Recent Developments in Legal Education in America: The Process of Growth and Redefinition

(David S. Averbuck)

(B.A. 1964, University of California, Berkeley; J. D. 1967, University of California Boalt Hall School of Law, Berkeley; Lecturer, University of California, Berkeley, School of Social Welfare (on leave); Visiting Fulbright Professor of Law, Calcutta University College of Law (1979-80)).

During the past decade, law schools in the United States have made monumental changes in their admissions, policies and programs and in turn have begun innovative and imaginative alterations in their curricula. Both phenomena are interrelated and find their common impetus from the social movements of the 1960's which predominated American academic, domestic and judicial life. It is the purpose of this paper to highlight the recent developments in admissions over the past 15 years and to focus on the areas and problems which lay ahead for law schools in the United States.

Brief History

The beginning of legal education at American universities occurred when Thomas Jefferson created a professorship of law at William and Mary College in 1779.[1] Two generations later, in 1817, the Harvard Law School was established and is now the oldest existing law school in the United States. [2] From 1800, when there were 69 law schools in our small country, a steady growth occurred and the number of institutions offering degrees in law expanded until by 1925 they totalled 168. [3] That number has remained fairly constant, although the size and diversity of these educational institutions have changed dramatically.

In 1921, the Carnegie Foundation for the Advancement of Teaching published Alfred Z. Reed's Training for the Public Profession of the Law, and it is this lengthy document which one might refer to for a more comprehensive study of the history of legal education in the United States. As Professor Preble Stolz [4] has pointed out, it was during Reed's time that the basic three year graudate program of law was institutionalized in America, that a minimum of two years of undergraduate work had to be completed before admission to law school (now it is almost uniformly required that a Bachelor's degree roust first be completed), that the American Bar Association declared that only in law school could one get an adequate legal education, and that law schools would be subject to an accreditation procedure. Thus, the legal profession strongly placed its hand on the legal education system of our country, and continues to maintain its influence in this day.

Law schools, like medical schools, have until recently limited the number of students who would eventually enter the profession—limited this number on criteria other than the needs of society. Our legal education institutions catered primarily to white middle class and upper class male graduates who usually were to enter corporate and commercial practice. Other than in the area of criminal law, the emphasis at most law schools neglected the social problems of the racial minorities in America, the poor, the environment, and civil rights. While debate over change in the schools became common place after World War II, little action in fact was taken to remedy the inadequacies of our programs. [5]

The 1960's were the turning point for legal education in America, and the forces which altered its character were as diverse as the changes which were to come. First, the country had its first President born in this century, John F. Kennedy, whose "New Frontier" encouraged social action—most noteworthy being the development of the Peace Corps, which was to be the breeding grounds for many future socially conscious law students. Political programs such as the "New Frontier" are often short-lived in our society, capturingthe dreams of a generation and then failing to meet sufficiently its aspirations. But the assassination of the President not only shocked our nation, it committed us to fulfill what was perceived as his dreams of social change; and with the domestic leadership of Lyndon Johnson (who knew how to control the Congress), and the Civil" Rights Movement led by the late Martin Luther King, Jr., who gave us moral leadership, social change became a massive reality in America. Congress responded with the passage of the Civil Rights Acts of 1964 (42 U.S.C.S. 2000 et seq.), 1965 (79 Stat. 437) and 1968 (82 Stat. 73). It was a watershed period, not only for academic institutions which were being integrated but also for the legal community at large. Students who participated in non-violent protests throughout the country and particularly in our Southern states as well as those returning from the Peace Corps expected their law schools to offer avenues for social change and redress of grievances; in addition these students were acutely aware of the lack of black, brown, women and other minorities in their classrooms. It was during this period that I was attending law school at the University of California, and we had only "five women in our class of 275 and only one Black student Eight years later, the same institution admitted overninety (90) women and seventy-five (75) Blacks, Latinos, and Asians while keeping the total class size down to roughly 280.

The judiciary and the legal profession itself played a major role in this revolutionary change. Our Supreme Court, led by Chief Justice Earl Warren (a graduate of my law school), began changing the role and needs of the legal profession in 1963 In the landmark case of Gideon v. Wainwright, 372 U. S. 335, and with later decisions, the Court mandated that all criminal defendants who could not afford a lawyer must be appointed counsel at state expense (But see Scott v Illinois. (77-1177) U. S. (3-5-79) which allows for the State toavoid appointing counsel to indigents in criminal cases if no prison terra is in-volved in the sentencing.). Four years later in the Application of Gault, 387 U. S. 1 (1967), the same Court ruled that this right to counsel was applicable to juveniles involved in our Juvenile Court systems With the creation of President Johnson's "War on Poverty" [6] came tree legal services for the poor; and thus with the creation of public defenders required by Gideon and its progeny, juvenile advocates required by Gault, legal aid lawyers handling civil matters, and law­yers needed to enforce integration and the Civil Rights Acts, there arose job opportunities for an increasing number of law graduates—especially for minority lawyers who could assist members of their own communities.

In short, students and professionals alike clamored for what might be synopsized as two major changes: (1) increased enrollment in the law schools of those communities underrepresented in the legal world, namely Blacks. Latinos, Asians, and women; and (2) addition of courses offered in law school that would prepare advocates for challenging social problems such as racism, poverty environmental pollution, and the War in Vietnam (the latter being concerned with Military and Draft law for soldiers and citizens not willing to participate in the war). [7]

I was at the Berkeley campus of the University of California at this time, and the major motivators for these changes came from the students and faculty on the campus, Viewed on a miscroscopic level, the assassination of Dr. Martin Luther King, Jr. united the campus community—as it did elsewhere in America—and special admissions programs for minorities were instituted. In addition, instructors began supplementing their normal texts and discussions with topics and cases relevant to the current social problems. Demonstrations and protests occurred at other less progressive schools, and indeed even at our law school when we did not seem to be moving fast enough. A sense of emergency prevailed, a desire to avoid further violence and bloodshed by creating legal institutions to solve problems.

But on a larger scale, two remarkable changes were occurring in the legal educational system. First, the role of law and the lawyer in American society was and continues to be re-evaluated and re-defined, a process that is long overdue in our changing society. Second, and by far more important, the number of qualified (both minority and otherwise) lawyers has skyrocketed, which in turn has enhanced citizen access to the law and placed great burdens on a judiciary which has not been able to keep up with the now at times staggering caseload. Thus, as will be seen below, the thrust and impact of legal education in America has during the past decade gone through perhaps its most revolutionary change.

Admissions

Law schools desire their graduates to become educated and cultured lawyers, hopefully in the best tradition of their learned profession. They realize that the foundation of liberal culture must usually be laid in college. Hence, while the law schools prescribe no fixed requirements with respect to the content of pre-legal education (other than completion of a four-year undergraduate program at a recognized university), their admissions committees take into account the nature of college work done as well as the quality of academic performance demonstrated.[8]

Basically, there are four factors [9] which will be highly relevant in determining admissions to our law schools, although it must be stressed that each institution is free within legal limits to set its own criteria for admissions. By far the most recognized criteria is the Law School Admissions Test (LSAT), which is administered throughout the United States during the year. Prepared by the Educational Testing Service headquartered in Princeton, New Jersey, it is governed by representatives from the law schools on a nation-wide basis. "The LSAT is designed to measure certain mental capabilities important in the study of law and, thus, to aid law schools in assessing the academic promise of their applicants. The test covers a broad range of disciplines and gives no advantage to candidates with a particular discipline. The questions yielding the LSAT score are designed to measure the capacity to read, understand, and reason logically using a variety of verbal and quantitative material. In addition, there is a section on writing ability designed to measure skill in using standard written English to express ideas clearly, precisely, and fluently."(The Law School Admission Bulletin and LSAT Study Guide, p. 4 (ETS, 1977).)

The mode and content of the test is under constant evaluation. For example, while I was a dean of admissions at Boalt Hall School of Law (University of California, Berkeley), the relevance of the LSAT in judging the quality of minority applicants was under intense criticism. Statistics compiled by the Educational Testing Service showed that white middle-class applicants uniformly scored higher than minority or working-class applicants. For several years each of the participating law schools supplied the Educational Testing Service with the results of law school grades for all of its students, and the resulting adjustment in the type of test has produced more uniform treatment to all applicants. Administrators of the law school admissions programs at each institution receive numerous reports on how to evaluate the LSAT scores, and thus are able to predict better the possibilities of success at the law schools for each applicant.

The second major criteria for admission to law school in America is the undergraduate record of the applicant. Complete transcripts of a student's records are sent to the schools to which he or she applies, and again these grades and records are compared with other candidates. Obviously, there is no uniformity in grade-giving between institutions, or for that matter, even between different faculties in the same university. Thus, the Educational Testing Service compiles records on each department of a large or small undergraduate program—for all of our schools—and attempts to give us a roughidea of how well the student applicant compares to others in the same field at his or her home campus. Often greater emphasis is placed on the last two years of undergraduate education by law school admissions officers because by that time the student will be selecting courses of a more advanced nature and the growing pains of college fife should be finished by the end of the second year. [10]

The third criteria is composed of one or more recommendation letters which the candidate solicits from former teachers, employers or advisors. This is by far the least trustworthy of all items, since a form of unnatural selection has occurred by the time the administrator receives the letter. In the past, influential people would write these letters—from the President of the United States to a local Congressman—and they occassionally influenced the final outcome of the selection process. In reality, except for a few minor instances of abuse, [11] such forms of "influence peddling" have become rare or non-existent.

The reason for the termination of this injustice is complex. In part it is due to the rising social consciousness of administrators who will not be brow-beaten by politicians and favor-seekers; m part it is due to the fact that with so many applicants for so few spaces available, the number of such instances of outside pressure grew to the point where the administrator did not and could not choose between the many contenders. Perhaps most important was the tremendous increase in the number of applicants and the quality of the candidates; administrators had to justify each and every admissions decision to faculty and students—both of whom are usually represented on the admissions committees at most of our law schools.

The fourth criteria is a written personal statement by the applicant of why he or she seeks a seat in a law school. The importance of this two to three page essay must not be minimized. For example, when 1 handled the admissions program at Boalt Hall, we had over 5,500 applicants for 275 seats— or to put it more brutally, one out of twenty applicants would eventually be admitted to our first year class I found that the LSAT and the grade records enabled me to eliminate roughly 1,500 applicants because they appeared "high-risk" candidates, statistically at least. That still leftover 4,000 people from which to choose. Perhaps fifty to a hundred were superlative for example, 11 had received perfect scores on the LSAT. But of the remaining, now roughly 3,900 applicants for 200 seats (after the geniuses were admitted), we needed some criteria to differentiate between them could have selected the remainder out of the over 400 candidates who had been selected Phi Beta Kappa; or I could have selected the remainder out of over 300 candidates who had already received a Ph. D. in another field other than law; indeed, I could have selected a class composed entirely out of brilliant women, or minorities, or for that matter, red-heads. It was thus decided that the personal statements of the remaining candidates would be used not so much to determine who was qualified, but rather to pick a diversified and multifaceted group of students who could bring different backgrounds, desires and intellect to the class.

By having the faculty and several leading students involved in the selection process, law schools in America have been able to minimize arbitrary decision-making by one or two administrators further, by having an abundance of applicants compared to the seats available, the finer law schools were guaranteed to have the creme de la creme. For the law schools, the 167 which are currently accredited by the American Bar Association (which includes the finer schools like Berkeley, Harvard, Yale, Stanford, Columbia, Virginia and others), it means that they too have selected stronger if not overly-qualified students for their programs. Contrary to other fields in higher education, law schools continue to have a higher and higher number of applicants, and we now have over 85,000 candidates per year for approximately 40,000 seats at all of our accredited law schools.

There are now roughly 500,000 lawyers in the United State's, a little less than one lawyer for every 400 people. [12] The following table will perhaps reflect the tremendous growth-rate in law school attendance and the legal community since the begining of the social revolution in America which might be dated from 1963, the year of John F. Kennedy's death and the commitment of the American people for domestic change.

Source: American Bar Asso. Journal, V. 65, p. 577 (April, 1979)

NOTES: Enrollment is that in American Bar Association approved schools as of October I. The LSAT. candidate volume is given for the test year ending in the year stated. Thus, 127,760 administrations of the LSAT. occurred in the test year July, 1977, through April, 1978. JD. or LLB. degress are those awarded by approved schools for the academic year ending in the year stated. Thus, 33,640 degrees were awarded in the year beginning with the fall, 1976, term and ending with the summer 1977, term. Total new admissions to the bar are for the calendar year and included those admitted by office study, diploma privilege, and examination and study at an unapproved law school. The great bulk of those admitted were graduated from approved schools.

One might assume that with this tremendous growth in the law schools and the corresponding rise in the legal profession that the public might become satiated with lawyers. On the contrary, now that a Legal Aid system has fully taken root in American life, with thousands of legal aid lawyers and public defenders for the poor, the middle class is demanding even a greater number of lawyers to take care of their needs. Often lawyers in private practice charge too much for middle class people to use their services until a real legal crisis has arisen, so the middle class has begun to develop schemes by which they too can use the legal community without facing financial ruin.

One such scheme is being developed by the American labor movement and far-sighted employers. Like medical insurance, a form of legal insurance is being created by which employees and employers will pay a premium each month that will entitle the worker to use lawyers at discount rates or for no charge, presided the matter is unrelated to labor relations issues. There are several such schemes currently being tested and instituted, one which my old law firm arranged with the telephone workers' union in the San Francisco area. which proved extremely successful to worker and lawyer alike. The point is that with "the continual growth in this area, new employment opportunities will be created for lawyers to work with middle class people not only in solving crisis situations but also in providing preventative advice and assistance— such as in the drafting and preparation of wills, review of real estate transaction, estate planning, tax advice, domestic relations assistance. [13]

As mentioned earlier, the continuing trend in creating lawyers has also created more litigation, and Chief Justice Burger has on numerous occassions belittled our litigious mania. In the last 15 years the number of cases filed in the Federal (as opposed to our state) courts has nearly doubled, and similar increases have been recorded in many state court systems; in the last 5 years the number of class-action suits in Federal courts has nearly doubled (which therefore represents cases involving numerous litigants) and in 1976 a total of 5,320 civil rights suits were brought against employers (1,500% increase over 1970). [14] Speaking at a conference sponsored by the American Bar Association at Columbia University Law School. Chief Justice Burger warned that unless new ways were found to settle disputes, the country might be overrun by "hordes of lawyers hungry as locusts" and concluded by saying that the people want quick, inexpensive relief from their legal problems. [15]

One month later after that speech, at the end of June, 1977 the United States Supreme Court in a 5 to 4 decision ruled that attorneys have a consitutional right to advertise fees for routine legal services. The Court majority in Bates v. State Bar of Arizona, U. S. (1977), found that advertisements may aid the administration of justice and consumers without lowering professional standards, and that advertisements are permissible if limited to brief, factual information [16] Two days later, the Supreme Court nullified a lower court order barring a Virginia consumers group from issuing a directory of attorney's fees, citing the new ruling that limited legal advertisement is constitutionally protected.

These decisions reflect the judiciary's response to the growth in the legal community and the continued rise in enrollment at our law schools; perhaps more important, it reflects the heavy caseload of our courts, and our judiciary's attempt to help reorder changes in the scope of lawyer-client relations. The time has come for the public to be informed about this expanding profession, or should I say industry, for the legal profession is now being viewed by the American public as a consumer's item rather than a "public profession" available to only a highly narrow clientele. [17] Gideon's Trumpet has in fact been beard, and the problems in the legal educational community and the Bar caused by their unprecedented growth must now be faced.

The Problems with Admissions

Outside of the question as to what would be the ideal number of law students in our country, the major issue is centered on the selection process of these future lawyers by the law schools. Frankly, the four criteria described earlier developed in part to help administrators select "qualified" law students. This is no longer a problem, for in fact it is hard to find an applicant who is not qualified. The LSAT remains a test to exclude rather than to include, and thus the admissions committees need greater guidance from the faculty and the society as to just who should be admitted and why.

Fundamental questions must be asked and analyzed, and the most pressing issue is the definition of "qualified." Are we to continue to focus on the legal profession in the old way—that is, a profession of lawyers as an elite class, or are we to maintain the change of viewing the law as a tool for all people in society? Recent developments, such as the rise of legal clinics and the offering of legal advice at booths at department stores, [18] seem to suggest that the democratization of the law is a process which cannot be 'stopped.

During and throughout the Watergate Affair, the prominence of Nixon's lawyers and their criminal activities were well noted by the public, and the bar responded not only by dismissing or suspending many of them from the practice of law but also by pressuring universities to add courses on judicial ethics. Many post-Watergate bar examinations began including questions on legal ethics, and closer scrutiny of applicants to the bar ensued The following course description from Harvard Law School has become the norm rather than the exception:

"Professional Responsibilities.— All students (who take the course) will spend 9 hours during the first three weeks of the semester in sessions on Professional Responsibility and 12-15 hours in specially scheduled sessions during the remainder of the term. These may be in 1 or 2 hour segments at the election of the instructor. The course presents readings and problems dealing with very practical issues of professional responsibility regularly faced by lawyers in the daily routine of practice A second part of the course presents readings and problems dealing with the issues faced by the profession as a whole the provision of legal services and problems in connection therewith and other matters relating to the way the profession organizes itself..."

This is but one of many courses offered at Harvard and elsewhere dealing with legal ethics, and there has been a corresponding effort on the part of admissions officers to estimate the moral character of applicants before admission to the law schools.

Dean Christopher G. Langdell of Harvard, over one hundred years ago, instituted the case method of legal education which was based on the Socratic method of teaching. In the New York Times of July 23, 1978 (IV, 9:1), Abraham Goldstein, former dean at Yale Law School, attacked the over-use of the case method and noted that law school education in America was "depressingly similar" from school to school—we lack "range and variety," we lack sufficient courses on practical experience If in fact the use of clinical programs is to occur, and if we are to move away from the case method and towards more practical experience of the law students, then our LSAT and other criteria of "qualified" students will likewise have to be adjusted.[19] Some law schools have begun this transition, and thus new modes of legal education are beginning to respond to the needs of the community.[20]

Even at our more staid institutions, the growth of clinical programs and greater selection of elective courses on problems of the poor, environment, international law, and civil rights has occurred. However, our law schools have still to find a means by which we can evaluate the advocacy ability of our candidates. (While moot court courses are usually required, they do not help the admissions officer who has nothing but statistics, grades and paper by which to judge a candidate before admission to the program.)

Chief Justice Burger, addressing the American Law Institute, proposed an experiment in legal education under which selected law school students would study established courses for 2 years and then spend their 3rd year in internship focused on courtroom practices; he suggests that three law schools in different parts of the country, financed by private foundation and professional funds rather than government subsidy, adopt this revised approach, [21] But again, if this is to be a workable model, the admissions system must begin the process of change by selecting those candidates who will best develop under such a system.

In short, what I am suggesting is that the law schools must first determine the types of lawyers we need, develop a proper curriculum to fulfill the students' needs and education, and then revamp the admissions procedures; in reality, the. process has actually been in reverse order based on "qualified" students who fit a model created by Dean Langdell a century ago and only subject to change on a piece-meal basis due to pressures from outside academia. [22]

A Word on Bakke and Minority Admissions

In the year since it was delivered, the United States Supreme Court decision in Bakke v. The Regents of the University of California, U. S. (1978), has had virtually no effect on minority-group enrollments at most law schools in America. The Court ruled that Allan P. Bakke, a white engineer, had been improperly denied admission to the University of California's medical school at Davis because of a special admissions program for minority groups which set a quota. The 5-to-4 Bakke decision held that programs that set aside a specific number of seats for minority groups were illegal in the absence of some official finding of discrimination, yet also held that race might be a factor in an admissions program if used properly to overcome de facto discrimination. In a more recent case, Weber v. Kaiser Aluminum and Chemical Co .U.S. (1979), the Court appears to have significantly restricted the Bakke case, since in Weber an affirmative-action plan was upheld, even though there was no finding of discrimination against the Kaiser plant.

The American Bar Association reports that the number of minority-group students enrolled in accredited law schools rose to 9,922 last fall, up from 9,597 in the fall of 1977. Women now comprise over 30% of the 1978 total enrollment in approved law schools, contrasted with 27 44% in 1977 and 25.53% in 1976 and 22 85% in 1975. Even the enrollment of physically disabled students has risen sharply over the years, although the recent decision in Southeastern Community College v. Frances B. Davis, U.S. (1979), might slow this trend.

Thus, minority enrollment and growth is here to stay, and these students have had a profound effect on the legal education in America. They have been vociferous in their demands for important changes in the curriculum; they have continued the pressure on administrators to enhance the special admissions programs and to create courses more relevant to their minority communities; and the faculties have had to change their teaching methods to a group of students that now reflect a much broader base in American life. The process of change is far from complete, but the important thing is that it is still continuing, and we can look forward to a growing number of minorit lawyers who will change the character of the bar and their alma maters.

Conclusion

The past fifteen years in American legal education have been remarkable, for it has become more responsible and responsive to the social and political movements in our nation. Over a hundred years ago Dean Langdell at Harvard turned away from the lecture method in order to stimulate and challenge his law students; it was a major innovation. Today, the stimulus comes from outside the walls of academia; it comes from the people of America and their aspirations for a more responsive legal community; it comes from the faculties and administrators who are more than ever atuned to the complexity and problems of the legal profession; and fortunately it comes from an enlightened student community that sees the law as an interdisciplinary field—one which cannot be divorced from our environment, our mistakes, our need for social change, indeed, our consciousness of the world.

Our admissions procedures and values reflect that ongoing struggle, one which hopefully will continue and never end. After all, we do expect not only that we as a nation will change as long as we exist, but that mankind-and I mean by that men and women—will demand that we stay abreast of the constant movement of society towards social justice. Admissions are but a small item in our judicial system, but it is surprising how it reflects the many forces which are alive and active around us.

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