Wednesday, January 25, 2006

And What of Law Schools?

Now that Betsy has neatly disposed of legal theory (ha!), let us look at legal education. We are all about to discover just how badly acculturated she is!

My maternal grandfather was a lawyer, from a long line of lawyers, in a small town in Indiana. His ever-so-great grandfather had been designated a lawyer in the then territory merely by virtue of being the only man around who could read and write (as it was explained to me), and I supposed, people trusted him. He was a Quaker, in case that affected trust.

For a number of generations, father trained son, by "reading the law" in the office. They collected the statutes (such as were published) and such reports of decisions as could be gotten. And circuit judges rode through periodically to hold court.

By my grandfather's generation, there were law schools. I believe he was the first in his family to attend law school, with his brother. He did not really want to be a lawyer, but his father expected it of him. It was the family business, and one evidently did not disappoint that father. So rather than be a draftsman, my grandfather went to law school. He entered the family law office, and took whatever cases presented themselves. He was apparently quite unhappy at first. But, with time, he was able to specialize in trusts and estates, and liked his practice much better.

Why did law schools develop? Was there a sort of need for fairness in access to training in law that was blocked by the apprenticeship method? I do not think this is true. Abraham Lincoln, a young man of poor means and no family was able to read the law, and most law schools until the last half of the 20th century really did not welcome people of color, Jews, women, or Catholics.

So, why did law schools develop? A quick scan for an article that summarizes the development of legal education in the United States finds a number, but I really enjoyed reading Searching for Context: A Critique of Legal Education by Comparison to Theological Education, by Professor Melissa Harrison, 11 Tex. J. Women and the Law 245 (Spring, 2002). I had never heard, instance, that the first private law school in America was founded as early as 1784! It was Litchfield, I presume in the Connecticut town of that name. The students continued studying much like the apprenticed lawyers, but worked in groups. They had a teacher who interpreted what they observed in their daily practice. Harrison, at 246. It sounds to me a lot like an guided externship.

It was in the 1800's that law schools grew out of universities, like Harvard. I found many articles celebrating the centennial of individual law schools and detailing their own histories. It was Harrison's article that analyzed the development across many universities. She saw affiliation with research universities as building the idea that legal training should be theoretical just as other disciplines at universities are. Harrison, 246. We all know stories of Dean Langdell at Harvard. His insistence on aligning legal education with science education, and philosophy was meant to make teaching law seem more theoretical and more like a classical science. Langdell's talk of laboratories and Socrates and case method are the most extreme apotheosis of the push to align law with other theoretical disciplines at universities.

Interestingly enough, the American Bar Association, which issued the MacCrate Report in 1992, calling for more skills-based training in law school, did the same thing much earlier. Harrison records the A.B.A. protesting that the case-method of study alone was poor preparation for legal practice in 1921. Harrison, at 246. Such criticism continues and had resulted in developments such as Legal Research and Writing curricula, Law Clinic, Internships and Externships and other skills courses. Law schools, bar members and other observers continue to observe the disconnect between legal education and the needs of the practicing bar. It is a common observation that a recent graduate from law school will not know how to "find the courthouse door." My own experience was that the first year after law school required more intensive learning and was far more stress-filled than any year of law school, including 1-L.

It would be interesting to ask my grandfather what he thought of those first years after he began practice. I know he did not like the multi-tasks, but I am not sure if his unhappiness was that he disliked the jobs or clients or that it was stressful because he did not feel confident yet. Perhaps a mix. Maybe things were not so different and just not so well-reported.

So, to the original question, and exactly how rude is Betsy willing to be? How much is she willing to bite the hand that feeds her? This is, I am afraid, rampant speculation, on my part. I believe law schools developed in tandem with bar examinations and bar associations. The need for some sort of accrediting process, some agency to oversee in a more official way the education and give imprimatur that the fledgling lawyer was good enough was probably what drove the development of all three things. As soon as one state developed one or another or more, other states felt pressured to follow suit. Who would not want to step into the modern age and assure their citizenry that their attorneys were as certifiable as the milk and meat? If I am not mistaken, this was long about the same time that food certification was beginning to develop, too, as well as certification of other professions.

On the other hand, what a wonderful gig for all of us! I am afraid to let too much cat out of the bag, but you, the viewer, have but to open your eyes and think with your own brains to realize that law schools not only are good for training law students. They are WONDERFUL for housing law professors and law librarians and all the affiliated people. That's probably enough said.

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