Oregon State Bar Bulletin — AUGUST 2003

Oregon Legal Heritage
WHO’S FIRST?:
Which Oregon law school is the original?

By Ronald B. Lansing

C: Who’s that on first?

A: Who.

C: Yeah, right, who?

A: Who is on first.

C: I’m asking you! Who’s on first?

A: Who!

C: What?!

A: No, What is on second.

C: I don’t care who’s on second.

A: Wrong. Who’s on first.

C: I don’t know!

A: Ida Know is third base.

A: What?!!

C: Second.

C: So, who’s on first?

A: That’s it. You got it.

Abbott and Costello took the lighter side of what has become a very popular need-to-know. Aside from being great comedy, being 'on first' or 'in first' can be most serious business. Coach Vince Lombardi believed it was 'everything.' There is something about first that engages us. The reason is not too hard to figure when first means a greater reward — prize money, a valuable trophy, advancement or public admiration. But without such payoffs, first is, at worst, no more than the gloat of tall talk and the crow of high feather. At best, it is no more than one of history’s worthless curiosities.

So, with that as a warning, let’s nevertheless take a playful look at this curiosity: which of Oregon’s three law schools was the original? Who made it first? The answer lies in yesteryears — somewhere in the period from 1883 through 1915.

Prior to 1883, this was the status of law practice and legal education: Nationwide, there were approximately 70,000 lawyers and 70 law schools, only one in the far west (Hastings, founded in 1878) and none in the Pacific Northwest. Of those Oregonians who held themselves out as being in the business of providing legal services, the greater majority were apprentice- trained and had no law school degrees. The American Bar Association was only five years old. There was no Oregon State Bar. There were no accrediting agencies for law schools. The Oregon Supreme Court exercised no supervision over or licensing of those who dubbed themselves 'lawyers.'

There were, however, 'Attorney Rolls' for courtroom representation. A lawyer could not appear in court to argue the case of another without first gaining permission of the judges of that court. A rail or paling of some kind in each courtroom barred spectators and self-proclaimed 'lawyers' from going beyond that separation. 'Passing the bar' was a literal entry not to be taken until the judges had placed the encroacher’s name on the roll as an attorney. Thus, there was a bifurcation between court-approved trial advocates and self-proclaimed office practitioners.1

The judicial chore as to who could be a courtroom advocate triggered the desire for credentials — something more informed than self-proclamation, apprenticing or cursory court screenings. Thus began the stirrings for institutional learning on the Oregon law frontier in the 1880s. Need, as always, gave birth to ambitions. And thus, over the decades, three law schools emerged in Oregon: Willamette College of Law, University of Oregon Law School and Northwestern School of Law of Lewis & Clark College. As to which of Oregon’s three law schools went forwardfirst, here follows a chronology of pertinent facts:

Summer 1883: Richard Hopwood Thornton, a Philadelphia lawyer, and Mathew P. Deady, Oregon’s sole federal judge, begin a transcontinental correspondence concerning the creation of a law school at the University of Oregon. Meanwhile Willamette University’s course catalog includes a description of a proposed law course even though the trustees had not yet approved the creation of a law school.

Winter 1883-84: The U of O regents 'decline for the present' the proposal of Thornton and Deady because of uncertain enrollment and capital. Thornton and Deady persist.

April 1884: Willamette trustees approve the institution of a law department. Meanwhile, Deady, the chair of the U of O regents invites Thornton to come to Oregon to lay plans for a U of O law school.

June 19, 1884: U of O regents in Eugene approve the institution of a department of law to be located in Portland, one hundred miles from the Eugene campus, with Thornton as the 'Professor-in-Charge,' to be recompensed from tuitional revenues there produced — thus a 'proprietary school,' financially self-sustaining.

Summer 1884: Three students enroll for the Willamette course of law study, and seven enroll for the U of O law program in Portland.

Fall Semester, 1884: Willamette conducts its first day of law instruction on Sept. 17 in Salem. Twenty-three days later, on October 10, the Portland school conducts its first evening of law instruction.

1886: The first university law degrees are issued in the Pacific Northwest to one graduate from Willamette and two graduates from the Portland law school.

1894: Governor Sylvester Pennoyer and his attorney general opine that the Portland school is not part of the state university because it is not a part of the Eugene campus. Therefore, it is not legal to dispense state tax money to support the Portland school.

1913: U of O begins to teach some law courses in Eugene.

1915: U of O severs its connection to the Portland law school and begins a law school in Eugene with a new dean, new faculty and new enrollees. The Portland school continues operations in the same classrooms in the same Portland building with the same dean, essentially the same faculty, the same curriculum, the same students and the same fiscal operations — the only change being in name: Northwestern College of Law.3

Those are some facts, and here is what I fancy: All three schools began at the same time, and each should be regarded as 'first' in the Pacific Northwest. The solution calls for some indulgence in ontological musings bedecked (I shamelessly confess) in a bit of froth: What is a school? And precisely, when does it begin?

Is a school its name? Is a school its ownership? Is a school its place — its buildings? Is it its students? Its faculty? Its administrative leadership? Its fiscal foundation? Its course of instruction? And if it is a mix of all of that, what happens when the parent moves out, the orphan stays and all else remains just as it was, save for the waif’s name? Do we have a newborn or an alias?

And at what point in time is a school born? Does it begin when it is merely a gleam in the eye? Does it begin when it receives formal consent? When conceived? When its faculties are shaped? When its heartbeats enroll? When its coursing ensues? When it grows and graduates? Do we need to make such distinctions? They are like colors in a rainbow — dispersions, not dissections — phasings, not fencings. Is it enough to know that the three law schools have each endured for 120 years? Does anyone need to be persuaded that the year 1215 assigned to the creation of the Magna Carta was not a start but rather an end, whose beginnings went far before that year? All of us know our date of birth. Few know the hour. None know the moment. Germination is dwarfed by generations.

Then too, there is this perspective: 'School' is not so much a fixed thing as it is a slow process. It’s schooling, not school. Learning is the real alma mater. The pursuit of first in learning can no more be grasped by pincers than equity can bring itself to stoop and pick up pins. But then, where’s the fun and game in that?!

So, I contend that 'Who' is on first, 'What' is on second and 'I Don’t Know' is on third. Sure sounds like extra innings to me.

ENDNOTES

1. That distinction between barristers and solicitors is still recognized in Great Britain.

2. It is unique for a state of Oregon’s population to have that many accredited law schools. Other states having three law schools include Connecticut, Minnesota, and Washington, but their populations make them 40 to 100 percent larger than Oregon. The population of South Carolina is approximately 25 percent larger than Oregon yet has only one law school. Iowa, Kansas, Maryland, Mississippi and Wisconsin (all larger populations) have two law schools each. Other states of near comparable size or population, such as Colorado, Arizona, Nebraska, Utah and Arkansas, have two law schools, and West Virginia and Nevada have but one. Alaska has none.

3. In 1944 there was talk of merging all three schools into one. It was short-lived, but mergers and separations, like phasings, can be subtle. Observe this evolution (or is it a convolution?): In 1872, Albany College sought to become the founder of what was to be Oregon’s new state university at Eugene. It did not succeed. Instead, 70 years later Albany gave rise to Lewis & Clark College, which merged with Northwestern College of Law in 1965. Thus, Lewis & Clark, the child of Albany, adopted Northwestern, which had been orphaned by the University of Oregon, the school that Lewis & Clark’s parent (Albany) had sought to conceive almost one century before. Pinpointing the start of a circle is like trying to push a rope.

Authorities
Gatke, R. M., Chronicles of Willamette (1943); Haught, N., 'When Law Was in Portland,' Old Oregonian (Univ. of Oregon, Dec. 1983); Lawrence, M. S., 'University of Oregon School of Law: The Thornton Years,' 59 Oregon Law Review (1980); Oregonian, April 14, 1915; Sheldon, H. D., History of University of Oregon (1940); Swenson, E. D., Willamette University College of Law — The First Hundred Years, monograph (1987); Thompson, L., 'Richard Hopwood Thornton 1846-1925,' The Advocate (Northwestern — Lewis & Clark College, 1984).

ABOUT THE AUTHOR
The author is a professor of law at Northwestern School of Law of Lewis & ClarkCollege, is a graduate of Willamette College of Law, and has a lawyer son, MarkA. Lansing, who graduated from the University of Oregon.

© 2003 Ronald B. Lansing


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