Tuesday, July 10, 2012

Woody is right about this.

Mr. Torvik asks whether I think there was a "golden age" of lawyers.  He also asks "Should we return to the lost ideal of the noble lawyer, as best personified by your former boss, Judge David Doty? Is this post just snarky ignorance?"  Read on for my answers.

Answering Mr. Torvik's questions in reverse order, I do not think his post is snarky ignorance.  Moreover, I think Mr. Torvik is correct that the "golden age" for lawyers that Scott Greenfield discusses, was not a golden age for over 50% of the population of the United States.  That is not snarky ignorance.  Mr. Greenfield has to be dismissive of Mr. Torvik's observation because Mr. Greenfield has no effective way of disputing the point. 

Should we return to the lost ideal of the noble lawyer, as best personified by Judge Doty?  Given that Judge Doty is alive and well (and hearing a full calendar of cases), I do not think that the ideal of the noble lawyer has been lost.  I do think that more lawyers--and for that matter more judges--would do well to follow Judge Doty's example.  But, there are dedicated and noble lawyers out there. 

Finally, to the question of whether there was a golden age of being a lawyer.  The answer is no.  Professor Chen's post does not identify when (other than not now) the "golden age" occurred.  Mr. Greenfield's post states that the golden age occurred when his great uncle, David Schackner, was practicing law.  As an aside it is not clear to me whether Mr. Greenfield is using "great uncle"  to describe an uncle he thinks is great or to mean the brother of one of his grandparents. Mr. Greenfield helpfully gives us the dates Mr. Schackner was alive (1911-1990).  If we assume that Mr. Schackner began practicing law in before he was 30, then perhaps this golden age occurred sometime between 1941 and 1990.

Note that this golden age for lawyers involves Mr. Shackner billing at a rate (adjusted for inflation) of $843 per hour.  Mr. Greenfield uses the rate as evidence of nobility because Mr. Shackner never charged more than that per hour. I cannot speak to other legal markets, but that rate is high for where I practice and very few people can afford to pay that rate.  I am not sure what is particularly noble about charging people that kind of an hourly rate.

The second thing that I noticed was that Mr. Shackner's time as a lawyer included the 1950s.  Did lawyers in the 1950s think they were practicing in a golden age?  Nope.  This Malcolm Gladwell piece from the New Yorker mentions this:
In 1956, Roswell Magill, a partner at Cravath, Swaine & Moore, spoke for a generation of professionals when he wrote that law firms “can no longer honestly assure promising young men that if they become partners they can save money in substantial amounts, build country homes and gardens for themselves like their fathers and grandfathers did, and plan extensive European holidays.”
Put another way, Roswell Magill was saying that practicing law in the 1950s was worse (even for lawyers at big firms) then it was for their predecessors.  Think about that,  Mr. Greenfield implies that the ideal time to practice law was in the 1950s.  But in the 1950s,  Mr. Magill was saying the past was better for lawyers than the 1950s.  However, twenty-seven years before Mr. Magill spoke, the country entered into a depression that lasted for 13 years (and was followed by 3 years of World War II).  Last year, Planet Money did a podcast about the diary written by Benjamin Roth, an Ohio attorney, during the Great Depression.  The diary has also been published as a book.  If you read the book, you learn how hard it was for lawyers to get paid for their work.  Indeed, Mr. Roth had to borrow money against a life insurance policy to keep his family fed.  That does not sound like a golden age.

All of this is a long way of saying that everybody thinks that some time in the not-too-distant past was a better time to be alive.  The funny thing is that no one alive during that time ever thinks that they were living in the golden age.  Instead, they also looked backward to some other time.  Woody Allen's Midnight In Paris makes this same point and does it better because it uses Paris as background scenery.


  1. I have not seen "Midnight in Paris," but I have to admit that I was a little disappointed that the Woody from your title didn't turn out to be Woody from "Cheers."

    I think your post nicely takes down the whole idea of golden ages. But it also demonstrates the difficulty of even using the rhetoric. When we hear of a golden age, even for a particular thing, it makes us think that in that age, everything was in proper balance. We can be reasonable and reject the notion of perfection but still strive for the ideal (golden) mean, warts and all. No one can plausibly argue that the 50s were a golden age for the legal profession over all, but I think you could plausibly argue that it was the time that the professional ideal of a lawyer hit its high point. Nowadays there are competing ideals for what a lawyer should strive for. I think what Mr. Greenfield is arguing is that these competing ideals (which may involve things like marketing and profit maximization) are inferior to the former ideal of the noble lawyer who was so devoted to the profession that he would mow his lawn wearing a tie and waistcoat so as not to tarnish the image of the lawyer as a professional standing apart from the common man. I actually disagree that this former ideal was actually a good thing, but it's something to think about.

  2. You should see "Midnight in Paris" it is not on par with the greatest Woody Allen movies but it is entertaining. The actor who plays Hemingway is very good.

    My problem with the idea that the ideal of a lawyer hit its zenith in the 1950s is that neither Mr. Greenfield nor Dean Chen define the ideal. If the ideal is charging 800 bucks an hour and mowing your lawn in a waistcoat, then that definition of ideal is silly.

    Although neither mention it, perhaps idea is that the 1950s were a better ideal for lawyers because people like Thurgood Marshall were trying to change society for the better. I might agree with that but/for the fact that there are lawyers doing the same kind of work today. I don't have any reason to believe that the percentage of lawyers who do that sort of work has changed since the 1950s.

  3. Yearning for a better, simpler time and idealizing some "temps perdu" as the better/simpler time is pervasive throughout human existence. Adam and Eve started it (as well as starting bickering, I suspect).

    If you were a white male lawyer in the U.S. 1950-1970, though, I think you had it pretty good compared to that same cohort today. The competition in the mean time has gotten ferocious. http://goo.gl/64Ldj

    As with the Apartheid system in South Africa, though, vestiges of an immense historical advantage do not vanish overnight. http://goo.gl/uMNfF

    But this will change and, as far as I am concerned, that is, as a third generation U.S. white male lawyer, there has never been a better time than now and the law has never been as interesting, exciting, full of challenges, and full of opportunity than it is now.

  4. Two thoughts:

    1. A text relevant to this discussion is Anthony Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession (Harvard UP: 1993). Kronman was at the time of publication Dean of Yale Law School. He is currently Sterling Professor there. He also has a PhD in Philosophy from Yale. The book is worth thinking about.

    2. Whether or not there was a golden age of the legal profession, there was a time when lawyers were not "trained" in law schools. See "Abraham Lincoln." Is one of the implications of Professor Chen's argument that we should do away with law schools altogether?

  5. Talking about the broader society, I think David Brooks sums up the supposed appeal of the old elite in his column today:

    "As a result, today’s elite lacks the self-conscious leadership ethos that the racist, sexist and anti-Semitic old boys’ network did possess. If you went to Groton a century ago, you knew you were privileged. You were taught how morally precarious privilege was and how much responsibility it entailed. You were housed in a spartan 6-foot-by-9-foot cubicle to prepare you for the rigors of leadership.

    The best of the WASP elites had a stewardship mentality, that they were temporary caretakers of institutions that would span generations. They cruelly ostracized people who did not live up to their codes of gentlemanly conduct and scrupulosity. They were insular and struggled with intimacy, but they did believe in restraint, reticence and service."


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