Through the latter half of the Nineteenth Century and into the Twentieth, American legal practice followed the philosophical movement toward pragmatism and power and will to power described in the last chapter. Lincoln epitomized the self-educated, circuit-riding country lawyer. The country lawyer was seen as a friend of the people in distinction to the city lawyer described by Tocqueville in his famous remark from the Jackson era,
If I were asked where I place the American aristocracy, I should reply without hesitation . . . that it occupies the judicial bench and the bar.
The country lawyer was in fact seen as an antidote to the age-old reputation of the profession which may have caused Shakespeare to write in Henry VI, “The first thing we do, let’s kill all the lawyers.” And Lincoln’s martyrdom redounded to the image of the country lawyer as one who saved the Union, and who died to make men free.
But, as the Nineteenth Century drew to a close, the effects of an urban industrial society were pushing into the frontier, and with it the values of commercialism and political and economic power. Nietzsche had noted on the Continent the collapse of traditional values, replaced by the “Will to Power.” The United States, which had earlier in its history been insulated from the intellectual currents of Europe, trailing Europe by as much as a century, now, with the steamship and increasing commercial competition and contact with Europe, found herself rapidly closing the gap. In the United States the frontier was about exhausted, and her traditional values were assailed by commercial interests.
The Case Method of Legal Studies: a New Scholasticism in the Garb of Scientific Advance
Prior to 1870 all professors at law school had begun their careers as practitioners, and indeed most continued to practice as they taught. Practical experience was then a necessity of lecture. The practice of law was then a craft. However, shortly after the war, Christopher Columbus Langdell introduced the case method of legal study to Harvard Law School. Lecture declined; the subject of practice of law became replaced by the study of cases and the study of legal reasoning. Marking that change, James Barr Ames, a recent graduate and without practical experience, was appointed in 1873 as assistant professor of law at Harvard Law School. With the emphasis upon thinking like a lawyer, not the practice of law, a law professor needed no practical experience.
The assumption supporting the case method was that law was a science. Cases were the data for study. Langdell wrote,
If it be a science it will scarcely be disputed that it is one of the greatest and most difficult of sciences, and that it needs all the light that the most enlightened seat of learning can throw upon it.
Professors became scientists. Thus developed the separate profession of the law professor. Consistent with scientific tradition, the case method further encouraged students to be skeptical of judicial reasoning.
But the case method, while it looked scientific, was not. It looked for the law out there, but it did not test the principles it found in the laboratory of experience. Rather, in the scholastic tradition, it accepted law’s age-old assumptions as true, and applied legal reasoning to lead to new truths. The new skepticism attacked the reasoning, but not the empirical base of the principles themselves.
Social Change: Toward an Urban Society
Not only was the method of teaching lawyers changing, but the society which the law was intended to serve was also changing. Inadequate to meet the new conditions of life, the force of the law declined, and with it, the stature of lawyers. As the moneyed class increased in wealth, their association with lawyers as a means to acquiring, maintaining, and protecting that wealth diminished the esteem of the profession in the public’s eye. Also, with mass education, the gap between the masses and the legal profession diminished, and with it the aura of power associated with legal knowledge.
With dramatic social change also came social upheaval. In the last decade of the century severe economic depression struck, and with it came labor unrest and an attack on corporate power and private wealth. The law, as a bastion of vested interests, was repeatedly called upon to maintain those interests against the tide of change. Injunctions were issued by the judiciary, the police power was brought to bear, and the judiciary struck down legislative changes that would seek to regulate private property in the public interest. The Supreme Court voided federal income tax laws and upheld an injunction against the Pullman strikers.
The law became not a servant of the public interest, but a servant of class advantage. With its retreat from ever-renewed application of the old principles established at the founding of this country, the law lost its vitality. Compounding the situation was a great influx of immigrants, further weakening the social and cultural values previously uniting America through its spirit of adventure and conquest.
The Rise of Big Business and the Corporate Law Office
One response of the powerful to this social upheaval was to devise methods of isolating and incarcerating the deviant elements through the building of prisons and asylums, which became filled with a disproportionate number from the undesirable classes. Another response was to build sanctuaries from change. Eastern schools became a sanctuary of the moneyed class, and big business became the institution of old American money.
With the rise of corporate America, the institutional form of Big Business, developed corporate law firms which served Big Business. The demands of this new clientele shaped the profession and drew it from service in the public interest to service of private interests. Although the vast number of the profession remained single practitioners, the power of the corporate firm in the life of the country predominated in influence. Indeed the early ethical prohibition against lawyer advertising became a means of depriving the average citizen of legal representation as against the interests of Big Business.
Educated in the Langelian concept of the law as a science, the new corporate lawyer became technicians of the law: taking the logical process of the law, manipulating the elements, and producing a desired effect. Technicians do not ask the why or whereof, they are merely interested in the structure and how to make the science work for a practical result.
The corporate lawyer became known for business planning in the office rather than oratory at court. In 1899 Paul D. Cravath instituted the “Cravath System” in which the law firm of corporate America was transformed into a cohesive team of specialists, with special recruitment and training. The legal servants of corporate America became, themselves, more like the corporations that they served: competitive and self-serving. The corporate firm became a haven from social change and for vested interests. The doors to such firms were closed to young Jewish lawyers and immigrants with few exceptions. The professional practice of law became an Anglo-Saxon Protestant enclave.
Many criticized that the heart of the law had died. Felix Frankfurter rejected private practice after a brief introduction, noting that it was committed to:
putting one’s time to put money in other people’s pockets. . . The intellectual process involved does not sufficiently appeal to me to make me forget the ultimate end.
President Theodore Roosevelt, a former student of Colombia Law School, addressed the Harvard students in 1905:
Many of the most influential and most highly remunerated members of the bar in every center of wealth make it their special task to work out bold and ingenious schemes by which their very wealthy clients, individual or corporate, can evade the laws which are made to regulate in the interest of the public the use of great wealth.
Woodrow Wilson addressed the American Bar Association in 1910. Whereas in the past the lawyer served the community, Wilson said, he now counsels the individual. He complained, American society “has lost something or is losing it. . . ”
A Code of Professional Ethics: Defense of the Image of Established Practice
Responding to the public’s criticism of corporate law offices, the profession began to address its image. The American Bar Association in 1905 appointed a committee to consider a code of professional ethics. It reported in response to the public criticism,
Our profession is necessarily the keystone of the republican arch of government. Weaken this keystone by allowing it to be increasingly subject to the corroding and demoralizing influence of those who are controlled by graft, greed and gain, or other unworthy motive, and sooner or later the arch must fall.”
The newly proposed code of ethics deflected attention from the more general sweep of Roosevelt’s attack: the greed of the established profession helping clients to evade regulatory legislation. It focused attention upon the young lawyer just admitted to practice, leaving untouched the establishment.
The canons borrowed heavily from George Sharswood’s Essay on Professional Ethics, published in 1854. Its idealistic language was borrowed, and some of its provisions were also borrowed, but only superficially. It avoided the content of Sharswood’s appeal to “high moral principle.”
The resultant code was high sounding, but protected the corporate lawyers and their clients. It prohibited advertising, which prohibition remained in place until the 1980’s. The corporate law firm had no need of advertising. The canons inhibited practice in personal injury law, which was often directed against Big Business. It reminded lawyers that the profession was “a branch of the administration of justice and not a mere money-getting trade,” but only the contingent fee, the means of the lower classes for redress, was made subject to judicial scrutiny. It left legal services most available to those who could afford to pay for them, and least available to those who could not: often those victimized by Big Business.
The movement toward the Canons concealed class and ethnic hostility. The Jewish, Catholic, and immigrant lawyers were locked out of the corporate firms for the most part, and they were relegated to urban solo practice, which was the target of the Canons. The Canons reflected an increasingly stratified profession. Justice was limited to those who could pay the price of representation.
In an effort to fill this gap in representation, New York passed the first workman’s compensation law, which was limited to dangerous occupations. But the state court of appeals overturned it as “plainly revolutionary.”
Legal Aid Societies: Maintaining the Social Order
By the turn of the century six cities had legal aid societies. Arthur von Briesen joined the Legal Aid Society in New York, and became its director in 1889. He saw the legal aid society as a tool of maintaining social order by giving the disaffected a voice.
It keeps the poor satisfied, because it establishes and protects their rights; it produces better workingmen and better workingwomen, better house servants; it antagonizes the tendency toward communism; it is the best argument against the socialist who cries that the poor have no rights which the rich are bound to respect.
But such commitment served more to assuage the anger of the disaffected, than to change the social conditions which weighed them down. It protected the social fabric as it was woven by and about the rich and powerful in society. The constitution of the Society limited its services to the “worthy poor” which meant those with jobs, with investment in the social fabric and some sense of loyalty to it; and it disregarded the “unworthy,” the unemployed who had no such investment in or reason to maintain that social fabric.
With the increasing fear of social unrest in the early part of the Twentieth Century, the legal aid societies proliferated as a weapon against unrest and revolution against the system. It was further prodded by the Bolshevik Revolution and the postwar Red Scare which maintained itself through the McCarthy era and until the fall of the Soviet Union. Bar associations began to support legal aid societies beginning in 1909, but even then its predominant effect, if not its overt purpose, was to protect elite interests and the social foundation which supported them.
Legal Reform and the Bar’s Defenses Against It
The fact that the bar associations were designed to maintain the social club from outside influence was demonstrated in 1912 when the American Bar Association, without realizing it, admitted three black lawyers. As soon as this fact was brought to the Bar’s attention, the executive committee rescinded the admissions “since the settled practice of the Association has been to elect only white men as members.” Moorfield Story, a past president of the Bar and the first president of the National Association for the Advancement of Colored People, was outraged. “It is a monstrous thing that we should undertake to draw a color line in the Bar Association.” The chair of the committee noted that admission of blacks posed “a question of keeping pure the Anglo-Saxon race.” With continued outcry from Moorfield Story, the matter was resolved: the three black lawyers were allowed to remain. There developed no rule excluding blacks from future membership. The new rule was that applicants must identify their race. That identification was effective to maintain an all-white club for the next fifty years.
As the gap between social haves and have-nots increased, the demand for reform also increased, and law professors, the scientists of the law working in the laboratories of the library and the classroom, saw themselves in the early decades of the Twentieth Century as social engineers. In the age of reform Roscoe Pound insisted that the law professor must create “a true sociological jurisprudence.” Such a role demanded, “a scientific apprehension of the relations of law to society and of the needs and interests and opinions of society of today.” Law professors cast in this role of enlightened scientists of the law for the benefit of society became a sort of social doctor presiding over the laboratories of the law to test new ideas for a cure of the ills of society.
Felix Frankfurter characterized the atmosphere of law reform among the law professors at Harvard Law school as “a quasi-religious feeling.” In 1913, after serving in the United States Attorney’s Office and in the War Department, Frankfurter was invited to become a member of the Harvard Law School faculty. He remarked,
I do feel very deeply the need of organized scientific thinking in the modern state and, particularly, in a legalistic democracy like ours, the need of a definitely conceived jurisprudence coordinating sociology and economics. In other words, I am struck with the big public aspect of what should be done by our law schools.
In this scientific spirit in the public service, Frankfurter told the American Bar Association a year later,
What we need are . . . men who labor steadily upon law as an organic whole, who should produce tentative working hypotheses to be tested, revised and modified as the actualities of controversy require.
Frankfurter said that law professors must demonstrate to students that the law is “an instrument and not an end of organized humanity” in “a great state service.”
Jerold S. Aurbach in his book, Unequal Justice, said of the case method and its emphasis upon law as a science,
Preparing students only for mastery of judge-made law, it deluded its practitioners into believing that law was science, not policy . . . Law would be taught as a science, but as long as its teachers elevated logic and doctrine above practical social policy and human experience, process would submerge the substantive needs of clients and society. In time, sharp challenges to the case method would come from those wishing to move beyond appellate opinions to analysis of the social forces that shaped law and to the practical experiences that molded lawyers.
With this emphasis upon law school as a laboratory of ideas there also developed an increasing gulf between the law school and the legal profession.
Night Schools and Entry of Minorities to the Legal Profession
In the meantime, as an alternative to the law school, night schools sprang up which emphasized the practice of the law, not as a science, but as a technical skill. It opened the practice of law to those who did not have the resources to devote the years of study required of training in the respectable way, in the case method of the big schools.
This gulf between the teaching of law and its practice was noted by Elihu Root in 1916 when as president of the American Bar Association after fifteen years of public service, he noted the ills of the profession. He noted that law professors had become “half-baked and conceited theorists” who “think they know better what law ought to be . . . than the people of England and America, working out their laws through centuries of life.” But he also noted the effect of the night schools: that fifteen per cent of New York lawyers were immigrants and another third had immigrant parents. Root warned the ABA that these immigrant influences must be “expelled by the spirit of American institutions.”
This threat to the lawyers and to the law schools reunited the two again in an effort to purge the Bar from such impure influences. The common enemy of the Bar was perceived to be the night schools which provided inexpensive accessibility to the legal profession to the immigrant, to those outside the veil of the established bar. The American Bar Association=s response was to push for educational standards and for policies of bar admission.
The events surrounding World War I legitimized this atmosphere of exclusion. The Red Scare of 1919 gave rise to a wave of super-Americanism, which built walls about the establishment. Pressures for social change were framed as alien influences to be resisted with the zeal of residual wartime patriotism. Lawyers used this atmosphere for professional advantage.
Integration of the Bar as a Defense Against Minority Intrusion
With increasing social unrest blamed on immigrants, and with their increasing membership in the bar, the ABA, in cooperation with the American Association of Law Schools, appointed a special committee, headed by Elihu Root, to study the situation and make recommendations to “strengthen the character and improve the efficiency of persons to be admitted to the practice of the law.” Attacking the night schools, the gateway to legal practice for outsiders and immigrants, the committee concluded that the bar must “purify the stream of its source” by raising educational requirements. It would require that each candidate for admission to the bar have graduated from a law school which required a minimum of two years of undergraduate study and three years of full-time legal studies. Also, mere graduation from a law school would not guarantee admission to the bar; rather, admission should be upon examination for fitness, administered by the bar itself. As to accessibility of the law schools to the underprivileged and social outcasts, the ABA dismissed the issue with the assumption that “no man who wants a college education need go without.”
One member of the Root committee defended its conclusions by noting that colleges were a necessary melting pot of diverse cultural backgrounds, “where proper principles are inculcated, and where the spirit of the American government is taught.” The night schools, being mere technical schools, did not meet that need, but catered to the “uneducated mass of men who have no conception of our constitutional government.” Root argued that the honor and dignity of the bar were at stake. But the state legislators, with a broader constituency than the American Bar Association, refused to adopt the ABA’s recommendations.
Throughout the twenties, law school enrollment and immigrant infusion into the bar increased dramatically. In New York the lawyer population increased by 57 percent through the twenties, and immigrant lawyers increased by 76 percent. Immigrant lawyers in Philadelphia increased by 72 percent. “Overcrowding” became the buz-word for the day in continuing debate over adoption of bar admission standards.
\In the Dollar Decade of the twenties, wartime patriotism was channeled to protect Big Business and free enterprise. The corporate lawyer was at the pinnacle of that caste. The progressive law office was orgnized on the business model, and that standard prevailed into the Depression.
Bar integration was accomplished across the country by the end of the 20’s. The night schools were effectively removed from legal education, and minorities were effectively barred, except as they had the means or good fortune to gain admittance to universities and law schools.
The New Deal: Social Reform Through the Law
The Depression called for dramatic reforms to meet the dire economic circumstances of the country. The success of those reforms required tolerance within the bar and the judiciary for legislative experiments. With dramatic new social needs, the law schools responded with a fresh view of the law: Legal Realism which emphasized the social function of the law. Law schools began graduating students who believed in that social function, and who desired to share in the process of resolving the ills of society. Roosevelt’s New Deal invited these graduates to public service, and provided a place for such service. Government service attracted minority group lawyers who were locked out of the circle of the established bar, and who were limited in business opportunities by the depressed economy. Roosevelt sought them out. He said,
Dig me up fifteen or twenty youthful Abraham Lincolns from Manhattan and the Bronx to choose from. They must be liberal from belief and not by lip service. They must have an inherent contempt both for the John W. Davises and the Max Steuers. They must know what life in a tenement means. They must have no social ambition.
The American Bar Association reacted to the New Deal as institutionalized subversion. They attacked the Roosevelt administration for violation of the separation of powers.
One of the most powerful pieces of legislation obtained by the Roosevelt administration was the National Labor Relations Act which was designed to reallocate power within labor-management relations in an attempt to resolve intense labor unrest. It guaranteed to workers the right to organize and to bargain collectively. The National Lawyer’s Committee, a group of anti-New Deal corporate lawyers, declared the act unconstitutional. The corporate counsel for Weirton Steel Company, Earl F. Reed, went so far as to declare that once a lawyer advised his client that a statute was unconstitutional, the statute became a nullity, and was not binding upon the client!
Another group, The Liberty League, issued press releases concerning the unconstitutionality of the National Labor Relations Act while a test case was pending, although legal ethics proscribed such conduct. They ran radio spots offering free legal defense to anyone whose rights were violated by the act, although it was unethical to solicit legal business or to stir litigation with offers of free advice or assistance.
A formal complaint was filed with the American Bar Association concerning the conduct of the Liberty League lawyers. But the ethical prohibitions were intended to target the solo practitioner, those who might be a threat to Big Business; they were not intended to apply to the representatives of Big Business itself. The alleged violators were not on the fringe of the professional circle, but at its very center. To attack the center would threaten the whole, including those who sat in judgment. Therefore, the ethics committee concluded that although it had doubts about the propriety of the publications concerning pending litigation, the lawyers could not be shown to have clearly violated the canon. It further found that the offer for free legal assistance was in fact not an offer for free legal assistance, nor was it a solicitation of business; rather it was an offer to defend the constitutional rights of the indigent. The double standard was obvious.
The New Deal developed administrative agencies which combined traditional activities of executive, legislative and judicial branches, contrary to the principle of separation of powers. The recognition of labor’s right to bargain collectively assailed Big Business’ prior monopoly on power and resources. The NAACP embarked upon civil litigation to attack the principle practiced in the South of separate-but-equal. Although it was overshadowed by labor litigation, civil rights litigation was emerging as a force with which to reckon.
The New Deal Becomes the Lawyers’ Deal
These changes in the law, while originally resisted by the bar, when forced upon it created new enclaves of professional practice. Labor relations became a specialized area of practice, with legal strategies developed for corporate clients. Administrative law, originally assailed as violating the separation of powers, when accepted, produced an area of practice which developed strategies for making the administrative law work for the corporate client. Suddenly there was a demand for expertise in these areas, and government lawyers, originally attracted to government service for altruistic purposes, found their skills marketable. They began using the administrative agencies as a training ground for private practice. Aurbach notes, “The New Deal, it is evident in retrospect, was a lawyer’s deal.”
There developed a new cohesiveness within the profession, recognizing that an adversarial system required adversity for its health and survival. The government lawyer needed the private practitioner, and vice versa; the labor lawyer needed the management lawyer, and vice versa. Through this friendly adversity developed a conformity within the profession, with players limited and plenty of work for all.
Following the Second World War, there was another Red Scare, this time led by Senator McCarthy and his House Un-American Activities Committee investigations. But the bar remained relatively unaffected, in part because membership became stabilized after the integrated bar, and there was plenty of work for everyone in a boom economy. There was some criticism of the American Bar Association resolution that would require all members take an anti-Communist oath. But it expired in time and the issue passed without more.
Judicial Enforcement of Civil Rights
Much of the power of the New Deal legislation had become restricted by court action. The new field of action in the social and legal arena was civil rights. But the structure of the bar, itself, generally insulated it from that development.
In 1954 the Supreme Court in Brown v. Board of Education held that separate but equal school facilities for blacks was not sufficient. In construing the Thirteenth Amendment, Earl Warren, the newly-appointed chief justice, wrote for the Supreme Court:
In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws
Today, education is perhaps the most important function of state and local governments. . . . It is the very foundation of good citizenship. . . . Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.
The novelty of the opinion was that the chief justice cited a series of contemporary studies on the psychological effects of discrimination. Looking to the Social Sciences to justify its decision may have been novel, but the Supreme Court was again attempting to make concrete the ideals of constitutional principles. It examined the empirical base of formerly revered principles, to bring into agreement the “is” of contemporary life and law with the “ought” of constitutionally established principles.
Rights Divorced from Responsibility: Toward a Disintegration of Legal and Moral Authority
But, there is danger in applying ideal principles to the concrete conditions of existence on a national level. Change demands its price. Through the adjustment someone must lose as another gains. Southern whites were not ready to give up their position of privilege. The Supreme Court’s radically concrete approach to the fundamental principle that “all men are created equal” rocked the nation then, and its reverberations are felt today.
In the following year the Court made application of the principle of equal access by blacks more concrete by requiring a lower court to develop a plan to integrate the public schools “on a racially nondiscriminatory basis with all deliberate speed.”
The other area of change within the law associated with the Warren Court was criminal rights. Again, in an effort to bring practice into conformity with principle, the Supreme Court began to consider what should be the consequence of the violation of even a criminal’s rights. Through a line of cases involving search and seizure, right to counsel, and right against self-incrimination, developed the notion of accountability of the system for any violation of those rights. Through cases such as Mapp v. Ohio, Gideon v. Wainwright, and Miranda v. Arizona, developed what came to be known as the exclusionary rule: the police should not be rewarded for their violation of criminal rights, and therefore illegally obtained evidence of guilt cannot be used by the state to obtain a conviction.
Whereas the exclusionary rule rocked American society fearful of the guilty going free, in the bar such rulings were a boon to business. For many criminal lawyers with the hired gun mentality, these new rules became a fertile field for legal maneuvering to the ends for which they were hired. The issue, as with the corporate lawyer, was not service to society, but how to use the rules to obtain the result desired. Roosevelt’s criticism in 1905 of the Big Business lawyers that “they made it their special task to work out bold and ingenious schemes by which their very wealthy clients, individual or corporate, can evade the laws which are made to regulate in the interest of the public the use of great wealth” was now applied by the public to lawyer’s in general. The public perception was that the lawyer would play every trick in the book to spring a criminal free.
In a great era of positive law, in which the law became divorced from morality, even from public service, these Supreme Court rulings were understood, not for their dynamic struggle with principle applied to the concrete, but rather as positive law to be manipulated to selfish purposes. The defense bar was strengthened by these rulings.