ENTRY TO THE PROFESSION

In order to trace the dramatic fluctuations in the kind and degree of supply control that English lawyers have exercised during the last century and a half, it is useful to choose as a baseline the entry barriers that prevailed at the beginning of the nineteenth century. Barristers and solicitors differed significantly in the extent to which each branch emphasized ascribed or achieved qualities—the character of the whole person or narrow technical skills—and in whether controls were formal or informal, visible or invisible.

THE PREMODERN HERITAGE

The Bar entered the nineteenth century with stringent constraints on the kind of person who might become a barrister, constraints that had been in place for several hundred years. The benchers (judges and senior barristers)

who governed the four Inns of Court had complete discretion to admit or reject a student; applicants had to state their "condition in life" and provide references from two barristers. The Inns of Court extended a preference to university graduates, shortening the number of years they had to keep terms from five to three and the number of dinners they had to eat each term from six to three, so that the burden on nongraduates was more than three times as onerous. Partly for this reason, half of all barristers were university graduates at a time when this privilege was enjoyed by only a tiny fraction of the population and restricted to upper-class members of the Established Church. Once called to the Bar, the fledgling barrister was expected to serve a pupillage (apprenticeship) of one to two years with an established barrister or other legal professional. Thereafter, fully qualified barristers had to open their own chambers, for in the early nineteenth century most practiced alone.

Two things about this entry process are striking, although perhaps not immediately apparent. First, it was extremely expensive. For the majority who attended university, there was the cost of tuition and three years of maintenance. The Bar student then had to pay a fee of £30 to £40 for admission to his Inn of Court and deposit an additional £100, which was refunded without interest only after call. During his three to five years as a student, while forbidden to work at most trades, he incurred annual expenses of £5 to £10 for hall dinners, £6 to £8 for books, and about £150 for maintenance. Call fees were £70 to £80, to which must be added about 8 guineas for a wig and gown. The premium for pupillage was 200 guineas, and the pupil had to maintain himself for another two years. Once established in his own chambers, the barrister could not expect to earn enough from practice to support himself for several years (if ever), although he might make ends meet by "deviling" (salaried work for an established barrister), tutoring, marking examination papers, law reporting, or editing. A midnineteenth century estimate put the one-time costs at £300 and the annual maintenance at £250 from entering university to reaching economic self-sufficiency, which could be as long as ten years. These financial demands strongly reinforced the ascriptive criteria that influenced the university and the Inn to admit a student, the barrister to accept a pupil, and the client or solicitor to brief a fledgling barrister.

The second noteworthy feature of this lengthy and arduous process of qualifying is that it had relatively little to do with the acquisition of technical skills. Those who attended university did not study English law because it was not taught. The Inns had abandoned any pretense of education two centuries earlier. In addition, although we know little about the content of pupillage, certainly many barristers must have accepted pupils for the substantial premiums the latter paid rather than out of dedication to teaching. The Bar selected those who aspired to be "gentle-

men" (regardless of whether their fathers were landed gentry); colleague-ship at university and within the Inns may have reinforced such gentility; but neither selection nor training ensured technical competence in law.

Because solicitors lacked the lengthy traditions of the Bar, they initially subjected entrants to fewer ascriptive criteria and, consequently, imposed fewer entry barriers of any sort. Nineteenth century solicitors were not expected to attend university; indeed, only 5 percent of enrolled solicitors were graduates as late as the 1870s. But solicitors were required by law to serve a five-year apprenticeship (articles). This was an ascriptive barrier in two senses: the apprentice obtained his place through personal contacts, often with a solicitor who was a relative, family friend, or business acquaintance; and articles were expensive—about £100 for stamp duty and £200 for the premium paid to the solicitor. Yet, unlike the Bar student or pupil, the articled clerk could minimize his expenses by living at home, since articles were available all over England, not only in London (where all barristers had their chambers at the beginning of the nineteenth century). And at the end of his apprenticeship, the qualified solicitor could attain immediate economic self-sufficiency through salaried employment with a firm and could look forward to joining the partnership or setting up his own practice.

Even at the beginning of the nineteenth century, barristers and solicitors thus diverged in their exercise of supply control. The Bar used rigorous ascriptive criteria and demanded substantial economic sacrifices, effectively limiting numbers. Yet, these barriers were both informal (pupillage was not a legal requirement, for instance) and invisible (no person or institution decreed that a newly qualified barrister would fail to obtain sufficient business). Solicitors also employed ascriptive barriers, but these were less elaborate and seem to have been more closely related to the acquisition of legal knowledge. Because articles lasted several times as long as pupillage and because the supervising solicitor generally expected to employ the apprentice thereafter, it seems plausible that the experience conferred at least a modicum of technical skill.

CONSTRUCTING MODERN CRITERIA

These differences between the branches became considerably more pronounced during the next hundred years. The Bar retained and indeed strengthened its ascriptive criteria. In 1829, Inner Temple (one of the four Inns of Court) required all students who had not matriculated at university to pass an examination in history and either Latin or Greek; although this requirement was abandoned briefly when the other Inns failed to adopt it, the examination had become universal by the last quarter of the nineteenth

century. In any case, almost three-quarters of all Bar students were university graduates by this time. However, the Bar moved very slowly to ensure that entrants possessed technical knowledge. It resisted the example of physicians, solicitors, and colonial lawyers, all of whom had adopted formal examinations, for the Bar feared that this might facilitate entry rather than restrain it, thereby admitting the wrong kind of person. The examination finally required in 1872 was ridiculously easy. Graduates sat it a few months after leaving university, and 80 percent to 90 percent were passing at the end of the nineteenth century. The Bar was even less interested in preparing students to practice law than in examining their competence. Although the Inns created the Council of Legal Education in the midnineteenth century, it had a minimal teaching staff and relied heavily on practitioners. It is not surprising that the majority of Bar students preferred private crammers. Thus the barriers to becoming a barrister remained much the same until after World War II: cost and the particularistic decisions of universities, pupilmasters, and (later) heads of chambers.

Solicitors pursued a very different path toward controlling the production of producers. In the absence of substantial ascriptive barriers, the number of solicitors seems to have doubled in the first third of the nineteenth century. Partly in response, one of the early acts of the Incorporated Law Society (a voluntary association formed by solicitors in the 1820s, following the demise of the Society of Gentlemen Practisers) was to impose a professional examination in 1836, nearly four decades before the "senior" branch (barristers) did so. This decision to use achievement rather than ascription as the principal entry barrier seems to have had its desired effect: the issuance of new "practicing certificates" dropped by almost a quarter over the next fifteen years, and the number of solicitors stabilized for four decades (although other factors, such as falling demand, also may have contributed to this decline). Twenty-five years after initiating professional examinations (and ten years before the first Bar Final), the Law Society added a second hurdle: the Intermediate Examination, taken by articled clerks during their apprenticeship. (Although law graduates were exempt, there were very few during this period.) Then, in 1906, the Society required a third examination in trust accounts, accounting, and bookkeeping. Although the pass rates for each examination were very high when it first was introduced, all of them declined fairly steadily and were approaching 50 percent at the beginning of World War II; since all three had to be passed, their cumulative effect was even greater.

The Law Society also was more serious about professional education: it instituted lectures for articled clerks in 1833, three years before the first professional examination, and progressively expanded the offerings at its Chancery Lane headquarters. Nevertheless, attendance was low: articled

clerks, like Bar students, preferred private crammers; and little instruction was available outside London and a few major provincial cities. In response, the Law Society made two major changes in 1922: it required a compulsory year of lectures prior to the Intermediate Examination, and it subsidized such instruction at provincial universities.

By contrast with its concern for technical competence, the Law Society did little to raise ascriptive barriers. Individual exemptions were granted freely from the preliminary liberal arts examination imposed in 1861 (thirty years after Inner Temple had required a similar examination of Bar students), and categorical exemptions rapidly proliferated, not just for university matriculates but also for those who passed a host of other exams. The proportion of solicitors with university degrees remained small: less than a fifth of all entrants in the first decade of the twentieth century (when three-quarters of all new barristers were baccalaureates), less than a third as late as World War II. At the same time, it must be recognized that preparation for the three professional examinations itself was costly and became an important, if indirect, barrier to those who could not afford to study full time or pay the crammers.

FLUCTUATIONS IN ENTRY

How effective were the divergent strategies of barristers and solicitors in controlling the production of producers? In answering this question, it is essential to bear in mind the impact of extraneous events, the most important of which were World Wars I and II. Nearly a quarter of all solicitors served in World War I; 588 were killed and 609 seriously wounded (nearly a tenth of all practitioners). The next generation of solicitors was affected even more seriously: more than half of all articled clerks served, of whom 358 were killed and 458 seriously wounded (perhaps a third of all clerks). Although these losses were inflicted on the profession, it also bears some responsibility for failing to respond to them by admitting more solicitors after the war (even though pass rates on the professional examinations did increase dramatically). In addition to those killed and disabled, there was a shortfall in production of 1,700 solicitors, if the ten years beginning in 1914 are compared to the previous decade. The experience of World War II was similar: more than 500 solicitors and clerks were killed, and there was a shortfall in production of more than 1,500.

Together, professional supply control and extraneous tragedies had a dramatic effect on the number of solicitors (see table 1). The rapid increase in the production of solicitors in the first third of the nineteenth century (an annualized rate of 3.1 percent) halted abruptly in 1835—which happened to be the year before the first professional examination was admin-

istered, although it would be dangerous to infer causality. The profession remained virtually static for the next third of the century. Although there was some growth in the 1870s and 1880s, it slowed to almost nothing in the next twenty-five years. The number of solicitors declined at an annualized rate of 1.7 percent between 1913 and 1920 and remained virtually static between 1939 and 1952. As a result, solicitors entered the postwar period (1948) with almost exactly the same number (15,567) that had been in practice more than half a century earlier (15,090 in 1890). Statistics for the practicing strength of the Bar before the 1950s are sadly inadequate. Nevertheless, available data show the number of barristers doubling between the first and the last quarters of the nineteenth century, declining by a fourth following World War I, and remaining at that depressed level until well after World War II.

THE POSTWAR TRANSFORMATION

The period since World War II, and especially the last two decades, have witnessed a major transformation in both the means and the extent of control over the production of producers. The distinctive characteristics of barristers and solicitors continued to color their different responses, but the overwhelming changes that both branches confronted induced a significant convergence between them. Some ascriptive barriers to the Bar were lowered, and achievements were emphasized. The £100 deposit required before admission to an Inn was eliminated for most students, the £50 stamp duty on call to the Bar was abolished in 1947, and other fixed fees became less burdensome as a result of inflation. Although the Bar formally required a university degree in 1975, the growth of tertiary education and, more importantly, government grants to undergraduates made it easier to obtain this credential (which nearly 90 percent of entrants already held in any case). Nine years later the Bar added the requirement of at least a lower-second-class degree (although few students with an inferior degree had been passing the Bar examination and finding a pupillage and tenancy).

The Bar also began to relate entry barriers more closely to technical competence. Students without a law degree now must spend a year studying law in a polytechnic (often without further government support) and pass an additional examination. Not surprisingly, 84 percent of intending practitioners called to the Bar in 1983 were law graduates. Legal education thus has become the principal barrier to qualifying as a barrister, a point to which I return below. All entrants must take a year of vocational training prior to the final examination, and the number of places available at the Inns at Court School of Law has been limited in recent years (although

students can study elsewhere). Final examination pass rates remain high, however: nearly 90 percent of intending practitioners succeeded on their first try in the early 1980s, although the proportion has fallen significantly in the last few years.

Yet, the Bar certainly has not relinquished all control to the academy. Three major entry barriers remain, which traditionally have been more ascriptive and less subject to external influence. First, the Bar mandated a one-year pupillage in 1959 (previously pupillage had been voluntary though very common); six years later, it prohibited pupils from taking briefs during their first six months. Although the pupillage fee declined in importance after World War II and was abolished in 1975, maintenance during this year remains a serious problem, since no government grants are available, Inn scholarships are few in number and inadequate in amount, and briefs are difficult to obtain even in the second six months. Furthermore, a bottleneck has developed as the number seeking pupillages has multiplied rapidly while the number of barristers willing to act as pupilmasters has remained constant. Although the Bar maintains that every intending practitioner is placed, competition has intensified, and personal contacts and ascriptive characteristics clearly weigh heavily.

Second, and more important, the Bar requires every private practitioner to obtain a tenancy (a place in chambers from which to practice). Like pupillage, this became a problem only recently. In the nineteenth century, fledgling barristers simply opened their own chambers; this would be prohibitively expensive today, and in any case a new barrister practicing alone would attract very little business. In the early twentieth century, natural attrition in a relatively static profession created space for all who wished to enter; however, the rapid growth in the number of Bar students and pupils in the last two decades has disrupted this accommodation. The problem of tenancies is unique to England as well as to the postwar period: advocates in Scotland and barristers in some Australian states practice individually, and office space and assistance by a pool of clerks are available to all new entrants. By contrast, the present shortage of tenancies in London is both severe and chronic. Until recently, all London chambers were located in one of the Inns; even now only five of the more than 200 London sets have moved outside, and several of those also are "outsiders" in terms of political orientation or racial composition. Chambers within the Inns are grossly overcrowded, however, partly because the Inns traditionally have leased much of their space to residential or other commercial tenants. In the six years between 1975 and 1981, when the Bar grew by 28 percent, available space in the Inns expanded only 8 percent. As a result, every year since 1965 there has been a shortfall in the tenancies available to barristers completing their pupillages, sometimes by as much as 50 percent. More than 100 qualified barristers (approximately a third of the

number starting practice annually) have occupied the amorphous status of floaters ever since the Senate (the umbrella association of barristers) began keeping records in 1974. This physical shortage of space (which is largely the Bar's own doing) has greatly intensified competition for entry, increasing the weight that heads of chambers give to ascriptive qualities in accepting tenants and discouraging many students and pupils from entering private practice.

The third barrier confronting the qualified beginner also is peculiar to the Bar: because private practitioners cannot be employed, they must find business on their own. The difficulties of doing so remained acute in the early postwar period: most barristers lost money in their first year and made only a nominal amount in their second. Not surprisingly, almost a third of those who entered practice in 1950/51 had abandoned it five years later. And between 1955 and 1959, the number of barristers with less than ten years of experience who left practice ranged from half to three-quarters of the number entering practice that year. In this respect (and others), barristers resembled small-scale entrepreneurs, most of whose businesses fail, rather than professionals, who make a lifetime commitment to a career (although some barristers who leave private practice continue to use their legal skills as employees in the public or private sectors). Yet, the situation of the novice improved dramatically in the 1960s and 1970s as a result of the growth of legal aid, which ensured at least a minimum level of subsistence. Juniors (barristers who are not Queen's Counsel) with less than nine years of experience, practicing at the family, common law, or criminal Bars in London, or on circuit, obtained between 59 and 72 percent of their incomes from public sources (both legal aid and prosecution briefs) in 1974/75. Consequently, departures from practice of those with less than ten years of experience dropped dramatically after 1959; although absolute numbers have risen slightly since 1976, they still represent only a tenth to a quarter of those starting practice.

Solicitors responded differently to the postwar environment. The principal ascriptive barrier to becoming a solicitor—articles—underwent significant change. Out-of-pocket costs fell when Parliament abolished the stamp duty on articles in 1947 and premiums gradually disappeared about 1960. The length of articles was reduced by a year for both graduates and nongraduates; however, since the former now greatly outnumber the latter, the effective period of apprenticeship has been cut from five years to two. More importantly, clerks began to receive salaries: £200 in the 1950s, £500 in the 1960s, £1,600 in 1976, and £3,000 to £4,000 today, although this still is insufficient for maintenance. However, obtaining articles (like finding a tenancy for a pupil) has become a significant problem for the first time. Because the number of law graduates seeking articles increased rapidly, while the number of solicitors qualified and willing to take on clerks

remained fairly constant, competition for articles intensified. Firms today receive dozens of applications for each position, students write even more letters in order to obtain a place, and those with contacts fare far better than do those who use more universalistic methods, such as the Law Society Register or a university appointments board. The scramble for articles serves both to distribute law graduates across the hierarchy of solicitors' firms and to discourage those with poorer degrees earned at less prestigious institutions from seeking to enter private practice.

Primarily for symbolic reasons, the Law Society has refrained from formalizing the academic barriers to entry. It still is posssible for mature students to become solicitors without obtaining A levels (examinations taken at the end of secondary school), although the proportion of entrants who do so is insignificant. Similarly, a university degree is not required, although more than 90 percent of new solicitors now are university graduates, and almost all of these are law graduates (compared with only a quarter in 1949). The two branches thus have converged in fact, if not in rule. All aspiring solicitors, like all barristers, must complete a vocational year; but almost three-quarters of the students at the Law Society's College of Law in 1980 had received local authority grants (although the proportions have dropped as the Thatcher Government has placed ceilings on local taxes and cut grants to local authorities). The rapid growth in the prevalence of legal education also has reduced the significance of professional examinations in controlling quality and numbers. The nine out of ten entrants with law degrees are exempt from the Common Professional Examination (CPE), which replaced the Intermediate Examination in 1980 and which, despite its name, is taken only by aspiring solicitors. More importantly, the high proportion of examinees with a legal education seems to be correlated with a rise in the pass rate on the Final Examination from an all-time low of 48 percent in 1952 to a high of 74 percent in 1977—a level approaching that of the Bar Final, which historically has been much easier. Yet solicitors still are more serious than barristers about ensuring technical competence. The Law Society has imposed a requirement of forty-eight hours of continuing education in the first three years of practice; the Senate, on the other hand, told the Royal Commission that postqualification education would not be "appropriate" to the circumstances of the Bar.

Both branches of the profession thus have lost to academic legal education much of their control over the production of producers. It would be difficult to overestimate the importance of this transformation. First, it is a transfer of the locus of control: from professionals and their associations to universities and polytechnics and the governmental bodies that determine their enrollments and funding. Second, because public education consis-

tently has been more universalistic than private associations or individuals, this transfer largely eliminated the principal ascriptive barrier to the profession: the exclusion of half the population on the basis of gender (just as the growth of American law schools in the early twentieth century opened that profession to the sons of immigrants). Half a century before Parliament compelled the profession to admit women and long before the academy became the principal mode of professional qualification, University College, London, allowed women to read law. In 1967, when women constituted 5 percent of the Bar and 3 percent of solicitors, they were 17 percent of entering law students at university and 11 percent at polytechnics. They were 45 percent of all domestic undergraduate law students enrolled in universities in 1983/84 and 47 percent of full-time domestic law students admitted to polytechnics for the fall term in 1984. Women thus reached virtual parity with men inside the academy in about two decades.

The third element of this transformation in the institutional structure of control is the growing heterogeneity of the academy. Prior to World War II, academic legal education was concentrated at Oxford, Cambridge, and the three London colleges, which together enrolled three-quarters of all students; the remainder (mostly articled clerks preparing for Law Society examinations) were distributed among the seven older provincial universities. By 1980/81, Oxbridge had fallen to 12 percent, London (even with two more faculties) had 9 percent, the older provincial universities enrolled 24 percent, eleven other universities (both pre- and postwar) had launched law courses with 22 percent of the students, and the twenty-four new polytechnic law programs enrolled a third of all students. Not surprisingly, the convergence of three factors—a government eager to provide social services (of which education was a relatively inexpensive example), universities and polytechnics interested in expanding, and women determined to pursue careers—produced a dramatic increase in law enrollments, perhaps the most dramatic ever experienced in any country (see table 1). In 1938/39 there were 1,515 undergraduate law students; in 1980/81 there were 12,603 full-time students (and another 3,375 part-time, external, or mixed-degree students)—more than an eightfold increase. In the United States, law school enrollment expanded more slowly even during its period of most rapid growth (1890 to 1927) and has increased only threefold since World War II.

Although supply control had been transformed, it still was being exercised—if now by the academy. Law departments received between ten and twenty applications per place in the 1970s; although much of this imbalance is explained by multiple applications, little more than 40 percent of all applicants obtained a place anywhere. Furthermore, admission is not

tantamount to graduation. Although at least nine out of ten university law students graduate (perhaps as many as nineteen out of twenty), only three-quarters of full-time and about a third of part-time polytechnic students complete their courses.

UNPRECEDENTED EXPANSION

Let me summarize these changes in control over the production of producers as a preface to examining their consequences. Out-of-pocket fees, which had been a significant barrier in the nineteenth century, diminished in importance in both branches. The formal educational requirements of the two branches converged in a law degree and a year of professional training, while local government grants became widely available to defray the cost of the former, if not always the latter. The solicitors Final Examination came to resemble the Bar Final as a hurdle that most law graduates could expect to overcome. In addition, the attrition of qualified barristers during the early years of practice because of insufficient business declined with the growth of legal aid. Nevertheless, significant differences still separated the two branches. If it was difficult to obtain apprenticeships in both, it was more difficult to find a pupillage. Articled clerks could expect to live on their salaries; pupils had to rely on other sources of income. More importantly, there were enough jobs for most who wanted to be assistant solicitors but not nearly enough tenancies for beginning barristers.

These changes in the structure of supply control had an extraordinary impact on the rates of entry into the two branches after World War II (see table 1). Although there was some catch-up in starts at the Bar for the first five years, the numbers began to decline by 1950. The efficacy of supply control is visible in the fact that the Bar actually shrank each year from 1955 to 1961, a total decline of 5 percent, and the 1950 rate of entry was not attained again until 1965. Then the transformation described above began to take effect as the number of first law degrees increased from 1,072 in 1965 to 3,564 in 1980, or 232 percent. Starts at the Bar, which averaged 104 a year between 1955 and 1964, rose to 150 between 1965 and 1969, 246 between 1970 and 1974, and 317 between 1975 and 1984—a threefold increase. The total number of barristers in private practice, which declined at an annualized rate of 0.7 percent between 1954 and 1961, increased at 3.5 percent a year between 1961 and 1969 and at a staggering 8.2 percent a year between 1969 and 1978, before slowing to 3.2 percent a year between 1978 and 1984. The number of private practitioners increased from 1,918 in 1961 to 5,203 in 1984, or 171 percent. Yet, the lower rate of growth in the last five years suggests that the Bar did not

entirely lose control over supply, and the decline in the ratio of starts to calls (among barristers domiciled in the United Kingdom) after 1975/76 is consistent with my contention that the Bar's restriction on the number of tenancies remains a significant barrier.

Solicitors display a pattern of growth that is similar in gross but different in detail. The postwar catch-up, during which an average of 900 solicitors were admitted a year, ended in 1950. For the next fourteen years, average annual admissions fell to 701, as a result of which the profession grew at an annualized rate of only I percent during the 1950s. Thereafter admissions increased rapidly: an average of 1,120 a year between 1965 and 1969, 1,777 between 1970 and 1974, 2,391 between 1975 and 1979, and 3,380 for the first two years of this decade, before declining, to 2,522 between 1982 and 1984. As a consequence, the profession grew at an annualized rate of 2.4 percent between 1959 and 1968 and 5.9 percent between 1968 and 1982, although growth has fallen off in the last two years. The total number of solicitors increased 139 percent between 1959 and 1984.

Although barristers and solicitors have shown similar periods of stasis and change in the last four decades, the differential impact of the postwar environment on their strategies of supply control also is apparent. Because the Bar relied so heavily on ascriptive criteria, it could offer less resistance to the increasing dominance of meritocratic ideology; and given its much smaller base, its rate of growth inevitably was much higher. However, control over the number of tenancies by the Inns and by heads of chambers was able to slow the growth of the Bar five years before the growth of solicitors began to decline. The same forces that produced the unparalleled rate of expansion in both branches during the 1960s and 1970s also explain why that expansion has levelled off. Law student enrollments, which have become the principal bottleneck, are relatively flat (see table 1). Whereas university enrollment increased at an annualized rate of 9.9 percent between 1961 and 1976, it increased at only 1.2 percent thereafter; polytechnic enrollment rose at an annualized rate of 65.9 percent between 1970 and 1976 but at only 7.0 percent between 1976 and 1980. Undergraduate enrollment in both university and polytechnic law departments declined slightly between 1982/83 and 1983/84. Furthermore, the entry of women into law departments, which explains much of the growth of these departments, has stabilized at just under half. We can expect both branches to continue to grow for several more decades because the rate of production will outweigh deaths and retirements in the much smaller cohort of older lawyers: over the last ten years an average of 2,540 solicitors have been admitted annually, but only 1,107 have left practice; 314 barristers have started but only 124 have left. The rate of growth will remain con-

stant and gradually decline, however. In a sense, supply control has been reestablished through a new mechanism—formal education—and at a new level.