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
