The Professional Responsibility of Professional Schools to Study and Teach about the Profession

Journal of Legal Education

Volumn 49, Issue 1, 1999, Pages 76-94

  Wilkins, David B ^a  

^a NONE

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EID: 0033456405     PISSN: 00222208     EISSN: None     Source Type: Journal    
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References (45)

1. See Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 Mich. L. Rev. 34 (1992).
2. See Section of Legal Education and Admission to the Bar, American Bar Association, Legal Education and Professional Development - An Educational Continuum, Report of the Task Force on Law Schools and the Legal Profession: Narrowing the Gap (Chicago, 1992).
3. See Edwards, supra note 1; Anthony T. Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession (Cambridge, Mass., 1993). See also Mary Ann Glendon, A Nation Under Lawyers: How the Crisis in the Legal Profession Is Transforming American Society (New York, 1994).
4. See Edwards, supra note 1; Anthony T. Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession (Cambridge, Mass., 1993). See also Mary Ann Glendon, A Nation Under Lawyers: How the Crisis in the Legal Profession Is Transforming American Society (New York, 1994).
5. See Edwards, supra note 1; Anthony T. Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession (Cambridge, Mass., 1993). See also Mary Ann Glendon, A Nation Under Lawyers: How the Crisis in the Legal Profession Is Transforming American Society (New York, 1994).
6. For a critique of the romanticized view of a Golden Age of lawyering that almost certainly never existed, see Marc Galanter, Lawyers in the Mist: The Golden Age of Legal Nostalgia, 100 Dick. L. Rev. 549 (1996). make a similar critique of Kronman's view of the profession in Practical Wisdom for Practicing Lawyers: Separating Ideals from Ideology in Legal Ethics, 108 Harv. L. Rev. 458, 460-68 (1994).
7. For a critique of the romanticized view of a Golden Age of lawyering that almost certainly never existed, see Marc Galanter, Lawyers in the Mist: The Golden Age of Legal Nostalgia, 100 Dick. L. Rev. 549 (1996). make a similar critique of Kronman's view of the profession in Practical Wisdom for Practicing Lawyers: Separating Ideals from Ideology in Legal Ethics, 108 Harv. L. Rev. 458, 460-68 (1994).
8. See Robert Granfield, Making Elite Lawyers: Visions of Law at Harvard and Beyond 28-35 (New York, 1992) (describing the classical legal education as being dedicated to "pure law," untainted by what elite law professors considered to be the "crass vocationalism" of those who advocated more attention to the realities of legal practice).
9. See generally Deborah L. Rhode, Professional Responsibility: Ethics by the Pervasive Method, 871 PLI Corp. 317 (Boston, 1994) (describing and critiquing these approaches).
10. See David B. Wilkins, Everyday Practice Is the Troubling Case: Confronting Context in Legal Ethics, in Everyday Practices and Trouble Cases, eds. Austin Sarat et al., 68 (Evanston, 1998).
11. Given the high discipline, malpractice, and burnout rates among solo practitioners, it is doubtful that the legal academy's failure to think systematically about legal practice was justified even during those relatively bucolic times. See generally Jerome Edward Carlin, Lawyers on Their Own: A Study of Individual Practitioners in Chicago (New Brunswick, 1962).
12. See Richard L. Abel, American Lawyers (New York, 1989).
13. See Marc Galanter & Thomas Palay, Tournament of Lawyers: The Transformation of the Big Law Firm (Chicago, 1991).
14. For example, a recent study found that almost 10 percent of the lawyers who start work at a large law firm leave by the end of the first year. See National Association of Law Placement, Keeping the Keepers (Washington, 1998). This trend is consistent with what we see in the rest of the economy. See Gillian Lester, Careers and Contingency, 51 Stan. L. Rev. 73 (1998).
15. For example, a recent study found that almost 10 percent of the lawyers who start work at a large law firm leave by the end of the first year. See National Association of Law Placement, Keeping the Keepers (Washington, 1998). This trend is consistent with what we see in the rest of the economy. See Gillian Lester, Careers and Contingency, 51 Stan. L. Rev. 73 (1998).
16. I borrow the phrase from Robert Nelson & David Trubek, Arenas of Professionalism, in Lawyers' Ideals/Lawyers' Practices: Transformations in the American Legal Profession, eds. Robert L. Nelson et al., 177, 177-229 (Ithaca, 1992).
17. See Galanter & Palay, supra note 10, at 68-76.
18. Mungin's story is chronicled in Paul M. Barrett, The Good Black: A True Story of Race in America (New York, 1999). For my own take on Mungin's case, see On Being Good and Black, 112 Harv. L. Rev. 1924 (1999) (reviewing The Good Black).
19. Mungin's story is chronicled in Paul M. Barrett, The Good Black: A True Story of Race in America (New York, 1999). For my own take on Mungin's case, see On Being Good and Black, 112 Harv. L. Rev. 1924 (1999) (reviewing The Good Black).
20. Barrett, supra note 14, at 26.
21. See Granfield, supra note 5, at 123-42 (describing Harvard Law School as indoctrinating a feeling of "collective eminence" among its students).
22. Barrett, supra note 14, at 34. Although the quotation is from a recruiter for Harvard College, I have often heard the same sentiments expressed about the law school.
23. Id. at 15, 109.
24. Id. at 8-9.
25. I borrow the phrase from Galanter and Palay's landmark book on the structure of large law firms. See Galanter & Palay, supra note 10. examine Galanter and Palay's influential thesis in David B. Wilkins & G. Mitu Gulati, Reconceiving the Tournament of Lawyers: Tracking, Seeding, and Information Control in the Internal Labor Markets of Elite Law Firms, 84 Va. L. Rev. 1581 (1998). Many of the ideas presented below are explored in more detail there.
26. I borrow the phrase from Galanter and Palay's landmark book on the structure of large law firms. See Galanter & Palay, supra note 10. examine Galanter and Palay's influential thesis in David B. Wilkins & G. Mitu Gulati, Reconceiving the Tournament of Lawyers: Tracking, Seeding, and Information Control in the Internal Labor Markets of Elite Law Firms, 84 Va. L. Rev. 1581 (1998). Many of the ideas presented below are explored in more detail there.
27. See Wilkins & Gulati, supra note 20, at 1678-80.
28. See David B. Wilkins, Two Paths to the Mountaintop? The Role of Legal Education in Shaping the Values of Black Corporate Lawyers, 45 Stan. L. Rev. 1981 (1993).
29. See Sanford Levinson, Identifying the Jewish Lawyer: Reflections on the Construction of Professional Identity, 14 Cardozo L. Rev. 1577, 1578-79 (1993). For a discussion of the importance of bleached-out professionalism in the prevailing ideology of legal practice, see David B. Wilkins, Identities and Roles: Race, Recognition, and Professional Responsibility, 57 Md. L. Rev. 1502, 1511-17 (1998).
30. See Sanford Levinson, Identifying the Jewish Lawyer: Reflections on the Construction of Professional Identity, 14 Cardozo L. Rev. 1577, 1578-79 (1993). For a discussion of the importance of bleached-out professionalism in the prevailing ideology of legal practice, see David B. Wilkins, Identities and Roles: Race, Recognition, and Professional Responsibility, 57 Md. L. Rev. 1502, 1511-17 (1998).
31. Much of my thinking about this question has been informed by reading two excellent articles by Kim Taylor-Thompson on the institutional role of public defenders. See Effective Assistance: Reconceiving the Role of the Chief Public Defender,_J. Inst. for Study Legal Ethics_(1999); Individual Actor v. Institutional Player: Alternating Visions of the Public Defender, 84 Geo. L.J. 2419 (1996). It is not surprising that Taylor-Thompson is one of the few scholars to discuss the institutional ramifications of public defense practice. Before going into teaching, she was the chief public defender for the nation's premier public defender service. As I argue below, the fact that she is writing about these issues underscores the need for hiring faculty with both an interest in and an understanding of the institutional dimensions of legal practice.
32. Much of my thinking about this question has been informed by reading two excellent articles by Kim Taylor-Thompson on the institutional role of public defenders. See Effective Assistance: Reconceiving the Role of the Chief Public Defender,_J. Inst. for Study Legal Ethics_(1999); Individual Actor v. Institutional Player: Alternating Visions of the Public Defender, 84 Geo. L.J. 2419 (1996). It is not surprising that Taylor-Thompson is one of the few scholars to discuss the institutional ramifications of public defense practice. Before going into teaching, she was the chief public defender for the nation's premier public defender service. As I argue below, the fact that she is writing about these issues underscores the need for hiring faculty with both an interest in and an understanding of the institutional dimensions of legal practice.
33. See American Bar Association, Commission on Professionalism, ". . . In the Spirit of Public Service . . .": A Blueprint for the Rekindling of Lawyer Professionalism, reprinted in 112 F.R.D. 243 (1986).
34. See Kronman, supra note 3.
35. For an excellent discussion of this approach, see Howell H. Jackson, Selective Incorporation of Foreign Legal Systems to Promote Nepal as an International Financial Centre, in Regulation and Deregulation: Policy and Practice in the Utilities and Financial Services Industries, ed. Christopher McCrudden, 367, 377-80 (Oxford, Eng., 1999).
36. See, e.g., Elizabeth Chambliss, Organizational Determinants of Law Firm Integration, 46 Am. U. L. Rev. 669 (1997) (law and sociology); Renee M. Landers et al., Rat Race Redux: Adverse Selection in the Determination of Work Hours in Law Firms, 86 Am. Econ. Rev. 329 (1996) (law and institutional economics); Austin Sarat & L. F. Felstiner, Lawyers and Legal Consciousness: Law Talk in the Divorce Lawyer's Office, 98 Yale L.J. 1663 (1989) (law and political science); Galanter & Palay, supra note 10 (law, sociology, and economics); Robert L. Nelson, Partners with Power: The Social Transformation of the Large Law Firm (Berkeley, 1987) (law and sociology); John P. Heinz & Edward O. Laumann, Chicago Lawyers: The Social Structure of the Bar (New York, 1982) (law and sociology); Sally Engle Merry & Neal A. Milner, The Possibility of Popular Justice: A Case Study of Community Mediation in the United States (Ann Arbor, 1993) (law and anthropology).
37. See, e.g., Elizabeth Chambliss, Organizational Determinants of Law Firm Integration, 46 Am. U. L. Rev. 669 (1997) (law and sociology); Renee M. Landers et al., Rat Race Redux: Adverse Selection in the Determination of Work Hours in Law Firms, 86 Am. Econ. Rev. 329 (1996) (law and institutional economics); Austin Sarat & L. F. Felstiner, Lawyers and Legal Consciousness: Law Talk in the Divorce Lawyer's Office, 98 Yale L.J. 1663 (1989) (law and political science); Galanter & Palay, supra note 10 (law, sociology, and economics); Robert L. Nelson, Partners with Power: The Social Transformation of the Large Law Firm (Berkeley, 1987) (law and sociology); John P. Heinz & Edward O. Laumann, Chicago Lawyers: The Social Structure of the Bar (New York, 1982) (law and sociology); Sally Engle Merry & Neal A. Milner, The Possibility of Popular Justice: A Case Study of Community Mediation in the United States (Ann Arbor, 1993) (law and anthropology).
38. See, e.g., Elizabeth Chambliss, Organizational Determinants of Law Firm Integration, 46 Am. U. L. Rev. 669 (1997) (law and sociology); Renee M. Landers et al., Rat Race Redux: Adverse Selection in the Determination of Work Hours in Law Firms, 86 Am. Econ. Rev. 329 (1996) (law and institutional economics); Austin Sarat & L. F. Felstiner, Lawyers and Legal Consciousness: Law Talk in the Divorce Lawyer's Office, 98 Yale L.J. 1663 (1989) (law and political science); Galanter & Palay, supra note 10 (law, sociology, and economics); Robert L. Nelson, Partners with Power: The Social Transformation of the Large Law Firm (Berkeley, 1987) (law and sociology); John P. Heinz & Edward O. Laumann, Chicago Lawyers: The Social Structure of the Bar (New York, 1982) (law and sociology); Sally Engle Merry & Neal A. Milner, The Possibility of Popular Justice: A Case Study of Community Mediation in the United States (Ann Arbor, 1993) (law and anthropology).
39. See, e.g., Elizabeth Chambliss, Organizational Determinants of Law Firm Integration, 46 Am. U. L. Rev. 669 (1997) (law and sociology); Renee M. Landers et al., Rat Race Redux: Adverse Selection in the Determination of Work Hours in Law Firms, 86 Am. Econ. Rev. 329 (1996) (law and institutional economics); Austin Sarat & L. F. Felstiner, Lawyers and Legal Consciousness: Law Talk in the Divorce Lawyer's Office, 98 Yale L.J. 1663 (1989) (law and political science); Galanter & Palay, supra note 10 (law, sociology, and economics); Robert L. Nelson, Partners with Power: The Social Transformation of the Large Law Firm (Berkeley, 1987) (law and sociology); John P. Heinz & Edward O. Laumann, Chicago Lawyers: The Social Structure of the Bar (New York, 1982) (law and sociology); Sally Engle Merry & Neal A. Milner, The Possibility of Popular Justice: A Case Study of Community Mediation in the United States (Ann Arbor, 1993) (law and anthropology).
40. See, e.g., Elizabeth Chambliss, Organizational Determinants of Law Firm Integration, 46 Am. U. L. Rev. 669 (1997) (law and sociology); Renee M. Landers et al., Rat Race Redux: Adverse Selection in the Determination of Work Hours in Law Firms, 86 Am. Econ. Rev. 329 (1996) (law and institutional economics); Austin Sarat & L. F. Felstiner, Lawyers and Legal Consciousness: Law Talk in the Divorce Lawyer's Office, 98 Yale L.J. 1663 (1989) (law and political science); Galanter & Palay, supra note 10 (law, sociology, and economics); Robert L. Nelson, Partners with Power: The Social Transformation of the Large Law Firm (Berkeley, 1987) (law and sociology); John P. Heinz & Edward O. Laumann, Chicago Lawyers: The Social Structure of the Bar (New York, 1982) (law and sociology); Sally Engle Merry & Neal A. Milner, The Possibility of Popular Justice: A Case Study of Community Mediation in the United States (Ann Arbor, 1993) (law and anthropology).
41. See, e.g., Elizabeth Chambliss, Organizational Determinants of Law Firm Integration, 46 Am. U. L. Rev. 669 (1997) (law and sociology); Renee M. Landers et al., Rat Race Redux: Adverse Selection in the Determination of Work Hours in Law Firms, 86 Am. Econ. Rev. 329 (1996) (law and institutional economics); Austin Sarat & L. F. Felstiner, Lawyers and Legal Consciousness: Law Talk in the Divorce Lawyer's Office, 98 Yale L.J. 1663 (1989) (law and political science); Galanter & Palay, supra note 10 (law, sociology, and economics); Robert L. Nelson, Partners with Power: The Social Transformation of the Large Law Firm (Berkeley, 1987) (law and sociology); John P. Heinz & Edward O. Laumann, Chicago Lawyers: The Social Structure of the Bar (New York, 1982) (law and sociology); Sally Engle Merry & Neal A. Milner, The Possibility of Popular Justice: A Case Study of Community Mediation in the United States (Ann Arbor, 1993) (law and anthropology).
42. See, e.g., Elizabeth Chambliss, Organizational Determinants of Law Firm Integration, 46 Am. U. L. Rev. 669 (1997) (law and sociology); Renee M. Landers et al., Rat Race Redux: Adverse Selection in the Determination of Work Hours in Law Firms, 86 Am. Econ. Rev. 329 (1996) (law and institutional economics); Austin Sarat & L. F. Felstiner, Lawyers and Legal Consciousness: Law Talk in the Divorce Lawyer's Office, 98 Yale L.J. 1663 (1989) (law and political science); Galanter & Palay, supra note 10 (law, sociology, and economics); Robert L. Nelson, Partners with Power: The Social Transformation of the Large Law Firm (Berkeley, 1987) (law and sociology); John P. Heinz & Edward O. Laumann, Chicago Lawyers: The Social Structure of the Bar (New York, 1982) (law and sociology); Sally Engle Merry & Neal A. Milner, The Possibility of Popular Justice: A Case Study of Community Mediation in the United States (Ann Arbor, 1993) (law and anthropology).
43. The best examples of which I am aware are Lance Liebman & Philip B. Heymann, The Social Responsibilities of Lawyers: Case Studies (Westbury, 1988) and Michael J. Kelley, Lives of Lawyers: Journeys in the Organizations of Practice (Ann Arbor, 1994).
44. The best examples of which I am aware are Lance Liebman & Philip B. Heymann, The Social Responsibilities of Lawyers: Case Studies (Westbury, 1988) and Michael J. Kelley, Lives of Lawyers: Journeys in the Organizations of Practice (Ann Arbor, 1994).
45. For an excellent example of such a comparative study, see James E. Moliterno, Professional Preparedness: A Comparative Study of Law Graduates' Perceived Readiness for Professional Ethics Issues, 58 Law & Contemp. Probs. 259 (1995).