Consider the following hypothetical:
One day before you leave for work, an ofﬁcer knocks on your door and says that there have been drug sales reported on your block. He says you don’t have to let him in, but that he’s checking the homes in the suspected area, and that it will only take 20 minutes. You are already late for an important meeting. You have nothing illegal in your house. Do you let the ofﬁcer search? (P. 41.)
Chances are, if you are reading this, you would say no, or ask the officer to come back at a more convenient time. In Kathryne M. Young and Katie Billings’ study of people’s responses to five rights assertion vignettes, only 26.7% of respondents with high cultural capital said that they would comply with police requests, compared to 55.1% of respondents with limited cultural capital. (P. 45.) People with high cultural capital also were more likely to explain their responses in terms of “entitlement,” by expressing “the primacy of their own needs, rights, or desires in relation to the objective of law enforcement or the legal system.” (P. 45.) People with limited cultural capital were more likely to express “futility,” suggesting that “asserting a right would be useless.” (P. 49.) These findings have important implications for policing and criminal procedure, as well as for the role of lawyers in civil access to justice.
The study is based on a sample of students from two academic institutions in 2008: undergraduates from a high-status, private university (n=108) and students at a community college ranked in the bottom quartile of the state’s community colleges (n=247) (P. 42.) Within each group, respondents were sorted by their parents’ educational attainment to enable comparison of two extremes: those with the highest amount of cultural capital (elite university students with two parents or guardians holding college degrees) (n=76) and those with the lowest amount of cultural capital (community college students without a parent or guardian who had attended college) (n=154). (PP. 43-44.) Respondents completed a survey presenting five vignettes in which “respondents were being investigated by police, were innocent of wrongdoing, and knew they possessed a particular right.” (P. 41.) After each vignette, respondents were asked whether they would comply and to explain why or why not. (P. 42.) Respondents’ explanations were coded for various expressions of entitlement, trust and distrust of the criminal justice system, and futility.
Respondents with high cultural capital were more likely to draw on a sense of entitlement in thinking about how to respond to the police, invoking ideas about “personal dignity, the value of their time, the urgency of competing obligations, and their mere possession of a right.” (P. 50.) Overall, they expressed “a greater sense of self-efficacy in their interactions with the law.” (P. 51.) People with less cultural capital expressed more hesitation about asserting their rights, for instance suggesting “if you say no then you’re suspicious” or “he is going to search … one way or the other” (P. 49) and emphasizing “their lack of agency relative to police.” (P. 52.) These findings are consistent with research on cultural capital in other contexts, such as education and health care, that finds the people from more privileged backgrounds are socialized to be more proactive and perceive more control in their interactions with authority.
Young and Billings’ vignette study has important implications for policing and criminal procedure. First, it suggests that people with limited cultural capital are more vulnerable to investigative authority, even in the absence of disparities in rights knowledge, police behavior, or criminal culpability. As a result, differences in cultural capital may work to accentuate other sources of disparate outcomes in police-citizen interactions, such as racial discrimination and implicit bias. (P. 52.) Although the authors touch upon race in their analysis and both respondent pools were racially diverse, the sample size did not allow for a systematic analysis of the relationship between race and rights assertion or the interactive effects of race and cultural capital (which the authors lament as the “Achilles’ heel of our cultural capital typology”). (P. 44.) Some prior research, however, suggests that cultural capital operates in people’s lives similarly across race. (P. 44.)
Young and Billings’ study also challenges a foundational doctrinal assumption in criminal procedure: that people are equally likely to assert constitutional rights, for instance in the context of a “consent” search, or the application of the “free to leave” doctrine. (P. 59.) Instead, the vignette design suggests that “even when knowledge of a right and the opportunity to assert that right are equally distributed, meaningful constitutional access to that right remains woefully inequitable.” (P. 58.) Given such inequity, “[r]equiring a citizen to assert a right instead of making that right self-executing results in the reproduction of social inequality.” (P. 59.) In a separate paper, Young and Christin L. Munsch analyze the implications of the research for the literature on constitutional criminal procedure and suggest ways to promote rights assertion, such as taping all police-citizen encounters, as well as strategies for decreasing the importance of rights assertion in police investigations.
Finally, the study has important implications for the role of lawyers and legal consciousness in civil access to justice. Recent research on access to justice has emphasized ordinary people’s lack of rights knowledge and widespread disinclination to “go to law” with actionable civil legal problems, such as wrongful eviction, denial of benefits, workplace discrimination, and the like. This research suggests that simply increasing the availability of lawyers is unlikely to be the most effective solution for increasing the lawful resolution of such problems. Instead, increasing civil access to justice will require a better understanding of everyday legal consciousness and “social variation in the way people understand and navigate their legal problems.” (P. 58.) Young and Billings’ rigorous, qualitative analysis of cultural capital and legal entitlement is a rich and timely contribution to legal consciousness research.
Let’s admit it, harassment and bullying are endemic in the practice of law. Horacio Benardes Neto, the President of the International Bar Association (IBA), made this observation in introducing an IBA report, called Us Too: Bullying and Sexual Harassment in the Legal Profession. Published last year, the report was based on findings from the largest-ever global survey of nearly 7,000 legal professionals in 135 countries. The survey revealed that one in three female respondents and one in fourteen male respondents had been sexually harassed at work. Additionally, one in two female respondents and one in three male respondents reported being bullied at work.
To help the legal professions address the serious problems of sexual harassment and bullying, the IBA report proposes ten recommendations. Recommendation One urges interested parties to “Raise Awareness,” while Recommendation Three calls on the legal profession to “Take Ownership” of the problem. These recommendations are one of the reasons that I commend Professor Veronica Root Martinez’s article, Combating Silence in the Profession. In her article, Professor Root Martinez both examines discrimination and exclusion in the legal profession and proposes practical steps for tackling the challenges of discrimination, exclusion, underrepresentation, and bias.
To provide context, the article presents a historical perspective on discrimination and exclusion among lawyers. While we might want to believe that discrimination and exclusion are no longer concerns in lawyers’ workplaces, Professor Root Martinez helps the reader understand how discrimination and exclusion continue today. She notes that the disparities start in law school and persist in various workplaces, including large law firms. In addition to examining explicit discrimination, the article discusses implicit discrimination and bias.
This discussion segues into her analysis of how states and the American Bar Association (ABA) have adopted a new rule related to discriminatory conduct by lawyers. This section reviews the genesis of Model Rule 8.4(g), the ABA’s formal anti-discrimination provision. The overview covers positions taken both by the rule’s proponents and critics. Critics included those who questioned the need for an anti-discrimination rule and those who challenged the rule’s constitutionality.
Professor Root Martinez’s analysis of Model Rule 8.4(g) is particularly interesting because it reveals why a proponent of diversity and inclusion in the legal profession might question the rule’s content, effects, and impact. To judge the effectiveness of the rule, Professor Root Martinez evaluates whether the rule effectuates the ABA’s stated goals and objectives—to promote full and equal participation by all persons and to eliminate bias in the legal system and justice system. Using that measuring stick, she explains how the rule lacks the substance and depth necessary to prompt concrete change within and throughout the profession. To reach this conclusion, she first examines the impact of state analogs of Model Rule 8.4(g), that have been in effect for many years. As she suggests, is it troubling that there is little evidence suggesting that these state rules have had much practical impact when it comes to eliminating discrimination or enhancing diversity.
Professor Root Martinez also notes that most reported disciplinary actions involving state analogs of Rule 8.4(g) involve some additional element of misconduct, beyond discriminatory behavior. This leads Professor Root Martinez to suggest that enforcement actions should not be limited to prosecutions that involve discriminatory conduct, along with some other type of professional misconduct. Rather, prosecutors should pursue actions when the only misconduct involved is discriminatory behavior.
Drawing on employment and labor law scholarship, Professor Root Martinez points to another inadequacy in Model Rule 8.4(g): the absence of anti-retaliation provisions to protect complainants. Although she recognizes that anti-discrimination provisions would not be a definitive solution to Rule 8.4(g)’s limitations, she suggests that such provisions would be a “modest addition to the ABA effort” and make it more likely for employees to complain. (P. 833.) Creating this protection is very important because evidence suggests that the vast majority of persons in the legal profession do not report discriminatory or harassing conduct.
Recognizing the importance of empowering and supporting victims of discrimination, Professor Root Martinez proposes that the legal profession adopt strategies that: (i) address covert discrimination through the profession, and (ii) encourage individual attorneys to stop remaining silent and instead give voice to their experiences of discrimination, harassment, and bias.
First, she suggests that the organized bar’s efforts not be limited to targeting overt discrimination; rather, more should be done to address covert discrimination—the most common type of discriminatory behavior in the legal profession. This covert discrimination takes the form of structural barriers and implicit biases that adversely impact certain demographics.
Second, Professor Root Martinez examines the quandary and difficulties faced by persons on the receiving end of discriminatory conduct. To address the deleterious effects of remaining silent, she generally urges the legal profession to take steps to give voice to its members who have faced harassment, discrimination, and bias. In addition to this general call for action, Professor Root Martinez proposes an online survey as a concrete step that the organized bar can take to give voice to persons who encounter discriminatory conduct. She suggests that such an online survey would be a low-cost tool to encourage lawyers to share their experiences. As described, the survey could gather the information about “attorneys’ experiences with or observations of (i) overt discrimination, (ii) overt harassment, (iii) covert discrimination, (iv) policies resulting in structural discrimination, or (v) action or inaction impacted by implicit bias within the practice of law.” (P. 846.) Resulting data could then be aggregated, published, and studied by researchers, policymakers, and members of the profession to determine whether there are trends regarding incidents of discrimination, harassment, and bias.
Professor Root Martinez identifies a number of benefits associated with an online survey and other strategies that give lawyers opportunities to share their experiences related to bias, discrimination, and harassment. To evaluate whether such benefits have been realized, decisionmakers may consider the experience in other countries where regulators have taken steps to deal with such conduct, including harassment. For example, in the Australian state of Victoria, sexual harassment by barristers can be addressed through a formal complaint process (seeking an investigation and response) or a confidential report. The confidential reporting process protects the identity of persons who communicate occurrences of sexual harassment experienced or witnessed, while providing them with outlets to express themselves. It also provides data that can be used to better inform the training and awareness needs and initiatives of the bar.
Similarly, a program operated by the Discrimination and Harassment Counsel (DHC) in the Canadian province of Ontario accepts reports from persons who may wish to anonymously share their experiences and obtain guidance. Once a report is made, the DHC can provide a range of confidential services to individuals. In addition, the DHC’s biannual reports includes anonymized data to enable the Law Society of Ontario to “better address systemic issues of discrimination and harassment in the legal professions.” The DHC program in Ontario and the confidential reporting scheme in Victoria point to the value of the organized bar providing confidential channels for persons to share their experiences.
To address the serious problems of discrimination, bias, and harassment in lawyer workplaces, regulators and the organized bar should take steps to address covert, as well as overt discrimination. A first step is for the organized bar to pursue strategies, such as the online survey that Professor Root Martinez proposes. Such a survey will help us better understand the nature and extent of the problem, while providing a channel for aggrieved persons who otherwise might suffer in silence. By proactively pursuing initiatives to give lawyers a voice, bar leaders and regulators demonstrate they are serious about their pronounced commitment to promoting diversity and inclusion.
Margaret Thornton’s work has had a defining role in the landscape of socio-legal scholarship in Australia and across the common law world for the last generation. She has long critiqued the neo-liberal turn of our major institutions (especially in the academy and legal profession) with an emphasis on profit maximisation. She coined the term “Benchmark Male” to capture a prevailing notion of an “ideal worker” with supposed attributes often unattainable for women and others struggling under the yoke of gendered roles and assumptions. In The Flexible Cyborg in 2016, Thornton described the results of her qualitative empirical work, which found that technology enabled “temporal flexibility dovetailed with the feminisation of labour in the late twentieth century” resulting in women lawyers simply doing more (full time work and domestic duty). Thus, she has long documented how an economy enabled by the uptake of technology has “colonised new sites” including the personal sphere. Her latest contribution, Towards the Uberisation of Legal Practice, is also concerned with working patterns and gendered effects but provides a more upbeat reflection on an aspect of modern legal practice driven (to an extent) by a desire for “being happy.”
Thornton bases her discussion on a relatively small, empirical project comprising of 38 interviews with Australian and English lawyers within “NewLaw” firms. However, the interviews were in-depth discussions, which ultimately generated rich insights concerning lawyer experience and opinion. By focusing on the process as well as the outcome of disruption of traditional legal career patterns and expectations, her project zeroed in on the following questions:
Why lawyers had left traditional practice, established a new firm or had chosen to become independent contractors, and what working flexibly mean for them, how comfortable they were with the technology and what measures were being undertaken to prevent work from encroaching on their private life. (P. 48.)
Thornton describes a NewLaw firm as a “blended or hybrid model” still run by lawyers (usually as a fully incorporated legal practice available under Australian legislation) but with “varying degrees of centralised support” and control, and intensive use of IT specialists and legaltech. It could be a boutique firm with a handful of lawyers specialising in a new market or a hub for a large cohort of lawyers on contract. In both cases, the organisations seem to comprise of refugee senior practitioners from medium to large law firms. What is universal in approach is the sloughing off of a static physical presence—expensive offices are gone as both a cost saving method and a signal of a deliberate break with the past. Also gone is the hierarchical nature of traditional firms, that has long been implicated in a range of intractable barriers for women and persons of color in attainting seniority. Several interviewees described changing terminology—from “partner” to “practice leader”—to signal a shift in lock-step careers and autonomy levels.
NewLaw is a different species to the myriad solo practitioner providing traditional services to one-off individual clients, even with legaltech enhancements. It may emerge as a true competitor to medium and large law firms for clients and staff, as it is largely focused on corporate clients offering legal advising, tech solutions, and legal personnel on secondment. Secondments may have been a large law firm practice for some time, but there are now deliberate business models responding to this demand. Thornton concludes that this “point[s] to the remarkable agility of NewLaw in responding to perceived gaps in the market.” (P. 51.) Nevertheless, she concedes that, at this stage, it is a small sub-strand unlikely to replace an increasingly profitable BigLaw sector that has better capacity to provide training and a full suite of services.
Thornton’s study also documents several organisations with an access to justice orientation that rely on technological educational resources and low-cost online services. Innovative, technology-enabled approaches to intractable access to justice problems have been a particular focus for many scholars such as Deborah Rhode. Thornton’s discussion points to these models as part of a NewLaw ethos of rejecting neo-liberal ideology, but her discussion relates mostly to the less studied corporate NewLaw firm and its “disruptive innovation” in this legal services market. She explains this process by quoting her interview subjects who provide examples of Clayton Christensen’s theory of an existing market that has inherent limitations making it vulnerable to change-makers. For instance, the partners of NewLaw firms cite familiar characterisations of law firms with “dysfunctional” time billing practices and pyramidal structures based on hyper-competition and a lack of transparency. The response is to “transcend narrow issues of legal regulation and creatively address contemporary problems” through new organisational arrangements and working styles. It is apparent that these lawyers are aware of innovation theory echoing Richard Susskind’s deconstructive terms for future legal workers—describing “solutionists” focused on “faster, better, cheaper.” (P. 49.)
A key contribution of Thornton’s article is its examination of an emerging transformation of conceptions of lawyering and an evolution in the provision of legal services. The stated virtues of NewLaw are independence, autonomy, flexibility, and choice. These are cited as advantages unavailable in BigLaw. In the U.S., Joan Williams has reported on the stigma attached to legal workers who attempt to avail themselves of flexible employment policies. Williams, with Platt and Lee, however, tell a happier story: that new legal organisational structures have provided true access to flexible work with supportive cultural environments. Thornton’s investigation of the mushrooming of NewLaw as a lifestyle choice for weary corporate lawyers in Australia makes similar findings.
That said, Thornton is cautious about this self-confessed new way, pointing to significant issues facing a contractor model where there is a greater risk of isolation and economic exploitation. She also concedes that, to the extent this sub-industry becomes identified as a feminised enclave, it may suffer the usual “invidiousness associated” with that characterization, including lower rates of pay and status (and there is already some evidence of this). We are yet to track whether there is the same structural exploitation of female labour, and vulnerability of workers with caring responsibilities, as has been observed in BigLaw. Nevertheless, it appears that, in this new approach, women are not the traditional “fringe-dwellers” Thornton has long observed in law.
Thornton’s greatest caution relates to junior lawyers. NewLaw engages with and addresses challenges experienced by senior lawyers, and it generally provides a model premised on senior lawyers’ ability to attract clients and work independently. There is scant space for junior lawyers to acquire skills and contacts needed in a contract- or specialist-based model. For those seeking to bypass BigLaw, participating in this gig economy too early presents all of the dangers represented by the ride-sharing company (Uber) that her title references. Thus, she warns that NewLaw does nothing to alleviate the “growing precariat” of junior lawyers.
Thornton’s article reports the stories of converts to NewLaw. As such, it is a partial perspective on this growing trend. However, as Thornton and her participants emphasise, it is a movement committed to leaving behind undesirable aspects of the legal workforce (presentism, discriminatory nepotistic or homosocial behaviours, hyper-competition, and exploitation of the client in some cases). For some lawyers at least, this provides a prospect of a happier life in law. Thornton observes more broadly that where the new models prove economically sustainable, they may in the future “change irrevocably the nature of legal professionalism.” (P. 60.) Since the publication of her article in November 2019, there has been a drastic acceleration of reliance on virtual working environments as a result of a global pandemic (Covid-19). The article’s predictions for a transformed profession seem to have been brought forward. And yet, as Thornton’s article recognizes, we need to be attuned to its uneven and potentially unequal impacts upon lawyers and law practices.
Ramsey Clark is a bit of a mystery. As Attorney General, Clark fought diligently for civil rights. He began his career as an insider who was independent and critical but seemed to respect the institutions in which he worked. The son of Supreme Court Justice Tom Clark, he made enemies when he served in the Johnson administration, but he was hardly radical. When he left government work, however, his practice took an unusual turn for a lawyer of his stature and pedigree. Like the famous leaker of the Pentagon Papers, Daniel Ellsberg, Clark went from consummate insider to unyielding government critic. He went on to represent infamous clients like Saddam Hussein, the Palestinian Liberation Organization (PLO), and President of Syria Bashar Al-Assad. He also defended two former Nazis in deportation proceedings and stood by Elizaphan Ntakirutimana, a Hutu clergyman accused of luring Tutsis to their slaughter during the Rwandan genocide. Conducting these representations with skill, Clark often seemed fond of his clients, kind and even admiring at times. All the while, he relentlessly criticized the United States for its cruelty and hypocrisy.
In this biography of Clark, author Lonnie T. Brown, skillfully leads us through his subject’s life and career, giving us clues as to why Clark turned into such an unyielding critic of his country. Clark was involved in so many major events in American history that the book offers a unique perspective on the last sixty years. But Defending the Public’s Enemy is more than just a retelling of famous events in our past. Ramsey Clark’s unflinching independence offers insight into the role of the Attorney General, a particularly timely topic. His later career as a defense attorney and activist—representing some of the most notorious individuals—sheds new light on age-old discussions of how lawyers, especially the elite of the profession, should choose their clients, and how they can justify defending villains. Finally and most importantly, Clark’s transformation, his personal story, told directly to the author, is a story of the American Left. It helps us understand the political landscape in a way that most political and cultural histories cannot.
Clark worked in the Department of Justice (DOJ) during the Kennedy administration, and when President Lyndon Johnson replaced Attorney General Bobby Kennedy with Nicholas Katzenbach, Clark was chosen as Deputy Attorney General. He spent his early career in the DOJ working to protect civil rights. He traveled throughout the South to enforce the desegregation mandate of Brown v. Board of Education.
In the early 1960s, as the Freedom Riders rode buses through the South to protest segregation and African-American activist, James Meredith, sought admission to the University of Mississippi, Clark became more actively involved in the administration’s response to the civil rights movement and its backlash. Horrified by the violence these peaceful demands met, Clark drafted a memorandum to Robert Kennedy urging legislation, an early inspiration for the Civil Rights Act of 1964. In 1965, he coordinated the U.S. Army troops and the Alabama National Guard to protect marchers in Selma, Alabama, and he responded to the riots in the Watts neighborhood of Los Angeles, by studying and drafting a report on the causes of racial unrest.
Once elevated to Attorney General in 1967, Clark devoted much of his time to shaping the Johnson administration’s response to the civil rights and the anti-war movements. Inspired by Martin Luther King, Jr., Clark considered himself a pacifist. He privately opposed the war and clashed with F.B.I. Director J. Edgar Hoover, who sought to use the power of the DOJ to undermine King and other civil rights and anti-war leaders.
As the struggle for civil rights grew more violent, Stokely Carmichael and H. Rap Brown vied for control. Clark continued to support government institutions and advocate for a lawful response to injustice. Yet his personal involvement, working with local civil rights leaders and law enforcement authorities in the aftermath of the race riots of the late 1960s, gave him a complex understanding of the racial dynamics in the U.S. He sympathized with activists like Carmichael and Brown who, frustrated with the slow pace of change, demanded a more immediate solution than King’s peaceful protests could achieve.
At the same time, however, he believed in the rule of law and in government institutions, leading to willing (if not enthusiastic) enforcement of the Selective Service Act that authorized the draft. Despite pressure from members of the Johnson administration, however, Clark refused to seek an indictment against black activist Stokely Carmichael for his vocal anti-war stance. Instead, he prosecuted a group of wealthy, white protestors who came to be known as the Boston Five. Clark justified his decision for pursuing the Boston Five rather than Carmichael, by appealing to traditional rule of law values like the relative strength of the cases, though as Brown explains, Carmichael was probably guiltier than Spock and his cohort. Perhaps, as the author speculates, Clark refused to prosecute Carmichael because he empathized with the message that Black Americans should not have to fight a war for a country that denied them equal rights.
Clark’s independence was admirable. He refused to let political pressure influence his decisions in individual cases. However, as Brown explains, his repeated rejection of the administration’s policy goals bordered on arrogance. As a result of his intransigence, Clark was excluded from meetings of the National Security Council and increasingly seen as a hostile outsider rather than a trusted member of the cabinet.
Clark’s clash with the other members of the Johnson administration demonstrates the importance of an independent Attorney General. Defensive about his role in the war and angry about perceived ingratitude for his efforts on behalf of the black community, Johnson had a political vendetta and was not in a good position to determine whom should be prosecuted. But at the same time, Clark serves as a reminder of the dangers of law enforcement unmoored from democratically elected officials. This need for balance between independence in individual prosecutions and a responsiveness to administration policy can help inform us now, as we seek to understand the proper relationship between the Attorney General and the President.
When Clark left government, he took his opposition to the war to a new front, defending anti-war activists. Skeptical of government representations about the scope of the war, he also traveled to North Vietnam with a group investigating the accuracy of reports on the nature of U.S. aggression. After the war, Clark’s controversial list of clients grew. He represented one of the inmates in the infamous Attica prison uprising, as well as radical civil-rights figure Ruchell Magee. But he drew the most criticism for his representation of Nazi war criminals, Karl Linnas and Jack Reimer, as well as his long-time relationship with the PLO and Saddam Hussein.
How, Brown asks, could a man dedicated to peace and equality take on such violent and bigoted clients? Every accused man deserves a defense, the old line goes, but perhaps not all deserve a lawyer as skillful as Ramsey Clark. And in any event, they certainly do not deserve Clark’s affection. Brown considers a few theories. Was Clark an anti-Semite? Brown engages the possibility but ultimately dismisses it. Did Clark grow angry and distrustful of the government because he witnessed America lie to the public during the Vietnam War and use unlawful tactics in its fight against civil rights activists? That is certainly true, but it does not explain why he represented the PLO or the Hutu reverend. Nor would it account for his seeming affection for some of history’s worst villains. Instead, Brown suggests that Clark was disillusioned with the U.S. government, in part, because it tends to dehumanize its enemy, which in turn legitimates cruel and even unlawful actions and policies. Clark, in reaction and defiance, learned to find the humanity in his clients, even in those who had committed grave wrongs. The purpose of his controversial representations then became finding humanity in even the worst criminals.
In addition to an insight into Clark’s motivations, this analysis serves as an interesting contribution to an old, legal ethics debate, most famously expressed in an exchange between Monroe Freedman and Michael Tigar about whether a lawyer, especially one with elite status, has an obligation to offer a public justification for representing an unpopular client. If one accepts Freedman’s view that lawyers do have this duty, Clark’s example offers one such possible justification. As Abbe Smith has written, “defense lawyers try to find the humanity in the people they represent no matter what they have done.” They are drawn to the outsider. As Clark himself explained, “By instinct, I am a maverick. I rather like the outside way. It’s more fun.” (P. 31.) Finding the humanity in a client, as Clark’s story shows, is not just a personal choice but a political conviction based on his assessment of how government power corrupts.
But as Brown notes, resisting dehumanization and finding the humanity in the evilest enemies of the state blinded Clark “to other possible alternative realities and made him do to his nation what he contends his nation does to others. He has demonized America, or at least the American government.” (P. 199.) I would go even further to argue that Clark, in his later life, seems to distrust all power. Israel may be the home of people targeted by the greatest genocide in world history, but it is rich and powerful now, so Clark chose to serve the Palestinians because they are not. The Hutus grotesquely abused their power in Rwanda; however, by the time Clark represented Ntakirutimana, the Tutsis had taken control, so Clark was representing a member of the disfavored group. It seems that his proximity to American leaders taught him that power and ambition corrupt, necessitating that he stand with the least powerful to combat that inevitable degradation.
The question this book poses, and Brown’s thoughtful if tentative answer, do more than contribute a new voice to a discussion in professional ethics. They also suggest a possible insight into the development of the American Left. Why, some wonder, does the Left seem to hate America? Why do progressives equate all of the country with its worst historical institutions, such as slavery and Jim Crow? While many dismiss these critics as modern-day McCarthyites, and insist that the Left is patriotically holding America to its highest promise, there is at least some truth to the fact that the Left focuses on the country’s wrongs. The same critics ask, why do those on the Left seem to favor every marginalized group over those with power regardless of their relative merit? Again, the question may unfairly characterize the Left. But to the extent there is truth in the query, the answer may lie in part in Clark’s story. Disaffected with the government and horrified by what happens to those in power, the Left chooses to stand by individuals and groups who have none.
Charles Yablon writes mostly in fields adjacent to Professional Responsibility, such as civil procedure and jurisprudence. However, as a junior associate at a big law firm in the mid-1990s, I found his article on discovery abuse to be refreshingly clear-eyed and unsanctimonious about an ethical problem that was pervasive in my own practice. Ever since then, I have considered him as a kind of honorary legal ethics scholar. It was therefore with considerable interest that I noticed his new paper on providing legal assistance to clients in activities he refers to as “not quite legal.”
Permissible legal assistance to businesses in the emerging cannabis industry is becoming a popular CLE topic (I am presenting a seminar this summer entitled “High above Cayuga’s Waters?”). The discussion is usually framed around Model Rule 1.2(d), which states that a lawyer may not “counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.” Even in a state in which medical or recreational use of cannabis products is permitted under state law, a dispensary or other business is still committing a serious federal felony of possession and distribution of a controlled substance. The on-again, off-again practice by the Justice Department of turning a blind eye to marijuana-related offenses in legal-use states raises an interesting jurisprudential issue. Yablon argues that the formal legal prohibition on the possession or sale or marijuana “should not be treated as the sole dispositive fact” regarding its legality. (P. 345.)
This jurisprudential approach sounds radical, but it is consistent with mainstream philosophy of law. As Joseph Raz contends, all legal positivists are committed to the Sources Thesis, which holds that the existence and content of a law can be determined solely with reference to its sources, excluding normative considerations such as morality. An official policy of non-enforcement or a clear trend in the direction of legalization could be sources of law, in Raz’s sense. If they are, one might be justified in concluding that operating a cannabis dispensary in a legal-use state is not actually a crime, notwithstanding the federal statute, and a lawyer providing legal services to the dispensary would not be in violation of Rule 1.2(d). Similarly, Yablon argues that a lawyer may be justified in concluding, on the basis of objective evidence, that the conduct is likely to be permitted in the foreseeable future. (Pp. 379-80.) In that case, the lawyer might believe that Rule 1.2(d) does not prohibit providing legal assistance to a dispensary. (I should note that many states, either in ethics opinions or amendments to the rules of professional conduct, have sought to carve out an exception to Rule 1.2(d) for lawyers assisting state-legal cannabis businesses.)
Yablon usefully expands the scope of “not quite legal” conduct to include, not only cannabis distribution, but also self-styled disruptive companies like Uber and Airbnb. Love them or hate them, one characteristic of many of these newfangled businesses is their indifference to existing regulations. Uber famously charged into cities in which its business model was prohibited by taxicab licensing and regulation schemes, and defied regulators to come after it, knowing that its popularity with customers would insulate it from enforcement. Here’s where things get extremely interesting from the point of view of jurisprudence and legal ethics. Many taxi licensing regulations, and also the byzantine hotel regulations that hobble—or at least complicate—Airbnb’s expansion, are anticompetitive and are the product of rent-seeking by well-connected local industry lobbyists.
Beyond that, there is much to like about these companies. I loathe Uber’s ethical culture, but I must admit that it significantly outperforms legacy taxi companies on measures of customer service, convenience, and price. Suppose, for the sake of argument, that Uber and Airbnb have greatly increased the aggregate utility of society, albeit at the cost of significant harm to certain groups, such as taxi medallion owners. Of what relevance is this observation to the duties of lawyers representing these companies?
The great ethical risk presented by the valorization of disruptive business models is encouraging lawyers to see the law as nothing more than an inconvenient obstacle to be avoided, planned around, or engineered out of the system. In one of the news sources cited in Yablon’s article, the Chief Legal Officer of Uber was quoted as saying:
I tell my team, “We’re not here to solve legal problems. We’re here to solve business problems. Legal is our tool….I am going to be supportive of innovation.”
(P. 350.) Legal questions thus become risk-management problems, with the risk to be minimized by creative lawyering.
It is often observed that lawyers love the mantra “zealous advocacy within the bounds of the law,” but tend to forget the “bounds of the law” part. Similarly, some corporate legal departments appear to promote the value of innovation or problem solving, while forgetting that they, too, must advise their clients within the bounds of the law. Here is where the interesting jurisprudential argument returns. Who says the bounds of the law are static? Isn’t it the lawyer’s job to push the bounds of the law? If the legal profession had been content to stay within the bounds of the law, we’d still be living with Plessy v. Ferguson.
There are several responses to this line of argument. One relatively straightforward response is that much of the legal change we applaud in our system occurs through litigation, in which a party seeking to extend, modify, or reverse existing law must argue openly and on the basis of persuasive legal authority for the change. Yablon agrees that Uber and Airbnb, as well as players in the emerging cannabis industry, are “genuinely engaging in a version of law reform.” (P. 366.) Their conduct can be distinguished from that of truly antisocial actors who are simply evading the law in two ways. First, their conduct is aiming at some socially beneficial legal change, and second, their violations are transparent and thus could be subjected to challenge by regulators or those affected by the conduct. (Pp. 368-70.) In this way, Yablon seeks to connect the ethics of lawyers for these companies with the tradition of civil disobedience.
Civil disobedience proceeds from the assumption that the law in question is valid, though unjust. John Rawls refers to it as “disobedience to law within the limits of fidelity to law.” A more subtle defense of the conduct of lawyers for Uber and Airbnb would, therefore, be to deny that the law on point actually prohibits the companies’ conduct. The starting point for this argument would be a kind of anti-formalist approach to legal interpretation that should command broad agreement. Sources of the law, again following Raz, can conceivably include a range of interpretive conventions, including maxims of statutory interpretation, rhetorical techniques such as broad and narrow framing of rules, and specialized doctrines such as desuetude for outmoded statutes. Yablon notes that Airbnb has a plausible legal argument in support of its activities, while Uber more clearly (and repeatedly) violates many existing laws. (P. 357.) There is room for legal change within the bounds of the law, but the bounds cannot be stretched indefinitely. Beyond some point, lawyers advising a client are acting wrongfully, either because their advice and assistance runs afoul of the prohibition in Rule 1.2(d) or, more controversially, because even in situations where the client conduct is not a crime or fraud, it is contrary to the principal-agent structure of the client-lawyer relationship to permit the lawyer to act on the basis of inadequate legal authorization for the client’s conduct.
Where is the boundary? It is quite literally the entire job of lawyers to answer that question. There is no simple, algorithmic response that can substitute for the informed professional judgment of the professional community. Notice that slippage? I shifted from talking about the individual lawyers in question to community-based standards of judgment. Uber lawyers don’t get to decide for themselves whether their company’s disruptive technology is socially valuable enough to justify defiance of the law. Rather, there is an objective standard of reasonableness that can be used to analyze and critique the reasoning offered by lawyers (or, in a hypothetical vein, reasoning that could in principle be offered by lawyers). It would be possible, for example, to criticize Uber lawyers and give lawyers for Airbnb a pass. This ethical analysis is necessarily engaged legal analysis, however, and not a direct implication of the alleged social value of these businesses.
Even if Yablon may not be a card-carrying member of the community of professional responsibility scholars, we ought to welcome this contribution to “our” literature. His article reminds us that our ethical obligations do not depend only on the rules of professional conduct, but may turn on some subtle and contested issues in the philosophy of law.
- Atinuke Adediran, The Relational Costs of Free Legal Services, 55 Harv. C.R.-C.L. Rev. __ (forthcoming, 2020), available at SSRN.
- Atinuke Adediran, Solving the Pro Bono Mismatch, __ U. Colo. L. Rev. __ (forthcoming, 2020), available at SSRN.
One of the things that struck me most early on in law school was the notion that some paths were considered more elite and desirable than others. I simply didn’t understand why my classmates were obsessed with particular opportunities. That was, until I attended a diversity reception at a large law firm during my first year, where someone mentioned the starting salary for lawyers (at the time $125,000). Suddenly, I understood why law students seemed so desperate to secure jobs at large law firms after graduation.
As it turns out, those running elite, large law firms understand that some law students experience a conflict when deciding on what path to take after graduation: pursue the money and perceived prestige associated with the work done by large law firms or fulfill a desire to help people without easy access to legal services. It is important, at least in part, for there to be strong pro bono initiatives at elite large law firms because they enable talented attorneys to pursue both goals in tandem. Atinuke Adediran’s recent work, however, challenges the efficacy of that narrative.
In 2017, Professor Adediran conducted a qualitative study of the relationship between pro bono services provided by large law firms via nonprofit legal services organizations (NLSOs), and she draws upon her fascinating findings in two forthcoming papers: The Relational Costs of Free Legal Services and Solving the Pro Bono Mismatch. To obtain a better understanding of the relationship between NLSOs and large law firms, she interviewed thirty-eight executive directors or pro bono coordinators of NLSOs and thirty-six individuals at large law firms responsible for coordinating each firm’s pro bono activities. What Adediran found is that the pro bono services provided by elite large law firms often do not line up with the true needs of the poor identified by NLSOs—and this disjunction, she explains, creates a “pro bono mismatch.” Perhaps more importantly, she founds that the power dynamic between law firms and NLSOs is often imbalanced, with NLSOs sometimes spending significant resources on pro bono matters that are more important to the lawyers at law firms than the poor the services are supposed to help. In short, big firm lawyers providing pro bono services to the poor may not be doing as much good as they—and we—think in addressing the need for greater access to legal services for certain populations.
In Solving the Pro Bono Mismatch, Professor Adediran addresses the mismatch between the pro bono preferences of law firms and the needs of the poor. In particular, she explains how the individual interests of lawyers contribute to firms’ selection of pro bono matters, leading them to focus on certain types of pro bono work, like immigration, over others, like housing or family law. For example, one individual she interviewed explained that many litigation partners are “uncomfortable being involved in a family law case.” Additionally, another interviewee explained that lawyers tended to work on matters within their comfort zones, due to a fear that they might “screw up really badly” on matters too far outside their areas of expertise. In short, her work demonstrates that elite lawyers themselves are driving the demand of certain types of pro bono work as opposed to the preferences of those who are actually in need of legal services.
In The Relational Costs of Free Legal Services, Professor Adediran, again harnessing new and important insights from her qualitative study, explains some of the background for how the pro bono mismatch between large law firms and NLSOs has impacted the delivery of pro bono legal services in potentially important ways. As the government reduced its funding for civil legal services during the 1980s and 1990s, NLSOs had to find resources from other avenues. For many NLSOs, the support of elite large law firms—both in terms of actual monetary donations as well as the “free” labor provided by firm attorneys—became indispensable. One consequence is that NLSOs are required to keep the firms that provide vital resources to them happy, often leading NLSOs to accept relationships with firms that result in less-than-optimal pro bono services that fail to meet the most acute legal needs of the populations the NLSOs were meant to serve. Additionally, Professor Adediran demonstrates that it can be quite costly for attorneys at NLSOs to supervise the work of a law firm attorney engaged in a type of pro bono matter for the first time. Those investments would make sense if each law firm lawyer committed to take on several similar pro bono cases (so the lawyer’s initial training would pay dividends going forward), but instead, an attorney will often complete a type of matter only once, requiring the NLSO attorney to repeatedly engage in costly and time intensive supervision. And because the NLSO depends on the law firm for survival and wants to ensure that it remains happy, the NLSO is often not in a position to demand arrangements at firms that would be less costly and more efficient for the NLSO attorneys.
Professor Adediran puts forth some rather bold suggestions to resolve the issues she identifies. For example, she suggests that each state creates a centralized pro bono system, which would provide participants with better information about local pro bono legal needs and allow for the identification and prioritization of areas with the greatest needs when allocating pro bono matters to firms. Additionally, she suggests harnessing the power of intermediaries, like American Lawyer Media rankings, to apply pressure on law firms and incentivize them to engage in pro bono efforts more closely related to the needs of the poor, thereby helping to reallocate power between law firms and NLSOs.
Whether or not you agree with Professor Adediran’s conclusions, the insights from her study and subsequent papers are important contributions to conversations concerned with the ways in which pro bono legal services are provided by large law firms and other providers and, therefore, the ways in which the poor are able to access legal services. For those leading NLSOs, her work suggests it may be time to think through mechanisms that will shift the current balance of power between NLSOs and the elite, large law firms they partner with. For those charged with overseeing pro bono efforts at large law firms, her work suggests it is time to consider how pro bono activities could be restructured to make them less costly for NLSO partners and more aligned with individuals’ demand for legal services. And for those who study the legal profession, her work offers a trove of qualitative information that will serve as a springboard for future work in the area.
In short, Professor Adediran’s work is interesting, insightful, probative, valuable, and definitely worth the read. To say “I like it a lot” would be an understatement!
Cite as: Veronica Root Martinez, Legal Elites Serving the Poor (or Not?)
(February 20, 2020) (reviewing
Atinuke Adediran, The Relational Costs of Free Legal Services
, 55 Harv. C.R.-C.L. Rev.
__ (forthcoming, 2020), available at SSRN.
Atinuke Adediran, Solving the Pro Bono Mismatch
, __ U. Colo. L. Rev.
__ (forthcoming, 2020), available at SSRN.
Legal scholarship that creates new avenues of inquiry is inherently appealing, but when it also reveals obscured narratives of power in American society, you have the makings of a truly important contribution. Shortlisted: Women in the Shadows of the Supreme Court, by Hannah Brenner Jonhson and Renee Knake Jefferson, is all that and an engaging read besides. In their book, Brenner and Knake resurrect the largely forgotten history of accomplished female lawyers nominated but not selected for the Supreme Court. As these narratives highlight the pitfalls of being shortlisted rather than selected, Brenner and Knake’s work queries whether the term “shortlisted” is pejorative rather than a boon for female candidates. The authors present the harm of historical obfuscation as compound: “it is not just that the women were denied positions of distinction, but that their tales have been subjugated…unfairly stifl[ing] national imagination.” (P. 133.) Compiling this history and bringing it forward alone would be enough to make the book worthwhile—but the project doesn’t stop there. Instead, Shortlisted also ambitiously engages with the question of how to sidestep such marginalization moving forward.
Throughout the book, stories of highly qualified female candidates who are summarily eliminated from contention or only facially considered for political cover pulls the distinction between consideration and appointment into stark relief. (One reporter quoted in the book notes, “The women…reflect another White House strategy: mentioning certain names to score political points, while not taking them seriously as contenders.”) (P. 122.) The book begins with a deep dive into the life of Florence Allen, a jurist “universally respected” for her work ethic and intellect, who was shortlisted by President Truman. She is not only the first person on the shortlist—in a way, she bookends Sandra Day O’Connor—but her downfall became Justice O’Connor’s entrée. Before nominating Judge Allen, Truman consulted with then-Chief Justice Fred Vinson about her potential nomination. Chief Justice Vinson negatively responded that the presence of a woman would inhibit needed deliberations amongst the men. As such, Judge Allen’s nomination stalled; she was shortlisted, more of an end game than a path forward. Only with this context, can one truly appreciate the weight that the law school friendship between Chief Justice Rehnquist and then-nominee Sandra Day O’Connor played in history. If the two hadn’t been friends, would history have been different?
While the bulk of the women shortlisted for the high court are white, Brenner and Knake are aware of pitfalls of colorblind feminism, and they highlight the intersectionality barriers that women of color face in gaining status commensurate to their experience and talents. The luminous career of Amalya Lyle Kearse, the first and only women of color considered for the Supreme Court prior to Justice Sotomayor, highlights some of these additional dimensions to the shortlisting paradox. The first female and first black partner at her Wall Street law firm, she was also the first women elected to the American Association of Trial Lawyers and a member of the American Law Institute. By the time Judge Kearse ascended to the Second Circuit in 1979, she was only 42 years old. Although she served for an illustrious four decades on the Second Circuit, Judge Kearse was shortlisted twice to the Supreme Court, only to be set aside.
Each of these lawyers’ stories is relevant, important, and worth reading in any format. However, Shortlisted has the added bonus of being more entertaining than a virtuous slog through a survey of names and dates. Taking care to add nuance and color to what might otherwise be dry, Knake and Brenner pepper the recounting of the past with the voices of historic figures. Plucking plums from presidential libraries, news articles, and audio recordings, Shortlisted delights with references that leave one thinking “that’s rich.” (One particular favorite—Richard Nixon states, “I don’t think a woman should be in any government job…they are erratic. And emotional.”)
After O’Connor’s appointment, the book shifts to examine how women fared more broadly in the federal judiciary, to review impediments to additional judicial appointments, and to provide a brief treatment of the appointment and confirmation processes of Justices Ginsberg, Sotomayor, and Kagan. These factual retellings are less interesting than the normative brainstorming that follows: how to move women from the shortlist quicksand to actual nomination and finally to appointment and confirmation. Here, the authors seek to find intergenerational themes of subjugation in the specific histories they’ve just recounted to draw lessons for moving forward. The shortlisted women’s stories share certain common experiences of objectification (either through scrutiny and commentary on their physical appearances or using their candidacy instrumentally as a pawn in political chess), laser-like focus on their family status and obligations, each of these compounded by intersectionality with rigid sexual norms, age-related tropes, and racial bias.
This is a lot for anyone to bite off and chew, but Shortlisted resists the temptation to come up with a glib and pithy eleventh-hour answer. Some might fault the book at this point for failing to deliver on the promise of a straightforward solution. To this, I would counter that this book is best understood as an invitation to the scholarly community—to do more historical research, to invest in the project of building pragmatic solutions for working attorneys. The book enumerates, without embellishment, observed common themes and focuses the bulk of its remaining energy on presenting recommendations for getting more women selected for judicial appointment and confirmation. Some proposals require institutional reform such as the creation of systems of accountability that document inequity; some—like access to universal childcare—are practical. But the authors are aware that broad buy-in is needed for these suggestions to materialize and therefore home their energy towards recommendations that empower individuals to implement change. Specifically, they talk in terms of women’s deliberative choices: choices about partners and friends and how to use legal education to collaborate professionally and support other women, and the choice to create meaningful opportunities elsewhere rather than linger in dead-end environments waiting for Senator Godot to pluck them from obscurity. (P. 193.) While Shortlisted’s proposed fixes are not exhaustive, the book has ignited a brain buzz that is still simmering—and that will likely continue for weeks to come.
The conventional wisdom has long been that law school, especially at the elite level, is a hostile place for students aspiring to pursue public interest careers—those whose professional goal is to serve a larger social cause, not just individual clients. The concept of public interest “drift,” coined by Robert Granfield in his seminal study of Harvard Law School students in the early 1990s, held that students who started on the public interest path dropped off in substantial numbers due to a range of law school factors. Key among them was the ideological transformation that occurred during the 1L year: when students were subtly taught to abandon their moral commitments in favor of a hired-gun professional ethos. Duncan Kennedy’s classic polemic, Legal Education and the Reproduction of Hierarchy, provided a nonempirical vision of this same phenomenon, identifying the pedagogical mechanisms through which 1Ls were asked to submit to a “double surrender” to the infantilizing 1L classroom experience of deference to the professor and to a more profound nihilism: that there is no right or wrong, only arguments to be made.
In a powerful new empirical analysis, From Idealists to Hired Guns? An Empirical Analysis of “Public Interest Drift” in Law School, John Bliss upends this conventional wisdom by showing how 1L public interest identity is more ill-defined and pliable than often thought and by placing more emphasis on the 2L hiring cycle than the 1L classroom experience as the crucible of assimilation. Methodologically, Bliss selects a different empirical design than previous “drift” research. Instead of using surveys to assess attitudinal change, he followed over 50 elite law school students during the first two years of law school: using interviews, ethnographic observations, and identity mapping (a technique in which he asked students to graphically depict the centrality of different identities to their sense of professional self). (P. 1990.) In addition to deploying a different methodology, Bliss also looked at the law school timeline through a different lens, assessing attitudinal change during the first two years of law school and focusing particular attention on the 2L summer hiring process. Four facets of his analysis stand out.
First, Bliss problematizes the very concept of public interest “commitment” by presenting a more nuanced account of the actual “uncertainty” that many students professing a public interest commitment experience. Although he confirms the existence of a 1L public interest “subcultural community” that feels marginalized from the law school mainstream, he paints a more complicated picture. (Pp. 1995-96.) Specifically, by focusing on “drifting” students—those who move from a 1L public interest aspiration to a 2L summer law firm job, Bliss uncovers how the ambiguity of public interest commitment interacts with background factors and law school culture. With respect to demographic factors like race and class disadvantage, Bliss finds that “social identities can cut both ways with respect to job-path preferences—as sources of commitment to working with underserved communities and as motivation for working in elite firms where minorities, women, and people from working class backgrounds are underrepresented.”(P. 2001.) The most interesting finding, however, relates to the professional uncertainty expressed by drifting students overall. One subject captured this sentiment: “[W]e don’t know what we are doing, as much as we like to say we do.” For drifting students, Bliss concludes that “the 1L experience appears to generally produce only a slight alteration from an initial unspecific preference for public-interest careers in the first year to an exploratory and risk-averse decision to apply to large firms at the end of the 1L summer.”(P. 2003.) Thus, contrary to the picture of strongly held views being dislodged by 1L pedagogy and firm-oriented culture, Bliss suggests, at least for drifting students, those views are much less solidified at the outset.
Second, Bliss reconceives the salient timeline for understanding when and how drift occurs. At the school he studied, big law firm interviewing started at end of 1L summer, while the application process for post-graduate public interest jobs occurred much later, generally in 3L year. Bliss found that drifting students were particularly worried about career prospects, felt like they lacked information about public interest options, and believed that, because public interest jobs were more competitive, applying to firms was a strategy for hedging career risk. Not wanting to “close any doors,” the “sum of these risk factors made the decision to upload their resumes for [summer law firm jobs] feel necessary and even overdetermined.”(P. 2006.) Once the students entered the interviewing process, their ambivalence translated into moderated views about firm lawyers, who were surprisingly “nice” and “chill.”(P. 2008.) Although many students cared about pro bono opportunities, they found themselves “re-narrating” their public interest background to emphasize law firm commitment, not pro bono interest, in order to secure offers.
However, and this is the third point, students did not completely reconcile themselves to law firm life. Although they tended to tell themselves stories “obscuring doubts” and making them “open to other things,” these internal stories did not produce complete professional acceptance, but instead led to greater ideological fragmentation in which professional identity became less core to one’s sense of self: the law firm gig was just a job. (P. 2015.) Interestingly, instead of fully embracing the law firm mission, drifting students continued to harbor moral reservations, expressing hope of returning to public interest law after paying down debt. Thus, although cognitive dissonance permitted students to justify the choice to accept the firm job, their resolution of moral qualms was never complete.
Finally, Bliss offers a set of innovative recommendations on how law schools might think differently about supporting public interest-minded students, particularly as they navigate the challenges posed by the law firm hiring process. Focusing on the fact that ambivalence and risk aversion are key factors producing drift, Bliss recommends interventions, like public interest specializations, that reinforce public interest subculture and provide more robust 1L education on career paths and professional identity. Relying on choice architecture theory, he also suggests other changes to nudge students forward on the public interest path: including things like pushing back the law firm recruiting process to spring of 2L year, and providing more opportunities for skills and professional formation in 1L year, which he believes could “lend understanding and unity across the corporate/public-interest student divide, mitigating competing accounts of deviance among first-year students.” (P. 2030.)
These are important ideas that law schools should take seriously. They also raise a number of unanswered questions and further puzzles. It would be interesting to know more about the race and gender dimensions of drift and how programs that strengthen subcultures interact at an intersectional level. Bliss suggests that more information earlier about the profession could promote better informed choices and reduce risk aversion. Yet courses on the legal profession and professional responsibility are notoriously disfavored by students, no matter where they are located in the curriculum. Very few schools have ventured to introduce the study of professionalism and the profession into the first-year curriculum, and the results have not been systematically studied. Moreover, the type of risk aversion that Bliss describes—opting into big law firm hiring—is a peculiarly elite institutional strategy. Students at lower ranked schools have to hedge risk in other ways and many opt for jobs in the public sector precisely because the law firm track is not available.
There are also large-scale trends and constraints: The economic model of elite law schools, driven by well-documented limits imposed by U.S. News rankings, is oriented around rising tuition nourished by a pipeline of large-firm jobs, which must be normatively sanctioned, even as schools must simultaneously promote commitment to supporting public interest careers as a recruitment strategy. Another constraint is the public interest job market itself. Because the number of public interest jobs, defined as those in the nonprofit and governmental sectors, are relatively fixed as a proportion of the overall profession, some have suggested that what ultimately limits entry is less the supply of aspirants than the demand for their talents. Bliss acknowledges this problem, but he suggests that increasing supply could help legal aid and other public interest groups by increasing the number of strong applicants, which would enhance the system overall. Bliss also suggests that strong support for public interest students could lead to lawyers entering private practice with a greater commitment to altruism—although this is complicated since the very subcultures necessary to sustain public interest commitment may be less accepting of broader public service conceptions of professional identity upon which the noblesse oblige model of the private lawyer rests. However, at a time when lawyers at the apex of power seem to have embraced the worst aspects of partisan advocacy, conceiving of strategies of professional integration and value-promotion that produce more public-minded lawyers, not just in legal aid but throughout the profession, might be the most important implication of Bliss’s significant study.
Elizabeth Chambliss, Evidence-Based Lawyer Regulation
, 97 Wash. U. L. Rev.
297 (2019), available at SSRN.
What should a modern legal service regulator look like? In some jurisdictions, like England and Wales, this question has resulted in dramatic reforms, such as taking the power of self-regulation away from lawyers. In contrast, much of the regulatory change in North America has involved relatively low-hanging fruit. Some new duties have been incorporated into codes of conducts, some economic restrictions have been lifted, and certain processes have been professionalized. There hasn’t been, however, any radical change.
For many years, the North American legal profession has defended this regulatory stasis with relatively simple appeals to broad concepts such as the “independence of the bar,” “the public interest,” and “professionalism.” In her recent article, Evidence-Based Lawyer Regulation, Elizabeth Chambliss argues that this approach is no longer sustainable and that “the profession’s authority over the regulation of legal services increasingly will require a commitment to evidence-based regulation.” In other words, if the legal profession wants to introduce—or even maintain—regulatory policies, it must offer convincing empirical data in support of such policies rather than simply lean on well-worn rhetoric.
In making her case, Chambliss points to two events that have created pressure for evidence-based lawyer regulation in the United States: (1) the 2015 decision of the Supreme Court in North Carolina Board of Dental Examiners v. Federal Trade Commission, and (2) the American Bar Association’s (ABA) 2016 adoption of Model Regulatory Objectives for the Delivery of Legal Services.
The N.C. Dental case did not directly involve lawyers or bar authorities; it was a dispute over whether non-dentists could perform teeth whitening. Nonetheless, N.C. Dental’s potential impact on the regulation of legal services was clear from the get-go, given the case’s engagement with how the state-action immunity doctrine applies to a professional regulator facing an antitrust challenge. In N.C. Dental, the Court held, inter alia, that state dental board, although statutorily defined as an “agency of the state,” was not entitled to state-action immunity due to the fact that the board was controlled by active market participants and did not receive adequate supervision. Chambliss notes that, following N.C. Dental, bar committees will have to demonstrate that their regulatory activities are subject to “active supervision” by the state (i.e. state supreme courts). She further observes that “most commentators read N.C. Dental as tightening the standard for ‘active supervision’ and signaling the need to produce a record of substantive, evidence-based review.” At the end of this section of the article, Chambliss concludes:
[N.C. Dental] is likely to reopen questions about the basis and scope of state courts’ inherent powers to regulate the practice of law. From a political standpoint, the organized profession should aim to get ahead of these questions, by making a credible commitment to evidence-based regulation.
The ABA’s 2016 adoption of Model Regulatory Objectives also, in Chambliss’s view, “represents an effort to raise the standard of judicial review of professional self-regulation.” She notes that “[r]egulatory objectives, by their very nature, create a framework for empirical assessment” and that “by urging state supreme courts to be guided by regulatory objectives, the ABA is effectively urging courts to be guided by evidence; that is, by empirical review.”
In short, Chambliss identifies the N.C. Dental decision and the ABA’s adoption of Model Regulatory Objectives as two events that, together, have created a tipping point for American lawyer self-regulation and ushered in a new era where the old, largely rhetorical, defences of the bar’s monopoly will no longer suffice. Chambliss is careful to contextualize these two events within a broader background of mounting “economic and political incentives to invest in evidence-based policy-making.” Such incentives, she argues, stem from the growing successes of some alternative legal services providers and an “increasingly organized political challenge” from groups concerned with access to justice.
It is within this milieu that Chambliss presents her call to action: “The bar, collectively,…[needs to] signal a normative commitment to evidence-based policy-making and build the profession’s capacity to contribute to relevant research.” On the latter point, the article provides a helpful summary of existing independent empirical research that has challenged the premises of the bar’s historic defenses regarding the need for a lawyer monopoly over the delivery of legal services. The article then ends by providing specific strategies that can be used to institutionalize evidence-based self-regulation. Chambliss considers, in turn, possible approaches for state supreme courts, law schools, and bar associations. The strategies presented are diverse, ranging from proposed changes to the professional responsibility curriculum in law schools to ABA investment “in the development of a proactive research agenda guided by professional regulatory objectives.”
In recording a precise moment in the history of the regulation of the American legal profession and proposing steps forward, Chambliss contributes to both legal profession scholarship and to those charged with the practical job of regulating the American legal profession. For readers outside the United States, this article offers an accessible primer on the challenges that the American legal profession is currently facing in retaining its ability to self-regulate and its options going forward.
The case set out in the article does raises some additional questions that would be interesting for Chambliss or others to explore in future work. What, for example, are we looking at evidence for? It is helpful to have regulatory objectives, such as the protection of the public interest, but the boundaries and meanings of these objectives are not always self-evident.
Lively and sometimes ferocious debates have recently erupted in Canada regarding the meaning of, and obligations that flow from, law society mandates to govern in the public interest. Different perspectives on public interest mandates were a significant part of the public debate and judicial analysis on the question of whether Canadian law societies should accredit what was described in a national newspaper as the country’s first “gay free” law school, due to a required pledge which includes abstention from “sexual intimacy that violates the sacredness of marriage between a man and a woman” (for more on this case, see here). Divergent perspectives on what the public interest requires were also front and centre in recent debates over whether the Law Society of Ontario should proceed with an initiative requiring the province’s lawyers and paralegals to create and abide by an individual statement of principles that acknowledges their obligation to promote equality, diversity, and inclusion (for more see, here).
Requiring evidence for lawyer regulation is a good idea but doesn’t remove more fundamental questions about what, exactly, a modern regulator of lawyers should be doing or even more pragmatic questions of what evidence is meaningful in any given situation. On the latter point, I note that Professor Laurel Terry has observed that, as we begin to think of legal services being provided by legal service providers as opposed to simply lawyers, “it [is] much more likely that lawyer regulations will be the subject of benchmarking not only across national borders, but across professions.”
In writing Evidence-Based Lawyer Regulation, Chambliss challenges the American legal profession to create and support modern, sophisticated lawyer regulators. If the fundamental structure of the current self-regulatory system is to continue, this challenge must be taken up whole-heartedly. Embracing evidence-based regulation is a first essential step, but it is only the beginning of what will surely be an interesting yet sometimes tumultuous journey.
Richard Abel is the most prolific, as well as the most eminent, scholar of legal professions. Among many other books, he has written a detailed and moving study of the handful of courageous South African lawyers who challenged the apartheid regime. He has unearthed documents from lawyer disciplinary proceedings to uncover new lessons about lawyer deviance. And he has now completed two massive volumes on the Bush and Obama Administration’s anti-terrorism policies in the wake of the 9/11 attacks, the legal means employed to carry them out, and the legal responses to them. Law’s Wars deals with detention of suspected terrorists at the Iraqi prison of Abu Ghraib and at Guantanamo Bay, interrogation, electronic surveillance, and law of war on the battlefields of Iraq and Afghanistan. Law’s Trials covers many of the legal proceedings resulting from counter-terrorist measures: criminal prosecutions in ordinary courts, military commissions, and courts-martial (of U.S. personnel), and the various legal challenges to all of the above, such as habeas corpus petitions, civil damages actions, and civil liberties complaints.
The books are intended to be comprehensive, and they are. The genre that they most resemble is that of reports of Truth Commissions established after mass atrocities to give a meticulous account of events, perpetrators, and victims, to ensure that a record is made and that collective memory of events is preserved as an instruction and warning to later generations. See, e.g., Report of the Chilean National Commission on Truth and Reconciliation. Those reports, however, are typically the product of multi-member bodies employing large research staffs. Rick Abel is just one tireless, persistent Recording Angel. His chapters relate every relevant incident—in every relevant detail—of the events he covers, including not only records of proceedings and official reports, but contemporary comments by administration officials, politicians, leading newspapers, academics, and NGOs. His prose is undramatic yet sharp and crisp; the sentences as lucid as pebbles dropped into a clear mountain stream. For the most part, he adopts the role of objective reporter, but in concluding sections to every chapter, he discloses his own analysis and his own judgments.
Those judgments are, mostly, severely critical of the conduct of the “War on Terror,” especially of the Bush Administration’s policies and legal arguments, but to some extent, of the Obama Administration’s as well. Abel divides officials and judges into two camps. One is the camp of the “executive-minded.” These are the authoritarians inclined to promote or defer to assertions, however improbable, that suspected terrorists might be dangerous; to license coercive interrogation, intrusive surveillance, and “kinetic” military action; and to emphasize the risks of requiring proof before action. The other camp is of “liberal legalists,” concerned with due process, fair and humane treatment of suspected terrorists, dangerous blowback from injury to foreign civilians, and perceptions of world opinion.
Abel presents both sets of views fairly but leaves no doubt that he sides with the liberal “rule of law” parties. The authoritarian tough guys, over and over, damaged America’s reputation without gaining much in the way of results. After the 9/11 attacks, the U.S. government rounded up thousands of innocent Muslims, jailed them for months, mistreated them, and then released them. Military operations in Iraq and Afghanistan killed thousands and exiled millions, while creating new terrorist enemies such as ISIS. The Senate Select Committee on Intelligence, after a mammoth multi-year investigation, concluded that “enhanced interrogation techniques” (torture) used on prisoners yielded little information of value. The military prisons at Abu Ghraib and Guantanamo Bay incited the condemnation of the world for little positive gain: nearly all the prisoners at Guantanamo, said to be the “worst of the worst,” too dangerous to hold even in supermax prisons on the mainland U.S., were eventually released, while congressional Republicans still refuse to close the facility holding the few who remain. The tough guys insisted that suspected terrorists be tried by military commissions, fearing that civilian courts with their due process protections would acquit them. In fact, regular courts efficiently convicted over 660 defendants for terrorism-related offenses, while military commissions have, since their inception, been a complete shamble of carelessly improvised procedures and have achieved only eight convictions, all but one of which was reversed. Rendition of suspects, some demonstrably innocent, to CIA “black sites” or foreign torture chambers has repeatedly embarrassed allied and other governments who cooperated with the United States.
Just as troubling as the mistakes and misdeeds of the authoritarians is the failure of institutions to hold any of them accountable. The chief strategists of the administration that caused most of the damage to the rule of law—President Bush, Vice President Cheney, Chief Deputy Addington, Defense Secretary Rumsfeld, Secretary of State Rice—still defend their actions and policies. Jay Bybee and John Yoo, authors of the famous “torture memos” and other Office of Legal Counsel opinions, succeeded in immunizing CIA interrogators from criminal liability. Although the two were briefly censured by the Justice Department’s Office of Professional Responsibility for slipshod legal work, even that censure was mostly lifted after review. Now, one is a federal judge, while the other is a law professor at Berkeley.
The Obama Administration, notoriously, chose to “look forward and not back.” It declined to assign blame, though it changed many of the policies and tried to close Guantanamo. Its special prosecutor, John Durham, declined to charge CIA officers in whose custody suspects actually died. The most exhaustive investigation of torture, the Select Senate Committee report, was spied upon and attempted to be sabotaged by the CIA as it was being written; it remains unpublished to this day. The most critical report on Abu Ghraib was suppressed before being leaked, and its author, General Antonio Taguba, was forced into an early retirement. Military contractors largely escaped justice for killing civilians in Iraq. The U.S. Supreme Court’s decision, Boumediene v. Bush, said Guantanamo prisoners were entitled to habeas corpus review. But Republican judges on the D.C. circuit have gutted Boumediene by reversing all decisions to grant habeas. With rare exceptions, civil damage suits by innocent victims failed to advance in court, stonewalled by government claims of state secrets. A few low-ranking soldiers were tried for abusing Iraqi prisoners or civilians, but their superiors escaped liability.
Abel chronicles this dismal litany of mostly unrectified abuses with a singularly dispassionate lucidity and objectivity. Among his most effective chapters in Law’s Wars is one on repeated civilian casualties inflicted by military operations in Afghanistan. As one innocent family after another is wiped out, the U.S. military first denies wrongdoing, then concedes, apologizes, and offers modest compensation. Abel relentlessly recites the story of every single case. The cumulative effects on the reader is one of numbing horror.
There are some bright spots in this grim history: lawyers who performed better. Federal judges who tried terror suspects mostly did so fairly (though many of the prosecutions were of hapless mopes who could never have done any real harm without the encouragement of FBI undercover agents). Bar associations mostly spoke out for due process and the rule of law. Volunteer lawyers represented Guantanamo detainees, some while facing fierce criticism. Military lawyers, in particular, pressed for adherence to Geneva Convention treatment even of detainees labeled “enemy combatants”—some at considerable cost to their careers. NGOs like Human Right Watch, the ACLU, and Amnesty International supplied many lawyers to challenge administration policies.
For extensive analysis and critique of the legal doctrines used to prosecute the “War on Terror,” there are, as Abel says, better sources than this. But as a comprehensive record of the legal achievements and failings of this “war,” Abel’s two huge volumes are unlikely to ever be surpassed. In this record, if we want to use it, are the lessons to be learned from this history of excesses, follies, and valiant attempts to safeguard the rule of law.
Cite as: Robert Gordon, Lawfare in the “War on Terror”
(November 12, 2019) (reviewing
Richard L. Abel, Law’s Wars: The Fate of the Rule of Law in the US “War on Terror”
Richard L. Abel, Law’s Trials: The Performance of Legal Institutions in the US “War on Terror”