Too Many Lawyers?
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Too Many Lawyers?

The future of the legal profession

Eyal Katvan, Carole Silver, Neta Ziv, Avrom Sherr, Eyal Katvan, Carole Silver, Neta Ziv, Avrom Sherr

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eBook - ePub

Too Many Lawyers?

The future of the legal profession

Eyal Katvan, Carole Silver, Neta Ziv, Avrom Sherr, Eyal Katvan, Carole Silver, Neta Ziv, Avrom Sherr

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About This Book

The topic of "too many lawyers" is timely. The future make up and performance of the legal profession is in contest. What do we mean by "too many"? Is there a surplus of lawyers and what sort of lawyers are and will be needed? How best can we discern this? This book, is composed of scholarly articles presented at the Onati International Institute for the Sociology of Law (Spain), by some of the best researchers in the field, aims to answer these questions. This collection, with an introduction by Prof. Richard L. Abel, addresses methodological, normative and policy questions regarding the number of lawyers in particular countries and worldwide, while connecting this phenomenon to political, social, economic, historical, cultural and comparative contexts. This makes this book a source of interest to lawyers, law students, academic and policy makers as well as the discerning public. This book was previously published as a special issue of the International Journal of the Legal Profession.

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What does and should influence the number of lawyers?

UCLA Law School, Los Angeles, CA, USA
Before we can ask whether there are too many lawyers we must answer several preliminary questions: whom do we consider lawyers, and what does and should influence their number? The term ‘lawyer’, which English-speakers take for granted, has no obvious equivalent in many other languages. Civil law countries have the category of ‘jurist’, including everyone with a law degree; but a very large proportion of law graduates would not be recognized as lawyers in common law countries. Terms like ‘avocet’,1 ‘avvocato’,2 ‘abogado’3 or ‘anwalt’4 refer to lawyers with rights of audience in court – but this criterion would exclude jurists employed by corporations and civil servants, who are considered lawyers in common law countries. Notaries in civil law countries perform many of the functions of common law lawyers. Japan is famous for having few bengoshi compared with its population; but many of the functions of lawyers in other countries are performed by tax accountants, patent attorneys, and judicial and administrative scriveners in Japan.5 Any discussion of numbers, therefore, must be framed in terms of function rather than title.

I. Controlling the production of producers

All professions seek to control entry; that is what differentiates them from other occupational categories.6 At a moment like the present, when legal professions in many countries worry that their numbers are increasing in the face of great uncertainty about the future of the global economy, it is essential to review the ways in which lawyers have regulated their numbers in the past: “Those who cannot remember the past are condemned to repeat it”.7

Numerus clausus

Some legal professions had a numerus clausus: a fixed number of practitioners. Entry was dependent on obtaining an existing place by purchase, inheritance or appointment. French notaires are an historical example.8 The Netherlands only recently liberalized its notariat, allowing numbers to rise in response to demand.9 Many occupational categories in the United States enjoyed similar protections through state licensing.10 Some still do. In New York a seat on the Stock Exchange sold for $3.25 million in 2005, and a taxi medallion recently sold for $1 million. A Los Angeles liquor license also cost $1 million.11 When license holders do not simply admit self-interest in restricting the numbers,they offer unconvincing rationales. True, limiting liquor licenses may reduce alcohol consumption, but there are more effective and efficient ways to do so. We can reject a numerus clausus for lawyers.

State monopolies

The state can directly control the number of lawyers by making them state employees. Sweden has a state monopoly on liquor sales and China a state monopoly on tobacco; many governments monopolize lotteries. There are historical examples of state monopolies of lawyers: procurators and counsel for state enterprises in communist regimes, prosecutors and judges in most countries. But few today would advocate that all privately practicing lawyers become state employees.

Ascribed characteristics

Larson argued that the professional project sought to control not only how many could enter in order to extract monopoly rents but also who could enter so as to enhance lawyers’ collective status.12 (These two goals obviously can reinforce each other.) Caste is a classic mechanism for differentiating status. At independence, India recognized more than a thousand castes: hereditary, endogamous social categories that enjoyed (or were degraded by) occupational monopolies. Although this is an extreme example, it is far from unique. Kohanim had an exclusive entitlement to act as a priest in the Temple; the roles of blacksmith, healer and diviner were restricted by lineage in much of Africa. Everywhere heritable kingship and aristocratic titles conferred political power and rights in land. Even when social closure was not legally mandated, families perpetuated membership in occupational categories through inheritance and marriage. Many small firms were and still are family enterprises of fathers and sons (now also mothers and daughters), brothers (now siblings), and spouses. Anthony Trollope vividly portrayed the role of kinship in the Anglican Church hierarchy.13 No one today would urge that lawyers be a caste.
Professions historically enhanced their status (and income) by excluding stigmatized categories. Most legal professions barred women until well into the twentieth century on the ground that gender ‘unsuited’ them for the practice of law.14 Slavery barred African Americans. Many countries admitted only citizens. Well into the twentieth century, American legal elites openly voiced anti-Semitism. In 1913, Harlan Fiske Stone (then Dean of Columbia Law School and later Chief Justice of the US Supreme Court) wrote a letter deploring “the influx to the bar of greater numbers of the unfit”, who “exhibit racial tendencies toward study by memorization” and display “a mind almost Oriental in its fidelity to the minutiae of the subject without regard to any controlling rule or reason”.15 Henry S. Drinker, celebrated for writing the first American legal ethics code, railed as chairman of the Philadelphia bar’s grievance committee against those who, having come “up out of the gutter … were merely following the methods their fathers had been using in selling shoestrings and other merchandise …”. There had been many complaints against “Russian Jew boys” until the requirement that applicants to the bar have a preceptor (sponsor) excluded them.16 Nazi Germany took the next step by expelling Jews (54% of the Berlin bar, 62% in Vienna) and even the tiny number of women lawyers.17 But excluded categories eventually overcame the obstacles. Jews rose as a proportion of admissions to the New York City bar from 26% in 1900–1910 to 36% in 1911–1917, 40% in 1918–1923, 56% in 1923–1929, and an astonishing 80% in 1930–1934.18 The enrolment of women in American law schools increased by 1,650% between 1967 and 1983; indeed, because the number of men law students did not grow after 1973, all the increase in law school enrolments – and hence the profession – is attributable to the entry of women.19 Racial barriers were the last to be lowered; and all minorities except Asian-Americans remain underrepresented in law schools and the profession.20 Today most legal professions find this history acutely embarrassing and seek to enhance their collective status by making their membership more not less representative of the society they serve.21 Status criteria, therefore, cannot and should not limit numbers.

Formal education

Formal education is the hallmark of modern professions, invariably seen as definitional. The 1979 English Royal Commission on Legal Services listed mastery of “a specialized field of knowledge” requiring a “period of education and training” as one of “the five main features of a profession”.22 Structural functional sociology is equally emphatic.23 But there is ample reason for skepticism. Manchu China used an elaborate system of examinations to staff its civil service.24 The English civil service (and its colonial Indian counterpart) was long filled by Oxbridge graduates who had read classics. In neither case did the knowledge these recruits were forced to demonstrate bear any relationship to the professional tasks they ultimately performed.
The relationship between formal education and legal professions is historically and culturally specific. That connection is strongest in civil law countries, whose universities have had faculties of divinity, law and medicine for more than a millennium. But formal education did not become the dominant entry path for American lawyers until the early decades of the twentieth century. In England, that transformation took a half-century longer, partly because there were so few university places and partly because many law dons preferred the logical rigor of Roman law, dismissing their own law as too incoherent to be worth studying or teaching. (Law student enrolment in England rose from just over 3,000 in 1960–1961 to over 8,500 two decades later; enrolment in polytechnic law departments, first opened in 1965, rose to nearly 6,000 in 1981–1982; hence the aggregate total rose nearly 500%.)25 Indeed, no formal education was required in the United States until the twentieth century. Emulating the success of the American Medical Association’s 1910 Flexner Report in drastically reducing the number of medical students,26 the American Bar Association waged a long, vigorous campaign – including annual publication of a map seeking to shame delinquent states by highlighting them in black – to persuade regulators to impose educational requirements: first a high school diploma, then a baccalaureate, and finally graduation from a three-year law school.27 This drastically reduced the number of part-time students from 31,319 in 1928 to 11,865 in 1953, greatly curtailing entry by those from poorer families.28 California still allows graduates of unaccredited law schools and those studying in a law office to take the bar exam; New York allows those completing one year of law sc...

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