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-- AndrewMcCormick - 13 Nov 2009 | |
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< | Although I'm sure it needs no announcing, this project is still a work in progress as of 1/5 | >
> | Although I'm sure it needs no announcing, this project is still a work in progress | | | This genesis of my curiosity about character and fitness standards was an online article discussing whether excessive student debt could be a disqualifying character and fitness criteria. As colossal student debt loads are a recent phenomenon, character and fitness must be an evolving standard; further, as it is a mutable concept, judges and bar associations have room for significant interpretation(CITATION). I suspect a(n) historical investigation of character and fitness examination would contribute to understanding the legal profession in America. To state my question broadly, I wish to explore how character and fitness, as professional standards, have shaped the legal profession in America, and whether they have historically been used as tools of social policy through exclusion.
Realistically, I did not expect to find ‘smoking gun’ evidence of social policy making through character and fitness examination; the mere fact that historical bar exams were orally administered would likely prevent it in early cases, and in most cases I expect discrimination by the bar would be cloaked. I propose that an interesting question exists of whether bar exam character and fitness standards tended to be more or less progressive than widely held norms of the time regarding race, religion, political affiliation, and potentially homosexuality. I find this question interesting because I can readily imagine reasonable arguments supporting both positions, and scholarship in the field is thin. | |
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< | Character and Fitness Today: a ubiquitous requirement. | >
> | Character and Fitness: a ubiquitous, historically present standard. And perhaps an empty one. | | | Every state bar currently requires some form of character and fitness examination, as do most other countries (Rhode citing The Bar Examiner’s Handbook, S. Duhl 2d ed. 1980) - apparently unavailable online, in need of scanning). | |
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< | Rhode argues that, throughout its history and into the present day, character and fitness examinations are cultural showpieces, that they have never barred significant numbers of applicants, and rather have been a tool for delay and harassment and a “ritual” undermining the “ideals it seeks to sustain” (Rhode, 490-491). | >
> | Rhode argues that, throughout its history and into the present day, character and fitness examinations are cultural showpieces, that they have never barred significant numbers of applicants, and rather have been a tool for delay and harassment and a “ritual” undermining the “ideals it seeks to sustain” (Rhode, Legal Ethics, 490-491). Despite her characterization of C&F standards as "showpieces", "within the American Bar moral character requirements have been a fixed star in an otherwise unsettled regulatory universe... virtue remained a constant prerequisite, in form if not in fact." (Rhode, Moral Character as a Professional Credential, MoralCharacterCredential, 491.)
A cursory look at secondary sources indicates the first litigation over character and fitness standards was during the McCarthy? era, theoretically supporting Rhode's thesis of character as a non-effectual standard. However, the historical track of admission suggests early practices were personal, informal, and less likely to be litigated. | | |
Early American Lawyers and the Rise of Character as a Professional Credential.
In early America, lawyers were unwelcome. The practice was viewed as unnecessary and even evil. The "Body of Liberties" of Massachusets Bay, 1641. Available here: BodyofLiberties, fascinatingly prohibits legal representatives from taking fees in section #26. Similarly, the Fundamental Constitutions of the Carolinas (1669), Carolinas, article 70 proclaims lawyering for money as "base and vile". | |
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< | Friedman argues that "As soon as... society posed problems ofor which lawyers had an answer..., layers bagan to thrive, despite the hostility.", here, but it is understandable that such animosity could have led to developing character and fitness standards. Alternatively, as the profession grew an wish to create entry barriers would be well served by character and fitness standards and professional requirement. A third explanation is that between 1800 and 1900 the class of men composing the profession shifted from the "elite" to middle class and business backgrounds (Friedman, linked above). | >
> | Friedman argues that "As soon as... society posed problems ofor which lawyers had an answer..., layers bagan to thrive, despite the hostility.", here, but it is understandable that such animosity could have led to developing character and fitness standards, either by the lawyers themselves, in order to improve their image, or as imposed by legislatures. Alternatively, as the profession grew a wish to create entry barriers would be well served by character and fitness standards and professional requirement. A third explanation is that between 1800 and 1900 the class of men composing the profession shifted from the "elite" to middle class and business backgrounds (Friedman, linked above). | | | | |
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> | During 18th and 19th centuries, bar examinations were orally administered before a judge. | | |
The Uses of "Character and Fitness" |
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