A Moot Court Exercise: Debating Judicial Review Prior to Marbury V. Madison

Article excerpt

On August 31, 1797, student members of the Moot Court Society at Tapping Reeve's law school in Litchfield, Connecticut suspended a rule requiring issues for argument to be put in hypothetical cases, to permit their debating in the abstract a question which especially interested them: Have the judiciary a right to declare laws, which are unconstitutional, void? This moot court proceeding provides a rare pre-Marbury record of an actual argument and decision about what has come to be called the power of judicial review.(2) This article is the means of first publication of that record.

Judicial review was a debatable but not yet widely debated constitutional question in 1797. How it was that American law students came to it then, as an issue for moot court argument, presents an intriguing inquiry for study in the history of early American legal education. As developed here, that inquiry will extend to the Litchfield Law School, its curriculum and methods of instruction, the practice in its Moot Court, the student advocates who appeared in this case, and possible extracurricular sources of their interest in the issue they debated.


Tapping Reeve had lived in Litchfield since his admission to the Connecticut bar in 1772.(3) For a time, like other lawyers, he taught students who apprenticed in his office; one of his first pupils was his brother-in-law, Aaron Burr.(4) The transformation of that office teaching practice into a law school may be dated either from 1782, when Reeve began developing what would become a highly structured, fifteen month course of lectures, or from 1784, when he constructed a small classroom building next to his home to accommodate a growing number of students.(5) Over the ensuing five decades of its operation the school would enjoy a national reputation and following. Reeve's appointment in 1798 as judge of the Superior Court(6) prompted his taking James Gould into partnership, and they divided the lecture curriculum.(7) In 1820 Gould succeeded as sole proprietor,(8) and he ran the school until 1833 when his illness and rapidly declining attendance forced its closing.(9) For its time, the program at Litchfield was "the best professional instruction available in the United States."(10) A remarkably great number of the school's alumni had distinguished public careers.(11)

The Litchfield students took extensive notes of the lectures, which they later transcribed "in a more neat and legible hand"(12) into bound notebooks comprising as many as five volumes, which they took with them for use in their practices. Passed down as heirlooms, the Litchfield student notebooks are a rich, though surprisingly neglected source for the early history of American legal education. More than fifty sets are now preserved.(13) The earliest are notes made by Eliphalet Dyer in 1790.(14) With the next set, taken in 1794 by Asa Bacon,(15) the general scheme of topical organization which the Litchfield lectures were to have for the duration of the school's existence is clearly seen. From then coverage is continuous, with intervals between sets seldom exceeding three or four years.(16)

The lecture notes reflect development of study routines. Asa Bacon's 1794 notebooks, as well as all of the notebooks by the end of the century, contain marginal citations to the books, mostly English works, in Reeve's library. After mornings in the lecture hall, the students spent the remainder of the school day examining the authorities cited in support of the several rules, and in reading the most approved authors upon those branches of the Law, which are at the time the subject of the lectures."(17) Use of Reeve's library was subject to strict rules, which prohibited borrowing of all but a few "privileged" works.(18)

Besides lecture attendance, reading, and notebook writing, moot court exercises were a significant component of the learning experience throughout the school's existence. …