Labor and the conglomeration of everything.

Grocer, 1944. This guy wouldn't be working for himself, in this occupation, anymore.

One show that does capture a little of the high school experience many of us had is “Freaks and Geeks,” to which I’ve devoted a few evenings lately. One character is a guidance counselor who’s a little over-invested in his students’ lives. He’s always around, questioning the kids’ decisions and reminding them that the choices they make in high school will echo down the hallways of the rest of their lives.

This is a pretty common theme, and one that today’s students are likely to hear as classes kick off this week in the state. Even Linus from “Peanuts” gets in on the action. He tells Charlie Brown: “I think that the purpose of going to school is to get good grades so then you can go on to high school, and the purpose is to study hard so you can get good grades so you can go to college, and the purpose of going to college is so you can get good grades so you can go on to graduate school, and the purpose of that is to work hard and get good grades so we can get a job and be successful so that we can get married and have kids, so we can send them to grammar school to get good grades, so they can go to high school to get good grades so they can go to college and work hard…”

Mandy Burton from her article in the Casper Star Tribune, quoting from the late Charles Schultz's cartoon, Peanuts.

Pretty observant article, but not true so much anymore.  Today, Schultz's characters would have to say:

“I think that the purpose of going to school is to get good grades so then you can go on to high school, and the purpose is to study hard so you can get good grades so you can go to college, and the purpose of going to college is so you can get good grades so you can go on to graduate school, and the purpose of that is to work hard and get good grades so we can get a job and be successful move to a city you are not from and have no connections to so that we can get married and have kids, divorce and abandon them, so we can send them to grammar school to get good grades, so they can go to high school to get good grades so they can go to college and work hard and move on to where they have no connections…”

Grim view, I know. But a realistic one in the modern American economy.

I've posted a lot on this blog about the disappearance of various small businesses.  I haven't posted as much on those that have persevered so far, as its always easier to ignore that, although I do have one in the hopper on bars.

As part of what we're observing here this week in regards to Labor Day and the American celebration of labor, we might want to take a look at the conglomeration of absolutely everything.  Indeed, to my way of thinking, it's one of the worst things that's happened to the United States, and indeed the world, in the past century.

Americans are fond of thinking that they live in a free market, but they really do not.  A free market, in a pure sense, is a market in which every individual competes on a level playing field.  But that sort of market, to be truly free, would exist in the absence of corporate entities.  Ours clearly does not.  Indeed, it emphasizes them.

Now, the reason that matters is that corporations, in a state of nature so to speak, would be partnerships, which are assemblies of individuals who are still individuals.  Partnerships, if they are conventional partnerships, exist in a much different legal environment than corporations do.  Corporations may be assemblies of people, and of course are as people are behind all entities and things at the end of the day, but corporations are creatures of the state, created by the recognition of whichever state entity they are formed subject to, and recognized at law as a "person".*

That last thing is a profound legal concept.  Walmart, General Motors, or British Petroleum, for example, are all people in the eyes of the law. You know that they aren't, but at law they are. That means that under the law nearly everywhere they are legally liable as people for their torts, as compared to conventional partnerships in which every partner can be held individually liable for the acts of the partnership.  If that was the law in regards to shareholders and the liability of corporations, there's no way that they'd have grown so large and so predominant.

Additionally, in the United States, thanks to a ruling by the United States Supreme Court, corporations have the same right of speech that individuals do. That's an almost shocking proposition, but it's the law.  It's hard to believe, for example, that every shareholder of Amalgamated Amalgamated holds the same view as the board of directors, but that board can decide what the corporation thinks and how it spends its money on getting its message across.   That's the corporations speech, even if Mrs. Anon Jones in Passedonby, Florida, who is a shareholder, disagrees.

Corporations have been around for a long, long time and there's legitimate reasons to be sure for big and small ones.  The oldest one is debated as to that status.  Some claim the Dutch East India Company, which disappeared in 1799, was the first one, but that status is certainly challenged.

Logo of the Dutch East India Company.

Some claim that status for the Hudson's Bay Company, which has the advantage over the Dutch East India Company in that it is still around with popular stores in Canada now commonly nicknamed "The Bay".

The flag of the Hudson's Bay Company.

While the Hudson's Bay Company hasn't folded in, like the Dutch East India Company, it isn't what it once was, sadly. None the less the company that could and should claim that it made it to the what would be come the American Pacific Coast well in advance of Lewis and Clark was formed on May 2, 1670, a long while back.**

Both of those corporations are sorts of exceptions to the early rule, which is interesting in that they were both retail and manufacturing, with HBC being particularly that way.  The manufacturing aspect of them is what caused the need for their corporate status to exist.  A giant financial enterprise on that scale simply couldn't exist as a partnership, and we won't pretend otherwise.  Corporations are not only the backbone to the Corporate Capitalist system we actually have, but a necessary element of it. The question explored here is a bit different than that.

Before we move on, determining the oldest corporation in the United States would be a little more difficult, although I'm sure it could be done.  There are some really old ones to be sure, with some old businesses that were not incorporated (at least originally) dating back to the 17th Century.  The oldest corporation, oddly enough, appears to be a perfume company, still in existence, but it's hard to tell that for sure.

What something like this tends to show us is that corporations really arrived on the scene for really large commercial trading operations in the 1600s and have been with us ever since.  And over time, they've come to predominate in all sorts of ways more and more.

It's easy to pretend this is a really modern trend, and it is if we take a long view of modern. But it didn't occur within just the last couple of decades.  Certainly big manufacturing came in with the Industrial Revolution.  Big retail came in shortly after that.  Department stores, which are the immediate predecessors of all big box retail, date back to the early 19th Century.  Macy's, which is in every American burg of mid size and up, was founded as a dry goods store in 1858, two years prior to the Civil War.  A whole host of companies that some would recognize now and some would not, followed.  All of them no doubt incorporated early on.

Indeed, at some point some of the older department stores yielded to the newer ones like Target.  Anyway you look at it, the most emblematic of the modern American giganto stores is Walmart, which is absolutely everywhere.

Its with Walmart that it gets tempting, although it would probably be a bit deceptive, to start to claim everything changed.  Before Walmart, for example, there was K Mart, and certainly at one time K Mart seemed like a big deal. But Walmart was exceptionally aggressive in moving into every single market and every single niche that seemed to exist.  At least at our local K Mart (which I haven't been in since the kids were small) you can now buy groceries, for example, but that's only because Walmart did it first.

Walmart has a business model which basically sets to sell everything on earth for the lowest possible price.  It does that by a variety of means, but one of the means is that, once it grew large enough, it pressured manufacturers to lower their costs.  The manufacturers had no choice and in order to do that they've had to do what any manufacturer in a global market has had to do under price pressure, manufacture overseas and with the cheapest parts that the consumers can tolerate using.

As this has happened its been devastating to local retail.

Walmart's backers like to pretend that its "low low prices" benefit everyone but that's very far from true.  What low low prices have done is meant that certain entire sectors of the local economy have closed.  It used to be the case that things like radios, televisions, stoves, and appliances, as well as clothing and the like, were typically bought by local vendors.  I'm in my mid 50s and I can well recall all of that being the case.  Maybe you'd also look at Penney's, Sears or K Mart, but chances are that the local prices weren't far off and were competitive.  Not any more.

And that has meant, by extension, that occupations that people once held in small retail have died.  A person would have to be willing to endure a lot of economic risks to open up a small dry goods store, or an appliance store, or a jewelry store today.  Indeed, a person would have to be willing to endure a whole lot of risk to open a conventional grocery store.

Now, not all of that can be blamed on Walmart, but on the overall trend.  Through the corporate vehicle, size and mass have spread into everything.

Take the popular television advertisement we see in which we're informed that "He want to Jared's" symbolizes undying love.  It might, but Jared's is owned by Sterling Jewelers, a company that was founded in 1910 and which is now owned by Signet Jewelers Ltd, a British company. The parent company has stores all over the globe and just purchased an internet based jewelry company.

 

 Sidewalk clock of a former jewelry store.  The store closed when the owner retired.  It was a family business that had been in that family for at least two generations.  I'm not saying that big national chains killed it or anything, but if I were entering the business today I'd surely consider my national and international competition before I did so.

Now, I'm  not saying that either of those business entities is bad in some fashion, but let's be fair. Jewelry stores used to almost exclusively the domain of families, which made a decent middle class, and independent, living on them.

 

Location of former grocery store in Ft. Collins, Colorado.

So were grocery stores, although that's long ceased to be the case.  All groceries used to be local but just over a century ago Piggly Wiggly moved into with a different business model and now almost everyone buys their regular groceries from a grocery store that's a huge chain.

The interior of the first Piggly Wiggly from our hugely popular thread on that topic.

Now in fairness to those chains, and fairness is due, a strong grocery union means that the jobs at grocery stores actually are generally good middle class jobs with benefits and retirement.  But they aren't small locally owned as a rule anymore.  Oh, sure, you can find a locally owned store, but it will likely be a specialty store.  And perhaps that's both the model and the exception to the rule.  And as noted, in recent years grocery stores, which at least were generally single purpose in mind, have had to compete with Walmart and the like, which now include groceries in them, thereby removing the connection with the local and the course more and more.

Local record store.

And there's hardly anything that hasn't succumbed to this model, or which isn't in danger of of falling to it.  There are still local book stores and record stores, but they struggle against national chains, or increasingly, the Internet.***  There are still local automotive garages, but think of the easy service end of that chain, such as lubrication, and once again you have the chains.****

 

Barling Garage, Meeteetse Wyoming.

And even industries which don't have a giant big box store to compete with face the problem of conglomeration.  Even in the legal field, which is generally a model of modern guild practice, we now see larger and larger firms in big cities planting roots in the mid sized ones, and giant ones based in huge cities moving into the big cities.  The trend is obvious.

You can, if you look hard enough, and live in a town big enough, find local businesses.  But if you stop to consider what the big box stores are offering and then compare that to the town in which you live, you'll get a clue as to what you'll find in the first instance. And then as you drive down the street and look at the national chains its all the more apparent.

Now, I'm not saying that everything local is gone. Indeed, just a couple of months ago, while working on one of our trucks, I was reminded of how many local industrial mechanics shops still remain and indeed, in order to rebuilt the batter connectors for our 1997 Dodge D1500 we had to go to those local shops as the big national chain batter shop here that had just opened a large new store didn't have what we needed. The small one catering to garages did however, along with a lot of helpful advice that proved critical to the enterprise.

But more and more this is an exception to the rule.

The question is, of course, whether or not this is bad.

And it is.

The problem with this gigantic conglomeration of everything is multi fold, but at least in part what it has done is to take middle class occupations and shoved the former owners of them down into lower wage brackets.  Local grocery stores that supported a family of owners, for example, are gone, and that family has had to do something else, probably a couple something else's, in order to support themselves.  Or at least, they are supporting themselves directly through what they own.

Likewise, families that would have owned any number of local enterprises to support themselves now must work for other enterprises quite often. Sure, there are multiple exceptions, and of course a lot of chains are actually franchises, which is another matter entirely.  But there can be no doubt that a young couple that might wish to open an appliance store and support a young family has to really question their decision.

Beyond that, there's a certain center of mass, or gravitational pull, aspect to this.  I've noticed this in the legal field for a long time.

The practice of law used to feature a lot of very broadly practicing lawyers, many of them absolutely excellent, located throughout a state.  I've detailed it before already, but the practice of law began to shift in the 1970s when the Baby Boomers came into it as they shifted the business model to emphasize making money over everything else.*****Coincident with this, large firms began to increasingly expand into multiple states. The money aspect of this drew off a number of graduates of local law schools to the bigger markets, but the majority of graduates of state schools still went on to practice in their states, very often in the communities they were from.  This is no longer true.

Now, the gravitational pull had caused a cycle in which bigger and bigger firms sought to penetrate smaller and smaller markets, to the detriment of the local practitioner.  This created a crisis in employment for those just graduating law schools which in turn helped bring about the disaster of the Uniform Bar Exam, which allowed "transportability".  That transportability became a vehicle to accelerate the penetration by big firms, but ironically big regional firms have become the victims of giant national firms that seek to do the same thing.  The local lawyer has increasingly gone from a general practitioner skilled at everything to a specialized one occupying the markets that are suited for only the local.  But the practice hasn't improved at all.  Indeed, it's gotten increasingly unbearable for the practitioners and the overall quality certainly isn't any better.

The irony of all of this is that it doesn't have to be.  The concept of incorporation was never really meant to lead to the conglomeration of everything, and in prior eras when conglomeration grew too extensive, at least in the United States the law, in the form of the Sherman Anti Trust Act, stepped in to address it. Now things are far, far, more extensive than they ever were.  But only because we allow it.

During the recent primary election the GOP candidates all came around to how local business could and can be helped.  I doubt that anyone is really going to do anything, but here's an area that certainly could be done.  Large scale manufacturing is certainly a different animal, but retail and the service industries have become conglomerated simply because we chose to allow it to occur, or even encouraged it.  We ought to ask, at least a bit, if in doing that "for" our communities, we instead "doing" something to them, and it wasn't a pleasant thing to do.

_________________________________________________________________________________

*Indeed, one of the really bizarre ironies of Capitalism v. Socialism is that modern Capitalism, which is really Corporate Capitalism, strong favors the big, but not as much as real Socialism, which doesn't work and which is pretty much extinct, which favors the biggest.  Socialist don't think of it that way, but real Socialism favors the creation of a giant monopoly in which a giant Corporation, if you will, the state, owns and controls everything with the people as the theoretical shareholders, if you will (but in reality, the government is and doesn't care much about its patrons, the people).

**It's odd to me that real backers of Capitalism so rarely cite the example of the Hudson's Bay Company which is the one real example we have a giant corporation serving its interests by basically ruling the northern half of a continent and successfully enforcing the peace while enriching its more or less subjects.  It's a Capitalists success story of epic proportions really.

***Indeed, Internet retailers are posed to be the next step in this, wiping out even big entities in favor of remote cyber ones.  It is, of course, happening.

****Garages themselves, however, hold on.  Perhaps their work is too individualistic to fail.

*****It was at that point that the "billable hour", much discussed in legal circles, came in and began to dominate. 

Oh great. . .as if the Colorado flood wasn't enough. . .

Harris County Texas Courthouse.  The big legal dome of Houston.

now Texas

Texas law graduates would no longer face the Texas bar exam, and instead take a test with fewer essay questions that could qualify them for a law license in 29 states, if the Texas Supreme Court accepts a recommendation from one of its task forces.

When the UBE became the rule in Wyoming, I predicted, and I wasn't alone, that the net result would be bad for Wyoming's lawyers.

We're five years into the new UBE and it has been pretty much as predicted, although I haven't personally been affected by it and recently even started to do some litigation in the big poaching state to our South.  But I have seen a real decline in the standard of practice.  Indeed, I've been in cases in which the UBE minted lawyers from other states were pretty much wholly ignorant of Wyoming's law and missed filings they could have made to their client's advantage as they were too ignorant of the law to know to make them.  And I've likewise been in a case in which a major mistake was made due to the plaintiff's counsel's ignorance and disbelief that the Wyoming law was what it was.

Now, I don't blame Texas for doing this.  Indeed, it makes sense. There are nearly 100,000 lawyers licensed in Texas of which near 90,000 live in Texas.  So they have plenty of lawyers and in any situation in which you have plenty of lawyers you have plenty of lawyers looking for something to do. Now some of them will look for something to do in Colorado, a UBE state, to the detriment of Colorado's lawyers, who are already practicing in Wyoming do the detriment of Wyoming's standards of practice.  This will make a bad situation worse.

But with big population states like New York and Texas joining this trend, the it's probably unstoppable. The net result will be that things like divorces and the like will be left for local lawyers, but courtroom representation will go.  Indeed, trials are likely to go as the big city trial lawyers in reality hardly ever actually try a civil case.

So this makes the center of mass all the more the big cities, for big matters.  And to the detriment of the local.  Law was once a field that people from rural areas who wanted to remain in their home towns could enter and expect to make a middle class living.  Now its increasingly become one which is a big city occupation characterized by lower standards.  Of course, there's been an overpopulation of lawyers for some time, but this doesn't help states with rural populations.

Some law will remain, of course.  But less of it.  And that's shame . . . most particularly for good representation by those who might want a person attuned to the area they are in.  But we can't be too surprised.  Everything is weighted to the blight of the big cities, which turns everything into a blighted field with it.

The Depressing Issue of the state bar journal and institutional blindness. Patch 'em up and send 'em back into battle.

 

Some time last week the most recent issue of the state bar journal arrived.

I always read it, although it doesn't always take me long to read it.  There's usually some interesting articles in any one issue.

I usually don't read it right away either, for whatever reason.  It's one of those magazines that hang around for a few days before I get to it, usually.  I sort of wish I hadn't read this issue at all.

The magazine is usually centered around a theme, and several articles will be on that month's them.  When this issue came the cover asked if you "Can imagine a world without lawyers?"

Now, first of all I'll note that I don't like articles that take that theme as a rule, and I've seen more than one. Usually articles like that by any one person in a field they're writing about approach some state of hagiography (this one included).  And it's really a straw man argument in the first place in regards to lawyers. There's no earthly way you have a world without lawyers as every society has some sort of role that is equivalent to lawyers even if they're not called lawyers, and in the modern world they're normally called lawyers.  The Soviet Union had lawyers, for instance, and its not exactly a society that we imagine had a lot of really independent court action.  So you really can't imagine a society without lawyers as society by definition has lawyers.

Shoot, even if you've played Monopoly or something like it as a kid, somebody was some kind of lawyer. ..  the one who knew the rules.

Additionally, the article was written by the prior law school dean, whom I'm a little miffed at.  That dean ended up in a spat with the then president of the university as the president of the university took the position that UW should have a special legal focus on law in the energy sector.  In looking at things that way he was not proposing "no more tort law" or something but he was alive to the fact that smaller land grant schools, and we are one, need to be pretty concentrated on what the heck we're doing or we loose out to bigger universities.  What's special about the UW law school, in other words, that will attract people to it?  He had a concept.  There needs to be one for the academic departments of smaller land grant schools in an era when there's not exactly a shortage of universities and colleges.

This is particularly true of law schools, I'd note, as they're in real trouble (and there's a rosy article on that in this issue, more on that later) and need to have a reason to exist. Since the state boarded the barque across the River Styx by adopting the Universal Bar Exam there's nearly no reason to even have a law school in Wyoming anymore, and the president was giving it a survivable focus, maybe. The the then dean opposed it, and the students, naive to what the UBE means for them in the state, backed the Dean.  It was short sighted.

Anyhow, seeing the cover title,I figured that was what the theme of the issue was.  It clearly wasn't, however.  I'm not sure what the them was, but if there was one, it would seem to be that "things are bad for lawyers."

One article in the magazine was by a lawyer I well know, as we share a common set of relatives. We're not directly related ourselves, but we share so many cousins we might as well be.  I have a set of near relatives in town that fit that definition and if we're not quite family we're something other than simple acquaintances or friends in the conventional sense.  That article was disheartening as it dealt with her adopted daughters struggle with addiction and depression, which caught me by surprise.  I should have known that, but I didn't.  In mentioning it to my son, who was only a year or so behind that individual in high school, he was aware of it and was surprised I wasn't, which is good I suppose.  The article closed with advice to young lawyers to "love deeply", to grow from pain, and not to judge.  The advice to all lawyers was to support other lawyers who need help and to cherish our clients. All good advice, in context, I suppose.

As an aside, I'll note that the article reported that her daughters descent into depression was brought about by marijuana.  I'm not surprised by this, but I am tired of the repeated articles I see by weed fans that there's no risk to it at all.  Baloney.  It's dangerous, and can be very dangerous.

Going back towards the front of the magazine there was an article by the State Bar Counsel, who has an article in every issue. This one, however, was deeply personal and detailed that our bar counsel, who had a very long career prior to taking up that role as a practicing trial lawyer, had been back east at a conference on lawyer well being only to find out that a friend of his, a law school colleague who lived in that state and whom he was going to meet with, had killed himself just days prior to the conference.    Pretty shocking and very sad.

The article concluded with an admonition from that conference about how every lawyer needs to take a role in lawyer well being and to overcoming what the conference holder apparently asserted was denial of a problem.  The article closed with the request that we, i.e., the lawyers, get to work on this.

Well, I don't think lawyers deny there is a problem in the profession.  Indeed, I've heard some lawyers speak of it very, very openly.  But I don't think we're going to do a darned thing about it and I don't even think we can.  If reform is coming, we're not the ones who are going to do it, as it would require a massive reform of the very system itself.  We have no interest in that whatsoever and can't imagine any other system anyway.  It's not that individual lawyers don't have an interest in it, but the system that's eating practitioners alive right now developed over a long course of time and it isn't going away soon.

Indeed, it will take the passing of the entire Boomer generation of lawyers and the one or two that came after them to make it pass and even then that's doubtful  The Boomer generation famously rejected materialistic pursuits, or so they claimed, in the 1960s but they took up the banner of materialism ferociously in the 1970s and have never let go.  It's that spirit that dominates the profession and that's not going to change.  The discussion isn't even about attempting to change it.  All of the discussion about the profession is instead about patching up the wounded to send them back in the battle for the bucks.

Wounded in New Guinea, World War Two.  This soldier likely didn't go home, he likely recovered and went into combat.  Whatever psychological wounds he had he likely carried for the rest of his life.

Its not just the conversion of the legal field from a profession into a materialistic pursuit that created this problem and I don't want to suggest it is, solely. That made it worse.  The very nature of American jurisprudence is very high stress and that leads to the problem of stress induced collapse of all type.  That's my point here.  State Bar programs tend to be addressed towards treating the symptoms and, when the suffering individual is sufficiently able, to send the sufferer back out into practice.  I've never seen any suggestion in any of these articles that the root cause of the problem should in any way be amended.  That is, the articles often note that being a lawyer is "high stress" but I've never seen any article, ever, ponder why the profession of law became so high stress.  Never.

Indeed every single program state bars or big bar organizations have to address what they all now acknowledge is a crisis in the field works this way.  On the occasions in which they run stories about program successes that feature testimonials they tend to be from brave lawyers who are willing to admit that they went through such a problem and went back into practice.  The only other articles we tend to see are the ones from lawyers who flamed out and met with a bad end.  We rarely see American articles from lawyers who crashed and recovered by getting their discharge from the field of combat, although I have read just such an article from a Canadian lawyer who ended up disbarred (or maybe suspended), lost his family, etc., etc., but was actually happy that his career had been terminated.

More often than that, we just deny that anything is going on, which is why nothing will change.  We accept the conditions, whether we should or not, and therefore ought to be pondering what we can do to arm people against them, rather than bemoaning the losses and suggesting that patching the victims up is the solution.

 King David of Scotland knighting a squire. This is, in a way, the way most law careers start out, in the minds of the newly minted lawyers, and in the myth of the law.  But in reality a lot of knights ended up dead, and some went rogue.  If we believe that men in the Middle Ages were like men now, no doubt some lived in horror of what they'd seen and probably some were glad when the Welsh archers found their personal mark.

A strong aspect of this is that we have an adversarial system of justice.  Only nations that have justice systems that descend from English Common Law have this system, and most haven't' taken it anywhere near as  far as we have.  The Common Law trial system itself, as I've noted before, was a substitute for trial by combat and lawyers are substitutes, in that system for Champions, who were (let's admit it) mercenaries.  I'm not criticizing lawyers today when I say that our trial system is a species of combat and lawyers are mercenaries in those battles.  That's the truth of it.  Another truth of that is, however, that being a mercenary takes a toll on the mercenary.  People admire mercenaries only if they're Soldier of Fortune fanboys or the viewers of odd movies, like The Wild Geese or The Dogs of War.  In reality, few people are really thrilled if a mercenary sits down to eat lunch with them.  Same thing is true of lawyers. And fighting for money is corrosive on your personality no matter who you are. There are lawyers who are saints, to be sure, but there are a lot more than are pretty dedicated sinners.  No wonder addiction to drugs, alcohol, gambling, pornography and vice of all types is so strong in the legal field.

 

Mercenaries in the Congo, with rebel troops, 1960s.  Lawyers have more in common with these guys than we'd care to admit and in more ways than one.

And just as patching up a mercenary and sending him back into battle is perfectly possible, just doing that really doesn't address the bigger problem and there's no way within the field to do it.  What are we going to do, as lawyers? Say, geez, this system that we've told the public is the greatest legal system on Earth really isn't?  We're not going to do that.  Most of us don't even know that this isn't the only really functional legal system and would be amazed that most Western nations don't use anything like it and yet have fair legal systems.

There are other advanced legal systems which are fair, just and not adversarial in the same fashion.  We don't know much about them and we aren't going to do anything, myself included, to suggest that adopting them or elements of them would be a good idea.  Nobody is going to stand up, for example, in the next Iowa state legislature and suggest that Iowa model its trial procedure on that of France.  Nope.  Not going to happen.

Not that I won't pitch a few ideas, mind you.

The article by the State Bar President in this issue came about due to an ostensible conversation with his young son, in which that child asked his parent what sort of law he did.  That article starts off with a joke from the President reminding the child that the family needed more doctors, but not lawyers.  I've now heard that joke too many times for me to take it as a joke and I think it reflects conversations that really take place in many households.  Indeed, one lawyer I know with young children keeps a list of other careers taped to his refrigerator for his children to view.  That taps back into another aspect of this, which is the now tired idea that we must make absolutely sure that our children are doctors or lawyers.

Indeed, I know plenty of lawyers who think just this way. "Be a doctor", the advice consistently is. Funny thing is that I hear a lot of doctors complain that their profession ain't what it used to be either, and I believe it.  If there's any profession that has been taken over more by the Siren Call of Money than the law, and I doubt there is, it would probably be the medical field. Be a doctor and make a lot of money is the common theme there.

Of course just saying this makes me sound like some sort of raging radical who would have been in the Petrograd Delusional Club in 1917, which I would not be.   I am in, I suppose the Chestertonian-Beloocian Public House Meeting Society by default.  And in that, I think the evolution of the modern economy as done a huge disservice to mankind.  I'm not in the camp that would urge any child not to attend university as its clear the modern economy has evolved to where that's a practical necessity unless you are the benefactor of a being in a family that's retained some sort of business you can run without doing that, and even then I'd still counsel you to go.  It's unfortunately, to say the least, as we've developed a whole range of jobs, which if statistics are correct, most people actually dislike.  As we've said here before, 70% of Americans dislike their jobs.  Pretty shocking.

In other words, Mike Rowe has a point, but it's a point that most people don't listen to for societal reasons.

Don Quixote, knight errant, which has some analogies to the topic being discussed here today.

Which doesn't equate, I'd note, with what the bar magazine is discussing.  The articles aren't speaking about lawyer satisfaction rates, they're writing about the practice of law eating lawyers alive and urging a Quixotic effort to take that on which we aren't going to do.  Indeed, we frankly aren't even going to look at the things we could do, even those things that wouldn't require a massive overhaul of the justice system itself. Patch 'em up and send them back in. . . everything will be fine.

Indeed, we aren't going to do the one thing that would be really easy to do, which would be to limit entry into the field and attempt to make sure that those entering it know what they are getting into and appear to be psychologically and temperamentally prepared to take what is coming their way.  We don't do anything of that type whatsoever..  We should, but we're not going to. Which takes me to the comments published by the current law school dean in this issue. The dean relates how applications for entry to law schools across the nation have declined over the past few years (which is supposed to be bad) although their up a bit now, but that this is a really good time for people to apply to law school, he says, as it should be easier to get in than ever.

A fine example of how law schools are making the practice of law worse.

This isn't the only way they're doing that, I'll note.  Law school support for the Uniform Bar Exam is widespread and that's massively detrimental to actual practitioners, which most law school graduates ultimately become.  Both stem from the systemic philosophical failure of modern law schools which is the logic that; 1) we need to stay in business no matter what; which means 2) we need to keep churning out graduates at the same rate and; 3) they need to be admitted to some bar no matter how ill prepared, in every since, they are to practice real law.

 Tire production line. . . pretty much the same way law schools view their students.  Not enough demand. . . well somebody needs to buy more cars. . . .

It's a disservice to their students and a disservice to the profession.

And it need not be so.

When I was in basic training at Ft. Sill, Oklahoma, Sgt. Ronald E. Adams, one of our drill sergeants, informed us that he intended to break us down, if at all possible, both physically and psychologically.  He intended to do this, he declared, not because we were bad people if we failed, indeed he said quite the opposite, but rather because if we were going to fail, he'd rather it happen at Ft. Sill in basic training than in combat where other people could be killed when we broke down.  That logic should apply to law school.

It did basically apply to my undergraduate field of geology. 

 

Optical mineralogy lab at the University of Wyoming, circa 1986.  This was the last lab in this major a lot of students in the field would ever take, and not for a cheerful reason.

When I was a geology student at the University of Wyoming we were required to take Optical Mineralogy which was, we knew, a "weed out" class.  It was required for the major and you could only take it twice.  If you didn't get by the class with a grade of D, you were out of the program and could never get a degree with a geology major.  On the first day of class, the professor, Dr. Meyers, asked how many students were taking the class for the second time. A smattering of hands went up, including a couple of hands from graduate students that hadn't had to take Optical Mineralogy in their undergraduate programs from elsewhere (almost no graduate student in the geology department was from UW as UW didn't favor admitting its own students into the graduate program).  Dr. Meyers then noted that these were the people we had to watch as "we fail half this class".

That statement wasn't a joke. The grade in the class was curved and 50% of the class was made to fail no matter how good their grades were.  So grades of C and the like on tests were basically failing grades and even grades that were normally in the B range were barely in the D range.  The grade scale was designed to wipe out half of the enrollment in the class, more or less, considering that quite a few of the people who failed would just give up and not attempt a second chance (grad students had little choice but to attempt it).  Yes, I passed the class.

That wasn't the only geology department class that was a "weed out" class, however.  We had electives in the program we could take, but no matter what we took, at least one additional class would be a tough weed out class.  In my case, it was Invertebrate Paleontology, which I liked a great deal but which had a lab that was a nightmare.  Others took similar classes.  The point was that the geology department wanted to make sure that the students who came through the program stood up to academic rigor before they went out in the field or on to graduate school.

Law schools do nothing like that.

Contrary to what people tend to think, the hardest thing about modern law school has just been getting in, and even that isn't that hard.  The hurdle of getting over the baby steps of the LSAT are regarded as horrors by most law students who have never been through a more rigorous program.  Taking the LSAT twice in order to improve a score is very common when it should be the rule that you get one shot and one shot only.  The LSAT only tests logical thought, that's it, and if you have to actually study for that, you have no business in law school.

For that matter, law schools are a shadow of what they once were in terms of academic rigor and that's been followed up on as state after state has reduced the rigor of their bar exam with many now doing what Wyoming has done and having adopted the Uniform Bar Exam with no state test.

The concept that law school is really tough is common, but it's a breeze.  It can be really interesting, as the law can be really interesting, but  it is not hard, and its less tough now than ever.  At one time students had to worry about the long walk in law schools.  Not much anymore.

The long walk is something that also had an analogy to basic training and the geology department.  They had their own long walks.  In basic training, the long walk was an actual long walk.  When I went through basic training we had three long marches.  The first one was about seven miles, not bad. The next one after that was around fifteen, which is quite a hike with full pack and rifle. But the last one was thirty, which is a really grueling long march.  It started off early in the morning, like about 3:00 a.m., and ended up around 17:00 or so.  If you fell out of the march, you were done for good, discharged or recycled to a basic training unit that hadn't gotten to that step yet.  The concept was to see if you were physically able to endure the physical punishment of being a soldier.

In the geology department the same treatment was meeting out during Summer Field Class.  In that class we worked outdoors on various projects every day, making maps at night.  Part of the class involved following around Dr. Boyd, the same professor who taught paleontology, as he walked at high speed.  He was not a young man at the time, in his seventies if I recall correctly, but he could walk people in their twenties into the ground.  You didn't dare not keep up with him, let along because you needed to be wherever he was when he stopped to lecture.  A certain walk up a hill in the class was legendary and had acquired the nickname, in years prior to when I took it, of "the Bataan Death March", recalling that horrible event from World War Two.  While much of that was simply because Dr. Boyd was incredibly spry for a man of his (or younger) age, it was also to make the point that geology was an outdoor profession and you had to be able to endure the outdoors in order to work in it.

Law school, as noted, has nothing like this.  It should. And at one time, as also noted, it sort of did.

Law school is taught by the Socratic method, which basically means that its taught by debate. AT least it was when I was in law school, but I'm told now that this is increasingly rare and often professors just lecture, which would be incredibly dull.  At one time, students who were not prepared to engage in a debate with a professor were made to march out of the classroom, which was universally regarded as embarrassing.  By the time I was in law school, however, this was extremely rare, although I can recall it occurring at least once.

When I was in law school, however, it was still the case that a student had to be prepared to debate a professor and defined his own views of a case.  And there was sort of a weed out class in the form of some required classes that students took their first year in law school.  Only one of those classes, Contracts, was really hard, but that was only partially be design. The other reason was that the professor was awful.  At any rate, I'm told that today, the lecture style is just that, a lecture.

How boring. . .and ineffective in more than one way.

Okay, so what am I getting at?

We're starting to see a lot of articles about how the problems some lawyers develop later in practice can be traced all the way back to law school.  If law schools exist to train lawyers and prepare them to practice law, they ought to also exist to keep those who should note be doing that from doing it.  But instead they pitch to prospective students with absurd "you can do anything with a law degree arguments, allow a testing entry procedure in which applicants can defeat the test which they take to gain entry by taking it multiple times, encourage applications when they know that the number of jobs are down, and encourage the dilution of bar admission standards by arguing for the UBE.  In short, law schools are graduating students who have no business being lawyers, temperamentally, and they really don't care.

Law schools are not going to self reform any more than lawyers are going to demand a reform to the system of law we are trained in and work in.  If anyone could do this, it would have to be state bars, but they are headed in the opposite direction, drinking the Koolaide of  UBE.  If state bar entrance committees got a clue (not likely) and wanted to act on this problem, they could.

They could do that by requiring, first of all, that only graduates of ABA accredited law schools could apply for admission to the bar of their state, something our bar already does. But beyond that they could have real state specific bar exams that were rigorous and on the law of their states. There's no reason whatsoever that the passage of those exams should be much above 50% and there's no reason that an applicant should get to take it more than twice. . . ever.  And there's no reason to have reciprocity with other states.  That would reduce the number of lawyers to be sure, but (and we'll get to that) that would be a good thing.

That would basically reverse things to the way they were as recently as ten or fifteen years ago in most states, but going beyond that an applicant should have an undergraduate degree in some real academic field and something like "general pre law" or some undergraduate degree with "law" in the title doesn't cut it. Those degrees serve only to get a person into law school and are otherwise fairly worthless if the student fails to gain admission or later seeks to get out of law or must get out.

Likewise, the flood of bogus degrees with no application, including anything that has "[fill in blank here] Studies] is not useful.  How to sort these out is would be chore but a group of smart people like lawyers (assuming that's still the case, and given the flood of applicants and ease of application over the past couple of decades that is not necessarily true) ought to be able to figure that out.  Science degrees, engineering degrees, the classic liberal arts (history, English) etc. would count.  Weight out to be given in application to the hardest undergraduate degrees, say a 10% boost by implication in your LSAT scores.

And, and here's a real kicker, at least 10% of the faculty of any law school from which a student seeks admission from should have practiced law within the past five years.  Law schools tend to be a refuge from the practice of law and are packed with people who don't really know what practicing law is like.  Law school professors should be licensed in the state in which they're teaching, under the criteria noted above.

Finally, in my view, a lot of law schools can just go if they are just churning out graduates. For state land grant colleges like our own, if they aren't serving a need for the state, they can go. And I'm saying that about a school I graduated from.  I'm not saying it isn't serving the needs of the state, but right now I have very real doubts about it.

Would that cure the Lawyer Blues problem?  Probably not entirely.  But a much more rigorous academic program, more difficulty in getting in, and more difficulty getting admitted, would serve a lot of the same purpose that basic training does in the military.  It's a lot better to have students weeded out or broken down while they're at Square State College than it is to admit them and have them melt down while representing clients.  And I've seen that.

Will this occur.  No.  I wouldn't be surprised at this point to see a law school dean argue for admission for everyone who graduates from "Ol Big Square", along with a state provided comfort cat and a box of Twinkies to go with it.

And so, while I"m using on the problem, what else could we realistically do, but we're not?  That is, if we, the lawyers, are watching this train wreck, and we're urged by our state bar to do something, what else could we do, assuming that we're not going to argue for a change in the system of law itself, which we are not going to do (indeed, we're going to do nothing at all, but that's somewhat besides the hypothetical point).

One thing we could also do is require a readmission to the bar at some point.

Now, I'm not suggesting that lawyers retake the exam after a period of time, or at least not the full exam. But I am suggesting that perhaps after a decade or so, and then repeating every decade after that, something be done.  Perhaps a lawyer should have to honestly readmit and with certain representations.  Has he suffered a bar discipline and why?  Has he been having medical or psychological, or legal, troubles?  Is he/she actually practicing law?

Truck drivers and pilots have to have medical certificates to do their jobs.  What about lawyers?  That might be a good idea as well.

Policemen do with most agencies anymore, and they have to undergo, quite often a type of psychological examination.  I know, for instance, that applicants to be game wardens in Wyoming must sit through an interview with a psychologist.  If that's the case for game wardens, why isn't it for lawyers on a decadal basis.  Indeed, why isn't it at the point of admission.

Our state bar doesn't even have applicant interviews anymore, which used to be the final stage of admission.  But ti was deemed to serve no purpose and was long ago omitted. Omitted, I'll note, before the state specific test was omitted.  That probably ought to be brought back. And with it, why not require an interview with a psychologist?  If game wardens and policemen have to do it, why not lawyers?

Well, because we're a self policing bar, that's why, just like most others. And so we will not subject ourselves to that.

And indeed, over time, we've gone to a system that's basically designed to get people omitted, no matter what, after they've gone through a school training ground that's designed to churn them out and keep them in.

And then we wonder why things go wrong?

We recruit them to a field that's very high stress and a species of substituted combat based on lies that a person with a law degree is qualified to do something else, fail to test of their suitable, in any fashion, for the combat we're throwing them into, and fail to check up on them after they're engaged in it. When some fail, we patch them up and throw them back in. 

And we wonder why things go wrong?

Maybe, instead of congratulating ourselves on our wonderfulness on imagining how horrible the world would be without lawyers, we ought to wonder why we put so many of those wonderful lawyers into conditions that a lot of them, just as wonderful people, can't endure.

But we're not going to.

___________________________________________________________________________________

Postscript

If all of this seems somewhat strident, and it likely does, let me note that if I had been at the same conference as our bar council and that question had been asked, I would have had to raise my hand.

That gives me a pretty strong set of opinions on this.

A few years ago I was handling the defense of a client in which the plaintiff was represented by a well known and highly respected plaintiff's attorney who was probably in his early 60s at the time.  I'd known of him, but hadn't met him, prior to that case.

I was surprised in the case by how disheveled he seemed to be.  I was also surprised that he wouldn't attend any of the out of state depositions, which isn't the norm for careful practitioners.  But beyond that it didn't seem to me that anything was really alarming about his behavior.  Then, one day, he called me up, after calling a lawyer who was handling the defense of another defendant in the action, and asked for the vacation of a set of dates.

I really debated granting the extension.  It seemed like an odd request and the case was heading relatively soon towards a set of motion hearings.  But usually we cooperate with each other on things like that, so I reluctantly agreed, although I felt really odd about it.

The next morning the other defense counsel texted me early in the morning. The plaintiff's lawyer had gone home that night and killed himself.  I didn't see it coming.

But maybe somebody could have.

And maybe he shouldn't have been in the profession, or have been allowed to stay in it.  Learning a little bit more about him after that, it seemed that it was well known that he was suffering from depression and he'd lived a truly tragic life.

Self policing bar indeed.

Monday At The Bar: Lex Anteinternet: The Uniform Bar Exam, early tell of the tape. Revisited Again.

 State Bar Admission Committees carefully considering their options as the ABA and law school deans observe in the background with the interest of the average legal consumer in mind. . . oh. . . wait . . .

Posted three years ago after this dereliction of duty became the law here:

Lex Anteinternet: The Uniform Bar Exam, early tell of the tape.: One of the threads most hit upon here is the one on the Uniform Bar Exam .  As folks who stop in here will recall, Wyoming's adoption of...

So the result by now, 2017?

Just as bad, if not much worse, than predicted.  Any long term practitioner in the state is familiar with how this has worked.  New local admittees, unless they are very motivated, come into the practice ignorant on the law of the state.  Admittees from neighboring states, often from big cities, are clueless about the state's law in many instances but practice as if they know it, which is probably what their clients believe.  I've even experienced an out of state lawyer arrogantly telling a Federal jurist that he didn't have to comply with Wyoming's law as he'd complied with the law of the state in which he lived, on a very major matter.  The Court politely corrected him, to its credit.  A lot of judges would not have been so kind.

Why are we sticking with this lousy result?

States carefully pondering what's best for their residents. . . .

Part of it is that its a law of human nature (hmmm. . . . edit to major feature coming up?) to persist with an error until its blisteringly obvious that its a really big error.  There's a certain momentum in human affairs that allows a mistake to get very far progressed before its corrected.  That being the case, perhaps this isn't completely hopeless, although its hard to conclude its not.  In spite of some very erudite commentary warning that the UBE is a bad idea and flawed, and in spite of the protests of practicing lawyers that it should be halted, the UBE is expanding.

And part of the reason for that is that the ABA is boosting it, as are law schools.

The ABA, for some time, has seemingly only had the interests of lawyers in white shoe firms in mind anyhow.  So they worry about things like portability.  Gee whiz, after all, Joe Whiteshoe in Big, Bloated, Bigger, & Bigger shouldn't have to worry about his license as he goes from one metropolis to another to practice, should he.  After all, he's tried a case. . . sometime, and if he has to worry about state bars he might have to hire local counsel whose tried dozens of cases and knows the law.  We can't have that.

Additionally, law schools are backing it.

Now, when the UBE was just passed here we actually had one of our occasional meetings with the (interim) dean of the law school, and she assured us that they'd had nothing to do with it.  I've heard skepticism on this, this very year, but I believe her. But she was honest that had they known it was being advanced they would have backed it, as it would have been conceived of as good for graduating law students.

And the reason it would have been so conceived is that the UBE would give them more options. 

For about 2.5 seconds.

In reality there are more graduating law students in the United States than the US can absorb and for that reason anyone know in law school ought to be thinking of second career options.  Seriously.  The UBE isn't going to save them.  Indeed, what it actually does is to damage the practice in smaller and more rural states and concentrate it in big cities where the costs of operation are high. There's every reason to believe that in the end there will be fewer jobs due to the UBE, not more.   That, by extension, now that licenses are more portable, means that those who graduate from "first tier" schools have a bigger option than they used to.  

It used to always be the case that there were two classes of advantaged law students, those who graduated from "first tier" schools and those who graduated from good state schools.  Good state schools, like Wyoming's, conferred a real advantage on those who attended them as long as they wished to practice in their states, as they had a big edge up on the local law as well as a network of contacts.  Now knowing the local law is necessary for the bar exam and by extension the erosion of some work means that contacts mean less (and the standards of practice are declining while the lawyers treat each other increasingly badly).  In my view this means that a school like my alma mater, the University of Wyoming College of Law, is pretty much unnecessary and an anachronism.

All of that of course is an application of the law of unintended consequences, but that's how these things often go.  A concept developed to aid "portability" instead aids monculture, hurts the local practice and by extension local people.

Not that it can't be stopped.  But will it?

Probably not for some time, or until some state bar is willing to really analyze the situation. . . which is what lawyers are supposed to do.

So. . . why doesn't the ABA oppose the Uniform Bar Exam?

From the ABA news article email:

The ABA is opposing two federal bills that would require states to allow individuals to carry concealed weapons within their borders if they have permits to carry concealed weapons in another state.

The bills pending in the U.S. Senate and House of Representatives mandate national reciprocity for concealed carry permits issued under state law. ABA President Linda A. Klein calls the legislation “a dangerous proposal” that would tie states’ hands in setting concealed-carry standards.

All states allow some form of concealed carry, but standards vary, Klein said. The reciprocity requirement “offends deeply rooted principles of federalism where public safety is traditionally the concern of state and local government,” Klein says in the letters (PDFs) here and here.

If the proposal were to become law, “a state’s ability to consider safety factors—such as age, evidence of dangerousness, live firearm training, or criminal records—would give way to other states’ less stringent requirements,” Klein said. “Unlike some efforts of Congress to create minimum safety standards, this bill could lead to no safety standards as more states enact laws to allow persons to carry concealed firearms without a permit.”
The bills are H.R. 38, “Concealed Carry Reciprocity Act of 2017,” and S.446, “Constitutional Concealed Carry Reciprocity Act of 2017.” Klein sent the letters to leaders of the Senate Judiciary Committee and the House Subcommitee on Crime, Terrorism, Homeland Security and Investigations.

It's hard not read something like this and feel that the American Bar Association is just some sort of liberal organization in which being a lawyer is just a prerequisite.   That the ABA has a position on a firearms related topic at all is hard to fathom.  Predictably, when they have one, its on the left side of the political isle.

Now, I'm not really commenting on this bill at all, and I'll note that there are people on the right side of that isle who are opposed to this bill as they view it as trampling on the rights of state's.  And no matter which way you feel about it, there's something to that view, just  as there's something to the view in favor of the bill. But the ABA?

Come on ABA, if you really cared about "a state’s ability to consider safety factors" you'd come out condemning that farce called the Uniform Bar Exam which Wyoming, and a host of other state, have adopted.

Wyoming has lost 25,000 workers over the past few years and quite frankly some of them are lawyers.  Up here in the state we see out of state lawyers, licensed under the UBE, all the time. The UBE is based on the absurd fiction that the law in one state is just like that of another, and we're seeing that up here, with lawyers from big cities in neighboring states who can't see their way around to Wyoming's law in some instances. That's not good for the state and its not good for the residents of the state either.  The ABA, with its expressed concern for Federalism and the rights of states, ought to now condemn the UBE.

I won't hold my breath.

On the topic of concealment, by the way, I've become increasingly surprised  by how many lawyers carry concealed pistols, and indeed I've become surprised by how many people in general do.  I'd have thought it fairly rare, but it isn't.  It's actually quite common, at least around here.  Firearms in general are so common in Wyoming that a common jesting bumper sticker states "Welcome To Wyoming--Consider Everyone Armed", but it isn't really that much of a joke.  Lots of people carry all the time, including a lot of lawyers, I've learned.  The stereotypes about packing heat are, quite frankly, way off the mark.  Professionals carry pretty commonly, I've come to learn.  And quite a few women do.  Quite a few younger people regard this as highly routine.  Indeed, most of the people I've come to learn carry concealed weapons are such a surprise to me that it actually gives me comfort about the arguments in favor of it, as they're such responsible people.

None of which gets to the actual law proposed above, which again you can argue either way.

Which takes me to another thing that surprised me.  Lawyers are generally more left leaning that other people but reading the reactions to this ABA stand by members of the ABA gives me some hope that lawyers themselves are less lock step than the ABA might suppose.

I've been unhappy with the ABA for some time, which seems to some degree to be attempting to occupy space that would otherwise be taken up by the ACLU, which itself seems to have forgotten its original purpose to me.  And its obsession with "Big Law" is over the top, in my view.  At any rate, ABA members, including ones who don't have any interest in firearms, have been published in reaction to this with some pretty negative comments.  A lot of ABA members feel that the ABA is way out of touch with its purpose.  And I'll note that the UBE connection stated above, while I thought was likely unique to me, isn't.  I saw at least one other comment to the same effect.

A common statement by lawyers, both current and former members of the ABA, is that they've had enough of the ABA and that they have, or are, dropping out. That includes me.  When the ABA goes back to a hard concentration on actual law rather than wasting its time with matters that are social and political policy, I'll reconsider.

Monday at the Bar: Trouble in the legal profession hits the CST.

 Depiction of trial by combat, with combatants properly aligned to give each smiling combatant the advantage of the sun, unbekannter mittelalterlicher Künstler - Dresdener Bilderhandschrift des Sachselspiegels, hrsg. v. Karl v. Amira, Leipzig 1902, Neudruck hrsg. v. Heinrich Lück, Graz 2002.  From Wikipedia Commons.  This work is in the public domain in its country of origin and other countries and areas where the copyright term is the author's life plus 70 years or less.

I've written more than once about the reports of distress amongst legal practitioners here on this site.  Most recently I did that in an item on Alcohol and the Law.  In some of those I've been a little skeptical about what I was reading, but I've reached the point where the evidence seems sufficiently overwhelming (although there are a few doubters) that I'll concede its correct.

Indeed recently I've had a couple of odd instances in which this topic has come up in one fashion or another.  For one, I was sitting waiting for a deposition to commence when an out of state lawyer, a super friendly fellow, started talking about it (the topic came sort of out of the blue and I really don't know how it came up).  He went on a long litany of the statistics, it was like reading a journal article on it, about the topic, going into addictions lawyers have to alcohol, drugs, women, etc. and how destructive it was.  And this from opposing counsel.  I hard knew what to make of it, frankly. 

Anyhow, this past weekend Casper Star Tribune columnist Joan Barron, who is a CST columnist whom I really like, had an article on the Wyoming state program.  I was truly surprised, but I'll give credit to her and to the state bar for trying to publicize what they're doing.  Her article had this interesting set of observations in it:

Some people regards lawyers as rich fat cats in suits who don’t deserve sympathy. Some lawyers are well-off, but the average salary isn’t that stunning.

And they are the professionals people turn to when they are in trouble. They also are the men and women assigned to defend indigents, who have no other options.

Think Atticus Finch of “To Kill a Mockingbird,” admittedly a romantic and idealist portrait of a small-town lawyer. Or the more realistic case of the late Gov. Ed Herschler of Kemmerer, who neglected his solo practice to appeal successfully to the U.S Supreme Court the death sentence of a transient he had been assigned to defend, a man he disliked.

She goes on to detail that there were apparently four lawyer suicides in recent years, of which only one was openly that and the others disguised.  I know the guy who had the open one, and indeed, I was in a hearing against him the day prior in which he asked for an extension in his case, which I agreed to.  I've felt horrible about it ever since as it makes me feel like I opened the door up a bit as it gave that case a window for a replacement lawyer it wouldn't have otherwise.

Anyhow,  the article details the new Wyoming State Bar program, which apparently all state bars or at least nearly all of them now have.  It's good that the state bar has one, but I have to wonder how effective these things are.

That's for a variety of reasons, but I'll be frankly that I have come to view a lot of psychological problems as a combination of environmental and organic.  I'll fully conceded that our DNA's in our fallen state set us up for a lot of problems.  But I also think we've created a world which we're not really very well suited to live in, and that includes, I fear, our legal system.  We have an adversarial system, which is not only well known, but celebrated in the law.  The thesis is that the courtroom substitution for trial by combat of old serves to bring out the truth to the jury.  Maybe it does, although I truly have my doubts about that, but what it also does is to put a premium on combat, and all combat takes it toll on the combatants.

 Wounded British soldiers, World War One.  Note the stare of the man on the bottom left of photo.

I suspect that's in part what happens to some of the lawyers who end up in needing the help referenced above.  Years of judicial combat, financial strains, and simply the everyday pleas for help get to them.  I've known a few that seem to have run into such trouble and did indeed take refuge in the wrong places, booze, women, or whatever.  And I've also known a few who seemed to have developed very harsh personalities.

I won't claim to know what the solution to these things is.  Some people end up seeking help in medicine, and they likely should.  But this all takes me back to something I've mused about here before.  I have to wonder about our having built a world that we don't seem fit to live in, and about also creating, as part of that world, a legal system that seems to be going after the well being of some of those employed in it.  Why are we doing that?

 New York lawyers, 1916.

Addressing the legal system alone, what we should note is that technology and advances in communication, while the law believes that it has improved it, hasn't improved the life of lawyers one bit but, if anything, its made it infinitely worse.  If we go back to the year we've been focusing on so much here recently, 1916, most lawyers would have been either solo practitioners or small firm lawyers practicing locally and relying on the mail for communication. Some would have had phones by 1916, but many would not have. Local affairs would principally have been the ones they were involved with, although as we know from very old entries here even in the early 20th Century some Wyoming trial lawyers had state wide practices.  But in those state wide practices they still had to rely on the mail and they traveled principally by train, and occasionally by horse.  

That's quite a bit different from what I see now all the time, which is lawyers flying across country to attend one thing, and checking on others from their Iphone while they are there.  

Technology can't be put back in the box.  But things can be done.  And one of those things is to recognize that law, like politics, is all local. And that would mean discouraging or even preventing the erasure of the the state borders in the practice of law.  But the trend is going the other way.  Our Supreme Court has been complicit in flooding the state courts with out of state lawyers who are sometimes hyper aggressive while also not understanding the local rules and customs.  It's dragging the practice down a level or two and not aiding the practice here a bit.  A partial fix to this problem would be to restore the old rules that you can only practice where you have actually passed a real state bar, not something like the UBE, and that you must actually have some business connection with the state where you are practicing.

Additionally, maybe something should be done to take a page out  of European systems that are more inquiry based than ours.  If litigation is a search for the truth, maybe it ought to actually be a search for the truth.

Finally, maybe something has to be done about he process of legal education.  Indeed, this gets us to the topic of education in general, but again and again I'm struck by how we have a system that's largely designed to recruit the ignorant and burden them with expenses while being educated by individuals who know very little about actual practice. That has to mean that there are people recruited who are not suited for the endeavor.  Once a person is out of law school they're qualified to do exactly one thing, and one thing only, practice law.  Maybe they ought to have a taste of that practice simply as a qualifier to even enter law school, before they do.

Monday at the Bar: The ABA and the UBE

Truly, ABA, do any of you practice law outside of the East Coast big cities?

Two ABA items from awhile ago, that I'm just getting around to posting now:

1.  Could Uniform Bar Exam help law grads' mobility? ABA House asks states to adopt it 'expeditiously'

Who, really, cares. The grads, surely, but the bar exam doesn't exist to aid them, it exists t hinder them and protect the public.

It's funny that a society that worries, in some instances, about firearms "mobility" doesn't worry that much about lawyers moving from state to state with no hindrance, even though they can really do the damage.

2.  The UBE Poll, posted more than a bit late.