“Unequal Justice” by Jerold S. Auerbach is essentially a history of the legal profession in America with particular attention to the profession’s relationship to social change and movements.
The history strongly supports a sentence from the introduction that could be the thesis: “(The legal profession’s) own history is a nightmare from which it must try to awake.”
The nightmare that is the history of the legal profession is the kind of nightmare in which you just can’t stop yourself from repeatedly killing the thing you profess to love most. In the case of the legal profession, that thing is justice.
Throughout this history, the impulse that drives the legal profession to snuff out justice is a belief that the legal system, if operated without bias and as skillfully as possible, will inevitably deliver justice, despite external injustices that feed the legal system and even internal injustices, both of which ensure justice will never be served.
The external injustices that have created injustice within the legal system are fairly obvious. Power being in the hands of white men throughout most of the history of the legal profession has biased laws and the make-up of the legal profession toward white men.
This should have, all along, posed an existential crisis for a system that espouses a complete lack of bias, fairness, equality, colorblindness, and “equality under the law.”
However, in the history of the legal profession, those of the demographic in power largely either refused to see or could not see the ways the laws were biased toward their demographic, as most cannot now.
In respects to the racial, class, and gender homogeneity of the legal profession, throughout most of its history, the profession not only defended it but took steps to maintain it, so much so that at the time of the writing of this book:
In California, where there was one white lawyer for every 450 whites, there was one black lawyer for every 3,000 black (and one Chicano lawyer for every 16,000 Chicanos…and women accounted for one quarter of all lawyers despite being more than one half of the general population. (294).
Ironically, this homogeneity was defended by arguing that only the best and brightest – white, protestant, anglo-saxon men of good stock (upper-class) – could wield the law without bias and professionally enough to maintain equal justice for all.
The steps taken to defend this “purity” were similar and parallel to those that were taken in other areas of American life in various stages of history.
There were early anti-immigrant measures, there were loyalty oaths during the great wars, there were purges of suspected communists after, people of color were flatly denied admission to the bar, and lawyers who defended or advocated for these groups were routinely sanctioned and disbarred.
This is where we enter the internal contradictions of the legal profession that lead to injustice.
From the rise of the corporation at the turn of the 20th Century, the “best and brightest” lawyers have largely gone into “corporate law,” which is basically practicing law in a large firm organized like a corporation in its compartmentalization of tasks, which mostly defends corporations and wealthy individuals.
Within the legal profession, these lawyers have been considered the cream of the crop for over 100 years. They have not only defined “professionalism” and ideal legal principles, but largely been in charge of the bar, as well.
In contrast, lawyers who represented poor immigrants injured by the actions of corporations, people prosecuted by the House Un-American Activities Committee for being suspected communists, and Black Panthers, were historically sanctioned and disbarred. It was argued that their defense was indefensible.
Yet it has rarely been argued that the defense of corporations and the wealthy, even when they wreak far more havoc on society, is indefensible.
The only times this criticism has gained any traction within the legal profession has been during times of massive social movements.
One such time, described in the book, was during the Great Depression.
After the crash, society obviously questioned the reckless actions that led corporations to tank the economy. Of course, those actions were defended, even drafted, by lawyers. And not just any lawyer, corporate lawyers, the cream of the crop.
This forced the legal profession to examine whether simply doing its job well without examining the effect those jobs had on society should be the ideal of legal professionalism.
The myth that the legal profession, operating without bias and as skillfully as possible, would lead to justice, was shaken.
A shift occurred toward public service.
Huge amounts of lawyers, many of them young bright immigrants who were denied positions in Wall Street firms because of their largely Jewish decent, went to work for the Federal Government under the New Deal, and basically created administrative law, which is essentially the field of law that drafts rules based on legislation to regulate civic life through its government institutions.
However, the legal profession had, and has throughout history, a way of moving back toward the conservative after moments of radical realignment.
After the administrative laws were written, many of those who had written them were invited to work at the corporate firms that the laws they had written were intended to regulate, expanding the demographics of those firms (improving internal justice) but helping them continue to perpetuate external injustice.
“The New Deal, ironically, had certified its own lawyers for careers in the service of those very clients who were most hostile to the Roosevelt administration” (224).
This return to conservative ideals from the liberal hay day of the New Deal was epitomized in the Red Scare through the civil rights movement, when lawyers who defended suspected communists and political radicals were disbarred, which was itself a culmination of an anti-social justice streak within the legal profession.
In reading this history, it was shocking and baffling to me to realize that for the majority of our country’s history, the prosecution of citizens accused of crimes was state-funded but their defense was not. Even today, prosecutors’ offices are far more well funded than public defenders’ offices, and as a result, justice frequently escapes those accused of a crime.
The very idea of public defenders was considered radical and ultimately only implemented because it was a way of fending off wholesale revolution by giving people an illusion of fairness in the legal system.
As a head of the American Bar Association stated at the turn of the century:
Legal aid was vital because it “keeps the poor satisfied, because it establishes and protects their rights; it produces better workingmen and better workingwomen, better house servants; it antagonizes the tendency toward communism; it is the best argument against the socialist who cries that the poor have no rights which the right are bound to respect.” (45)
For private lawyers to defend those accused of a crime, or even to pursue civil suits for those injured by corporations or state agents, was historically (and often still is) denigrated by the majority of the legal profession as “defending criminals” and “ambulance chasing.”
Pro-bono work within corporate law firms was devised for similar reasons as legal aide was: to provide a service that would create the illusion of justice, the illusion that a shift was occurring within the legal profession to public service.
But the reality of pro-bono work is far from the benevolent practice one may think:
Pro bono work…highly touted as a professional innovation, never was more than an elite gesture. Even in the most responsive firms, which collectively recorded 23,000 hours of pro bono volunteer time within a single year, the average was dismally low: only five hours annually for each lawyer, approximately 0.4 percent of the firms’ billable time. This was “hardly a massive redirection of lawyer effort.” (283)
And that says nothing of the quality of services provided by a lawyer working at a corporate law firm and doing pro bono work for a non-profit or individual for which they may despise and/or which may be contrary to the interests of the professional clients to which they dedicated the vast majority of their time, and the time for which they were paid to be effective.
The American Bar Association even flatly banned providing legal counsel to Labor Unions, arguing that lawyers could only be retained by individuals, once again ignoring the contradiction that the “best and brightest” lawyers all worked for corporations (other, diametrically opposed groups of people).
Additionally, lawyers were historically allowed to advertise their services in periodicals certified by the Bar, “which were circulated to banks, corporations, and insurance companies, but they could not do so in the public media which reached a wider and less privileged clientele” (287).
The National Lawyers Guild was created largely to push back against this strain within the legal profession and the ABA.
When founded in the 30s, “It appealed to lawyers who were prepared to discard precedent in novel circumstances, who viewed law “as a living and flexible instrument which must be adapted to the needs of the people” (198).
As a result, it became a primary target during the Red Scare.
The House Un-American Activities Committee called the NLG, “The foremost legal bulwark of the Communist Part, its front organization,” and recommended that, “The guild be placed on the attorney general’s list of subversive organizations.”
Those who defended political radicals were targeted for sanctions and disbarment, while those who defended the dubious practices of corporations and the government continued to enjoy the highest praise:
Defense lawyers…received unfavorable notoriety for efforts on behalf of political dissenters which no lawyer questioned when such efforts were made in the defense of property and privilege. (225)
However, once again, a social movement created an opportunity for radical realignment within the legal profession.
As the anti-war and civil rights movements grew, the general public became more sympathetic to the worldview of the “radical lawyers” than that of corporate lawyers and the ABA.
People realized that, “The perils of undeviating client loyalty at the expense of any competing consideration of the public interest” (305), were responsible for many of the ills in modern America, especially as the legally crafted Watergate scandal came to light.
“Failure to evaluate social consequences did not automatically imply professional neutrality” (279), Auerbach notes. “‘Neutrality’ and ‘reason’ were labels assigned to certain political choices” (261).
The notion that process could be divorced from substance was a fiction proclaimed by the philosophers of legalism,” and, “The morality of process and power had superseded the morality of justice.” (304)
To the general public, “The most cherished principles and basic processes of professionalism were perceived as instruments of injustice” (306).
This created an epic struggle within the legal profession between those who wanted to maintain “professionalism” and lawyers who saw a need to counter the injustice both external and internal to the legal profession that created injustice in the legal system.
William Kunstler, who defended the Chicago 7 and Assata Shakur, among other high profile political radicals, put the latter most poignantly when he said, “I am not a lawyer for hire. I only defend those I love” (290).
Ultimately, the radical lawyers were allowed to make some changes to the legal profession to counter injustice.
Some of the success were changing the curriculums of law schools from focusing solely on the needs of the wealthy, instituting quotas for minorities on the bar, and revising the “Cannons” of the bar which had upheld legal “professionalism.”
However, Aurbauch argues that these reforms were ultimately flawed because they were still created by the legal profession: “Lawyers were permitted to monopolize solutions to problems that their monopoly of solutions had created” (302).
Overall, this is a fascinating read. It is one of the most captivating histories I have read, and as someone about to start law school, I think it highlighted many important issues to keep my eye on within the dogma of the legal profession as I dive into it.
Also published on Medium.