Our Bar . . . is . . . an asylum for the lame, and the halt, and the blind from the law schools of this country. And they are still coming.
posted by Dave Hoffman
Sorry for the blogging hiatus. I’ve been writing. I’m sorry also to have missed the latest NYT attack on legal education — in the form of a misleading hatchet job on NYLS. The article – one of a shoddy series by David Segal – struck an academic nerve already made sensitive by Justice Roberts’ dismissal of legal scholarship.
Of course, arguments about law school’s worth and scholarship’s consequence are evergreen – they drive blogging traffic and comments & promise to motivate engagement between blogs by practicing lawyers and the academy. But quite often, unfortunately, these discussions go nowhere.
On law professor blogs, there’s a tone of tetchy defensiveness: “the market tells us that we’re worthwhile – just look at the continuing number of lemmings pounding at the gate!”, or “of course our scholarship is consequential, let’s count the citations”; or, “no one ever promised that a JD was a job guarantee!”; or, “what’s their BATLS?” [The last is a truly obscure negotiation joke if there ever was one.]
For reporters, it feels like the scene in the Wire when they are talking about what to cover in the coming year. Sure, you could talk about complexity and globalization and economic markets and the changing nature of legal practice. Or you might talk about the relationship between ABA regulation, thoughtless paternalism, and resulting distributional inequalities in education. But that’s a set of sprawling stories – lacking an obvious villain to muckrake. Rather, then, the news blames the dickensian aspect of law schools. Reporters write articles that stir the pot, but aren’t recognizable to insiders, making them less likely to actually motivate change.
Last, not least, the practicing lawyers often articulate resentment toward ivory tower academics who ignore the realities of “trench lawyering”. (This happens even when the “academics” in question are actually practicing lawyers.) Basically: impractical law professors versus practical lawyers.
Why does this “debate” feel so tired? I have a partial hypothesis: because we ignore history. I had a great research assistant, Alex Radus, collect quotes about the ferment about legal education in the 1930s-1940s. (Which is highlighted in Prosser’s famous 1948 speech to Temple’s law faculty, Lighthouse No Good.“) After the jump, you’ll see some fantastic quotes from that era and before, which remind us that “what has been will be again / what has been done will be done again /there is nothing new under the sun.”
Starting pretty early, Blackstone wrote in his Commentaries that there are
“some who warmly recommend dropping all liberal education as of no use to students in the law; and placing them, in its stead, at the desk of some skilled attorney in order to initiate them early in all the depths of practice and render them more dextrous in the mechanical part of the business . . . . If practice be the whole he is taught, practice must be the whole he will ever know; if he be uninstructed in the elements and principles upon which the rule of practice is founded, the least variation from established precedents will totally distract and bewilder him . . . “
By contrast (and leading the charge) there was Jerome Frank [Why Not a Clinical Lawyer-School?, 81 U. Pa. L. Rev. 907, 909 (1932)]
“Students trained under the Langdell system are like future horticulturists confining their studies to cut flowers, like architects who study pictures of buildings and nothing else. They resemble prospective dog breeders who never see anything but stuffed dogs. And it is beginning to be suspected that there is some correlation between that kind of stuffed-dog study and the over–production of stuffed shirts in the legal profession …
[T]he acceptance of the Langdell-Harvard method meant that the university law school teachers, with few exceptions, were those who had never practiced or practiced for only a brief interval. It is probably true that a majority of the teachers in some of our university law schools have never met or advised a client, consulted with witnesses, negotiated a settlement, drafted a complicated contract, lease or mortgage, tried a case or assisted in the trial of a case or even written a brief or argued a case in an upper court.”
What is to be done? Harold D. Lasswell & Myres S. McDougal summarized the possibilities: [Legal Education and Public Policy: Professional Training in the Public Interest, 52 Yale L. J. 203, 206 (1943).]
“Proposals for escape from all of this confusion and inadequacy have, of course, been legion . . . . Lecture versus case; large class versus small class; seminars versus courses; group work versus individual work; specialization versus “well-rounded” training; vocational training versus cultural training; Bills and Notes (substitute any course) in the second year versus Bills and Notes in the third year; prescribed pre-legal training versus eclecticism; three-year curriculum versus four-year curriculum—these and many similar questions have been raised like quills on a startled porcupine.”
Shucks, adapting law school was all they talked about! [Roscoe B. Turner, Changing Objectives in Legal Education, 40 Yale L. J. 576, 576 (1931)]
“It may be said without much question that there is more activity in the law school world today than there has been at any time within the last generation or two. Things are in a state of flux—the culmination of a long period of suggestion and counter-suggestion with little change. The addition of new courses to the curriculum, the general re-arrangement of existing courses to admit various types of non-legal materials, new approaches in legal thought, new ideas concerning teaching methods, the advent of fact research, and a dawning awareness of the existence of other social sciences than law, all testify to a rapidly changing world.”
But maybe there was no problem at all. [Sidney Post, Continuing Education of the Bar, 59 Harv. L. Rev. 694, 695 (1946]
“The law schools need offer no apologies for not preparing men for immediate practice … They have their own job, and should concentrate on doing it better. Academic instruction by professional teachers is the best method yet found for imparting certain kinds of knowledge.“
Or maybe there was: [Elliott E. Cheatham, Legal Education – Some Predictions, 26 Tex. L. Rev. 174, 180. (1947)]
“The United States is the only country of the Western world where a man can be admitted to the bar without having had any contact with, or any real knowledge of, the active profession.”
Finally, of course in the 1930s the job situation for graduates was pretty grim. [Charles E. Clark & Emma Corstvet, The Lawyer and the Public: An A.A.L.S. Survey, 47 YALE L.J. 1272 (1938)]
“At its annual meeting in 1933 the Association of American Law Schools considered at length the economic condition of the Bar . . . Among lawyers there was some difference of opinion about the present situation of the Bar. One man, himself successful, remarked that most lawyers could make a living if they were not lazy, and another that there were not too many lawyers, not enough, in fact, if conditions became better. But the general opinion indicated anxiety: lawyers were having a hard time—there was little work for the young lawyer—there were too many lawyers—a man couldn’t get started unless his forebears had been lawyers—banks and trust companies were taking away the business—and even collection agencies obtained powers of attorney to represent clients in the small claims court. . . . Many remedies were suggested by the lawyers interviewed. Real estate men and banks should not do so much legal work. Possibly the lawyer should be paid a certain amount by the state and do minimum work for people at large. Average earnings should be published, so the public could see they are not large. The law should be changed so that lawyers must certify that income figures are taken from records. A law might be passed that no legal instrument is legal unless a private lawyer attaches his signature. There is too much talk about crooked lawyers. It is all right to go after the crooks, but to talk and do nothing gives the public the impression that all lawyers are crooks. The Bar should keep its skirts clean, but does not. It should disbar those that need it, instead of letting them degrade the entire Bar. And finally a feeling that the public regarded lawyers as unreliable, and lumped the good with the bad, led many to be in favor of advertising, traditionally so at variance with the profession’s ethics.
The lawyers’ earnings are low, and there is a great deal of legal work undone which might become what the economists call ‘effective demand’ under other conditions. “
The Texas Bar put it starkly, and blamed law schools for pumping out graduates [Bar Section, Resolution Adopted By Dallas Bar Association, 10 TEX. L. REV. 326 (1932).]:
“We your committee on Legal Education beg leave to submit the following report:
We believe that no part of our machinery for administering justice in Texas is more urgently in need of immediate overhauling than our system of admitting new members to the bar. Under the existing laws and the rulings of our Supreme Court, the state is being flooded with young lawyers from every state in the union, many of them with little preparation for the duties that devolve upon them as the guardians of the life, the liberty, and the property of the citizen…
Before going into the details of the situation that confronts us, your committee believes it wise to lay down a few general principles and to make some observations of a general character …
There are too many lawyers in this country. That this is true is evident to anyone at all familiar with the facts. In proportion to population, there are more than twice as many lawyers in the United States as in Great Britain, and nearly five times as many as in either France, Germany or Holland. If all our lawyers were busy and rendering a useful service, there would be little reason to complain, but many of them are not busy. On the contrary, many of them are on the margin of starvation and are constantly tempted to foment litigation, to indulge in legal blackmail and to engage in other reprehensible and illegal practices. It is not merely a waste of man power. It is a prolific source of injustice and social corruption.
“Such are the standards, or the lack of standards, for admission to the bar of Texas. Our bar, already overcrowded, is held out as an asylum for the lame, and the halt, and the blind from the law schools of this country. And they are coming. ”
You gotta love those Texas lawyers!