Law School

Legal Education in America from the 1850s to the 1980s

Robert Stevens

• Publisher: The University of North Carolina Press
• Year: 2016
• ISBN:
  9781469620510
• Topic: Droit
• Subtopic: Éducation juridique

In this first general history of legal education, Stevens traces the development of law schools, the legal profession, and legal thought, relating their evolution to intellectual, political, and social trends. He describes how the establishment gained power over education after 1920 and how, in the past two decades, both students and the practicing profession have questioned this authority. He also examines the implications of the "legal revolution" and new opportunities for women and minorities.

Chapter One: Once Upon a Time

AT the time of the American Revolution, the preponderant influence on the organized part of the American legal profession was the English attorney and solicitor rather than the barrister. It was therefore natural that a system of apprenticeship coupled with a formal examination was the standard toward which leading lawyers in North America were striving at the time of independence.¹ Although only in urban areas could apprenticeship be described as compulsory in late colonial times, by 1783 few would have considered offering themselves as full-time attorneys without some period of apprenticeship.

Some colonies, however, had had a more stratified profession, and although in Virginia the separation of the upper and lower branches on a barrister-solicitor model collapsed after 1783, in the more prosperous northern states a graded bar was apparently still developing.² In these states, only after some years as a regular attorney could the lawyer be admitted as a barrister and practice before the supreme court of the state: still further experience was required for admission as “counselor.” Evidence of how the graded system worked is tenuous,³ but the requirements for basic practice were clear: for example, in Massachusetts it was five years of apprenticeship with a one-year reduction for college graduates.⁴ No doubt what was meant by apprenticeship varied considerably from an important educational experience to gross exploitation⁵ but, of the thirteen original states, only one had no prescribed period of training at all.⁶ Indeed, at the time of independence the American bar may have had an even firmer structure, at least in its requirements for preparation, than either branch of the legal profession in England.

Formalized apprenticeship, together with the severing of ties with England, also led to the establishment of private law schools. They were generally outgrowths of the law offices of practitioners who had shown themselves to be particularly skilled, or popular, as teachers.⁷ The most famous of these schools was the Litchfield Law School in Connecticut, formally established in 1784, which grew out of the teaching activities of Tapping Reeve during the revolutionary war. There, under the guidance of Reeve and James Gould, a course of studies based on Blackstone,⁸ but adapted to the American scene, attracted students from every state in the new nation—students who were to confirm the suspicion of many that lawyers had an inside track in running for public office in America.⁹ Litchfield claimed that it taught the law “as a science, and not merely nor principally as a mechanical business, nor as a collection of loose independent fragments.”¹⁰ The school, in this sense, was singularly important in developing a culture of American legal education. Other private schools —at the height of their popularity at the beginning of the nineteenth century there were a score such¹¹—also played a role, although none rivaled Litchfield.

The war with England had emphasized another indigenous development. For both social and geographical reasons, the American college had already developed in the eighteenth century not only on a somewhat wider social basis than Oxford and Cambridge, but also along rather broader intellectual lines. From an early stage, moreover, bar organizations gave preferential treatment to college graduates,¹² and, apparently in response, the American college was more receptive than English universities had been to the study of the common law. There had been lectures involving politics, civil government, and international law even in the colonial period, and the need to provide some formal training for the legal profession after the Revolution accelerated that trend, an acceleration made possible by the rapid growth in the number of colleges after the Revolution.¹³

The title of first “law professor” properly belongs to Jefferson’s law preceptor, George Wythe, who was appointed professor of law and police at William and Mary in 1779.¹⁴ After that, chairs in law at the colleges expanded rapidly.¹⁵ Exactly what these professors achieved is far from certain. Some were appointed for political rather than intellectual reasons. Some appear to have done little teaching and to have had little impact. Some followed the academic model that President Ezra Stiles of Yale had set out in 1777 in justification of teaching law in the colleges: “It is scarcely possible to enslave a Republic where the Body of the People are Civilians, well instructed in their Laws, Rights and Liberties.”¹⁶ James Kent’s approach at Columbia, however, was more professional in content and, indeed, his lectures were the basis for his influential Commentaries. Somewhere between the two were the ill-fated efforts by David Hoffman to develop a seven-year program at the University of Maryland after 1812¹⁷ and of Benjamin Butler, Jackson’s attorney general, who developed an extensive plan for a law faculty at New York University in 1835.¹⁸ More successful were the vocational efforts of Isaac Parker, chief justice of Massachusetts, the first appointee (1815) under the Royall bequest at Harvard,¹⁹ although success really came only with the establishment of a law school in 1817. It is arguable that the most successful effort at liberal law teaching in colleges was Jefferson’s University of Virginia, founded in 1825. Law teaching there was seen as an integral part of the undergraduate curriculum, designed to form the statesman, legislator, and judge no doubt of the appropriate Whig outlook. Although there were cutbacks almost immediately at Virginia, the “Southern tradition” of law teaching was, in general, broader than the north’s.²⁰

The truth, however, is that the overall efforts by the colleges to develop law as a scholarly study were not a success. Professorships frequently lapsed or remained sinecures, and serious professional training took place at the private law schools like Litchfield.²¹ In a very real sense the dichotomy between the teaching of law as a liberal and liberating study and the teaching of law as a technical and professional study was already established.

In the early 1820s, a significant development occurred as far as institutional law teaching was concerned. The colleges began to provide an umbrella under which the private law schools might find shelter. The private law schools were interested in the affiliation largely because it gave prestige and because, in most states, only universities were empowered to give degrees. Why the universities were interested in the arrangement is less clear.²² Perhaps it gave them greater influence among that powerful local elite—the lawyers. Perhaps the lawyers thought the connection would protect them from attack, or perhaps the profession and the colleges had a mutual interest in thwarting Jacksonian Democracy. The arrangements certainly cost the universities nothing. There was no hint in any of the links at this time that the law schools should be anything but self-financing.²³ Yale absorbed a local private law school in 1824 by listing the students in its catalog and appointing the “owner” of the school, Judge David Daggett, to the vacant professorship of law.²⁴ Harvard reorganized its law offerings in 1829, bringing in Joseph Story for prestige²⁵ and John Ashmun—from the Northampton Law School— to provide students.²⁶ When Tulane wanted to establish a law school in 1847, it absorbed the Louisiana Law School, run by the Swedish scholar, Gustavus Smith.²⁷ The University of North Carolina had already made a similar move.²⁸

These mergers, which might be thought to have brought together the best in “academic” and “practical” law, seemed to bode well for established institutions. From 1820 onward, however, the fledgling law schools, like the fledgling medical schools, and, to a lesser extent, the colleges and universities themselves were under pressures, conveniently known as Jacksonian Democracy, which were to prevent what many were later to call “progress.”

During the first two decades of the Republic the status of the profession had in fact been enhanced. The demise of the royal governors and colonial (sometimes expatriate) judges, together with the collapse of other elite groups, and the inevitable rise in importance of the supreme courts in each of the states, coupled with the coming into being of the Supreme Court in Washington, emphasized the importance of the legal profession in the country’s government. Lawyers were catapulted into a political and social prominence that the profession had never enjoyed in England, with the possible exception of isolated periods in the battle between the Stuarts and the Parliamentarians in the seventeenth century. It is true that, even in these early postrevolutionary years, there was evidence of hostility toward lawyers as there was to members of other professions.²⁹ Nevertheless, in his observations of American society made in 1831 and 1832, Alexis de Tocqueville could express the views that have now become truisms—that the “aristocracy of America occupies the judicial bench and bar”³⁰ and that “scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.”³¹

Yet generalizations about the legal profession and the role of law in the first half of the nineteenth century are hard to make. The generalizations are not made any easier by the recent trend toward distorting the role of law and lawyers in England during the eighteenth and early nineteenth centuries.³² The tradition of judicial lawmaking that Mansfield emphasized in England was kept vigorous and active during the latter part of the eighteenth century and the early part of the nineteenth as English judges wrestled with the impact of the Industrial Revolution and developed bold new doctrines in commercial matters.³³ Indeed it was only after the Reform Act of 1832 and the rapid acceptance of utilitarian concepts and assumptions that legal formalism began to take a vise-like hold on English legal thought.³⁴ The style of many American state courts after the Revolution was surprisingly similar to the behavior of judges in Westminster Hall, and differences may be attributed at least as much to the varying pace of social and economic change as to the departure of the British. London was still seen by American lawyers, at least in the former colonies in the East, as the natural hub of legal thought and model for judicial behavior.

Such considerations should be borne in mind as one approaches the traditional interpretation of the rise and fall of the first American legal profession. The tone of the early studies of the legal profession ...