1. Scholarly and Professional Objectives in Legal Education: American Trends and English Comparisons

JOHN H. LANGBEIN*

I have been asked to discuss for English law teachers the great changes that American legal education has been undergoing in recent years. The main theme I wish to sketch is that, over the past generation, the English and American legal academies have exchanged their leadership roles. In the mid-1960s when I first encountered both systems of legal education as a student at the two Cambridges, English legal education was in important respects more scholarly than American. American law schools devoted themselves almost exclusively to training for the legal profession. Today, the leading American law schools have transformed themselves into temples of scholarship, while English law schools have striven to become stronger as training centers for the profession. There is much that is benign in these developments, but also some strands that I find quite worrisome.

At the outset, a word of caution: American legal education is a sprawling enterprise. I have spent my career in one corner of it, at the schools attached to national research universities--in my case, at Harvard as a student, and at Chicago and Yale as a law teacher. Some of the trends that I shall be describing have been felt less intensely at American law schools that are less affected by the ethos of the research universities. Still, the case for focusing on my end of the American spectrum is strong. The national law schools influence the others in many ways, most importantly, by training the majority of American law teachers.

Undergraduate versus graduate education. I begin with the enduring contrast between American and English legal education. English law students are undergraduates, and many have no desire to enter the legal profession. Until lately, university legal study was not a prerequisite for either branch of the English legal profession. When I began reading the law tripos at Cambridge thirty years ago this fall, there were still leading figures on the English bench who had studied maths or greats or whatever, but who had not read any law at university.

American law students are intending professionals, university graduates for whom the study of law is an advanced degree. The Americans effectively forbid the study of law as an undergraduate discipline, while requiring a university law degree for entry into the profession. American law schools thus are gatekeepers to the profession, a profession that has become enormously lucrative and influential. I would also remind you that American university legal education is terminal, in the sense that there is no American counterpart to the obligatory post-university courses that the Law Society and the bar operate in England.1 Nor do American university law graduates undergo any organized apprenticeship such as the system of pupillage or solicitors' articles in England, although the early years of law practice operate for most of our graduates as a de facto apprenticeship. The American law student pursues a three-year degree, sits a bar exam a month or two later, and thereafter is licensed to practice.

England in the 1960s When I first encountered the two systems in the 1960s, the contrast between American legal education as professional training and English legal education as undergraduate study was starkly reflected in the curriculum.

At least in theory and to some extent in practice, the university study of la* in England was thought to be a species of liberal arts education, fungible in a sense with classics, or history, or literature, or chemistry. This conception of university legal education naturally affected the curriculum. There was no study of civil procedure grievous shortcoming that still characterizes much of English university legal education. (The longer I study comparative law, the more deeply I am persuaded that legal procedure is the 'grand discriminant'2 among legal systems. Differences in procedure, and in the legal institutions that operate the procedures, explain more about legal systems than anything else. If I were given the power to make one change in English legal education, it would be to have civil procedure taken seriously.)

In my day as an undergraduate at Cambridge, we studied the basics of tort, contract, property, equity, crime, and the constitution, but little in the way of advanced law--little or no company law, taxation, bankruptcy, evidence, criminal procedure, family law, employment law. English legal education was not meant to be closely practical.

____________________
*
Chancellor Kent Professor of Law and Legal History, Yale University. This paper is based on remarks presented to the 1994 meeting of the Society of Public Teachers of Law in Norwich.
1
In some states lawyers admitted to the bar are required to attend a few hours per year of refresher courses, called "continuing legal education".
2
The term appears in Benjamin Kaplan, An American Lawyer in the Queen's Courts: Impressions of English Civil Procedure, 69 Michigan L. Rev. 821, 841 ( 1971).

-1-

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