Table Of ContentGLASS HALF FULL
•
GLASS
HALF FULL
•
THE DECLINE AND REBIRTH
OF THE LEGAL PROFESSION
BENJAMIN H. BARTON
1
1
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide.
Oxford New York
Auckland Cape Town Dar es Salaam Hong Kong Karachi
Kuala Lumpur Madrid Melbourne Mexico City Nairobi
New Delhi Shanghai Taipei Toronto
With offices in
Argentina Austria Brazil Chile Czech Republic France Greece
Guatemala Hungary Italy Japan Poland Portugal Singapore
South Korea Switzerland Thailand Turkey Ukraine Vietnam
Oxford is a registered trade mark of Oxford University Press
in the UK and certain other countries.
Published in the United States of America by
Oxford University Press
198 Madison Avenue, New York, NY 10016
© Oxford University Press 2015
All rights reserved. No part of this publication may be reproduced, stored in a
retrieval system, or transmitted, in any form or by any means, without the prior
permission in writing of Oxford University Press, or as expressly permitted by law,
by license, or under terms agreed with the appropriate reproduction rights organization.
Inquiries concerning reproduction outside the scope of the above should be sent to the Rights
Department, Oxford University Press, at the address above.
You must not circulate this work in any other form
and you must impose this same condition on any acquirer.
Library of Congress Cataloging-in-Publication Data
Barton, Benjamin H., 1969– author.
Glass half full : the decline and rebirth of the legal profession / Benjamin H. Barton.
p. cm.
Summary: “A counterintuitive and optimistic reconsideration of the crisis in the American legal
profession”— Provided by publisher.
ISBN 978–0–19–020556–0 (hardback)
1. Practice of law—Economic aspects—United States. 2. Lawyers—United States—Economic
conditions—21st century. 3. Legal services—United States. I. Title.
KF315.B37 2015
331.7’613400973—dc23
2014042512
1 3 5 7 9 8 6 4 2
Printed in the United States of America on acid-free paper
CONTENTS
••
Acknowledgments vii
1. Introduction 1
PART I: THE MARKET FOR LAWYERS
2. Birth, Death, Rebirth, Near Death: American Lawyers
from 1776 to 1950 19
3. From Boom, to Two Professions, to Big Law’s Slump: American
Lawyers from 1950 to the Present 33
4. Death from Above: Big Law Stumbles 55
5. LegalZoom and Death from Below 85
6. Death from the State: Tort Reform, Judicial Hostility,
and Budget Cuts 105
7. Death from the Side: More Lawyers Fight for Slices
of a Smaller Pie 121
v
vi CONTENTS
PART II: LAW SCHOOLS
8. A Brief History of American Law Schools 133
9. The Bleak Present and Near Future for Law Schools 153
PART III: BIG PICTURE AND THE GLASS HALF FULL
10. Big Picture and Parallels 173
11. The Good News for American Consumers 191
12. The Profession and Law Schools That Emerge Will Be Stronger
and Better 215
13. Conclusion 231
Notes 243
Index 303
ACKNOWLEDGMENTS
•
I received a great deal of help in writing this book. Glenn Reynolds and
Brannon Denning talked over much of this material with me during
lunches and happy hours and then they read and rewrote swaths of
the book for me. Their thoughts on the legal profession and law school
are ever-present in these pages. Ashby Jones, Nancy Levit, Russell
Pearce, Dana Remus, and Deborah Rhode all edited multiple drafts
and sharpened my work immeasurably. I am also extremely grateful for
comments from my colleagues Wendy Bach, Doug Blaze, Iris Good-
win, Paula Schaefer, Maurice Stucke, Penny White, and David Wolitz.
The University of Tennessee College of Law is a great place to work.
The book is based in part upon a paper I presented at George Mason
University’s Unlocking the Law Conference, which was a celebration of
the scholarly work of the late, great Professor Larry Ribstein. I learned
much from Larry about these topics and the life of a legal scholar. The
comments and reactions at the conference inspired this book. Bruce
Kobayashi, Bill Henderson, Thomas Morgan, Todd Henderson, and
Daniel Currell were especially helpful.
My family was enormously supportive. My wife Indya read and ed-
ited the book and cut me a lot of slack as I wrote. The book is dedicated
to my two lovely daughters Dahlia and Georgia.
vii
viii ACKNOWLEDGMENTS
I have always been lucky to have excellent student research assistants
and this book was no exception. Thanks to Mason Smith, Sarah Wat-
son, Robert Wheeler, and Anna Xiques for their work. Last, but not
least, Dave McBride of Oxford University Press was a great believer
in this project from the start and guided me through the process with
kindness and patience.
1
•
Introduction
CHARLES DICKENS WROTE Bleak House as a serial in the 1850s and pub-
lished it as a single volume in 1853.1 It is a blistering assessment of the
English Chancery system and remains one of the most trenchant cri-
tiques of the common law system. It is also, like most Dickens serials,
a ripping good yarn.
Given the bewildering series of technological and societal changes
over the last 160 years, there is something remarkable about Dickens’s
portrait of lawyers in Bleak House: it is utterly familiar to a modern
reader. Chapter 1 takes us on a tour “In Chancery.” Dickens describes
the Judge (the Lord High Chancellor), the lawyers (barristers), and the
various court hangers-on. At the end of the chapter the Chancellor
interrupts a lawyer—aptly named Mr. Tangle—to see if he has almost
concluded his argument in the never-ending case of Jarndyce and Jarn-
dyce. Mr. Tangle responds “Mlud no—variety of points—feel it my
duty to submit—ludship” before the Chancellor cuts him off for good.2
Similar scenes recur every day in courts all over the United States
of America. Individual lawyers, representing clients by the hour, ap-
pear in person before judges to make arguments based upon a “variety
of points.” If Mr. Tangle visited a contemporary court he would be
puzzled by cell phones, iPads, and laptop computers, but as soon as a
lawyer stood and addressed the court Mr. Tangle would know exactly
what was happening.
Bleak House portrays a legal profession little changed from then
to now. Dickens describes lawyers meeting in person with clients, or
1
