The Nation's Law Schools
Robert M. Hutchins
[A speech delivered at the dedication of Rutgers Law
Reprinted from The Center Magazine, July-August
Dean Heckel has asked me to explore what should and can be done to
place the study of law in the mainstream of the humanistic tradition,
what might be needed, in his words, "to shake it out of its
present how-to-do-it mold."
A how-to-do-it school is, I take it, one that aims to produce
technicians, who will perform the technical services the society
desires. The methods of instruction may vary in accordance with the
estimate made at one institution or another of the best way to equip
the technician. One how-to-do-it school may teach local practice and
the drafting of legal instruments. Another, perhaps because it aims to
be "national," may scorn these subjects as the indicia of a
trade school and be nevertheless in the how-to-do-it mold because it
aims at technical competence. When Professor Joseph Beal of Harvard
said that the object of a law school should be to teach the student to
make a noise like a lawyer, he was announcing a preference for a
how-to-do-it institution. In such an institution the assumed
requirements of the practice determine the course of study and the
methods of instruction.
I respond to Dean Heckel's inquiry with some hesitation because of an
experience I had only the other day. I was asked to advise a
university committee on the establishment of a new law school. The
committee had before it a draft report recommending the foundation of
what it called a "standard law school" giving what it called
the "traditional courses." The purpose of the school was to
meet what was called the need for lawyers in the state.
On the basis of the frustrations of more than forty years, I objected
to this purpose and to this method of accomplishing it and proposed
some alternatives that seemed to me both simple and innocuous. When I
had finished, the Chairman disposed of me in one admirably compact
sentence in the best academic jargon. He said, "We are not
structured for creativity."
I can only assume that Dean Heckel would not have asked his questions
if he, at least, were not structured for sufficient creativity to
consider possible answers. Yet I must say at the outset that the only
effective answer has a rather repellent ring. I believe the way to
shake the law school out of its how-to-do-it mold is to abandon the
ideals implicit in that mold, to proclaim to all and sundry that the
object of the law school is to understand the law, that the law school
prepares students for the practice by helping them to such
understanding, and that its emphasis is on theory because the best
practical education is a theoretical one. I believe this is necessary
for the sake of the student, the law school, the bar, the university,
and the country. I believe that to establish another law school
teaching traditional courses is to commit an anachronism.
It must be admitted that complications revolve around the difference
between "can" and "should." How is it possible to
suppose that anything can be done when in order to do anything
significant it would be necessary to change fundamental attitudes and
expectations of the American people? If our law schools are cast in a
how-to-do-it mold it must be because this is the way almost everybody
wants them to be. I am inclined to think this is the way almost
everybody wants the whole educational system to be. Any other view is
regarded as Utopian, reactionary, un-American, or even heartless, as
when a student newspaper in California said last May that unless the
University was cast in the how-to-do-it mold its graduates would
starve to death.
There has never been any evidence that how-to-do-it instruction has
saved or could save the young from starvation. On the contrary, if
such instruction traps them in a set of outworn practices, they may
find themselves on the road to the poor house because of it. I did a
lot of harm myself in the days when the Yale Law School was a trade
school. My object was to teach the students to memorize and manipulate
the rules. This is what the School held itself out as doing. This is
what the students expected. They were impatient with anything else,
and they had the powerful support of the bar.
The Supreme Court stabbed my course in Public Utilities through the
heart when it overruled Smyth v. Ames. The Court has been equally
unkind to those rules of evidence which I painstakingly drilled into
the student mind. As for my third course, Code Pleading, who cares
about pleading now? In May, Mr. Justice Douglas, speaking for the
Court, referred to a man who cared about it, Baron Parke, as an
example of the sway that arid technicalities can acquire over the
If you are going to teach a student how to do it, you have to know
how it is going to be done. As things turned out, in the courses I
taught it was done differently from the way I said it would be. If we
accept the doctrine current in those days that the law is what the
courts will do, I did not teach law. Although I was very up-to-date -
in Evidence I made great play with Sacco and Vanzetti and the Hall
murder trial - I succeeded only in teaching what the law had been,
something I would have roundly denied doing at the time.
The more rapid the rate of change, the more difficult it becomes to
tell anybody how to do it. There have probably been more important,
unexpected developments in American constitutional law in the last
twelve years than in the whole period since the time of John Marshall.
Brown v. Board of Education and Baker v. Can have been
decided, and criminal procedure has been revised from start to finish.
These events are undoubtedly related to social, economic, and
technological changes, and if one thing seems certain in an uncertain
world it is that such changes will accelerate in the future. These
changes will be reflected, however tardily or erratically, in the law.
Some technological changes will affect the work of lawyers directly
and hence put serious questions to how-to-do-it schools. All young
lawyers and some old ones have had to spend most of their time looking
up the law. We can say with some confidence that this laborious and
uninspiring process is obsolescent. The law clerk will be automated.
The law schools will have to teach the students how to do other
The how-to-do-it spirit is fatal to the university in any sense of
that institution I can understand. If we want to say a university is a
place where anybody can learn how to do anything he wants to learn to
do or anybody wants him to learn to do, a place that will do anything
anybody will pay to have done, I suppose there is no objection as long
as we recognize that this is a novel and parochial use of the word. It
would seem simpler and less confusing to follow Clark Kerr and refer
to the university as a thing of the past, now superseded by a new
thing with a new name, the multiversity.
Not that the university has ever been without the desire to serve
society and meet its needs by furnishing it men competent to function
in its important institutions. The issue is, what needs of society
shall the university try to meet, how shall the choice of needs and
services be decided, and what are the methods to be employed in the
preparation of men and women for the tasks selected?
In the multiversity this issue is scarcely faced at all. Its
determination is left to the parallelogram of forces set up by
external pressure. The multiversity does whatever the most powerful
groups can make it do. A glance at the American multiversity shows
they can make it do almost anything.
The multiversity is necessarily cast in a how-to-do-it mold, because
pressure groups want specific services performed by people
specifically trained for the purpose. They want efficient hands, and
they do not want to bother to train them themselves.
A multiversity cannot be autonomous, because the decisions about its
life are made elsewhere. It cannot be an intellectual community.
Thought is not necessary to training, and may be an interference with
it. The how-to-do-it personnel and programs of one branch can be of
little interest to other branches except as the practices of various
occupations may accidentally come to a common focus: the schools of
theology, music, speech, and mortuary science might, for example,
discover a common interest in funerals.
If a law school looks to interdisciplinary studies as a way of
breaking out of the how-to-do-it mold, it will find in the
multiversity only such accidental connections, and it will find that
these connections do not help it break out of the mold. On the
contrary, they are likely to be regarded as valuable only as they
supply additional weapons for the technician's arsenal.
Interdisciplinary studies under these circumstances do not avert the
curse that afflicts the multiversity and the subjects that it studies.
That curse is the loss in intelligibility, a loss that comes, and
comes inevitably, when technical competence is accepted as the aim of
the institution. That aim produces an isolation of the disciplines
that makes real interpenetration impossible.
The isolation of the Yale Law School in the bad old days was
complete. It was only in a geographical sense a part of the
University. There was no university faculty in which matters affecting
the University as a whole could be taken up. If there had been, the
Law School would not have derived much profit from it; for it had
nothing in common with other departments and schools. The reason for
the dreariness of university faculty meetings, where such faculties
exist, is that the multiversity is divided into insulated
compartments. Almost the only subject of common interest is the
academic calendar. Experience shows that a great issue like academic
freedom arouses only that section of the multiversity which feels
itself directly threatened.
I hasten to say that young people must learn how to do it. The
question is how and where. Anthony Crosland, Minister of Education and
Science, has proposed for England what is called the binary plan. The
university would be defined as an autonomous intellectual community.
If the public had needs that could not be met by that kind of
institution, the university would neither be changed to satisfy these
demands nor abandoned for the multiversity. Other institutions would
be established to meet demands that the university could not gratify
without destroying itself.
Something of this kind could have been done, and in some states was
actually done for a time, in the land grant colleges. The land grant
colleges could have taken the pressure toward how-to-do-it off the
universities. Instead the universities, when they did not become land
grant colleges themselves, as they did in half the states, became
indistinguishable from them. When it comes to how-to-do-it, there is
not much to choose between Michigan and Michigan State.
The American system, under which every conceivable kind of training,
every conceivable kind of investigation, and every conceivable kind of
service is thought to be the proper duty of the university is, after
all, unique. Other countries produce technicians of every kind,
apparently in a quantity and of a quality adequate to their needs; in
quantity and quality some of them do not suffer by comparison with our
own production. Other countries have not found it necessary, in order
to teach young people how to do it, to construct their universities on
the how-to-do-it plan.
We are a "practical" people, one easily hornswoggled by
something represented as practical that has no practical value. We are
a "democratic" people, one that finds it snobbish to say one
study is better than another. Hence we have been smoothly seduced into
the multiversity, which justifies itself by asserting that all
subjects of instruction, including those of specious practicality and
those which put no strain on the mind, have an equal claim on its
hospitality. As long ago as the nineties this was effectively the
manifesto in which Benjamin Ide Wheeler, Andrew D. White, David Starr
Jordan, and Charles W. Eliot joined.
The American university has therefore readily lent itself to the
ambitions of those occupations which aspired to the dignity and
emoluments traditionally associated with the professions. The way for
an occupation to limit competition and acquire social standing has
been to establish a so called professional school in the state
university and then require everybody who wishes to enter the
occupation to show a degree from the school or its equivalent.
The prestige of these degrees has rested on popular distrust of all
American occupational groups. They are commonly regarded as seeking
their own selfish interests at the expense of the public. A course in
Legal Ethics used to be required in all law schools. As I remember it,
it was a course in how to keep the trust companies from getting the
business. Although in other countries the professions are often
expected to supervise the education and admission of neophytes, this
rule could hardly be followed in the United States, where the
professions are dominated by the spirit of the stagehands' union in
New York: it has succeeded in making membership hereditary. The
university, however inefficient it might be and however subservient to
the demands of an occupational group, was at least relatively
impartial as among the interests supporting it and might have some
notion of the professional standards demanded by the public good. In
the law the distrust of the profession and the relative standing of
the university combined to put an end to on-the-job training, but it
did not change the character of that training. That would have been
regarded as "impractical." The central distinction on which
a university law school should be founded was not made. That is the
distinction between what the student ought to know that he can learn
only in the university and what he ought to know that he can learn,
and learn better, in the practice. The law school did it all. My
course in Evidence, for example, was taught on the wholly mistaken
theory that the student could go from my classroom to the courtroom,
where he could at once begin to outmanipulate his opponent. In a
trade-school atmosphere this result is inescapable, if only because of
the restlessness of the students when faced with anything that does
not appear to teach them how to do it. I remember when Karl Llewellyn
gave his class in commercial law six lectures on the history of the
law merchant. If he had given a seventh, he would have been lynched. W
hat is wrong with the multiversity? How can one be sure that the
supersession of the university is not progress? The answer must lie in
what a university can be - not what it has been, not what it is, but
what it can be. Let me take an analogy from a field in which nobody
here has a vested interest, the encyclopedia. We think of this now as
a ready-reference or how-to-do-it book. But the great encyclopedias
have always cherished quite a different ideal, no matter how short of
it they have fallen. They have wanted to help the reader understand
the world. They have wanted to do this by drawing in all its
perfection the circle of knowledge, from which the encyclopedia
derived its name. To charge the maker of such a work with failure to
supply current information on all the trivialities of life would be an
insult to his aims. So when Karl Jaspers proposed something new in
Europe, a technological faculty in the university, it did not occur to
him to rest his case on the need for more, or even for better,
technicians. He did not say, "We must keep ahead of Russia."
He talked neither of the "success" of the individual nor the
power and prosperity of the state. He was dealing with the problem of
making the world intelligible. His words were, "The university
must face the great problem of modern man: how out of technology there
can arise that metaphysical foundation of a new way of life that
technology has made possible." I take this to mean that the
university must fashion the mind of the technological age.
Jaspers wants technology in the university in order to round out the
circle of knowledge. He wants this for the sake of technology, which
cannot be understood except in the light of other disciplines; for the
sake of the other disciplines, which cannot be understood without
understanding technology; and for the sake of society, which needs,
perhaps more than anything else, to have the world made intelligible.
Intellectual communities organized for this task are universities in a
sense that I can understand. In such an institution interdisciplinary
studies are not accidents or superficial adornments. They are of the
essence. And in such an institution interdisciplinary studies can at
last be effective, because those involved have a common aim, to draw
the circle of knowledge. This aim is moved from the periphery to the
center of their attention.
The circle of knowledge can be drawn only in and by an intellectual
community. If a professor is nothing but a specialist, a technician,
or a how-to-do-it man, he cannot really understand his own subject,
because it cannot be understood except in relation to the others.
Neither can he take part in drawing the circle of knowledge, because
he is not interested or qualified to make the connections between his
subject and the others.
The university can become an incandescent center only to the extent
that it becomes an intellectual community. Otherwise individuals may
do great work and shed a brilliant light, but the university as a
university does no more than provide a place for them. Valuable as
this service is, it is not the same as the kind of corporate
illumination that can be expected from an intellectual community each
of whose members and each of whose subjects enlightens and is
enlightened by the rest.
The notion of the circle of knowledge and of the intellectual
community is not merely a requirement of speculative thought. It is
also a requirement of practical life. No man, least of all a lawyer,
lives within the boundaries set by his vocational techniques. The
disciplines have to be studied in the light of one another because
they have to be lived together. No great problem -of modern man, to
use Jaspers' phrase, can be seen, to say nothing of solved, from the
standpoint of one discipline alone. The specialties have to develop in
the context of one another if they are to serve the practical judgment
of mankind. We are all familiar with the practical as well as
speculative excesses or deficiencies of great specialists who at an
early age became detached from all but their own small spot on the
In a university subjects have to be studied as ends in themselves,
not with a view to their practical utility as commonly misunderstood.
The fact that all knowledge may be applied cannot be permitted to mean
that the university must aim at applications or that this aim must be
decisive of the methods of investigation. So an English scholar, A.
Phillips Griffiths, has said, "To say that in universities
subjects are pursued as ends in themselves is not then to say that
they are all useless; it is only to say that their use does not
determine the way they are studied.... Turning out people with
technical abilities is not, then, incompatible with the essential
function of a university; but it will become so if this aim is allowed
to determine its activities. We may also say that when this aim does
become the determinant of its activities, it fails to achieve this aim
on the highest level."
If the technical objective determines the content and methods of
higher education, that education will be incompatible with the
essential function of the university and at the same time will not be
very good technical education. The best practical education is a
Can the multiversity accept a law school that is not in the
how-to-do-it mold? If it did so, could the school accomplish its aim,
which is simply to understand the law and bring it within the circle
The shopping-center principle and the vast supplies of money that
have lately become available are relevant here. The shopping-center
principle means that you offer anything for which there is any demand.
For example, a good many multiversities, having heard that there is a
market for something called liberal education, have started something
called by that name. They are careful not to commit themselves to this
kind of education, because they want to offer other packages to other
markets. So an "experiment" in legal education, as such
ventures are called in applications to foundations, could probably be
established in a multiversity and could easily be financed.
Would the "experiment" be worth making? Probably not. On
the Principle of Least Harm, which should guide all university
administrators, the proposal has merit, because the new school would
do less damage than the old. But unless it could command the resources
and the independence to become a small university itself it could not
form an adequate intellectual community, and it could not draw the
circle of knowledge. In short, you cannot have a university law school
unless you have a university to put it in.
To the attitudes and aims of the distinguished provost of this
university I most heartily subscribe. I would accuse him only of a
kind of misleading utopianism. As he says in his eloquent address to
the Association of Land Grant Colleges, he wants to have his cake and
eat it too. He wants a university. He does not want a multiversity.
But he wants a university that will do all the things a multiversity
The desire to have one's cake and eat it is probably the oldest and
commonest ambition of mankind. But it has never been done. I am
reminded of the educational administrator who told me what he was
going to do. I said, "You ought not to do that. You ought to do
the exact opposite." He said, "We'll do that too." It
is possible in one institution, one in a manner of speaking, to do a
thing and do its exact opposite; but such an institution is the kind
Mr. Schlatter does not want: it is a multiversity.
The method by which Mr. Schlatter proposes to have his cake is the
college of arts and sciences, which is to unify and integrate the
university and prevent it from becoming a multiversity. But he himself
correctly identifies the enemies of liberal education as
professionalism, specialization, and vocationalism, which are the
essential characteristics of those multiversity activities with which
Mr. Schlatter would surround the college of arts and sciences.
How can liberal education survive in the presence of so many enemies?
We can find the answer in Mr. Schlat-ter's words. He says, "Some
day I would like to discover at Rutgers a student in physics, or
chemistry, or biology, who is not enrolled in his major because he
intends to go on in it professionally, but simply because these are,
in fact, great intellectual disciplines ..." The fact that Mr.
Schlatter has not yet found such a student at Rutgers suggests that
even here the hope that liberal education may save the university from
the multiversity is vain. As Jacques Barzun has shown, liberal
education and the college of arts and sciences, which has been its
nominal home, are being squeezed between the high school and the
multiversity. We are not likely to have so much as a crumb left. Cake
is where the heart is. The heart of the multiversity is precisely
where Mr. Schlatter places it, in professionalism, specialization, and
vocationalism. So the president of a considerable multiversity, James
A. Perk-ins of Cornell, has expressly abandoned, in a casual way, as
though the abandonment were self-evidently necessary and desirable,
the task of understanding. He says, "Where the university has
thought of itself as an institution which could explore independently
the unity of knowledge, it now finds that it must concentrate on
specialized segments of knowledge in order to maintain excellence."
The language is almost Orwellian, for it seems to say that
incomprehension has now been found indispensable to excellence. Mr.
Perkins condemns himself to a multiversity by seeing his institution
as a collection of departments that have formally repudiated any
common task. Just as I think Mr. Schlatter's hopes for the
preservation of liberal education are vain, so are any for shaking a
multiversity law school out of the how-to-do-it mold. The surrounding
enemies are too numerous and too powerful. The only way to combat them
would be to go underground. I prefer open war, war on the
multiversity, war on the how-to-do-it law school. Both of them
represent the degradation of great ideas. I have an exalted opinion of
what the university might be. I regard the law, in Mr. Schlatter's
words, as "a great intellectual discipline," to be studied
as such. To have the university and the law school dedicated to
training technicians is so far from the potentialities of either as to
be a scandal, and one too flagrant to continue.
The responsibilities and opportunities of the university and the law
school are now greater than ever. Society needs a center of
independent thought and criticism as never before. The law faces new
problems that must be solved if civilization is to survive. The
university is the place where wisdom can be generated. The law needs
that wisdom and must contribute to it. Other civilizations have fallen
because of the barbarians without. That may happen to us. But it seems
more likely that we may fall a prey to the barbarians within, from
which the university and the law might save us.
If we see the university as a center of independent thought and
criticism and the law as an ordinance of reason directed to the common
good, we understand how the two come together and how the one requires
the other. The intellectual community has to think together about
important matters; the law is the application of thought to what is
perhaps the most important of all matters, the regulation and
direction of the common life. Law teaches us how to lead the common
life and disseminates newly discovered moral truths.
The law becomes a university subject, as distinguished from one
appropriate to a multiversity, when it is seen not as a collection of
coercive rules to be manipulated by the technician, but as a body of
principles of the highest moral and pedagogical value. The task of the
university law school is the clarification and refinement of these
principles, which are relevant to the life and to the study of
everybody inside and outside the university. Since law is
architectonic, which means that it shapes the conduct of society,
everything in the society is relevant to it.
The study appropriate to a university law school is jurisprudence. In
the days when the Yale Law School was a trade school, jurisprudence
was an elective course in the first semester of the third year taken
by fifteen students, all of whom were obvious eccentrics. But consider
what jurisprudence is in Lon Fuller's definition of it. He said, "Jurisprudence
is concerned with the nature of law, its purposes, the means
(institutional and conceptual) necessary to effectuate those purposes,
the limits of the law's efficacy, the relation of law to justice and
morality, and the modes by which law changes and grows historically."
I think you will agree that the subjects included in this definition
are matters a lawyer ought to understand. I think you will agree, too,
that the graduate of a how-to-do-it law school is unlikely to
understand them. I am sure you will agree that these are matters the
lawyer cannot come to understand in the practice. The only place he
can do so is a university law school that has been shaken out of the
how-to-do-it mold. I hope you will agree that the lawyer will be a
better practicing lawyer if he understands these matters. He will be
able to understand the direction of change and the reasons for it. His
university and his law school will have been examining these issues.
His university and his law school, far from being surprised by change,
will have anticipated and perhaps contributed to it. The graduate of
such a law school will be educated. An educated man knows what he is
doing and why. He can learn how to do it in the practice. In Jaspers'
phrase once more, the university should face the great problems of
modern man. The university law school should face them under the
aspect of the law. I am not saying that the university or its law
school can or should solve these problems. It can and should identify
and clarify them. The university law school would not be a "standard"
school, though the names of the traditional courses might appear. Even
Evidence, Code Pleading, and Public Utilities might be there. The
statutes and cases upon which law students have fed would still
constitute much of their diet. Even Smyth v. Ames, the New York Code
of 1848, and Commonwealth v. Sacco etal. might deserve some mention.
But the statutes and the cases would be examined jurisprudentially,
that is, to show "the nature of the law, its purposes, the means
(institutional and conceptual) necessary to effectuate those purposes,
the limits of the law's efficacy, the relation of law to justice and
morality, and the modes by which law changes and grows historically."
The Constitution of the United States says nothing in regard to issues
about which Americans are most concerned today. It does not mention
technology, bureaucracy, education, cities, planning, civil
disobedience, political parties, corporations, labor unions, or the
organization of the world. It does not contemplate the conquest of the
moon. And its references to communication, like its conception of the
common defense, are, in the light of our present and impending
experience, primitive in the extreme. Meanwhile, the subject that
necessarily preoccupied the founding fathers, the government of
territory, has been largely eliminated by the elimination of
In Home Building and Loan Association v. Blaisdell, decided
in 1934, Mr. Chief Justice Hughes said, "The vast body of law
which has been developed was unknown to the fathers, but it is
believed to have preserved the essential content and spirit of the
Constitution. ... This development is a growth from the seeds which
the fathers planted."
What is the essential content or spirit of the Constitution? How do
we tell a growth from the seeds the fathers planted from a weed sown
surreptitiously by less respectable hands? These are jurisprudential
questions. So are the burning issues on which the Supreme Court has
passed in the last twelve years, from desegregation and
reapportionment to obscenity and libel.
But these are nothing to the issues that lie lurking like booby traps
in the road ahead. Can science be constitutionalized? Can technology
be controlled? Can a law, not merely of the world, but of the
universe, be formulated, adopted, and enforced? Can and should the old
geographical federalism be replaced by some kind of professional or
occupational federalism? Must a modern government plan, and, if so,
how can planning be made compatible with democracy? Are trustbusting
laws that do not bust trusts and regulatory agencies that do not
regulate the way to make an economic system serve the common good? How
can the citizen cope with bureaucracy? Can we think of nothing better
than the ombudsman and the Conseil d'Etat? What law should
govern the communications revolution that is under way, which will
bring into our homes the accumulated wisdom and folly of the race at
the push of a button? Who will own and operate the satellites through
which the fate of our culture may be decided?
I hold no brief for this list and should be glad to subscribe, arguendo
at least, to any other; for the point I am making is only that the
task of the university is to identify and clarify the great issues of
our time, and the task of the university law school is to do so under
the aspect of the law.
Whether or not we face this list of problems -- or any other list
that results from the deliberations of the faculty -- our students are
going to have to face them. If the law schools do not face them, our
students are likely to look back on their legal education as I look
back on mine. It was a valuable experience, because I had to learn to
work hard, to read and write, and to try to make a clear statement
that would stand up under cross-examination. But it was an experience
that failed to make intelligible either the law in books or the law in
action, and it did not suggest what might be expected of me as an
officer of the court and a member of a learned profession.
The university should be restricted to teachers and students of the
great intellectual disciplines. The teachers and students in other
disciplines than the law would be pondering the same, or many of the
same, issues under consideration in the law school. At the moment I
cannot think of any significant issue that is without legal aspects;
and I cannot think of any significant issue that is exclusively legal.
The constitutionalization of science, the guidance of technology, and
the direction of the communications revolution, for example, involve
almost every great intellectual discipline, and they obviously involve
the law. Drawing the circle of knowledge requires the collaboration of
the whole community.
Insofar as collaboration is embarked upon in order to improve the
technical competence of the participants, it is in no way superior to
more familiar devices, like drill in the rules, directed to the same
No one can object, for instance, to the study of human behavior.
Nobody can deny that judges are human and that their behavior can be a
legitimate object of investigation. The study of small groups, like
appellate courts, is fascinating to those who want to find out about
such matters. Nevertheless, the articles on behavioral science and the
law in the current issue of the Harvard Law Review can have
little interest for a university law school, for they merely suggest
that behavioral scientists have some data that will help lawyers
predict what courts will do.
The articles in the Harvard Law Review raise the question of
whether the branch of behavioral science they represent is an
intellectual discipline; for only the most rudimentary kind of thought
seems necessary to the studies there described. The kind of thought
required does not seem to reach beyond the level of the most
significant contribution this branch of behavioral science has yet
made, the public opinion poll.
Since these studies do not help us to understand the law but offer
only some rather inadequate light on the probable attitudes of judges,
they can hardly claim the attention of a university law school. Even
if they provided infallible guides to the behavior of judges, they
would have little value to a university law school in the context in
which they are presented, namely, as additions to the weapons in the
Seventy years ago a young New York lawyer went to see an old one in
Wisconsin and found him in the evening reading by the stove in the
center of his office. The New York lawyer told me the story when he
was old himself. When they had finished discussing the case they had
in hand, the Wisconsin lawyer said, "Tell me, Mr. Debevoise, is
it true what I hear, that there are men in New York City who are
practising law for money?"
Even in the remote fastnesses of Alaska or Hawaii that question would
hardly be asked today.
Yet a profession is a group organized to perform a public service.
There is usually a confidential relation to the recipient of the
service, one of advice, guidance, and expert assistance, which makes
the rule of caveat emptor peculiarly inappropriate. And there
is an esprit de corps resting, among other things, on a common
education and centering on the maintenance of standards. In theory, at
least, the group seeks to perform the service and to maintain the
standards even though more money could be made in ways that would
endanger the confidential relation and the quality of the work.
A learned profession is one based on a great intellectual discipline.
It has intellectual content and has it in its own right. A learned
profession has something of its own that it can bring to the task of
drawing the circle of knowledge and facing the great problems of
Such a profession is the law. What it can bring to the common task is
jurisprudence, through which it gains insight into what reason ordains
to achieve the common good. To serve the common good by discovering
what reason ordains for its achievement is the sworn duty of the legal
profession. A graduate of a university law school such as I have
briefly sketched would be qualified to take an honorable place at a
bar dedicated to this duty.
The university and the university law school might in some such way
as this place the study of law in the mainstream of the humanistic
tradition. Can it be done?
Perhaps I have been describing Utopia, but at least I would claim
that this Utopia is not misleading. It represents an ideal that could
be achieved, and hence one toward which it is worthwhile to strive.
The multiversity and the how-to-do-it law school do not reflect the
considered judgment of the country. They crept on us unawares. What we
need now is the liveliest kind of debate - which I hope may start
today - on the question of whether they can meet the real needs of our
society and the world and, if not, how they can be replaced by the
university and the university law school.