Of Interest

Why we have a Bar Journal

November 2021

Illustration by Sarah Lawrence Brown | State Bar of Michigan

by George M. Strander | Michigan Bar Journal

The Michigan State Bar Association (MSBA) began publishing the Michigan State Bar Journal 100 years ago in November 1921. Now known simply as the Michigan Bar Journal, it is one of the oldest such legal periodicals in the country.1

Since the Bar Journal was instituted as a tool to further the MSBA’s objectives, we can explain its creation on at least two levels. First, we can illustrate the emergence of the

MSBA, the body whose founding goals were still being sought when the Bar Journal was started. Second, we can describe the factors that specifically led the MSBA in 1921 to begin publishing the Bar Journal.

EMERGENCE OF THE MSBA

Starting in 1890 up until the 1935 when it transitioned to the integrated State Bar of Michigan,2 the MSBA was a largely selective voluntary organization.3 It was formed by a group of leading Michigan attorneys4 to promote certain substantive ends — the honor of the profession, the administration of justice, wise uniform laws, the science of jurisprudence, a lawyer’s code of ethics, and the welfare of the profession and the public — with standing committees including those focusing on law reform, judicial administration, legal education, admission to the bar, and grievances.5 Importantly, modern American bar associations — namely those initiated since 1870 — adopted similar goals,6 and each used its journal indirectly to further those ends.7 Hence, for the root cause of the MSBA’s emergence we must examine what led to the formation of these bar associations with these goals.

When looking at the span of the American 19th century, several interrelated trends and factors suggest themselves as important in explaining the rise of bar associations: a constant strain of professionalism within the ranks of the law, “Jacksonian democracy,” economic development and urbanization, the changing nature of attorney work, and the rise of secular scientific thought. It appears that interest amongst a certain portion of the bar to act to improve law existed for decades before 1870, and yet the opportunity for action, as well as the form of that action, had to wait for the development of these trends, especially in the aftermath of the Civil War.

LEGAL PROFESSIONALISM

Throughout this country’s history there has always been a subset of attorneys at any given time who viewed their work as more than a means to make a living; they saw themselves as judges and counselors uniquely entrusted with the operation of the state-established system for deciding civil and criminal con- troversies.8 This subset has consistently over time called for all to reflect the professional status of the bar, including thorough education, high admission standards, and adherence to ethical canons.

JACKSONIAN DEMOCRACY

Andrew Jackson’s election as president in 1828 had far-reaching consequences. Rebelling against the built-in elitism of much of the politics and its institutions up to that time, Jackson pushed a populist agenda, elements of which endured long after he was dead.9 He championed voting rights regardless of income (although still exclusively for white males) as well as a relaxation of societal barriers to the advancement of the poor and uneducated. He is also credited with creating the spoils system — that is, a winning candidate’s rewarding of governmental offices and perquisites based merely on political support. And he opposed the market economy to the extent that it worked against his brand of egalitarianism.10

Before Jackson’s election, most states had a variety of requirements for would-be attorneys to gain admittance to the bar.11 To the horror of legal professionals, the reduction of standards for becoming an attorney swept through the country as part of Jackson’s egalitarian revolution and lingered for decades.12 What bar associations existed were driven out of existence or into moribundity.13 The idea of an honorable profession was abandoned for one of an egalitarian pursuit.

The political popularity of Jacksonian democracy lay in its ability to appeal to an ethnically defined version of egalitarianism while the galvanizing slavery question was still up for national debate, a situation which made meaningful uniformity of laws impossible. The Civil War both destroyed the perfect storm that had allowed Jacksonianism to survive as long as it did and made uniform laws truly possible.14

ECONOMIC DEVELOPMENT AND URBANIZATION

Throughout the 19th century, the Industrial Revolution, along with immigration and advances in medicine, increased the country’s population over fourteen-fold; by 1900 there were more than 76 million people living in the United States.15 Urbanization, of course, also increased, with the country leaping from about 5% urban in 1800 to nearly 40% urban (in the northeast U.S., better than 50% urban) in 1900.16

Development, population growth, and urbanization brought a host of new social challenges as well as opportunities (including a greater ability to exchange ideas, albeit impersonally through anonymous corporate interactions.)17 How justice was administered in quieter antebellum days did not fit post-war urban life.18 And the cause of uniform laws, already bolstered by the national resolution brought with the end of the Civil War, was promoted further by the rapid increase in interstate commerce.19

THE PRACTICE OF LAW

Attorneys in the early 19th century were mainly general sole practitioners earning their keep in the courtroom.20 Although some specialized law offices offered a kind of legal schooling and a few universities started law schools, the vast majority of lawyers were trained through apprenticeship.21 As the economy transformed — especially after the Civil War — business burgeoned, wealth increased, and attorneys took on more narrowly defined tasks less focused on litigation, reflecting “a more matter-of- fact, cost-conscious approach to human relations.”22 Generalists were being replaced by “experts with specialized knowledge about the growing needs of business” (think Wall Street lawyers) and law firms of some significance started to emerge.23

THE RISE OF SECULAR, SCIENTIFIC THOUGHT

The United States was a deeply religious (mainly Protestant Christian) nation for decades after its creation, and continues to this day to be more religious than most other western developed countries.24 With the impact of Darwin’s “Origin of Species” in 1859 and the Civil War, the subsumption of science under religion was questioned and a movement to secularly professionalize a number of fields started.25 Specialized knowledge was seen more and more as the proper, progressive way to deal with all sorts of challenges.26 In legal philosophy, positivism — the theory that law is simply based on its status as a command from the state — gained in popularity to the detriment of divine natural law theory,27 and the case method was introduced in legal education whereby actual appellate opinions were studied as opposed to treatises often based on a given writer’s own “principles.”28

These factors combined to make the modern bar association movement possible.29 After the Civil War, professionally minded attorneys, chafing at the derogation of standards regarding attorneys and judges as well as rampant political corruption, both brought on by Jacksonian democracy, continued to look for ways to improve their profession.30

With the proliferation of attorney roles, especially outside of the courtroom, professional connections became less personal; however, urbanization brought more attorneys closer together in work centers, thus more easily allowing for formal organization.31 The time was ripe for the use of expertise to solve problems, even if those problems were to be solved by a recapturing of standards. In essence, leading attorneys wanting to make a difference — specifically, improving the law — needed only an opportunity to organize as a respected advisory body and through provision of expertise wield the power to make the changes that they sought.32

That opportunity came in the late 1860s in New York City. When robber barons Cornelius Vanderbilt, Jay Gould, and Daniel Drew fought in court over control of the Erie Railroad, the aftermath resulted in very public allegations of corruption, implicating the trial judge as well as William “Boss” Tweed, the leader of the city’s powerful Tammany Hall political machine. Prominent observers called on the bar to associate in the face of such corruption, and in 1870 a select group of New York City attorneys formed the Association of the Bar of the City of New York (ABCNY), now recognized as the first of the modern-day bar associations.33 It, like the MSBA 20 years later, focused on achieving higher standards for attorneys and the law.

The creation of the ABCNY was the catalyst necessary to start the modern bar association movement.34 Immediately after the ABCNY was formed, several other cities and states started to form their own bar associations, all along the same law reform bases and almost all selective voluntary in nature.35 In 1881, the Michigan Legislature enacted a bar association statute; by 1890, when the MSBA was formed under that statute, more than 15 states had instituted bar associations.36

As selective voluntary bar associations, the MSBA, ABCNY, and others were established to harness and wield power both as a laudatory example to the bar and the public and, as professionals with expertise, influence the transformation of statutes and standards relating to judges, attorneys, procedure, and substantive law.37 This model expected much from the subsection of the bar that would end up being association members.38

THE EMERGENCE OF THE BAR JOURNAL

The avowed reason for the MSBA starting a bar journal in 1921 was to stimulate interest in the association, especially among “reputable practicing attorneys.”39 By 1920, the MSBA was feeling the tension between its selective nature and its lofty aims — there were not enough “acceptable” attorneys as members to realize the critical mass necessary to effectively provide the example and influence desired. The Bar Journal, as a vehicle to increase membership among the leaders of the bar, was an effort to perfect the MSBA’s selective voluntary model.40 Interestingly, the MSBA took special notice of the development of the journal the Massachusetts Bar Association had started as inspiration for its own publication.41

By the 20th century, periodicals in America were coming into their own as a cost-effective means of communication. Throughout the 19th century and into the next, the costs of production and distribution came down and the market for periodicals increased.42 By the 20th century, postal rates had decreased and people had more leisure time for reading.43

Our Bar Journal, begun under the auspices of the University of Michigan Law School faculty, initially combined in each edition MSBA news and other general legal information with reprints of the school’s Michigan Law Review44 and was initially published eight months a year, November through June, inclusive.45

While one bar association initiative starting in the early part of the 20th century focused on improving the selective voluntary model through bar journals, another idea arising contemporaneously (and consistent with the existence of journals) argued that the model should be abandoned for a mandatory bar.46 In fact, Michigan has been credited with being the first state to propose such an integrated bar, although the political system ended up delaying its integration until the mid-1930s.47

OUR BAR JOURNAL IN CONTEXT

Perhaps only after reviewing the survival rates of legal periodicals throughout the history of America can one fully appreciate a bar journal having been in existence for a century. Legal periodicals did not emerge in America until the early 19th century.48 Almost all had very short lifespans, seemingly because they could not establish a financially successful niche between too great a similarity to the case reporters of the day and the generality of a newspaper, which was unusable to most members of the bar.49 By one count, of the 30 American legal periodicals that went into business before 1850, the vast majority had stopped publication by that year and only one survived beyond 1866.50 Even in the decades after the Civil War, when there was a marked increase in legal periodicals being published in any given year, the most successful legal periodical of the period — the Albany Law Journal — ceased publication before 1910 after less than 40 years in print.51

Hence, reaching the centennial of the Michigan Bar Journal —one of the very oldest state bar journals in the country — is cause for recognition and celebration. As the Illinois Bar Journal noted a few years ago in its own 100th anniversary volume, this is a time to reflect on your Bar Journal’s history.52 And, hopefully, it is also a time to recognize the role the Bar Journal has played, and still plays, as a forum where lawyers communicate with lawyers to help all practice law more effectively.

1 Of state bar journals still in publication, it appears that only the Illinois Bar Journal (1912) and the Massachusetts Law Review (1915) are older. See Hunter, Happy 100th, Illinois Bar Journal, 100 Ill B J 20 (2012) and The Michigan State Bar Journal, 1 Mich B J ii (1921).

2 Representative Assembly History, SBM [https://perma.cc/P9ER-3EPM]. All websites cited in this article were accessed October 25, 2021.

3 Wickser, Bar Associations, 15 Corn L R 390 (1930), available at [https://perma.cc/8Z8W-7AZQ]. Wickser makes the useful distinction between voluntary associations that at least nominally appealed to all attorneys (typical of antebellum associations, essentially now defunct), selective voluntary associations that sought out the “best of the bar” for membership (the typical early form of the associations we know today, all founded after the Civil War), and integrated bars mandating membership to practice (the form that several selective voluntary associations took in the first half of the 20th century).

4 229 names of “members of the Bar of Michigan in good standing” appear as original MSBA members. Constitutions and By-Laws of the Michigan State Bar Association and Proceedings of First Meeting (Detroit: Speaker Printing Co, 1890), pp 16-20.

5 The Michigan State Bar Journal, 1 Mich B J at ii, vi-vii, 9. 6 Consider the goals of the 1870-founded association in New York City, Webber, Origin and Uses of Bar Associations, 7 ABA J 297, 298 (1921), available at [https://perma.cc/DW6Y-MGCQ]), that of Cincinnati in 1872 (Cincinnati Bar Association Celebration of Fiftieth Anniversary (Cincinnati: Cincinnati Bar Ass’n, 1922), p 11, available at [https://perma.cc/934H-6JFV]), and the 1911 Massachusetts body (Fifth Annual Report of the Massachusetts Bar Association (Boston: Rockwell & Churchill Press, 1915), p 10). 7 The Illinois Quarterly Bulletin (1912) was “aimed to bring [Association] members ‘into closer touch with each other’ and to provide a medium to exchange information ‘for the betterment of the practice and the profession ...” Happy 100th, Illinois Bar Journal. In Massachusetts, its journal was proposed in 1914 to aid “the stability and sound development of the law” and help the bar in “explaining to people their own institutions,” Fifth Annual Report of the Massachusetts Bar Association, p. 5. And the announced “reason for being” of the State Bar Journal of California was service and necessity — “[t]here has always been necessity for contact between the lawyers of California; that necessity has never been so great as now, when the public is asking for an accounting of the lawyers’ stewardship of the administration of justice and taking account of conditions as they exist in the courts today,” Our Reason for Being, 1 Cal B J 1 (1926). 8 This is emphasized by Norman W. Spaulding in The Discourse of Law in Time of War: Politics and Professionalism During the Civil War and Reconstruction, 46 Wm & Mary L Rev 2001, 2034 (2005), available at [https://perma.cc/NK7X-ZMLX]. Spaulding focuses on Joseph Story’s antebellum charge that the lawyer is a “public sentinel” against oppression. Importantly, since colonial days the law, along with medicine and the clergy, was at least nominally considered a “learned profession,” Law & Kim, Specialization and Regulation: The Rise of Professionals and the Emergence of Occupational Licensing Regulation, 65 J Economic History 723 (2005).

9 Anti-elitist individualistic egalitarianism has a long tradition in this country given America’s two centuries as a “pioneer, rural, and agricultural” country, Bar Associations, 15 Corn L R at 392.

10 Jacksonian Democracy, History.com (June 7, 2019) [https://perma.cc/GK76-U92E].

11 Matzko, The Early Years of the American Bar Association, 1878-1928 (August 1984) (unpublished PhD dissertation, Univ of Virginia), pp 4-5.

12 Bar Associations, 15 Corn L R at 393. “[T]he Jacksonian era brought intense distrust of elitism and with it, sustained efforts to eliminate entry requirements and open lawyering to all,” Remus, Reconstructing Professionalism, 51 Geo L R 839, 839 (2017). “Several states adopted constitutional provisions similar to that of Michigan which permitted ‘every person of the age of twenty-one years, of good moral character’ to practice law,” The Early Years of the American Bar Association, p 5.

13 “[Bar associations] are wrong in principle, betray competition, delay professional freedom, degrade the Bar,” Bar Associations, 15 Corn L R at 393, quoting an 1838 edition of the Southern Literary Messenger.

14 Jacksonian Democracy. See also Maxeiner, Uniform Law and its Impact on National Laws, Limits and Possibilities: US National Report, Intermediary Congress of the Int’l Academy of Comparative Law (2009), available at [https://perma.cc/QT4L-5YSR].

15 United States Resident Population by State: 1790-1990 [https://perma.cc/KQ43-CCVN]. As this source shows, Michigan’s population rise during this time was even more meteoric.

16 Bairoch & Goertz, Factors of Urbanisation in the Nineteenth Century Developed Countries: A Descriptive and Econometric Analysis, 23 Urb Stud 285, 288 (1986) and Boustan, Bunten, & Hearey, Urbanization in the United States, 1800-2000 4 Note 1 (Nat’l Bureau of Econ Research, Working Paper No 19041, 2013), available at [https://perma.cc/Q6M3-8MLS]. By century’s end, Michigan’s urban percentage was close to the national average, Kiefer, Population Changes, Mich Geographic Alliance & Science/Mathematics Tech Ctr, Central Mich Univ, available at [https://perma.cc/LQJ4-GJPB].

17 In the Progressive Era (1870-1914) there was a renewed impetus to solve social problems, Duchan, Emergence of Professionalism in Late 19th and Early 20th Century America (2021) [https://perma.cc/TPR3-MTSK] and High Population Density Triggers Cultural Explosions, University College London (June 5, 2009), available at [https:// perma.cc/V8K9-PQZK]. See also Roiphe, A History of Professionalism: Julius Henry Cohen and the Professions as a Route to Citizenship, 40 Fordham Urb L J 33, 41 (2012), available at [https://perma.cc/WS9U-DP9B].

18 “Demand for socialization of law, in America, has come almost wholly if not entirely from the city . . . But our legal system has had to meet this demand upon the basis of rules and principles develop for rural communities or small towns,” Pound, The Administration of Justice in the Modern City, 26 Harv L R 302, 311 (1913), available at [https://perma.cc/9B7G-FSJ2].

19 Uniform Law and its Impact on National Laws, pp 1-2. 20 Friedman, A History of American Law (2nd Ed) (New York: Simon & Schuster, 1985), pp 303-314.

21 Id., p 318.

22 A History of Professionalism, pp 42-43 and Hurst, Law- yers in American Society 1750-1966, 50 Marq L R 594,595 (1967), available at [https://perma.cc/GBT8- 8FXW].

23 A History of Professionalism, p 42; A History of Amer- ican Law, pp 633-648; and Pinansky, The Emergence of Law Firms in the American Legal Profession, 9 U Ark Little Rock L R 593, 609 (1987), available at [https://perma.cc/QVT8-H4V8]. 24 “...most Americans were so deeply committed to Protes- tant Christianity that they were particularly receptive to invo- cations of natural law,” Feldman, From Premodern to Mod- ern American Jurisprudence: The Onset of Positivism, 50 Vanderbilt L R 1387, 1398 (1997), available at https:// scholarship.law.vanderbilt.edu/cgi/viewcontent.cgi?arti- cle=2169&context=vlr [https://perma.cc/SK2T-L8QH]. See also Evans, US adults are more religious than Western Europeans, Pew Research Center (September 5, 2018) [https:// perma.cc/H9K7-VDL4].

25 From Premodern to Modern American Jurisprudence, 50 Vanderbilt L R at 1417. This professionalism movement coincided with America’s Progressive Era, Emergence of Professionalism.

26 “…knowledge became its own commodity,” Profession- alism, Encyclopedia.com [https://perma.cc/ KHF8-BYJ9].

27 From Premodern to Modern American Jurisprudence, 50 Vanderbilt L R at 1417-1424. The rise of factual law reports in the first half of the 19th century challenging the treatises and their natural law foundations for the attention of the bar has been interpreted as a turn towards positivism, Swygert & Bruce, The Historical Origins, Founding, and Early Devel- opment of Student-Edited Law Reviews, 36 Hast L J 739, 750 (1985), available at [https://perma.cc/JBW9-RX4V]. The Constitutional crisis that was the Civil War accelerated the move toward positivism. From 1850 to 1870 “[p]ositivistic legal discourse, it was hoped, would help reinforce a public conception of law as above politics and of the lawyer as a “benevolently neutral technocrat,” The Discourse of Law in Time of War, 46 Wm & Mary L Rev at 2045-2046.

28 Modern American Jurisprudence, 50 Vanderbilt L R at 1426.

29 Though earlier associations, even a few for state bars, existed, most were short-lived; our state’s own Detroit Bar Association traces its lineage back to antebellum days, Raising the Bar through Networking, Practice Development and Community Service Since 1836, Detroit Bar Ass’n [https://perma.cc/TP49-EF98]. “Modern” bar associations are distinguishable from them for the former’s substantive agendas and lasting power.

30 “This revulsion against low professional standards, and a like revulsion against national, state, and municipal political corruption were chief among the forces which gave rise to the new instrumentality which the bar was to forge. This was the selective voluntary bar association,” Bar Associations, 15 Corn L R at 396.

31 Urbanization has been found to be a significant factor in the adoption of regulations for attorneys and other profes- sionals, Specialization and Regulation.

32 These actions to raise legal education, admission, and practice standards, and thus penalize the less affluent and more marginalized of the bar, have been interpreted by some as fundamentally self-serving. See Moliterno, The American Legal Profession in Crisis: Resistance and Re- sponses to Change (New York: Oxford Univ Press, 2014), pp 18-46, and Auerbach, Unequal Justice: Lawyers and Social Change in Modern America (New York: Oxford Univ Press, 1977). However, a better interpretation is to see these leaders of the bar to be acting on their own ideas of pro- fessionalism and how the law should be, The Early Years of the American Bar Association, p 4. A distinction between intent and consequence is apt here; while some actions by bar associations may have had an inordinate effect on some categories of attorneys, it appears unlikely that such an ef- fect was the main goal. “The desire to eliminate charlatans and quacks” is natural, Specialization and Regulation, 65 J Economic History at 728. “Thriving off of the late-nineteenth century fascination with science and expertise . . . the legal elite justified its special role in society . . . as a result of the ability to refine liberal legal science and engage in the expert management of public affairs,” A History of Profes- sionalism, p 42.

33 Bar Associations, 15 Corn L R at 396.

34 For Roscoe Pound, this event ended the American bar’s “era of decadence,” which began with the demise of the Suffolk County (Boston) Bar Association in 1836, The Early Years of the American Bar Association, pp 5-6.

35 Thirteen cities and states formed bar associations in the eight years following the creation of ABCNY: Cincinnati (1872), New Hampshire (1873), Cleveland (1873), Iowa (1874), Chicago (1874), Washington, DC (1874), St. Louis (1874), New York State (1876), Boston (1876), Illinois (1877), Alabama (1878), Vermont (1878), and Wisconsin (1878), Hylton, The Bar Association Movement in Nineteenth Century Wisconsin, 81 Marq L R 1029, 1029-1030 (1998), available at [https://perma.cc/9ZXZ- 6Y7R].

36 Constitutions and By-Laws of the Michigan State Bar Association, p viii.

37 These new associations expected to use what Spaulding has termed the “discursive authority of law” — “the power to superimpose legal discussion and analysis onto social ques- tions, to shape and direct public opinion with the language of law,” The Discourse of Law in Time of War, 46 Wm & Mary L Rev at 2038.

38 The initial members of these associations were the “de- cent part” of the profession — mostly well-to-do business lawyers from old American stock, A History of American Law, pp 648-652. The MSBA’s initial officers were obvi- ously leading lights. All respected attorneys, they included, among others, a former brigadier general in the Union Army, a University of Michigan law professor, a college trustee and future state senator, someone who would go on to be a U.S. congressman and state supreme court justice, and a future ambassador.

39 The MSBA officers in 1921 included a future state su- preme court justice, a county prosecutor, and a University of Michigan law professor.

40 In the days before teleconferencing and Zoom, journals were seen to “serve the purpose of giving the associations they serve a continuing existence between annual meet- ings,” Value of State Bar Journals, 9 J of the Am Jud Soc 4 (1925). A journal is a means by which an association can produce and control the authoritative communication of its field, Hudson & Hudson, Associations and their Jour- nals: The Search for an “Official” Voice, 48 Soc Pers 271 (2005). In the early 1920s the MSBA was still grappling with the issues of the administration of justice and the wel- fare of the profession and the public, Potter, Organization of the Michigan State Bar, 3 Mich B J 42 (1923).

41 The Michigan State Bar Journal, 1 Mich B J at ii.

42 Linotype machines (1886) essentially dispensed with hand-set type, distance was eliminated as a factor of post- age (1845), prepaid postage was approved, and mag- azines were allowed a lower second-class rate (1879), Lauder, Magazine Industry, History of, Encylopedia.com [https://perma.cc/8P9N-EC5Y].

43 “Magazine readership flourished in the 1900s. More people were able to read, more people found leisure time in which to read, and more people had discretionary income to spend on magazines,” Id.

44 At the time, this model received national attention, Value of State Bar Journals.

45 The Michigan State Bar Journal, 1 Mich B J at ii.

46 Organization of the Michigan State Bar. Potter, the au- thor of the article and a former president of the MSBA (and soon-to-be justice of the state supreme court), complained in 1923 that the association was a “dismal failure” with no program for organizing the profession, strengthening the administration of justice, or controlling membership. He called out low admission standards, the partisan political control of judges, and the fact that the Supreme Court had abdicated its natural authority over the profession. He noted that membership reflected only a small percentage of the bar and that integration would end up improving the quality and status of attorneys to the betterment of society. Interest- ingly, those bar associations that have remained voluntary, and now no longer selective, often struggle to get enough membership, Koch, The case for bar associations: Why they matter, ABA Journal (February 4, 2019) [https:// perma.cc/77QL-4XRA].

47 Id., p 47.

48 The Historical Origins, Founding, 36 Hast L J at 750- 751.

49 Id. at 753. See also Davies, The Original Law Journals, 12 Green Bag 2d 187 (George Mason Law & Economics Research Paper No 09-15, March 2, 2009), available at [https://perma.cc/K6MB-4A4E].

50 Id.

51 The Historical Origins, Founding, 36 Hast L J at 759- 760.

52 Happy 100th, Illinois Bar Journal.

George M. Strander is court administrator for the 30th Circuit Court in Lansing. A graduate of the University of Michigan Law School, he serves on the State Bar of Michigan Bar Journal Committee and Civil Procedure and Courts Committee as well as the Governor’s Mental Health Diversion Council.