A Bridge into the Future

Legislators between 1860 and 1920 were affected by and contributed to the era's massive economic transformation, and their behavior defies the characterization of laissez-faire so frequently stamped on them. The transformation of the economy was accompanied by more not less legislative intervention, by more not less law in the lives of individual citizens. This activity was undertaken both to promote economic growth and to regulate some but certainly not all of its consequences. The distributional

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policies that characterized the party period gradually gave way to a scheme of administrative regulation in the Progressive era that held forth the promise (only partly unrealized) that impartial experts would solve problems on a neutral, scientific basis.

The historical domination by the states of economic promotion and regulation also faded before an increasingly national and interdependent economy. Given the nature of the federal system, the states lacked sufficient constitutional authority to adapt through the law to the forces of industrialization. The nationalization of the economy held different implications for Congress; its authority increased as that of the state legislatures waned. Legislators at all levels, however, succeeded during the party period and the Progressive era in building a legal bridge over which the rural and agricultural nation of the era before the Civil War crossed into the urban and industrial twentieth century.

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The Professionalization of the Legal Culture: Bench and Bar, 1860-1920

The economic and social transformation of the late- nineteenth-centuryUnited States spilled over into the legal culture. The bench and bar played an active role in the development of corporate capitalism, emerging by 1920 in their modern forms as professional arbiters of an apolitical and "scientific" body of rules. Yet cleavages existed. Some judges and lawyers advanced a "formal" and conservative legal approach to the problems of the industrial United States. These formalists believed that judges had to restrict themselves to abstract reasoning rooted in laissez-faire economic principles. Other members of the bench and bar urged a sociological and liberal approach to industrialization, drawing on social scientific evidence rather than abstract legal principles to support legislative and regulatory intervention in the economy. These proponents of "sociological jurisprudence" were invariably identified with the Progressive movement.

Each generation has struggled with the question of whether the judicial role fits more properly in one or the other of these categories. From the Civil War to about 1900 the trend favored the formalistic and conservative judicial approach, but from then through World War I sociological jurisprudence and liberalism gained credibility. Amid this give-and-take, a larger trend emerged: the steady movement toward the professionalization of legal education and law practice. Whatever their ideological disposition, lawyers adjusted to industrialization by replacing religion with law as the controlling element of society.

Rise of the Legal Profession

The growth of an urban, industrial society after the Civil War molded the composition, structure, and training of the bar. The practice of law became professionalized at the same time that other middle-class occupations such as engineering, medicine, and

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education were developing their own "professional cultures." A profession was "a full-time occupation in which a person earned the principal source of an income. During a fairly difficult and time-consuming process, a person mastered an esoteric but useful body of systematic knowledge, completed theoretical training before entering a practice or apprenticeship, and received a degree or license from a recognized institution." ¹ A professional person insisted on objective standards of technical competence, superior skill, and high-quality performance. A professional held out service to the public and could not refuse a client without explanation.

The professionalization of the law had its roots in the antebellum era. Until about 1830, the lawyer class had been guildlike, based on local control and built on a restrictive system of personal alliances including marriage, paternal occupations, and extended apprenticeship. Beginning in the 1830s, local authorities lost control over the certification of lawyers to state government and, at about the same time, sons from white Protestant middle-class families, whose fathers tended to be clerks, tradesmen, and artisans, began entering the profession in significant numbers. But it was not until the post-Civil War era that professionalization of law practice surged. Banks, railroads, and industry, which were anxious to enlist skilled professionals to provide specialized legal services, increasingly hired lawyers away from the courtroom and the office.

Date: 2015-01-29; view: 687