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U.S. often had more lawyers than demand required

The legal profession has fallen on hard times in recent years. Big firms, such as as Dewey & LeBoeuf in 2012, have gone under. Others, including Thacher Proffitt & Wood, have been downsized and absorbed by stronger competitors.

Now the law schools themselves are having trouble. Enrollment for 2014 was the lowest since 1973, according to figures released last week by the American Bar Association. The number of full- and part-time students, at 37,924, was down 28 percent from 2010, the all-time peak.

We shouldn’t be too surprised. The idea that law was a surefire, recession-proof path to success and financial security may have been a misconception all along: The United States has regularly had a surplus of lawyers.

In fact, the profession was viewed as troublesome from the early days of the Republic. After the Revolution broke out, Patriot legislatures sought to purge “Tories” — those loyal to Great Britain — from public life. Unfortunately, a significant number of laywers happened to be Loyalists, and by the time the cleansing was complete, the number of attorneys qualified to practice law had seriously decreased.

Replenishing the ranks would be a challenge. Law schools didn’t exist, and most people admitted to the bar got their legal education by shadowing an established lawyer. This system left much to be desired: the lawyers in training — known as clerks — often ended up doing the 19th-century equivalent of photocopying and other grunt work.

At the same time, barriers to entry into the profession were pretty low: most states had laws requiring that lawyers complete a clerkship, but little else.

In the early 19th century, most colleges and universities didn’t offer vocational programs to train lawyers. Some elite schools had a professor of law on the faculty, and offered courses in the subject, but only the College of William and Mary and Transylvania College in Kentucky had programs designed to prepare students to practice.

At first, the void in formal legal education was filled by for-profit institutions such as Litchfield Law School, Staples Law School and Van Schaack’s Law School. In general, these operated for a few decades and closed, often after the founder died.

A number of universities and colleges soon created separate vocational law programs, recognizing that there were money and prestige to be gained.

Harvard was the first, in 1817. Although it faltered in the early years, the appointment of Supreme Court Justice Joseph Story as a chaired professor in 1829 revived its fortunes. Story reformed the curriculum and steered the institution toward something resembling a modern law school. Others schools followed suit, and by 1840, seven schools trained lawyers. By 1870, there were 31.

Complaints that the supply of lawyers had outstripped the demand soon followed. “Have We Too Many Lawyers?” inquired one Chicago newspaper in 1859.

Although the answer was a resounding “yes,” the law schools weren’t to blame. Admission to the bar had become significantly easier and, though each of the original 13 states had required some kind of clerkship before admission to the bar, many of these barriers were dismantled during the rage for democratization in the Jacksonian era. By 1860, only 9 out of 39 jurisdictions required a clerkship for admission to the bar.

Even members of the legal profession began to express unease. At a meeting of the Chicago Bar Association in 1889, the Hon. W. C. Goudy declared: “We have one licensed lawyer for every one hundred male adult inhabitants. As there cannot be legitimate legal business among each hundred to support one lawyer, it follows that illegitimate and unnecessary litigation is encouraged.”

One solution to this surfeit was to give formal law schools a greater role in legal education, which, in theory, would raise barriers for entry into the profession.

It didn’t work out that way. In many states, the idea of tightening educational requirements was perceived as elitist. Despite periodic attempts at reform, most of the change in legal education toward the end of the century erred on the side of quantity, not quality.

In 1899, 12,408 students enrolled in the nation’s law schools. By 1919, the figure had jumped to 24,503. In the 1920s, the numbers surged again, reaching 44,340 in 1926, and peaking at 48,593 in 1927. Between 1899 and 1929, the number of law schools also increased, from 102 to 178.

Part of the problem, it seemed to many, was the proliferation of law schools. In 1928, the dean of Harvard Law School, Robert M. Hutchins, decried the “factory training” in the production of lawyers, citing the night schools, many of which didn’t require a college degree and catered to recent immigrants.

There was an ugly undercurrent to these complaints. As the Jewish Advocate put it in 1929, the “New York Bar Association made no bones of the fact that there were too many aliens trying to practice law there.” Aliens, the paper observed, “meant Jews.”

Although it didn’t spare the legal profession from hardship, the Great Depression did little to reduce the number of lawyers. The New York Times reported in 1937 that there was one lawyer for every 763 people in the U.S., “infants included.” Once again, the law schools were held responsible. Anyone who wanted to study law could find an institution willing to accept them, the paper said.

The postwar era was a golden era for lawyers, however, as concerns about overabundance generally dissipated, and demand at times outstripped supply. In the 1960s and early 1970s, law school enrollments skyrocketed with the growing numbers of female applicants, and because of the perception among former student activists that the law offered a means of advancing social change.

By the 1980s, the pendulum had swung back to crisis mode, with yet more laments of too many lawyers, even as law school enrollments remained more or less level, eventually continuing their rise before topping off in 2010.

Now enrollments are sliding. But law schools shouldn’t despair. If history is any guide, the profession will be in vogue again before too long.

Stephen Mihm, an associate professor of history at the University of Georgia, is a contributor to the Bloomberg View.

© 2014, Bloomberg News