To start, I'd like you to imagine an agglomeration of twenty to thirty jurisdictions experiencing a profound change in the nature of their economic realities. Their economies, and thus the transactions within them and the businesses that conduct them, have been predominantly local in character. Now, political and economic developments are producing businesses and transactions increasingly trans-jurisdictional in character. Increasingly the counseling, drafting, and litigating that goes on in lawyers' offices involves not one jurisdiction but two or three. What happens to legal education?
As the United States emerged from the Civil War and a truly national economy began to emerge, stitched together by the railroads, the telegraph, and the business trust, my law school, Columbia Law School, was the country's leading law school. Timothy Dwight, and the Dwight method of instruction which combines textbooks and lectures with classroom hypotheticals and frequent moot courts, proved superior to all rivals in habilitating young men for the bar. Then Charles Eliot hired Christopher Columbus Langdell to be dean at Harvard Law School, and Langdell set about transforming the way in which universities delivered legal education. Where Dwight aimed to give a sound knowledge of the law to men of average ability, Harvard's case method aimed to give as much intellectual stimulation as possible to those who would become the profession's elite. The success of this venture-New York firms turning to Harvard as a preferred source for new recruits-prompted Columbia's President, Seth Low, to go north for help. William Keener was imported from Cambridge to New York. Undercut and aging, Timothy Dwight retired in a huff; his colleagues-at-arms left too and founded New York Law School, where they could continue to teach as they preferred. They took many Columbia students with them, and their law school became at once the country's second largest law school and within thirteen years the largest. Columbia followed Harvard into the domain of the national law school.
There are many ways to describe this change and explain its general success, first in elite law schools and quickly enough spreading through the American law school world. One way that appeals to me is that Langdell's invention of the Socratic Method freed law schools from teaching law from texts, as if it were the law of some particular common law state jurisdiction. Students no longer learned doctrine through the eyes of a distinguished commentator, but did the hard work of synthesis for themselves, from the start. A day in such a class, organized around the conceptual problem of consideration, might hop from eighteenth century England to nineteenth century New York to twentieth century Massachusetts, forward and back in time and space without apparent concern. Even as appreciation was spreading that the common law was positive law and not some brooding omnipresence in the sky, the law firms that were beginning to serve the needs of an increasingly national business community found that they particularly valued lawyers confident of their capacity to work in any of the country's jurisdictions and resourceful in imagining alternative approaches to clients' needs, drawing on the full range of the law's possibilities.
Peter L. Strauss,
Transsystemia - Are We Approaching a New Langdellian Moment? Is McGill Leading the Way?,
J. Legal Educ.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/423