Transformative Law

By Rachel F. Moran

The following is the Presidential Address of Rachel F. Moran before the House of Representatives at the 2009 Annual Meeting on Friday, January 6, 2009.

I first want to thank all of the individuals, too numerous to mention here, who have supported me throughout my career and have placed their confidence in me as I embark on my term as President of the Association of American Law Schools.  A few people do deserve special mention, however.  They are my friend and mentor, Herma Hill Kay, who nominated me for this position, as well as my colleagues Carrie Menkel-Meadow, Gerald Torres, and Charles Weisselberg, who wrote letters on my behalf.  Then, of course, there are the wonderful members of the AALS staff, who enable every President to do his or her work.  I appreciate all of their efforts but especially those of previous Executive Director Carl Monk, current Executive Director Susan Prager, Deputy Director David Brennen, and Managing Director Jane La Barbera. I am indebted to Joe Knight for a provocative discussion that greatly helped in my thinking on this topic and to Greg Diamond for his invaluable research assistance in preparing this talk. Last but certainly not least, I want to express my deep gratitude to my parents for their love and guidance throughout the years and to acknowledge my mother who is here in the audience today.

Next year, we will be meeting in New Orleans for the first time since Hurricane Katrina forced the relocation of our 2006 Annual Meeting. During my Presidential year, I am adopting the theme of “Transformative Law,” mindful of the symbolic significance of our return there as well as of the successes and failures of the legal profession in addressing this perilous past decade.  Our meeting this year takes place at a time of crisis in our economy, our ecology, and our international standing as the leader of the free world.  Many lawyers (including our President-Elect, Vice-President-Elect, and many Cabinet officials, and congressional leaders) must tackle these challenges. Media coverage of their efforts, however, portrays these public servants as people who happen to be lawyers, not as lawyers whose leadership grows out of their mastery of law and whose accomplishments represent the pinnacle of their professional pursuits.  To a significant degree, the accounts reflect the fact that these leaders have not pursued a traditional law firm practice but instead have devoted themselves to government and public service. The image of the citizen-lawyer, whose training can be used to advance the common good, has so thoroughly disappeared from the popular imagination that those who pursue this path are no longer centrally defined as lawyers.

Contrast today’s portrayals to those of fifty years ago, when the word “lawyer” might conjure up images of crusaders in the civil rights movement. Or, compare these images to those of an even earlier era, when attorneys entered public life as architects of the New Deal.  When citizen-lawyers embarked on these campaigns for change, the result was transformative law. By this, I mean that law became a powerful tool to challenge and reconfigure social institutions. Transformative law can take place at the national, state, or local level.  Challenges can come through landmark Supreme Court decisions like Brown v. Board of Education, which ended state-mandated segregation and forced the nation to reconsider the meaning of racial equality.  Or, change can be the product of ground-breaking statutes and administrative action, as the battle for the New Deal that President Franklin Delano Roosevelt waged with a reluctant Supreme Court reminds us.1 Whatever the forum, though, citizen-lawyers have made transformative law because they understand their professional role as integral to achieving the American dream. 

Today, when lawyers receive attention as lawyers, they are more likely to be defending the notorious than building the nation.  Is there no greater role for lawyers as lawyers in our contemporary public life?  Is the citizen-lawyer now largely relegated to some lost golden age of reform?  I believe that law still has a vital role to play at moments of national crisis like this one, but we must once again recognize that  lawyers can be powerful agents of change and not merely advocates for agendas set by someone else.   We, as members of a learned society, can play a critical role in resurrecting the citizen-lawyer and the possibilities for transformative law.  In fact, the current crisis of confidence in our country provides an unparalleled opportunity for lawyers to answer the call of service and restore a sense of integrity and trust. 

The Citizen-Lawyer as the Architect of Transformative Law
Legal educators have long played a key part in efforts to define the role of the citizen-lawyer who does more than simply represent clients in an unquestioning way.  In the 1930s, Harlan Fiske Stone, a law school dean and later Justice of the United States Supreme Court, considered it the obligation of professors to train students to become practitioners who made law and policy that would advance the general welfare, presumably by creating optimal conditions for business.  Confronted with the stark evidence of the Great Depression, Felix Frankfurter, a law professor and Supreme Court Justice, rejected Stone’s notion that the general welfare and the interests of business were necessarily aligned.  Although some attorneys still rotated between law firms and public service, these paths began to diverge.2

By the 1960s and 1970s, public service and private practice often were seen as irreconcilable opposites; a deep divide within the bar had become evident.
This divide in turn has had pernicious consequences for the citizen-lawyer. Attorneys in private practice increasingly have come to focus on the bottom line.  In the frantic competition for revenue, these lawyers largely devote themselves to the narrowly defined interests of their clients.  As law firms adopt a business model, the image of the wise counselor, sometimes referred to as the “statesman-lawyer,” has become a thing of the past.  Meanwhile, government lawyers have confronted a rhetoric of deregulation that tends to identify law as “do-gooder” obstructionism that gets in the way of market efficiency.  This deregulatory impulse has left little room for law of any kind, much less transformative law.  Finally, there has been little official support for using law to advance social change, even for the neediest among us.  Funding for legal services has declined steadily during this period.
The upshot has been that the notion of “lawyer” is increasingly divorced from the concept of “citizen.”  So, perhaps it should come as no surprise that prominent public leaders are not defined primarily as lawyers but as politicians who happen to have a law degree.  To overcome this pernicious trend, we must heed law professor Robert Gordon’s warning not to “fall[] into the habit of thinking that maintaining the integrity of the legal framework is always someone else’s problem (even as, in their roles as lobbyists and power brokers, they may press for political change to weaken or alter that framework).”3  Although the image of the citizen-lawyer has largely vanished from the popular and professional imagination, now is the time to revisit this concept and the promise it holds for transformative law.        

The Seeds of Renewal
The makings of a cadre of citizen-lawyers are not hard to find.  Many students arrive at law school with a hunger to make a difference.  Despite their eagerness and idealism, they often find their commitments tested in the crucible of legal education.  This phenomenon is hardly new.  Legal historian Jerold Auerbach describes his experience at law school during the 1950s:

Within a week disillusionment shattered my aspiration [to use law for social change] beyond repair.  In my undergraduate innocence, it had never occurred to me that legal education was the finest preparation available for a career in business.  Quite the opposite: I entered law school in avoidance, not in pursuit, of that objective.  But not only were Columbia Law School and Wall Street stations on the same subway line; they were stations on the same career line.  The message was never explicitly conveyed but it was communicated through the curriculum we studied, the jackets and ties we wore, and the expected rewards for mastery of torts and contracts.  Never was there a whisper of a suggestion that law related to choice, to history, to society, to justice.  Its world was populated by appropriately anonymous A’s, who fired bullets across B’s land, wounding C’s, who tumbled into D’s well, after E’s rescue efforts were thwarted by F’s enraged bull.4 

Present-day narratives often tell the same story of frustrated idealism.  Sonya Pfeiffer, a law student turned film maker, remembers her experience this way:
When I applied to law school in 2003, I had no idea that my impression of law school–as an incubator for young activists desiring social change–was such a far cry from the reality of law school.  It wasn’t that I was disillusioned, but I was disappointed.  My image had been created after years of associating the practice of law with public service, civil rights struggles, and a general goal of sticking up for the little guy and questioning authority.  I wasn’t so naive to ignore the reality of the thousands of corporate lawyers, but to me, lawyering was about social change, about activism, about fighting the good fight whenever a new cause needed an advocate.5

Even as some students succumb to cynicism and alienation, others still nurture the dream of becoming citizen-lawyers prepared to make transformative law.
Of course, the problem is not merely one of high hopes dashed by the harsh realities of law school.  Graduating students follow a well-worn path towards commercial legal careers that, for most, leave contributions to transformative law an afterthought at best.  Some of the reasons for this are largely outside the law schools’ control: the declining number of public interest jobs, the tendency to treat pro bono work as a luxury rather than an integral part of professional practice, and the growing income gap between lawyers who join firms and those who pursue public interest or government employment.  The structure of legal education can exacerbate these conditions:  high tuition, including a dramatic spike in costs at public institutions; the crushing burden of student loans; and the limits of loan forgiveness programs for those who go into public service.

Despite these challenges, legal educators continue to inspire students to pursue their dreams of making a difference. Sonya Pfeiffer, the lawyer turned film maker, remembers the remarkable difference that “several incredibly dedicated, passionate professors” made in her life.  She singles out Professor John Calmore, whose “life experience and . . . emphasis on social and economic stratification came through in bits and pieces as we slogged through cases on proximate cause and contributory negligence.”  In her second year of law school, Pfeiffer signed up for more courses with Professor Calmore, which she describes as “possibly the best decision I made in my law school career” because she got the tools that she needed to pursue her vision of community-based lawyering.6

Students themselves have taken ingenious steps to keep the dream of the citizen-lawyer and transformative law alive.   At Stanford Law School, two third-year students, Andrew Bruck and Andrew Canter, launched Building a Better Legal Profession, which sought to counter the “churn and burn” business model at large law firms, a model that forces associates to bill long hours “until finally they burn out and are replaced by new fuel for the furnace.”7  In October 2007, Building a Better Legal Profession released a report card that ranked firms with over 100 attorneys in Boston, Chicago, Los Angeles, New York, San Francisco, and Washington, D.C. on, among other things, diversity, work/life balance, and average pro bono hours.8  The rankings were posted on a website so that students could consider them in choosing a job, and the information was sent to Fortune 500 companies for use in deciding which firms to hire as outside counsel.  Though neither Bruck nor Canter plans to pursue a position as an associate at a large firm, these efforts show that the desire to be citizen-lawyers pervades all sectors of the legal profession, not just the public interest or government bar.

Stories like these can be told at every law school every year.  Dedicated faculty reach out to students to help them keep their dreams alive.  Students organize programs and activities that maintain their sense of professional possibilities.  The importance of these efforts can not be gainsaid, but there is more work to be done.  Precisely because of the current crisis in which our country finds itself, now is a moment of unique opportunity to resurrect a model of the citizen-lawyer and the prospects for transformative law.

Crisis as Opportunity
For the past several years and particularly in the last several months, our nation has been reexamining its views about the role of government.  After Hurricane Katrina struck New Orleans, Americans were shocked by the lack of leadership at the federal, state, and local level in dealing with this natural disaster.  More recently, the collapse of the financial sector has left our country wondering about the wisdom of decades of deregulation and a naive faith in the free-market system.  As the ranks of the jobless swell and families are evicted from their homes, the nation is re-considering the importance of a social safety net that ensures a minimum level of security and dignity to every individual facing the ravages of hard times.

Rocked by these recent developments, the American public is eager to listen to what experts have to say about solutions to the compound social and economic problems that threaten the health of our democracy.  Consider, for example, the way that economists have played a starring role, marching across the stage as potential heroes and saviors in the current fiscal crisis.  There is, of course, a profound irony in this display of professional star power.  After all, it is the failure of economics to anticipate this collapse–think of Alan Greenspan, testifying that he did not foresee how unregulated and unsupervised markets would fuel debilitating greed–that has spawned the present downturn.9  At the heart of this market meltdown has been a deep hostility to law–a rejection of norms of transparency, of the individual’s right to seek legal relief, of deference to courts and legislatures, and of the lawyer’s role as watchdog. 

At times, the legal profession has been complicit in its own marginalization, but now is the moment when legal educators can play a pivotal role in resurrecting the citizen-lawyer and the public-spiritedness that should pervade all aspects of legal practice.  This regard for the common good as well as the needs of individual clients is what makes transformative law possible.  We as legal educators must prepare students to assume these responsibilities by teaching them that a true professional takes the long view in advising clients about legal obligations, puts disputes in context by acknowledging the multiple interests at stake, contributes to efforts to reform and improve the law, and helps to educate the public about the role of law in a democracy.

Yet, even the best training, standing alone, can not overcome structural barriers to reviving the citizen-lawyer and realizing the promise of transformative law.  Collectively, we as a learned society must make clear that the legal profession has a unique role to play in addressing the current national crisis.  To that end, I offer a proposal that enables students to think differently about their career trajectories by giving them a way to participate in the nation-building process and to take the lessons that they learn–both technical and ethical–to other realms of practice, whether at law firms, public interest organizations, or law schools. 
In his memoir of Harvard Law School, Richard Kahlenberg suggests that despite all the obstacles to pursuing a career in public service, law students might keep this dream alive if:
An inspired President could fashion a domestic peace corps, aimed at professionals: doctors who would otherwise go to the fancy hospitals; lawyers who would otherwise go to Cravath; writers who would otherwise go to Madison Avenue.  The corps, if properly structured, could remove the impediments to public service–the low status, the problem of educational debt, the poor timing of recruitment, the lack of training opportunity.10

Building on Kahlenberg’s notion, I propose a program of national service for recent law graduates.  These positions would be paid and would be coupled with assistance in paying for legal training.  That assistance could take the form of scholarships for those who commit to performing national service when they apply to law school, loan forgiveness for those who already have graduated, or at least a moratorium on repayment of loans during the period of service. 

A national service corps of lawyers would require an investment of government funds.  If this proposal seems expensive, however, consider this.  If the Obama Administration proceeds with its plans for major infrastructure investments as a means of stimulating the economy, there will be many contracts to negotiate and much regulatory oversight to be done, a great deal of it for a relatively temporary period.  Liberals and conservatives alike should be asking the same question: How will we prevent massive fraud and abuse of these staggering sums of federal money?  I submit that young lawyers can be trained in short order to provide much better oversight of these expenditures than we are likely to find otherwise.  Money spent on a corps of budding citizen-lawyers is likely to be dwarfed by the savings that come from preventing waste and misappropriation of taxpayer dollars.
Is this a serious concern?  We might ask that question of Elizabeth Warren, the Harvard Law School Professor who has been appointed to chair the congressional advisory committee that will audit the $700 billion bailout for America’s banking and financial system.  While countries like Great Britain have kept track of the money they loan out, the United States has relied on private companies to administer its loans, a process that has led to a lack of transparency and challenges for overseers like Professor Warren.11  To the extent that young lawyers and seasoned supervisors could supplement government workers in extraordinary situations like the one we face now, these efforts could bolster public confidence that taxpayer dollars are being used wisely to build the infrastructure that we want to leave to future generations.

Conclusion
A national service corps of young lawyers could yield many benefits.  The time spent in temporary government employment would hone lawyering skills and give participants a powerful sense of their professional identities and obligations.  The program could sow the seeds of a revitalized image of the citizen-lawyer, as young attorneys enter practice imbued with respect for law as the foundation of a democratic society.  Even in the current crisis, creating this type of national service program will be an uphill struggle.  Kahlenberg himself recognized the challenges but also the opportunities:

It’s extremely difficult to communicate idealism without sounding sappy and tired and insincere.  Somehow, J.F.K. pulled it off, inspiring large numbers of young people to enter public-service careers.  No President has since.  Most haven’t even tried.  At a Kennedy School forum during my last week at Harvard Law, Richard Neustadt said that he took it for granted that public service was noble, growing up under Roosevelt, and Ellen Hume said the same was true for Kennedy. . . . Most of my law school class was born too late for Kennedy–many of us, in fact had been born in 1963, the beginning of the end.  Who knows what would happen if we somehow elected another President who asked us to give of our very best?12

Who knows, indeed?