SHOULD THE LAW TEACHER PRACTICE

THE

LAW?

HE law teacher who has done the arduous pioneer work of introducing a new mode of teaching law by case-books is necessarily excused for never having practiced law. It may be conceded at once that he could not have done his pioneer work and become a practitioner at the same time. It may be conceded also that the training of the law teacher which comes from the struggle to make case-books and to introduce teaching by casebooks, is a fair substitute for the training which practice at the bar will supply. The law teacher who while still a beginner settles down to the completion of a great work like Wigmore on Evidence is also readily forgiven for never having practiced law. The law teachers of to-day who are over forty or forty-five, and who have never practiced, met the problem of their professional development and training twenty or twenty-five years ago. It is neither becoming nor just that anyone should now in the retrospect say that they did not meet the situation in which they found themselves in the best manner possible. The number of law schools is, however, increasing, especially in the Mississippi valley, the south, and the far west. There is a corresponding demand for law teachers, and the recent law school graduate with a brilliant record as a student is more and more called upon to become a professional law teacher at the time of leaving the law school, or very shortly afterward. The rule is being more and more rigidly enforced that these men shall devote all their time to the teaching of law and shall not practice in any degree. Accordingly these young men are going into law school faculties with no outside distractions whatever. They are assuming that they must live upon their law school salary, and that alone. At the same time these young men have no pioneer work to do in making case-books and justifying their use. Most excellent case-books have been made for them, and the second editions are out. The number of such young men who will, before they are forty, seriously undertake a work like Wigmore on Evidence is negligible. The question is a vital and important one:

What shall these young men who are going into law teaching on the basis of not practicing at all, do to develop their powers? What is the law school most interested in having them do? Shall they practice law in addition to and at the same time that they carry on their teaching?

Let there be no misapprehension about the scope of the general question. It is not: - Shall the law teacher be a practitioner who supports himself by his practice and incidentally teaches in the law school? I assume that question is finally determined in the negative, and that when the law teacher is such a practitioner, the problem is to get him out of the law school or to separate him from his practice. The general question which I propound is quite different. Shall the law teacher who is settled in the position of making his livelihood by his teaching, and while continuing so to do, and while independent of any income he may make from practice, yet endeavor from his office in the law school to secure and maintain a limited position at the bar in practice?

Before this general question can be answered we must (1) define what we mean by "practice," (2) agree upon what qualifications in respect to its teachers the law school is most desirous of developing, and (3) fix the general alternative activity for which practice at the bar is to be substituted.

If by practicing law we mean the usual combination of clientcare-taking and advocacy — with the emphasis largely on clientcare-taking - which is the leading characteristic of practice in the United States, then I should say, decidedly, the law teacher must not practice, and this paper would here abruptly stop. Taking care of clients, as distinguished from handling litigated cases, is an occupation which will always distract the law teacher from the subject matter of his courses and deprive him of the time which he needs to devote to his courses. A great deal of necessary clientcare-taking is not law at all, but mere business. The proportion of legal problems and the volume of work and time spent is too small and spread over too many diverse fields of the law. The more a man succeeds as a client-care-taker, the less valuable he becomes as a law teacher. It is premised, and most emphatically, that if the law teacher is to practice at all, he must rigidly exclude all client-care-taking.

The law teacher must practice, if at all, in the handling of legal

problems and not at all in the handling of clients. He must have cases and not clients. He must serve the needs of lawyers who have the clients and who employ the law teacher because of his expert and special knowledge and skill in handling litigation. He must not be a brief-writing hack or an authority digger, for that occupation not only does not make an expert specialist in handling legal problems, but it leads to an atrophy of personality which a man of talents and ambition cannot afford to permit. The law teacher may practice in the giving of opinions to other lawyers upon legal problems submitted. But the law teacher's practice must not stop here. He must not be merely the man to be consulted for academic aid. That is only a more dignified stage of the authority digger. The law teacher must be the man who is sought as an advocate, whose personal skill and power in swaying the mind of the court is in demand. The special field of practice of the law teacher should be in the appellate courts. He should have a practice as special counsel in preparing the printed briefs and arguments and the making of oral arguments before those courts. If, as is frequently the case, these appellate tribunals discourage oral arguments because of the wretched character of those which the bar is now offering, the law teacher should take advantage of the opportunity to make the better sort of oral arguments and to shine by comparison. The law teacher in his appellate court practice should always appear as special counsel. When he is the sole author of the printed briefs and arguments this fact should be made to appear before the court so that the whole responsibility for the conduct of the case will fall upon him. As far as possible the law teacher should take some part in the more difficult work of handling litigated cases in the trial court, where the ultimate result depends much on the way the case is tried below and how questions of fact are handled. In all his practice, of whatever sort, the law teacher should rigidly impose upon himself the rule that he will not deal directly with clients. This will place him above the slightest suspicion of ever using his position to secure for himself the clients with whom he has come in contact in his work for other lawyers. The law teacher's practice must be to some extent specialized, and very naturally in the line of the subjects which he teaches.

Practice in this restricted sense-handling legal problems and litigated cases instead of the miscellaneous affairs of clients

we will call, for want of a better name, advocacy. The law teacher who practices thus we will speak of as the law-teacher-advocate. What qualities is the law school most interested in developing in its teachers? The law school is primarily interested in developing the most effective law teachers men who can handle a class successfully, determine what problems are vital, what views are sound and impart these views to the students. It wants also men who are or who may become successful original thinkers - leaders in the promotion of ideas which are to be a factor in the development of the law. It wants also men who during their active life may contribute some social service in the cause of law reform. Each individual school is interested in securing law teachers with the above qualifications, who will not leave that particular institution for another because a few more dollars of salary is offered.

The question of whether the law teacher should practice is of course a relative one. Clearly he should practice as an advocate, rather than not do anything at all except meet his classes. The real question, therefore, always is: Shall the young law teacher practice as an advocate rather than do something else? What is that "something else"? Clearly it is not the pioneer work of making case-books and establishing a new system of teaching. That has been done. Clearly it is not the preparation of a great work like Wigmore on Evidence, for experience shows that that is too exceptional an achievement. It is the revising of case-books, keeping up with recent decisions from all over the English-speaking world, writing the average number of law review articles, preparing textbooks or encyclopedic articles of a dignified character and substantial proportions. This is a fair description of the usual activities of the present-day law teacher, who, as the phrase goes, "is giving all his time to the law school."

The specific question at issue has now become this: Will the young man of to-day, fresh from honors at a law school, who becomes a professional law teacher and who spends the first fifteen or twenty years of his life as such teacher in securing and maintaining a position at the bar as an advocate, be more apt in the long run to become a teacher with the qualifications which the law school wants, than the man who, during the same period, leads the usual life of one who is giving all his time to the law school?

There are two principal reasons for answering this question

in the affirmative and several less important ones: First, the time has come when the demand is not for mere speculation as to what the general law is or ought to be, but for the testing and establishment of the speculations of the great teachers already made. The law teacher should practice as the means of bringing his own and the speculations of the masters as to what the law is or ought to be to an actual test in the laboratory of the courts. Secondly, the law teacher should practice in order that he may obtain the training and experience which comes from conflict with the minds of mature men quite as acute, if not more so, than his own.

Let us consider the first of these two principal reasons.

Langdell said that law was a science. This meant that the rules of law were to be induced from cases as the principles or generalizations in the natural sciences are induced from observation of particular data. If the cases are the complete data, then the reaching of the principle is only a matter of skill in analysis and logic. If the cases be incomplete in any considerable degree, analysis and logic, however skilfully used, result only in speculation based upon partial data. If the scientific method be still pursued, these speculations must be verified and tested by experiments in the laboratory of the courts.

So long as the law was regarded as the rule established by the English cases, the data from which to derive principles might well be regarded as largely complete. There was then demanded of the law teacher great skill in analysis and logic. But the moment one is projected into half a hundred different jurisdictions, each with woefully incomplete data from which to ascertain what the law is, and each with a court ready to declare the law in a particular case by reference to conflicting data elsewhere, assertions as to what the principle of law may be or should be become to a large extent mere speculations founded upon partial and imperfect data. The speculations may be most illuminating and in every way worthy, but they do not become scientifically reliable till they have been proved and adopted by the courts.

Professor Langdell's work was more in the way of analysis and logical inference from the fairly complete data of the English cases to principles which they established. Professor Ames, on the other hand, gave us to a greater extent brilliant speculations as to what the law ought to be, based upon data which were partial and