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May 22, 2015


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Beau Baez

It would be interesting to know what standard judges used in making their decisions to admit someone to the practice of law. Was it just a good faith standard, minimal competency, minimal competency for a new lawyer?

Ray Campbell

My understanding is that it varied very much by area. The established bars of the coastal cities were one thing, but the frontier jurisdictions were quite different. In Philadelphia and Boston, the standard was pretty high. In a mining camp in Montana, not so much. In the decades following Howard's admission law school and bar exams became the norm, in part as a conscious effort to raise the standards of field.

Al Brophy

Ray, this is a really interesting piece. Beau's question raises another question in my mind, which is related to discussions we're having now: what was the pass rate for those 19th century exams? And what were the questions judges asked? And as long as we're talking about questions on the 19th century bar, to what extent did examinations in schools prepare students for those questions? (A while back I saw a mid-term exam that James Holcombe asked at UVA before the Civil War; those questions were tough.)

And on a lighter note, you've given me two other courthouses that I want to visit sometime soon -- Charlotte County and Halifax County.

Marcos Antonio Mendoza

Thanks for sharing! I too would like to know more about the standards of the day—I have a feeling it varied as much as the backgrounds of the examiners.

It does seem that lawyers of past eras had the desire to keep learning throughout their careers, more so than today. Perhaps because there were more general practice attorneys, and had to keep learning. Or that the law was their life, and they were very proud of their profession, and felt it their responsibility, and not just a nominal CE requirement. Regardless, I would encourage the current graduates to pass the bar, take a deep breath, then get back to learning more.

Ian Holloway

Ray - this was wonderful. Simply wonderful! Thanks for sharing it with us.

Ray Campbell

On the standard, there is a question as to what the stated standard was - if there was one - and what the standard on the ground was.
It's an interesting question as to whether there was a standard beyond 'fitness to be a lawyer' and one of the issues is who would promulgate the standard. At this time, the ABA was in its infancy and state bar associations were similarly immature. There was no national board of bar examiners, and I suspect no state boards other than a court of appeals paying some loose attention. In terms of the standard on the ground, it clearly varied by geography, based on what I've read. In some of the frontier districts, based on similar anecdotal accounts, it may sometimes have been close to 'can read and write.'
I suspect that this kind of decentralized system also lent itself to flexible standards on the ground based on who the applicant was. Howard, although dirt poor, was from a 'respectable family' and had relatives in the professional classes. At a time, in Virginia, when family ties were very important, I suspect this mattered. On the other hand, I suspect someone who was outside the kinfolk network would have a harder time, and I especially suspect that someone who was Jewish or African-American in that time and that place would have faced a withering exam, and may have found passing all but impossible. Our current system no doubt embeds biases and flaws, but by its design it is more susceptible to scrutiny than the system of that day.


Thanks for posting this!



What is interesting though is that the Bar Exam as pressed for by the ABA was described by Henry S Drinker, a name partner in Drinker, Biddle and Boothe was that it would help keep out the lower orders, those who came up from the gutter "the Irish, Italians and little Russian Jew-Boys" the latter being a well known obsession of Drinker.

When you dig into the history, it is pretty apparent that the tightening of bar admission standards that started in the 1920s and 1930s was intended to be exclusionary, to make the bar an upper class WASP profession. One area of pressure was to require 3 years of full time law school and in Massachuttes and other states tremendous pressure was advanced by Harvard and other law schools to shut down the night law schools like Suffolk.

In the end the advent of clear standards for admission actually undermined the elitist project. But thea was in part because the bigotry and racism of ABA leaders like Drinker rendered it inconceivable to them that the lower orders could comply with the standards.

Mike Wells

Having been born in Halifax County, and having worked on a tobacco farm as a kid, I of course found this quite interesting. I can also affirm that it was a lot easier to become a lawyer a century later, just by getting a degree from U. Va. Law School.

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