Robert W. Gordon

The American Legal Profession, 1870–2000

This chapter deals with two broad topics. One is the “legal profession,” the formal institutions and organizations through which associations of lawyers seek and exercise state authority to regulate training for and admission to their guilds, to enforce their rules against members, and to protect their privileges against outsiders. The other and much broader topic is that of lawyers themselves, the people and occupational groups who make up to the profession, their work and social roles and their social standing, economic condition, and political influence. In the United States all lawyers have since the Revolution formally belonged to a single, unified profession, licensed by the states where they practice. There are no official ranks or specialties of lawyers, such as the English distinction between barristers (trial lawyers) and solicitors; the French among avocats, avoues, conseils juridiques , and notaires ; or the German between the private profession of advocate and the public professions of civil servant, prosecutor, and judge, each calling for a different training, examination and career path. But in reality the legal profession is many, not one: a collection of occupational groups that work at very diverse practice tasks, enjoy very different levels of status and income, and play very different roles in the economy, politics, and society.

The Role of Lawyers in Producing the Rule of Law: Some Critical Reflections

INTRODUCTION For the last 15 years, American and European governments, lending institutions led by the World Bank, and NGOs like the American Bar Association have been funding projects to promote the “Rule of Law” in developing countries, former Communist and military dictatorships, and China. The Rule of Law is of course a very capacious concept, which means many different things to its different promoters. Anyone who sets out to investigate its content will soon find himself in a snowstorm of competing definitions. Its barebones content (“formal legality”) is that of a regime of rules, announced in advance, which are predictably and effectively applied to all they address, including the rulers who promulgate them — formal rules that tell people how the state will deploy coercive force and enable them to plan their affairs accordingly. The slightlymore-than barebones version adds: “applied equally to everyone.” This minimalist version of the Rule of Law, which we might call pure positivist legalism, is not, however, what the governments, multilateral lenders and NGOs have been promoting. All of the active projects have some specific substantive and institutional content. Multilateral lending institutions (development banks) have tended to favor the general position — loosely traceable to Max Weber and Douglass North in one version, and to Milton Friedman and Friedrich Hayek in another — that well-functioning markets require the support of a framework of clearly defined and effectively and predictably enforced legal rules and rights. At the height of the so-called Washington Consensus in the 1990s, neo-liberal promoters stressed in particular that the Rule of Law protects property rights, especially in foreign direct investment,

Commercial Pressures on Professionalism in American Medical Care: From Medicare to the Affordable Care Act

Since the passage of Medicare, the self-regulation characteristic of professionalism in health care has come under steady assault. While Canadian physicians chose to relinquish financial autonomy, they have enjoyed far greater professional autonomy over their medical judgments than their U.S. counterparts who increasingly have their practices micromanaged. The Affordable Care Act illustrates the ways that managerial strategies and a market model of health care have shaped the financing and delivery of health care in the U.S., often with little or no evidence of their effectiveness.

Taming the Past: Essays on Law in History and History in Law

Lawyers and judges often make arguments based on history - on the authority of precedent and original constitutional understandings. They argue both to preserve the inspirational, heroic past and to discard its darker pieces - such as feudalism and slavery, the tyranny of princes and priests, and the subordination of women. In doing so, lawyers tame the unruly, ugly, embarrassing elements of the past, smoothing them into reassuring tales of progress. In a series of essays and lectures written over forty years, Robert W. Gordon describes and analyses how lawyers approach the past and the strategies they use to recruit history for present use while erasing or keeping at bay its threatening or inconvenient aspects. Together, the corpus of work featured in Taming the Past offers an analysis of American law and society and its leading historians since 1900.

Internal versus external control as related to performance in two-choice probability learning☆

Abstract The experiment examined the relationship between belief in internal versus external control of reinforcement, as assessed by Rotters Internal-External (I-E) Scale, and performance in a two-choice probability learning task. On the basis of their I-E scores, 138 female undergraduates were equally divided into High (external), Middle, and Low (internal) Groups. These three groups were found not to differ with respect to gross learning or recency effects. However, a more detailed analysis of the Markov characteristics of asymptotic responding indicated that significantly more Externals than Internals had made their choices in a “random” manner as defined by either (a) independence of successive responses or (b) goodness-of-fit of response sequences to the sequence of events. This latter result was compatible with the idea that Externals are “chance-oriented” and Internals are “skill-oriented.”

A Collective Failure of Nerve: The Bar's Response to Kaye Scholer: [Commentary]

William Simons searching analysis of the Kaye Scholer affair and especially of the legal professions response to the Office of Thrift Supervisions (OTSs) proceedings against Kaye Scholer, throws a brilliant light on how business lawyers deal, and how respectable elites of the bar think they should deal, with clients who are engaged in ventures of doubtful legality and anxious to conceal them from official monitors and affected outside parties. Simons report is deeply disturbing. He makes a strong case that many segments of the legal profession reacted to the Kaye Scholer episode in ways that raise serious questions about the bars commitments to its professed ideals and capacity for self-regulation. Among the most important work of corporate lawyers is compliance counseling: advising clients how to structure their affairs so as to avoid problems with government authorities or exposure to civil liability, and preparing the paper that will serve that end. Except for the final stage, transmitting the paper to the authorities, this work is done in secret, out of the public view or the oversight of judicial or regulatory monitors. What lawyers and their clients say to one another is protected by privilege or work-product doctrines and professional obligations of confidentiality. It is thus only in extraordinary circumstances, such as a criminal investigation, litigation following a scandal, or a whistle-blowers revelation of confidential documents, that any outsiders ever find anything out about what kind of advice business lawyers give their clients.

Justice Oliver Wendell Holmes: Law and the Inner Self@@@The Legacy of Oliver Wendell Holmes, Jr.@@@Holmes-Sheehan Correspondence: Letters of Justice Oliver Wendell Holmes, Jr. and Canon Patrick Augustine Sheehan

Oliver Wendell Holmes, Jr., distinguished American jurist, and Patrick Augustine Sheehan, an Irish clerical-savant, enjoyed a warm and notable friendship based largely on their exchange of letters from 1903, when they first met in Ireland, until 1913, the year of Sheehans death. This correspondence illuminates what is otherwise a largely hidden and little appreciated side of the mind and faith of Justince Holmes. Sheehan was able to draw from his friend an awareness and s ympathy for human frailty and its counterpoint, faith in a divine plan of earthly things, thoughts and feelings that surfaced in letters to other of his friends. The importance of this edition of the Holmes-Sheehan letters rests in the first instance on this discovery. But Canon Sheehan wsa no mere foil for Holmes as they discussed with equal insight issues as varied as the economic man and the age of faith, of classical works, including Dantes Divine Comedy and Pascals Pensees. Holmes discovered in the Canon a man of the most profound faith who remained open and tolerant of the beliefs and non-beliefs of others. He is better understood because of his affection for Sheehan, and, no less telling, because of the Canons admiration for him. Gary J. Aichele in Oliver Wendell Holmes, Jr.: Soldier, Scholar, Judge finds this set of letters perhaps the most unusualof any collection of Holmes correspondence published to date.