Nothing New under the Sun: How the Legal Profession's Twenty-First Century Challenges Resemble Those of the Turn of the Twentieth Century

Article excerpt

Introduction
I. The Imperiled Business-Profession Dichotomy
II. Lawyers as Servants of the Public Good
III. Lawyer Control of the Market for Legal
       Services
IV. Reforming Legal Education
V. Managing a Dramatic Increase in the Diversity of the Legal
     Profession
Conclusion

The past is a foreign country: they do things differently there. --L.P. Hartley (1)

Those who cannot remember the past are condemned to repeat it. --George Santayana (2)

INTRODUCTION

These divergent observations reflect the legal profession's uneasy relationship with its past. Central to the work of lawyers is precedent, a form of history. But when it comes to our own history, lawyers, judges, and legal scholars tend to have short memories and to engage in what Martin Flaherty describes as "history lite." (3) For example, many bar leaders today refer to the "good old days" when lawyers did not advertise. (4) In fact, John Marshall, while sitting as Chief Justice, provided a testimonial for a lawyer advertisement, attesting to his "entire confidence" in, and the "ability, integrity, and promptitude" of, attorney David Hoffman, who ironically happened to be the author of the first American code of legal ethics. (5)

In this Essay, we take a small step toward bringing history to bear on debates regarding the legal profession today. Rather than seeking normative lessons, this Essay seeks simply to offer context for contemporary debates. In particular, we explore five crises (6) that faced the legal profession at the turn of the twentieth century and that face the legal profession once again today. These are: (1) the debate regarding the vitality of the Business-Profession dichotomy; (2) the question of whether lawyers are responsible for encouraging business clients to pursue the public good; (3) the issue of whether lawyers should have control of the market for legal services; (4) the need to reform legal education; and (5) the management of a dramatic increase in diversity in the legal profession.

To examine these five crises, we draw upon Julius Henry Cohen's classic work, The Law: Business or Profession? published in 1916. Cohen offers what is probably the most extensive contemporary account of the challenges facing the turn of the twentieth century legal profession. Cohen accordingly provides a historical context for the turn of the twentieth century crises that in turn illuminates the similar crises that the bar faces at the turn of the twenty-first century. By comparing Cohen's world to our own, we hope to show how the legal profession's responses to these dilemmas have varied over time and to suggest that today's status quo is neither traditional nor inevitable. Indeed, challenging the legal profession's assumptions regarding its traditions is a necessary step in refining both the descriptions of, and prescriptions for, the current crises.

I. THE IMPERILED BUSINESS-PROFESSION DICHOTOMY

The American legal profession's narrative of its function in society has traditionally relied on the distinction between a business and a profession. (8) In this narrative, business people seek primarily to maximize their self-interest while professionals seek primarily to maximize the public good. (9) But in a legal system where lawyers make a living--and sometimes a very good one--from their work, many have questioned whether the Business-Profession dichotomy exists. (10) Julius Henry Cohen illustrates how the legal profession successfully defended the dichotomy from a major challenge in the late nineteenth and early twentieth centuries. Today, the legal profession again faces a similar challenge, although Cohen's prescriptions may no longer offer an effective strategy.

The Business-Profession dichotomy finds its origin in Republicanism, the dominant ideological ideal in early American history, under which the state's role is to foster its people's pursuit of the common good. …