Does the ABA Do Good? (Part I)

No. (This, however, is a polemic, and as such I am unfairly neglecting some of the fine work done by some ABA sections.) As a law student, I had an inchoate thought that the ABA could be a kind of strong mediating institution between the state and the individual that would make it beneficial to the public, not just a large lobbying organization protecting the business interests of lawyers. I had a woeful lack of knowledge of the quite sketchy history of the ABA. I thought the ABA could use its organizational heft to improve the quality of applicants to the profession, improve the ethical standards required of all lawyers, and advance the public profession of the law.

One issue of importance to the ABA during my formative years as a lawyer (and even now) was its role in the vetting process for federal court nominees. Having joined the legal profession in 1982, I was quite familiar with the burgeoning culture wars, including their cousin, the judicial appointment wars. I never thought much of the ABA’s efforts to control (or at least channel) judicial selection through its Committee on the Federal Judiciary, particularly after it couldn’t determine, based on its own “non-ideological” criteria, whether Robert Bork was highly qualified, qualified, or a hopeless disaster in the making. I don’t mind the ABA’s efforts to evaluate federal judicial nominees; what bothers me is that it claims to do so as an independent, neutral, unbiased expert.

But neither its history nor its tiresome efforts to wield an oddly refractive kind of political influence is what really bothers me. No, the ABA does harm because it can’t get it right on what should be its two most important areas of concern: legal ethics (this Part) and legal education (Part II). 

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A Snapshot of the Marquette Law School in 1967

marqunBarron’s Educational Series, a leading publisher of college guides, published its first “Guide to Law Schools” in 1967.  Its profile of Marquette, one of the then 133 ABA accredited law schools, provides a picture of a law school that differs from its modern counterpart in a number of ways.  The information below was provided to Barron’s by Dean Robert H. Boden.

Size and Structure:  The school offered only a 3-year Day Division program, and the total enrollment at the school was only  260 students.

Make-up of the Student Body: Women made up only 3% of the student body—eight students. (While this was below the national average, significantly less than 10% of all law students in the mid-1960’s were female.)  Three quarters of the student body was from Wisconsin.

Faculty: The faculty consisted of 10 full-time and seven part-time instructors.  Dean Boden was in his second year as dean.  Members of the faculty included current emeritus professors Jim Ghiardi and Ray Klitzke, and Wally McBain, who passed away last year.

Library: The current law library had not yet been constructed, and the library was housed on the third floor of Sensenbrenner Hall.  Holdings totaled 54,000 volumes.

Tuition:  Tuition was $1150 per year, or $40 per credit hour.

Admissions Standards:  Applicants had only to have completed three years of college.  Would-be students were required to take the LSAT, but the school reported that primary emphasis was placed on college grades.  Fifty percent of applicants were accepted, and applicants who ranked in the top 40% of their college classes were likely to secure admission.  While applicants were encouraged to apply for admission for the fall semester, admission in the middle of the year was possible.

Placement:  There was no placement director, but a member of the full-time faculty supervised a “Placement Bureau,” which assisted students in obtaining post-law school employment.  The law school and the student bar association also published an annual “placement digest,” which contained photographs and profiles of all graduating students.  The document was distributed to law firms in the Midwest.

Degree Awarded:  The law school awarded the degree of LL.B. (bachelor of laws) to its graduates.  However, Barron’s reported that the school was considering switching the title of its degree to J.D.  (There was a national movement in the 1960’s from the LL.B. to the J.D.)  The Marquette degree qualified its holders for automatic admission to the Wisconsin Bar under the diploma privilege, as it had since 1933.  At this time, the Wisconsin Supreme Court rules required only a law degree from Marquette or the University of Wisconsin and did not stipulate any specific courses as a prerequisite for admission.

Required Courses:  Ninety credits were required for graduation.  In addition to the traditional first year courses, Civil Procedure, Constitutional Law, Contracts, Criminal Law, Legal Bibliography, Property, and Torts, students were required to take Advanced Contracts, Agency and Partnership, Appellate Practice, Business Organizations, Ethics, Evidence, Federal Income Taxation, Introduction to Law, Jurisprudence, Sales, Trial Practice, Trusts and Estates, and one of Administrative Law, Labor Law, or Trade Regulations.  Moot Court participation was also mandatory.  Grades were numerical.

Financial Aid.  There were 32 full-time scholarships available each year, but this appears to have been the extent of financial aid.  Only 12-15% of the student body received financial assistance.

Legal Fraternites:  Chapters of Delta Theta Phi, Phi Alpha Delta, and Phi Delta Phi were active at the law school and appear to have played an important role in student life.

The Barron’s guide classified law schools as either “national,” “regional,” or “state.”  These classifications were based on the origins of a school’s student body and the focus of its curriculum.  Marquette was classified as a “regional” law school.  By way of contrast, the University of Wisconsin was a “national” law school, while DePaul, Loyola of Chicago, and Chicago-Kent were “state” law schools.

The guide also sought to classify schools as “most selective,” “highly selective,” “selective,” and “varying standards.”  Marquette fell into the latter category, but it appears that the guide relied on ambiguous, non-statistical information supplied by the school’s themselves to make these determinations.  Marquette’s ranking may also have been affected by the fact that it did not require its students to have earned undergraduate degrees, although by 1967 virtually all did.

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The Puzzling Case of Summer Abroad Programs

Once every decade or so, the ABA’s annual meeting is set in London. It appears to be a popular decision, and why not? It allows a lawyer to fly to Europe and deduct the cost as a business expense, making the vacation that surrounds the meeting just a little bit cheaper (and in a weak dollar era, that’s not a bad thing). The ABA justifies its decision as giving American lawyers a chance to better understand the roots of the American legal system by studying the English common-law system. So, lawyers visit the Inns of Court, maybe take in a lecture or panel discussion from English lawyers and judges, and even visit the courts. But does one really learn anything applicable to the practice of law (or even the theory of law) from this event? (I put aside for now the question whether one learns anything from any ABA annual meeting.) The ABA’s justification is both true and trite. The English legal system serves as a broad-based template for the American legal system (with some exceptions that followed civil law), but large differences began to emerge by the early nineteenth century, and a distinctly American legal system was in place by no later than the end of the nineteenth century. How the country that gave us trial by jury managed to eliminate it in civil matters is interesting but dated and of little concern to nearly all American lawyers. Further, and more importantly, the English and American legal systems remain but a shadow of their former common-law selves. We live not just in an age of statutes (as Yale Law Professor and now federal appeals court Judge Guido Calabresi noted), but in an age of regulations and ordinances, of written laws unending. No, the reason to go to London is because it is a taxpayer-financed boondoggle.

Like the ABA, law schools may have initially found the lure of European travel the reason for the development of summer abroad programs. 

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