Allen Porter Mendenhall

The Lawyers’ Guild

In America, American History, History, Law, Legal Education & Pedagogy, Nineteenth-Century America on August 27, 2014 at 8:45 am

Allen 2

This piece originally appeared here as a Mises Emerging Scholar article for the Ludwig von Mises Institute Canada.

Last month, thousands of recent law school graduates sat for a bar examination in their chosen state of practice. They were not undertaking a harmless rite of passage but overcoming a malicious obstacle: an artificial barrier to entry in the form of occupational licensure.

Barriers to entry are restrictions on access to, or participation in, markets or vocations. Occupational licensure is a type of barrier to entry that regulates professions by requiring certification and licensing in the manner of medieval guilds. Medicine and law are perhaps the most recognizable professions to require their practitioners to obtain and maintain licenses.

The purpose of occupational licensure is to reduce competition by using government power to restrict membership eligibility in a profession. The criteria for membership are often prohibitively expensive for low-income earners. To be admitted to the law in nearly every state in the United States, you must not only pass a bar examination but also earn a law degree from an accredited law school, admission to which requires a bachelor’s degree from an accredited university.

The average student-loan debt for graduates of American colleges is around $29,400. The average student-loan debt for graduates of American law schools is between $75,700 and $125,000, depending on whether the school is public or private. The American Bar Association imposes heavy burdens on law schools such as accreditation standards that are inefficient and that drive up costs so that over time the high price of legal education is passed on to the public in the form of attorneys’ fees and costs. Having already saddled themselves with student-loan debts, recent law-school graduates pay thousands of dollars for bar-preparation courses to study for an examination that, if passed, will open the door to a job market that is the worst in recent memory. Nobody struggling financially should attempt to leap over each of these expensive hurdles.

Before the rise of bar examinations and professional licensure during the Progressive Era in the United States, aspiring attorneys simply “read law” as apprentices for practicing attorneys or as clerks for local law firms. Once they achieved a certain level of competence, apprentices were released from their tutelage and eligible to accept clients. Those jurisdictions that did require examinations allowed judges to conduct informal interviews with candidates to determine the candidates’ moral and intellectual fitness for practice. Such examinations were typically mere formalities: few candidates failed; few careers were at stake as the interview took place. Newly admitted attorneys had to demonstrate their excellence in order to gain clients. They launched their careers by charging low fees that even the poorest in society could pay. Attorneys who did not prove fit for practice never gained enough clients to sustain their business and were forced to embark on other professions.

In the late-nineteenth and early-twentieth century, energetic and entrepreneurial members of the middle to lower classes in cities such as New York and Chicago began to threaten the legal establishment that had previously been comprised of a mostly wealthy and elite fraternity. This fraternity simply could not compete with low-cost providers of legal services because, for example, the most elite attorneys considered it unseemly and degrading to advertise for services or to offer contingency fees. Bar associations that were once voluntary organizations of upper class professionals therefore began to use their political clout and government connections to obtain powers conferred by legislatures. They wanted to keep the lower classes out of their profession and to preserve a highbrow reputation for lawyers. They began to exercise a monopolistic control over the practice of law within their respective jurisdictions. Today they constitute authorized arms of the State.

In most jurisdictions’ bar associations determine who may be admitted as members and who must be excluded, whether and to what extent lawyers may advertise their services, what constitutes the “authorized” practice of law, whether a law firm must have a physical office with a non-residential mailing address, and under what conditions contingency fees are permissible. These anti-competitive practices hit communities most in need the hardest by increasing the costs of legal services beyond the ordinary person’s ability to pay.

The bar examination is the most hyped precondition for membership in a state bar association. Like hazing, it is more ritual than training; it does not help one learn to be an attorney or indicate any requisite skills for practice. It tests how well someone can memorize arcane and esoteric rules and their trivial exceptions, many of which have no bearing on actual practice. Few if any lawyers spend their days memorizing rules for courts or clients, and no one who intends to practice, say, corporate law in a big city needs to memorize obscure criminal law rules that were long ago superseded by statute.

Despite reciprocity among some states, the bar examination restricts the free flow of qualified attorneys across state lines, forcing even the best attorneys to limit their services to certain jurisdictions. The bar examination also creates racial disparities among practicing attorneys as minority passage rates tend to be lower, a fact that flies in the face of nearly every bar association’s purported commitment to diversity.

Keeping the number of lawyers low ensures that lawyers may charge higher fees. Keeping the barriers to entry high ensures that the number of lawyers remains low. It’s a popular fallacy to complain that there are too many lawyers. We don’t need fewer lawyers; we need more, so long as we gain them through competitive forces on a free market.

We need to unleash capitalism in the legal system for the benefit of everyone. We could start by eliminating the bar examination. Doing so would have no marked effect on the quality of lawyers. It would drive down the high costs of legal services by injecting the legal system with some much-needed competition. It would make practitioners out of the able and intelligent people who wanted to attend law school but were simply too prudent to waste three years of their lives and to take on tens-of-thousands of dollars of student-loan debt while entry-level legal jobs were scarce and entry-level legal salaries were low. Justifications for the bar examination are invariably predicated on paternalistic assumptions about the ability of ordinary people to choose qualified attorneys; such arguments ignore the number of ordinary people who, today, cannot afford qualified attorneys at all under the current anticompetitive system.

Abolishing the bar examination would benefit the very community it is supposed to protect: the lay public.

Troy Camplin Reviews “Napoleon in America,” a Novel by Shannon Selin

In America, American History, Arts & Letters, Book Reviews, Books, Creative Writing, History, Humanities, Novels, The Novel, Writing on August 20, 2014 at 8:45 am
Shannon Selin

Shannon Selin

Napoleon in America is a “what-if” historical novel that combines a variety of styles – epistolary, newspaper article, and regular novelistic narrative – to create a work that reads like a very well-written narrative of history. Given that the author is necessarily working with an entirely fictional world – one in which Napoleon escapes from St. Helena to the United States – the fact that she can create such an effect is quite remarkable. The reader is made to feel as if he or she is reading about actual historical events. Of particular note is the fact that Selin creates the impression that we are reading a Great Men History book, which makes it rather distinctive. As such, it is going against the direction in which historical studies have, themselves, gone.

Much contemporary history deals with everyday life, local histories, etc. But given that the protagonist of this novel, Napoleon, is the kind of person who is distinctly bored with everyday life – is too big for everyday life – we should not be surprised to find a story dominated by the overwhelming presence of the personality of Napoleon. It is perhaps for this very reason that the novel becomes involved in the great movements of Napoleon rather than the intimate details of his life. These aspects are touched on here and there, of course, but in the end, we remember Napoleon the Conquerer, not Napoleon the almost-died-when-he-got-to-America. Napoleon quickly recovers to dominate the novel with his personality. But this personality is not one changed by circumstances. He is the Napoleon we all love and loathe. He cannot settle down. He has to conquer.

Thus, with Selin’s novel, we have a complete inversion. The novel has, historically, dealt with everyday people in their everyday lives. The actions of most novelistic characters do not have a major impact on historical events. If we look at the way histories are written over the same time period of the rise of the European novel (which includes American and Canadian literature and, stylistically, much literature written in the rest of the world during the 20th century), we primarily see the complete opposite: an interest in major figures and their major effects on history dominate most historical narratives over this same time period. However, we see a shift within history toward the same kinds of concerns we see in novels: everyday peoples, the histories of institutions, local histories, etc. Thus, we should not be surprised to find novels picking up the kinds of narratives we once found in histories.

Along with the Big Men of the time, Selin deals with the Big Ideas of the time; of course, the Big Men are often the Big Men precisely because they discuss and try to enact the Big Ideas of their time. Liberalism and dictatorship and whether Napoleon is really a liberal or little better than the kings he likes to depose are discussed – as no doubt they were, in fact, discussed historically. We see some of the conflicts within French Liberalism – and some of the contradictions. Was it a mere coincidence that French Liberalism led to the Terror and to the Empire under Napoleon? Or was it simply bad luck? Pro- and anti-Napoleon liberals are unified in their opposition to the Bourbons, but the question is raised as to whether replacing one monarch with another is really an improvement. Yet, there seems a willingness, even among those who oppose Napoleon, to support revolution against the Bourbons, even if it results in another Napoleon (literally or figuratively). Along these lines, Selin does a magnificent job of showing how blinding the opposition to the Bourbons is in the decision by the French government to invade Spain. The King in fact opposes the invasion, but ends up being talked into it; the liberals believe the invasion is a Bourbon plot and evidence of his being a cruel dictator. The reality is more humdrum than the conspiracy theory the liberals are desperate to believe.

Overall, Selin’s book goes beyond what we would expect to find in a historical novel whose main character is a major historical figure. A traditional historical novel would have the characters doing all the major, public actions the history books tell us happened. Selin has to do something quite different. She has to first know what did in fact happen during the historical period in question; she then has to understand Napoleon well enough to understand what he might do in circumstances other than those in which he did, in fact, find himself; and then she has to create a realistic alternative to what did in fact happen, understanding the butterfly effects of a Napoleon in America. It is a garden of forking paths, and one can go in any number of directions. To this end, Selin is certainly effective in her choice of direction. The great uncertainty created by Napoleon’s presence in America is well demonstrated. The U.S. government does not seem to know what to do with him. We are, after all, talking about a young country still learning where it fits in the world. It has the benefit of being separated from Europe – where all the action lies – by a large ocean. But the action has come to America’s shores when Napoleon escapes St. Helena. The uncertainty that leaves Napoleon free to raise an army and wander into Texas is well within the realm of possibilities. As is the naïve belief by some – such as James Bowie – that Napoleon can be “handled.”

The majority of the novel is dominated by the spirit of uncertainty and worry. All the action comes in at the end of the novel, when Napoleon finally does invade Texas. And even then, we are left with a great deal of uncertainty. Napoleon has won a battle and established himself in San Antonio; however, we are left with the question of what will happen next. Napoleon in America has the feeling of the first novel in a sequel. It would not surprise me if Napoleon in Texas were to follow. There is a great deal more to this story that could be explored. Will Napoleon be able to create a long-term presence in Texas? What will be the response of Mexico? What will be the response of the American government? What will be the response of the American settlers? Will the people of Kentucky and Tennessee volunteer to fight for Texas independence under Napoleon as they did for its independence under Austin? Is Napoleon just preparing the way for the Americans to take over, making it a bit easier than it was historically? Or is he perhaps making it a bit harder, since a Mexican government may take Napoleon as a much more serious threat to the government of Mexico than those who only wanted an independent Texas?

For those who enjoy the What-If History genre, these are fun questions to consider. I find it hard to imagine that anyone who reads Napoleon in America – which should include most of those who enjoy historical fiction – would fail to want these questions answered in a sequel.

Troy CamplinTroy Camplin holds a Ph.D. in humanities from the University of Texas at Dallas.  He has taught English in middle school, high school, and college, and is currently taking care of his children at home. He is the author of Diaphysics, an interdisciplinary work on systems philosophy; other projects include the application of F.A. Hayek’s spontaneous order theory to ethics, the arts, and literature. His play “Almost Ithacad” won the PIA Award from the Cyberfest at Dallas Hub Theater.

The Life of Julius Porter Farish

In American History, American Literature, Arts & Letters, History, Southern History, The South on August 13, 2014 at 8:45 am
Sarah Elizabeth Farish

Sarah Elizabeth Farish

Sarah Elizabeth Farish is a graduate of the University of Illinois where she majored in English and Secondary Education. She is starting her first year teaching at Wheaton Academy in Wheaton, Illinois, this fall. She also coaches cross-country. While a northerner by residence she considers herself a southerner at heart, and loves Southern culture and literature very much.

The words “Deep South” stir a passion in our souls that they might not stir up in other folks. Hearing those syllables – pronounced more like “Deeep Sow-uth” in our family – causes several images to scroll through our minds: images of cotton plantations, Spanish moss, white-columned houses, small towns, Coca-Cola plants, Auburn University, and more.

For some reason hearing those words and seeing those images makes me think in black and white, as if the Deep South was a place frozen in time where things haven’t changed and Scout Finch is still strolling around the neighborhood looking for Jem and Dill.

And for many of us, it is that place.

It’s hard to say when and where my family begins but this story is going to be the story of my grandfather, Julius “Jay” Porter Farish III.

On November 15, 1929, the small town of Atmore, Alabama, needed something to hope in. The Great Depression had just started sinking its deep claws into America’s economy and morale.

Alabama has long been heralded as a state with many troubles, and this is true, but it was especially true during the Depression. Racism was rampant, pockets were empty, and folks were set in their ways, sometimes to a fault. Southerners were in church on Sundays, praying for an end to the Depression, and then working hard all week to bring money home to their families.

The mothers were teachers or stayed and worked at home. Black maids helped the white mothers and cooked and cleaned and then returned to the black neighborhoods to do the same for their own families.

My family, the Farishes, moved to Monroeville, Alabama, during the Depression and brought with them a sensible and strong work ethic. They immediately became involved in the town. This small, unsuspecting town would produce a few famous Americans who would alter American history. I’ll talk about them later.

As soon as the Depression ended, the South, like the rest of the nation, was hit with another blow: World War II. Southerners crowded around their radios holding handkerchiefs to their faces as tears rolled down their cheeks; they listened to the horrifying news of Pearl Harbor. Many young men suddenly disappeared from town, and folks prayed that the names of these men would not appear on the injured, missing, or worst of all dead list in the newspaper.

In the nearby town of Opelika, Alabama, Jay’s future wife Barbara Glenn was living alongside German prisoners of war. While she and her friends played kick-the-can in the streets POWs suffered through the Alabama heat but still experienced the Southern Hospitality that was characteristic of our family. Her brother John, my great-uncle, was in the Pacific serving his country as a Navy Sea Bee.

World War II ended and John came home. Despite the fact that he was in his twenties his hair was white and would be until he died. The stress had taken the color from his hair and the joy from his eyes and he returned a different man.

And then, after what felt like a million years but almost as quickly as it had started, the war ended. The streets were flooded with people rejoicing and kissing and laughing. The liquor flowed and hearts were full. Life seemed as if it were turning back around.

After the war America seemed like a joyful place again. Folks had survived the Great Depression and then a war that had shaken them to their core. Men were returning home, going to college, marrying their sweethearts, and quickly starting families.

Our family moved again, this time to Opelika, Alabama, a town right next door to what we hail as the greatest institution in the United States of America: Auburn University, home of the Tigers, although at the time it was Alabama Polytechnic University. Our passion for Auburn ran deeper and more passionately than the red clay beneath our feet. To this day Farishes would give our heart and soul to see Auburn football win, and even more than that we’d give an arm or a leg (or both) to see them destroy the University of Alabama.

Jay played Auburn basketball and was all Southeastern Conference. He was drafted by the Lakers but chose to serve his country in Korea and was there for several years.

In Opelika in the sixties the issue of segregation was unavoidable. Rosa Parks was making news, and our family prayed for her and supported her. Their deeply held Christian beliefs gave them wisdom to see that racism was hurting our society and not helping it.

Our family prayed for Dr. Martin Luther King Jr. and wept when he was assassinated. They were progressive (for their day) in that they put their children in public school while other white parents shuttled their children to the local private schools to keep them away from the black children.

Our family fought the race barrier after they moved to Atlanta, when segregation was illegal but still practiced, and they stood up against racism in the places they lived, ate, and shopped.

In the 1960s the segregation war was in full force. White families were pulling their children out of public schools and placing them in private ones. Protestants were even sending their children to Catholic schools to avoid black schools.

As I said, my grandfather grew up in Monroeville.  He was seen as the town’s athlete from a young age. Nicknamed “Bubber” (pronounced Bubba) in his childhood, he excelled in every sport he played, but mostly basketball and football.

A famous young woman was growing up a few houses down from Bubba, and right across the street from his grandmother’s house. That young woman was Harper Lee, who would write the novel that changed America, To Kill A Mockingbird. Harper, who went by the nickname “Nelle,” was a tomboy, and would often find herself knocking at Bubba’s door and inviting herself into a pickup game of roundball or football.

Nelle’s best friend, Truman Capote, was also in Monroeville during the summer and was known as a bit of a wimp to Bubba and his friends. Whenever they played football, Truman was always the center; however, Bubba and his friends would later joke that Truman accomplished more than they ever would. They mocked him for sitting at the general store and scribbling in his notebooks, but in the end Truman ended up doing just fine.

When Gregory Peck came to Monroeville for the filming of To Kill a Mockingbird Bubba took him to breakfast and until he died loved to tell the story of what a kind man Gregory Peck was.

Bubba’s athletic talent made him the star of his town. He got a scholarship to a small college in south Alabama for a year, and then transferred to Auburn. Monroeville had someone to hope in. Every time Bubba played well (which was often) Monroeville stood behind its man.

He then met Barbara Glenn and they married after a long courtship. Bubba turned down an offer to play for the then-Minneapolis Lakers and instead chose to serve his country in the Korean Conflict. He joined the Air Force and spent several years overseas.

When Jay came home, his family moved to Opelika, Alabama. His three children, Julie, and identical twins Steve and John, were in elementary school. The segregation battle was present even in sleepy Opelika.

Jay and his other family members living in Opelika who had young children were all active in the segregation debate. Nina’s cousin, Winston Smith T, was adamant that they keep their children in public schools.

When all the other parents were taking their white children out of the schools and putting them in private schools, the Farishes stayed in public school. And when the schools hired a black teacher, the Farishes stayed.

Then they moved to Atlanta. Jay joined the Atlanta Country Club to play golf with his work friends. The caddies there were all black men who weren’t allowed to fish on the grounds or play the course unless accompanied by a member, and so Jay made friends with them. He went fishing with them and played with them. He would take his children and grandchildren to fish with the caddies when few other club members would.

Among other things, Jay stood for his faith. His faith in Jesus as the Son of God was the reason that he did all that he did and the reason he broke the barriers he broke.

Because of Jay I stand up against judgment and hatred because of race and refuse to discriminate. My family and I love others with our whole hearts.

And now Jay is gone. However, the legacy he’s left behind for his children and their children will continue to help them stand up for victims of injustice. We are proud of his service to his family, the Auburn family, and his country. But more than that we love him for his love for God.

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