The Nixon DOJ began with an extreme legal position: that newspapers couldn’t quote from classified documents simply because they were classified.
“Golden ages” figure prominently in history and in myth. Golden ages invariably take place in the past. Their very existence insults the present. To invoke the term golden age implicitly speaks ill of today, as though those misfortunate enough to be alive today lack the strength and the resolve to restore the virtues of their forerunners. The contemporary legal profession languishes in the memory of a golden age. Some time before the global economy collapsed, law in America was a profession. Success in law school translated directly into career success, whether in private practice, public service, or academia.
Nostalgia has its understandable allures. Law students today groan under the burden of unsustainable debts incurred simply to qualify for law school, let alone to pay for it. Rates of unemployment and underemployment among young lawyers give pause to undergraduates who no longer believe that the degree of juris doctor ensures lifelong financial security. For their part, established lawyers question the value of legal education. No firm or government agency seriously believes that newly minted lawyers are prepared to deliver competent service solely on the strength of the things they learned in law school. To those who feel the greatest anxiety from the legal profession’s predicament, the practice of law appears to completed its fall in a single human lifetime, perhaps less. A mere half century ago, law flourished. The four or five decades that separate The Paper Chase from electronic filing have worked a perverse alchemy on the American legal profession. If indeed the golden age of American law peaked only yesterday, the state of the profession today has tarnished that living memory.
All that glitters is not gold. Hindsight warps our historical perspective. There never has been a golden age in the American legal profession. To the extent that lawyers and law schools ever enjoyed more professional room for error, that comfort arose from the sheltered place of the legal profession as a publicly sanctioned guild. The putative golden age of American law was never anything but a gilded age — or, if you will, a guilded age.
Lawyers in the United States face formidable competition. Professionals from all walks of life, including accountants and other nonlawyers, have eroded what was once the exclusive domain of lawyers. Back-office functions need not take place in a law firm, or even in the United States. The world is filled with competent, diligent workers who speak serviceable English and command far lower wages than their American counterparts. Digitized documents and sophisticated software enable computers to perform electronic discovery more accurately and at far lower cost than the teams of lawyers that once patrolled both sides of high-stakes cases. To put matters very coarsely, lawyers in the United States today are competing against nonlawyers, against non-Americans, and against nonhumans.
Law has been waging a losing war against the leading drivers of social and economic change in contemporary society. The law as a body of knowledge enjoys few if any meaningful intellectual barriers to entry. It remains true, as Oliver Wendell Holmes asserted, that a page of history is worth a volume of logic. But history, once reduced to brief narratives and posted in readily accessible forums requiring low tolls or no charge whatsoever for access, is easily grasped by anyone who can read. Legal controversies demanding far greater sophistication, whether in raw quantitative talent or the ability to interpret massive amounts of data, exceed the institutional capacity of law schools and their faculties.
Against these things, the status of law as a learned profession offers no real protection in contemporary society. Gatekeepers ranging from first-year property professors to the bar examiners of the several states were able, historically speaking, to erect meaningful barriers to entry. The Internet era has at once democratized and deprofessionalized information. Information is more democratic in the sense almost all the information that lawyers need can be found with free searches on the World Wide Web. At the same time, the raw amount of information has expanded so much that traditional styles of learning have lost currency in contemporary law practice. Subtle knowledge, accrued over a professional lifespan, has been compiled and filtered through the wisdom of crowds.
No more and no less than plumbing, carpentry, electrical engineering, or thoracic surgery, law is a craft. It is a means of living. Those who practice it well and honorably have a reasonable likelihood — but never a guarantee — of economic self-sufficiency. A few lucky lawyers may even find themselves called to public service and blessed with the votes and campaign contributions to remain in power. None of these traits separates lawyers from the members of other trades. Guilds have lost sway in many of those trades. Despite lower wages, skilled purveyors remain the masters of their crafts and the keepers of their traditions. So too with law.
In tight economic times, professional credentials go no further than the willingness of clients to pay for them. Lawyers could stand to learn a few lessons from their fellow tradesmen and tradeswomen. The use of metal gilding or wood veneer arises because precious metals and solid wood are scarce and expensive. Not long ago, law schools imagined, and not without reason, that they could dispense with the teaching of practical skills. Their students purportedly would acquire those skills on the job. In reality, only the wealthiest of firms, with the steadiest of clients, could afford to carry young lawyers earning multiples of their initial potential to generate revenue. Lawyering remains a skilled, intricate craft. It takes time and money, whether actual or imputed, to learn that craft. The trouble is that no one — not schools, not employers, and certainly not lawyers who are as indebted as they are young — is willing to pay for that training.
Of all of the stakeholders in the legal profession, law schools and the American Bar Association may be the least able to adapt. The economic return on legal education has fallen precipitously, and with it so has the pecuniary value of a law degree. Yet law school tuition has risen at rates outstripping background inflation or even the hyperstimulated costs of higher education in general. Every empirical measure of law professors’ workloads shows that teachers of law now earn more, teach less, and deliver fewer hours of actual student contact than ever before. Membership in this guild, like any other, exacts a price. The laws of economics will dictate whether those who have historically paid that toll will continue to do so.
The economic history of modern society is in many respects the history of progress built upon the creative destruction of guilds. The value of comparative advantage and free trade is the enduring lesson of neoclassical economics, from its origins in Adam Smith’s The Wealth of Nations and David Ricardo’s Principles of Political Economy and Taxation. The Gilded Age of American history rose in the immediate aftermath of a catastrophic war in which the United States very nearly died of flaws traceable to its founding. Economic changes unleashed by the Civil War, from widespread industrialization to open immigration, triggered the most astonishing social transformation that the United States has ever witnessed. We have many reasons to decry many aspects of Gilded Age society, but the lessons of that period of history warrant our attention.
In our time, the free movement of labor, capital, and information has created a global economy that moves by the gigahertz. In this economic milieu, education is worth what its purchaser can earn with it. The legal profession, and most of all the educational branch of the profession, owes society a far more practical response than painful expressions of longing for a golden age that never was. The putative prestige of the legal profession was always as arbitrary and illusory as the promise of gold as an inherent store of wealth. Lawyers and their teachers must learn that theirs is no longer a professional guild, but a competitive trade. Legal education is what enables students to earn a living in life, and nothing more pretentious.