Written by Hazel Weiser
The first rule of persuasion is to choose where to begin a story. All of this talk about deregulation of legal education and the practice of law as being good for everyone needs some historical context. (This talk sounds dangerously like it was manufactured by the U.S. Chamber of Commerce). I started that examination last week when I posted Deregulation is Just Another Word for … . Today I am moving deeper into history to help us understand how the legal profession became a profession. It’s not a pretty story, because it happened here in the United States: a radical, young, immature, racist, and intolerant place that has always had a hard time living up to its aspirations.
Looking back to the time when the American Bar Association—ABA—first began to influence legal education, I am once again heavily relying on the scholarship of Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s (University of North Carolina Press 1983).
Once university-based law schools caught on, emulating Harvard with variations, but based on a scholarly approach to becoming a lawyer, there was a simultaneous rise in the number of part time and evening law schools. The first of these quite profitable storefront law schools was founded in the 1860s, and as much as NYU might want to forget this part of its history, NYU Law School began as a lowly evening program, the Metropolis Law School in New York City. In that era industrialization helped create a market for lawyers. As the United States began its growth as an industrial empire, there was a need for attorneys to guide the corporations and their complex relationships, as well as the affairs of their owner elites. Those lawyers went to Harvard and Yale, and the growing number of university-based law schools. There was also a need for attorneys to represent the injured workers and consumers who were inevitably hurt by the lack of regulation of the workplace and of products. Those lawyers became the targets of the ABA and later the AALS.
When the ABA was formed in 1878 to “improve the profession,” its intentions were infused with the nativism and xenophobia that were this country’s reaction then, as it is now, to large influxes of immigrants whether Irish or Eastern and Southern Europeans, or African Americans flooding out of the South after the Civil War and the collapse of Reconstruction. However, another force was operating, that of standardization, a reflection of the industrial age of assembly lines. Original recommendations by the ABA Committee on Legal Education and Admissions to the Bar to standardize legal education were rejected in 1879, although they were later adopted: legal education should be modeled on scientific training (and the casebook method was the “science” of law); practicality in education should be shunned; the core of a law school should include four well-paid teachers, written examinations for graduation, and the requirement of a degree in order to be licensed to practice; and a three-year structured curriculum. Anyone with a law school degree had the right to practice law without taking a bar exam. The ABA hated the diploma privilege, and the focus intensified on bar examinations as a way to replace the diploma privilege when the ABA had difficulty getting law schools to conform to any “standards.” Written bar exams, many of these had been oral up until then, began in Massachusetts in 1870 and New York in 1877. There is no doubt that prestige and competition were aspects of the history of these exams, with localities trying to increase the standing of their bars by making exams more difficult, and as a welcomed by-product, fewer lawyers to compete in the marketplace.
However, despite these efforts by the nascent ABA, by 1891, only 20% of lawyers practicing in the United States had graduated from law school, because no state required law school attendance or graduation as a prerequisite to licensing. Most lawyers had neither attended college nor law school throughout the 1890s although most states permitted class time to substitute for required apprenticeship hours. The Wall Street lawyers were indeed college educated with degrees, then years of apprenticeship in offices to learn the practical skills of lawyering. But those other lawyers were still mostly self-taught without even a high school education before they began to solo practice.
Let’s face it, there was a real standards issue because they weren’t all like Abraham Lincoln.
Whether the ABA would have been successful in structuring legal education and requirements for practice without the formation of the Association of American Law Schools—AALS—we will never know. But in 1899, the ABA called for the formation of an organization of reputable law schools, which in 1900 began with twenty-five charter members. Elitism was undoubtedly at the core of the AALS. Although originally the AALS permitted two-year programs, by 1905, it demanded a three-year course of daytime study. In 1916, the AALS even debated a resolution to end recognition of evening programs after 1920, although that resolution was tabled. The more the ABA and AALS tried to regulate legal education, the more proprietary and part time law schools appeared churning out graduates ready to hang up a shingle. According to Jerold Auerbach, a social historian, the motivation behind the AALS’s work to regulate legal education was to drive out the profitable non-member proprietary law schools; eliminate Jews, African Americans, and immigrants from the legal profession; and create a profession made up of “leaders of society” who all looked alike and maintained the same values and ideology. In 1909, the ABA adopted a rule that only citizens of the United States could be admitted to the bar. The ABA, run by elite-educated lawyers, and the AALS, run by elite-educated scholars, had the same motivation: cleanse the legal profession of these newcomers who don’t look like us, don’t speak our language, and who eat strange smelling foods.
What the ABA and the AALS were trying to do was to create a unified bar that looked like the Nativist elites who controlled these organizations. They looked to the American Medical Association, which in 1910 issued its Flexner Report, that effectively closed down scores of medical colleges in the United States by condemning non-scientific teaching methods. Through the Flexner Report, the AMA cleansed itself of night, part time, and what it deemed inadequate facilities, decreasing significantly the number of medical students and thereby decreasing the number of doctors. By 1914, one needed a high school diploma to get into medical school; by 1916, one year of college; by 1918, two years. The ABA wanted something similar and thought they found it in the Carnegie Foundation.
The Carnegie Foundation’s Alfred Z. Reed published his first report “Training for the Public Profession of the Law” in 1921. Law like medicine was a public profession. However, Reed saw distinct kinds of law being taught in the various categories of law schools, and supported keeping at least three types of law schools to produce lawyers who could deliver different skills and services to different strata of clients. The university-based law schools would produce the judges to develop the law into what is should become. The intermediate schools were grooming another level of professional who was serving the needs of intermediate clients, and the proprietary night schools were furnishing lawyers to make the law accessible to “the plain people.”
The forces in the ABA and AALS supporting a unified bar prevented the Reed Report from going anywhere. People seemed offended by the idea of adopting the British system of a dual bar; it appeared colonial and anti-democratic. The entire profession needed to be uplifted and thus standardized.
Did that decision mean that we would never have adequate access to legal services for low and moderate income clients despite a growing need for access to justice in an evolving, complex society? As employment-based and statutory-based benefits became available to those who qualify, as courts mandated legal services to criminal defendants, as civil rights were identified yet needed to be enforced, did this decision back in the 1920s ensure that there would be a scarcity of lawyers to serve the needs of these people? Or did that decision to elevate the standards for legal education and the practice of law produce several generations of lawyers and leaders who dedicated their lives to using the law to democratize our society? Stay tuned.