Revisiting “Hemispheres” in the Legal Profession

August 28th, 2017 / By Riaz Tejani

Excerpts from “Professional Apartheid: The Racialization of U.S. Law Schools After the Global Economic Crisis” American Ethnologist 44:3, August 2017. This piece relates to the author’s recent book, Law Mart: Justice Access and For-Profit Law Schools (Stanford, CA: Stanford University Press, 2017).

The 2008 global financial collapse was a watershed for US law schools. The sudden loss of capital, triggered by overspeculation and the repackaging of debt among multinational banks, caused global corporations to cancel transactions, settle litigation, and demand greater efficiency in remaining legal-services agreements. Large global law firms laid off thousands of attorneys, canceled new recruitments, and began outsourcing work to legal temp agencies, which in turn benefited from a professional labor oversupply and the new “gig” economy. In the preceding years, US law schools had expanded their operations and planned their budgets based on tuition priced against once-widespread lucrative corporate law incomes. Now they faced austerity. And because it was already in doubt whether law school job outcome reports were accurate, the moral hazard that they generated seemed to multiply after the economic crash. Prospective students took heed. Whereas legal education had seen increased demand in prior economic downturns, this time would be different: enrollment in US law schools plunged 30 percent from 2011 to 2015.

Indexing public fascination with this, failures in legal education made headlines in the New York Times, the Wall Street Journal, Bloomberg, and the Huffington Post. In an age of new cultural insurrections like Occupy and Black Lives Matter, people grew fascinated by the discomfort of this once-elite knowledge community. Beneath those news stories lay serious lessons about difference and knowledge capitalism in the contemporary global system. The so-called crisis of legal education and the legal profession, along with the overwhelmingly market-based reaction to it, suggests something deeper about the state of social justice under neoliberal political economy.

This is in part because, in the United States, formal legal education is virtually the only pathway to legal expertise, and law school—namely the three-year course of study in pursuit of the Juris Doctor, or JD degree—is a graduate-level, professional program only. Falling law school enrollment in the United States would shrink the legal profession, but the country already has one of the largest lawyer-to-population ratios in the world. Prominent legal academics have nevertheless argued that the demand for legal education should remain high because the profession still lacks ethnic and racial diversity and because existing attorneys have not equitably served minority communities. In this context, the “crisis” of US law schools is as much about political economy as it is about the character of the legal profession.

Inequalities in legal education have long been present. For instance, the ethnographically salient division of US law schools into “top tier,” “second tier,” “third tier,” and “fourth tier” already long signified a preoccupation with hierarchy. The economic crisis would only exacerbate these inequalities. Facing declining enrollments, so-called fourth-tier law schools saw a market-based solution: to increase their marketing to ethnic and racial-minority communities and to style this as a mission to diversify legal services (Taylor 2015; Tejani 2017). The suggestion appeared to be that US ethnic and racial minorities—long limited in their ability to access the justice system (Herrera 2014; Rhode 2004, 2015b)—can benefit merely from greater representation in the legal profession, if largely at a lower level of prestige and opportunity. This new approach to political-economic redemption in the legal-education community captures the marketization of race as a new feature of neoliberalism and has been critically labeled by at least one former law dean an “apartheid model.”

This is an apt term for the way global neoliberalism is transmogrifying the legal profession in the United States. Recognized as an important vector of global marketization (Riles 2011), the US legal profession has been taken for granted as a privileged actor and a subject of neoliberalism’s increasing inequality. Professional apartheid captures how the legal profession is both a key subject and object of neoliberalism. It takes extant symbolic and material stratification and engrafts it with an ethnoracial identity: the further one moves down the “tiers,” the more “diversity” one finds in law schools. Most importantly, in neoliberal approaches, this diversity becomes an institutional asset, a survival imperative amid shifting global markets. This belies a striking contradiction: diversity’s mere presence becomes the justification for its unequal and predatory concentration near the “bottom.”

[…]

The notion of self-regulating markets has achieved great appeal among US lawyers and legal academics in recent decades. Lawyers themselves are considered autopoietic, regulated by state bar organizations made up of other lawyers, and these groups are responsible for the primary mechanisms of discipline and coercion in cases of ethical misconduct. More broadly, the trend has been toward increased commercialization of the profession, such that attorney marketing—itself once highly restricted—has become far more acceptable. It was once risqué for lawyers to advertise in the Yellow Pages, but after the Supreme Court ruled on the matter in 1977 (Bates v. Arizona), it became common to see such ads on buses, billboards, and the Internet.

Meanwhile, legal education has also become increasingly commercial—particularly in the context of the recent enrollment slump. Law degrees are now framed as increasing human capital (Leichter 2015). Tuition rates have been raised and explained as payable on credit borrowed against likely future income (Simkovic and McIntyre 2014). And school rankings are viewed as a snapshot of market capitalization (Camson 2013).

Regulation of law schools, meanwhile, was pushed back on the vociferous advice of free-market adherents. Groups historically excluded from the legal profession and from the justice system more broadly, many said, could better find entry through deregulated legal education. That exclusion had been a hallmark of the legal profession. In midcentury Chicago, the practicing bar sorted itself neatly into so-called hemispheres with one higher-paid, higher-prestige segment taking on most lucrative corporate and union representation and a second, lower-paid one concerned with small claims and transactions among families, small businesses, estates, and individual disputants (Heinz and Laumann 1994). As with the contemporary Global North and South, there was a cultural dimension to this dualism that ascribed high economic and political stakes to the upper hemisphere and greater social and moral obligations to the lower. While the number of racialized minorities practicing law at the time was still almost negligible, even among “white” attorneys the work divided itself among northern and western European, Protestant, “white shoe” firms and southern and eastern, Catholic and Jewish, immigrant law firms. These observations have in turn been accepted among scholars of the legal profession as generalizable to other metropolitan areas and to the law school industry itself (Jonakait 2006–7).

Although the profession remains one of the least “diverse” (Rhode 2015a), today racial minorities make up a larger proportion of the legal community than in the past. There are several explanations for this trend. One is that higher education affirmative action programs from previous decades may be seeing their longer-term benefits take hold. For a time, law schools could set aside seats for minority applicants, and even after that practice was declared unconstitutional (Regents of University of California v. Bakke, 1978), they could favor certain diversity students using a point system with the logic that greater classroom diversity enhanced learning for everyone. Another explanation may be the important role of the legal profession in attaining marginal racial justice in the United States. Attractive already as a pathway to greater income and social mobility, the practicing bar also became a venue for modern-day battles of David and Goliath in the name of racial desegregation, interracial marriage, and the right to counsel in many criminal cases.

Even with the increased diversity in legal education, the success of minority students in the law classroom has been another matter. In some cases, and for structural reasons, those students have not fared as well as other students in the arcane Socratic and case-method formats common to law pedagogy (Mertz 2007). In others, they have lacked the white-collar networks to secure top-paying jobs after graduation (Espinoza 1988, 291). As a result, these groups have continued to be marginalized even after law schools opened their doors to them.

One known outcome of this was that minority attorneys have been channeled “back” to serve their own communities. Importantly, this has not been the only option available to minority graduates; many, for example, have found work in government service, and some have made it to lucrative firm jobs. Nevertheless, the social-justice narrative of “going back” has been privileged in institutional training materials, marketing, and career services counseling. At NDSL, one key example I have described in greater detail elsewhere (Tejani 2017) was the near-ritual practice of Charter Review. There, faculty were compelled to begin each meeting with a review of the corporate mission statement emphasizing above all else, their social-justice mission of “serving the underserved.” In this way, faculty were encouraged to feel they were channeling expertise to communities in need. In some cases, this matching between practitioner and clients brought success for minority attorneys.

Two of my interlocutors, both white male legal educators, spoke favorably about this matching.  As one said,

[ex]Identity politics is a lot of how you make your career. [. . .] We’ve seen Armenian-only practices, basically a whole lot of Spanish-language practices, Korean-only practices, Arab-only practices, and so there’s something about access to individuals that makes having a particularly diverse bar important, but this is the fine line. [. . .] We found that most people, an overwhelming number of people, are happy with their decision to be a lawyer. The biggest complaint is that it’s too much work.

[…]

Others were more willing to see regulation restrict the kind of access that law schools were touting to prop up their business models. They came to notice the irony of granting minority access to low-outcome institutions at a high price. Another faculty member likened this to postcolonial upward mobility through collaboration:

[ex]It just crushes me to the core because I know that here they are trying to use the race card when it suits them, OK, but their hearts and minds are not really with the downtrodden. [. . .] They’re like a Clarence Thomas [. . .] and a lot of people [. . .] in Africa, the elite. [. . .] If your heart is not in the struggle to lift up your other brothers and sisters, to speak out against injustice [. . .] and you are joining forces with the [for-profit law schools] of the world, to exploit your own minority or whatever they want to call them, your African Americans, Native Americans [. . .] then you’re just part of the problem.

[….]

It has long been thought that ethnography [field research] offers a privileged standpoint from which to view the machinations of market fundamentalism. Using ethnography as a socially embedded knowledge base, anthropologists have sought to measure the very disembedding of knowledge from society at the center of renewed faith in laissez-faire political economy. Yet we have not mastered the means by which market fundamentalism sinks its hooks into the elite experts said to be driving it. The study of internal shifts in legal education, for this reason, should occupy a central role in the study of neoliberalism.