Unequal Justice

(Literary Masterpieces, Volume 19)

“The Legal Elite” would be a more appropriate title for this study written by Jerold Auerbach—a Wellesley history professor and former Fellow in Law and History at Harvard Law School. For Unequal Justice is really a book about unequal lawyers, about a stratified profession rather than a differential product, and how a professional elite coped with the forces generated by the major social changes of the twentieth century, including modern corporate capitalism, immigration, war, economic depression, and political protest. The recognized maldistribution of justice in America is, in other words, treated as a fact to be explained instead of explored, and to be explained in terms of an elite structure within the legal profession.

The choice of an elitist perspective raises the issue of whether it normatively impairs Auerbach’s account. For the author’s part it does not, because no one can claim to be a nonpartisan observer; in writing the history of any social institution, even a “neutral” functional approach will serve “to stress (and implicitly praise) its adaption to social values without examining either the values or the implications of adapting to them.” More to the point, however, is the fact that the author is seeking to sustain generalizations about responses to social change. Given that purpose, some conceptual framework must be selected to organize the social data in a manner permitting diachronic comparison; and the elitist perspective, for better or worse, has probably been used more than any other for such comparison. Of course one may object that the discovery of generalizations goes beyond the job of the historian, and that may well be. Still, though, the objection would merely be a reason for viewing Unequal Justice as a piece of social science research, not for criticizing the work per se.

Yet, whether considered as history or social science, the lack of a developed elaboration of the particular elitist approach employed represents a serious deficiency. We are never told if it is Mosca’s organizational or Pareto’s psychological or Burnham’s economic or C. Wright Mills’s institutional or the author’s own original approach that delimits the contours of the legal elite and its struggles to remain in power. We are not told, for example, whether those who occupy elite positions do so by virtue of their exceptional organizational skills, persuasive abilities, legal talents, familial affiliations, official capacities, economic resources, or some combination thereof. True, Auerbach tells us the elite is composed primarily of white Anglo-Saxon Protestants, but this cannot constitute the distinguishing characteristic of the dominant minority within the legal profession. Not all elite lawyers are WASPs, nor are all WASP lawyers. Ethnicity is simply insufficient as the basis for elitism. Only when ethnicity correlates highly with at least one of the above elite grounds may we fruitfully use it as an indirect measure or sign of the factors underlying the observed structure of power. But even in that case ethnicity would be an imperfect indicator, and thus analysis should concentrate directly on the underlying factors whenever possible.

The author’s emphasis on ethnicity is related to his research methodology, which relies heavily on the actual words of bar officials spoken during a time, pre-World War II, when it was relatively easy to create widespread support for the status quo by arousing passions against domestic “aliens” who could be identified by dress, speech, skin, or some other physical attribute. Dependence on this methodology has two major pitfalls that are quite relevant here: the public verbiage of elite participants may well deflect the observer (especially when it seems extraordinarily candid by contemporary standards) from seeing the real basis for the existing stratification; and when that verbiage becomes more circumspect (again, by contemporary standards), it may be interpreted as evidence of a different basis for, or even as a decline in, elitism. The extent to which Auerbach has managed to avoid these pitfalls can only be determined by a careful reading of his very readable account. Such a reading is also necessary to isolate the nature of the particular elitist approach employed—though the two tasks are more related than might appear at first. For elitist explanations depend much on what the participants are actually doing instead of on what they say, or even think, they are doing. And so the more that Auerbach’s account allows us to discern the underlying pattern of elite behavior, the less has he allowed himself to be diverted by elite ideology.

Unequal Justice presents a fairly consistent description of the power struggles engaged in by lawyers at the top or trying to get there. The legal elite that reigns today is seen as having emerged at the turn of the century, when the era of genuine business competition and steadily falling prices was washed away by the first great wave of corporate mergers. It was this rise in corporate power that required and was reinforced by a new breed of lawyers, ones skilled in counseling rather than advocacy, in giving advice on how to evade Progressive regulatory legislation. The need was met through the Cravath system, which shaped the law firm to serve corporations by recruiting recent law-school graduates instead of experienced practitioners in order to create a cohesive team of complementary specialists. These were the lawyers who regularly received the highest fees and came to dominate the American Bar Association. But since the Cravath system was dependent upon the prestigious law schools for a constant supply of corporate lawyers, some of the influence that the firms enjoyed from their association with...

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(Literary Masterpieces, Volume 19)

America. CXXXIV, May 1, 1976, p. 393.

Booklist. LXXII, April 15, 1976, p. 1146.

Commentary. LXII, August, 1976, p. 65.

Current History. LXXI, July, 1976, p. 29.

Harvard Law Review. XC, November, 1976, p. 283.

Progressive. XL, September, 1976, p. 58.