One hundred years ago this month our
fathers brought forth on this campus a new law school, conceived
in excellence and dedicated to the proposition that legal studies
should be an instrument of liberal education.
A hundred years! It's a long time - longer than the ages that
have elapsed since the Cubs won the World Series. The Law School
is older than I am; older than Bernie Meltzer; older than Puccini's
last opera; older than the United States were at the battle of
Gettysburg.
When the Law School was founded there were no refrigerators,
no radios, no airplanes. Theodore Roosevelt was President; Melville
Fuller was Chief Justice. There were forty-five states, and the
passenger pigeon flew proudly over them all.
It was the same year in which Justice Holmes was appointed to
the Supreme Court, three years before the unlamented decision
in Lochner v New York, eight years before the death of
W.S. Gilbert.
Most legal education at the time was conducted outside the universities.
Even at Harvard, as Frank Ellsworth tells us in his excellent
book on the founding of this Law School, legal studies were "essentially
technical and practical; . . . courses in legal history, administrative
law, jurisprudence, and comparative law were felt to dilute the
curriculum."
President Harper had a different idea, based upon the heretical
premise that lawyers should know something about the world around
them. The laws, he said, cannot be understood . . . without a
clear comprehension of the historical forces of which they are
the product and of the social environment with which they are
in living contact. A scientific study of law involves the related
sciences of history, economics, philosophy - the whole field of
man as a social being.
Along the same lines Chicago attorney Adelbert Hamilton, who
was among the many knowledgeable people President Harper consulted
in planning the new Law School, urged the adoption of a curriculum
that was ambitious, international, interdisciplinary, and comparative
- including courses in jurisprudence, which he prophetically labeled
elements of the law, and "social economics," embracing
"principles of economic production and distribution, principles
of international trade and taxation, . . . [and] the correlation
of law with principles of sociology."
With respect to pedagogy, Hamilton stressed what seems to me
a central truth: You can't learn the law, he said, by just reading
and reciting it; "the law must be applied to actual legal
problems." Blewett Lee, a member of the original faculty,
added a second fundamental principle: "The chief object of
teaching is to make a man who can do things he has never been
taught how to do."
All of this was over a hundred years ago, while the Law School
was only a gleam in President Harper's eye; yet it reads like
a blueprint for the Law School we know today.
Like the rest of the University a few years earlier, the Law
School hit the ground running: In Harper's words it was "born
full-fledged."
It had a faculty of six, including such familiar names as James
Parker Hall, Harry Bigelow, and the political scientist Ernst
Freund, who was born and educated in Germany, as well as a Dean
(Joseph Beale) borrowed from Harvard, who became the country's
greatest authority on the conflict of laws - only to have his
life's work reduced to ashes by a later member of this faculty
whose name, not coincidentally, was reminiscent of my own. Other
well-known scholars were lured from Northwestern, Stanford, and
soon Michigan by the vision of a brave new world and the promise
of exorbitant salaries to form a faculty that Ellsworth described
as "probably the greatest in American legal education."
It had nearly eighty students, including two women; Harvard,
Ellsworth tells us, didn't admit women until 1950. It had one
of the best law libraries in the nation, created practically overnight.
It even had its own football yell:
Rah rah, URah, who are we?
Law School! Law School! U of C!
The yell has long since gone the way of the passenger pigeon,
along with big-time football at the University of Chicago. The
rest remains; the vision has become reality. The Law School embodies
the dreams of its founders. It is a jewel in the University's
crown, very possibly the best Law School in the world - though
I say it who shouldn't, as Ralph Rackstraw once said.1
No other law school has better succeeded in integrating other
disciplines into the legal curriculum. To take just one example
at random, the study of law and economics - developed at and epitomized
by the University of Chicago Law School - has transformed legal
thinking for all time. Whatever our ultimate conclusion, we can
no longer talk about decision-making without considering the economic
consequences of our actions.
No other law school has better integrated the study of other
legal cultures, to promote understanding of our own. We have a
long tradition of foreign-educated scholars, from Ernst Freund
to Max Rheinstein to Gerhard Casper. We have had a parade of visitors
from abroad, both professors and students, financed in part by
generous grants from the French and German governments. They enrich
us all, and I hope and believe we enrich them too.
No other law school better exemplifies the dedication of its
faculty both to scholarship and to teaching. This faculty takes
teaching seriously. It insists that students not merely memorize
rules but develop their capacity to reason and to criticize. It
strives to set a standard of seriousness and excitement about
the material. And at the same time it is consistently the most
productive faculty in the country in terms of original research
and writing.
No other law school provides better or more consistent support
for academic freedom - not least, because it is a private institution
supported largely by the generosity of those who have enjoyed
its benefits and are determined to ensure that others can do so
too. The crucial importance of private education was demonstrated
only the other day during the witch hunts of the 1950s. As my
father discovered at UCLA, in that dark time academic freedom
disappeared at even our greatest public institutions; it continued
to flourish at Chicago.2
No other law school provides better support for younger colleagues.
At the end of my first quarter here Walter Blum dropped in unannounced
on my class and told me it was all right. Phil Kurland and Phil
Neal allowed me to share their seminar on the current work of
the Supreme Court. Phil Neal nudged me to participate in a seminar
with Harold Demsetz and Aaron Director on the economics of property,
although I protested I knew nothing of economics and little of
property; it was twenty years before I recognized that he had
done so more for my education than for that of the students, and
I am eternally grateful.
Thus I think we can look back with great satisfaction on a century
of ideas and action; we can bask in the confidence that our forbears
bequeathed us a great and glorious institution of which we all
may justly be proud.
Satisfaction should not mean complacency. It is not enough to
achieve excellence; we must maintain it as well. That means more
hard work; as the Red Queen said, we must run as fast as we can
to avoid going backward.
And thus in the three hours remaining to me I, who have spent
the past twenty years or so looking at the past, must spend a
few minutes trying to look forward - though I'm sure you won't
be surprised if in some respects I end up urging a couple of steps
to the rear.
After one of my usual tirades on the degeneracy of today's universe
and all that surrounds it, my research assistant recently asked
me whether I liked anything that was modern. I took two days to
ponder the question and concluded that I did: the conquest of
yellow fever, the music of Victor Herbert, and the invention of
the train.3
But there are indeed many things about the modern world I do
not like: the rise of soccer in the United States, the disappearance
of art and music, the decline of the subjunctive. Closer to home,
I have a handful of reservations about modern legal education
as well.
- Academic legal writing, like modern Supreme Court opinions,
has become practically unreadable. As I wrote not long ago in
the first issue of the Green Bag 2d (the ADR of legal scholarship),
articles over forty pages long ought to be reconsidered; articles
with tables of contents ought to be suppressed. If you have something
to say, say it and stop; don't hide it in mountains of verbiage,
for if you do there is a real danger that nobody will read it
at all.
- Interdisciplinary studies are the proud legacy of Ernst Freund
and William Rainey Harper, the glory, pride, and boast of the
Law School throughout the world. But, as Elena Kagan said to the
Visiting Committee a few years ago, we must never forget that
it is a law school that we are conducting. While it is true that
one cannot be a first-rate lawyer, judge, or scholar today without
knowing something of economics, sociology, history, and philosophy,
it is also true that one cannot be one without knowing something
of law.
Nor is the law a simple-minded process of intellectual plumbing
that can be learned in one's sleep or taught in the interstices
of a course on public policy. It is an art and a discipline of
its own as challenging and difficult as any other and deserves
to be taken seriously in its own terms. We must take care that
in our commendable zeal to place law in its social, philosophical,
historical, and economic context we not lose sight of our principal
obligation: to teach, to study, and to criticize the law with
the tools of the law itself.
- Our students are intelligent, well-motivated, and well-prepared.
Our graduates, like Kipling's Old Man Kangaroo, are very truly
sought after and successful - as practicing lawyers, judges, government
officers, business leaders, and scholars. The Law School is a
leading source of law teachers for the whole country.
The last few years have nevertheless witnessed a disturbing phenomenon:
the development of a pervasive culture of passivity in the classroom
- a reluctance among the students to speak unless spoken to.
This passivity is not only uncharacteristic of lawyers in general;
it is profoundly destructive of all the Law School is about. You
can't learn by sitting like stones in class; the whole idea of
Mr. Harper's university is that education is a matter of give
and take. It would be far easier for us to read aloud to you what
we have already written, or to ask you to read it for yourselves.
But I can assure you that if we did you would not be half so well
prepared for a legal career.
Unlike their counterparts at some other law schools, our students
continue to respond diligently when called on directly, but that
is not enough. There is no guarantee that those who happen to
lose at the academic version of Russian roulette are those who
have the most interesting things to say. The student who sits
on his or her ideas and refuses to share them with others impoverishes
his classmates and cheapens the discussion.
So much for the obligatory three seconds of grousing; these
are a mere handful of flyspecks on the great cyclorama of time.
The big picture, as I have said, is rosy. In the words of Mr.
Gilbert's Lord Chancellor,
The law is the true embodiment
Of everything that's excellent.
It has no kind of fault or flaw,
and the University of Chicago Law School, my friends, embodies
the law.
As Daniel Webster said of his alma mater nearly two hundred years
ago, this is a small law school, but there are those who love
it; and I am proud to be of their number.
To paraphrase the immortal Duke of Plaza-Toro, let me offer
this toast to the Law School: May its next hundred years be better
than its first - if possible!
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