The History of Legal The History of Legal EducationEducation

1890 - 19101890 - 1910

1890 – Bar Exam1890 – Bar Exam

First statewide bar examination First statewide bar examination committee (New Hampshire) followed committee (New Hampshire) followed by:by: Bar examinations committees in every Bar examinations committees in every

state but one by 1915.state but one by 1915. UNSUCCESSFUL meetings to organize a UNSUCCESSFUL meetings to organize a

conference of bar examiners in 1898, conference of bar examiners in 1898, 1904, 1910, 1914, and 1916. First 1904, 1910, 1914, and 1916. First meeting will not occur until 1931.meeting will not occur until 1931.

1891 – ABA 1891 – ABA RecommendationsRecommendations

The Standing Committee’s statement on The Standing Committee’s statement on

““The Best Method for Teaching Law” The Best Method for Teaching Law”

recommends the textbook method as recommends the textbook method as

opposed to the new case method for the opposed to the new case method for the

proper training of a lawyer. Reasons: proper training of a lawyer. Reasons: can’t teach rules and decisions without can’t teach rules and decisions without

principles; andprinciples; and students need opportunities to practice. students need opportunities to practice.

1892 – ABA 1892 – ABA Recommendations Recommendations

1.1. The Standing Committee encourages:The Standing Committee encourages:A.A. states to pass legislation requiring students be states to pass legislation requiring students be

admitted to the bar only by state supreme courts;admitted to the bar only by state supreme courts;B.B. that applicants have studied law for at least two that applicants have studied law for at least two

years – as much as possible at law school (reduced years – as much as possible at law school (reduced from its earlier recommendation of three years);from its earlier recommendation of three years);

C.C. a new “Practical Course of Study” to include e.g. a new “Practical Course of Study” to include e.g. property, contracts, torts, and not e.g. diplomacy, property, contracts, torts, and not e.g. diplomacy, history, and social sciences, which is in contrast to history, and social sciences, which is in contrast to the curriculum recommended in 1880; andthe curriculum recommended in 1880; and

D.D. a method of study directed to the development of a method of study directed to the development of basic lawyer skills – including apprenticeships. basic lawyer skills – including apprenticeships.

1892 – ABA 1892 – ABA Recommendations Recommendations

2.2. The Standing Committee requests the US Dept. of The Standing Committee requests the US Dept. of Education to send foreign countries a questionnaire Education to send foreign countries a questionnaire to survey their legal educational systems.to survey their legal educational systems.

A.A. Committee’s summarized results reveal that foreign Committee’s summarized results reveal that foreign courses of study include general principles of law, courses of study include general principles of law, legal history, and practical application. By legal history, and practical application. By comparison, the US legal system is “wanting.” comparison, the US legal system is “wanting.” Furthermore, no two US schools had the same course Furthermore, no two US schools had the same course of study and few required a prior academic degree. of study and few required a prior academic degree.

B.B. US is only known country that permits US is only known country that permits ex tempore ex tempore (“off-hand” or w/out preparation) bar admission (“off-hand” or w/out preparation) bar admission testing.testing.

1892 – ABA 1892 – ABA Recommendations Recommendations

3.3. A Standing Committee Member sends a “circular A Standing Committee Member sends a “circular of inquiry” on bar admission requirements to each of inquiry” on bar admission requirements to each state’s chief justice re. the state’s procedure, state’s chief justice re. the state’s procedure, which reveals little uniformity. Some law schools which reveals little uniformity. Some law schools had law school diploma privilege. Underlying had law school diploma privilege. Underlying concerns:concerns:

A.A. Should state supreme courts have the sole Should state supreme courts have the sole power to admit to the bar or to create power to admit to the bar or to create commissions to oversee bar examinations in commissions to oversee bar examinations in their states? their states?

B.B. And, should a law diploma result in And, should a law diploma result in automatic admission? automatic admission?

1892 – ABA 1892 – ABA RecommendationsRecommendations

4.4. Standing Committee adopts the following resolutions:Standing Committee adopts the following resolutions:A.A. that the power of admitting members to the Bar, and the that the power of admitting members to the Bar, and the

supervision of their professional conduct, be in each State supervision of their professional conduct, be in each State lodged in the highest court of the State;lodged in the highest court of the State;

B.B. at least two years of study before presenting for at least two years of study before presenting for examination; andexamination; and

C.C. state to make provisions when necessary for the state to make provisions when necessary for the maintenance of law schools, and the thorough professional maintenance of law schools, and the thorough professional education of all those admitted to practice.education of all those admitted to practice.

HOWEVER, ABA committees were limited in size and members ofHOWEVER, ABA committees were limited in size and members ofthe ABA thought the resolutions reflected inadequate memberthe ABA thought the resolutions reflected inadequate memberrepresentation. Several members agreed to a more general representation. Several members agreed to a more general meeting the following year. And, in 1893 . . .meeting the following year. And, in 1893 . . .

1893 – ABA’s First Section1893 – ABA’s First Section

ABA founds its first Section, the Section of Legal ABA founds its first Section, the Section of Legal Education and Admissions to the Bar:Education and Admissions to the Bar: to complement the existing Standing Committee to complement the existing Standing Committee

on Legal Education and Admissions to the Bar, and on Legal Education and Admissions to the Bar, and with power to elect its own officers, schedule with power to elect its own officers, schedule

programs, and debate and pass motions, butprograms, and debate and pass motions, but recommendations require Standing Committee recommendations require Standing Committee

approval before ABA’s action.approval before ABA’s action. Purposes:Purposes:

““serve as an important feeder to the Association,” serve as an important feeder to the Association,” andand

to provide an opportunity for discussion of legal to provide an opportunity for discussion of legal education with more fullness than open meetings education with more fullness than open meetings allow. allow.

1895 – Law School Diploma 1895 – Law School Diploma PrivilegePrivilege

Tension between the ABA and law schools (and Tension between the ABA and law schools (and judiciary and legislature) over control of entry into the judiciary and legislature) over control of entry into the profession manifests when three Hamilton College profession manifests when three Hamilton College Law Students were admitted to practice after being Law Students were admitted to practice after being examined by school faculty. Many law schools follow. examined by school faculty. Many law schools follow.

Argument for by Theodore W. Dwight at Columbia Argument for by Theodore W. Dwight at Columbia (1858 – 1890): If legal education is superior training (1858 – 1890): If legal education is superior training to apprenticeships, shouldn’t one be admitted to to apprenticeships, shouldn’t one be admitted to practice by presenting a diploma? (Also, adds value practice by presenting a diploma? (Also, adds value to diploma and incentive to stay in school.)to diploma and incentive to stay in school.)

Argument against bar exam in general – law is not Argument against bar exam in general – law is not static and any certification will be limited in scope static and any certification will be limited in scope and have a short time value. Schools will tend to and have a short time value. Schools will tend to teach to the test. teach to the test.

1896 – The First Section1896 – The First Section

The Section proposes that the ABA adopt minimum The Section proposes that the ABA adopt minimum admission standards for law schools. The admission standards for law schools. The consequence of failure is to not be in good standing. consequence of failure is to not be in good standing. Mention of teaching of legal ethics in 1895 by Section Mention of teaching of legal ethics in 1895 by Section

ChairmanChairman Meetings’ minutes reveal:Meetings’ minutes reveal:

Discussion of case method. 1894 report shows majority of law Discussion of case method. 1894 report shows majority of law schools used the textbook method.schools used the textbook method.

Case method, is it “piecemeal approach” or does it develop Case method, is it “piecemeal approach” or does it develop powers of analysis and judgment?powers of analysis and judgment?

Curriculum concerns, esp. re. procedure. 1894 report shows Curriculum concerns, esp. re. procedure. 1894 report shows that half of all US appellate cases turned on errors of that half of all US appellate cases turned on errors of procedure. procedure.

Lincoln Objection frequently debated (i.e. objection against Lincoln Objection frequently debated (i.e. objection against requiring formal legal education).requiring formal legal education).

One recommendation that outside work be excluded. One recommendation that outside work be excluded.

1899 – The First Section1899 – The First Section

Develops a list of questions for the Develops a list of questions for the fledgling Conference of State Law fledgling Conference of State Law ExaminersExaminers Bar exam – oral or written?Bar exam – oral or written? Form of questions?Form of questions? Subjects?Subjects? Weight of subjects?Weight of subjects?

Urge evidence of good moral character Urge evidence of good moral character for admission to the bar.for admission to the bar.

1900 – The First Section1900 – The First Section

Disapproves of diploma privilege, and Disapproves of diploma privilege, and resolves that only a state examination by resolves that only a state examination by the State Board of Examiners under the State Board of Examiners under authority of the state supreme court should authority of the state supreme court should have this power.have this power.

Frequent subject for next decade’s Frequent subject for next decade’s meetings – part-time and night law schoolsmeetings – part-time and night law schools Lack of ethics (i.e. shared background/values = Lack of ethics (i.e. shared background/values =

code of ethics)code of ethics) Discrimination and immigration Discrimination and immigration

1900 – The First Section, 1900 – The First Section, cont.cont.

Recognizes a need to regulate law schools Recognizes a need to regulate law schools and creates the Association of American Law and creates the Association of American Law Schools (AALS) with 32 charter member Schools (AALS) with 32 charter member schools and the goal of improving legal schools and the goal of improving legal education in America. AALS sets these education in America. AALS sets these standards:standards: high school or equivalent before admission, high school or equivalent before admission, ten hours-a-week of instruction for at least two ten hours-a-week of instruction for at least two

years of acceptable study in law school, years of acceptable study in law school, only graduate students after an examination, and only graduate students after an examination, and law school’s ownership or access to a library w/ a law school’s ownership or access to a library w/ a

collection of state and Supreme Court reports.collection of state and Supreme Court reports.

By 1900 – College as a By 1900 – College as a Prerequisite Prerequisite

Unlike most schools, which only require a Unlike most schools, which only require a

high school education, Harvard effectively high school education, Harvard effectively

requires an undergraduate degree as a requires an undergraduate degree as a

prerequisite for admission. This is the prerequisite for admission. This is the

beginning of the shift from legal beginning of the shift from legal education education

as an alternative to college to legal as an alternative to college to legal

education as graduate education. education as graduate education.

1908 – The First Section1908 – The First Section

Recommends part-time schools Recommends part-time schools extend their programs to four years. extend their programs to four years. (In 1906 the Section was urged to (In 1906 the Section was urged to acknowledge and study night law acknowledge and study night law schools as a factor in legal education, schools as a factor in legal education, desired or not.)desired or not.)

Recommends two years of college Recommends two years of college before entering law school. before entering law school.

1908 - ABA1908 - ABA

First national code of conduct for First national code of conduct for

lawyers is set forth in thirty-two lawyers is set forth in thirty-two

Canons of Professional Ethics. Canons of Professional Ethics.

1909 – Prelegal Course 1909 – Prelegal Course RequirementsRequirements

AALS appoints a three-man AALS appoints a three-man committee to study the issue. committee to study the issue. The report reflects a The report reflects a considerable difference of considerable difference of opinion. opinion.

The subject will be considered The subject will be considered annually through 1940.annually through 1940.

19101910

Release of the Flexner report on medical Release of the Flexner report on medical education, which inspires Redlich’s education, which inspires Redlich’s (1914) and Reed’s (1921) studies of legal (1914) and Reed’s (1921) studies of legal education. All three are sponsored by education. All three are sponsored by The Carnegie Foundation for the The Carnegie Foundation for the Advancement of Teaching.Advancement of Teaching.

Beginning of “the golden age of the Beginning of “the golden age of the proprietary law school” which runs until proprietary law school” which runs until around 1940.around 1940.

Summary 1890 - 1910Summary 1890 - 1910

1890 - Birth of statewide bar examination committees, but no national forum. 1890 - Birth of statewide bar examination committees, but no national forum. 1892 - Recommended method of instruction migrates from theoretical to 1892 - Recommended method of instruction migrates from theoretical to

practical and (or but?) from textbook to case. practical and (or but?) from textbook to case. 1893 - ABA founds its first Section, the Section of Legal Education and Admissions 1893 - ABA founds its first Section, the Section of Legal Education and Admissions

to the Bar.to the Bar.by 1900 - Beginning of transition from law school as an alternative to college to a by 1900 - Beginning of transition from law school as an alternative to college to a

graduate education.graduate education.1900 - First Section recognizes a need to regulate law schools and creates the 1900 - First Section recognizes a need to regulate law schools and creates the

Association of American Law Schools (AALS).Association of American Law Schools (AALS).1908 - First national code of conduct for lawyers1908 - First national code of conduct for lawyersAnd, in general And, in general Struggle over who controls admission to the bar – schools (i.e. law school Struggle over who controls admission to the bar – schools (i.e. law school

diploma privilege) or states’ supreme courts.diploma privilege) or states’ supreme courts. Recognition of lack of uniformity re. curriculum; methods of instruction; bar Recognition of lack of uniformity re. curriculum; methods of instruction; bar

admissions’ processes, formats, and standards; Lincoln Objection - school v. admissions’ processes, formats, and standards; Lincoln Objection - school v. reading and apprenticeship; requirement of an apprenticeship; school reading and apprenticeship; requirement of an apprenticeship; school resources (e.g. library holdings), and law school prerequisites (e.g. number of resources (e.g. library holdings), and law school prerequisites (e.g. number of years of prelaw college required if any).years of prelaw college required if any).

Rise of part-time and night law schools and the ethics and discrimination Rise of part-time and night law schools and the ethics and discrimination concerns (esp. re. immigration) that follow.concerns (esp. re. immigration) that follow.

1890 – 1910, Lending Context 1890 – 1910, Lending Context to the Future of Legal to the Future of Legal

EducationEducation Tension between theoretical and practical knowledge deeply Tension between theoretical and practical knowledge deeply

rooted and multifaceted (school v. apprenticeship, text v. rooted and multifaceted (school v. apprenticeship, text v. case study, national v. state, democratic v. elitist, professor case study, national v. state, democratic v. elitist, professor as scholar or educator). How can the goals of conceptual as scholar or educator). How can the goals of conceptual knowledge, skill, and moral discernment be integrated within knowledge, skill, and moral discernment be integrated within these still existing tensions? these still existing tensions?

Definition of “ethics” is subject to multiple interpretations Definition of “ethics” is subject to multiple interpretations and is vulnerable. Can there be a “core commitment” that and is vulnerable. Can there be a “core commitment” that defines the profession? E.g. social justice v. capitalism, the defines the profession? E.g. social justice v. capitalism, the return of anti-immigration sentiments, etc. return of anti-immigration sentiments, etc.

External forces that shape legal education remain – influence External forces that shape legal education remain – influence of the bar exam on the curriculum, school standing and of the bar exam on the curriculum, school standing and ranking, and costs to schools and students.ranking, and costs to schools and students.

Yesterday’s part-time and night programs are today’s Yesterday’s part-time and night programs are today’s distance learning/internet programs. Are they here to stay distance learning/internet programs. Are they here to stay and how will they contribute to the future of legal education?and how will they contribute to the future of legal education?