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Just Cause A small institution—37 professors, 600 students—with a disproportionate impact, the University of Chicago Law School celebrates its centennial this year. Here is a professorial appreciation. One hundred years ago, in October 1902, our fathers brought forth on this campus a new law school, conceived in excellence and dedicated to the proposition that legal studies should be an instrument of liberal education. A hundred years is a long time—longer than the ages that have elapsed since the Cubs won the World Series. The Law School is older than Puccini’s last opera; older than the United States were at the Battle of Gettysburg. When the Law School was founded there were no refrigerators, no radios, no airplanes. Theodore Roosevelt was president; Melville Fuller was chief justice. There were 45 states, and the passenger pigeon flew proudly over them all. It was the same year in which Justice Holmes was appointed to the Supreme Court, three years before the unlamented decision in Lochner v. New York, eight years before the death of W. S. Gilbert. Most legal education at the time was conducted outside the universities. Even at Harvard, as Frank Ellsworth tells us in his excellent book on the founding of this Law School, legal studies were “essentially technical and practical…. Courses in legal history, administrative law, jurisprudence, and comparative law were felt to dilute the curriculum.”
Along the same lines Chicago attorney Adelbert Hamilton, who was among the many knowledgeable people President Harper consulted in planning the new Law School, urged the adoption of a curriculum that was ambitious, international, interdisciplinary, and comparative—including courses in jurisprudence, which he prophetically labeled elements of the law, and “social economics,” embracing “principles of economic production and distribution, principles of international trade and taxation…[and] the correlation of law with principles of sociology.” With respect to pedagogy Hamilton stressed what seems to me a central truth: You can’t learn the law, he said, by just reading and reciting it; “the law must be applied to actual legal problems.” Blewett Lee, a member of the original faculty, added a second fundamental principle: “The chief object of teaching is to make a man who can do things he has never been taught how to do.” All of this was over 100 years ago, while the Law School was only a gleam in President Harper’s eye; yet it reads like a blueprint for the Law School we know today. Like the rest of the University a few years earlier, the Law School hit the ground running: In Harper’s words it was “born full-fledged.” It had a faculty of six, including such familiar names as James Parker Hall, Harry Bigelow, and the political scientist Ernst Freund, who was born and educated in Germany, as well as a dean, Joseph Beale, borrowed from Harvard (Hall and then Bigelow would succeed him). Other well-known scholars were lured from Northwestern, Stanford, and soon Michigan by the vision of a brave new world and the promise of exorbitant salaries to form a faculty that Ellsworth described as “probably the greatest in American legal education.” It had nearly 80 students, including two women; Harvard, Ellsworth tells us, didn’t admit women until 1950. It had one of the best law libraries in the nation, created practically overnight. It even had its own football yell:
The yell has long since gone the way of the passenger pigeon, along with big-time football at the University of Chicago. The rest remains; the vision has become reality. The Law School embodies the dreams of its founders. It is a jewel in the University’s crown, very possibly the best law school in the world—though I say it who shouldn’t, as Ralph Rackstraw once said. Space constraints preclude my giving credit to all those who contributed to the growth of the Law School, but it would not be right to speak at any length about the institution without mentioning Edward Levi, PhD’32, JD’35, dean from 1950 until 1962, who with the possible exception of President Harper surely did more than any other individual to make the Law School what it is today. His imprint is everywhere: on our faculty, our students, our programs, our spirit of inquiry, our physical plant. I like to think he would be pleased at the results of his labors.
No other law school has better integrated the study of other legal cultures to promote understanding of our own. We have a long tradition of foreign-educated scholars, from Freund to Max Rheinstein to Gerhard Casper. We have had a parade of visitors from abroad, both professors and students, financed in part by generous grants from the French and German governments. They enrich us all, and I hope and believe we enrich them too. No other law school better exemplifies the dedication of its faculty both to scholarship and to teaching. This faculty takes teaching seriously. It insists that students not merely memorize rules but develop their capacity to reason and to criticize. It strives to set a standard of seriousness and excitement about the material. And at the same time it is consistently the most productive faculty in the country in terms of original research and writing. No other law school provides better or more consistent support for academic freedom—not least because it is a private institution supported largely by the generosity of those who have enjoyed its benefits and are determined to ensure that others can do so too. The crucial importance of private education was demonstrated during the witch hunts of the 1950s. In that dark time academic freedom disappeared at even our greatest public institutions; it continued to flourish at Chicago. No other law school provides better support for younger colleagues. At the end of my first quarter here Walter Blum, AB’39, JD’41, dropped in unannounced on my class and told me it was all right. Phil Kurland and Phil Neal allowed me to share their seminar on the current work of the Supreme Court. As dean, Phil Neal nudged me to participate in a seminar with Harold Demsetz and Aaron Director on the economics of property, although I protested I knew nothing of economics and little of property; it was 20 years before I recognized that he had done so more for my education than for that of the students, and I am eternally grateful. Indeed we can look back with great satisfaction on a century of ideas and action; we can bask in the confidence that our forbears bequeathed us a great and glorious institution of which we all may justly be proud. Satisfaction should not mean complacency. It is not enough to achieve excellence; we must maintain it as well. That means more hard work; as the Red Queen said, we must run as fast as we can to avoid going backward. And thus I must spend a few minutes trying to look forward—though in some respects I end up urging a couple of steps to the rear.
Closer to home, I have a handful of reservations about modern legal education as well: Academic legal writing, like modern Supreme Court opinions, has become practically unreadable. As I wrote not long ago in the first issue of the Green Bag (the alternative dispute resolution of legal scholarship), articles over 40 pages long ought to be reconsidered; articles with tables of contents ought to be suppressed. If you have something to say, say it and stop; don’t hide it in mountains of verbiage, for if you do there is a real danger that nobody will read it at all. Interdisciplinary studies are the proud legacy of Ernst Freund and William Rainey Harper, the glory, pride, and boast of the Law School throughout the world. But, as my colleague Elena Kagan said to the Law School Visiting Committee a few years ago, we must never forget that it is a law school that we are conducting. While it is true that one cannot be a first-rate lawyer, judge, or scholar today without knowing something of economics, sociology, history, and philosophy, it is also true that one cannot be one without knowing something of law. Nor is the law a simple-minded process of intellectual plumbing that can be learned in one’s sleep or taught in the interstices of a course on public policy. It is an art and a discipline of its own as challenging and difficult as any other and deserves to be taken seriously in its own terms. We must take care that in our commendable zeal to place law in its social, philosophical, historical, and economic context we not lose sight of our principal obligation: to teach, to study, and to criticize the law with the tools of the law itself.
The last few years have nevertheless witnessed a disturbing phenomenon: the development of a pervasive culture of passivity in the classroom—a reluctance among the students to speak unless spoken to. This passivity is not only uncharacteristic of lawyers in general; it is profoundly destructive of all the Law School is about. You can’t learn by sitting like stones in class; the whole idea of Mr. Harper’s university is that education is a matter of give and take. It would be far easier for us to read aloud to you what we have already written or to ask you to read it for yourselves. But I can assure you that if we did you would not be half so well prepared for a legal career. Unlike their counterparts at some other law schools, our students continue to respond diligently when called on directly, but that is not enough. There is no guarantee that those who happen to lose at the academic version of Russian roulette are those who have the most interesting things to say. The student who sits on his or her ideas and refuses to share them with others impoverishes his classmates and cheapens the discussion. So much for the obligatory three seconds of grousing; these are a mere handful of flyspecks on the great cyclorama of time. The big picture is rosy. In the words of Mr. Gilbert’s Lord Chancellor,
and the University of Chicago Law School, my friends, embodies the law. As Daniel Webster said of his alma mater nearly 200 years ago, this is a small law school, but there are those who love it, and I am proud to be of their number. To paraphrase the immortal Duke of Plaza-Toro, let me offer this toast to the Law School: May its next 100 years be better than its first—if possible. David P. Currie, AB'57, the Edward H. Levi distinguished service professor in the Law School, graduated from Harvard Law School in 1960 and clerked first for Judge Henry J. Friendly and then for Justice Felix Frankfurter before joining Chicago's faculty in 1962. His most recent book, The Constitution in Congress: The Jeffersonians, 1801-1829 (Chicago, 2001), is the second volume in his ongoing study of extra-judicial interpretations of the U.S. Constitution. This article is adapted from Currie's October 2002 Centennial Commemoration keynote address, launching the Law School's celebratory year.
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President
Harper had a different idea, based upon the heretical premise that
lawyers should know something about the world around them. The laws,
he said, cannot be understood “without a clear comprehension
of the historical forces of which they are the product and of the
social environment with which they are in living contact. A scientific
study of law involves the related sciences of history, economics,
philosophy—the whole field of man as a social being.”
No
other law school has better succeeded in integrating other disciplines
into the legal curriculum. To take just one example at random, the
study of law and economics—developed at and epitomized by
the University of Chicago Law School—has transformed legal
thinking for all time. Whatever our ultimate conclusion, we can
no longer talk about decision making without considering the economic
consequences of our actions.
After
one of my usual tirades on the degeneracy of today’s universe
and all that surrounds it, my research assistant recently asked
me whether I liked anything that was modern. I took two days to
ponder the question and concluded that I did: the conquest of yellow
fever, the music of Victor Herbert, and the invention of the train.
But there are indeed many things about the modern world I do not
like: the rise of soccer in the United States, the disappearance
of art and music, the decline of the subjunctive. 
Our
students are intelligent, well motivated, and well prepared. Our
graduates, like Kipling’s Old Man Kangaroo, are very truly
sought after and successful—as practicing lawyers, judges,
government officers, business leaders, and scholars. The Law School
is a leading source of law teachers for the whole country. |
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