Unequal Justice: Lawyers and Social Change in Modern America.
by Jerold S. Auerbach.
Oxford. 382 pp. $13.95.
Unequal Justice is a philippic against the American bar (with the exception of a few saints and martyrs like William Kunstler), particularly corporation lawyers. As Jerold Auerbach, a historian, sees it, these evil men and evil institutions have for more than a century conspired to serve and preserve “corporate capitalism,” racism, privilege, and injustice generally.
There is, of course, nothing wrong with 140-proof polemics, so long as the stuff is plainly labeled. Auerbach honestly disclaims any intention to act as a “neutral observer” or to treat “truth . . . as two-sided.” Although he frequently cites Abraham Lincoln, the lawyer of the “plain people” (and also of the big corporations, for, as Auerbach seems unaware, he had such clients as the Illinois Central and Rock Island Railroads) as the antithesis of the lawyers he abhors, he would certainly be contemptuous of Lincoln’s observation that “there are few things wholly evil or wholly good; almost everything is an inseparable compound of the two.” He does not know what Lincoln, that great lawyer, knew very well: that a polemic, like a lawyer’s brief or any other kind of advocacy above the level of rabble-rousing, is more effective when it appears to be reasoned, objective, and fair. He has marred his argument by suggestion of the false, suppression of the true, distortion of his adversaries’ arguments, and the frequent use of half-truth and sometimes simple untruth.
In a way, this is a pity, for some of the indictments in Unequal Justice are valid, even if most of them have been made before and more convincingly. The American legal establishment did for many decades try by fair means and foul to exclude Jews and other newcomers from its upper levels. Most of its members did (and still do) share the American values, good and bad, of their day, including a belief (which still persists) in the efficiency of the profit motive. (All this is, of course, equally true of doctors, farmers, shopkeepers, and just about every other definable group in the population. The bar’s special sin was that it spouted more cant about its noble ideals than any other trade except the clergy.) Immigrants to the United States frequently did not get equal justice, although (as Auerbach does not point out) most of them, including those from the British Isles, got more of it than they had in the old country. Most serious of all his charges, it is still true that the legal profession has done a poor job of getting its services to people in the lower- and middle-income brackets at prices those people can afford.
The book is not spoiled by any lack of diligent research. The author has waded through an astonishing quantity of tedious and long-winded bar-association oratory, unreadable house histories of law firms (usually written by senior partners who had nothing better to do), and biographies and autobiographies of lawyers long and justly forgotten, to say nothing of reams of correspondence entombed in various libraries. The trouble is rather that Unequal Justice is so obviously biased and intemperate (and sometimes so plainly inaccurate) that a reasonably well-informed reader is likely to discount its statements even when they appear to be true and in need of saying.
It is difficult to know where to start a partial catalogue of the book’s vices, but I might as well begin at the beginning. One of Auerbach’s major anathemas, to which he constantly returns, is legal education. His case is summed up in the Preface, where he describes his reasons for leaving the Columbia Law School, which he had entered in 1957, after his first year. “. . . [N]ot 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 conveyed through the curriculum we studied . . . , 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.”
As it happens, I began teaching law at Yale in 1957, and I therefore know that the latter statement was not true of Yale. Looking at the Columbia Law School catalogue for 1957-58, I found, sure enough, that torts and contracts were required for first-year students, as they were and are at virtually all law schools, for the same reasons that medical students are made to study anatomy. But so was the late Professor Julius Goebel’s Development of Legal Institutions, whose purpose was “to give the student a grounding in the history of the common law and to instruct him in the elements of historical method indispensable to a lawyer . . . [and] to emphasize the political, social, and economic facts that have determined the course of the law’s development.” Second- and third-year courses included Jurisprudence (dealing, inter alia, with natural-law theory, sociological jurisprudence, and American legal realism), International Law, Islamic Law, Roman Law, Comparative Law, and many other subjects having no very obvious link with Wall Street.
Auerbach, who has a habit of gliding away from accounts of historical wrongs without any clear indication of whether they still exist, seems, in fact, to believe that law-school curricula are to this day “weighted toward protection of the interests of the wealthy and powerful.” The allegation is contradicted by contemporary law-school catalogues. The only courses that are commonly required are Torts, Contracts, Procedure, Constitutional Law, and Criminal Law, none of which has more to do with the interests of the wealthy and powerful than with those of other citizens. Every law school of which I have knowledge offers a wide variety of courses in such areas as urban problems, consumer protection, and welfare law.
He similarly misconceives the problem of admission of blacks and members of other minority groups to law schools and the bar, as that problem exists today. There can be no doubt that many law-schools, particularly in the South, long discriminated against blacks. Others, particularly the major schools, did not discriminate against blacks, but neither did they do anything to increase their enrollment. Today, however, a very large majority of law schools recruit and give substantial preferences to applicants from minority groups. Assertions that “nominally objective criteria of merit [meaning, presumably, the applicant’s college record and score on the Law School Admission Test] are hardly unbiased” ignore or muddle the fact that the problem is not simply to get more black and Chicano lawyers, but to get more good black and Chicano lawyers. Many law schools, including Yale, learned or are learning by painful experience that the problem is not solved, but is rather aggravated, by grabbing almost any minority-group applicant with a B.A. Such practices, I think, do more to explain the fact that disproportionate numbers of blacks fail bar exams than does Professor Auerbach’s accusation that bar examiners crudely and systematically discriminate against blacks. In virtually all jurisdictions, bar examinations are today graded blind; the examiners do not know the identity of the examinees whose papers they grade—a fact which Auerbach either does not know or chooses not to mention.
Auerbach tends generally to ignore whatever reforms have taken place in admission to law schools, to the bar, and to the big firms. In a piece on the Op Ed page of the New York Times (April 13, 1976), essentially a summary of what he has to say in the book, he describes “elite law firms as bastions of white, Protestant, male power,” and adds that “minority-group members have been as unwelcome in Wall Street firms as in the boardrooms of the corporations they serve.” Again, that was generally true twenty or thirty years ago—although with more exceptions than he cares to admit. But there are few, if any, Wall Street firms of which it is true today. On the evidence of law-school placement officers with whom I have talked, the big corporation firms in New York and other cities are quite willing, even eager, to hire good black graduates. Many of the latter are, however, more interested in public service, teaching, or practice in their own communities.
Auerbach’s methods are further illustrated by his misleading accounts of a number of episodes in legal history. There is, for example, a fairly long and highly tendentious account of the 1916 controversy over the confirmation of Justice Brandeis. In Auerbach’s version, the opposition to Brandeis was based on “his Jewishness, his public service, his successful practice, his outspoken opposition to corporate arrogance, his social approach to legal problems, and his judgments upon the justness of a client’s case.” What role anti-Semitism may have played is hard to assess; if it was a factor, as it might well have been, it was covert. It is not mentioned at all in the exhaustive account of the struggle in Alpheus Mason’s Brandeis: A Free Man’s Life. Undoubtedly, much of the conservative opposition was based on a perception of Brandeis as a “radical,” an enemy of big business, the “Railroad Wrecker.” But some opposition came from liberals and reformers who thought Brandeis too favorable to capital, too willing to allow railroads and other corporations to make enormous profits. And more opposition was based on the fact that for many years (while he was attacking the New Haven Railroad and other monopolies) he had been counsel to, and a director and large stockholder of, the United Shoe Machinery Company, perhaps the most ruthless monopoly of them all. Auerbach devotes about seven pages to the dispute over Brandeis’s confirmation without so much as mentioning the name of United Shoe Machinery.
At equal length and with still more purple rhetoric, Auerbach describes the “ordeal” of the late Harry Sacher and other lawyers who defended the principal satraps of the Communist party in a Smith Act trial in 1949. After the trial the judge, Harold R. Medina, found that the lawyers’ courtroom conduct was in contempt of court and sentenced them to jail. (Sacher got six months.) The conviction was affirmed by the Court of Appeals for the Second Circuit and by the Supreme Court, in each of which there was a dissent. Auerbach sees the case as “part of a sustained, invidious, and . . . successful effort to intimidate lawyers for unpopular defendants and to discipline those whose beliefs or associations were adjudged subversive.” He refers to “anti-Communist hysteria” and calls the contempt proceedings “diabolic.” But nowhere has he a harsh word for the conduct of Sacher and his co-counsel. One may well question, as the dissenting judges did, and I do, whether Judge Medina should not have referred the contempt charges to another judge. But there was little doubt that discipline was called for. In the Circuit Court Jerome Frank spoke of “the lawyers’ outrageous conduct—conduct of a kind which no lawyer owes his client, which cannot ever be justified.” Charles Clark, who dissented, called their actions “abominable.” Auerbach quotes neither of these comments.
As suggested by his treatment of the Brandeis confirmation, Auerbach is pretty free with accusations and heavy-handed insinuations of anti-Semitism. (Among the victims is Harlan F. Stone. Auerbach’s “evidence” consists of three very short extracts taken out of context from a very long letter, which may be taken as uncomplimentary references to Jewish law students, although the letter does not mention Jews at all. But the evidence that Stone was not an anti-Semite is overwhelming; for example, many or most of his Supreme Court law clerks were Jewish.) The other side of this base coin is the plethora of derogatory statements about White Anglo-Saxon Protestants. There are references by the dozen to “the hegemony of Anglo-Saxon Protestant culture,” “Anglo-Saxon Protestant hegemony,” “an Anglo-Saxon professional elite,” “the Protestant corporate professional establishment,” “Guthrie, the association’s Waspish president.” If you substitute the word “Jewish” for “Anglo-Saxon” or “Protestant” for “Waspish” in these phrases, you can better appreciate the rancid flavor of racism which permeates Unequal Justice. I do not use the word lightly. I happen to be a Wasp (as Professor Auerbach would probably be quick to point out), but I do not think I am hypersensitive about it; most or all of Auerbach’s denigrations were and are true of many Wasps. But it is the hallmark of racism that it attributes bad or good characteristics to all members of some ethnic group with which it is obsessed.
Auerbach is very critical of the law schools’ emphasis on “thinking like a lawyer” and “inductive reasoning, analytical precision, and verbal felicity.” To do him justice, he practices what he preaches, for the book is innocent of these qualities, as exemplified by an attack on the late Alexander M. Bickel’s last article in COMMENTARY (“Watergate and the Legal Order,” January 1974). He accuses Bickel of a “sweeping exculpatory defense” of the Watergate conspirators by “equating them with all those protesters who opposed racial discrimination and the war in Vietnam” and even with the Warren Court. Bickel, he goes on, “equate[d] the civil disobedience of black citizens who protested against laws that deprived them of their constitutional rights with the criminal acts of government officials sworn to uphold the law.”
Bickel, who was not given to sweeping generalizations and whose talents for analytical precision were of the first order, said nothing of the sort. He very carefully and plainly distinguished between violation of an unconstitutional law, which is not a crime at all, and “civil disobedience,” which he defined as “the act of disobeying formally binding general law on grounds of moral or political principle without challenging the validity of that law.” He said also that “even beyond the autonomy of conscience that the law is able to make allowance for within itself, the legal order may be said to countenance conscientious disobedience.” He made not the slightest effort to “exculpate” the Watergate conspirators: what he did say, quite truly, was that there was a “point of contact” between them and others who deliberately violated constitutional laws which they thought stood in the way of justice. There is no need here to summarize Bickel’s whole argument. Anyone who reads it will see that Auerbach has either deliberately distorted or utterly failed to understand it, probably both.1
Unequal Justice might have been a better book, a more convincing tract, if Professor Auerbach had more respect and talent for “thinking like a lawyer.” As it is, I am left with deep, dark suspicions that his reasons for dropping out of the Columbia Law School were not exclusively the ones he gives.
1 Although it did not in any a affect my judgment of Unequal Justice, I must note that I discovered, almost at the end of the book, a long footnote which similarly distorts and/or fails to comprehend an article of my own (“Lawyers at the Bar”) in COMMENTARY August 1974. Auerbach describes it as a “professional apology for Watergate lawyers”; according to his paraphrase, I said that “given the predominance of lawyers in public life, only their absence from Watergate crimes would deserve notice.” What I actually said as quite different and. I think, true: “It is no wonder that the profession was so predominant in the Watergate cast of characters; its absence would have been far more astonishing. Whatever is done in government in America, for good or ill, is likely to be done by lawyers.” I did not in any way defend the conduct of the Watergate lawyers.