By John Sexton

From the beginning, America has been a society based on law and forged by lawyers. For Americans, the law has been the great arbiter, the principal means by which we have been able to knit one nation out of a people whose principal characteristic always has been diversity. And, just as the law has been a principal means for founding, defining, preserving, reforming, and democratizing a united America, America's lawyers have been charged with setting the nation's values—a charge that runs not only to "great cases" and major reform movements, but also to the lawyer's day to day dealing with clients. In our society, lawyers are and must be the conscience of both the legal system and the client—for if they are not, no one will be.

The role of the lawyer in society and the shape of legal education always have been closely linked; and our vision of each has evolved not merely on parallel lines, but as intertwined strands. George Wythe of Virginia, the mentor of Thomas Jefferson and John Marshall, was widely hailed as embodying the standard to which lawyers of the time aspired. Not only the master of all areas of practice but also steeped in the humanities, in 1779 Wythe was named the first professor of law at an American school. Ironically, Wythe's appointment at William and Mary foretold the rise of a model of legal education that ultimately supplanted the traditional apprenticeship model: the law school.

Law schools coexisted uneasily with the apprenticeship model for most of the nineteenth century. In fact, until the first years of this century, the organized bar regarded law schools with great suspicion. Thus, for example, no Justice of the United States Supreme Court appointed before the twentieth century had a law school degree. Oliver Wendell Holmes, appointed in 1902, was the first Justice to have one (James Byrnes, who read law in South Carolina, and who was appointed to the Court in 1941, was the last Justice appointed without a law degree).

In the first years of the first law schools, the faculty (who usually were sitting judges) delivered to students lectures that were little more than lengthy monologues. In the decades following the Civil War, however, Dean Christopher Columbus Langdell pioneered the "scientific" study of legal doctrine: the raw materials of the study were appellate decisions; and the method of study entailed a close reading of the text by the students, followed by an even closer grilling of the students by the instructor. The notion was that the students would learn simultaneously the substantive doctrines in the casebook, the habits of analytical thought, and the practical skills of public speaking.

Langdell's model of legal education reflected perfectly changes in the legal profession which began after the Civil War. Law practice—especially by the leaders of the bar—became more specialized, more focused on serving large entities like corporations, and less focused on serving the needs of individual clients. As the elite practice became less involved with "little people," the concept of law as science became more attractive—and the study of law became depersonalized.

Recent years have witnessed the growth, at a dizzying rate, of specialization in the practice of law. Today, no one lawyer can hope to master the full range of legal problems and challenges confronting lawyers; thus, specialization is a necessity. This trend has costs. More and more, lawyers have become business technicians with no sense of the special civic role for lawyers. Indeed, today many lawyers regard the notion of the lawyer as society's conscience as a foolish remnant of earlier times, unconnected to the real world of today.

Law schools and legal educators will not reverse these trends by themselves; but we must take cognizance of them. The law and legal practice are the objects of our research, and our graduates live in a world defined by the realities of practice. If attorneys (and, more and more, society in general) have lost the sense of the special role of lawyers, we in legal education must discover why that has happened and what can be done about it.

This column is not the place for me to provide ultimate answers to the problems of law and the legal profession, even if I had them (which I do not). It is nonetheless worth noting a few basic points.

First, the need for a dispassionate look at developments in law and in the profession underscores both the importance of the independence of the academic enterprise from the bar and the critical role of research on the "ought" of the law and lawyer behavior. Only academic lawyers can provide an objective view of such matters, and we in academe must embrace our responsibility to do so.

Second, the twin trends toward clinical and interdisciplinary courses should be encouraged as antidotes to the depersonalization of the law. Clinics and other "simulation based" courses force students (and professors) to confront legal issues in personalized contexts; interdisciplinary courses reveal law as the derivative discipline it is, and, in the spirit of George Wythe, force our conceptualizations of it to address first principles. Far from being in tension with one another, these modifications of traditional legal education are complementary at the most basic level.

Third, the false dichotomies between the academy and the profession, and between theoretical research and practice, must be recognized for the demagogic rhetorical devices that they are. The profession's vitality and role depends upon the academy, just as the academy could not exist isolated from the law and the world of practice. And, theoretical research about the "ought" of the law should (and does) both draw upon and energize the world of practice.

Fourth, and finally, the resource demands of the legal academy must command the attention of the practicing bar. The essence of the law and the legal profession is implicated in what we do. Elsewhere, I have proposed that bar associations require every lawyer to contribute 1% of his or her income over $50,000 to his or her law school; in this way, funds can be generated to pay for the smaller classes and the curricular changes that must be made if we are to fulfill our role. I reiterate that proposal here.

On that optimistic note, I wish each of you the best as we move toward the close of the 1996–1997 academic year. May the coming months be ones in which we unite to help restore the perception and reality of the lawyer as society's conscience.

* This article appeared in the April 1997 AALS Newsletter