Recent statements from the American Bar Association suggest that the national lawyers’ organization may be on the verge of abandoning one of its most “sacred” principles: the idea that that law is a unitary profession. Though lawyers have long had specialized practices, the dominant professional ideal in the United States, at least since the 1920’s, has been that there is only one kind of lawyer. One is either a lawyer or one is not, and there is no distinction between advocates, solicitors, notaries, conveyancers, patent specialists, or judicial officials, as there are in many European countries.
The prerequisite of passage of a broad-based bar examination in most jurisdictions has reinforced this position. All those who make their living from the practice of law take the same bar examination.
A logical corollary of this principal, also long embraced uncritically, is that all lawyers should receive the same type of legal education at the same type of law school.
Suddenly, we are being told that all law schools should not be the same and that one of the problems with legal education is that they are all essentially the same. In a Working Paper released on August 1 by the ABA’s Task Force on the Future of Legal Education the task force calls for “greater heterogeneity in Law Schools.” Offered as one of it recommendations, “There Should Be Greater Heterogeneity in Law Schools.” (p.22) In justifying its recommendation, it offered the following:
Although it is an overstatement to say that all ABA-accredited law schools are stamped from the same cookie cutter, accredited law schools in the United States have long been highly uniform. The basic structure has been that of a college in a university, which provides a single degree, the J.D., and which has a full-time faculty marked by the cultural characteristics described above. The curricula, in particular the first-year curricula, have been very similar from one school to another. (p.22)
An even blunter assessment came recently from Boston University Law School dean, Maureen O’Rourke. According to O’Rourke, “We don’t need 200 law schools that look like Harvard Law School and value the same things as Harvard Law School.” O’Rourke made her comments in support of a recommendation that law professors need no longer to receive tenure offered by the ABA’s Council of the Section of Legal Education and Admission to the Bar (of which she is a member).
The idea that law schools should be cut from the same cloth is an idea that has been around for a long time.
Although there are a very small number of outliers (CUNY and, to some extent, Northeastern come to mind) most law schools are in fact constructed around a model of legal education pioneered by Christopher Columbus Langdell at Harvard in the late 19th century. By the post-World War II era, the belief that law school should consist of a three year course, with a fixed set of first year classes and an elective advanced curriculum, taught from casebooks by some version of the Socratic method, was everywhere embraced. While part-time programs continued to exist at many law schools, they ceased to represent an alternative model of legal education and became instead merely drawn-out versions of the three-year, full-time program.
Even though it has been fashionable since the 1970’s, to attach both arts and science-oriented “Law and ….” courses and skills-training classes to the curriculum, the basic model of legal education has been unchanged. Moreover, in all but a handful of states, only graduates of ABA-accredited law schools are eligible to sit for the bar examination.
However, if one were to go back and look at the landscape of American law schools before the 1920’s, one would find a world of much greater variation. In his classic study of American legal education published in 1921, sociologist Afred Zantziger Reed of the Carneige Foundation classified then contemporary law schools into four categories based on the length of their law courses, the amount of prior college education demanded of their students, and whether or not instruction was offered during the day or in the evening.
The four categories not withstanding, for Reed there were two basic categories of law schools: (a) university affiliated law schools with professional law teachers that maintained high entry requirements and offered full-time instruction in national law through the case system, and (b) part-time or short course law schools which relied upon practitioner-teachers who lectured on local law.
The leadership of the ABA in 1921 had assumed that the Carneige Foundation’s Report on Legal Education (which had been anticipated since before U.S. entry into World War I) would call for the elimination of academically inferior law schools, just as Foundation’s Flexner Report had done in regard to medical schools during the previous decade. (The Flexnor Report set in motions currents that within a decade had resulted in the shuttering of over half of the medical schools in the United States.)
However, to the consternation of the ABA leadership, Reed endorsed the idea of a two-tiered system of law schools. His view reflected what he believed to be the reality of the bar in the 1920’s, which was that contrary to the claims of the ABA and the state bar associations, there was no “unitary” legal profession; some lawyers served the needs of business while others provided legal services to ordinary citizens. Thus, it made perfect sense to Reed to have a more scholarly type of law school to train lawyers for the first group and a more practitioner-oriented set of schools to train lawyers for the second. REED, Training for the Public Profession of Law: Historical Development and Principal Contemporary Problems of Legal Eduction in the United States with Some Account of Conditions in England and Canada (1921).
In response to Reed’s dismissal of the “unified bar” concept, the ABA organized its own committee, which prepared the a competing evaluation, known as the Root Report, named after committee chair Elihu Root, a prominent lawyer and a former Secretary of State and winner of the 1912 Nobel Peace Prize. To no one’s surprise Root’s Report endorsed the idea of a unitary profession and a standard model of legal education. It endorsed the idea that “only in law school could an adequate legal education be obtained;” that two years of college should be required before admission to law school; that the law school course should last for three years, and that the ABA should establish a system for the accreditation of law schools. ROOT, Report of the Special Committee of the Section of Legal Educators and Admission to the Bar of the American Bar Association (1921).
The Root Report was ratified by the ABA at the 1921 annual meeting where former President and current Chief Justice of the United States Supreme Court actively campaigned for its adoption. Although Root’s report accepted the legitimacy of part-time programs, a law school with one could only be accredited if its part-time students were held to the ABA standards in regard to prior college study. (This feature prompted Marquette to close its night division in 1924.)
The ABA’s “unitary law school” campaign was anything but an immediate success. A decade later, only 78 of 188 American law schools had secured ABA accreditation, which was nowhere required for bar examination eligibility. No prior college study was required at 30.9% of law schools, and 64.3% of law students were enrolled in law schools that either offered part-time legal education or a law course of less than three years. More than a third of all law students (33.9%) were enrolled in schools that offered only part-time legal education programs of three or more years, and only 5 of the 23 largest law schools in the United States were full-time only schools. Moreover, most states, including Wisconsin, still allowed prospective lawyers to study exclusively in law offices or on their own.
However, by 1951, the ABA model had clearly prevailed. There were no part-time only law schools, even though such schools had dominated the educational landscape two years earlier. A college degree or its equivalent was required for both law school and bar admission, and eligibility for the bar examination was limited to graduates of ABA-approved law schools in a majority of states. The free standing, evening only law schools of the 1920’s and 1930’s had all either established full-time divisions and secured ABA accreditation, or they had folded. Part-time programs that survived were substantially similar to full-time programs, and a three year, full time law course (or its equivalent) was the norm for all law students.
Moreover, by 1951, all law schools had substantially identical curriculums, and casebooks marketed nationally by a small number of publishers and designed to be used in conjunction with the Socratic method were the norm in the classroom. Law schools were also staffed by professors who were full-time teachers who thought of themselves as legal scholars, and as such usually considered themselves closer to their fellow professors in other disciplines than to practicing lawyers. When they still taught, practicing lawyers were consigned to specialized courses at the margins of the curriculum. Even schools like Marquette, which still touted itself as a “Lawyer’s law school,” differed from their more “theoretical” counterparts only on narrow curricular matters, especially those involving the extent to which the insights and methodologies of the social sciences ought to be incorporated into the law school curriculum.
To some extent, the “unified law school” became entrenched thanks to the ABA accreditation standards which essentially made replication of the Harvard model a prerequisite to ABA approval.
At the moment, with an oversupply of law school graduates, many of whom are deeply burdened by student debt, and a declining applicant pool, American legal education is teetering along the edge of panic. Whether or not any substantial changes in the structure of legal education will be forthcoming is an interesting question. It may well be that a modest decrease in the number of entering law students combined with a slightly improved market for legal services and a freeze on tuition will allow the crisis to pass with relatively few changes in the American law school model.
On the other hand, we may see a return to the bifurcated law school landscape of the 1920’s. It is entirely possible that a two-tiered legal education sector could emerge out of the current crisis. On the higher level, higher at least in terms of prestige, will be a group of high tuition “academic” law schools that retain the three year law course and which will increasingly be staffed with PhD-holding faculty members who engage in Arts & Sciences style research and writing.
On the other tier, there will be a second group of less expensive, “practical” law schools that condense legal training into two years and which recruit their faculty from the ranks of the practicing bar. While the faculty members are such schools are likely to continue to produce educational texts and what used to be called “doctrinal” scholarship, these schools will emphasize “skills training” and will place very little emphasis on the history and theory of law.
One can also imagine flourishing LLM programs at the “academic” law schools that would allow graduates of practical law schools to round out their legal education, if they desired to do so.)
There may also be a third tier of schools, training not lawyers, but licensed legal technicians whose activities are restricted to very specific tasks, like real estate conveyancing or the drafting of wills and trusts. (Patent agents already perform such a function.) The ABA Task Force Working Paper, mentioned above, actually calls for universities to develop such programs as a way of making legal services more affordable. (p.31)
The licensed bar itself will presumably remain unitary, at least in a sense that graduates of either type of law school will still have to pass the same bar examinations, or, in Wisconsin, be admitted under the same diploma privilege.
If this second scenario does come to pass, it will be interesting to see which law schools decide to position themselves as “practical” law schools, rather than “academic” ones. If this happens, this will likely be an issue that will divide many law school faculties.