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RECENT PROGRESS IN LEGAL EDUCATION
By ALFRED Z. REED
Staff Member of the Carnegie Foundation for the Advancement of Teaching
For nearly half a century there have been organized efforts to effect a nation-wide improvement in the American system of legal education. The strictly modern phase of this movement may be said to have started—in so far as it is possible to assign a definite date—in 1910. It was in this year that similar long-continued efforts by the American Medical Association to improve medical education first impinged upon the public consciousness, and suggested to lawyers that methods which had proved successful with physicians might be applicable also to the legal profession.
In many respects the task of legal reformers was far more difficult than that of their medical colleagues. Before recounting some of the particular obstacles and the progress which has since been made in surmounting them, a general explanation may be hazarded as to why the legal profession was then, and is still, in a relatively backward stage of development. The science of law, or at least that particular portion of this science (if it be a science) which primarily concerns American law schools and bar admission authorities, is not international in the sense that medical science is. In the development of medical schools physicians can draw immediately upon the experience of the whole world. The task of the American law schools, on the other hand, is severely conditioned by the fact that these schools exist primarily for the purpose of preparing students to practice American law. This is now so different from that of other countries—even from the English common law, of which it is historically an outgrowth and, in a certain sense, still a part—that foreign models of legal education and organization, though often suggestive, are rarely closely parallel. Far less than physicians can lawyers profit by the intellectual resources of other countries. America is virtually obliged to work out its peculiar experiment in government and law by itself, guided only by its own relatively brief and narrow experience.
1 The last similar discussions published by the Bureau of Education were contributed by Dean Henry M. Bates, of the University of Michigan Law School, to the Reports for 1914 (Vol. I, Ch, X) and 1916 (Vol. I, Ch. XI).
It will be convenient to consider briefly what the situation was in 1910; then what has been accomplished to improve conditions in 16 years; and, finally, what are the most important problems that still await a satisfactory solution.
I. THE PAST
First, then, as to some of the ways in which the status of legal education compared unfavorably with that of medical education in 1910.
DEFECTIVE ORGANIZATION OF THE LEGAL PROFESSION IN 1910
One conspicuous difference between the two professions was the relative lack of effective organization among lawyers. Among their many weaknesses in this respect perhaps the most fundamental was this: The medical profession proper constituted only one of several groups which were engaged in practicing the healing arts or “health service” as a whole. The legal profession, on the other hand, assumed to include everyone who was in any way practicing law, though the actual occupations might be as diverse as those of a physician or surgeon, a trained nurse, a dentist, a pharmacist, or a veterinarian. This inclusion of many different kinds of lawyers and pseudolawyers under the common head of general practitioner made it difficult to plan an effective preparation for any one kind and tended to weaken the esprit de corps of a fictitiously united profession.
Another weakness was that State lines split up the lawyers, far more than the physicians, into mutually independent local units. This weakness is in part due to the nature of the profession. Just as American law, in a general sense, differs from the law of any other country, so that particular blend of legislation and judicial decision which is actually in force in any one State is never precisely identical with the law in force in any other State of the Union. None the less, the general principles are so similar that a comprehensive nation-wide organization of lawyers is indicated as not merely practicable, but also as peculiarly desirable, for the very purpose of counteracting the centrifugal tendencies of our Federal system. This comprehensive organization did not exist. Whereas the American Medical Association, since its origin in 1847, had been an integration of State and local medical societies, the American Bar Association, organized in 1878, still competed for membership with independent State and with independent city bar associations. Under these conditions, it contained in 1910 only 3,690 members, or 3 per cent of all lawyers in the United States. The attendance at the annual meeting was 326, or 9 per cent of the membership.
Again, the American Medical Association, largely because of its advantageous situation in the two respects above noted, had already developed an effective system of professional supervision over medical schools and medical licensing authorities. Its extensive membership made possible the publication of a weekly Journal, through which the facts could be published to the profession at large. It also made possible the establishment of a Council on Medical Education, with compensated executive officers, for the ascertainment of these facts. In 1910 the work of this coun cil had culminated, for the time being, in the publication of a classified list of schools, and of a registry containing the educational record of all practicing physicians. Nothing of this sort existed in the American Bar Association. Its only periodical publication was the report of proceedings at its annual meetings. Here were recorded the unhappy rivalries of a mutually independent “ Committee on Legal Education and Admissions to the Bar” and “ Section of Legal Education "; the more or less permanent but uncompensated members of the committee or officers of the section made recommendations which occasionally resulted in the passage of relatively fruitless resolutions by the association.
Still another factor of great importance in its bearing upon the capacity for united effort possessed by either profession was the different position occupied by the professional school. In the medical profession the medical school was accepted, both inside and outside of the profession, as a sine qua non in the process of preparation. In an overwhelming majority of States graduation from a medical college was compulsory. “ Practicing physician” and “M. D.”, the degree of doctor of medicine, were, and long had been, virtually interconvertible terms. Legal education, however, was still in the process of emerging from the apprenticeship phase. The relatively modern law school had everywhere won its first victory over the conservative supporters of the older system of office preparation; in all States study at a law school was possible under the rules for admission to the bar. In no State, however, was law school study obligatory; and many influential older practitioners had not yet grasped the truth that a system of legal preparation which had worked well in their cases could not, simply because of the greatly increased volume and complexity of the law, be expected to yield equally good results to-day.
Accordingly, alongside of the American Bar Association, with its committee and section, the Association of American Law Schools made its own independent decisions as to the standards that were appropriate for admission to membership in its body. This organi
zation of law teachers was, on the whole, a more effective agency for the improvement of legal education than the practitioners' association, but was not taken very seriously by the profession at large.
DIVISION OF THE LAW SCHOOLS AMONG THEMSELVES These comparative weaknesses in the organization of the legal profession were the more regrettable because of a much more evenly balanced division of forces in the law school world. Although the development of a proper system of medical licensing tests has undeniably been complicated by the existence of medical sects, there could be no question as to the dominance, both in the associations of medical practitioners and in the Association of American Medical Colleges, of the orthodox thought already represented in the leading schools. In legal education, on the contrary, there was nothing like general agreement as to what was orthodoxy and what was heresy.
The Harvard school was the strongest of the law schools. Its famous case method of instruction, with certain resultant conclusions as to the end and aim of legal education, had long lived down its early reputation as a Boston fad. Harvard had been accepted as a leader and a model by a considerable number of institutions, including most of the larger universities. This point of view was certainly already in the ascendant in the Association of American Law Schools. Even here, however, sentiment was by no means united, and the members of this association numbered, all told, less than one-third of the total number of law schools in the country.
Excluded institutions attacked the Harvard system and philosophy on various grounds and commended themselves to many practitioners of standing by themselves departing less widely from the original ideals of the law office. Entirely apart from attacks based upon ignorance and misunderstanding, there was certainly at least some plausibility in the charge that Harvard's adherents were a little too uncompromising in proclaiming as the sole purpose of a legal education the development of a “legal mind.” Practical training and detailed information in regard to the law of the local jurisdiction were among those aspects of a complete education to which these schools seemed to be paying too little attention.
Thus the easily explicable feeling that good law schools were not so important as their theoretically-minded professors thought they were was reinforced by a suspicion that the theory of education exemplified in the leading schools was itself unsound. It can hardly be said that there was a rabid partisan discussion over a matter in which most practitioners took no interest at all; but prominent practitioners at least thought, and sometimes said, that the case