LH 14 | Nineteenth Century Lawyering I

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LH 14 | Nineteenth Century Lawyering I

  1. 1. Professor Bernard Hibbitts<br />University of Pittsburgh School of Law | Fall 2010<br />Lawyering: A History<br />
  2. 2. Nineteenth Century Lawyering<br />
  3. 3. Part I: Distinguishing Lawyers<br />
  4. 4. Lawyers as the American elite<br />
  5. 5. Alexis de Tocqueville<br />
  6. 6. In America there are no nobles or men of letters, and the people are apt to mistrust the wealthy; lawyers consequently form the highest political class, and the most cultivated circle of society.…If I were asked where I place the American aristocracy, I should reply without hesitation that it is not composed of the rich, who are united together by no common tie, but that it occupies the judicial bench and the bar.<br />
  7. 7. Pathways to power<br />
  8. 8. Lawyers multiply<br />
  9. 9. Lawyers beset<br />
  10. 10. Jesse Higgins<br />
  11. 11. Peace, honesty, and agreement among men is our happiness but the ruin of lawyers. Fraud, disputes, and law suits are the happiness of lawyers, but the ruin of honest men. They live on you, not you on them: therefore like Pharoah with the Israelites, they will not let you go from your bondage, so long as they can retain you.<br />
  12. 12. Roots of dissent<br />
  13. 13. The “frontier society”?<br />
  14. 14. Populism?<br />
  15. 15. The legacy of Revolution?<br />
  16. 16. Lawyers concerned<br />
  17. 17. Towards deregulation<br />
  18. 18. Opening the bar<br />
  19. 19. Bar associations collapse…<br />
  20. 20. …except in Philadelphia<br />
  21. 21. Distinguishing lawyers<br />
  22. 22. Law and politics<br />
  23. 23. Law and morality<br />
  24. 24. Legal ethics<br />
  25. 25. David Hoffman<br />
  26. 26. If the opinion of Quintilian, Cato, Longinus, and others among the ancients be correct, that no one can be an orator who is not a good man, it may be applied with still more force to the lawyer, whose vocation is the protection of the injured and the innocent, the defence of the weak and the poor, the conservation of the rights and prosperity of the citizen, and the vigorous maintenance of the legitimate and wholesome powers of government…<br />
  27. 27. George Sharswood<br />
  28. 28. The object of this Essay is to arrive at some accurate and intelligible rules by which to guide and govern the conduct of professional life. It would not be a difficult task to declaim in general propositions—to erect a perfect standard and leave the practitioner to make his own application to particular cases. It is a difficult task, however, as it always is in practice, to determine the precise extent of a principle, so as to know when it is encountered and overcome by another—to weigh the respective force of duties which appear to come in conflict. In all the walks of life men have frequently to do this: in none so often as at the Bar.<br />Essay on Professional Ethics, 1854<br />
  29. 29. Lincoln on legal ethics<br />
  30. 30. Never stir up litigation. A worse man can scarcely be found than one who does this. Who can be more nearly a fiend than he who habitually overhauls the register of deeds in search of defects in titles, whereon to stir up strife, and put money in his pocket? A moral tone ought to be infused into the profession which should drive such men out of it.<br /> There is a vague popular belief that lawyers are necessarily dishonest. I say vague, because when we consider to what extent confidence and honors are reposed in and conferred upon lawyers by the people, it appears improbable that their impression of dishonesty is very distinct and vivid. Yet the impression is common, almost universal. Let no young man choosing the law for a calling for a moment yield to the popular belief -- resolve to be honest at all events…<br />Lincoln on legal ethics<br />
  31. 31. Legal education<br />
  32. 32. University legal education continues<br />
  33. 33. Convergence with proprietary schools<br />
  34. 34. Harvard Law<br />
  35. 35. Story’s Faustian bargain<br />
  36. 36. The end of Litchfield<br />
  37. 37. New programs<br />
  38. 38. Sharswood at Penn<br />
  39. 39. Dwight at Columbia<br />
  40. 40. Apprenticeship continues<br />
  41. 41. I am from home too much of my time, for a young man to read law with me advantageously. If you are resolutely determined to make a lawyer of yourself, the thing is more than half done already. It is but a small matter whether you read with any body or not. I did not read with any one. Get the books, and read and study them till you understand them in their principal features; and that is the main thing. It is of no consequence to be in a large town while you are reading. I read at New-Salem, which never had three hundred people living in it. The books, and your capacity for understanding them, are just the same in all places.<br />Lincoln on apprenticeship<br />
  42. 42. Change in the air<br />
  43. 43. Lincoln: I am going home to study law.<br />Emerson: You stand at the head of the bar in Illinois now.<br />Lincoln: Oh yes, I do occupy a good position there, and I think I can get along with the way things are done there now. But these college-trained men, who have devoted their whole lives to study, are coming West, don't you see. And they study their cases as we never do. They have got as far as Cincinnati now. They will soon be in Illinois. I am going home to study law. I am as good as any of them, and when they get out to Illinois I will be ready for them. <br />A conversation, 1855<br />
  44. 44. Legal practice<br />
  45. 45. Courthouses<br />
  46. 46. Offices<br />
  47. 47. Legal discourse<br />
  48. 48. Oratory in decline<br />
  49. 49. Webster’s dilemma<br />
  50. 50. Written briefs<br />
  51. 51. The codifiers<br />
  52. 52. William Sampson<br />
  53. 53. David Dudley Field<br />
  54. 54. Treatises<br />
  55. 55. Law journals and discourse communities<br />
  56. 56. Next…Construction, destruction and reconstruction!<br />
  57. 57. What role(s) did early nineteenth century lawyers feel they should play in American society?<br />What factors prompted the deregulation of the legal profession from the 1830s?<br />How did lawyers seek to distinguish themselves even in the midst of an “open bar”?<br />Why did Litchfield law school finally collapse?<br />How did the circumstances and conditions of legal practice change between 1800 and 1870, and what impact did these changes have on lawyers’ work and thought? <br />Review questions<br />
  58. 58. Nineteenth Century Lawyering<br />
  59. 59. Professor Bernard Hibbitts<br />University of Pittsburgh School of Law | Fall 2010<br />Lawyering: A History<br />

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