History of the American legal profession

The history of the American legal profession covers the work, training, and professional activities of lawyers from the colonial era to the present. Lawyers grew increasingly powerful in the colonial era as experts in the English common law, which was adopted by the colonies. By the 21st century, over one million practitioners in the United States held law degrees, and many others served the legal system as justices of the peace, paralegals, marshals, and other aides.
From their inception, the American colonies followed the English common law tradition. Legal procedures in the 17th century were quite informal, with judges discussing issues directly with the people involved in the case. Citizens generally represented themselves, which resulted in benefits to some and disadvantages to others. The solution was to hire a professional lawyer. By 1700, both judges and judicial procedures had become much more formal; to win a case, a client needed a lawyer to handle the arguments, cite the precedents, and neutralize the opposing counsel. While England still kept an elaborate hierarchy of judges, barristers and solicitors with formal qualifications, colonial lawyers were '"jacks of all trades" who learned their skills by apprenticeship and by closely watching court procedures. Colonial legislatures passed laws to fix the fees lawyers could charge for standardized procedures and maintain these fees relatively low. This often led some lawyers to handle a high volume of cases more speedily. Provincial courts usually made a circuit between the different counties, spending a few days in each county seat. Each attorney might handle 30 to 40 cases in three or four days. The great majority of cases dealt with debts, which were quickly handled. Occasionally, there were land disputes, which were much more complicated and time-consuming because they required searches in legal titles, which were poorly indexed. Bystanders attended for the sport of watching the often dramatic cases. Lawyers thereby collected a steady stream of monthly income. This set them apart from the merchants, planters, and farmers who depended on seasonal sales or long-term trading voyages. By becoming familiar with the intimate economic details of the counties, lawyers could take advantage of bargains. The close-knit nature of the profession also allowed them to build up their wealth, connections, and political base. They were highly flexible and had the time and opportunity to hold local offices in the public service, most of which paid poorly, but some of which were quite generous. Decade by decade, lawyers emerged as high income groups, with a wide range of contacts.
In New York City during colonial times, legal practitioners were full-time businessmen with little legal training. Instead of formal education, they would watch court proceedings and piece them together with snippets of English law. Court proceedings were informal, as many judges had no more training than the attorneys. By the 1760s, the situation had dramatically changed. Lawyers were essential to the rapidly growing international trade, dealing with questions of partnerships, contracts, and insurance. The sums of money involved were large, and hiring a competent lawyer was a very expensive proposition. Lawyers were now professionally trained, and conversant in an extremely complex language that combined highly specific legal terms and motions with a dose of Law Latin. Court proceedings became a baffling to ordinary laymen. Lawyers became more specialized and built their fee schedule on the basis of their reputation for success. As their status, wealth, and power rose, animosity followed.
Professional lawyers were widely disliked in the colonies. Families would often share stories of being deceived or cheated by devious attorneys. As legal author and scholar Roscoe Pound once said, "Lawyers as a class were very unpopular in the colonies." Lawyers of this period tried to raise their professional standards by forming local bar associations, but had little success in the colonial era. Full professionalization would not become standardized until after the Civil War.
Many British governors were upper class aristocrats appointed into their positions not trained in the law and felt unduly constrained by the legalistic demands of colonial lawyers. From the 1680s to 1715, numerous efforts were made to strengthen Royal control and diminish legal constraints over the power of the governors. Colonial lawyers attempted to strike back by use of an important technique that developed in Boston, Philadelphia, and New York City in the 1720s and 1730s. Lawyers were able to mobilize public opinion by using the new availability of weekly newspapers and print shops that produced inexpensive pamphlets to disseminate ideas about legal rights in the U.S. as Englishmen. By the 1750s and 1760s, however, there was a counter-attack ridiculing and demeaning the lawyers as pettifoggers. Their image and influence declined as a consequence. The lawyers of colonial New York organized a bar association in 1768 during the bitter political dispute between factions from the De Lancey and Livingston families. Over the next century, there were various unsuccessful attempts in New York to build an effective organization of lawyers. Finally, a Bar Association emerged in 1869 that proved successful and continues to operate to this day as the New York City Bar Association.
The American Revolution saw the departure of many leading lawyers, and the arrival in high offices of younger lawyers. In most of the 13 colonies, a prominent faction of the legal profession were the Loyalists, as their clients were often tied to royal authority or British merchants and financiers. After the revolution, these practitioners were not allowed to practice law unless they took a loyalty oath to the new United States of America. Many went to Britain or Canada after the war. The lawyers who remained had a major impact on shaping the new nation. Lawyers comprised 45 percent of the fifty-six signers of the Declaration of Independence, 69 percent of the forty-five members of the Constitutional Convention, and 40 percent of the twenty-five Senators in the 1st United States Congress that opened in 1789, as well as 26 percent of the sixty-five Representatives.
In the 18th and 19th centuries, most young people became lawyers by apprenticing in the office of an established lawyer, where they would read legal texts and engage in clerical duties such as drawing up routine contracts and wills; this became known as reading law. Sometimes they would study on their own by reading legal texts without an apprenticeship. After reading law, prospective lawyers would be admitted to the local court to practice law.
This apprenticeship system favored nepotism, as friends and relatives of lawyers placed family members in these positions. An alternative more broadly open to the middle class was to attend academic law schools. The College of William and Mary set up the first chair in law in 1779, 21 years after the first such chair was established in England. The first independent law school was the Litchfield Law School, founded in 1782 in Connecticut by Tapping Reeve. Between 1784 and its closure in 1833, it trained over 1000 lawyers, many of whom became leaders of the bar at the state level, or politicians at the state and national level. Alumni included two vice presidents (Aaron Burr and John C Calhoun), as well as 101 members of the United States House of Representatives, 28 United States senators, six cabinet secretaries, three justices of the United States Supreme Court, 14 state governors and 13 state supreme court chief justices. By the 1860s, academic law schools tied to universities were increasingly popular, as typified by the University of Pennsylvania, which opened its law department in 1850. By the middle of the 19th century, there were over a hundred law schools in the country, most of them very small institutions run as a sideline operation.
The most famous law training program was the Harvard Law School, founded in 1817 as part of Harvard University. Supreme Court Justice Joseph Story was, for decades, a highly influential senior professor. Story's many compilations and law books established a national curriculum for local law schools. Even more influential was Christopher Columbus Langdell, Harvard Law School's dean from 1870 to 1895. Instead of the usual practice of daily lectures, Langdell introduced the case system. Professors called on students to explain the legal reasoning behind specific cases, teaching them to reason like judges. This case method spread rapidly to all law schools. By the 20th century, many local bar associations required graduation from an accredited law school before a candidate could take the bar examination and begin to practice law.
Local bar associations before 1870 were akin to social groups, which took little or no responsibility for maintaining the quality of admissions or performance by the membership. In 1870, leading lawyers in Manhattan organized the "Association of the Bar of the City of New York" to battle the notorious political corruption of the Tweed machine. The bar quickly emerged as a powerful organization and a model to others; in the 1870s, eight cities and eight statewide associations were in operation. By 1890, there were 20 state bar associations, 40 by 1900, and 48 by 1916. By 1890, the number had increased to 159 bar at the local level, and over 1,100 by 1930. They still performed social functions, but were increasingly called upon to organize while combatting long-standing hostility against the legal profession. An important priority for the states and for the national American Bar Association was to maintain control over state bar examinations and over requirements for law schools, such as academic curriculum, library facilities, and availability of full-time faculty.
The sudden acquisition of the Mexican Cession in 1848 followed by a massive Gold Rush into the state caused a hurried transition to California statehood in 1850. Legal conditions were chaotic at first, as the new state lacked lawyers, judicial precedents, and prisons as well as a largely dysfunctional legal system and little to no civil government. Lawyers arrived from many different states and jurisdictions, often with little legal experience. Citizens formed vigilante tribunals, most notable of which was the San Francisco Committee of Vigilance, founded in 1851 and lasted well into the 1850s. Due to the lack of an established legal system in many communities, vigilantes took justice into their own hands, often in the form of drum-head trials, whipping, banishment, or hanging. As law of the land developed, courts began to set precedents on such issues as women's rights, contractual rights, real estate and mortgages, tort law, and review of flawed statutes. An elaborate new body of law was quickly developed to deal with gold mining claims and water rights. By the 1860s, San Francisco had developed a professional police force to dispense with the use of vigilante actions. By 1865, the increasingly established legal system allowed for courts, legislators, lawyers, and other legal professionals to work in an effective manner.
The American phrase "white-shoe" derives from white bucks (or derby shoes) worn by many Ivy League college students. The term came to represent the long-established, high-prestige legal services provided by mainly White Anglo Saxon Protestant (WASP) lawyers and their firms, which serviced large institutions, such as megacorporations in the modern era. These firms hired many men who were often outfitted with white bucks, inspiring the moniker. Such individuals had a tendency to possess degrees from top law schools, such as Harvard Law School, Yale Law School and Columbia Law School, as well as useful family and network connections. White shoe firms emerged in the late 19th century and were usually based in the Northeastern United States, which grew and evolved into what is known as BigLaw.
Large firms were especially in demand by major railroads, which were built through complicated consolidations and faced complex legal situations in multiple states. Previously, law firms were small operations with two or three partners and a handful of clerks. As corporations grew larger and developed more rigid structures, they spread over too many legal jurisdictions for local, small firms to service.
Key operational characteristics of biglaw firms remained the same as those developed by Paul Cravath, who made a reputation from handling complex lawsuits for the emerging electrical industry. Devising the Cravath System, he enlarged the law office, and professionalized it by establishing full-time librarians, a recruiting system focused on leading law schools, lockstep compensation and law firm partners who specialized in specific practice areas, a model largely followed by white-shoe firms throughout the 20th century.
In 1900, there were 108,000 lawyers and judges in the U.S., the vast majority of which were men. Opportunities for females remained limited, however, women were still involved in the legal profession. A notable example, Isabel Darlington, was admitted to Pennsylvania's Chester County Bar Association in 1897. She was the only female lawyer in lightly populated Chester County until the shortages of men in World War II allowed for more opportunities for women.
In 1955, there were 5,000 female lawyers, 1.3 percent of the country's total. Law schools generally rejected female students — only four percent of law students in 1965 were female. By 1973, the figure had quadrupled to 16 percent, which doubled by 1979, at 32 percent, and then surpassed numbers of male law students in 2016, a transition that began under President Jimmy Carter's leadership in the late 1970s. Sandra O'Connor (born 1930) graduated third in her class at Stanford Law School in 1952, where she served on the Stanford Law Review. She was appointed as a county judge in Maricopa County in 1974 and later was elevated to the Arizona Court of Appeals. President Ronald Reagan astonished the nation in 1981 when he appointed her as the first female on the United States Supreme Court. In 2019, the American Bar Association reported that, while women consistently comprised half of the student body of American law schools, only 23% of law firm partners are female and females part minorities represented by just "3% of all partners and 2% of equity partners". In 2023, women comprised 27.76 percent of law firm partners.
Opportunities for Black lawyers were scarce outside the Black community. William Thaddeus Coleman Jr., after graduating first in his class at Harvard Law School in 1946, became the first Black law clerk at the U.S. Supreme Court. In 1949, he became the first Black lawyer hired at New York's Paul, Weiss, Rifkind, Wharton & Garrison. He was the second Black person be appointed to the cabinet, serving as former president Gerald Ford's U.S. Secretary of Transportation, from 1975 to 1977.
The legacy of racial segregation remains in the legal business – with, for instance, Davis Polk being named after John W. Davis, a defender of racial segregation.
In the first half of the 19th century, Mexico established a judicial system for its northernmost districts, in the present-day Southwestern United States. There were no professionally trained lawyers or judges. Instead, there were numerous legal roles such as notario, escribano, asesor, auditor de Guerra, justicia mayor, procurador, and juez receptor. With the annexation by the United States in 1848, Congress established an entirely new territorial legal system, implementing U.S. laws, forms, and procedures. A vast majority of lawyers and judges were new arrivals from the United States, as there was no place in the new system for the original Mexican roles. Elfego Baca (1865–1945) was an outlaw-turned-lawman, lawyer, and politician in New Mexico in the late 19th and early 20th centuries. In 1888, after serving as a County Sheriff, Baca became a U.S. Marshal. He served for two years and then began studying law. In December 1894, he was admitted to the bar and practiced law in New Mexico until 1904, then held numerous local political offices; when New Mexico became a state, in 1912, he was the unsuccessful Republican candidate for Congress. In the late 1950s, Disney turned Baca into the first Hispanic popular culture hero in the United States, through depictions in various television shows, six comic books, a feature film, and related merchandising. Nevertheless, Disney deliberately avoided ethnic tension by presenting Baca as a generalized Western hero, portraying a standard hero similar to "Davy Crockett, but in Mexican dress".
There has been a significant increase in Hispanic females entering the legal profession since the start of the 21st century. They have made steady progress in political incorporation via the judiciary, especially in county courts.
Prior to the New Deal, many top law firms hired few if any Jews, even Jewish law review editors. For instance, future Supreme Court justice Felix Frankfurter was the first Jew hired by one New York firm. A 1937 survey found that Jewish lawyers in NY were paid less than 80% as much as non-Jewish lawyers. It also found that Jews have difficulty getting hired by law firms, so most (68%) had their own solo or small firms. They were also limited to "the least lucrative types of clientele and fields of law practice."
Jewish lawyers also faced an uphill climb for judicial appointments, even after Louis Brandeis (1916) and Benjamin N. Cardozo (1932) were appointed to the Supreme Court.
Jewish lawyers began to establish their own firms, which became increasingly successful as the 20th century progressed. Major law firms established by Jews attained elite status in dealing with top-ranked corporations. As late as 1950, there was not a single large law firm started by Jews in New York City. By 1965, however, six of the 20 largest firms were founded by Jews, and by 1980, four of the ten largest were founded by Jewish lawyers.
The first Jewish Supreme Court Justice was Louis Brandeis, appointed by Woodrow Wilson over significant opposition. Franklin D. Roosevelt appointed the first Black federal judge, William H. Hastie in 1937. Reynaldo G. Garza, a protégé of Lyndon B. Johnson, was appointed as the first Hispanic federal judge in 1961. Lyndon Johnson appointed Thurgood Marshall as the first Black Justice on the Supreme Court in 1967. He was best known for his 1954 arguments as First-Director counsel in the overturning of segregation in schools in Brown v. Board of Education. When Marshall retired, George Bush appointed Black lawyer and former chairman of the U.S. Equal Employment Opportunity Commission (1982–1990) and judge in the United States Court of Appeals for the District of Columbia Circuit (1990–1991), Clarence Thomas, to the Supreme Court, who was confirmed in October 1991 by the U.S. senate. In 2009, President Barack Obama appointed Sonia Sotomayor, a woman of Puerto Rican origin, to the Supreme Court. She has the distinction of being the first Supreme Court Justice of Hispanic origin.
The COVID-19 pandemic had a major influence on many practices within the legal profession. In 2021, Thomson Reuters published a joint study of Georgetown University Law Center on Ethics and the Legal Profession and the Thomson Reuters Institute, "2021 Report on the State of the Legal Market", which states: