The Legal Elite
BERNSTEIN, BARTON J .
The Legal Elite UNEQUAL JUSTICE, by Jerold S. Auerbach. Oxford University Press. 395 pp. $13.95. BARTON J. BERNSTEIN It is a socially useful myth, proclaimed in bar association addresses and...
...In 1912, for example, when the American Bar Association admitted three black lawyers without knowing their color.the executive committee speedily rescinded their admission, and the ABA worked out a compromise that blocked other blacks...
...In the name of taste and ethics, the legal elite condemned "ambulance chasers" (usually poorer lawyers who had to scramble for clients), and advertising and fee-cutting, which might lure clients...
...In law, as well as in academic professions, the decade of the 1960s witnessed a new and bolder assault on claims of neutrality in professional life...
...He provides ample evidence of bigotry among the legal elite...
...His analysis, despite its dominant tone of offended liberalism, is fundamentally radical: in a capitalist society, where power and wealth are unevenly distributed, the law and lawyers serve corporate interests...
...Will such challenges transform professional consciousness or redistribute power...
...He edited "Politics and Policies of the Truman Administration...
...A decade later, Harlan Fiske Stone, dean of Columbia University's Law School and future Chief Justice of the Supreme Court, complained that the New York City bar was attracting "the undesirables and unfit"—immigrants from Eastern Europe or their children...
...How can we explain this pattern of unequal justice...
...The major firms practiced (and possibly still practice) racial and religious bigotry, and they have acted to exclude Jews, blacks, and other minorities from the bar...
...The gap among lawyers between their claims of neutrality and their unneutral behavior is familiar to critics of the academic commu-ity...
...These professionals are heirs of an Anglo-American philosophical tradition that emphasizes objectivity, and they operate in a political and university culture where neutrality is a standard for scholarship...
...The elite devised a strategy to "save" the profession: close the night law schools that educated many of the "undesirables" and redefine standards (character examinations) to exclude those with the wrong background...
...In the universities, too, some scholars rejected the standards of uncommitted scholarship, pointed to the ideological partisanship of mainstream work in their professions, and self-consciously aimed to serve other interests...
...In assessing the legal profession in Unequal Justice Auerbach is not optimistic...
...That is the question Jerold Auerbach, a historian at Welles-ley and a disappointed former law student, asks in his angry, eloquent book...
...BARTON J. BERNSTEIN It is a socially useful myth, proclaimed in bar association addresses and commencement speeches, that justice in America is equal for all...
...By concentrating so fiercely but narrowly on the legal profession, Auer-bach has missed a valuable opportunity to relate his analysis to the larger history of professions, especially academic disciplines, and to the modern political culture...
...Barton J. Bernstein is an associate professor of history at Stanford University...
...As paid advocates, many lawyers claim neutrality ("hired guns," critics charge), promise that they defend any client, and proclaim that justice triumphs in the adversarial process...
...The very men at the top of the profession, who benefited so handsomely from the essential services they provided to finance, industry, and commerce, decried as unethical the behavior of those lawyers (often of recent immigrant stock) who served more marginal clients...
...Like many other elites in the society, the leaders of the bar disdained the vulgarities of commercialism...
...Davis could declare that lawyers had the "supreme function" of serving as "sleepless sentinels on the ramparts of human liberty and there to sound the alarm whenever an enemy appears...
...What Auerbach overlooks is that in the 1880s and 1890s, when his analysis of the legal profession begins, some prominent American academics proclaimed an alternative vision of the professional life— scholarship as committed advocacy...
...it was a safe haven when their particular advocacy outraged vested interests...
...The settled practice," the committee declared, allows "only white men as members...
...The claims of objectivity conceal ideology and sometimes leave the practitioners themselves unaware of the contradictions between rhetoric and behavior...
...Davis was not neutral but a partisan, whose claims of neutrality concealed his commitments and prejudices...
...After the angry 1960s, most citizens know that justice is unequal, that the law and lawyers treat the poor and the wealthy differently, that blacks and whites often confront a separate justice, that most lawyers comfortably serve the powerful, not the poor, the nonwhite, nor the dissident...
...Consider, for example, his favorite case: John W. Davis, venerable leader of the appellate bar, wealthy Wall Street attorney, former Presidential candidate, "a lawyer's lawyer...
...Auerbach does not contend that elite lawyers have been more prejudiced than other Americans but that the "bias in the legal professional has had particularly serious consequences in a society that depends so heavily upon the legal profession to implement the privileges of equal justice under the law...
...In Philadelphia, the "character" examination reduced by a fifth the number of Jews admitted to the bar...
...Unequal Justice is an uneasy amalgam of social and intellectual history, and it is torn between liberal outrage and radical conclusions...
...They soon retreated to claims of objectivity...
...For the elite, the sensibility of culture and the pride of craft constituted a self-evident basis for imposing self-serving values on the profession...
...In sociology and political science, to cite two notable areas, most professors claim neutrality, but their theories and conclusions are heavily value-laden, and their expertise is not equally available to all interests, regardless of wealth...
...In the 1930s, he assailed the New Deal for its alleged assault on liberties, but in the Cold War years, like many attorneys, he refused to protest the Federal loyalty program, to take a Communist client, or to oppose judicial violations of civil liberties...
...Dissident lawyers and academics alike challenged the comfortable arrangements of knowledge serving and legitimizing power...
...Are they deceiving themselves by this ideology of neutrality, or using it only to deceive others...
...Such claims of neutrality do not describe the actual behavior of Auer-bach's culprit, the legal elite...
...Some attorneys proclaimed that they would not be "hired guns" and promised to work only for causes and clients that met their moral or political standards...
...Auerbach is unsure and wavers between the two answers...
...Auerbach contends that elite lawyers, usually representing corporate interests, have controlled the bar, shaped the canon of ethics, and helped perpetuate many inequities, including racial and religious discrimination, Cold War conformity, and neglect of legal representation of the poor...
Vol. 40 • September 1976 • No. 9
