Across the world, millions of women experiencing violence and coercive control by an intimate partner turn to the law for help. Lawyers and justice systems ill-equipped to deal with this complex issue are often accused of missing, and even compounding, harms. Heather Douglas’s Women, Intimate Partner Violence, and the Law documents her study of this phenomenon. Her book is based on the results of a four-year study in which she conducted up to three interviews (n =178 interviews in total) with 65 female survivors of intimate partner violence (IPV) in Australia. Douglas sought survivors of differing backgrounds. All of the women Douglas interviewed had experienced a range of abuse from their partners, with 85% experiencing physical violence, and all some form of emotional or psychological abuse. For most of the women, the abuse continued after they left their partners, often during the study and in their interactions within the legal system. Financial abuse through actions that compound the cost of accessing the law emerges as a key theme.
Applying a feminist methodology, the book tells extended stories of women experiencing IPV. Through the perspectives of these women, the book provides a comprehensive overview of the system they encounter (child protection services, policing, courts, lawyers, and judges). The system-wide insights of this very well researched book cannot be canvassed here. Rather, this review considers the IPV survivors’ perspectives on Australian lawyers’ work. Douglas’s longitudinal approach provides an opportunity to hear how the women “construct their narratives about their interaction with the legal system and its actors and how this changes over time.” (P. 13.) What we read are “journeys [that] were harrowing, long, and expensive” (P. 2) and stories that illustrate the “messiness of the law.” (P. 6.) For example, Alex (not her real name) carefully recorded that she was required to attend civil and criminal courts on 31 occasions over a 6-month period. (P. 65.) The trauma experienced by Alex and many other women is exacerbated by the actions of their partner in filing unmeritorious applications, appeals or causing excessive delays through adjournments. The interviewees saw these as tactics motivated by a wish to control and abuse–“The courtroom is his playground,” Sandra said. (P. 166.) Douglas describes this as the “weaponization” of the legal system. (P. 182.)
In some cases, the system itself compounds harms where, for instance, women are provided with minimal information by the police about criminal charges that might impact family law applications, or the risk to those on a spousal visa of being deported when they end an abusive relationship. Legal processes, including legal actors, are often poorly equipped to recognise such dangers and ensure survivor safety. In many cases, legal abuses occur because of self-representation, yet lawyers are sometimes implicated in the abuses–acting on client instructions to prolong processes and adopting aggressive courtroom behaviours. Some women described unethical practices (such as lawyers contacting the other side’s client) and being pressured to inappropriately settle or withdraw from litigation in the face of a hostile opponent.
Yet lawyers’ professionalism is generally not faulted in these survivor accounts of systems abuse in Australia. Indeed, the women give mostly positive accounts of their own lawyers. This adds weight to international evidence of the importance of specialised training in IPV and adopting an ethic of care, which involves strategies of understanding the complexity of the client’s context and allowing the client to decide on what they seek from the law. These approaches assist survivors to persist with their legal actions, as much as providing legal expertise. This is not to say that the book espouses an ethic of care focused on relationships at the expense of seeking justice. There is strong evidence here that women expect their lawyer to assist in achieving results-–holding an abuser to account, securing a safe future-–while also valuing the professional who does not compound women’s trauma in their experience of the legal system.
Yet despite acknowledging a valuable role for a trained legal adviser, the book presents lawyers as a somewhat ambivalent presence in a complex and harmful system. In particular, Douglas highlights the cost of lawyers and of access to the legal system. While we have long documented the cost of lawyers, this is another detailed, client perspective on the compounding and wide-ranging nature of such costs. For instance, cost can lead to long-term detriments–some women described deliberately turning down better employment to keep their wage at a level where they could receive limited state-funded legal services, thus compounding their socio-economic disadvantage. In most stories, most women struggled to find affordable representation, changed lawyers and self-represented. Many described the actions of their ex-partner as adding to their legal costs and that “the lawyers didn’t seem to have any real way of protecting me from this legal abuse without it costing ME more money.” (P. 167.) This frequently led to stress, compounding debt, and sometimes inappropriate legal outcomes. This Australian experience is likely to be replicated in many other jurisdictions.
Many women adopted strategies to manage cost. One woman enrolled in a law degree “just to have access to all the legal databases,” contending that a deferred university debt was cheaper than up front legal costs (perhaps a less translatable Australian experience, P. 178). Others deliberately unbundled legal services by strategically accessing free community sector services for advice and document preparation, while raising money for a private lawyer to draft a key document or provide one-off advocacy. The disaggregation of tasks within multiple concurrent legal cases sometimes provided successful outcomes, and, significantly, allowed some to manage the pace of their interactions with the law. While this is consistent with contentions over several decades that unbundling legal services provides access to justice benefits, other women in Douglas’s study, particularly those with poor English language skills, described being at a significant disadvantage without consistent professional assistance. As others have argued, this is a nuanced and complex question, rather than a quick fix.
This leads to the second aspect of ambivalence about the lawyer role in the women’s long journey through the law: Douglas’s study suggests, as Rebecca Sandefur’s work has argued in the US, that lawyers might be most useful in simply providing routine procedural advice, connection and support in a system in which they are repeat players. Government-funded and private IPV specialist service providers are important sources of referral enabling women to avoid lawyers without appropriate expertise and keeping costs down. Indeed, in some instances of self-representation, women did better without a lawyer–achieving results that they had been advised were impossible and, in one case, by taking an action that would be professionally ethically unadvisable (removing a child from the jurisdiction to avoid a custody claim). Thus Douglas’s study seems to decentre survivors’ lawyers within a complex system. Douglas’s book does not aim to address ethical and regulatory issues faced by lawyers representing clients impacted by IPV. However, her system-wide, client-centred account provides an important set of challenges for the Australian profession practising in this field. These are ones we should consider seriously so that lawyers do not compound the harms, and the costs, of accessing justice.
Rima Sirota, Can Continuing Legal Education Pass the Test? Empirical Lessons from the Medical World
, Notre Dame J. L., Ethics & Pub. Pol’y
(forthcoming 2022), available at Georgetown Scholarly Commons
Mandatory continuing legal education (MCLE) is one of the most ubiquitous regulatory measures aimed at ensuring continuing lawyer competence. It is also one of the most critiqued. Over the past several decades, many lawyers and academics have argued that MCLE should be reformed, if not abolished. While MCLE requirements have so far largely withstood these attacks, recently, lawyer regulators seem to have developed a new appetite for doing things differently. A recent international survey of approaches to lawyer continuing competence observed, “lawyer regulators around the world have sought to improve the ability of CPD [continuing professional development] to improve competence in a number of different ways, increasingly moving away from a generic durational requirement.”
In light of these developments, Rima Sirota’s article, Can Continuing Legal Education Pass the Test? Empirical Lessons from the Medical World, is a timely contribution to the literature on lawyer regulation. Speaking of the American context, Sirota argues that “the mandatory CLE system in its current state is indefensible” given its high costs and the lack of empirical evidence suggesting that CLE leads to improved lawyer competence. (P. 3.) While others have previously made this general point, Sirota’s contribution stands out for her call to the legal profession “to take up the empirical challenge” of measuring CLE outcomes and her provision of a roadmap on how this could be done. (P. 45.) Moreover, the comparative approach taken by Sirota, which looks to the medical profession’s approach to continuing education for potential insights, provides a fresh take on long-standing concerns about MCLE in the legal profession.
The article begins by setting out how MCLE is “an enormously expensive undertaking, [that] has been subject to virtually no empirical study since its inception and remains mired in a pedagogical model that has been largely discredited by adult learning experts.” (P. 3.) This critique is likely familiar to many readers—as declared in a recent law blog, “CLE being terrible is common knowledge.”The clarity in Sirota’s writing, however, as well as her extensive sourcing, result in a usefully concise summary of the arguments against MCLE and the studies about MCLE’s effectiveness conducted to date. For those outside of the United States who are considering the value of continuing MCLE requirements in their jurisdictions, this synopsis may be particularly useful in informing their deliberations.
Noting that “no continuing education field has received more empirical attention than medicine,” Sirota then describes the ways that continuing medical education (CME) providers in the United States have robustly incorporated effective adult learning practices into their CME content. (P. 17.) She notes, for example, “such diverse activities as simulations, reflection-based exercises, case-based self-assessments, reading modules, and opportunities to learn alongside nurses, social workers, pharmacists, and other non-physician members of patient care teams.” (P. 21.) Beyond the diversity of offerings, Sirota highlights how CME content has evolved deliberately and in response “to decades of scholarship that examines every facet of physicians’ career-long learning.” (P. 17.)
Drawing on this rich body of CME scholarship, Sirota then sets out a new roadmap for research on the impact of CLE on lawyer competence. In her roadmap, she proposes a focus on one specific area of lawyer competence: client communication. More particularly, Sirota suggests that researchers study “CLE’s potential to impact lawyers’ ability to communicate effectively with their clients using client-centered techniques.” (Pp. 26-27.) While there is existing work by legal empiricists on the value of client-centered communication skills, and many CLE courses addressing client communication, Sirota notes that “no headway has been made regarding CLE’s ability to teach those skills.” (P. 36.) In other words, “[m]issing…are empirical studies exploring how desired communication skills can best be taught in a CLE format and whether such teaching can result in real-world impacts to client experiences, client outcomes, and complaints against lawyers.” (P. 38.) Such empirical studies have, however, taken place in the medical realm, as Sirota details, and can be a fruitful reference point for CLE researchers.
Moreover, Sirota suggests that CLE researchers adopt a methodological approach commonly used in CME effectiveness research: the “Kirkpatrick Model.” This model measures effectiveness at four different levels: “(1) the extent to which the learner feels satisfied with the CME program; (2) the extent to which the learner gains and retains knowledge from the program, (3) the extent to which the learner’s practice improves, and (4) the extent to which the learner’s patients experience improved health outcomes.” (P. 22.)
Sirota acknowledges certain challenges with applying the Kirkpatrick Model to study whether CLE programming can effectively teach client-centred communication skills. Although it would be relatively straightforward to measure the first level of the model – lawyer satisfaction with such courses – studying the other levels would be harder. Lawyers may be reticent to spend the time, and subject themselves to the necessary scrutiny, required to evaluate how CLE courses have impacted their knowledge of client-centered communication skills (Level 2). As strategies to address this potential barrier, Sirota notes that studies involving doctors have sometimes used extra CME credits, fee waivers and options for personal feedback as incentives and that “such enticements should be attractive to lawyers as well.” (P. 40.)
Additionally, Sirota notes that concerns relating to client confidentiality would likely arise in trying to assess whether CLE has improved how lawyers communicate with their clients or has led to better client outcomes (Levels 3 and 4). However, she tackles such concerns directly and, while not dismissing their seriousness, she is generally optimistic that they can be adequately addressed. On client confidentiality, for example, she points out that legal empiricists have grappled with this issue in other contexts and have developed anonymization methods that appear to work well.
Ultimately, Sirota sees two choices for the future of MCLE: the legal profession must either (1) “take up the empirical challenge” and provide evidence of MCLE’s effectiveness sufficient to support its continuation; or (2) end MCLE altogether. Her article focusses on how to pursue the first option.
However, one might wonder whether there is a third option that is not acknowledged by Sirota: can MCLE be justified in the absence of empirical evidence “proving” its worth? Stated otherwise, what if the reason that we lack empirical data on CLE effectiveness is because the topic is simply not well suited to precise empirical measurement?
Evaluating the quality of legal services is notoriously difficult. Attempting to demonstrate a causal link between specific educational initiatives and changes in quality of service generates even more challenges. To date, one way this difficulty has been addressed is by using post-CLE changes in client complaints and malpractice claims as a proxy for changes in legal service quality. But this is a highly imperfect measure. Numbers of claims and complaints against lawyers can fluctuate for various interrelated reasons. Moreover, measuring claims and complaints will tend to capture only those who have fallen below minimum standards of practice and will not reflect the full range of potential CLE impacts. While CLE can assist lawyers in not falling beneath the floor of their professional obligations, it also can help them reach higher. It has the potential to make good legal professionals even better, with tangible benefits accruing to their clients. These types of improvements are not well captured by counting complaints and claims from year to year.
To be sure, the Kirkpatrick Model provides at least a partial answer to such concerns: even if it is not possible to measure Level 4 outcomes, there are three other aspects of CLE effectiveness that can and should be examined. In pointing readers to the Kirkpatrick Model and a multi-leveled way of evaluating CLE effectiveness, Sirota does a great service by presenting a ready-made framework to introduce more nuance into this area of empirical research.
Perhaps also, however, we need to acknowledge that not all beneficial consequences of regulatory measures, even potentially significant ones, can be “proved” through rigorous study. Such recognition arguably stands in tension with the thoughtful, and in my view, needed, calls for lawyer regulators to take up “evidence-based regulation.” But commitments to evidence-based regulation need not be abandoned in the pursuit of evaluation models that incorporate both empirical and normative measures, as well as nuanced views of the limitations and benefits of empirical research. No doubt, questions about empirical evidence for regulatory measures should be raised and such evidence gathered where obtainable and appropriate. At the same time, however, we need to be clear-eyed about the limitations of such evidence and ask good questions about what the available data is actually telling us (or not telling us). Moreover, in evaluating lawyer regulation, we should also be careful to not completely throw out reasoned appeals to considerations that are not readily reduced to data points, such as, for example, enhancing professionalism, building community, boosting public confidence in the profession and fostering inclusion and innovation. While such values can be, and have been, shields for “bad” regulation with discriminatory or protectionist ends, they can also justifiably be part of the reason that lawyer regulators adopt policies and approaches to issues. Empirical study can yield important insights about lawyer regulation, but it should not necessarily be taken to be providing the full picture.
None of these final ruminations are meant to detract from the bottom line of this Jot: in offering a timely, fresh and pragmatic intervention into the MCLE debate, Rima Sirota’s article is well worth a read and reflection.
In a Tai Chi exercise, two people stand face to face, each with one palm outstretched an inch or two apart. One person moves their hand and the other seeks to follow it wordlessly. The exercise is designed to produce a feeling of the energy flowing mysteriously between two people. I was reminded of this exercise when reading Meredith Rossner’s article on remote courts which moves deftly between the sociology of co-presence, ritual, and entrainment, which is “the synchronization of mutual attention, emotion, and behaviour,” to test the potential of virtual justice.
Rossner argues virtual courts can “translate,” improve, and sometimes “completely reimagine” court ritual. The article illustrates some paths to be taken between tech evangelism and traditionalism. It shows how thoughtful and well-researched court design can (sometimes) allow remote justice to emulate and improve upon physical courtrooms. Material and symbolic court rituals can be translated into virtual contexts in ways more egalitarian and inclusive than the austere grandeur of higher courts and the dilapidated functionalism of everyday courts.
The piece challenges physical essentialism such as the idea that significant aspects of courtroom rituals are diminished when moved to a virtual space. Physical co-presence is not a necessary feature of successful communication. The online hearings studied, well-designed and managed, were not inherently “dehumanizing, hard to follow, and plagued by disruptive technology” (p. 339). Nor were interpersonal dynamics necessarily diminished in the remote context (a contrast Rossner makes with more coercive and exclusionary approaches taken in criminal justice environments).
Rossner’s article is based on two empirical studies of virtual courts. One was an evaluation of a real online pilot in tax, civil, and family hearings in England and Wales. In this study, 41 hearings (some not online for comparison) were observed and 90 interviews were conducted with parties, lawyers, and judges. The second study was more innovative, involving a large simulated criminal trial before 445 mock jurors. “Working with architects, designers, and engineers, researchers adapted a real courtroom in Sydney, Australia to create a virtual, or what they termed ‘distributed’, court.” Mock jurors watched the same trial but were randomly assigned to one of four approaches altering how the accused participated (did they sit with their lawyer and did they alone participate remotely or did all parties participate remotely). The judge and jury sat in the courtroom for each of these. Jurors reported their verdict preferences and assessments of the defendant, witnesses, counsel, and measures of trial dynamics.
In both studies, the process of translating physical hearings into virtual counterparts was apparently not profoundly transformative. Respondents in the studies generally felt that the processes adopted were like courts, just on a video conferencing platform. An aspect of the pilot program’s design was that litigants were brought considerately and carefully into the virtual courtroom through a combination of a managed pathway and court staff support. The piece takes us beyond a critique of fetishizing physical court appearances whilst showing how the quality of the virtual experience relies on the physical (and technical) environment in which virtual participation actually takes place. Participants advised on preparing the space from which they would participate was a marked contrast to the lack of privacy and obtrusive “soundscapes” of some criminal justice contexts of other remote justice experiments.
The intellectual heart of the article evaluates justice rituals using the concept of entrainment. This provides a fresh counterpoint to procedural justice approaches, focused on interaction, turn-taking, and communicative rhythm, evaluated through observation, interview, and survey work. Lay participants in the pilots reported feeling at ease and “in control” in their own surroundings. Mock jurors reported courtrooms were “comfortable, respectful, and welcoming,” and “significantly less isolating.” Juror assessment of flow and rapport were not apparently affected in the (technologically sophisticated) online courts they simulated. Evidence that entrainment is not reduced in a virtual court was suggested too by jurors being no more likely to return a guilty verdict in video vs. in-person conditions. Interestingly, a defendant isolated in a dock in a physical courtroom was most likely to be convicted. In other words, the design of a traditional physical environment seemed as or even more problematic than a shift into the virtual.
Rossner argues that a sense of judicial formality was satisfactorily created through the use of logos, judges appearing from courtrooms, and the behavior of the judge herself, but also through the careful design of managed pathways into online video conferencing hearings. Her data suggests judicial authority was not necessarily undermined by online-ness. A toning down of the austere physicality of the courtroom led to something more neutral and potentially egalitarian. Both lay and professional participants felt virtual court were appropriately formal, although judges were less sure.
Rossner recognizes she is assessing a conservative implementation of virtual justice. The processes, iconography, and video locations are largely based on existing approaches. There is a strong sense, on my reading, that the success of virtual hearings depends on their orchestration by judges. Introductions to hearings, and communication with the parties, were handled with particular care because of the limitations posed by onscreen communication. We do not know if what the researchers observed was judges behaving well for a pilot program or an inherent feature of technology. Like a speed bump slowing a car, speaking to a screen with multiple participants may make communication more careful—better even. Or it may have been that judges were simply being extra careful to demonstrate professionalism since they were new to the online format while also being researched.
The article has a keen sense of the spatial and the sociological, and a balanced yet challenging approach to academic orthodoxies of pro- and antagonists. Rossner elegantly contextualises her findings and the studies’ limitations. The ephemerality of co-presence, difficulties with eye contact in normal video-conferences, digital divides and technological barriers to success are well-explored. Genn’s worry about seeing “court merely as a service rather than as a public, physical site of justice,” remains but an emphatic question mark is placed over the word physical. For me, Rossner’s work does prove the potential for physical space to be important—it may inhibit some of the uglier reflexes of bureaucratic justice for instance—but time, individualized communication (good judging!) and public accountability may be more important determinants of justice experiences than physicality. Rossner persuasively casts doubt on the idea that physicality is essentially or necessarily superior and that virtual courts are necessarily “spartan, and technocratic” if well-designed and operated.
This mammoth (858 page) book, The Intellectual Sword: Harvard Law School, The Second Century, is the sequel to the same authors’ On the Battlefield of Merit: Harvard Law School, The First Century. That volume broke the boundaries of conventional institutional histories, which are mostly coffee-table celebrations of successive deans and of the buildings erected during their tenure. The authors situated the Harvard Law School (HLS) in the middle of ferocious party-political struggles and the Civil War. They produced the most thorough and searching description and analysis of C.C. Langdell’s famous experimental reforms of the 1870s and 80s in legal education. And they advanced the argument—pursued at much greater length in their new book—that HLS set the template not just for legal, but for professional education generally in the 20th century.
The structural argument. The central argument of the book is that financial structure determined the character and destiny not only of HLS and other American law schools, but to some extent of medical and business schools as well. HLS from the start was locked into a syndrome of dependence on tuition for revenue, which meant that it had to admit a large number of students. To service those students, it had to hire more faculty and acquire more building space, to pay for which it needed to continue to keep its enrollments high. At the same time, to maintain quality and plausibly certify its graduates as the cream of meritocratic competition, it had to flunk out many of the entering class and ruthlessly sort and rank those who remained. The results of high enrollments were very large faculty-student ratios and large classes, dependent on teacher interactions with the most aggressive and articulate students in them to keep Socratic dialogue going; a harsh boot-camp training method, leading to Darwinian competition; equation of “merit” (universal legal competence) with performance on first-year exams, and demoralization and alienation of the non-elite students.
Once the system of tuition dependence was established, it was hard to escape. It produced, the authors argue, an “illusion of prosperity”—law schools seemed to be rolling in money, because they could educate so many so cheaply. University presidents (except Yale’s) thus saw no need to subsidize them. At HLS the deans and faculty perversely converted high student-faculty ratios into virtues. For the professors, teaching large classes, and for the high-achieving students, competing and surviving in them, became proof of Spartan manliness and self-reliance: this ethic served as one of many excuses for not admitting women until the 1950s. First-year grades, Law Review editorships, and federal clerkships became unique signs of grace and qualification for faculty hiring. Many of the great majority of students whose grades did not qualify them for the elite were alienated and periodically complained about the Spartan system; but the faculty steadfastly continued to resist student demands for smaller classes and pass/fail options in grading.
This structural argument is very convincing and is buttressed by two interesting comparative chapters. Chapter 9 compares law schools to other major professional schools in medicine and business in the same era. All had initially the same structural problems as HLS (indeed partly so because of HLS, commonly pointed to as the successful model of professional education). The other professional schools, however, managed to escape sole dependence on tuition: business schools by attracting major donations from wealthy businessmen, medical schools by attracting philanthropic donations and government research funding. Kimball and Coquillette provide a dismal chronicle of HLS’s many attempts in the first half-century, often remarkably lackluster and incompetently managed, to raise money from outside sources. It could not attract much alumni or donor money drawn to charitable causes, since its graduates were presumed to make money; and the school was almost completely unable to make the case that its teaching and research functions were of benefit to society at large, rather than simply a vehicle conveying graduates to professional status and comfortable incomes. Not until the 1950s, when Dean Erwin Griswold improved the fundraising apparatus and personally reached out to alumni, did outside funding increase; and not until the 1990s, under Dean Robert Clark, did HLS run really successful capital campaigns. The occasional windfalls from donors were rapidly eaten up by new building costs and new programs, such as Roscoe Pound’s graduate program.
Another revealing structural chapter (Chapter 15, “The Harvard-Yale Game”) tells the history of the rivalry between HLS and Yale Law School. This chapter opens with some relatively familiar points: that the differences between the schools in legal theory are exaggerated; that Harvard was a pioneer in “law-in-action” and “legal realist” approaches, and in the study of administrative law and legislation (think Pound, T.R. Powell, Frankfurter, Landis), which came to be more associated with Yale; and that Yale was not really a serious competitor for able students until the 1960s and 70s. Yale eventually reaped its comparative advantages in a more favorable faculty-student ratio, and close and more informal faculty-student relations, because it could afford a deliberate decision to keep the number of admitted students low. This was because Yale’s central university, unlike Harvard’s, funneled it generous subsidies.
Unhappy deanships. The rather grim structural story frames much of the narrative. Every one of HLS’s deans between Langdell’s successor, James Barr Ames (who let the school’s finances drift and had to resign because of growing dementia) and Erwin Griswold, was “broken” by the strain of administering the school. Ezra Ripley Thayer committed suicide (when his health collapsed after he had graded 552 (!) exams in Evidence and Torts). Roscoe Pound, probably the most esteemed jurist in America at the time he took up the deanship, lost the confidence of his faculty in part because of weakness, vacillation, inattention to the school’s finances, and flirtation with Nazis. James Landis, following a brilliant career as New Deal administrator, broke down after an affair and divorce and was sent to jail for tax evasion. Griswold was the authoritarian, a heavy-handed but surprisingly flexible autocrat who rescued and rebuilt the school in the 1950s and 60s. One of the best features of this history is its measured, sympathetic but critical, treatment of this central figure in the school’s history. After Griswold, the unhappy history of deanships resumed: Derek Bok survived student protests over race and Vietnam to become Harvard’s President; but his successors, Albert Sacks and James Vorenberg, were plagued by faculty schisms and stalemates over appointments, related in the final chapters.
Political and social context. As with their Volume 1, the authors give much of their attention to political events and other social changes affecting HLS. U.S. involvement in World War I was short and barely affected the school. World War II effectively closed it down; but the huge influx of returning veterans financed with GI Bill money regenerated its finances. It also caused the school to reform its admissions policies: HLS took advantage of the rise in applications and the invention of the LSAT to shift to selective admissions rather than attrition as its chief means of quality control. But that change in turn meant that the school had to raise tuitions repeatedly to balance its budgets. The Vietnam War was, of course, very disruptive to the life of the school. The draft was a potential threat to every student and the escalation of the war and Nixon’s Cambodia incursion mobilized both students and many faculty in protest.
The book usefully gives a lot of attention to the ethnic, racial, and gender composition of the school. In the 1920s and 30s, there were quotas for both students and faculty, especially under Harvard’s President Lowell, who was determinedly anti-Semitic and saw his university as the breeder of a genteel ruling class. Dean Pound was a timid leader on these (as well as many other) issues, and some Jewish faculty were not hired as a result (This aversion to Jews seems to have mostly dissipated after World War II, when the faculty was repopulated with ex-New Dealers and Frankfurter protégés). The law faculty voted to admit women in the 1920s but were overruled by Lowell and the Harvard Corporation. Women were finally admitted beginning with 14 new students in 1950, despite Griswold’s belief that they were taking men’s places and likely to drop out reinforced by his frosty and formal response to their presence. HLS was slow to hire women to the faculty. Between 1971 and 1986, HLS hired 19 women with temporary or visiting appointments; but only two got tenure. Admission of Black and ethnic minority students was very rare for most of the period of this book, and hiring of Black faculty even more rare, notwithstanding some highly distinguished graduates like Charles Houston, William Coleman, and William H. Hastie.
Like the country, the school suffered through several Red Scares. Some alumni were very upset by faculty (Zechariah Chafee, Felix Frankfurter) support for radicals like war objectors and Sacco and Vanzetti in the 1920s, and tried to get the professors fired. Lowell defended them. More serious crises for the school arose in the 1950s. The most serious concerned two students, the brothers David and Jonathan Lubell, who joined the local chapter of the National Lawyers Guild. They were subpoenaed to appear before Senator William Jenner’s anti-Communist committee and pleaded the First and Fifth Amendments. At the time HLS’s position on testimony before such committees was that it was legitimate to invoke the Fifth only if the questions concerned actual criminal activity; and that if one did plead the Fifth, it would necessarily put one’s career in jeopardy. After their testimony, one of the brothers was eligible to join the Law Review, but a majority of editors refused to admit him. The Lubells’ story has been told before in bits and pieces: the version here is the most exhaustive. Its most interesting conclusion is that the Lubell case caused Griswold to change his mind about the proper use of the Fifth Amendment and to approve of its use even as a response to inquiries about non-criminal behavior. Coming from such a pillar of the establishment as the HLS dean, Griswold’s widely published views mattered considerably.
Another innovative section of the book is Chapter 18, “The World of the Students.” This attempts to recreate in detail the thick community of student organizations of the time—the proliferation of multiple law reviews, social clubs, and other ventures. It also reliably reports on the frustrations students repeatedly experienced at the faculty’s and administrators’ tendency to stonewall expressions of alienation and discontent over the huge classes, lack of feedback, lack of faculty-student interaction, evaluation solely by grades, and inattention to any but the highest-achieving students.
Conclusions. This is a very rich and interesting book. Its findings are supported on a massive bedrock of research: hundreds of papers written by law students (apparently as seminar papers for courses on the history of HLS) on specialized topics and multiple detailed oral histories of members of the faculty. The structural thesis by itself would make an important monograph. The stories of the administration of the school, of the rise and fall of its deans and their many tribulations, are high drama. The school itself is one of the key institutions of higher education and the legal profession, not only for its own achievements and standing, but because of its enormous influence on other schools. In the depth of its research, the originality of the questions it asks, the broad scope of the project, this book outclasses not only prior histories of the Law School, but professional school histories generally. It is also clearly and engagingly written, such that the detail informs rather than overwhelming the reader.
The reader—or at least this reader—feels the book comes up slightly short of an ideal history because of its relative lack of attention to two topics: (1) the intellectual content of the school’s scholarship and teaching; and (2) the character of the professional world for which the school’s graduates were being trained and in which they spent their lives in practice.
(1) What did the faculty write about, and what did it teach in the classrooms? A big component of Volume 1 is taken up with describing the substance and classroom performance of the case method, especially in Langdell’s Contracts classes. We don’t learn anything comparable about either scholarly production or classroom content in Volume 2. One would have expected more at least on the faculty projects that were the most distinctive and impressive forms of scholarship in the early 20th century, the great common law treatises like Williston on Contracts and Scott on Trusts; and the faculty’s contributions to codifications, Restatements, and the like. We’re told that Griswold was unhappy with the low productivity of the faculty and encouraged the production of casebooks—interesting, because by the 1980s and 90s casebook and treatise production were no longer seen, for the most part, as high-prestige forms of scholarship. The Legal Process course created by Henry M. Hart, Jr. and Albert Sacks was practically compulsory and hugely influential for 20 years It goes unmentioned here. What a reader would like to know is: What does a typical doctrinal article—or doctrinal class or casebook—look like in different phases of this story? The closest the authors get to intellectual history is in their accounts of Harvard’s contributions to legal realism and law-and-society empirical studies in Pound’s deanship and then again in their very brief discussions of the work of the Michelman Committee and the battles between Critical Legal Studies and traditional scholars in the 1970s and 80s—and these passages are necessarily (because of their brevity) somewhat superficial.
(2) HLS sent off its students into a world of practice and its basic reason for being was necessarily, as a professional school, its function as preparation for practice. Yet in law schools, much more than at business or medical schools, there has always been an odd disconnect between the academic and the practice world. Harvard simply never undertook to do practical training in a clinical sense—and as the authors show, even when clinics came into the school, they were kept at a safe remove from the primary educational function. Until late in the century, HLS deans and faculty never thought to ask: What do our students need to learn for practice? Instead, they believed they knew the answer: rigorous training in legal-doctrinal analysis, in “thinking like a lawyer,” was presumed to be a sort of universal competence. In this book, the profession is very much offstage—appearing only in cameo roles, mostly in the form of alumni not willing to give much money to the school (or complaining about Reds on the faculty). The book gives only a few numbers on career choices. Even in the 1970s, almost everyone was still going to corporate firms or clerkships on graduation! Griswold seems to have been content with the near-exclusivity of this private-practice career path, although he himself made notable contributions to public service. Anyway, 20th century HLS has always had a tight umbilical connection to the practice worlds of Boston and New York, particularly to the great corporate firms of Wall Street. And its macho, aggressive style of teaching-learning seems in tune with the notoriously abrasive world of New York City litigation practice and the firms’ grueling competition-to-partnership tournaments. Joel Seligman, in his muckraking book about the school, The High Citadel (1978), took for granted that the school was basically an annex of Wall Street and that the implicit message of its teaching and learning was support for the establishment of corporate law firms and their clients (That relationship came under some strain in the 1930s New Deal period, when Professor Felix Frankfurter hired many HLS graduates to staff the New Deal, and again in the 1960s-70s civil rights and antiwar periods, when HLS alumni helped to found the public interest bar). The stern meritocratic ethic of the Law School, which yielded predominantly Jewish names on every year’s masthead of the Law Review, was regularly betrayed when most prominent law firms refused to hire Jews until the mid 1970s. It is odd that a book on professional education should be so reticent about the professional worlds for which its graduates are being educated. Even while they are still in school, the job search claims the largest share of attention from students after the first year.
Notwithstanding these limits, this book is a major work of scholarship—forceful, original, compelling, highly readable.
When Stephen Vaughan and Emma Oakley interviewed 57 lawyers in elite London firms, they were struck by a general ethical apathy. They explore this apathy in their well-known article, “Gorilla Exceptions” and the Ethically Apathetic Corporate Lawyer, and conclude that a strong justification for this apathy, in the minds of the lawyers interviewed, is the standard conception of legal ethics. The standard conception excuses lawyers from moral accountability for clients’ actions, holding that it is not the role of lawyers to judge the morality (as opposed to the legality) of clients’ actions. For the lawyers interviewed this justification, invoked most commonly in relation to criminal defence lawyers litigating within the confines of the adversary system, held, even though most if not all of them were engaged in transnational legal work, the consequences of which have effect across the world.
Cesar Arjona’s article, The Usage of What Country: A Critical Analysis of Legal Ethics in Transnational Legal Practice, questions whether the standard conception holds up in relation to transnational legal work. You may think you’ve heard all there is to hear about the standard conception, but I urge you to read Ajona’s article. He revisits the constitutive assumptions of the standard conception and asks whether those assumptions remain valid when applied to transnational practice. Spoiler, they don’t.
The three assumptions Arjona considers are:
- A lawyer is the agent of a client-principal, both of whom are acting as “individual free moral agents.”
- The lawyer is “an advocate in an adversarial context.” Arjona allows that defenders of the standard conception see it extending beyond the litigation context, but he reminds us that this extension “implies the existence of a well-functioning rule of law system.”
- A reasonably well-functioning domestic rule of law system. Arjona notes that the vast majority of literature on legal ethics “is produced in countries that count themselves liberal democracies, [and that] such literature assumes the natural context for lawyers to work in a liberal democracy with rule of law and its concomitant features.”
Arjona examines these assumptions using as an example the Baku Tbilisi Ceyhan (BTC) pipeline, which was designed, built and then operated by an international consortium of energy companies. The pipeline carries oil more than 1,000 miles, across Azerbaijan, Georgia and Turkey, each country agreeing to the free passage of the pipeline under a series of agreements and an inter-governmental treaty. The legal structure underpinning the pipeline was created by private transnational lawyers, the leading firm of which represented the main corporate investor. The final legal structure gave remarkable entitlements to the consortium, while raising serious concerns about human rights, environmental protection, and state sovereignty (Ajona footnotes Abigail Reyes’ article Protecting the Freedom of Transit of Petroleum: International Lawyers Making (up) International Law in the Caspian, which explores these concerns in depth).
While Arjona explores in detail each assumption underpinning the standard conception, it is the third I want to highlight here. Recent versions of the standard conception justify role-differentiated morality on the basis that it is the role of the legislature, not the lawyer, to weigh competing moral interests and then make laws accordingly. But this assumption falls away when the lawyer is operating in jurisdictions where the rule of law does not operate robustly. Thus, lawyers involved in a project such as the BTC pipeline cannot adopt the standard conception “as a justificatory model when the basic elements of the rule of law are so severely compromised.” Instead, “in the absence of a clear rule of law system, one of the basic foundations of amorality collapses,” and therefore both client and lawyer are morally responsible for the client’s actions.
Simon Rice and I argued in Our Common Future: The Imperative For Contextual Ethics In A Connected World that in the absence of a domestic rule of law system of reference, lawyers must take into account the broader context of their legal work, including how that work affects those whose interests are adversely affected by it. Further, that it is incumbent on transnational lawyers to discuss those other interests with their clients, bringing competing values to the client’s attention. Arjona agrees that context is key, but, rightly in my view, critiques what he calls “the stakeholder approach”, in which lawyers themselves reflect on and discuss with clients the potential impact on others of the client’s instructions. Noting that global lawyers operate in “a messy world of legal pluralism,” that is full of “voids, ambiguities and contradictions . . . a legal wild west”, he sees the stakeholder approach as raising practical issues that, “in the sort of complex cases that transactional lawyers frequently confront, become virtually intractable.” In the BTC case, for example, “stakeholders” would have included governing elites, communities in different states along the pipeline route, workers (both national and foreign), neighbouring countries, the environment, consumers of oil and gas, future generations etc; in sum “a plethora of publics” with differing and sometimes opposing interests”.
Arjona does not offer either specific advice to lawyers on how they should operate in cases such as BTC, nor an alternative theory for the context of global practice. He considers though, that “the building of an alternative theory is certainly an important and urgent project.” Of course, much fine work has been done on alternatives to the standard conception within a rule of law system, which will offer insights for global practice. But, while Arjona does not offer solutions, his step by step demolition of the standard conception in the context of transnational practice is important. As Vaughan and Oakley’s work shows, lawyers practising across borders justify their ethical apathy by reference to the standard conception. Removing the “amorality shield” of the standard conception means that global lawyers will need to grapple with the fact that, outside of the rule of law system, and just like other professionals, they “are morally responsible for the interests they put their expertise at the disposal of, and for the kinds of arrangements they legitimize through such expertise.”
For many—perhaps most—law students, law school is hard and stressful; legal practice is similarly experienced by many lawyers. The stress of these environments can act as an incubator for mental health problems, which often are buried by lawyers and law students, occasionally surfacing in stories of anxiety, substance abuse, addiction, depression and suicide, among other things. At the same time, however, law students report high levels of satisfaction with law school and their career decision, as do lawyers, which complicates understanding the mental health trend. This paradox calls for new thinking about mental illness in law school and the profession, which Kathryne Young’s article, Understanding the Social and Cognitive Processes in Law School That Create Unhealthy Lawyers (Understanding Unhealthy Lawyers), pursues. It offers a different lens for understanding these issues by directing attention to how the organizational policies and structure of legal education negatively impact law students’ well-being and, ultimately, their mental health.
Young is particularly well qualified to address this topic, having written a popular book on law student happiness (How to be Sort of Happy in Law School (2018)). But while the book is a how-to for students, Understanding Unhealthy Lawyers frames the wellness and mental health problem in relation to the organizational structure of law school, and invites law schools and faculty members to reconsider certain longstanding and widespread policies and practices in legal education.
Young was interested in exploring the “nuts-and-bolts processes” that are reflected in changes in students’ motivations, hopefulness, happiness and overall mental health during law school. To learn about these, she conducted interviews with 53 law students (each interviewed twice) at 36 law schools during the first weeks of the 2020-2021 academic year: one interview occurred just before students began their first semester, and the second was about 3 to 6 weeks into the first term. Interviewees attended a wide range of law schools that varied in terms of location, ranking, and affiliation (public, private, religious). They included 37 women, 16 men, 28 identifying as White and 25 as non-White.
The interviews highlighted several common features of law school that shaped students’ early perceptions of fit, fairness, support and equality, among other things, and contributed to professional identity and “unhealthy professional development.” These include processes that shape interactions within and outside of classrooms and enable relationships to develop among classmates and with law school faculty and staff. Young found that students assimilate at least three lessons early in their law school experiences, each of which she sees as part of a “seed[ing] of unhappiness, poor mental health, inequality, professional dissatisfaction, and other problems that plague practicing attorneys [and] are sown in law school.”
First, the interviews offered insight into the ways students make sense of their experiences, or as the case may be, fail to make sense of them in contexts that merge law school and the outside world. For example, as students began the school year, the country was still reeling from summer protests over the murder of George Floyd, spotlighting unaccountable policing and racial injustice. Meanwhile, almost as soon as classes began, Justice Ruth Bader Ginsberg’s death and the ensuing political battle over the resulting vacancy captured public attention. Nevertheless, for most interviewees, these outside-of-law-school events remained outside of their formal learning in classrooms—a disconnection that Young points to as reinforcing a conception of professional identity as distinct from, and even in contrast to, personal identity.
Second, the interviews revealed how the mandatory curve used by nearly all US law schools creates dissonance for students, clashing with messages from law faculty and administrators about the importance of collaboration and supportiveness. Young’s interviewees explained that the curve contributed to their “developing a ‘public face’ in which they encouraged their peers and a more ‘private face’ in which they constantly evaluated themselves against their peers . . . .” One student described that she felt “almost excited when people get things wrong,” recognizing that this is “not . . . normal” and that it reflected her wanting to be “above the curve” although that was not her typical approach, admitting “I would never . . . want people to get things wrong.” Young relates these conflicts to the idea of self-efficacy: that students “have the ability to exert control over outcomes—[which] is significantly diminished when grades are curved.” The decline in self-efficacy means that “instead of concentrating on their own understanding [students] found themselves concentrating on how ‘smart’ other people seemed and evaluating themselves in relation.” Young describes self-efficacy as a positive quality for lawyers: it helps with learning, which is important throughout a lawyer’s career, and helps keep various mental health issues at bay. At the same time, she suggests, the curve interferes with students’ ability to develop and maintain self-efficacy during law school, setting them up for persistent challenges once they graduate.
Third, norms of classroom interaction set the ground rules by which students build reputations and relationships with classmates and faculty. However, these norms are not always transparent and perceptions of norms differed along lines of race and gender, as students tried to make sense of their classroom experiences. A description by one student, Xavier, of the way Socratic questioning unfolded in class was jarringly astute:
It’s kind of weird. Because it’s like—it’s a game show. You know, there’s the raise hand function [on Zoom], right? So there’s a professor, like before she even finishes asking the question—if she says something remotely sounding like a question, people start raising their hand[s]. . . . Somebody, let’s say somebody gets cold-called, and they’re having a tough, tough time. Like some guy raises their hand during the cold call.
This description, equally relevant to upper-level classes, shows how a basic student goal—to be recognized as contributing positively—comes to be seen as a competition, but not one in which all participants feel equally comfortable. In this regard, Young found that students’ perceptions split around race: while none of the White men in her study complained about this classroom dynamic, respondents who were not White men described it as “extremely rude.”
These different perceptions reflect both the particular culture of law school and the different ways it is perceived and experienced by different students. The rules of the law school game—from classroom interaction to what is recognized as relevant to the imposition of a mandatory grading curve—do not fall uniformly on students. To the contrary, race and gender, career goals and family background all play a role in how these typical practices and policies are experienced, and this list likely could be expanded to include national status, as well. Overall, Young found that as students struggle to understand law school in their first few weeks, they also struggle to find their place in this complex organizational environment and to connect to professional communities that include people with whom they can identify. Young’s interviews reveal “the myriad ways spaces that may seem innocuous to white people, and/or to men, are rife with interactions that . . . . illustrate the power of the law school classroom to sow seeds of inequality in the legal profession and to reinforce patterns detrimental to lawyers’ well-being.”
The message Young takes from this research diverges from currently popular remedial approaches that address law students’ stress. Rather than focusing only on treating and supporting students, she directs attention to the need for structural change. Law school policies and practices that have the effect of isolating students from classmates, distancing them from their pre-law school selves, and rewarding conduct perceived as unbecoming or rude are on her list of structural approaches that should be reconsidered. These approaches are presented as normal in law school, which reinforces the message that students should recognize and accept them as benign despite internal struggles, and in turn isolates and others students who experience them as problematic. These findings align with research on the legal profession, including, for example, work on the relationship of “organizational climates that require or at least glorify extreme work hours and . . . provide very little opportunity for workers to balance responsibilities in their competing life domains” and problems of “depression, stress, substance abuse and burnout that plague private-sector, big-firm lawyers . . .”
In future work, I hope Young will take up the paradox of mental health problems and the high satisfaction reported by law students and lawyers with law school and their legal careers. Combining these trends may reveal that legal education can maintain what students find satisfying and worthwhile about law school while also pursuing the “more transformative approach [that] is a structural one: Entertaining the possibility that if a pedagogical tool consistently produces negative results for certain people, perhaps the problem is with the tool, not the people.”
Structural forces, including workplace organization and policies, are a documented cause of inequality. These forces disproportionately burden and therefore contribute to the underrepresentation of women and lawyers of color in positions of power and influence, systematically reproducing the male, Caucasian hierarchy atop BigLaw’s equity partners. The lingering impact of these structural forces—counteracting the effectiveness of diversity, inclusiveness, and equity initiatives—has been a problem for BigLaw leadership for years. But what if, contrary to conventional wisdom, structural forces can instead increase—or at least not disadvantage—equality? In Accidental Feminism, winner of the American Sociological Association’s Distinguished Book Award from the Sociology of Law Section, University of California at Irvine law professor Swethaa Ballakrishnen explores this very intriguing question.
Presenting original empirical work collected in 2011-15, Ballakrishnen documents how, without adopting well-intentioned equality policies, India’s elite large law firms have become “accidental” feminist organizations featuring gender parity in their senior and equity partner ranks. According to the book, this surprising development was the result of a confluence of circumstances, “structural conditions that fortuitously have come together to create environments of emancipation for . . . women lawyers.” (P. 2.) First is organizational novelty: India’s elite law firms are, relatively speaking, young institutions, relying on a neoliberal attorney workforce educated in progressive law schools. Thus both the lawyers and the law firms are comparatively open-minded, even supportive of gender equality in the workplace. The second condition is globalization complete with an influx of capital and increased international demand for Indian legal services. Third and relatedly, accidental feminism depends on a receptive interactional global audience – India’s BigLaw are locally organized institutions doing work for global entity clients. Fourth, these conditions are all taking place in a particular cultural moment of close-knit family units and a caste-dependent labor force, which supplies women (and men) equity partners with affordable housework and childcare support system. Hence, Ballakrishnen establishes that India’s BigLaw’s feminism was accidental but not random.
Accidental Feminism is a must-read for anyone interested in competition and equality in the contemporary practice of law, and its findings raise a trove of fascinating questions that will intrigue practicing lawyers as well as scholars of the legal profession, only a few of which can be explored here.
To begin with, is accidental equality likely to take place in America’s BigLaw? Ballakrishnen’s analysis suggests not – or at least not as a function of the same mechanisms that seem to work in the Indian context. For example, whereas India’s BigLaw firms are new institutions recruiting lawyers educated in modern law schools embracing neoliberal values, many of America’s BigLaw firms are century-old institutions with a long and documented history of exclusion and discrimination, recruiting lawyers educated in old traditional elite law schools, which appear to do what they can to distance themselves from the teaching of any values, let alone neoliberal values.
Moreover, rather than facing ample steady demand for their services like their Indian counterparts, America’s BigLaw firms are operating in an increasingly competitive and unstable market emphasizing profits-per-partner that seems to undercut other commitments, equality included. Finally, while the commitment of global entity clients to gender equality should be acknowledged, it ought not be overstated. The commitment may be sufficiently deep-seated to support gender parity in India’s BigLaw and among the ranks of general counsel in Fortune500 corporations, but not to successfully tackle gender inequality among America’s BigLaw’s equity partners and in the C-Suites and Boards of corporate America.
While accidental equality is an unlikely result in the United states, Accidental Feminism does question the well-intentioned yet unsuccessful diversity, inclusiveness, and equity policies that America’s BigLaw firms have been pursuing for a generation. That India’s BigLaw firms did not set out to become feminist institutions but ended up producing gender parity suggests that the American obsession with intentionality as a cornerstone of understanding equality and inequality may be distracting and possibly unhelpful. Perhaps, implies Ballakrishnen, battling discrimination and devising diversity, inclusiveness and equity programs, equality advocates in the United States would be better served to focus less on intentionality and more on actual equality results, parity included. (P. 170.)
Speaking of parity, inquires Ballakrishnen, is it a desirable objective? In the American context, in which women lawyers and lawyers of color are systematically underrepresented in positions of power and influence, parity may plausibly and intuitively stand for greater equality, at least until we begin to approach it. The reality of parity practice in India’s elite BigLaw, however, forces an important and necessary introspection. Is gender parity among equity partners, for example, desirable? Are there opting in and out circumstances under which gender overrepresentation or underrepresentation among the professional elite might be appropriate? What might substantive gender equality in the workplace look like if the discourse moved past getting to parity?
And at what price ought we pursue parity? Accidental Feminism is a well-researched, well-written, nuanced book and Ballakrishnen is appropriately careful not to celebrate India’s BigLaw’s accidental feminism as a success story. Recall their pointing out insightfully that one factor explaining gender parity among India’s professional elite is its reliance on familial networks of support and the subjugation of a caste-dependent labor force. To be blunt, a necessary condition for and a price to be paid for professional equality among the elite appears to be the subjection of underclasses and persistent inequality among those who serve the elite.
At the same time, perhaps the deep inequality in Indian society, which helps explain greater equality among India’s professional elite, may open the door to greater equality in the entire unequal Indian legal profession, and, down the road, Indian culture, for example, with childcare support policies replacing caste-dependency. Here, one is tempted to consider an American analogue: the very discrimination of America’s elite old-guard White-Anglo-Saxton-Protestant white-shoe large law firms led to the rise of Jewish law firms, which in turn ushered in an era of greater equality within BigLaw and subsequently the entire legal profession in the United States.
Within and outside of the legal profession, the diversity, inclusiveness, and equity discourse in the United States is at crucial moment, see, here and here. Swethaa Ballakrishnen’s Accidental Feminism makes a timely, important and constructive contribution to it.
Cite as: Eli Wald, Accidental Equality
(October 19, 2021) (reviewing Swethaa S. Ballakrishnen, Accidental Feminism – Gender Parity and Selective Mobility among India’s Professional Elite
What would you call it when a former government official joins a corporate law firm? This is commonly known as revolving doors between market and politics in the United States but, in France, it has a different name: pantouflage. As Antoine Vauchez and Pierre France explain in their book The Neoliberal Republic: Corporate Lawyers, Statecraft, and the Making of Public-Private France, pantouflage “bears a different meaning than revolving doors as it does not imply moving back and forth but rather a departure from the public sector.” (P. 55.) Such a departure of professionals from the public sector is also a familiar scene in other countries, such as China, where hundreds of mid-career judges, procurators, and other state officials leave their government or judicial posts to become lawyers in private firms every year.
Most existing studies on these professionals traveling between the public and private sectors emphasize either the personal benefits that they get from their “political embeddedness” or the economic consequences of their brokerage between state and market for their clients. Vauchez and France also observe similar dynamics in France, yet the focus of their book is on the structural consequences of pantouflage, namely, the blurring of the “border between public and private.” (P. 132.) Drawing on Michael Walzer’s theory of normative social differentiation, which proposes that the democratic space is made possible by the separation of the public sphere from other social , the authors argue that “the blurring of the public-private dividing line…calls into question the very conditions in which the public interest is defined.” (Pp. 132-133.) They even pose the question of whether the rise of pantouflage since the 1990s has punched “a black hole in democracy.” (P. 117.)
Arguably, this emergence of the so-called “neoliberal republic” is not unique to France. As neoliberalism swept the globe after the Washington Consensus in 1989, corporate law firms became active agents in the globalization of law and we have witnessed the circulation of legal elites between these law firms and other political, economic, and financial institutions across the world. To a large extent, the global presence of elite corporate law firms in the economy and is a telling indicator of the boundary blurring between the public and private spheres in the age of neoliberalism. As law firms recruit former officials from powerful ministries and, in the meantime, , financial institutions, business corporations, and international organizations, they penetrate the borders between distinct social spaces and make the logics of these spaces increasingly similar. The construction of isomorphism between market and state, therefore, is not only a structural phenomenon but also a cultural process by which the neoliberal ideology diffuses from the global market to nation-states and their officials.
Yet the rise of corporate lawyers in governance has different implications in France than in Anglo-American countries where the legal profession has always been a dominant force in national and local politics. Half a century ago, French legal workers were fragmented into several different occupational groups such as avocats, notaires, avoués, agréés, and conseils juridiques. It was only through two reforms in 1972 and 1990 that some of those groups were unified into the profession of avocats (while notaires remain a separate profession). The merger of avocats and conseils juridiques in 1990 was particularly consequential for the rise of corporate law firms as it produced a unified legal elite and opened the French bar to tax specialists in legal counseling firms. The entry of major US and UK law firms into Continental Europe coincided with this merger and “upended the quasi monopoly that had been the prerogative of the handful of French corporate law firms.” (P. 22.) As the authors describe it, this was “[t]he big bang that set in motion the creation of the French business bar.” (P. 22.)
This development of the corporate bar may the French case more comparable to the stories of emerging markets than to the English or American cases. As David B. Wilkins, David M. Trubek, and Bryon Fong suggest in their recent summary of the findings of the GLEE (Globalization, Lawyers, and Emerging Economies) Project, the rise of corporate law firms also occurred in Brazil, India, and China in the 1990s and these firms became a major gear for globalization and legal change in those three countries. The French story might sound exotic to an American audience, but it would feel quite familiar to a partner of a Chinese or Brazilian corporate law firm. Perhaps what sets France apart is that these elite law firms have not only dominated the business world but also penetrated the highest level of the French state, namely the Conseil d’État, by offering its officials a lucrative exit route. This is precisely the “black hole in democracy” that the authors emphasize in their book.
Why is the penetration of the state by business law firms problematic for democracy? To be sure, lawyers are only one of many competing groups of professionals in the “palace wars” of the state bureaucracy, and they often lose such wars to economists or engineers, in France and elsewhere. However, it is important to note that the legal profession, especially its prestigious corporate sector, has a high degree of social closure. Most corporate lawyers come from privileged social backgrounds and embody the neoliberal ideology in their work. Consequently, the increasing influence of the business bar could potentially make the state less open to the public. This is especially ironic given the history of avocats as the “spokesmen of the public” in nineteenth-century France who resisted the commercial logic of the market, as Lucien Karpik shows in his pioneering work on French lawyers.
In addition to the implications of the book for understanding law and democracy, the phenomenon of pantouflage also speaks to a long-standing blind spot in the Bourdieusian field-theoretic approach, which the authors adopt in the book to explain the relationship between the legal profession and the state. While Bourdieu used extensively the concept of “homology” to describe the structural isomorphism between fields, he had not developed a theoretical framework for explaining how fields are connected or the spaces between fields. The pantouflage of professionals from the bureaucratic field to the legal field (or business field) suggests the importance of focusing on “space travelers” between fields for understanding their mutual relations. Although lawyers are traditionally considered to be either guardians of professional monopoly or brokers of economic and political transactions, their mobility between different social spaces is equally important for making sense of the legal profession in relation to other social entities such as the state and the global market. When revolving doors are open, space travelers pass through them and connect the adjacent fields of power and money. In this sense, pantouflage has a similar processual logic to the logic of judicial corruption, which often involves former state officials who can breach the institutional walls of judicial independence. To trace the spatial mobility of lawyers, therefore, is a promising approach for advancing the study of the legal profession, as this excellent book demonstrates.
As readers may have heard, the National Conference of Bar Examiners (NCBE) recently approved the preliminary recommendations of its Testing Task Force and is committed to developing “the next generation of the bar exam.” What readers may not know, however, is that the NCBE is not alone in its endeavor to consider licensing requirements: regulators elsewhere in the world, including in Canada, are also examining the issue of admissions requirements and how they should evaluate lawyer competence. As the NCBE develops its “next generation” bar exam and as U.S. jurisdictions decide whether and how to change their admissions rules, stakeholders may find it thought-provoking to consider the excellent report that Jordan Furlong produced for the lawyer regulatory body in the province of Alberta, Canada. This report is entitled Lawyer Licensing and Competence in Alberta.
Similar to the preliminary recommendations recently adopted by the NCBE, and the reports on which the NCBE’s action was based, the Alberta Lawyer Licensing and Competence report examines what lawyer “competence” means, how it could be fostered and measured, and the proper role of the regulator. Although Lawyer Licensing and Competence was written for Canadian regulators, it provides insights that may prove useful to U.S. lawyer regulation stakeholders on issues related to lawyer competence, the role of a regulator, legal education, and the NCBE’s January 2021 decision to develop the next generation of the bar exam.
After a useful Executive Summary and introductory section, Section 2 of Lawyer Licensing and Competence presents six “Principles and Observations” that underlie the report’s recommendations. These six observations are as follows:
- The [regulator] should strive to ensure lawyer “competence” both in the minimum sense of baseline adequacy of knowledge and skills, and in the more aspirational sense of continuous advancement towards true proficiency in many different areas.
- The [regulator] should act both as a “coach” to encourage lawyers’ fulfillment and enhancement of professional norms and as a “cop” to enforce standards and address violations of those standards, but the “coach” should be the default approach.
- The legal education system is outside the scope of this report, but its longstanding and well-documented failure to adequately prepare aspiring lawyers for legal careers should not be allowed to continue and requires urgent [regulator] attention.
- The [regulator’s] six core lawyer competencies, originally formulated eight years ago, would benefit from reconsideration and revision, in particular with the addition of cultural competence and a shift towards more client-centric standards of competence.
- The [regulator] should seriously consider the effects and implications of anti-racism movements and the barriers and biases faced by lawyers who are Black, Indigenous, people of colour, and internationally trained on its licensing and competence systems.
- The [regulator] should recognize the growth of sophisticated competence assurance programs within law firms, public-sector law departments, and corporate law departments, and should strive to dovetail its competence efforts with them.
Although these six observations were written from a Canadian perspective, in my view they transcend borders and are observations that thoughtful U.S. lawyer regulation stakeholders should consider.
Following the “Principles and Observations” section, Section 3 of Lawyer Licensing and Competence addresses what U.S. lawyers might refer to as the lawyer admissions system. The lawyer licensing system in Alberta, Canada (and in other Canadian provinces) differs in some significant respects from lawyer licensing in the United States. As the report explains, there are three components of lawyer licensing in Alberta: 1) the law degree; 2) the bar admission course; and 3) articling requirements, which a U.S. reader might describe as apprenticeship requirements.
Because most of Section 3 addresses perceived weaknesses in the articling system and how Alberta might respond to those weaknesses, a U.S. reader might initially conclude that Section 3 of the Alberta report is not particularly relevant to the U.S. situation because U.S. jurisdictions do not typically have an apprenticeship requirement. The U.S. lawyer admissions community might similarly conclude that Sections 4 and 5 of Lawyer Licensing and Competence are not particularly relevant to them because Section 4 addresses the way in which lawyer competence develops during the first three years of law practice and Section 5 addresses what a U.S. audience might refer to as CLE requirements, rather than admission requirements. Despite these potential reactions, U.S. lawyer admissions stakeholders would do well to consider the insights found in the Lawyer Licensing and Competence report.
One of the major contributions of the Lawyer Licensing and Competence report is the degree to which it urges legal system stakeholders to view lawyer admissions not as an isolated, yes/no decision, but as part of an integrated regulatory system whose goals foster the competent delivery of legal services and the protection of clients. (15-16) Although the regulation of lawyers in the United States can be thought of as a “system” that involves the beginning, middle, and end stages of regulation, it sometimes has seemed that U.S. regulators in these differing time periods operate independently from each other, and independently of other stakeholders, with less conversation overlap than might be desirable. For example, “day-job” regulators on admissions issues often work quite independently from the “day-job” conduct and discipline regulators, and both often work independently of efforts within law firms or other legal employment settings. Many admissions-based U.S. conversations happen within the NCBE, whereas end-stage regulation conversations – i.e., lawyer discipline – happen within the National Organization of Bar Counsel or NOBC.
Things do seem to be evolving more holistically in the United States as stakeholders increasingly interact with one another, and regulators adopt approaches that go beyond those they may traditionally have used. NOBC members, who traditionally handled lawyer discipline matters, increasingly are interested in acting proactively to prevent problems. NCBE admissions regulators increasingly use a set of tools that go beyond the traditional “input” requirement of attendance at an ABA- accredited law school and the “output” requirement of successful completion of the bar exam. For example, some of the jurisdictions that use the NCBE’s Uniform Bar Exam (UBE) have pre or post-admission jurisdiction-specific law components, such as an online course on state law or attendance at a required seminar; these admission requirements look more like a “Bridge the Gap” or CLE requirement, rather than a traditional bar exam “output” measure. Another illustration of the trend towards a more systemic or holistic approach is the fact that U.S. lawyer regulation stakeholders participate in – and even host – International Conference of Legal Regulators (ICLR) meetings. These meetings bring together a global community of stakeholders, including admissions regulators, discipline regulators, and others. Recent U.S. regulatory initiatives provide another example; many of these initiatives have assembled a wide range of stakeholders and have tried to ensure that “access to legal services,” as well as client protection, are included in regulatory discussions, including admissions-related conversations.
I endorse this trend towards more holistic discussions about lawyer regulation. In my view, it is useful for all stakeholders from all stages of lawyer regulation to exchange information and ideas with one another. Indeed, one of the reasons why I recommend the Lawyer Licensing and Competence report is because it addresses multiple stakeholders and encourages these lawyer regulation stakeholders to focus on a full range of regulatory issues. It urges a perspective in which admissions, new lawyer training, and lifetime learning are viewed as part of an integrated whole related to lawyer competence – i.e., as a system – rather than as individual issues. Thus, although the Lawyer Licensing and Competence report is focused on the lawyer regulation system in Alberta, it provides food for thought for U.S. lawyer regulation stakeholders as well.
State supreme courts claim the exclusive, inherent authority to define and regulate the “practice of law.” Based on this authority, courts have enjoined as the unauthorized practice of law (UPL) all manner of potentially helpful legal assistance by nonlawyers, including counseling, advising, and assistance with documents, as well as representation in court. When it suits them, however, it turns out that trial courts accept extensive nonlawyer assistance behind the scenes, including nonlawyer counseling of clients, preparation of pleadings, and discrete courtside assistance. Courts may even encourage and institutionalize the role of nonlawyer advocates through designated workspace and workflows. But they like to keep it on the down low.
Of course, it is not the “unauthorized” practice of law if courts allow it. And courts’ claims to regulatory authority are strongest regarding who appears before them. But what are the implications of an unacknowledged nonlawyer assistance regime? This is the question posed by Jessica Steinberg and her comadres in their study of domestic violence courts’ “quiet partnership” with a “shadow network” of nonlawyer advocates “to substitute for the role counsel has traditionally played.” (P. 1316.)
The study is based on observations of roughly 275 protective order hearings in two states, as well as interviews with judges, protective order attorneys, and nonlawyer advocates who work with petitioners in protective order matters. (P. 1328.) Nonlawyer advocacy programs are widespread in the protective order context, in which more than 75 percent of parties appear without a lawyer. As the authors report, over half of the nearly two thousand domestic violence programs in the country provide “court advocacy/legal accompaniment” services. (P. 1329.) The nonlawyers who assist petitioners seeking protective orders are known as “domestic violence advocates” and work for nonprofits funded, in part, by the Violence Against Women Act; however, they are based in the courts. (P. 1330.)
The study finds that the scope of nonlawyer assistance in protective order proceedings is extensive. Domestic violence advocates “provide the full range of services one might expect from a lawyer, short of appearing in court.”
Advocates identify protective orders as an option, among many, that domestic violence survivors might pursue. They elicit factual information from petitioners in service of preparing protective order pleadings. They assist in the development of evidence. They offer explanations about what the court process entails. And finally, they counsel petitioners on whether to pursue legal recourse, how to select remedies, and how to clear procedural hurdles, such as service of process. (Pp. 1331-32.)
The counseling offered by nonlawyer advocates is difficult to distinguish from the type of nonlawyer advising that is routinely prohibited as UPL in other contexts; on the contrary, it looks much like the “strategic expertise” that lawyers provide in navigating relationships, norms, and procedures in court. (Pp. 1335-36.) Moreover, although they do not formally “appear” in court, domestic violence advocates “are stationed inside the courtroom during protective order proceedings,” where they whisper instructions and reminders to petitioners and are on call to step into the hallway mid-proceeding to advise petitioners who seem confused. (P. 1331.) In one study location, “advocates have a permanent office next to the filing clerk,” and in the other, they “work out of the basement of a government building next to the courthouse.” At both study sites, court clerks automatically direct petitioners with a claim of intimate partner violence to advocates for a range of services, including help completing court paperwork. (P. 1330.)
The authors explain that judges rely on nonlawyer advocates for docket control. Judges are under “enormous pressure” to process cases quickly and, without assistance, it can be difficult for petitioners to develop and present their claims. (P. 1329.) Yet, judges are reluctant to acknowledge the role of nonlawyer advocates—or even to acknowledge their presence—lest it undermine the appearance of judicial neutrality or provoke backlash from the bar. For instance, “[o]ften, work that appears like active fact gathering by judges in the courtroom … is carefully curated by nonlawyer advocates who have developed factually specific pleadings that guide a judge’s questioning of the petitioner.” (P. 1317). At one site, advocates’ role has become more concealed over time:
In the past, advocates were permitted to make a speech prior to the commencement of the protective order docket, identifying themselves and the services they provided. However, judges grew uncomfortable with the advocates’ public appearances, since it gave the impression that the court favored petitioners over defendants. Notably, advocates’ firm institutional status … did not shrink after the prefatory speech was abolished. Advocates … continue to perform their role in the same way—they occupy permanent space within the courts to meet with survivors and accompany every petitioner to the judge’s chambers after a hearing concludes. It was only the public-facing part of their role that disappeared. (P. 1342.)
Thus, judges’ extensive reliance on nonlawyer advocates is “hidden behind the scenes.” (P. 1316.) As Steinberg et al. write:
There is a paradox at play here. On the one hand, advocates are intimately embedded in the courts, serve a majority of petitioners who file protective orders, and are relied on by judges to off-load the burdens of serving pro se parties. They are quite visible to judges, court staff, and pro se parties—and, ultimately, were visible to us as observers of these courts. On the other hand, the advocates’ activities—while known to actors within the court ecosystem—are hidden from public view or, at the very least, hiding in plain sight Their role is not formally acknowledged or regulated by the bar or state supreme courts. (P. 1331.)
The authors identify three important implications of this unacknowledged nonlawyer assistance regime. First, there is a lack of transparency about the role of nonlawyer advocates and “even whether petitioners are required to avail themselves of the advocates’ services or merely have the option to do so.”
One advocate voiced a common source of confusion, which is that pro se parties do not understand who an advocate is, who they work for, and what they do. She states that “a lot of people think I’m court staff. I kinda just explain that I’m an . . . advocate and that I’m there to help them.” (P. 1331.)
Second, we are squandering “an opportunity to develop norms and best practices around a paraprofessional role,” at a time when states are actively experimenting with new roles for independent paraprofessionals. (P. 1341.) Both Utah and Arizona have begun licensing specialized nonlawyer practitioners and researchers are tracking the results. Washington recently scrapped a similar experiment, citing a lack of interest among practitioners. A key issue in designing new models for nonlawyer assistance is the type and length of training necessary to ensure quality of service in different contexts. Yet, courts’ reliance on nonlawyer advocates in protective order proceedings—a widespread, established model for assistance that “appears to be working as intended” (P. 1341.)—is not officially recognized, sanctioned, or championed as a possible template.
Finally, the lack of public acknowledgement of nonlawyer advocates’ role “conceals a massive due process rift” between petitioners and alleged abusers.
Petitioners have access to experienced advocates who assist with almost every aspect of protective order proceedings, while defendants typically have no assistance at all. At stake for defendants are their freedom of movement, custody of their children, and eviction from their residences. Bringing the advocates’ role into public view would make clear that state supreme courts and bar associations need to take steps to level the playing field. (P. 1341.)
The authors argue that trial judges should be encouraged to be candid about the role of nonlawyer advocates so that “paraprofessionals might be brought out of the shadows, fully integrated into open courts, and authorized to offer services currently considered sacrosanct by the practicing bar—including providing legal advice and speaking on behalf of clients in live proceedings.” (P. 1349.) They suggest that trial judges be included in conversations about regulatory reform, “leveraging their experiences in working with advocates” to help formulate new paraprofessional roles. (P. 1345.) And they call upon legislatures and state supreme courts to provide political cover for this effort, to protect elected judges from potential backlash and ensure that existing advocates “be protected, not ousted” by new regulatory regimes. (P. 1349.)
The study should be required reading for those interested the work of state trial courts, the role of judges, and evidence-based regulatory reform.