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Letter from the Dean

fall 2004

Dear Alumni and Friends of Boston College Law School:

75 years ago Boston College Law School opened its doors in the Lawyer’s Building at 11 Beacon Street. In September, we opened the doors of Stuart House to the class of 2007. I’ve been thinking how different their experience will be. Not of the obvious things (space, services, population), but of the really important ones: who their teachers are and what they will learn.

We began with Dean Dennis Dooley and a full-time faculty of one, William J. O’Keefe. O’Keefe’s students are still around. One of them told me O’Keefe was a real-life Mr. Chips. He taught eight courses to day and evening students. He also served as librarian for a modest (2,000 volumes) collection of cases, digests, and the statutes of Massachusetts and the United States. To supplement his Law School salary, O’Keefe taught undergraduates at BC’s Extension School, which had a branch at 11 Beacon Street. It too was begun in 1929, as a feeder school for the Law School. Students with a high school diploma could take night classes and get the equivalent of the two years of college they needed to begin law school.

O’Keefe couldn’t teach all the courses. Many were taught by adjuncts. Henry Foley taught Property. He was a young associate at Ropes, Gray, Boyden & Perkins who had gone to Boston College and then to Harvard Law School. When Foley became Corporation Counsel for the City of Boston in 1934, he didn’t even have to leave the building to do his adjunct teaching. Like the Law School and the Junior College (as the extension school came to be called), the City’s Law Department too had offices at 11 Beacon Street. All but a handful of his fifty-four students (Foley taught only the day course) were from Boston. More than half had done undergraduate work at Boston College. There was even less variety among the faculty. There were fifteen adjuncts plus O’Keefe. Twelve went to college at BC; ten went to law school at Harvard. Foley resigned as Corporation Counsel in 1938 to become the dean, but only for a year. He was drawn away from the school by his own practice. Soon after leaving, he started the firm of Foley, Hoag & Eliot.

When we look beyond the cramped quarters, small library, and modest staff to the real stuff of legal education—faculty and classes—we can see an impressive beginning. The full-time teachers who were eventually hired taught a lot of classes. Walter Morris, who joined O’Keefe in 1930, once taught ten. They displayed a kind of omnicompetence that is hard to imagine today. O’Keefe at different times taught Bankruptcy, Bills and Notes, Civil Procedure, Contracts, Corporations, Legal Analysis, Legal Bibliography, Legal History, Remedies, and Wills and Administration. Most full-time faculty also practiced on the side, and that undoubtedly contributed something to their understanding. They did not have time to write much.

A Peek into Foley’s Class
It is interesting to look closely at what the early faculty taught. As the text for his course, Foley used Edward Warren’s Cases on Property, a book written by one of his professors at Harvard in 1915 and still in circulation in 1929. It is literally a book of cases, one after another, hardly edited at all, and organized by topic. The book departs from this style briefly in the section on conveyancing. That chapter begins with selections from Blackstone, Coke Upon Littleton, and Kent’s Commentaries; the Statute of Quia Emptores and the Statute De Donis; a few old English cases; and some mid-19th-century American cases. This is a good example of the case method devised sixty years earlier by Christopher Columbus Langdell. In fact, our 1929 admissions bulletin advertises the fact. It quotes Chief Justice William Howard Taft as saying that the case method “thrusts the student into the atmosphere of the controversy which each case presents and enables him in a concrete way to trace from one case to another general principles, the distinctions in their application, their variations and their exceptions, and thus in a dramatic and effective course to possess himself of the judge-declared law.”

Notice several points about this approach. It assumes that the law is made by judges, in cases. It focuses the student’s attention on legal doctrine: the aim is to teach general principles, variations, and exceptions. It views law as a fairly static system. Warren’s book was fourteen years old in 1929. Blackstone’s Commentaries were published in 1765. Coke Upon Littleton in 1628. And in case it didn’t strike you, the students were asked to read English cases to learn about estates and tenancies—as if the law hadn’t really changed since we were a colony. You can’t tell this from Warren’s book, but it is safe to assume that Foley and O’Keefe knew their audience. Their students were from Massachusetts and would likely practice there. Their teachers would disserve them if they did not pay particular attention to the sometimes peculiar property law of Massachusetts.

The New Property
I want to look now at Foley’s successors, our modern teachers of Property. They are Zygmunt Plater, Mary Bilder, and Joseph Liu. They are a more varied group than our first faculty. None of them went to Boston College. Plater attended Princeton and Yale, and has advanced degrees (LL.M., S.J.D.) from Michigan. Bilder went to Wisconsin and Harvard, and then got a Ph.D. in history from Harvard. Liu has degrees from Yale and Columbia, and an LL.M. from Harvard. In addition to Property, a yearlong course, each teaches two courses in a cognate specialty: Plater in Environmental Law, Bilder in Legal History, Liu in Intellectual Property. We try to put our best teachers in first-year courses, and these three are among the very best we have.

They are, of course, clear, engaging, and immensely learned. My focus, though, is on what and how they teach. It’s pretty different from Foley’s class. Let me begin with Bilder. She just finished writing a book on the legal history of colonial Rhode Island entitled The Transatlantic Constitution (Harvard 2004). It’s the sort of thing her Legal History course is about. But it is also important for understanding first-year Property. The principles, variations, and exceptions that Langdell talked about are not rooted in theory but in historical context. The distinction between joint tenancy and tenancy in common, for example, was a major problem in English and American colonial law. And we may have adopted different rules because we have more land than the English, or because women play different roles here. Bilder’s teaching of Property is, like much legal thinking today, less descriptive and more critical than Foley’s would have been.

Plater’s teaching too is different from Foley’s, but it illustrates some other important changes that have taken place in seventy-five years. Plater is the lead author on a book entitled Environmental Law and Policy (Aspen 3rd ed. 2004). (David Wirth, who teaches International Law, is a coauthor.) It is tangible disproof of Langdell’s thesis: The law is made by statutes, treaties, regulations, and practices, not in cases. In Plater’s book the cases are in smaller print than the accompanying material. The subject is also dynamic rather than static. Environmental law is intimately tied to land, but it didn’t exist in 1929. The Clean Air Act was passed in 1970. And since then the law has changed rapidly. This is the third edition of Plater’s book. Here is another point. Like our faculty, most of our students today are not from Massachusetts. Our courses do not focus on local law. Even if they did, courses like Environmental Law would not, because most of the law they deal with (think about the Clean Air Act) is national.

There is a temptation to suppose, because our courses today are more critical and theoretical than they were formerly, and because our faculty devote more time to scholarship, that law school is less practical than it once was. This is a mistake, and Plater’s book shows why. The section on remedies in environmental litigation has a copy of the complaint in Alaska v. Exxon, the lawsuit over the Exxon-Valdez oil spill. Plater was the chair of the Legal Research Task Force for the State of Alaska that formulated many of the theories used in the case. Fifteen students from his Environmental Law class and the Environmental Law Society worked on the project for seven months.

Joseph Liu is a young scholar with a particular interest in copyright and internet problems. One of the appealing traits of the field of intellectual property is this: the technology is so new and different that judges and lawyers don’t know what precedents to apply. Liu wrote a wonderful article, Owning Digital Copies, 42 Wm. & Mary L. Rev. 1245 (2001), about the treatment of property rights in physical copies (a paperback book) and digital copies (the same book on my computer). It’s a long way from Pierson v. Post, the case about the fox that begins Warren’s and many other Property books.

Comparing Plater, Bilder, and Liu with Foley and O’Keefe is like comparing Barry Bonds with Babe Ruth. So much has changed that the comparison is meaningless. Today’s teachers, like our founders, are superb legal intellects. But the work they do is different. The law itself is more national and dynamic. The teaching of it is more theoretical and critical (without, I hasten to add, being less practical). There is so much ground to cover that we are forced to be specialists. We have come a long way in seventy-five years.

Sincerely,
John H. Garvey