University of Notre Dame

The Story of Notre Dame
Academic Development: University of Notre Dame / by Philip S. Moore, C.S.C.

V. The Law School

In the first printed Catalogue of the University, Father Sorin expresses his intention to found a Department of Law,[115] and as early as 1858-59 Lectures in Constitutional Law were announced.[116] In the schoolyear 1869 the Department of Law became a reality.[117] From 1869 to 1883 the Law Course was covered in two years. Students applying for admission were expected to have a good liberal education, but those who had not completed their studies in English and Classics could supply their deficiencies while pursuing their legal studies. Strangely enough, when, as we shall see, the program was reorganized and graded upward in 1883, even this minimal admission requirement was deleted and we are told: "No special preparation is requisite for matriculating. Any student who is 17 years of age, and has a fair English education, is eligible."[118] The Course led to the LL.B. degree, the first of which was conferred in June, 1871.

The first announced program listed the following subjects: First year: Political Economy, (Origin, Nature and Divisions of Laws), Principles of Legislation, Introduction to the Study of Roman Law, Institutes of Justinian, Common Law of England, Public and Private Law, Principles of Obligations: How contracted, modified, interpreted and extinguished, Criminal Law and Procedure, Medical Jurisprudence. Second year: Constitutional Law of the United States, Principles of Civil Jurisprudence as contained in the Pandects, Code and Novels, Jurisprudence of the United States, The Law of Contracts, Civil and Commercial, Practice at Law and Equity, The Law of Evidence. In addition to these regular courses the students were given assistance in studying Laws peculiar to their home States and opportunity to gain poise, self-command and quickness of decision through participation in Moot Court, which soon became a weekly exercise.

Changes in the originally announced program appeared in the very next year. Also the courses were taught from textbooks, a list of which the students were advised to purchase. By 1873-74 courses were announced by the textbooks used -- Wallace's American Law, Blackstone's Commentaries, Angell and Ames on Corporations, Kent's Commentaries, Parson's Contracts, Greenleaf's Evidence, Washburn on Real Property, Stephen on Pleading, Story on Conflict of Laws, Story's Equity Jurisprudence, and Bishop's Criminal Law. No author was given for Constitutional Law. This pattern continued for ten years.

Then in the schoolyear 1832-83 a reorganization occurred when Mr. William J. Hoynes became dean.[119] Reading the Statement in the Annual Catalogue we of today must certainly be amazed -- or at least puzzled -- by what seems to be glaring contradiction in it. Chief among the changes introduced were the extending of the Course to a period of three years, the raising of the standard of studies to the most approved plane, and the partial substitution of the lecture system for the compulsory use of textbooks.[120] The results brought about were said to meet the expectations of all concerned and it was confidently claimed that no law school in the country offers students superior facilities for acquiring a thorough and practical knowledge of the law.[121]

The reason given for the extension of the Law Course from two to three years, was recognition that the standing of the professions had been lowered by a too indiscriminate admission to them of persons of limited education and technical education of a narrow and circumscribed range.[122] But how the New Course, even granting the extra year, could have produced such satisfactory results in correcting this abuse or deficiency, is not easy to see. First of all, as has been noted, the admission or entrance requirements were practically abolished. Not even a high school diploma or certificate was required, and at best a high school education was sufficient for admission. Then the courses are said to cover the various branches of International, Constitutional, Commercial, Maritime and Criminal Law, together with Medical Jurisprudence, Common Law and Equity Pleading, Practice Evidence, etc. (no definite program or schedule of courses is given). -- perhaps a broader scope than the previous program but no more contributory to general education. And nothing was required to improve the students' general education, though they were told that without extra expense they may enter the classes and pursue the studies of the Scientific and Classical Courses.[123] Then in the same breath the students were told that outside reading -- use of the library -- was superfluous, because the "lectures are so full and co prehensive that they cover all subjects likely to arise in connection with even the most thorough examination" and urged to pursue collateral reading from a list of standard books which were named.[124] A thesis of at least 30 folio pages upon a subject of the student's choice became obligatory. It had to be submitted a month before graduation and be satisfactory both in substance and in the manner of treatment. A work of this length certainly forced the students to use of the library. Despite its shortcomings the reorganization of the Law Department in 1883 was a forward step in the development of the program, and we should refrain from transferring present standards to the past. This is especially true when we remember that in 1883 and for many years thereafter many received this legal education through apprenticeship in a law office.

The 1882-83 announcement of the Law Department continued unchanged until 1889-90. Then a new write-up appeared.[125] The first sentence says that the course covers a period of three years. But students who had pursued previous study or who had engaged in practice could complete the work in one or two years. In addition a short course of two years was announced "for the accommodation of students who have reached or passed the age of 18 and acquired not only a good general education, but also an accurate knowledge of the English language."[126]

Just what the admission requirements were remained confused. Apparently a young man of 17 with the equivalent of a high school education could enter the three year program. If he were a year or more older he could enter the two year program, though it is recommended that only collegiate graduates should attempt the two year program. Finally, it was said to have "been demonstrated that students of the Sophomore or Junior year in the classical and scientific courses may enter with advantage upon the study of law, attending daily at least one of the lectures. In such instances students have been able to qualify themselves for graduation and admission to the bar in from three to four years. In other words, they have been able to finish the law either contemporaneously with their graduation in the collegiate courses or within a year afterward."[127]

The specific courses included in the program and even the general areas covered were no longer mentioned. It was stated simply: "These (the lectures) cover the whole domain of the law." On the other hand, the schedule of classes was given -- three classes daily, two hours of lectures and one of quizzing and recitations (later increased to four classes daily -- three hours of lectures and one of quizzes). Moreover, "Wednesday and Saturday evenings are devoted to society and Moot Court proceedings."[129] The quizzes were said to be exceptionally instructive and interesting, designed "to make everything clear and intelligible."[130] The required thesis was increased to 40 folio pages.

The case method was also introduced in this year, 1889-90, both adjudicated and hypothetical cases. Through these cases the students were drilled in principles of the law. The object was to give the students the answers -- or at least the principles involved -- to any and every question that could be legitimately asked in the bar examinations.[131] These principles were those of the Common Law, and "the whole domain of the law" referred to above meant the Common Law. Statutes of individual States were excluded from all formal course work and the students were personally responsible for informing themselves on these.[132]

In this year also was announced for the first time a Post-Graduate Course leading to the degree of Master of Laws. The Course required a year of study beyond the bachelor's degree, devoted to the work prescribed and the passing of examinations. What was called "the course of instruction" was spelled out and strikes us as being mostly practical exercises in the writing of pleadings, the examination of witnesses, the taking of depositions, the practical applications of the rules of evidence, preparation of briefs and arguments, etc.

These details of the "course of instruction" soon dropped out of the Bulletin. Then for the years 1908-09 to 1914-15 appeared the simple announcement: "Graduate Courses cover the entire field by way of review together with Moot Court practice, office work, etc. Optional studies were made available including Roman Law, Admiralty, Mining and Water Rights, Copyright, Patents, Trademarks, State and Federal Statutes, etc."[133] A complete change of program occurred in 1915-16 and courses leading to the master's degree were taken from the following subjects: Jurisprudence, Roman Law and Modern Codes, International Law, Admiralty, Administrative Law, Legislative Bill Drafting, Statutory Construction, Medical Jurisprudence, General Review of Substantive Law and Procedure, Practice in the University Courts."[134] The next change appeared in 1923-24 when the course requirement was stated to be twenty-four semester hours in elective courses and in Anglo-American Legal History, History of European Law, and Modern Civil Law.[135] This continued to be the Master's program until it was discontinued in 1928.

In 1897-98 a completely revised announcement of the program for the degree of Bachelor of Laws appeared, with several significant changes.[136] The occasion for this is quite obviously the dissatisfaction of the profession with the quality of those being admitted to the bar. Not a few schools were derelict in raising the standard of professional learning and ethics, and though Notre Dame was not to be numbered among these schools, the need was felt to restate our system of instruction, standard of proficiency, course of study, etc.

In regard to the system of instruction, we have seen that great emphasis had been placed at Notre Dame on lecturing and the committing to memory of the notes taken during lectures. Now the lecture or dictation system alone was declared to be antiquated. Some schools, following European prototypes, were relying on the lecture system; other schools were emphasizing the case book system, taking as guide a noted Eastern University; others were following the text-book system exclusively; and still others were combining these into a mixed system. At Notre Dame, it was asserted, none of these systems was exclusively followed, "and yet the best features of all are comprised in the curriculum here preferred."

A three year period was prescribed for the course of study in Law, and mention of the short two year course was discontinued. The three years were designated Elementary, Junior and Senior Classes, respectively, and these designations continued until 1903-04. In the Elementary Class only one daily hour of instruction in Law was given, so that students whose general education was deficient could remedy their deficiency. Those who had completed the collegiate course or who were judged to have achieved its equivalent through experience, were eligible to enter immediately into the Junior Class.[137]

In the Elementary Class the daily hour of instruction was based on Blackstone's and Kent's Commentaries. For the Junior Class were listed the following subjects, with textbook for each course: The Common and Statutory Laws with Exercises in Case Reading and Statutory Construction, Persons and Domestic Relations, the Law of Contracts, The Law of Torts, Criminal Law and Procedure, Mediaeval Jurisprudence, Common Law Pleadings, Code Pleadings and Practice, Evidence, Sales, Insurance, Agency, Partnership. And for the Senior Class: Equity Jurisprudence, Equity Pleadings and Practice, International Law, Constitutional Law, Private and Municipal Corporations, Personal Property, Real Property, Wills, Executors and Administrators, Bailments and Common Carriers, Negotiable Instruments or Commercial Papers, Surety and Guaranty.[138] In 1898 the title Department of Law was changed to School of Law. This title continued down to 1905 when the term, College, was adopted for the several undergraduate divisions of the University and for the Law School. (These titles apparently didn't mean much and as late as January, 1911 a special issue of the Bulletin -- Series VII, Number 3 -- was entitled, The Law Deparmment.) In 1905 the three year program became definitive -- the designation Elementary Class had disappeared a year or two earlier, and a full schedule of classes was listed for the first year. The influence of the American Bar Association was largely responsible for finalizing the full three year program.[139]

For the first time a certificate of graduation from an accredited high school or an "examination on subjects scheduled in any of the programs of the preparatory school at Notre Dame" was required for admission to the first year of law.

As to the subjects taught in the full three year program, they included those of the revised program of 1897-98, plus Natural Law and Legal Ethics, Parliamentary Law, State and Federal Courts, Federal Procedures, Interpretation, and Construction of Laws, Elements of American Jurisprudence, Damages, Bankruptcy, Insolvency and Receivers.

Over the next fifteen years a number of changes and developments took place. In regard to subjects taught, they continued to multiply -- and no course ever seems to have been dropped. By 1915 there were forty separate titles listed.

In 1917 a fourth year was added to the program for students who had not completed at least one year of college work. This, however, did not affect the law courses but made possible the addition of more college courses in English, History, Philosophy, the Social Sciences, and Public Speaking -- courses which began to appear in the Law program in 1909-10.

A Moot Court had been established from the very beginning of Law at Notre Dame. Shortly after 1905 other courts weres et up -- a Court of Equity, a Justice's Court and a United States District Court. In 1914 these last three courts were discontinued and in the following year under the title "The University Courts" were announced the University Moot Court, the Notre Dame University Circuit Court, and the Supreme Court of Notre Dame. Holding of all these courts became part of the regular program.

As far back as 1895, ten men with degrees in Law were listed under the Law Faculty. Three years later these were reduced to four. But except for the Dean, these were part-time men, called in to teach one or two courses. The student body must have een well under fifty. All this can be deduced from interesting statements in the Bulletin for 1915-16: "Established in 1869 and reorganized in 1883, the department continued its course in a modest way under the personal supervision of the Dean. Within recent years, however, it has grown from a school of fifty students in charge of one instructor (sic) to a student body numbering approximately two hundred taught by a faculty of seven men."[140] And: "The law Faculty comprises seven resident instructors, all of whom are graduates of the leading law schools of the country and experienced in the practice of law, and three of whom have been regular judges of the city, circuit and supreme courts. Four of the faculty devote their entire time and service to the School of Law while the other members of the faculty also engage in the law practice.[141]

In 1915 a certificate of graduation from an accredited high school was sufficient credential for admission to the first year of the College of Law. But it is strongly urged that those who had only the high school diploma enter either upon the six year combination Arts and Letters - Law program and receive both their Bachelor of Arts and their Bachelor of Laws degrees, or upon the four year course, "and acquire at least two years of higher, collegiate education . . ."[142] The combination program was announced for the first time in this same Bulletin: By special arrangement of studies a student may complete any of the four year courses in the College of Arts and Letters and the three year course in Law so as to entitle him to two degrees in a period of six years.[143] In 1920-21 the Colleges of Commerce and of Science were brought into the combination program, and later the College of Engineering was added. Today the combination program has been reduced to the College of Arts and Letters and of Commerce.

As has been remarked, in 1917 a fourth year was added to the program in Law for those who had not completed at least one year of college work before entering upon their legal studies. In the schoolyear 1920-21 the first year was designated as a pre-Law year, in which students took certain college subjects, prescribed and elective, and a course in the Elements of Law.[144] For the college subjects a suggested curriculum included year courses in English, History, Philosophy, Public Speaking, and Religion, and semester courses in Economics and Politics. In effect, therefore, from 1917 on one year of college was required before a student was admitted to the study of Law, and in the Bulletin for 1921-22 (p. 287) it is expressly stated that "one year of college work suffices at present to admit a student to the College of Law as a candidate for the degree of Bachelor of Laws." Four years later this was increased to two years[145] and in 1928-29 it was raised to three years.[146] This has since been the minimum for combination students but from 1931-32 four years, or graduation from a college have been required for non-combination students,[147] except that during World War II students were admitted on completion of two college years or sixty-semester hours of credit,[148] and this concession was extended to veterans for a number of years after the War. Even today veterans can be admitted on successful completion of only three years of undergraduate study in an approved college.[149] The steady increase of admission standards in terms of preparation over the past thirty years or so testifies to the growing professional standards in Law at Notre Dame and in Law Schools generally.

The year 1920-21 was a most important year in the history of Notre Dame. We have seen that in that year the administration of the colleges was revised and made a reality instead of a paper organization. In that year was launched the first national campaign for a Faculty Development Fund and for a "Greater Notre Dame." From this year, therefore, we may justly date Notre Dame's taking on national importance as an educational institution. A new era in the College of Law had, however, begun the previous year, or so we are told in the 1920-21 Bulletin (p. 280): "With the schoolyear 1919-20 the College of Law began a new era, when a new and well equipped building was provided for the exclusive use of the students of Law." Up to that time Law was housed in cramped quarters in Sorin Hall, with some overflow into a second residence hall, Walsh, and into Science Hall. The new building, named the Hoynes College of Law, in honor of Col. William J. Hoynes, Dean of Law from 1883 to 1918, served for only eleven years when it was replaced in 1930 by our present Law Building, This impressive structure has now in its turn become inadequate after thirty years, and a new home for the Law School is planned.

In 1919-20 reappeared, after a long lapse, a prescribed schedule of studies for the three years of Law, then designated as Freshman, Junior and Senior years.[150] In the following year this schedule was considerably modified and somewhat simplified, though the number of required courses was a bit staggering. Year designations were changed to Sophomore, Junior and Senior, and also for the first time descriptions of the courses appeared.[151] The program was as follows: Sophomore year: year courses in Contracts, Personal and Real Property, Pleading, and semester courses in Torts, Sales, Criminal Law, Agency, Persons and Domestic Relations, and Criminal Practice Court; Junior year: year courses in Property, Evidence, Equity and Pleading, and semester courses in Wills, Bills and Notes, Insurance, Partnership, Suretyship, Damages, Mortgages, Quasi-Contracts, Trusts, Briefing, and the Notre Dame Circuit Court; Senior year: year courses in Constitutional Law and the Notre Dame Supreme Court, and semester courses in Private Corporations, Municipal Corporations and Public Utilities, Administrative Law and Public Officers, Bankruptcy, International Law, Federal Procedure, the Conflict of Laws, Admiralty Law, Legal Ethics, Drafting Legal Instruments, Banks and Banking, Federal Income Tax, Water Rights, Mining Law, and the Notre Dame Circuit Court. It is not surprising that many of these courses were for one semester hour.

Changes in specific course requirements were continually made over the years but the most notable change in policy for the thirty years between 1920 and 1950 was the reduction of required courses and the introduction of electives. The reason for this was stated thus in the Bulletin for 1923-24 (pp. 293-294): "Since it is impossible for any student to obtain a complete mastery of the Law during the brief period of three years, the elective system has been in part adopted. Certain fundamental subjects are required of all. In addition to the required courses the student . . . may each year select other subjects with a view to preparing himself for the practice of a particular branch of the Law or to meet the requirement of the profession in a particular State." Nineteen hours of electives were allowed at that time, and, except for a short time around 1930, the number stedily grew until it reached forty-six in 1950. In 1930, when the elective hours were sixteen, the required courses were: First year: year courses in Contracts and Torts and Legal Liability, and semester courses in Agency, Bibliography, Common Law Actions-Pleading, Criminal Law and Procedure, Personal Property and Bailments, and Real Property I: Rights in Land; Second year: year course in Equity and Equity Pleading, and semester courses in Evidence, Procedure: Trail and Appelate, Real Property II: Titles, and Wills, and Administration; Third year: year courses in Constitutional Law, and Court and Briefing, and semester courses in Private Corporations, and Legal Ethics. In 1950, when the elective hours were forty-six, the required courses were: First year: year courses in Contracts, Torts and Procedure I and II, and semester courses in Personal Property, Criminal Law, Fundamental Law, and Bibliography (one hour a week); Second year: year course in Real Property I and II, and semester courses in Bills and Notes, Legal Ethics, and Constitutional Law; Third year: year courses in Praciice Courts in Mortgages, Legal Research, and Constitutional Law. It seems remarkable that no course in Evidence was required.

Other things of note in the period 1920-1950, include the founding of the Notre Dame Law Reporter, first issue of which appeared in April 1920, and its replacement in 1925 by the Notre Dame Lawyer. Like the Lawyer, which is now in its thirty-fifth year, the Reporter was a quarterly and primarily a publication "of, for and by the law-student body," but also devoted to the interests of the alumni.[152] In the mid-twenties announcement appeared for the first time that the College of Law was member of the Association of American Law Schools, and a year later that it had "Class A" rating by the Council on Legal Education of the American Bar Association.[153] In 1925 a librarian was appointed to the Law Library which then had approximately 7,000 volumes. The number had risen to 10,000 by 1930, 16,000 by 1945 and 22,000 by 1950. Good indication of what has happened in the Law School in the past ten years is that there are now 55,000 volumes in the library, two and one-half times as many as in 1950.

In 1947 a Natural Law Institute was inaugurated. Under its auspices an annual symposium of Natural Law scholars was held and the papers published in an annual volume of Proceedings of the Natural Law Institute. Five volumes of these Proceedings appeared. In 1952 search was made for a means to assure effective functioning of the Institute on a year-round rather than on a once-a-year basis. This search led to the founding of the Natural Law Forum, the only learned Journal of its kind in the English language. The purpose of' this journal, the first issue of which appeared in 1956, is to promote serious scholarly investigation of natural law in all its aspects and to encourage the widest search for universal standards relevant to the solution of comtemporary problems. The Forum is served by an Editorial Board drawn from scholars in the United States and several other countries.

In September, 1952 a new dean headed up the College of Law and under his leadership a number of far-reaching changes were introduced. We have seen that between 1920 and 1950 ever greater opportunity for elective courses was afforded the students. This was changed and a prescribed program was adopted, with no electives in the regular schoolyear, though special instruction is provided in subjects not in the program but required for passing state bar examinations In the states in which students expect to practice. In other words, specialization in various branches of the Law was discontinued and replaced by a broad foundation in the fundamentals of the Law in which every student should be thoroughly grounded before his graduation.

The prescribed program went into effect in 1953-54, and was as follows: First year: year courses in History of the Legal Profession, Contracts, Torts, and semester courses in Introduction to Law, Criminal Law, Legislation, Agency, Property I, and Procedure I (Legal Writing and Research); Second year: semester courses in Equity, Constitutional Law, Property II, Procedure II (Pleading and Practice), Procedure III (Evidence), Business Associations, Administrative Law, Labor Law, and a Natural Law Seminar, conducted throughout the year; Third year: year courses in Jurisprudence, Federal Taxation, Estate Planning, and semester courses in Sales, Bills and Notes, Procedure IV (Practice Court), Fiduciary Administration, Credit Transactions, and Conflict of Laws. No course in Legal Ethics is included in this program, but sound ethical principles are supplied throughout, primarily through the courses in History of the Legal Profession, and Jurisprudence, and the Natural Law Seminar.

This program has remained remarkably stable since its inception, but some changes may be noted. After one year Fiduciary Administration disappeared and Credit Transactions was replaced by Secured Transactions. A one semester one hour a week course in Domestic Relations was added. In 1957 the title of Domestic Relations was changed to Family Law, and Jurisprudence was reduced to one semester. Finally the subject matter of the Procedure course has changed so that today there are five such courses covering Jurisdiction and Venue, Remedies, Pleading and Practice, Evidence, and Practice Court.

A second innovation and a notable characteristic of the new program were the cumulative comprehensive examinations. At the end of each semester students are examined not only in the courses of that semester but also on all subject matter they have covered up to that point. Thus at the end of the second year they are examined not only in the courses of the fourth semester but also in the subjects of the first, second and third semesters. In a word, from the end of their first semester to the end of their sixth, students are held responsible for everything they have learned. Moreover, questions in the comprehensive examination are not labelled -- v.g. Evidence, Contracts, Equity, -- but cut across various fields, as will the questions put to them when they become practicing lawyers. Such examinations force students to consistent study and continuous review. This results not only in the retention of their legal knowledge throughout their years of study but also in a gradual comprehension of the unity of the Law and in a deeper understanding of the Law. To assure complete impartiality, students remain anonymous and their examination papers bear only a number which they have drawn previous to the beginning of the examinations. As of the current year all students are following the honor system.

In the early years of Law at Notre Dame the method of instruction was not infrequently changed, as we have had occasion to point out. But for years the case method prevailed throughout the three year program. This too was changed in 1953. Rigorous use of the case method was retained for the first year, but after that instruction shifted to the problem method. The case method is intended to develop the skill of diagnosis through intensive training in analysis -- a skill essential to the lawyer. The problem method, in which the student learns the law by using it, is intended to develop ability "to find the law"; it drives him to the library. It also develops the skills of interpretation, adaptation and creative utilization of the law. One final skill, that of writing and speaking clearly, accurately and persuasively, is cultivated through the Notre Dame Lawyer and the Moot Court.

Nowhere in the University has there been greater striving toward excellence than in the Law School during the past eight years. The prescribed program, the cumulative comprehensive examinations, the revised instructional method have all contributed toward this goal. Marked increase in work demanded of students has been evident. In general, a better quality student has been admitted, and since 1955 the Law School Admission Test, prepared and administered by the Educational Testing Service of Princeton, New Jersey, has been required credential of all applicants. And finally the professional spirit of the students has been strengthened at every turn, and the change in name from College of Law to Law School in 1955 was a small but no insignificant measure taken toward this end.

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