Introduction to Lawyering Outline

Introduction to Lawyering

King, Mashburn, Womble

Fall 2012

Types of Legal History

A. History of the law (i.e. development of tort doctrine, contract law, etc.)

B. History of the Legal Profession

C. History of Legal Education

Why study history?

A. The Importance of Legal History for Modern Lawyering (Randall Shepard)

1. Lawyers often come to law out of a background in history

2. Lawyers telling stories is the method for transmitting the norms and the “lore” of the profession—i.e. the culture of the practice of law. Lawyers love to listen and talk in courtrooms, i.e. pass stories of cases/clients (Lawyers are story tellers!)

3. Common law and the case method are both essentially historical, date back to Inns of Court.

a) Stare decisis, CL, precedent are backward looking.

4. To be an effective advocate for change, you have to know why the rule existed in the 1st place—policy arguments are how the common law changes

a) Example: No-Duty Impact Rule Exception in Torts

(1) No recovery for emotional distress-based damages

(2) Recovery allowed if damages were accompanied by a physical injury

(3) Policy behind historic precedent = fear of false unverifiable claims

(4) How lawyers changed the rule = argued that medical science could now reliably diagnose the existence of emotional ailments

5. We sometimes respect the past too much—repeating rituals without understanding that the reasons for them are no longer valid.

6. Resistance to change is entrenched in the legal profession

7. This resistance hinders progress

8. Ironic, because their clients and society, lawyers have been the instruments of evolution and progress

Shepard Article: People mentioned (BL: the history of everything is important!)

· Sir William Blackstone – cataloged CL

· Brent E. Dickson – law evolves constantly

· Judge Robert Grant – “Never move a fence until you know why it was put up first”

· Prof. Calvin Woodard – “We study history to free ourselves from it”

· Three judges from Indiana S.C.: Isaac Blackford, Roger DeBruler, Richard M. Givan – important because they shaped Indiana law through their many years of service

History of the Legal Profession

A. Describe history of legal profession in 1 word:

1. Surprising, chaotic, contradictory, symbiotic, interdependent, fluid, dynamic, ambivalent, dichotomous, antipodal

Dichotomies (from the book)

A. Not an orderly unfolding, progressive evolution or refinement. Rather, swinging between inconsistent, often contradictory realities, forces, and values.

B. Love and Hate

1. Early, widespread anti-lawyer sentiment (hate)

(a) Puritan leaders had ideal image of state w/o interference

(b) People wanted “new law” or “new habits”

(c) No connections to English govt

(d) Merchants wanted autonomy in their deals

(e) Lawyers seen as obstacles to efficient/godly govt.

2. Colonists were hoping to do without lawyers (hate)

Hated but “a necessary evil”

3. As society developed, the need for lawyers became clear

4. Developing business created legal needs

5. Lawyers adapted their skills to the needs of the developing society

6. Examples: land transactions, commerce

C. Aristocratic and Democratic

1. Two meanings:

a) demographics

b) political alignment and function (see below)

2. Demographics:

a) Lawyers from wealthy or land-owning Protestant background

b) Lawyers from lower, middle immigrant classes (p.44)

c) Aligned with wealth and power or aligned with the people

3. Political alignment and function

a) de Tocqueville’s conception of “aristocratic”: privileged class, attached to maintenance of public order and government

(1) lawyers constitute a privileged body in society bc of their special knowledge. They naturally constitute a body by the analogy of their studies and the uniformity of their methods connects their minds as a common interest might unite their endeavors.

(2) can see some “tastes and habits” of the aristocracy in character of lawyers. i.e. their love for order and formalities.

b) Preference and reverence for what is old, united almost always with a love of regular and lawful proceedings. (bottom p. 35)

c) Check on democratic power (p. 36)

(1) people belong to the people by birth and interests, and to aristocracy by habit and taste. i.e. link between 2 classes

d) Dominance of “Mandarin” English or legal dialogue

(1) language that involves special nuances and connotations

e) Even de Tocqueville acknowledged that the influence of lawyers increased in proportion to the power of the people, not the power of the government (mid p. 35)

(1) Differentiates English/American system from French. (p36)

f) As Hazard explains, lawyers are an elite force necessary in a democratic society to maintain a stable, non-tyranical government (near bottom p.38)

(1) present day America: aristocracy means a class constituted by inheritance, endowed with unearned wealth and income, and privileged to remain idle. (mid p.40)

(2) lawyers may be a “natural aristocracy” v. inherited one

g) “The Few” that move between capital and labor (mid p.31)

D. Court and Commerce

1. Lawyers work is small towns, in small firms, and in court

2. Lawyers work on Wall Street, in large firms, and grease the wheels of commerce

3. Hazard: Lawyers served business and property interests and the profession developed largely in sympathy with those interest (protectors using DueProc)

4. Lawyers vindicated individual rights & challenged the legitimacy of big business

5. Hazard p. 41: “Since the adoption of the Constitution, the basic function of the legal profession in the United States has been to reconcile the constitutional necessities of an economic system devoted to the production of wealth through business enterprise with a political system that is predominantly democratic.”

(1) This is the profession’s primary set of skills; the ability to reconcile majoritarian politics with protection of the rights of religious and other minorities.

E. Exclusionary and inclusive

1. Auerbach: The “Best Men” of the Bar = white Protestant graduates of certain schools

2. Hierarchy of schools, firms, clients

3. Reacting to Jacksonian populism and the influx of lower class & immigrant lawyers (movemtn had disdain for those viewed as elite, such as lawyers.

4. Hurst: The History of the ABA with a few notable stumbles, as one of inclusion-broad-based membership/agenda to promote justice (p.98 bottom – bar stats)

5. But, p. 102, organized bars and conservative pull

6. Excluded women and minorities

F. Actuality and Idealism

1. P. 30 Bar groups try to encourage the “ideal” = development of a legal “science”

Ideal = development of a legal “science” consisting of general principles derived from philosophical reflection and historical scholarship

2. But such “reform” initiatives could be used for advancement of one group’s interests or oppression (i.e. advancing interests of business clients, oppressing immigrant groups)

3. Practices vs. Beliefs

4. Always a problem with lawyers—one type of “professionalism” problem

5. P. Gordon: Lawyers as “double agents:” meaning they had two jobs (1) their obligations to a universal scheme of order, “the law,” understood as some fairly coherent system of rules and procedures that are supposed to regulate social life in accordance with prevailing political conceptions of the good and (2) supposed to be loyal toward and advance the interests of their clients.

6. Legal utopia = collectively maintained fantasy of what society would look like if everyone played by the rules.

7. Bottom line: “The lawyer’s job is thus to mediate between the universal vision of legal order and the concrete desires of his client, to show how what the client wants can be accommodate to the utopian scheme.”

G. Con Artists and Pillars of Society

A. Do lawyers have a meaningful collective identity and history? Bars vs. Firms

B. Baldwin: “the clients were generally as sham as the counselors.”

C. Shepard: “the history of the legal profession is one replete with landmarks in the advancement of American society…worth remembering…worth praising.”

D. “Technicians of change” – Katcher p. 3 (i.e. lawyers were needed as the country expanded economically and geographically.) Despite the distrust towards lawyers, they were catapulted into a political and social prominence never enjoyed in England.

History of Legal Education

A. One final reason to study history can be illustrated by looking at the history of legal education

B. Education reform = back to the past?

C. Hurst at p. 498 & Katcher article

(1) Admission to the bar was very lax

(2) legal education not always matched the bar examination

D. Similar swings between poles—apprenticeship, professorships, self-study, schools, lecture-textbook method, case method

Craft and Science

A. What is the study of law?

B. Memorizing Blackletter law; learning through doing, apprenticeships; a craft; a trade like others

C. A highly specialized science with its own philosophical, intellectual, analytical, and linguistic methods

Easy Access and Barriers to Entry

A. Anyone can “read” law and become a lawyer

B. Making it more and more difficult to become a lawyer: good moral character, apprenticeships, university-affiliated law school education, and passage of bar exams

C. Protecting the public from harm or protecting lawyers from competition?

The Classroom

A. Skills vs. analytic techniques (Katcher, bottom of p.8-9)

B. Narratives describing law (Blackstone & others), lectures vs. Cases, case method “scientific” Katcher Part II

C. Friendly, approachable, non-hierarchical teachers with practice experience vs. elitist, Socratic bullies and scholars who know little about practice

Future of the Legal Profession

A. The Vanishing American Lawyer

1. Unprecedented and fund