Vol. 11 No. 4 (April 2001) pp. 162-164.

IN THE INTERESTS OF JUSTICE: REFORMING THE LEGAL PROFESSION, by Deborah L. Rhode. New York: Oxford University Press, 2000. 272 pp. Cloth $27.50. ISBN 0-19-512188-0.

Reviewed by John Brigham, Department of Political Science, University of Massachusetts, Amherst. Email: brigham@polsci.umass.edu.

Because I received an advance copy, this is the first book I've reviewed without a cover. I was a little disoriented, but the advance publicity makes substantial claims about the author's project. It calls Professor Rhode's book the "first systematic study of the structural problems confronting the legal profession." The book does not appear to me to be particularly systematic, but it does traverse a good deal of familiar terrain.

The legal profession is generally quite self-conscious. Carrying the book by Rhode around, readying myself for this review, I find my colleagues who teach law students expressing interest in the manuscript and enthusiasm for the project. They seem drawn by the title and nod in recognition that its author is a person of substance in their professional community. My colleagues in political science tend to roll their eyes at the insider quality conferred by the author's stature. This may be one of those times where it really does make a difference whether or not you are a lawyer.

Rhode is an important legal academic. A chaired professor at Stanford, she has been president of the Association of American Law Schools, and counsel to the House Judiciary Committee during Clinton's impeachment. She teaches about legal ethics. There is no doubt she knows about lawyers. The question is whether her discussion of what should be done about them is new or important, and whether--as an insider--she brings insights to balance her familiarity with the group under study.

Self-consciousness is one of the issues that the book raises for me. When legal academics write about their profession, the self-conscious awareness of problems and criticism seems to go only so far. This is often far enough to hear complaints that lawyers are "arrogant, unaffordable hired guns whose ethical practices rank just above those of used car salesman." It may even go far enough to formulate responses and to build from general dislike of the profession to particulars addressing their self-interest, power and wealth. The book does go this far, and it ably reports on problems of the sort that come from unpopular acquittals, like that of O. J. Simpson, overly technical proceeding, like that against President Clinton, and damage awards perceived as excessive, such as the McDonald's coffee case.

However, this is not usually far enough to do what Rhode promises. It is not a self-consciousness of the sort that brings a concern for social justice into the structures of the profession. Self-consciousness in contemporary professional ideology depends on the insights of "realism," and I think it is limited by the conventions of that critique. Realism in law is seldom more penetrating

Page 163 begins here

than the conventional public critique of lawyers. Rhode relies heavily on that critique and it frames the problem while it limits the response.

The book doesn't get much deeper because it fails to engage the social structure of lawyering. One problem is that like law, lawyers are pretty heterogeneous. This makes it difficult to address the whole. Rhode believes that she can talk about them as a set, a bunch, and an undifferentiated collection. However, this is a group that includes Johnnie Cochran and Richard Ashcroft, Bill and Hillary Clinton, Kenneth Starr and Lani Guinier, just to mention some of the lawyers who are around at the moment and reasonably famous. Rhode's treatment ranges all the way from Seneca to Dan Quayle. This group is awfully large to be addressed as a whole. The most compelling recommendations for reforming the profession will inevitably divide the universe of lawyers. What we say of the wealthy and the powerful we might not want to say about a less successful or ambitious local practitioner.

Another problem is that the social science of this book is also exceptionally heterogeneous. The book is dedicated to Lawrence Friedman, Robert Gordon and William Simon. This reflects a place somewhere in a crit/law and society universe. Rhode is usually on the progressive side of debates about the wealth accumulated by lawyers, their social responsibility, and the impact of immersion in to the legal world for minorities and women. There are intelligent readings of appropriate social science work by Marc Galanter, Roy Flemming, Tom Tyler and Carrie Menkel-Meadow. Yet, her approach includes repetition of highly questionable, sometimes pop, and often banal observations about the pervasiveness of legal regulation, low public esteem for the profession, and enthusiasm for "alternative dispute

My measure of depth is often the extent to which description of the bar fully appreciates the current deep association between the authority of law and the academy. Rhode notes the move from apprenticeships and an authority derived from practice to increasing reliance on academic authority. However, her treatment does not provide enough real history or inquiry to take account of the monumental nature of this shift. Law's association with the academy seems to be essential in providing law and lawyers with their most compelling responses to criticism. Academic analysis and scholarship is one of the sources of professional self-consciousness. Law rooted in the academy is surely a different institution than law grounded primarily in practice. This makes the critique of relevance seem a little beside the point.

There is also a considerable amount of dichotomized thinking in Rhode's book, particularly when she describes the terrain she would reform. She writes of expensive legal education that does not meet the needs of the poor, of students "well versed in literary theory but unable to draft a document" (p. 186), and of "undivided fidelity to client objectives" often "difficult to square with commonly accepted ethical principles" (p. 15). The framework becomes more complex when solutions are proposed. This is a sign of conscientiousness on the part of the author. Greater complexity, however, is an impediment to change and the suggested solutions here might be stated more boldly.

Some sections, like the one on the problems of advocacy are both

Page 164 begins here

and impressive. It may be that the more distinctive and professional the legal practice being examined the better she is at working on it and the more she has to say. The more broadly social her focus the less it seems to ring true or be helpful. The discussion of lawyer advertising, for instance, describes prohibitions on advertising as a 20th Century phenomenon. She proposes that regulation of advertising would be handled better by consumer commissions than by the bar. She is critical of restrictions on access to the bar, particularly restrictions on interstate practice. Her discussion of these restrictions makes them sound silly. She offers an elaborate critique of Continuing Legal Education as a scam that allows tax deductions and employer reimbursement for exotic travel and entertainment. Also, the
discussion of lawyers who sleep during trial is bold and very clever (p. 63).

There are many observations in the book that leave me wanting to be appreciative. I enjoyed the cleverness of her suggestion that legal "education is one of the rare contexts where buyers often want less for their money" (p. 188). I suppose my suspicion about reform from within a profession that spends so much energy cutting itself off from the rest of us leaves me under appreciative.