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CLEs for Physiological and Psychological Wellbeing? Something to Consider.

In Law on August 15, 2018 at 6:45 am

This piece originally appeared here in The Addendum, the newsletter of the Alabama State Bar.

Many attorneys suffer from depression, anxiety, stress, and drug and alcohol abuse.[1] Technology has changed client expectations, pressuring lawyers to be available at all hours through constant, instant communication.[2]

Lawyers may feel burned out or fatigued by the demands of their profession, namely “the extreme value placed on competition, self-sufficiency, and abnegating individual emotional needs; the isolated work conditions characteristic of most law practices; and the effect of the adversarial system on all spheres of professional and personal life.”[3] Lawyers experience mental-health problems at rates higher than those in other professions.[4]

Speaking to the Alabama State Bar Leadership Forum in March, Dr. Steve Walton of the Goizueta Business School at Emory University discussed the effects of stress, anxiety, and poor health on workplace productivity. High levels of stress, he said, make people less effective on the job, impacting their ability to pay attention, plan ahead, handle large volumes of work, empathize, and process information.

Dr. Walton explained that stress and anxiety can lead to serious, long-term health conditions: obesity, diabetes, cancer, high cholesterol, chronic pain, and more. The wellness habits of lawyers, he concluded, directly affect the lives of their clients, who depend on lawyers for competent and professional representation.

Something must be done to reverse what appears to be a systemic health issue in the legal community. I propose broadening continuing legal education (CLE) offerings to include fitness and wellness programs. If regular exercise and healthy eating can make you a better lawyer, shouldn’t lawyers be incentivizing such activity? Couldn’t CLEs be used to nurture our physical and mental wellness, to meet our physiological and psychological needs?

Minnesota was the first state to require CLES, and other states began instituting them during the 1980s, 1990s, and 2000s.[5] They were intended to address complex, ongoing changes in the legal system and to cultivate professionalism and competence among lawyers.[6] Whether they have succeeded in these goals is a matter of debate.[7]

Many lawyers probably view CLEs as just another stressful mandate, a time-consuming responsibility in a field in which time is precious and mechanistically measured. It could be that CLEs compound stress and further impair our ability to perform optimally as counselors and advisers to clients.

CLE hours compete with other hours that could be spent on fulfilling activity: dinner with family, religious services, little-league games, weddings, funerals, reunions, and so forth. When our responsibilities are so numerous that they become unmanageable, the last thing we need is another task to manage.

Imagine if you could satisfy at least a portion of your CLE requirements by enrolling in a six-month program with a personal trainer at a reputable gym, or by participating in a dietary program monitored by a reputable nutritionist. Evidence suggests that workplace health promotion programs work[8] and even generate savings on healthcare.[9] Why not try them in our profession?

If you can’t take care of yourself, you’ll have trouble taking care of others. If you can’t meet your own needs, you’re less likely to meet the needs of others. I’ll leave it to experts to determine what a health and wellness CLE program would look like, but the need for one seems plain.

 

[1] See generally Patrick Krill, Ryan Johnson, and Linda Albert. “The Prevalence of Substance Use and Other Mental Health Concerns Among Attorneys.” 10 J. Addiction Med. 46-52 (2016).

[2] Jon M. Garon. “The Once and Future Profession: Autonomy, Intellectualism, and Obligation.” 48 U. Tol. L. Rev. 253, 259 (2017).

[3] Lee Norton, Jennifer Johnson, and George Woods. “Burnout and Compassion Fatigue: What Lawyers Need to Know.” 84 UMKC L. Rev. 987 (2016).

[4] Pamela Bucy Pierson, Ashley Hamilton, Michael Pepper, Megan Root. “Stress Hardiness and Lawyers.” 42 J. Legal Prof. 1, 11-12 (2017).

[5] Cheri A. Harris. “MCLE: The Perils, Pitfalls, and Promise of Regulation.” Val. U. L. Rev. 361-62 (2006).

[6] See generally Joint Committee on Continuing Legal Education of the American Law Institute and the American Bar Association, Continuing Legal Education for Professional Competence and Responsibility: The Report on the Arden House Conference (1959).

[7] See generally Deborah L. Rhode and Lucy Buford Ricca. “Revisiting MCLE: Is Compulsory Passive Learning Building Better Lawyers?” 22 No. 2. Prof. Law. 2 (2014).

[8] Ron Z. Goetzel, Rachel Mosher Henke, Maryham Tabrizi et al. “Do Workplace Health Promotion (Wellness) Programs Work?” 56 J. Occupational and Envtl. Med. 927 (2014).

[9] See generally Katherine Baicker, David Cutler, and Zirui Song. “Workplace Wellness Programs Can Generate Savings.” 29 Health Affairs 1 (2010).

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Are Lawyers Illiterate?

In Arts & Letters, Books, Essays, History, Humanities, Imagination, Law, Literature, Philosophy, Western Civilization, Western Philosophy on September 3, 2014 at 8:45 am

Allen 2

This piece originally appeared here in The Imaginative Conservative.

Webster’s defines “intelligent” as “endowed with intelligence or intellect; possessed of, or exhibiting, a high or fitting degree of intelligence or understanding.” This modern understanding of “intelligence” as an innate disposition or propensity differs from earlier understandings of the word as meaning “versed” or “skilled.” Milton, for instance, in Paradise Lost, calls the eagle and the stork “intelligent of seasons,” by which he meant that these birds, because of their experience, were cognizant of the seasons.

The older meaning of “intelligent” has less to do with native endowment than it does with gradual understanding. The older meaning, in other words, is that intelligence is acquired by effort and exposure rather than fixed by biological inheritance or natural capacity: one may become intelligent and is not just born that way; intelligence is a cultivated faculty, not an intrinsic feature.

Because of the altered signification of “intelligent,” we use today different words to describe the older meaning: erudite, knowledgeable, informed, traveled, educated. These words seem to us more palatable than their once-favored predecessors: civilized, polished, cultured, genteel, refined. I myself prefer words like “lettered” or “versed” that imply a knowledge of important books and the humanities generally.

The most apt term in this regard is also the most butchered in the current lexicon: “literate.” Contrary to what appears to be the prevailing assumption, “literate” does not simply refer to an ability to read. According to Webster’s, “literate” means “instructed in letters, educated; pertaining to, or learned in, literature.”

Not just to read, but to read well and widely—that is how you become “literate.” Accepting this traditional meaning, I question how many lawyers are or can become literate.

In the 1980s, Ithiel de Sola Pool, a professor of communications and media, determined that the average American adult reads approximately 240 words per minute. At that rate, it would take a person around 2,268.36 minutes (or 37 hours, 48 minutes, and 21.6 seconds) to read War and Peace, which comes in at 544,406 words. If that sounds encouraging—ever wanted to read War and Peace in a day-and-a-half?—consider these offsetting variables: reading at one sitting slows over time; attention span and memory recall are limited; the mind can be exercised only so much before it requires rest; people cannot constantly read for 2,268.36 minutes without going to the restroom or eating or daydreaming, among other things; a healthy lifestyle entails seven to nine hours of sleep per day; large portions of the day are spent carrying out quotidian operations, including showering, cooking, brushing teeth, commuting to and from work, getting dressed and undressed, answering phone calls, reading emails, cleaning, filling out paperwork, paying bills, and so on. Pool, moreover, was not using a text like War and Peace to gather his data, and his subjects were not writing in the margins of their books, taking notes on their laptops, or pausing to engage others in critical conversations about some narrative.

The National Association for Legal Career Professionals has estimated that lawyers at large firms bill on average 1,859 hours per year and work 2,208 hours per year. These numbers are more troubling in view of the fact that large law firms require their attorneys to attend functions with clients and potential clients, time that is neither billable nor considered “working hours.”

If there are around 8,760 hours in a year, and if a healthy person spends about 2,920 of those sleeping, there remain only around 5,840 hours per year for everything else. If “everything else” consisted of nothing—nothing at all—except reading War and Peace, then a lawyer at a large law firm could read that book about 154 times a year. But of course this is not possible, because no person can function as a machine functions. Once the offsetting variables are accounted for—and I have listed only a few that immediately spring to mind, and these for people with no families—it becomes apparent that it is nearly impossible for a lawyer to read more than about four lengthy or difficult books each month, and only the most diligent and disciplined can accomplish that.

Numbers can lead us astray, so let us consider some anecdotal evidence—my own testimony—which suggests that most lawyers are illiterate, or perhaps that lawyers have to try really hard to become literate or to avoid losing their literacy.

I am a lawyer, one who considers himself literate but increasingly in danger of becoming illiterate the longer I remain in my chosen profession. My hope is that literacy stays with you, that if you “frontload,” as it were, you can build a wide enough base to allow for slack in later years.

In 2013, I made an effort to overcome the time restrictions of my job to read through several canonical texts of Western Civilization. For the most part I undertook a book a week, although, because of scheduling constraints, I read what I took to be the most important or most famous sections of the lengthier books and volumes such as Aquinas’s Summa Theologica, a work that would require years of study to fully appreciate. I found myself, on many Thursday evenings, reading so rapidly to finish the text at hand that I could not enjoy myself or absorb the nuances and complexities established by the author.

Reading only one book a week when you are intelligent enough to read more is shameful and disgraceful, the sacrifice of a gift. During graduate school, I could read five or six books a week and can recall more than one week when I read a book a day. But each day I spend working as a lawyer, I am less able to digest the books I consume and to consume the books necessary for intellectual nourishment.

Economists use the term “opportunity cost” to refer to a choice to forego options or to pursue the benefits of one course of action rather than another. The cost of becoming a lawyer is giving up literacy or making its attainment more difficult; the gain, in theory, is a higher salary and financial stability. Whether the gain neutralizes the loss depends on one’s preferences. I myself would not trade for a million dollars the opportunity to read Tolstoy or Shakespeare or Aristotle or Santayana.

To achieve the admiration enjoyed by lawyers, other professionals must do their jobs several times better. Happily, this is not a high bar. That is why people prefer the company of doctors. It is not that lawyers are incompetent or unskilled; it is that they do not put their faculties to good use. All people think, but it is only by degree and by the object of their thought that the literate are distinguished from the illiterate. To put their minds to humane use would improve lawyers’ reputations considerably and call into question that axiom popularized by one of Dickens’s characters: “If there were no bad people, there would be no good lawyers.”

The way I see it, you can spend all your life billing clients and pushing paper under great stress, by investing your talents and resources in prospects that yield no intellectual returns, or you can spend your life establishing high standards of reason, understanding, and creativity by studying the most important and influential works that humans have produced through the ages. You can spend all your time transacting business, prosecuting and defending lawsuits, and preparing briefs and memoranda, or you can cultivate discernment and understanding. The options are not mutually exclusive: I have overstated to draw a sharp contrast, but the point remains.

Do not misunderstand me: working hard and earning profits are not only good and healthy activities but personally fulfilling. Yet they must be supplemented with humane contemplation and the private study of important ideas. Industry and innovation are requisite to a high quality of life, a robust economy, and human flourishing—and they make possible the time and leisure that enable some people to create great art and literature. Not everyone can be literate, and that is a good thing.

It is just that many lawyers never learn to live well and wisely, to place their seemingly urgent matters into perspective, or to appreciate, as Aristotle did, the virtues of moderation. This failure is directly related to lawyers’ neglect of history and philosophy and to their suppression of the moral imagination that works of good literature can awaken. This failure, as well, puts lawyers at a distinct disadvantage when it comes to spiritual, moral, and intellectual pursuits. As Mark Twain quipped, “The man who does not read good books has no advantage over the man who cannot read them.”

Lawyers are illiterate, most of them anyway. Trust them to handle your real estate closings or to manage your negligence claims, to finalize your divorce or to dash off angry letters to your competitors, but do not trust them to instruct you on plain living and high thinking. There are exceptions—Gerald Russello and Daniel Kornstein are two—but generally lawyers are not to be consulted on matters of importance to the soul. For those, we have good books, and with luck, the people who write and read them.

Abolish the Bar Exam

In America, American History, History, Law on July 23, 2014 at 8:45 am

Allen 2

This article originally appeared here at LewRockwell.comand was reposted on this blog last year in July.  I repost it here again this year for all those who are taking the bar exam this week and next week.

Every year in July, thousands of anxious men and women, in different states across America, take a bar exam in hopes that they will become licensed attorneys. Having memorized hundreds if not thousands of rules and counter-rules — also known as black letter law — these men and women come to the exam equipped with their pens, laptops, and government-issued forms of identification. Nothing is more remote from their minds than that the ideological currents that brought about this horrifying ritual were fundamentally statist and unquestionably bad for the American economy.

The bar exam is a barrier to entry, as are all forms of professional licensure. Today the federal government regulates thousands of occupations and excludes millions of capable workers from the workforce by means of expensive tests and certifications; likewise various state governments restrict upward mobility and economic progress by mandating that workers obtain costly degrees and undergo routinized assessments that have little to do with the practical, everyday dealings of the professional world.

As a practicing attorney, I can say with confidence that many paralegals I know can do the job of an attorney better than some attorneys, and that is because the practice of law is perfected not by abstract education but lived experience.

So why does our society require bar exams that bear little relation to the ability of a person to understand legal technicalities, manage case loads, and satisfy clients? The answer harkens back to the Progressive Era when elites used government strings and influence to prevent hardworking and entrepreneurial individuals from climbing the social ladder.

Lawyers were part of two important groups that Murray Rothbard blamed for spreading statism during the Progressive Era: the first was “a growing legion of educated (and often overeducated) intellectuals, technocrats, and the ‘helping professions’ who sought power, prestige, subsidies, contracts, cushy jobs from the welfare state, and restrictions of entry into their field via forms of licensing,” and the second was “groups of businessmen who, after failing to achieve monopoly power on the free market, turned to government — local, state, and federal — to gain it for them.”

The bar exam was merely one aspect of the growth of the legal system and its concomitant centralization in the early twentieth century. Bar associations began cropping up in the 1870s, but they were, at first, more like professional societies than state-sponsored machines. By 1900, all of that changed, and bar associations became a fraternity of elites opposed to any economic development that might threaten their social status. The elites who formed the American Bar Association (ABA), concerned that smart and savvy yet poor and entrepreneurial men might gain control of the legal system, sought to establish a monopoly on the field by forbidding advertising, regulating the “unauthorized” practice of law, restricting legal fees to a designated minimum or maximum, and scaling back contingency fees. The elitist progressives pushing these reforms also forbade qualified women from joining their ranks.

The American Bar Association was far from the only body of elites generating this trend. State bars began to rise and spread, but only small percentages of lawyers in any given state were members. The elites were reaching to squeeze some justification out of their blatant discrimination and to strike a delicate balance between exclusivity on the one hand, and an appearance of propriety on the other. They made short shrift of the American Dream and began to require expensive degrees and education as a prerequisite for bar admission. It was at this time that American law schools proliferated and the American Association of Law Schools (AALS) was created to evaluate the quality of new law schools as well as to hold them to uniform standards.

At one time lawyers learned on the job; now law schools were tasked with training new lawyers, but the result was that lawyers’ real training was merely delayed until the date they could practice, and aspiring attorneys had to be wealthy enough to afford this delay if they wanted to practice at all.

Entrepreneurial forces attempted to fight back by establishing night schools to ensure a more competitive market, but the various bar associations, backed by the power of the government, simply dictated that law school was not enough: one had to first earn a college degree before entering law school if one were to be admitted to practice. Then two degrees were not enough: one had to pass a restructured, formalized bar exam as well.

Bar exams have been around in America since the eighteenth century, but before the twentieth century they were relaxed and informal and could have been as simple as interviewing with a judge. At the zenith of the Progressive Era, however, they had become an exclusive licensing agency for the government. It is not surprising that at this time bar associations became, in some respects, as powerful as the states themselves. That’s because bar associations were seen, as they are still seen today, as agents and instrumentalities of the state, despite that their members were not, and are not, elected by the so-called public.

In our present era, hardly anyone thinks twice of the magnificent powers exercised and enjoyed by state bar associations, which are unquestionably the most unquestioned monopolies in American history. What other profession than law can claim to be entirely self-regulated? What other profession than law can go to such lengths to exclude new membership and to regulate the industry standards of other professions?

Bar associations remain, on the whole, as progressive today as they were at their inception. Their calls for pro bono work and their bias against creditors’ attorneys, to name just two examples, are wittingly or unwittingly part of a greater movement to consolidate state power and to spread ideologies that increase dependence upon the state and “the public welfare.” It is rare indeed to find the rhetoric of personal responsibility or accountability in a bar journal. Instead, lawyers are reminded of their privileged and dignified station in life, and of their unique position in relation to “members of the public.”

The thousands of men and women who will sit for the bar exam this month are no doubt wishing they didn’t have to take the test. I wish they didn’t have to either; there should be no bar exam because such a test presupposes the validity of an authoritative entity to administer it. There is nothing magical about the practice of law; all who are capable of doing it ought to have a chance to do it. That will never happen, of course, if bar associations continue to maintain total control of the legal profession. Perhaps it’s not just the exam that should go.

Abolish the Bar Exam

In America, American History, Arts & Letters, History, Humanities, Law, Legal Education & Pedagogy, Nineteenth-Century America on July 10, 2013 at 8:45 am

Allen Mendenhall

This article originally appeared here at LewRockwell.com.

Every year in July, thousands of anxious men and women, in different states across America, take a bar exam in hopes that they will become licensed attorneys. Having memorized hundreds if not thousands of rules and counter-rules — also known as black letter law — these men and women come to the exam equipped with their pens, laptops, and government-issued forms of identification. Nothing is more remote from their minds than that the ideological currents that brought about this horrifying ritual were fundamentally statist and unquestionably bad for the American economy.

The bar exam is a barrier to entry, as are all forms of professional licensure. Today the federal government regulates thousands of occupations and excludes millions of capable workers from the workforce by means of expensive tests and certifications; likewise various state governments restrict upward mobility and economic progress by mandating that workers obtain costly degrees and undergo routinized assessments that have little to do with the practical, everyday dealings of the professional world.

As a practicing attorney, I can say with confidence that many paralegals I know can do the job of an attorney better than some attorneys, and that is because the practice of law is perfected not by abstract education but lived experience.

So why does our society require bar exams that bear little relation to the ability of a person to understand legal technicalities, manage case loads, and satisfy clients? The answer harkens back to the Progressive Era when elites used government strings and influence to prevent hardworking and entrepreneurial individuals from climbing the social ladder.

Lawyers were part of two important groups that Murray Rothbard blamed for spreading statism during the Progressive Era: the first was “a growing legion of educated (and often overeducated) intellectuals, technocrats, and the ‘helping professions’ who sought power, prestige, subsidies, contracts, cushy jobs from the welfare state, and restrictions of entry into their field via forms of licensing,” and the second was “groups of businessmen who, after failing to achieve monopoly power on the free market, turned to government — local, state, and federal — to gain it for them.”

The bar exam was merely one aspect of the growth of the legal system and its concomitant centralization in the early twentieth century. Bar associations began cropping up in the 1870s, but they were, at first, more like professional societies than state-sponsored machines. By 1900, all of that changed, and bar associations became a fraternity of elites opposed to any economic development that might threaten their social status.

The elites who formed the American Bar Association (ABA), concerned that smart and savvy yet poor and entrepreneurial men might gain control of the legal system, sought to establish a monopoly on the field by forbidding advertising, regulating the “unauthorized” practice of law, restricting legal fees to a designated minimum or maximum, and scaling back contingency fees. The elitist progressives pushing these reforms also forbade qualified women from joining their ranks.

The American Bar Association was far from the only body of elites generating this trend. State bars began to rise and spread, but only small percentages of lawyers in any given state were members. The elites were reaching to squeeze some justification out of their blatant discrimination and to strike a delicate balance between exclusivity on the one hand, and an appearance of propriety on the other. They made short shrift of the American Dream and began to require expensive degrees and education as a prerequisite for bar admission. It was at this time that American law schools proliferated and the American Association of Law Schools (AALS) was created to evaluate the quality of new law schools as well as to hold them to uniform standards.

At one time lawyers learned on the job; now law schools were tasked with training new lawyers, but the result was that lawyers’ real training was merely delayed until the date they could practice, and aspiring attorneys had to be wealthy enough to afford this delay if they wanted to practice at all.

Entrepreneurial forces attempted to fight back by establishing night schools to ensure a more competitive market, but the various bar associations, backed by the power of the government, simply dictated that law school was not enough: one had to first earn a college degree before entering law school if one were to be admitted to practice. Then two degrees were not enough: one had to pass a restructured, formalized bar exam as well.

Bar exams have been around in America since the eighteenth century, but before the twentieth century they were relaxed and informal and could have been as simple as interviewing with a judge. At the zenith of the Progressive Era, however, they had become an exclusive licensing agency for the government. It is not surprising that at this time bar associations became, in some respects, as powerful as the states themselves. That’s because bar associations were seen, as they are still seen today, as agents and instrumentalities of the state, despite that their members were not, and are not, elected by the so-called public.

In our present era, hardly anyone thinks twice of the magnificent powers exercised and enjoyed by state bar associations, which are unquestionably the most unquestioned monopolies in American history. What other profession than law can claim to be entirely self-regulated? What other profession than law can go to such lengths to exclude new membership and to regulate the industry standards of other professions?

Bar associations remain, on the whole, as progressive today as they were at their inception. Their calls for pro bono work and their bias against creditors’ attorneys, to name just two examples, are wittingly or unwittingly part of a greater movement to consolidate state power and to spread ideologies that increase dependence upon the state and “the public welfare.” It is rare indeed to find the rhetoric of personal responsibility or accountability in a bar journal. Instead, lawyers are reminded of their privileged and dignified station in life, and of their unique position in relation to “members of the public.”

The thousands of men and women who will sit for the bar exam this month are no doubt wishing they didn’t have to take the test. I wish they didn’t have to either; there should be no bar exam because such a test presupposes the validity of an authoritative entity to administer it. There is nothing magical about the practice of law; all who are capable of doing it ought to have a chance to do it. That will never happen, of course, if bar associations continue to maintain total control of the legal profession. Perhaps it’s not just the exam that should go.

Law and the Sum of Particulars

In Arts & Letters, Humanities, Jurisprudence, Law on January 17, 2013 at 8:45 am

Allen Mendenhall

It is the lawyer’s errand to analyze complicated texts, ferret out details, argue fine points, and consider the facts of experience in light of their implications for and because of rules and regulations.  The task of the lawyer is to scrutinize and produce particulars.  Rarely is the lawyer afforded the time and privilege to contemplate the sum of the particulars.  That is unfortunate because tasks and particulars necessarily interact to produce the law, and the lawyer ought to know something of the fundamental bases of his profession.

If the lawyer were to add up all of his activities in a single workday—reading his email, drafting his motions, calling his clients, billing his time—the result would not be “the law” as such, but at most a police description of the constituent elements of legal practice.  From these elements he can infer some generalizations about the law as an ontological and epistemological category, but he cannot name or describe the law as a clear concept that will make sense to future lawyers or that would have made sense to lawyers long ago.

Most lawyers are like the prisoners in Plato’s allegory of the cave: bound by their daily routines and habits of mind and looking forward at the shadows, those sensible particulars that are merely images of copies of the true forms.  There are a few philosopher lawyers—very few, I might add, for the lawyer is, as Plato indicates, part of the auxiliary class, beneath the philosopher kings—who look beyond the quotidian operations of the workaday world, or the fashionable legislation that temporarily passes for authoritative rules and regulations, or the administrative systems that seek short term solutions to minor and momentary problems, or the endless monotony of calendars and deadlines to see the real objects of sensation and to achieve a higher, more holistic stage of cognition.  These few philosopher lawyers know what the law is despite what the statutes or the judges proclaim it to be.

Abolish the Bar Exam

In America, American History, Arts & Letters, Austrian Economics, History, Humanities, Law, Libertarianism, Nineteenth-Century America on July 20, 2012 at 8:45 am

Allen Mendenhall

The following piece first appeared here at LewRockwell.com.

Every year in July, thousands of anxious men and women, in different states across America, take a bar exam in hopes that they will become licensed attorneys. Having memorized hundreds if not thousands of rules and counter-rules – also known as black letter law – these men and women come to the exam equipped with their pens, laptops, and government-issued forms of identification. Nothing is more remote from their minds than that the ideological currents that brought about this horrifying ritual were fundamentally statist and unquestionably bad for the American economy.

The bar exam is a barrier to entry, as are all forms of professional licensure. Today the federal government regulates thousands of occupations and excludes millions of capable workers from the workforce by means of expensive tests and certifications; likewise various state governments restrict upward mobility and economic progress by mandating that workers obtain costly degrees and undergo routinized assessments that have little to do with the practical, everyday dealings of the professional world.

As a practicing attorney, I can say with confidence that many paralegals I know can do the job of an attorney better than some attorneys, and that is because the practice of law is perfected not by abstract education but lived experience.

So why does our society require bar exams that bear little relation to the ability of a person to understand legal technicalities, manage case loads, and satisfy clients? The answer harkens back to the Progressive Era when elites used government strings and influence to prevent hardworking and entrepreneurial individuals from climbing the social ladder.

Lawyers were part of two important groups that Murray Rothbard blamed for spreading statism during the Progressive Era: the first was “a growing legion of educated (and often overeducated) intellectuals, technocrats, and the ‘helping professions’ who sought power, prestige, subsidies, contracts, cushy jobs from the welfare state, and restrictions of entry into their field via forms of licensing,” and the second was “groups of businessmen who, after failing to achieve monopoly power on the free market, turned to government – local, state, and federal – to gain it for them.”

The bar exam was merely one aspect of the growth of the legal system and its concomitant centralization in the early twentieth century. Bar associations began cropping up in the 1870s, but they were, at first, more like professional societies than state-sponsored machines. By 1900, all of that changed, and bar associations became a fraternity of elites opposed to any economic development that might threaten their social status.

The elites who formed the American Bar Association (ABA), concerned that smart and savvy yet poor and entrepreneurial men might gain control of the legal system, sought to establish a monopoly on the field by forbidding advertising, regulating the “unauthorized” practice of law, restricting legal fees to a designated minimum or maximum, and scaling back contingency fees. The elitist progressives pushing these reforms also forbade qualified women from joining their ranks.

The American Bar Association was far from the only body of elites generating this trend. State bars began to rise and spread, but only small percentages of lawyers in any given state were members. The elites were reaching to squeeze some justification out of their blatant discrimination and to strike a delicate balance between exclusivity on the one hand, and an appearance of propriety on the other. They made short shrift of the American Dream and began to require expensive degrees and education as a prerequisite for bar admission. It was at this time that American law schools proliferated and the American Association of Law Schools (AALS) was created to evaluate the quality of new law schools as well as to hold them to uniform standards.

At one time lawyers learned on the job; now law schools were tasked with training new lawyers, but the result was that lawyers’ real training was merely delayed until the date they could practice, and aspiring attorneys had to be wealthy enough to afford this delay if they wanted to practice at all.

Entrepreneurial forces attempted to fight back by establishing night schools to ensure a more competitive market, but the various bar associations, backed by the power of the government, simply dictated that law school was not enough: one had to first earn a college degree before entering law school if one were to be admitted to practice. Then two degrees were not enough: one had to pass a restructured, formalized bar exam as well. Read the rest of this entry »

10 Literary Lawyers We Wish Were Real

In Arts & Letters, Fiction, Film, Humanities, Law, Law-and-Literature, Television, Wallace Stevens on February 22, 2012 at 8:10 am

Allen Mendenhall

A reader of this site has emailed me to point out a post at Criminaljusticedegreesguide.com.  The post, available here, is titled, “10 Literary Lawyers We Wish Were Real.”  Here’s the list:

1.  Atticus Finch

2.  Rudy Baylor

3.  Perry Mason

4.  Portia as Balthazar

5.  Joel Litvinoff

6.  Horace Rumpole

7.  The Man of Law

8.  Wallace Stevens (a strange selection indeed, since Stevens was real, but the author has put an interesting twist on Stevens)

9.  Henry Drummond

10.  Jake Brigance

Readers should view the article to see why the (unnamed) author believes that these figures “should be real.”

 

Screening Legal Education

In Arts & Letters, Creativity, Film, Humanities, Law, Legal Education & Pedagogy, Pedagogy, Rhetoric, Teaching, Writing on June 15, 2011 at 10:59 pm

Allen Mendenhall

We go to the movies to enter a new, fascinating world, to inhabit vicariously another human being who at first seems so unlike us and yet at heart is like us, to live in a fictional reality that illuminates our daily reality.  We do not wish to escape life but to find life, to use our minds in fresh, experimental ways, to flex our emotions, to enjoy, to learn, to add depth to our days.

 —Robert McKee, from Story

Law school is, in a way, about performing.  From the minute you walk into the building as a 1L, you search for and construct a new identity—one that conforms to your assumptions of what a lawyer is and does.

The first time a professor called on me—Mr. Mendenhall, can you tell us how the judge in this case distinguishes restitutionary from reliance damages?—I panicked.  I knew the answer.  More or less.  But I had no chance to rehearse.  Here I was, before a large audience, a packed house, all alone, all eyes on me.

“Um, yes,” I stammered, apparently suffering from stage fright.

I don’t remember how I answered—not precisely—but I remember taking a deep breath, feigning confidence, and pretending to know what the professor expected me to know.  I must’ve sounded silly talking about things I hardly understood; but I must’ve performed satisfactorily because the professor let me alone and interrogated another student.

My first audition.  Read the rest of this entry »

25 Greatest Fictional Lawyers

In Arts & Letters, Film on August 2, 2010 at 8:07 am

The editors of the ABA Journal have asked readers to vote for their favorite fictional lawyer.  See here.  But there’s a catch: Atticus Finch is not in the running.  It seems that Mr. Finch would have been too obvious a winner.  Candidates in the running include Michael Clayton, Ally McBeal, Vincent “Vinny” Gambini, Paul Biegler, Rusty Sabich, and many more.

My vote is for Paul Biegler, the piano-playing protagonist of Anatomy of a Murder.  Jimmy Stewart stars as Biegler in this now-classic film based on the best-selling novel by the same name.  The Honorable John D. Voelker, writing under the pseudonym Robert Traver, published the novel in 1959.  In perhaps the most insightful line of the film, Beigler says, “As a lawyer I’ve had to learn that people aren’t just good or just bad.”

Grappling With Story; or, Climbing into the Skin of Another: Applying Literary Truths to the Black Letter of Law

In Arts & Letters, Creative Writing, Law-and-Literature, Legal Education & Pedagogy on July 19, 2010 at 12:35 pm

Jonathan Board lives in West Virginia with his wife and two children.  A graduate of West Virginia University College of Law, he has also attended Harvard Extension School, Fairmont State University, Bob Jones University, and Witherspoon School of Law & Public Policy.

“A literature class?  In law school?  Are you sure you want to spend your time and money on that?”

Thus spoke my perplexed supervising attorney.  Weeks later, as I reviewed the syllabus for Law & Literature, his words haunted me.  The names on the syllabus ranged from Komie to Tolstoy to Melville to Kafka.  Of course, “the list” (as it was to become known) was much longer and full of colorful personalities, but, at least in my mind, most of the readings seemed like odd studies for law school.  Nevertheless, I was in my last semester, and I simply could not look at another case book.  So, on a cold January day, I clambered up icy, ugly, gray-yellow steps, found my classroom and a seat next to my best friend (who had strongly encouraged me to take this course and whose judgment I now questioned), and I began to discuss literature, a thing I thought I knew little about.

The “list,” for me, was daunting.  I’d never taken a graduate literature course, and I was several years removed from my college English courses.  I felt like Abraham’s son, Isaac, about to be slaughtered, except that there was no ram in the thicket and I wasn’t submitting to a father’s trembling hand but to a law professor’s pen and grade sheet.  My fears were abated, to a degree, when the professor walked in.  I’d heard that this man, Michael Blumenthal, had taught at Harvard and published works in many genres.  I was both excited to sit in his classroom and nervous about embarrassing myself in front of him.  I didn’t know it then, but Blumenthal, whose kindness was contagious, would make a lasting impression.  He encouraged me—us—to devour the works on the list and to apply those works to personal experiences with the law. Read the rest of this entry »

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