Pictures of Reformation of Legal Education

are always the best judges of their own interests. With a premise of rational man on trial, the design of a negative judge in the adversarial system provides enough margins for the parties to fight for or drop their rights. That is to say, the adversar ial system is in accordance with liberalism. Moreover, it is more likely to interfere in or even deprive the parties’ independent choice in the name of over-zealous totalitarianism. Last but not least, it seems that ignoring the juries’ basic judgments and their social responsibilities because of Frank’s blind faith of experts.

Chapter 7 Frank’s Influence on the American Legal Thoughts

doctrine and the judicial remedies. Not only could the students learn how to deal with a case, but the judges could find out the doctrines behind the cases which could be taken as the precedent in the ongoing case. What’s more, since the purpose of this method is strictly restrained in the study of legal doctrines, the library should be the primary place for legal researches. “If these doctrines could be so classified and arranged that each should be found in its proper place, and nowhere else, they would cease to be formidable from their number”. （C.C. Langdell, A Selection of Cases on the Law of Contracts vi-vii (Boston, Little, Brown, & Co. 1871).）

This is the case method system, and the purpose of the system designers is to allow easy access for students to practice and improve their skills in court. At the very beginning, it did make response to the calling for legal s cience and legal practice in modern times. Students may understand the reason why a judge made such a decision, the factors judges take into account in a court case, and the balances judges make. Some famous law schools at that time, such as Harvard Law School and Yale Law School, use this or similar methods in their teaching. Based on research on this issue, it is believed that in 1907, more than 30 law schools implemented this teaching method. More and more law schools insist on the stability, practicability, and science.

However, in Franks’ opinion, the case method system had obvious and severe problems. The students were requested to concentrate on the analysis of court opinions rather than lectures, regulations, and textbooks. As time goes by, confined to the library, the case method and the students run counter to the judicial practice. Since legal doctrine is considered the primary purpose in legal education, students are weighed down with the tedious collecting of cases, analyses of the reasons in cases, and the abstract doctrines. There is little time and few opportunities for the students to keep

pace with the judicial realities happening in daily life. They do not know the real reasons hidden between the lines, the intentions of plaintiffs and the defendants and how the testimony works and its outcome. What is more, the materials law school students could read are the opinions of appellant courts, which mean the students are just led to concern on the appellant methods and attitudes, except the processes on trials, which are crucial to the practice. It is more likely that the practical experience and skills, such as evidence collection, court debates and convincing the jury, are untouchab le in the case method system, which just focuses on the legal principles or the legal doctrines. In addition, legal doctrines are not equal to the whole legal system, which includes legal negotiations, legal arbitrations, and the other dispute systems. Last, but not least, the foundation of the case method system is nothing, but so-called science. In Frank’s opinion, it was impossible to build up a legal system only in the legal concepts, formal logic, and legal principles. One of the scientific propositions is the repeatability of the same methods, which means the judge should make the same decision under the same circumstances. Nevertheless, in the legal formulas, R (Rules)* F (Facts) = D (Decision), it is impossible for the decision to be maintained while there are numerous variables in facts. Moreover, it is hard for legal doctrine or legal interpretation to clearly express causality in legal formulas.

Frank also questioned the purpose of the case method. Since the system focuses on the appellant cases, the students are assumed to be familiar with the case on appeal rather than the case on trial. However, the cases on trial are much more than the appeal one in daily life. Therefore, are they qualified to handle the processes they are not familiar with? It seems that the system easily aggravates substantial injustice. It is much easier for lawyers educated in this system to cater to the judge’s need to win, rather than

Chapter 7 Frank’s Influence on the American Legal Thoughts

to justice itself. Frank could not accept this possibility.

Finally, a vicious legal educational cycle comes from this system. The best students are sent to law school to give lessons to the freshmen though they have no experience in legal practice. “Adolf Berle, then a Columbia Law School professor, but himself an exception to the rule, said to me that 90% of teachers in our leading law-schools had never so much as ventured into a court-room…Yet it is, I think, still true that at many law schools the majority of the professors have never met and advised a client, negotiated a settlement, drafted a complicated contract, consulted with witnesses, tried a case in a trial court or assisted in such a trial, or even argued a case in an upper court.”

(Jerome Frank, 1949: 227) What they tend to teach their students is questionable.

In addition, Frank did not have a good impression of Langdell, satirizing Langdell as “a neurotic advisedly” and “a cloistered, bookish man, and bookish, too, in a narrow sense,” since Langdell felt “the library is to us what the laboratory is to the chemist or the physicist and what the museum is to the naturalist.” (Jerome Frank, 1947:1303)

In Frank’s opinion, the Langdell teaching method was dangerous to law, which is rooed in the practice. So Frank listed series suggestions for law schools:

(1) A considerable proportion of teachers in any law school should be men with not less than five to ten years of varied experience in actual legal practice.

(2) The case-system, so far as it is retained, should be revised so that it will in truth and fact become a case-system, so that it will in truth and fact become a case-system and not a mere sham case-system.

(3) At best, dissection of court records would merely approximate the dissection of cadavers which first-year medical students learn.

(4) Now I come to a point which I consider of first importance… Some of these men could run the law school legal clinics, assisted by the students. The work of these clinics would be done for little or no charge…They would take on important jobs, including trials, for governmental agencies, legislative committees, or other

quasi-public bodies. Their professional work would thus comprise virtually every kind of service rendered by law offices. (Jerome Frank: 1949: 231-237)