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Effects of legal education and politics on each other in the United States and the possibility of governmental reform through legal education reform

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Effects of legal education and politics on each other in the United States and the possibility of governmental reform through legal education reform
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Spesshardt, Philip Edward
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English
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v, 268 leaves : ; 28 cm

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Subjects / Keywords:
Since 1980 ( fast )
Law -- Study and teaching -- Philosophy -- United States ( lcsh )
Law -- Study and teaching -- Philosophy ( fast )
Politics and government ( fast )
Politics and government -- United States -- 1980- ( lcsh )
United States ( fast )
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bibliography ( marcgt )
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Includes bibliographical references.
General Note:
Submitted in partial fulfillment of the requirements for the degree, Master of Arts, Department of Political Science.
Statement of Responsibility:
by Philip Edward Spesshardt.

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University of Colorado Denver
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Full Text
EFFECTS OF LEGAL EDUCATION AND
POLITICS ON EACH OTHER IN THE UNITED
STATES AND THE POSSIBILITY OF
GOVERNMENTAL REFORM THROUGH LEGAL
EDUCATION REFORM
by'
Philip Edward Spesshardt
B.A., Colorado State University, 1989
A thesis submitted to the
Faculty of the Graduate School of the
University of Colorado in partial fulfillment
of the requirements for the degree of
Master of Arts
Department of Political Science
1991


(C) 1991 by Philip Edward Spesshardt
All rights reserved.


This thesis for the Master of Arts
degree by
Philip Edward Spesshardt
has been approved for the
Department of
Political Science
by


Spesshardt, Philip Edward (M.A., Political Science)
Effects of Legal Education and Politics on Each Other in the
United;States and the Possibility of Governmental
Reform Through Legal Education Reform
Thesis directed by Assistant Professor Glenn T. Morris
One of the favorite pastimes of political scientists is
offering programs for reform in the government of the United
States. The calls for governmental reform often center around the
criticisms that the government of the modern United States has
become too responsive to special interests. Political scientists
tend to attempt directly reforming the government of the United
'i.
States without any concern about the many different factors that
play a role in governmental decisions. For instance, calls for
]
political reform in the United States tend to ignore the role that
legal education may play in shaping governmental policies. The
legal profession is the profession that is represented in the
largest majority in the government of the United States. Members
of the legal profession make up close to fifty percent of the
[ ,
; ]
members of. Congress with several other occupations being
represented by the other fifty percent of Congress.
Legal, education, therefore, does play some role in helping to
shape the decisions of the United States government and it may be
possible to partially restructure the government of the United


States by reforming legal education. This work is an attempt to
raise an awareness that there are indirect means by which to reform
government. The work, therefore, concerns itself with discussing
criticisms of legal education, effects of politics on legal
I
education,, iand effects of legal education on politics. In
addition, the work looks at three different suggested reforms for
legal education and attempts to seek the possible political
consequences of these reforms. Finally, a new reform movement is
suggested for legal education which contains both elements of past
reform movements and new suggestions with the overall interest
being that of focusing on changing government by being able to
encourage more minority and female participation in governmental
offices in;the United States. While government may not be able to
be completely reformed through reforms in legal education, some
changes will occur due to the ability to bring more diverse
interests into play in the arena of government.
The form and content of this abstract are approved. I recommend
its publication.
iv
I


CONTENTS
I
CHAPTER |
I
1. INTRODUCTION.................... ..........................1
Notes.....................................................13
2. FROM APPRENTICESHIP TO LAW SCHOOl..........................15
Apprenticeship............................................17
Early Law Schools and Apprenticeship....................22
The Modern American Law School........................32
Notes.....................................................50
3. CRITICISMS OF MODERN LAW SCHOOLS.......................55
Case [Method..............................................57
i
Socratic Method.........................................62
Practical Knowledge.....................................69
Notes.....................................................78
4. EFFECtS OF POLITICS ON LEGAL EDUCATION.....................81
Notes....................................................108
5. EFFECTS OF LEGAL EDUCATION ON POLITICS ....................112
Notes;....................................................146
6. REFORM IN LEGAL EDUCATION AND POSSIBLE
POLITICAL RAMIFICATIONS ...........................150
Notes....................................................210
7. A MORE PRACTICAL APPROACH TO REFORM
IN LEGAL EDUCATION........................................214
Notes....................................................253
8. CONCLUSION ................................................255
LIST OF REFERENCES............................................264
v


CHAPTER 1
INTRODUCTION
n
j
Writing]about his experiences, over a nine-month period that
| i
began in May! of 1831, with the American concept of democracy,
i L i.
Alexis De toequeville wrote, "Scarcely any political question
; i i
arises in the United States which is not resolved, sooner or later,
into a judicial question." (De Toequeville 1984, 126J.1 De
i.; (
Toequevillejalso pointed out that,
As the|lawyers form the only enlightened class whom the people
do not;mistrust, they are naturally called upon to occupy most
of the|public stations. They fill the legislative assemblies,
and are:at the head of the administration; they consequently
exercise a powerful influence upon the formation of the law,
and upop its execution. (De Toequeville 1984, 126).2
While moderrjf.American lawyers may still occupy a large number of
I
public positions and still exercise a strong influence on the
formation of | laws, it is less clear that lawyers are trusted by the
I
American public at large. In fact, it is questionable as to
i "i
| ,i
whether attorneys have ever truly been considered to be trust-
i ''
worthy. "Distrust and hatred of lawyers have long been old
' i ;
characteristic themes of English and American life and cannot be
' j:|
blamed on Watergate. The habit of blaming lawyers for the troubles
i .
of society is' an ancient one." (Forer 1975, 202).^


' ;.jI
Why have lawyers been the object for, at times, intense hatred
from the common people of England and America? Perhaps attorneys
have experienced hatred because they are often seen as being the
agents of th;e enemies of society. Attorneys are the protectors of
alleged criminals and powerful corporations. "Lawyers as agents
for wealthy.corporations and individuals devise the tax laws and
interpret loopholes that permit accumulations of great fortunes and
special privileges." (Forer 1975, 292). Lawyers are the ones who
are called'Upon by corporations to resist making payments on claims
I I;
of injury which only helps to increase the general animosity felt
i ii
-I 'i1 '
towards lawyers by the public at large within the United States.
In short, many people simply believe that the lawyer becomes
'ijji
involved only in cases that involve large sums of money. In a
survey conducted for an American Bar Association report on legal
needs, the special committee found, in part:
More than half of the respondents answering each question
expressed the view that the legal system is set up to deal
with problems involving large sums of money, that the system
favors ;the rich and powerful, and that lawyers work harder for
rich and important clients. Although these views are
pronounced among minorities, the poor, and the ill-educated,
they are by no means limited to these groups. In a few
instances, indeed, the more affluent and better educated are
more cynical than those lower on the ..socioeconomic scale.
(American Bar Association 1978, 38).
It appears,; through the study conducted by a special committee set
up by the A;.lB.A. and produced in 1978, that many Americans hold a
cynical view;about the ability of the American legal system to
produce just :results. The American system of justice appears to
I
2


I
I
lv
allow only those individuals who already have significant amounts
of power and1 money to become even more powerful and American
attorneys do,,little if anything to change the cynical minds of the
American public.
The modern American law school has done very little to change
i'
the opinion 'bf the public that law is not just a game for rich
? individuals;.^: When highly visible and well-known attorneys such as
i i
Roy Grutman 4f New York City, and Gerry Spence of Jackson, Wyoming,
criticize the role of American colleges of law, they criticize law
schools in tljie same manner as many American citizens criticize
lawyers in general. Both Spence and Grutman see American law
schools as doing nothing more than providing attorneys who are
,'1.
really prepared to fight for corporate interests. Grutman and
Spence have faced off against each other in cases throughout their
careers, yet! they both seem to be in agreement that the insurance
l:
companies of: America are the largest nemeses to the distribution of
justice andfhat American law schools are merely designed to ensure
that the insurance corporations of America receive the best
students coming out of the schools.
We are, ibold there are too many lawyers out there scrambling
over each other to make a dollar....Yet today there are not
too many! lawyers, but too fewtoo few of the right kind; too
few whojjare trained as fighters; too few who will represent
the people....Skillfully, designedly, our young have made
themselves salable to corporate America as replacement parts
for the!illegal machine that grinds away in corporate law firms
at lushjhourly rates. (Spence 1989, 38-39).
I .
3


Law schooi!si,!f then, have become nothing more than supermarkets for
corporate America to make trips to in order to replenish lost stock
or to fill the cupboards a little fuller for a rainy day. The law
schools of,: the American nation are not exactly unaccustomed to
:S
facing criticism from within the legal profession and outside of
the legal profession. During the latter half of the twentieth
i'
century, the!! bulk of criticism leveled at the American law school
, i-
system has centered on a perceived lack of American law schools in
providing lawyers that defend the rights of individual citizens
: i!,
rather than;'offering their services to corporate America. The
perceived, lack of law schools in providing "people's lawyers" has
helped lead' to a dislike of attorneys among the general population
of the United States. Alexis De Tocqueville wrote:
The people in democratic states do not mistrust the members of
the legal profession, because it is known that they are
interested to serve the popular cause; and the people listen
to them'without irritation, because they do not attribute to
them any sinister designs. The lawyers do not, indeed, wish
to overthrow the institutions of democracy, but they
constantly endeavor to turn it away from its real direction by
means,:which are foreign to its nature. Lawyers belong to the
people!by birth and interest, and to the aristocracy by habit
and taste; they may be looked upon as the connecting link of
the two;:great classes of society. (De Tocqueville 1984,
125)/
Certainly,, the experience of De Tocqueville does not necessarily
hold true to^ay. There are many individuals who will be quick to
tell you tha't lawyers no longer link the people and the aris-
tocracy, but! because of their training in law school, lawyers are
' ' ; !l
I
now, for the1,most part, members of and advocates for the
4


aristocracy':.;; The aristocracy in modern America consists of
corporate America and is supported by both lawyers and law schools.
I i1'-
When American law schools have been given a chance to make
some changes;.1 that may give them the ability to provide attorneys
that are mor;e apt to use their services for the people instead of
i'
for corporate America, those schools have not seized upon the
opportunity.' In the twentieth century, law schools have fallen
! 11 _
slave to teaching students through case method rather than through
..I'1
any use of. practical experience. The impact of the use of case
:. i.
method overpractical experience has led to the graduation of
: 'i-
students from law schools who are essentially unprepared to be
lawyer advocates. The law student of the twentieth century is
ill-prepared,:to defend individuals in a court of law.
; i'1
Lawyers!, sometimes complain that the teaching of many courses
in lalw! school is not practical enoughthat it leaves the
student'jrwith no realistic comprehension of the legal problems
a young j; lawyer faces in beginning the practicethat it
prepares the student for a large corporate practice rather
than for the representation of individuals... (American Bar
Association 1978, 62).
:!
Law schools,jby basing teaching of the law upon the case method, at
i
the expense, ,of any intensive practical training, now seem to
produce graduates who are so ill-prepared for individual practice
that these, graduates become a commodity for large corporate law
; ]
firms that have the time to train their recruits with practical
,i
experience, i/The important thing to remember, however, is that
. I
corporate America tends to use attorneys in the role of advisors
5


rather than^as advocates. The majority of work done by attorneys
v,'-
for corporate America does not take place within the courtrooms of
;!i'
the United;States but behind closed doors in meetings with
officials ofycorporate America. Since the majority of corporate
legal work does not occur within the courtroom, it is not vital
that attorneys working in the corporate sector have practical
: ;ii:
courtroom experience. By teaching students through, the case method
system, it"appears that the modern American law school is designed
to provide; the best and the brightest of their graduates to advise
corporate America rather than to represent individuals.
The veijiy nature of law and politics intertwines the two with
each other.;; In the American system law emanates through the
; I1
political process and, in turn, law helps to control the political
process of'the United States. The United States Constitution is
i1
the product of the political process and, in turn, the Constitution
places some limitations upon the political process of the United
1 .
States. Lawyers, in the American system, are a very integral part
of ensuring that the political process of the United States follows
. ;i
the laws of the U.S. It is up to lawyers to ensure that the
federal government and state governments do not overstep the
restrictions'! placed upon them by the United States Constitution and
the various'isitate constitutions. The attorneys of America are,
therefore, :supposed to be representatives to individuals and make
sure that government does not suppress any individual. In other
words, although never stated explicitly in the United States
. I.
Vi
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6


Constitution attorneys are theoretically supposed to be another
check on the legislative and executive branches of American
government.. The Sixth Amendment to the United States Constitution
provides that defendants in criminal prosecutions shall be able to
have the assistance of counsel in order to prevent the government
from abridging Constitutionally guaranteed rights to an individual
solely because that person was accused of a criminal action.
Meanwhile, the Constitution is silent on the use of attorneys in
any other case than a criminal one. The lawyer in the American
system was,, at least originally, meant to play the role of an
advocate for the people.
Of course, law schools still provide attorneys who participate
in the role of lawyer advocate. Individuals also still graduate
from law schools who go on to become trial lawyers. The problem
exists, however, that for the most part, modern lawyer advocates
are no longer the best and the brightest of individuals. The
modern law school system of the United States is simply not geared
towards providing the legal profession with attorneys who know how
to conduct themselves with clients and in the courtroom. Those
students from law schools who would like to become practicing trial
attorneys are' at an extreme disadvantage in attempting to practice
this craft since the law schools of America continue to use case
method study,'to teach law students how to think like an attorney.
1:1.
The modern American law school has created "...too many
intellectual mechanics who, like their professors, love the more
7


I
mathematical', processes of the law and little of its human side..."
i.
9
(Spence 1989, 45). The types of individuals created by the modern
American law, school are, therefore, better prepared to exist within
li
the cold world of representing corporations rather than
individuals.
While it is questionable as to whether law schools are
completely at fault for the demise of the lawyer advocate, it seems
that a change in the law schools may help to increase both the
numbers and talent of attorneys who represent the individuals of
the United .States. It is the current law school system that is the
tributary to'the larger river of the legal profession. If the
front end o1f;the legal profession is changed to produce attorneys
skilled in defending citizens against governmental action that
oversteps explicit Constitutional bonds, the entire legal
profession cain eventually be changed to such an extent as to
provide that the profession works as a check on governmental action
as a whole. ; In turn, the return of lawyer advocacy may actually
help to produce governmental action that is aimed at protecting the
American citizen from monied interests. The return of the lawyer
advocate may also raise the confidence of the poor, moderate-income
people and minorities towards attorneys since the poor, moderate-
income people and minorities do not hold lawyers in a high regard.
"They feel more strongly than others that lawyers don't really try
8


to understand what the client wants and don't care whether the
client understands what needs to be done and why." (American Bar
Association 1978, 12).^
This wbrk is concerned about the effects on the political
world of the United States of the legal education system of
America. There appears to be a general lack of study that has been
devoted to the effects of legal education on politics. To be sure,
legal education is not the only aspect of American society which
shapes the political climate of the United States, but it cannot be
denied that several governmental officials in the United States
have a law degree. The 102nd session of the Congress of the United
States has 244 individuals who are lawyers out of a total of 535
members. The legal training of an individual helps to shape the
decisions made by that person. Legal education, therefore, plays a
role in shaping decisions of government. The criticisms of lawyers
and politicians, not surprisingly, are very similar in that those
criticisms are based upon the perception that neither profession is
I
overly responsive to the desires of the common American citizen.
The poor do not become attorneys, rather, elite elements of
American society go on to become attorneys. By the same token,
American government is not made up of individuals who share a
similar background to the common American citizen because so many
governmentalOfficials are lawyers who have come from a wealthier,
and more elite, position in the society of the United States.
9


Despite1 the fact that the majority of individuals who gain the
status of bding representatives for the people of the United States
are lawyers, movements designed to provide for governmental reform
have not seriously discussed the possibility of reforming govern-
ment by reforming legal education. At the same time,.individuals
with aspirations for reforming legal education tend not to address
the possible effects that would occur in the decisions made by
American government. There is no suggestion that the possibility
of reforming government by reforming legal education has never
occurred, but there certainly is not a proliferation of work
devoted to changing government by changing legal education.
Jerome Glennon contends, however, that some of the Legal Realists
of the 1920s and 1930s movement seem to suggest that changes in
legal education can change government. Government can be reformed
through a reformation program that begins in the American law
school. This work is designed to foster debate on the overall
ability to reform American government by reforming legal education
in the United States.
There is little doubt that law and politics are intertwined
since law emanates from a political process. What must be
discussed, however, is how legal education and governmental
decisions affect one another. By being able to understand that
legal education and politics have effects on one another, it can be
understood that reform in legal education can also have the effect
of creating reform in the government of the United States. Since
10


this work is concentrating on the ability to stimulate governmental
reform through legal education reform, it is vital to provide the
reader with/a brief history of American legal training that has
changed and .grown alongside the United States itself. It then
becomes important to look at some of the major criticisms about the
current model of legal education used in the United States because
the reform movements which have existed in modern American legal
education attempt to rectify those criticisms. In order to show
that politics and legal education have effects on each other in the
United States it is important to discuss the effects that politics
have had on;legal education, and then attempt to show that legal
education plays a role in shaping governmental decisions of the
United State's. After showing that legal education does help to
shape political decisionsalong with many other factors that shape
' i 1
governmental decisions which are not thoroughly discussed in this
workthe next step is to look at some of the suggestions for
reform in legal education. By no means does this work examine
every reform movement in legal education, but it does discuss
possible political implications of those reform movements which is
something that has not been discussed strongly by those movements.
Finally, a program for reform in legal education is outlined with
the overall.Intent of making changes in the decisions made by
government. The main goal throughout this work is to form an
awareness in .the reader that legal education helps to shape
decisions of political officials in the United States. This work
11


should be looked at as an instrument for debate. By no means is it
suggested that the program for reform in legal education outlined
in the work is perfect in every aspect. The real purpose for
discussing the effects of legal education and politics on each
other is to raise an awareness among the field of political science
and society as a whole that there may be indirect ways by which to
stimulate change in the governmental structure of the United
States. In particular, the author has always been extremely
critical of calls for direct reform in the Judicial Branch of
American government which call for making Supreme Court Justices
directly responsive to the ever, rapidly changing, face of public
opinion within the United States. Calls for reform that wish to
make Supreme; Court seats elected positions certainly run contrary
to warnings laid out by the founding fathers about having the
judiciary insulated from public opinion since having a judiciary
that was not insulated from such opinion would lead to "tyranny of
the masses."! The desire of the author is to foster debate among
individuals Who seek changes in American government that there are
several means by which government can be changed without directly
forcing reforms at the governmental level. It is hoped, at the
very least, that more study will be done as to the possibility of
I '
reforming government by reforming legal education since many
governmental,officials were originally trained to be attorneys.
12


Notes
^ Here, De Tocqueville speaks of how much control the legal
profession.has over the people because of the many public officials
who are from the legal profession. Although based upon his
experiences in 1831, the experience of De Tocqueville certainly
still holds true today as to the number of lawyers who hold public
office.
2
Many individuals believe that after the Watergate scandal,
attorneys saw an incredible loss in their prestige among the public
that has made the citizens of America suspicious of attorneys in
general. Attorneys, however, still exercise a very strong
influence over government by the fact that many legislators are or
have been trained to be lawyers. Obviously some things have not
changed greatly since 1831.
^ Forer. refers to the fact that lawyers have not always been
well-respect!e'd by making reference to the 1881 rebellion of Wat
Tyler. The, rebellion of Wat Tyler resulted in the killing of many
lawyers by an angry public that took out their frustrations on the
attorneys because they were visible instruments of hated law-
enforcing policies.
k
The most common loss of respect for attorneys is that of
being perceived as being mere puppets for the needs and wishes of
wealthy clients. With corporations employing more and more
attorneys, it is likely that attorneys will continue to be the
scorn of the' public at large.
^ A special committee was set up by the American Bar
Association in order to determine whether legal services were
readily available to the members of the public at large or not.
The committee;,was established in 1971 and a discussion draft of the
Report was the subject of a Northwestern University School of Law
Conference on June 10 and 11, 1977.
^ Spence believes that the era of "too many lawyers" is a
general statement that is simply not true. What America really has
are too many lawyers who are more interested in making money and
being successful rather than being committed to a just cause.
^ The real importance of lawyers, according to De
Tocqueville, is that they are a protection against overzealous
13


democracy.1[Lawyers develop habits of order and taste for
formalities jtlhat, as De Tocqueville sees it, make them unreceptive
to public opinion that can change all too quickly and damage a
country if constantly changing public sentiment is allowed to rule
the country:'' In short, attorneys help to protect against, what
James Madisoijij called, the tyranny of the masses.
8 'vi-
The |S:pecial Committee to Survey Legal Needs hoped that
their reportjiwould help to serve legal education by being used by
legal education to better prepare students as to what they could
expect in private practice and develop a better understanding of
how the legal system works.
9 -Vi'
Although having once worked as a corporateattorney, Spence
has shown a [growing concern that law schools are geared solely
towards preparing students for future corporate practice rather
than providing attorneys who can and will represent individuals.
In particular:, Spence fears the power of the insurance industry
over the individual.
' i i,
^ In' this instance the Special Committee to Survey Legal
Needs is spe'aking about female minorities in particular.

I
I !
I
14


CHAPTER 2
FROM APPRENTICESHIP TO LAW SCHOOL
The modern American law school system has lasted virtually
unchanged in form for over a century now. Four years of
undergraduate and three years of law school work make up the modern
American schooling of lawyers. Within the three years that a
student attends law school in the United States, the student is
taught to "think like a lawyer" through the use of case method and
Socratic teaching. Case method teaching is really a misnamed
procedure of how students study the law in the United States, since
the bulk of case method study revolves around discovering how the
court (in particular, appellate courts) arrived at the finding in
the case and.very little attention is paid to how and why the case
ever came before a court. The Socratic method used by law
professors more closely resembles the tactics of a Marine Drill
Sergeant thdn it does to teaching. The goal of the Socratic method
in law school is essentially the same as that of the Marine Drill
Sergeant. The Socratic method, as employed by the modern law
school, expects the student to learn how to practice law by
subjecting the student to public humiliation, sarcasm and
ridicule.1 The teaching methods of law schools have come under
attack, particularly from the early 1970s onward, that question the


hj;
;iii
:l ij
overall use
lilness of those methods, yet law schools seem resistant
i' I'!! ]'
to any strong reform.
I;!:'
Law school, in and of itself, is basically a very new concept
!' hi"
in how to prepare individuals for the legal profession. The method
i'i'r
of study forj'i'attorneys in the United States originally came from
England. "America inherited from England the tradition that
practicing iiawyers and judges should be responsible for legal
education.VIIHWallach 1971, 164).2 The belief that future
; |;j]
attorneys Should be taught about being a lawyer by practicing
' ii'i
attorneys and judges slowly gave way to the use of universities for
i:|r
training future attorneys. By the twentieth century, the
: \ | If
university .had taken over sole responsibility for training future
.'h
attorneys dbqut the practice of law.
It is ..'important to remember that the process of becoming an
attorney has;jjbeen a slowly evolving process of reform within the
\l\'-
United State^. Each step of reform within legal education has been
designed ihi |attempts to provide attorneys who are more knowl-
edgeable abcjilit their craft. Whether the slow reform movements in
legal education have actually produced better attorneys or not is a
question that is wide open for debate. The one thing that is
fi;
certain is that the type of attorneys turned out by American legal
education has; changed over time from advocate to counselor. In
1 i-'l'
order to better understand how the types of attorneys produced by
M
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M
I I*
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16


American legal education have changed, it is important to look at
the history;,in a fairly brief overview, of legal education in the
United States.
Apprenticeship
In the United States, prior to the American Revolution, the
influence for the American legal profession came primarily from the
English attorney and solicitor, although there have also been
European and Roman influences. "It was therefore natural that a
system of apprenticeship coupled with a formal examination was the
l
standard toward which leading lawyers in North America were
; I 3
striving at, the time of independence." (Stevens 1983, 3). While
apprenticeship was not a strict requirement for becoming a
full-time attorney in the late days of America as a colony of Great
Britain, it was not until after the American Revolution that
apprenticeship became virtually compulsory for any individual who
wished to become a full-time practicing attorney.
Throughout the first half of the nineteenth century the
practice of training attorneys through apprenticeship was the
widely accepted mode of training attorneys even though law schools
did exist in the United States at the time. Individuals who wished
to become attorneys served an apprenticeship in the office of a
practicing attorney. One of the reasons for the proliferation of
17



the apprenticeship training of attorneys was simply the fact that
i;'|
there was arelatively low number of individuals wishing to be
trained as lawyers. Through the apprenticeship program of early
American legal education, the student received a legal education
;! ii,
and the skills necessary to become a practicing attorney by copying
i.
legal documents, serving process papers for the attorney, and some
individual :s£udy of textbooks on the law.
Apprenticeship was by no means a quick step for an individual
to gain admittance to the Bar. The original thirteen states, with
the exception of Virginia, all had some form of minimal time
. i 'i
requirement tj'o be met by apprentices in their training before they
could enter [basic practice. Virginia, during the early period of
the United States, required only that an individual pass a Bar
examination I;tn order to become a practicing attorney. It is less
, i : ;
readily clear as to whether or not other states that were later
:/H:'
admitted to 't-he United States had minimum time requirements placed
upon the service of apprenticeship before students were admitted to
the Bar. in^states later admitted to the United States, the
."H
apprenticeship process was, however, still a rather long process.
In a study published in Wisconsin in 1898, for example, the careers
of 464 eminerjit Wisconsin lawyers were examined where the age for
admission tdjjthe state Bar could be determined for 385 of those
'iii
lawyers. The Wisconsin study found that "for the 216 lawyers who
'1'
'ii
'iii
18


used apprenticeship as the main path to the bar, the mean age at
1 !'ii
the time of'admission to practice is 25.4 years (the median is
24)... (Johnson 1978, 52).4
i.'.
The system of apprenticeship for legal training in the
1' i:
: ,'l.'
nineteenth: century was a fairly long process because it also
: : ii
involved solitary study of legal textbooks along with the practical
experience of the daily life of a practicing lawyer. Solitary
, .;ii.
study for apprentices included reading the legal collections by
Blackstone, observation of court proceedings, and some type of
service as ia; court clerk. Not all of the .solitary study of
apprentices occurred under the watchful eye of a practicing
attorney arid^ thus, the overall help of solitary study for
. i,
apprentices is the subject of uncertainty.
J'1
, i ii. [ 'I
Apprenticeship in the nineteenth century was by no means a
perfect fOrLim for legal training. The training of an apprentice
rested solely on the shoulders of the practicing attorney.
Depending onjthe ability of the teaching attorney, the apprentice
could expect !i to learn a great deal about the legal process or very
V
little. If the apprentice worked in the office of an attorney who

was willing to take the time to provide explanations to the
, 'ii
apprentice albout various legal problems, the legal education
received was^likely to be more than sufficient to ensure that the
: :;Ji
apprentice .would be able to become a fully competent attorney.
; i-:j ]
: I;
Should an apprentice work for an attorney unwilling to explain
legal problems, that apprentice would be lacking in his overall


understanding of legal problems. The apprentice system did very
little to prbvide the public with only the best attorneys. The
I i'i
( IJ.j
apprentice! wlpo came from the office of a very good attorney and who
: ',i:|
was willing,!!to explain complex problems to the apprentice would
generally become a very competent attorney. All too often,
however, the1,; nineteenth century apprentice did not get the
instructionfheeded to become the most competent lawyer possible.
' '! !i'i
One of [the largest problems with the apprentice system was the
very nature iof apprenticeship itself. By being trained in a
1 Si-1
lawyer's offjice, the apprentice was never sure as to the order in
which various legal cases would be presented to learn from.
' 1 ;'i!
;.,i
One of;the more persistent complaints of students in law
offices^was the absence of any overall design to what they
studied;: To some extent that problem could be alleviated by
the explanations of the supervising attorney but the
reminiscences of law students suggest that far too often the
lawyer ;,Was too busy or too indifferent to,.provide the
explanations needed. (Johnson 1978, 52).
!
!! '
There was no!logical order by which cases came to attorneys who had
l.
apprentices ijn their offices. In the period of any single day an
' v
apprentice would be called upon to do a multitude of various
' '1 i
different I'ejg&l tasks. By being forced to perform varying legal
i ,
tasks, due to the very nature of the law office, the apprentice
found it difficult to gain a solid grasp of one particular aspect
i!::
of the law before moving on to another aspect. Sometimes the
i, i-i.
IV
apprentice was saddled with complex legal issues, under the
apprentice system, that the student was not ready to handle. The
20


apprenticeship program simply did not allow the student to be
presented with complex and difficult legal issues in any logical
sequence. :
Along with the challenges facing apprenticeship for legal
i i
education ofi presenting legal issues in a logical manner, the
system also'faced another problem in the nineteenth century that
i i i ''
had the result of preventing students from gaining a broad
i
understanding of the legal profession. "...The trend toward legal
specialization in the nineteenth century began to detract from the
value of apprenticeship." (Johnson 1978, 52).6 Apprentices
working in the office of an attorney specializing in tax law would
l, .
have no contact with legal issues involving other aspects of the
law. While the apprentice working in an attorney's office that
: i:
specialized in a particular field of law could become well versed
and very competent in that field, the apprentice would lack a
i;
general understanding of law that could show the student that
' 1'
answers to legal problems in one field of the law could help to
; i i
develop answers to legal problems in other fields of the law.
The apprenticeship system for legal training was a time
honored tradition that the United States borrowed from England, and
i
that lasted throughout the nineteenth century. The system,
1 ,,
however, wasjnot perfect. By the latter half of the nineteenth
li
century, the^apprenticeship program began to slowly fall out of
1,
favor as thejprinciple mode by which future attorneys were trained.
. j i
Apprenticeship was, however, still the way by which to become an
21


attorney throughout the nineteenth century but changes were looming
on the horizon for legal education that would eventually displace
apprenticeship as a proper tool for legal training. Whether or not
1 h;1'
the eventual
training was
elimination of the apprenticeship system for legal
a positive step is still something that j.s debated
> I !i
' M
since the apprenticeship system produced attorneys who, at least,
had practical experience in dealing with the legal system. Lawyers
emanating from the apprenticeship system knew how to conduct
!',:i
themselves in court.and were fairly well prepared for what to
ii:S
expect in private practice because the bulk of their learning was
relevant tO; the daily activities of an attorney.
Early Law Schools
and Apprenticeship
i
hir
Law schools are not an exclusive entity to the twentieth
'' M'i,
century. Thomas Jefferson gets the credit for being the first
M ii
individual^to establish a law school within the confines of a
! !:;i
university. ;jThe first school of law was established by Jefferson
at William, ;dhd Mary College in 1779. The fact that Jefferson
created the^first American law school should come with no surprise
M
given an understanding of the faith which he placed in education.
1 Ji
Jefferson felt that a republican form of government could not
Ml!
succeed if Citizens were not reasonably knowledgeable because they
could easilyj! be corrupted. Knowledge for the American citizen
hi!
!';!!
Ml
| 1
r i1
!hi
22


could be gained through education in schools and colleges with the
, l!;'i
colleges responsible for providing training in intelligence for
future leaders of America. Jefferson himself became an attorney
! 11 j!
after spending five years in apprenticeship under the tutelage of
George Wythe:,' In 1767 Jefferson was admitted to the Virginia Bar
and practiced for seven years before leaving the practice. It was
the view of Jefferson that the law was a powerful force that shaped
,.jl
the institutions and culture of the people and was, thus, an
important tool for social reform. Thomas Jefferson was not,
Ai
however, a ;large supporter of using the apprenticeship system to
, 111
train future!!attorneys. With the fact that Jefferson was not a
i'
strong supporter of apprenticeship he "...created a professorship
of law at William and Mary College in 1779, which marked the
,'iji
beginning bfi! professional legal education in American
universities;.:" (Cullison 1971, 267).7 The legal training at
r
William and,,Mary College, however, offered no serious challenge to
the long accepted system of training lawyers through
'! ii|i'
apprenticeship.
The eariy law schools of America did not displace the system
1 1::
of apprenticeship, rather law schools were used in conjunction with
apprenticeship to train future attorneys. The original law schools
were used as!l:an additional instrument by which to prepare an
individual tor legal practice. The practice of combining legal
education inji schools and with apprenticeship lasted well into the
nineteenth1:century. "The nineteenth-century law school was
23


originally'perceived as simply one additional pathway through which
i' l-ji.
a student might receive part of his legal preparation." (Johnson
8!
1978, 54).
students for
Law schools were not solely responsible for preparing
legal practice until the twentieth century. Study in
a law school i?was not even required in any form for an individual to
gain admission to the various state Bars from 1779 through the
nineteenth'century. In fact, a fairly large number of students
:; i'
relied solely on apprenticeship for their legal training even
: 111
though the:;study of law in a law school was considered to be
. 1 i!
another pathway by which an individual could enhance the legal
training received through apprenticeship.
'! | ;
The early law schools of America did, however, help to set the
" 1 | !|
stage for thfe current mode used for legal training today. Study in
'i'i'
law school was seen early on as a method by which to improve the
legal training of individuals. In the apprenticeship system,
individuals:
spent a good deal of time involving themselves in
! li
solitary study. The bulk of solitary study for apprentices
i]
consisted pH [studying the law textbook of Blackstone which was not
exactly ani;e'aisy treatise to fully understand. The early law school
' M,!
;1 l
was designed! to supplement the writings of Blackstone in order to
give the stpdent a better understanding of the law.
Even thje; citadel of the Harvard Law School, founded in
vi'i
1817, upon wfjich virtually all modern American law schools base
their study;ptograms, was not originally designed as a replacement
for the apprenticeship system. The 1817 version of the Harvard Law
, I'ir
24


i;h'
I1!
i 1 School, undqr the guiding hand of Chief Justice Isaac Parker, was
designed toipnly provide partial legal training of the individual-
"It was to:cover only part of the professional training of the
lawyer, leading practice to be acquired in the office..." (Wallach
9;
1971, 167). ji: The Harvard School of Law, as envisioned by Parker
did have onell'very important characteristic that would help to lead
to the formljof the modern American law school. Parker's plan for
the Harvard1 |Law School was that it should be a graduate school
where the average citizen was prevented from studying. The law
school at Hairvard was designed for the future law practitioner.
"in accordance with Parker's design, this professional instruction
was intended;: primarily--though not exclusivelyfor college
graduates.":\(Cullison 1971, 279).^ While not replacing the
system of apprenticeship for law study, the implemented Harvard
T'
program of: 1817 was clearly designed to provide training on a
professional'level. At this time, it was believed that part of the
professional!draining of a lawyer involved the use of general
: "l'ii
university;studies. During the period of Parker, law students were
allowed to:attend other lectures at Harvard that were not strictly
-i'
related to;t)pe technical aspects of the law. The use of general
studies in the training of lawyers would eventually lead to the
restructuring of the law program at Harvard and various other
: : .1
colleges whi|ch followed a model close to that of Parker's.
The rise of Jacksonian Democracy helped to change the face of
legal education in the colleges of the United States. The
i-i
25


I
I:',
democracy moyement of Andrew Jackson called for universal, publicly
. 1 !"
supported education and vocationalism. The movement had intense
il'
ramifications on the educational structure of the United States.
In addition;1! there was a growing impression that the law could be
I ;
learned thrqygh self education. The effects of the new movement on
the country;had a devastating toll on the recently created law
school at Harvard. The law school was in a desperate situation and
Parker resigned from his position of the Royall professorship in
ii
1827. The situation at Harvard continued to grow worse and it was
upon that note that Joseph Story took over the control of Harvard
in 1829.
Joseph 'Story set out to reorganize the law school at Harvard
and to get it back on its feet again. The reorganization of the
law school by Story was a stunning success that answered the
question as jto the value of general university studies in
relationship!to being required before law study could begin and
i 1'
their overall purpose to the professional training of lawyers.
r
"The spectacular success of his reorganization of the Harvard Law
School meant!that his answers to these questions would have wide
influence.," ;; (Cullison 1971, 280).11 The first step that Story
undertook iriihis reorganization of the Harvard Law School was to
eliminate the need for an entrance examination in order to gain
'I :
admittance! t!o the law school. The elimination of any type of
entrance examination had the effect of making a former college
education unnecessary in order to gain entrance to the law school
26


at Harvard. ,'jiStory also limited the opportunities for law students
to attend general study courses that were not related to the field
of law. It!]was felt by Story that general university courses
distracted::tfje law student and the attendance of general studies
courses by-law students was strongly discouraged. The law school
i 1 i
at Harvard:Was, thus, eliminated from teaching the subjects of
.Li'
natural lawjltheology, and ethics which belonged in other
v Hi
departments!of the university.
: j I 1 ; i
The Harvard Law School, as set up by Story, taught five
*. :|
courses that:] were designed to give the student a better
j'j!
understanding of the law itself rather than trying to discuss
philosophical questions about the law. The courses designed by
Story for tl^ie reorganized Harvard Law School were based upon the
law of nature, the law of nations, maritime and commercial law,
1 i ]
' :l
equity law* j.and the law of the United States Constitution. Out of
the five cdbr.ses offered in the 1829 version of the Harvard Law
j-;
School, ohi'y.ijone of the courses was not solely related to the law.
The study clothe law of nature was essentially the study of the
1 1 I
individual iias a societal member. The reorganization of the law
i !! j ;j
school at.Harvard had profound effects upon American law schools
and gave birth to the concept behind many of the courses seen in
= 'i ;j
the modern!American law school. "The traditional attitudes of
; |i i.'i]
,! ]:.|
American laiw^schools toward local law, legislation, and criminal
;i| I i1
law can all be traced to decisions made in the course of Story's
reorganization". (Cullison 1971, 282-283). Many of the changes in
1 H
;;h
i ]
' 1- r
27


[-1.
r i
11 '<
1 i|! j1
'
: .ill
legal education that came about under Story's tenure at Harvard
went unchallenged for almost a century but some of the changes made
by Story w,ete reformed again after the American Civil War.
Jacksonian Democracy also led to the relaxation of
'l (j' 1
requirements!1 for admittance to various state Bars. Some states
'' 'ilr
such as New:1 Hampshire went so far in their democratization of the
Bar that th^i; state permitted any citizen over twenty-one to gain
admittance, tip the Bar. Legal practice, under Jacksonian Democracy,
soon lost itiis sense of being a professional practice. Jacksonian
' 'l!1
Democracy had the effect of removing the concept that the law was a
learned profession. Only the strongest of law schools were able to
'i i
1 T;l
survive Jadksonian Democracy. The lowering of admission standards
'i \
' :i 'i:i
to the Bar;due to the beliefs of Jacksonian Democracy, had a very
| "in
negative effect on the political structure of the United States
that would !eventually lead to reform that would once again make law
( i |
a learned profession. During the strength of the Jacksonian
V |
Democracy movement "it was not difficult to trace a connection
between the'lexisting low standards of admission to the bar and the
existing corruption of judges and politicians." (Cullison 1971,
:'i I;
12 .!
203). The! .corruption may very well have occurred due to the
fact that ltii'is often easier to manipulate individuals who lack
! i!
a solid educational background. Another possible reason for the
i' 'i;i
existing corruption could be that the common class, searching for
, 'm
pleasures previously reserved for the elite class, was manipulated
by the elite]!iclass in a trade for realizing those pleasures. The
28


fi
existing corruption within the American system led to a resurgence .
' '!.!(
of interest I in upgrading the types of individuals who were admitted
to the Bar,.
J;
After twenty some years of having Jacksonian Democracy
lower the standards for admittance to state Bars, the United States
was ready for a change that would help to curb corruption among
judges and politicians. "Institutionalized legal education was
again showing signs of life by the 1850s." (Stevens 1983, 21).
13
The feeling]had begun to return that law was a profession for which
individuals!must be trained. It was not until after the Civil War,
however, that the reinstitutionalization of legal education really
'i;|||
began to seegrowth.
The period following the Civil War saw an era in which a
campaign began to take place to return to a system that combined
: ;!!
general education and legal education. The movement in legal
' i '!i
education afiter the Civil War was not designed to disassemble the
; |:i
complete structure of legal education that had been set out at
ij
Harvard under Story. There was no real attempt to change the
; T:ii'
concept that|Story had about preventing the intermingling of the
law with general studies. The post Civil War movement was a
continuation! of the movement that was begun in the 1850s in which a
general education was felt to be needed before an individual could
study the law. One of the leading figures of the movement towards
: j
reinstitutipinalization of the legal education system was Theodore
W. Dwight of; Hamilton College and then, later, Columbia. Dwight
was an early innovator in the concept that legal training could be
if-1-11
' ij'i (
29


I. ,
best provided through law school. Dwight first expressed his
,!f!|
feelings towards the importance of institutionalized training of
attorneys;while at Hamilton College. Like Thomas Jefferson had
' i:1!
believed irijihe early part of the nineteenth century, Theodore
;-hi
Dwight was sil " ,: r
' I ' ij
solely through apprenticeship. In 1858 Dwight took his ideas to
Columbia aind;'jjset about designing a new course of action at the
school which !|was aimed at teaching the principles of the law. It
; m'T
, I '; 1
was not thelattempt of Dwight to remove office training from the
legal educait.ijon of an individual but to supplement the practical
experience gained through office training with the discussion of
the principles of the law. "This was accomplished by a series of
expository lectures, supplemented by examinations, recitations,
quizzes, and:|;moots." (Stevens 1983, 24).14 Furthermore, Columbia
announced irV':1874 that students would be required to pass entrance
!'i|!
exams for .lalw,! school that tested the academic education of that
i.
i.;:
student. With the preceding programs in mind, Columbia set out to
be a leading law school in the United States.
Despite,;the attempts of Columbia to be a forerunner in the
reform of legal education, Harvard would, by 1893, begin to lay
, (' \ l!
down the guidelines for legal education that would shape the
,. i:,|'
current system of legal education in the United States. "In 1873
| Hi1
Harvard took!'a commanding lead by announcing that all candidates
: ; ri;ij
for its degree must, upon admission to the law school, either hold
a college degree or be qualified to enter the senior class of



'!r' 15
Harvard College." (Cullison 1971, 254). Following the
'! !''
proclamatioiri^of Harvard, the Association of American Law Schools
(A.A.L.S.)! vtes formed in 1900 and followed the lead of Harvard to a
i ji'l
lesser degree in regard to the admission of students for legal
1
training. ;The A.A.L.S. made it a requirement that law schools
i i!,
wishing to join the association must, at least, admit only students
' ' i
"!
who possessed, at the minimum, a high school education. The
i j!'
changes made at the end of the nineteenth and early twentieth
centuries wdjjld lay the foundations of the modern American law
school.
It must;: still be remembered that throughout the nineteenth
. ii;
century, theji.system of gaining legal knowledge through law school
I I1,
exclusively;;did not exist. The law schools of America that were in
! i J >
l.j
place through the nineteenth century were used merely as a
(i
complement,ito office training. The apprenticeship system provided
individuals :with practical legal training while the law school
provided the!individual with understanding of the principles of the
law. Throughout the nineteenth century, therefore, the idea of the
lawyer as anii advocate was still alive but was beginning to give way
'j:
to the role!,pf the lawyer as a counselor. The decline of the
. M | '
lawyer advocate began around 1870 when the law schools of America
began to see,; themselves as needing to help prepare students to deal
> :i-.
: !!
with the growing of corporate America after the Civil War.
According to Willard Hurst, this "shift in the emphasis from
advocacy to counselling was the most basic change in the
nature pf lawyers' professional work" in the nineteenth
ii;
i; ]
, !;; 1
1 Vi
, "I
31


century. The shift was given major impetus by the growth of
corporations in the years after the Civil War. Corporations,
in an effort to monopolize the finest legal talent available,
retained lawyers on a long-term basis. (Johnson 1978, 62).
1,!!
The American'law school responded to the growing monopolization of
the legal profession by corporate America by providing education
upon complex.issues of law. Towards the end of the nineteenth
century, thbp, the role of attorneys in the United States was
beginning to;: change and the American law school was preparing to
take on an: ever larger role in providing legal training.
The Modern American Law School
The post Civil War period led to a change in the role of both
: i i1
1 : i
attorneys and law schools in America. The corporate sector of
i i
America was!beginning to grow fairly rapidly and that change helped
. i i
to spur on.,,a1;change within the legal profession. It was Harvard
that seizedjupon the moment to make changes in legal education
during this!period of time that would allow the school to set the
style of legal education for all law schools. The reforms made at
Harvard and;accepted by other law schools clearly are the design
1 i
for the modern American law school.
Christopher Columbus Langdell became the dean of the law
school at Harvard in 1870. At this time, the law school was not
really a part of Harvard College but a college competing with
' i 1'
Harvard. Tl-jie situation at Harvard was common among law schools at i
i ;,
i
! )'
32


: 1 "I
!'t
the time, 'dew schools were not part of a university system until
the twentieth century. Prior to the twentieth century, law schools
! I'Ll
were in competition with colleges of general education throughout
Mil
the United States. The period, of Langdell's deanship resulted in,
' I ;l
among other.'things, making the law school a part of Harvard
University !wljere the college of law no longer competed with general
education foil students. The change that kept the college of law
from competirjg with general education was revolutionary in that it
turned law.,schools into graduate schools. The idea of graduate
level legal
draining was accepted at Harvard in 1895 when the law
school announced that a college degree was an admissions
'! ]
requirement; [for entrance into the law school. The ruling of 1895
was, howeverji not fully imposed until 1909. The majority of
students admitted to the Harvard Law School between 1896 and 1910
did have coliege degrees.^
Under iiajngdell, "Harvard not only became the preeminent law
school in thej' country, but institutionalized legal training was
established! |ajs de rigeur for leaders of the profession." (Stevens
I el ; j
1983, 36).' One of the first reforms taken on by Langdell and
Harvard president, Charles Eliot, was to convert the law school
'! ;i
into a two-ryear institution. Langdell divided legal education at
' i i
Harvard into [first-year and second-year courses. The system
devised by liangdell replaced the final degree-examinations used by
:'i |;j!:
many law schools which were given to students following the
'iif
completion o!f: the entire law school curriculum. The examination

; i i'
I '
1 '!
i
33


"" ni
hi
-I'l
: A
!,;j
Mi
. 1 l '
system that'was introduced by Langdell was much more strenuous than
:: i\j
the examination system at any other school. Written examinations
''4
were used byjlLangdell and these examinations were given at the end
| ;!'
- 11
of each yeay'jland covered the work completed during that year. If
the student!jjassed the first-year examinations, the student was
allowed to erjter the second year curriculum of the law school. A
written examination was given at the end of the second-year in
|iilj
order to determine whether a student was prepared to graduate from
the law school. "In the technical language of pedagogy, Harvard
j!11'
became for'tjjie first time a 'graded school,' with promotion and
graduation, determined by written examinations." (Wallach 1971,
X 19
195). Thejiwritten examination system of Langdell went into
i 11
;,;ij
effect at;Harvard in the 1871-72 academic year. The system of
' i'i
yearly written exams is now in effect in every modern American law
- 'A
school.
,1f
r.
Another|legacy of the Harvard Law School is the length of time
ill
which a student spends in the modern American law school before
!m!
graduating: with a degree in law. Although the overall effective-
r,|j
ness of learning the law in three years has come under attack as
being too ioijjig, it was Harvard who set the stage for requiring
three yeats1 if legal study prior to the confirmation of the law
degree. Thilconcept of turning the legal profession into a
university-educated one that required a three-year graduate degree
;i,l
was a very,blear goal of Langdell. Langdell felt that by
increasing tlpe amount of instruction received by a student would
34


have the effect of strengthening the legal profession by providing
I :i|i;
the profession with graduates who were more knowledgeable about the
j
principlesiof the law than their predecessors. Interestingly
enough, Langdell's goal of turning the study of law into a
rl:|:
three-year degree occurred before law was recognized as a graduate
study. By, 1899 the three-year degree for legal studies became part
! i! i
of the Harvard Law School requirements. "In 1899 the mandatory
three-year,;goal was reached, although there was still flexibility
'!' 20
even at Harvard." (Stevens 1983, 37). Slowly, other schools
began to follow the precedent of Harvard in requiring a three-year
program for,;the study of law.
With the appointment of James Barr Ames as an assistant
professor'of j: law in 1873, the Harvard Law School took yet another
; 'ji;!
step that would change the way in which law was taught in the
American lawjschools. Ames was not appointed because of his
practical experience as an attorney but, rather, because he had
teaching potential. Langdell picked Ames because he fit the mold
of the type'of professor that Langdell felt could better assist
students iniltheir study of the law. The feelings of Langdell were
that:
. ';i-
A teacher of law should be a person who accompanies his pupils
on a road which is new to them, but with which he is well
acquainted from having often traveled it before. What
qualifies a person, therefore, to teach law, is not experience
in the'work of a lawyer's office, not experience in dealing
with mert, not experience in the trial or argument of cases,
not experience in short, in using law, but experience in
learning law. (Stevens 1983, 38).
35


I
1:1!
The wheels Wbre thus set into motion by Harvard to remove practical
experience Iftom the classroom, and for that matter, from legal
i
education in general.
rii
The real dominance of Harvard, however, was in the teaching
i.
methods usejj,'at Harvard. The system of teaching the law at Harvard
actually was,, first attempted by John Pomeroy at New York
k
22
University..;1 The method implemented by Langdell was that of the
now famous ajnd widely used case method. Langdell is credited with
being the; father of the case method because he adamantly pursued
the technique at the Harvard Law School. The approach of teaching
Mi;
the law by Langdell was based on his belief that the law was a
science that! could best be understood through the search of legal
principles'that could best be discovered through the study of
.1 i,
cases. Langdell also believed that studying cases could better
help students understand the principles of the law by understanding
' 1i
and studying1" the legal rules of any case. General principles of
''Hi
law were believed by Langdell to be the same throughout the United
States despite the differences in various state laws. "In time,
Mi
I
this particular assumption of national applicability was to
;. i j;
undermine tde idea that each state was a viable legal system in its
' '1' 23
own right.'!(Stevens 1983, 52). Because Langdell felt that the
principles djf law cut across state lines, the case method
I>'
concentrated; I on decisions rendered in the appellate courts of the
i.!;
United States. The case method, concentrating on appellate court
36


' | !i.
,
1 1 'ill
, j
opinions, is;; in use in every modern American law school and
'-'i
Langdell is, jthe man who has been given exclusive credit for this
reform in legal education.
:! |<
The ideas about legal training held and espoused by Langdell
r
i'I:
at Harvard;did not go unopposed. Individuals who came to be known
Vj'jli
as Legal Realists did not agree with the ideas of Langdell but they
1
also did not;1 completely agree with each other. The Legal Realists,
; ,; I;
however, tended to agree that law was not truly logical and
predictable' 'as Langdell believed. Individuals such as Roscoe Pound
[ : i
feared whatj ljie called "mechanical jurisprudence" which occurred
i'lT
under a system which ignored common law in favor of following a
system baseei
;,upon following precedents from previously decided
cases. ToPpund, law was a science of social engineering that was
; ill'-
accomplished by lawyers. Pound, however, did not want to link his
!i.i:
concept of ,tf?e law with political reforms. Other Legal Realists,
! j:
however, used the philosophy of social engineering held by Pound in
order to look at the issue of how legal philosophy could lead to
[
' I''
political ;ref|orm. Jerome Frank, himself a Legal Regalist, sided
with Roscoe /Ftound in his beliefs that preoccupation with stare
decisis (following the rule of precedent)which was the basis for
the concepts Ijheld by Langdell at Harvardeliminated the
possibility ;pf having judicial decisions that provided good
' '11!'
results. Frank pointed out that judges have the ability to
; Mi
manipulate the texts of previous decisions in order to reach a
' .'I
result that was desired by that judge. The Legal Realists,
11.
i-.
i
37


therefore,. vjiiere in opposition to the beliefs held by Langdell that
i
law was fixed and predictable. What the Legal Realists had
' ih
ultimately ijioped to accomplish was to point out that the legal
'I'1
training supported by Langdell was based upon falsehood, but the
! i:
movement did!1 little to change the ongoing formalization of legal
. i-
training.
Another] player in the movement to formalize legal training
j I.
came out of,the American Bar Association (A.B.A.). The A.B.A. was
begun in 1878 and was and still is largely an organization of
individual .lawyers unlike other professional organizations such as
the American
Medical Association which is made up of delegates from
local medical associations. One of the first committees created by
the A.B.A. was the Committee on Legal Education. The Committee on
!!
Legal Education was made up of individual lawyers who all preferred
" i
that the legal education of future attorneys be left exclusively to
the law schools. "This Committee was always more or less in the
1 I
hands of...those who were connected with or believed in legal
education injlaw schools rather than in law offices." (Stolz 1971,
233). The;Committee found itself recommending resolutions to the
11
A.B.A. thatistudy in law schools should become a prerequisite for
.. i'|i
admission tp| practice along with the passage of a Bar examination.
The A.B.A., ipowever, rejected the 1880 recommendation of the
'I
Committee along with many other such recommendations in the
following years. In 1893, the A.B.A. created a special section on
Legal Education and Admissions to the Bar. The focus of the
38


special section was that of improving law schools. The special
section passed resolutions that lengthened legal study to a period
. 1.1
I ,,
of three-years by 1895 and the A.B.A. passed a similar resolution
: ' ji
in 1897 but omitted the term "in law school."
In 1899; the Section on Legal Education and Admissions to the
I 'j
Bar helped jt create an organization of law schools that would have
the effect bf making the requirements for receiving a law degree
national. ,,T|he American Association of Law Schools was formed in
1900 by thej:Section and it became the job of the A.A.L.S. to come
up with standards for membership into the Association. Early

standards for membership into the A.A.L.S. were not difficult to
j ; i
fulfill byelaw schools. The early standards of the A.A.L.S. held
simply thatij
1 i l''l
students should have a high school diploma, they should have
accesbjjto a library and the program of study should last for
at least two academic years of 30 weeks each. In 1905 the
years|of study were increased to three, but two-year schools
were hot denied membership until 1907. (Stolz 1971, 234).
The aim of tljie Committee on Legal Education and Admission to the
Bar began ipjtake on a similar mission to that of the A.A.L.S.
'll'
which was aimed at improving the requirements for admission to the
1 i !
Bar. A seven man committee was formed that proposed standardized
rules for the administration of the Bar examination. The seven man
} i i*
committee also hoped to make attendance at a law school a prelim-
inary requirement for taking the Bar examination. The rules were
i 1
11 i1
proposed to the A.B.A. in 1916 and 1917, but the A.B.A. failed to


:,i'(
i :
!|"!
; T rl
I j,
vote on the;proposal. In 1918 the proposals of the seven man
, !l
committee wejre reintroduced and voted on by the A.B.A., with the
" 'ii
exception bfj,; the proposal that law school be a pre-requisite for
qualifying to take the Bar examination. The A.B.A. feared that the
requirement jpf legal training in a law school being a-preliminary
to the Bar, examination was too revolutionary of a change. The
experience of the common legal student in 1918, however, seems to
- i
, i i j!
show that1a1 [requirement of law school attendance would not have
been a very'[[revolutionary step. By 1918 education in a law school
: M j;
was regarded!' by students as being more efficient and better than
1' ii,
office training. "To be sure, relatively few states required law
; 1 i
III1
school study1; as a condition of liscensing, but very few who had not
i i i:
gone to law, [school were in fact qualifying for the bar examination,
1! j |1
much less passing it and practicing." (Stolz 1971, 234). More
important* tppwever, is the fact that three different.sources could
i pi
not come up;with a satisfactory means by which to regulate law
!:!
schools. The Committee on Legal Education of the A.B.A., the
Section on Legal Education and Admission to the Bar of the A.B.A.,
;]!
and the A.aJl.S. all held differing viewpoints as to what was
expected of(law schools in America. The A.B.A., in general, did
not see eyejto eye with the three different bodies which were aimed
, 'i
at improving the legal profession by way of the law school. The
A.B.A., in, [and of itself, never felt compelled to agree to the
40


recommendations of the three bodies that law school should be a
requirement for an individual to be eligible to take the Bar
examination.
The disagreement between the A.B.A. and the A.A.L.S., in
I
particular, about the role of law schools in providing legal
training led to the A.A.L.S. attempting to take over the Section on
Legal Education and Admissions to the Bar. The A.A.L.S. plan was
to attend the 1920 meetings of the Section in force so as to ensure
that law teachers had a strong say in the policy of the Section.
The plan by ,the A.A.L.S. was ultimately successful and it became
' I
possible to,force the A.B.A. into appointing a Special Committee on
Legal Education. The goal of the Special Committee on Legal
Education was to work out a compromise solution that would please
everyone. The Special Committee was chaired by Elihu Root and a
compromise solution was reached in which the Special Committee:
reported that "only in law school could an adequate legal
educatipn be obtained" and that two years of college should be
required before admission to law school. At the same time,
night schools could achieve legitimate status on the condition
that they become four-year institutions. Bar examiners were
placated by the formal disapproval of the diploma privilege.
The ABA was called on to invest the Council on Legal Education
with the power to accredit schools. (Stevens 1983, 115). i
i
The findings1 of the report were, in turn, accepted by the Section
on Legal Education and Admissions to the Bar and then were approved
by the A.B.A. in 1921. The A.A.L.S. also accepted the compromise
i,
solution by opening its membership to night schools even though the
t
M
A.A.L.S. had, since it was made up of practitioners in full time
41


law schools;1 "been resistant to the concept of part-time legal
education. ;"It is plain that the leadership [of the AALS] did so
solely in the interests of unity with the ABA and without a strong
sense of conviction." (Stolz 1971, 241). The A.B.A., however, had
no means by Iwhich to enforce its standards on law schools because
v iy
admission to the Bar did not rest in the hands of the A.B.A. but in
the various state governments. Enforcing standards for admission
to the Bar is still in the hands of the various state governments,
but the A.B.A. has been able to persuade the states to use the
criteria designed by the A.B.A.
It is;important here to briefly discuss why the A.B.A. and the
A.A.L.S. differed on their opinions as to the usefulness of law
school attendance for legal training. The A.B.A. was, and still
is, made up ;of individual practicing attorneys. By no means was
the early A.B.A. made up of all of the individual lawyers of the
United States. In fact, by 1920 the A.B.A. only contained a little
over nine percent of all of the United States1 practicing
attorneys. ; More importantly, however, many of the members of the
A.B.A. were,;not certain that a required legal education in law
school would necessarily lead to an improvement in the types of
! ':i,,
individualsthat became eligible to be admitted to the various
state Bars;. The A.A.L.S., on the other hand, believed that law
school wasi the best if not the only place where a person should
1
gain his/her legal training. Believing that law school was the
only appropriate place for training future lawyers was self serving
42


for the A.AClL.S. It must be remembered that the A.A.L.S. is an
i-; i
: 11
organization of law schools and is, therefore, comprised of
individuals
^involved in the system of law colleges. The A.A.L.S.
is made up,of law school teachers, and in the early twentieth
I :i.||
century it':ted everything to gain by attempting to see to it that
study in a.law school became a prerequisite for taking the Bar
examination!| The reluctance of the A.B.A. to approve a resolution
that called! |for the use of law school study as a prerequisite for
an individual to become eligible to take the Bar examination was
! I;; i
met with distaste from the A.A.L.S. and helped lead to the
political maneuvering that took place between the A.A.L.S. and the
A.B.A. in 1920. The maneuvering of the A.A.L.S. in 1920 that was
i
designed to]force the A.B.A. into accepting the positions of the
I!; |i!
A.A.L.S. onjlegal education resulted in the compromise solution
i! hi
that was worked out by Elihu Root.
\:<
! I'1!,
The comjDromise solution that was worked out by Elihu Root
really onl^r hHiad one provision that was an important difference in
: |'li-
the way by ;which legal training was acquired. The one provision
I :
that was tojChange the concept of legal education from the way that
it operated j in the first two decades of the twentieth century was
the provision of a two-year college education prior to admission to
law school.!
i'The two-year college prerequisite that was accepted by
the A.B.A. vlfquld not, however, create a rapid change within the
'' i11
system of legal education. The A.B.A. had no power by which to
enforce its
resolution since only state governments controlled


' .j I
admission'tbi, the Bar. The two-year college requirement for
entrance to
states, and
A.B.A.
:iaw school, then, was adopted very slowly by the
dnly after extensive persuasion of the states by the
Although there was agitation and change in bar admission
standards, the two-year requirement was very slowly adopted.
Six ypars after the ABA resolved, only six states required any
college'; education. It took about 15 years, and a good
depression, to get the ball moving. In 1935, 30 states
required two years of college, 19 required no college at all.
By thejoutbreak of the Second World War, all but a few states
require^ two years. It is clear that in general the legal
requirement followed rather than led the growth of college
education. (Stolz 1971, 242).
The gradualipess of implementation of the two-year college education
i; i
prerequisite;;for entrance to law school also dashed the hopes of
the A.A.L.S; 'that there would be a significant reduction in
i : i!'
non-member law schools and students. The A.A.L.S. felt that there
: I';':
were too mapy inferior law schools that provided inferior graduates
"if:'
entrance into the legal profession and, thus, had hoped that the
A.B.A. resolution would have the effect of eliminating law schools
that could ndt meet the requirements laid out by the A.A.L.S. for
! !;!i
membership into the association. The early reluctance of the
,! ;I
'll1
states to implement the A.B.A. resolution of 1921, however,
; hi;
prevented the; desires of the A.A.L.S. from being achieved.
-I!;
Despite what one would think, the other provisions of the
A.B.A. resolution of 1921 had little significance for legal
education.!' fTwo of the other provisions of the A.B.A. resolution
' :j
that one would have thought to be of great importance to legal
: !' I
. I '
44
>1


education were the ones that favored the use of law schools as a
training grbdnd for attorneys and required that the study of law in
school cover the period of three years. On the two preceding
i'
provisions,]4t appears that the A.B.A. merely affirmed the practice
which had already been taking place in the field of legal
education.,1 By the time that the A.B.A. passed its resolution, the
majority of^individuals entering the Bar were doing so by being
trained in,law school rather than in the offices of practicing
attorneys.;!At the same time, the resolution's call for three years
of legal study was of very little importance since the majority of
law schools!already required three years of study prior to
graduation :by 1921. It seems, then, that the real significance of
'ii
the majority of the provisions of the A.B.A. resolution of 1921 was
to make thdilist of A.B.A. approved law schools resemble those of
the A.A.L.S-, "One consequence of the Root compromise was that
membership In the A.A.L.S. tended to be the same as the A.B.A.
approved list, although membership in the A.A.L.S. has gradually
1 I
come to be .somewhat more selective than the A.B.A." (Stolz 1971,
242).30
The A.B.A. resolution had no real immediate effect upon legal
education but the goal of the A.B.A. and A.A.L.S. was quite clearly
that of making all law schools similar in nature. The fact that
the A.B.A. had no political power by which to enforce its
resolutions' is significant because it placed the A.B.A. in a role
of having toipersuade states to implement regulations for law
45


; !;!!
i::1'
schools that
resembled the resolution of the A.B.A. As a matter of
fact only about half of America's law schools fulfilled the A.B.A.
1 iMI
,, i,|i
requirements*and even fewer students attended A.A.L.S. schools in
/ij!
the 1920s. ||in fact, in 1927, no state required that an individual
' i'"'!
attend law school in order to be admitted to the Bar. While every
;'i'!
state and the District of Columbia except Indiana had a compulsory
Bar examination by 1982 there were still nine states which had no
requirements 'in regard to legal training. The A.B.A. resolution of
'. i:|(
1921, then,;;ihad had very little effect upon the legal profession as
14
states continued to follow their own formula for devising the means
i' by which an, individual was allowed to become a practicing attorney.
.lit
In thei,l930s, however, things began to change among the states
' | l]
as to the strength of their requirements for admission to the Bar.
: i'j'
Attendance at law school, for the first time, was becoming a
requirement:lamong the states for entry to the Bar.
'll,
By 1930, four states had come to require attendance at law
schoolj:;(three years in West Virginia, two years in Colorado,
one eacfi in Kentucky and Wyoming). Moreover, in the remaining
forty-five jurisdictions, law school and law office training
had become alternatives, and only four states still insisted
on somg'i! office training for all students. All other states
allowed}the alternative.of a preparation exclusively done at a
law school, and a fewincluding Illinois, Michigan,
Minnesota, New York, Ohio, Washington, and Wisconsinwere
actually ready to offer three years of law school as an ,,
alternative to four of apprenticeship. (Stevens 1983, 174).
The process1! of raising standards for legal education and admission
to the various state Bars was finally underway. The goals of the
i1:!'
A.B.A. and the A.A.L.S. were finally beginning to be met by the
46


states. The!elite organizations of the A.B.A. and A.A.L.S. were
; ; ?!')
finally having an effect on the way that states felt that legal
'I11,
training should occur. Both the A.B.A. and the A.A.L.S. took
advantage of'the new situation and began to revise their standards
again.
Perhaps!'merely because A.B.A. and A.A.L.S. schools were
considered elite, attendance figures climbed in these schools while
i,
it declined in the unaccredited schools between 1928 and 1935.
"Just how much the decline in the number of unaccredited schools
during the l;?30s was due to the depression, and how much to the
!'
establishments' continuing raising of standards, still remains
' j 32
unclear...'! | (Stevens 1983, 178). Whatever the true cause for
H|
i I :
the increased enrollment in law schools, it is clear that the
increased attendance only gave the A.B.A. more power to persuade
states to accept the provisions that it laid out in regard to legal
u;
education.; jThe effect of the A.B.A.'s new found power was that, by
1958, there were very few students enrolled in unaccredited schools
and many unaccredited schools had either been eliminated or had
' j'l;
raised their^standards to meet the criteria of the A.B.A. Finally,
by 1970 thegoal of the A.B.A. and A.A.L.S. was almost completely
, j!'
realized in achieving nationwide standardization of law schools.
i:
Although unaccredited law schools exist today, the majority of
; 1 j i,
American legal jurisdictions require that an applicant for the Bar
examination must have graduated from an A.B.A. approved law school.
In addition,
many states require enrollment in either an A.B.A.
47


accredited school or an A.A.L.S. approved school for partial
''ji; 33
fulfillment!,jipf the requirements for admission to their Bar.
The modern American law schools that are attended by a strong
' M 1
majority of'j'law students owe their existence to three institutions.
' !.l'
' i !|'
The style ofI legal training that exists in the accredited law
l1!'1
school of modern America is that of the case method of which
Langdell ofharvard, rightly or wrongly, is given credit for
developing. Both the A.B.A. and the A.A.L.S. were and continue to
be the driving force by which the vast majority of American legal
jurisdiction? have been convinced to require attendance in an
approved law,j] school as a partial requirement for admission to the
Bar. The mj}|ern American law school also owes many of its
criticisms to the same three institutions that provided for the law
school's existence. The use of case method, in particular the use
' iijf
of the Socratic method in teaching case study, has come under fire
as being criliel and inhumane to such an extent as to turn out
' iLj
attorneys who have little compassion for people. The insistence of
i1 :>[
the A.B.A. iand A.A.L.S. that law school is the only proper way by
' !;iil
which to receive legal training is also under fire as being a means
' i'll!
by which law-school graduates are better prepared for corporate
work than they are for representing individuals. If the preceding
allegations j.are true, the people of the United States sorely suffer
' ''i
at two different ends of law. A good number of American legis-
lators are .trained in the field of law and if they are better
.!|i a J
prepared to Js,erve corporations than people, laws will be and are


designed that protect corporate America from the people. Laws
11
that protect]i,corporate interests from public interests, however,
are not a prpduct of only legal education because legislators are
11
! ,i
also lobbied; by various interest groups. The legal training of
some legislators, steeped in corporate interests may, however, make
those individuals more responsive to lobby groups that seek
i i
protection fbr corporate interests. Some reforms in legal
, i
education ma^, however, be able to provide that the people see laws
11
drawn up by:^he various legislators of America that protect them
j:
from corporate interests.
i.
i'
'ii.
i
i'
. i.
i
i i-
i-
i
i,
I


Notes
j'i.i
" II!'i
I
hi:
! .1,
, : j:i!
!.l'
1 For j:a more complete understanding of how the Socratic
method is used see Savoy (1970) in Nolan (1980).
2
Walldch continues on to tell us that the early American
legal system] Ixelying on apprenticeship was based on the English
model and noil the European model because universities in many
European countries shared the task of training future attorneys.
^ Stevens states further that American attorneys are officers
of the court],:much like English solicitors and that, therefore, the
control of'ithe profession remains in the hands of the supreme
courts whb.jmaiy delegate that control to Bar associations. Hence,
we have the[use of Bar examinations to determine competency for law
practice tdday.
q ' i'!i
Johnson continues on by releasing other figures from the
study which[showed that 116 lawyers were trained through an
apprenticeShaip-law school combination with their mean age for Bar
entrance being 25.2 with a median of 25 years. The study also
found 53 lasers whose training could not be accounted for but
their mean1 aige for entrance to the Bar was 26.6 years with a median
of 25 years i'ii:
5
Office apprenticeship was far from being a logically
organized form of legal training. Attorneys who could not or would
not help an ^apprentice understand the complexities of a legal issue
created future attorneys who would be incapable of providing
acceptable-training to another apprentice. The result would be the
continued iwdakening of the legal profession.
6
The[specialization that began to occur in the law during
the nineteenth century furthered the growth of law schools because
they could]more readily give a broad understanding of the law.
'7 '"'i1!:'
Jefferson was not a strong believer in the ability of the
apprenticeship system to provide a competent legal education. To
Jefferson,'however, the teaching of law consisted of such things as
the philosophy of law rather than the principles of law, and this
teaching isl.more consistent with a liberal arts education in an
undergraduate position today.
. i.in
50


lit
Everjijijtoday, there are states, e.g., Wyoming, which allow an
individual tl^ie opportunity to take the state Bar examination if
they have combined study with office work. In addition there are
some states]e., South Dakota that automatically admit students
who are graduates of the state law school. South Dakota used this
process prior to 1983.
9 l'!1:
Parker believed like Jefferson that legal training received
in the office of an attorney wholely was inadequate but he also
recognized'ltHat the best way by which to learn practical knowledge
of the lawiwas through apprenticeship.
i'K
u The] i ultimate goal of Parker was to turn legal education
into a graduate study rather than the prevailing tradition of legal
education ;be|ng conducted at the undergraduate level.
: Mi1
11 f!
Asjgarly as the days of Parker, Harvard tended to be a
school wheijeji'innovation took place in regard to reforming legal
education. iTiioday, Harvard continues to be the law school that
others emuliaie.
:i !:!
12 I i'i'>
Onei'bf the consequences of Jacksonian Democracy was that
by throwing(education open to almost anyone in order to ensure a
purer democracy, people who were less qualified entered higher
positions inj;society. That such corruption came about due to the
educational inspect of Jacksonian Democracy is ironic since the
movement had;!gained early acceptance because of corruption in the
governmentali'structures of the United States.
13 l'4
During this time, law schools began to advertise
themselves |asi teaching law as a science but the real importance of
the reinstitijjtionalization of the law was that office training
alone was again being perceived as being inadequate if that
training was||hot combined with study in a law school.
^ The;! system devised by Dwight was meant to supplement the
legal training received at the office. Dwight made no comments
that wouldi.e^'en lead anyone to believe that this system was
designed to eliminate apprenticeship. Many of Dwight's students
spent hours: a day in law offices.
^ Since the A.A.L.S. contained members who taught at
Harvard, it; Iclpuld only naturally be expected that A.A.L.S.
requirements^would closely resemble those of Harvard.
16 '
The'difference between advocacy and counselling is the
same thing :as!' saying that the system went from providing trial
51


attorneys to providing advisors on legal issues. The advocate
works in court while the counsellor works in the office where
oratorical skills are not of great importance.
^ Despite the fact that the ruling required a college degree
for entrance;into the Harvard Law School, but it was not enforced,
it has been.calculated that only 49 out of 3,488 students who
attended the Harvard Law School during the period between 1896 and
1910 did not have a college degree.
18
Langdell has been given credit for making Harvard into the
leader in setting the style for law schools. It appears, however,
that the bulk of the innovations that occurred at Harvard came from
Charles Eliot.
19
This innovation was Langdell's; however, it was inspired
by the desires of Charles Eliot to formalize the educational
experience at Harvard.
20
Despite moving into a three-year program for legal
studies, the law school at Harvard had a limited curriculum. Many
students, in;turn, simply left Harvard after two years of study
since a lawidegree was not, at the time, a necessary requirement
for admission to the Bar.
21
Harvard, thus, set the wheels into motion that law
professors need not be practicing attorneys. Individuals were now
allowed to teach law without having had any experience in the
courtroom. ,It appears that the new law teacher was yet another
means by which to eliminate practical experience from legal
education.
22
For,more information on Pomeroy's pre-Langdellian use of
the case method see, Hastings College of Law (1928) where the
technique of Pomeroy using cases to discuss equity at New York
University is discussed.
23
Case method does not concern itself with teaching various
state laws. Case method concentrates on studying almost only cases
that reach the appellate level of the federal court system. The
implication of this method of teaching, in turn, is that law is
uniform throughout the country even though a simple glimpse will
show that laws vary from state to state.
24
On the other hand, the A.B.A. as a whole organization did
not consist of a majority of members who felt that legal training
was best achieved through law school.
52


The standards set out by the A.A.L.S. were actually a
watered down, version of the requirements for law school entrance at
Harvard. It could only be expected that the A.A.L.S. standards
would resemble those at Harvard to a certain extent since the
school was a member of the A.A.L.S.
26
One' of the ultimate goals of the A.A.L.S. and its member
schools was to see that law school would be a requirement for an
individual to gain entrance to the Bar. The goal of the A.A.L.S.
has been largely met with only Virginia and Washington, by 1987,
not completely requiring study in law school.
27
The requirement of two years college education prior to
legal study in law school resembled the program at Harvard. The
compromise by Root was accepted by all members as an attempt to
create unity among the A.B.A. and A.A.L.S. but it is not entirely
clear as to whether everyone was completely pleased with the
solution.
28 1
For more information on the size of the 1920 A.B.A. and
how it compared to the American Medical Association see, Preble
Stolz (1971); in Appendix II of Appendix A of Herbert L. Packer and
Thomas Ehrlich (1972).
29
The. inability of the A.B.A. in being able to persuade
states to follow the guidelines for legal education that it had
laid out is clearly illustrated by the small number of states
following A.B.A. guidelines in the first two decades following the
A.B.A. resolution of 1921.
^ There were and are no states that require an applicant for
admission to the Bar attend an A.A.L.S. school exclusively. The
states mainly require legal study in an A.B.A. approved law school.
In reality, then, membership in the A.A.L.S. by law schools is not
really vital;for a program so long as that school is approved by
the A.B.A.
^ It is not readily clear as to whether this occurred
because states wanted to revise the standards of their practicing
attorneys ori their own or whether the A.B.A. was able to persuade
the states into taking this action.
32
The long term goal of the A.B.A. and A.A.L.S. was to
eliminate inferior schools of law. The A.B.A. and A.A.L.S. hoped
that by putting inferior law schools out of business, the legal
profession could be spared from incompetent attorneys. Whether
unaccredited.schools provide less legally competent graduates or
not is not overly clear.
53


^ For, a complete listing of state requirements for admission
to their Baris see, Barron's (1987).
54


CHAPTER 3
CRITICISMS OF MODERN LAW SCHOOLS
It must, be recalled that, especially in the United States,
1 I
most legislators are lawyers and the ways in which lawmaking is
approached is, in part, a function of those lawyers' legal
education. Legal training does not occur only for those
individuals who are to become practicing attorneys but also for
many of the public officials in the United States. Lawyers make up
a good number of American governmental offices. Twenty-four of the
forty-one presidents of the United States have been lawyers. In
addition, the curent 102nd session of the United States Congress
has 244 individuals who are lawyers out of the 535 total members of
Congress. The total number of lawyers in Congress has been
declining slightly since the 1970s where, for example, the 97th
Congress had!253 members who were attorneys; but, the fact remains
that the legal profession is disproportionately represented in the
government of the United States. Somewhat surprisingly, however,
the state of. Colorado does not follow the pattern seen at the
national lev,el with the current legislature having 21 out of 100
individuals who are attorneys. The lower percentage of attorneys
involved in Colorado politics may be due to the fact that the state
is more agriculturally based than it is industrially based but


, IV
I"1
further study would have to be conducted to see if that is the
case. The: modern American law school, then, has an effect on the
i |.! I. '
; | !(
way that government operates in the United States. Law schools in
the United! jsjtates help to shape the way by which the government
views the responsibility it has for the people of the country.
Deficiencies in legal education, then, do not only show up at
the level o.f; the lawyer-client relationship but also at the
, : M
governmentLcitizen relationship that exists in the United States.
While it isj;jimpossible to make the claim that changes in legal
education can change the perceptions of the American government
completely,!jit can be said that changes in legal education would
affect the1! philosophy of American government, to some extent. The
underlying1assumption, therefore, is that legal education in the
ij ;i
,. j |'
United States helps to shape the laws of the country and if law
schools are,!,
geared towards providing one specific client with
attorneys,:the result will be the development of laws by a
government!made up of lawyers that favor that client. According to
.li
many involved in the legal profession, such as Ralph Nader, Gerry
Spence, RoyjiGrutman, and Judge Lois Forer, law schools are geared
' j. j,
toward providing attorneys almost exclusively for corporate America
i H '
and, thus,',the system of legal education has come under criticism
! !;j i'
in three major areas and some minor areas. It is important for
i '' 'li
understanding how law schools provide graduates geared toward
' It
representing!! corporate America rather than individuals by looking
at the criticisms leveled toward the modern American law school in
l
, I, <
.ri.
56


I|
''! i'
" i'l'li
regard to the use of case method, Socratic teaching, and lack of
i'
practical training for students.
Mi
11;
i: i'!1
Case Method
Case method came into wide use among the modern American law
schools after Langdell implemented it as the course of study at
Harvard b^1 1895. The program of studying appellate court cases in
order to discover underlying principles in the law was taught as a
means by wnlith to teach law as if it was a science. The use of
!r
case method^1however, was not welcomed enthusiastically by legal
practitioners. Law schools that implemented use of case method
' !;ii
!,: I-]:
generally'did so with some resistance because there were those who
felt that!study of cases alone was laborious and a waste of time.^
I- r
, r. !
I!
Case study!, |; however, has become the principal mode by which the
modern Ameiican law school teaches the law. The use of case study,
' lii
despite its^overwhelming use among the modern American law schools
remains persistently criticized.
Hii:
Some pjFjl'the early criticisms leveled at the. use of case study
,!' i'!:|
dealt primariily with the type of lawyer law schools would produce.
i j'
The move toward case method was seen early on as a way by which to
.:: lijj
eliminate!the role of advocate that the lawyer occupied from the
beginning of'the American legal system. "At stake was a conception
of the role.j.:!f the lawyer in the legal system in particular and in
it! 2
national life in general." (Johnson 1978, 115). In short, the
!*
. i
i'l :i
57


use of cas.ejljmethod was seen by some as being a way by which to turn
lawyer advp'cates into lawyer-scholars. Case method, as the sole
Mi
tool for teaching law, has the consequence of making lawyers slaves
lif
to precedent in positive, statutory law while ignoring unwritten
|.|5
common law" which tends to be more protective of citizens since it
is based oh|:!a concept of fairness. Dean Bryant of the Wisconsin
College of:ll|aw, in particular, was dismayed by the mechanization of
the law which case method performed through its own very narrow
1!ji
look at only1;written findings of a court of law. The mechanization
: ii'
of law through the use of case method was seen as eliminating the
i; |
skilled judgment of lawyers which relied on more than merely the
use of precedent. Prior to the mechanization of law through case
;! jij'i
method, attorneys made skilled judgments based mainly upon moral
; i-U
M,
values of what was right and what was wrong that was based upon
their conception of what was morally correct and.what was not. At
1 \ j;l(
stake, thenji;|iwas the very concept of the traditionally agreed upon
;!iH?
principles ;of justice and fairness. The attack on case method by
/'i-l!
Bryant can:be based upon the idea that morality would be removed
from the lavJj' "Case lawyers, it was implied, elevated reason above
: '''I'1
the moral Sense and pridefully asserted that reason alone could
j.jj;
guide judicial decisions." (Johnson 1978, 118). The elimination
of the useiof moral opinion in reaching judicial decisions would,
in turn, bejel detriment to the average person since they would no
i' L!,
longer be protected from actions simply because those actions were
::iif
not fair. Students entering the training provided by case study
l!'i!
: u\$
58


would, therefore, be taught to use precedent to determine their
;i-Ji
actions as an attorney instead of relying on their moral
1 i '
' ||l!'
understanding of right and wrong.
: H;
The system based upon case study, therefore, creates an
attorney that is incapable of defending the common citizen of the
United States. "This system faithfully nourished and fundamentally
upheld a developing legal order which has become more aristocratic
and less responsive to the needs and strains of a complex society."
; '-i!
(Nader 196?jj;236). In short, the system developed by Harvard has
ji;i
created an attorney who is better suited for defending a corporate
; 1 i'f;
client because that system does not rely on moral philosophies of
i ].. ]1
right and wrong. Corporations are far better served by a system
that does not include a concept of social justice, because while
1 ' I
treated likeuindividuals by the courts, they are devoid of human

emotion ari&iare not driven by human emotions in order to maintain
ii?
their place jin society. It was the unwritten common law that
:i !!',
helped to provide a concept of social justice but the use of common
law is nowjiess used because it is not consistent with the
teachings that occur under case method. The individual was better
protected against injustice under the use of common law because it
I 1
was based upon traditional conceptions of right and wrong rather
n.
*-.i'
than strict11 adherence to written rules. The system of basing court
1., r!
decisions upbn concepts of morality was not perfect in the sense
i':i'
that the morality of judges who come from different racial and
gender classes may hold moral conceptions that are not the same as i
i i'
'! i;,i:
59


other racial;iand gender classes. Case method, however, is not at
all concerh&cii with unwritten law. In fact, the basic criticism
' r. ,i
; |m
about the case method system is that it provides attorneys who are
"inhuman" inj:that the student becomes far removed from allowing a
concept of:| social justice to enter into the law. Students are
taught to think like machines and not like people who have a basic
understanding of right and wrong. "Three years of law school
>1 |-|!,
devoted Wl'egal reasoning and substantive learning have so little
to do with: the human dimensions of being a lawyer that those
dimensions';will almost inevitably seem less important..." (Ehrlich
3
1980, 320).f'
The desire of Langdell to treat the teaching of law as if it
were a science through case study, then, has had the effect of
producing ;graduates that act more like a machine than a human. The
criticisms; about the case method have been the same ever since its
i,!1
original implementation. The criticisms against case method
I
; i,|:'
started in';the early twentieth century concerned themselves with
! i'l'
the fact that, the system eliminated any concept of social justice
[^1
and it changed the type of lawyer in the United States since the
'k
lawyer wasno longer trained to use moral judgment in arguing a
ill'
case. Little has changed in the criticism leveled at case method
i hji
in the 1980s..
The questions to be left to the 1970s and 1980s included such
fundamental issues as whether the law schools were any more
than high-grade schools of rhetoric and, more uncharitably,
whether | |:their tendency was to produce analytic giants but
moral'pygmies. In recent years, the case method has been
60


attacked for fostering the notion of the lawyer as an
"objective scientist" who discovers fundamental principles
rather''1;'than a system of training that would eschew
technicalities and encourage an advocate to use "basic social
and mo'ral values" to make legal rules. (Stevens 1983,
121-22).
i*,
'
1 r
. ij1
Despite the^continuing similar criticism of the case method, there
i, i'j!
has been no';attack strong enough to inspire law schools to abandon
the use of; the technique and it seems that there is little hope for
seeing case "method being abandoned because it has become so
, r:
i i'1
entrenched'in legal education.
. I;
There .have been some changes in the way that law schools teach
i'l;'
law but case study still remains unchallenged by the small changes
' !ii!
in law school curriculum that provide for seminars that concentrate
on a narrow.jarea of the law. Case method, however, still rules
supreme and -it receives criticism from some attorneys, some
'i
individuals iwithin the legal education system, and by law students
themselves..'yThe largest concern about the case method is that it
trains amoral corporate functionaries. The problem is, however,
that as lav/ ischools have embraced analytical study of the law, the
decisions of!;I,courts have fallen into line with the thinking of law
as a sciencei Common law is not primarily relied upon by the
.|i
courts of the United States as they now follow statutory and
constitutiqnal law almost exclusively, as opposed to early court
; i!
use of common' law. The concept of moral principles of justice does
still exist, to some degree in the United States in the sense that
j|
the federal; courts are courts of law and equity and equity is based
61


upon a concept of moral fairness. Legal decisions are generally
based upon,precedent in the United States of the twentieth century,
rather than;moral correctness. Law schools, therefore, have an
effect on the legal system of the United States because some law
school graduates eventually become involved in the political system
and become judges who are responsible for dispensing "justice" in
the manner in which they were trained in law school.
Socratic Method
When Langdell implemented case study at Harvard, he also
concentrated on the use of the Socratic method by which to teach
students the!importance of cases. Advocates of Socratic method
define it as a teaching method based upon continuous questioning of
a student. Socrates always had a question to follow up every
response and that type of stimulus for thinking is in some form
used at the law school level. Detractors of the method, however,
view the Socratic method as parallel to the actions of Marine Drill
Sergeants. Unlike Socrates' beliefs, the Socratic method employed
by the modern American law school is based upon punitive action
against the student for "incorrect" answers. The use of the
Socratic method by the modern American law school is, therefore, an
effort to break down any resistance from the student towards
his/her belief in the correctness or incorrectness of a legal
decision and force him/her to "think like a lawyer." The use of
62
I


Socratic method can be both cruel and demeaning to a law student.
It is not eajsy to tell whether Socratic method is a means for
enforcing qiliick and precise thought among students or whether it is
'r
a way by which to indoctrinate law students. The Socratic method,
\ 1 | i ,
by the very i,nature of its reliance on continually probing
questions,; Ijias become the target for many of the same types of
'I'-ji
criticisms,faced by case method.
! Ij:
The Socratic method is used by law professors to humiliate law
students into accepting the positions of legal decisions as being
! i'.ji'
correct beyond all and any question. In relation to the use of
! i-.ij
I pi I
Socratic method by law professors, Paul Savoy believes that:
One problem with the "Socratic method" as it is usually
practice1^ is the failure at some point to make explicit for
students1 the nature of the strategies we use to defeat them or
the processes by which they defeat themselves. We expose
students] to intellectual battle without ever providing them
with an arsenal of skills, and.that seems a little unfair,
especially when we stay up half the night writing and
rehearsing the script for the military drama we stage the next
day...'.But we still expect a student to learn the skill
ritualilsjtically by subjecting him to the initiation rites
of public humiliation, sarcasm and ridicule. (Savoy 1970,
244). i !i!:
hi-1
ill:
Hi
The use of .the Socratic method, then, becomes a type of game that
: ll'1
is played outs between the teacher and the student where only the
professor kniaWs the rules. The ultimate goal of the game played by
: li|:
law professors is that of forcing the student into accepting the
;'!1:
assumptions;] methods, conclusions of the legal status quo. Ralph
' !i !'
Nader, a Harvard law graduate himself, finds that:
63


!;.
I.1,
These jfcechniques were tailor-made to transform intellectual
arrogance into pedagogal systems that humbled the student into
accepting its premises, levels of abstractions and choice of
subjects. Law professors take delight in crushing egos in
order jtp acculturate the students to what they called "legal
reasoning" or "thinking like a lawyer." The process is a
highlyj sophisticated form of mind control that trades off
breadth'of vision and factual inquiry for^freedom to roam in
an intellectual cage. (Nader 1969, 236).
The Socratib1method, then, is a tool by which to brainwash law
students into accepting the findings through case study of court
decisions as'being correct beyond question.
||
The use of Socratic method has also been criticized for its
stifling of! a law student's intellectual ability. In the use of
, ; ii,
Socratic method, students are persuaded not to question the
judgment ofithe courts or of the law professor. It is the law
i ;
professor who reigns supreme in a classroom that holds students
that became' Itrained to be nothing more than sheep in the legal
l.;i
world. By,preventing innovative thought, the intellectual
possibilities of the student are limited extensively.
In addition to criticisms of the emotional result of the
Socratic method we now hear claims that the process does
damagej;to the student's intellectual initiative and
imagination. The limits of the discussion are totally
controlled by the teacher: his assumptions frame the
discussion; his questions are considered. The student, it is
claimed; is conditioned to work in a "given" framework, not to
construct his own. (Packer and Ehrlich 1972, 30)/
11
The student/then, becomes conditioned into believing that all that
is taught in!.law school is right and not open to debate. This
. I- i
criticism is, based upon the belief that students are taught not to
64


!\l
question what the law professor tells them to such an extent that
they will not "make waves" once they are released into the legal
profession;!
V Independent thought is discouraged and the law
student, therefore, learns that the lawyer is supposed to be
subordinate
ijto all laws regardless of their own thoughts as to the
correctnessi ;of the law.
.. i.l
The use!;of Socratic method gave case method a certain
:1:1! a
i.1 I-
legitimacy £pd it is not difficult to understand why the two are
used in conjunction with each other. Case method teaches the law
student to sjearch only for precedent and written legal rules. By
the same token, the Socratic method teaches the student not to
. r|'
question theiauthority of written law. Through this combination of
case studyjialnd Socratic method, the law student becomes trained to
; j^l,
accept thesystem of written laws in the United States without
condition.1:: j+he student, then, loses the human element involved in
. ! rj i
i'll1
the law. The Socratic method receives, in addition, the same
i^; -
criticism jasj; does the case method. By using case method and
' inl 'i
Socratic method in combination with each other tends to lead to the
-Si'
mechanization of law. Case method eliminates the human side of law
rii1
by persuading students that it is not scientific and logical to
1 ; ii!'
think beyond I; analysis of law and to seek out moral justice.
1 M'l
The mechanization of legal education through the dual use of
case study: aijnd Socratic method has also been indirectly criticized
' i! I1
for its ability to "chase" certain types of individuals out of
legal studyjjin favor of those individuals who are better suited for
65


corporate practice. In criticizing current American legal
education, Gerry Spence points to a study that was conducted in
order to determine the role that the system plays in providing a
specific type of attorney. The study found that there was a fairly
high drop-out rate for individuals who were people-oriented in law
schools. It. was also discovered that people with extroverted
personalities were incredibly under represented in law school.
"These researchers concluded that those law students who remained
in school !are not primarily concerned with implementing individual
judgements about the restructuring of society to improve social
O
justice."' (Spence 1989, 44). It would seem, therefore, that the
use of Socratic method, in particular, tends to dissuade
socially-conseious individuals from pursuing a legal career.
The overall criticism of the use of Socratic method is that it
i
prevents those individuals who are most likely to fight for the
human dimensions of the law from attempting to complete their legal
education. Those individuals who want to protect the human
i ,
dimensions ot the law who do continue in their legal studies find
themselves fighting an uphill battle in the current American law
school and tend to give up their grandiose ideals. "Many who do
survive the entrance cut are soon disgusted and leave, for law
school is no place for human beings who care about other human
beings." (Spence 1989, 45). The concept of a people's lawyer, it
seems, is quickly crushed by the American law school's use of the
Socratic method.
66


I I,-I
ill
The corporate world of the United States seizes the oppor-
111
tunity thatj.iit is presented by modern American law schools and it
rj>
quickly takes, for itself, the best of law school graduates.
Graduates oj^i'the modern American law school, having been drained of
' I '
human compassion according to the criticisms leveled at modern
l-ii1
legal education, have no trouble accepting legal work in the
: i.ii
corporate fi£ld which offers larger salaries than do legal
positions in;!public interest fields. For example, figures that
were up to;dste in 1985 for average starting salaries of attorneys
in the various fields of the law were: in-house corporate
, i '
:;n
attorneysr$i3}3,000, the 250 largest private law firms$36,000,
1 i!;
federal government attorneys GS-11$25,366, GS-12$30,402,
GS-13-$36,15i2, GS-14$42,722, and GS-15$50,252, legal aid was
! ii
between $12j000 and $18,000, public defenders were between $13,000
' i:ii
and $20,000;':j'and public interest was between $13,000 and $20,000.
;! Pjl|
By being stripped of any significant belief that human compassion
belongs inPuie law, graduates of today's American legal education
system find !:it quite easy to accept cash over humanity.
i i1
A government by, of, and for the people can only suffer from
having attorneys that are trained to eliminate the human dimensions
to the laws ;o;f the United States. The United States government
consists of ]& large number of individuals who have a legal
background.|:!People who have been trained to eliminate the human
i iJ:'
condition from law cannot surely be expected to write laws that
take the human condition into consideration. What has happened is
i'!.
67


that the governmental system is not by, of, and for the people and
' E
there are those who would contend that the government of the United
States never? was by, of, and for the people. For example, Charles
Beard contends that the United States Constitution, which is the
basis for the government of the United States, is designed to favor
! ] i !
one group o^i: American society over others without readily appearing
1 i'ii
to do SO.
Jlj!
"Havin'g! proved to his own satisfaction that the delegates to
the Convention were the representatives of personalty, Beard
then went on to show that the Constitution was fundamentally
an economic rather than a political document, designed above
all eljse to protect personality from the leveling attacks of
democracy. The true nature of the Constitution is not
apparent on the. surface, he said, for it contains no property
qualifications for voting and does not outwardly recognize
economic groups or confer special class privileges. Only if
we stufd^ newspapers and correspondence of the time, or read
The Federalist or the debates in the Convention, do we begin
to understand the true nature of the Constitution. Our
understanding is broadened by a study of such items as the
structure of government on the balance of power, powers
conferred on the federal government and denied the state
governments, and the economics of international politics.
Theseiwill convince us, said Beard, that the Constitution was
not a;piece of abstract legislation reflecting no group
interests or economic antagonisms. (Brown 1956, 92).
. i
EE
In short, Beard believed that the Constitution was consciously
designed to.
favor certain goup interests over others rather than
being an instrument for equality. It is very clear, however, that
modern American legal education has an impact on the way in which
: i: i'li'
the government operates. If some people felt that the American
system of government has never been by, of, and for the people,
those people! can only be frightened about what the government may
'M


il
become giveni;the type of attorney that is produced in today's
;if
system of legal education. Legal training that eliminates the
human dimensions of law can only lead to an American government
made by thejipeople, of the elite, and serving the desires of the
: ' i: i '
elite. Looked at in the previous light, the people of the United
ji1
States standi to lose a great deal if American legal training does
not change;anytime soon.
Practical Knowledge.
The use'fof law school as the sole training ground for
! Lj1
attorneys has led to the criticism that students do not receive
' i-;!'
enough practical training in the law, if they receive any practical
[ j|,
training at j: all. To be sure, the majority of the legal students'
time is spenjt studying cases and attending some seminars.
Practical training that existed under the apprenticeship program
: jiiii
does not really exist in the modern American law school. There has
1 i j.
been and currently are movements within the law school system that
.if!!
provide clinical education courses for students, but the use of
i !y
this method]-of training is by no means a large part of law school
'! i1, f
curricula.1:!,the development of the Ford Foundation's Council on
. |
; |
Legal Education for Professional Responsibility in 1968 seemed to
1 i[|!'
signal that[clinical studies would become an acceptable part of law
school curriculum. C.L.E.P.R. used its funds to encourage law
rh1
i:!!
schools to experiment with some use of clinical studies in their
: If;
program. Many law schools responded favorably in implementing use
69


of limited clinical studies in their programs on legal education.
By the end of the 1970s, however, C.L.E.P.R. was to become
exhausted in its funds and hostility among academicians toward
clinical education was clearly in place. The result of the lack of
federal funding for C.L.E.P.R. and the hostility expressed toward
legal education by members of the academic field has been the
, i'
ultimate lack of clinical education in American law schools.
Despite the fact that law schools have been given the
opportunity!to implement programs that provide practical knowledge
i i,
of the law,!there is no strong evidence that the concept of
clinical legal education will make inroads into the standard law
school curriculum. There truly exists, therefore, a lack of
practicality to the current methods of legal training. Critics of
current law school curriculum find the absence of practical
training in law to be an element which provides incompetent
graduates. ;"It is evident that graduation from an accredited law
school and admission to the bar...do not equip the fledgling lawyer
with the skills necessary to provide adequate representation for a
I it
client." (Fdrer 1975, 223). The graduate of a law school simply
does not know how to conduct himself in a court. The client is the
one who ends'| up paying the ultimate price in the American legal
system because of the lack of practical knowledge held by young
attorneys. Fledgling attorneys must gain practical experience on
l'i
the job and; at the expense of many clients in the modern American
system of legal education. The American law school simply does not
70


teach the student how to present arguments or proceed in
l\ 1
questioning while in a courtroom. Put more bluntly, "...the law
school graduate generally is not competent to do anything very
well." Packer and Ehrlich 1972, 20).12 With the exception of some
introduction to advocacy courses, the curriculum of the modern
American law school simply does not train the future attorney as to
the way by;which to conduct the daily tasks of a competent
attorney.
The young criminal defense attorney is probably the most
incompetent; of any of the graduates of law school. It is extremely
important to understand the criticism leveled at legal education
about the lack of practical training in regard to the competence of
' I''
attorneys provided for criminal defense because these are the
attorneys who are vital to carrying out the essential stated
purposes ofj'the American political system that is based on a
l.
concept of equality and liberty. The United States Constitution
explicitly provides any individual accused of a crime the right to
have counsel| in the Sixth Amendment. The goal of the Sixth
i '
Amendment is quite clearly one of attempting to ensure that the
concept of innocent until proven guilty is carried out in the
1 j
American system of law and government. The rights of the
criminally accused are protected in order to prevent abuse of the
accused by the masses. How can anyone, however, expect attorneys
' i
to fully protect those accused of a crime against the excesses of
the law when the fledgling attorney is ill-prepared to do so given
71


Jil7
i:!'
ill!
the legal ecijcation received by that attorney? The answer quite
< l\
simply is that, as a whole, the people of the United States cannot
expect a young attorney to be able to offer protection against
possible excesses of the law.
We madefa wise choice in guaranteeing a lawyer in every
seribus'll criminal case but we must now make certain that
lawyers:j!are adequately trained, and that the representation is
on a High professional basis. It is professional
representation we promise to give nothing more and
always^within accepted standards of conduct. (Lineberry 1972,
205).
M1
;" i''i
,, i'jf
Certainly :tljile lack of practical knowledge of the law by young
attorneys dqjes not fulfill the criteria of offering professional
i | !.l:l
representation. At best, legal education without practical
knowledge offers professional representation in name only. Any
i i'|i:
time an attorney does not know how to cross-examine or question a
hostile witness, surely that attorney cannot be considered to be a
professionals The problem is that legal education minus any
serious practical legal knowledge, which is the system currently in
place in thefj [United States, does not provide a truly professional
attorney. ' j.
Another:j/.problem with the reliance of the current American
'.I'if
legal education system upon purely analytical classwork is that
' ' i ''
students b$cqme bored with their legal education. Beyond the first
: I'li'
year of lawfschool, students seem to become bored with the
; : i|!;
repetitive; nafture that occurs in their second and third year
classes and pauses students to turn themselves off intellectually.
; IT:
72


i HK
1 ii'
!,U:
Research by Carrington and Conley at the University of
Michigaip indicates that approximately one out of seven law
students drops out emotionally and intellectually, most
witho,ujt[! formally withdrawing from school. The study
discovered that alienation was the most important factor
drivi'ncjjthe law student away from his or her classmates, with
the disengagement being not so much hostile as turned off.
These,! students were often the least sure of why they entered
law school and became increasingly displeased with the entire
experience. (Wice 1991, 20).1
!'|i
The first year of law school imparts the necessary analytical

i-:i'
skills needed by the lawyer yet the second and third year of law
:! lli.
school education offer little that is different from the first year
rii'
i
of study, iEvery class is treated as if it is an introductory class
''1!
throughout tbe entire three year tenure of legal education.
"Taxation,:1 Jirusts, corporations, and whatever march by appearing
exactly alike. Most schools provide little opportunity for
specialization or in-depth study." (Packer and Ehrlich 1972,
15 ' !'
32). The student, then, does not become intellectually
'''li
stimulated^ during the second and third years of legal study. In
i.]i;
part, the criticism is that law school does very little to
i '! 'si i'
, !::il
eliminate the tediousness of law study. Part of the boredom that
i rii1
occurs in th(e current legal education system, it is argued, could
be cured through the use of practical training for students of the
law. 'T,?
.: hi!
i. iij:
A clinical education program seems to provide a great
educational input back to the law school in the form of
greatly1,|heightened student interest and motivation in their
studies!*' including the traditional classes. Time after time
this tljreme was echoed at the Institute on Curriculum Reform
and Clinical Education held at the University of Southern
California in November 1970. "They (the students) just came
73


back much better students." As Dean Goldstein at Yale has
said, Vlt has seemed to me in the past that clinical education
is most effective when it takes students who are turned off in
a variety of ways and makes concrete for them a lot of very
abstract things. And for many of them it turns them back into
the academic exercise ip a very, very effective way." (Packer
and Ehrlich 1972, 41).
Clinical legal education, then, removes the student from the
sterile andj boring instruction of the classroom and offers new
insights into the law for law students. Some of the insights
offered to students through clinical education come from the
exposure that the student receives in working for other sectors of
American society that have been traditionally under represented.
The new insights that are offered to students through clinical
education, in turn, create an intellectual stimulus for the student
that is reflected in a renewed academic interest. In short,
clinical education offers a break from monotonous study and renews
student energy.
The largest criticism against the lack of practical training
for law students is that, just like the use of case method and
Socratic mdthod, the training provides graduates who are better
suited for service to corporate America. The criticism leveled
against thejlack of practical education preparing students for
corporate practice rests in the fact that corporations are
represented by very large law firms. The large law firms of
America do hot require the need to receive young attorneys with any
I 11
| ,
practical experience because those firms can afford to provide the
74



l!
I
new attorney1! with inhouse practical experience. "The gap between
schooling ancl practice has to a minor extent been filled by the
large law Offices which spend several years training their young
associatesihj: (Forer 1975, 226). The economic circumstances of
public interest law firms, however, do not allow for the
development! jof a quasi-apprenticeship program that exists for
corporate la'w firms. The American law schools do not even attempt
1 I; |'1
to disguise |:|the fact that their graduates are better trained for
1 1 . i 'i
;l i ';
entering thejflaw firms that can provide practical experience for
the individual.
. i-i i
' if
Dean Brest of Stanford admits, "If the student is likely to go
into solo practice, then our graduates would be badly
prepare^. The assumption underlying our law school is that
they are going to work for firms in which they will be
apprent|ced. In medical school, the student is given clinical
training with live patients. In law school, we turn them over
to the!:^irms for that training." (Spence 1989, 242).
The largest 'ilaw firms become the biggest winner in the game of
offering practical training to law school graduates. The larger
the law firmt the more able that firm is to train a young attorney
; f!
in the practical aspects of the law. In turn, large firms
:i, W.
represent thej wealthiest of clients rather than the typical citizen
of the Unitejdj States because the costs of operating a large firm
are large. |The wealthy of America, then, receive the best legal
representation possible while the average American must settle for
having representation that is nowhere near as potent as that of the
corporate aflena. "Wealthy clients, regardless of how unpopular
! I'
I l!
I i'I
75


they are, can always find good lawyers. Oil spills, chemical
pollution, and plane crashes may mean bad press for big business,
but they are' easy money for elite law firms..." (Grutman and
19
Thomas 1990;, 58). The common American citizen, however, has
extreme difficulty in finding and paying for a good lawyer. The
criticism of the average American citizen is not meant to be read
as saying that all of the lawyers which can be found to defend the
citizen are bad lawyers, but that corporate America has a far
easier time of finding the best legal representation. There are
good lawyers out there who make their living representing common
clients but they are relatively few and far between and becoming
even fewer.
The largest criticisms against modern American legal education
have to deal with case method, Socratic method, and lack of
practical training. There are other criticisms against legal
education in' America which are also concerned with the elite class
that is both.produced and protected due to the way by which law
schools operate. The admission policy to law school is constantly
criticized as a means by which law schools ensure that the elite
are allowed;to enter law school. The basic requirements for entry
into law school are based upon an individual's grade-point average
while performing other studies at the university level in
combination with a numerical score from the L.S.A.T. The criticism
is two-fold.in regard to the entrance requirements to the current
law school system. "To be sure, lawyers should be comfortable with
76


I i>i;
> I-.,
I''1
scholarly endeavors, but there is little correlation between
:;;i:
: i
grade-point^averages and the success of the graduate as a
r( 20
practicing lawyer." (Spence 1989, 46). More importantly,
however, is'/that the entrance requirements for law school tend to
prevent minorities from entering law schools. Likewise, the cost
' S
of a legal education has come under fire for two reasons also.
Yi
Today's American legal education is by no means cheap. Even an
, I
investment in the least expensive of accredited law schools can be
very expensive. The cost of legal education, therefore, becomes
prohibitiveV|or minorities and the common white American citizen.
The minorities and common white American citizen are those who are
most likely to become lawyer advocates for the people but they are
prevented/economically from entering law school. The other
criticism about the high cost of legal education is that it
-S
encourages graduates to seek out high paying positions with
' ii:!|
corporate law firms in order to pay off loans and see an immediate
cash return upon the student's legal education. The fact that law
school tends jto provide corporate America, with attorneys through
'J.i;
both the metHods used at law school and the high monetary cost
: yi'
involved lead; us to a look at how politics in the American system
'j
shapes legal/jeducation and., in turn, how American legal education
shapes political policy. If we can understand the role that legal
1 '/I
education arjcfi American politics have on each other, we can suggest
some reforms -(that may be more conducive to promoting the concept of
V11
government by|, of, and for the people.
77


Notes
1 1 | i i'
For|;|more information on how some schools attempted to
resist the! movement toward case study see p. 62 of Stevens, (1983),
in which St;eyens discusses the movement toward the use of case
method at Valparaiso University in the 1908-09 academic year.
O j'j l'
^ Johnson discusses the opposition to case method
implementation at the Wisconsin College of Law by Dean Bryant who
did not feei!; that case method represented a scientific method of
study. Itijwas not until Bryant resigned his post that the law
school implemented the use of case method.
.* i1
3 "M;
Ehrlich contends further that the teaching of law through
the current] [system tends to remove law from reality and the student
may become1; dn attorney who does not see or understand the human
drama involved in any case that makes the case important to those
involved, p!
ini
4 -Hu
Stevens states, however, that it is arguable that the
effect ofcase method was to create true advocate lawyers who are
better armed;than ever before because they have written rules to
rely on. Stevens does still contend, however, that moral values
have been lost through the use of case method.
Savoy further explains the use of the Socratic method by
comparing; ijt:|i to the methods used by Zen masters where every
position taken by an individual is refuted by the master. The only
difference!between the use of Socratic method and Zen is that the
Socratic mettjiiod is, in combination with case method, designed to
show a student how to win an argument while the purpose of the Zen
master is tq|;show the futility of argument.
6 Nader continues on to complain that case method used in
combination pylrith Socratic method is a game which only the professor
can win and jithat students are conditioned to read to law which they
did not have]|ia role in creating. The student, thus, becomes a
slave to past court decisions rather than attempting to have new
laws institiliied.
^ Packer and Ehrlich contend, however, that law teachers are
not apt to iaccept the criticism levelled at the stunting of a
student's Intellectual ability through the use of Socratic method.
The contention by Packer and Ehrlich can be easily believed when
':! li.
: ill
ill
/ r'
I,'!
78


one comes to understand that law professors contend that their
teaching methods stimulate intellectual thought based upon the fact
that a student must be constantly prepared to answer the questions
of the law professors.
Q
The study discussed by Spence found that the attrition rate
for individuals deemed to be "thinkers" was 11 percent, "feeling
types" was 20 percent, and people-oriented individuals was 28.1
percent. The significance of the study for Spence's argument is
that individuals who were more sensitive to human emotions left law
school in a higher percentage than did "thinkers" who were not as
sensitive to human emotion.
9
In particular, Spence contends that the system of legal
training that turns people into computers greatly prevents
minorities from taking part in the legal profession.
^ The term "personalty" means personal property that is
moveable in nature and is owned by merchants, moneylenders,
security holders, manufacturers, capitalists, and financiers as
opposed to realty which was real estate owned by small farmers.
^ Forer further reprints a letter she received from a
distinguished lawyer in Michigan to further her point about the
inadequacies of law school graduates. The letter from the attorney
explains how his legal education did nothing to teach him how to
conduct himself in court and to file important papers with the
court. In addition, the lawyer claims to have received his
education at a "first-rate law school."
12
Packer and Ehrlich discuss how the common education and
common passing of Bar examinations gives the public the impression
that lawyers are competent in all fields of law. The truth is,
however, that attorneys, at best, are minimally competent in one
field of law, upon graduation from law school, because students are
only trained, in basic fundamentals of law, i.e., analysis and legal
theory.
^ The provision for legal representation is really
guaranteed for all criminal prosecutions rather than just serious
criminal cases as Lineberry suggests and is outlined in Amendment
Six of the United States Constitution which states in full:
In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of the
state and district wherein the crime shall have been committed;
which district shall have been previously ascertained by law,
and to be informed of the nature and cause of the accusation;
to be confronted with the witnesses against him; to have
79


compulsory process for obtaining witnesses in his favor, and to
have the assistance of counsel for his defense.
^ From Paul Wice (1991) discussing a study completed by Paul
Carrington and James Conley about the alienation of law students.
Packer and Ehrlich further contend that efforts to revamp
legal education in the second and third years has still, as of
1972, left students protesting that nothing has really been done to
eliminate the boredom experienced in the second and third years of
law school..
^ The quotation of Dean Goldstein of Yale by Packer and
Ehrlich seems to refute the belief of students that there has been
nothing done;to help alleviate the boredom experienced in the
second and third years of law school.
^ Forer also links the fact that law school curriculum fit
the needs of,large law firms because alumni of leading law schools
who are members of these firms dominate the schools. In turn, the
less academically talented of law students end up in firms that
cannot provide on the job training and they continue to lack in
their legal skills.
18
The problem with Dean Brest comparing medical education
with legal education is that clinical study in medicine must be
completed before a student may become certified in the medical
profession. In the field of the legal profession, however,
individuals .who have graduated law school may become certified
before they ever gain any clinical experience.
19
Grutman, like Spence, shares the same belief that law in
America is not for the common citizen. The growth of corporate
America has made law a large money venture. The system has become
so caught up in money that only the wealthy can truly attempt to
find justice.
20
Spence (1989), states further:
According to studies presented by ETS (Education Testing
Service)' itself as long ago as 1977, the LSAT is only 13
percent accurate in predicting first-year grades. This means
that in 87 percent of the cases, candidates for law school
could be ranked equally well by a random process, such as
rolling the dice. (Spence 1989, 46)
80


CHAPTER 4
EFFECTS OF POLITICS ON LEGAL EDUCATION
Although Jefferson created the first American law school, the
idea did not catch on quickly and the apprenticeship system
remained firmly in place. Nevertheless, Jefferson created the
University of Virginia in 1825 in which law was also to be studied.
For Jefferson the concept of teaching law based exclusively on
judicial decisions, as is common practice in the modern American
law school, never entered his mind. In fact, Jefferson supported
the concept of teaching law in a manner that did not stress
technical aspects of the law. Legal education, then, in the
Jeffersonian ideal was basically an element of general education.
The Jeffersonian relation between legal and general education
has two aspects: (1) law is treated as a branch of
government, and the course of legal study embraces
constitutional law, political economy, and legislation; (2)
the curriculum is so organized that the study of law can be
pursued,,; as the field of special interest, concurrently with
other university studies. (Cullison 1971, 276).
That legal education at the University of Virginia followed the
pattern of being, in reality, a general education is consistent
with the Jeffersonian concept that all citizens should understand
law and politics in order to be prepared for their role as citizens
in self-government.


While 'Jefferson was content with providing legal education
that was aimed at enhancing the legal and political knowledge of
the citizenry at large, the movement throughout the country had
followed a different path. Jefferson was no fan of the concept of
using prescribed periods of preparation in legal training prior to
admission to. the Bar. Meanwhile, however, the movement was toward
prescribed periods of study in apprenticeship prior to admission to
the Bar. The movement toward pre-requisites toward practicing law
was designed so as to provide legal training for those individuals
who intended on becoming attorneys. Following the American
Revolution, only Virginia did not rely on a period of apprentice-
ship prior to entrance to the Bar but, rather, the state merely
required that an individual pass a fairly simple Bar examination to
gain admission to the Bar. At the same time the other twelve
original states had required periods of legal study as an appren-
tice as a pre-requisite to gaining entrance to the Bar. In
addition, the states requiring apprentice work also made reductions
in the length of apprenticeship study required for college
graduates. The practice of many states, then, following the
American Revolution was to endorse the principles of Blackstone who
felt that a general education prior to legal study was appropriate
to ensure that those who would be allowed to practice law would be
competent. The concept of required general education took hold at
82


the college level with the establishment of the Harvard Law School
in 1817, in which instruction was intended primarily for college
graduates.
The nature of the apprenticeship program and the requirements
for a specified amount of training by the states, except Virginia,
helped to ensure that the legal profession was made up of indiv-
iduals of the elite classes of early America. Apprenticeship in
early America was not a means by which an individual could earn
enough money to ensure their survival and, thus, it became apparent
that training for law was a wealthy individual's opportunity. With
growing popularity, a democratic movement was occurring in America
in the middle 1820s that was geared toward, at least partially,
opening legail training to everyone rather than an elite economic
class of individuals. Jacksonian Democracy arose after the War of
1812 and its:aim was to eliminate political and intellectual
inequalities. The culmination of the populist movement in the
United States' was the election of Andrew Jackson as president in
1828. 1
The attempt of Jacksonian Democracy on the legal profession as
a whole was to weaken the elite position held by lawyers in
American society. "There was a swelling demand for universal,
publicly supported education, and popular insistence on voca-
tionalism made itself felt throughout the education structure."
(Cullison 1971, 279).^ The restrictions placed on the ability of
an individual to gain admission to the Bar through the provision of
83


required periods of study were relaxed by the states following the
demands of the populist movement that was sweeping across the
country. The states either reduced or abolished apprenticeship
requirements: for entrance, to the legal profession under the mandate
of Jacksonian Democracy. "As formal education fell into dis-
respect, however, the outward manifestations of professionalism
appeared to collapse." (Stevens 1983, 7).3 By 1860, only nine out
of the total thirty-nine legal jurisdictions in the United States
required any,definite period of legal training through appren-
ticeship before admission to the Bar was granted. The relaxed
standards for. admittance to the Bar also wreaked havoc on the early
system of American law schools. Many law schools simply folded
i :
under the pressure of Jacksonian Democracy since their legal
training served no real purpose in a system where prerequisites for
entry to the Bar had either been incredibly relaxed or abolished
altogether.
The populist movement in America that occurred before, during,
and after Andrew Jackson claimed the presidency, however, did
receive some opposition from lawyers. The legal profession in New
Hampshire was upset in 1842 when the state relaxed standards for
entrance to jthe Bar for any citizen who was over twenty-one. The
legal profession in New Hampshire, however, had no means by which
to prevent the state from allowing whomever it wanted to gain
entrance to the Bar. The populist movement, then, was seeing its
programs carried out in the manner.in which it had hoped in order
84


to open the profession of the law to any citizen who wished to join
the legal practice. In some states the legal profession actually
accepted the populist movement with open arms. "Some members of
the profession even welcomed such moves as evidence of the
competitive American spirit rather than as an attack on the bar per
se." (Stevens 1983, 9).^
The reorganization of the Harvard Law School under Joseph
Story was consistent with the movement among students who demanded
that the law schools provide them only with education that was
directly connected to the practice of law. At Harvard, in
particular, the changes amounted to both the elimination of the
general education prerequisite to entry into the law school and the
discouragement of law students from participating in classes that
were outside, of the legal field. Joseph Story followed the desires
of law students of the Jacksonian Democracy movement by offering a
legal program that was more vocational in nature than ever before.
The changes made at Harvard by Story were done primarily in order
to ensure the survival of the law school at a time when other law
schools were disappearing around the country because there was no
real need for1 law schools at a time when requirements for entry to
the various state Bars were extremely lenient. The program offered
at Harvard by Story, therefore, was more concerned with providing
students an education that was more closely related to being an
attorney than had ever occurred at the level of the law school in
the United States before. Interestingly enough, however, "...a
85


large proportion of the law students continued to be college-
trained-a majority, until 1869-70; but the necessity of such
training had been denied." (Cullison 1971, 295).^ In theory,
however, the reorganized law school became similar to the early
private law school in that the study more closely resembled that of
office training. To be sure, the reorganized law school did not
provide practical legal training but it did begin training students
municipal law. instead of offering classes that were concerned with
the philosophical aspects of the law. The reorganized law school,
in theory, was also a means by which to carry out the Jacksonian
ideal of throwing the doors of legal practice open to every
citizen. With the relaxation of Bar admission requirements, legal
training was no longer necessary. The practice of individuals
entering the iegal profession, however, was to obtain at least
minimal legal.training. Entering into the legal profession without
any prior training certainly would not have been prudent. Under
Jacksonian Democracy, an individual who wished to receive extensive
legal training prior to admission to the Bar could still obtain
that training but it was not required.
,i i.
It is important to remember that the main result of the
populist movement in the United States, that was enforced by Andrew
Jackson, on the legal profession was the relaxation or complete
abolition of prerequisites for entry to the Bar. Of particular
importance, it must be recalled that all previous prerequisites to
entry to the'Bar, except in Virginia, relied on specified periods
86


of time spent in apprenticeship with the lowering of that period
for college graduates. The Jacksonian Democracy movement, however,
weakened the need for an individual to gain legal training through
apprenticeship. In turn, legal education in the law schools became
more vocational in nature in order to ensure the survival of the
law schools. The differences in legal training through appren-
ticeship or law school became inconsequential as explicit require-
ments of apprenticeship were relaxed. Although the practical
experience of the period may indicate differently, surely
Jacksonian Democracy laid the foundation for the modern American
system of legal education. The law schools became more vocational
in nature in order to survive but they also discovered to a certain
extent that legal training exclusively in a law school was
possible. Under Jacksonian Democracy it did not matter where an
individual received his/her legal training or if he/she received
legal training prior to admission to the Bar. Since training for
the legal profession was not specifically required through appren-
ticeship under Jacksonian Democracy, one cannot help but think that
the populist movement perhaps planted the seed in law school
administrator's minds that competent legal training could occur
exclusively at the law school. During Jacksonian Democracy:
Law schools started as a supplement to and then as a
substitute for law office training. They were strictly
vocational in orientation with no admission requirements and
with a course of study that lasted less than two years.
Students would come and stay for as long as they thought it
07


useful to do so. Without much difficulty a student could
arrange to be admitted to practice wherever he wished. (Stolz
1971,1227-228).
While legal training lacked formalization under Jacksonian
Democracy, it was the first time in America in which training in
law school was seen as a viable alternative to the apprenticeship
program. In ,practice, however, the majority of legal training
occurred in the offices of practicing attorneys. What Jacksonian
Democracy did was to, at least, plant the early seeds for the
modern American system of legal education that relies on law school
training.
Interestingly enough, Jacksonian Democracy was born out of a
mistrust for public officials and lawyers because they were members
of a privileged class. The prevailing thought was that public
officials and lawyers were more apt to be corrupt when they were
members of the wealthier classes in the United States because they
would tend to protect members of their own socio-economic class.
The populist movement, then, was an attempt to saturate government
i :
and the legal,' profession with the more common American citizen. It
was felt that.the possibility for corruption in government and the
legal profession could be prevented by saturating these fields with
common citizens who would be more apt to ensure protection for the
bulk of American citizens. The theory behind Jacksonian Democracy
88


then was to!limit the powers of the privileged class that made up
government .and the legal.profession. In practice, however,
Jacksonian Democracy had a very different effect.
Thus, for all the talk of Jacksonian Democracy and for all
the changes in formal rules, there seems little doubt that in
major cities like Boston the leading members of the bar played
a role* led a life, and enjoyed a status in 1830 little
different from that of their counterparts in 1800 or 1900. In
Washington the Supreme Court bar moved towards its golden
period, On the bench it was the period of Doe and Shaw. By
1830, judges in Massachusetts effectively controlled juries in
a way they had not even considered in colonial times. The
first half of the nineteenth century was a period of great
judicial creativity; on this even those of differing
historical perspectives agree. (Stevens 1983, 9).
The populist movement did little, then, in controlling the power
wielded by members of the privileged class in the United States.
In addition the lack of formalized rules toward legal education
helped to produce some incompetent lawyers. That is not to say
that no competent lawyers came into practice during Jacksonian
Democracy, nor is it to say that there had not been incompetent
lawyers practicing prior to the populist movement. The problem is
that more incompetent attorneys were produced during the populist
movement all in the name of democracy.
By the 1850s the results of over twenty years of Jacksonian
Democracy on the legal profession was beginning to lead to changes
in legal education once again. The 1850s saw a return toward the
institutionalization of legal education. The movement to ^in-
stitutionalize legal education was consistent with the movement
toward institutionalization of other occupational groups such as
89


medicine. "The changes in the attitudes of the various occupa-
tional groups were the result, among other pressures, of the most
laissez-faire of societies responding to the desires of a growing
middle class for a more structured environment." (Stevens 1983,
O
20). The growth of the middle class in the middle of the
nineteenth century was a partial result of Jacksonian Democracy.
The elimination of strong restrictions against entry into various
positions in the United States helped to allow social mobility.
Jacksonian Democracy was not the only cause for the growth of the
American middle class but it did play a role. Some individuals
claim that the desires of the middle class for a more structured
society are not readily known. It seems somewhat apparent,
however, that the middle class would want more structure placed
back into American society in order to solidify their new
socio-economic status. The new middle class had very little to
gain by allowing Jacksonian Democracy to continue in a manner that
was aimed at allowing every citizen of the United States some type
of governmental or professional involvement. If the aims and
programs of Jacksonian Democracy were allowed to continue unabated,
the middle class would continue to grow numerically but there would
be a smaller piece of the pie for everyone to share in the new
middle class. The desires of the middle class for a more
structured environment, therefore, was in some ways a self serving
mechanism by which to ensure that the new class would maintain its
new position in American society.
90


The middle class of America has always been a hybrid of the
common class and the elite, wealthy class. While members of the
common class can only move up on the socio-economic scale and
members of the elite, wealthy class can only move down, members of
the middle class can move either way on the socio-economic
spectrum. The middle class, therefore, has always aspired to
moving up the socio-economic ladder but it has also feared moving
down the socio-economic ladder. The middle class is safest from
falling down the socio-economic scale if standards exist which
support the more elite aspects of the middle class. It is vital to
recall that, "the imperious demands of the democratic opinion which
gathered force in the Jeffersonian years and came to full expres-
sion in the Jacksonian 1830s, brought extreme relaxation of
Q
professional standards." (Hurst 1950, 277). A continued
relaxation of professional standards favored the common class over
even the growing middle class of the United States because the
middle class is a privileged class in American society.
The return to the institutionalization of the legal profession
and, in turn, the system of American legal education was a reaction
to the "excesses" of Jacksonian Democracy. The catalogs of the law
schools that appeared in the 1850s and 1860s seemed to indicate
that their purpose was to combat the populist movement.
In both 'north and south there was a feeling, which had been
the rationale of Blackstone's lectures at Oxford a hundred
years earlier, that law was the ideal training for a
gentleman. When the faculty announced the opening of the
University of Georgia Law School in 1858, it made it clear
91


that "it is not those only who intend to devote themselves to
the law, that we invite to attend our school. There is in our
State a large number of young men who intend to devote
themselves to the honorable employment of cultivating the
estates, they inherit from their fathers. To them a knowledge
of the general principles of law is of inestimable value."
(Stevens 1983, 21).
Individuals who were in line to inherit estates most certainly did
not belong to the common class of America. The common citizen of
America certainly did not have an estate large enough to bequeath
to progeny that would require the individual to need a general
understanding of the principles of law. The only estates that were
large enough to provide concern for legal problems to the indiv-
idual inheriting it belonged primarily to the elite class and, to
some extent, the middle class. The middle class, by supporting a
more structured environment did not stand to gain a higher spot on
the socio-economic spectrum of the United States, but they
certainly protected themselves from falling down the socio-economic
scale. Additionally, the support for a more structured environment
helped to limit the amount of common American citizens who could
enter the middle class and, therefore, save more of the pie for
themselves instead of seeing their piece of the pie grow smaller as
more common American citizens joined the ranks of the middle class.
If nothing was done to stop the influx of the common citizen into
the new middle class, the new middle class would cease to exist and
once again many of the members of the middle class would become
members of £he common class.
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l


While the push toward the institutionalization of legal
education saw its beginnings in the 1850s, the strength of the
movement did"not really take off until after the American Civil
War. In addition, the period between 1870 and 1890 was also marked
by an increased tightening of requirements for admission to the
Bar.
The strengthening of bar admission requirements became part of
the orthodox programme of reform; the more readily, because it
was not 'difficult to trace a connection between the existing
law standards of admission to the bar and the.existing ..
corruption of judges and politicians. (Cullison 1971, 283).
The corruption that existed among judges and politicians in post
Civil War America was due to the lowered standards for admission to
the Bar that was a principle aim of Jacksonian Democracy. It is
perhaps bitter irony that the very movement which was designed as a
means by which to limit corruption in the legal profession by
throwing the doors of the legal profession open to the common
citizen ended up creating corruption among judges and politicians.
The corruption created in the political world by Jacksonian
Democracy gave strength to the movement toward institutionalization
of the law that began in 1850. In turn, the movement toward reform
among the legal profession of the United States also led to the
expansion of law schools. "The expansion of the law schools and
the extension of the power of lawyers...were directly related to
the economic expansion and social restructuring of the country."
(Stevens 1983, 23).^ The effects of the reforms in the United
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States both in the legal profession and in government were to give
law schools :a stronger position in the field of legal training.
The continued attempt following the Civil War to upgrade the
Bar began to instill the concept of the usefulness of legal
training in the law school. The goal of the reinstitutionalization
of the law was to make the legal profession more exclusive. The
push by the legal profession for making it more difficult for
individuals; to enter the legal profession was based upon the praise
of the aristocratic nature of the legal profession by De
Tocqueville in 1830. The desire of supporters for the reinstitu-
tionalization of the law was seen as a way by which to return the
aristocratic nature to the Bar which had existed during the time of
De Tocqueville's visit to the United States. The law school
offered a systematic approach to learning law that helped to
enhance the intellectual quality of lawyers. The move away from
the apprenticeship system was well underway and the legal profes-
sion did not offer much resistance to, at least, incorporating
legal training in law school with the apprenticeship program.
In no time at all the concept of providing part of legal
training through an institution known as the law school had
become associated with the parallel aspect of institution-
alizationthe urge to raise standards and so make the bar
more competent and more exclusive. (Stevens 1983, 24).
The American law school was becoming recognized as a vital
'! 1
institution'for legal training.
94