It’s Almost Time to Dream About What We Would Like Law Schools to Look Like— Last Installment on the History of Legal Education

Learned Hand with his buddies at Harvard Law School

Written by Hazel Weiser

It’s hard to imagine that in 1950, roughly half of the practicing attorneys in the United States were not college educated, but had gone to law school from high school or less.  Post World War II brought with it an influx of students, thanks to the GI Bill, and most of those students were men. That wartime anomaly—twenty-five percent of law school students being women—ended quickly.  Standardization won out, too, according to Robert Stevens in Law School: Legal Education in America from the 1850s to the 1980s, (the basis of this series of articles on how law schools developed into what they are today).  There was not that much difference in the content of the curriculum offered at a local or regional law school and that offered at Harvard, Yale, or Stanford by the late 1940s.

The ABA and AALS won: four years of college and three years of full time law school was mostly needed to sit for the bar with the noticeable exception of California (and a few other states), which still had state-accredited law schools and an apprenticeship avenue into practice.  What did law school look like: large classes, the case method, and no written work apart from a final examination in each course.  This was the time when law schools were the cash cows for many universities.  There had been some “reform” in the 1950s and 1960s, mainly, introductory law classes, teaching fellows for tutorial help, the introduction of legal skills courses using the problem method, a few specialty seminar classes, and finally, clinical education.  The biggest innovation, of course, was the acquiescence that negotiation, drafting, and counseling needed to be taught even if the case method couldn’t be instructive here.

Clinical legal education was championed in the 1920s and 1930s, and there were eleven law school clinics in operation in the beginning of the 1940s.  By 1951, there were twenty-eight clinics either maintained by law schools or operated in coordination with independent legal aid offices.  Only five schools required clinical experience as a prerequisite for graduation, at least in the 1950s.  The clinical movement was jumpstarted in the late 1960s when the Ford Foundation financed the Council on Legal Education for Professional Responsibility (CLEPR) to encourage the establishment of legal clinics at a range of law schools among the various tiers.  Between 1970 and 1976, the number of clinical programs in U.S. law schools jumped from 169 to 494.  When Roger Cramton issued his report in 1979, proposing that all law schools require instruction in clinical professional skills, the AALS balked and such a standard was never passed.  Even the proposed outcome measures that are currently before the ABA Council do not require live client clinics as a mandatory part of the law school curriculum.

But it was the demographics of law students that would change legal education in unexpected ways.

As reported in “I Can’t Stop Myself” last week, World War II was the first time women were admitted to law school in any real numbers, mostly because the men were serving in the military and those seats had to be filled somehow.  Twenty-five percent of the degree candidates in 1943-44 were women.  However, by 1963, women were only 2.7 percent of the profession, and by 1969-70, with the Second Wave of Feminism rising, only 6.35 percent of law school students were women.  It was bad for African Americans, too.  In 1969, although African Americans constituted 12 percent of the population, they made up only 1 percent of matriculating law school students.  A study of where these students of color came from confirmed that the civil rights movement had only opened the doors at elite and middle range law schools for more affluent blacks, not for those coming from anti-poverty campaigns.  By then even a substantial portion of white male students appeared to show a decided shift towards seeing the law as an instrument of maintaining status and wealth, in a negative sense, and a streak of anti-authoritarianism ran through student populations across the country.  Rebellion had infiltrated law schools.  Elite schools produced the partners for the nation’s top law firms, although the majority of lawyers were still solo practitioners.  Law was stratified by gender and by race whereas previously there weren’t enough women or attorneys of color to have formed any layers.

And then it happened: law became the profession of the liberal arts major in colleges.  Between 1968-69 and 1971-72, it seems that everyone was taking the LSAT exam.  Administrations grew from 60,000 to 120,000—doubled. ( In 2010-11, total LSAT administrations had dropped by almost ten percent to 155,050. ) With law school popularity on the rise, so was the profit for law schools: law schools made $17 million in 1948 (and that’s with the GI Bill) to $275 million in 1976.  By 1977, the number of law students had grown to 126,000.

The demographics of the profession had indeed changed.  By 2008, there were 1.18 million licensed attorneys in the United States.  The profession had grown less male, declining from 92 percent male in 1980 to 73 percent in 2000.  It had only grown slightly less white, declining from 92.6 percent white in 1990 to 88.8 percent white in 2000.  African Americans constituted a mere 4.2 percent of the profession in 2000, up slightly from 3.3 percent just ten years before in 1990.  (The Lawyer Statistical Report, American Bar Foundation 1985, 1994, 2004 editions)  Solo practitioners comprised almost half of the profession—and that statistic remained fairly steady: 49 percent in 1980; 45 percent in 1991; and 48 percent in 2000.  The vast number of law firms—76 percent in 2000—were limited in size to 2-5 lawyers each.  ABA Lawyer Demographics 2008

So with this new money, new students, and eventually new faculties, law schools loosened the reins and began to open up the curriculum, the methodologies of teaching, and the content of law sources.  SALT had a big role in that movement.  Since 1974, SALT has worked to make the profession more inclusive, to enhance the quality of legal education through innovative teaching methodologies and inclusion of new scholarship, and to extend the power of legal representation to under-represented individuals and communities. Required courses often went away.  (Although they are once again favored in those schools sensitive to bar pass rates.)  The case method was no longer mandatory.  Electives and specializations appeared and faculties grew offering an array of interesting courses and philosophies.

 

So here we are and once again the cries for reform in legal education are echoing the calls from decades past.  There are too many lawyers.  There are too many incompetent lawyers.  There are too many lawyers who aspire to big money and big life styles, disregarding the needs of lower and moderate income clients.  Legal education is not practical.  Legal education is too technical.  Law schools should teach for the bar exam.  Law schools should not lower themselves to being cram courses for professional exams.

What we know is that all higher education—especially law school– is too expensive especially when the realities of how much an attorney can reasonably make come to light.  (See, Dean Jim Chen’s latest arithmetic on the real cost of law school in the National Law Journal, dated December 12, 2011.)  That reality has never really changed.  A large law firm with millionaire partners was always the exception and remains the exception.  Although far more successful than the average working American, lawyers don’t as a class get rich.  In 2008, the middle half of the occupation earned between $74,980 and $163,320.  With loan repayments, these figures are not astronomical.

When did law schools start putting out the message that going to law school was the path to riches?

Perhaps it is time for all of us to ask the question: what does it mean to be a lawyer?  As we go through this final year of the comprehensive review of standards governing law schools, perhaps we need to reexamine the concept of the “citizen lawyer” proposed by Thomas Jefferson: a class of residents who will act in the public good and not just for private gain.

What do you think?

Read the entire series with much thanks to Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s.

December 6: I Can’t Stop Myself–More on the History of Legal Education Ripped From the Pages of Law School: Legal Education in American from 1850s to the 1980s

November 22: Law School is Not Project Runway

November 3: More History of the Regulation of Legal Education So That We Understand Where We Are and How We Got Here

October 26: Deregulation is Just Another World for …

August 17: In Defense of Legal Education