The History of Legal Education

1890 – Bar Exam First statewide bar examination committee (New Hampshire) followed by: First statewide bar examination committee (New Hampshire) followed by: Bar examinations committees in every state but one by Bar examinations committees in every state but one by UNSUCCESSFUL meetings to organize a conference of bar examiners in 1898, 1904, 1910, 1914, and First meeting will not occur until UNSUCCESSFUL meetings to organize a conference of bar examiners in 1898, 1904, 1910, 1914, and First meeting will not occur until 1931.

1891 – ABA Recommendations The Standing Committee’s statement on “The Best Method for Teaching Law” recommends the textbook method as opposed to the new case method for the proper training of a lawyer. Reasons: can’t teach rules and decisions without principles; and can’t teach rules and decisions without principles; and students need opportunities to practice. students need opportunities to practice.

1892 – ABA Recommendations 1. The Standing Committee encourages: A. states to pass legislation requiring students be admitted to the bar only by state supreme courts; B. that applicants have studied law for at least two years – as much as possible at law school (reduced from its earlier recommendation of three years); C. a new “Practical Course of Study” to include e.g. property, contracts, torts, and not e.g. diplomacy, history, and social sciences, which is in contrast to the curriculum recommended in 1880; and D. a method of study directed to the development of basic lawyer skills – including apprenticeships.

1892 – ABA Recommendations 2. The Standing Committee requests the US Dept. of Education to send foreign countries a questionnaire to survey their legal educational systems. A. Committee’s summarized results reveal that foreign courses of study include general principles of law, legal history, and practical application. By comparison, the US legal system is “wanting.” Furthermore, no two US schools had the same course of study and few required a prior academic degree. B. US is only known country that permits ex tempore (“off-hand” or w/out preparation) bar admission testing.

1892 – ABA Recommendations 3. A Standing Committee Member sends a “circular of inquiry” on bar admission requirements to each state’s chief justice re. the state’s procedure, which reveals little uniformity. Some law schools had law school diploma privilege. Underlying concerns: A. Should state supreme courts have the sole power to admit to the bar or to create commissions to oversee bar examinations in their states? B. And, should a law diploma result in automatic admission?

1892 – ABA Recommendations 4. Standing Committee adopts the following resolutions: A. that the power of admitting members to the Bar, and the supervision of their professional conduct, be in each State lodged in the highest court of the State; B. at least two years of study before presenting for examination; and C. state to make provisions when necessary for the maintenance of law schools, and the thorough professional education of all those admitted to practice. HOWEVER, ABA committees were limited in size and members of the ABA thought the resolutions reflected inadequate member representation. Several members agreed to a more general meeting the following year. And, in

1893 – ABA’s First Section ABA founds its first Section, the Section of Legal Education and Admissions to the Bar: ABA founds its first Section, the Section of Legal Education and Admissions to the Bar: to complement the existing Standing Committee on Legal Education and Admissions to the Bar, and to complement the existing Standing Committee on Legal Education and Admissions to the Bar, and with power to elect its own officers, schedule programs, and debate and pass motions, but with power to elect its own officers, schedule programs, and debate and pass motions, but recommendations require Standing Committee approval before ABA’s action. recommendations require Standing Committee approval before ABA’s action. Purposes: Purposes: “serve as an important feeder to the Association,” and “serve as an important feeder to the Association,” and to provide an opportunity for discussion of legal education with more fullness than open meetings allow. to provide an opportunity for discussion of legal education with more fullness than open meetings allow.

1895 – Law School Diploma Privilege Tension between the ABA and law schools (and judiciary and legislature) over control of entry into the profession manifests when three Hamilton College Law Students were admitted to practice after being examined by school faculty. Many law schools follow. Tension between the ABA and law schools (and judiciary and legislature) over control of entry into the profession manifests when three Hamilton College Law Students were admitted to practice after being examined by school faculty. Many law schools follow. Argument for by Theodore W. Dwight at Columbia (1858 – 1890): If legal education is superior training to apprenticeships, shouldn’t one be admitted to practice by presenting a diploma? (Also, adds value to diploma and incentive to stay in school.) Argument for by Theodore W. Dwight at Columbia (1858 – 1890): If legal education is superior training to apprenticeships, shouldn’t one be admitted to practice by presenting a diploma? (Also, adds value to diploma and incentive to stay in school.) Argument against bar exam in general – law is not static and any certification will be limited in scope and have a short time value. Schools will tend to teach to the test. Argument against bar exam in general – law is not static and any certification will be limited in scope and have a short time value. Schools will tend to teach to the test.

1896 – The First Section The Section proposes that the ABA adopt minimum admission standards for law schools. The consequence of failure is to not be in good standing. The Section proposes that the ABA adopt minimum admission standards for law schools. The consequence of failure is to not be in good standing. Mention of teaching of legal ethics in 1895 by Section Chairman Mention of teaching of legal ethics in 1895 by Section Chairman Meetings’ minutes reveal: Meetings’ minutes reveal: Discussion of case method report shows majority of law schools used the textbook method. Discussion of case method report shows majority of law schools used the textbook method. Case method, is it “piecemeal approach” or does it develop powers of analysis and judgment? Case method, is it “piecemeal approach” or does it develop powers of analysis and judgment? Curriculum concerns, esp. re. procedure report shows that half of all US appellate cases turned on errors of procedure. Curriculum concerns, esp. re. procedure report shows that half of all US appellate cases turned on errors of procedure. Lincoln Objection frequently debated (i.e. objection against requiring formal legal education). Lincoln Objection frequently debated (i.e. objection against requiring formal legal education). One recommendation that outside work be excluded. One recommendation that outside work be excluded.

1899 – The First Section Develops a list of questions for the fledgling Conference of State Law Examiners Develops a list of questions for the fledgling Conference of State Law Examiners 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 for admission to the bar. Urge evidence of good moral character for admission to the bar.

1900 – The First Section Disapproves of diploma privilege, and resolves that only a state examination by the State Board of Examiners under authority of the state supreme court should have this power. Disapproves of diploma privilege, and resolves that only a state examination by the State Board of Examiners under authority of the state supreme court should have this power. Frequent subject for next decade’s meetings – part-time and night law schools Frequent subject for next decade’s meetings – part-time and night law schools Lack of ethics (i.e. shared background/values = code of ethics) Lack of ethics (i.e. shared background/values = code of ethics) Discrimination and immigration Discrimination and immigration

1900 – The First Section, cont. Recognizes a need to regulate law schools and creates the Association of American Law Schools (AALS) with 32 charter member schools and the goal of improving legal education in America. AALS sets these standards: Recognizes a need to regulate law schools and creates the Association of American Law Schools (AALS) with 32 charter member schools and the goal of improving legal education in America. AALS sets these standards: high school or equivalent before admission, high school or equivalent before admission, ten hours-a-week of instruction for at least two years of acceptable study in law school, ten hours-a-week of instruction for at least two 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 collection of state and Supreme Court reports. law school’s ownership or access to a library w/ a collection of state and Supreme Court reports.

By 1900 – College as a Prerequisite Unlike most schools, which only require a high school education, Harvard effectively requires an undergraduate degree as a prerequisite for admission. This is the beginning of the shift from legal education as an alternative to college to legal education as graduate education.

1908 – The First Section Recommends part-time schools extend their programs to four years. (In 1906 the Section was urged to acknowledge and study night law schools as a factor in legal education, desired or not.) Recommends part-time schools extend their programs to four years. (In 1906 the Section was urged to acknowledge and study night law schools as a factor in legal education, desired or not.) Recommends two years of college before entering law school. Recommends two years of college before entering law school.

ABA First national code of conduct for lawyers is set forth in thirty-two Canons of Professional Ethics.

1909 – Prelegal Course Requirements AALS appoints a three-man committee to study the issue. The report reflects a considerable difference of opinion. AALS appoints a three-man committee to study the issue. The report reflects a considerable difference of opinion. The subject will be considered annually through The subject will be considered annually through 1940.

1910 Release of the Flexner report on medical education, which inspires Redlich’s (1914) and Reed’s (1921) studies of legal education. All three are sponsored by The Carnegie Foundation for the Advancement of Teaching. Release of the Flexner report on medical education, which inspires Redlich’s (1914) and Reed’s (1921) studies of legal education. All three are sponsored by The Carnegie Foundation for the Advancement of Teaching. Beginning of “the golden age of the proprietary law school” which runs until around Beginning of “the golden age of the proprietary law school” which runs until around 1940.

Summary Birth of statewide bar examination committees, but no national forum Recommended method of instruction migrates from theoretical to practical and (or but?) from textbook to case ABA founds its first Section, the Section of Legal Education and Admissions to the Bar. by Beginning of transition from law school as an alternative to college to a graduate education First Section recognizes a need to regulate law schools and creates the Association of American Law Schools (AALS) First national code of conduct for lawyers And, in general Struggle over who controls admission to the bar – schools (i.e. law school diploma privilege) or states’ supreme courts. Struggle over who controls admission to the bar – schools (i.e. law school diploma privilege) or states’ supreme courts. Recognition of lack of uniformity re. curriculum; methods of instruction; bar admissions’ processes, formats, and standards; Lincoln Objection - school v. reading and apprenticeship; requirement of an apprenticeship; school resources (e.g. library holdings), and law school prerequisites (e.g. number of years of prelaw college required if any). Recognition of lack of uniformity re. curriculum; methods of instruction; bar admissions’ processes, formats, and standards; Lincoln Objection - school v. reading and apprenticeship; requirement of an apprenticeship; school resources (e.g. library holdings), and law school prerequisites (e.g. number of years of prelaw college required if any). Rise of part-time and night law schools and the ethics and discrimination concerns (esp. re. immigration) that follow. Rise of part-time and night law schools and the ethics and discrimination concerns (esp. re. immigration) that follow.

1890 – 1910, Lending Context to the Future of Legal Education Tension between theoretical and practical knowledge deeply rooted and multifaceted (school v. apprenticeship, text v. case study, national v. state, democratic v. elitist, professor as scholar or educator). How can the goals of conceptual knowledge, skill, and moral discernment be integrated within these still existing tensions? Tension between theoretical and practical knowledge deeply rooted and multifaceted (school v. apprenticeship, text v. case study, national v. state, democratic v. elitist, professor as scholar or educator). How can the goals of conceptual knowledge, skill, and moral discernment be integrated within these still existing tensions? Definition of “ethics” is subject to multiple interpretations and is vulnerable. Can there be a “core commitment” that defines the profession? E.g. social justice v. capitalism, the return of anti- immigration sentiments, etc. Definition of “ethics” is subject to multiple interpretations and is vulnerable. Can there be a “core commitment” that defines the profession? E.g. social justice v. capitalism, the return of anti- immigration sentiments, etc. External forces that shape legal education remain – influence of the bar exam on the curriculum, school standing and ranking, and costs to schools and students. External forces that shape legal education remain – influence of the bar exam on the curriculum, school standing and ranking, and costs to schools and students. Yesterday’s part-time and night programs are today’s distance learning/internet programs. Are they here to stay and how will they contribute to the future of legal education? Yesterday’s part-time and night programs are today’s distance learning/internet programs. Are they here to stay and how will they contribute to the future of legal education?