Looking Backward

The logic of this revisionism would seem to point to something like the end of serious historical inquiry into the pasts of contemporary American educational institutions. Scrubbing an institution’s heritage clean of all transgressing figures rather than seeking to comprehend their roles as historical actors amounts to a suggestion that the past should be eradicated when it is perceived as embarrassing.

Still, there is something to be said for infusing historical inquiry with moral reflection. Being exposed to the acts or attitudes of historical actors that appear deplorable from a contemporary perspective can amount to a moral stock-taking in which one asks what could have prompted ancestors to act or think in that fashion, so that condemnation can become a form of recentering one’s own moral compass. But a challenge for those seeking to do serious historical scholarship remains: the need to understand the conduct of past actors before judging them by contemporary standards.

When the scholarship is directed at the most visible law school in America, that challenge is accentuated. Daniel Coquillette and Bruce Kimball begin by noting that previous attempts to write the history of Harvard Law School have fallen into two categories: celebratory efforts glossing the school’s accomplishments and minimizing its failures, and “attack histories” maintaining that the school’s late-20th-century prominence was accompanied by the faculty’s and administration’s callous attitude toward students. Both sets of prior institutional histories, they conclude, “lack context and tend to be partisan, one way or the other.”

Coquillette and Kimball describe themselves as “not partisans.” They were “not invited by the dean .  .  . [nor] .  .  . authorized or supported by” Harvard Law School in their undertaking, and thus their work may have “a bit more detachment” than previous histories. That statement is slightly misleading because they acknowledge the support of several deans of the law school for the Harvard Law School History Project, under which they enlisted numerous Harvard students to aid their research, and of the “invaluable directors of the Historical & Special Collections Department at Harvard Law School Library,” who helped facilitate their access to archival records. Without that help, the authors recognize, “this project would have been close to impossible.”

And in at least two instances Coquillette and Kimball’s extensive access to internal records of the law school has enabled them to improve upon prior accounts of Harvard’s history. They demonstrate that the school’s performance in the years between 1848 and 1869—in which, under a “triumvirate” of professors, Joel Parker, Theophilus Parsons, and Emory Washburn, it had no admissions requirements, no examinations or grades, an unsystematic curriculum, and tedious lectures and class recitations—needs to be seen in the context of American legal education at the time.

Most persons training for the legal profession in the mid-19th century prepared for admission to state bars by “reading law,” which typically meant copying down doctrinal rules and propositions they found in legal treatises such as American editions of William Blackstone’s Commentaries on the Law of England. Proprietary law schools, whose only requirement for admission was the ability to pay fees, attempted a more systematic version of apprenticeship, featuring lectures on legal subjects and the creation of “copybooks” in which students would retain summaries of material from the lectures or treatises.

Harvard’s approach to legal education in the middle of the 19th century was to provide an even more structured version of apprenticeship. Internal records demonstrate that it offered lectures based on (and supplementing) assigned treatises, coupled with classroom “recitations” designed to test the students’s grasp of the rules and propositions to which they had been introduced. In using this “text and recitation” method of instruction, the law school was duplicating the standard techniques of instruction employed at the time at Harvard College. Moreover, the law school under Parsons, Parker, and Washburn exposed students to “moot courts,” in which they would simulate arguments in actual cases, and created the Assembly, an organization in which students debated a variety of contemporary social and economic issues, with the conspicuous exception of slavery.

The years of the triumvirate have regularly been portrayed in previous histories along the lines of Oliver Wendell Holmes Jr. and Alexander G. Sedgwick’s 1870 critique, which described Harvard as “doing something every year .  .  . to discourage real students.” After Coquillette and Kimball’s research, that image of the school can best be seen as created by the transformation of Harvard and other American law schools into post-undergraduate, professionalized institutions in the late-19th and early-20th centuries.

Another revision of the conventional history involves the deanship of Christopher Columbus Langdell, who, with the support of Harvard president Charles Eliot, presided over a school that, between 1870 and 1895, sought to establish itself as a post-undergraduate institution with admissions stand-ards, written examinations, uniform baselines for grading, class standing,

and the appointment of new faculty from the ranks of recent law school graduates who lacked substantial experience in practice. Most prominent of Langdell’s reforms in the conventional account was his introduction of a “case method” of instruction in which professors substituted “casebooks” (collections of opinions rendered by appellate courts in common law cases) for treatises and taught legal subjects through exchanges between themselves and students in which legal doctrines featured in the opinions were analyzed.

By the second decade of the 20th century the reforms instituted at Harvard had become widely adopted in other American law schools, giving rise (in prior histories of Harvard and elsewhere) to a triumphalist narrative of Langdell’s deanship as the founding of modern legal education. Coquillette and Kimball’s review of documents in the law school’s special collections and the Harvard University archives demonstrates, however, that although Langdell himself supported each of these reforms, all of them, with the exception of a sequenced curriculum, were opposed by some or all of Langdell’s faculty colleagues, and the reforms were not fully put in place until Langdell’s retirement.

These examples represent substantial advances on previous historical accounts of those episodes in Harvard’s history because of their skillful invocation of historical context. As one learns more about mid-19th-century American university and legal education and more about the reactions of Dean Langdell’s colleagues to his professionalizing impulses, richer portraits of the years of the triumvirate and those of Langdell’s deanship emerge. But on other occasions, particularly with respect to issues that seem provocative to 21st-century audiences, Coquillette and Kimball’s posture seems to depart from the “detachment” to which they aspire.

In their introduction, after describing their posture as nonpartisan, Coquillette and Kimball state that the history they are exploring “poses a living challenge. It dares us to examine our own biases and assumptions. It asks if we have the courage and humility to defend what is priceless in our institutional roots, and to reform what is wrong and defective.” They maintain that “the leaders of the Law School’s first century pursued a transformative and radical vision,” and “today, the Law School’s duty is to make the best of that vision real and to forthrightly amend the rest.”

By the conclusion of On the Battlefield of Merit it is apparent not only what the authors believe to be “priceless” in Harvard’s history but what they believe to be “wrong and defective.” The “priceless” contributions of Harvard have been its “three radical” ideas: connecting a law school to a university; seeking not merely to educate students from localities adjacent to the school but to train a “national elite” of lawyers drawn from all over the United States; and most tellingly, installing “merit,” equated with exemplary academic performance, as the principal criterion for entry into the upper echelons of the legal profession.

Coquillette and Kimball’s emphasis on Harvard’s ostensible preoccupation with merit provides them with a baseline for determining what was “wrong and defective” in the first century of its history. The “wrong and defective” episodes represent instances in which the idea of making meritorious performance the basis for success in the legal profession, and in American society generally, was abandoned.

We are introduced to a catalogue of those instances: the decision of a slave-owner to found the law school; opposition to the prospective appointment of Charles Sumner to the faculty because of Sumner’s outspoken attacks on slavery; the purposeful decision on the part of the triumvirate to bar discussions of slavery or secession in the 1850s, years in which the law school continued to attract students from the South; and Harvard’s disinclination, even after meritocratic criteria for admission and ranking were introduced during the deanships of Langdell and his successor James Barr Ames, to admit women and graduates of Roman Catholic colleges.

The authors pass judgment on each of these episodes. Isaac Royall Jr., “whose fortune was based in part on the cruel sugar cane plantations of Antigua,” was “hardly the ideal founder of a school devoted to the study of law and justice.” Moreover, “it was the rejected Charles Sumner, and not [the triumvirate], who grasped what would be later seen as the obvious moral and political truth about slavery.” And by “declar[ing] women a categorical exception to the standard of academic merit” and “applying closer scrutiny” to Catholic college graduates, Harvard’s “meritocrats” sought to preserve “their commitment to academic merit and to justice,” while “discriminating invidiously.”

Such comments serve to displace the historical context that Coquillette and Kimball have supplied in other places. Instead of making efforts to understand why prominent actors in Harvard’s history might have tolerated slavery or instinctively concluded that neither women nor graduates of Catholic colleges were suited to enter the legal profession, Coquillette and Kimball seem content with labeling those attitudes “wrong and defective.” If added historical context seems appropriate in recounting the educational decisions of the triumvirate, or Christopher Langdell, why not here? To contextualize attitudes that currently may seem deplorable is not to justify them. It is, rather, to seek to recover the ways in which historical actors sought to make sense of their experience.

Amassing wealth through the enslavement of other humans, declining to confront the moral implications of perpetuating slavery in America, and treating women and Catholics as less meritorious candidates for the legal profession because of their gender or religion are likely to be regarded as wrong by the overwhelming majority of current readers. But the challenge of historical scholarship is to understand how prominent Americans in past generations could have engaged in such practices and entertained such ideas.

When historical research reveals that people occupying positions of leadership in a visible and prominent American law school concluded that it was socially appropriate and intellectually defensible to single out persons of African ancestry for enslavement or to treat the status of being female or Catholic as a disqualification for the practice of law, calling those decisions “wrong” should be just the beginning of the historian’s inquiry. The next steps should involve the same sort of extended inquiry into the historical context of those decisions—their origins, starting assumptions, and purported justifications—that Coquillette and Kimball have made for many other features of the history of Harvard Law School.

On the Battlefield of Merit surpasses all previous histories of Harvard Law School in the breadth and depth of its research base, giving one confidence in the authenticity of many of its findings. Still, especially in light of the current efforts of American educational institutions to revisit their pasts, it is an unsettling book. Unsettling because it reveals that doing historical scholarship runs the constant risk of being overwhelmed by current value judgments, judgments that can tempt the historian to substitute epithets for efforts to recover context. When those judgments predominate in historical scholarship, they serve to block efforts to understand how historical actors sought to make sense of and shape their worlds—and the past ceases to become past and becomes all about us.

G. Edward White is the David and Mary Harrison distinguished professor of law at the University of Virginia and the author, most recently, of Law in American History, Volume I: From the Colonial Years Through the Civil War.