Recent critics of legal education, fueled by the declining market for lawyers and the increasing cost of law school, have advocated wholesale changes in legal education and the legal profession. These range from transforming law schools (at least the "non-elite" ones) into places where part-time faculty, consisting primarily of practicing lawyers, teach students the skills they will need as attorneys, to following the example of Washington State in licensing non-lawyer legal technicians to provide limited legal services to the public (as a recent editorial discussed).
When considering the proposals of these critics, one might think their analyses and recommendations are novel, if not revolutionary. But when one reviews the history of legal education over the last 100 or so years, the current controversy reveals itself as another chapter in a long running debate. A brief review of that history may be enlightening.
In 1916, there were 140 law schools, 76 with day programs, 21 with both day and evening programs, and 43 with only evening programs. Collectively, they enrolled about 21,000 students. However, at that time one could qualify for admission to the bar by an apprenticeship, much as Abraham Lincoln had "read the law" in the 1830s. In fact, no state in the early 20th century required a law degree for admission to the bar.
During the 1920s, both the American Bar Association (ABA) and the Association of American Law Schools (AALS) began a campaign to get state bar authorities to require a law degree, earned after three years of full-time study, for admission to the bar. Their ostensible purpose for doing so was to raise the qualifications required to become an attorney. Their method was to set standards for the accreditation of law schools whose graduates would be permitted to take state bar examinations, which they encouraged state bar authorities to adopt. Their goal, and the ultimate result of their efforts, was to push virtually all law schools into the same mold: the university model established by Harvard, Yale, and the other institutions that trained lawyers to practice on Wall Street and similar business communities.
Another tactic was to eliminate the part-time law schools that enrolled nearly 40 percent of law students. Since the 1890s, many of them had opened across the country to fulfill the desire of recent immigrants and other upwardly mobile poor to enter the legal profession. Such schools, most of them proprietary, were not well-received by the profession or the elite institutions. Opposition came not only because of their deviation from the Harvard model of instruction (they used lectures rather than the case method), but also from undisguised ethnic prejudice against the immigrants who constituted the vast majority of students in such schools. The AALS and its elitist members also saw the proprietary schools as competitors with whom they were at an economic disadvantage.
In 1921, Alfred Reed, a non-lawyer on the staff of the Carnegie Foundation, produced a report entitled "Training for the Public Profession of the Law." Reed saw the country as a pluralistic society with a unitary, elitist bar. He opposed the ABA/AALS efforts to eliminate the less fashionable schools, arguing that there was a need for lawyers of differing skills and qualifications to serve a diverse population. Although the ABA was, in fact, unable to eliminate the part-time law schools, it did succeed in establishing an accreditation requirement that such schools provide four years of part-time education in order for their graduates to be eligible to take the bar, a requirement that furthered its efforts toward a unitary bar.
In the years between World Wars I and II, the ABA and AALS set standards for law school accreditation that included minimum student/faculty ratios, number of library volumes and amount of library expenditures. At its 1930 meeting, the ABA passed a resolution against commercially operated law schools and defeated one calling for at least one-half of every law school faculty to be composed of practicing lawyers.
During the Depression, state bar associations were concerned about overcrowding in the profession (sound familiar?), and wanted to find a way to limit the number of practicing lawyers. Accepting the ABA's goal of eliminating proprietary schools by raising standards for entry into the profession was seen not only as a way of improving legal education but also of decreasing the number of law school graduates. During the 1930s, at the ABA's urging, more and more states began to require at least two years of undergraduate education plus law school education in ABA-approved law schools for admission to the bar, thereby making admission more difficult.
The trend continued to the present: part-time schools added full-time programs; independent schools affiliated with universities; the vast majority sought ABA approval and AALS membership.
Today we see the current status of the debate: a profession that many say is overcrowded, despite the ABA's success in imposing its standards on legal education; the dearth of affordable legal education; the call for more practical training; and the creation of differing classes of legal service providers (as in Washington). The ultimate result may depend on factors beyond the control of the profession —the economy, globalization, the internet. But the debate might proceed more effectively, and with less acrimony, if its participants informed themselves of its history.•