Law School and the Bar Exam: A Snapshot from 1898

My thanks to Dan and the rest of the Prawfsblawg community for the invitation to join the conversation this month as a guest blogger.  As an initial foray into the prawfsblawgosphere, I thought I would follow Colin’s lead and offer a couple of quick observations on the changing character of the law school curriculum. 

Recently, I found myself wondering how the curriculum at Syracuse has changed since its early days . . . So I asked one of our superb reference librarians to help me track down the college’s course offerings during its early years.  As it turns out, when Syracuse first transitioned from a two-year curriculum to a three-year law curriculum in 1898, it offered the following one-size-fits-all course package:  

First semester: Contracts, Torts, Elementary Law, Personal Property, Bills and Notes, History and Philosophy of Law
Second semester: Contracts, Torts, Criminal Law, Personal Property, Domestic Relations, Bills and Notes, Legal Ethics 
Third semester: Criminal Law and Procedure, Real Property, Law of Evidence, Quasi Contracts, Agency, Civil Procedure at Common Law, Statute Law, Hypothetical Cases
Fourth semester: Sales and Warranty, Real Property, Law of Evidence, N.Y. Code of Civil Procedure, Partnership and Liens, Equity Jurisprudence, Roman Law, Hypothetical Cases
Fifth semester: Equity Jurisprudence, Trusts, Corporations, N.Y. Code of Civil Procedure, Bailments, Law of Negligence, Medical Jurisprudence, Moot Court 
Sixth semester: Wills and Administration, Trusts, Corporations, Insurance, Moot Court, Special Lectures (International Law-6 sessions, Patents-8 sessions, Trial of Actions-6 sessions, Searching and Examination of Titles-10 sessions).  

I expected to find significant substantive differences between my school’s current curriculum and the early curriculum, and (not surprisingly) there are some major differences.  The most glaring difference, to my eye, is the paucity of public-law subjects in the 1898 curriculum.  

No constitutional law.  No administrative law.  A mere six lecture sessions on international law.  Only one course devoted to “statute law,” and that course apparently focused on issues involving the statute of frauds and various statutes of limitations, not the legislative process or statutory interpretation more broadly--let alone the broad spectrum of regulatory courses that now make up the bread and butter of today’s upper-level law school curriculum.  (In contrast, Syracuse now requires students to take both Constitutional Law and Legislative Law and Policy in the first year, and a full half of our upper-level course offerings have a public-law emphasis.) 

At the same time, I was mildly surprised to find that few courses from the law school’s early days have fallen completely by the wayside.  True, some of the school’s original courses have been renamed, repackaged, expanded, condensed, or folded into others.  But virtually all of the subjects offered in 1898 continue to be taught in some form at Syracuse in 2010.  (The one glaring exception is “Searching and Examination of Titles,” but I suspect that few of our students will mourn its passing.)  

With some further snooping around, I discovered (again, perhaps not surprisingly) that our 1898 curriculum matched up almost perfectly with the bar examination of the same time period.  An 1899 NY/CT bar examination review book (yes, these existed before Barbri) covers essentially the same subjects as our 1898 curriculum: agency, bills and notes, carriers, constitutional law, contracts, corporations, criminal law, damages, equity, evidence, insurance, partnership, pleading, personal property, real property, quasi contracts, sales, torts, trusts, and the New York Code of Civil Procedure.  Indeed, an argument could be made that the old 1898 curriculum tracks the current bar examination subjects more closely than the standard curriculum in U.S. law schools today . . . that is, to the extent that most of us now limit the number of required courses, allowing students to opt out of most upper-level “bar courses” in favor of important electives in the public-law area (e.g., antitrust law, environmental law, federal courts).

Should we be concerned that the bar exam (at least in NY) continues to emphasize the same subjects tested a century ago to the neglect of new burgeoning fields of public law?   If the purpose of the bar examination (like a legal education) is to ensure the basic competency of lawyers to practice in the legal profession today--an environment characterized by pervasive global integration and administrative regulation--it seems self-evident to me that the exam should reflect the growth of public-law litigation over the past century, particularly in the fields of federal and state regulatory law, foreign relations law, and public international law.  Subjects such as administrative law, legislation, and international/transnational law are central to legal practice today, and they are beginning to make inroads into mandatory curriculum at a number of schools.  Perhaps it is time for the bar exam to join legal education in the twenty-first century rather than linger behind in the 1890s?