Suchergebnisse

Regulating the profession -- Loyalty to present clients : concurrent conflicts of interest -- Loyalty to past clients : successive and imputed conflicts of interest -- Confidentiality -- Truthfulness -- Difficult clients and communications : responsibility for corporations, the government, the incompetent and the trusting -- Starting a law practice -- Bar admissions -- Bar discipline and malpractice

The Civilian Writers of Doctors' Commons, London : Three Centuries of Juristic Innovation in Comparative, Commercial and International Law.

This article is based on the exciting discovery of a never before printed Law Commonplace, written by the 18th-century lawyer and patriot, Josiah Quincy, Junior. Quincy was co-counsel with Adams in the famous Boston Massacre Trial, a leader of Committee on Correspondence and the Sons of Liberty, and author of the first American law reports. His Law Commonplace provides an exceptional window into the political, racial and gender controversies of the evolving American legal system, and profoundly challenges our conventional views on the origin of American legal education. In certain areas, particularly jury trial, it also has present constitutional significance, as compelling evidence of the state of the law referenced by the Seventh Amendment.

This article is based on the exciting discovery of a never before printed Law Commonplace, written by the 18th-century lawyer and patriot, Josiah Quincy, Junior. Quincy was co-counsel with Adams in the famous Boston Massacre Trial, a leader of Committee on Correspondence and the Sons of Liberty, and author of the first American law reports. His Law Commonplace provides an exceptional window into the political, racial and gender controversies of the evolving American legal system, and profoundly challenges our conventional views on the origin of American legal education. In certain areas, particularly jury trial, it also has present constitutional significance, as compelling evidence of the state of the law referenced by the Seventh Amendment.

Today, the classical underpinnings of American legal education are under intense critical review. The dominant pedagogy, the case book and the Socratic method, were established by Christopher Columbus Langdell (1806-1906) at Harvard Law School more than a century ago. Together with Langdell's first year curriculum, which was exclusively focused on Anglo-American common law doctrine, and his emphasis on a competitive, anonymous graded meritocracy, this system still exercises an incredible grip on elite American law schools. But Langdell's 19th Century model has now been challenged by many rivals, including critical legal studies, law and economics empiricism, global curriculums, and clinical instruction. As is so often the case, Bacon anticipated these major forces of change. In his great De Augmentis Scientiarum (hereafter, De Augmentis), Bacon attacks the narrow parochialism of the common law pedagogy of his day. For at present there are nothing but schools and institutions for multiplying altercations and controversies on points of law, as if for the display of wit. And this evil is also an old one (Spedding ed., V, 108 De Augmentis Aphorism 93). Attacking reliance on decided judicial cases and on the parochial, prevailing common law treatises and pedagogy, Bacon evolved a new system of legal instruction based on empirical observation, distilled into maxims or aphorisms, one that sought true global significance and universal scientific legitimacy. [T]here are certain fountains of natural equity from which spring and flow out the infinite variety of laws which individual legal systems have chosen for themselves. And as veins of water acquire diverse flavors according to the nature of the soil through which they flow, just so in these legal systems natural equity is tinged and stained according to the site of territories, the disposition of peoples, and the nature of commonwealth. It is worthwhile to open and draw out the purer fountains of equity, for from them all amendment of laws in any commonwealth must be sought. The Aphorismi (Neustadt, ed., 273). This paper will set out Bacon's philosophy of legal education, analyze its fundamental pedagogical and doctrinal elements, and examine its lessons for American legal education today. In so doing, it will be necessary to traverse a minefield of controversy. As E.O. Wilson has so powerfully described in his book Consilience: The Unity of Knowledge (1998), Bacon was the grand architect of an enlightenment dream that called for the illumination of the moral and political sciences by the 'torch of analysis.' (Edward O. Wilson, Consilience: The Unity of Knowledge (New York, 1998), p. 23. (Hereafter, Consilience.)) Bacon was also devoted to a belief in a unity of knowledge, relying on the common means of inductive inquiry that might optimally serve all branches of learning. (Consilience, p. 27). In E.O. Wilson's words, Bacon envisioned a disciplined and unified learning as the key to improvement of the human condition. (Consilience, p. 27). But the unity of the modern legal academy has been fragmented into academic specialties and increasingly divorced from the experience of law practice. Post-modern and post-structuralist ideologies have attacked any pretense neutral and objective rule of law that could be taught in a formal, external setting, like mathematics or physics. Increasingly, law, and legal education, are seen as devoid of external truths. In E.O. Wilson's words: In the most extravagant version of this constructionism, there is no 'real' reality, no objective truths external to mental activity, only prevailing versions disseminated by ruling social groups. Nor can ethics be firmly grounded, given that each society creates its own codes for the benefit of the same oppressive forces. (Consilience, p. 40). Hence comes the post-modernist prohibition against universal truth . . . which can have particular force in modern legal pedagogy. Equally important, law practice itself has changed. The three qualities of modern law, described prophetically by Max Weber (1864-1920) and articulated in his great Law and Economy and Society, seem to be coming true. First, the legal ignorance of the layman has increased, as legal rules become more specialized, complex and technical. Most lawyers in modern firms are divided into such specialties, and usually have little or no idea of what their partners and associates actually do. Second, the anti-formalistic tendencies of modern legal development have led courts and tribunals to increasingly depart from objective or universal rules, and to rely instead on economical utilitarian meaning. Finally, there is the lay justice and corporate tendencies in the modern legal profession. Weber adds, The use of jurors and similar lay judges will not suffice to stop the continuous growth of the technical element in the law and hence its character as a specialist's domain. Add to those changes the rapid shrinking of world cultures by improved communications and the welcome, and dramatic, increase in cultural diversity throughout American law schools and American society generally, and it becomes clear that conventional legal pedagogies and curricula will come under great stress. The century old orthodoxy of American legal education could soon be shattered into a hundred unrelated pieces. Can Bacon help us?

All self-respecting legal history is supposed to end by the twentieth century. As we approach our own lives, experience and training — and those events that we have actually witnessed — we allegedly lose that "objectivity" which makes the "science" of history itself possible. Certainly, there is no point in burdening the reader with the "original" materials, including cases and statutes, that make up the bulk of any legal education. But there are good reasons to reflect on our own legal century from an "historical perspective."

Cover -- Title -- Copyright -- Dedication -- Contents -- Preface -- Notes -- Introduction -- Three Radical Ideas -- Historiography and the Citadel -- Notes -- Chapter 1. The English and Continental Roots of American Legal Education -- Transatlantic Legal Culture -- The English Heritage -- Moots, Bolts, Readings, Yearbooks -- Educating the "Other" Lawyers: Solicitors and Attorneys -- The Failure of English Institutional Legal Education -- Cicero's Ghost: The Continental Influence -- Notes -- Chapter 2. American Antecedents of Harvard Law School -- The Apprenticeship Controversy -- Litchfield Law School -- Other Proprietary Schools -- American Vinerians -- Transylvania and David Hoffman -- Notes -- Chapter 3. Founding a University Professional School of Law -- Founders Who Weren't: Josiah Quincy Jr. and Thomas Pownall -- Isaac Royall Jr.: Slave Master, Founder -- Founding the Royall Chair -- Founding Harvard Law School -- Isaac Parker and Asahel Stearns -- "Small, Dingy, Inconvenient" -- First Students and Course of Study -- Decline and Betrayal -- Notes -- Chapter 4. The School Saved -- Dane and Story Rebuild the School -- John Hooker Ashmun: "Obeyer of Duty" -- Joseph Story's Vision -- James Kent -- Francis Lieber -- Notes -- Chapter 5. Joseph Story's Law School in the Young Republic -- The New Finances of a University Law School -- Aggressive National Marketing -- Curriculum, Scholarship, and Pedagogy -- Students -- Notes -- Chapter 6. The Greenleaf Transition -- "What Arm Shall Again Bend His Bow?" -- Greenleaf and Charles River Bridge -- Greenleaf 's Progressive Vision -- Notes -- Chapter 7. The Gathering Storm -- Appointing the Triumvirate -- Gentlemanly Harmony -- The School Divided -- Charles Sumner, Abolitionist -- The Edward Greely Loring Affair -- Notes -- Chapter 8. Civil War and Aftermath.

In his 1994 seminal article on Federalizing Legal Ethics, Prof. Fred Zacharias examined the need for a national and uniform code of ethics for attorneys. Prof. Zacharias was correct that there has been increasing pressure to federalize legal ethics, but that process is occurring not through articulation of national norms but rather through decentralized contextualization of attorney conduct norms. Federal agencies that direct securities practice, immigration, tax, patent, labor and many other areas of federal practice are increasingly supplementing state regulations to specifically regulate the attorneys who appear before their agencies. Targeted substantive federal law and treaty obligations also increasingly apply to attorneys. The effect is to slowly move the center of gravity of attorney regulation toward a complex web of federal regulation in the many areas that involve federal interests. This process offers some important benefits of contextualization and carries some risk, including conflicts between federal and state norms. Our robust experience with federalism provides a mechanism to work through these tensions and differences.