should characterize all sound professional training.

I do not desire to reopen the discussion as to the advantages and disadvantages of the purely localized law school, which has occupied the attention of this association at previous meetings, or to restate the arguments which convince me that the exposition of local law should be only incidental (although an important incident) to the larger scheme of tracing the development of legal principles from their English sources and their examination in the light of precedents which are illuminating, whatever their jurisdiction.

Whatever view may be taken of this subject, we cannot ignore the situation which actually exists. The law schools of the country have increased in such number that there is now probably not a state in the Union without one or more law schools within its bounds. A great number of them, probably the majority, must therefore necessarily be local in influence, and consequently largely controlled by local influences. The demands of expediency, the unseen and unfelt influences of environment, must make their

impression, unless those in control of the policy of these schools take a broad view of their function as educational institutions.

Even those who argue for the localized law school would, I presume, agree that it would be a calamity if the law schools in each of our states were devoting themselves to teaching the law as it exists in their own particular jurisdiction, without reference to the development of the law in other jurisdictions. Such a condition would be one of educational anarchy, disastrous alike to sound professional education and to the future development of the law in the United States. There is, of course, no likelihood that we shall reach such a condition of affairs in legal education; but that there should be a tendency in that direction seems inevitable, when one takes into account the number, location, and organization of our law schools.

It is important, therefore, for those interested in law teaching that they should be on their guard against those influences which would tend to provincialize legal education. To those teachers in large and established schools drawing their students from all sections of the country this word of warning is perhaps unnecessary; but, as I have already shown, these constitute but a small minority of the law schools of the United States. The great majority are of comparatively recent origin, and have yet to demonstrate that they deserve success in its broadest sense as educational institutions. They will merit success, and in the end will achieve and retain it, only by keeping steadfastly in view the true function of the law school as an educational institution for providing the theoretical training for a learned profession, a training which, however exacting and intensive it may be, must never be narrow, and must never leave out of account the development of the law as a whole.

Emphasis of the proper and important functions of the law school necessarily by contrast emphasizes those functions of legal training of lesser importance, or which possibly do not belong to the law school at all. Recognizing that the law school has supplanted the law office as an instrumentality for legal instruction because of its superiority in certain directions, we must also recognize that in certain other directions the law office and the courtroom are superior agencies for legal training. If, therefore, we attempt to do what the office can do better than the law school at the expense of the training which the law school can do better than the office, there is always danger of economic loss, not to say of wasted opportunities.

Some of the law schools of the country are now trying the experiment of conducting a "legal aid dispensary," in which students, a part of their regular required work

as

are assigned to act as attorneys for worthy persons unable to pay the fees usually charged by attorneys. In others, a substantial part of the required work of students is the conduct of moot courts under the guidance of members of the faculty. It may be questioned whether these experiments, judged from the viewpoint of the proper function of the law school, will prove to be profitable. Three years, the usual period of law school study, if used to the best possible advantage, is none too long for the acquisition of a working knowledge of the principles of the law. No branch of study, if carried on thoroughly and scientifically, is more exacting or more absorbing. The common experience is that the student's entire working time during the three years of the law course is completely occupied in the study of the principles of the law. When he leaves the law school, his opportunity for this kind of study and training under the guidance of competent instructors is ended; but his opportunity to conduct a "legal aid dispensary" begins, and will continue during his entire professional career. Whether he avails himself of that particular kind of opportunity or not, his facilities for becoming familiar with the details of office and court practice are better than anything that the law school can possibly provide, and they will be available as long as he continues to practice his profession. How, then, can there be any question but that the "legal aid dispensary" and the moot court, when they displace any substantial part of the curriculum dealing scientifically with legal principles or with legal theories, cost more than they are worth?

The wise law school administrator will advise his students to secure their office and court experience in vacation time and after the completion of the law course, and will encourage his students to organize and conduct their own moot courts, with the assistance of members of the faculty and practicing members of the bar, whose assistance is usually gladly given. Thus organized, the legal aid dispensary feature of the curriculum is subordinated, as it should be, to the main business of the law school, which is sound theoretical training by competent instructors of practical experience.

Although law has been taught and studied more assiduously here than in any other country, this country has been singularly unproductive of a meritorious legal literature. A few treatises which have become standard were written early in the last century. A series of monographs of importance, written by university law professors, have appeared in law school publications and legal periodicals, and a few excellent treatises on special subjects, also by university professors, have appeared of late; but by far the greater number of law books now appearing are

ers.

Although the training of students for professional work must always be the chief function of the law school, the law school in the university should provide a broader education than is absolutely necessary to meet professional requirements, and it should train at least a few legal scholars and writIt would undoubtedly be unwise to encourage any considerable number of students intending to practice law to prolong their legal studies beyond the generally adopted three-year period. On the other hand, the more limited number of students who may be interested in legal research, or desire to carry on special work which may result in the production of a worthier legal literature, should be afforded opportunity so to do by the university law school. The award of an advanced or higher degree by several law schools in the country indicates a tendency to recognize this function of the law school. In laying out any such program of study, it is important that it should follow, and not parallel, the professional law courses. This is essential, not only to secure the proper preliminary training for the advanced student, but that the professional course, as such, should not be impaired by carrying on in conjunction with it courses devised for other purposes, and leading to a different and possibly more high-sounding degree.

Moreover, such a course should be something more than a continuation of the professional law course during a fourth year or longer period. The law student, having attended lectures and acquired the training of the professional law school for three years, is presumably qualified to conduct an investigation in a legal subject outside the classroom. The amount of formal classroom work should therefore be reduced during the fourth year, and the student should be required to carry on an investigation along special lines under the guidance of the professor. He should be encouraged to productive effort by the requirement of a thesis or dissertation, which might even be prepared at the close of the fourth or during the following year of his course. These suggestions are intended to indicate in a general way only the lines along which such an advanced course in law should be developed, if the experiment is to be justified by its results in productive scholarship.

Another function of the university law school is suggested by the very disturbing increase in the number of cases of unprofessional conduct by members of the bar. Without at this time attempting to analyze the statistics relating to this unpleasant subject, it may be said that the very large and increasing number of such cases is a subject of serious concern to the bench and bar of the country, and may well invite the attention of those whose duty it is to guide the young lawyer at the very outset of his career. Nor can we, as law school instructors, wholly disclaim responsibility. Every law school, unfortunately, has its graduates among those found, or deserving to be found, unworthy members of the profession. Doubtless this condition is due to complex causes, but I am convinced that among them will be found the fact that the great majority of the profession go directly to the bar from the law school, and the law school has signally failed to transmit to its students as a class the professional ideals and traditions which were formerly acquired by the law clerk as a matter of course during his apprenticeship. The greater number of cases of professional misconduct, excepting, of course, those of the grosser or criminal type, are the direct result of ignorance, or an imperfect notion of the nature and extent of the obligations of the lawyer. So long as the law student is permitted to go directly to the bar on graduation from the law school, it is clearly incumbent on the law school to see to it that he goes with some definite knowledge of the nature of his obligations as a lawyer and it ought to do what may be done to give him definite professional ideals. Fidelity to professional ideals cannot, of course, be inculcated by instruction. The problem is, therefore, in the main, not so much one of intellectual training, as it is of judicious stimulation of the student's interest in professional ideals and traditions. The best method of bringing this about will, of course, depend upon local conditions. Whatever stimulates independent thought and discussion in the student community should be relied upon to stimulate thought and discussion upon this subject. Formal lectures or instruction in legal ethics is of doubtful efficacy. Occasional informal addresses by members of the bar or members of the faculty having a bearing on professional conduct will be found to be helpful.

My own belief is that, in addition to other efforts in this direction, every law school should require its graduating class to attend at least three or four lectures or informal talks to be given by members of its faculty, in which they should be informed in some detail as to the nature of the lawyer's obligations to the court and to his fellow members of the bar, as well as to his client, and in which there should be pointed out to the young lawyer those practices

more or less prevalent at the bar which he would do well to avoid.

Whatever the method adopted, the important point is that the subject is one on which the law schools of the country ought to bestow more consideration than they are be stowing at present. Like many other problems, this particular one may be expected to solve itself, when once it becomes the subject of discussion; but I am firmly convinced that the law schools of the country, by giving to this subject the attention which it reasonably deserves, can do more to elevate the tone of the bar than can be accomplished by the courts and the combined efforts of the bar associations, city, county, state, and national.

To teach law as a science rather than as an instrumentality of a money-making trade; to teach it from its theoretical side by teachers experienced in practice; to encourage legal research and the production of legal literature; and, finally, to stimulate in the student knowledge of, and respect for, the professional obligations of the lawyer-are at once the high privilege and duty of the law schools of this country. The rapid increase in the number of law schools and the everpresent demand for some royal road to legal learning, provided always it be speedy and easily traveled, make it difficult, and perhaps impossible, for all to attain to these requirements. Indeed, perhaps the most serious hindrance to the progress of legal education in the past decade has been the rapid increase in the number of law schools, resulting in the assumption by new and weak institutions of educational burdens and responsibilities which could have been better carried by the old and strong. Economically the doing by two institutions of what could be better done by one is wasteful, and inevitably results for a period, whatever the final outcome, in a lowering of standards and a loss of efficiency. There is no pressing demand for an increase in the number of lawyers, or for stimulating unduly the activity in pressing for admission to our law schools. Rather than an increase in number of law schools, the country has been, and still is, in need of higher standards of legal education, and some effective action by our law schools to dissuade the unfit, both morally and intellectually, from entering the profession at all. It is, of course, difficult to bring this about with a mulitude of new law schools striving for students and stimulating the desire to enter an already crowded profession. As members of that profession, and as teachers on whom rests a large responsibility toward our profession, we should unite in the effort to bring the law schools of the country more into harmony with university ideals and standards of scholarship, to the end that the system of legal education which is in the process of establishment in this country may be in all