the Future of Change

I had the distinct pleasure of publishing a new piece with the Boston University Public Interest Law Journal entitled “Re-Rekindling the Spirit of Public Service: Institutional Fit and a New Lawyer Professionalism.” You can download it here. The admittedly long abstract is below. This work also digs into many of the themes I explored in Lawyer Nation: The Past, Present, and Future of the American Legal Profession (NYU Press, 2024).

In 1984, the American Bar Association embarked on an effort to “rekindle” a spirit of professionalism arguing the profession was failing to live up to what the organization’s leadership believed were its highest ideals. Just twenty-five years later, the ABA would create a new commission once again addressing the perceived lack of professionalism in the profession. More recently, as lawyers supported an effort to overturn the results of the 2020 election, and others have capitulated to demands of the Trump Administration that they refrain from challenging the Administration, it is causing many to, once again, question the professionalism of the profession. But complaints about the American legal profession’s lack of professionalism predate the formation of the nation itself and have resurfaced throughout the history of the nation—and the profession— ever since. Some of these criticisms of the profession include: that it serves wealthy clients at the expense of the greater community, that it is little more than a money-making trade, that it regularly fails to ensure access to justice for all who require legal assistance to solve their legal problems, that it has historically discriminated against many different populations, and that it has failed to defend democracy and the rule of law. Despite modest efforts at reform to address these criticisms over the years, the profession still faces significant challenges. Indeed, today the profession faces a range of criticisms and threats, including ones that echo many of these crises of the past. But the profession also faces another significant threat: the advent of new technologies that might displace many traditional lawyer jobs and perhaps create an even more deeply entrenched two-tiered system of justice. I submit that the criticisms over the years have often been, at their heart, arguments that the profession is failing to exhibit appropriate professionalism within a pluralistic, democratic society that is supposed to be governed by the rule of law. What is more, when the profession has instituted modest efforts to address its challenges, the reforms it has adopted have often failed to address the underlying issues and practices that led to those challenges in the first place. The reason for the inadequacy of these reforms is that they have been too-often animated by a “thin” version of lawyer professionalism. I argue here that it is a robust and multi-faceted professionalism that will help the profession rise to the challenges it faces at present.  Not a “thin” version of professionalism focused on civility or skills training alone, but instead, a “thick” version of professionalism that goes beyond the bare minimum of what we can expect from lawyers to encompass far broader concepts. It is these latter concepts that I posit are necessary for the profession to find its way through the challenges it and the nation face at present, and those we will most certainly face in the future. Borrowing from new institutionalist scholarship in the environmental context, I will use the concept of “institutional fit” to chart out what should be the contours of this thick version of professionalism. Using institutional fit as a methodology helps to align ecosystems with the institutional arrangements that govern their management. Here, I will use this analytical tool to not just describe the legal ecosystem within which the American legal profession operates, but also to identify the appropriate professional institutional practices—the norms, habits, and behaviors—that align with the needs of this ecosystem to ensure it can function in a way that will secure not just the profession’s long-term viability and sustainability, but also the continued vibrancy of American democracy itself.