Saturday, January 30, 2010

Casner, Leach, and "the Area of Responsibility of the Legal Profession"

The perils of practicing history within the gravitational pull of a powerful profession are well-known. In law, many thoughtful scholars have surveyed the boundary between advocacy and objectivity with critiques of the "law office history" of appellate briefs and the “history lite” of legal scholarship. But I’ve also found, as a historian teaching in a law school, that the professional frame can produce unexpected historical insights. This happens to me most often when, as this semester, I teach my first-year property course and my survey on American Legal History. For example, on successive days in the week ahead I’ll be teaching Lon Fuller’s “Form and Limits of Adjudication," first in analyzing Justice Brandeis’s dissent in the Associated Press case in my property course and then in taking up the birth of the juvenile court in the legal history course. Both topics show progressives countering claims of individual legal right (the Associated Press’s claim of a property right in the news; the rights of parents and children to due process) with a “social” understanding of law and justice that Fuller also shared. In both courses, I expect my that students will be quick to see the appeal of the socialization of law but also its dangers, even without the help of Michael Willrich’s fine study of Chicago’s municipal court.

This semester the dialogue between history and law in the two courses promises to be more sustained. A few weeks ago I stood up before first-years for the first time since the effects of the Great Recession on the law firm hiring market had become acute. Although I’m no student of very recent trends in the profession, I have the benefit of reports from Georgetown’s Center for the Study of the Legal Profession, headed by my colleague Milton Reagan, which suggest that the layoffs are no momentary reversal but a phase of a fundamental restructuring of the market for legal services that has reduced the longstanding autonomy of law-firm-based lawyers, for good or ill (or both), depending on your perspective.

A first-year law class, whatever its ostensible subject matter, is predominantly a vehicle for the socialization of law students into the legal profession. Over the years, I have shaped my Property course to fit some plausible assumptions about my students’ likely professional futures. As the start of this semester approached, I became concerned that my usual assumptions about what my students would find in their careers (or sojourns) in the law firms would no longer hold up. To make matters worse, the new professional reality they’ll be facing is too inchoate to suggest an alternative approach.

Then I remembered that I was a historian and that one thing historians do, when living through the end of a historical epoch, is to study its origins for clues to its demise and the likely shape of a successor. The relevant epoch for my immediate predicament was an era in which elite lawyers understood themselves to be the principal font and reservoir of the social intelligence the United States needed to function smoothly. The cohort of lawyers who entered the New Deal, organized the war effort and analyzed military intelligence during World War II, and created the modern regulatory practice in the late 1940s and 1950s understood, without having to read Alexis de Tocqueville or Talcott Parsons, that they occupied “a sort of privileged body in the scale of intelligence” and that they were obligated, in the social bargain that gave them prestige, power and wealth, to confront their clients with “the hard facts of their situation” and to persuade them to adjust their conduct so as to maintain a desirable social equilibrium. It took a generation of commentary by New Left and Critical Legal Studies scholars on the hubristic, self-serving, and conservative nature of these beliefs to create an opening in the elite bar’s ideological armor. Economics, in various guises, has since administered a coup de grâce.

It happens that the rise and maturation of this epoch in the legal profession is a big part of my legal history course. As the semester proceeds, I expect that the ways in which lawyers did or did not live up to their side of the social bargain will emerge as a major theme in the property course. A challenge, though, as the semester started, was to make sure that my property students will come along on the ride, as it were. To do this, they’d need a sense of how mid- to late-twentieth-century elite lawyers understood their social role, but without using up time that should be devoted to the legal analysis and skills a property course usually imparts.

I thought about assigning some of Willard Hurst’s writings on lawyers as “law makers” or a book chapter of mine on how Hurst acted on his beliefs at the Board of Economic Warfare but decided that either might strike students as too distant from the work at hand. Then I remembered A. James Casner and W. Barton Leach’s Cases and Text on Property (Little, Brown, 1950), the dominant property casebook for at least twenty years after its appearance. Both authors were analysts of military intelligence during World War II. Like Hurst, Casner (right) and Leach had an “opportunity to see wartime Washington from the inside of a wartime bureaucracy” and “came away with an enhanced feeling of pride” in what lawyers could do. They sought to instill this pride in the postwar generation of lawyers in an introductory chapter, entitled “The Legal Profession, Lawyers, and the Study of Property Law,” and, in particular, a section entitled, “The Area of Responsibility of the Legal Profession”:
You and others who are being trained as lawyers must be prepared to perform two tasks during the productive years of your professional lives.

1. To assume direction of all phases of the areas of personal conflict inherent in a complex society and economy. You will be advisers, negotiators, advocates, judges, arbitrators - and frequently administrators and executives having a large amount of quasi-legislative power. This scope of activity would have seemed revolutionary and presumptuous to an eighteenth-century solicitor, but it has become traditional lawyers' work in our time. The number and complexity of the conflict areas increase, and pari passu the need increases for lawyers who can farsightedly advise their clients, ably represent their clients' causes, and wisely administer the organizations and wield the powers of decision through which government exercises its authority. There are a lot of big words in this paragraph, but we do not want to be understood to limit these remarks to the stratosphere of human controversy. The small issues between people who never make the headlines - the action for a broker's commission, the boundary dispute between neighbors, the personal-injury claim, the troubles of a partnership in a garage business - these are a primary responsibility of our profession, serving also as a training ground in which lawyers by doing smaller tasks well can learn to perform greater tasks when they come.

2. To provide a very large proportion of national leadership at all levels of authority. Naturally, this field of activity has a tendency to overlap that of the previous paragraph; the distinction we draw lies between those tasks in which membership in the bar is a prerequisite and those in which a journalist, a stockbroker, or a haberdasher is equally eligible. It is an observable fact that through some combination of chromosomes and professional training lawyers tend to come to the top of the barrel in the shaking and jolting of competition for authority. Most of us who were engaged in the war effort, military or civilian, came away with a feeling of pride in our profession. Speaking of ourselves, we came back to law-teaching in 1946 with a sense of renewed dedication derived from a fairly consistent experience of finding lawyers doing new and exacting jobs well and imaginatively - not only the jobs that were in the public eye, but such things as a civilian directing the organization which handled the Japanese code intelligence, a captain establishing a jungle rescue service in Burma, a lieutenant (j.g.) untangling an air-transport mess in New Caledonia, a lieutenant-colonel exercising key logistical authority in the preparations for the Normandy invasion.


Mary L. Dudziak said...

Dan, thanks for this post. I hope that whoever is organizing next year's AALS Legal History program is reading this. It would be great to have a panel featuring this sort of thinking about teaching legal history, not only in the midst of a financial crisis, but also with the new emphasis on "skills". Both developments could lead students to de-emphasize interdisciplinary studies, but as your post makes clear, thinking historically is a way to understand our current predicament.

Shag from Brookline said...

Might law students benefit more from legal history if studied before law school? Or might it be better if within certain major law courses legal history was woven in? Or might a legal historian write a book on legal history in the style of the late Howard Zinn? This Blog and Larry Solum's Blog amaze me with links to so many articles on legal history that demonstrate that in my legal career of 50+ years I was missing quite a bit.