The current crisis in American legal education
By G. Edward White
There has been a good deal of recent commentary about a perceived “crisis” in American legal education. A combination of rising tuition rates for law schools and a decline in the number of entry-level jobs in the legal profession has resulted in reduced numbers of applicants to law schools, and a corresponding reduction in entering law school class sizes. From the perspective of recent history, the “crisis” represents a potentially dramatic change in the stature and prospects of American law schools and the legal profession, which since the Second World War have been regarded as highly desirable educational and professional locations. But from a longer view, the crisis can be seen as yet another episode in the American legal profession’s eventful history.
The prominence gained by the legal profession in the last half of the twentieth century was a function of a set of interlocking relationships among universities, law schools, and state bars. By the 1950s almost all law schools required applicants to have a college degree, all the major law schools were affiliated with universities, and most state bars listed as a prerequisite for admission attendance at a law school that had been accredited by the American Bar Association. Taken together, those requirements ensured that persons aspiring to be lawyers would need to attend colleges or universities and accredited law schools, all of which had admissions requirements. They would also have to pass increasingly rigorous state bar examinations.
Barriers to entry to the legal profession thus existed at several career stages. Cumulatively, the requirements for admission to law schools and state bars made the legal profession increasingly selective, and as the demand for legal services grew in the last half of the twentieth century, law schools became increasingly competitive in their admissions policies. By the opening of the twentieth century an educational and professional pattern had become well established. The highest ranking students in colleges and universities tended to apply to law schools; law school tuitions steadily rose; and both jobs and entry-level salaries in the law firm market expanded, making it possible for students who had accumulated sizable debts over the course of their education to repay them.
It is this model of legal education and its relation to the legal profession that has provided the baseline for the current crisis. Whereas law school, the model predicted, was once a “bargain,” despite its expense, because of the growing demand for legal services and the prominence and prosperity of the legal profession, law students now face the prospect of high expenses with no guarantee of jobs. Whereas it once seemed a rational choice for prospective law students to assume large levels of debt in order to qualify for a profession that was virtually guaranteed to provide job security and a decent income, now the rational choice may be to postpone applying to law school or forego it altogether.
Thus the closer one looks at the current “crisis,” the more one can recognize that its chief point of reference is a period in which the legal profession dramatically expanded and became perceived as more prestigious because its barriers to entry were linked to high educational performance in colleges and universities as well as law schools. If one takes a longer view, it becomes apparent that the American legal profession has not always been characterized in such terms.
The founding ideology of the United States, republicanism, emphasized the importance of a written Constitution and written laws as checks on tyranny and corruption among public officeholders, so law initially became an attractive field of study because of its close connections to politics and public service, and many persons who “read law” did not practice it. After the Civil War the legal profession retained its attractiveness because the dramatic late nineteenth-century expansion of population, commerce, and industry was accentuated by legal devices, such as transportation franchises, holding companies, and patents.
But over the course of the nineteenth century the growing demand for legal services had not been accompanied by any systematic mechanisms for funneling persons into the legal profession or maintaining high professional standards. Most entrants into the profession apprenticed themselves to law offices and “read” for state bar examinations, which were typically undemanding, It was not necessary to be a college graduate to enter the profession, and few universities had law departments or law schools. Until the 1870s Harvard Law School, the most visible university-affiliated law school in the nation, had no requirements for admission and no examinations, and allowed students to receive degrees on their having attended a certain number of lectures. There were more proprietary law schools — for-profit institutions that offered courses as an alternative to reading for a bar — than university law schools. Partly because of the uneven training of lawyers, the legal profession had a somewhat unsavory reputation.
By the close of the nineteenth century, as more members of a rapidly growing American population entered the legal profession, elite sectors of the profession sought mechanisms to channel expansion and to maintain professional standards. Two institutional mechanisms surfaced, universities and bar associations, and it was their combination that eventually produced today’s multiple educational and professional requirements for entering the legal profession. As more law schools became affiliated with universities, received accreditation from the American Bar Association, and required a college degree for admission, proprietary schools disappeared. Meanwhile, as nearly all states made graduation from an accredited law school a prerequisite for admission to the bar, “reading law” largely vanished as a means of entry into the legal profession.
The interlocking of colleges and universities, law schools, and bar associations served, for several decades, to maintain the prestige of the legal profession. But the configuration that accomplished those goals was dependent on a constant and growing demand for legal services, which ensured that practicing law would be lucrative. That demand has surely slackened, at least in the short run. There may be, for the first time in American history, too many lawyers, and both law schools and law firms may need to adjust to that fact. But history suggests that the American legal profession is more than capable of making that adjustment.
G. Edward White is the author of American Legal History: A Very Short Introduction. He is David and Mary Harrison Distinguished Professor of Law and University Professor at the University of Virginia. His 15 books include The American Judicial Tradition, Alger Hiss’s Looking-Glass Wars, and Justice Oliver Wendell Holmes: Law and the Inner Self. White is the editor of the John Harvard Library edition of Oliver Wendell Holmes Jr.’s The Common Law (2009) and is currently writing a three-volume history of American law, the first volume of which, Law in American History, From the Colonial Years Through the Civil War, appeared in 2012.
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Image credit: Photograph of the Yale Law School Class of 1883. Pach Brothers, 935 Broadway, New York, New York via Wikimedia Commons.