The Law Student's Bill of Rights

By Goldberg, John C. P. | Constitutional Commentary, Winter 2004 | Go to article overview

The Law Student's Bill of Rights


Goldberg, John C. P., Constitutional Commentary


Recent demolition at Vanderbilt Law School to make way for an espresso bar in the library has resulted in the discovery of an important and hitherto unknown historical document. Its contents are reproduced below, along with scholarly commentary.

How the document ended up in Nashville is a mystery, given that we now know it was drafted by the first Student-Faculty Relations Committee ever to convene in a law school. That Committee was formed in the winter of 1882 by Dean Langdell of the Harvard Law School. Outraged at the incomprehensible instruction of a new faculty member (one Professor Holmes), Harvard 1Ls petitioned for a full tuition refund or, in the alternative, admission to Yale. The students' threats were dropped when Langdell promised to "arrange something else" for Holmes--a judgeship, as it turns out--and after the Committee produced the subsequently-ratified Bill of Rights.

Dean Langdell's endorsement of the Bill of Rights demonstrates that he was interested not only in constructing arid legal taxonomies, but also in the education of law students. Here the modern reader must resist presentism. Strange as it may now seem, both of these objectives were at the time treated as worthy goals. Langdell's aspirations are amply reflected in various interoffice memoranda that were later published as The Formalist Papers, particularly No. 10 (concerning the potential of self-interested faculties to dominate law school decisionmaking at student expense).

Needless to say, the purpose of the modern law school is to oversell its reputation. Still, despite the passage of time and this shift in orientation, the Law Student's Bill of Rights speaks directly to our contemporary predicament.

Articles in Addition to, and Amendment of, the By-Laws of the Harvard Law School, Proposed by the Student-Faculty Relations Committee (Prof. Ames, Chair), and Ratified by a Vote of the Full Faculty at a Faculty Meeting, December 1, 1882.

I.

The Faculty shall make no law respecting an establishment of jurisprudence, or prohibiting the free exercise thereof; or abridging the freedom of communication; or of students peaceably to assemble in study groups, and to petition the Associate Dean for Student Affairs for a redress of grievances.

Commentary." The Establishment Clause was passed in reaction to the idiosyncratic manner in which Professor Holmes responded to expressions of concern from students as to what exactly they were supposed to be learning. The content of the class, he insisted, "is nothing more pretentious than a prophecy of what I will do in fact ... when I grade your final exams."

The Free Exercise Clause aims to ensure that no student (or faculty member for that matter) is made to suffer any sanction or detriment for invoking terms like "realism," "formalism," or "pragmatism" without the foggiest idea as to their meaning.

The Freedom of Communication clause was inserted to stop the practice of professors requiring students to obtain preclearance to pass handwritten notes in class. Invoking the notion of a "living" law, students have insisted that this clause should today be read to confer a right to free and full Internet access during class time. After all, they point out, access to the marketplace-whether of ideas or otherwise--is a central tenet of democratic constitutionalism. Also, use of instant messaging to "diss" the prof. and one's classmates helps to pass the time.

At the time of the Framing, petitioning was regarded as an extraordinary remedy for grievances that could not be resolved over a pint of ale. Today the drafting of petitions to the Associate Dean for Student Affairs is a mandatory exercise in most law schools' first-year legal writing courses.

II.

A well-regulated Outline Bank, being necessary to security of continued enrollment, the right of the students to keep and share the work of legendary gunners shall not be infringed. …

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