Legal Profession (History)
In 1988, as I left the Deanship, I thought of writing a history of American legal education. I soon observed that legal education is part of the profession that is part of the legal system. Being unable to find clear perimeters to my subject, I have written on narrower topics. None of my work in this field is archival in nature. I tell stories as accurately as I can, relying on professionals to mine the archives. An omniubus collection of my thoughts on the subject will be published in 2012 by the American Bar Association; it is offered as a course book usable by undergraduate pre-law students as well as law schools. Its title is Lawyers in American History: Serving the Public Good?
One earlier book emerged in 1999, Stewards of Democracy, published by Harper Collins. It was intended as a trade book but did very little trade. Its point was that there has been a continuing strand of thought by American lawyers that is respectful of what Thomas Cooley described as “the common thoughts of men” and that is moderately skeptical of elitist claims to superior wisdom on great issues. I united in this view Cooley, Louis Brandeis, Ernst Freund (the intellectual founder of the University of Chicago Law School), and Byron White. Reviewers have been kind. Those presented by Amazon are at Reviews of Stewards of Democracy.
If one were interested in pursuing the thesis without the burden of reading my book, one might examine three recent encyclopedia articles, one about Hugh Henry Brackenridge, the first American novelist, one about Francis Lieber, the premier theorist of the legal profession in antebellum times and one about Justice Thomas Cooley and his career on the Supreme Court of Michigan. They shared a 19th century vision of the profession to which I remain attracted.
Surely the best paper I have written on this subject (or perhaps any other) is my comparison of Abraham Lincoln to Charles Sumner. It was originally a lecture given at the University of Illinois. Although it may be the best essay I ever wrote, and was extremely well received by the audience, the Illinois Law Review declined to publish it. It appeared in the Northwestern University Law Review. A Tale of Two Lawyers.
A secondary product of this interest is my book published in 2005: Spreading America's Word: Stories of America's Lawyer-Missionaries. It is about the many American lawyers, beginning with Jefferson, who have sought to make other peoples' laws more like our own.
Other essays on the history of the profession are:
Book Review, Arnold: Fair Fights and Foul, 65 Mich. L. Rev. 562 (1966)
Law and Chivalry: An Exhortation from the Spirit of the Hon. Hugh Henry Brackenridge of Pittsburgh (1748-1816), 53 U.Pitt.L.Rev. 705 (1992)
The Aims of Early American Law Teaching: the Patriotism of Francis Lieber, 42 J. Leg. Ed. 339 (1992)
Meaning and Professionalism in American Law, 10 Constitutional Commentary 297 (1993)
Remembering Jefferson, 2 William & Mary Bill of Rights Journal 455 (1993)
William Gardiner Hammond and the Lieber Revival, 16 Cardozo L. Rev. 2135 (1995)
Der Einschluss kontinentalen Rechts und Juristen und Rechtskultur der USA, 1776-1933, 11 Juristen Zeitung 183 (1995) republished as The Influences of Continental Law on American Legal Education and Legal Institutions, in Toward Comparative Law in the 21st Century at 1037 (Chuo University Press, Tokyo, 1998)
Law as “The Common Thoughts of Men:” The Law-Teaching and Judging of Thomas McIntyre Cooley, 49 Stan. L. Rev. 495 (1997)
Law and Economics in the Creation of Federal Administrative Law: Thomas Cooley, Village Elder to the Republic, 83 Iowa L. Rev. 363 (1997)
Lawyers Amid the Redemption of the South, 4 Roger Williams L. Rev. 21 (1999)
A Mother’s Day Eulogy for Margaret Walker Wythe, 3 Green Bag 2d. 255 (2000) (with Laura Kelley)
Tikkun Olam: A Mother’s Day Eulogy for Frederika Dembetz Brandeis, 4 Green Bag 2d. 247 (Spring 2001) (with Sarah Berger)
A Mother’s Day Eulogy for Janet Llewellyn, 5 Green Bag 2d 265 (Spring 2002)
Fearing Fear Itself, 5 Green Bag 2d 375 (Summer 2002)
A Eulogy to Harriet Joyner Wigmore, 6 Green Bag 2d 229 (2003)
A Father’s Day Eulogy to William Darrah Kelley (with Christopher Machera), 7 Green Bag 2d 209 (2004)
Reflections on Brown, 20 J. App. Practice & Process 101 (2004)
Using Public Funds for Corporate Welfare: A Nineteenth Century View of Kelo, 8 Green Bag 2d -- 2006)
A Ghostly Reply from Thomas Cooley, 8 Green Bag 2d 216 (2006)
A Barnburning Court: The Chief Justiceship of Thomas Cooley, in Michigan Legal History (Paul Finckelman & Mark J. Hershock eds. 2006)
Electing Judges: The North Carolina Expeirience, N.C. L. Rev. (2011)