The History of Legal Education
1890 - 1910
1890 – Bar Exam

First statewide bar examination committee
(New Hampshire) followed by:
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Bar examinations committees in every state
but one by 1915.
UNSUCCESSFUL meetings to organize a
conference of bar examiners in 1898, 1904,
1910, 1914, and 1916. First meeting will not
occur until 1931.
1891 – ABA Recommendations
The Standing Committee’s statement on
“The Best Method for Teaching Law”
recommends the textbook method as
opposed to the new case method for the
proper training of a lawyer. Reasons:
 can’t teach rules and decisions without
principles; and
 students need opportunities to practice.
1892 – ABA Recommendations
1.
The Standing Committee encourages:
A.
B.
C.
D.
states to pass legislation requiring students be
admitted to the bar only by state supreme courts;
that applicants have studied law for at least two
years – as much as possible at law school (reduced
from its earlier recommendation of three years);
a new “Practical Course of Study” to include e.g.
property, contracts, torts, and not e.g. diplomacy,
history, and social sciences, which is in contrast to
the curriculum recommended in 1880; and
a method of study directed to the development of
basic lawyer skills – including apprenticeships.
1892 – ABA Recommendations
2.
The Standing Committee requests the US Dept. of
Education to send foreign countries a questionnaire
to survey their legal educational systems.
A.
B.
Committee’s summarized results reveal that foreign
courses of study include general principles of law,
legal history, and practical application. By
comparison, the US legal system is “wanting.”
Furthermore, no two US schools had the same
course of study and few required a prior academic
degree.
US is only known country that permits ex tempore
(“off-hand” or w/out preparation) bar admission
testing.
1892 – ABA Recommendations
3.
A Standing Committee Member sends a “circular of
inquiry” on bar admission requirements to each state’s
chief justice re. the state’s procedure, which reveals
little uniformity. Some law schools had law school
diploma privilege. Underlying concerns:
A.
B.
Should state supreme courts have the sole
power to admit to the bar or to create
commissions to oversee bar examinations in
their states?
And, should a law diploma result in automatic
admission?
1892 – ABA Recommendations
Standing Committee adopts the following resolutions:
4.
that the power of admitting members to the Bar, and the
supervision of their professional conduct, be in each State
lodged in the highest court of the State;
B.
at least two years of study before presenting for examination;
and
C.
state to make provisions when necessary for the maintenance
of law schools, and the thorough professional education of all
those admitted to practice.
HOWEVER, ABA committees were limited in size and members of
the ABA thought the resolutions reflected inadequate member
representation. Several members agreed to a more general
meeting the following year. And, in 1893 . . .
A.
1893 – ABA’s First Section

ABA founds its first Section, the Section of Legal
Education and Admissions to the Bar:
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to complement the existing Standing Committee on
Legal Education and Admissions to the Bar, and
with power to elect its own officers, schedule
programs, and debate and pass motions, but
recommendations require Standing Committee
approval before ABA’s action.
Purposes:


“serve as an important feeder to the Association,” and
to provide an opportunity for discussion of legal
education with more fullness than open meetings allow.
1895 – Law School Diploma
Privilege

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Tension between the ABA and law schools (and judiciary
and legislature) over control of entry into the profession
manifests when three Hamilton College Law Students
were admitted to practice after being examined by
school faculty. Many law schools follow.
Argument for by Theodore W. Dwight at Columbia (1858
– 1890): If legal education is superior training to
apprenticeships, shouldn’t one be admitted to practice
by presenting a diploma? (Also, adds value to diploma
and incentive to stay in school.)
Argument against bar exam in general – law is not static
and any certification will be limited in scope and have a
short time value. Schools will tend to teach to the test.
1896 – The First Section

The Section proposes that the ABA adopt minimum
admission standards for law schools. The consequence
of failure is to not be in good standing.
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Mention of teaching of legal ethics in 1895 by Section
Chairman
Meetings’ minutes reveal:

Discussion of case method. 1894 report shows majority of law
schools used the textbook method.

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Case method, is it “piecemeal approach” or does it develop powers of
analysis and judgment?
Curriculum concerns, esp. re. procedure. 1894 report shows that
half of all US appellate cases turned on errors of procedure.
Lincoln Objection frequently debated (i.e. objection against
requiring formal legal education).
One recommendation that outside work be excluded.
1899 – The First Section

Develops a list of questions for the
fledgling Conference of State Law
Examiners


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Bar exam – oral or written?
Form of questions?
Subjects?
Weight of subjects?
Urge evidence of good moral character for
admission to the bar.
1900 – The First Section


Disapproves of diploma privilege, and resolves
that only a state examination by the State Board
of Examiners under authority of the state
supreme court should have this power.
Frequent subject for next decade’s meetings –
part-time and night law schools


Lack of ethics (i.e. shared background/values = code
of ethics)
Discrimination and immigration
1900 – The First Section, cont.

Recognizes a need to regulate law schools and
creates the Association of American Law Schools
(AALS) with 32 charter member schools and the
goal of improving legal education in America.
AALS sets these standards:



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high school or equivalent before admission,
ten hours-a-week of instruction for at least two years
of acceptable study in law school,
only graduate students after an examination, and
law school’s ownership or access to a library w/ a
collection of state and Supreme Court reports.
By 1900 – College as a Prerequisite
Unlike most schools, which only require a
high school education, Harvard effectively
requires an undergraduate degree as a
prerequisite for admission. This is the
beginning of the shift from legal education
as an alternative to college to legal
education as graduate education.
1908 – The First Section
Recommends part-time schools
extend their programs to four years.
(In 1906 the Section was urged to
acknowledge and study night law
schools as a factor in legal education,
desired or not.)
 Recommends two years of college
before entering law school.

1908 - ABA
First national code of conduct for
lawyers is set forth in thirty-two
Canons of Professional Ethics.
1909 – Prelegal Course
Requirements
AALS appoints a three-man
committee to study the issue. The
report reflects a considerable
difference of opinion.
 The subject will be considered
annually through 1940.

1910

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Release of the Flexner report on medical
education, which inspires Redlich’s (1914)
and Reed’s (1921) studies of legal
education. All three are sponsored by The
Carnegie Foundation for the Advancement
of Teaching.
Beginning of “the golden age of the
proprietary law school” which runs until
around 1940.
Summary 1890 - 1910
1890 - Birth of statewide bar examination committees, but no national forum.
1892 - Recommended method of instruction migrates from theoretical to practical and (or
but?) from textbook to case.
1893 - ABA founds its first Section, the Section of Legal Education and Admissions to the
Bar.
by 1900 - Beginning of transition from law school as an alternative to college to a
graduate education.
1900 - First Section recognizes a need to regulate law schools and creates the
Association of American Law Schools (AALS).
1908 - First national code of conduct for lawyers
And, in general

Struggle over who controls admission to the bar – schools (i.e. law school diploma
privilege) or states’ supreme courts.

Recognition of lack of uniformity re. curriculum; methods of instruction; bar
admissions’ processes, formats, and standards; Lincoln Objection - school v. reading
and apprenticeship; requirement of an apprenticeship; school resources (e.g. library
holdings), and law school prerequisites (e.g. number of years of prelaw college
required if any).

Rise of part-time and night law schools and the ethics and discrimination concerns
(esp. re. immigration) that follow.
1890 – 1910, Lending Context to
the Future of Legal Education
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Tension between theoretical and practical knowledge deeply rooted
and multifaceted (school v. apprenticeship, text v. case study,
national v. state, democratic v. elitist, professor as scholar or
educator). How can the goals of conceptual knowledge, skill, and
moral discernment be integrated within these still existing tensions?
Definition of “ethics” is subject to multiple interpretations and is
vulnerable. Can there be a “core commitment” that defines the
profession? E.g. social justice v. capitalism, the return of antiimmigration sentiments, etc.
External forces that shape legal education remain – influence of the
bar exam on the curriculum, school standing and ranking, and costs
to schools and students.
Yesterday’s part-time and night programs are today’s distance
learning/internet programs. Are they here to stay and how will they
contribute to the future of legal education?