A Critical Look at the Bar
WHITFIELD, STEPHEN J.
A Critical Look at the Bar Unequal Justice: Lawyers and Social Change in Modern America By Jerold S. Auerbach Oxford. 395 pp. $13.95. Reviewed by Stephen J. Whitfield Assistant Professor of...
...In Philadelphia, Auerbach writes, "bar examiners photographed applioants and seated black candidates consecutively in the same row to facilitate the grading of their examinations...
...When Eldridge Cleaver decided to return home for his "day in court," he proclaimed the superiority of American justice, providing a hint of how widespread support for the system is...
...There is even less validity to Auerbach's claim that "Watergate marked the final demolition of credence in legal authority...
...Regrettably, Unequal Justice is not an exciting book to read...
...Cleaver's faith, as reported in this journal ("Eldridge Cleaver's Homecoming," NL, February 16), is based on comparisons between his experiences in the U.S...
...Dramatis personae are never brought to life...
...The example of the Illinois lawyer suggests how weak this view is...
...Public-interest work done by law firms has been limited to token gestures: According to one study of the most responsive firms, only .4 per cent of their attorneys' billable time was devoted to pro bono publico service...
...Nevertheless, the book is a coherently argued, deftly researched work of critical history, and most of the thesis is right on target...
...But it is not the discussion of pecuniary motives that distinguishes Unequal Justice: Lawyers who serve as high-priced mouthpieces for the rich and powerful have long been prominent figures in popular culture...
...The charges of corporate bias and professional discrimination are presented with jackhammer insistence, belaboring the indictment...
...In the light of the picture Auerbach has himself drawn, moreover, no one should hold his breath awaiting the implementation of the author's proposal for extensive Federal subsidization of legal services...
...Understandably, blacks failed in disproportionate numbers...
...Unfortunately, in its discussion of prejudice Unequal Justice gives skimpy attention to sexual discrimination, especially rampant at the level of admission to law schools...
...however, a dose of skepticism should be sprinkled upon Auerbach's indictment, at once too stark and sentimental...
...Another Negro was not accepted until 1943...
...Auerbach disagrees with this assessment, maintaining that the profession was divided between two groups: the elite and the homespun, small-town counselors who educated themselves out of poverty, who served all comers and whose ideal representative was Lincoln...
...And considering the skill lawyers have exhibited in shadowboxing with government alphabet agencies on behalf of their industrial clients, his call for regulation of the legal profession can hardly be taken seriously...
...I'm better," Garry responded, "Both of us get our clients off, but Mason's are innocent...
...The hapless nominee, incidentally, was Abe Fortas...
...Throughout the 20th century the composition and conduct of the profession have remained essentially unchanged...
...It was also at the dawn of the century that the legal profession assumed its familiar stratified form, bestowing the greatest prestige and influence upon the paladins of corporate law in the largest metropolitan firms...
...and for successfully arguing that the railroad was constitutionally exempt from county taxation, he collected $5,000, then a very substantial fee...
...The writer neglects to mention that Lincoln championed the interests of corporations...
...One Panther peered at the white labor lawyer and asked if he was as effective as Perry Mason...
...For, as he notes, "the legal profession all too accurately mirrored American society...
...In 1912 the American Bar Association inadvertently accepted three blacks, a move the membership chairman feared would raise "a question of keeping pure the Anglo-Saxon race.' The ensuing uproar ended in a compromise: The three were allowed to remain members, but future applicants were required to indicate their race...
...He does not relate, for example, what happened when the Black Panthers interviewed Charles Garry for the job of defending Huey Newton on a murder charge...
...Some will perhaps respond to all this that of late change has been taking place: that the racial, religious and sexual barriers erected by the legal profession are beginning to fall...
...He therefore gives the impression that because the poor are not normally defended by the likes of Charles Evans Hughes, they are unfairly treated and victimized, and hence do not deserve their sentence when convicted of a crime...
...The author's argument is thus two-tiered...
...Reviewed by Stephen J. Whitfield Assistant Professor of American Studies, Brandeis University "The lawyer is exclusively occupied with the details of predatory fraud, either in achieving or in checkmating chicane," Thorstein Veblen observed in 1899, "and success in the profession is therefore accepted as marking a large endowment of that barbarian astuteness which has always commanded men's respect and fear...
...In recommending one Harvard Law School graduate for a teaching position elsewhere in 1931, James M. Landis felt obliged to assure the young man's prospective colleagues: "I do not regard him as forward or pushing, and such Jewish characteristics as he possesses are not a handicap...
...Violations of justice do occur, of course, and they are shameful and indefensible...
...Finally, while the indigent and the unpopular are generally under-represented, the author does not state precisely how American justice is unequal...
...But Auerbach rightly maintains that control remains largely in the hands of the traditional patriciate...
...Sometimes the discrimination has been undisguised...
...Rather, the book's distinctive contribution is its demonstration of how the profession has sought to demean or exclude minority groups and political radicals...
...Our opinions, as well as our services and talents, are on the auction block," Associate Justice Robert Jackson once complained??but then he was a throwback to an earlier school, having emerged from the cocoon of village law office apprenticeship and never graduated from college or law school...
...When Thurman Arnold proposed a Jew for the Northwestern University Law School faculty in 1936, he was told any effort to secure the appointment would be a futile and "idle gesture...
...Another New Dealer appointed to the Surpreme Court, Felix Frankfurter, had earlier fled from private praotice in order to teach elite lawyers, only to realize he was "spending my time the better to fashion minds whose chief concern is the making of money...
...During most of the 1850s he was on a regular retainer from the Illinois Central...
...And the response of these "elite lawyers to social change" since the end of the 19th century is the subject of Jerold Auerbach's new book, whose perspective recalls Socrates' argument in Plato's Republic that justice should not serve the interest of the stronger...
...and the skewing of the adversary process caused by economic inequities seems a more intractable problem than bigotry...
...The Panthers agreed they had found the right attorney...
...In Georgia, at a time when half the white applicants were passing their bar examinations, all black candidates flunked, including graduates of Harvard, Yale and Columbia...
...Class, race and ethnicity, Auerbach declares, have been the crucial determinants not only of admission to the bar but of the distribution of its services as well...
...Simultaneously, though, two others who publicly protested ABA discrimination were rejected...
...Auerbach's criticism, on the other hand, is founded upon the discrepancy between the American ideal and the actual...
...At about that time, too, a couple of agrarian protest movements barred lawyers from membership, charging parasitism...
...elitist and capitalist values continue to prevail, rigging the system against those who cannot afford expensive legal talent...
...and in the Third World...
...The case is unconvincing only when it weaves through the beginning and end of the time period under study...
...Between 1927-47 no black passed the Louisiana bar...
...Neither civil disobedience nor rioting is as common now as a decade ago, and the hegemony of lawyers has not noticeably declined...
...We remain a litigious nation, with more judges in Ohio than in Britain...
...The attorneys who counsel the wealthiest clients and dominate the local and national bar associations have been less committed to the broad application of fair standards than to perpetuating privilege and increasing their incomes...
...Henry S. Drinker, a pillar of the Philadelphia Law Association and a national authority on legal ethics, openly denounced "Russian Jew boys" who, having broken "out of the gutter were merely following the methods their fathers had been using in selling shoe-strings...
...In bar associations, Jackson continued, "we generally pyramid conservatism until at the top of the structures our officers are as conservative as cemetery trustees...
...Obituary notices for American institutions??and for American innocence-are often prematurely written...
...and in the runaway best-seller of the 1890s, Looking Backward, Edward Bellamy excluded them from bis fictional Utopia for the same reason...
...In 1831 Tocqueville concluded that lawyers were "friends of order," the American equivalent of an aristocracy...
Vol. 59 • July 1976 • No. 14
