abandon law teaching. Success as an advocate means hard work — often requiring the physical powers of a man under fifty- and, except in the rare case, very moderate fees. It is quite possible for the successful advocate to tire of practice. The logical place for such a man is the bench. But under present conditions in this country such places are hopelessly unattractive. The short terms of office, the necessity of standing for election and consequent dependence upon extra legal political machines for a nomination, and the political landslides which throw the judge out of office without any reference to his merits as a judge, are not the only unattractive features of a judgeship. The rotation by judges in the trial courts among all sorts of cases, civil and criminal jury trials, trials at law and in chancery without a jury, appellate court hearings, and juvenile ourt hearings, absolutely prevents the judge from becoming expert in any branch of his work. Association also with a considerable number of other judges who have no real head, in an endeavor, with the minimum amount of organization, direction, and judicial power, to dispose of immense dockets of cases in a large center of population, is something that the able expert with ambition will be pretty sure to shun. In the highest courts of appeal the great amount of closet work in examining briefs and abstracts and writing opinions will make places in such courts unattractive to many. I believe that when the law-teacher-advocate tires of practice, he will, in many cases, be well satisfied to drop practice for the law school rather than leave the law school for practice or the bench. Ezra Thayer and Roscoe Pound are conspicuous examples of men who have, after fifteen or twenty years of practice, preferred to give up practice entirely for law teaching. If the law-teacher-advocate does not give up practice entirely for teaching, he may at least be expected to continue his teaching in some degree to the end of his active life.

The law school may very properly expect that teachers who work into practice as client-care-takers will very soon drift out of teaching. But it need fear no general exodus of those who succeed in practice solely as advocates and counselors.

A law school with a faculty composed of young men, which was attempting in a practical way to build up a teaching staff in which each man was doing his part towards securing a place at the bar as an advocate, would be one where the subjects taught were divided into groups with as much regard as possible to special fields of prac

tice; where the best case-books on the general law were used; where the teachers were in the process of mastering, or had actually mastered, the local law in their respective subjects and were preparing to publish, or had actually published, text-books on the local law of those subjects; where the teachers were writing for a local law review special studies in the problems of the local law and notes to recent cases decided by the local supreme court; where the teachers were busy with local law reform, and mutually supporting each other in the effort to obtain from other lawyers employment in the handling of litigated cases raising for the most part questions in the subjects of which they had made a special study; but where the mastery of the local law and practice as an advocate were regarded not as an end in themselves, but only as the means of bringing to the test of actual experience in the laboratory of the courts the speculations of themselves and their masters and as the preliminary training for an ultimate function as a scholar.

NORTHWESTERN UNIVERSITY LAW SCHOOL.

Albert M. Kales.

NOTE. The utterance of a gifted teacher as to his calling moves a fellowworker in the same field to join in the discussion, even if it be only to agree or to throw the emphasis a little differently; and the editors have kindly allowed me to add a few words to Mr. Kales's interesting article.

Much that is fundamental in his argument calls for nothing but cordial approval; as, for example, his elimination at the outset of the practitioner whose teaching in a law school is incidental to his practice. The theory of legal instruction represented by such methods is as remote from present conditions as are the days when Judge Story could divide his activities between the Supreme Court of the United States and the Harvard Law School without injustice to either. Mr. Kales's recognition that teaching law demands and deserves all that is best in a man, and that the teacher should renounce all practice which will not make him a better teacher, is wholesome and inspiring. This principle naturally prohibits "client-care-taking"; and with it must inevitably go any substantial trial practice. Mr. Kales does not in terms make this last application. Indeed he recommends participation in trials “as far as possible." But the whole burden of his argument concerns only questions of law and appellate tribunals, and the limitation to what is "possible" renders unnecessary any disagreement with him about trials. The uncertainty when a trial will begin, and once begun when it will ever end — the conflict between the imperative demands of a trial court, and the no less imperative necessities of a fixed teaching schedule - these matters of detail are enough of themselves to show the impossibility of combining a trial practice with proper teaching. Accordingly we do not reach the question how much more serious an encroach

ment on the teacher's time is made by "client-care-taking" than by the wakeful nights of trial practice, and its absorbed and exciting days.

So far, therefore, no conflict with Mr. Kales's views suggests itself. The advocacy which he recommends consists in arguing questions of law, and there need be no hesitation in recognizing that he marks out for the young teacher an interesting and worthy career. In some part, at least, what he desires must come about of itself, and without any special effort of the teacher, if he is the right kind of man, and if the law school occupies its proper place in the community. If so, he cannot fail to be consulted as an authority in the subjects which he teaches. Such consultations will help to keep him in touch with the bar and with affairs, and they may very naturally call him into court. Whether they do this last or not they cannot fail to enrich his experience and increase his value to his pupils and to the institution which he serves. Only a very narrow view of teaching would condemn such practice as this.

But whatever the merits of the proposed programme for some teachers, of course it is not to be recommended for all. Since teachers of law are not so free from individual variation as to realize in fact the ideal standard of uniformity presented by our familiar friend the "ordinary prudent man," it would not be seriously suggested by so sensible and acute a writer as Mr. Kales that any particular scheme of life would fit all cases. On the contrary he takes note of several worthy substitutes for his proposed work of advocacy, for one of which at least the production of treatises of the highest class the need is crying. His recommendations, which are addressed only to teachers beginning their work immediately on graduation, must therefore be still further limited to a particular class among such teachers. What are the characteristics which bring a man within that class?

First and foremost, as we are told, he will not "seriously undertake" the preparation of even a single really great treatise. This is a circumstance which calls for attention. Why has he made this choice? Is it because he cannot hope to equal the great work which Mr. Kales names? Surely it is a sorry thing if a young man beginning his career is to set his ideals no higher than his probable attainment. If he is at all worthy of his calling does he not at least hope to master some one subject? The mastery of any head of the law is no doubt a great ambition, but his choice of a profession has given him this ambition as his right, in exchange for what he sacrificed in the choice. Moreover he fairly pledged himself to it when he gave himself to teaching, for "the main secret of teaching law, as of all teaching, is what Socrates declared to be the secret of eloquence, understanding your subject." Should he not then in due time make a record of what he has accomplished? Falling short of his full purpose he may at least make some contribution of permanent value to the law. This without more is a high privilege — why does he reject it?

It begins to look as if something were lacking in this young man. When he chose to become a teacher, and therefore a student, of the law, we were justified in hoping that he was a scholar. At least we had a right to expect of him a love of the law, a clear head, intellectual tastes and capacity, and an appetite for hard work. The suspicion that some of these things are missing is soon confirmed. We find that he "is making his speculations too easily"; "judges and lawyers hold his so-called theories" "in suspicion"; and his "speculations" are of such a kind that there is even an "actual demand" for their

1 9 HARV. L. REV. 175.

"curtailment." Perhaps it was a tendency toward such easy "speculations" which turned him aside from the harder path of true scholarship. At any rate, the defect is likely to grow upon him unless he takes steps to cure it, and Mr. Kales's prescription seems excellently chosen. The need for it was serious. No mere tonic was called for, but radical and vital measures; for we presently learn that but for this relief he would, on reaching forty-five, have found life as a law teacher "empty and stupid." Whatever doubt this may suggest whether he chose his profession wisely to begin with, there can be none as to the wisdom of Mr. Kales's remedy.

Suppose now that the teacher is a scholar, or at least has the natural equipment which we have reasonably demanded of him. How will the case be then? Infinitely various, of course, according to the nature of the man; but some general truths can be stated.

In the first place, his spare time the subject matter of the whole discussion may not be so great a matter after all. It is not even conceivable that he could "not do anything at all except meet his classes." The mere preparation for his class-room work will itself be a large matter. He will constantly find that what came to him from his teachers, no matter how learned or skilful they were, cannot be made vital or helpful by him until he has passed it through his own mind, and seen it for himself, in his own way. How to present it most helpfully is a problem which will bear indefinite thought and show him indefinite opportunity to improve on himself if he only try hard enough. The constant discussion which he will encourage outside the class room with those fellow students of the law whom it is his privilege to teach will take up much time, but time well spent for him in clearing and ordering his thought. As has been truly said, teaching law if "fitly performed, calls for an amount of time, thought, and attention bestowed on the personal side of a man's relation to his students which instructors now can seldom give." And so the spare time is already contracting.

Such as it is, how will it best be occupied ?

First and foremost comes the attempt to make himself a master of the subjects which he teaches. This is a vast enterprise, if rightly undertaken, and he is fortunate if in a lifetime he can complete the study and exposition of a single subject. If he can, other subjects will always supply him with more worlds than he has time to conquer. And so his spare time has already disappeared, and our problem with it. What remains is only an unending struggle to decide which of many things that call to be done shall be sacrificed to the next. Daily the teacher's thought, stimulated by the thought of his pupils, brings him on dark corners hitherto unexplored. Daily, as he seeks to bring light into these

2 Lest my quotations may seem to misrepresent Mr. Kales's position, let me say that I do not clearly understand his use of the word "speculation." It seems to embody theories of the nature of law which cannot be discussed here; but it must be used in a very special sense indeed to justify the position that "the accepted ultimate function of the law teacher is to further this process of speculation." Whatever its meaning, it has unfortunate question-begging possibilities. It suggests at once an aloofness from realities and from practical considerations pointing to a poor common lawyer, and a neglect of careful and thorough investigation pointing to a poor student - thus doubly justifying the “suspicion" of "judges and lawyers." And at times its use even seems to endorse a study narrowed to the law of a single state rather than enriched by comparison of its development in different jurisdictions.

recesses, he finds them opening into unsuspected inner caverns, rich with material of endless fascination, but also of endless labor. The great advantage which belongs to the teacher of dealing with some head of the law as a whole carries with it the inevitable penalty that in so wide a field these problems, calling not for "speculation" but for scientific and painstaking investigation, will disclose themselves faster than they can be solved, and will lead him into more paths than he can follow. These paths will diverge widely according to the nature of the subjects with which he deals. They may lead into historical investigation of our own early law, the study of "the day before yesterday in order that yesterday may not paralyze to-day, and to-day may not paralyze to-morrow." Or perhaps he must scrutinize foreign systems for the light which comes from a comparison of them with his own. Or his work may call for an intimate knowledge of modern economic and financial conditions, and of the business and political movements of the present day. As these alluring opportunities for study present themselves and compete for his attention, two things at least are certain. There will be no occasion for "suspicion" or "curtailment" of the product of sound work rightly done; and the doer of it will run no risk of finding life "empty" or "stupid."

The subject of our discussion, the teacher's spare time, has long since vanished, but not so the demands upon it. There are the constantly increasing calls which come to him, as his authority in his subject becomes recognized, from other lawyers and from public officials. He will find himself yielding to these from a sense of public duty, or a desire of helpfulness, regardless of the sacrifice of his time. Often they will come from his former pupils, who are testing his "speculations" in the "laboratory" of the courts, and the habit of putting himself at their disposal will prove too strong to be resisted. There is his duty, which Mr. Kales does not overlook, to serve the cause of law reform, and anyone who has worked on Bar Association committees knows the infinite capacity of such work for the consumption of time. There are other public and civic duties, manifold and miscellaneous, which the community will not fail to bring to his attention. Amid all this he will greatly desire (whether he can find time to gratify the desire is another question) to keep abreast of the current decisions in English-speaking countries, and watch the live growth of the law in the wonderful and never-ending variety of facts. And before he has had a chance even to consider the claims of society and his family, the problem has resolved itself into the central tragedy of life that there are only twenty-four hours in the day.

I do not mean to overlook the advantage that a teacher may derive from having practiced at some stage of his career. Mr. Kales justly emphasizes this. And he has done a valuable service in showing how a young man may take up teaching immediately after graduation and may yet not lose this advantage. But in a well-balanced faculty the work of the various members will differ as widely as the men, and it would be a mistake, by any undue emphasis on practice, to undervalue the great work of legal scholarship which is peculiarly the teacher's province. Even when the teacher appears in court to argue questions of law which have come to him as an expert in his own subject, it is none the less true that every hour given to advocacy is taken from study which may be made most valuable to him and to the law. Mr. Kales says that the number of great treatises produced by professors has disappointed some expectations. But why is this so? Only because time was lacking for