American Lawyers

423 Pages·1991·26.96 MB·English

by  Richard L. Abel

American Lawyers
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American
Lawyers
RICHARD L. ABEL
New York Oxford
OXFORD UNIVERSITY PRESS
Oxford University Press
Oxford New York Toronto
Delhi Bombay Calcutta Madras Karachi
Petaling Jaya Singapore Hong Kong Tokyo
Nairobi Dar es Salaam Cape Town
Melbourne Auckland
and associated companies in
Berlin Ibadan
Copyright © 1989 by Oxford University Press, Inc.
Hrst published in 1989 by Oxford University Press, Inc.,
200 Madison Avenue, New York, New York 10016
First issued as an Oxford University Press paperback, 1991
Oxford is a registered trademark of Oxford University Press
All rights reserved. No part of this publication may be reproduced,
stored in a retrieval system, or transmitted, in any form or by any means,
electronic, mechanical, photocopying, recording, or otherwise,
without prior permission of Oxford University Press.
Library of Congress Cataloging-in-Publication Data
Abel, E^ichard L.
American lawyers.
Bibliography: p. includes index.
1. Lawyers---United States. I. Title.
KF297.A756 1989 340'.02373 88-22522
ISBN 0-19-505140-8
ISBN 0-19-507263-4 PBK
2 4 6 8 9 7 5 31
Printed in the United States of America
on acid-free paper
To Emily
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Preface
As will be immediately obvious to readers of this book, I have strongly ambivalent
feelings about the American legal profession, of which I have been a member for
nearly twenty-five years. It was the idealism of lawyers that originally attracted
me. I have a vivid childhood memory of seeing Inherit the Wind, a play based
on the Scopes trial, and passionately identifying with Clarence Darrow. I came of
age during the Civil Rights movement, awed by the courage of blacks who
risked humiliation, jail, beatings, and even death to assert their right to equality.
I went to law school in 1962, expecting to become a civil rights lawyer. I did
research on civil rights law in the summer after my second year, worked for the
Lawyers' Committee for Civil Rights Under Law in Mississippi after graduation,
and was a legal aid lawyer with New Haven Legal Assistance Association in the
early 1970s.
I became an academic lawyer, however, not a legal activist. As a law teacher,
1 enjoy the privilege of critical distance from the pressing ethical dilemmas of the
practicing lawyer and the complex politics of the organized bar. Yet, because I
have spent the past nineteen years producing lawyers and will probably continue
to do so for the rest of my working life, I am just as deeply implicated in the
profession's problems and failings as any practitioner. Of necessity I accept and
work within structures that favor certain people in obtaining entry to law school
and performing well within it, strongly shape their aspirations and self-image, and
direct them into certain careers and jobs. Much of law teaching, like practice, is
unreflective routine rather than purposive reform.
All law is inescapably two-faced. It reproduces and justifies existing inequalities
and injustices; yet it also embodies ideals and offers mechanisms through which
they can be pursued. Lawyers display the same moral ambiguity. The legal profes-
sion has constructed and defended an elaborate constellation of economic, social,
and political privileges. It propounds an ideology that allows lawyers to escape
difficult moral choices by invoking their technical expertise. Most lawyers persist
in seeing their daily work as morally neutral and apolitical. Yet many are attracted
to the profession precisely because they embrace law as a "transformative vocation"
(to use Roberto Unger's eloquent phrase) and wish to dedicate themselves to
"struggle against the defects or the limits of existing society." A few remain com-
mitted to that ideal throughout their legal careers. If I criticize the American legal
Vlll PREFACE
profession, therefore, it is only because I measure lawyers against their own im-
possibly high aspirations, which inhere in the very idea of law.
This book originated with my participation in the Working Group for Com-
parative Study of Legal Professions. Philip Lewis founded the Working Group in
1979 as part of the Research Committee on Sociology of Law of the International
Sociological Association, and I joined him as cochair the following year. We enlisted
legal scholars and social scientists in some 20 countries to describe and analyze
their legal professions and encouraged another dozen to offer comparative and
theoretical observations stimulated by those accounts. After several annual meet-
ings we held a week-long conference in 1984. The University of California Press
published the revised papers in 1988 and 1989 under the general title "Lawyers in
Society"; the three volumes will cover "The Common Law World," "The Civil
Law World," and "Comparative Theories." I prepared the national reports on the
United States and on England and Wales. Because of the large quantity of data
available and the absence of any contemporary overviews, I expanded those chap-
ters into two books: The Legal Profession in England and Wales, published by
Basil Blackwell in 1988, and the present volume. Because these volumes share the
same analytic framework, their theoretical chapters are similar.
During the more than five years I have been actively engaged in writing this
book, I have benefitted from the support and generosity of many people and
institutions. Dorothe Brehove endlessly typed and retyped the tables, expertly
intuiting the purpose behind my confused notations, imposing order, and designing
a clear visual presentation. Other members of the law school secretarial staff also
contributed to this difficult task. Two research assistants, David Lehman (a graduate
student in history) and Rebekah Parker (a law student) spent many hours in the
library uncovering sources I never knew existed. Robert Gordon of Stanford Law
School and Terence Halliday of the American Bar Foundation read the entire
manuscript and made invaluable comments. I have tried to heed their wise advice,
although they still will disagree with some of my conclusions. Many people provided
me with unpublished manuscripts, reprints of articles, and copies of books: Robert
Bell, Brad Bumstcd, Charles Cappell, David Chambers, Anthony Chase, Keith
Cox, Steven Cox, Robert Dyer, Robert Fellmeth, William Felstiner, John Flood,
James C. Foster, Marc Galanter, John Griffiths, Terence Halliday, Laura Kalman,
Thomas Koenig, Herbert Kritzer, Donald Landon, Stewart Macaulay, Kenneth
Mann, Martha Melendez, the National Association of Law Placement, Robert
Nelson, Michael Powell, Mark Ramseyer, Deborah Rhode, Robert Rosen, Michael
Rustad, Terence Shimp, Robert Stevens, Michael Trebilcock, David Trubek, Sey-
mour Warkov, and Robert Weil. The staff of the UCLA Law Library were more
than diligent in obtaining obscure books and pamphlets. I am grateful for research
support from the Academic Senate and the Law School Dean's Fund of UCLA
and the Law and Social Science Program of the National Science Foundation (Grant
Nos. SES 81-10380, 83-10162, and 84-20295).
Santa Monica, Calif. R.L.A
Contents
TABLES xiii
1. INTRODUCTION 3
2. THEORIES OF THE PROFESSIONS 14
Weberian Theories of Professions in the Marketplace, 18
Marxist Theories of Professions in the Class Structure, 30
Structural Functional Theories of Professions
and Social Order, 34
Theoretical Frameworks for Understanding
American Lawyers, 39
3. CONTROLLING THE PRODUCTION
OF LAWYERS 40
Lawyers Without a Profession, 40
The Rise of Professionalism, 44
Tightening Control Over Supply, 48
The Trajectory of Entry Control, 71
4. THE CONSEQUENCES OF CONTROLLING
ENTRY 74
The Number of Lawyers, 74
Influences on the Production of Lawyers, 77
The Characteristics of Lawyers, 83
Demographic Change, 108