LEGAL TRAINING IN AMERICA.1

[Contributed by EDWARD Jenks, Esq., M.A., D.C.L.]

ALL who have at heart the interests of legal education in England will be profoundly grateful to Mr. Reed, the author of this monumental work, and to the late Mr. Carnegie, whose far-sighted munificence encouraged, if it did not alone render possible, such a valuable and laborious piece of research. For if the conditions prevailing in England are in many respects different from those which confront reformers in the United States, there is, nevertheless, more than enough fundamental similarity in the circumstances of the two countries to enable English readers to gather valuable lessons from this thorough study of American methods. Indeed the author of the work himself, though he institutes no formal comparison between American and English Law Schools, and, indeed, seems to be not quite aware of some of the more recent developments of the latter, does not ignore the influence of English traditions on the early history of legal education in the States; and it is evident that he is seised of the main features of those traditions down to the middle of the nineteenth century.

Perhaps the first thought which strikes the mind of the reader of the work under review is that the true analogy is not between English and American conditions, but between American conditions and those which prevail in the vast assemblage of communities which form the British Empire. For just as there is, despite occasional flourishes of rhetoric, very little that can accurately be termed "British Law," so there is not very much, though certainly more, that can strictly be described as American Law.” Doubtless the existence of a formal Constitution in the United States, with definite restraining power over the legislative and even the judicial activities of the individual States of the Union, has resulted in the slow growth of a body of doctrine formulated by the Supreme Court. Yet the jealously guarded "sovereignty" of the individual

1 Training for the Public Profession of the Law. By Alfred Zantziger Reed. Carnegie Foundation for the Advancement of Teaching. Bulletin No. 15, 1921.

States has resulted in a diversity of laws within the Republic, almost, if not quite, as great as that which prevails in the British Empire. On the other hand, the geographical conditions of the Republic, and the quicker pulses of American life, have produced a unity of purpose, and, consequently, a uniformity of function, which seem, at present at any rate, to be unattainable, even if they were desirable, in the British Empire. Consequently, while the average English law student is, for the most part, interested only in the unified and comparatively homogeneous body of English law, the American law student, at any rate if he be ambitious (as most American students are), being aware of the almost boundless possibilities open to a lawyer with a reputation beyond the limits of his own State, cannot be content to remain in complete ignorance of the laws of the forty-eight other jurisdictions, with any one of which the ordinary claims of a large practice may on any day call upon him to deal. It is difficult for a reader who has little practical acquaintance with American conditions to speak with confidence of the extent to which the substratum of the English Common Law underlies the legal systems of the majority of the States of the Union, or to compare it with the effect produced by the exercise of the Royal Veto, the interpretative influence of the Judicial Committee, and the inherited tendencies of English-trained judges in the Crown Colonies and India. But it is evident that the problems which confront the guiding minds of such famous schools as those of Harvard, Columbia, and Yale, are far more complex than those with which the authorities of any English Law School, academic or professional, are called upon to deal.

With all allowance, however, for this important difference between American and English Law Schools and other forms of legal training, it is clear that many of the same problems arise in each, and, therefore, that American experience, with its far greater variety of experiment, its comparative freedom from tradition and precedent, its intense vitality and enthusiasm, must be of value to all English lawyers who really care for the welfare of their great profession. It is, therefore, with interest that we notice the appearance, in Mr. Reed's closely packed volume, of many of the questions which are constantly mooted in discussions on the methods of legal education in England. How far, if at all, should the State concern itself with the qualifications of lawyers? Is theoretical instruction in law possible, and, if so, to what extent should it be recognized or imposed as part of such qualifications? If theoretical

instruction is beneficial, what are the best methods of imparting it? By what persons or bodies should it be imparted? What standard of general education should be expected of a lawyer? Assuming some form of apprenticeship to be desirable, should it, or any other form of training, be made compulsory? If so, what relation should it bear to theoretical training? Examination, formal or informal, is of course no part of training; but, human nature being what it is, it is, to some extent at least, indispensable if any importance at all is attached to either academic or professional training, and it usually has a vital influence on the training which it is supposed to test. Should it be conducted by those who administer the training, or by some external authority? All these are questions with which those interested in English legal education are familiar. It is not possible, within the limits of a review, even to summarize the results of Mr. Reed's painstaking researches into American experience in all these problems. But one or two of his salient conclusions may be noted.

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Mr. Reed, after an exhaustive survey of the different kinds of law schools to be found in the United States, ultimately resolves them (p. 414) into four classes: (i) schools which profess to qualify students for a degree in less than three years; (ii) "high-entrance, full-time" schools, where three years' course is regarded as a minimum for the curriculum, and a high standard of general education is exacted as a preliminary to admission; (iii) "low-entrance" schools with full-time courses, i.e. presumably where the legal curriculum demands at least three years' attendance; and (iv) "part-time' schools. This classification we may, perhaps, venture to simplify, especially as Mr. Reed himself is prepared to contemplate the disappearance of (i) and (iii), into the two broader types of (i) academic and (ii) professional schools. But it should be noted that there is a danger that English readers may misapprehend the meaning of Mr. Reed's epithet "part-time"; and this is only one of the many instances in which a fundamentally common language may mislead a foreign reader more completely than a wholly alien tongue. With Mr. Reed, a part-time" school is one which caters largely for students who are not, at the time of attendance at any rate, in any sense lawyers, or even law students as most Englishmen understand the term. They may be students who hope at some future date to make a serious effort to qualify as members of the legal profession, or they may be merely business men and women who find a smattering of certain legal topics useful in their various callings. In any case,

these students are mainly engaged, for the time being, in other pursuits; and it is not difficult, therefore, to understand the disfavour with which Mr. Reed, as a man in earnest about education, regards them. Such institutions resemble rather the "evening classes" maintained by local authorities in England, which profess to give a certain amount of instruction in unrelated legal or quasi- · legal subjects, than what is ordinarily understood here as "law schools"—indeed, Mr. Reed himself, probably following American usage, sometimes speaks of them as "night schools.' night schools." It is not difficult to understand the political and social conditions which create a demand for such teaching, both in America and England; but it is a little unfortunate, for English readers, that Mr. Reed's attitude towards them should have, apparently, diverted him from what, to such readers, would have been a more interesting line of inquiry, viz. how far is it possible, or desirable, for a law student to attempt to carry on a serious study of the theory and principles of law, concurrently with an apprenticeship in the practical work of a lawyer?

There is, indeed, something almost startling to an English lawyer in the cavalier manner with which such an earnest and broadminded inquirer as Mr. Reed dismisses apprenticeship as a real factor in legal education; and we can only assume that he regards it, in the light of accepted American opinion, as hardly worthy of discussion. After a very brief survey of the subject, he says (p. 400): "In general the attempt to rely upon a law office as an efficient educational factor has brought only disappointment"; and he fortifies this view (p. 400 n.) with a trenchant quotation from a distinguished jurist (the late Mr. Joseph Choate), which, despite the great personal reputation of its author, does not quite carry conviction.

Now it may safely be said that, not only in England, but in Scotland and Ireland, it is the firm conviction of the great majority of lawyers that a purely theoretical training in law is insufficient to produce, not merely a qualified practitioner, but a great lawyer in any sense of the term. Law is a science which concerns the conduct of human beings, individual and associate, in their relations to one another, just as much as medicine is a science which concerns their bodies. And just as no medical student can become a really great physician or surgeon, or even a capable practitioner, by the study of theory alone, albeit fortified by experiment in the dissecting-room, so no law student can, in the English view, become either

a sound lawyer or a capable practitioner by the study of textbooks or attendance at lectures and classes alone, even with the useful assistance of an analysis of leading cases, which are the contents of his dissecting-room. There is, indeed, a possibility (to which earnest attention should be given) that the future development of "Poor Persons" practice may in time provide for law students something analogous to the hospital work of the medical student; and the fact that Legal Aid societies are liable to abuses is no more an argument against the educational and social possibilities of such institutions, than is the fact that hospitals are liable to similar abuses. But that is a question for the future rather than the present. The immediate questions for those who are interested in legal education in England are: How far, if at all, is it necessary to supplement apprenticeship or practical training by teaching deliberately aimed at giving the law student a comprehensive view of his science? If such teaching is desirable, by whom, when, and how should it be given ?

The value of apprenticeship being admitted, it is easy to point out its imperfections. The inevitably sporadic and casual character of the practitioner's work renders it impossible for the apprentice to be sure of coming into personal contact with more than isolated and fortuitous illustrations of legal principles. A man who is really in earnest in making the most of his opportunities may spend a year as a pupil, and even many years as a "devil," in the chambers of a busy barrister, or as an articled clerk in a flourishing solicitor's office, and yet at the end be blankly ignorant of whole chapters of English Law, if he has resorted to no other means of education. That he will, if he is apt and appreciative, have learnt priceless lessons in the art of handling cases, in acquiring habits of industry and method, goes without saying. But he will not, if he has done nothing more, have become a well-equipped lawyer. Again, there is no guarantee-there can, in the nature of things, be none-that his master will really have done his duty by him, even if we exclude from that duty the element of conveying instruction in legal theory -an element which, in the case of a busy practitioner, is obviously impossible. That is one of the inevitable weaknesses of the apprenticeship system-a weakness which has, probably, done more than anything else to bring the apprenticeship system into disrepute. But, in fact, the inadequacy of the apprenticeship system stands confessed, even in this country which believes in it, in the establishment, as a condition precedent to qualification in both