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XVI. Legal Profession

The Federalist Society, THE ABA IN LAW AND SOCIAL POLICY: WHAT ROLE? (1994). This book surveys the history of the American Bar Association, focusing on its increased tendency to stake out positions on political and social issues. The foreword raises a number of questions respecting whether the ABA is now just another special interest group.

MARY ANN GLENDON, A NATION UNDER LAWYERS: HOW THE CRISIS IN THE LEGAL PROFESSION IS TRANSFORMING AMERICAN SOCIETY (1994); ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION (1993). As Michael Uhlmann pointed out in a review, both these books reach similar conclusions: "[T]he [legal] profession is now at sea without a rudder or compass. Its myths have lost the capacity to nourish, its heroes are hard to find and rarely celebrated, its goals can no longer be easily stated. Its training schools seem to teach cynicism and self-interest more effectively than they do prudence or professionalism; its judges are increasingly mired in their own bureaucracies (Kronman) or prone to second-guess the political branches (Glendon); its private practitioners seem preoccupied with material rewards, celebrity, and the trappings of power." Michael Uhlmann, The Once and Future Legal Profession, (Book Review), 1995 PUB. INT. L. REV. 173.

RONALD D. ROTUNDA & JOHN S. DZIENKOWSKI, LEGAL ETHICS: THE LAWYER'S DESKBOOK ON PROFESSIONAL RESPONSIBILITY (2007).  This treatise analyzes all aspects of the ABA Model Rules of Professional Conduct and the ABA Model Code of Judicial Conduct. In the course of covering the case law and the legislative developments, the authors analyze the economic costs and implications of the various rules and how they often protect lawyers from competition from each other and from related professions such as accounting.

Clarence Thomas, Cordell Hull Speakers Forum, 25 CUMB. L. REV. 611 (1994-95). In this address, Justice Thomas touched upon three important professional responsibility themes: first, the ideal of law as a "public service"; second, the need for legal education to focus more intensely on legal reasoning and legal method; and third, the definition of "ethics." His discussion of ethics is especially insightful. This general treatment of these subjects raises a number of thought-provoking issues, and the accompanying footnotes will lead the reader to other worthwhile works.

Patrick J. Schiltz, Legal Ethics in Decline: The Elite Law Firm, the Elite Law School, and the Moral Formation of the Novice Attorney, 82 MINN. L. REV. 705 (1998).  An argument that the legal profession is schizophrenic, with a sharp divide between academics and practicing lawyers.  Professor Schiltz criticizes the single-mindedness of both groups – academics on scholarship and practicing lawyers on financial gain – and concludes that both groups are inadvertently sacrificing their most essential lawyerly role: mentoring young attorneys in becoming ethical attorneys.

Richard A. Posner, The Material Basis of Jurisprudence, 69 IND. L.J. 1 (1993). Judge Posner views the legal profession through the lens of cartel theory, and develops a provocative explanation of the changes that have swept through law and the legal profession since, roughly, 1960, as a function of the weakening of the cartel-like aspects of the legal profession.

Neomi Rao, A Backdoor to Policy Making: The Use of Philosophers by the Supreme Court, 65 U. CHI. L. REV. 1371 (1998).  Professor Rao explores the importance of philosophy in the legal profession through an analysis of the Supreme Court’s use of philosophy in its decisions.  She determines that the Court frequently uses nonlegal texts to broaden the scope of its decisions for policy reasons, which she argues undermines Court legitimacy and legal persuasiveness.

James P. Beckwith, Jr., What Should Lawyers Do?: An Essay on Lawyers, The Free Economy, Redistribution, and Democratic Legitimacy, 16 N.C. CEN. L.J. 1 (1986). Based on a paper given to the Mont Pelerin Society, this article discusses the ethical aspects of legal practice in an economy that contains a substantial rent-seeking component.

Jonathan R. Macey, Mandatory Pro Bono: Collective Discharge of Duty or Compelled Free Service?, 77 CORN. L. REV. 1115 (1992). Argues that to compel lawyers personally to provide free legal services to the poor is "odious and unethical" and should be rejected in favor of providing lump sum transfers to the poor-a policy that would "make both lawyers and the poor better off."

Suzanna Sherry, Responsible Republicanism: Educating for Citizenship, 62 U. CHI. L. REV. 131 (1995).  An examination of the legal implications of an education for a republican nation and an argument that the answer to the current failure of the education system lies in returning to the individualistic roots of the United States.

Richard A. Posner, Law, Knowledge, and the Academy: Legal Scholarship Today, 115 HARV. L. REV. 1314 (2002).  A critique of the legal community’s embrace of modern interdisciplinary scholarship.  Posner argues that, despite the necessity of specialization in complex systems, the focus on interdisciplinary and “breakthrough” scholarship has had several adverse consequences, including: a lack of scholarly critical mass which can adequately assess new publications; political uniformity that breads dogmatism when lacking serious counterpoints; and scholarship directed at an insular community of academics, not at the legal profession at large.

Marshall Breger, Legal Aid for the Poor: A Conceptual Analysis, 60 N.C. L. REV. 282. 324 (1982).  An argument that Legal Services lawyers tend to take on only those clients whose cases match the lawyers' own ideological biases, paying little attention to or altogether ignoring other potential clients.

John P. Heinz, Anthony Palk, & Ann Southworth, Lawyers for Conservative Causes: Clients, Ideology, and Social Distance, 37 LAW & SOC'Y REV. 5 (2003).

Last updated October 2008

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