All Stressed Up But Not Sure Where to Go: Pondering the Teaching of Adversarialism in Law School

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Book Review

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In the early days of America, neither law school books nor formal law schools existed. American lawyers, including many of the now deified ‘founding fathers' and ‘framers of the Constitution,’ were trained essentially by apprenticeship or self-direction, both modeled loosely upon the British system but without as much formality or as much control over entrance to the field and practice as the English Inns of Court. In effect, one became a lawyer by hanging out a shingle and opening a law practice or taking the less entrepreneurial route of working for an established attorney. The new lawyer's books were the relatively small number of reported cases, most of them English, and treatises. The lawyer read these to learn the law as necessary and used existing documents in drafting similar papers. Blackstone's Commentaries was influential, and other treatises began to emerge in the late eighteenth century.

At that time, further change was in the air. In 1784, former Connecticut Supreme Court Justice Tapping Reeve opened what is generally regarded as the first American law school in Litchfield, Connecticut. However, most scholars see the real start of formal legal education in the United States as the opening of Harvard Law School in 1816. The treatises functioned as the primary texts of legal learning until at least 1870, when Christopher Langdell became dean of Harvard. Law schools and law school books then began to take their modern forms.

As almost every living American lawyer knows, Langdell invented the case method of legal instruction. The reported cases in England, the colonies, and the United States were relatively few in number and not systematically published. Langdell was the first to make selected appellate court opinions the centerpiece of law school. The Langdellian case method, which continues to dominate legal education today, posited that students could learn both substantive legal principles and legal analysis by studying cases to distill the essential principles and doctrines that courts applied, expressly and implicitly, to decide cases involving property, tort, and—Langdell's own subject in which he authored the first classic casebook—contracts. Civil procedure, now a mainstay of the first-year curriculum, appears to have continued to be taught through apprenticeship rather than formal casebook instruction.

Publication Citation

55 Brook. L. Rev. 165 (1989) (Book Review).

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