By Professor David Schultz*
Justice Oliver Wendell Holmes, Jr. famously declared: “The life of the law has not been logic: it has been experience.” When it comes to admission to practice law, one could say that “The life of admission to practice law has not been fairness but exclusion.”
From its birth, America was a racist nation, born of conquest and slavery. The Constitution permitted slavery. Law was a tool to maintain this order, and lawyers were often the agents used to enforce it. The bar exam and the admissions process to practice law sit at the apex of a legal establishment that perpetuates societal racism while hiding behind a veneer of equality and neutrality. These are the last but certainly not the only obstacles that impede the diversification of the legal profession and which in turn impacts the delivery of justice in America. Controlling who can practice law is a tool of controlling social change and maintaining the status quo.
The United States inherited much of its law from England. It also inherited a legal profession and culture that was elitist. In eighteenth century England, only the affluent and learned few could afford the study to enter the practice of law. It was a bar not meant to challenge the power of the Crown and privilege, but rather a product of it. This legal aristocracy came to colonial America and lived on into the nineteenth century. Alexis DeTocqueville viewed American attorneys as aristocrats, one of the checks upon the people and majorities.
The story of bar admissions in the US is rooted in the professionalization of the practice of law that occurred in the late nineteenth century. At one time there were no formal qualifications to practice law. The only tool to keep the legal profession exclusive was class. Only a few could afford the college education and time to read the law. But as the spirit of democratization pervaded America in the nineteenth century, and especially after the Civil War, new pressures emerged that produced the rise of the modern legal profession. Simply put, the desire for attorneys to secure their status and maximize income drove them to take steps to professionalize. With professionalization, came exclusion.
The doctrine of “separate but equal” ensured that African-Americans could not secure access to good law schools. It was often difficult for African-Americans to become lawyers, thereby making it harder for people of color to secure representation. Character and fitness tests too often served to discriminate against people of color. In cases such as Bradwell v. Illinois, the Supreme Court ruled that a state could prevent women from practicing law, declaring that pursuing such an occupation is not one of the privileges or immunities protected by the Fourteenth Amendment and that attorneys “are officers of the court, admitted as such by its order, upon evidence of their possessing sufficient legal learning and fair private character. . . . The order of admission is the judgment of the court, that the parties possess the requisite qualifications as attorneys and counsellors, and are entitled to appear as such and conduct causes therein.” Being a woman was a negative character trait and a qualification that could keep Myra Bradwell from practicing law.
Overt discrimination was accompanied by facially neutral techniques to cleanse the bar. The American Bar Association was formed in 1878 to advance the science of jurisprudence and maintain the profession of the law. Additionally, Dean Christopher Langdell’s invention of the modern law school in 1870 at Harvard and the rise of the use of case law and Socratic method to teach ostensibly were meant to make a science out of law and create professional and competent lawyers. Yet this professionalization also secured other goals.
Law school education, especially as it evolved to require a college education in the 1920s, was theoretically meant to produce good attorneys, well-educated and grounded. Protecting clients and the public was also offered as a justification. Early in the twentieth century, the ABA’s quest for status led to the licensure of attorneys to practice law. On one level this licensure ensured competence and professionalism, but it became yet another tool to limit who could practice.
College education, formal law schooling, and licensure became facially neutral barriers or impediments to practice law by adding additional educational costs to becoming a lawyer. Moreover, requiring additional education also meant that individuals who practiced law were paying additional expenses for training and delaying making money. Thus, these formal requirements de facto excluded some from practicing while also ensuring that those who invested in their legal education received a return on their investment and status.
In the early twentieth century, as wealth and power consolidated in business corporations, the bar association sought to control and resist challenges to it. In 1900 the American Association of Law Schools (AALS) was formed. It sought to regulate the curriculum and standards for law schools. It, along with the ABA, sought to restrict the practice of law. White Anglo-Saxon attorneys sought to challenge social change by impeding who could practice law. After World War I and the Russian Revolution of 1917, fears of immigration led to efforts to restrict the ability of new Americans to attend night or part time law schools. Good character meant being white, male, and a patriotic American.
A 1920 ABA committee headed by Elihu Root was empowered to find ways to “Strengthen the character . . . of persons to be admitted to the practice of law.” Among its recommendations was a set of prerequisites to law school education. The two-tiered system of undergraduate and then law school education was a means to restrict working class and immigrants from practicing law. Mandatory bar membership also emerged in the 1920s, and coupled with higher educational and admissions standards, achieved the objective of keeping many out. Finally, as another technique to root out law schools that served the working class and immigrants, the AALS and the ABA teamed up to create the modern bar exam.
The emergence of the 1908 Canons of Professional Ethics, as well as the subsequent 1964 Model Code of Professional Responsibility and 1983 Model Rules of Professional Conduct were additional ways to restrict the practice of law. While on the surface they aimed to protect the public and ensure competent and ethical practice, they also served to limit who could practice.
Finally, in many cases, individuals from specific groups such as Jews, immigrants, and people of color were simply excluded, either by the character and fitness tests, by the two-tiered education system, or by the licensure requirements. But when all else failed, accrediting law schools and forcing would-be attorneys to graduate from law school and then pass a bar exam afterwards was enough to secure the objective of restricting the bar. Overall, even to this day the bar exam discriminates against specific groups, becoming the last step in the process or pipeline that denies people of color access to the practice of law.
Cleansing the bar was of course about discrimination and it was a way to maintain status and profitability for the Anglo-Saxon elites. But it served another purpose—social control. Prevent women, working class, and ethnic populations or people of color from practicing law and you also prevent these same individuals in the general population from receiving legal services. Denying access to lawyers denies access to justice, rendering it difficult to challenge the status quo and racism in society.
It may be no coincidence that the disparities, racial and otherwise, that one sees in society are a product of restricted access to the practice of law. Seemingly taking a cue from Dick the Butcher in Shakespeare’s Henry VI when he famously declared: “The first thing we do, let’s kill all the lawyers,” the first thing the bar did to preserve their ideal society was to restrict who could even become a lawyer in the first place.
*David Schultz, Professor, University of Minnesota Law School; Distinguished University Professor of Political Science and Legal Studies, Hamline University