People Who Have Shaped the Teaching Careers of Our Faculty—Part 1

The editors of the blog asked several law school faculty to write about the people who have been the most formative figures in their careers as legal educators. This, the first submission in the series, is by Professor J. Gordon Hylton.

I left law school with no particular intention of becoming a law professor; however, when I did become one 10 years later, my views as to the proper purpose and content of legal education had been significantly shaped by my contact with a variety of individuals. Although I spent most of my first decade after law school in graduate school in History and American Studies and as a teacher of undergraduates, my experiences during those years clearly shaped my future approach to law teaching.

As a legal educator, I have been an advocate of the historical approach the study of law, and early on I had the good fortune to study under and work with a large number of exceptional historians, some of whom specialized in the history of law and some of whom did not.

This group included David Rankin and Thomas LeDuc at Oberlin College, G. Edward White, Chuck McCurdy, and Paul Gaston at the University of Virginia, and David Herbert Donald, Morton Horwitz, Bernard Bailyn, and Alan Brinkley of Harvard University. From all of these, and especially from Professor Donald, I learned that in law, as in everything else, an understanding of the past is a precondition for understanding the present.

The importance of casting the net wide enough to include cultural history in the study of law was brought home to me by my studies in the Harvard History of American Civilization program and especially by my association with Professors Daniel Aaron, Warner Berthoff, and Andrew Delbanco of the Harvard English Department.

I actually began thinking about a career in law teaching shortly after beginning graduate school, and toward that end I enrolled in a Harvard Law School course entitled “Preparing for Law Teaching” during my second year of graduate school. The class was ear-marked for LL.M. students interested in careers in legal education, and it was taught by former Harvard Law School Dean Albert Sacks. The course was conducted in seminar style, and each week a member of the Harvard Law School faculty offered a different class on some aspect of legal education.

While completing my Ph.D., I also served as a teaching assistant for Archibald Cox and briefly as a research assistant for Charles Haar, both distinguished legal scholars and members of the Harvard Law Faculty. Haar was an advocate of incorporating non-traditional historical materials (i.e., those not pertaining to estates in land and future interests) into the study of law, and Cox, of course, was legendary for his role in as the Watergate Special Prosecutor.

Although I didn’t become a law professor until several years later, my first experience as a teacher of law in a university environment came from 1980 to 1982 when I was a Lecturer in the undergraduate Legal Studies program at Brandeis University. Aping the instructional methods of law school, I led undergraduates through an introduction to the legal method based on the same sort of case-based analysis that is associated with the 1L year. In that position, I benefited greatly from my association with Professor Saul Touster, a former law professor who directed the Brandeis program (which was, interestingly enough, housed in the American Studies department).

Because my doctoral dissertation dealt with the development of the American legal profession in the era between the Civil War and the Great Depression, I also dealt regularly with issues pertaining to the history of legal education in my scholarly work. On one occasion, I also was asked to fill in for Professor Cox as the lecturer in his undergraduate course, “The Supreme Court and the Constitution.”

Outside of academia, my experiences as a law clerk for Justices Albertis Harrison and Lawrence I’Anson of the Virginia Supreme Court and my brief stints with the Massachusetts Commission Against Discrimination and the Harvard University General Counsel’s Office all gave me a much better sense of how legal principles and theories operate in the real world, certainly better than the sense that I had coming immediately out of law school.

I was also indirectly involved in legal education while I was in graduate school. In law school at the University of Virginia, I had served for a year as a student assistant to Albert Turnbull, the Dean of Admissions and Placement, and that experience had given me the opportunity to see how the administrative side of legal education operated from the inside. In a similar vein, while in graduate school I was for several years an undergraduate pre-law adviser at Harvard which required me to be knowledgeable about law schools in general and the law school admissions process in particular.

When I actually became a real law professor in 1987 at the Chicago-Kent College of Law, my approach to legal education and legal scholarship had been affected by all of the experiences discussed above. Moreover, my own studies of the history of legal education had convinced me that within the realm of “non-clinical” law schools courses, there were really three different types of courses—first year courses, upper level “doctrinal” courses, and “law and” courses (like legal history)—each with different goals and objectives.

The classroom teaching styles that I initially adopted were, I now realize, very much influenced by several of my teachers at the University of Virginia Law School, especially Tom Bergin (in first year courses), Charles Whitebread (upper level courses) and Ted White (legal history courses).

For teaching materials during the first part of my career, in which I taught only Property, Constitutional Law, and Legal and Constitutional History, I was very influenced by earlier experiences. For example, I used Charles Haar’s Property and Law in my first year Property class; I assigned Gunther’s famous Constitutional Law casebook (which Cox had used) in Constitutional Law, and I constructed my first Constitutional History seminar around Ted White’s The American Judicial Tradition.

During my first year of law teaching, I also benefitted enormously from the opportunity to engage in regular conversations about legal education with my new colleagues Ralph Brill and Randy Barnett. The fact that Ralph and Randy agreed on absolutely nothing in regard to legal education helped sharpen the discussions.

I was also much impressed by Northwestern Professor Anthony D’Amato’s article, “The Decline and Fall of Law Teaching in the Age of Student Consumerism,” which appeared in the Journal of Legal Education (37 J. Leg. Ed. 461 (1987)), during the semester that I began law teaching. Although I had already essentially reached the same conclusion, this article convinced me that the so-called Socratic Method, if used rigorously but fairly, was an extremely effective way of teaching first year law students.

Now 25 years into my law teaching career, I continue to draw upon my colleagues for insight and inspiration, and I learned long ago that the goal of high quality, meaningful legal education is a constantly moving target.

 

Continue ReadingPeople Who Have Shaped the Teaching Careers of Our Faculty—Part 1

Humor and the Law, Part Four

In honor of April Fools’ Day, the editors of the blog asked the faculty of the Law School to share their favorite examples of legal humor. Every day we will share a different faculty member’s submission.  Today’s submission is from Professor Gordon Hylton.

One day, the devil stopped by the office of a young lawyer.  The lawyer recognized the devil by the smell of brimstone and the pointed tail peeking out from the back of the devil’s waistcoat.  The lawyer sent his staff home early, and once the two of them were alone Old Nick made the barrister an offer:

“I’ll increase your income 5-fold.” the Devil told the young lawyer.  “Your partners will love you.  All of your clients will respect you.  I will make it so that you will have 4 months of vacation each year and you will live to be 100 years old. In addition, you will win every case you argue in court. All that I require in return is that you sign this document.  This is a contract whereby you promise that, in exchange for these things that I have have mentioned, you hereby agree to consign your wife’s soul, your children’s souls and their children’s souls to me in hell, where their souls will rot for all eternity.”

The lawyer thought quietly for a few moments.  The devil began to turn away, saying, “I see that you are unwilling to accept my offer.”

The lawyer said, “No.  It’s not that.  I’m just not sure that I understand the deal.  What’s the catch?”

Continue ReadingHumor and the Law, Part Four

Supreme Court Justices Today Are Unlikely to Die with Their Boots On

Since 1789, 102 men and one woman have left the United States Supreme Court after varying periods of service. Forty-seven of the 103 died while still on the Court, while the other 56 retired.

Dying in office was once a much more frequent occurrence than it has been in the modern era. Of the 57 justices appointed to the Supreme Court prior to 1900, exactly two thirds (38) died in office. In contrast, since that time, 39 of 46 justices (85%) have left the Court by retirement.

Moreover, over the past 60 years, dying while still on the bench has become quite rare. Since Justice Robert Jackson died unexpectedly in 1954, 23 justices have left the Court and only one, Chief Justice William Rehnquist, died while still on the bench. For the half century between 1955 and 2005, there was not a single death of a sitting Supreme Court justice.

Why was it so much more common for justices to die in office during the Court’s earlier history?

A shorter life span for the justices is clearly part of the answer. Seventeen of the first 38 justices to die while in office died prior to their 70th birthday, and four of these, Wilson (56), Iredell (48), Trimble (52), and Barbour (58), died before reaching the age of 60. In contrast, the six justices who have retired since 1990—Souter (age 69), Stevens (90), O’Connor (75), Blackmun (85), White (76), and Marshall (83)—had either reached, or were approaching, their 70th birthdays at the time they stepped down.

Stricter pension eligibility requirements may also have been a factor in the reluctance of earlier justices to resign. For most of the 19th century, Supreme Court justices were eligible for a retirement pension only if they were 70 years old and had served on the Court for more than 10 years.

The best example of the impact of this rule can be seen in the case of Supreme Court Justice Ward Hunt. Hunt was appointed to the Court in 1872 by President Grant, but suffered from ill health that required him to miss part of the 1877 and 1878 terms of the Court. Then, in January 1879, he suffered a paralyzing stroke that left him incapable of speaking.

At the time of his stroke, Hunt was 68 years old and had served on the Court for six years. Although his affliction left him incapable of hearing cases or writing opinions, Hunt refused to resign from the Court for three years until Congress finally passed a special amendment to the federal pension laws that allowed him to retire. Hunt then retired immediately and lived in Washington for another four years, supported by his pension.

Other early justices chose to remain on the Court in spite of debilitating illnesses for political reasons. For example, in early 1880, Justice Nathan Clifford also suffered a stroke that left him debilitated. However, rather than resign, Clifford, a Democrat, chose to remain on the Court even though he could not participate in the deliberations in hopes that a Democrat would be elected president in the fall of 1880 (and could then appoint his successor). When Republican James Garfield was elected instead, Clifford still refused to resign and instead pinned his hopes on recovery. However, he never regained his health and died on July 25, 1881, a little more than three weeks after President Garfield was shot by the assassin, Charles Guiteau.

The performances of Supreme Court justices at the end of their careers has been a topic of interest to political scientists and legal scholars. Perhaps the most thorough study of that phenomenon is Artemus Ward’s Deciding to Leave: The Politics of Retirement from the United States Supreme Court (2003). Our own Professor Chad Oldfather and Todd Peppers of Roanoke College explore the issue as it applies to chief justices in a forthcoming article in the Marquette Law Review.

Continue ReadingSupreme Court Justices Today Are Unlikely to Die with Their Boots On