"reading the law", ABA, Abraham Lincoln, Alan Watson, America, attorneys, Blackstone, cartel, Cato, Cicero, English common law, government, Greeks, history, law, law school, legal education, legal profession, Lysander Spooner, Rome, Scotland, Solon, Thomas Jefferson, Thomas More
A few days ago I wrote a column about the trials and tribulations of a beautiful, talented young woman enrolled and embattled at the Moritz College of Law at THE Ohio State University. I’ve also written about my legal education.
Law schools have become a collection of expensive but houses where, if one can tolerate the boredom and foolishness, one is allowed the honor of applying for a state license to practice law. The courses studied in these schools bear little resemblance to the actual law. Graduation does not guarantee admittance to the Bar. Bar test preparation is left to the student once he graduates.
Many determined and intelligent students will succeed on their own merits. A few law schools do a fair job readying students for the profession; most are dismal in their attempts. Alan Watson, of whom I have sung praise before, is the preeminent expert on legal philosophy. He wrote a book, The Shame of American Legal Education, which should be required reading for any American giving serious thought to attending law school.
Watson decries the lack of intellectual rigor and dependence of the case method (religious study of court interpretation of the law) which plague American law colleges. He praises the system of his native Scotland where students attend school for a shorter period of time and actually learn both the letter of and the ideas behind the law. Following graduation the Scots apprentice under established barristers to round out their education and transition into the field.
It’s a far better approach than we Americans use. It is similar to our old system which we adopted from the British. They had adopted it from the Romans and the Greeks.
For ages attorneys were educated men who studied the law under the tutelage of a practicing attorney. A few had a short period of standardized class time at a college. This formal lecturing range from a few weeks to a year. Upon completion of the apprenticeship the budding lawyers were either certified by a local court or eligible to sit for Bar examination (if any) or they just started working on their own.
The institution was known as “reading the law.” Most of the greatest attorneys of history were produced this way. Their ranks include: Solon, Cato, Cicero, St. Thomas More, William Blackstone, Thomas Jefferson, John Adams, John Jay, Lysander Spooner, Abraham Lincoln, James Byrnes, and Robert Jackson. All of these men were accomplished attorneys. Some were titans of the field.
Cato the Elder.
In America this was the standard of legal instruction from colonial times until the early 20th Century. The College of William and Mary was the first American school with formal law lectures. These were designed to enhance the student’s apprenticeship. Jefferson attended lectures at William and Mary.
Young men were encouraged to read the law, to understand theory and application:
If you are absolutely determined to make a lawyer of yourself the thing is more than half done already. It is a small matter whether you read with any one or not. I did not read with any one. Get the books and read and study them in their every feature, and that is the main thing. It is no consequence to be in a large town while you are reading. I read at New Salem, which never had three hundred people in it. The books and your capacity for understanding them are just the same in all places.
Always bear in mind that your own resolution to succeed is more important than any other one thing.
Abraham Lincoln, 1855
Things began to change in the late 1800s. It was then the newly formed American Bar Association began to lobby states to restrict licensing to those who had attended law schools. Later the ABA commenced its practice of certifying the schools. This cartel approach of command and control protected the monopoly of the existing bar members. The results, from a quality viewpoint, were mixed. Blackstones and Jeffersons are hard to come by these days.
The radical expansion of law school power coincided with the massive growth of government. Both resulted in the growth and increased complexity of the laws. As Cicero noted, more laws means less justice. Of course, justice had nothing to do with these trends. They were premised entirely on control and money.
Nonetheless a few states still adhere to the reading tradition although it is frowned upon. Those who stand to lose prestige and tuition frown a lot.
California, Maine, New York, Vermont, Virginia, and Washington still allow reading in place of law schooling. Each has its own standards and in some a period of law school attendance is required. Out of over 80,000 new lawyers minted in 2013, less than 100 read the law.
“The A.B.A. takes the position that the most appropriate process for becoming a lawyer should include obtaining a J.D. degree from a law school approved by the A.B.A. and passing a bar examination,” said Barry A. Currier, managing director of accreditation and legal education for the group.
Robert E. Glenn, president of the Virginia Board of Bar Examiners, was less circumspect. “It’s a cruel hoax,” he said of apprenticeships. “It’s such a waste of time for someone to spend three years in this program but not have anything at the end.”
Of course, anything but the cartel’s way is a hoax. The frowners frown. Never mind the vast number of students who drop out of law school or graduate but cannot pass the bar. At least they paid tuition.
A few organizations exist to perpetuate the old tradition. Sterling Education Services is one. “What if, instead of a traditional law school degree and six-figure debt, you could take the bar exam and achieve your goal through hands-on legal experience?” – Sterling. These groups offer study aids and seminars. They’re looking to cash in on the alternative. Then again, these are the exact same bar prep services law school graduates turn to immediately after law school.
Though frowned upon this ancient alternative is viable. If a lawyer reads the law in a reading state and passes that state’s bar, he can then apply in other states. It would certainly warrant examination by those considering the legal profession. Those who follow this path follow in the footsteps of giants.