The Legal Profession, Education, and Thought

Growth and Diversity of the Contemporary Bar

Since 1950 the ranks of lawyers have swollen dramatically, far outstripping population growth. The legal profession became increasingly financially attractive and its services correspondingly more in demand. In 1960 there were 286,000 lawyers; in 1987 there were about 690,000 men and women practicing law, or about one lawyer for every 350 people in the nation, a ratio unrivaled in the rest of the world. The entrance of women into the profession contributed more than anything else to this growth. Women in 1987 constituted about 14 percent of all lawyers, up from 2.5 percent in 1950. ⁶ The great upsurge in female law students came in the 1970s, a reflection of women's raised professional consciousness and a strong job market for lawyers. In 1968 about one- tenth of the law students were women; by 1982 women composed close to one-half of all law students. Yet in 1987 women remained dramatically underrepresented in major law firms.

Blacks made only marginal gains. By 1969 they composed 12 percent of the national population but only 1 percent of the bar, and they were grossly underrepresented in law schools. The civil rights activism of the 1960s made only a slight difference; by 1984 only 2.6 percent of the bar was black. ⁷ Furthermore, once they gained admission to the bar, blacks continued to experience discrimination. "While the ethics of the profession support the ideal of equal justice for all," a report on black lawyers in Chicago during the early 1970s concluded that "black Americans meet both direct and indirect discrimination when they seek to obtain legal training and later attempt to establish themselves within the metropolitan bar." ⁸

Racial and gender distinctions still have validity, but religious and ethnic taboos have disappeared. Jews and Catholics by the late 1960s became fully integrated into law practice and legal education. "There was still a hint of anti-Semitism among the larger firms in the 1960s. By the 1970s, no such discrimination was generally thought to exist; moreover, the majority of law students at many elite schools were Jewish. " ⁹

The demands for a more open profession emanated from younger and less established lawyers, from liberal activists of the 1960s who were anxious to extend legal services to the poor and minorities, and from public-interest lawyers associated with the consumer movement who wanted to reduce legal costs by encouraging competition. The ABA and state bar groups responded to these demands by attempting to balance the economic self-interest of the bar against the undisputed existence of "a vast neglected public for whom legal services were unavailable." ¹⁰ The ABA in 1969

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adopted a new Code of Professional Ethics, which repudiated many of the laissez-faire, guildlike assumptions of earlier codes. The new code nonetheless asserted that the obligation to provide legal service remained a matter of individual responsibility; it discouraged most group practices by salaried lawyers in clinics, and it strictly limited advertising.

The Supreme Court did what the bar refused to do. In Goldfarb v. Virginia ( 1975), the justices held that minimum-fee schedules imposed by state bar associations violated antitrust laws, clearing the way for the establishment of cut-rate law clinics. ¹¹ Two years later, in Bates v. State Bar of Arizona, the Supreme Court ruled that the bar association codes against advertising violated First Amendment rights to "commercial" free speech. ¹² The decision inspired the creation of many more legal clinics, some even in local department stores and shopping malls. The decision also prompted the ABA and local bar groups to acknowledge that "competition and professionalism" were compatible. ¹³

The Johnson administration directly involved the federal government in the delivery of legal services, an activity long advocated by the National Lawyers' Guild and steadfastly resisted by the ABA. Congress in 1964 created the Office of Economic Opportunity (OEO) to fight the War on Poverty, and under it the administration launched a small program that made grants to lawyers willing to establish storefront neighborhood law offices. Two years later, Congress created the Legal Services Office within OEO, which later became the Legal Services Corporation.

Federally sponsored legal aid became the cutting edge of the public-interest law movement, which was composed of lawyers who pursued civil rights, poverty, consumer, and environmental issues. The objective of the public-interest law movement was to make the United States more democratic by making the law more responsive. Public-interest law meant more than safeguarding rights; it meant direct legal action to bring about social change. At its peak, OEO scattered nearly twenty-five hundred lawyers in three hundred communities to provide representation to more than one million clients. By the 1980s, after sustained attack by the Republican administrations of Richard Nixon and Ronald Reagan, federal legal services had shrunk considerably, blunting the cutting edge of one of the Great Society's most effective (and controversial) programs.

Conventional legal practice also changed. A large firm at the turn of the century had been composed at most of ten members. By 1983 there were 183 firms with more than one hundred lawyers. Solo practice remained an important aspect of the profession, but one that gradually lost ground. In 1951 60 percent of all practicing lawyers practiced alone; twenty-six years later, however, only one-third of a much swollen bar was in solo practice. The consolidation of law practice also meant that increasingly larger firms commanded an ever-greater portion of the dollars spent on legal services. The market share of firms with gross receipts of more than $1 million increased from 14 percent in 1967 to 20 percent in 1972, and to 38 percent by 1985.

Law became a gigantic business served by a larger, more competitive, and more socially representative bar than a century before. As a study of Chicago lawyers reported in 1982, "one could posit a great many legal professions, perhaps dozens." ¹⁴ Lawyers worked for huge firms, they practiced alone in small groups, and they served business in legislative and regulatory bodies.

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Legal Education

Law schools after World War II were flush with students studying under the G.I. Bill, a federal measure that was the beginning of the national government's expanding role in all levels of postwar education. The law rewarded veterans for their military service while easing their transition back into the peacetime economy. With student numbers up, state legislatures finally overcame their concern "that Abraham Lincoln had not been to law school." ¹⁵ Throughout the nation an almost uniform pattern of statutorily mandated education appeared, requiring an undergraduate degree followed by three years of legal education.

Law schools became much more selective in the late 1960s and 1970s as applicants lined up in unprecedented numbers. Students leaving undergraduate schools in the midst of civil rights, consumer, environmental, and antiwar activism expected that a career in law would equip them to meet the many injustices of U.S. society. The experience of the University of California at Berkeley School of Law was particularly instructive. In 1954 the law school at that institution accepted 70 percent of all applicants; in 1968 the acceptance rate dropped to 34 percent. By 1977 there were 126,000 law students, a figure larger than the total number of practicing lawyers in 1900. By the early 1980s the numbers flattened and then even dropped. A significant weakening in the economy combined with a widespread belief that there were too many lawyers made the increasingly expensive investment in legal education less attractive. In the wake of Watergate, moreover, the earlier correspondence between law practice and social justice appeared quaint. By 1988, however, applications once again soared, rising as much as 25 percent at prestigious law schools.

Once in law school, students often suffered from "intellectual ennui." ¹⁶ The traditional case method retained its hold, although many law teachers, influenced by legal realism, resorted to social scientific and noncase materials. Courses in legal ethics assumed more respectability in the wake of Watergate.

The most important curricular developments involved skills training and hands-on experience as supplements to the abstract case method. John Bradway in 1928 pioneered the legal aid clinic at the law school of the University of Southern California, and the program became so successful that he was invited to establish a similar program at the Duke Law School. Not until the radicalized 1960s did clinical work gain a foothold. However, in recent years, internecine warfare between "scholars," interested in pursuing in-depth research on legal topics, and "clinicians," anxious to equip students with skills, deadened the full and enthusiastic adoption of the law clinic concept. ¹⁷

Legal Thought and Theory

The tension between practice and theory also pervaded the postwar debate among legal scholars about the appropriate agenda for research and teaching. The consensus ideology of the era snubbed legal realism, although some scholars retained an interest in the relationship between social and legal change. But nothing emerged to replace realism in the 1950s and 1960s. Instead, legal thought of the period was "derivative and incorporative; previous assumptions were modified rather than rejected." ¹⁸ The emerging strands of legal thought returned to doctrine, gave emphasis to the policy-

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making function of lawyers, and stressed that law was based on "reason" rather than fiat.

The postrealist era dates from the publication in 1943 of a significant article by Yale Professors Harold Laswell, a political scientist, and Myres McDougal, a property law teacher. "Legal Education and Public Policy: Professional Training in the Public Interest" appeared in the Yale Law Journal. Laswell and McDougal integrated developments in legal thought since World War I into a "policy science" approach. ¹⁹ They sought to consider the need for moral values in both teaching and practice while retaining the realists' devotion to social science. Their emphasis on doctrine was a return to Langdell, but they also insisted that, because law students would someday become policy makers, legal educators had a duty to imbue in them a sense of social responsibility. The ideas of Laswell and McDougal laid the groundwork for the rise of the public-interest law movement in the 1960s.

Laswell and McDougal were, at best, able to "influence rather than restructure" law teaching and legal thought generally. ²⁰ Their approach was too abstract, too academic, and too costly to implement. It also ran counter to the nature and goals of the majority of law students and teachers, who persisted in viewing themselves as engaged in practical professional training.

The social upheavals of the 1960s were accompanied by conflicting trends in legal thought. At the University of Chicago, a "law and economics" school of thought, led by Richard Posner, held that law should be based on the efficient operations of the marketplace. The classical economic theory that lay behind the new school of legal thinking gave it a sense of certainty, which the realists had jettisoned, and a unity of purpose that had not been present since Langdell. At the same time, the critical legal studies movement of the 1970s and 1980s attacked both the ideology of New Deal liberal legalism, the consensus "policy science" approach, and the ideas of Posner. Its major figure was Roberto Unger at Harvard University, although the Conference of Critical Legal Studies, founded in 1977, gained a significant following throughout the country. "Class bias" and "gross disparities of bargaining power," critical legal studies scholars insisted, lurked behind a facade of "neutral and formal rules." ²¹ Though seemingly connected to legal realism, the critical legal studies movement was quite different in that it took seriously the idea (far more than the realists) that politics and the law were inseparable and that there was no autonomous rule of law. ²²

Date: 2015-01-29; view: 692