Part of what makes David Luban so masterful is his ability to pose a critical question. After reading the first few sentences of his article, Complicity and Lesser Evils: A Tale of Two Lawyers, I immediately wanted the answer. Should lawyers participate in a corrupt or evil regime? Should they try to use their power to mitigate the damage or should they run in the opposite direction, knowing that obedience is support so no matter what they does they will end up responsible for the evil result? The answer to this question matters not only to give government lawyers guidance in the unlikely event that an evil regime takes over, but also to deepen understanding of the role of government lawyers in normal(ish) times.
Another thing that makes Luban so talented as a lawyer, academic, and philosopher is his ability to tell a story. Rather than answering the question he poses with philosophical rumination alone, he recounts the story of two lawyers who worked in the Third Reich. Some questions are hard to answer with logic and reason, citations to cases, or philosophical principle. This is one of them. The result of the story is that, when Luban does return to moral philosophy, its practical import is so clear, its human side so vivid that one hardly notices that it is, in fact, philosophy.
Before he gets to the stories of the two lawyers in the Nazi regime, Luban explains Hannah Arendt’s answer to his question. She is unequivocal: Professionals and functionaries were not useful in reducing the damage of the Third Reich because whatever bad consequences they might have mitigated were outweighed by the way in which their service in normalized the evil regime. There is no way for insiders to insulate themselves from the taint of an evil regime. There is no such thing as mitigation because any assistance lends a veneer of legitimacy to the regime, which is far more valuable than the additional evil acts that might have been accomplished had the lawyer stayed on the side lines. In other words, Hitler’s success rested on the participation of professionals. Had the lawyers and civil servants stayed at home, he never could have accumulated the power and legitimacy necessary to perpetrate the atrocities of his regime. As lawyers went about their daily work, Luban elaborates, they gave Germans the sense that nothing too terrible or unusual was going on. Any individual’s sense of shock was muted by the observation that others were acting normally. And so, by hiding concern and outrage, professionals facilitated the regime.
Luban turns to the biography of two lawyers to test her thesis. Bernard Lösener, the first of the two, started his career as a regional bureaucrat when he was called to serve as a lawyer to the Ministry of the Interior for the Third Reich as a “Jewish expert.” In 1935, he was called to draft the infamous Nuremburg laws. Four drafts ended up in circulation. Lösener fought hard against Hitler’s more radical advisors for the least severe version and he ultimately got his way. While Lösener viewed even his own draft as an outrage, he felt he had won a major victory and took credit for averting a more dire result. By excluding some individuals with mixed heritage from the definition of “Jew,” Lösener claimed to have saved over 100,000 lives. When the atrocities of the Nazi regime became too much for him, Lösener requested a transfer from his post at the Ministry. He was ultimately imprisoned for offering shelter to a couple accused of plotting to assassinate Hitler and likely would have been executed if the war had not ended.
Was he a hero or a villain? Luban explains that Lösener fought to keep mixed marriage Jews from confinement in the ghetto and later prevented some of them from being deported to death camps. But in addition to the Nuremberg laws, he drafted laws that would have ordered the sterilization of individuals with Jewish heritage. Like all of his legal work, he justified this as an effort to avert a worse fate. His friends begged him to keep his post so he could stave off more damage and as he put it, he did so, “even as disgust threated to choke me.”
Luban’s second lawyer is Count Helmuth James Von Moltke. Moltke practiced international business law and much of his private practice involved helping Jews escape Germany in the 1930s. From a famous Prussian military family, Moltke saw himself as part of the opposition. He almost emigrated out of concern that as a lawyer, he was supporting the corrupt Nazi regime, but instead, he joined the government as a civilian adviser on international law. His unit, Abwehr, formed a pocket of resistance—as Luban describes it, an early analog of the deep state. Moltke plotted with an inner circle to plan for a post-Hitler Germany. All the while, Moltke was aware of the regime’s atrocities and like Löesner, he was wracked with guilt over his complicity. Anything short of resistance warranted a share of the culpability. Moltke had the moral conviction that he was obligated to mitigate the evil and to reduce the scope of the criminality. He drafted memo after memo urging the regime to comply with international law. He traveled to urge military leaders not to shoot hostages or prisoners. Moltke was, in the end, executed for his subversive actions.
Moltke had what Luban calls spielraum, discretion to influence events and sway those in power. He asserted his point of view, stood up to authority, insisted on what he saw as lawful and right. Unlike Lösiner, his work was not used to commit atrocities. He may have been complicit for remaining in government or not doing more to resist, but he did not aid the Nazi cause as Lösiner did.
Luban draws on moral philosophy to compare and evaluate the lives and careers of these two men. But in the end, he returns to the question with which he began and concludes that Arendt got it wrong. Staying in an evil regime can be the right thing to do. Particularly, when you can significantly reduce the harm, you retain your moral resolve, and finally when circumstances allow you the power and discretion to do so—spielraum, as Luban puts it—you can make a difference.
Before he presents Hannah Arendt’s view and tells the story of the two lawyers, Luban offers a parable that sounds familiar. A lawyer has been asked to draft a controversial law on immigration for an unprincipled leader. We later learn that he is describing Lösiner but he intentionally makes it sound as if it could be a principled conservative lawyer in former President Trump’s administration. Luban is not speaking in the abstract but rather bringing lessons learned from Nazi Germany to bear on the present. He makes it clear, of course, that he is not drawing an equivalence between Trump and Adolf Hitler. Instead, he makes a modest claim that lawyers and civil servants in these two regimes faced a similar dilemma. Many of them struggled with the question of whether to stay and mitigate the damage or refuse to participate.
While Luban’s comparison is illuminating, it has its limits, as he acknowledges. Luban anticipates and answers the objection: If Arendt is wrong and professionals could make a meaningful difference even in Nazi Germany, then the same must be true in a less evil regime, like Trump’s. As he promised, the narratives of the two German lawyers prove not only useful but enlightening despite the many dissimilarities. Returning to the difference between Nazi Germany and the Trump administration, however, might add to our understanding. It seems that the nature and degree of illegality and the relative evil of the regime within which the professional is asked to serve must also play a role in the analysis. Perhaps Arendt reached her conclusion, with which Luban ultimately disagrees, because Nazi Germany was such an extreme example.
Luban limits the scope of his observations, explaining that they only pertain to lawyers in abnormal times, but it seems to me there are lessons to be learned for government lawyers in normal times as well. Even decent leaders can do bad things. Illegal and destructive policies are not the sole province of dictators and demagogues. I take a broader moral from Luban’s story, which is that there is always some room around the edges for lawyers to exercise influence: through counseling, protest, mitigation, or even stepping down in the face of unjust power. However, the desire to stay in the room—to be relevant and powerful—should never supplant lawyers’ professional judgment and obligation the rule of law. Because it is easier to make excuses and invent rationalizations when the stakes are lower, losing sight of this may be an even greater danger in normal(ish) times than it is when evil takes over.
Scott Cummings’s new book, An Equal Place: Lawyers in the Struggle for Los Angeles, tells five different stories illustrating the role of law and lawyers in securing goods such as economic justice, environmental protection, and the rights of immigrants, in the city of Los Angeles in the years following the 1992 riots. The book is organized around chapters providing comprehensive histories of these campaigns: Reforming sweatshop labor in the garment industry; contesting anti-solicitation ordinances that restricted the ability of mostly Latino day laborers to obtain employment; ensuring living-wage jobs in the wake of gentrification and community redevelopment projects; blocking the development of a Wal-Mart supercenter that would have undermined unionization in the grocery industry; and improving labor and environmental conditions for truck drivers at the Ports of Los Angeles and Long Beach.
In his most recent Netflix special, all-time-great comedian Chris Rock observes: “[W]hen you’re in a band, you have roles that you play in the band. Sometimes, you sing lead. And sometimes, you’re on tambourine. And if you’re on tambourine, play it right. Play it right. Play it with a . . . smile, because no one wants to see a mad tambourine player.” Rock uses this as an extended metaphor for relationships, but at the risk of wrenching it too far out of context, the comparison can also apply to the role of public interest lawyers in social movements. Some lawyers may aspire to be the lead singer, but the interests of justice may be better served by lawyers playing a supporting role, and playing it well.
In these chapters, lawyers and the establishment and enforcement of individual rights play at most a supporting role. The law may be of central importance in structuring the opportunities for exercising leverage to achieve a desired outcome, but this may be in the form of a state of local ordinance or a federal policy already in place, not the outcome of lawyer-led litigation. In short, the lead singer in the long struggle to make Los Angles a more equal place may be a community organizer or a coalition of local advocacy groups, with lawyers playing tambourine. Cummings’s title is actually a play on words, indicating that lawyers may, and arguably should, have to get used to not being the leaders in the struggle for social justice. There may be only an equal place for lawyers, and that may be a very good thing, given that the roots of economic inequality are mostly structural and not the sorts of problems that can be addressed by adding or applying legal rights here and there.
As we know, lead singers aren’t always well behaved. In an influential critique of the involvement of lawyers in movements for social change, Derrick Bell envisioned public interest lawyers as caught between the interests of their clients and social movement goals. One of the fundamental ethical ideals informing the lawyer’s role is client autonomy. Lawyers are agents, duty-bound to pursue the lawful objectives of their principal. Social-movement lawyers, however, may feel a stronger allegiance to the interests of a group or wider policy objectives. In pursuit of equality for all, lawyers may be tempted to sacrifice or downplay the interests of their clients. It would be a deeply ironic outcome for lawyers who claim to be motivated by the desire to rectify imbalances of power in society to act in ways that systematically disempower their clients.
I use the term social-movement and public-interest lawyers advisedly here, knowing there is a longstanding debate over how to define public-interest lawyering. For example, what about lawyers who represent classes of claimants in consumer-protection or product-liability litigation, or lawyers who represent individual plaintiffs in employment-discrimination or constitutional-tort cases? Highly compensated plaintiffs’ lawyers may plausibly see themselves as working in the interests of social justice. Then there is the issue of viewpoint: Do conservative legal organizations, such as the Pacific Legal Foundation and the Alliance Defending Freedom, count as public-interest groups? They recognize that the idea of public-interest lawyering is contestable, but the core of the concept includes serving those individuals and groups who are shut out of the private market for legal services and seeking to advance the collective interests or political position of some defined group or constituency, whether liberal or conservative. The debate over the public-interest title shows that public interest lawyers claim a distinctive normative vision, in which the actions of lawyers are not justified on conventional, neutral-partisanship grounds – that is, by the promotion of the objectives of clients, whatever they happen to be.
The involvement of lawyers in social movements presents an additional risk, summed up by the cliché that every problem looks like a nail if all you’ve got is a hammer. Lawyers are trained and socialized to employ the tool of litigation, seeking to establish legal rights through judicial decisions. The mythology of the Civil Rights movement centers on the Brown v. Board of Education decision, the culmination of years of carefully planned litigation by the NAACP Legal Defense Fund. As historians and political scientists have argued, however, the role of courts in political and social change is relatively limited. Many problems facing marginalized communities, such as lack of economic opportunities, cannot be effectively and comprehensively addressed by adjudication and the establishment of new legal rights. Despite the enduring mythology of the Warren Court, which historian Laura Kalman has claimed remains almost a cult among law professors, the entire project of legal liberalism, in which courts serve as the engine of large-scale social change in the direction of greater equality, now appears to be in disarray. The conservative retrenchment of the Roberts Court, including “new Lochner” assertion of constitutional rights to advance a deregulatory agenda on behalf of business interests, is one factor in the disenchantment of progressives with the Supreme Court. However, public-interest lawyers have adapted to the reality in which social justice may not be best served by the creation or enforcement of legal rights through litigation, and the training of these lawyers now emphasizes skills such as negotiation and community organizing.
The theoretical framework of the book is a comparative institutional analysis, in which litigation strategies are understood as complementary with political and other nonlegal alternatives. The broader objectives of a movement may be served by court decisions, rulemaking, legislation, or social changes, such as the establishment of new norms or changes in attitudes. Cummings usefully reorients the analysis around specific campaigns, considering the role of lawyers only secondarily. In some of these campaigns, lawyers themselves were mostly content to assume a secondary role in these campaigns. In others, however, the limits of a litigation-centered strategy revealed themselves. For example, in the campaign to secure equal rights for day laborers, the Mexican-American Legal Defense and Education Fund (MALDEF), filed a lawsuit seeking to recognize day-labor solicitation as protected commercial speech under the First Amendment. This litigation culminated in a victory in the Ninth Circuit, but the victory was narrow, and many municipalities reacted by simply passing new anti-solicitation ordinances which circumvented the Ninth Circuit’s ruling. The problem of abusive labor practices also persisted, even if day laborers did enjoy expanded rights to solicit employment.
One of the book’s strengths is the depth and detail in which Cummings treats each of the episodes he studies. The payoff for a patient reader of each of these case studies is an appreciation of the limits of legal liberalism. Consider, for example, the problem described in Chapter 4 on the redevelopment of the Figueroa Corridor in the vicinity of the Staples Center. The city government had decided to enter into public-private partnerships with real estate developers to transform a working-class neighborhood into a glitzy sports and entertainment hub. Community groups and labor advocates sought to ensure that the economic benefit of the Figueroa Corridor development would not go only to the developers, but would also provide sustainable employment for local residents. Community organizing and coalition building resulted in the nation’s first Community Benefits Agreement, under which the developer agreed to enter into written contracts incorporating public benefit terms, such as affordable housing, neutrality on labor organizing campaigns, green space, local hiring, and living wages. State and local permitting and approval processes provided avenues for community groups to oppose the redevelopment project, but informal action such as protests and public relations efforts provided further leverage on the side of the coalition in its negotiations with the developers. The result of the negotiations was an unprecedented agreement in which the community organizations agreed not to oppose the project in exchange for the developers meeting community employment, wage equity, housing, and environmental goals. (Pp. 185-87.)
Lawyers were involved in the negotiations and contract drafting associated with the Community Benefits Agreement, but they played a supporting role, providing technical expertise while the process of setting the agenda and defining the goals of the campaign were left in the hands of members of the affected community. As Cummings argues in his concluding chapter, there are considerable benefits to lawyers who are willing to play tambourine. Lawyers who have an equal place alongside community activists and organizers are more likely to serve collectively determined goals, as distinct from the objectives lawyers themselves may bring to the representation. (P. 481.) More theoretically, “rights-based legal mobilization was especially prone to reinforce the legitimacy of liberal individualism in ways that conflicted with deeper equality claims.” (P. 484.) The Figueroa Corridor campaign emphasized not right as such, but equality of access to opportunities to obtain jobs with fair labor standards and living wages. In addition, social change brought about through mechanisms other than litigation may prove more durable and legitimate in the long run. (P. 483.) Litigation was an ever-present threat, structuring the negotiated resolution of the controversies described in the book. (P. 487.) But agreement reached in the shadow of the law may prove to be more sustainable than court-ordered reforms.
As much as lawyers may have enjoyed their brief moment of public acclaim as heroes of the resistance to the travel ban, economic and social inequality is highly resistant to solutions that take the form of court decisions vindicating individual rights. An Equal Place is a welcome corrective to the liberal legal mythology running from the Civil Rights Movement and the Warren Court into the present. Successful, sustainable social change requires cooperation, organization, and creative synthesis of the contributions of many different professional disciplines. Lawyers may be indispensable members of the band, but they should not always sing lead.
In today’s political climate, railing against the intellectual (not economic) elite has reached an anti-expertise fever pitch. It might be tempting in this climate to dismiss Benjamin Barton’s forthcoming book, The Credentialed Court: Inside the Cloistered Elite World of American Justice, as just another such diatribe. It is not. Instead, Barton’s book proves what scholars have long intuited: that while the Supreme Court facially appears more diverse than in the past, in other ways the court has rarely been so homogenous. Plus, it is such a juicy and delightful read you won’t feel like you’re reading for work.
Ben Barton’s book is a combination of straightforward data and entertaining storytelling. The first few chapters are a delicious highlights reel of the early Supreme Court appointees, full of colorful detail and choice tidbits—from a pro-football player to the story of a self-made immigrant who rocked the constitutional convention, won George Washington’s trust, and married into a prominent family – why it’s the stuff musicals are made of (hint: it’s not Alexander Hamilton)! Barton presents all this to argue that past Supreme Court Justices weren’t uniformly studious or bookish but zany, original, and more accomplished in other fields.
However, the manuscript’s assertion that back in the day appointees to the court were less elite or had more quirky backgrounds didn’t entirely convince me. Nostalgia by lawyers for a time when the bar or bench was superior than today is its own myth, rarely rebuffed. The chapters on early appointees indicated equally limited metrics in terms of what made for an appointee—first they were all a certain gender (male), certain race (white) and overwhelmingly from a certain faith (protestant). It seems that once he met that criteria, an appointee could be idiosyncratic in various ways. As a group, these early appointees were also politically well-connected, often with prominent family connections, and extremely well-educated by the standards of the day–either through law school or a prestigious apprenticeship (as Barton notes “a good apprenticeship was the 18th century’s version of law degree”). (P. 71.) As for more past appointees growing up on farms and in small towns—such trends align with those of the general American population which increasingly lives in cities and suburbs rather than rural areas.
This disagreement aside, the book’s thesis is convincing: the criteria for contemporary Supreme Court Justices are exceedingly narrow. Where the book really takes off is the meticulous picture it paints of today’s Court. The latter part of the manuscript’s data mines the geographic, work, economic, familial, and educational backgrounds of all Supreme Court Justices through Justice Coney Barrett. Here Barton lays out with clarity the commonalities among the Court’s Justices and how uniform they are—some justices down to the very same prep school and Supreme Court clerkship (Gorsuch and Kavanaugh). The new nepotism is one in which a person’s higher education credentials stand in the place of old family names and lineages—you are from the house of Harvard, Yale, or, cloaked in its Harvard-esque brick, Stanford (the nouveau riche set on the cotillion circuit). Specifically, Barton demonstrates unflinchingly that recent Court appointees overwhelmingly graduated from a few undergraduate and law schools, obtained Supreme Court clerkships, and have little practice experience (if any at all). Thus, outstanding intellectual achievement narrowly measured by a few metrics (elite education, law professor positions, clerkships, and highly specialized elite legal jobs), carries the day almost completely rather than other outstanding relevant experiences and achievements, such as law practice or public service.
The book’s normative plea to broaden the conception of merit used to select Supreme Court justices is compelling. Barton argues that intellectual virtuosity demonstrated in this singular elitist mode should not somehow overshadow all other considerations—particularly what he terms “practical wisdom.” Barton’s “practical wisdom” is grounded in experience, ideally of a generalist nature, which he contends allows judges to respond with flexibility to new situations. He argues throughout the book that members of the Supreme Court should be selected because they are outstanding human beings, who have made exceptional contributions in a broad array of legal and political fields (I wouldn’t mind a scientist on court either).
Barton highlights the virtues of this breadth of experience, which he suggests includes more empathy towards and knowledge of a variety of Americans, the ability to compromise, the likelihood of writing more straightforward opinions, and practice evidencing a commitment to the common good. Barton makes it clear the current system where we have intellectually brilliant (and well-connected) Justices has significant drawbacks in terms of certain perspectives (lacking) and work product (inscrutably written opinions). I agree with Barton, the path to being on the Supreme Court is far too narrow and so much is lost along the way. The question is: how do we bring about the alternative? Barton argues that Court members should be selected for “practical wisdom” but it is hard to see, particularly in a country as divided as ours, how to avoid deep and ugly disagreement regarding the meaning of “practical wisdom” when it comes time for the painful ordeal that is the modern Supreme Court confirmation.
I wonder if perhaps the answer lies in interrogating further why and how the path to the Supreme Court has narrowed in terms of intellectual elitism just as the Court has grown more gender and racially inclusive. Are these tendencies are not just correlated, but causally related? As more women and people of color entered the shortlists for appointees in the last 50 years, those nominees (and the Presidents nominating them) likely confronted presumptions of incompetence and negative bias. Evaluating candidates in an increasingly racially and gender diverse pool, Presidents may have felt the need to publicly justify their nominations in terms of “objective” criteria of “traditional” merit both to combat presumptions and to attempt to combat concerns about bias.
Thus, criteria like past judicial appointments and elite educational credentials grew in importance. Knowing the demographics of students at elite schools and consequently of Supreme Court clerkships, elite law firms, and then bench, this “neutral” criteria effectively eliminated many otherwise qualified candidates from consideration who did not have the necessary means, savvy, or connections to gain entrance to elite law schools and elite legal institutions. Likewise, demonstrated elite credentials that “tun[e] out noise of the outside world,” (P. 255, quotations omitted) like appellate judging and professorships, signal intellectual and elitist assimilation and reassure those voting on the nominations that any racially and/or gender diverse candidates are vested in the institutions they value.
In short, it may have become an asset, rather than a liability, to be disconnected from “the outside world” – precisely because the “outside world” of women, women of color, and people of color was one unfamiliar to those evaluating and working with them. Rather, these elite professional pedigrees and educational experiences demonstrated that such candidates 1) have had atypical life experiences compared to most people in their identity group (and indeed most of the country generally) and 2) may have more common experiences with their equally pedigreed white male brethren who went through similar professional paths and educational establishments. Then at least everyone’s blood runs crimson, right?
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