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March 1, 2008

One dated(?) view of one(?) law school's problems

Kahlenberg_228 Inspired by a student follow-up to yesterday's class, I found this great old review of Richard Kahlenberg's notable book about Harvard Law School, a book which I read when I was a 3L at HLS.  The full book text of Broken Contract is available here via Google book, though this June 1992 review highlights the book's themes and adds new insights.  Here are a few snippets from the review, which echoes some themes I expressed in class on Friday:

The point is not that private practice is always evil, but that so many who enter Harvard get turned away from their original goals.  Seventy percent enter saying that they want to do public interest work; 95 percent leave to work in law firms, banks, and the like. This is quite a feat, especially at a time when, to hear conservatives tell it, academia is teeming with Marxists bent on tearing the system down. Harvard Law has its share of Marxoids, known there as proponents of Critical Legal Studies.  But Kahlenberg shows — and this is probably his most important insight — how the Crits help create the corporate hired guns they deplore.  Deconstructing the law, they deconstruct their students' idealism as well....

During his first year, Kahlenberg attends a meeting with [Harvard's] public interest adviser (a position since eliminated), who cites [this] estimate: 95 percent of the nation's legal time is spent serving the wealthiest 10 percent, 5 percent on the poor through legal services, and virtually nothing on the 160 million Americans in the middle.

One telling aspect of this 1992 review is how "current" it still seems, even though it was written when many current law students were in grade school. 

Some very notable folks graduated from HLS during the period Kahlenberg describes in his book: Kahlenberg himself graduated from HLS in 1989; Michelle Obama graduated from HLS in 1988; Barack Obama graduated from HLS in 1991; current US Solicitor General Paul Clement graduated from HLS in 1992.  Hmmm....

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When Kahlenberg is given the statistic regarding the disproportionate ratio of legal services compared to socioeconomic status, he wishes to ask a question about why the source of that alarming statistic did very little to mitigate the problem. "I almost raised my hand to ask why Lloyd Cutler's Washington Law firm spends thousands of dollars to recruit law students to represent the wealthiest clients if Cutler was really so disturbed." (p.34)

Even more alarming than this seemingly contradictory practice, of preaching for the underrepresented while assisting the elite, is the evidence that shows that it is actually a very lucrative scheme. On page 108, Kahlenberg describes the "Paradox of Being Cutler," and how Cutler gained lobbying credibility (and self-marketability) by perpetually retaining positions as an advocate for civil rights. Cutler was White House counsel under Presidents Carter and Clinton and held positions such as co-chair of Lawyers' Committee for Civil Rights Under Law. His private law firm prospered because of these roles. In fact, while serving under President Clinton, he was able to retain his salary at the firm. (See http://query.nytimes.com/gst/fullpage.html?res=9F06EED8163DF93AA35750C0A962958260 )

While I in no means suggest that Cutler solely used his intrinsic roles as a means to prosper financially, I do hope to highlight how the people in the most prominent positions to adjust the inequality in allocation of legal services actually work to retain the status quo. Cutler spent much more of his time and resources on the economically advantaged, and helped recruit new lawyers to do the same by luring them in with lucrative salaries and benefits. Meanwhile, he was heralded as a leader in civil rights advocacy when the egalitarian Committee he led pays nothing to its law school interns. (see http://www.lawyerscomm.org/2005website/jobs/internships/internships.html )

For fledgling attorneys there are few incentives to pursue public interest work other than an infrequent pat on the back. The real problem, however, is that when lawyers do reach positions that permit them power to incentivize others to share attorney skills with those that cannot afford it, they remain idle. Instead of inspiring change among young attorneys, they chair committees that ease their conscious as they further perpetuate the status quo.

Posted by: D. Slaybod | Mar 2, 2008 1:14:04 PM

Personally-I think the reason BigLaw firms have pro-bono work is to assuage the guilt (perhaps on a subconcious level) of many of the socially-conscious young recruits-"oh, you are interested in social justice, let me tell you about our pro bono group!"...only to find out the amount of time (at most firms) you can actually spend on pro bono work is quite small if you want to succeed.

Now-this is not to say they don't do great work, I know some of the stuff Cutler's firm did was amazing (and still is)...so maybe at the end of the day it is an overall net-gain...?

Posted by: Nathan | Mar 2, 2008 1:43:27 PM

One thing that I find interesting is his saying this:

"Seventy percent enter saying that they want to do public interest work; 95 percent leave to work in law firms, banks, and the like."

From my many statistics courses I've learned to be sceptical of statements like these. More likely than not, people are just saying on their applications, "I want to do public interest work," because it looks good on application and they think that will give them a greater chance to get in. So, they never really intended to do that kind of work to begin with.

The sad thing is, if that works for admissions, then of course the statistic of people saying that is going to be high because they're not accepting the honest people who are saying, "I want to go to law school to make a lot of money." That doesn't look good as a statistic.

I don't think I got into this law school because of my grades or my LSAT score (which were both significantly lower than the average), but either because I had great references (I only had one professor) or (most likely) because I wrote an essay about how I have the character values it takes to be a lawyer. Sure, I want to make money just as much as the next guy, but that's not the kind of thing you want to write in an essay. However, when I wrote my essay I wrote about what I actually am, not what I'm pretending I want to be. I don't think Harvard is deconstructing people as much as Kahlenberg is claiming.

I'm also pretty sure that the 95% of legal time spent working for the rich isn't because people have lost their idealism (or even that they were never idealistic) but because people with money can pay for the time. So, I'm not sure exactly how he's connecting these two ideas, or even that his first idea is right at all. But...I guess I can't have any credibility in saying this given that I haven't read the passage in the context of the whole book.

Posted by: John Ruiz-Bueno | Mar 5, 2008 1:56:17 PM

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