TABLE OF CONTENTS INTRODUCTION I. THE GREAT DEPRESSION'S RHETORIC OF CRISIS IN THE LEGAL PROFESSION II. RECENT CRISIS RHETORIC: A RECURRING PATTERN III. NEW LEGAL REALISM ABOUT THE VALUE OF A LAW DEGREE IV. TUITION, THE MARKET FOR LEGAL EDUCATION, AND COMPETITION V. TENTATIVE CONCLUSIONS
The very strong position of law in the United States is the starting point for understanding the proliferation of crisis rhetoric. The sociology of law teaches: (1) if lawyers occupy central positions in the state and the economy, there will be competitors who will seek to challenge that position; (2) lawyers (and legal scholars as a subset of that group) build their careers and reputations in part by forming alliances with dissident groups and potential competitors and seeking to speak on behalf of them; and (3) lawyers tend to maintain rather than threaten professional hierarchies. Lawyers, to put it another way, seek to be on both sides of every issue, and the ability to appear on both sides is a measure of professional strength. Further, professional hierarchies shape the arguments that they make. Lawyers rarely seek to topple the structures that sustain them.
The lawyer or law professor today who denounces the law degree and the current structure of legal education typically aims mainly at less prestigious law schools and law graduates. Less prestigious, depending on the position of the author, might include only schools way down in the U.S. News ranking, or it might simply be schools that the author feels are enough below the one occupied by the author to safely be criticized. This critical position attracts publicity and professional recognition--all the more so because it comes from a lawyer--a person of some status. (1) A time of economic depression or quasi-depression makes the claim gain attention and credibility--especially from those who resent the strong position of lawyers in American life. The basic theme of this article is that we should not forget that it is the strong position of law and lawyers that produces and reproduces this process--without in fact dislodging law from its position of strength. It is hard to see lawyers losing when the argument about lawyers is largely controlled by lawyers.
This Article will begin by examining the rhetoric produced around the time of the Great Depression, the closest analog to the current situation. The doomsday arguments will seem familiar today--too many lawyers, a stagnant legal economy, and a sense that the trouble for the profession comes especially to the graduates of the schools that traditionally have provided access to immigrants, minorities, and other relatively disadvantaged groups. After highlighting those arguments, a number of which came from prestigious law school deans, I will cite the literature that Legal Realists such as Lloyd Garrison and Karl Llewellyn eventually produced to counter the crisis rhetoric. Few now remember the fervor of the debates at the time.
The next Part will examine the rhetoric of crisis today. We see the same rhetoric of a decline in demand, caused in part by competitors cutting into traditional business. Once again, economic recession brings out the rhetoric of too many lawyers and not enough demand for their services. Of course, the situation today is not precisely the same as in the 1930s. The schools that provided access to minorities and immigrants were quite inexpensive in the Depression era. Now, nearly all law schools have become quite costly, including those that are more likely to serve those from lower socio-economic strata. It is also no longer legitimate to claim that immigrants, or any relatively marginal social group, are not up to the professional standards necessary to become lawyers. Yet, I will maintain, the situation today has more in common than not with the Depression era. Not only is much of the rhetoric the same, but also, as in the 1930s, the critics today promote a position that would harden professional hierarchies and reduce access to the advantages of a legal education and law degree. …