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competent lawyers, only those that have the elements of a lawyer in them. But each and every one of them will make of himself the more competent lawyer by the more he develops his own individual reasoning power.
Of course the rapidly increasing number of reported cases is making them proportionately less useful. The greatest works in judicial opinion writing have been those that have been along the line of fundamental principles, and the greatest judges in all appellate courts have been those that have been best able to make application of fundamental principles to new cases as they arise, with little attention to what some other court has recently decided in a like cause. Let the student master these fundamental principles from the opinions that first enunciated them and that afterwards developed them. In that way alone can he fully understand them or have them at his command when he needs them. It has never been contended by the most ardent advocate of the case system that text-books should be wholly eliminated. Even at the school where the system originated and where it has been most developed, text-books are recommended on all subjects and reference to them is constantly made.
The case system denotes not the use of cases to the exclusion of texts, but the cases form the ground work of the student's instruction, and the class work is carried on on the assumption that the prescribed cases have been read beforehand. After the student has read the cases and digested and discussed them, he can not do better than to turn to reliable text-books on the same topics for a careful discussion of the principles involved in those same cases and others which are auxiliary thereto.
The practicing lawyer investigates a question to prepare an opinion or write a brief by examining kindred
If he finds a case in point, that the very matter he has in hand has already been decided, his task is easy; but when he has a case that the appelate court will have to deal with as a case of first impression, then
he must work out the problem in the same manner that similar problems have been worked out in the kindred cases. If he uses a text-book, it is only as a starting point to the cases which it cites—not accepting the conclusion which the text writer draws from them but going himself to the cases as the sources, there to work out his own conclusions.
That is the way every successful lawyer works today. Why should not the student work in the same way? The task of the student is not so much to learn a certain amount of law, as to learn how to work, and the method should be the same that he will have to adopt in practice. But more than that, while thus working as a student, he will actually learn more law and he will understand what he learns and retain it longer.
The question is, what will you place in the hands of the student as the basis of this work? There must be lectures and the interchange of thought in the class room; and the modern case books that are prepared for students are more or less text-books also, the important cases having foot-notes showing how generally the doctrine of the principal case has been accepted, and often giving many of the corollaries to the main proposition. The cases are generally arranged in chronological order, to enable the student to trace the evolution of the legal principle from its starting point down, until it reaches its modern form; not spending too much time, to be sure, on the old cases, but time enough to discover the origin of a doctrine, whenever that may be of benefit, and to follow its evolution to its modern form.
The student should read the leading cases that have brought about the general frame work of the law on each topic. Then let him read a text-book that will generalize the subject and that will give additional principles and corollaries to those found in the leading cases or better yet, let the student write his own summary of the cases that he has read and carefully outlined and do his own generalizing. Read the
text-books? Why, yes, the more he reads the more he will know and the better able he will be to work out his problems. Again the question is—what shall be read first, the text or the leading cases that have developed the cardinal principles?
It is not the intention that case books shall do away with moot courts or instruction in forms of conveyancing or rules of practice. The student must have practice in the preparation of cases and of legal documents, and in the practice of the State and federal courts.
The best four years course for the student to pursue is to spend three years in the systematic study of the different topics of the substantive law and the law of procedure and get the general principles and a working knowledge well in hand and then take a fourth year in the office of a busy but reputable attorney, working without pecuniary compensation if
compensation if necessary, but working continually in the line of actual practice in every department.
An able American law writer and teacher, an opponent of the system of teaching law by cases, has said in an article written in opposition to this method that, “Too much pains may be spent in tracing the slow evolution of legal principles through the mazes of the English reports. There is first a suggestion, perhaps, in a chance colloquy between court and counsel, which some barrister happens to jot down. A year or two later some judge, half remembering what has passed and half forgetting it, adopts a similar line of thought in a charge to the jury, and on a motion for a new trial it comes up at Westminster. The case goes off on another point, but the doctrine is assumed as sound without further inquiry in a subsequent decision, which Blackstone quotes and Kent repeats, and a hundred courts have since applied it. To study out all this is not without its interest or profit, but there are other things more interesting and more profitable. For the average student, the true starting point in learning this rule is the text-book which states it best."
Now one has simply to examine one of the selections of cases which are prepared for students' use to find that they are collections of modern cases. The few older cases, that are given, are there to show the origin of some of the most important principles and to show their evolution along with the development of civilization and modern business customs, that the student may better understand the scope of the modern doctrine. The same learned writer, in the same article said that, “No important case, involving nice discussions and striking out in new directions can be of its best service to him who does not know what went before it and what has come after it. Law is a science of relations. The first thing for a law student to strive after is a sense of proportion. What is important and
. what unimportant? What is settled and what is still in dispute? What was the starting point from which the judge who delivered the opinion set out? What was the turning point in the case? Is the logic sound, the conclusion certain, the result valuable?” That is all true enough and is the primary contention of the advocate for the case system.” The only way a stu
“ dent can ever attain what the learned writer says he should strive for is through study by the inductive method.
It has been urged against the system that it is absurd to turn the student loose in the great mass of decided cases and ask him to analyze the decisions and classify the principles. Certainly it would be. The student is not asked to read indiscriminately a mass of unclassified decisions, nor is he referred to an unclassified list of cases. He is referred to a few classified cases, so arranged as to develop the general principles of the subject in hand. He is referred to the sources where both lawyers and judges make their investigations, but these sources are classified and so arranged as to assist him in the logical order of his work, and he is assisted and directed by his instructor. The cases have been already selected with the utmost care and
arranged in the most logical order and classified in each subject by chapter and section. The best collections of cases that have been prepared for students' use (I may mention Williston's Cases on Contracts, Ames's Cases on Trusts and Thayer's Cases on Evidence) have been selected and edited and annotated with far more care and labor than has ever been given to the preparation of an elementary text-book on any subject. The practicing lawyer, in preparing his opinions or in writing his briefs must spend a great deal of time reading cases that have no bearing on the matter in hand. For the student this hunting is done for him. His cases are arranged for him topically and logically, by the editor of the selection of cases or by the instructor, and often certain parts of the cases which are on some other point, are omitted in the collection of cases prepared for his use.
I have already said in substance that the opposition to this system of legal study comes from those who do not understand what the method really is and how the cases are used. Great objection has been raised to so called “case lawyers''—a case lawyer being one who has at his command a great number of cases, their facts and decisions. State to him a certain case and ask his opinion and he will cite a decided case or hunt for a decision already rendered by some court, failing to find which, he is powerless. Now that is a total misapprehension of what the case system really is. The student need not remember the facts nor the decision of a single case. He studies the principles which he evolves from the cases as he reads them, and the work will produce anything but a "case lawyer.” He studies cases as the sources of the law. It is studying cases as illustrations and in support of certain abstract principles, as found in the text-books or as enunciated by the lecturer, that will produce a “case lawyer." Not long ago a student graduated from a law school where for three years he had studied text-books and had listened to lectures and read cases as illustrations.