Legal Education

When the nineteenth century began, the young man who wanted to work as a lawyer (a woman lawyer was then unthinkable) learned the ropes as an apprentice: clerking in the office of some established lawyer. There were a few law schools in the early nineteenth century, but they were not much better, or more rigorous, than apprenticeship. The law schools that were attached to universities— Harvard was the earliest— were hardly different from free-standing law schools in this regard. Harvard, however, began a revolution in legal education from 1870 on, under the leadership of a new dean, Christopher Columbus Langdell. Langdell considered law a science, which had to be taught in a scientific way. The students were supposed to extract the principles of law from reading appellate cases. The most startling of his innovations was in fact the case method— teaching law not by lecture but by Socratic questions and answers. The students would study appellate cases, selected and collected in ‘‘case-books’’; the questions and answers would be based on these cases. Langdell also invented (one might say) the law professor. The Harvard faculty had always consisted of distinguished lawyers and judges— men who had made their mark in the legal world. Joseph Story, for example, a justice of the United States Supreme Court, once taught law at Harvard on the side. Langdell rejected this notion, and began to hire young, bright men— men who had done nothing much at the bar, but who were good (he thought) at the Langdell method of teaching.

By the turn of the century, the Harvard method had made enormous progress; it had spread far beyond its original mother church in Cambridge, Massachusetts. In the early twentieth century the Harvard method became totally triumphant, sweeping aside all opposition, and destroying (as it were) everything in its path. The case method, for example, was introduced at Yale in 1903. Arthur Corbin and John W. Edgerton were the young Turks who brought in this alien method, but it was only ‘‘grudgingly accepted’’; and the whole faculty had to approve each particular adoption of a casebook. This lasted until 1912, when the faculty decided that any professor could use ‘‘the case system of instruction’’ without getting general approval. ≤≤ In many schools the conversion to the Harvard method came about when some Harvard-trained missionary arrived, either as a faculty member or as dean. This occurred, for example, at Tulane in 1906. ≤≥ The brand-new University of Chicago Law School imported Joseph Henry Beale, Jr., from Harvard to help create a school ‘‘on the model of the Harvard Law School,’’ a school which would impart ‘‘pure law’’ to students by means of the case method. ≤∂

The American Bar Association, from a relatively early date, took an interest in law schools, their standards, their organization. The ‘‘Association of American Law Schools’’ was formed in 1900. Twenty-five schools signed on, and within a year there were thirty-two members, out of just over one hundred law schools. The aim was ‘‘the improvement of legal education in America’’; and each member school paid $10 as annual dues. ≤∑ The aals, too, was concerned with standards. For membership, a school had to meet the association’s pre requisites— on size of faculty, admission policy, and even number of books in the library. The aals had something of an elite flavor; a resolution, adopted in 1912, declared that night law courses ‘‘inevitably’’ tend to ‘‘lower educational standards,’’ although the association later softened somewhat on this issue (and the night law schools, not surprisingly, refused to go quietly out of business). ≤∏

The triumph of the Harvard method was also the triumph of the Harvard Law School, which claimed a kind of leadership in American legal education. It supplied, as we have seen, missionaries who went into the hinterlands to preach the One True Method. In 1925– 1926, out of 605 law teachers who taught at aals-member law schools, no fewer than 143, or 24 percent, were graduates of the Harvard Law School. In 1948 Harvard provided the same percentage, 375 out of 1553. ≤π

What made the ins and outs of the Harvard method and its clones all the more important was the fact that the apprenticeship method was traveling the long dusty road to extinction. The main road, and soon the only road, to the bar went through the law schools. Law firms now had telephones, typewriters, and stenographers (mainly women); they had little need for young male gofers and clerks who hung around the office and picked up the business by osmosis. Moreover, the apprentice system depended on a cosy world of close, interpersonal ties and relationships. It assumed a uniformity of background, habits, ways of thought. In the big cities, full of immigrants, diverse, heterogeneous, with growing clusters of ethnic lawyers, formal apprenticeship had no real place in the system. Informally, of course, it survived. Students fresh out of law school had to learn the ropes on the job— in firms, or government offices.

Nonetheless, it is fair to say that the burden of training shifted dramatically to law schools. At the turn of the century, there were some thirteen thousand students studying law in law schools— the number had more than doubled in ten years. The largest law school in 1901– 2, the University of Michigan Law School, had 854 students; Harvard, in third place, had 632. ≤∫ In 1870 only one out of four of those admitted to the bar had gone to law school; by 1910, twothirds were law school graduates. ≤Ω In New York 18 percent of those who applied for the bar in 1900 had no law school training; in 1922, out of 643 who were taking the New York state bar examination for the first time, only nine lacked this training. ≥≠

Moreover, big business needed, and demanded, a corps of sophisticated lawyers. Law schools were considered a more efficient way of meeting the demand than clerkship. After all, a hundred students could be crammed into a classroom, fed the same material, put through the same process. Arguably, too, they got a better (if less practical) education. The Socratic method, as practiced in Harvard and its satellite schools, was supposed to produce a finely honed legal mind. Whether it did this or not is another question. Not everybody believed, as C. C. Langdell did, that law was a ‘‘science,’’ and that learning the principles of law was training in the principles of legal science. The concept of ‘‘legal science’’ was complex and hard to pin down, and it came in various versions. ≥∞ In any event, Langdell’s formulation did not dominate legal thought very long. The faith in ‘‘legal science’’ ebbed in the twentieth century. But oddly enough, Langdell’s methods, the pedagogical techniques, and the way the curriculum got organized, survived him— in fact, these got stronger and stronger, and spread from school to school. What happened was simply this: Langdell’s system was repackaged as a superior kind of skills training; whether or not there was a science of law, the method taught the student how to ‘‘think like a lawyer.’’ This meant mastering the law school brand of mental acrobatics, along with the fine art of argument— on both sides of an issue, if necessary.

Law schools continued to breed like rabbits. Many of the new schools were part-time and offered night classes. Day schools increased from fifty-one to seventy-nine between 1890 and 1910; night schools, however, grew faster in the same period, from ten to forty-five. ≥≤ These schools were concentrated in the cities, and they produced a high proportion of the urban lawyers. There were also ‘‘mixed’’ law schools, which allowed students to choose day or night. Indeed, there were schools that had three options: Fordham, for example, had a morning, afternoon and evening division. In 1926 there were 388 morning students, 386 in the afternoon division, and 680 night students. ≥≥ These evening and part-time schools supplied the ranks of Greek lawyers, Jewish lawyers, Irish and Italian lawyers, and other lawyers who took care of clients in immigrant communities; they turned out neighborhood lawyers, mostly generalists, along with lawyers who specialized in certain claims— personal injuries, for example. Ultimately, their graduates did well in local politics, and became judges, mayors, and aldermen. The alumni of these schools did not scale the heights of Wall Street. But they were important people of bench, bar, and city hall.

Bar organizations, and leading lights in the profession, distrusted the night schools and the lawyers they turned out. The upper-crust lawyers worried about the prestige of their profession— and they worried about money, too. They saw a profound threat in the rising numbers of lawyers. One solution to the problem was to raise standards: to require some college work before law school. John Henry Wigmore, dean of Northwestern, felt strongly on the subject: the bar, he wrote in 1915, was ‘‘overcrowded with incompetent, shiftless, illfitted lawyers, who degrade the methods of the law and cheapen the quality of services by unlimited competition.’’ He thought their numbers ‘‘should be reduced by one-half.’’ Wigmore wanted to require two years of college— this would help get rid of the ‘‘spawning mass of promiscuous semi-intelligence which now enters the bar.’’ ≥∂

The night schools, of course, survived; they filled a need, and they had their defenders. One of the most vigorous was Edward T. Lee, of the John Marshall Law School in Chicago. John Marshall was an upstart, founded in 1899 and unconnected to a university. Lee, as dean, was outspoken in defense of his school— and in his opposition to the case method. In 1929 Lee lit into the aba and the aals, the legal education establishment; he called them ‘‘educational racketeers’’ because of their passion for the case method. Lee refused to hire anybody to teach at his school who had less than five years of experience in practice. He rejected those who came ‘‘fresh from a law school.’’ ≥∑ He also spoke out against the requirement of two years of college; this was ‘‘stacking the cards and loading the dice’’ against the ‘‘people who are not favored by wealth and opportunity.’’ ≥∏

His night students, he admitted, were not, as a class, ‘‘as well prepared intellectually for the law as day students’’; but they made up for this lack through ‘‘pluck, energy, perseverance, and enthusiasm.’’ The night schools made sure that America was a land of ‘‘opportunity’’; in the night schools there were ‘‘Christians and Jews, white and black, and yellow.’’ Thus the night schools helped to ‘‘leaven the undigested classes’’—they were part of the melting pot. But above all, Lee pointed out, they kept the doors open for ‘‘hundreds of worthy young men’’ who had to earn their daily bread, and thus could not be full-time students by day. ≥π

In some ways, Lee took a patronizing attitude toward his own students— and his ‘‘humble’’ and ‘‘local’’ school. It was, he said, not in the business of training geniuses. It was training what he called ‘‘mechanics of the law.’’ The man ‘‘who paints your house does not need to know anything about the paintings of Raphael and Michelangelo at all’’; all he needs to do is a ‘‘good, artistic job on your house.’’ ≥∫

In spite of Lee, standards of admission to law school, at least in the day schools, kept ratcheting upward. In 1896 Harvard had decided that only college graduates were to be admitted to its holy ground. In 1915 the University of Pennsylvania became the second law school to make college education a prerequisite; Pittsburgh followed at the beginning of the 1920s. The American Bar Association recommended that law schools require some college work. By 1920 many schools were following this advice— they required three years (University of Chicago), or (more commonly) two or one year of college. ≥Ω Gradually, other schools fell into line. The University of Buffalo Law School, for example, decided to admit nobody after the entering class of 1925 who did not have a year of college; and after 1927, two years. ∂≠ Eventually, all schools— including John Marshall and the other night and part-time schools— came to require a college education.

If it was harder to get into law school, and harder to get out, it was also harder to become a full-fledged member of the bar. The profession itself— certainly the top layer of it— was eager to tighten standards. Wigmore was not the only one who thought the bar was overcrowded. It was a common complaint— Herbert Harley, secretary of the American Judicature Society, wrote in 1914 that there ‘‘are too many lawyers by far.’’ One of the problems, Harley said, was ‘‘easy admission.’’ This made the profession ‘‘topsy-turvy. There is a survival of the fittest but the specifications of fitness are wrong.’’ A crowded bar ‘‘puts a premium on sharp practices.’’ ∂∞ This lament was, of course, no different from the lament of many other professions and occupations; they all liked the idea of cutting down on numbers, in the interests of getting a good return on their investment in education and preparation. There was also the notion that certain good old days were gone, and the bar was filling up with immigrant riffraff.

In the nineteenth century, in many states, the ‘‘bar examination’’ was fairly perfunctory. The young lawyer-to-be hunted up a friendly judge and answered a few questions. In some cases— Indiana was a notorious example— there were no bar examinations at all. The Indiana Constitution provided, from 1851 on, that ‘‘every person of good moral character being a voter, shall be entitled to admission to practice law in all courts of justice’’ (Art. 7, §21). Toward the end 39 of the century a few states began to set up central boards of examiners, and require written exams. By 1917 there were central boards of bar examiners in thirty-seven jurisdictions. ∂≤ The lawyers of Indiana mounted a series of campaigns to repeal the obnoxious provision which seemed to give anybody at all the right to practice law. They succeeded (after several tries) in 1932. The bar examinations varied from state to state— some were more professional than others; some were tough, and some were easy. In Kansas, every single candidate (of fifty-three) passed the bar in 1904; 97 percent in 1922, 88 percent in 1933; but in some other states, particularly in the 1920s, half or fewer of the candidates passed. Industrial states with big immigrant populations were tougher than small, rural states. External events had an influence as well: in California in 1932, in the depths of the Depression, the pass rate dropped from just over half (for first-time takers), to about a third. This was obviously a kind of ‘‘quota,’’ though bar examiners rarely admitted that this is what they were doing. ∂≥ The American Bar Association also launched an attack on the so-called diploma privilege. A school had the diploma privilege if its graduates were automatically members of the bar, without the further fuss of a bar exam. The legal elites were all in favor of stopping the flood of lawyers and law schools; and the diploma privilege encouraged the founding of new law schools. It would be most unfortunate, said Herbert Goodrich, dean of the University of Pennsylvania Law School and president of the Association of American Law Schools, speaking in 1931, if ‘‘any Tom, Dick or Harry . . . could start a law school and grind out graduates who would forthwith be admitted to the practice of law.’’ ∂∂ At one time, the diploma privilege was common— sixteen states granted it in 1890— but, because of opposition from elements in the bar, it had tougher going in the twentieth century. Michigan, for example, ended it in 1913, at the request of the faculty of the University of Michigan. Minnesota and California got rid of it in 1917; and by 1938, it was down to eleven states (though later it had something of a revival). ∂∑