Bar News - April 16, 2014
Book Review:The American Legal Profession in Crisis: Resistance and Responses to Change by James E. Moliterno
By: Review by Larry Gillis
Oxford University Press, 2013, 272 pages
The American Legal
Author and professor James Moliterno certainly has an impressive pedigree, including teaching law at Washington & Lee, being a member of the American Law Institute, and winning the 2012 Rebuilding Justice Award from Institute for the Advancement of the American Legal System.
However, at least initially, older readers can profitably go straight to page 215, “Changing the Change-Game,” for specific suggestions on the restructuring of our beloved profession and its processes, to save us from ourselves. Of course, younger readers should read the whole book, ab initio, to get at least one clearly-enunciated historical perspective on our profession as a presence in the life of the Republic. I must say that the specific anecdotes and examples that are offered to the reader are quite numerous and impressive.
Moliterno’s main thesis here is that, over the past 100 years or so, our history (mostly the ABA’s history) has been mostly characterized – at least until recently – by a sustained and detailed opposition to major societal and professional change. This has been due largely to our clients’ interests (historically corporate ones) and our own ethnic backgrounds (historically Northern European). Rarely have we been proactive, embracing the future, he says, seemingly never getting ahead of the arc of history.
The author’s discussion is systematic and thoughtful, beginning with the question of who actually speaks for the profession. His nominees are: the academics, the ABA, the courts, the legislatures and maybe even some of the actual practitioners.
They all have done so at one time or another, he says: in varying degrees, sometimes at the same time, and certainly in a pulsating chorus. Within living memory, however, the ABA has always had the biggest microphone and its history has been essentially unrepresentative of the lawyering class generally. The ABA has tended to mirror the corporate clients of its leadership. He cites citizenship requirements, character tests, unified bars, and a loathing of contingent fees as the ABA’s reaction to perceived challenges from the newer would-be lawyers. The ABA has had a persistent preoccupation with preserving the status quo rather than adapting to broad-based historical (and essentially irresistible) trends. Our progress as a profession has been anything but even, to say the least.
In support of his thesis, he analyzes several specific major historical concerns we have faced as a profession: immigration, Communism, civil rights, Watergate (thanks for reminding us), the explosion in litigation, the loss of civility, the challenge of multi-disciplinary practices, multi-jurisdictional practices, globalization, technology and economics. Each topic gets its own rough thumbnail history, written in support of the main thesis.
Occasionally, the tone here seems somewhat agenda-driven (think: Noam Chomsky or Howard Zinn), rather than that of a simple inquiry into the past and future of our profession. Still, this book is a very useful read.
One theme that is particularly interesting to me is his position that Ames and Langdell (and, in fact, the Harvard Law School itself) are responsible for American law schools historically persisting in the belief that they are primarily to produce more professors of law, despite the needs of society at large. After that, maybe, they can produce Mandarin-like lawyers, learned in the law but who happen to be mostly unwise in the great end and real business of living.
I think he overstates the case somewhat. He notes the very serious progress in the past several decades in teaching analytical skills, negotiation, advocacy, and experiential skills, but says it is not enough. He worries about the skewing effect that content-specific bar exams generally have on the flexibility that law schools should have in preparing their students for life as real and useful professionals.
In summary, this book is – at the very least – a very useful addition to the ongoing dialogue about the future of our profession. As the author himself says, “My hope is that the legal profession going forward can be more like Apple and IBM and Western Union and less like Kodak.”
Professor Laurence J. Gillis, a former member of the NHBA Board of Governors, teaches online law courses for the University of Maryland University College, on an adjunct basis. He was admitted to the NH Bar in 1972. His website is www.LaurenceJGillis.com.