The story of legal education in the United States mirrors the evolution of American democracy -- from the earliest days of the Republic when professional standards were few, and the professions were the preserve of white property-owning males, to the current situation that could not have been imagined by the small town lawyers of post-colonial times whose only legal education was a few years' apprenticeship in a lawyer's office. As Robert W. Gordon, professor of law at Yale University, details in this article, legal education has evolved enormously from its earliest beginnings in the 20th century. In today's law schools -- that have a far more diverse body than they had just a few decades ago -- classes in such fields as civil rights law, women's rights, employment discrimination and most recently, global legal studies, have been added to a traditional curricula still in the throes of change.

In the United States, being a lawyer means many different things. There are trial lawyers who appear in court before judges and juries, and many more lawyers who never see a courtroom; partners in huge big-city law firms employing 500 to 1,000 lawyers who do specialized work for multinational corporations; lawyers who work inside company managements; lawyers who practice alone or in small firms who help families and small businesses with their legal problems, such as divorces, wills, property transactions and disputes or bankruptcies; lawyers who represent people in serious personal trouble, such as victims of accidents or suspects accused of crimes; government lawyers, prosecutors and judges; law professors; legal-services lawyers who serve the poor; and "public-interest" lawyers who fight for causes. Law is also the favored career for entry into politics.

As diverse as American lawyers are in their specialties, incomes and status, clients and backgrounds, they all belong to a single, unified profession and have the same basic formal qualifications, education and training. They have all been admitted to the "bar" -- the official organization of the legal profession -- of one or more of the 50 states, under rules laid down by the highest state courts. And virtually all have attended some law school.

Entry to the profession is controlled by the bar associations, the state courts and academic law schools. Almost all states now require that to become a lawyer one must successfully complete four years of undergraduate college, then three years of a law school approved by the national bar association (the American Bar Association or ABA) and finally pass a bar examination. In most states, 50 to 80 percent of candidates who take the bar examination pass it. In practice, this system makes admission to law school the crucial and most difficult step in admission to the profession.

There are now 185 ABA-approved law schools, with about 2,000 full-time professors teaching in them. The schools are supported by student tuition fees, gifts from graduates and, if public schools, grants from state legislatures. Law school in the U.S. is post-graduate, not undergraduate. Admissions are very selective, determined by high marks in college and on a standardized test (the Law School Admissions Test or LSAT). For example, Yale Law School has 5000 applicants for 170 places in its entering class. Expenses are a high barrier as well. Students at private law schools must pay about $30,000 a year in tuition and fees; even at the state (public) law schools they must pay $15-20,000 per year; and thus many graduate with debts of $100,000 or more.

Law schools control not only who gets into the profession, but opportunities after graduation. High-ranking graduates of the most elite schools are actively recruited for the highest-paying and most prestigious jobs, such as those in the large city law firms, while graduates of lower-ranking schools sometimes have trouble finding any employment as a lawyer.

First Year

Though the schools are actually preparing graduates for very diverse careers, their basic curricula and methods are remarkably similar. They all teach the same first-year courses -- property, contracts, torts (non-criminal cases, such as injuries from cars or defective products), procedure and criminal law -- and teach them by the "case method." Students come to each class having read a few "cases" -- decisions and opinions of high state and federal courts -- collected in published "casebooks"; and the professor then engages the students in a dialogue about the cases. A typical first class in law school might start out looking at the following fictional case:

Professor (P): Mr. Fox, what are the facts that gave rise to the case of Hawkins v. McGee?

Fox: Well, Hawkins had injured his hand in an accident, so he consulted Dr. McGee; and McGee said that he could repair the hand surgically so it would be a "100 percent perfect hand." But the operation came out badly, so the hand was disfigured. So Hawkins brought suit against the doctor for breach of contract.

P: And what was Dr. McGee's defense?

Fox: McGee said he hadn't made the promise, and even if he had, doctors can't be held liable for statements they make to patients about the outcomes of medical treatments.

P: Procedurally, how was the case resolved in the trial court? And how did it get to the state supreme court?

Fox: McGee made a motion to the trial judge to direct the jury to find for McGee, the defendant, on the ground that doctors shouldn't be liable for statements to patients. The trial court refused and the jury found for Hawkins. McGee appealed, saying the trial judge should have granted the motion. The supreme court affirmed the decision of the trial judge on the motion, but said the judge had given the wrong instruction on damages.

P: Hasn't Mr. Fox left something important out of the facts? Did Hawkins bring any other claims? Yes, Ms. Goldberg?

Goldberg: Hawkins also sued McGee for medical malpractice, saying he had been negligent. The trial court directed the jury to find for McGee on that claim. The judge said there was no evidence of malpractice.

P: Why? What evidence would Hawkins have had to put forward? What witness, document or thing? Who could provide testimony on that issue? Mr. Lee?

Lee: I think he would have needed evidence that the doctor made a mistake, which he would have to get from another doctor.

P: Mr. Fox, let's go back to the court's opinion on appeal. Did the court reach the right conclusion? If you were arguing McGee's side of the case, what would be your argument that doctors should not be liable for breach of contract even if they promise a cure, and the promise doesn't come true?

Early Requirements

This system of legal education -- the post-graduate three-year program, staffed by full-time faculty, teaching a mostly standardized curriculum, using the case method -- came into being only gradually. Until the 20th century it hardly existed. In their revolution against English rule, Americans rejected aristocracies and monopolies. In the early American republic, this feeling developed into intense democratic suspicion of professional privileges and professional organizations. Most states imposed no formal requirements of education or examination on lawyers; at most, they required a few years of apprenticeship in a lawyer's office. A few law schools were founded nonetheless -- such as the famous Litchfield Law School in western Connecticut, and several university law schools connected with the colleges of William and Mary, Harvard and Columbia. These early law schools trained many of the leading lawyers of the new republic. But these schools required only a high school degree for admission and only a year or two of law study. They were usually staffed by part-time practitioners. Students listened to lectures and read secondary treatises or commentaries on legal subjects.

Winds of Change

The winds of change began to blow in the 1870s. The dramatic advancements of natural science, the prestige of the great European (especially German) universities, the urgent need for educated talent in industrial management and government, all created new confidence in trained experts and demand for organized professions as the means of supplying them. Leading lawyers founded new bar associations -- for example, the Association of the Bar of New York City, 1870, and the American Bar Association, 1878 -- with the aim of imposing new educational and examination requirements for admission to the legal profession and building a disciplinary system to expel corrupt and incompetent lawyers and judges.

In part the reformers' motives were to raise standards of education, practice competence and ethics. But they also hoped that the new standards would keep the new waves of immigrant lawyers from Southern Europe out of the profession. Their aim was to close down alternative routes to the bar, such as apprenticeship and study at night schools and part-time schools, and to reserve the American profession for college graduates, at that time only 2 percent of the population. (In this last aim they did not succeed until the late 20th century, by which time over 25 percent of the population had college degrees.)

The Harvard Model

Harvard Law School was the pioneer. From 1870-1900 Harvard's Dean C.C. Langdell and his colleagues built a new model of legal education. Harvard required some college training, and eventually a college degree. It set up a three-year program of sequenced courses, with regular examinations in each course; and expelled students who failed the exams. To teach law as a rigorous "science," it narrowed the curriculum to private law subjects, prescribing the first-year program that almost every law school adopts to this day: torts, contracts, property and civil procedure. It hired full-time law teachers as its faculty. Its teachers published the first casebooks, and taught students by the case method, making them grapple with the primary materials of legal cases, and to learn actively and interactively through dialogue with the teacher, rather than passively listening to lectures. The top students in each class were elected to edit the Harvard Law Review, the journals that publish law professors' scholarship and also law students' notes and comments on cases and development in the law. Law review membership became a credential for the jobs as clerks to high court judges, associates in big-city law firms and law teachers.

The Harvard model of legal education spread to one school after another, and eventually was adopted by all. Critics complained that the model taught little of immediate practical relevance to law practice -- no trial skills or practice drafting documents, no exposure to the statutes (legislation) and administrative agency rulings that were increasingly replacing judge-made case law (or common law) as the primary modes of law-making, nor knowledge of corporate law or regulatory law. Defenders admitted this was true, but said the model taught the general skill of "thinking like a lawyer," which graduates could apply flexibly to any practice setting. Other law school programs, such as "moot courts," in which students argued hypothetical cases before panels of real judges, came in to supplement the case method.

Legal Realists

After 1920 a group of critics called "Legal Realists" attacked the Harvard model for teaching only formal rules and principles of law, legal doctrine or legal dogma. The reasons that judges gave for deciding cases, the Realists said, were rarely the real factors behind the decisions. Law, they argued, had to be studied and taught as a social product, which arose in social conflicts and served social interests and policies. The Realists urged scholars to integrate law with social sciences, to conduct empirical studies of courts and legal agencies and processes, and to teach students to argue for results on social policy grounds.

Click here for Professor Gordon's discussion
of the concept of judicial review

The Realist program received a tremendous boost from President Franklin D. Roosevelt's New Deal programs (1932-1940). The New Deal brought many law professors into government service as drafters of legislation and lawyers for the new government agencies. The flood of new federal regulation employed thousands of new law graduates in both private law firms and government. New Deal veterans staffed the faculty of law schools after World War II and brought with them new courses in novel fields of legislation -- tax, labor, securities, anti-trust and regulated industries law. Books of cases were turned into books of cases and materials -- the materials being statutes, administrative agency rulings, government reports and social science studies.

New Wave of Change

The social upheavals of the 1960s and '70s brought several new waves of change to legal education. The social movements for the rights of African-Americans and women added new courses to the curriculum in civil rights law -- which for the first time became a central topic in constitutional law -- and employment discrimination. A body of new social regulation, especially of the environment, created the demand for a new field of environmental law.

In 1965 President Lyndon Johnson created a federally funded legal services program to serve poor clients and bring lawsuits on behalf of poor clienteles. This program and other foundation-funded "poverty law" programs inspired law schools to create clinics -- law offices within the school, staffed by new cadres of clinical law teachers, where students could learn not just to think like lawyers, but to represent real clients while in law school under the supervision of practicing lawyers and clinical teachers. In many law schools today, most students get some experience representing tenants in rental housing, prisoners, criminal suspects, welfare recipients, immigrants seeking to enter or remain in the U.S., poor debtors in consumer disputes or environmental causes.

The new social movements also transformed the population of law schools. Law schools in the South had admitted no black students, and law schools in the North very few until the 1970s; since then black and Hispanic students have made up about 10 percent of each class. Law schools had strict quotas for women before 1970; between 1970 and 1990, women went from 4 percent to 50 percent of law school enrollments. To accommodate the new students, law schools in the 1970s and '80s doubled in size.

Administrative and regulatory law, and the disciplines of clinics, poverty and environmental law, and civil rights law, were all responses to external challenges and changes. Law schools also began to respond to intellectual challenges from inside the academy. In the 1930s, law schools had flirted with other social sciences -- especially economics, history, psychology, sociology and anthropology -- but these other disciplines were kept at the margins of law study. In the 1970s, law teachers began more aggressively to integrate other disciplines into research and teaching -- among them moral and analytic philosophy, social history, feminist studies, political science and criminology. The most powerful and far-reaching alliances were between law and economics. Field after field of law -- not just antitrust and regulated industries, but corporations, contracts, torts, property and many others -- borrowed from economics to explain what kinds of legal rules and institutions were efficient or could be made more so. Economic theory and economic reasoning are now pervasive in academic legal literature -- and often in court opinions as well, since several well-known legal-economics professors have become federal judges. New law teachers, especially in elite schools, now often hold doctorates in economics, history, political science, philosophy or sociology as well as law.

Global Law

The next big changes in legal education -- already beginning -- are clearly going to be in the direction of global legal studies. U.S. law schools have been expanding their graduate programs for foreign law students, gradually admitting more non-Americans to regular law programs and sending more American students off for a year's study in other countries. Courses are beginning to proliferate in transnational legal fields -- especially transnational commercial law and international human rights as well as in regional specialties such as Chinese, Japanese and Islamic Law.

The story of American law schools is one of gradual, slow and often reluctant, but real enlargement of vision. Following Harvard's example, modern U.S. law schools began by teaching exclusively private law to prepare graduates for private practice, but gradually expanded to include public law to prepare for public service and practice on behalf of the poor and social movements. These institutions began by teaching law as an isolated field of its own, but have since expanded to include and integrate law with other disciplines. They have learned to supplement the case method with live-client clinics. And after two centuries of isolation, they have begun to open up to and learn from students, legal traditions and experiments in the world outside the United States.

Back to top | Issues of Democracy, August 2002 | Other IIP E-Journals | IIP Home