Individualism In the Legal Profession
Individualism in the legal profession, like other walks of life, thrives on legends and myths. The profession cherishes certain images. One of these images is the image of the rugged individual.
Rugged Individualism is an important part of the American tradition. Pioneers were rugged individuals. The legal profession, an adversaria profession, fits right into this picture. Up until the Civil War the primary method of legal education was apprenticeship. Would-be lawyers “read” the law in the office of practitioners. There were no large firms. Individuals were the practitioners. Practitioners such as Daniel Webster, Abraham Lincoln, and Henry Clay certainly fit the definition of rugged individuals. They were powerful orators. Their trials attracted audiences.
The Civil War, and its aftermath, brought many changes to the legal profession. Regardless of many other cultural causes, the Civil War, in a large sense, was about whether there would be an industrial revolution in the United States. It pitted the Northern industrial economy against the Southern agrarian economy. Slavery was an adjunct feature of the agrarian economy and became a popular cause. The underlying roots however, were strongly embedded in industrial progress. The question was whether politics would be controlled by an industrial economy or an agrarian economy.
The railroad and manufacturing were important elements of the industrial revolution. Shortly after the Civil War ended, in 1871, Harvard Law School launched the case method of study for law schools. Under the leadership of Dean Christopher Columbus Langdell, the case method put a double twist on the idea of precedent in the law. Not only was the previous case a source of law and basis for a decision, the study of earlier cases became the primary method for the study of law. This seemed to show that courts “make” law. Civil War veteran Oliver Wendell Holmes, Jr. was one of the Harvard Law School professors. He would become an important legal philosopher and Chief Justice of the Supreme Court. He made statements like “Law is what a court does. ”
This furthered the idea that courts actually make law rather than finding it in the beliefs and practices of the culture. (It is one thing for courts to “make” law in struggling to properly decide a case; it is quite another for courts to use the case as an excuse to preempt the work reserved to the legislative branch.) Law School came to be the accepted means of legal education.
Corporations controlled industry. Large law firms like the Cravath Firm in New York quickly became the advisors to the developing corporate America. Ownership of property quickly transitioned from individual ownership to corporate ownership with individuals being stockholders who did not manage the wealth. As law firms developed, the “A” students were hired by the leading law firms, who worked as teams of specialists, and became the advisors of business. Rugged individuals were not in charge.
Even in the changed environment, the mythology of individualism in the practice of law continued. After the turn of the 20th Century, there was the famous Scopes Monkey Trial in Tennessee pitting Clarence Darrow against William Jennings Bryan. The famous names helped to perpetuate the myth of the importance of individualism in the practice of law. However, the main business of advising the railroads and burgeoning corporate America rested with the proliferating large law firms.
The actual practice of law as it affected the development of America was not in the hands of individual lawyers. Nevertheless, the imagery is still a highly romantic notion that affects the self-perception of the members of the legal profession. The State of Alabama, during the first half of the Twentieth Century was gradually emerging from the agrarian economy and moving toward the industrial economy. That provided the perfect setting for To Kill a Mocking Bird . In the pleasant glow of that romantic notion of lawyering, the Alabama legal profession in recent years formed the “Atticus Finch” Society. While the bedrock virtues of total honesty, and loyalty to the client, the legal system and the truth remains absolutely necessary for the successful operation of any legal system, reality today does not sustain the Atticus Finch role model in the actual operation of the legal system any more than doctors making house calls provides an adequate image for today’s medical care.
The reality of law today is dominated by and exists in a complex corporate environment. The image of individualism is no longer a valid working model for attorneys. We need to find new images that retain all of the necessary virtues.