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-- AndrewMcCormick - 13 Nov 2009
Although I'm sure it needs no announcing, this project is still a work in progress | |
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< | 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. | >
> | 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. The professional expectations of lawyers and popular views of lawyers character as a class have, I suspect, changed over time. I suspect a(n) historical investigation of character and fitness as professional concepts would contribute to understanding the legal profession in America. To state my question broadly, I wish to explore how character and fitness of lawyers, as professional and social standards, have shaped the legal profession in America. I will begin with comments on the legal profession, such as de Tocqueville, and then explore documents within the legal profession, such as bar examiners' guides and caselaw. | | | | |
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< | 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. | >
> | A related question is whether character and fitness examination as a portion of bar admission has been used selectively and as a barrier to entry. Realistically, I do 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. I propose that an interesting question exists of whether bar exam character and fitness standards are a serious hurdle to bar admittance on social grounds, and if they tend to be more or less progressive than widely held norms of the time regarding 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. However, it is likely thin for a reason. | | |
Character and Fitness: a ubiquitous, historically present standard. And perhaps an empty one. | |
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< | 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). | >
> | 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). | | | 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.) | |
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< | 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. | >
> | 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. Additionally, the screening future lawyers for character issues may take place earlier than bar exams; for example, at the time of gaining an apprenticeship, or upon applying for law school. | | |
Early American Lawyers and the Rise of Character as a Professional Credential. | | | During 18th and 19th centuries, bar examinations were orally administered before a judge. | |
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> | The Role of Education in Character and Fitness
Early lawyers used apprenticeship which was a filtering device... (rhode, et al)
After the 19th century, law schools may have been responsible for legal ethics... (Stevens) | | | The Uses of "Character and Fitness"
According TroublingRise "in the entire nineteenth century, there were virtually no reported instances in which applicants were banned for their character." (Comment on notes not played?) | | | Character, Fitness, Race, and Gender. | |
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< | Exclusion from the Profession Outside the Realm of "Character and Fitness" | | | | | | Legal Ethics, Fifth Ed. Rhode, Luban. Foundation Press, 2009. | |
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> | Legal Education in Colonial New York, Hamlin, New York University Law Quarterly Review 1939. discussing character of lawyers and men of government critically, and commenting on the unprofessional legal system in early America. For a 1941 law review article discussing and quoting extensively, see LegEdNewYork
Law School: legal education in America from the 1850s to the 1980s, Robert Stevens. Partially available here, LegalEd Argues that, at least since modern legal education, with the exception of a very active bar in the early 1950s seeking to exclude left-wing individuals, the bar primarily thought law schools were responsible for the ethics of lawyers (237)
Rise of the Legal Profession in America (Volumes 1&2), Chroust, University of Okla. 1965.
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