Law Schools

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LAW SCHOOLS

LAW SCHOOLS. The history of American legal education, like that of other professions, is deeply intertwined with the history of the social, economic, and political experiences of the United States, the history of higher education, and the history of the profession itself. Law schools supply graduates to meet society's demand for attorneys. Thus, legal education is not autonomous but rather is the product of its social contexts.

Apprenticeships

American legal education has its origins in the early colonial period. European settlers brought with them their legal systems, but innovation and adaptation characterized the development of the laws and legal procedures in each colony. Despite the early hostility the Puritans and some of the other first colonists displayed toward lawyers and their use of more informal dispute-settling mechanisms, the need for lawyers' services soon developed. As urbanization increased and both intercolonial and transatlantic trade grew, more formal means of dispute settlement and more lawyers were needed. Prior to the American Revolution, there were three sources for lawyers in the English colonies: lawyers who received legal training in England prior to immigration, colonists who returned to England to apprentice and become admitted to one of the Inns of Courts and then returned to the colonies; and colonists who apprenticed in the colonies with a colonial lawyer. These first two sources were important during the seventeenth century, but by the eighteenth century most colonial lawyers received their training through the apprenticeship system. Famous examples of Revolutionary heroes who had been legal apprentices are Thomas Jefferson, Alexander Hamilton, John Adams, John Marshall, John Jay, and James Wilson.

Apprenticeship as a means of legal education was quite variable during the colonial era. In some instances the apprentice did little more than occasionally read books on his own, copy from form or pleading books, or other drudgery required in law practice. Other masters, however, were excellent teachers who provided their students with a broad education in both law and letters. Following an apprenticeship a successful student was required to be admitted to practice before the courts of the colony where he resided. These requirements also differed considerably from colony to colony.

After the American Revolution, apprenticeship, or "reading law" on one's own, continued to be the dominant forms of legal education. For example, Abraham Lincoln read law, while the leading late-nineteenth-century U. S. Supreme Court justice Stephen Field gained admission to the bar following an extensive apprenticeship. Following the U.S. Civil War, apprenticeship began to decline, and by the twentieth century it was highly unusual for a lawyer to be admitted to the bar who had been apprenticed. In the twenty-first century it is possible in only a few states to apprentice and then sit for the bar.

Law Schools

American law schools developed primarily out of the apprentice system. Some of the masters who were excellent teachers expanded their training by establishing a training school. Tapping Reeve, a Connecticut lawyer with an excellent reputation in the courtroom and as a teacher, founded the first such school in Litchfield, Connecticut, in 1784. The school was most successful and attracted students from every state in the country. When the school disbanded in 1833, it had trained more than 1,000 lawyers. Many other schools became modeled on Litchfield.

The second strand of the history of American law schools also began shortly after the Revolution. In 1777 Yale's president added courses in law to the undergraduate education, and in 1799 the College of William and Mary made Thomas Jefferson's former tutor, George Wythe, the first professor of law in the United States. Over the first half of the next century more universities such as Yale and Pennsylvania added either professors of law or schools of law. In most of these universities law remained an undergraduate field of study, while in the others the education was similar to the apprenticeship schools.

The modern American law school took shape in the 1870s at Harvard. It was a product of the movement for professionalization both within the university and within the legal profession. Harvard had established its first chaired professorship in law in 1816 and its law school followed the Litchfield model during the 1840s. But when Charles Elliot became president of Harvard in 1869 he sought to adapt the German university model of a scientifically based curriculum organized into departments. He believed that law fit within this model, and he hired Christopher Columbus Langdell as Harvard's dean in 1875 to implement this vision. Over the next two decades Langdell moved Harvard away from a school that emphasized the practical training of lawyers to a postgraduate school that hired scholars rather than practitioners to teach students the science of the law. By 1899 Harvard had raised its requirements for a bachelor of laws degree (LL.B.) to a three-year course of study following a bachelor's degree. During the last quarter of the nineteenth century both private and public universities, such as Columbia, Northwestern, Iowa, and Cincinnati, adopted the Harvard model.

The Harvard model did, however, continue to compete with the Litchfield model. Urban schools, such as the YMCA Law School and Suffolk in Boston, George Washington University in Washington, D.C., Chicago-Kent, and the University of Buffalo, resisted the emphasis on scholarly training, and instead emphasized the acquisition of practical skills through lectures by judges and practitioners, which emphasized local rather than national law and work in law offices. Many of these schools were independent of universities and almost all had part-time and evening programs.

Throughout the twentieth century the competition between these models continued. Harvard, however, dominated. Its victory was in large measure assured by the founding of two organizations, the American Bar Association (ABA) in 1878 and the Association of American Law Schools (AALS), as well as the continued push by public and private universities to emphasize research and scholarship as the measure of their prestige and greatness. The Harvard model fit the ABA's ambitions of increasing the prestige and power of the legal profession because Harvard required more schooling (two years as an undergraduate—later increased to four—plus three as a law student) and it promoted the idea of law as a science, not a trade to be learned by apprenticeship. The goals of the AALS were to establish minimum standards for admissions to law school, for facilities such as libraries, and for qualifications to take the bar. The two organizations worked successfully throughout the first half of the twentieth century to become the regulators of legal education. Crucial to that effort was to first give the ABA the authority to accredit law schools to ensure that the schools met the standards that the organizations set, and then persuade state supreme courts, which established the requirements for admission to the bar of each state, to restrict admissions only to graduates of schools that could meet the standards.

The 1920s was the pivotal decade in the two organizations' efforts. The number of law schools increased by 25 percent, but fewer of the new schools met the standards of accreditation. The percentage of all law students attending accredited law schools fell. The ABA and AALS organized on the state and national level to fight these trends—first by attacking the independent night schools that could not meet standards, and then by slowly convincing the state supreme courts to tighten admissions requirements. By the end of the 1930s the ABA and the AALS had made substantial progress toward their goals of dominance in legal education, as almost two-thirds of all law school students were attending the approximately 100 ABA-approved law schools. The combination of the increasing importance of accreditation, the costs of operation of a school that met standards, and the decline in interest in attending law school caused by the Great Depression and World War II produced a decline in the number of law schools. Some of the independent schools were taken over by both public and private universities, while other independents, such as the John Marshall School of Law and the Suffolk School of Law, acknowledged that they must meet accreditation to survive and sought ABA approval in the 1950s. Thus, after the 1960s the Harvard model of university-based legal education was in complete ascendance, and the ABA and AALS controlled the regulation of legal education. As of 2002, 164 of the 185 ABA-approved law schools were members of the AALS.

During the late twentieth century, some new schools started to challenge the regulatory monopoly that the ABA enjoyed. One in suburban Virginia and one outside Boston were low-cost weekend or evening schools that had no intention of meeting ABA standards. The Massachusetts School of Law unsuccessfully sued the ABA under the Sherman Antitrust Act for being in restraint of trade. However, the ABA later reached an antitrust settlement with the Justice Department that changed some of its accreditation procedures. Since then the federal government has also taken an increasingly hard look at the accreditation procedures.

Curriculum

Before Langdell transformed legal education at Harvard, all curricula were pretty much the same. The student learned by reading or by lecture (if attending a school) or by observing the rules and procedures necessary to practice law in the student's local area. Subjects were not taught in any particular order. There were no exams except perhaps for the court-administered bar exam.

When Langdell brought the idea for the study of law as a science, he totally reformed the law school curriculum. First, he ordered the study into a first-year curriculum that introduced students to the main subjects of the common law: contracts, property, torts, criminal law, and procedure. Second, since the students were to learn the scientific principles of the law, not how to practice in their locality, the focus was on national law. Third, the faculty members selected appellate court decisions from which the principles could be derived. Rather than presenting a lecture, faculty members used the Socratic method of questioning students and then leading them to the principles through further questions and answers. The Harvard curriculum spread because its national approach and promise of scientific principles matched well with the national ambitions for prestige and prominence of the universities. The curriculum also fit the legal profession, which included a growing number of large urban nationally focused law firms.

Throughout the late nineteenth and early twentieth centuries the Harvard curriculum and its methodology remained supreme, yet it faced challenges. The first sustained effort of attack began in the early twentieth century when a group of legal scholars, called Legal Realists, sought to replace the Harvard curriculum with one that emphasized policy analysis informed by social science. The group had success at Yale and Columbia law schools, and their theories gained support as President Franklin D. Roosevelt led an attack on the U.S. Supreme Court for its reactionary views in blocking New Deal reforms. World War II sent the Legal Realists into retreat because many law professors believed that their theories undercut the rule of law, which was necessary to fight fascism and communism. Despite Realism's failure to dislodge the Harvard curriculum, many law schools introduced some "law and" courses, such as legal history or law and sociology. A few schools, such as the University of Wisconsin, Northwestern, and the University of Denver, established reputations as leading interdisciplinary law schools. More social science was introduced into legal studies during the last quarter of the twentieth century as law and economics began to be offered, most notably at the University of Chicago. At the century's end, almost all law schools had some version of the Harvard first-year curriculum together with either first-year "perspective" (law and) courses or upper level interdisciplinary courses.

Law school curriculum has responded to sociopolitical-economic developments, as well as technology. Beginning in the 1920s, labor law, securities regulation, environmental law, civil rights law, and sex discrimination became regular staples of students' selections in their last two years. The political activism of the civil rights and anti-poverty movements of the 1960s led schools to adopt clinical education, whereby small groups of students were assigned to a clinical faculty member who would supervise their representation of an indigent client. To these live-client clinics were added simulation courses, such as trial advocacy and externships, where students were placed in public or not-for-profit agencies. As the Watergate scandal shocked the nation in the 1970s, law schools responded with an increased focus on ethics courses. The development of computers led to online legal research, as well as an increase of courses in intellectual property and e-commerce. As critics of the legal profession criticized lawyers for making America a litigious society, law schools responded by adding courses in alternative dispute resolution.

Students and Faculty

Until the early twentieth century, admission to law school was somewhat open. Reading law, apprenticeship, or tuition fees at part-time independent law schools were relatively inexpensive and most white males who wanted to practice law could do so. A few women were able to receive legal education during this period, although the numbers remained small because courts were reluctant to admit women and employment opportunities were very limited. There were also very few blacks or other racial minorities. However, Jewish and Catholic males began to be admitted in larger numbers during the 1920s and 1930s.

The major transformation in the composition of the law student population occurred in the last half of the twentieth century. The demand for legal education soared following the return of soldiers after World War II. In 1947 about 47,000 students were enrolled in law school. By 2000 there were over 135,000. This demand was fueled in part by the tremendous growth in the size of law firms in the last quarter of the century, and the gradual removal of discrimination in hiring male Jewish and Catholic lawyers. The civil rights movement and the feminist revolution also expanded opportunities for women and religious and racial minorities. In 1950, the first year Harvard admitted women to the school, there were approximately 1,200 women enrolled. By 2000 women comprised almost half of the law student population. In 1971 there were fewer than 6,000 minorities; by 2000 there were over 25,000. During that same period the African American law student population grew from approximately 3,000 to 9,000; Hispanics from 1,000 to 7,500; and Asians from 500 to 8,000. Large law firms both increased the demand for law school education among women and minorities by hiring them in greater numbers, and responded to the pressure to hire more minorities once they were in school.

Another important factor in the growth and changing composition of the student population was the Law School Admissions Test (LSAT), which was devised by the elite law schools, such as Harvard and Yale, in 1948. Within a short period it was required of all students who wanted to attend law school. The standardized test allowed schools to make the admissions process more rational, and increased the chances that women and racial and religious minorities could succeed in that process. A second factor was the increased federal and private financial aid available. Law schools raised large endowments from their alumni in order to be able to assist students to graduate with manageable debt.

Full-time law school faculty did not become professionalized until Langdell established the Harvard model. Until then faculty were part-time practitioners who did not engage in scholarship. However, given the case method for teaching, faculty scholarship began by assembling cases and materials for courses. In 1887 the Harvard Law Review was established as a student-edited journal that published faculty scholarship, analyzed and criticized doctrinal developments in case law, and published student notes analyzing recent court decisions. Each law school soon started its own review. Faculty scholarship became more varied as groups such as law and economics scholars, or members of Critical Legal Studies, pursued interdisciplinary work. With more law schools having university affiliation, scholarship became a hallmark of the American law school. Norms for hiring, tenure, and promotion became heavily influenced by those in the physical and social sciences and the humanities, and faculty members that held a doctor of philosophy degree became more and more desirable, especially in the late twentieth century.

The demographic composition of the faculty mirrored that of the student body, in part because faculty at the elite law schools tended to be hired from the pool of former students. For many years the typical pattern followed Langdell's hiring of James Barr Ames, a future dean of Harvard Law School: he was the best in his class and was hired upon graduation. Over the twentieth century, faculty, in addition to excelling in school, had usually clerked for the U.S. Supreme Court or for a prominent judge on a state supreme court or lower federal court. A few had graduated from non-elite schools and then gone to an elite school for a master's degree (LL.M.) or doctorate (S.J.D.) in law. They probably had practiced in a large firm or with the government for several years before teaching. In the 1960s there were fewer than a dozen women who were tenured professors, and very few minorities. As the student body diversified so did the professorate: by 2000 about 25 percent of law teachers were women and 12 percent were minority group members.