Faculty Bibliography

A history of Harvard Law School in the twentieth century, focusing on the school’s precipitous decline prior to 1945 and its dramatic postwar resurgence amid national crises and internal discord. By the late nineteenth century, Harvard Law School had transformed legal education and become the preeminent professional school in the nation. But in the early 1900s, HLS came to the brink of financial failure and lagged its peers in scholarly innovation. It also honed an aggressive intellectual culture famously described by Learned Hand: “In the universe of truth, they lived by the sword. They asked no quarter of absolutes, and they gave none.” After World War II, however, HLS roared back. In this magisterial study, Bruce Kimball and Daniel Coquillette chronicle the school’s near collapse and dramatic resurgence across the twentieth century. The school’s struggles resulted in part from a debilitating cycle of tuition dependence, which deepened through the 1940s, as well as the suicides of two deans and the dalliance of another with the Nazi regime. HLS stubbornly resisted the admission of women, Jews, and African Americans, and fell behind the trend toward legal realism. But in the postwar years, under Dean Erwin Griswold, the school’s resurgence began, and Harvard Law would produce such major political and legal figures as Chief Justice John Roberts, Justice Elena Kagan, and President Barack Obama. Even so, the school faced severe crises arising from the civil rights movement, the Vietnam War, Critical Legal Studies, and its failure to enroll and retain people of color and women, including Justice Ruth Bader Ginsburg. Based on hitherto unavailable sources—including oral histories, personal letters, diaries, and financial records—The Intellectual Sword paints a compelling portrait of the law school widely considered the most influential in the world.

Based on the author’s years of classroom teaching and extensive experience consulting at major law firms, this book is organized around actual problems that routinely occur in practice. It does not pretend that such problems are solved by the mechanical application of rules, although all important and relevant rules are included. Rather, these problems are seen in the context of decided cases, academic articles, and the overriding principles of ethical philosophy, adding a dimension missing from many professional responsibility texts. This edition includes important changes in the ABA and Massachusetts rules and adds some excellent new cases that are of value in navigating the ethical pitfalls of the real world.

Harvard Law School is the oldest and, arguably, the most influential law school in the nation. U.S. presidents, Supreme Court justices, and foreign heads of state, along with senators, congressional representatives, social critics, civil rights activists, university presidents, state and federal judges, military generals, novelists, spies, Olympians, film and TV producers, CEOs, and one First Lady have graduated from the school since its founding in 1817. During its first century, Harvard Law School pioneered revolutionary educational ideas, including professional legal education within a university, Socratic questioning and case analysis, and the admission and training of students based on academic merit. But the school struggled to navigate its way through the many political, social, economic, and legal crises of the century, and it earned both scars and plaudits as a result. On the Battlefield of Merit offers a candid, critical, definitive account of a unique legal institution during its first century of influence. Daniel R. Coquillette and Bruce A. Kimball examine the school’s ties with institutional slavery, its buffeting between Federalists and Republicans, its deep involvement in the Civil War, its reluctance to admit minorities and women, its anti-Catholicism, and its financial missteps at the turn of the twentieth century. On the Battlefield of Merit brings the story of Harvard Law School up to 1909―a time when hard-earned accomplishment led to self-satisfaction and vulnerabilities that would ultimately challenge its position as the leading law school in the nation. A second volume will continue this history through the twentieth century.

The parallels between Bacon's career and that of Edward H. Cooper are, of course, obvious. Bacon was one of the great legal minds of his day. Unlike the common-law judges who formed the law by deciding cases, Bacon expressed his greatness in writing brilliant juristic treatises and, as Lord Chancellor, drafting one of the first modern rule systems, the Ordinances in Chancery (1617-1620). Indeed, my thesis is that Bacon invented modern, scientific rulemaking by fusing his new theories of inductive, empirical research with the traditions of equitable pleading and is, in fact, the intellectual forbearer of the likes of Charles Clark, Benjamin Kaplan, and Edward Cooper. My intention is to establish this thesis by examining Bacon's Ordinances and his seminal A Proposition to His Majesty Touching the Compiling and Amendment of the Laws of England (1616). These show Bacon's great debt to Roman jurisprudence and Renaissance critical thinking but also show the unique contribution Bacon has made to modern progressive jurisprudence. This is particularly true as to the forming of law by prospective rules, rather than retroactive case law, and the testing and amendment of such rules in light of Bacon's revolutionary theories of inductive scientific reasoning and empirical observation. Bacon's innovations earned him contempt and ferocious critical opposition, both during his life and up to the present day. I will conclude by noting three particular sources of this opposition that remain relevant to scientific, progressive rulemaking. As Mark Twain was thought to have said, "History doesn't repeat itself, but it rhymes."

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.

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.

As the Catholic Church struggles with the aftermath of the clergy sexual abuse crisis, some have explored the possibility of an ecclesiastical code of professional conduct. Lawyers' long and storied history with professional codes offers a cautionary tale to those exploring an ecclesiastical code of ethics. As priests to our secular religion of law, lawyers are called forth and mandated by a competent authority to function in a defined role, the specifics of which are reflected, in part, in lawyer codes. As lawyers moved from Canons of Ethics (1908) to a Code of Professional Responsibility (1969) to Rules of Professional Conduct (1983, revised in 2002), the provisions grew more directive. They are designed to assist in the regulation of the profession, which results in provisions that are crafted to define baselines of conduct that justify punishment if the actor falls below that base. The natural tendency of codes is to move toward specificity, with a corresponding danger of losing sight of the fundamental values that drive the code. An ecclesiastical code will face similar pressures. In addition, lessons from the legal profession suggest other challenges and opportunities of an ecclesiastical code. First, who gets to craft the first draft, quite apart from the complex question of adoption, will reveal much about the goals and likely success of a code. Second, such a code must acknowledge and confront the inherent limitations of all rules: identifying the optimum level of discretion and understanding the role of fact-finding within a code. Third, drafters must understand - as they inevitably do - the necessity of ethical awareness as a precondition for the effectiveness of any code. Fourth, as a code articulates the contours of the role-differentiated behavior of the professional, it must be sufficiently flexible to reflect the challenges of role-differentiated behavior. Finally, and perhaps most importantly, a code of conduct by its nature focuses on the function of the individual professional and can be an awkward, and often ineffective, vehicle for addressing the need for changes in the institutional structures within which the professional functions. Against these challenges sits a huge and incredibly important benefit - education.

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?

This Article is the third in a four-part series entitled Legal Ideology and Incorporation. In this series, Dean Coquillette demonstrates that, although England has fostered a strong common law system, significant intellectual work was done in England during the sixteenth and seventeenth centuries by students of the civil law systems dominant on the Continent, particularly in their mercantile and diplomatic specialties. Dean Coquillette traces the development of the juristic works of these English civilians, and examines the civilians' intellectual influence on the English common law. His central thesis is that the English civilian jurists never intended to achieve a direct "incorporation" of civil law or mercantile doctrines into the common law. Rather, their lasting achievement has been the significant influence that their ideas about law-their "legal ideology"-have exercised on leading common lawyers and on modern commercial and international law. This Article discusses the third period of English civilian juristic development. The period commences with the years during and after the Commonwealth, and extends into the eighteenth century. By then, the common lawyers were succeeding in their attacks, leaving civilian scholars, such as Godolphin, Duck, Wiseman, Zouche, Exton, Jenkins, Wood, Strahan, and Ayliffe with what could have been an increasingly narrow and specialized role in the English legal system.

This Article is the fourth in a four-part series entitled Legal Ideology and Incorporation. In this series, Dean Coquillette demonstrates that, although England has fostered a strong common law system, significant intellectual work was done in England during the sixteenth and seventeenth centuries by students of the civil law systems dominant on the Continent, particularly in their mercantile and diplomatic specialties. Dean Coquillette traces the development of the juristic works of these English civilians, and examines the civilians' intellectual influence on the English common law. It is his central thesis that the English civilian jurists never intended to achieve a direct "incorporation" of civil law or mercantile doctrines into the common law. Rather, their lasting achievement has been the significant influence that their ideas about law - their "legal ideology" - have exercised on leading common lawyers and on modem commercial and international law.

This Article initiates a three-part series entitled Legal Ideology and Incorporation. In this series, Mr. Coquillette demonstrates that, although England has fostered a strong common law system, significant intellectual work was done in England during the sixteenth and seventeenth centuries by students of the civil law systems dominant on the Continent. Mr. Coquillette traces the development of the juristic works of these English civilians, and examines the civilians' intellectual influence on the English common law. It is his central thesis that the English civilian jurists never intended to achieve a direct "incorporation" of civil law doctrines into the common law. Rather, their lasting achievement has been the significant influence that their ideas about law-their "legal ideology"--have exercised on leading common lawyers. Mr. Coquillette divides the development of English civilian jurisprudence into three periods. The first period, which is the subject of this Article, includes the years from the publication of Christopher St. German's seminal Doctor and Student in 1523 to the storm of protest from common lawyers following the publication of John Cowell's highly controversial The Interpreter in 1607. During this significant period, English civilian writing tended to promote synthesis and accommodation with the common law, and formed a pioneering venture in comparative law, a remarkable ideological effort that rewards study for its own sake.

This Article is the second in a three-part series entitled Legal Ideology and Incorporation. In this series, Mr. Coquillette demonstrates that although England has fostered a strong common law system, significant intellectual work was done in England during the sixteenth and seventeenth centuries by students of the civil law systems dominant on the Continent. Mr. Coquillette traces the development of the juristic works of these English civilians, and examines the civilians' intellectual influence on the English common law. It is his central thesis that the English civilian jurists never intended to achieve a direct "incorporation" of civil law doctrines into the common law. Rather, their lasting achievement has been the significant influence that their ideas about law-their "legal ideology"--have exercised on leading common lawyers. This Article discusses the second period of English civilian juristic development. This period includes the years from the publication of the civilian Sir Thomas Ridley's major work, A View of the Ecclesiastical and Civile Law in 1607 to the publication of the common lawyer Charles Molloy's great Treatise of Affairs Maritime and of Commerce in 1676. During this period, the common lawyers, initially led by Coke, mounted increasing jurisdictional and political attacks on the civilians and at the same time attempted to co-opt civilian methodology in those vital, growing fields in which the civilians had exhibited particular expertise, most notably the law merchant. In response, the civilians became defensive in their juristic attitudes. Instead of continuing previous attempts to synthesize civil and common law, they began to try to isolate and maintain whatever pockets of influence they had already established. The critical struggle was in important part literary and intellectual, and it centered on the traditional civilian strongholds of the international law merchant and the Admiralty jurisdiction.