A Brief History of Legal Education in America: From Apprenticeships and Back Again?
by Ryan Jardine
young law student wrote to his brother of his first experience in law school: He entered his first class to find a "white-headed, bluff looking old man," who delivered a lecture on the rules of law.1 Sound familiar? Although this could be an email from a young law student, it is a letter penned in 1828 by Augustus Hand, grandfather to Judge Learned Hand, as a law student at one of the first formal law schools in the United States, the Litchfield Law School.2
Understanding the history and evolution of legal education allows students of the law to see the similarities between the experiences of contemporary legal scholars and their predecessors, as well as where legal education may be heading.
Prior to Litchfield, during America’s revolutionary period, people in America relied primarily on a system of clerkships and apprenticeships to become lawyers.3 An established attorney would take the responsibility of training the prospective attorney and sometimes provide room and board. In exchange, the aspiring attorney would pay a negotiated fee.4 The quality of a clerk’s experience varied depending on the quality of the attorney providing the training. The responsibilities of apprentices at that time might include "nonlegal but necessary duties such as starting the fire in the morning, through copying legal papers to aiding in the presentation of a case. The student was also expected to read the classic treatises."5 This apprenticeship system would be the primary means of training attorneys from America’s founding until the end of the 19th century.6
A Formal Legal Education
Seeds of change within the apprenticeship system were planted with the more formalized legal education and training led by Tapping Reeve, the founder of Litchfield Law School, between 1774 and 1784.7 At this time in America, there generally was no limit to the number of apprentices a single attorney could train. Reeve accepted an increasingly large number of apprentices until he dedicated himself primarily to the task of training these aspiring attorneys and thereby founded one of the first law schools.8
A Litchfield education emphasized the practical application of law and, while only in existence for about 50 years, Litchfield students moved on to great success: "28 became United States senators; 101 members of Congress; 34 state supreme court justices, 14 governors of states and 10 lieutenant governors; three vice presidents of the United States; [and] three United States Supreme Court justices."9 The Litchfield Law School is important as it plants the idea among some in American society that the practice of law is "a learned profession and not simply another craft to be learned through self-education or apprenticeship."10
Beginning concurrently with the founding of Litchfield, other colleges began to recognize the importance of a formal legal education in a university framework by establishing professorships of law.11 The College of William and Mary established one of the first law professorships in 1780. Thomas Jefferson, at that time a member of the college’s Board of Visitors, encouraged the founding of this new position.12 It was filled by Jefferson’s mentor George Wythe, who is recognized as the first law professor in the United States.13 He gave his students the opportunity to participate in moot court to learn oral advocacy and formed a mock legislative assembly, where students would debate bills being considered at that time and learn parliamentary procedures.14 Wythe’s stated goal was, "to train students to take positions of leadership in the national councils of America."15
Despite this growth of formal legal education throughout the 1800s, most training of future attorneys still occurred through apprenticeships in law offices. It took the determination of legal education innovators over that century to demonstrate the value of a formal legal training.
One of the vital participants at this time was Justice Joseph Story. The youngest person to be appointed to serve on the U.S. Supreme Court, Story is considered one of the "architects of American law." He served on the Supreme Court and accepted the Dane Professor of Law at the Harvard Law School in 1829. Though he was a product of the apprenticeship system, Story advocated for formal legal education.
"The old mode of solitary, unassisted studies ... in the dry and uninviting drudgery of an office, is utterly inadequate to lay a just foundation for accurate knowledge in the learning of the law. ... So thoroughly convinced was I of its worthlessness that I then resolved, if ever I had students, I would pursue an opposite course," Story said. While Story pursued that course, the enrollment at Harvard Law School increased from 24 in 1830 to 163 in 1844.16
Students attending these early law schools encountered a wide variety of legal education strategies. Programs ranged from one to two years, with the majority having no admittance requirements, and addressed topics such as "bailments, constitutional law and the jurisprudence of the United States, equity jurisprudence, pleading, evidence, and practice."17
Learning to Think Like a Lawyer
Law school training became more uniform after the arrival of Christopher Columbus Langdell, who was appointed Dane Professor of Law at Harvard in 1870. His methods and ideology served as a foundation for legal education that continues into this century. Of the practice of law, Langdell said, "Law, considered as a science, consists of certain principles or doctrines. To have such a mastery of these as to be able to apply them with constant facility and certainty to the ever-tangled skein of human affairs is what constitutes a true lawyer. ... [T]he shortest and best, if not the only way of mastering the doctrine effectually is by studying the cases in which it is embodied."18 It is from Langdell that the method of extracting law from cases by means of the Socratic method became the norm of modern legal education.
Langdell first used this method of teaching legal education during a contracts class in the fall of 1870.19 A student recounted the premier lecture:
"The class gathered in the old amphitheatre of Dane Hall—the one lecture room of the School—and opened their strange new pamphlets [provided by Langdell], reports bereft of their only useful part, the head-notes! The lecturer [Langdell] opened his.
"‘Mr. Fox, will you state the facts in the case of Payne v. Cave?’
"Mr. Fox did his best with the facts of the case.
"‘Mr. Rawle, will you give the plantiff’s argument?’
"Mr. Rawle gave what he could of the plaintiff’s argument.
"‘Mr. Adams, do you agree with that?’
"And the case system of teaching had begun."20
Although this lecture occurred more than 140 years ago, this kind of exchange still takes place today in law schools across the country.
Not surprisingly, some students’ responses to this method of teaching at that time, such as the following quote, are still echoed in the voices of first-year law students today: "[Langell’s] attempts were met with open hostility ... of the bulk of the students. His first lectures were followed by impromptu indignation meetings. ‘What do we care whether Myers agrees with the case, or what Fressenden thinks of the dissenting opinion. What we want to know is: What’s the Law?’"21
Langdell rapidly lost students—by the end of the fall term he had only seven law students in his class. However, he persisted in this method of teaching and "his circle of admirers [grew] larger and more tolerant."22
That persistence paid off. Today, the majority of law schools employ some variation of the case system in their legal education.
The Value of an Apprentice’s Work
Even as the case system became more common, however, there were those within the legal community who believed law students were losing important practical skills as a result of a formal legal education.
In 1949, Judge Jerome Frank said: "I maintain that something of immense worth was lost when our leading law schools wholly abandoned the legal apprenticeship system. I do not for a moment suggest that we return to that old system in its old form. But is it not plain that, without giving up entirely the casebook method ... our law schools should once more bring themselves into close contact with what clients need and what courts and lawyers actually do?"23
From the mid-20th century to today, many laws schools have recognized the need to strike a balance between that which is valuable in the apprenticeship system and the rigors of a more formal legal education. Currently, Educating Tomorrow’s Lawyers (an initiative of University of Denver-based IAALS—Institute for the Advancement of the American Legal System) works with law schools from around the country to advance legal education and raise standards of competence and professionalism.
For more than 200 years, great legal minds have sprung from the foundations set by Litchfield, Langdell, and countless others. As more and more law schools work to add clinics, externships, and other hands-on work experience, it seems the role of the apprentice is resurging. D
1 Sheppard, "The History of Legal Education in the United States: Commentaries and Primary Sources" 191 (The Lawbook Exchange, Ltd., 2007).
3 Stein, "The Path of Legal Education From Edward I to Langdell: A History of Insular Reaction" 439-40 (1981). Pact Law Faculty Publication, Paper 228.
4 Id. at 440; Moline, "Early American Legal Education," 42 Washburn L.J. 775, 780 (2004).
5 Stein, supra note 3 at 440.
6 Douglas, "The Jeffersonian Vision of Legal Education" 189 Faculty Publications, Paper 119.
7 Harno, "Legal Education in the United States," 29 (1953).
8 Id. at 28- 29.
9 Harno, supra note 7 at 31.
10 Moline, supra note 4 at 797.
11 Stein, supra note 3 at 441.
12 Stein, supra note 3 at 441-42.
13 Douglas, supra note 6, at 197; There has been some debate on what law school in America actually is the oldest. The College of William and Mary addressed this issue as follows: "On occasion, Harvard Law School likes to claim the honor of being the nation’s oldest law school. The claim is unfounded. As the esteemed Harvard Law School Dean Erwin Griswold conceded many years ago: ‘There can be no doubt that Wythe ... [was] engaged in a substantial, successful, and influential venture in legal education, and that their efforts can fairly be called the first law school in America." Douglas. "Jefferson’s Vision Fulfilled," available at law.wm.edu/about/ourhistory.
14 Douglas, supra note 6 at 200.
15 Douglas, "Jefferson’s Vision Fulfilled," available at law.wm.edu/about/ourhistory.
16 Harno, supra note 7 at 41-43, 47, 52.
17 Id. at 47-52.
18 Id. at 41-51, 55, 57.
19 Sheppard, supra note 1 at 26.
22 Id. at 28.
23 Harno, supra note 7 at 148.