In the fifteen years since we initiated this comparative sociology of legal professions a great deal of scholarship has appeared. This chapter reviews four major theoretical orientations: market control, competition between professions over knowledge-based jurisdictions, the ideal of professional independence, and economic interpretations. THE CENTRALITY OF THE MARKET In 1980, six years after I began teaching about American lawyers, I was drawn into comparative sociology by an invitation to a conference on the Final Report of the Royal Commission on Legal Services. During the following decade, I continued to address the issues implicated in the title of my contribution to that conference, The Politics of the Market for Legal Services, a paper that was strongly influenced by Magali Sarfatti Larson s historical sociology of a wide range of professions in England and the United States.One of the many paradoxes of market economies is that they drive actors to seek to neutralize competition, even though this is their essential ?energizing force. Only the most desperate recent immigrants to a city or nation and new entrants to the market remain exposed to unrestrained competition. They must accept employment without the support of a union or protective legislation or embark on entrepreneurship that requires neither formally certified skills nor capital investment: peddling, prostitution, gardening, housekeeping, baby-sitting, window washing, house painting, taxi driving. Refuge from the buffeting force of competition can take many forms: controlling a market , becoming a salaried worker for a large employer , securing a patent , making large capital investments . In rare instances the sanctuary is almost perfect: the De Beers diamond cartel, or the numerus clausus of some European notaries. Those who sell services may find these strategies less effective than do those who manufacture products. There are no raw materials to corner, capital investment tends to be low, and, until recently, their intellectual products have been unprotected by law. The first step is to persuade potential consumers that the service is both valuable and too difficult for them to perform. As judges and prominent members of the legislature and executive, they can use state power to grant an exclusive jurisdiction to legal institutions , complicate the task beyond lay competence, and even award themselves a legal monopoly . Having commodified legal services, lawyers must limit the number of producers by prohibiting lay competition and regulating entry to the profession by establishing educational qualifications and economic barriers, requiring apprenticeships and examinations, and by limiting opportunities to practice.This concept of the professional project, adapted from Larson, can lead to several misunderstandings. It does not require deliberation or conspiracy although lawyers and other professionals, in desperation or at unguarded moments, often expose their self-interested motives.tions with professionalism. Some commentators objected that lawyers in declining professions seemed to be doing surprisingly well economically, politically, and socially. I am concerned with the dramatic changes in the structure of legal occupations: the increase in market control from the nineteenth to the mid-twentieth century and its erosion in recent decades.Some of the chapters in the original volumes on the legal profession in other countries adopted the framework I advanced in my chapters on England and the United States and my attempts at synthesis. As early as the seventeenth century, advocates sought to limit their numbers and raise their social status by requiring a written examination in civil law, a thesis written in Latin and defended in Latin before the entire faculty, and a public lesson in Latin to the Court of Sessions. Dismayed by their increasing numbers in the late nineteenth century, Writers to the Signet imposed a 500 entrance fee, a five-year apprenticeship, and the requirement of a liberal education. As late as 1980 the profession added the requirement of a one-year Diploma in Legal Practice, knowing that government would only fund 410 places. Paterson acknowledges that qualification as an advocate is still limited by the requirement of an unremunerated nine months as a devil followed by another nine months without income. Moreover, some of his rebuttals seem insubstantial: Scottish solicitors lack a monopoly over the administration of estates or conveyancing of real property because others can do these tasks without pay! If common law professions are united by the necessity to mediate the relation of their members to the market, civil law professions have experienced a different history in their relations to private employers, the university, the state, and, therefore, the market.those institutions separated from the Church. Indeed, the several categories of law graduates judges and prosecutors, civil servants, corporate employees, advocates, notaries and so on do not see themselves as a single profession and even lack a common name.But although I acknowledge that Larson s framework, developed to analyze the United States and England, is inappropriate for the histories of Continental European legal professions, there is evidence that common and civil law professions are converging as a concomitant of the globalization of the economy. Many of the divisions within civil law professions are disappearing, while the centrality of private practice in common law professions is being eroded by the growth of public and private employment. And civil lawyers have had to adapt some of the traits of common law competitors or risk losing their most lucrative work. Even lawyers in the former communist world, who are doubly removed from common law lawyers by their civil law heritage and state-dominated economy, are exhibiting the struggle for market control. Although Michael Burrage continues to deny the centrality of the market, his observations on the contemporary Russian advokatura resonate well with Larson s theory. Eastern European countries such as Poland, Hungary, the Czech Republic, and Slovakia are witnessing contests between advocates and jurisconsults to service the newly privatized economy. Although Terence Halliday tendentiously titled his book about the Chicago Bar Association Beyond Monopoly, lawyers and other professionals remain deeply concerned about their relation to the market. English solicitors have strenuously fought to retain their monopoly over conveyancing , and, in turn, have challenged the Bar s monopoly of advocacy in the higher courts. More than half a century after the American legal profession erected the present entry barriers, it continues to repel new challenges. The administrators of the bar in the nation s capital became concerned that law graduates were finding easy admittance to the District of Columbia bar through the Pennsylvania bar exam: Those who correctly answered 133 of the 200 multiple-choice questions on the multistate examination gained exemption from ?the essay portion. The District resolved to eliminate this loophole while shaming Pennsylvania into requiring entrants to pass the essay examination as well. About the same time the American Bar Association refused to accredit the Massachusetts School of Law, rejecting the argument that it cut tuition to less than half that of elite law schools used practitioners as adjunct professors and electronic data bases and interlibrary loans to save the large capital investment in law books.The health care industry exhibits even more numerous and intense battles over turf as subordinate occupations challenge the dominance of doctors. In Arizona today, however, nurse practitioners can make their own diagnoses, charging thirty-five dollars a visit, and can write prescriptions; twenty other states also allow nurse practitioners to write prescriptions.S. A 1993 study by the American Nurses Association found that nurse practitioners gave more accurate diagnoses and took more comprehensive medical histories than doctors. The American Medical Association s senior vice president for medical education dismissed these studies as inconclusive because they looked at a limited number of services : We draw our sword and make our line in the sand at nurses practicing independently. Nurses are making inroads elsewhere, especially areas in which doctors apparently have little interest: women s health, service in rural communities, care for urban homeless. Yet the AMA insists that replacing physicians with lesser prepared personnel may increase the medical risk to patients and the ultimate cost of care. Medical association PAC fundraising brochures refer to all competitors as quacks and warn, Don t let reform fowl up health care. Optometrists, psychologists, pharmacists, and physician s assistants seek the right to prescribe medicine. Yet the California Medical Association continues to justify its opposition to increasing nurses responsibility in terms of the extraordinarily large differences in educational requirements. In developing my theoretical framework I argued that the market imperative compels service producers to seek not only to control supply but ?also to stimulate demand. The latter strategy has grown in importance as supply control has eroded with the expansion of university education , movements for gender and race equality, and attacks on restrictive practices. Yet English solicitors, who sneered at American cowboys for advertising and contingent fees, now indulge in the former and flirt with the latter. Law enjoys distinct advantages in creating demand, just as it does in controlling supply. The revolving door between government and private practice allows lawyer regulators to turn around and sell their knowledge of how to evade the law . Fame as an innovator often brings repeat business, as did the first poison pill defense to a corporate takeover and the first successful palimony claim.Yet demand creation has significant drawbacks, which may explain the reluctance of many lawyers to engage in it. What the profession touts as altruism can appear to outsiders as self-interest, especially given the deep public ambivalence toward the act of litigating and the content of many legal rights. Some forms of demand creation also tend to concentrate demand and thus the dependence of producers on corporate consumers or governmental third-party payers . Common law professions display an increasing commitment to creating demand.The profession remains deeply ambivalent about such activity, however. A New York lawyer had to sue his bar association to obtain permission to use client testimonials, which only three other states allow. A decade after their fourteen founders met secretly for the first time, the National Association of Law Firm Marketing Administrators has a thousand members, who compete for the ABA s Dignity in Advertising awards. A personal injury lawyer in Birmingham, Alabama, promoted himself by emblazoning his name on wrist watches, baseball caps, and chairs donated to churches and by offering bumper stickers warning: BACK OFF! He went too far, however, when he sent a twenty-five dollar wreath to the funeral of a nineteen-month-old baby who died when a day-care worker left him in a closed van for four hours. He was suspended for two years. Even the American Trial Lawyers Association, whose 65,000 members have the greatest interest in seeking individual clients, was so embarrassed after several prominent lawyers flew to Bhopal that it passed a resolution condemning lawyers who go, uninvited, to the scene of a disaster and advertise for prospective clients. A District of Columbia lawyer who had rushed to both Bhopal and the DuPont Plaza fire in San Juan responded contemptuously that the ATLA leaders would love to wake up and find they d gone to Harvard and been asked into a partnership at Cravath, Swaine Moore. The California Trial Lawyers Association has sponsored a bill that would significantly restrict television advertising. Parker, who makes extensive use of that medium, complained that those country club lawyers don t like guys like me taking cases from them. Health services providers have been pioneers in stimulating demand, perhaps because the potential rewards are so enormous. Public relations firms, representing 60 percent of Los Angeles doctors and all New York hospitals, ensure that their clients appear in newspapers and on television. A New Orleans urologist sent a Time magazine article about a new prostate cancer test to all his patients with a note proclaiming: We offer this! Doctors ordered tests at laboratories in which they had a financial interest until Medicare refused reimbursement. A General Accounting Office study found that doctors were three to five times more likely to order CAT scans, MRIs, ultrasound, and other diagnostic procedures when they had invested in the firm providing the service.equipment at your fingertips and you operate it yourself, you have complete confidence in the results, and you re more likely to use it.... the real issue for patients is whether they will get the tests they need, not whether they are getting too many. T Medical Inc. has been helping doctors set up home health care companies, promising profits of up to 20,000 a year from referrals for an initial investment of about 3,000. Medicare and Medicaid, however, have stopped reimbursing for physical therapy, radiology, home health services, or hospital services in which the doctor has an interest. Nevertheless, Tokos Medical Corp. Deal program, in which doctors invest in companies leasing its fetal monitoring device and get 15 percent of the payments from patients for whom they prescribe it. Although pharmaceutical companies long have offered doctors incentives to prescribe their products , they now seek to speak directly to consumers. The National Mental Health Association ran a media campaign to increase public awareness about depression, without revealing that it was paid for by Eli Lilly and Co., the makers of Prozac. The Marion Merrill Dow Pollen Forecast Hotline not only gave pollen counts to allergy sufferers but also warned that over-the-counter medicines, unlike its own, could cause drowsiness. CIBAGeigy pushes Actigall for gallstones; only the small print reveals that the expensive pills must be taken twice daily for years and fail to dissolve most gallstones. Upjohn promotes Rogaine for baldness and Seldane for allergies.A wide variety of commentators on the professions have made the market the core of their analyses, focusing on efforts at social closure, endogenous and exogenous influences on supply and demand, and the growing role of the state in subsidizing consumption. Nevertheless, critics of the original volumes of Lawyers in Society have advanced a number of objections to market control theory. Several felt I overemphasized the economics of social closure while neglecting the other dimension of Larson s professional project collective mobility.starting point an attempt to understand American lawyers, who were preoccupied for decades with material improvement, which they pursued through state bar associations. In the summer of 1993 a disgruntled former client went on a rampage in a San Francisco law firm, killing three lawyers, a law student, a legal secretary, a client, two trust company employees, and ultimately himself. The California State Bar president responded with a call for a cease-fire on lawyer jokes, which were nothing more than hate speech. He also advocated heavier penalties for ordinary crimes when the victims were lawyers . Opposition from professional associations to law firms engaging in ancillary practice or lawyers entering multidisciplinary partnerships appears to be motivated less by economic concerns than by the fear of losing status from being subordinated to the much larger, better organized Big Six accounting firms. Mark Osiel and Michael Burrage go much further, insisting that the professional project was exclusively concerned with status and indifferent to money. In a capitalist society, personal impoverishment tends to undermine professional status , and the acquisition of wealth confers its own status . Others have criticized the notion of a project for treating the profession as too monolithic and for obscuring internal tensions. I not only agree but also feel that the identification of professional fractions helps explain the interplay between market control and collective mobility . Ronen Shamir, refining Christine Harrington, has made a convincing argument that upper and lower strata American lawyers displayed very different reactions to the emergence of the regulatory state during the New Deal. Solo practitioners, suffering both falling demand during the Depression and growing numbers as legal education expanded, sought to bar nonlawyers from practicing administrative law. Elite lawyers, who derived more business from regulation, sought to judicialize administrative action to preserve the symbolic integrity of the rule of law. Some personal injury lawyers demand the right to chase ambulances, while their professional organization, ATLA, seeks to distance itself from notorious vulgarity.emerges in Seron s finding that younger lawyers, generalists, and those in the inner city favor advertising, whereas older lawyers, specialists, and suburban practitioners oppose it. II.The most ambitious revision of sociological theories of the professions since we completed our comparative project is Andrew Abbott s emphasis on the relationship between knowledge and jurisdiction. Abbott makes two claims: interprofessional competition for market shares is the central feature of the system of professions; and competition is conducted through the medium of knowledge claims. It directs attention away from the social structural characteristics professions share with other occupations and toward the distinctiveness of what professionals do. Abbott thereby problematized the structural-functional claim that professionals deploy expertise, just as social closure theory problematized the structural-functional claim that self-regulation was necessary and sufficient to ensure quality and altruism. At the end of our three volumes we commended such a redirection, and we welcome the studies that have begun to emerge. Many concern the ways in which lawyers transform client experience and motivation into legal claims and remedies mostly in family disputes, but also in commercial matters and civil litigation generally.Competing claims to knowledge often illuminate fluctuations in the market for legal services: for instance, the rivalry between English solicitors and accountants since the mid-nineteenth century, the success of employed German jurists in retaining their role in banking while being reduced to paralegals in the insurance industry, the efforts of Rechtsanw ilte to retain corporate work, and the campaign by Parisian judges to expand their role in economic disputes. I do have reservations about Abbott s theorization, however. More than twenty years earlier two French sociologists stressed the importance of knowledge in analyzing university hospitals, as did two American lawyers in mapping competition between lawyers and others in the United States and England. As Abbott clearly states, professional jurisdictions tend to be entrenched for lengthy periods, both in law and, to a lesser extent, in public opinion. ?Third, it is very difficult to ascertain what professionals know and how they are using that knowledge. The elusiveness of any independent measure of knowledge tempts the analyst into circularity and tautology the attribution of knowledge to professions that have secured their jurisdictions. Mark Osiel, for instance, asserts that common lawyers enjoy a broader jurisdiction than their civilian counterparts because the former must exercise practical judgment in the absence of code and theory.The theory of social closure insists that professions justify their anti-competitive practices by demonstrating a connection to quality. Because knowledge claims are so hard to test, theorizations based on them can lose their critical edge , lapsing into structural-functional complacency. Lawyers... Sterett maintains it is clear that whether or not practitioners study or use the law, society does expect and take account of some presumed expertise. Halliday ascribes the authority of professional organizations to knowledge mandates. But lawyers may actually speak jabberwocky and claim knowledge that is either factitious or irrelevant. He consistently characterizes professional knowledge as a social construct, offering a nuanced analysis of how knowledge claims are advanced and challenged, succeed and fail. Others have described the role of professional ideology in shaping and defending jurisdictions and the differences between knowledge claimed and deployed by both teachers and practitioners. Perhaps the best antidote to mistaking professional pretensions for proficiency is to look at the knowledge actually deployed.The 4th I.A.C.D.Continuing Education credits for medical professionals CME approved 7.5 hours for physicians, Category I; CEU approved 7.5 hours for Registered Nurses; Certificates issued to all conference attendees. Lectures understandable to the General Public. ?RAYMOND A., M.D., Ph.D., Author of Life After Life, Reflections on Life After Life, The Light Beyond and Reunions.KENNETH RING, Ph.D.BRUCE GOLDBERG, D.D.S., M.S.DONINGA L.D.CLAUDIA JENSEN, M.D.SUSAN STORCH, RN, BSN, M.A.A.The rapid expansion of the global economy is creating new markets for professional services, which offer an excellent opportunity to test theories about knowledge and jurisdiction. Yet for all but the smallest legal professions, transnational practice will remain an esoteric specialization, preoccupying only a small minority of members . Globalization shifts economic activity from within states to their interstices or across their borders, where rules are either absent or new and unclear. The stakes are high: the formation and termination of large enterprises , deal-making, and relations with and among national and transnational states . The principal competitors in this domain are lawyers, accountants, management consultants, and, to a lesser extent, investment bankers.national character of the Big Six, existing ties with multinational corporations , expertise in tax, and a strongly entrepreneurial attitude. American lawyers have the advantages of firm size, a focus on corporate work, and aggressiveness; many, however, lack knowledge of civil law systems and European languages. European lawyers have sought to update their knowledge by forging links with innovative legal academics and acquiring further education in the United States. Competition has forced national legal professions to close ranks against outsiders: French avocats and conseils juridiques finally united some twenty years after a failed attempt in 1971; German Rechtsanw lte defied the ban on multistate partnerships; the distinction between English solicitors and barristers is eroding.But knowledge is not the only terrain of contestation and is often little more than a rationalization. National legal professions have resorted to a wide variety of protectionist strategies: limiting practice to citizens; demanding a lengthy, unpaid apprenticeship; setting an examination in the local language or law; excluding outsiders from certain functions ; demanding extortionate payments to local compensation and indemnity funds; insisting on reciprocity from the lawyer s home jurisdiction ; limiting advocacy by employed lawyers; and prohibiting multinational and multidisciplinary partnerships. Status concerns may be as important as market share: All lawyers fear dominance by accountants, and all other lawyers fear dominance by Americans. III.A number of writers have sought to reclaim the ideal of lawyer independence from the static functionalism of Parsons or Carr-Saunders and the apologetics of professional associations. Robert Gordon s revisionist account of the emergence of the American corporate bar in the late nineteenth and early twentieth centuries is the leading example. As a critical legal historian, Gordon seeks to demonstrate the relative autonomy and importance of ideology as a counterweight to excessively materialist and necessitarian theories. He boldly proclaims his theoretical idealism: Lawyers have slid into the modes of reaction, schizophrenia, and privatistic denial of any public role not from any innate depravity of the profession, but from the poverty of modem liberalism. He argues that elite corporate practitioners exhibit several kinds of autonomy.develop new legal forms, transactions, claims, and remedies, which can have unanticipated and even adverse consequences for their clients.I share many of Gordon s values. First, he focuses on the aberrational behavior of a small minority of lawyers as if economists constructed a theory of entrepreneurial activity based on Mobil s funding of Masterpiece Theater or Ben and Jerry s efforts to save tropical rain forests. Second, much of the evidence for independence concerns not the core of the professional role, but the margin what lawyers do after they have billed 2,000 hours a year. The public interest fellowships funded by Skadden Arps are the perfect example of lawyers schizophrenic ability to dissociate the most aggressive corporate representation from pro bono contributions. Third, lawyers charitable activities are quantitatively insignificant, whether measured in pro bono hours or cash contributions to legal aid, per lawyer or in the aggregate. But repeated studies have confirmed that law schools transform incoming law students who voice a identification with social justice into lawyers who choose material rewards, professional prestige, career stability, and technical proficiency. Most perplexing, however, is Gordon s central claim that lawyers can and should independently evaluate the means and ends of their clients. The ideal of independence contains a basic ambiguity: Should lawyers substitute their own ends or only make strategic judgments about means? The quixotic search for a universal class disinterestedly pursuing the common good has been repeatedly disappointed: Aristocrats rarely display noblesse oblige; the bourgeoisie are associated less with Enlightenment universalism than with the horrors of industrial capitalism; the proletariat may be classless, but they are also xenophobic, racist, and sexist; civil servants are petty bureaucrats; artists and intellectuals are self-absorbed. Corporate lawyers are particularly unlikely candidates for the role of universal class.Michael Katz, who operates an eviction mill for Los Angeles landlords and claims to have 10 percent of the market, boasted: I m a hired gun, bottom line. He threatens tenants with a bad credit rating to make them pay, even if they are not legally obligated because the premises are uninhabitable. Robert Nelson s study of four Chicago firms revealed that individual lawyers derive 20 to 60 percent of their income from a single client surely a strong disincentive for independence. Their identification with clients was so strong that few had ever perceived an ethical dilemma in representation. Two leading American law firms paid fines of 45 million and 50 million to settle government charges of complicity in the savings and loan scandal . Recent research has shown how solicitors take advantage of errors or incompetence by adversaries and find or carve loopholes in regulatory and tax regimes. The situations where lawyers do shape, resist, or even disregard client wishes are even more troubling. Legal aid lawyers and public defenders also may display greater loyalty to repeat players in the courtroom than to their one-shot clients. There is no escape from the basic paradox that lawyers who enjoy the greatest rewards of money, status, and power also are the most heteronomous, while those at the bottom of the professional hierarchy are most autonomous. Ironically, the principled refusal to promote immoral ends is less likely to be found among lawyers, who claim to be professionals, than advertising models, who have no such pretensions but may refuse to promote cigarettes or alcohol. Those claiming to oppose from within prosecutors solicitous of defendants rights, environmentalists purporting to keep their corporate employers honest may have access to power, but they rarely exercise it.resistance to public and private power, surely it makes more sense to study their opponents , oppositional lawyers , and dissident professional associations .Nor do professional associations urge independence. D Amato was convicted of mail fraud for billing Unisys 32,500 for consulting work he never did as part of a scheme to influence his brother, Senator Alfonse D Amato , an amicus brief was filed on his behalf by the New York State Bar Association, National Association of Criminal Defense Lawyers, New York State Association of Criminal Defense Lawyers, New York State Trial Lawyers Association, New York Criminal Bar Association, and New York Civil Liberties Union. Sentencing D Amato to five months, U.S. Others defend the professional project in terms of its potential to permit and encourage lawyer altruism. English barristers justify their monopoly of higher court advocacy on the ground that only they have sufficient independence an assertion most solicitors find insulting and unfounded. Solicitors, in turn, claim that the monopoly rents they reap from conveyancing are necessary to subsidize their undercompensated legal aid practice. Law is beyond monopoly only in the sense of such trendy phrases as postcolonial, postmodern, postindustrial, postcapitalist, postcommunist, and postapartheid.Alan Paterson closely follows Halliday but draws his metaphor from the Enlightenment, positing a social contract in which the state ensures the profession reasonable rewards in return for altruism.his 1952 retirement from Allen Overy, the leading City firm he had founded: He completely identified himself with his client... And the Law Society repaid state support of its anticompetitive rules not with an outpouring of altruism but by opposing salaried legal aid and law centres. Michael Burrage is most profoundly hostile to sociological critiques of the professional project. He vigorously defends the efforts of lawyers to raise their status, attributing the extremely high standard of honour of the English Bar and its non-competitive, disinterested style of work to its high social standing. The legal profession, perhaps more than others, pursued collective mobility by deliberately excluding aspirants on the basis of class, race, ethnicity, and gender. The explicit purpose of the Law Society s preliminary examination in Latin and Greek was to exclude men who have traveled up the gutter from Fleet Street to the Law Institution. Harry S. Drinker, author of the first American code of legal ethics in 1908, echoed these sentiments, condemning Russian Jew-boys who had come up out of the gutter ... Harlan Fiske Stone, Columbia Law School dean and Supreme Court Justice, deplored the influx to the bar of greater numbers of the unfit, who exhibit racial tendencies toward study by memorization and a mind almost Oriental in its fidelity to the minutiae of the subject without regard to any controlling rule or reason. Elihu Root and Dean Swan of Yale Law School opposed the admission of immigrants, especially Jews.Burrage is particularly distressed by the increasing role of universities as the entry route into the profession and the declining role of apprenticeship, which he endows with a unique capacity to instill ethical values. The superior honor he attributes to barristers cannot be explained by apprenticeship since, until recently, pupillage was a voluntary six months and articles a mandatory five years! Nor is it clear how barristers honor can be reconciled with the late return of briefs or perfunctory conferences with legally aided defendants prior to a plea bargain.their honorable contempt for trade only by relying on working-class clerks to tout for solicitors business. Ethnoreligious minorities entered the American profession in significant numbers only when law schools displaced apprenticeship in the first two decades of the twentieth century.IV.Several decades after first applying their discipline to analyze substantive law, economists have belatedly addressed legal institutions and processes, including the profession itself.The large law firm has attracted disproportionate interest, perhaps because of its social prominence, economic rewards, rapid growth, and dramatic transformation. Charles Derber has adapted class analysis to argue that professionals are subjected to ideological proletarianization while successfully resisting technical proletarianization . More recently, however, other researchers have observed a more conventional proletarianization. Greater use of computers to conduct research and generate legal forms has led to either the replacement of lawyers by paralegals or the creation of a substratum of lawyers with little decisional responsibility or client contact. John Hagan and his associates have portrayed these developments as the emergence of class relations within the legal profession, highlighting the ?overrepresentation of women in the lower classes. It is noteworthy that accountants often the precursors of change in the legal profession have adopted the corporate form, selling equity interests to raise capital for expansion, and hiring nonaccountant subordinates . Critical observers have interpreted the emergence and growth of large firms as the exploitation of subordinated labor, noting that fee-earning employees generate substantially more in billings than they cost in salary or overhead. Some explain the lengthy apprenticeship and denial of partnership to all but a small fraction as deterrents to opportunism and shirking. Galanter and Palay argue that partners own surplus reputational capital, which they rent to associates, but, although they portray law firms as pyramid schemes where partner greed drives unsustainable growth, firms actually grow at very different rates. The 1994 dissolution of Shea and Gould, which had more than 350 lawyers at its zenith, was attributable less to quarrels about money than to struggles for status and power within the firm and personality conflicts among inflated egos. It may not matter much whether some large-firm lawyers are exploiting others few observers are deeply troubled by the suffering of lawyers who earn more than 100,000 a year. Why do they seem so much more numerous and prominent in some societies than others the United States and Japan usually being represented as the extremes. An extreme and poorly substantiated case for the latter view has prompted a barrage of criticism, which may have the desirable effect of stimulating more sophisticated economic analysis of the profession, V.Although many of these theoretical controversies were joined after the initial publication of the empirical data presented in the following ?national and synthetic essays, the exchanges can be illuminated and refined by comparative study of legal professions. I hope readers will be encouraged to formulate their own theoretical frameworks for understanding the legal profession, test them against the accounts presented here, and be provoked to conduct the research suggested by lacunae and ambiguities. NOTES ?July 9, 1993. A Virginia lawyer, angered by the Miller ad, wrote, produced, and paid to run a spoof in which a cowgirl lassos Philip Millerd and condemns him for the health effects of cigarettes.Local legal professions within federal polities have sometimes engaged in similar competition. ?and complete with gold scales-of-justice seal and a legend attesting to exceptional skill, experience and excellence in advocacy. In the first nine months he had seventy-five takers. The Inner Circle of Advocates, founded for the same purpose twenty years ago, has preserved its exclusivity through a humerus clausus of 100.REFERENCES ABA Journal.Abbott, Andrew 1988. .Abel, Richard L. ., Law in the Balance: Legal Services in the Eighties. . . . 49 Modern Law Review 1. ., Lawyers in Society , Vol. ., Lawyers in Society , Vol. . . ., New Directions in the Study of Justice. . . . Amark, Klas.American Bar Association, Commission on Professionalism.Alfieri, Anthony V.Aron, Nan.: Westview Press. 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I have chosen this concept of professionalism over others that stress technical expertise, or standards of competence and ethical behavior, or altruism because it seems to me to illuminate a great deal of the history and contemporary experience of English lawyers. There can be little doubt that nineteenth century solicitors consciously and energetically sought market control, and it is painfully clear today that both branches of the profession are deeply upset about threats to their continued exercise of such control. Second, the divided English legal profession offers a natural laboratory for observing the choice of tactics in the professional project and their relative success or failure. All occupations under capitalism are compelled to seek control over their markets. The only alternative is to be controlled by the market a situation that is fraught with uncertainty at best and may lead to economic extinction at worst. Of course, no occupation controls its market totally, and none is wholly without influence; control is a question of degree and constantly changes. Occupations that produce goods may pursue this goal by seeking to restrict raw materials or technology, but occupations that produce services constrain supply principally by regulating the production of pro- ?ducers. Although advocates of control invariably portray their object as improving the quality of services, we should not let this claim blind us to the fact that any improvement necessarily also limits entry. At one extreme of the spectrum of control, the profession imposes a numerus clausus illustrated by some nineteenth century continental legal professions, notaries in certain countries today, and elite advocates, such as Queen s Counsel in England and avocats of the Conseil d Etat and the Cour de Cassation in France. At the other extreme, entry to the occupational category is governed by market forces: demand for professional services on one hand and the distribution of ability, energy, and inclination on the other hand. Market control is inextricably related to occupational status, not only symbolizing status but also enhancing it instrumentally, both by restricting numbers and by controlling the characteristics of entrants.ENTRY TO THE PROFESSION In order to trace the dramatic fluctuations in the kind and degree of supply control that English lawyers have exercised during the last century and a half, it is useful to choose as a baseline the entry barriers that prevailed at the beginning of the nineteenth century. Barristers and solicitors differed significantly in the extent to which each branch emphasized ascribed or achieved qualities the character of the whole person or narrow technical skills and in whether controls were formal or informal, visible or invisible. THE PREMODERN HERITAGE The Bar entered the nineteenth century with stringent constraints on the kind of person who might become a barrister, constraints that had been in place for several hundred years.who governed the four Inns of Court had complete discretion to admit or reject a student; applicants had to state their condition in life and provide references from two barristers. The Inns of Court extended a preference to university graduates, shortening the number of years they had to keep terms from five to three and the number of dinners they had to eat each term from six to three, so that the burden on nongraduates was more than three times as onerous. Partly for this reason, half of all barristers were university graduates at a time when this privilege was enjoyed by only a tiny fraction of the population and restricted to upper-class members of the Established Church. Once called to the Bar, the fledgling barrister was expected to serve a pupillage of one to two years with an established barrister or other legal professional.Two things about this entry process are striking, although perhaps not immediately apparent. The Bar student then had to pay a fee of 30 to 40 for admission to his Inn of Court and deposit an additional 100, which was refunded without interest only after call. During his three to five years as a student, while forbidden to work at most trades, he incurred annual expenses of 5 to 10 for hall dinners, 6 to 8 for books, and about 150 for maintenance. Once established in his own chambers, the barrister could not expect to earn enough from practice to support himself for several years , although he might make ends meet by deviling , tutoring, marking examination papers, law reporting, or editing. A midnineteenth century estimate put the one-time costs at 300 and the annual maintenance at 250 from entering university to reaching economic self-sufficiency, which could be as long as ten years. These financial demands strongly reinforced the ascriptive criteria that influenced the university and the Inn to admit a student, the barrister to accept a pupil, and the client or solicitor to brief a fledgling barrister. The second noteworthy feature of this lengthy and arduous process of qualifying is that it had relatively little to do with the acquisition of technical skills. In addition, although we know little about the content of pupillage, certainly many barristers must have accepted pupils for the substantial premiums the latter paid rather than out of dedication to teaching.men ; colleague-ship at university and within the Inns may have reinforced such gentility; but neither selection nor training ensured technical competence in law. Because solicitors lacked the lengthy traditions of the Bar, they initially subjected entrants to fewer ascriptive criteria and, consequently, imposed fewer entry barriers of any sort. Nineteenth century solicitors were not expected to attend university; indeed, only 5 percent of enrolled solicitors were graduates as late as the 1870s. This was an ascriptive barrier in two senses: the apprentice obtained his place through personal contacts, often with a solicitor who was a relative, family friend, or business acquaintance; and articles were expensive about 100 for stamp duty and 200 for the premium paid to the solicitor. Yet, unlike the Bar student or pupil, the articled clerk could minimize his expenses by living at home, since articles were available all over England, not only in London . And at the end of his apprenticeship, the qualified solicitor could attain immediate economic self-sufficiency through salaried employment with a firm and could look forward to joining the partnership or setting up his own practice. Even at the beginning of the nineteenth century, barristers and solicitors thus diverged in their exercise of supply control. Solicitors also employed ascriptive barriers, but these were less elaborate and seem to have been more closely related to the acquisition of legal knowledge. Because articles lasted several times as long as pupillage and because the supervising solicitor generally expected to employ the apprentice thereafter, it seems plausible that the experience conferred at least a modicum of technical skill. CONSTRUCTING MODERN CRITERIA These differences between the branches became considerably more pronounced during the next hundred years. In 1829, Inner Temple required all students who had not matriculated at university to pass an examination in history and either Latin or Greek; although this requirement was abandoned briefly when the other Inns failed to adopt it, the examination had become universal by the last quarter of the nineteenth ?century. It resisted the example of physicians, solicitors, and colonial lawyers, all of whom had adopted formal examinations, for the Bar feared that this might facilitate entry rather than restrain it, thereby admitting the wrong kind of person. Graduates sat it a few months after leaving university, and 80 percent to 90 percent were passing at the end of the nineteenth century. Although the Inns created the Council of Legal Education in the midnineteenth century, it had a minimal teaching staff and relied heavily on practitioners. Thus the barriers to becoming a barrister remained much the same until after World War II: cost and the particularistic decisions of universities, pupilmasters, and heads of chambers. Solicitors pursued a very different path toward controlling the production of producers. In the absence of substantial ascriptive barriers, the number of solicitors seems to have doubled in the first third of the nineteenth century. Partly in response, one of the early acts of the Incorporated Law Society was to impose a professional examination in 1836, nearly four decades before the senior branch did so. This decision to use achievement rather than ascription as the principal entry barrier seems to have had its desired effect: the issuance of new practicing certificates dropped by almost a quarter over the next fifteen years, and the number of solicitors stabilized for four decades . Twenty-five years after initiating professional examinations , the Law Society added a second hurdle: the Intermediate Examination, taken by articled clerks during their apprenticeship. Although the pass rates for each examination were very high when it first was introduced, all of them declined fairly steadily and were approaching 50 percent at the beginning of World War II; since all three had to be passed, their cumulative effect was even greater. The Law Society also was more serious about professional education: it instituted lectures for articled clerks in 1833, three years before the first professional examination, and progressively expanded the offerings at its Chancery Lane headquarters.clerks, like Bar students, preferred private crammers; and little instruction was available outside London and a few major provincial cities. In response, the Law Society made two major changes in 1922: it required a compulsory year of lectures prior to the Intermediate Examination, and it subsidized such instruction at provincial universities. By contrast with its concern for technical competence, the Law Society did little to raise ascriptive barriers. Individual exemptions were granted freely from the preliminary liberal arts examination imposed in 1861 , and categorical exemptions rapidly proliferated, not just for university matriculates but also for those who passed a host of other exams. The proportion of solicitors with university degrees remained small: less than a fifth of all entrants in the first decade of the twentieth century , less than a third as late as World War II. At the same time, it must be recognized that preparation for the three professional examinations itself was costly and became an important, if indirect, barrier to those who could not afford to study full time or pay the crammers. FLUCTUATIONS IN ENTRY How effective were the divergent strategies of barristers and solicitors in controlling the production of producers? In answering this question, it is essential to bear in mind the impact of extraneous events, the most important of which were World Wars I and II. The next generation of solicitors was affected even more seriously: more than half of all articled clerks served, of whom 358 were killed and 458 seriously wounded . Although these losses were inflicted on the profession, it also bears some responsibility for failing to respond to them by admitting more solicitors after the war . In addition to those killed and disabled, there was a shortfall in production of 1,700 solicitors, if the ten years beginning in 1914 are compared to the previous decade. The experience of World War II was similar: more than 500 solicitors and clerks were killed, and there was a shortfall in production of more than 1,500. Together, professional supply control and extraneous tragedies had a dramatic effect on the number of solicitors . The rapid increase in the production of solicitors in the first third of the nineteenth century halted abruptly in 1835 which happened to be the year before the first professional examination was admin- ?istered, although it would be dangerous to infer causality.7 percent between 1913 and 1920 and remained virtually static between 1939 and 1952. As a result, solicitors entered the postwar period with almost exactly the same number that had been in practice more than half a century earlier . Nevertheless, available data show the number of barristers doubling between the first and the last quarters of the nineteenth century, declining by a fourth following World War I, and remaining at that depressed level until well after World War II. THE POSTWAR TRANSFORMATION The period since World War II, and especially the last two decades, have witnessed a major transformation in both the means and the extent of control over the production of producers. The distinctive characteristics of barristers and solicitors continued to color their different responses, but the overwhelming changes that both branches confronted induced a significant convergence between them. The 100 deposit required before admission to an Inn was eliminated for most students, the 50 stamp duty on call to the Bar was abolished in 1947, and other fixed fees became less burdensome as a result of inflation. Although the Bar formally required a university degree in 1975, the growth of tertiary education and, more importantly, government grants to undergraduates made it easier to obtain this credential .The Bar also began to relate entry barriers more closely to technical competence. Students without a law degree now must spend a year studying law in a polytechnic and pass an additional examination. All entrants must take a year of vocational training prior to the final examination, and the number of places available at the Inns at Court School of Law has been limited in recent years . Final examination pass rates remain high, however: nearly 90 percent of intending practitioners succeeded on their first try in the early 1980s, although the proportion has fallen significantly in the last few years. Yet, the Bar certainly has not relinquished all control to the academy. First, the Bar mandated a one-year pupillage in 1959 ; six years later, it prohibited pupils from taking briefs during their first six months. Although the pupillage fee declined in importance after World War II and was abolished in 1975, maintenance during this year remains a serious problem, since no government grants are available, Inn scholarships are few in number and inadequate in amount, and briefs are difficult to obtain even in the second six months. Furthermore, a bottleneck has developed as the number seeking pupillages has multiplied rapidly while the number of barristers willing to act as pupilmasters has remained constant. Although the Bar maintains that every intending practitioner is placed, competition has intensified, and personal contacts and ascriptive characteristics clearly weigh heavily. Second, and more important, the Bar requires every private practitioner to obtain a tenancy . In the nineteenth century, fledgling barristers simply opened their own chambers; this would be prohibitively expensive today, and in any case a new barrister practicing alone would attract very little business. In the early twentieth century, natural attrition in a relatively static profession created space for all who wished to enter; however, the rapid growth in the number of Bar students and pupils in the last two decades has disrupted this accommodation. The problem of tenancies is unique to England as well as to the postwar period: advocates in Scotland and barristers in some Australian states practice individually, and office space and assistance by a pool of clerks are available to all new entrants. Until recently, all London chambers were located in one of the Inns; even now only five of the more than 200 London sets have moved outside, and several of those also are outsiders in terms of political orientation or racial composition. Chambers within the Inns are grossly overcrowded, however, partly because the Inns traditionally have leased much of their space to residential or other commercial tenants. In the six years between 1975 and 1981, when the Bar grew by 28 percent, available space in the Inns expanded only 8 percent. As a result, every year since 1965 there has been a shortfall in the tenancies available to barristers completing their pupillages, sometimes by as much as 50 percent. More than 100 qualified barristers have occupied the amorphous status of floaters ever since the Senate began keeping records in 1974. This physical shortage of space has greatly intensified competition for entry, increasing the weight that heads of chambers give to ascriptive qualities in accepting tenants and discouraging many students and pupils from entering private practice. The third barrier confronting the qualified beginner also is peculiar to the Bar: because private practitioners cannot be employed, they must find business on their own. The difficulties of doing so remained acute in the early postwar period: most barristers lost money in their first year and made only a nominal amount in their second. And between 1955 and 1959, the number of barristers with less than ten years of experience who left practice ranged from half to three-quarters of the number entering practice that year. In this respect , barristers resembled small-scale entrepreneurs, most of whose businesses fail, rather than professionals, who make a lifetime commitment to a career . Yet, the situation of the novice improved dramatically in the 1960s and 1970s as a result of the growth of legal aid, which ensured at least a minimum level of subsistence. Juniors with less than nine years of experience, practicing at the family, common law, or criminal Bars in London, or on circuit, obtained between 59 and 72 percent of their incomes from public sources in 1974 75. Consequently, departures from practice of those with less than ten years of experience dropped dramatically after 1959; although absolute numbers have risen slightly since 1976, they still represent only a tenth to a quarter of those starting practice. Solicitors responded differently to the postwar environment. The length of articles was reduced by a year for both graduates and nongraduates; however, since the former now greatly outnumber the latter, the effective period of apprenticeship has been cut from five years to two. More importantly, clerks began to receive salaries: 200 in the 1950s, 500 in the 1960s, 1,600 in 1976, and 3,000 to 4,000 today, although this still is insufficient for maintenance. Because the number of law graduates seeking articles increased rapidly, while the number of solicitors qualified and willing to take on clerks ?remained fairly constant, competition for articles intensified. Firms today receive dozens of applications for each position, students write even more letters in order to obtain a place, and those with contacts fare far better than do those who use more universalistic methods, such as the Law Society Register or a university appointments board. The scramble for articles serves both to distribute law graduates across the hierarchy of solicitors firms and to discourage those with poorer degrees earned at less prestigious institutions from seeking to enter private practice. Primarily for symbolic reasons, the Law Society has refrained from formalizing the academic barriers to entry. It still is posssible for mature students to become solicitors without obtaining A levels , although the proportion of entrants who do so is insignificant. Similarly, a university degree is not required, although more than 90 percent of new solicitors now are university graduates, and almost all of these are law graduates . All aspiring solicitors, like all barristers, must complete a vocational year; but almost three-quarters of the students at the Law Society s College of Law in 1980 had received local authority grants . The rapid growth in the prevalence of legal education also has reduced the significance of professional examinations in controlling quality and numbers. The nine out of ten entrants with law degrees are exempt from the Common Professional Examination , which replaced the Intermediate Examination in 1980 and which, despite its name, is taken only by aspiring solicitors. More importantly, the high proportion of examinees with a legal education seems to be correlated with a rise in the pass rate on the Final Examination from an all-time low of 48 percent in 1952 to a high of 74 percent in 1977 a level approaching that of the Bar Final, which historically has been much easier. The Law Society has imposed a requirement of forty-eight hours of continuing education in the first three years of practice; the Senate, on the other hand, told the Royal Commission that postqualification education would not be appropriate to the circumstances of the Bar. Both branches of the profession thus have lost to academic legal education much of their control over the production of producers. First, it is a transfer of the locus of control: from professionals and their associations to universities and polytechnics and the governmental bodies that determine their enrollments and funding.tently has been more universalistic than private associations or individuals, this transfer largely eliminated the principal ascriptive barrier to the profession: the exclusion of half the population on the basis of gender . Half a century before Parliament compelled the profession to admit women and long before the academy became the principal mode of professional qualification, University College, London, allowed women to read law. In 1967, when women constituted 5 percent of the Bar and 3 percent of solicitors, they were 17 percent of entering law students at university and 11 percent at polytechnics. They were 45 percent of all domestic undergraduate law students enrolled in universities in 1983 84 and 47 percent of full-time domestic law students admitted to polytechnics for the fall term in 1984.The third element of this transformation in the institutional structure of control is the growing heterogeneity of the academy. Prior to World War II, academic legal education was concentrated at Oxford, Cambridge, and the three London colleges, which together enrolled three-quarters of all students; the remainder were distributed among the seven older provincial universities. By 1980 81, Oxbridge had fallen to 12 percent, London had 9 percent, the older provincial universities enrolled 24 percent, eleven other universities had launched law courses with 22 percent of the students, and the twenty-four new polytechnic law programs enrolled a third of all students. Not surprisingly, the convergence of three factors a government eager to provide social services , universities and polytechnics interested in expanding, and women determined to pursue careers produced a dramatic increase in law enrollments, perhaps the most dramatic ever experienced in any country . In the United States, law school enrollment expanded more slowly even during its period of most rapid growth and has increased only threefold since World War II. Although supply control had been transformed, it still was being exercised if now by the academy. Law departments received between ten and twenty applications per place in the 1970s; although much of this imbalance is explained by multiple applications, little more than 40 percent of all applicants obtained a place anywhere.tantamount to graduation. Although at least nine out of ten university law students graduate , only three-quarters of full-time and about a third of part-time polytechnic students complete their courses. UNPRECEDENTED EXPANSION Let me summarize these changes in control over the production of producers as a preface to examining their consequences. The formal educational requirements of the two branches converged in a law degree and a year of professional training, while local government grants became widely available to defray the cost of the former, if not always the latter. The solicitors Final Examination came to resemble the Bar Final as a hurdle that most law graduates could expect to overcome. In addition, the attrition of qualified barristers during the early years of practice because of insufficient business declined with the growth of legal aid. More importantly, there were enough jobs for most who wanted to be assistant solicitors but not nearly enough tenancies for beginning barristers. These changes in the structure of supply control had an extraordinary impact on the rates of entry into the two branches after World War II . Although there was some catch-up in starts at the Bar for the first five years, the numbers began to decline by 1950. The efficacy of supply control is visible in the fact that the Bar actually shrank each year from 1955 to 1961, a total decline of 5 percent, and the 1950 rate of entry was not attained again until 1965. Then the transformation described above began to take effect as the number of first law degrees increased from 1,072 in 1965 to 3,564 in 1980, or 232 percent. Starts at the Bar, which averaged 104 a year between 1955 and 1964, rose to 150 between 1965 and 1969, 246 between 1970 and 1974, and 317 between 1975 and 1984 a threefold increase.7 percent between 1954 and 1961, increased at 3.5 percent a year between 1961 and 1969 and at a staggering 8.2 percent a year between 1969 and 1978, before slowing to 3.2 percent a year between 1978 and 1984.entirely lose control over supply, and the decline in the ratio of starts to calls after 1975 76 is consistent with my contention that the Bar s restriction on the number of tenancies remains a significant barrier. Solicitors display a pattern of growth that is similar in gross but different in detail. For the next fourteen years, average annual admissions fell to 701, as a result of which the profession grew at an annualized rate of only I percent during the 1950s. Thereafter admissions increased rapidly: an average of 1,120 a year between 1965 and 1969, 1,777 between 1970 and 1974, 2,391 between 1975 and 1979, and 3,380 for the first two years of this decade, before declining, to 2,522 between 1982 and 1984.4 percent between 1959 and 1968 and 5.9 percent between 1968 and 1982, although growth has fallen off in the last two years.Although barristers and solicitors have shown similar periods of stasis and change in the last four decades, the differential impact of the postwar environment on their strategies of supply control also is apparent. Because the Bar relied so heavily on ascriptive criteria, it could offer less resistance to the increasing dominance of meritocratic ideology; and given its much smaller base, its rate of growth inevitably was much higher. However, control over the number of tenancies by the Inns and by heads of chambers was able to slow the growth of the Bar five years before the growth of solicitors began to decline. The same forces that produced the unparalleled rate of expansion in both branches during the 1960s and 1970s also explain why that expansion has levelled off.9 percent between 1961 and 1976, it increased at only 1.2 percent thereafter; polytechnic enrollment rose at an annualized rate of 65.9 percent between 1970 and 1976 but at only 7.0 percent between 1976 and 1980. Furthermore, the entry of women into law departments, which explains much of the growth of these departments, has stabilized at just under half. We can expect both branches to continue to grow for several more decades because the rate of production will outweigh deaths and retirements in the much smaller cohort of older lawyers: over the last ten years an average of 2,540 solicitors have been admitted annually, but only 1,107 have left practice; 314 barristers have started but only 124 have left.stant and gradually decline, however.THE COMPOSITION OF THE PROFESSION This new mechanism affects not only the size of the profession but also its composition. First, the radically different levels of recruitment before and after the 1960s have produced a small cohort of older lawyers and a much larger cohort of younger practitioners. Whereas only 34 percent of all barristers were within ten years of call in 1966, a decade later 57 percent fell in this category. Similarly, only 47 percent of solicitors were forty or younger in 1969, but a mere seven years later 58 percent had been in practice for less than sixteen years, almost all of whom would be under forty. It is noteworthy that this imbalance in age distribution is considerably more pronounced among barristers, a reflection of the fact that supply control, initially more stringent, was relaxed more profoundly, as well as of the smaller size of the Bar. Although I can only speculate, it seems plausible to suggest that the large cohorts of younger lawyers have been and will be increasingly dissatisfied with restrictive practices that favor older lawyers and with structures of governance that institutionalize gerontocracy. When the academy displaced the profession as principal gatekeeper, explicit reliance on ascribed characteristics gave way to an ideology of meritocracy. As late as half a century after Parliament ended the profession s formal exclusion of women in 1919, they still were only 3 percent of solicitors and 5.4 percent of barristers. With the growth of law departments and the even more important changes in consciousness wrought by the feminist movement, the Bar began to change in the late 1950s. Although the proportion of women grew steadily, it also grew slowly and seems to have peaked in the mid-1970s at about 15 percent to 20 percent of starts, only half the proportion of women law students. The number of women solicitors, by contrast, did not begin to grow markedly until the 1970s; but by 1980, the proportion of new solicitors who were women equaled the proportion of law graduates who were women. These differences between the branches cannot be explained in terms of the Bar s claim to be more demanding, for women law graduates are, if anything, more capable than men law graduates. Incomplete statistics suggest that the proportion of women applicants admitted to law departments is less than half that of men , and women ?law students do just as well as their male counterparts in obtaining honors degrees. Two factors seem responsible for the difference and are difficult to separate. Women encounter greater problems than do men in securing pupillages and many more obstacles in obtaining both tenancies and business during the early years of practice. The first two decisions are controlled by heads of chambers, most of whom are elderly men likely to retain prejudices against women barristers. The third is influenced significantly by senior clerks, also mostly men, whose patriarchal views may be reinforced by the belief that women tenants will charge lower fees than men and thus earn the clerk less income. Where, as in Scotland, advocates practice individually rather than in chambers and are served by a common pool of clerks, women have come to represent half of all new advocates. The second explanation for the low proportion of women barristers turns on structural factors rather than individual prejudices. It is extremely difficult to combine a career at the Bar with family responsibilities, either by working part time or by leaving practice and returning after child-rearing. By contrast, employment in a firm, a company, or a government office may open one or both possibilities to women solicitors. Whether individual or institutional biases are dominant, their effect is visible in the fact that women law students express a stronger preference than men for becoming solicitors and a weaker preference for the Bar. The experience of black lawyers has been almost the opposite of that of women. Blacks from the colonies have been called to the Bar since at least the early nineteenth century, although few, if any, practiced in England. At the same time, as the black population of England increased, so did the number of black barristers, which now approximates 5 percent of the Bar. Blacks have responded to discrimination in the allocation of tenancies and briefs by forming all black chambers serving a largely black clientele. For this reason, and also because of the greater difficulty of the solicitors examinations and the larger size of the solicitors branch, the approximately 200 black solicitors now in practice represent only 0.25 percent of the profession. On one hand, the academy has admitted indeed, actively recruited an increasing number of overseas law students, whose tuition payments subsidize the cost of educating domestic ?students . On the other hand, heightened competition for places in law departments has made legal education less accessible to domestic black applicants disadvantaged by inadequate primary and secondary schooling.Nor has that transformation significantly affected the class composition of the profession. The traditional claim by barristers that they enjoy a superior social status was derived partly from the higher proportion of university graduates among them and the Bar s more exclusive ascriptive barriers. Yet the emergence of common qualifications for the two branches, and particularly the expectation that entrants to both will possess a law degree, seem to have erased these differences. One reason is the centrality of the academy, which always has selected disproportionately from the upper social stata and continues to do so even after the creation of the polytechnics. Indeed, because women still must overcome substantial social and cultural barriers, those who succeed tend to come from even more privileged backgrounds than men law students. The emergence of the academy as the principal gatekeeper to the legal profession thus made a major contribution to eliminating gender as an ascriptive barrier but, simultaneously, magnified the barrier of class and provided a new legitimation for the barrier of race. Furthermore, although we lack the data to test these hypotheses, it seems plausible to expect that class and race influence which academic institution a student attends and the quality of degree the student attains and that these, in turn, determine the nature of the apprenticeship and the first position the student obtains after qualifying. The academy thus not only is more selective but also performs the indispensable function of allocating graduates to positions within the professional hierarchy and justifying that allocation in meritocratic terms. LIMITING COMPETITION In order to control the market for its services, a profession must seek to regulate not only the production of producers but also production by ?producers. This occurs only at a later stage of the professional project: an occupational category that limited the competitive energies of its own members before they had demarcated themselves from other service providers quickly would succumb to outside competitors who were not similarly restrained. We can distinguish two types of control over production by producers: the definition and defense of the professional monopoly against external competitors and the elaboration of restrictive practices limiting internal competition.MONOPOLY The legal profession s attempt to define its monopoly was complicated by the existence of two branches concerned with patrolling the boundaries that divide them as well as those that exclude other occupations. During the course of the nineteenth century barristers and solicitors reached an accommodation : solicitors ceased to challenge the Bar s exclusive right of audience in the higher courts, and barristers relinquished any claim to perform conveyances or to serve clients without the intermediation of solicitors. The Bar has been very successful in defending its turf, perhaps because advocacy occupies the core of the legal profession s identity and is a highly visible activity, whose elaborate ritual and arcane language proclaim the esoteric qualities of law.On the other hand, barristers and solicitors are opposed in their struggle over the right of audience in the higher courts, which traditionally also has conferred eligibility for appointment to the bench not only a prize for those few who attain it but also an important foundation for the Bar s collective assertion of superior status. The greater difficulty of justifying a monopoly against fellow lawyers may help to explain the vigor with which the Bar opposed nineteenth-century proposals for common training with solicitors. At the same time, the erosion of supply control among solicitors may stimulate the latter to press their claims more strongly. The historic compromise between the branches survived the Royal Commission inquiry of the late 1970s, in which the Law Society sought only a modest expansion of solicitors rights of audience.this claim, its concern to cut costs, together with the fact that it presently pays for half of all barristers services, renders the Bar s monopoly precarious. Even if it is not abolished, the monopoly still may be eroded through the progressive expansion of lower-court jurisdiction, increased use of employed lawyers , and the grant to solicitors of specific, if not general, rights of audience. Nevertheless, barristers may preserve a good deal of the market for higher-court advocacy by means of informal conventions despite the demise of formal rules. Solicitors always have had greater difficulty defining and defending their monopoly. Furthermore, whereas solicitors have been quite restrained in challenging the Bar, lay competitors have been far more aggressive in invading the domain of solicitors. Banks and trust companies, accountants, real estate agents, companies, and trade unions all perform solicitors work for their customers, employees, and members. The lay public also seems less tolerant of the solicitors monopoly than they are of the barristers exclusive right of audience, perhaps because consumers encounter the former more often and more directly. Recent legislation has forced solicitors to share it with a new paraprofession of licensed conveyancers; however, there is continuing uncertainty about the role of banks and building societies . On first impression this incursion, which solicitors vigorously resisted, appears to be an awesome loss, without precedent in the annals of any other profession, for solicitors derive half of their incomes from conveyancing. The change will be felt more heavily by smaller firms, which typically earn a higher proportion of their income from conveyancing. In order to remain competitive, they will have to expand their volume through advertising, routinize conveyancing through computerization, and transfer work to paraprofessionals, all of which will foster concentration and render solicitors more like their lay competitors that is, less professional. Barristers, pressed by their own loss of supply control, threatened by solicitors, and perhaps concerned with allaying criticism about the wastefulness of the divided profession, may renew their demands to deal directly with other professionals and possibly even with lay clients. The monopoly of each branch is threatened not only by the other branch and by outsiders but also from within: by employed barristers and ?solicitors, whose numbers are expanding because private practice is able to absorb a declining proportion of the influx of new entrants produced by the erosion of supply control . First, the demarcation between employed barristers and employed solicitors is far more tenuous than the line that separates the branches in private practice. Third, the number of employed lawyers is augmented by reason of heightened demand as well as greater supply: clients may prefer to employ lawyers rather than retain private practitioners because the former are less expensive and more easily controlled. Moreover, having put lawyers on their payroll, employers are likely to add their own voices to the call for expanding the rights of audience of employed lawyers and for allowing all employed barristers to perform conveyances and to brief barristers in private practice without the intervention of a solicitor. INTRAPROFESSIONAL RESTRICTIONS Private practitioners seek to control their market not only by regulating the production of services by outsiders but also by limiting competition from fellow professionals. Just as barristers were first to control the production of producers, so they anticipated solicitors in elaborating a set of restrictive practices. Initially informal, these progressively were formalized during the nineteenth century as the Bar grew in size and subgroups declined in importance . Consequently, the Bar recently has been forced to relax several of its more conspicuous restrictive practices: the two-counsel rule , the two-thirds rule , and barriers to practice on the circuits . This sequence illustrates the peculiar situation of the Bar: on one hand, the nature of its market makes the restriction of competition particularly urgent; on the other hand, its internal structure facilitates such restriction ?through informal means. The performance of barristers in court is highly visible to potential consumers , and the measures of success or failure are superficially clear . Also, at least some of those consumers the larger firms possess considerable economic leverage by virtue of the amount of business they can offer.The Bar has minimized this danger in several ways. First, it has drastically curtailed competition between younger and older age cohorts by means of an artificial barrier between Queen s Counsel and juniors, which grants each a submonopoly . Although barristers still cannot form partnerships with each other , the Bar is not simply an aggregation of 5,000 individual competitors. Rather, it is grouped into about 200 sets in London and another 100 in some two dozen provincial cities; there is little competition between barristers in different cities. London sets are prevented from proliferating by the formal requirement of a clerk, the informal but effective restriction to the Inns, and the limited accommodation available within each Inn. Fourth, the homogeneity of social background and function among barristers and their geographic concentration within the Inns facilitate informal control. Finally, barristers are subject to hierarchic controls that reward conformity to restrictive practices: pupils are subordinate to pupilmasters and to those who allocate tenancies, younger barristers are subordinate to their heads of chambers and clerks, juniors who aspire to become Queen s Counsel are subordinate to judges who advise the Lord Chancellor, and even Queen s Counsel who seek appointment to the bench remain subordinate to the Lord Chancellor and the judges who advise him. The very characteristics that allowed the Bar to establish control over the production of producers in the first place and to reassert it after the academy introduced more meritocratic entry criteria thus also allow it to preserve control over production by producers through informal means, ?even after the demise of formal rules. Barrister s clerks establish ongoing relationships with solicitors firms, which allow the clerk to refer work to other chambers without fear of losing the firm as a future client. Barristers continue to charge and receive the full brief fee even if the case is settled and to bill separate fees for multiple clients in a single matter even if their representation does not increase the complexity of the task. Perhaps most importantly, the small number of chambers, and thus of barrister s clerks, and the intimate relations among the latter allow them to reach informal understandings about the level of fees. The restrictive practices of solicitors are different in several respects. Furthermore, unlike the solicitor who selects and evaluates barristers services, the individual consumer of solicitors services is a layperson who is likely to have little prior experience with law or lawyers. Such a client s relationships with solicitors generally are sporadic rather than continuous, and the lay consumer will encounter extreme difficulty in obtaining accurate information about price or quality. Consequently, not only does the solicitor-consumer have distinct advantages in purchasing barristers services but the solicitor-producer also has distinct advantages in selling services to individual consumers . It is striking that the relationship of each branch to its market is the obverse of the stereotype: solicitors paradoxically are more independent than barristers. Perhaps, then, one function of restrictive practices is to correct this disparity: to make barristers more independent of consumers and solicitors less so. Such an interpretation draws support from the fact that one of the most important restrictions on solicitors the regulation of fees in contentious matters is imposed externally. Because solicitors, when compared to barristers, are more numerous, geographically dispersed, and heterogeneous in background, organization, and function, restrictive practices also must be more formal. The Law Society promulgated ethical rules long before the Bar felt the need to formalize its own etiquette, therefore, and it regulated subjects, such as advertising and fees in noncontentious matters, that the Bar still leaves to informal controls.forming a partnership with other professions, or even sharing office space with other occupations, and the restriction on employed solicitors accepting private work from fellow employees all served to dampen intra-professional competition. The ceiling of twenty partners was lifted in 1967, with the result that forty-six firms now exceed that number; of these, two have at least sixty partners, three have fifty to fifty-nine, five have forty to forty-nine, and thirteen have thirty to thirty-nine.It seems unlikely that solicitors can continue to suppress competition by relying on the informal understandings that have worked so well for barristers. First, the same market characteristics that allow solicitors to dominate individual clients also encourage a firm that wishes to increase its market share to establish branch offices, merge with other firms, cut prices, and engage in aggressive advertising. Second, even if solicitors themselves are averse to such marketing strategies, they may be forced to adopt them by the threat of lay competition, especially now that the conveyancing monopoly has been diluted and perhaps broken. Whereas barristers may continue to control production by producers through informal understandings, solicitors thus seem likely to face increasingly unconstrained competition from outside the profession as well as within. STIMULATING DEMAND Historically, lawyers sought to control their market by limiting supply before they turned to the alternative strategy of creating demand. True, lawyers are at least partly responsible for the fact that substantive and procedural laws are so complex that laypersons must hire professionals both to litigate and to perform noncontentious transactions, such as conveyances and the distribution of estates. However, neither the institutional infrastructure nor the legitimating ideology for large-scale demand creation existed before the emergence of the welfare state after World War II. Furthermore, it is the recent erosion of professional control over the production of and by producers that motivated lawyers to seek to stimulate demand. But I do not want to overstate the argument that professions have shifted from supply to demand as the principal locus of market control: lawyers have done so slowly, reluctantly, and ineffectively.BARRISTERS AND THE PUBLIC SECTOR In many ways, the Bar has encountered greater difficulty in influencing demand. Indeed, the principal sources of increased demand for barristers services criminal and matrimonial cases are matters over which the profession has no control whatsoever. All that barristers realistically can do to influence demand is seek to ensure that those who must litigate actually do retain counsel . In pursuing this goal, barristers enjoy certain advantages: the state s obligation to provide legal assistance is less problematic in court than outside and less problematic in criminal proceedings than in civil; and there are no functional equivalents to barristers as advocates . The means of guaranteeing representation, of course, has been legal aid. Second, the institution emerged at a time when the supply of barristers actually was declining and traditional restrictive practices were firmly in place. Nevertheless, the growth of the Bar from the early 1960s clearly is inseparable from the expanding legal aid budget generated by rising crime and divorce rates, regardless of whether legal aid is seen as the cause of eroding supply control encouraging law students to enter the Bar confident that they would be able to survive the early years of practice or as a response to numbers that were augmented by other causes. For all juniors, the proportions were almost a third and almost a half; indeed, juniors with a London criminal practice derived about two-thirds of their incomes from legal aid in 1976 77 more than 90 percent from all public funds. The state thus paid for the doubling of the Bar. Although the Bar has advocated greater client eligibility and more generous payments to barristers, much of the growth of the legal aid budget is attributable to the extrinsic social phenomena that generate demand for legal services, such as crime and divorce. Nor has the Bar had to worry about the impact of these new sources of demand on the distribution, and particularly the concentration, of business.same fashion as are briefs from private clients: by solicitors dealing with barrister s clerks. First, the state is both more powerful than many private clients and less willing to acquiesce in the Bar s restrictive practices: it sets the fees for criminal legally aided work, and legal aid committees decide whether a Queen s Counsel is required and whether the latter needs the assistance of a junior. Second, a Bar that derives half of its income from the state no longer can make as persuasive an argument for its independence and altruism and thus for its claim to be a profession.SOLICITORS AND THE PRIVATE MARKET In one respect, the situation of solicitors is similar. Conveyancing, which has provided half of the income of solicitors for at least a century, rises and falls with the economy. Fortunately, the dramatic growth in the production of solicitors during the last two decades coincided with an equally pronounced increase in the value of housing, superimposed on a long-term rise in the prevalence of home ownership and the geographic mobility of the population. This may be part of the reason why solicitors have been so passive in the face of incursions by accountants and members of other occupations in the fields of tax advice, government regulation, and general business counseling. As real estate values stabilize or decline and solicitors lose some or all of their conveyancing monopoly, however, they will have to look elsewhere for new demand. Unlike barristers, solicitors have not relied heavily on legal aid. One reason is that solicitors have earned only a quarter of their incomes from contentious work and only a small proportion of this from cases that are likely to be legally aided, such as criminal defense , personal injuries , and matrimonial matters . Since solicitors have rights of audience only in the lower courts, the cases that they can handle are less serious and consequently command smaller fees; and the legal advice scheme also discourages lengthy or elaborate consultations.profitably only when they are mass-produced. Consequently, whereas most barristers do a fair amount of legal aid work, at least in the early stages of their careers, and thus share a collective interest in the institution, only about a third of all solicitors firms earn even a tenth of their incomes from this source. Other forms of demand creation also pose serious problems for solicitors. Even if the latter may be more impressionable , they also are more difficult to reach because they are more numerous, more anonymous, and much less interested in legal services. They can engage in advertising directed at their mass market indeed, the Law Society launched several institutional campaigns in the 1970s and recently allowed individual solicitors to advertise. Such efforts are likely to be expensive and relatively unprofitable, however, at least unless the investment is substantial and continuous over a long period. And it runs the risk of encouraging dependence on the favor of occupations that channel clients to solicitors police, for instance, who advise criminal accused, or real estate agents who counsel home buyers.But the greatest problem is that successful efforts to create demand inevitably tend to affect its distribution. Advertising by an individual firm probably is a good deal more productive than the institutional campaigns of the Law Society, but it benefits only that firm. The problem becomes more acute when public resources are used to create demand, for then all qualified producers seem to feel an entitlement to share equally in the additional business generated. Such a belief may underlie the Law Society s dissemination of lists of solicitors willing to handle legal aid matters, the rapid proliferation of Duty Solicitor schemes , the rosters of solicitors who volunteer to work at or take referrals from Citizens Advice Bureaus, and the initial hostility of solicitors to law centers thought to concentrate publicly subsidized work among employed lawyers.when it tums to publicly created demand, solicitors thus run the risk of intensifying intraprofessional competition when they seek to stimulate demand in the private market. THE SOCIAL ORGANIZATION OF THE PROFESSION Both the strategies and the successes of the professional project of market control influence, and are affected by, the social organization of the two branches. We can trace these linkages by examining differentiation within the legal profession, the nature of the productive unit, and the consequences of both for stratification. INTERNAL DIFFERENTIATION The nineteenth century was a period of professional consolidation, the end product of which was the present division into two main branches. That same year the merger of law and equity reduced the distinctiveness of the Chancery Bar and formally eliminated the demarcation between solicitors and attorneys. Special pleaders and conveyancers, who had emerged several hundred years earlier in response to the enormous complexities of pleading and of encumbering and transferring land, had vanished by the end of the nineteenth century.The fundamental division of the profession into two branches persisted and even rigidified . Smaller firms derive economic power from their ability to delay payments to barristers, although the Bar recently has begun to retaliate. Furthermore, the greater economic security of solicitors is counterbalanced by the superior social status of barristers itself a composite of history, ascribed characteristics, functions, conventions of deference, the visibility of a few stars, and an exclusive relationship with the bench. If the division into two branches seems relatively fixed, there have been ?significant changes in differentiation within each. With the growth of provincial courts and the decline of circuits, however, provincial chambers expanded rapidly, containing a quarter of the Bar by the 1950s and nearly a third today. By the end of the nineteenth century they had established a number of provincial training centers for articled clerks, who naturally are found wherever there are solicitors. It is not surprising, therefore, that the distribution of solicitors for the last hundred years has been the inverse of the present distribution of barristers: two-thirds have practiced in the provinces and only a third in London. On this measure, as on others, the Bar enjoys greater social cohesiveness , a fact that may help to explain the different role of professional associations in the two branches. A second parameter along which differentiation has increased is employment . Although we lack adequate data, it seems unlikely that any barristers were employed until the beginning of the twentieth century, at the earliest. Some solicitors always have been employed in private practice; more recently, they have been employed by government and by commerce and industry. Consequently, employed solicitors rose from a quarter of those holding practicing certificates in 1939 to a third in 1957 and a half today. Employed barristers need not complete a pupillage, they lack rights of audience, they do not observe Bar etiquette and are not subject to Bar discipline, and few ever enter private practice . Moreover, although there is relatively little mobility between private practice and employment by public or private entities, all private practitioners spend at least three years as assistant solicitors employed by firms, and most spend the bulk of their professional lives as partners employing assistant solicitors.graphic shifts described above, thus has had a greater effect on the social integration of the Bar than on that of solicitors. The category of private practitioners is further differentiated in terms of clients served and subject matter handled. Not only is the Bar as a whole more dependent on public funds, but the degree of dependence varies greatly with the barrister s age and specialty, from 1.5 percent of the income of London Chancery and specialist Queen s Counsel to 91.7 percent for London juniors with a criminal practice. Most solicitors, by contrast, earn little or none of their incomes from legal aid; but the 5 percent who specialized in such matters earned a third of the 100 million in public funds paid to solicitors for contentious business in 1980 81. Both branches thus are witnessing the emergence of a dual market, one public and the other private, although the lines of division are very different. Barristers and solicitors also differ in the nature and extent of subject-matter specialization. Indeed, almost all smaller firms perform the same broad range of work, the core of which is conveyancing; in this they resemble the local greengrocer, chemist, or stationer, whose market niche depends on geographic convenience. This difference between the branches presumably reflects the fact that the clients of barristers are solicitors, who can channel work to specialist chambers, whereas the clients of solicitors are laypeople, who must be offered a full range of services in order to attract and retain their business. Therefore, a profession that had only three main divisions at the turn of the century the bench, the Bar, and solicitors now has many more employed barristers and solicitors, private practitioners who rely largely on public funds, and specialist chambers.STRUCTURES OF PRODUCTION When we turn from the social organization of the profession as a whole to the structure of the units within which private practitioners produce services, we find further changes in both size and composition, as well as significant differences between the branches.grown, and their membership has altered.2 principals.5 principals, three-quarters of all firms had fewer than four principals, and 93 percent had fewer than six. Even in 1979, 58 percent of all firms had only one or two principals, and 82 percent had fewer than five. To the extent that this situation reflects the comfortable market niche secured by the conveyancing monopoly, it is likely to change as a result of incursions by licensed conveyancers and the competition that this fosters among solicitors . As the erosion of market control makes it more difficult to extract the customary profits from clients, solicitors will be forced to intensify the extraction of surplus value from subordinates, a development that I discuss further below. One likely trend is the expansion of firms through the creation of suburban branch offices; in 1978, for instance, a third of all firms already had at least two offices, and a tenth had three or more. Furthermore, even if the median productive unit has remained small, a few large firms have emerged since World War II. I found none with more than ten principals prior to the war and only a dozen with as many as five. Yet, five firms had ten or more principals by 1950, twelve had reached this level by 1960, ten had at least twenty principals by 1970, and forty-six are this large today; the largest contains more than 200 solicitors.6 branch offices per firm. The growth of these larger firms is partly a response to the size of their corporate clients and the need to specialize in order to handle more complex and more varied legal problems. But it also is related to changes in the use of subordinated labor, the explanation for which is both historical and economic. Legal executives, as they now were called, made somewhat awkward employees, for they were of the same age and gender as their employers and often from a similar social class, some were just as well trained, and they stayed long enough to expect advancement. First, the role of legal executive has been significantly feminized: almost half of the fellows admitted by the Institute of Legal Executives in 1983 84 were women.by assistant solicitors; although 60 percent of the latter still are male, all are temporary employees, moving either up to partnerships or out to other positions. The enormous increase in the production of solicitors, together with the rule requiring all new entrants to work as employees for three years before setting up on their own or in partnership with another, have provided a constant supply of eager recruits. There has been a concomitant decline in the number of new ILEX fellows since the 1960s and in the numbers of new ILEX students and associates since the 1970s. In the ten years during 1966 to 1976, the number of legal executives remained constant, while the number of articled clerks increased by a third, and the number of assistant solicitors grew almost 90 percent, with the result that the ratio of assistant solicitors to principals rose while the ratio of legal executives to principals fell. These changes in the labor force may have been motivated by considerations of profitability as well as the fact that trainee solicitors were more available and perhaps more docile. The difference between the cost of labor to firms and its price to clients is greatest for assistant solicitors and least for legal executives, with articled clerks falling in between. The profitability of using the labor of assistant solicitors also increases with firm size; so does the ratio of assistant solicitors to principals. In 1976 the average firm with ten principals or more had twice as many assistants per principal as the smaller firms ; in 1984 85, the average firm with sixty principals or more had two and a half times as many assistants per principal as did the firm with twenty to thirty principals. This more intensive and extensive exploitation of subordinated labor undoubtedly is part of the reason for the higher incomes enjoyed by principals in the larger firms. At the same time, only the larger firms can increase at a rate that holds out to assistants the possibility of a partnership whose rewards outweigh the sacrifices of a prolonged apprenticeship. If I am correct in attributing the growth of solicitors firms to the relative availability, pliancy, and profitability of assistant solicitors as subordinates, we can expect further divergence between small and large firms in terms of the labor they employ.The structure of practice at the Bar has changed even more radically, but in different directions. Although most nineteenth century barristers practiced alone, by the late 1950s the average set contained more than seven barristers in London and five in the provinces.is a recent phenomenon: only 5 percent of London sets had more than fifteen barristers in 1965, whereas half did so by 1976. Today, nearly three-fourths of London sets contain at least fifteen barristers , and so do more than half of all provincial sets. Furthermore, unlike solicitors, few barristers still practice in small groups: a quarter of all London sets and half of all provincial sets contained fewer than six barristers in 1961, but now only 3 percent of London sets and 9 percent of provincial sets contain fewer than five barristers. Only 2 of the 336 sets have thirty barristers or more, however, and the largest, with forty-five barristers, does not begin to approach the size of the larger solicitors firms. Chambers have grown for some of the same reasons that impelled the expansion of solicitors firms. Size confers its own prestige; together with internal diversity or balance among the members of a set , it attracts and keeps business. But the central dynamic of growth has been different because of the absence of subordinated labor: barristers in private practice cannot be employed ; and the barristers clerk is an independent contractor, not an employee. Partners in solicitors firms have a profound interest in the clerks they accept for articles and the assistant solicitors they hire: both will be performing work for which the partners are responsible and also are candidates for partnership. Barristers who accept pupils and heads of chambers who fill tenancies undoubtedly are concerned with the quality of those they select, but not for these reasons. Young barristers are acutely affected by the prominence of the older barristers in their chambers and the entrepreneurial skills of their clerk, however, for it is these that attract most of the work the new recruit is likely to obtain. However, the greatest difference between chambers and firms is the role of the barristers clerk. Furthermore, whereas the legal executive is only minimally differentiated from the solicitor in terms of class and training and even may aspire to become a solicitor, the barristers clerk generally comes from a working class background, has no education beyond secondary school, and never becomes a barrister. Despite these differences, the clerk is less subordinated than the legal executive or trainee solicitor and is a petty bourgeois rather than an employee. Barristers clerks wield considerable power over the younger members of chambers: allocating briefs when solicitors have not specified a barrister or when the preferred barrister cannot accept the brief ?or has returned it; and influencing the selection of tenants, particularly from among pupils.Most importantly, whereas solicitors firms have grown, in part, because partners seek to enhance their profits through subordinated labor, the expansion of barristers chambers redounds primarily to the economic benefit of senior clerks. Since most are paid a proportion of the brief fee and each set contains only one senior clerk , the senior clerk s income varies directly with the number of barristers in the set. Consequently, clerks certainly have not been unhappy about the lack of space in the Inns, which has inhibited the fission of sets. Given this space shortage, economies of scale, the self-interest of clerks, the prestige that attaches to growth and size, the commercial advantages of internal differentiation, and the relative absence of economic tensions within chambers because barristers do not share profits, we can expect further expansion. For solicitors, it signifies the intensification of capitalist relations of production and a widening division between the larger firms that have followed this route and the smaller firms that have not. Although the prohibition of partnerships and employment at the Bar precludes this development, the growth of chambers does signify an intensification of hierarchy as greater power accrues to both the head of chambers and the senior clerk. STRATIFICATION Inevitably, the forms of differentiation traced above also structure inequality within the profession. It is essential to distinguish stratification that is relatively permanent, and therefore threatens professional cohesion, from situations where assignment to a stratum is temporary, and mobility can strengthen professional integration. Geography affects the power, wealth, and status of practitioners in both branches, but these differences appear to generate more tension among solicitors, perhaps because the majority are located in the provinces while professional advantages are concentrated in London. The principal division among solicitors is firm size, however, which reflects clients served and functions performed and affects solicitor income and status. Furthermore, recruitment to the larger firms seems to be influenced strongly by the academic institution attended and the degree attained, both of which correlate with background variables such as class. ?This form of stratification is almost certain to intensify with the proliferation of large firms and their continued growth. Although barristers chambers also differ by size and specialty, these variables do not appear to define as strongly the status of individual barristers within them, and there is increasing movement between sets. A very significant exception to both generalizations, however, are the so-called ghetto chambers occupied primarily by black barristers a phenomenon that contradicts the universalistic pretensions of the Bar. Other professional divisions are characterized by varying degrees of mobility. Although barristers still enjoy higher social status than do solicitors, the entry requirements of the two branches have converged, and transfer between them is far easier than it once was, if few avail themselves of the opportunity. Like all professions, those of the law hold out to their members the hope of attaining higher income, status, and power with age. But whereas most articled clerks become assistant solicitors and end as principals, and any solicitor who wishes can play a role in the local, if not the national, law society, the career ladder at the Bar is unusually long and steep, and progress up it far less certain. Not all pupils obtain tenancies; not all fledgling barristers earn their keep and remain in private practice; not all juniors become Queen s Counsel; not all Queen s Counsel become judges; and not all older barristers become heads of chambers or benchers. Whereas the highest decile of solicitors earn only two-thirds more than the median and those forty years or older, only two-thirds more than those under thirty, the highest decile of barristers earn more than twice the median and those forty years or older, almost three times as much as those under thirty. For solicitors, therefore, the problem posed by stratification is to explain the relatively permanent distribution that occurs at the beginning of legal careers: of law students among apprenticeships and of clerks who have completed their articles among law firms and other forms of employment. The early and irrevocable assignment of position within the system of stratification would seem to pose greater problems for the unity of solicitors than the later, more gradual, and apparently more reversible assignment of status to barristers. Stratification among solicitors has not been associated overtly with racism because there are so few blacks , and women have been hired by some of the larger firms in proportion to their representation among law graduates . Although stratification at the Bar may be more fluid than it is among solicitors, the pretense that it simply reflects meritocratic ?principles that success rewards ability and effort thus is more thoroughly undermined by the visible correlation between the stratum attained and the race and gender of the aspirant. PROFESSIONAL ASSOCIATIONS In tracing the trajectory of the professional project among barristers and solicitors, I have not yet discussed the instrument through which they pursued their goals the professional association. I will begin by describing the emergence and consolidation of structures for collective action during the nineteenth and early twentieth centuries before examining their responses to the challenges of the postwar period. THE INSTITUTIONAL FRAMEWORK Barristers entered the nineteenth century as a fully mature profession. Since most of their professional activities occurred in open court, they constantly were subject to the scrutiny of both judges and their fellow barristers. Consequently, it is not surprising that formal structures for self-governance were relatively weak and highly decentralized. Each of the four Inns admitted its own students, called them to the Bar, and was responsible for discipline; however, there is no evidence that they exercised any real scrutiny over admissions or calls or took their disciplinary functions seriously. Consequently, although the Inns cooperated in forming the Council of Legal Education in 1852, the Council had hardly any full-time staff until after World War II and attracted few students.1872 only as a reluctant concession to the example of solicitors and the threat of fusion. During much of the nineteenth century, the circuits may have exercised more significant social control; however, their authority over entry and behavior was entirely informal and their actions even less coordinated than those of the Inns. The only centralized professional association was the Bar Council, created at the end of the century at the initiative of younger barristers who feared that solicitors were threatening their market. More than either the Inns or the circuits, it actively sought to promote the economic interests of barristers and may have helped to formalize such restrictive practices as the two-counsel and two-thirds rules. The Bar Council derived all its financial support from the Inns, however, which were extremely parsimonious, and it enrolled only a small proportion of all barristers. Until well after World War II, therefore, barristers were governed by a miscellany of uncoordinated institutions but actually relied on tradition and informal understandings to control their market and regulate professional behavior. Solicitors present a marked contrast in almost every respect. The eighteenth century Society of Gentlemen Practisers was moribund, and the only vital organizations were local law societies in a few provincial cities. It retained both characteristics throughout the nineteenth century: London solicitors dominated ; and fifty years after its inception only 25 percent of practitioners had joined. Provincial solicitors continued to invest primary loyalty in their local law societies, which formed federations that competed with the national organization until well into the twentieth century.But even if the institutional structure was flawed, the Law Society energetically mobilized whatever resources it possessed to pursue the professional project.tered these, the Law Society soon took over. Solicitors were less successful in controlling production by producers, for the courts, rather than the Society, regulated fees and demonstrated their solicitude for the public interest by establishing maxima rather than minima. In response, the Law Society promulgated a practice rule prohibiting fee cutting and encouraged local law societies to set minimum fees at or near the judicial maxima. Second, solicitors sought to persuade the courts to hand over disciplinary powers. The Society was authorized to present charges of misconduct to the Supreme Court in 1873, to conduct a preliminary hearing in 1888, and finally to constitute the disciplinary tribunal in 1919, although solicitors still could seek judicial review. Unlike barristers, solicitors did not rely on traditional conventions about proper behavior; ethical precepts were imbodied in judicial decisions and, after the Law Society obtained statutory authority in 1933, in its practice rules. Third, the Law Society responded to a problem that uniquely threatened the collective status of solicitors financial misconduct. In response, the Law Society successfully sought legislation making such conduct criminal; five years later it secured the right to suspend a practicing certificate on the same ground and required newly qualified solicitors to pass an examination in accounting. In 1935, under legislative compulsion, it required solicitors to keep and report client accounts , and in 1942 it compelled solicitors to contribute to the compensation fund. Whereas barristers preserved their traditional decentralized institutions and relied heavily on informal control, solicitors thus created a new central institution that constantly sought to expand its formal control. POSTWAR CHALLENGES The changes the legal profession has experienced since World War II have induced some convergence in the structures and processes of governance in the two branches, but significant differences remain. The Bar, as we saw, has become more heterogeneous in terms of race and gender, more youthful, and more dispersed ; however, governance of the Inns hardly has changed in response.sented 90 percent of the practicing Bar. Yet a few may be able to retain some autonomy from informal influences because they have physically isolated themselves from the Inns or because their members, head, and clerk are predominately black, female, youthful, or politically dissident. The greatest institutional transformation in the governance of barristers was the creation of the Senate of the Inns of Court and the Bar in 1966. Its governance still is not much more representative than that of the Inns , however, for there are only three women and no blacks in the Senate. Furthermore, within that moiety of all barristers who are employed, probably no more than half belong to the Senate, and only 8 serve on its governing body of more than 100. In addition, although the Senate has centralized the disciplinary powers previously exercised by the four Inns, the new structure like all forms of professional self-regulation seems intended more to shield barristers from criticism than to change behavior or punish misconduct. Only 3 percent of complaints between 1968 and 1982 led to disbarment, and only I percent led to suspension; the other 96 percent resulted in no significant penalty. In addition to these institutional changes in its structures of governance, the Senate formalized the substantive rules of ethics by promulgating the first Code of Conduct in 1980. Furthermore, dictum in a 1969 case exposing barristers to the threat of malpractice liability for noncontentious activities has led insurers to settle several claims and convinced the Senate to require barristers to carry professional indemnity insurance. Barristers today thus operate under a structure of formal, centralized self-regulation and the specter of increasing external regulation a situation similar to that of prewar solicitors. The Law Society also has had to cope with growing diversity in the background of solicitors, the functions that they perform, and the structures ?within which they practice. Although almost all private practitioners now belong to the Society, its governing council is not remotely representative of the general membership. Women presently hold more than 10 percent of practicing certificates and constitute more than 40 percent of newly admitted solicitors, but the first woman was appointed to the seventy-person council only in 1977. Nearly one out of every ten solicitors is a sole practitioner, but there are none on the council; two-partner firms contain 16 percent of all principals, but such principals represent only 4 percent of council members.This disenfranchisement not only has caused tension and apathy within the Society but also has led to the emergence and growth of rival organizations. The creation of the British Legal Association in the 1960s and its survival for two decades reflects the persistent dissatisfaction of younger solicitors, provincial solicitors, and solo and small firm practitioners. Large firm principals, although still a minority, are likely to insist on governing their own domain, resisting interference by professional associations. At the other end of the status hierarchy, articled clerks, assistant solicitors, and junior employees in government or industry may prefer trade unionism to professionalism. That hallmark of a profession the capacity to act collectively through a single organization which solicitors struggled to attain during the nineteenth century, appears to be fragmenting as the interests of discrete and sometimes antagonistic segments are expressed through forms that may be antithetical to professionalism. The institutions of self-regulation created by the Law Society in the early twentieth century have been strained by postwar changes. Clients also are reluctant to make accusations; only a third of those with grievances complained to anyone, and only 6 percent of complainants addressed the Law Society. Even so, there are more than five times as many complaints per solicitor as there are for each barrister, probably because solicitors have so much more client contact.Society discipline, like that of the Senate, exculpates far more than it punishes. More than two-thirds of all complaints are found unjustified by the investigative body , and others are terminated with only a reprimand. In those cases sent to the Disciplinary Tribunal, less than half of the solicitors are struck from the roll or suspended. In summary, the Society punished less than I percent of all solicitors who were the object of complaints between 1973 and 1979. Public dissatisfaction with this record, together with periodic scandals, have led the Society to appoint lay members to the Disciplinary Tribunal, establish a Lay Observer to hear complaints about the disciplinary process, and, most recently, add laypersons to the Professional Purposes Committee ; however, these reforms appear to have achieved neither a significant voice for the laity nor the restoration of public confidence. Self-regulation has been threatened from other directions as well. First, although the Society hired a staff to investigate solicitor accounts in 1945 and has enlarged it steadily, the compensation fund has had to make increasingly greater payments to the clients of defaulting solicitors, rising from about 100,000 a year in the 1960s to nearly 2,000,000 in 1984 an increase that far outstrips the combined effect of inflation and the growth of the profession. Given the sums involved, it is not clear how long the Law Society can preserve this as an ex gratia scheme rather than a legal liability. In the 1960s, only about half of all solicitors carried malpractice insurance, and less than 10 percent were sued each year. The Law Society required insurance in 1976, and one index of the greater frequency, magnitude, and success of malpractice claims is the fact that premiums doubled in the next four years. Furthermore, the apportionment of the Law Society s master premium among solicitors recently became a point of bitter contention between the larger City firms and small firms and sole practitioners, leading to an upsurge in support for the position of the British Legal Association. Competence increasingly is evaluated by the courts rather than the Law Society, therefore, and there is a real danger that the latter also will lose some or all of its authority to punish ethical violations and to deal with financial misconduct. THE TRAJECTORY OF PROFESSIONALISM BARRISTERS AND SOLICITORS AS ALTERNATIVE MODELS The history of barristers and solicitors during the last two centuries offers unparalleled insights into the trajectory of professionalism.branches must resolve similar problems because they perform overlapping functions within a common social, economic, and political environment. Solicitors, by contrast, still had to carve out their place within the division of labor and weld disparate occupations into a unified whole, while trying to legitimate the new entity by reference to utility rather than history.These attributes and resources help to explain the divergent strategies adopted by the two branches in pursuing the professional project of market control and collective mobility. As long as possible, barristers sought to evoke an aristocratic ideal, employing ascribed characteristics qualities of the whole person as the principal, sometimes the sole, criterion for entry. Solicitors, by contrast, initiated their struggle for supply control by imposing measures of technical competence, which they gradually made more rigorous. Whereas the barriers to becoming a barrister were relatively informal and invisible most notably pupillage , tenancy, and the difficulty of obtaining business the professional examinations that the aspiring solicitor had to pass were highly formal and visible. The restrictive practices by which barristers limited intraprofessional competition for instance, membership in a circuit, the role of chambers and clerks, or relations between seniors and juniors were traditional and initially informal, although they were gradually formalized toward the end of the nineteenth century. Solicitors devoted considerable energy to refining ethical rules, created a single, formally representative, professional association, and publicly sanctioned the most egregious forms of misconduct. At the beginning of the postwar period, therefore, the Bar had preserved largely intact a premodern profession that sought its warrant in gentility and tradition and controlled its market through relatively informal, invisible mechanisms, whereas solicitors had created a modem profession that derived its legitimacy from claims of meritocracy and utility and controlled its market through highly formal, visible mechanisms. Given these divergent histories, it was inevitable that the two branches would respond differently to the challenges of the last few dec- ?ades. Both suffered an erosion in their control over supply, as a result of the growth of higher education and the decline of gender as an entry barrier. We might have expected solicitors to retain greater control through their reliance on more stringent, formal, visible, and meritocratic criteria; however, the reverse seems to be true. Although the increase in the number of barristers was earlier and proportionally greater, the Bar also has been able to reassert control first by continuing to apply its more traditional, informal, invisible, and ascriptive criteria in the selection of pupils, the grant of tenancies, and the allocation of business. Both branches also have responded to the erosion of supply control by diverting entrants away from private practice and into employment in government or industry and commerce, but once again this has done more to relieve the pressure of numbers within the private Bar. Half of all barristers now are employed; and because they lack a right of audience, they cannot compete with those in private practice . Employed barristers are less well integrated within the profession, however, as shown by their lower rate of subscription to the Senate. The erosion of supply control also undermines the professional project by increasing heterogeneity within the profession, thereby endangering both its unity and its collective status. First, there has been some segregation of blacks, women, and political activists into separate chambers, as a result of both discrimination and self-selection. Second, the Bar holds out to all entrants the promise of ascending a lengthy career ladder: earning more, handling weightier matters, representing more prestigious clients, taking silk, and becoming a head of chambers, a Senate member, a bencher, or a judge. This simultaneously controls and integrates recent entrants, who are both more diverse and less socialized than their predecessors; it also preserves the status of those at the top from taint by association with those at the bottom. But the legitimacy of this hierarchy depends on preserving an image of equal access to the apex: to the extent that strata become visibly associated with the race, gender, or class origins of their members, the hierarchy may become a source of internal tension and public opprobrium. Their solution has been an apprenticeship that is both longer two years of articles and at least three as an assistant and more intensively supervised. In the course of this, solicitors distribute new entrants fairly permanently to professional strata defined by firm size, specialty, and geographic location. Here, again, the legitimacy of the hierarchy will depend on whether partnerships and firms are perceived as equally open to all especially to women. ?Weakened control over the production of producers also endangers control over production by producers. Although some rules had to be repealed when formalization exposed them to hostile public scrutiny, barristers still were able to dampen intraprofessional competition through informal understandings. Because advocacy constitutes the core function of the legal profession and contains a good balance of technicality and indetermination, the Bar s exclusive rights of audience have survived largely intact. But much of solicitors work occupies the periphery of the lawyer s role; although tasks are technical, many also are determinate and thus can be performed by nonprofessionals. Just as solicitors constantly ceded ground to other occupations, so now they have lost their monopoly over conveyancing and with it their ability to set the fees for those conveyances they continue to perform. Barristers also have been more successful in creating demand because, as mediators between citizens and the most visible forms of state power, they perform a core function that the polity feels obligated to subsidize. Economic survival has been attained at considerable cost, however; when half the income of the Bar is derived from public funds, professional control over the market is problematic, indeed. Both branches have had to respond to heightened competition and the consequent pressure to rationalize the market for their services. As barristers chambers have grown in size, they have become increasingly significant as the unit of production, notwithstanding the prohibition against sharing fees. Especially in lesser matters, solicitors often send briefs to chambers rather than to specified barristers, and clerks enjoy considerable discretion in distributing them. By performing much of the dirty work of getting and allocating business, clerks relieve barristers of the need to engage in such patently commercial practices as advertising. Consequently, despite the increased size and importance of chambers and the growth of hierarchy within them, at least the more senior barristers remain independent professionals. Solicitors have responded to competition differently. The rapid growth in the size of firms, the proliferation of branch offices, and now the possibility of advertising all foster concentration within markets that are becoming increasingly regional, if not yet national. Solicitors no longer can rely on conveyancing to assure themselves a comfortable living, and continuing incursions by lay competitors will compel solicitors to reach out toward new clients, subject matters, and functions, thereby increasing differentiation within the profession.employment of both solicitors and paraprofessionals. First as an employee and later as an employer, the solicitor is being transformed from an independent professional into a worker and then a capitalist; in both cases, the solicitor is inextricably enmeshed within capitalist relations of production. The last problem confronting lawyers is their capacity to engage in the self-regulation that is both the privilege and the responsibility of all professions. In any case, the official associations have lost significant power over their members to both the state and the ever-larger and more bureaucratic units of production, such as public and private employers, barristers chambers, and solicitors firms. Attempts to restore popular legitimacy by coopting laypersons onto governing bodies and disciplinary boards have produced no measurable increase in public respect.THE FUTURE OF PROFESSIONALISM In light of the experience of recent decades, what does the future hold for the English legal professions? The dilemma of prediction is that its stimulus typically is some unanticipated change but its technique remains the extrapolation of existing trends. At the risk of falling into just this error, I will refrain from trying to forecast further shifts as abrupt and unprecedented as the expansion of higher education and the entry of women, which initiated the present era of change, and content myself with speculating about the cumulative effect of recent tendencies. Barring a drastic contraction of academic legal education, which seems politically unfeasible even if it might be attractive to the present Government, both branches will continue to grow until the cohorts of older lawyers all have retired. Each branch will expand by about half before the end of the century and then grow at a lesser rate for another ten years. Because private practice cannot absorb these numbers, government and industry and commerce will employ the excess, with the result that legal education will become less a professional qualification and more a credential for membership in the administrative class .Younger barristers will continue to be almost entirely dependent on public funds and, in that way, subject to state control. Younger solicitors will have little choice but to seek employment in increasingly hierarchical and bureaucratic firms, attracted by an ever-receding prospect of partnership. Moreover, all solicitors must resign themselves to losing more business to lay competitors; to the extent that firms respond by increasing their use of paraprofessionals, this will displace even more solicitors. If, as a result, the Law Society tums its attention in the other direction and renews its attack on barristers exclusive rights of audience, the similarity of academic education and professional training in the two branches will make it increasingly difficult for the Bar to resist. The consequence may be fusion, although some lawyers will continue to specialize in advocacy in response to consumer choice rather than professional rules. In any case, such professional associations will be largely irrelevant to employed lawyers ; and collective self-regulation will be supplanted by both direct state control and bureaucratic controls within the units of production. Professionalism in the sense in which both champions and critics have used that concept during the last two centuries will not disappear. It will persist as both a nostalgic ideal and a source of legitimation for increasingly anachronistic practices, although it will lose considerable credibility. It will continue to reflect the experience of a dwindling elite some profit-sharing partners in solicitors firms and the handful of more successful barristers who will remain largely impervious to state control and continue to dominate their markets and govern their professional associations. For the mass of lawyers, however, occupational life will mean either employment by a large bureaucracy, dependence on a public paymaster, or competition within an increasingly free market. Whichever they choose, these lawyers no longer will enjoy the distinctive privileges of professionals control over the market for their services and high social status.Tables 2.1.Barristers Solicitors Educationc Year Census Private practice Starting practice Calls to bara Census Practicing certificates Admitted to rollb Law students Law degrees 1985 5,367 335 945 46,490 2,687 1984 5,203 325 902 44,837 2,728 1983 5,032 323 1,052 42,984 2,596 14,362 3,816 1982 4,864 282 936 41,738 2,241 1981 4,685 270 904 39,795 3,223 1980 4,589 309 862 37,832 3,538 12,603 3,564 1979 4,412 302 896 34,090 2,552 12,105 3,411 1978 4,263 285 954 32,864 2,538 11,817 3,328 1977 4,076 326 843 32,812 2,480 11,430 3,102 1976 3,881 382 857 31,250 2,184 11,136 2,635 1975 3,646 364 902 29,850 2,203 10,273 2,374 1974 3,368 299 741 28,741 1,849 9,223 2,180 1973 3,137 321 913 27,379 1,764 8,259 2,004 1972 2,919 275 1,011 26,327 1,713 7,335 1,817 1971 2,714 222 979 25,366 1,682 6,574 1,709 1970 2,584 241 935 24,407 1,877 5,998 1,558 1969 2,448 137 688 23,574 1,365 1,558 1968 2,379 139 525 22,787 997 1,451 Table continued on next page ?Table continued from previous page 2.1.Barristers Solicitors Educationc Year Census Private practice Starting practice Calls to bara Census Practicing certificates Admitted to rollb Law students Law degrees 1967 2,333 206 559 22,223 1,107 1,306 1966 2,239 129 528 21,672 1,123 1,161 1965 2,164 138 751 21,255 1,009 4,204 1,072 1964 2,118 80 729 20,683 663 3,838 1963 2,073 158 792 20,269 805 3,543 929 1962 1,964 110 737 19,790 766 3,401 1961 1,918 108 687 19,438 685 3,169 1960 1,919 85 682 19,069 711 3,070 876 1959 1,923 88 692 18,740 784 3,002 1958 1,947 91 626 18,522 673 3,041 821 1957 1,968 97 546 18,344 734 1956 1,973 111 523 18,165 745 1955 2,008 114 601 18,143 695 1954 2,010 136 513 17,831 603 1953 1,907 155 536 17,687 649 2,640 1952 165 597 17,628 588 1951 3,084 174 501 19,689 17,396 717 1950 156 551 17,035 926 1949 196 514 16,318 895 1948 177 481 15,567 877 576 1947 131 372 15,348 904 1946 308 441 Table continued on next page ?Table continued from previous page 1945 169 12,979 180 1944 92 13,063 117 1943 105 13,340 122 1942 97 18,835 104 1941 156 14,430 194 1940 192 15,884 323 1939 319 17,102 567 1938 294 16,899 932 1,515 1937 290 16,478 831 1936 312 16,299 751 1935 293 16,132 630 1934 332 15,941 655 1933 319 15,783 595 1,804 1932 345 15,616 695 1931 2,966 321 15,777 15,668 615 1930 354 15,418 680 1929 342 15,297 610 1928 342 15,168 580 1927 336 15,143 440 1926 332 15,152 455 1925 389 15,132 455 1924 366 15,071 455 1923 422 15,026 444 1922 395 14,889 446 1921 2,953 315 14,956 14,623 383 1920 254 14,767 606 1919 298 14,380 335 Table continued on next page ?Table continued from previous page 2.1.Barristers Solicitors Educationc Year Census Private practice Staffing practice Calls to bara Census Practicing certificates Admitted to rollb Law students Law degrees 1918 149 14,040 81 1917 136 13,846 95 1916 176 14,362 111 1915 203 14,988 158 1914 344 15,887 351 1913 503 16,788 485 1912 414 16,759 494 1911 4,121d 357 16,739 489 1910 356 16,841 501 1909 337 16,797 561 1908 304 16,725 512 1907 322 16,741 590 1906 298 16,624 591 1905 322 16,508 593 1904 276 16,455 637 1903 260 16,362 558 1902 290 16,205 557 1901 4,733d 245 16,136 584 1900 210 16,006 593 1899 291 15,950 633 1898 260 15,810 581 1897 241 15,629 698e Table continued on next page ?Table continued from previous page 1896 264 15,518 698e 1895 270 15,424 698e 1894 299 15,402 698e 1893 303 15,281 698e 1892 270 15,165 698e 1891 4,823d 275 15,167 1890 271 15,090 662 1889 230 14,896 716 1888 259 14,788 842 1887 266 14,311 829 1886 257 13,893 882 1885 256 13,592 1884 246 13,390 1883 233 13,066 1882 268 12,961 808 1881 4,792d 256 12,565 1880 272 12,688 1879 262 12,263 1878 187 1877 252 1876 204 1875 259 1874 270 1873 280 1872 259 1871 244 10,576 227 Table continued on next page ?Table continued from previous page 2.1.Barristers Solicitors Educationc Year Census Private practice Starting practice Calls to bara Census Practicing certificates Admitted to rollb Law students Law degrees 1869 228 1868 203 1867 182 1866 211 1865 189 10.200 1864 178 1863 165 10.418 1862 179 1861 3,071 121 11,386 10,029 1860 120 1859 137 10,047 1858 132 1857 113 1856 113 1855 119 347 1854 140 1853 157 10,200 1852 1851 2,816 11,350 9,957 1850 10,087 1849 9,943 1848 Table continued on next page ?Table continued from previous page 1847 1846 1845 10,188 1844 9,042 1843 9,939 391 1842 1841 2,088 11,684f 1840 1839 1838 1837 1836 1835 10,436 1834 1833 1832 8,702 8,061 1831 9,083 a Between 1948 and 1974 overseas students gradually increased from a third of all calls to three-fourths before falling back to a fourth.b Figures for 1924-1934 inclusive are estimates. c First degree full time; excludes mixed degree, part-time, external, and postgraduate students. d Census combines solicitors and barristers; this figure is difference between census and solicitors with practicing certificates, it overstates number of barristers because many solicitors do not take out practicing certificates. e Average for the years 1892-1897 inclusive. f Includes law writers and law students. ?2.2.Year Part- ner- ship Assis- tant solici- tor Sole Prac- ti- tioner Sole practi- tioner and other employ- ment Sole prac- titioner and assis- tant soli- citor Sole practi- tioner and partnership Partner- ship and assistant solicitor Partner- ship and other employ- ment Com- missioner for oaths Con- sultant H.M Forces Not in active practice, retired, unem- ployed Com- merce.alized enter- prises Central govern- ment Local govern- ment Other full-time employ- ment Prac- ticing abroad 1985 22,053 11,793 4,031 121 80 58 a b a 2,057 b 114 1,989 163 2.896 1,037 98 1984 19,875 12,610 3,840 269 24 60 b b b 2,034 b 22 1,829 100 3,000 1,175 12 1983 19,467 10,591 3,908 338 32 52 b b b 1,906 b 46 1.931 106 2,869 1,679 19 1982 19,005 10,800 3,398 337 40 117 18 166 2 1,773 I 44 1,799 60 2,899 1,005 102 1981 18,377 I0,701 3,000 239 41 100 18 42 4 1,073 2 28 1,715 68 2,746 873 108 1980 17,922 9,580 2,815 305 16 96 16 92 6 1,590 3 15 1,636 160 2,027 809 78 1979 17,419 8,537 2,034 343 27 89 15 98 5 1.464 2 33 1,513 215 2,594 701 21 1978 17,061 7,645 2,478 184 16 89 14 66 4 1,382 2 32 1.235 258 2,520 771 104 1977 10,808 6,989 2,691 135 56 109 29 48 4 1,280 3 86 1,092 290 2,465 702 82 1976 16,400 6,223 2,895 131 65 153 22 39 2 1,031 I 33 952 336 2.370 561 36 1975 15,950 5,775 2,894 123 48 64 30 39 6 1,001 1 68 985 353 1.710 746 51 1974 15,387 5,226 2,778 103 66 89 24 69 9 965 2 49 1,143 428 1,905 344 34 1973 14,670 5,712 2,773 108 50 73 8 15 9 392 2 50 983 48 1,883 574 23 1972 13,657 5,860 2,719 143 131 139 11 11 7 381 1 42 851 48 1.804 484 38 1971 13,585 5,015 2,725 139 131 142 12 10 11 385 1 47 822 48 1,785 475 33 1970 13,401 4,252 2,738 127 128 133 12 10 8 391 1 52 795 49 1,776 501 33 1969 13,077 3,825 2,754 127 112 129 12 10 6 398 1 50 773 49 1,748 472 31 1968 12,784 3,474 2,769 112 95 119 12 9 6 380 1 50 745 47 1,721 430 33 1907 12,184 3,428 2,874 149 105 113 12 7 8 342 1 63 732 49 1,667 408 28 1966 11,686 3,367 2,987 181 122 120 17 28 7 296 1 71 677 47 1,672 363 30 1965 11,377 3,274 3,006 196 131 147 18 35 13 274 1 66 657 48 1,635 344 33 1964 11,099 3,142 3,014 161 135 141 15 43 8 230 2 62 632 49 1,592 327 31 1963 10,851 3,017 3,045 138 151 150 20 52 12 201 2 65 581 55 1,566 320 37 1962 10,539 2,943 3,057 124 139 167 12 53 8 198 7 47 523 54 1,544 336 39 1961 10,192 3,044 3,138 155 98 149 15 45 3 147 19 54 470 57 1,507 310 25 1960 9,897 2,887 3,289 103 104 122 17 43 7 122 28 57 458 46 1,464 351 14 1959 9,760 2,785 3,277 140 115 128 18 45 10 86 12 46 452 34 1,446 361 19 1958 9,717 2,704 3,245 138 113 117 18 43 5 68 40 48 407 35 1,413 347 18 1957 9,661 2,520 3,207 143 149 125 19 42 10 39 31 67 430 26 1,409 328 14 1955 9,500 2,500 3,500 404 37 1,375 309 1939 6,937 2,256 3,986 512 1991 a The central government obviously made two abrupt changes in its policies concerning whether solicitor employees had to take out practicing certificates, in 1974 and in 1981. b No longer separately identified. ?NOTE An earlier version of this chapter was presented as the Chorley Lecture in June 1985 and published in 49 Modern Law Review 1 . The data on English lawyers that ground my argument are presented and documented thoroughly in my book The Legal Profession in England and Wales . I have used the adjective English throughout as a shorthand reference to England and Wales; my comments do not apply to Northern Ireland or Scotland. I have been assisted in this research by so many people and institutions that I cannot thank them all individually. The Academic Senate, the Law School Dean s Fund, and the Committee on International and Comparative Studies of the University of California, Los Angeles and the Law and Social Science Program of the National Science Foundation all provided generous financial support. Aubrey Diamond helpfully arranged for me to present some of these ideas at a seminar at the Institute of Advanced Legal Studies, the participants at which offered invaluable comments and criticism. Stuart Anderson, Philip Lewis, Simon Roberts, David Sugarman, and Michael Zander have read drafts and furnished essential information, and Geoffrey Bindman has patiently answered endless questions.3 German Advocates: A Highly Regulated Profession ERHARD BLANKENBURG AND ULRIKE SCHULTZ WHY THE CONCEPT OF A LEGAL PROFESSION IS MISLEADING IN THE GERMAN CONTEXT THE ROLE OF ADVOCACY IN THE GERMAN LEGAL PROFESSION If Germans talk about the legal profession, they think first not about practicing lawyers but rather about all those who have passed two state examinations to become full-fledged jurists . Legal education is oriented not to the practice of law by Anw lte, or advocates who represent parties, but rather to the role of the judge who is above the parties. During the two-year apprenticeship before the second of two state examinations , future lawyers spend just four months in an advocate s office. For two centuries, judges and civil servants have dominated the legal profession numerically, and advocates have been the minority. It also has led to relaxation of statutory fee schedules and restrictions on advertising and specialization; in order to increase cooperation with competitors, such as estate agents, advocates may have to relinquish their monopoly over legal advice. ?Such a market perspective might surprise readers familiar with the literature on the German legal profession, which traditionally has concentrated on the roles of judges and civil servants and their orientation toward authority rather than on advocacy. That emphasis on law as government regulation rather than the assertion of individual rights accurately reflects the subordinate position of advocates within the occupational structure of the legal profession. The role of jurists in the ideology and institutions of the German state is shaped by statutory regulation of legal education and the legal profession. Contemporary changes may cause convergence with the more adversarial cultures of common law countries, a prospect that must be seen in the context of European integration and a general convergence of Western cultures. THE HISTORICAL WEAKNESS OF ADVOCACY WITHIN THE LEGAL PROFESSION Traditionally, legal training in Germany was education for the judiciary and civil service. The training of lawyers was strictly regulated by government, admission to the profession required passage of two state examinations, and careers open to jurists were regulated by admission quotas. According to our survey of the yearly influx of graduates from the first and second state examinations there are only very distant prospects for anyone as-piling to join the judiciary and to find admission therein; parents and foster parents of such young men can only be advised to deter them from studying law, unless they show extraordinary qualifications and are able to provide themselves with the necessary means of subsistence for at least ten years. The 4,300 positions in the Prussian civil service at that time included both advocates and procurators .There is ample historical evidence of the sovereign s deep distrust toward advocates. The Prussian King Friedrich Wilhelm I, enthroned in 1713, personally determined the number of lawyers admitted as advocates and prescribed the clothes they wore. Edict that those advocates, procurators, and draftsmen who dare make people rebellious by having soldiers hand over to His Royal Majesty petitions on the most negligible matters or any other documents on justice, such as those asking for pardon, shall be hanged with a dog hanged at their side, granting neither mercy nor pardon. In 1713 the courts to which lawyers sought admission as advocates imposed examination requirements in order to reduce incompetence and malpractice and to control the number of entrants. In 1780 a Prussian Royal Order actually abolished the profession of advocate, prohibiting representation in court and replacing advocates with civil servants , who were charged with assisting the parties while helping the judges investigate the facts. Former advocates were allowed to work as Commissioners of Justice , offering advice and representation in noncontentious legal matters such as land registration, probate, guardianship, bankruptcy, drafting contracts, and notarial work. This attempt to eliminate advocacy was bound to fail. The local courts, however, still exercised strict control over admissions because lawyers remained civil servants appointed by the state, even though private clients paid their fees. After 1871, when unification of the Reich demanded uniform regulation, there were attempts to establish a true free advocacy with unrestricted admission and rights to practice, separation from notaries, and the elimination of apprenticeship. In 1877 the Statute on the Constitution of the Judiciary made the judiciary autonomous, although it continued to regulate university education and apprenticeship, thereby strictly controlling access to the legal profession. In 1879 the Statute on Advocacy removed numerical limits, granting admission to the bar to all who had passed both state examinations. Continued ministerial supervision over the uniform legal education, together with the two state examinations, still prevented advocates from gaining control over entry to the profession under the Kaiserreich. Soon after the 1879 deregulation of entry, complaints were made about oversupply. Just as the Prussian Ministry of Justice had responded to complaints about a threatening supply of lawyers in the 1840s and in 1858 by persuading examination boards to make examinations more difficult, encouraging students to drop out, and discouraging some from entering, so the Reich Ministry of Justice did the same thing in the 1910s . ?The reasons for fluctuations in the number of law graduates in the nineteenth century resemble those operating today. A prosperous economy, which allowed more to attend university, caused increases in the number of law students in the 1820s, 1840s, and 1860s. Quotas for entry to the civil service and judiciary compelled law graduates to resort to other careers during economic contractions, although advocacy clearly remained a second choice for many. THE RECENT GROWTH OF ADVOCACY Advocates have been multiplying faster than civil service lawyers and judges since the turn of the century. During the 1980s the number of advocates increased 56 percent while that of approved business consultants grew 58 percent and tax accountants 78 percent. The growth of the legal profession, especially advocates, has been more closely related to political changes than has the growth of other professions. Since the bar never gained control over entry, its membership remained a function of access to law schools and to the other legal occupations within the judiciary and the government.Table 1 shows the trend toward long-term growth in the number of advocates in Germany once we discount political upheavals. Until the turn of the century, newcomers clearly were discouraged from becoming advocates rather than joining the civil service and judiciary. Examination standards were used to keep the expansion of the legal profession below the population increases resulting from natural growth and territorial occupation. In light of nineteenth-century industrialization and expansion of trade , these limitations led to uncontrolled growth in the number of scriveners, law clerks, and unregistered paralegals . Overcontrol of entry into advocacy thus led to a black market of unlicensed practitioners, who worked both clandestinely and as employees of and in the name of the few registered advocates.employ law graduates for years without pay by holding out the hope that they would gain entry into advocacy. This practice was unique among German states and sharply criticized in Parliament; nevertheless, it shows the extent to which the public administration controlled the careers of lawyers . Since the deregulation of entry to advocacy in 1879, the number of registered advocates has risen steadily . The Weimar Republic saw further deregulation of entry and a consequent rise in the number of advocates; from its inception in 1933, however, the Third Reich expelled from advocacy political opponents, the few women who had been admitted, and Jews. Nazi ideology also stressed the advocate s duty to guard the law rather than to represent and defend the interests of clients. Conflicts were regarded as detrimental to the welfare of the whole nation, and the purpose of advocacy was to persuade the parties to accept the wider interests of the state. In 1935 the Act Against Misuse of Legal Advice restricted admission as an advocate to elements who are loyal to the State. The expulsion of Jews was one element of a general suppression of liberalism, which advocates increasingly had been championing during the Weimar Republic . When the post-war Federal Republic of Germany sought to re-create democratic political and adversarial legal institutions, it also reinstated advocates in public life. Together with the expansion of educational opportunities and the job market, this stimulated the number of advocates to grow 18 percent from 1955 to 1964 and then 36 percent, 75 percent, and 50 percent in each succeeding decade. Advocates in the GDR were so severely restricted that they numbered only 600 in a country with 16.7 million inhabitants when the regime collapsed in 1989. During the brief year before unification in 1990 about 1,400 additional lawyers applied for registration: 300 from West Germany, and the rest from the East German judiciary, civil service, universities, or state industries . Most of the increase came from the former West Germany, since East German law students had to begin learning West German law, which was adopted at unification. West German law firms, which had been restricted to a single office, were allowed to open branch offices to fill the gap in legal services . ?PUSH AND PULL FACTORS Educational production rather than demand for legal services stimulated the growth of German advocates. The number of entering law students increased from about 10,000 between 1973 and 1979 to 14,718 in 1981 and 16,000 in 1990. Following unification it reached 22,000 in 1992 and will continue to increase as law faculties are opened in the former East. In the 1960s and early 1970s 30 to 35 percent of newly qualified jurists obtained employment in the civil service, but this proportion fell to 10 percent in the 1980s and rose again only after unification . The creation of a new judiciary and civil service in the former East opened many new positions for those qualified in the former West, but these vacancies will soon be filled. Openings created by the predicted wave of retirements at the end of the century will most likely be offset by the tendency toward privatization resulting from Europeanization and deregulation, which may eliminate many civil service positions. But the fear that recent entrants would not find enough clients and consequently become a lawyer proletariat remains unsubstantiated, although most do start as solo practitioners or partners in small firms they form themselves . The influx into all professions has resulted from the general educational expansion of the 1960s, which always outran the job market in the expectation that rapid economic growth would continue indefinitely.Disciplines with high per capita educational costs responded by restricting student numbers. Some still have not established quotas, and the new faculties in the former East continue to expand the number of places. Consequently, many denied admission to study their preferred subject enter law faculties; law is the second or third choice of at least 18 percent of all law students, almost half of whom preferred medicine, dentistry, or pharmacy .university qualifications entering law faculties has remained fairly stable during the last twenty years: about 5 percent of men and 6 percent of women. As jobs for jurists in the civil service and judiciary were limited by the fiscal crises of the 1980s, jurists were forced into advocacy the only lawyer job without entry limitations. Because professional organizations could not control supply they sought to expand the scope of legal services by relaxing restrictive practices and enlarging the traditional clientele of advocates. But German advocates still defend their monopoly over legal advice and representation at the risk of remaining restricted to a small market. The constitutional court and competition from non-German lawyers, however, is forcing advocates to reconsider this defensive strategy and is transforming the composition of the profession . THE JOBS OF GERMAN LAWYERS Becoming a lawyer in Germany still means choosing a salaried career as often as it means practicing as an advocate: about half of all jurists enter salaried positions in government, the judiciary, or business.A professional qualification, thus, is the gateway to many different occupations; it requires a university education plus in-practice training in judicial and governmental institutions. This uniform legal education, controlled by examination boards of the state Ministries of Justice, is a heritage of the time when legal education was predominantly the recruitment reservoir for higher positions in government administration. Because the choice of career has to be made soon after the completion of legal education, we describe legal education before surveying the jobs that German lawyers do. LEGAL EDUCATION To become a German jurist, one first must enroll in a university law faculty.has been an all-purpose choice. In 1992 there were 22,000 beginning law students in former West Germany alone and another 3,000 at the new law faculties in former East Germany. Even though scholarships were replaced by loans in the 1980s, university study remains an attractive low-cost option for all those passing their secondary-school examinations. There is widespread dissatisfaction with the quality of university legal studies, however. New regulations allowing students to take and fail the first state examination without penalty have reduced this period to nearly five years. Final oral examinations have been described as a conformity test to see whether the candidate s thought processes fit the appropriate pattern of perceiving, thinking, and judging . Two types of tutor can be distinguished: the impresario who runs a one-person business, and the large firms with employed tutors and branch offices in many university towns. Even private tutors cannot guarantee good results; to be successful, students must construct their own curriculum, and many form private study groups. Students restrict their reading to legal dogmatics, and traditional training omits even a basic exposure to philosophy, sociology, economics, or political science . In the late 1960s both the neglect of social science and the perceived need for some skills training led to demands for reform.approximately 12 percent of all graduating lawyers had completed these programs.Professional in-service training requires two years and reinforces the judge-centered tendency of German legal education. Training consists of specified periods in a trial court, a public prosecutor s office, and a local government authority, and an obligatory four months with an advocate. In addition, the trainee has to attend classes conducted by judges in civil and administrative law, by public prosecutors in criminal law, and by civil servants in administrative law. This orientation to the demands of judicial office is underlined by the fact that the examination panel consists mainly of judges, public prosecutors, and civil servants, whose experience shapes the examination. THE ALLOCATION OF GRADUATES TO LEGAL OCCUPATIONS Those who pass both examinations may choose among the different legal occupations largely on the basis of their performance on the second state examination, supplemented by the evaluation of their training judges. A Pr idi-kat always was a prerequisite for employment in the judicial service and often was demanded in the civil service, except between 1965 and 1975 and in the former Eastern states after unification, when graduates were in short supply. Given the current oversupply of graduates and the contraction of all civil service labor markets, even a Pr idikat may not continue to assure entry to the judiciary or civil service. Work as an advocate has become an alternative. In the 1960s and 1970s it rarely was a deliberate choice, except for those who inherited contacts with practicing advocates through family or friends or made contacts as a trainee.As we shall see, solo practice has been declining in recent decades, and young lawyers increasingly begin as law firm employees.supply of graduates increasing, starting salaries are decreasing, and it takes longer to become a partner. There is a reputational ranking among the thirty-two established law faculties, but the university attended has little influence on one s career.JUDICIAL CAREERS German legal culture is thoroughly judge centered. Procedural law gives judges a dominant role: they control the proceedings, direct the inquiry, suggest settlements, pass judgment, and give detailed written reasons. To be a judge is a lifelong career, starting immediately after the second qualifying examination . Seniority strongly influences careers, although merit does determine the speed of advancement in the judicial hierarchy and is a prerequisite for achieving such senior positions as president or chairperson. Recruitment to all these posts is vertical; temporary exchanges between the judiciary and ministerial bureaucracies are the only observable types of lateral mobility . LAWYERS IN THE CIVIL SERVICE Most higher civil servants with any sort of administrative responsibility have been recruited from the pool of qualified lawyers.Judicial qualification is particularly advantageous for public service careers. The judicial mode is deeply embedded in German administrative law: every public administrative decision is subject to judicial review on substantive as well as procedural grounds.jurists play a central role in preparing new legislation . Since jurists with a rather homogeneous background dominate the civil service , training in law has attained a central place in the idea of a universal education for public functions . In spite of uniform education, each legal occupation has its own career path, and mobility between occupations is difficult after a few years. The relatively high incomes produced by seniority and promotion practices in both the judiciary and public administration render transfer to private practice after the age of thirty-five a financial sacrifice. In contrast to the average advocate, civil servants enjoy extraordinary security: life tenure, health insurance, generous pension schemes, and, after maternity leave, a guaranteed job and the possibility of part-time work.UNIVERSITY TEACHERS University teachers follow a separate career. Once they are recognized as authorities, professors exercise influence through their publications and their expert opinions on controversial questions in judicial proceedings. Some also gain prestige by appearing before the Federal Constitutional Court or as experts before any of the High Courts, where they can participate on the frontiers of innovative jurisdiction. LAWYERS IN PRIVATE EMPLOYMENT Larger German companies tend to have their own in-house counsel. Official statistics estimate that 12 percent of all registered advocates are Syndici, but we believe the figure is more than twice as high. Many become advocates just to have the privilege of using the title; they see themselves as employees bound by contract to their employer rather than as independent lawyers in private practice.Large corporations have legal departments with fully qualified lawyers.That so many lawyers work in salaried positions indicates a particular management style: rather than contracting with lawyers, consultants, or accountants for specific services, German businesses tend to incorporate these services within their permanent organizations.WHAT ADVOCATES DO Advocates traditionally have been regarded as part of the system of justice. They have a monopoly not only of representation in court but also of legal advice . This lawyer monopoly has prevented any other type of adviser from penetrating the legal market and also has discouraged the development of any significant legal aid advocacy . This consists mainly of preparing written statements; compared to common lawyers, civil lawyers play an insignificant role in collecting and presenting evidence . Once an action has been filed, the inquiry is in the hands of the court, which directs the proceedings, decides what evidence to take, and hears the witnesses. Even though several big law firms have been founded, those with more than ten partners still contain only 6 percent of registered advocates, and solo lawyers remain 50 percent of the bar.the approximately 30 percent of bar members Who do not practice, the number of solo practitioners has not decreased. If they can routinize their litigation to increase volume, they may specialize in automobile accidents and traffic offenses, relying on continuing relations with legal expense insurance companies. Only those who have acquired additional skills in commercial, tax, and company law and have built up a regular business clientele establish law firms that are larger, more prosperous, or both.Legal advice outside litigation is not part of the lawyer s traditional image, but it is lucrative. Here, lawyers face vigorous competition from tax consultants and chartered accountants, who combine advice on business strategies, tax strategies, and management. Advocates have lost much of the growing consultancy market by concentrating on the forensic areas in which they have a monopoly, and they are trying to regain it by joining interdisciplinary partnerships. NOTARIES Advocates are not the only lawyers in private practice there also are notaries. In most of the former West German states, advocates can be admitted as notaries, a privilege dating back to a Prussian ordinance. In most of the states not previously ruled by Prussia, statutes long have provided for a profession of notaries in private practice, with strict entry controls enforced by the state.German law permits notarial certification and attestation in a wide range of matters, but it is required only to validate some legal documents: ?the purchase, sale, or mortgage of land; the decisions of company meetings; and the sale of shares in a private company.Notaries hold public office and charge fees according to a fixed scale, but they are organized as an independent profession. Advocates who also wish to practice as notaries can only be admitted when it is determined that there is a need for their services and they can prove their personal competence . LEGAL ADVISERS WITHOUT UNIVERSITY LEGAL TRAINING Paralegals are of little importance in contemporary Germany. The Legal Advice Act outlaws unauthorized legal practice and requires judicial permission before anyone not qualified as a jurist may practice as a legal adviser. A small group of paralegal advisers with a nonuniversity law qualification traditionally have enjoyed limited rights to give legal advice.Of much greater importance, however, are those legal advisers who, while not admitted to the bar, may give legal advice to a specific clientele on specific issues. Trade union secretaries can advise on social and labor law matters and may represent workers in labor courts; consumer organizations can advise and represent consumers; tenant or homeowner associations can advise their members about housing disputes; student advice bureaus can deal with student problems. Many of these organizations provide legal services by contracting with advocates for an annual retainer and are ideologically oriented toward representing collective interests as well as individual claims. Therefore, they are more capable than traditional advocates of changing the distribution of legal advantage by combining individual representation with the use of litigation and political lobbying . UNIFORM EDUCATION AND DIVERSE OCCUPATIONS As we have seen, all German jurists complete the same legal education; this professional uniformity is expressed by the concept of Einheitsjurist. ?The coherence of the German legal profession is perceived as based on this common educational experience rather than a common occupational profile or membership in associations, since subsequent career paths separate judges , practicing advocates and or notaries, civil servants, and salaried company lawyers. The distribution of jurists among these careers has undergone considerable change since the turn of the century. Until 1909 judges in the German Reich actually outnumbered advocates; the small number of civil servants and judges enjoyed the highest prestige, and other salaried lawyers were rare. Throughout the Weimar and Federal republics the proportions of judges decreased relative to advocates, civil servants, and especially salaried lawyers .In 1993 there were 67,562 registered advocates , 1,562 jurists working only as notaries, 18,913 judges, 4,920 state prosecutors, about 40,000 civil servants in federal, state, and local government, and about 40,000 who worked as business lawyers . REGULATION OF THE PRACTICE OF ADVOCATES If legal education in Germany seems highly regulated, so is the practice of advocates. Until the early 1990s advocates were not allowed to combine with professionals offering other services, form law firms extending outside the district of the court to which they were admitted, advertise, or announce specializations. A 1987 decision of the Constitutional Court declared the Code of Ethics unconstitutional for lack of a sufficient statutory basis, forcing amendment of the Statute of Advocates. The European Court and the German Constitutional Court and Federal Supreme Court decided several cases that permitted liberalization of several rules concerning the practice of advocates. A 1994 amendment to the Statute of Advocates allows advocates to combine with some professionals offering other services , form national and international partnerships, inform potential clients about their services, and declare particular certified specializations. ?Regulations not only affect the product advocates offer but also fix the price of their forensic representation. This was justified as necessary to prevent unfair competition and maintain a high standard of professionalism, but it also restrained innovations in legal services, which would have followed the more aggressive marketing strategies of lawyers who could work on contingent or hourly fees.ADMISSION Application for admission is addressed to the court to which the advocate wants to be admitted and granted by the Court of Appeal of that jurisdiction. During the Cold War, the Federal Supreme Court interpreted the Statute on Advocates to allow the exclusion of members of the Communist Party. Even though the Federal Constitutional Court overruled this decision in 1983, a special purge law was passed in 1992 to allow exclusion for unworthy conduct, especially collaboration with the GDR security police. JURISDICTIONAL AND TERRITORIAL RESTRICTIONS Practicing lawyers must be admitted to a civil court. In most states they can be admitted to both trial and appellate courts; in some, however, they can only be admitted to one or the other . In civil matters advocates may represent parties only in the courts to which they have been admitted, although they may appear and be heard in another court if the party also is represented by an advocate admitted to that court. This territorial restriction does not apply to the local courts that handle small claims and most criminal matters nor to courts of special jurisdiction. This rule, which was the backbone of German advocacy, is due to be abolished in the year 2000 in the former West German states and five years later in the former East Germany, after which it will apply only to appeal courts and the highest federal court. RESTRICTION AND MONOPOLY OF LEGAL SERVICES In all family courts, district courts , and appellate courts, parties must be represented by advocates.Courts, the Federal Labor Court, and the Federal Administration Court .DISCIPLINE Discipline is exercised by the councils of the Chambers of Advocates, which are autonomous courts under the legal supervision of the state Ministries of Justice . Appeal lies to a joint court of judges and lawyers and then to the Federal Supreme Court , where judges constitute a majority. In 1992 there were 465 trials , most dealing with problems of admission, such as the candidate s desire to combine membership in the bar with work as a salaried employee. Once the advocate it admitted, any sanction is extremely rare, and disbarment is imposed only for serious misconduct, such as a criminal conviction . The few decisions regarding professional misconduct have a good chance of being published; the journal of the Chamber of Advocates carries a regular column on such cases. Local chambers prefer to use informal admonitions to express their dissatisfaction with breaches of professional rules, such as those relating to advertising and unfair competitive advantage.PROFESSIONAL ASSOCIATIONS All lawyers practicing within the jurisdiction of each court of appeal must belong to its Chamber of Advocates . In 1990 about 36,000 advocates, or 60 percent of those registered, belonged to the Deutsche Anwaltsverein , which protects professional interests, gives practical assistance to its members, and organizes continuing education. It also publishes a journal , holds a biannual meeting , maintains an institute advising lawyers about office equipment and managerial techniques, establishes committees and working groups on legislation and current problems, and promotes pro- ?fessional interest through publicity and lobbying. That there are only a few special interest groups for advocates, such as the leftist Republican Lawyers and the Criminal Defense Lawyers Association, attests to the low differentiation within the bar. DIVISIONS AND STRATIFICATION WITHIN THE PROFESSION Preoccupation with preventing competition among practicing lawyers and defending the monopoly of legal advice has discouraged German advocates from extending their services into innovative areas and exploring the possibility of cooperation with neighboring professions. The social distance between solo practitioners and members of law firms , although considerable and growing, is far smaller in Germany than in the United States. German advocates still resemble a guild of craftsmen. Differences in the size of practice and the clientele are evident, however. Senior practitioners in larger law firms prefer to serve companies and associations and rarely go to court, whereas juniors in law firms and solo practitioners tend to do more litigation for a clientele of individuals, relying on divorce cases for a larger proportion of their income.SIZE OF PRACTICE Advocacy traditionally has been the province of solo practitioners. The number of salaried lawyers employed by advocates also has been increasing with the rapid expansion of the bar, which has motivated some young lawyers to accept long-term employment. ?Because advocates employed in business have not been increasing as rapidly as private practitioners, the recent increase in admissions caused a increase in the number of solo practitioners with no other source of income. If we exclude all advocates employed as Syndici, the practicing bar appears to be equally divided between solo practitioners and lawyers in law firms.INCOME When Rueschemeyer compared the income of practicing lawyers with that of other self-employed professionals for 1954, advocates ranked highest. Since then the incomes of dentists and medical practitioners have been growing faster than those of lawyers, even though the latter have kept pace with general economic growth. Table 4 shows that the average income of advocates now is considerably below that of physicians, dentists, and tax advisers-chartered accountants, and higher than that of engineers and architects.Thus far only the relative income of lawyers has been decreasing. With the growing influx of young lawyers in the 1980s and 1990s it was feared that their absolute income also might decline. This was delayed through the opening of the new legal market in the former East German states, which has caused at least a temporary growth in demand. When the ratio of lawyers to population in the East reaches that in the West, stratification within the profession will intensify once more as growing numbers of lawyers earn less. This will be the long-term effect of what the profession sees as the failure to limit access to legal education or to the bar; from another perspective, of course, it can be seen as a success in keeping the profession open to newcomers. FEES A compulsory fee scale for advocates is contained in the federal Statute on Lawyers Fees . This regularly is negotiated between the lawyers association on one side and the Ministry of Justice and the Parliamentary Committee on Legal Affairs on the other.the object in dispute; there also are guidelines for fees for criminal defense. For consultation, advocates may charge a proportion of the fee for a litigated case, which varies with the kind of work involved. Although these statutory fees do not vary in a linear manner with the monetary value of the case, the system still promotes very high fees in large cases, since these fees must compensate for the time spent on small claims, for which lawyers do not even recover expenses.The rigid fee system has a number of consequences: 1.2. Criminal defense advocates can do well since the inquisitorial system requires them to expend little effort in collecting evidence and their overhead is extremely low. 3. Some advocates specialize in routine matters, such as automobile and traffic offenses, and are paid by legal expense insurance; highly automated mass processing generates a good income. 4.5.6.7. The highest incomes are found in partnerships of four or more, characterized by internal specialization, consultation, a clientele composed almost entirely of businesses, and no debt collection . LEGAL EXPENSE INSURANCE The predictability of fees has allowed legal expense insurance to develop more extensively in Germany than in any other country. Because insurance companies may not give legal advice themselves but only reimburse the costs of legal advice and representation by advocates, this kind of insurance has become an important element in lawyer income. Every other German household has a policy.shown conclusively, however, legal expense insurance has not increased the likelihood of litigation: About the same proportions of insured and uninsured clients are advised by their lawyers to settle out of court and avoid litigation. SPECIALIZATION AND ADVERTISING For decades there has been an official subject-matter specialization in tax law leading to a specialist title. Because the legal situation was very uncertain until the promulgation of new professional regulations in 1994, few advocates cared to qualify . They are of little value, however, since referral and advertising are prohibited. The revised Statute on Advocates allows lawyers to disseminate limited information about the scope of practice and specializations legalizing what had already been occurring in recent years . Most advocates, including those in smaller partnerships, remain generalists; large firms allow some specialization by individual partners but rarely portray the entire firm as specialized.THE VIRTUAL ABSENCE OF FREE LEGAL ADVICE Compared to Anglo-American legal culture, there is remarkably little social advocacy in Germany. Until 1981 the government did not subsidize legal advice outside court, which remained the province of pro bono programs organized by lawyer associations.The need to equalize representation within court had been recognized by German civil procedure as early as 1879 by the Armenrecht, or poor person s law. Criminal defendants also have had a statutory right to a duty solicitor since 1877, although only in the most serious cases. There is no legal aid for the large number of accused in the local criminal courts, nor is there any public defender service for those arrested by the police and detained by the courts. In comparison to Britain and the Netherlands, per capita, civil legal aid is slightly higher in Germany, criminal legal aid is considerably lower, since the duty solicitor scheme is available only in serious cases, and expenditures for out-of-court advice are insignificant . In both East and West Germany the defensive attitude of the bar successfully obstructed the expansion of legal aid beyond fee waivers in divorce proceedings, and it also prevented institutional innovations, such as political representation, neighborhood law centers, and university law clinics. The lawyers lobby has sought to defend their monopoly over the traditional functions of advocacy rather than expand into new markets. Professions such as tax advisers and accountants, in which the government had never regulated education, entry, or conduct , managed to expand their markets in response to the influx of younger entrants. Advocacy, which is open to any qualified legal graduate, now faces an increasing number of young lawyers demanding a share of the highly regulated market for legal services. The defense of monopoly turns out to be a suitable strategy when supply is stable but an impediment when a growing profession must expand its market. Since continued adherence to that strategy is dysfunctional in terms of the collective economic interests of the legal profession, the explanation must be found in the traditional political functions of German jurists. The German legal profession may be on the verge of profound change because of the influx of law graduates , who tend to come from less elite backgrounds. CHANGING THE SOCIAL RECRUITMENT OF PRACTICING LAWYERS Sociological studies of the recruitment patterns of German jurists generated much controversy in the 1960s. Ralf Dahrendorf, in particular, argued that the lawyers of the monopoly were one of the structural factors that explained the blind obedience to authority and avoidance of overt conflict characteristic of traditional German political institutions . The weak position of advocacy within the German legal profession is an additional reason for relating the respect of German elites for state and authority to their antidemocratic sentiments throughout the history of the Reich, as well as to the special dilemmas of an obedient judiciary ?and civil service during the Third Reich. In the Federal Republic, however, the continuities of German political culture coexisted with substantial changes, and this was true also within the legal profession. The role of German advocates now appears to be converging with that of lawyers in the less authoritarian cultures of the Western victorious powers, which reshaped the Federal Republic after World War II. After the unification of 1990 they were replicated in the integration of former East German judges, prosecutors, and state company lawyers. SOCIAL CLASS BACKGROUND German jurists traditionally came from a rather homogeneous middle-class background in which there was a clear overrepresentation of parents in the civil service. Advocates deviate somewhat from this pattern, however, by being from more urban backgrounds, Protestant rather than Catholic, and the children of entrepreneurial rather than civil service parents . In 1980, a third of younger advocates and judges were children of civil servant fathers , while only 4 to 5 percent of younger advocates and judges had worker fathers . The fact that 19 percent of advocates come from professional backgrounds, compared to 11 percent of judges, suggests the strength of self-recruitment , even though the proportion from jurist families is unavailable. The upward social mobility fostered by the overall increase in secondary and tertiary education is more pronounced in other faculties, such as education. Law faculties have been the last to reduce elite recruitment, just as they were the last to admit an increasing proportion of women. The ideological climate of the 1970s had some impact on the political and social attitudes of the jurists of that generation, who were more critical of authority and emphasized the importance of social welfare for public policy and the legal profession. The cohort graduating in the 1980s and early 1990s, however, seems politically more conservative and also more instrumental in their attitudes toward their jobs.dents has intensified political conservatism .WOMEN IN THE PROFESSION In 1922, after long impassioned discussions, advocacy was opened to women . As part of their family policy, the National Socialists excluded women from the judiciary , and after mid-1936 women no longer were admitted as advocates . Gender discrimination in the professions ended in the 1950s in the GDR, but women slowly began to enter male domains in the Federal Republic only in the 1970s . In 1966, when women constituted 30 percent of all university students, they were only 10 percent of law students. This changed rapidly in the second half of the 1970s, and by 1980 women were a higher proportion of law students than of all university students . Today, legal studies are the second choice of women, surpassed only by medicine . The increase in education graduates in the 1960s created an oversupply of teachers, while the declining birth rate and decreased public spending reduced demand. Women in public service who are raising children are entitled to work part time and can take maternal leave for several years with guaranteed reemployment. Although there may have been some reluctance about employing women because of the organizational problems caused by maternal leave, public services have been particularly careful not to discriminate; nevertheless, women remain concentrated in the less prestigious courts . This raises the question of whether the judiciary is losing its paramount status because of the growing proportion of women judges and prosecutors . In 1992 women constituted 41.3 percent of jurists doing their in-practice training and 38.6 percent of those passing the second state examination.they constituted 22 percent of judges . Women judges and prosecutors express high job satisfaction, reflecting the high status and independence of the judiciary, good income, and favorable working conditions . Their sisters working as advocates face a much more difficult situation. They encounter overt discrimination in seeking jobs, are more likely than men to occupy salaried positions in small firms, more often are underpaid or employed part time , are less specialized, have fewer commercial clients, and earn less as partners . Most women lawyers are convinced that their working style is distinctively feminine; women and men concur that women have to meet gendered demands and expectations . RACISM German lawyers hardly ever discuss racism.Today Turkish, Italian, and Yugoslav lawyers are conspicuously absent, despite the high proportion of Mediterranean immigrants in the population and the increasing importance of immigration law. Since university entrance requirements and state examinations present such high barriers, we might ascribe this to structural discrimination rather than individual prejudice.CONCLUSION The data on the recent growth of the legal profession in Germany are strikingly similar to those for all developed Western countries. Throughout the Western world the number of lawyers has been rising rapidly, and there has been a considerable influx of women into the profession, at least since the 1970s. Yet, despite the common training, lateral mobility among legal careers is much lower in Germany than in common law countries. ?Legal services tend to be provided within public administrative and private corporate institutions rather than purchased from the professional market on a case-by-case basis. Consequently, the job of a practicing lawyer appears to be concentrated much more on traditional, forensic services than it is in the common law world. The bar, therefore, should be regarded as only a part of the profession of jurists, even if it is increasing its share. The German legal profession traditionally has been oriented toward public service rather than advocacy. Legal training in both university faculties and in-practice settings is highly regulated and controlled by the education boards of the state Ministries of Justice. The legal profession has been the backbone of the legalistic-authoritarian state, and the need for a reliable, uniform elite of civil servants explains the high degree of state regulation of entry and education. Yet this has not prevented the number of law graduates from rising sharply. Clearly, the growth of the legal profession in the last two decades was stimulated not by greater demand for legal services but by increased supply caused by the expansion of university training. To the degree that traditional careers for lawyers have not multiplied to meet the output of law graduates, more young lawyers have been pushed into advocacy. Even though pressure within the profession diminished in the early 1990s through the opening of the new market in the former Eastern states, it will inevitably increase, especially now that legal education has been shortened by about two years. One might expect such quantitative changes to produce a major reorientation of legal education. Reform is more likely to be produced by the self-interested actions of particular groups of advocates than by the efforts of any other political lobby, especially since comparative studies of legal cultures show that the legal services market is influenced more by institutional determinants of supply than by changes in demand or legal need . ?TABLES 1.Political environment Year Number of registered advocates Population per practicing lawyer End of numerus clausus 1880 4,091 11,100 1895 5,597 8,330 1905 7,835 7,140 1913 12,297 5,260 World War I 1914-1918 1919 12,030 5260 1925 13,578 4,550 Third Reich 1933 19,276 3,330 1935 18,712 3,450 1939 14,800 4,760 World War II 1939-1945 Federal Republic 1950 12,844 3,850 1955 16,824 3,120 1960 18,347 3,030 1965 19,796 2,860 1970 22,822 2,630 1975 26,854 2270 1980 36,077 1,690 1985 46,927 1,300 Unification 1990a 57,082 1,110 1994b 70,438 1,080 a There were 1,800 registered advocates in the former Eastern states or 8,800 people per practicing lawyer. b There were 5,500 registered advocates in the former Eastern states or 2,900 people per practicing lawyer. Sources : 1880-1928: Kneer, 1928: 61; Ostler, 1971: 60, 207.2.Distribution 1961 1984 1990 Judicial office 19 16 14 Government service 30 27 25 Private employment 21 27 26 Practicing advocates 30 30 35 N 62,000 125,000 160,000 a The official census of the Statistische Bundesamt found 113,000 persons in the labor force in 1970 who had passed at least one state examination in law, of whom 43.8 percent were advocates, 23.5 percent civil servants, 17.1 percent in the judiciary, 5.3 percent teachers, and only 3.2 percent in private business. The Zentrale Forschungsgruppe f r Juristenausbildung treats Syndici as advocates rather than private employees ; therefore, they estimated a total of 95,000 jurists, 20 percent of whom are in the judiciary, 25 percent civil servants, 17 percent in private employment, and 37 percent advocates. We estimate that 25 percent of all registered advocates were employed by private companies in 1984, based on federal income statistics showing that 30 percent of those who give their occupation as advocate derive more than half their income from salaries. Sources : 1961: Rueschemeyer, 1973:32-33 ; 1984: Statistisches Bundesamt Wiesbaden, combined with data of the Chamber of Advocates and the Bundesjustizministerium and personal estimates. 3.1967 1980 1991 1. 20,543 30,077 59,455 2. 26.5 37.7 39.2 3. 24 30 25 4. 50 33 36 Fraction of practitioners solo 2 3 1 2 1 2 Number of law firms with 2-3 partners 2,185 4,440 6,557 4-9 partners 149 704 1,329 10 partners 0 14 91 Sources : Chamber of Advocates; Oellers, 1982; A.4.to Other Self-Employed Professions, 1954-1980 1954 1961 1971 1980 1986 Dentists 12 28 110 239 239 Physicians 18 40 117 181 192 Advocates 18 38 79 123 121 Tax advisers chartered accountantsa 16 40 82 139 202 Engineers NA NA 72 86 88 Architects NA NA 60 92 83 a Only chartered accountants since 1980; this exaggerates the extent to which this profession has surpassed advocates. Sources : 1954 and 1961: Rueschemeyer, 1973: 64; 1971: Oellers, 1982: 151; 1980: A.5.Specializations, 1991 Tax law 2,260 Public law 413 Labor law 1,340 Social law 293 Source : Bundesrechtsanwaltskammer, annual statistics . 6.and the General Population, 1965 and 1978 1965 1978 Father s occupation Advocate Judge Younger advocate Younger judge General population Self-employed profession NA NA 19 11 2 Civil servant 35 52 31 38 11 Worker NA NA 4 5 42 Sources : Kaupen, 1969: 192; Heldrich Schmidtchen, 1982: 252-254. ?7.Number of advocates Year Women Total Percent women 1925 44 13,578 0 1932 79 19,000 0 1962 480 19,001 2.5 1972 1,035 22,882 4.5 1982 3,458 39,036 8.9 1985 5,651 49,927 12.0 1994 12,733 70,438 18.1 Source : Bundesrechtsanwaltskammer. 8.Law students Probationary judges Tenured judges Appellate judges Advocates 1973 15 13 9 NA 5 1977 25 18 11 6 6 1981 33 24 14 8 8 1989 45 37 18 8 15 1993 50 43 22 9 17.5 Sources : students: Statistisches Bundesamt; judges: Bundesjustizministerium; advocates: Bundesrechtsanwaltskammer. ?NOTES In the 1990s two universities started to offer preparatory courses for young advocates and law students.REFERENCES Abel, Richard L., Lawyers in Society, Vol.Blankenburg, Erhard. . . .Blankenburg, Erhard, ed.: Oelgeschlaeger, Gunn Hain. Blankenburg, Erhard, and Udo Reifner.Blankenburg, Erhard, and Jan Verwoerd.Bleek, Wilhelm.Braun, Anton. . . .Braun, Anton, and Friedrich Jansen, 1992.Braun, Manfred.Brinkmann, Gerhard, Wolfgang Pippke, and Wolfgang Rippe.Cohn, Ernst J. The German Attorney: Experiences with a Unified Profession, 9 International and Comparative Law Quarterly 580-599, 10 International and Comparative Law Quarterl y 103-122. Dahrendorf, Ralf.Deutscher Juristentag, ed. Welche Ma nahmen empfehlen sich - auch im Hinblick auf den Wettbewerb zwischen Juristen aus den EG-Staaten - zur Verk rzung und Straffung der Juristenausbildung? Sitzungsbericht 0 zum 58.Galanter, Marc., The Sociology of the Professions: Lawyers, Doctors and Others, 152-176.Giering, Heinz, Fritz Haag, Wolfgang Hoffmann-Riem, and Klaus Ott, eds.Gleiss, Alfred.Gneist, Rudolf von.Hartmann, Michael.Hartstang, Gerhard. .Hassels, Angela, and Christoph Hommerich.Heldrich, Andreas, and Gerhard Schmidtchen.Hommerich, Christoph.Institut f r Freie Berufe.Kaplan, Benjamin, Arthur T.Kaupen, Wolfgang.Kaupen, Wolfgang, and Raymund Werle, eds.Klausa, Ekkehard.Kirschner, Lutz, and Marc Lienau.Kleine-Cosack, Michael.Kneer, August.Kolbeck, Thomas, 1978.Kolvenbach, Walter.Lange, Elmar, and Niklas Luhmann.Lehmann, Paul.Loccumer Arbeitskreis, ed. .Magnus, Julius.Manstetten, Fritz.Meier-Scherling, Anne-Gudrun.Merryman, John 1968.Oellers, Bernhard.Ostler, Fritz.Parsons, Talcott. The Problem of Controlled Institutional Change: Report on the Conference on Germany after the War, in Essays in Sociological Theory .: Free Press. Portele, Gerhard, and Wolfgang Sch tte.Reifner, Udo.Rogowski, Ralf., Professional Competition and the Social Construction of Markets.Rueschemeyer, Dietrich.: Harvard University Press. Schmid, G nter, and Hubert Treiber.Schultz, Ulrike. . in Ulrich Battis and Ulrike Schultz, eds., Frauen im Recht 319. . .10.30.1. .Schultz, Ulrike, and Paul Koessler.Sch tte, Wolfgang.Statistisches Bundesamt Wiesbaden. . .Treffkorn, Matthias, and Peter Koch.Voegele, Wolfgang.Volks, Holger.Wagner, Paul.Wasilewski, Rainer.Wassermann, Rudolf.Wassermann, Rudolf, ed.Weinkauff, Hermann, and Albrecht Wagner.Weissler, Adolf.Wetterer, Angelika.Winters, Karl-Peter.Zentrale Forschungsgruppe f Juristenausbildung.4 The Present State of Japanese Practicing Attorneys: On the Way to Full Professionalization? KAHEI ROKUMOTO This chapter attempts to present an overall picture of Japanese lawyers in private practice and the legal services they deliver, drawing on a recent national survey . I shall discuss some of the most salient features of the Japanese bar and its business, primarily on the basis of the survey, focusing on the size of the bar, the recruitment of its members, the forms of their practice, the kind of work they do and the clients they serve, and their income.HISTORICAL AND INSTITUTIONAL BACKGROUND Before 1868 there was no distinct occupational group with special expertise in law. Within the government of the central Tokugawa Shogunate, as well as those of the subordinate feudal domains, the judicial function constituted only one of the tasks of generalist administrators. Professional representation before the court was not recognized, although certain innkeepers and their clerks were authorized to offer their knowledge of procedure and of the location of various offices to guests coming to Edo for litigation . The Meiji Government created the entire modem, centralized legal system on the model of the imperial German legal system. This was done during the decades following the Imperial Restoration, through promulgation of a constitution and comprehensive substantive and procedural codes and the establishment of a system of courts distributed throughout the country.emerged. Moreover, in the process of establishing the legal profession, emphasis naturally was placed on securing competent judges and prosecutors career governmental officers charged with administering the imported systems of laws and courts to the neglect of private attorneys. In 1872 judges and prosecutors were recognized as legal officers distinct from ordinary government officials. A certain amount of legal education was made a prerequisite for their appointment, and a government school was established for the purpose, which later was incorporated into an Imperial University. Beginning in 1890, the positions of both judges and prosecutors were firmly established through the formal examination system, the three-year apprenticeship, and the guarantee of tenure. Private attorneys, however, systematically were treated as the inferiors of judges and prosecutors, although their position gradually improved during the prewar period. Legal representation was recognized in civil cases in 1872 and in criminal cases in 1890, and the professionals who performed those functions officially were recognized in 1876. Their qualifications remained vague until 1893, when the first Practicing Attorneys Act introduced the present title of bengoshi, together with a formal qualification based on an examination of legal knowledge. This examination, however, was separate from, and less demanding than, that for judges and prosecutors, and law graduates of Imperial Universities were exempt even from it until 1923. Throughout the prewar period, private attorneys were under the control of the Minister of Justice and the prosecutors subordinate to him, and the activities of their organizations were closely supervised. The general social and economic patterns determined by the precipitous modernization under the leadership of an authoritarian government also did not constitute a favorable environment for the development of a new profession. The traditional aversion toward law still prevailed among the population and was reinforced by the familistic nature of social organizations and governmental indoctrination of Confucian ethics emphasizing harmony. The rise and growth of modern industry in an agrarian society that had been closed to the outer world for 300 years is attributable less to the workings of an impartial law protecting free entrepreneurial activities and more to active encouragement and protection by the government.litical role in representing criminal defendants oppressed by the state. They even called themselves the opposition branch of the legal profession, in contrast to the judges and prosecutors, who were labeled the governmental branch. It is only through the Practicing Attorneys Act of 1949 that Japanese practicing attorneys acquired formal equality with judges and prosecutors, in the sense that all are subjected to the same state legal examination and two-year apprenticeship and that the former were accorded full autonomy in governing their own affairs, including the matters of licensure and discipline. Court procedures for both civil and criminal cases also have undergone substantial reforms to incorporate Anglo-American adversary principles, thus enhancing the role and status of attorneys in the courtroom. Today, aspirants to the legal profession undergo a unitary state Legal Examination and a common two-year course of practical training at the Institute of Legal Training and Research . Some efforts were made after the war to unify the legal profession, recruiting judges from among experienced private practitioners, but this effort failed, although a proportion of Supreme Court justices customarily are appointed from among eminent private attorneys. Thus, only a few of those who choose private practice at the time of leaving the ILTR will enter the public sector, although a substantial number of judges and prosecutors resign to become private attorneys even before they reach retirement age. Within these and other new institutional frameworks, created as part of postwar democratization, the younger lawyers trained in the ILTR grew in number and the general quality and prestige of Japanese private attorneys significantly improved . Against the background of the postwar economic expansion, the importance of lawyers in civil matters gradually was recognized, and the public now accepts them as a major element in the administration of law and justice. They rank somewhat lower than judges and prosecutors, and, in face-to-face interaction, the latter display their traditional sense of superiority, which is greatly resented by the former. In analyzing the legal profession, we also have to note some of the distinctive features of the contemporary Japanese legal system. The judicial system resembles that of Germany, with each of the forty-seven prefectures having a district court, the principal court of first instance with general jurisdiction.Unlike the German model, however, we also have separate family courts in each prefecture. Mediation is an integral part of the judicial system. Lay mediators attempt to settle civil cases less formally, less expensively, and more quickly by assisting parties in reaching an agreement.Legal representation is not compulsory, except in certain kinds of criminal cases . There is no localization of practicing attorneys as in Germany, so that lawyers can represent their clients before any Japanese court. Each association of practicing attorneys establishes a standard fee schedule, in principle proportioned to the amount in dispute, but this has no binding force and is not strictly followed in practice. SIZE It is well known that both the Japanese legal profession as a whole and the practicing bar in particular are very small . In 1979 there were 1,940 posts for regular judges and assistant judges, 791 posts for summary court judges holding lower qualifications, and 2,092 posts for regular and assistant prosecutors. The ratio of practicing attorneys to the national population is approximately one to 10,000 persons, only a sixth as high as in England and West Germany. The distribution of lawyers within the country is far from even. In 1980, 5,361 of the 11,466 lawyers had their offices in Tokyo and another 2,044 were practicing in Osaka or Aichi. Five other prefectures endowed with a high court contained 918 private attorneys , and the remaining 39 prefectures with only a district court had a total of 3,143 lawyers .58, B 1.44, C 0.64, D 0.43.court are located, so that the nationwide maldistribution of lawyers is reproduced at the prefectural level. These gaps are partly filled by the PAs who travel from urban centers to work on particular cases pending in local courts and by other categories of law-related occupations, each of which has its own examination, registration, and legally prescribed sphere of activities.Tax accountants are allowed to draft documents, give advice concerning tax matters, and represent clients in the administrative complaint procedures against tax authorities; however, the number of such cases still is small in Japan. Patent attorneys may give legal opinions about patents and similar matters and represent clients in complaint or dispute procedures concerning those matters before the competent authorities and, in certain matters, before the regular courts . Patent, copyright, and taxation constitute highly specialized fields, in which only a very few lawyers could work confidently without the collaboration of a patent attorney or a tax accountant.The activities of judicial scriveners are more general and somewhat overlap those of PAs. The law authorizes them to represent the client in the procedure concerning registration or deposit and to draw up documents to be submitted to a court, a prosecutor s office, or a bureau of judicial affairs, among other functions . The registration of real estate transactions and the creation or transformation of commercial corporations makes up the bulk of the work of legal scriveners. The former includes the registration of many changes in the rights and duties concerning land and buildings, including transfer and mortgage. In Japan, these transactions normally are effected with the assistance of a real estate agent and a judicial scrivener and without the intervention of a PA. Furthermore, the judicial scrivener lawfully can prepare briefs and all the other documents submitted by the litigant in the course of a lawsuit. It is almost impossible to separate the legal advice necessary to draft a document from the other advice a judicial scrivener may offer his client. Consequently, it is widely admitted that in most cases where the litigant is unrepresented a judicial scrivener is operating behind the scenes, not only drafting documents but also advising the principal on how to conduct the litigation.mate work of drafting a document and occasionally are prosecuted for violating the Practicing Attorneys Act.The work of administrative scriveners concerns the documents submitted to an administrative office . This does not directly involve a legal transaction or dispute, however, and complaints against an administrative agency still are very rare in Japan.RECRUITMENT The principal mode of recruitment to the legal profession is through the state Legal Examination, followed by two years of practical training at the Institute of Legal Training and Research.Practicing attorneys qualify rather late in life. Among those presently in practice, about 29 percent obtained their qualification before they were twenty-five, about 47 percent between twenty-five and thirty, and 20 percent after thirty.69 years in 1965, 26.60 in 1970, 26.75 in 1975, and 28.07 in 1980 . This undoubtedly is due to the difficulty of the Legal Examination, which is notorious and often severely criticized by law professors. Since the normal age of graduation from the university is between twenty-two and twenty-four, those who pass have spent an average of three to five years preparing for the examination.Although lawyers need not have a law degree or even a university degree, we found that only 1.6 percent of practicing attorneys were not university graduates and that 95.3 percent of university graduates had studied law. Not all graduates aspire to enter the legal profession. Legal education is not offered in a professional school at the graduate level but is a two-year undergraduate course in a law faculty and includes a wide range of subjects, such as political ?science and economics, as well as law. In fact, those who pass the Legal Examination and go on to the ILTR constitute a small minority of law students . The education in a law faculty, especially at one of the former Imperial Universities , is considered the entrée to high positions in politics, government, and business. It cannot be said that the best law students become lawyers, either; for one thing, in order to pass the Legal Examination, one must devote two or three years almost exclusively to preparation. Many law students enter large business corporations and become the lawpersons in the firm employees who have acquired the basic knowledge of and skill in law and legal reasoning in the university and, without possessing the certificate of a lawyer, specialize in handling the legal matters of the firm.Our study of the social background of practicing attorneys revealed that 13.6 percent of their fathers were professionals, 12.6 percent were managers, 19.0 percent were clerical or technical employees, 28.1 percent were proprietors not in agriculture, 18.9 percent were farmers, 4.7 percent were workers, and 4.2 percent were in other categories. Overrepresentation of the professional and managerial classes on one hand and under-representation of workers and farmers on the other hand is clear. In order to ascertain accurately the implication of these data, however, we would need a detailed analysis of the social structure of Japanese society and its change over the past 100 years, particularly because it has undergone a fundamental transformation from a predominantly agrarian, static society into a highly industrialized, mobile society within a very short time . FORMS OF PRACTICE All Japanese practicing attorneys have or belong to one law office, but their status varies with their relation to that office. Most employed lawyers earn a fixed salary for the work they do for their principal, and many also receive a percentage of the fee in cases they handle together with their employers or on their own . Most employed lawyers may take their own cases and work for their own clients using the office facilities and clerks of their employers. This term is a remnant from the time when practicing attorneys started their careers as personal apprentices of a senior lawyer. Even today, the relationship between principals and their young employees sometimes is colored by the paternalistic attitudes of the former and thus is not altogether free from friction. Principal lawyers fall into two categories: those who are the only principal within their law office and those who share their office with other principals. The second group also contains two subdivisions. One is the office-sharers, who share only the rented office space, telephones, law books, and other equipment, as well as clerks. Insofar as the management of the law practice is concerned, however, the members of a B ro-Gemeinschaft, as it would be called in Germany, are completely independent of each other. One has personal clients, works independently without consulting office companions, and pays a share of the office expenses out of separate fees. The other subdivision includes those who form a partnership with other lawyers and share not only the office expenses but also the clients, the work, and the fees, as well as responsibility for running the office.Thus, we can classify practicing attorneys into the following five categories : Isoro-attorneys, that is, employed lawyers ; office-sharers ; solo practitioners ; masters, that is, solo principals with employed lawyers ; and partners .7a, 4.7b, and 4.7c.Generally speaking, Japanese practicing attorneys start their careers as employed lawyers. As they grow older, they try to practice independently, but some especially in Tokyo where rents are higher find it necessary to share an office in order to accumulate more capital before opening their own practices. After they have achieved independence, if their business prospers and the volume of their work both warrants and demands it, they hire younger lawyers to perform part of the work load. Thus, although Japanese attorneys may associate with others in various ways, their ultimate goal is to be on their own, the master of a castle, however small it may be. Partners, most of whom are in their thirties and forties, represent only a small minority among Japanese lawyers.tional career pattern just described. The first type comprises law firms specializing in international business transactions and adopting the work style and office organization of the larger American firms. Most firms send their young associates to Western countries for legal studies and training.The second type of partnership consists of the law firms affiliated with left-wing political parties. Specialization in union cases explains how these law firms can exist, even in the areas where the absolute number of practicing attorneys is very small. The third type is made up of partnerships oriented to domestic business clients. Such partnerships are increasing in Osaka and Nagoya, and some make a conscious effort both to rationalize their practices through constant mutual consultation within the firm and to develop forms of legal services better adapted to the everyday needs of all Japanese business corporations, and not just the very large ones. These law firms generally are smaller than the first type and sometimes are formed on the basis of a former relationship between a master and an Isoro-attorney. Most partnerships are fairly small .Table 4.10 shows the distribution of lawyers by area in terms of the number of lawyers in their offices, regardless of whether these lawyers are employed, office-sharers, masters, or partners. Half of Japanese lawyers are solo practitioners, 20 percent belong to a two-lawyer office, and another 20 percent belong to an office with three to six lawyers.own account. In this sense, it can be said that 73 percent of all attorneys and 89 percent of all principal attorneys practice independently. Law offices in Japan are small in another respect, too. Most are young women, who leave when they marry, or young men preparing for the Legal Examination, although a substantial minority of clerks are experienced men and women, who are indispensable to their employers.12. WORK AND CLIENTS In order to ascertain the volume and content of the work of attorneys, we asked each respondent to list all open cases and to classify them in terms of various criteria. Table 4.13 shows that criminal matters account for 5 to 10 percent of the attorney s caseload, a proportion that increases as we go from area A toward area D, reflecting the lawyer shortage in peripheral areas . The average number of cases open at the time of the survey is rather small; indeed, the national average of pending civil cases is only thirty-seven . The volume is dramatically higher among the lawyers in their forties and fifties and also higher in peripheral areas, for the reason given above.8 percent of all lawyers handle more than 80 cases . There are four kinds of civil matters: noncontentious cases; disputes handled without the intervention of a court or other public agency ; cases brought before a public agency, such as an administrative tribunal; and cases brought before a regular court for either mediation or adjudication. Only Tokyo differs significantly from this pattern because law firm partners specializing in international trade handle a larger proportion of noncontentious matters . When current civil cases are classified by subject matter , the largest categories are debt collection and payment of debt the gap between the two must be due to default cases. Next in importance are disputes involving rented houses or land and other cases involving real estate ; inheritance also primarily concerns houses and land. A third major grouping consists of automobile accidents , medical malpractice , and other damages , aggregating another 10 to 15 percent. Those problems that arise in the everyday lives of most people employment, environmental matters, consumer complaints, and grievances against the government are not an important source of business for Japanese lawyers. Nor are those bodies of law that affect the daily affairs of larger business enterprises, such as company and economic law, patent and copyright law, and international trade law.Consistent with this subject matter emphasis, the main clientele of Japanese lawyers is individuals and small and medium-sized enterprises, not large business firms . Except for partners in Tokyo firms and masters everywhere, most Japanese lawyers rely heavily on new one-shot clients rather than on the return of habitual customers . Some lawyers have retainers with an organization whereby the lawyer offers daily consultation in return for a fixed annual fee. If the client also asks the lawyer to handle litigation, it will pay the lawyer a separate fee, although usually at a reduced rate. The retaining organization is not obligated to send its cases exclusively to its legal advisor, and some larger companies have several legal advisors .are important sources of work, for the retaining organizations not only give their advisor profitable cases but also refer other clients and to be the legal advisor of a well-known firm enhances the prestige of a lawyer.Very few clients come to the lawyer through public or private counseling bureaus, and only a small number come without any intermediary . A potential client has to know the lawyer personally or else be able to mobilize a social network that can lead to a lawyer. This established pattern, which is accepted by both lawyers and the general public, undoubtedly limits the access of ordinary people to legal services. INCOME It is difficult to determine the income of practicing attorneys accurately. We asked our respondents to reveal their gross and net income and certain expenses for 1979, as they reported these to the tax authorities . These income levels are roughly comparable with those of British solicitors, but there is much greater variability in Japan than in England . The average net income of lawyers peaks earlier in the more rural areas . This gives the impression that practicing attorneys earn much higher incomes than other white-collar employees but a little less than employed physicians. The salaries of judges increase fairly regularly for each of the first ten years of their careers according to a schedule that, in 1980, rose from 147,500 to 319,600 per month. In order to obtain a rough estimate of their yearly income, we may assume that they receive an annual bonus of five times their basic monthly salary, for a total of 2,510,000 to 5,430,000 per annum.pulsory retirement age is sixty-five , their total yearly income ranges from approximately 6,530,000 to 14,530,000. Generally speaking, practicing attorneys in their forties and fifties appear to make a little more money than judges, but they do less well in their sixties and seventies, especially when we take into account the pensions judges receive after retirement. The variation of lawyers incomes is much greater within the same age group than that of salaries in other occupations, for those employed in organizations receive a similar salary at the same age. The enormous variation in the income of Japanese lawyers according to their status or form of practice is one of the central connotations of the term free profession . The sole principals who employ one or more other lawyers are by far the richest, although there are very few.CONCLUSION Our survey of the present condition of Japanese practicing attorneys reveals that they still play a limited role within the legal order. Noncontentious matters, where practicing attorneys would be the only authoritative representatives of the legal order, generally are not entrusted to them. These distinct occupational groups of quasi-lawyers, each with a legally recognized sphere of competence closely related to law, allegedly often serve as lawyer substitutes for individual citizens. Large business firms, in contrast, have their own lawpersons, who handle the legal matters arising in the course of their daily business transactions ; they use their officially qualified legal advisers only when involved in litigation. Practicing attorneys are not highly professionalized. Their heavy reliance on litigation is reflected in the fact that the bulk of their business involves debt collection or real estate situations where litigation often is a last resort because the parties either are strangers or have terminated their relationships.not constitute a very stable clientele. There is little specialization in lawyers work, except for the small minority who deal with patent law, international trade, or labor union matters. The great majority of Japanese practicing attorneys are generalists working, or aspiring to work, on their own, with minimal clerical help.In many respects the activities of Japanese practicing attorneys, and thus the legal system as well, touch only the surface of the social order. They still have not penetrated deeply into the everyday life of either ordinary citizens or the business world, nor have they managed to institutionalize the specifically legal ways of ordering human affairs. ?TABLES 4.1.Areas Population Sample Returned Questionnaire Return rate Weighted sample A 5,361 1,340 507 37.8 789 B 2,044 679 326 48.0 301 C 918 459 234 51.0 135 D 3,143 1,558 622 39.9 463 Total 11,466 4,036 1,689 41.8 1,688 ?4.2.Choice of position at graduation Class Number of entrants Number of graduates Assistant judge Summary court judge Prosecutor Practicing attorney Others 1947 140 134 72 44 1 18 1948 245 240 106 54 78 2 1949 290 284 84 77 113 10 1950 245 246 57 79 97 13 1951 223 215 51 67 84 13 1952 234 226 45 48 131 2 1953 243 236 67 59 109 1 1954 214 216 73 50 89 4 1955 257 267 77 45 143 2 1956 256 256 65 45 144 2 1957 284 282 69 51 157 5 1958 291 291 81 44 166 1959 354 349 83 1 48 216 1 1960 314 319 75 42 202 1961 333 334 88 40 202 4 1962 374 365 56 1 45 261 2 1963 440 441 68 4 52 316 1 1964 485 478 63 3 47 359 6 1965 484 484 61 12 49 356 6 1966 513 511 77 8 49 369 8 1967 520 516 78 6 53 374 5 1968 513 512 61 3 38 405 5 1969 503 506 63 2 47 388 6 1970 503 495 58 59 370 8 1971 492 493 65 1 50 371 6 1972 510 506 85 47 367 7 1973 543 543 84 38 416 5 1974 538 537 78 1 74 376 8 1975 491 487 70 2 50 363 2 1976 461 463 76 2 58 325 2 1977 465 465 61 3 49 350 2 1978 454 1979 485 a The figure in parentheses indicates the number of women included. Source : 700 Jurisuto 122-123 . ?4.3.Judges Summary court judges Prosecutors Practicing attorneys Year Number Population per judge Number Population per judge Number Population per prosecutor Number Population per attorney Population 1896 1,221 34,390 383 109,634 1,568 26,779 41,990,000 1916 903 59,236 389 137,506 2,665 20,071 53,490,000 1936 1,391 50,029 648 107,392 5,976 11,645 69,590,000 1956 1,597 55,254 730 120,877 1,717 51,392 6,040 14,609 88,240,000 1976 1,912 58,740 791 141,985 2,089 53,763 10,792 10,407 112,310,000 ?4.4.Year Taking Passing Percent passing 1949 2,570 265 10.3 1954 5,240 250 4.8 1959 7,858 319 4.1 1964 12,098 508 4.0 1969 18,453 501 2.7 1974 26,708 491 1.8 1979 28,622 503 1.8 a The figures in parentheses indicate the number of women included. 4.5.University Taking Passing Percent passing National Tokyo 1,920 101 5.3 Kyoto 868 44 5.1 Osaka 356 13 3.7 Tohoku 484 13 2.7 Nagoya 276 9 3.3 Hokkaido 284 4 1.4 Kyushu 432 6 1.4 Private Chuo 6, 1 02 58 1.0 Waseda 2,887 56 2.0 Keio 1,128 19 1.7 Meiji 1,730 12 0.7 ?4.6.Areas Salary only Salary and commission Commission only Other Total A 69 42 20 19 149 B 44 15 2 6 67 C 12 4 1 1 18 D 30 7 2 2 41 Total 154 68 25 28 275 a Figures in parentheses are percentages within each area. 4.7a.Areas Employed lawyer Overhead-sharer Solo Master Partner Total A 153 174 300 79 36 743 B 69 20 122 23 49 284 C 18 14 81 7 6 127 D 42 20 294 33 48 437 Total 287 229 798 143 138 1,590 a Figures in parentheses are percentages within area. ?4.7b.Age Employed lawyer Overhead-sharer Solo Master Partner Total 20-29 55 6 4 2 5 73 30-39 173 70 171 9 66 489 40-49 29 73 242 56 41 442 50-59 12 54 135 47 15 262 60-69 2 11 96 15 5 129 70 11 11 140 15 6 182 Total 281 227 788 143 138 1,577 a Figures in parentheses are percentages within cohort. 4.7c.Age Employed lawyer Overhead-sharer Solo Master Partner Total 20-29 31 3 0 2 2 37 30-39 86 50 50 3 14 202 40-49 20 56 107 28 9 221 50-59 5 47 48 26 6 132 60-69 2 9 44 9 3 67 70 9 8 45 11 2 75 Total 153 173 294 79 36 735 a Figures in parentheses are percentages within cohort. ?4.8.Number of partners Areas 2 3-5 6-9 10-19 20 Total A 19 15 0 0 2 36 B 20 18 9 2 0 49 C 4 2 0 1 0 7 D 22 18 5 1 0 46 Total 65 53 14 4 2 138 a Figures in parentheses are percentages within areas. 4.9.Number of principals Areas 2 3-5 6-9 10-19 20 Total A 84 58 25 6 2 174 B 14 5 0 1 0 19 C 9 5 1 0 0 14 D 11 7 1 0 0 19 Total 118 74 26 7 2 227 a Figures in parentheses are percentages within areas. ?4.10.Number of lawyers in offices of this size Number in office A B C D Total 1 304 122 82 298 806 2 171 66 29 77 342 3 89 45 10 32 176 4 54 18 3 16 91 5 31 6 3 6 46 6 16 9 1 4 30 7 26 15 0 1 43 8 19 4 0 1 23 9 14 0 0 1 16 10 6 1 0 1 8 11 5 0 0 0 5 12 2 3 1 0 5 13 2 0 0 0 2 14 2 0 0 0 2 15 2 0 0 0 2 16 0 0 0 0 0 17 0 0 0 0 0 18 2 0 0 0 2 19 0 0 0 0 0 20 3 0 0 1 4 21 0 0 0 0 0 22 2 0 0 0 2 23 3 0 0 4 3 24 0 1 0 0 1 Total 750 289 128 439 1,600 a Figures in parentheses are percentages within area. ?4.11.Status A B C D Total Office-sharer 0.91 0.82 0.69 0.77 0.88 Solo 1,59 1.43 1.42 1.18 1.40 Master 1,09 1.17 1.15 1.01 1.09 Partner 1.50 1,00 1.10 1.12 1.18 Total 1,31 1,25 1.29 1.14 1.25 4.12.A B C D Total Male 0.88 0.84 0.38 0.42 0.69 Female 1.75 1.58 1.36 1.18 1.52 University graduates 1.23 1.04 0.60 0.56 0.88 Others 1.40 1.37 1.14 1.04 1.33 7 years in office 0.58 0.45 0,41 0.35 0.46 3-6 years in office 0.93 0.91 0.63 0.02 0.81 3 years in office 1.12 1.05 0.70 0.63 0.94 All clerks 2.63 2.41 1.74 1.60 2.21 a Figures in parentheses are percentages within category and area. ?4.13.Number of cases A B C D Total Years Criminal Civil Criminal Civil Criminal Civil Criminal Civil Criminal Civil 20-29 1.2 14.8 2.2 19.0 3.7 20.3 4.2 31.2 2.3 19.6 30-39 1.6 23.8 2.5 31.5 2.9 36.0 4.9 40.5 2.8 31.2 40-49 1.8 42.6 2.0 46.7 3.8 69.9 6.7 56.7 3.2 48.7 50-59 1.9 37.6 4.0 39.4 8.0 52.0 4.1 56.0 3.3 44.1 60-69 1.0 26.3 1.7 33.4 2.8 52.1 6.5 37.4 2.6 32.2 70 1.4 16.7 1.3 34.6 2.8 15.1 3.5 20.3 2.3 20.1 Total 1.6 31.0 2.3 36.8 3.9 44.7 5.1 43.3 2.9 36.6 ?4.14.Number of cases A B C D Total Status Criminal Civil Criminal Civil Criminal Civil Criminal Civil Criminal Civil Employed 0.9 13.5 1.9 16.9 3.3 21.1 3.7 17.4 1.7 15.4 Office-sharer 2.3 33.4 1.8 32.6 2.6 29.1 4.4 43.7 2.4 34.0 Solo 1.6 29.4 2.6 35.5 4.3 48.1 5.0 41.9 3.3 36.9 Master 1.3 59.5 3.9 74.3 3.0 79.1 5.8 82.5 2.9 68.2 Partner 1.8 41.4 1.9 50.0 3.7 59.3 6.0 47.4 3.4 47.2 1.6 30.7 2.4 36.5 3.9 44.3 5.0 43.2 2.9 36.4 ?4.15.Civil caseload Areas 0-5 6-20 21-35 36-50 51-65 66-80 81-100 101-120 121 Total A 98 220 198 126 48 23 12 3 12 741 B 31 64 66 63 28 18 8 3 6 286 C 12 24 29 21 13 9 9 2 6 126 D 42 90 91 76 49 33 33 12 16 442 Total 184 399 383 286 138 84 63 20 40 1,595 a Figures in parentheses are percentages within area. ?4.16.Average number of civil cases per PA A B C D Total Noncontentious matters 3.26 2.47 2.29 1.95 2.68 Out-of-court settlement 4.48 4.21 3.53 4.20 4.28 Tribunal 1.32 1.18 1.48 1.09 1.24 Court 22.30 29.32 37.56 36.11 28.60 Total 31.36 37.18 44.86 43.35 36.80 a Figures in parentheses are percentages within area. 4.17.A B C D Total Employed 62.1 82.5 88.9 84.3 73.7 Office-sharer 77.8 83.0 86.4 80.1 79.1 Solo 69.2 80.7 83.2 83.7 78.3 Master 81.0 82.1 81.9 84.8 82.2 Partner 52.5 71.9 84.7 83.9 72.0 Total 72.3 79.3 83.3 83.6 4.18.Average number of civil matters per PA A B C D Total Execution of judgment 2.52 2.50 2.77 2.12 2.47 Bankruptcy 0.65 1.01 0.82 0.79 0.77 International transaction 1.07 0.33 0.14 0.25 0.64 ?4.18.Average number of civil matters per PA A B C D Total Family 1.54 1.58 1.77 2.61 1.86 Inheritance 1.59 1.50 1.98 1.98 1.70 Leased land or house 3.40 3.56 3.13 4.13 3.61 Debt 6.33 6.95 10.09 7.98 7.18 Debt 2.02 2.77 3.68 3.75 2.76 Automobile accident 1.11 2.51 2.99 3.07 2.04 Medical accident 0.34 0.44 0.74 0.52 0.44 Labor, employment 0.67 1.02 1.41 0.84 0.84 Environmental pollution 0.16 0.38 0.38 0.33 0.26 Consumer 0.19 0.15 0.26 0.19 0.19 Complaint against government 0.41 0.47 0.60 0.59 0.48 Company or economic law 0.86 0.86 0.78 0.67 0.80 Patent or copyright 0.55 0.51 0.19 0.14 0.40 Other real estate 2.76 4.67 5.24 6.42 4.30 Other damages 1.84 2.52 3.45 3.19 2.46 Others 2.57 2.45 3.74 3.56 2.91 Total 30.68 36.18 43.96 43.13 36.11 a Figures in parentheses are average percentage of total civil caseload within area. ?4.19.Average number of civil matters per PA A B C D Total Individual 13.57 18.93 23.00 27.31 19.08 Small- or medium-sized business 9.40 10.55 12.10 10.53 10.12 Large business 5.50 5.31 4.45 2.68 4.61 Government agency 0.42 0.52 1.57 0.85 0.66 Other organization 1.68 1.70 2.00 2.14 1.83 Total 30.57 37.01 43.12 43.51 36.30 a Figures in parentheses are average percent of total clients within area 4.20.and Area A B C D Total Employed 3.03 1.39 4.48 1.00 2.21 Office-sharer 2.89 3.50 1.13 0.81 3.24 Solo 3.57 5.63 1.91 2.27 3.35 Master 21.93 17.25 12.38 11.89 17.55 Partner 11.43 7.40 0.11 1.64 6.40 Total 5.53 5.35 4.48 2.63 4.82 ?4.21.New Clients, by Status and Area A B C D Total Employed 47.4 55.7 61.3 77.8 54.8 Office-sharer 21.4 27.2 50.0 40.7 25.2 Solo 17.4 13.0 36.8 39.2 26.5 Master 11.7 6.7 0 8.8 11.5 Partner 4.8 21.3 44.4 47.5 26.3 Total 23.5 25.6 41.4 42.0 4.22.and Area A B C D Total Employed 4.46 2.78 2.46 2.95 3.80 Office-sharer 9.05 9.24 8.64 9.17 9.05 Solo 9.37 10.98 11.92 9.56 9.95 Master 16.75 28.16 26.73 20.17 19.95 Partner 13.91 19.18 10.25 9.23 14.24 Total 9.68 12.84 11.66 10.19 10.54 4.23.A B C D Total Individual 0.85 1.15 0.87 0.84 0.91 Small or medium-sized business 6.41 7.90 7.13 6.02 6.63 Large company 1.76 2.59 2.36 1.53 1.89 Government agency 0.11 0.22 0.41 0.43 0.24 Other 0.72 1.04 1.14 1.54 1.03 Total 9.85 12.90 11.91 10.36 10.70 a Figures in parentheses are average percentage of total retainers within area. ?4.24.Route A B C D Total Kin or through kin 1.39 1.69 1.28 1.77 1.54 Client in another case or through 6.26 6.30 8.96 8.78 7.17 another case Retainer 8.65 12.20 14.77 10.51 10.28 Other lawyer 1.91 2.33 4.05 2.57 2.33 Other law-related person 0.47 0.75 1.02 1.29 0.79 Private counseling bureau 0.37 0.76 0.65 0.77 0.59 Public counseling bureau 0.43 0.82 0.99 1.17 0.74 Other personal acquaintance 6.92 7.97 7.88 10.11 8.05 Other 1.01 0.91 1.55 2.09 1.33 No intermediary 0.26 0.26 1.43 2.70 1.02 Total 27.67 33.99 42.58 41.76 33.82 a Figures in parentheses are percentage of source of all clients within area 4.25.A B C D Total Gross income 18,890 15,440 14,240 12,980 16,350 Net income 7,600 6,830 7,110 6,140 7,030 in U.S. a 38,000 34, 150 35,055 30,700 35,150 Rate of expenses 59.8 55.8 50.1 52.7 57.6 a Assumes exchange rate of 200 1.00 . ?4.26.A B C D Highest decile 14,000 11,540 14,790 11,600 Third decile 8,000 7,500 8,440 7,200 Median 5,900 5,340 5,650 5,050 Seventh decile 4,290 3,930 3,440 3,160 Lowest decile 2,350 2,150 1,730 1,440 Average 7,600 6,830 7,110 6,140 a Figures in parentheses are ratios to median within area. 4.27.British Solicitors in 1976a Highest decile 22,70I Third decile 15,224 Median 11,686 Seventh decile 8,862 Lowest decile 5,604 Average 13,581 a Figures in parentheses are ratios to median. Source: Royal Commission . 4.28.Years A B C D Total 20-29 3,470 3,030 3,020 2,740 3,200 30-39 5,480 5,010 5,730 4,800 5,210 40-49 8,380 8,530 9,400 7,910 8,360 50-59 11,340 8,030 9,460 8,780 10,050 60-69 8,420 11,580 9,160 5,860 8,320 70 5,300 5,910 3,750 3,830 4,690 ?4.29.Clerk 3,236 Unit head 4,860 Section head 6,249 Department head 7,825 Medical doctor other than hospital or department head 9,342 4.30.Chief Justice of Supreme Court 1,550 Justice of Supreme Court 1,130 Chief Judge of Tokyo High Court 1,030 Chief Judge of other high court 950 Other full-fledged judge Class 1 855 Class 2 758 Class 3 708 Class 4 604 Class 5 521 Class 6 471 Class 7 423 Class 8 384 4.31.A B C D Total Employed 4,990 4,800 4,540 3,740 4,740 Office-sharer 7,280 5,610 6,630 5,510 6,950 Solo 7,160 6,340 7,270 5,900 6,580 Master 12,520 14,570 14,620 12,260 12,830 Partner 13,880 8,490 4,840 6,160 9,050 ?NOTES The total population of practicing attorneys was divided into four sub-populations corresponding to the following four areas: A, Tokyo; B, Osaka and Aichi; C, other prefectures with a high court ; D, all the other prefectures where no high court is located. The prefectures in area C are local centers of legal activities because of their high courts; those in area D generally are rural, although they include some highly industrialized prefectures adjacent to Tokyo and Osaka, such as Kanagawa and Hyogo. Comparison of the respondents with the original sample with regard to the age, the year of registration as practicing attorney, the university attended, the method of qualification, and the prior occupation showed a statistically significant overrepresentation of younger lawyers, those registered more recently, those who passed the present legal examination, and those without any prior occupation, and an underrepresentation of those over seventy years of age and those who attended the University of Tokyo.maintain their dignity and to improve and develop the lawyers business . Under the law, a person who has completed the legal apprentice course at the ILTR is qualified to become a PA. In addition, the law provides for some exceptional ways of qualifying as a PA , but only a small minority of the present PAs have qualified in these ways. The applicant should request the registration through the local PA association, which has the power to refuse to forward this request to the JFPAA on certain grounds specified by the law .Each PA Association has disciplinary powers over its members, which are exercised through a disciplinary committee whose members are selected from among PAs, judges, prosecutors, and persons of learning and experience . ?With regard to the career structure of judges and prosecutors, the following account is relevant: This means that a typical judge is appointed to an assistant judgeship immediately after having received training for two years at the Legal Training and Research Institute, is promoted to the status of judge after ten years, and intends to remain as a judge until the compulsory retirement age of sixty-five or seventy. Though it is guaranteed by Article 80 of the Constitution that judges shall receive, at regular stated intervals, adequate compensation which shall not be decreased during their terms of office and although the Courts Act provides that they cannot be dismissed or ordered to move to another post against their will they in fact move from one position to another as civil servants do. This practice is partly related to the graduated wage scale, which is not different in nature from the civil service wage scale, and partly related to tradition. They, like other civil servants, not only in fact move from one position to another but are required by law to do so when requested.Selection Committee. As a matter of practice, about half of the nearly 800 summary court judges had previously served as court clerks for many years. The judicial scriveners, for their part, always have been eager to enhance their status, and their effort bore fruit in the 1978 amendment of the Judicial Scriveners Act, which formalized and unified the qualifying examination administered by the Minister of Justice, so that it now includes some basic legal subjects, such as civil, commercial, and criminal law, as well as procedures for registration, deposit, and litigation .This difference in the volume of lawyers business reflects the difference in court caseloads. In 1979, there were only 386,563 civil cases in courts of first instance, whereas West German courts heard 2,001,664 similar cases in 1974 . REFERENCES Dore, Ronald P., Aspects of Social Change in Modern Japan , pp.J.: Princeton University Press. Hattori, Takaaki., Law in Japan , pp.: Harvard University Press. Henderson, Dan F.Kaneko, Hajime, and Morio Takeshita.Nichibenren.Nihon Houritsuka Kyoukai, ed.Rabinowitz, Richard W.Rokumoto, Kahei.hard Klausa, and Hubert Rottleuthner, eds., Alternative Rechtsformen und Alternativen zum Recht, pp.Royal Commission on Legal Services.Takayanagi, Kenzo., Law in Japan , pp.: Harvard University Press. Tanaka, Hideo, ed.Tomasic, Roman, and Cedric Bullard.Volks, Holger. Inaugural dissertation, University of Cologne.5 Legal Experts in Belgium LUC HUYSE This is not a chapter on lawyers in the narrow sense that is, legal experts who represent clients in the courts. Reducing the scope of inquiry to what some see as the essence of lawyering the representational function would be the wrong strategy for describing the legal profession in Belgium. It also would encourage a static perspective, since representation in court is not the most important function Belgian legal experts perform. Therefore, I have begun by describing the jurist population as a whole and then have focused on the occupational groups that most closely fit the model of the legal profession, namely, advocates and notaries. JURISTS IN BELGIUM: AN OVERVIEW A HIGHLY DIVIDED PROFESSION In Belgium, the terms for lawyer are jurist juriste , but they refer more to a statistical category of degree-holders than to an occupational or professional group.Belgian folk conceptions make a rather sharp distinction between the highly visible legal practice of advocates, judges, notaries, and court clerks and the more hidden services of legal experts in the public sector and private employment . Advocates, notaries, judges, and jurists in private employment and public administration also are profoundly differentiated in other ways. ?First, the various categories are differently bound to the exercise of their legal expertise. Many who enter private firms or the public sector cease to be jurists in a narrow sense: they become managers or executives and only infrequently do legal work. By contrast, ethical codes prohibit advocates from combining their practice at the bar with nonprofessional activities, such as selling insurance or real estate. Third, an overarching association of jurists never has existed, and, consequently, there has been no general professional project for collective mobility, size control, self-regulation, or the formulation of universal ethical codes . The various categories of jurists have developed separate associations, of which the corporations of advocates and notaries are the oldest and most powerful. Conflicts over market position often are challenges between neighboring occupations within the world of jurists: advocates against notaries against jurists in nonprofit organizations, and so on. WHAT JURISTS DO Membership in the bar , which alone enjoys rights of audience in the courts, is reserved to jurists who are fully self-employed and who conform to the ideal of a legal profession . In their external relations both groups operate as advocates and have the right to represent clients in court, but within the professional community apprentices have the status of minors. One in every three Belgian advocates belongs to the Brussels bar; nearly 60 percent practice in Brussels, Ghent, Antwerp, and Liege.Notaries are public office holders appointed by the Department of Justice.autonomy and status of a liberal profession. The function of the 1,200 notaries is to write, hold in trust, and deliver copies of contracts for the exchange and mortgage of land, wills, gifts, and marriage contracts.The careers of judges and prosecuting attorneys are closely intertwined.The vast majority of jurists in government perform functions in the general administration .By far the largest subgroup of jurists work in commerce, finance, industry, and private nonprofit organizations, but they are differentiated by function and degree of self-employment. The first variable divides this group into jurists practicing as lawyers in the narrow sense house counsel and legal advisers in the private nonprofit sector and jurists whose work is predominantly nonlegal . The other variable distinguishes a very large group of salaried employees from a tiny segment of legally trained employers or merchants.Finally, there is a miscellaneous category of experts who lack formal credentials but perform legal functions: tax consultants, accountants, court and notary clerks, criminologists, and others.SOCIOGRAPHY OF LEGAL PERSONNEL IN BELGIUM Quantitative Developments: Discontinuous Growth In 1986 there were approximately 30,000 qualified jurists in Belgium, of whom more than 80 percent were economically active.The rate of change varied greatly during these 150 years. Since then, production has stabilized but at such a high level that we may expect the jurist population to increase by half in the next fifteen years . The extraordinary growth of the jurist population conceals another development, however: there has been a real erosion of jurists as a proportion of university enrollment. Jurists were more than 20 percent of all persons with academic degrees in 1937, but they were 16 percent in 1961, and only 10 percent of all those graduating from a university in 1984 . Of course, figures do not speak for themselves: they must be confronted with other data if we want to understand patterns of quantitative development. Most research has been devoted to studying the elements that create conditions favorable to legal experts, generate business for jurists, and, thus, pull people into law schools and, subsequently, into legal occupations. These include the development of a market economy and the bureaucratization of political rule , legal activity , population increases , and the growth of state regulation . Various indices have been suggested: real gross national product, the number of active corporations and other measures of industrial and commercial activity, bankruptcies, automobile accidents, the divorce rate, the number and budgets of regulatory agencies, the number of laws and regulations, and the litigation rate. Measures that relax the entrance requirements for law schools and positive discrimination in the admission of students from minority groups are good examples. More work needs to be done to understand both the production of lawyers and the demand for their services .profession, or does an increase in the number of lawyers lead to rising litigation rates? Why has an increase in the legal activity of notaries 238,041 notarized documents in 1899, 559,308 in 1968 been attended with a continuous decline in the number of notaries, with no concomitant loss of the original monopoly? Two Push Factors There can be no doubt about the influence of two push factors in the spectacular increase in the number of jurists after 1970. In 1964 a major reform of the entrance requirements for higher education dramatically opened the doors of universities: many high-school programs that previously did not allow access to colleges and universities were promoted to college-preparatory status. This reform, which enabled many more eighteen-year-olds to attend university, had a particularly strong influence on the recruitment pattern of law schools. The impact on law school output was felt six to seven years later: an average of 374 law degrees were awarded annually in the 1960s, 671 in 1970, 781 in 1971, and 909 in 1972 . A second push factor is related to the emancipation of disadvantaged groups. The dramatic rise in the yearly output of law degrees, from 404 in 1968 to 1,220 in 1982, must be attributed largely to the breakthrough of female students, who received only 16 percent of law degrees in 1968 but 37 percent in 1983 . Between 1968 and 1983, the number of law degrees earned by men increased 109 percent, but the number earned by women rose 540 percent.5 clearly shows that the recent rise in law school output also expresses the greater participation of Flemish youth in university education in general and legal studies in particular.5 percent of law graduates in 1968 but 58.1 percent in 1983. The combined effect of the two push factors is visible in the fact that the ratio of French-speaking male law graduates to Flemish female law graduates declined from 7.7:1 in 1968 to 1.3:1 in 1983. Older and Newer Types of Legal Experts We learned in the preceding pages that the total body of legal expertise has vastly increased in Belgium.titative change vary substantially in the various occupations in which jurists are active. Until the 1960s the judiciary followed a somewhat similar pattern, from 7,350 people per judge in 1841 to 8,412 in 1960. This downward trend recently was reversed, when a major reform of the organization of judicial work dramatically increased the size of the judiciary. The fastest-growing occupation, however, is jurists in private employment, who numbered about 800 just before World War II but are about 10,000 today. Almost 60 percent of the growth of the jurist population between 1947 and 1961 occurred in this branch, which expanded from about 1,500 to about 3,600, while the bar gained an additional 300 members. The uneven development of the various occupations considerably modified their proportions of the jurist population. Looking at the distribution of jurists among practice settings , we can see that the traditional categories constituted more than three-fourths of the profession before 1940 but less than 45 percent in 1984. Jurists in private employment tripled their share in less than fifty years; they now are by far the largest category , followed by advocates and civil service jurists . One important consequence of this historical development is a major change in the size and type of the organizations within which most jurists practice. Today, 55 percent of all legally trained people unquestionably work in relatively large organizations, such as industrial, commercial, and financial firms and governmental agencies. On the surface, the Belgian situation contrasts sharply with many common law countries, where most jurists are private practitioners not salaried employees. It is questionable whether this signifies a substantial difference in the total amount of legal work accomplished and in the translation of legal functions into legal roles. Nevertheless, the margin for professional autonomy necessarily will be much smaller in Belgium than in some common law countries, given the preponderance of private and public salaried employment among jurists. ?Increasing Participation of Disadvantaged Groups The first woman jurist in Belgium, Marie Popelin, graduated in 1888.Women were admitted to the bar in 1922. The low proportion of women among all undergraduates before 1950 is only part of the explanation, for other university branches attracted many more women . When the number of women undergraduates abruptly started to grow in the 1960s, the law schools again were slow to catch up. The breakthrough came in the 1970s. Between 1970 and 1984 the absolute number of women jurists rose almost fourfold, and their proportion of the profession doubled to about 22 percent .2 and 5.3, we may expect that women will constitute more than a third of all jurists in the early 1990s. However, the earlier attitude of women toward legal studies persists: law schools still attract a smaller proportion of women than do the other university schools and departments . What discouraged many educated women from becoming jurists? Formal discrimination ended with the admission of women to the bar in 1922, the judiciary in 1947, and the office of notary in 1950. One explanation may be that women choose studies that lead to jobs women traditionally have held or to careers, such as teaching, where discriminatory practices are thought to be limited. Compared to the proportion of women among law graduates, women jurists also are underrepresented in the judiciary and civil service but slightly overrepresented in nonprofit organizations, legal education, and the bar. Thus, we may hypothesize that women jurists feel good in occupations where a career can be discontinuous, part-time work is available and socially accepted, and status devaluation is most probable . They will be less comfortable in occupations that are high status and where a career must be continuous and work performed full time . The distribution of women, then, probably is not the product of deliberate choices about particular forms of legal work but a gender-bound allocation of career opportunities. What effects will these demographic changes have on the way legal functions are performed? It would be unwise to expect to see substantial effects from the entry of women within the next twenty years or so. Recently, the proportion of women with law school degrees who remain unemployed has been higher than that of men law graduates ; more also work part time and have discontinuous careers.5 percent of all judges but only 8 percent in the courts of appeal and 3 percent in the highest court. That year women were about 25 percent of all advocates but only 7 out of the 325 members of the local disciplinary councils and I out of the 26 heads of local bars. In yet another way the composition of the jurist population begins to reflect general emancipatory processes in Belgian society. Until the 1960s the Dutch-speaking Flemings, although a demographic majority, were un-derrepresented in the major political, economic, and cultural spheres of the country. The French-speaking Walloons and inhabitants of Brussels also dominated many professional groups, not least because of their higher participation in university education.5 percent of the law degrees awarded between 1956 and 1965, although they were about 65 percent of the general population. As a result, Flemish jurists slowly are taking over elite positions within the bar, the Royal Federation of Notaries, and the Belgian Association of House Counsel. Signs of such a shift can be found in the differences in substance and form between the regional laws of the Vlaamse Raad and the Conseil Wallon , the divergent jurisprudence of the Flemish and francophone chambers of the Raad van State Conseil d Etat , and the writings of Flemish legal scholars. ?Class Origins Still Are Important Class always has affected entry into the jurist population and allocation of law graduates to the various legal roles. The effects of positive discrimination are clearly visible in later years, which show a substantial decrease in the proportion of students from upper-class families and an even more pronounced rise in the participation of students with lower middle-class origins. This general trend was particularly strong between 1965 and 1973 but since then has slowed down or reversed, and the position of the lowest income group hardly changed.The class profile of jurists naturally reflects this situation. Claeys surveyed a representative sample of Leuven law graduates in 1935, 1940, 1950, 1955, and 1960 and found that 67 percent of notaries and 41 percent of advocates had fathers with university degrees, 56 percent of notaries and 28 percent of advocates had grandfathers with university degrees, 43 percent of notaries and 14 percent of advocates had fathers in the same profession, and 18 percent of notaries and 3 percent of advocates had grandfathers in the same profession. LEGAL EDUCATION AND SOCIALIZATION: THE MAJOR ROLE OF LAW SCHOOLS Studies of legal education shed light on such crucial processes as the creation of legal expertise, recruitment into the various legal roles and occupations, preservation of a fairly homogeneous self-image among the branches of the jurist population, and maintenance of the prevailing definition of the professional situation.Socialization of prospective jurists was and is a multiphase process.University of Leuven in 1981 had upper- and upper-middle-class origins; many were related to a legally trained person. We may assume that in these cases the assimilation of images about lawyers will have started well before the student crosses the doorstep of the university. The facts that law schools have a monopoly over formal legal training and that there are no subsequent state or bar examinations give those schools considerable weight. Certain characteristics of Belgian law schools increase their impact: legal studies take five years ; many faculty members are only part-time teachers and bring to the classroom their professional experience as advocates, notaries, judges, bankers, and similar functionaries; students have no opportunities to take summer jobs in law firms or to work in a government or nonprofit law office and consequently are totally dependent on the image of lawyers and the legal system presented in the classroom. Other features reduce the socializing influence of the law schools, however: first-year undergraduates start their legal studies immediately after they leave high school and, therefore, often have no strong commitment to the subject; Belgian students return home every weekend; experiences that might encourage anticipatory socialization are not available. The first job is the third important socializing agent. In two of the legal roles this occurs during a relatively long period of apprenticeship, as we will see later in this chapter. RECRUITMENT INTO LEGAL ROLES AND OCCUPATIONS The allocation to legal roles is mediated by several steplike processes and intervening variables. A study at the University of Leuven Law School suggests that many first-year students enroll because other subjects require quantitative skills they lack . In order to describe recruitment into legal roles during and after law school training, we may find it helpful to use Elliott s distinction between individual processes of choice and commitment and the selection mechanisms employed by the profession itself . he range of alternatives available to an individual is progressively limited until eventually choice takes place within a relatively narrow range .In all countries law school performance correlates with the type of law ?practice a graduate enters after leaving the university. Although students have a choice of courses only in their fifth year, ascriptive elements, such as family background, may play a prominent role here. The range of first jobs open to law school graduates is limited by a variety of factors. When the economy is stagnant and the output of newly graduated jurists is very high, as has been the case since 1970, obtaining any job is a victory. All cabinet ministers can influence who is recruited and promoted as a civil servant in the various administrative agencies that fall within their jurisdiction.WEAK SUPPLY CONTROL It is difficult to speak of a professional project of supply control among the jurist population as a whole. Many of the usual goals of such a project already were in place in the early clays of the Belgian state. University reforms were not the produce of a professional strategy but partly the initiative of medical and law school faculties and partly the resolution of a struggle between the two principal adversaries in Belgium: those who perceived the secular state as the main agency in the production of legal and medical experts and the Catholic party, which defended the autonomy of the denominational University of Louvain. The role of jurists was limited by the absence of an overarching association, and jurists also were divided along the same lines as other political actors. Consequently, restrictions on the production of legal experts never originated within the jurist population but rather expressed the characteristics of the political and educational system as a whole.was no secondary or higher education in Dutch before 1935. It is not surprising that the number of law students increased dramatically when these hurdles disappeared one after another, starting in 1960. LAWYERING AS A LIBERAL PROFESSION: ADVOCATES AND NOTARIES Most advocates and notaries work within the environment of a liberal profession. Its short history is characterized by a continuous search for public and private measures that might accelerate the process of professionalization, such as official protection of the title of house counsel , self-regulation, and agreements with the bar that would allow house counsel to enter into partnerships with advocates. THE SIZE AND SUPPLY CONTROL PROBLEM Advocates continuously have patrolled the borders of their profession. Theft strategy was threefold: establishing and defending their exclusive rights of audience, systematically excluding foreign advocates, and controlling the production of producers who formally qualify for the bar. Advocates obtained exclusive rights of audience early in the nineteenth century, although some of the functions of client representation remained the province of pleitbezorgers avoués. However, the importance of exclusive rights of audience is being reduced as litigation becomes a smaller fraction of the market for legal services. The exclusion of foreign advocates from the bar has become an important and difficult task since the birth of the European Economic Community and its advocacy of free trade for service occupations. Legal technicalities still prevent noncitizens from entering the Belgian bar , but foreign law firms have bypassed the obstacles by hiring Belgian advocates. ?The third goal, controlling the production of qualified producers, has proved to be the most difficult to realize, particularly the efforts to regulate size. Since 1950, advocates twice have confronted a serious growth problem: contraction between 1955 and 1970 and an extraordinary expansion since 1975. Advocates tried to correct underpopulation through a sort of promotion campaign and overpopulation through various techniques of discouragement and an informal numerus clausus for apprentices, but these endeavors were quite unsuccessful. Finally, law schools have little power to reduce or expand their enrollments at the behest of the profession even if they wish to do so, since many of the forces that determine the size of the student body are exogenous . The problems that advocates encounter in regulating their numbers do not prevent them from influencing who can become an advocate, thereby fostering the homogeneity of the bar. The disciplinary council of the local bar examines each applicant for inscription on the roll of apprentices for incompatibilities and to ascertain whether the candidate s conduct is flawless. The master-pupil relationship, on which it is based, tends to invest the full members of the bar with great moral authority and, thus, with substantial control over entry to the profession. It also is a setting in which universalistic or meritocratic qualifications for recruitment and occupational selection easily can be replaced by such criteria as social skills, character, and social reliability. As an apprentice, the young jurist has the status of a minor within the professional community and a precarious financial position. Background characteristics, such as parental assistance in obtaining access to clients and direct financial support, may ensure that only the proper candidates for full membership survive. Yet, apprenticeship no longer can be an effective selection device if the number of apprentices exceeds that of patrons , and that is precisely what happened after 1975. Too many prospective advocates now slip through the apprenticeship period without being properly supervised, and their entry soon may bring greater heterogeneity to the bar. Thus, it is possible that the mere size of the law school population, rather than changes in its social composition, is the real threat to the homogeneity of the bar. The legal occupation that most closely fits the model of the profes- ?sional project is the notary. They gained status and autonomy during the Napoleonic period, when the notary was redefined as a public office with a large degree of professional freedom. During part of the nineteenth century an official nomination by a public authority was needed, but candidates then were selected on the basis of a moral examination by the professional elite. The successful formula seem to be a combination of appointment by a public authority , limitation of the number of notary offices , the maintenance of apprenticeship as a screening device, the requirement of extremely high payments by those taking over an existing practice, and, finally, the early creation of an overarching association. The notary s present share of the market for legal services is only partly based on the original monopoly ; notaries increasingly hold themselves out as general advisers in legal affairs. APPRENTICESHIP AS A SOCIALIZATION AND RECRUITMENT PROCESS After obtaining a law degree, those wishing to become advocates or notaries serve an apprenticeship . The patronage relationship with an older professional also maximizes the likelihood of socialization to a third subrole: member of the professional community. To enroll as an apprentice at the bar seems to be a mere formality- the acolyte must swear allegiance to the constitution and laws and apply for inscription. Huyse and Cammaer found that in 1979, 25 percent of all applicants had to contact three or more advocates before they were accepted as apprentices.In the United States, first jobs have a very strong influence on lawyer careers . That certainly is true for those Belgian lawyers who begin their careers as apprentices, which is based on sponsored, not contest, mobility. In Turner s definition, sponsored mobility is a process in which the elite or their agents, who are best qualified to judge, call those individuals to elite status who have the appropriate qualities. Individuals do not win or seize elite status, but mobility is rather a process of sponsored induction into the elite following selection. Huyse and Cammaer found that the sponsored apprentices got the best and most powerful patrons, received a better training, were allocated more cases, and earlier obtained a decent share of the income they earned for their patron, while the non-sponsored apprentices were harassed with techniques of what Clark calls cooling-out. PROFESSIONAL ASSOCIATIONS The organizational structure of the bar and the notariat has three striking characteristics: extreme localism, considerable self-regulatory powers, and problematic interest intermediation between the two branches and governmental agencies and between advocates or notaries and external occupations . The self-regulatory powers of the local corporations of advocates and notaries were not acquired through lengthy strenuous efforts by the profession, as was the case for American lawyers. Rather, these corporate associations were created by the state and endowed with their various competences as early as 1803 and 1810 . It is almost impossible to overestimate the range of powers that local corporations exercise; within their judicial district they formulate ethical codes, discipline violators, mediate conflicts between confrères, and organize part of the training of apprentices. The national organizations have only secondary powers: they may try to streamline ethical codes, they deliver services the local corporations cannot afford, and they represent them at the national and international levels. The national corporation of advocates has been forced by its constituent elements to work with a Malthusian interpretation of its competences. The decentralization of the associations of advocates and notaries was unproblematic as long as state intervention in professional activities was limited and sporadic. The absence of a strong national association became a serious handicap as soon as these professions regularly had to articulate their interests before the government, in competition with other occupations, and the internationalization of legal work made supranational contacts essential.federation, created in 1891 , was revived in 1946. True, there is another much older national association the Verbond van Belgische advocaten Union des avocats belges but its membership is small, it has no public law status, and it never was able to overcome the autonomy of the local corporations. THE IMPACT OF RECENT DEVELOPMENTS IN LEGAL SERVICES DELIVERY The demand for legal services has been modified recently in at least two important ways. Inexpensive legal aid for the less affluent has been requested with increasing frequency, and large bureaucratic organizations have multiplied their demands for expert advice concerning their legal contacts with individuals , with other bureaucratic organizations , and with corporate bodies on the international scene .Recent developments in legal aid have been analyzed by Breda . They are staffed by volunteer law students and jurists but never succeeded in attracting the collaboration or even the sympathy of the bar associations. Legal aid also is offered by local and national politicians and by Public Assistance Agencies serviced and subsidized by local authorities.The new demands, coming from large organizations, have been met by the organizations themselves, which have hired more jurists. Only a few law firms have emerged in the big cities, and American law firms have opened branch offices in Brussels. Have there been meaningful changes in the conception of the lawyer s role? They could have used the law shops as ice-breakers , as the British and Dutch private practitioners did, but they chose to fight them instead. Again, advocates decided to antagonize these other occupations, sponsoring legislation that would have extended the advocates monopoly to all legal advice. A more sympathetic attitude toward the legal aid movement, in particular, would have provided additional business for lawyers and enhanced the legal profession s reputation for altruism and the legitimacy of the legal system . Moreover, there was a very dear model: ten years earlier the Belgian medical profession succeeded in converting a major policy reform that made health care almost free into a mechanism for demand creation, without losing its professional autonomy. The factors underlying the advocates negativism are manifold. However, there also is the fact that the bar elites, men in their forties and fifties, started their careers in the very comfortable market situation of the 1960s, when the bar was shrinking rapidly and demand was increasing. Private firms and government agencies are hiring more jurists, who send advocates only the work that employed jurists cannot handle, namely, pleading a case in court. Even the elite members of the bar will learn the lesson soon: innovate or disappear, at least as a liberal profession. Notaries already have switched to demand creation, launching information campaigns, giving free advice to indigent people, and even inventing demands . ?CONCLUSION With one qualified jurist for every 330 inhabitants, Belgium seems to rest on a web of legal expertise. However, several factors make it extremely difficult to determine the precise social significance of all the legal expertise and its recent spectacular growth. The output of law schools also is the product of what Larson calls the autonomous logic of the market for educational services. In the 1960s and 1970s the political debate about equality of educational opportunity led to a policy of increasing access to the university for disadvantaged groups such as women, Flemish speakers, and lower-middle-class youngsters. Furthermore, law schools are not merely vocational; they also are seen as the source of a liberal education, a ticket to the culture of the higher strata. The ratio of population to jurists also must take account of the fact that many legally-trained persons now are women, who are more likely than male jurists to work part-time and have discontinuous careers. Finally, we should note that the extraordinary growth of the jurist population conceals the rapid decline in the proportion of undergraduates studying law. The mere fact that jurists share a common education and practical training and speak the same technical language facilitates their collective mobilization for purposes of social engineering. In the past the heterogeneity of occupational forms and of the legal work performed was reflected in and reinforced by the folk conception of what jurists do and, equally, by the self-definition of the professionals. The influx of women, of Flemish speakers, and of persons with lower-middle-class origins has substantially reduced the dominance of men, French speakers, and those from upper-class backgrounds. Before 1940, 80 percent of all jurists practiced solo. Today, more than half of all economically active jurists are either employees in relatively large organizations or, among advocates, members of associations and partnerships. Thus, more jurists than ever before now experience the division of labor and the problems of working together with paralegal and nonlegal experts. ?TABLES 5.1.Year Total Average yearly percent increase Total economically active Percent economically active Population per jurist Population per economically active jurist 1937 8,460 7,360 87 988 1,136 1947 9,358 1.1 8,143 87 909 1,045 1961 13,701 3.3 11,554 84.3 670 795 1970 15,803 1.7 13,463 85.2 611 717 1985c a Before 1969 a notary degree was received after two to four years of college and university training.b Before 1937 the national census did not count degrees. c Figures in parentheses are estimates. Sources: 1937-1970 Department of Economic Affairs, National Census Reports; 1985 estimate. ?5.2.Total Men Women Year Number Annual percent change Number Annual percent change Number Annual percent change Percent of total 1840 44 1850 90 1860 96 1865 98 1870 81 1875 136 1880 186 1885 185 184 1 0.5 1890 200 1895 150 1900 130 1905 129 1910 142 1920 184 1925 198 1926 196 -1 1927 197 0.5 1928 205 4 1929 229 18 214 15 1930 240 5 225 15 6 1931 229 -5 220 9 1932 222 -3 211 11 1933 271 22 260 11 1934 272 259 13 1935 350 29 325 25 1936 322 -8 295 27 1937 317 -2 301 16 1938 248 -22 235 13 1939 246 -1 228 18 1940 267 9 256 11 4 1941 241 -10 226 15 1942 270 1943 279 1944 276 1945 284 264 20 1946 335 18 313 22 1947 340 1 314 16 1948 273 -20 268 5 1949 417 53 379 38 Table continued on next page ?Table continued from previous page 5.2.Total Men Women Year Number Annual percent change Number Annual percent change Number Annual percent change Percent of total 1950 550 32 1951 535 -3 474 61 1952 495 -7 427 -10 68 11 1953 514 4 444 4 70 3 1954 494 -4 418 -6 76 9 1955 511 3 449 7 62 -18 12 1956 495 -3 436 -3 59 -5 1957 474 -4 410 -6 64 8 1958 435 -8 380 -7 55 -14 1959 418 -4 364 -4 54 2 1960 415 -1 364 51 -5 12 1961 368 -11 313 -14 55 7 1962 374 2 302 -4 72 31 1963 301 -20 250 -17 51 -29 1964 327 9 279 12 48 -6 1965 343 5 293 5 50 4 15 1966 358 4 301 3 57 14 16 1967 360 302 48 -16 13 1968 404 12 340 13 64 33 16 1969 496 23 393 16 103 61 21 1970 671 35 509 30 162 57 24 1971 781 16 604 19 177 9 23 1972 909 16 706 17 203 15 22 1973 853 -6 617 -13 236 16 28 1974 977 15 714 16 263 11 27 1975 1,144 17 761 7 383 46 33 1976 1,188 4 768 1 420 10 35 1977 1,117 -6 730 -5 387 -8 35 1978 1,060 -5 711 -3 349 -10 33 1979 1,087 3 701 -1 386 11 36 1980 1,118 3 709 1 409 6 37 1981 1,170 5 756 7 414 1 35 1982 1,220 4 783 3 437 6 36 1983 1,121 -8 711 -9 410 -6 37 1984 1,205 7 a 1840-1935, 1942-1944 Belgians and foreigners; 1936-1941, 1945-1984 Belgians only. Source: 1840-1935 Department of Economic Affairs, Annuaire Statistique de la Belgiqut; 1936-1984 Universitaire Stichting Fondation Universitaire, Dienst voor Universitaire Statistiek. ?5.3.Total Men Women Year Number Annual percent change Number Annual percent change Number Annual percent change Percent of total 1935-1936 1,024 947 77 8 1936-1937 1937-1938 876 823 53 1938-1939 1939-1940 739 704 35 1940-1941 832 790 42 5 1941-1942 923 884 39 1945-1946 1,008 958 50 5 1946-1947 1,148 14 1,070 12 78 56 1947-1948 1,417 23 1,302 22 115 47 1948-1949 1,740 23 1,546 19 194 69 1949-1950 1,877 8 1,648 7 229 18 1951-1952 1,832 1,573 259 1952-1953 1,788 -2 1,544 -2 244 -6 1953-1954 1,791 0.2 1,555 1 236 -3 1954-1955 1,750 -2 1,533 -1 217 -8 1955-1956 1,685 -4 1,474 -4 211 -3 16 1956-1957 1,593 -6 1,393 -5 200 -5 1957-1958 1,507 -5 1,313 -6 194 -3 1958-1959 1,395 -7 1,209 -8 186 -4 1959-1960 1,294 -7 1,107 -8 187 0.5 1960-1961 1,325 2 1,038 -6 187 14 1961-1962 1,182 -11 995 -4 187 1962-1963 1,132 -4 957 -4 175 -6 1963-1964 1,180 4 997 4 183 5 1964-1965 1,221 4 1,025 3 190 7 Table continued on next page ?Table continued from previous page 5.3.Total Men Women Year Number Annual percent change Number Annual percent change Number Annual percent change Percent of total 1965-1966 1,341 10 1,127 10 214 9 16 1966-1967 1,491 11 1,231 9 260 21 17 1967-1968 1,847 24 1,462 19 385 48 21 1968-1969 2,321 26 1,811 24 510 32 22 1969-1970 2,866 24 2,239 24 627 23 22 1970-1971 3,036 6 2,329 4 707 13 2.3 1971-1972 3,327 10 2,487 7 840 19 25 1972-1973 3,572 7 2,534 2 1,038 24 29 1973-1974 3,907 9 2,692 6 1,215 17 31 1974-1975 3,980 2 2,649 -2 1,331 10 33 1975-1976 3,914 -2 2,585 -2 1,329 34 1976-1977 3,807 -3 2,512 -3 1,295 -3 34 1977-1978 4,069 7 2,744 9 1,325 2 33 1978-1979 3,993 -2 2,580 -6 1,413 8 35 1979-1980 4,106 3 2,648 3 1,458 3 36 1980-1981 4,119 0.3 2,671 1 1,448 -1 35 1981-1982 4,216 2 2,679 1,537 6 36 1982-1983 4,184 -1 2,607 -3 1,577 3 38 1983-1984 4,394 5 2,692 3 1,702 8 39 a Students in last three years of law school only ; Belgian students only. Source: Universitaire Stichting Fondation Universitaire, Dienst voor Universitaire Statistiek. ?5.4.1937 1947 1961 1970 1984 A. 40,672 55,701 91,979 152,693 11,308a B. 8,460 9,358 13,701 15,803 1,205b B A as a percentage 20.8 17.4 15.9 11.5 10.7 a Total number of persons graduating in 1984. b Total number of persons graduating in law in 1984. Sources: 1937-1970 National Census Reports; 1984 Dienst voor Universitaire Statistiek. 5.5.French Flemish Flemish Year Men Women Total Men Women Total Men Women 1956 240 37 277 196 22 218 40 37 1965 171 34 205 122 16 138 36 32 1970 251 90 341 258 72 330 51 44 1975 292 185 477 469 198 667 62 52 1980 301 205 506 408 204 612 58 50 1983 284 188 472 429 222 651 60 54 1984 452 753 a Belgian graduates only. Source: Dienst voor Universitaire Statistiek. ?5.6.Year Advocates Decennial percent change Population per advocate Judges Decennial percent change Population per judge Notariesa Decennial percent change Total 1841 920 4,498 563 7,350 980 2,463 1850 813 -12 5,444 537 -5 8,242 990 1 2,340 1860 983 21 4,814 561 4 8,435 995 0.5 2,539 1870 1,149 17 4,428 569 I 8,942 1,011 2 2,729 1880 1,356 18 4,070 625 10 8,832 1,025 I 3,006 1890 1,892 40 3,208 666 7 9,112 1,052 3 3,610 1900 2,184 15 3,064 708 6 9,455 1,087 3 3,979 1910 2,399 10 3,095 767 11 9,679 1,112 2 4,278 1920 2,132 -11 3,473 861 12 8,600 1,132 2 4,125 1930 3,023 42 2,677 820 -5 9,868 1,172 4 5,015 1940 3,694 22 2,245 813 -1 10,202 1,134 -3 5,641 1950 3,297 -11 2,625 1,116 37 7,754 1,128 -1 5,541 1960 3,579 9 2,564 1,091 -2 8,412 1,164 3 5,834 1970 3,827 7 2,521 1,586 45 6,085 1,202 3 6,615 1984 7,504 96b 1,313 1,669 5b 5,903 1,226 2b 10,399 a Before 1969 notaries did not need a full law degree but received a shorter legal training. b Percent change over fourteen years. Sources: 1840-1970 Van Houtte and Langerwerf .image ?5.8.Percent women Degree 1937 1947 1961 1970 1983a Law 1.7 3.5 7.9 11.3 36.6 Philosophy and arts 16.8 27.8 39.3 40.4 61.7 Sciences 14.6 19. 29.5 25.8 45.8 Medicine and other health,sciences... 4.3 9.6 15.2 23.1 42.1 Civil and agricultural engineering 0.2 0.4 0.6 1.5 12.5 Social sciences, economics 4.2 6.5 10.8 15.1 31.2 Psychology, pedagogy 24.8 31.9 45.6 47.9 58.2 a Percentage of women graduating in 1983 Sources: 1937-1970 National Census Reports; 1983 Dienst voor Universitaire Statistiek. ?5.9.1961 1970 1983 Categories Number Percent Number Percent Number Percent A. 286 8.0 500 13.4 1,751 24.0 B. N.A. N.A. Primary sector 0 2 3.4 Secondary sector 29 3.1 48 5.0 Tertiary sector Commercial banking, insurance, estate handling, and transport firam 83 4.6 129 5.6 Nonprofit organizations 14 5.8 34 13.0 International organizations 9 7.9 18 11.0 C. N.A. N.A. General administration N.A. N.A. 114 6.8 Education 87 19.9 157 23.4 D. 19 1.6 73 4.6 240 14.7 E. 4 0.3 12 1.0 44 3.6 Total 637 5.9 1,273 9.4 N.A. N.A. Sources: Advocates: 1961 CRISP ; 1970 Estimate; 1983 Nationale Orde van Advocaten.5.10.1961 1970 Degree Men Women Men Women Law 91.1 63.8 91.9 71.4 Philosophy and arts 90.8 76.6 91.9 77.1 Sciences 94.3 79.1 93.9 80.9 Medicine and other health sciences 95.3 78.6 95.8 81.4 Civil and agricultural engineering 85.0 70.0 87.0 65.0 Social sciences,economics 91.9 63.2 92.0 67.9 Psychology, pedagogy 89.9 72.4 91.6 74.5 Source: National Census Reports. 5.11.Law students Occupation of father 1965 1973 1981 All undergraduates, 1981 Upper 45.3 28.9 32.9 21.8 Upper-middle 19.3 25.8 18.1 17.2 Lower-middle 20.4 27.9 31.3 38.5 Lower 15.0 17.3 17.4 22.5 a students in last three years of legal studies and last two years in criminology. Source: Personal communication from I.FIGURE I. Orde van advocaten Ordre des avocats Kamer van notarissen Chambre des notaires 1. Judicial district Judicial district 2. 1810 1804 3. Created by the state Created by the state 4. 26 26 5. Yes Yes 6. Yes Yes 7. Self-regulatory power, licensed by the state Self-regulatory power, licensed by the state 8. Chairman general assembly disciplinary council chamber of young advocates Chairman general assembly disciplinary chamber II. 1. Nationale orde van advocaten Ordre national des avocats Koninklijke federatie van Belgische notarissen Fèdèration royale des notaires de Belgigue 2. 1968 1891-1946 3. Created by the state Created by the profession 4. Yes No Table continued on next page ?Table continued from previous page 5. The only members are the local corporate associations Notaries of local associations automatically become members of national federation 6. Unification of ethical codes articulation and aggregation of common interests Articulation and aggregation of common interests professional postuniversity training 7. Dean general assembly of local chairmen General assembly of local chairmen III. 1. Verbond van Belgische advocate Union des avocats belgs 2. 1886 3. Created by the profession 4. No 5. Articulation of material and moral interests IV. 1. Union internationale du notarial latin 2. Fig.1.NOTES I am grateful to Robert Dingwall and Filip Reyntjens for their comments on an earlier version of this chapter REFERENCES Abel, Richard L., Lawyers in Society, vol.Bonte, André.d.Breda, Jef.Claeys, Urbain.Clark, Burton R.Centre de Recherche et d Information Socio-Politique . .De Neve, Hubert.Elliott, Phillip.Grossman, Joel J., and Austin Sarat.Huyse, Luc. ., Conflict and Coexistence in Belgium, pp.Huyse, Luc, and Hugo Cammaer., De rechtssociologische werkkamer , pp.Larson, Magali Sarfatti. ., Lawyers in Society, vol.Pashigian, B. The Market for Lawyers: The Determinants of the Demand for and Supply of Lawyers, 20 Journal of Law and Economics 53-85. Rueschemeyer, Dietrich.: Harvard University Press. Schmitter, Phillipe., Trends Towards Corporatist Intermediation , pp.Turner, Ralph., Education, Economy and Society , pp.Van Houtte, Jean, and Etienne Langerwerf.The Venezuelan Legal Profession: Lawyers in an Inegalitarian Society ROGELIO PÉREZ PERDOMO INTRODUCTION: TERMINOLOGY AND HISTORICAL BACKGROUND I will begin with a brief history of Venezuela. Its increasing prosperity led the Spanish crown to convert it into an autonomous administrative entity at the end of the eighteenth century. At the beginning of the nineteenth century the long-term effects of the French Revolution and the Napoleonic wars accelerated the independence movement within Latin America, and Venezuela became an important center of the struggle, providing leaders, politicians, intellectuals, and soldiers for the liberation of several other colonies. International difficulties, in part produced by the intense war of independence, as well as the lack of exports that would have integrated it within the capitalist system, combined to make Venezuela of the nineteenth and early twentieth centuries a poor and turbulent country. The population was more than 80 percent rural and sparsely distributed: approximately one million inhabitants at the beginning of the nineteenth century and three million at the beginning of the twentieth. In the last fifty years, the country has been incorporated into the world economy ; it has stabilized its political system and established a liberal democracy; it has urbanized and industrialized very rapidly; and its per capita income now is the highest in all of South America. Serious problems do exist, however, most notably the very unequal distribution of income and the strong dependence on the centers of world capitalism for the ?export of the country s main product as well as for the import of foodstuffs and technology. Manuals of comparative law include Venezuela and the rest of Latin America among the civil law countries. In fact, the country completed codifying its law around 1870 , and legislation clearly dominates the production of legal rules today. The formal legal system thus can be considered entirely modem, but clearly there is considerable distance between the legislative models and the actual social practices. There have been university law graduates in Venezuela since the beginning of the eighteenth century. Law teaching started in 1720, and a law professor occupied one of the first chairs in the Universidad Central de Venezuela . During the colonial period the university granted the degrees of bachiller, licenciado, and doctor of civil law or canon law . In the 100 years before independence in 1821, 372 persons took law degrees, but the number of law graduates in practice was somewhat greater because several graduates immigrated from other parts of the Spanish empire. The Audiencia the highest court within the colony granted the degree of abogado after a period of apprenticeship and an examination. For various reasons, less than a third of the law graduates aspired to the degree of abogado, which was necessary to appear in the Audiencia but not before the alcaldes and the tenientes de justicia . Law graduates played an important role in the independence period. They had great influence in designing the institutions in the new Republic because they represented the criollo class and were experts in politics. After independence the study of canon law declined and law teaching was enriched with such subjects as political economy, international law, and principles of legislation. By the middle of the nineteenth century the only degree that qualified for the practice of law was the doctor of political science. This degree was a mere formality; instead of a real examination, all that was necessary was certification by an established lawyer. Because an abogado no longer was burdened with the responsibilities that had accompanied the degree during the colonial era , all graduates in law or political science also obtained the additional qualification.and 1930 only 1,800 degrees were awarded, or sixteen per year. The legal profession could be considered established: the majority of law graduates had a private practice or eventually became judges, registrars, or notaries. The year 1936 usually is specified as the beginning of contemporary Venezuela.During the 1950s the legal regime regulating professional qualification changed: the universities themselves granted the title of abogado, which admitted the graduate to practice. The degree of doctor and the recently created titles of magister and especialista are granted after postgraduate studies and are relevant mainly for law teaching. However, because of heightened competition in the job market for lawyers, graduates are seeking these additional credentials as entree to the official bureaucracy or to enhance their prestige in private practice. Thus, the word abogado designates all those who have earned the qualification as well as the much smaller category of titleholders who offer legal counseling, assistance, and representation to the public. Another third are judges and public officials within the legal system, and the last third occupy positions for which a law degree is not required. I shall use the word lawyer to designate law graduates in private practice, the word jurist for all law graduates, and the expression legal professionals for those law graduates who have a full-time job in the legal system for which a law degree is required . Historically, the relationship between formal legal qualifications, actual occupation, and sources of income has been complex. Even though there were people with the title of lawyer in the eighteenth and nineteenth centuries, legal occupations were not a stable source of income for many. Most jurists were letrados rather than private practitioners, and their principal occupation was politics, where they discharged very important duties, even though they served caudillos and dictators. In twentieth-century Venezuela, in contrast, a true legal profession has emerged, although the political system continues to provide work for some jurists. In the following pages I will analyze the current situation and will refer ?only occasionally to periods prior to 1935.WHO ARE THE LEGAL PROFESSIONALS? SELECTION Law study is located within the university, which constitutes the only route into legal practice. Most students enter the university at eighteen, after completing a minimum of eleven years of mandatory schooling, although many enter later. There are two types of university: public, where tuition is free; and private, supported by student fees and, to a lesser degree, private foundations and the government.7 percent of the entire university population. Each school is allowed to set a maximum number of students . Thus, there is selection at two levels: the capacity of the educational system as a whole and competition to enter schools that differ in prestige. In general terms, law schools are more selective than most other schools within the public universities, with the exception of computer science, architecture, engineering, and medicine.The fact that the public universities are free might suggest that socioeconomic background plays no role. However, differences in attitude toward university study and selection and ranking at earlier stages of the educational system already have had had an effect. Few university students are of peasant or working-class origin because very few people from this social background are able to afford a long period of study or aspire to a profession in which their lack of personal contacts within the relevant milieu would make success very uncertain. Background variables other than class probably do not affect entry. The student bodies of both the university as a whole and the law schools are fairly equally divided between the sexes. The Venezuelan population is mestiza , any prejudice is covert, and race has no importance in the selection of the students.After admission there is a further screening by the law schools them- ?selves.INTELLECTUAL FORMATION I will analyze briefly the content of the training the schools provide during the five or more years of the law course.The bulk of the assigned courses are designed for private lawyers involved in litigation . The response has been to increase the number of courses useful for private practice, instead of modifying the teaching methods to develop the skills of factual investigation, legal reasoning, and problem-solving. EDUCATION AFTER THE DEGREE: ON-THE-JOB TRAINING AND POSTGRADUATE WORK Students most frequently seek to overcome the poverty of their formal legal education through training within the occupation itself. Many graduates also pursue postgraduate studies, either in law schools or in other schools with interdisciplinary programs in administration, urban studies, ?planning, and similar fields. An increasing number seek a postgraduate degree abroad, usually in France, Italy, or the United States, generally in law but also in other disciplines that may be relevant to a bureaucratic career in a specialized area of public or private administration.PROFESSIONAL ORGANIZATIONS I will now analyze the support systems available to legal professionals: the twenty-one colegios de abogados , one in each state capital and one in Caracas, and the national institution that coordinates them, the Federaci n de Colegios de Abogados. The colegio de abogados was a colonial institution, created in 1788, which has some of the features of a medieval guild. Even though most lawyers belonged to the pro-independence party, the new Republic suppressed the colegios in 1822 as medieval corporations inconsistent with the prevailing ideology of liberalism. Any law graduate can register in a colegio, without further examination, and almost all do so, although only a small group are active and pay their annual fees. Every law graduate who performs any legal professional activity must join a colegio and register with Impreabogado, a form of social security for lawyers. Although they possess disciplinary authority and can suspend or expel a member, they almost never impose any sanctions or even reprimands. The colegio functions mostly as a meeting place for lower court judges and young or politically ambitious lawyers who seek to enhance their professional or political prestige or to establish friendships. They also are social clubs and generally have a bar service and a swimming pool and organize sporting and cultural activities. Some colegios offer free legal assistance to low-income people, but such activity is marginal for both the colegio and the public. Within it, judges, litigators, and women have organized their own special-interest groups ; none of these national groupings is very strong. NUMBER, DISTRIBUTION, AND DIFFERENTIATION OF THE PROFESSION The number of legal professionals in Venezuela has increased very rapidly: from 543 in 1926 to 15,000 in 1980 . Approximately 65 percent of legal professionals are based in Caracas, which has 25 percent of the population of the country and is the center of political and economic decision-making . Recently, however, there has been a redistribution toward the interior of the country, especially to the principal cities of the new areas of regional development. The division by function is more difficult to determine. Given that some courts have several judges and a number of court secretaries in the major cities are jurists, I estimate that approximately 1,500 professionals are employed in the judicial apparatus. Another 1,000 work in other public offices within the legal system as registrars, notaries, public defenders and prosecutors, and so on. There are approximately 600 law professors in the country, but they are not an important occupational category because less than 25 percent are full-time teachers. We lack data with respect to two very important occupational categories whose size is particularly difficult to estimate: lawyers and jurists who work as administrative officials within the government.Each jurist in Venezuela traditionally occupies several different positions in the course of a lifetime. In analyzing the careers of those who graduated from law school in 1936, I grouped the positions into five categories: private practice; public officials, such as a judge, registrar, or notary; important positions in the political system ; literary activities ; and law teaching.8 percent performed activities in three or more categories. This tradition, which reflects the relatively undifferentiated nature of Venezuelan society until the middle of the present century and the absence of progressive careers within each sector, is undergoing modification. ?Recent social and political changes have permitted functional specialization. Job security and the rewards of seniority encourage lawyers to remain within one occupational category , which is producing a functional segmentation of the profession, such as exists in European countries. WHAT DO LEGAL PROFESSIONALS DO? Legal, professionals have a monopoly over the following activities: 1.2.3.4. The Constitution of Venezuela requires that only law graduates may become members of the Supreme Court of Justice or serve as Contralor General, Fiscal General, and Procurador General. The Organic Law of Judicial Power also reserves to legal professionals the position of judge, except in localities where there are no such professionals. Other statutes and regulations require a law degree for the position of registrar, commercial registrar, notary, legal counsel, public defender and prosecutor and so forth. The colegios de abogados have added their own monopolistic practices to the laws reserving certain duties and positions to law graduates. Among the main ones are restrictions on advertising, the setting of minimum fees enforced by disciplinary action, and rules concerning the collection of fees. Legal professionals do not limit themselves to activities over which they enjoy a monopoly but perform many others as well, most notably mediation and conciliation, business planning, negotiating, and politics. SOCIAL AND PROFESSIONAL STRATIFICATION In the Introduction I noted that Venezuelan society is highly inegalitarian.requires characteristic services. The manner of obtaining clients, the lawyer client relationship, the structures of practice, and the type and quality of services vary with the type of professional.LAWYERS OF THE ELITE In this section I shall examine the organization and activities of lawyers who serve business and government large units that require varied and continuous legal services. By including government within the economic elite, I am referring to the central administration, agencies, and public enterprises, which control substantial economic resources and are in frequent contract with entrepreneurs and investors, often adopting many of the forms of activity characteristic of private enterprise. In-House Counsel Almost all large companies and all public administrative bodies have an office of house counsel directed by one or more professionals. This type of practice may be inconsistent with the image lawyers have of themselves as independent professionals who offer their services to many clients and thus preserve their independence of judgment because they are not economically dependent on any one client. The characteristic feature of the house counsel is that the professional really is an employee of a single client, which actually is an employer. The service is rendered within the offices of the client, which provides all of the operating expenses and pays a salary to the professionals. The professional participates in the most important decisions, usually attends the meetings of the Board of Directors, and also handles routine matters: preparation of documents and contracts, employee relations, and interaction with companies or administrative bodies. When litigation is unavoidable, the client usually will retain outside counsel, often through in-house counsel, although the latter may handle routine matters in court. The prestige and salary of the employed lawyer will depend on the employer s importance and the employee s ranking among other lawyers ?within the office.The Big Law Firm There are no law firms in Venezuela as big as those found in the United States. Their distinguishing feature is that the practice of law becomes a legal services company: the professional partners pool their work and share the earnings of the company in accordance with previously agreed rules. Among the employees are other lawyers, generally recent graduates who expect to become partners of that firm or to establish themselves independently after completing an apprenticeship. This organizational form appeared in Venezuela during the 1940s and is becoming more common among corporate lawyers. Currently there are many legal offices, containing five to ten lawyers, which have adopted this form with the intention of growing.Some of these firms include litigantes , discussed below.The Interdisciplinary Service Firm with a Legal Component This is a very recent development. In these firms jurists, economists, engineers, accountants, sociologists, and other professionals collaborate to offer planning and counseling services to a group of related companies. Because they do not appear in court, they refer litigation and other unusual or complex legal matters to a court lawyer or a law firm. ?The Prestigious Court Lawyers Although some lawyers known for their prowess as litigators have joined big law firms, most maintain individual offices or share expenses with other lawyers but not income or clients. Some of these court lawyers practice in the criminal area, which has acquired renewed prestige due to the greater frequency of cases of white-collar crime and of politically motivated prosecutions in a country where the judiciary is very independent of the executive and where the press enjoys considerable freedom.In summary, the most significant forms of economic activity, which are controlled by the ruling class, occupy the energies of the most qualified lawyers.Finally, I want to highlight the way in which elite lawyers obtain clients. The majority of lawyers appear in the telephone directory, and a small percentage publish advertisements in the yellow pages of the telephone directory or in the major newspapers. This is indicative of how clients are obtained in the majority of instances: through personal contacts within the shrinking Venezuelan elite, to which both the prestigious lawyers and their clients belong, or through contacts with American law firms. They earn substantially more than traditional lawyers: the median income of a senior partner in a big law firm is ten times that of any other lawyer. LOW-INCOME CLIENTS AND THEIR LAWYERS Before discussing this topic, I want to explain why I am not describing the lawyers used by clients of moderate means: individuals and small enterprises.languages.I indicated above that wealth and income is very unequally distributed in Venezuela. This has an obvious consequence: an important segment of the population cannot hope to purchase quality legal services from private providers. The usual rate for one hour of quality legal work is approximately 500 bolivars, which is equal to the average family income for five days. Much of the work of a lawyer is utilizing one s personal contacts, one s prestige, or the influence of one s client to achieve a favorable or at least a rapid decision. Low-income individuals not only cannot pay a lawyer but also lack the personal contacts necessary to persuade lawyers, judges, and administrators to pay attention to their cases. Private Lawyers Our research showed that in Caracas, and to a smaller extent in other large cities, a number of lawyers serve low-income clients. Lawyers active in politics, especially within the leftist parties, are involved in labor law, counseling and representing both unions and individual workers.Although the quality of the services varies from one institution to another, most lawyers serving low-income clients are dedicated to them.Another group of private lawyers is motivated by profit, seeking to handle a large number of cases or documents at moderate prices. The offices of these lawyers are characterized by numerous secretarial employees who actually interview the client, make decisions, and prepare documents.The manner of attracting the client is illegal, or at least a violation of professional ethics. free legal counseling and listing the types of case handled, such as marriage certificates and requests for exemption from military service. Some lawyers contract with lay intermediaries who haunt places frequented by people with specific legal needs: jails, certain notaries offices in downtown Caracas, and public offices that issue identity cards or other official documents. The intermediary looks for a confused or disoriented person and offers the services of the lawyer, telling the prospective client that the lawyer can resolve the problem. The intermediary then conducts the potential client to the lawyer s office and receives from the lawyer a percentage of the client s fee. Public Lawyers The Venezuelan government pays approximately 500 full-time legal professionals to render counseling, assistance, and representation to low-income clients. Although the duties of public lawyers are similar to those of private lawyers, the manner in which they relate to their clients differs significantly. Despite my reference to public lawyers, there is no such category within the Venezuelan legal system but only particular roles: public defenders, public prosecutors, procuradores de menores , procuradores de trabajadores , procuradores agrarios, , lawyers from the Housing Regulation Office, lawyers with the Children s Institute, and so on. The most notable characteristic of these services reflects the basis fact that public lawyers are paid by the government, not by the client, and receive a fixed remuneration regardless of the quality of the services rendered. Because the services are free, however, clients know that they cannot demand too much, even though the law requires the lawyer to be as diligent as possible and holds the lawyer responsible for negligence, if only on paper. Clients must queue up, often standing for extended periods, and the office personnel, including the receptionist and the secretaries, treat the clients with arrogance or condescension. The services rendered by public lawyers are shaped by the interests of the lawyer, not the needs of the client.stitute, is an example. However, we did not find any claims against the Institute made by the procuradores de trabajadores and very few made by other lawyers . This lack of claims is not testimony to the excellence of the welfare services, which generally are held in low esteem. Van Groningen evaluated the quality of the services performed by the public defenders and found them to be very poor. Among people accused of homicide, those represented received sentences averaging more than seventeen years, while upper-class defendants represented by private lawyers received an average sentence of 5.1 years. Recently, a coalition of university researchers and politicians has proposed a radical restructuring of the delivery of legal services to the poor, based on an empirical investigation of the deficiencies of the present system . We advocated greater involvement by universities, colegios de abogados, unions, municipalities, and other intermediaries, supported by public funds and subject to government evaluation. Law students and recent graduates would be required to render free legal assistance as a prerequisite to qualifying as a lawyer, and qualified lawyers would be encouraged to do so. Mediation centers, staffed by specially trained legal professionals, would be given jurisdiction over many of the matters that concern poor people and would have the power to compel the parties to attend without their lawyers, even though the centers could not render judgments. The proposal has elicited strong and widespread opposition. Public defenders and other public officials who provide legal assistance to the poor were deeply resentful of the highly critical evaluation of their work and anxious about losing their positions. Colegios de abogados and associations of trial lawyers within the colegios also feared that these proposals would deprive them of paying clients. Although there has been little public discussion, discreet lobbying by both of these groups and the absence of countervailing support by equally powerful proponents has led to legislative inaction. POLITICS AND THE LEGAL PROFESSION I will conclude with an analysis of the place of the legal profession within the Venezuelan political system.accepted distinction between professional and political activity. Legal professional activity, in the strictest sense, is political; its apparent neutrality and independence from the political system is a myth constructed by lawyers for their own purposes. Legal professionals are politically more active than other occupations because of their professional roles and the political activity of lawyers is important for understanding the meaning of their professional roles. Lawyers are viewed as independent of politics because their income is received from clients who choose lawyers on the basis of experience and professional prestige. However, those social sectors that cannot retain lawyers or can retain only the least prestigious will be at a disadvantage whether engaged in litigation or in actions designed to prevent conflict through mediation. In the Introduction I pointed out that Venezuelan jurists have a long tradition of political participation, dating back to the end of the eighteenth century. This is not peculiar to Venezuela: jurists were prominent in the medieval and Renaissance Church, in the constitution of the national states, and in the bourgeois revolutions of the seventeenth and eighteenth centuries. From 1936 to the present, five of the fourteen presidents of Venezuela were jurists and two were law students who abandoned their studies because of political persecution.4 percent and 36.7 percent of their Boards of Directors are jurists. In this regard we can speak of the law schools, especially those of the Universidad Central de Venezuela and, more recently, of the Universidad Cat 1ica, as centers of training and recruitment for the political elite. I will not speculate about the consequences for Venezuelan politics and government of the fact that so many leaders have had a legal background. I am concerned, rather, with the fact that the lawyers of the economic elite overlap with the political elite and that the two groups share common training and friendships. This is important for the study of the legal profession because the political contacts of legal professionals are an important factor in explaining the significance of law practice, especially in a country where the government wields such vast resources. High government officials who usually are lawyers or are closely advised by lawyers maintain very dose relationships with big-business lawyers. Consequently, lawyers are the main architects of a society that has been able to combine democratic political practices, the rule of law, and enormous social inequality. ?FIGURES block image Fig.1.block image Fig.2.TABLE 6.1.Year Population of the country Law graduates in the country Law graduates in Caracas Population of Caracas as percent of the country 1840 1,000 120 5 1. 3.6 1894 2,445 246 48.4 3.0 1926 3,027 543 N.A. 5.5 1961 7,524 4.256 68.7 17.8 1971 10,722 8.102 63.0 20.4 1978 12,800 14,000 67.6 23.7 Source: Pérez Perdomo . NOTES The present chapter is based on my two books ; for this reason, sources are not stated. ?tralor General is appointed by the President, subject to the approval of Congress, and is a member of the Cabinet. REFERENCES Acedo Machado, Clementina.Instituto de Investigaciones Educativas, Universidad Simon B livar.Pérez Perdomo, Rogelio. , ed.Van Groningen, Karin.7 Feminization of the Legal Profession: The Comparative Sociology of Women Lawyers CARRIE MENKEL-MEADOW INTRODUCTION: COMPARATIVE FRAMEWORKS One of the most dramatic changes in the legal profession in recent years has been the influx of women. In many countries women now constitute close to half of all law students, although it will be the turn of the century before this representation is fully mirrored among practitioners. This chapter explores the meaning of these changes for both the profession and women, using the description of common and civil law professions in the previous two volumes and various theoretical frameworks through which we can interpret these data. Because these developments are still relatively new and the theoretical terrain is shifting, I will offer some speculations about the complex relationships between legal professionalism and feminization. I begin by addressing some of the problematic themes and tensions. This chapter and the national reports define their subject matter as those with formal credentials who practice a legal occupation: independently or as employees in public and private settings , or as judges or law teachers . But even these boundaries could be expanded to encompass police and other law-enforcement personnel, court adjuncts such as American custody conciliators, and new forms of private practice such as mediation and perhaps they should be, especially if we wish to consider new entrants to the profession, such as women. Measuring the number of women should be easy enough, but the significance of gender in the professional context has become increasingly contested.more, those who emphasize equality models and gender similarity disagree with those who describe and value gender differences , and there is additional disagreement about the sources of difference . At the simplest level, we can consider the profession feminized simply because it contains more women. For those who attribute feminine qualities to women , the legal profession becomes feminized when traits such as empathy, relatedness, nurturance, and collectiveness are recognized, valued, and expressed in the performance of legal tasks and functions . For others, the profession becomes feminized not by stereotypic attribut ons of gender qualities but by a feminist influence on the profession, which includes changes in both the practice of law and substantive rules . In this sense, feminism is the political and intellectual program of analyzing law from the point of view of women and working toward legal changes that will improve their material and cultural conditions. Indeed, it has been argued that the determination of some women reformers to change oppressive laws compelled them to seek admission to the bar in order to counteract the self-interest of male lawyers an example is Caroline Norton s efforts to reform divorce and child custody in nineteenth-century England . Will women who enter the profession conform to a male model of what it means to be a legal professional, or will the profession innovate and adapt to previously excluded entrants, who may have different perspectives on how to practice law ? Will women make contributions to the profession from their position as previously excluded outsiders , or as dominated and oppressed beings who will reject the hierarchy and stratification of the profession, or as people with family responsibilities and interests who will insist on changes in the workplace ? Most studies of women in the legal profession accept adopt the traditional sociological indicia of achievement . By contrast, recent investigations of women in business have revealed that they are more successful and satisfied when working for enterprises they have created themselves than when employed by large hierarchical business organizations . Is gender the significant variable here, or should we simply be looking at the structure of the legal profession and noting where the gender data seem to duster without seeking to confirm our preconceptions about difference ? Women are overrepresented in those segments of the profession that traditionally have enjoyed the lowest status and income. A comparison with women in other male-dominated professions and female-dominated professions should illuminate what, if anything, is distinctive about women s participation in the legal order. A historical perspective also helps to reveal whether nineteenth-century themes are being replayed in a modem voice or new patterns are emerging.As women come to constitute half of the legal profession, will its status decline? Or might the status of lawyers rise as the entry of women transforms the profession into one that truly helps through warmer, less aggressive, more honest practices? Once participation in the profession exceeds token levels new questions emerge. Are those exceptional women who act like men allowed to penetrate the restricted boundaries, while the majority who act more like women are excluded? As gender barriers are eliminated or reduced, class barriers may be raised; most women entrants are from the middle class .To explore these questions in comparative perspective is to ask women, as well as lawyers, whether there will be adaptation and ?assimilation to the profession as currently constituted or innovation in and transformation of the practice of law. A BRIEF HISTORY OF WOMEN IN THE PROFESSIONS The story of women in the professions began quite recently. Entry to the so-called learned professions law, medicine, and the ministry was prohibited by law in many countries until well into the twentieth century. Women generally participated in activities that had not yet been professionalized or occupations that were losing economic and social status after an initial period of male dominance, such as teaching and office work . Women entering the professions in the nineteenth century generally assimilated to prevailing Western ideologies, such as the cult of domesticity and women s separate sphere , by arguing that women had special contributions to make in medicine , social work , teaching younger children , and nursing. This history suggests interesting parallels to contemporary debates between the special contributions of women and the similar values of male and female professionals, which should allow women to rise in the conventional hierarchies .A small but important group of nineteenth-century feminists in England and the United States argued that women could and should participate in the professions on equal terms with men . While some historians have seen women gaining entry to the professions by accepting the dominant cultural doctrines about their innately nurturant qualities , more recent interpretations suggest that there were several avenues for professional achievement. Penina Glazer and Miriam Slater have examined the role of American women professionals in academia, medicine, research science, and social work and have identified four different strategies: superperformance , separatism , subordination , and innovation . In the late nineteenth and early twentieth centuries, when women began to enter college and graduate school, some used the burgeoning social sciences to challenge the dominant ideology of sexual differentiation based on Darwinian, and then Freudian, variations on the theme of anatomy is destiny . Researchers showed that woman s intelligence was not significantly different from man s, even if her brain was smaller; menstruation did not limit performance; and, most important, intrasex variation was greater than intersex variation. Helen Thompson, a graduate student in psychology at the University of Chicago at the turn of the century, showed that, although women s average performance might differ from men s, the distribution of performances for the two sexes overlapped almost completely , a conclusion that has proved remarkably resilient over the years . Building on this work, early social scientists such as Jessie Taft and Margaret Mead argued that gender was socially constructed and gender divisions of labor were explained by social organization, not biological theories. Feminist social theorists argued about whether women s marginal status endowed them with altruistic attitudes that would purify humankind if women were granted the vote, allowed to practice their separate professions of social work and teaching, and able to accomplish their social reform agendas of protective labor legislation. Throughout the nineteenth century in both England and the United States most of the activists, but not all, stressed the special qualities of women. Nevertheless, the history of women in the professions is peppered with strong individual achievers who do not fit easily into either camp .Besides Shakespeare s Portia there are several historical examples of women who attempted to play legal roles long before they could contemplate formal admission to the profession. Margaret Brent was counsellor to the governor of Maryland in the early seventeenth century, while amassing her own real estate fortune and trying to obtain a seat in the Maryland Assembly.woman.On the other side of the Atlantic, Caroline Norton, a wealthy and talented writer, plunged into legal reform when she lost custody of her children following separation from an abusive husband who accused her of infidelity. When she learned that she had no legal existence under the doctrine of coverture, she became an avid student of the common law and began publishing pamphlets advocating reform of divorce and custody law and women s property rights. Her writings and activities influenced the 1857 reform of marriage and divorce law, although she did not live to see the passage of the Married Women s Property Act of 1882, which finally permitted married women to keep their own property. The doctrine of coverture, which barred married women from owning property in their own names and making contracts, prevented them from entering the legal profession, as well as others. Even when the impediment was removed with the passage of Married Women s Property Acts in many Eastern and Midwestem American states , however, courts drew on the divine ordinance to confine women to the home, ruling that their proper delicacy and timidity suited them to care for husbands and children but not to enter the rough-and-tumble of public life .Thus, in both the United States and Great Britain, the professions were deemed unsuitable for women because of their assumed biological and psychological differences from men, particularly their reproductive and nurturing capacities. Many men, including Virginia Woolf s uncle , actually opposed women s entry into the professions because they feared competition and family breakdown. It was the mark of upper-middle-class success that a woman should belong to a leisured world, in which she was relieved of most childrearing responsibilities by domestic servants. Ironically, when women finally did achieve admission to the bar, many worked in the environment least suited to women s delicacy and timidity the criminal justice system partly because men avoided such undesirable settings . In California, for example, the first woman lawyer, Clara Shortridge Foltz, campaigned to reform the criminal justice system, creating a socially progressive probation program and a public defender system that may have been the first in the nation . Women learned their law by trying to become lawyers.first American women lawyers read law with their husbands and fathers and encountered legal obstacles only when they sought to practice. In the common law countries they challenged these obstacles in court although male lawyers made the actual arguments, the women applicants often wrote them. But many American law schools continued to refuse to admit women, and Clara Shortridge Foltz had to sue the Hastings College of Law for her degree when the institution refused to recognize her attendance at classes . Women s experience in gaining entry to the legal profession was distinctive in that they had to work with men and present arguments concerning rights and equality that depended on applications of existing law. Although some women lawyers developed a reform culture emphasizing the need for protective labor legislation and women s special legal talents , women generally did not appeal to courts and legislatures on the basis of their special qualities, as strongly as they did in medicine and teaching . The struggle in which women engaged in order to gain admission left an important legacy; they consistently have been overrepresented in legal reform efforts. Many of the earliest women lawyers in both the United States and England were suffragists who devoted their lives to the battle for the vote. Others, such as Myra Bradwell and Clara Shortridge Foltz, actively sought to reform labor legislation and juvenile and family law . Although women frequently had to claim that they simply sought to practice like their husbands and fathers, dissatisfaction with the status quo had inspired many. A comparison of this brief narrative with that of women in the medical profession demonstrates that contemporary status hierarchies cannot explain historical resistance to women. Much of this advantage can be attributed to the distinctive ideology and culture that women invoked in demanding entrance to the medical profession.other . The ideology of women s separate sphere and moral superiority, which initially ousted them from health care, particularly midwifery, eventually led to a feminist-inspired preventative health reform movement emphasizing good sanitation. The earliest female physicians in the United States, most notably Elizabeth Blackwell , supplemented their American medical educations with study in France and England, where there was great interest in more scientific medical research. Indeed, after founding a women s hospital and medical school in New York in 1868, Elizabeth Blackwell returned to practice and teach in England . Blackwell and her contemporaries took a moralistic view of women in the medical profession, consistent with the cult of motherhood and domesticity. They virtually preached about health and sanitary conditions and believed women could make their greatest contributions caring for women and children . Although there were only two single-sex American law schools , which were absorbed by New England Law School and American University to become coeducational institutions before World War II , women founded several colleges of medicine, one of which remained single-sex until 1970 . Such battles were fought in terms of hospital mortality rates, and a cottage industry of medical historical scholarship continues to debate whether the lower incidence of puerperal fever in the women s hospitals was due to differences in drug dosages, length of stay, sanitary conditions, or the avoidance of forceps and other interventionist methods . But these schools soon established quotas, limiting the number of women to 5 percent of enrollment between 1925 and 1945 . Similar claims about women s special talents were urged in Weimar Germany as reasons for creating women s police units in Cologne, Frankfurt, and Hamburg in order to control venereal disease and prostitution. Josephine Erkens, their founder, sought to expand their functions beyond social work, arguing that women should be present at all stages of arrest ?and interrogation. As police women, they resembled men in their work habits; but as policewomen they stressed their social work training and accepted protection from male officers. This experiment in integrating social work techniques with policing was terminated in the early 1930s by a scandal involving two policewomen who committed suicide in Hamburg .The female-dominated professions, such as teaching, provide another framework for analyzing women s participation in the professional work-force. In the United States, for example, school teaching started as part-time work for men, when bad weather kept them from the fields. As the demand for education rose women were hired because they would accept lower salaries and such work was deemed appropriate training for future wives and mothers. There also is evidence that more women were drawn into the profession as it became centralized and bureaucratized, requiring a greater number of subordinates to support an administrative hierarchy that remained largely male . At some point during the midnineteenth century, teaching tipped from a male to a female profession, with decreases in salary and prestige. This was rationalized by the argument that women were better with smaller children, while men had to be paid more for disciplining the older, more difficult students. Clerical work went through a similar transformation in the early twentieth century, particularly with the advent of the typewriter , and some have argued that the new computer professions are beginning to show signs of gender segregation as the industry undergoes structural changes and tipping begins to occur . In female-dominated professions such as librarianship and social work, women may be found in only the subordinate jobs, while men continue to hold administrative and supervisory positions.As women come to represent half of all new lawyers in some countries, the historical and sociological ramifications of tipping become evident. Although it is highly unlikely that women will dominate law , occupational segregation within the profession ensures that some subfields or subprofessions may become more feminized than others. ?WOMEN S PARTICIPATION IN THE LEGAL PROFESSION Men may cook, or weave, or dress dolls or hunt hummingbirds, but if such activities are appropriate occupations of men, then the whole society, men and women alike, votes them as important. In a great number of human societies men s sureness of their sex role is tied up with their right, or ability, to practice some activity that women are not allowed to practice.The participation of women in the legal profession is remarkably uniform in the western industrialized nations . Since the 1970s women have entered in dramatic numbers, often accounting for all the growth in student enrollments and the profession.Underemployment among lawyers also has increased. Gender does not operate alone, however; occupational segregation is even greater when we add the variable of race and marital status . WOMEN IN LEGAL EDUCATION Women began entering law faculties in large numbers in the late 1960s and early 1970s . The reasons differ from country to country: in the United States the Vietnam war and its accompanying social reform and protest movements and the loss of draft deferments by male students, everywhere in Europe the expansion of universities, in Germany the decrease in teaching jobs . However, most nations felt the effects of the international women s movement , postwar prosperity, and increased state subsidization of higher education .women climbed rapidly in most countries, it has leveled off at 30 to 40 percent . In the United States women were barred from many law schools until well into the twentieth century; Washington and Lee in Virginia was the last to admit them, in 1972. Women gained entry most easily in state universities in the West and Midwest and encountered maximum difficulty in the elite Ivy League schools of the Eastern establishment . One of the greatest embarrassments to American legal education is the association of some of its leading figures with sex discrimination. Clarence Darrow thought that women were too kind to be good lawyers; Harlan Fiske Stone barred women from Columbia Law School for several years; Roscoe Pound and Erwin Griswold did the same at Harvard until Dean Griswold begrudgingly admitted them in 1950 in small numbers . Until the 1960s, women represented about 3 percent of American law students. By 1970 the percentage took its first leap forward to a little over 8 percent and then climbed steadily through the decade, stabilizing at about 40 percent in the mid-1980s . This rapid growth of women in legal education in the United States can be explained in part by the increasing number of available seats; throughout the 1960s and 1970s new law schools opened and others expanded enrollments. Since the mid-1980s national enrollments have decreased, some schools have closed , and legal educators have begun to worry about shrinking enrollments and declining student quality. As expansion slowed, the number of male applicants to American law schools has actually decreased , while female enrollment has increased at an average annual rate of 41.4 percent . Similar patterns are found in other countries.4 percent between 1967 and 1978, but the number of female graduates increased at 31.2 percent . In Canada the number of male students doubled between 1962 63 and 1980 81, while the number of female students increased twenty-four times. There seems to be a higher proportion of women lawyers in French than in English Canada, which would parallel developments in Europe .In Continental Europe, where law is an undergraduate degree, women represented 37 percent of German law students, 54 percent of French, 35 percent of Belgian, and 54 percent of Norwegian, as of 1983. In Brazil, where law represents a liberal education for the. Although women never were barred from law practice in New Zealand, they were only 9 percent of law students in 1981. Two years later they were 35 percent of law graduates at one university and were expected to be half of all lawyers with less than seven years of experience by 1990 . In India and Japan women continue to represent a small fraction of law students . In Japan this is attributed to the persistence of traditional beliefs that men should be breadwinners and women should perform domestic chores at home.5 percent of girls entered high school in 1984, compared to 92.8 percent of boys, only 12.6 percent of women attended four-year universities and colleges, compared to 36.4 percent of men. Furthermore, more than a third of postsecondary women students attended single-sex institutions, and the percentage of women in the older, prestigious coeducational universities remains very low. Increased sexual equality can be attributed to international pressures, most notably the United Nations Convention on the Elimination of All Forms of Discrimination of 1979, to which Japan was a signatory, and to Japan s desire to be seen as a progressive nation. The small women s liberation movement of the early 1970s is dormant if not dead, and women professionals are satirized in the media as wanting to be men and as ego-centrist elitists . These figures tell us only about women s entry into university law courses. Italy and Brazil, for example, display high attrition rates during law study because entry is easy, but students must incur high opportunity costs in delaying earning capacity for as long as seven years, unassisted by government support. University law study is even less closely related to law practice than it is in the common law countries , and practical legal education actually occurs in costly crammer courses, often established by private entities . If legal education generally has become more available to women, entry into the profession remains controlled at later stages by alternative mechanisms.6 percent of law graduates but only 20.9 percent of legal professionals.Many students in Europe and South America study law part-time while working at some other job. This extended period, lasting as long as seven to ten years, frequently is interrupted by other employment opportunities, financial pressures, and changes in family structure . The fact that female enrollment has stabilized at an almost uniform rate of 35 to 40 percent is difficult to explain. Is there some worldwide conspiracy to keep the profession predominately male, or have we collectively reached the peak of women s interest in the legal profession? The increase of women in legal education in many countries has occurred at the expense of the working class . This presents a dilemma for feminist political activists, who want to align women with other groups excluded on the basis of race and class. In the United States in recent years there has been a decrease in the number of ethnic minority students throughout higher education and particularly in legal education and admission to the bar. WOMEN IN THE LEGAL PROFESSION: OVERVIEW It will take another generation for the entry of women to have its full impact on the practicing legal professions of most countries. Although women constituted 34 percent of new entrants to the American profession in 1983, they still represented only 12 percent of lawyers. There are many anecdotes about women leaving large law firms before the partnership decision because they fear negative decisions, but there is little systematic research . Women still do not represent more than about 4 percent of partners in major law firms, though this is changing about one percent a year . It is said that women do not like the demands of the greedy institutions, which require up to 2,300 billable hours a year, and they find the work inconsistent with childbearing plans . If women graduate from law school at about age twenty-four and take about seven years to make partner, they must work hardest during the optimal years for bearing children . A recent study of UCLA law students demonstrates that women may be preferred to men for summer law firm clerkships but still are less likely to be hired permanently . This is consistent with national data demonstrating that women are now disproportionately likely to be large firm associates but remain underrepresented at the higher levels . Finally, many argue that it is simply too early to expect high rates of participation at the top levels of the profession, given career trajectories that require up to ten years before partnership. Thus, while rates of entry to legal education are quite high, rates of admission to the bar and actual participation in the profession are lower in most countries . In the United States, the number of women admitted to the bar climbed dramatically throughout the 1970s, although the number of men admitted peaked in 1973. In England and Wales 20 percent of those called to the Bar are women ; and in Scotland in 1982 they represented 36 percent of new advocates . In Norway, where 54 percent of law students now are women, a much smaller number actually enter the profession, partly because law study does not necessarily lead to practice but may serve as a general liberal arts education . The British case illustrates the discrimination that appears during apprenticeship. Although comparable numbers of men and women law students receive honors, women have greater difficulty in obtaining pupillages and tenancies and then finding clients . Although women have been legally entitled to practice since 1919, the Sex Discrimination Act of 1975 does not apply to the Bar because barristers are not employees. The Equal Opportunities Commission recommended to the 1979 Royal Commission on Legal Services that both branches of the profession register as training agencies under the Act in order to provide further opportunities for women, set aside seats on the governing bodies, and offer maternity leaves and other flexible working arrangements.The United States Supreme Court recently held that partnership status, although not itself employment, was a condition or term of employment under the civil rights laws, which a major law firm may have violated in denying partnership to a woman . Women in Great Britain report discrimination not only from male bar- ?risters but also from clerks and clients . In 1975, 17 percent of those called to the Bar were women but only 12 percent of those who commenced practice. Of those who began practice, 47 percent of the women had left within ten years of call compared to 13 percent of the men. Women barristers attributed these differences to the difficulty of obtaining a tenancy, whereas men said that women stopped working because they wanted to have children . A higher percentage of women law students than men express interest in becoming solicitors, a reflection of the greater discrimination in the banister s apprenticeship . Thus, while the enrollment of women, in meritocratic university education has expanded, the actual participation of women in law practice is increasing at a generally slower but widely varying pace because of resistance by the male-dominated profession. While some of the barriers express blatant or subtle discrimination, others are socially constructed impediments that are presented as external choices by women. As long as partnership decisions are timed to coincide with the years of childbearing, women may be unable to succeed in large numbers. Even when some American firms permit maternity leaves or allow part-time work, women who avail themselves of such innovations find they are considered less committed as lawyers . Both men and women law students still expect women to bear the principal burdens of childrearing, which are inconsistent with conventional work structures . Outside the Western industrialized world different patterns emerge. The number of women in the legal profession in Ghana is relatively high compared with many Western countries at that time. One analyst has attributed this to the strong and independent economic role of women in traditional Ghanaian culture, although women do not fare well in obtaining access to education if they must compete with brothers. In an ironic reversal of the patterns discussed above, women who graduate from law school may actually have an easier time obtaining initial jobs, precisely because they are expected to leave shortly after ?having children and thus do not represent as great a commitment for a law office. Women still spend more time with their families than do men and consequently are more likely to be found in the less demanding public sector jobs, with lower pay and prestige . In the Soviet Union women are well represented in the legal profession . In 1975 they were more than half of those employed in the legal system: about 40 percent of lawyers, over one-third of judges, and about one-tenth of those in leading positions in courts and ministries of justice. The proportion of women in the legal professions is higher in socialist countries partly because those administrative jobs are less prestigious than the commercial work and litigation performed by lawyers in capitalist nations. The proportion of women in the legal profession is smallest in Japan and India.7 percent of the Indian bar. Even upper-caste women in the Punjab encounter structural barriers and are expected to interrupt their careers to bear and raise children .Although relatively large numbers of women work in the judicial system in Morocco, they suffer humiliation at home and have failed to act collectively to challenge a legal regime in which polygamy, repudiation and unequal inheritance are daffy practice, for fear of the repercussions at home. Those who work at all are encouraged to remain in the social-cultural sectors of their professions the arts, education, medicine, and some segments of the civil service . OCCUPATIONAL SEGREGATION OF WOMEN IN THE LEGAL PROFESSION The most significant finding of this comparative study is that women everywhere are concentrated in the lowest echelons of the profession, although these differ from country to country. There appears to be a push-pull effect: women are pulled into work for which they are thought to possess special talent and pushed out of high-status work . Gender segmentation of the work force is amplified by the fact that some occupations, particularly those in the public sector in Europe, have done much more to accommodate the burdens of childbearing and childrearing. Public Versus Private Sector and Litigation Versus Transactional Lawyering In Germany, women prefer public sector jobs because the civil service, particularly the judiciary, permits part-time work and allows maternity leave for many years with guaranteed reentry to the same job.In Belgium, by contrast, where judges are less numerous and even more prestigious, women are less well represented.5 percent of the judiciary in 1982, and only 3.5 percent at the highest level, but 20 percent of the bar.4 percent of law teachers and 35.6 percent of advocates.5 percent of notaries a highly prestigious and remunerative office in Belgium but 80 percent in the Soviet Union, where the functions are more bureaucratic and ministerial. Women represented 35 percent of law students but 50 percent of law graduates seeking work, which suggests higher levels of unemployment. In contrast, French women lawyers are over-represented in suburban practices serving working-class populations and underrepresented in prestigious commercial Paris practices . In Norway women are underrepresented in litigation partly because the role is viewed in Norway as requiring aggressive defiance and contacts with trade, both of which women are thought to lack . Women in private practice handle two-thirds of all personal relations clients, while men handle three-fourths of all matters involving property . ?In Brazil women are 46 percent of all legal aid attorneys, who earn the lowest salaries, and 20 percent of public prosecutors.In the common law countries the patterns are strikingly uniform. Women are underrepresented at the highest levels of private practice; and although they are overrepresented in public sector jobs, they are concentrated at the lower levels. Women in the private sector are overrepresented in large firms and in solo or very small practices and underrepresented in medium-sized firms. This may reflect their perception that large firms are more bureaucratic, adhering to universalistic standards, and small firms offer dose personal relationships, whereas medium-sized firms permit the greatest scope for discrimination. This latter figure is changing yearly; a study of Los Angeles firms with over 100 lawyers revealed that 3 percent of partners were women in 1983 but 4 percent in 1984 . Still, given the rapid increase in the number of women entering the profession in the 1970s, these partnership rates seem quite low. A recent study of the Harvard Law School class of 1974 revealed that, although women were more likely than men to begin working at large elite law firms, ten years later 23 percent of those women were partners, compared to 51 percent of the men.In England few women are heads of chambers, Queen s Counsel, or judges. Women barristers are concentrated in the least favored specialties criminal law, domestic relations, and general civil practice and rarely found in the more remunerative fields of tax, commercial law, and chancery practice.Women are also overrepresented outside the professional category.Recent research confirms the relative stability of these patterns in the United States. A study of University of Michigan Law School graduates who entered the profession in the late 1970s demonstrates that five years ?after graduation 70 percent of men worked in private practice compared to 44 percent of women; 37 percent of women, compared to 21 percent of men, were in government service, legal aid, or offices of corporate counsel; 15 percent of women compared to 9 percent of men were in teaching; and 4 percent of women but no men described themselves as full-time parents . A study of law school graduates from seven Northeastern law schools revealed that women were twice as likely as men to be in government positions eleven years out of law school and much less likely to be employed in law firms of all sizes. Women were greatly over-represented in legal aid and law-related work and greatly underrepresented in large firms and non-legal business positions . Although the Chambers study is limited to a single elite American law school, it does suggest some reasons for these differences. More men than women recall beginning law school with an intent to enter private practice; after five years of private practice, more women than men decide to leave. Men and women explain that pressures of work and family tend to push women out of private practice in both large and small firm settings. The national data, by contrast, reveal that women are found in very small firms specializing in women s areas, like domestic relations work, where they may have more control over their work lives . Women s political values may explain some of the differences: women were more likely than men to describe themselves as liberals, and political orientation was the most powerful variable in explaining who chose government service and legal aid. Preliminary data from the classes of 1982-1986 indicate that the proportion of women entering private practice has increased, so that at least at one elite school gender differences in choice of work setting may be narrowing. Work and Life Cycle In a study analyzing aggregate 1980 U.S. found that women lawyers were more likely than men to be employees in bureaucratic settings, where they worked fewer hours and were paid less. One reason may be that more women attorneys than men were divorced with children and had no other source of support, either social or financial. ?A recent proposal by the Working Party on Women s Careers of the Law Society in London has suggested that the profession must take responsibility for women s childrearing responsibilities by providing reduced fees for practicing certificates, refresher courses for those returning to work, tax relief for childrearing expenses, institutionalization of part-time work for solictors, and maternity leave, pay, and security clauses in partnership agreements . Race Occupational segregation is even stronger when race is combined with gender. Sokoloff focuses on percent change, which draws attention to the small base from which black and other minority women began. Cynthia Epstein proposes a more qualitative argument that minority women have been able to take advantage of a double negative and that black women have done better as professionals, when compared to black men, than their white sisters have when compared to white men. She attributes this to the black woman s recognition that she may not be able to depend on male income and that, because she is black, she will not be considered a woman in the workplace . Much of this analysis has been discredited in recent years. Given the broad definitions of professional job classifications in American census categories, the numbers of black women may appear to be greatly improving when many of the professional job classifications actually are technical or assistance jobs or female-dominated professions . Black women are more likely to work in the public sector , the criminal justice system , and small firms in large cities, serving mainly black populations . This ghettoization within both specific jobs and geographic locations may parallel the American immigrant experience, particularly that of Catholics and Jews in large cities. But white male immigrant entry to the profession has been characterized by firms serving local communities , some with great success , or by eventual integration into mainstream law firms .The Judiciary Even when women attain prestigious jobs, their access routes may be different. A study of recruitment to the American judiciary reveals that women were more likely than men to have attended Ivy League law schools and to have excelled academically and less likely to have been active in local politics or to have achieved judicial office by election . Also, women were less likely to have come from private practice and more likely to come from academia, other judgeships, and other public offices . Women in Legislatures Recruitment to the legislature also appears to be different for women.S. House of Representatives and 66 percent of the men in the Senate are lawyers, only one woman representative is a lawyer.S.S. Although this should not detract from their own notable achievements, it does raise questions about access to power and the role of supportive spouses . Bar Associations Most common law countries also report low representation of women in the governance of bar associations, whether compulsory or voluntary. Similarly, women are virtually absent from the House of Delegates to the American Bar Association and are just beginning to occupy leadership positions in state and local bar associations . This, of course, is attributable to the fact that such positions are filled from the elite commercial sectors of the bar, where women remain underrepresented.both a source of female candidates for public office and a powerful lobbying agent . However, some feel that separate bar associations only exacerbate occupational segregation and distract women from becoming active in the male-dominated bar associations. Substantive Law Reform Many assert that women s bar associations are necessary for articulation of women s substantive law reform concerns. In Canada, for example, the Women s Law Association is a general membership organization, but the Women and Law group has a more explicitly feminist political agenda, focusing on the role of women in the profession and the impact of law on women . In a recent California Supreme Court case involving the legal treatment of a professional degree at the time of marital dissolution, two women lawyers groups differed over appropriate political strategy. The Women Lawyers Association of Los Angeles argued on behalf of the wife s interest in having the degree considered community property , while the California Women Lawyers Association identified with their professional class by seeking to have the degree treated as separate property . Similar conflicts faced American women lawyer groups in litigation over pregnancy disability leave. The issue was whether pregnancy was to be treated like any other disability, assimilating women to a male standard in a claim for equality , or whether to acknowledge actual physical differences requiring accommodation in the workplace in order to equalize opportunities .S. Supreme Court decided that states could go beyond federal formal equality in granting some additional protection for pregnant workers but were not required to do so . These differences in philosophy and approach can already be seen in the personal stories of women lawyers that demonstrate the variations in class and gender identifications . WOMEN LAWYERS INCOME The extent of occupational segregation is confirmed by the available data on women lawyers incomes.difficulty entering elite law firms, but five years after law school all women earned Can 2,946 less per year than men . More recent Canadian studies confirm that women earn less than men with comparable experience, in large part because they practice less remunerative subjects and work fewer hours . Yet, as earnings at the Canadian bar have decreased in recent years, women have suffered slightly less than men . In New Zealand, only 2 percent of women earn over NZ 50,000 , and 7 percent of women but no men earn under NZ 7,000 . In a poorer nation, Brazil only 5 percent of men but 15 percent of women earn less than three times the minimum wage, and 21 percent of men but only 5 percent of women earned twenty times the minimum wage .Several American studies demonstrate that women continue to earn considerably less than men in comparable jobs. A 1982 study of Minnesota lawyers revealed that the median income for women lawyers was 27,960, compared to 43,690 for men. Disparities persist within age cohorts: among those who graduated between 1975 and 1981, women earned 26,810, compared to 33,410 for men . The study of University of Michigan law graduates attributed income disparities within age cohorts to the fact that women worked disporportionately in lower-paying fields .S. Women are more likely to be working in public sector jobs that do not require as many billable hours; and women s work hours drop when children are born . Nevertheless, within all age cohorts women s mean hourly wage is less than men s and women s total income is considerably less than men s, the greatest differential occurring at the peak professional years of forty-five to fifty-five . Among those who had graduated from seven Northeastern law schools eleven years earlier, women earned less than men in every size of law firm and in nonlegal business positions.EXPLANATIONS: THEORIES OF OCCUPATIONAL SEGREGATION The composite picture that consistently emerges from these data despite difficulties of comparison, is that women legal professionals, while more ?numerous, continue to face occupational segregation, low status, and lower income. The segregation of the sexes in the workplace has been well documented across all types of work unskilled, skilled, and professional not only in the Western world but also in socialist and third world nations . Widely differing theories have been offered to explain these patterns, ranging from historical to psychosocial and economic, from patriarchal oppression to women s preferences . With respect to the legal workforce, some have argued that the very recent entry of women into the legal profession explains much occupational segregation, which will soon fade away . As a profession such as teaching or clerical work begins to change gender composition it often tips and becomes the work of the other sex; or subfields within a profession remain sharply segregated, even when the profession broadly defined seems to become integrated . Occupational segregation is measured by an index that represents the minimum proportion of persons of either sex who would have to change to an occupation in which their sex is underrepresented in order for the occupational distributions of the two groups to be identical . Several researchers using census data for more than ten occupational categories found that race segregation fell dramatically between 1940 and 1981 in the United States , while gender segregation has decreased much less . One researcher, using a limited number of occupational categories, computed national indices of occupational sex segregation, which ranged from a low of 27 for Japan to a high of 60 for Sweden, with the United States falling toward the high end with 47 . Men are more likely than women to work in sex segregated occupations: in 1980, 71 percent of all American men were employed in jobs that were at least 80 percent male, while only 48 percent of women were employed in jobs that were 80 percent female . A recent California study demonstrates that segregation may be strongest within firms; women and men shared no job titles in 201 of the 393 firms studied, and 30 firms employed no women at all . This is consistent with data showing that a small minority of law firms and chambers have hired virtually no women or made no women partners . ? Preferences It has been long claimed that occupational segregation is the product of individual preferences. Historically, this argument reflects the pride with which nineteenth-century women in the Western world claimed moral superiority in their separate sphere . More recently, some psychologists and sociologists have claimed that little girls assert preferences for female work and that these are consistent with cultural stereotypes about appropriate sex roles and innate sexual differences in aggressiveness, endurance, capacity for abstract thinking, and emotionalism.Socialization Other have argued that any preferences are the result of socialization, not innate characteristics. They have demonstrated how early in life sex role education begins and how quickly it serves to differentiate sexual expectations about performance .Human Capital Theory Human capital theory suggests that women do not invest in the extensive training required for professional careers when they expect to hold temporary and interrupted jobs . Although this explanation is contradicted by the large number of women who have invested in legal education, law firms still invoke it, particularly the assumptions about women s commitment to work, in making partnership decisions and justifying the lower salaries paid to women. Institutional Opportunity Structures Opportunity structures in particular jobs and industries obviously are affected by formal barriers, such as the legal prohibitions against practicing ?a trade or profession. Yet, such horizontal moves often are not accompanied by vertical moves within a profession, as demonstrated by the data on lawyers. Much significance has been attached to the role of women physicians in the Soviet Union, but men still dominate the supervisory positions , just as they dominate the higher levels of the legal profession in every country. Employers may engage in statistical discrimination by attributing to each individual the stereotypes about the group, for instance, that all women will leave work at some time so that it is unprofitable to train them. It has been suggested that some women lawyers are assigned less desirable and less lucrative clients because firms assume that they will not be available over the long term; for similar reasons they may be retained as permanent associates rather than promoted to partnership .The structure of the profession is changing radically, just when women have entered and are approaching more powerful positions . Although Chambers notes that women lawyers are more likely to hold supervisory positions in the public sector, the proportion of law firm partners who are women is not expanding as fast as the representation of women in those law firms . As large law firms open branch offices in all the major European and Pacific Rim cities the day of the multinational law firm has arrived. In a legal culture where billable hours increase almost 100 a year and competition intensifies for good lawyers and good clients, the demands of work increase sex segregation.Gender segregation may be strengthened by other barriers, such as exclusions from informal work networks , male language and shop talk, and sexual harassment . Some experimental research indicates that men prefer to hire men when selecting from among equally qualified male and female candidates . Exclusionary Patriarchy Psychological and political theories explain occupational segregation as expressing men s desire to escape from women at the workplace either to avoid powerful mothers or distracting sex objects or simply to bond with other males . A Marxist-feminist approach maintains that patriarchy advantages men economically by separating women as a class, paying them less, and preventing them from organizing, thereby fostering male-dominated hierarchical work structures . Thus, protective labor legislation, initially advocated by women, could be supported by union men as a means of excluding women from jobs by making them more expensive employees . An understanding of occupational segregation is complicated by different levels of analysis and paradigms . Indeed, in a recent American lawsuit challenging discriminatory employment practices in the retail industry , feminist labor historians appeared on both sides, one arguing historical female preferences for certain low-paying jobs while the other challenged the assumption that only men wanted aggressive high commission sales jobs, which underlay recruitment practices . IMPACT OF THE FEMINIZATION OF THE LEGAL PROFESSION ON THE PROFESSION,THE LAW, AND WOMEN For if you agree to these terms then you can join the professions and yet remain uncontaminated by them; you can rid them of their possessiveness, their jealousy, their pugnacity, their greed.The feminization of the legal profession is clearly well under way, if by that we mean increasing the number of women. The more interesting question, however, is whether women will have a different perspective to offer the practice of law or the development of substantive doctrine. If women demand equality with men on the basis that they are the same, then more women in the profession should have no greater significance than more blue-eyed lawyers. Although the male-dominated profession presently appears to be winning requiring women to adapt to its norms it is imperative to explore the possibilities of reversing that trend. The argument that women may transform the profession by entering it is dangerous and problematic because claims regarding difference can be distorted into assertions about inabilities or stereotypic devaluing of what is labeled female . First, there is evidence that some women are criticizing traditional lawyer roles, expressing dissatisfaction, and advancing ideas for alternatives in both practice and doctrine. Second, a growing body of feminist theory suggests that socially constructed differences explain gender correlates of behavior, attitude, and aspiration. My view, simply stated, is not that all women will innovate but that a larger, perhaps critical, mass of women will have a greater voice in changing the practice of law . To elaborate this argument I will briefly review feminist theory, report on gender differences already found in the legal profession, recount some of the contributions by women to other professions, and speculate about how women may transform the legal profession. FEMINIST THEORY One central dilemma of feminist theory is the role of gender differences in both explanatory models and reform projects. In contrast to nineteenth-century claims about women s separate sphere or special contribution, the second wave of feminism in the United States and Great Britain was based on opportunities to demonstrate sameness or equivalence to men, ?particularly in the legal sphere. In the United States this was manifested in a series of Supreme Court cases holding that women could not be excluded from certain male spheres, such as executing a will or serving on a jury .However, courts and legislatures also tolerated difference on the basis of either biology or the need to compensate for previous discrimination . As part of the national debate on the Equal Rights Amendment, feminists and antifeminist discussed the disadvantages that might befall women from being declared equal to men. As feminist historians, literary critics, social scientists, and natural scientists conducted equity research, they uncovered examples of great women who had been overlooked by sexist constructions of knowledge . The resurrection of great women, however, also caused feminist scholars to question whether conventional measures of achievement were based on male models , which privileged certain behaviors.Another group of feminist theorists have argued that the gender differences extolled or condemned are reifications produced by an epistemology based on dichotomies and hierarchies in which the male always wins . One feminist scholar has urged that analysis should focus not on comparisons of men and women lawyers but on discrete social practices involving topics of concern to women but containing the potential for an angle of inquiry that would disrupt conventional ideas which polarize women and men... Social and political analysis can clarify the role of gender without contributing to false polarization by creating and then studying reified categories . Polarized categories make gender seem symmetrical when it is actually asymmetrical and when socially constructed gender may be more continuous . French feminists have taken a more essentialist position, arguing from a biological and psychoanalytic viewpoint that our language, knowledge, and self-conceptions have been phal- ?locentric and must be corrected or decentered by women . While the principal manifestation of this work has been in the literary criticism of Julia Kristeva , Luce Irigaray , and Hélène Cixious , adaptations from French feminism and deconstructive criticism are finding their way into legal interpretation and epistemological critiques of science and social science . These feminist theorists argue that dualistic systems are man s creation and fail to take sufficient account of the relationship between scientist and subject. Difference theory also emphasizes variation within genders. In recent years strong voices of nonwhite and non-middle-class women have been raised to assert that women s stories are not uniform . This is of particular relevance to professional women, many of whom are enabled to seek and achieve traditional goals only through the assistance, and sometimes the exploitation, of nonwhite domestic and support workers . Thus, feminist theory poses crucial questions: PERCEPTIONS OF DIFFERENCES: THE DATA Satisfaction Studies In a recent survey conducted by the American Bar Association, three-quarters of the women lawyers questioned said that women s entry would have major consequences for the profession.attorneys agreed, but 45 percent said that it would have mostly favorable consequences if there were any at all . Both a subsequent ABA poll and a follow-up study by the American Bar Foundation also disclosed gender differences in career satisfaction. Nearly one-third of the women but only 16 percent of the men in the ABF study said they were somewhat dissatisfied with their work. The proportion of women who planned to change their jobs within the next few years was three times that of men .2 percent of the women but only 34.8 percent of the men mentioned soda service, whereas 77.5 percent of the men but only 52.6 percent of women indicated financial opportunity as the main reason for entering the legal profession.4 percent of women compared to 55.9 percent of men. Indeed, David Chambers s study of Michigan graduates revealed virtually no gender difference in satisfaction even though men and women earned different salaries in different jobs. The women in Chambers s study may be happier than other women lawyers because their position as graduates of an elite school increases their opportunities. Although there are fewer women partners, the women in government positions seem to rise fairly quickly to supervisory positions, which may enhance their job satisfaction. Further explication and study of satisfaction may be necessary. A common pattern in such studies is that women are more likely than men to mention the relationship of family life to work life in evaluating a job . A 1982 survey revealed that both men and women law students continued to expect women to perform primary childrearing duties and that women, but not men, attributed weight to an employer s policie.little regard to work demands, which may help to explain why they are more satisfied with current work structures. Women who continue to express traditional women s values of connection and caring for children will find the currently constructed workplace less satisfactory . Yet, women who have struggled to achieve some success within the legal profession may be reluctant to express dissatisfaction even though they are juggling many tasks and experiencing a great deal of stress. Chambers s study indicates that women lawyers who are married and have children are more satisfied than single and childless women, although they report difficulties in having it all and managing family and work life. Holmes has suggested that, in order to consider themselves happy, women may need different rewards from men: a belief in the moral value of their work; connectedness in the workplace; and continual feedback, evaluation, and affiliation. This is consistent with some work in social psychology, which has demonstrated that men are vertically ambitious, seeking promotion up the hierarchical ladder, whereas women are horizontally ambitious, seeking to explore a variety of interests simultaneously work, family, and friends . Thus, while studies have demonstrated gender differences in satisfaction, the focus on this conventional sociological or yuppified measure may conceal more than it reveals. We should also ask what people regard as meaningful work, what motivates them to continue working or quit, whether their expectations are fulfilled, and what are the relationships between attitudinal measures of success or satisfaction and objective measures of income, job location and type, work structures, family integration, and status as an employer or employee . Gender Difference and Work A large literature in social psychology and the sociology of work begins to answer these questions . In one of the most comprehensive studies of gender differences to date, Maccohy and Jacklin found only four: girls have greater verbal ability, while boys tend to have greater visual-spatial and mathematical abilities and higher levels of aggression. Jessie Bernard found that women scientists gave noncompetitive fascination with a problem as the main reason for their productivity, while men were more likely to mention ?competitive pressures to publish or perish. It is extremely difficult to disentangle causes: do men express distinctive motivations because of socialized expectations about financial responsibility? Early research suggests that women and men may prefer different areas of work, reflecting classic stereotypes. A burgeoning literature, including popular best sellers, has begun to document the differences in women s managerial styles, arguing that the influx of women into top business management could lead to more androgynous combinations of rational and instrumental leadership with caring, nurturing, and interpersonal skills . Attempts to synthesize the literature on women s work styles must bridge different levels of analysis. Social psychologists tend to study what Rosabeth Kanter has called temperament : personality and character factors that can be both individual and the product of gendered socialization. Reading such research through the lens of competing feminist visions can lead to the conclusion that either equalized socialization will eliminate or reduce such temperamental differences or aggregated differences will temper the workplace, producing alternative ways of doing business. Here competing feminist theories predict that either role definitions will become less rigid, changing both individuals and workplaces, or rigid roles in both the family and the workplace will frustrate change . The dilemma is the familiar one of trying to predict the sources and directions of social change. Women s bar associations have been extremely effective at raising so-called women s issues and placing them on the agendas of national and local bar associations, as well as individual law firms . Of equal interest, however, is a little studied source of change senior partners or upper-level managers who are fathers of female lawyers. Although socialized in a prefeminist mentality that demanded total commitment to greedy institutions and believed that wives belonged at home, the father of daughters may be a surprising source of innovation.facilitated immigrant entrance into elite law firms, this may be a powerful, if covert, stimulus for micro-level change, while preserving class privilege. Rosabeth Kanter found that organizational expectations constrain token personnel who differ from the white male norms in large enterprises, preventing them from expressing their own values or culture until they reach a critical mass of at least 20 percent of the workforce. In the law school environment, Spangler, Gordon, and Pipkin found that women law students performed better academically and participated more in class discussions when they constituted a larger proportion of the student population.If Halliday, Aschaffenberg, and Granfors are correct in concluding that women are clustered in work environments most resistant to change , then the interaction between individual innovation, occupational segregation, and gender differences becomes very complex. In the final section of this chapter I offer some speculative and frankly utopian thoughts about how developments in feminist theory, organizational and occupational sociology, and changes within the legal profession might combine to produce innovation rather than the continued segregation and assimilation of women. PORTIA IN A DIFFERENT VOICE? Some of the women who express dissatisfaction with the legal profession had different visions of what it would mean to practice law. One critic, for example, left litigation because she saw it as a male sport or war, directed toward the single goal of winning at all costs, rather than trying to solve the problem . In addition, there is some evidence that women are leaving the profession in greater numbers than men and disproportionately abandoning certain sectors, such as private firms . I argue below that women, particularly feminists, may have a different perspective toward the practice of law. Second, women historically have made a more distinctive contribution in other professions than in law, where they tended to use conventional equality arguments to gain entry. Third, the argument assumes that a critical mass of women, located in places where change is possible, will share these views. Finally, whatever fragmentary, anecdotal evidence may suggest that women lawyers have a distinctive contribution to make, there are also some contrary data. ? Affiliational Feminism Some recent feminist scholarship suggests women may ask different questions about the world because of their experiences of growing up in an affiliational relationship. Thus, Carol Gilligan , Nell Noddings , Nancy Chodorow , and others suggest that because women do not need to separate from their mothers in order to grow up, they see the world in terms of relationship and caring rather than independence and abstractions. Virginia Held and Annette Baler have proposed that in trying to understand what holds the world together we employ metaphors of the family and trust instead of the social contract and market. Susan Okin has argued that children may learn about justice within the family long before they acquire any conception of justice in the larger society. Regardless of whether women are mothers, therefore, they share the experience of being connected to others, now called relational or affiliational feminism. In her studies of how children make moral decisions, Carol Gilligan found that girls emphasize relationship and responsibility to others, whereas boys stress universalistic, abstract notions of justice and rules.Gilligan asked her subjects whether Heinz should steal a drug to help save his wife s life when he cannot pay what the druggist is asking. Amy, by contrast, asked whether the druggist and Heinz had tried to work something else out so that Heinz could have the drug and the pharmacist could be paid. This approach to legal problem-solving involving the parties directly and avoiding all-or-nothing results may suggest other ways to structure the legal system.Similarly, Gilligan s work suggests that women s ethical concerns might challenge an adversary system that demands total commitment to one s client. One of Gilligan s subjects, a lawyer, said that she would have preferred to give the court a document that opposing counsel had failed to use; this would have defeated her client s case but achieved the just result. Gilligan s work has been criticized on the grounds that her sample was ?too small and unrepresentative in terms of class and race, and her interpretations of the data have been challenged . Ironically, some have argued that minorities and oppressed classes share an ethic of care engendered by survival strategies , while others have asserted that class and race oppression serve to level gender differences, making male and female moralities more similar among the oppressed and both more different from mainstream white strategies . On the basis of her ongoing research with inner-city minority women, Gillian has tentatively asserted that they resemble men more than white women in their expression of individualism and abstract universal principles . Carol Gilligan s responses to these criticisms suggest that the twentieth-century parallel to nineteenth-century separate spheres arguments may be relevant to the issue of women in the legal profession in several ways . Even if all women do not subscribe to this ethic of care, some will seek a more mediational and contextually specific form of justice, and some men also will find this attractive. Gilligan, Baier, Held, Okin, and others who seek to develop previously unheard women s themes in political philosophy, moral psychology, and the sociology of work are arguing for serious consideration of other values. How should the organization and responsibilities of the family be related to public life, not just in the daily struggles to accommodate both but also in the way values in one domain affect those in the other ? The Adversary System If women are more likely to express care and concern for the other, then they might practice law differently.to resolve their own dispute rather than looking to her as a neutral third party.Even within the context of traditional adversary lawyering some women litigators have argued for a different style of trial advocacy, such as conversations with fact-finders rather than persuasive intimidation . Some women have sought to broaden the criteria of relevance, in order to permit what feminist theorists call contextualism and particularity rather than the application of abstract legal principles to a few facts . Work Organization and Oppositional Values Work structures are one of the most significant influences on the practice of law. Early studies of feminist law firms in the United States found them to be more egalitarian and to involve more participatory decision-making , characteristics thought to derive in part from the feminist methodology of the leaderless consciousness-raising group. The emphasis on experiential sources of knowledge also has led to efforts to demystify professionalism, as in women s self-help groups that encourage pro se representation in divorce. Such developments parallel the activities of nineteenth-century women physicians, who emphasized public health and preventive care and education over surgery, drugs, and more interventionist forms of medical care . Women have expressed and experienced a greater fluidity between work and family life, raising issues of childcare not only so that they can work but also to humanize the workplace . There is a danger of viewing men s work as job or career focused and women s work as an issue of family management . While most countries have passed social legislation that permits women to take temporary leaves of absence, many have not . Some hope that women s connection to both the family and work may alter the lifestyles of all legal professionals, offering a healthier balance between the greedy institutions of ?work and the rest of life. In a recent study of employed lawyers in the United States, Eve Spangler concluded that male and female attorneys generally did not talk differently about their work, but only women seemed concerned about accommodating career and family . Although some view this as a mere issue of working conditions or fringe benefits, which may readily be resolved as more employees are affected, others view it as an opport ity for women s concern with care and family to create an oppositional culture within the workplace . The feminist project refuses to see these as women s issues, insisting rather on involving both genders in production and reproduction . Because some women seek to infuse the workplace with familial and communitarian values, combining collaboration, self-disclosure, and social interaction with task-oriented demands , women professionals may transform lawyer-client relations, at least in those circumstances where empathy and altruism facilitate deeper understanding of client needs , thereby reducing client domination . Leadership In those rare circumstances where women have risen to leadership positions within the profession , the question remains whether they will lead and manage differently in more nurturing, communicative styles, building consensus rather than wielding power.Early studies of women judges have failed to uncover any real differences in judging, except that women were more likely than men to sentence female offenders to prison . Scholars have speculated that women may be more likely to take account of a wider variety of contextual factors in making a decision, tempering justice with mercy . Substantive Law Reform In many nations the entry of women into the profession coincided with law reform on issues affecting women, such as civil rights, discrimination, ?abortion, divorce, pregnancy benefits, and marital property . In Germany, for example, recent women entrants to the legal profession seem to be politically more conservative than their male counterparts . American data also reveal that male and female prelaw college students are preoccupied with individual success and financial security, resembling each other more than those of their sex who are attracted to other fields of study . However, the increasing number of women in the profession seems to have changed some of our juridical concepts: equality has been replaced by equity in some contexts and individualistic rights by more collective or group-based rights . The Dangers of Difference While exploring the creative possibilities of gender differences, we should not overlook the dangers of insisting on such differences. Do women avoid litigation because they fear conflict? Can women mobilize the stereotypes that devalue them to allow them to perform the functions from which they have been barred ? Does even the suggestion of gender differences reinforce occupational segregation by either encouraging overt discrimination or inadvertently lending credence to women s preferences ? Women in the corporate sector are allocated to particular jobs and service industries on the basis of stereotypes, while status and power lie elsewhere . Do Women Make a Difference in Other Professions? Many early women lawyers were active in the suffrage movement in the United States and England and in the American temperance movement . In both movements women claimed moral superiority, arguing that their values would make a difference in the polity and morality of their nations.movements, however, not in their professional roles. By the turn of the century some women lawyers had begun to champion legal issues of particular interest to women, such as domestic relations, occupational health and safety, and labor regulation , but even here we see divisions that have contemporary parallels. The movement to improve working conditions in the United States was pursued not just through union organization but also by women activists in the National Consumers League, who sought to regulate the hours and wages of women and children. Some of these women also opposed the Equal Rights Amendment when it first was advocated in the early twentieth century, fearing that it would bar the special legislation needed to protect women laborers .Medicine. Although women who entered other male-dominated professions also experienced ideological and professional divisions, the tradition of a distinctive women s voice may be stronger in professions where the entry of women originally was based on their claim of distinctive expertise, rooted in the separate spheres ideology. Several recent studies have described women physicians support for preventive health care, public health, and more nurturing physician-patient relations as a direct outgrowth of women s roles in the family . In the early twentieth century, when the American Medical Association defeated the Sheppard-Towner Bill and imposed formal quotas on the number of women attending medical school, their enrollment began to decline, and increasing numbers of women turned to predominantly female occupations social work, nursing, and teaching where they could continue their commitment to health education and preventive medicine . Although women represented only 3 percent of American dentists in 1982 , elsewhere they constitute a significant proportion , perhaps because dentistry is considered work with children, which requires nurturant qualities. Architecture.designed the Women s Building at the 1893 American exhibition in Chicago. It was praised as feminine for its delicacy and elegance and displayed economic, social, and artistic contributions of women throughout the world . In the early twentieth century women began to design schools, low-income housing, hospitals, and buildings for social service organizations and women s clubs all considered appropriate women s work but not highly remunerative. However, early women architects, unlike lawyers, established several all-women architectural firms and collaborated in several social reform projects. These material feminists designed kitchenless houses in which food, laundry, and other domestic tasks would be centralized while living units remained individual, thereby freeing women from domestic work so that they could participate in other parts of the feminist equality project. Contemporary feminist architects have criticized the large inhuman dimensions of much public space, urging that buildings and cities be redesigned to meet the needs of women, children, and other disempowered groups . Business Management . Many studies of business management conclude that although there is widespread occupational segregation, both vertical and horizontal , men and women are similar in management style and effectiveness , although some popular writers claim that women will manage differently if they ever get to the top . Science. Perhaps most resistent to claims that women may alter the structure and work of the professions is science, where methodological objectivity is widely thought to preclude much feminization . Yet, even here important theoretical work by feminist scientists and philosophers of science has asked whether methodological objectivity and the choice of questions asked might reflect distinctively male perspectives . For example, feminist scientists have challenged the dichotomous thinking that characterizes many scientific models and the primacy of the cell over the whole organism in biology. Women s Professions: Teaching, Nursing, Social Work, and Librarianship. Here, again, women s qualities of nurturing, care, empathy, and service are said to be particularly well suited to such people-centered professions. Indeed, one significant issue raised by women s entry into male-dominated professions is who will teach, nurse, and do social work as women leave in ?large numbers for better paying positions in law and business . Where will we find the women to teach nonsexist classes, correct sexist library cataloguing, and mediate the impersonal medical and social bureaucracies? Social Structure of the Professions Whether women will structure and practice law differently remains unanswerable. As a result of widespread occupational segregation, women still occupy lower positions in the power hierarchy and particular fields and jobs on the horizontal axis. But studies of women in large firms and in management suggest that, although they occupy entry-level positions, they have not made much progress vertically, even if we control for experience. To the extent that law and business are characterized by competitive cultures and large hierarchical organizations, it may be more difficult even for critical masses of women to alter the basic structures and cultural norms . In medicine, by contrast, where the cultural norm is to heal rather than win, there may be better opportunity for change. Yet, there, too, the delivery of care is increasingly bureaucratized, and women are more likely to be salaried employees than independent practitioners .If the special contribution of women reflects the fact that they are excluded and dominated, it may disappear when parity is achieved . If it has other origins and persists, then we might hope that the different contributions of women and men to the practice of law would be equally valued. If feminism s purpose is to advance humanism, then the feminization of the legal profession should help to redeem it from the flaws of domination , unnecessary and harmful contentiousness, and alienating segmentation and stratification in the workplace.estranged from their families, and perhaps exploiting another class of women to perform traditional female roles . Finally, does the nature of law itself tell us anything about the contributions women might make? Do legal ideals of equality shape women lawyers conceptions of their roles in ways that diverge from the service ideal prevalent in medicine and other professions?CONCLUSION: OF FEARS AND HOPES This chapter has viewed the entry of women into the legal profession from several perspectives. This occupational segregation is the result of complex forces that push or keep women out of particular jobs and locations and simultaneously pull them into others that are more compatible with family responsibilities, less attractive to men, or preferred by women because of their work structure, style, or substantive content. Indeed, the one factor that may be said to unify women as an analytic category is their common experience of exclusion and domination. There are several ways to understand the significance of women s entry into the profession. Liberal feminists and equality theorists will be content as long as women are allowed to compete with men on a level playing field. Whether women collectively will make particular contributions to the practice of law and the reform of substantive doctrine implicates complex issues of feminist theory. Simply because women share the experience of exclusion does not ensure that they will exhibit distinctive perspectives when they enter the profession, especially given variations in class, race, and ethnic origin.the profession. The competitive and adversarial culture of the profession and increasing centralization and bureaucratization might produce individual assimilation rather than structural change. To the extent that the nexus of work and family remain predominantly women s concerns, women may offer an oppositional critique of the profession. As our analysis of other professions demonstrates, a strong minority voice, and sometimes an explicitly separatist stance, can offer alternative models of legal practice and substantive doctrine. All women do not share a feminist political ideology, if a feminist ideology can even be identified among so many different visions.For me, gender remains a powerful analytic category not merely because it seems to explain significant behavior but because I agree with Virginia Woolf and Simone de Beauvoir that the position of women as other provides a starting point for critique, an outsider s view that makes us ask why things are this way. Whether a feminist critique of the legal profession will emerge and transform the profession or social structural obstacles will silence feminist concerns and force assimilation is a question that must be answered empirically and theoretically. I hope that the feminization of the profession will allow women to become lawyers without adopting the undesirable traits of possessiveness, jealousy, pugnacity and greed , which participation in the professions seems to engender. 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Williams, Wendy. .Winter, Bill.Wishik, Heather.Wolgast, Elizabeth.Y.: Comell University Press. Woolf, Virginia.Working Party on Women s Careers.8 Putting Law Back into the Sociology of Lawyers RICHARD L.Although the Working Group for Comparative Study of Legal Professions did not explicitly adopt a common theoretical framework when it began this project, the national reports in volumes 1 and 2 focus mostly on issues regarding the history and sociology of occupations . Consequently, we concentrated on such questions as the number of lawyers, their backgrounds and education, barriers to entry and limitations on practice, functional subdivisions and social stratification, career paths, structures of practice, and collective organization and governance. We still need to know more about these subjects, both in the twenty countries we have studied and even more in others, particularly in the socialist and third worlds. In the present volume, however, some of our authors have shifted their gaze from lawyers as an occupational category to what lawyers do, that is, to the sociology of law. They have considered the consequences for the legal profession of the fact that women have been entering in almost equal numbers with men for more than a decade, the possibility that lawyers may be members of a new class that will play a decisive role in the future direction of the economy and polity, the relationship between lawyers and the state , and what it means for lawyers to represent. In this concluding chapter we want to frame a number of questions about lawyers that remain unanswered often unasked in the hope of suggesting fruitful paths for further research, and we want to encourage the reorientation initiated by our contributors. Instead of tracing the ways in which lawyers resemble other professionals , we want to emphasize what makes them distinctive by putting law back ?into the sociology of lawyers. Rather, we will concentrate on three areas we believe should be central: what lawyers know; what they do; and how they relate to the society, polity, and economy. Although we discuss these topics separately, they obviously are closely interrelated: knowledge with activity; social structure, state formation, and economy with each other; and all three with what lawyers know and do. LAWYERS IN THE ECONOMY, SOCIETY, AND POLITY COMPARISONS ACROSS SOCIETIES Although some sociologists of law have explored the relationship between the emergence of legal specialists and social, economic, and political structures, usually from an evolutionary perspective , hardly anyone has extended this inquiry to compare the wide variety of ways in which precapitalist, capitalist, and socialist economies use law and lawyers. His analysis is far too rich and global to be summarized here; the most we can do is sketch some of the connections he suggests and indicate how they might be studied. In doing so, we want to stress the reflexive relationship between law and lawyers on one hand and other social, political, and economic institutions on the other hand: the former shape the latter at the same time they are shaped by them. It also is important to avoid conflating law and lawyers: some legal systems dispense with representatives altogether or use those without legal training, and lawyers perform tasks that bear little connection to law. Economies differ greatly in the use they make of law and lawyers. Those in which the productive units are relatively unspecialized and self-sufficient use little law: isolated bands of hunter-gatherers might be an extreme example . Stable trading relationships among a limited number of partners have much less call for law than do transitory exchanges between numerous anonymous traders . Law becomes even more important for mediating trade when the parties lack a common culture as has been happening recently with the expansion of international markets for raw materials, commodities, labor, and capital.a vital contribution here . In the latter, the few major actors can reach informal understandings with each other, while their economic power allows them to impose their will on smaller actors. Yet, as economic units grow larger, more internally differentiated, and more hierarchical, they may need more law for purposes of internal governance, especially if there is a separation of ownership and control. The sectoral composition of the economy also may be relevant, at least in defining which property relations will be governed by law, if not the quantity of law and lawyers. We can trace the shifting emphasis among land, mineral rights, patents for commodities and manufacturing processes, copyrights, rights to pollute or to be free from pollution, rights to control markets or to enter and compete freely, and contractual rights. It seems plausible that law becomes more significant to the extent that property rights are established by private agreements rather than fixed by tradition or dearly demarcated by physical boundaries. Similarly, the relationship between labor and capital may affect the role of law: control over labor sometimes is secured by political influence, brute force, or economic necessity; it is difficult to control capital except through legal forms. Nevertheless, it may be the mixed economies characteristic of most contemporary societies that have the greatest need for law: to regulate economic interaction among private actors, redistribute resources, and legitimate the economic activities of the state . If economies vary in their need for law and lawyers, how do lawyers shape those economies? Although this evokes bitter complaints and undoubtedly hurts individuals, all the evidence suggests that the cost of lawyers and litigation is an insignificant proportion of the total surplus. Even in the United States generally described as the most overlawyered and litigious country in the world legal services represent less than one percent of the gross national product a tenth of the proportion spent on medical care.most legal professions, it is empirically undemonstrated. Even if they foster the former, there are many ways of doing so, as Max Weber found in trying to resolve the England problem . At the same time, they allow economic upstarts to challenge entrenched interests, as the industrial, commercial, and financial bourgeoisie displaced the landed aristocrats. Also, they redistribute and disperse wealth horizontally when they engage in intraclass disputes over property and in competition for markets or corporate control. Polities also differ in the extent to which they make use of law and lawyers. Autocrats who govern by flat, often supported by military power, have much less need for law and lawyers, whom they deliberately suppress. Yet, even they need subordinates to control large populations and often rely on those with legal training, who, in turn, may sympathize when citizens couch their claims in legal form. Yet, the experiences of the Soviet Union, Cuba, and China all demonstrate that revolutionary fervor soon yields to routine governance, in which legality appears to play an increasing role. The size of the state, the heterogeneity of its population , and the pace of change all are relevant: very small, stable, homogeneous societies may be able to govern themselves through consensus and tradition. At the opposite extreme lie the federal state and the colonial regime, which seek to elicit obedience from people who owe no loyalty beyond what can be inspired by legality.rise of class opposition and the emergence of specialized police forces. We can generalize the relationship between state and economy, mentioned above: the more the state seeks to regulate civil society social relations and cultural beliefs as well as economic production and exchange the more need it will have of law. Even in large heterogeneous societies experiencing rapid change, law is not the only mechanism of governance. A high degree of consensus on means and ends may permit the state to engage directly in administration rather than having to rely on law; examples might include postrevolutionary societies and third world countries intent on rapid development . If there is no consensus on ends but enough agreement on how to reach them to avoid civil war, then politics may be the central arena elections to and lobbying within national and local legislatures and executives as well as extraparliamentary activities ; much of western Europe illustrates this category. If there is consensus about ends or an inability to discuss them because the culture does not permit it or the political institutions are paralyzed, then legal institutions and processes become central arenas and lawyers essential actors; the United States is the preeminent example. How do lawyers, in turn, shape polities? Does it make a difference whether civil servants or elected politicians are university graduates in literature, political theory, economics, or law?M.S.C.B., expatiates at length on how his career as an attorney qualified him to become First Lord of the Admiralty and concludes with the advice: Stick close to your desk and never go to sea And you all may be rulers of the Queen s Navee. Yet, legal training may imbue graduates with fidelity to legality. An Israeli Attorney General insisted on investigating murders by the Shin Bet, to the point where he was dismissed by the Prime Minister; a U.S. How much of this behavior can be attributed to the office which is supposed to embody legality and how much to the background or training of its occupant? There is some evidence that professional identity strengthens the independence of the judiciary and its willingness to defy or at least obstruct grossly illegal acts by the more political branches. South African judges have blocked the destruction of African rural and urban settlements and temporarily stayed the execution of death sentences; Argentine judges have pursued inquiries into military atrocities in the dirty war. Finally, individual private practitioners ?and bar associations sometimes challenge the state in the name of law . Social structural variables also may affect the role of law and lawyers. Here the principal issue is the size and composition of the social unit and the nature and strength of the nonlegal glue holding it together. The process called modernization generally is seen as a progressive dissolution of collectivities based on kinship, locality, language, ethnicity, gender, and age, within which most social interaction previously occurred. As those collectivities lost that authority and their members increasingly interacted with outsiders, state law became essential to mediate conflict and to govern. Yet we know that many of these traditional bonds never succumbed to the individualistic assault of capitalism, others have revived in recent years , and new ones have emerged . Although state law may not directly rule these dyads or collectivities, it shapes informal or unofficial legality within them . The role of law and lawyers in shaping social structure again is historically and culturally specific. Yet, it is equally true that law helped to create some of the most powerful collectivities in the modem world, notably the joint stock corporation and its subsequent elaborations. Finally, cultural variables obviously influence the use of law and lawyers . In some precapitalist societies, for instance, only certain economic exchanges are conceivable, entitlement to property is clearly defined by group membership, inheritance follows invariant patterns, injuries mandate fixed payments, and kinship rules determine who may marry, rights to children, and property prestations . Where appropriate behavior is prescribed by religion as interpreted by a priestly hierarchy, its members perform many of the roles we attribute to lawyers .mate. Even in advanced capitalist societies, the strong value placed on preserving social relationships may discourage resort to law Japan is the most frequently cited example, . Law is related in complex ways to beliefs about inequality and equality. Yet, law and lawyers also constitute a powerful legitimation for those inequalities that persist, which then are attributed to choice, effort, natural endowments, or the costliness of change. Nor do all contemporary lawyers attack ascribed inequalities in the name of universalistic laws: Basque notaries strictly maintain traditional inheritance patterns against French laws that would supersede them . It hardly needs argument today that law and lawyers create culture as well as being its creatures . Few would dispute the continued force of de Tocqueville s observation, more than a century and a half ago, that sooner or later every important issue in American life is transformed into a legal question although some would characterize the United States as extreme, if not aberrational.COMPARISONS WITHIN SOCIETIES Thus far we have focused on the larger social environment and tried to understand the varying role of law and lawyers.arrive at testable generalizations about their meaning. Whereas our comparisons previously ranged across the entire gamut of societies, here we will be concerned primarily with differences within advanced capitalism, even within a single society. Our analytic strategy is to construct pairs of events that are otherwise similar and consider why one member of the pair appears to be more thoroughly legalized than the other, that is, more subject to legal rules and thus more likely to involve lawyers. Because we draw on our experience as common lawyers, it will be essential to test our generalizations in other legal systems. In a number of very different contexts, the termination of a relationship is thoroughly legalized although its formation was not: death and birth, divorce and marriage, termination of parental rights and becoming a biological parent, contract breach and contract formation, firing and hiring of an employee, eviction of a tenant and the leasing of real property, dissolution and formation of a collectivity , entry into a country and deportation . The formation of a relationship is perceived as a consensual act; we typically explain and justify such action as an expression of economic, psychological, or political choice.Some of the exceptions to these empirical generalizations offer further support for the underlying theory. When one or both parties anticipate future conflict, formation of the relationship may also be legalized, as in complex business contracts. A country concerned about immigration, like the United States, may bureaucratize the process of obtaining a visa but summarily expel those who overstay their term, denying them most due process rights. Also, the formation of a relationship may be subject to legal control where we lack confidence that choice will produce a desirable result: adoption is a long-standing example, surrogate motherhood a more recent one. At the other end of the continuum, consensual termination of a relationship is not legalized: voluntarily quitting an apartment or leaving a country, performance or mutual recission of a contract, agreements dissolving partnerships, even divorce by consent .people , the evictions of most tenants, or the firing of most employees. Where large amounts of property are invested in a relationship at the outset, lawyers are more likely to be involved in its formation: births and marriages among the very wealthy are examples ; or one can compare leases of commercial and residential property, or the creation of large corporations and small partnerships. This has happened to divorce in California as a result of the incredible inflation of housing prices and increasing attention to the division of intangible property . Property even can create a legal relationship where none previously existed, as in the recognition of a cohabitant s right to share in the couple s property when the relationship is dissolved. We can see the importance of property in other contexts by contrasting situations where value is aggregated, capitalized, or congealed, with those where it is dispersed, fragmented, or individualized. Most individuals never control a large amount of value at any one time because their only source of value is their own labor power, which must be exerted continuously throughout a lifetime of work, producing daily increments, which are quickly consumed. American tort law offers compensation, a significant element of which is the capitalized value of the labor power the victim would have expended during the rest of a working life. Where this value is large, lawyers often represent both victim and alleged tortfeasor in the dispute over the amount of the loss and who should bear it. Again the exception proves the rule: where the victim is entitled to periodic payments rather than a lump sum, lawyer involvement is both less common and less energetic . The capitalization of value also explains the greater involvement of lawyers in transferring ownership of land than in forming month-to-month tenancies, or in drafting long-term employment contracts than in hiring hourly workers. The response to personal injuries is so highly legalized in the United States partly because victims can recover general damages for the transformation of their lives: pain, loss of certain pleasures, disfigurement, injury to relationships, or even lost years for those whose life expect- ?ancy is shortened. Even before the state began to provide poor defendants with defense counsel , many indigent accused found ways to buy representation when they were facing long prison sentences. For similar reasons, those confronting deportation will borrow or call on the resources of relatives in order to secure legal representation. Value can be aggregated not only over time but also across individuals, when one actor possesses the ability to injure multiple victims through a single act, as in pollution, mass disasters, or abuses of concentrated economic power. The state may subject such behavior to legal regulation , and class actions may involve lawyers in representing individuals, each of whose stake in the matter is relatively small . Property and the capitalization of value are intimately related to the legalization of behavior and the involvement of lawyers for two principal reasons. First, they increase the importance of the transaction to the participants to the point where it becomes worthwhile for them to invest in professional services. This, in brief, is why repeat players are strategically placed to take advantage of law, both prospectively and retrospectively . Second, the capitalization of value often allows the object of controversy itself to become the source of the lawyer s fee, as in the sale of the family home on divorce, damages for personal injury or breach of contract, controversies regarding the ownership of property , or settlement of an estate. This is a prerequisite for lawyer involvement because, as our two earlier volumes have shown, lawyers everywhere have succeeded in inflating the cost of their services by restricting supply. Thus, the correlation between the involvement of lawyers and the capitalization of value is grounded in the self-interest of lawyers, whereas the correlation with the relationship between the parties stresses the functions of lawyers for the larger environment. WHAT DO LAWYERS DO FOR THEIR CLIENTS? We are interested in discovering when behavior is legalized and lawyers involved because we believe it makes a difference.ment or diminish inequalities between adversaries, either because only one side is represented or because it is represented more effectively than the other. Second, lawyers often operate in settings that are not strictly adversarial; and even within contentious situations they perform a wide variety of functions. In each of these inquiries we are limiting ourselves to what lawyers do for clients : lawyers also pursue their own goals as well as engaging in altruistic, public interest behavior . LAWYERS AND THE BALANCE OF ADVANTAGE Not everything lawyers do affects the balance of advantage in society. Much of their work is purely facilitative, neither responding to nor anticipating conflict: transferring residential land , forming corporations, drafting wills, creating trusts, filing adoptions, performing truly uncontested divorces. Even in these situations, however, differential access to lawyers may amplify existing advantages: minimizing tax liability, permitting profitable investments, and avoiding the social stigma and uncertainties of unlegalized relationships. In many other situations, the presence and quality of legal representation may have more momentous consequences . The following is a preliminary list of adversarial pairs, which needs to be amplified and refined : prosecutor and criminal defendant; spouses contesting custody, visitation, property, or support following a divorce; claimants to the same property ; tortfeasor and victim; parties to a contract ; regulator and regulated ; state and benefits claimant; shareholders seeking corporate control; enterprises struggling ?over competitive advantage under antitrust laws; employer and employee ; polluter and polluted; discriminator and victim of discrimination. It would seem fruitful to identify more such situations and study them cross-culturally to determine whether one side is represented or both are and, if the latter, the quality of representation on the two sides. THE REPERTOIRE OF LAWYER FUNCTIONS To reduce the significance of lawyers to amplifying or reducing inequality is to obscure the very wide range of functions they perform for their clients. A second research strategy, therefore, would map those functions and seek to understand why lawyers perform more of them for some clients and in some legal systems than others. Within the large and growing literature on the legal profession, however, there are very few studies of what lawyers actually do . Furthermore, the sensitivity of the subject has encouraged researchers to study down concentrating on lawyers serving relatively low status clients: individuals undergoing divorce, legal aid recipients, personal injury victims, criminal accused, and dissatisfied consumers . Although there are numerous accounts of dramatic trials, particularly personal injuries, almost all are written by or about the victims and their lawyers, not about the corporate tortfeasors and theirs . Very few have studied what lawyers do for the medium-sized and large commercial enterprises that provide most of their business . The following enumeration inevitably is biased by the fact that we know more about lawyers representing individuals than about those serving companies and the state. ?1. Lawyers provide knowledge about law so that clients can plan future behavior, know what to expect as a result of past conduct, and seek to change the law. Sometimes lawyers educate clients about how much of the law they can break without being caught or seriously punished because the government or a private adversary lacks the knowledge, skills or resources to enforce the law .2. Some of the people lawyers know are regular adversaries , to whom lawyers can talk and with whom they can negotiate in ways that clients themselves cannot . There is considerable debate, however, as to whether lawyers themselves enjoy influence over governmental decisionmakers or merely are conduits through which clients exercise their own influence . 3. Of course, they present legal arguments; however, although this is the core of legal education and of the image lawyers present to the public, it is not the only way they represent their clients. A white-collar criminal defense attorney who knew that this client had given high-level government employees valuable stock options asserted to the investigating U.S. Attorney: We have examined books, daily accounts, the cash flow and find no indication whatsoever of expenditures that were not appropriate . Lawyers tell clients what they can and cannot say in view of the evidence that is likely to be available to an adversary or a decision-maker. Some clients cannot speak at all: women and slaves often were legally disabled; prisoners are physically disabled; collectivities may not have an agreed spokesperson; children may be too immature.compromised, in order to preserve a reputation for reasonableness . Lawyers also restrain clients from talking, when clients wish to be overly revealing but lawyers believe that stonewalling is a more effective strategy. Here the lawyer not only represents the client to adversaries and legal officials but also represents the latter to the client. Lawyers do this, despite the strong professional ideology of fidelity to the client, for several reasons: their need to retain the goodwill of legal officials or adversaries plea-bargaining being the best documented example , the desire for future business from an adversary, or personal or ideological sympathy with the adversary . For instance, Stewart Macaulay reports that Wisconsin lawyers often are impatient with consumer complaints because the lawyers appear to accept the American faith in the market and to blame the consumers for unwise purchases.4. Lawyers can engage in therapy, offering a sympathetic ear to clients who want to express anger, fear, anxiety, or sorrow. Lawyers also may refuse to perform this role, defining legal issues narrowly and suggesting that the client see a trained therapist. 5. Much of the work of lawyers consists merely in performing formulaic acts and utterances in order to produce legal results that are virtually automatic, as we mentioned in the previous section. Examples might include simple tax returns, insurance claims, guilty pleas, incorporation, name changes, adoptions, uncontested divorces, residential land transactions, and probate of small estates. A subset of these noncontentious activities demands greater creativity: eliciting a client s real wishes in order to embody them in a contract; and constructing the legal framework of a collectivity . 6. They collect stories from clients, adversaries, officials, and other witnesses; examine records; study material evidence; and put together a story ?about what happened or what the decisionmaker can be made to believe has happened . Sometimes lawyers have to work hard to elicit information from reluctant, suspicious, or confused clients; at other times they have to be just as diligent to remain ignorant of uncomfortable or inculpatory facts . They tell clients what kinds of evidence are necessary to substantiate their accounts and those of their adversaries, so that clients can collect and preserve the former and conveniently lose, forget, or bury the latter . Of course, lawyers are not the only ones who perform this role: insurance claims adjusters and shop stewards do so in personal injuries ; police, in criminal investigations; and social workers, in welfare cases. 7. American criminal lawyers, for instance, may demand a preliminary hearing not to learn the prosecution s case but to persuade an accused that he has no choice but to plead guilty . In divorce cases, for instance, lawyers translate raw client emotion, such as the desire for revenge, into entitlements to a property settlement and support . John Griffiths reports that Dutch lawyers discourage noncustodial parents from seeking weekly visitation because they believe that it produces too much conflict. Lawyers strategic decisions also are influenced by the amount in controversy and the client s own resources: they seek only as much justice as the client can afford. Lawyers simultaneously explain to clients why they must accept less than they want, attributing this to the rigidity of legal rules, the arbitrariness of judges, or the malevolence of adversaries . Jack Katz offers vivid accounts of the ways in which legal aid lawyers allow legal solutions to define client problems.language often is a process of simplification, just as a medical diagnosis invariably simplifies a patient s narrative of aches and pains. In both instances, the available legal or medical remedies come to shape the nature of the client s or patient s complaint driving some to seek political solutions or nonprofessional healers. 8. There is considerable controversy, although relatively little information, concerning the extent to which lawyers intensify or moderate legal conflict or encourage clients to comply with or evade the law. It is essential to trace variation along these two crucial dimensions in different legal systems, across subject matters, and as it is influenced by the characteristics of lawyers and clients and the relationships between them. For instance, Sarat and Felstiner offer persuasive evidence that divorce lawyers moderate the adversariness of their clients, which is fueled by powerful emotions. Numerous accounts of the criminal justice system depict defense lawyers persuading their clients to accept the state s offer and plead guilty . Yet, it seems likely that lawyers may also intensify the conflict out of ideological commitment, the desire to play for long-term objectives , anger at a particular adversary , eagerness for publicity, or simple greed . Similarly, lawyers may increase legal compliance: informing clients already inclined to be law-abiding about the content of or changes in the law; or urging compliance on reluctant clients because lawyers have an ideological commitment to the particular law or to obedience in general or an interest in preserving their professional reputations. However, much of what lawyers do is to show clients how to sail as close to the wind as possible, taking every advantage the law offers and offering nothing in return unless compelled.9. Most discussion of this choice has focused on those whose opposition to established power makes them appear more conspicuously political : lawyers in legal aid offices or public interest law firms or those involved in political trials . However, it is important to recognize that private practitioners serving business clients actually have more leeway and greater resources in designing legal strategies.coordinate the activities of discrete parties: members of a trade association or defendants in a white-collar criminal prosecution . They can play for rules, fight cases that are economically unprofitable in order to discourage other claims, delay in order to force a settlement, and so forth. When a jury returned the first verdict for a plaintiff in June 1988, a lawyer for the defendant Liggett Group responded: The bottom line is to collect a 400,000 claim they spent more than 2 million. The lawyer for Phillip Morris, which controls 37 percent of the tobacco market, added: The plaintiff bar is not likely to regard this verdict as encouraging because they got only 10 to 15 percent of their costs in prosecuting their suit . This list contains both overlaps and omissions and lacks a clear unified theoretical framework. Because it is written by common lawyers and informed by a literature that is predominantly American, it also is culturally biased. Given the paucity of research on what lawyers actually do for their clients, however, it may stimulate others to pursue these issues and offer a starting point for doing so. HOW DOES THE LAWYER-CLIENT RELATIONSHIP SHAPE LAWYER BEHAVIOR? What lawyers do for clients is influenced by the expectations that each group has about the other. Lawyers agonize endlessly about how they ought to behave: in their rules of professional conduct, in self-congratulatory and self-flagellating ceremonial speeches, and when deploring their poor public image and proposing ways to improve it. American legal scholars never tire of discussing how to balance the loyalties lawyers owe their clients against their countervailing obligations to the legal system and the larger society . Clients appear to be most concerned that lawyers keep them informed, explain the situation thoroughly, and listen attentively to their questions. They also want loyalty but not necessarily the adversarial loyalty of the tactician who seizes every advantage and never makes a concession; rather, they want the therapeutic loyalty of the ally ?who unquestioningly accepts the client s sense of injury and injustice. Moreover, we know how frequently clients make formal complaints to professional disciplinary bodies and by suing for lawyer malpractice and the content of those grievances. Lawyers self-exhortations in ethical codes, bar association journals, and annual conventions presumably are intended primarily for public consumption, or at least as a means of collective self-deception or reassurance. This is a function of: the relative wealth, status, and education of lawyers and clients; the duration of the relationship, especially when compared to the lawyer s relationships with adversaries, opposing counsel, and legal officials; the amount of business the client brings the lawyer, especially when compared to other clients of the lawyer and the firm; how easily the client could engage in self-representation or find another lawyer; whether the lawyer is an employee or independent practitioner; whether the client has proactively initiated contact with the legal system or is responding to the actions of another; and perhaps whether the use of law is facilitative or contentious. Where these variables give lawyers power over clients, however, it makes more sense to consider lawyers expectations about clients than either clients expectations about lawyers or lawyers public pronouncements. On the basis of the very little we know, it seems likely that the former are virtually the mirror image of the latter two. Although lawyers expectations are not expressed in rules of client behavior or explicit lawyer grievances about clients, there are other sources of information: lawyer shoptalk and the ways in which lawyers consciously use their power to structure the relationship. Lawyers want to control the construction of what happened for consumption by other audiences , insisting that clients provide them with full accounts and complete records but retaining the skeptic s privilege of disbelief.many lawyers send clients copies of ongoing correspondence and legal documents, their goal is less to keep clients informed than to protect themselves against recriminations and possible malpractice liability. Lawyers want respect for themselves, if not for the legal system. Sarat and Felstiner describe lawyers seeking to enhance their own skills in the eyes of their clients by insisting on the arbitrariness and irrationality of most legal decisions, the unscrupulousness of opposing counsel, and the incompetence of judges. It is not being unduly cynical to interpret significant elements of lawyer behavior in this light: private criminal defense lawyers rely on the cooperation of judges and prosecutors to make a routine plea bargain appear to be a hard-won victory deserving a high fee; plaintiffs personal injury lawyers may falsely report a low offer in order to return to the client with the good news that aggresive negotiation has persuaded the tortfeasor to raise it to an acceptable level the real amount originally offered . In the course of a commercial lawsuit, one partner said to another: Always give the client a bill when you ve done something well for them . LAWYERS AND FUNCTIONAL ALTERNATIVES In considering whether lawyers tip the balance in adversarial relationships, what they actually do for clients, and how they and their clients perceive and structure the relationship, we have tacitly assumed that lawyers are acting for clients. However, others may be doing so: People with legal training who have not qualified to appear in court , people with other forms of expertise , and people with no special competence .We can imagine various reasons why the identity of the representative might make a difference: technical knowledge, participation in networks, socialization in values, membership in a professional association, subordination to ethical rules and disciplinary procedures, the independence allegedly protected by fee-for-service arrangements, the structure of law ?firms, social or cultural background, and so on. Rather than taking a structural category as a constant and examining all the functions its members perform, we could hold the function constant and compare the way it is performed by various actors. In doing so, it is important not to give conceptual priority to lawyers: they are as much functional alternatives to other roles as lay competitors are functional alternatives invading the lawyers market. Some of the pairs could be found within a single legal system, but cross-national comparison would greatly increase the power of the analysis.1. This is particularly true in Europe and Latin America, where law traditionally has been one of the most popular undergraduate degrees but few law graduates complete the additional professional studies, apprenticeship, and examination necessary to practice privately or enter the magistracy. It also is true in Japan, where many undergraduates study law but few take or pass the rigorous examination for the Institute of Legal Training and Research, which alone qualifies for private practice and the magistracy. In the United States, by contrast, most law graduates take and pass the bar examination and enter practice; only a few of the less than 10 percent who join offices of house counsel are likely to rise to upper management. This would be particularly challenging in light of the common allegation that American business, whose managers are less likely to be legally trained, is more legalistic. The comparison is very timely because those with legal training increasingly are being challenged in Europe and Latin America as well as the United States by technocrats trained in economics and business who, unlike many lawyers, are both numerate and computer literate. 2. Once again, law graduates are prominently represented in Europe, Latin America, and Japan but considerably less common in the United States, whose civil service offers much lower material rewards and prestige . Private practitioners on leave of absence from large firms often hold cabinet posts in the United States; this seems quite uncommon elsewhere. 3. The United States is the preeminent example; elsewhere the proportion of lawyers in the executive and legislative branches appears to have shrunk in recent years.unable to find significant differences between the behavior of those with and without legal training or practice experience. Thus, legal qualifications may be more relevant to questions of social mobility and recruitment to political careers than to those of political style. 4.First, the judiciary is a lifetime career in civil law countries, but in common law countries it generally follows a successful career in private practice . We could compare judges in terms of their previous legal experience, although it would be hard to hold other variables constant. Second, laypersons often perform roles similar to those of the lower levels of the judiciary, either as formally recognized lay magistrates or as functional equivalents .5.a. In England one could compare solicitors , estate agents, chartered surveyors, building societies , and the new category of licensed conveyancer. In the United States, lawyers retain a monopoly in some states but have lost it to real estate and escrow agents in others. The comparison might even be extended to anthropological accounts of preliterate societies in which elders preserve an oral history of land transactions, frequently celebrated by elaborate communal ritual. The transmission of property at death is another area where a multiplicity of private individuals and public employees play varied roles in different societies.b. Comparisons between salaried legal aid lawyers and private practitioners and, among the latter, between those paid by state funds and those paid by ?their clients are feasible, however.c. In countries with highly developed compensation systems, such as New Zealand, civil servants and insurance company employees are the central actors. Even where private law continues to apply, large insurance companies may be able to mobilize data processing techniques to substitute clerks for fully qualified lawyers . d. A last example a frequent battlefield between professions is tax advice, where lawyers compete not only with accountants but also with the relatively unskilled employees of national tax advice services.6. A third strategy would limit comparison to those with the same formal legal credentials, focusing on contrasts within the group, according to four basic sets of variables: a. It has been suggested that women lawyers behave differently from men lawyers for a variety of reasons, including childhood socialization, continued disadvantage within the profession, divergent ambitions, and disproportionate housekeeping and childrearing obligations. Lawyers from minority ethnic, religious, or racial groups or working-class families may pursue different legal careers and display greater sensitivity to clients from similar backgrounds.b. We could explore the effects of formal education by comparing the of English or Australian lawyers without a law degree to those with one, solicitors without any university degree to those with one, and graduates of law schools at different levels of the status hierarchy .sions, oral presentation versus writing, classroom versus clinic, doctrinal exegesis versus contextualization and social science and of different kinds and lengths of apprenticeship. We could study the effects of experience: between English barristers and solicitors , or among American lawyers, who often move laterally across the roles of private practice , corporate counsel, civil servant, prosecutor, legal aid lawyer, academic, and judge during a single career. c. Such an assumption underlies the divided profession in England, limitations on rights of audience in civil law countries, and concern about the size and bureaucratization of productive units in the United States. These beliefs should be tested empirically by comparing the behavior of English barristers and solicitors, employed lawyers and those in private practice, lawyers employed by government and by private enterprise, lawyers paid by clients and by third parties , private practitioners in firms of various sizes and structures, lawyers in law firms and in multiservice firms , salaried lawyers in firms and profit-sharing partners, and similar pairs. It also would be interesting to know whether lawyers who represent only one category of adversary behave differently from those who represent both, comparing barristers who shift between criminal prosecution and defense briefs, for instance, with those who specialize in one side. d. Many observers have argued that lawyer behavior is influenced by notions of legality, rights, conflict, authority, and justice that are widely shared within a given culture but significantly different between cultures. We might be able to study this by looking at the ways in which lawyers in different cultures defined and responded to similar problems, such as injuries , government regulation, multinational business transactions, and so on. We do not mean to minimize the difficulty of making these comparisons: legal systems differ in many ways other than their personnel, and within a single legal system long-standing battles over turf have curtailed the number of markets in which lawyers and others perform similar functions.WHAT DO LAWYERS KNOW? Having discussed what lawyers do for their clients and whether it makes any difference that lawyers perform these tasks, we can turn to lawyers knowledge. Knowledge, or expertise, is treated by sociologists as a principal warrant of professional authority; however, its importance is not limited to academic observers. In social life a central reason for seeking help from members of one discipline rather than another is what they know. Qualifications and training, as Freidson shows, are also what allow occupations to claim monopolies over certain activities or titles, even though we may be skeptical as to whether such credentials deliver the expertise they promise. Furthermore, expertise is part of the self-image of many professions; this is particularly true of lawyers, who have seen themselves as a learned profession . The previous section shows that any plausible description of what lawyers do must refer to their knowledge of law, of influential people, and of technical procedures. Finally, Bourdieu suggests that the social space of the legal system what he calls judicial space is established by the division between those who do and do not have certain competences: the technical mastery of a sophisticated body of knowledge that often runs contrary to the simple counsels of common sense. These varying arguments show that we should be cautious about how we describe lawyers knowledge. However, this approach may make unwarranted assumptions, which we can best illustrate by contrasting two polar views of the world in which lawyers act. According to one view, knowledge is about objects , and professionals simply possess that knowledge .From the opposite perspective, everything is process. But what lawyers know is a set of skills in using statutes and decisions to produce desired results, or how to devise mechanisms appropriate for given ends.the profession, which predate any client contact; rather, particular professionals develop them in the service of, and in order to attract, particular clients . Skills are constructed in response to competition among members of a single profession and also between professions, as they assert that they can and should deal with certain kinds of situations. When lawyers advocate the values of legality, they simultaneously are insisting on their own involvement in certain kinds of problems and this, indeed, may be one of their purposes, if often unconscious . Even if we cannot uncritically accept professionals own definitions of knowledge and problems, however, it does not follow that they know nothing or that no one benefits from their help . It is not easy to disentangle expertise from the moral claims of professionalism: concern for the public interest or the client, altruism or disinterest. These warrants are dearly distinct as ideal types, although professions often present moral issues as though they permitted purely technical solutions . However, professional knowledge ranges from uncontrovertible expertise through matters about which professionals have more practical experience than laypersons to problems that are connected with professional work only indirectly, if at all.Both the actions of individual professionals and the pronouncements of professional associations raise questions about the nature and source of their authority. When individual practitioners make decisions guided by experience , it often is difficult to distinguish knowledge and judgment from a willingness to assert or accept moral responsibility for the decision. These are the situations in which professionals, uncertain about both diagnosis and prescription, must exercise discretion: the decision as to whether to have an accused client testify, or the informed, firsthand guess that the case is a possible, even if a statistically improbable, exception, or individual situational judgment . Rueschemeyer s analysis offers a valuable starting point. Because it concerns areas of social life about which there is moral disagreement, often severe, it is seen as representing particular interests rather than the public good. Medical knowledge commands greater authority in part because medical practice rests on a body of scientific knowledge and in part because health is a universally accepted value about whose content there is substantial ?agreement. To the extent that legal knowledge consists of skills such as negotiation or factual analysis, the gap in expertise between lawyers and clients may be quite small, and clients may come to see lawyers as unnecessary and even counterproductive . Spangler points out that legal knowledge cannot be standardized because it is cultural ; this indeterminacy may increase the professional s freedom from external control whether exercised by an employer or a client. Halliday has analyzed the authority of professions in terms of the epistemological bases of their knowledge and the institutional loci of their collective activity. Although he distinguishes between scientific and normative bases, he notes that they represent the ends of a continuum and tend to merge in ordinary practice. Lawyers point to the law finding of judges and the law making of legislatures, which Halliday characterizes as a normative activity. The more normative the epistemological core of professional knowledge, the more readily the profession will be able to exercise moral authority in the name of expertise .We do not deny that some lawyers and legal professions enjoy moral authority, even though it is difficult to exercise in modem, pluralistic, nondeferential societies. Consider a counter-hypothesis: because the legal profession operates in such an obviously normative domain, it will have to restrain its claims to moral authority to avoid appearing absurdly overweening. Just as the legal profession may limit its activities in order to preserve its autonomy, so it may acknowledge a more modest role for legal knowledge and judgment in order to protect itself from attack within those boundaries. This may help to explain the plausible hypothesis that practicing lawyers are positivists about the law and generally deny that they are involved in a normative activity. They may wish to claim technical expertise but will be reluctant to make broader normative claims, although they may have difficulty distinguishing between positions they advocate on behalf of clients and their personal views about what the law is or ought to be. Academic jurisprudence long has emphasized the leeway within adjudication for moral or political judgments, and some observers even have maintained that moral judgment is an integral part of adjudication.posits. However, the nature of lawyers authority is more likely to be structured by the interaction between their own understanding of its basis and that of those who must acknowledge the authority. Although these understandings will vary between and within societies, we would expect lawyers and clients to treat law in most fields as relatively certain, adaptable only within narrow limits, and not subject to lawyer manipulation. In some countries judges may believe they have some leeway in applying the law, but practitioners can do no more than seek change within boundaries that vary according to prevailing social attitudes and pressures and are influenced by the client s resources and time-horizon. Given all this, it is difficult to distinguish between the bases of authority that undergird science and law, as far as the experience of participants is concerned. If participants believe that there are limits on their authority, then those limits exist, and others who disregard them will be treated as deviant unless they produce arguments for change that fall within the accepted canons. Those who reject this account or criticize the arbitrariness of the system as a whole actually are denying that the profession possesses any authority, technical or moral. Even so, two important differences still divide science and law. Lawyers produce new knowledge by changing the law, whereas scientists seek to discover new ways of understanding the natural world; and in each, authoritative interpretations are constituted by different social processes. Let us begin by contrasting legal change and scientific discovery. In science, by contrast, discovery implies that something has become known to all, and the rewards for priority strongly encourage diffusion. This difference is not accidental: the purpose of science is discovery; reputation is established not just by priority but also by validation through peer review. Most practicing lawyers, by contrast, rarely seek to change the law, although the interest of a particular client may be served by advancing new arguments or devising a novel legal instrument. Academic lawyers fall between these two extremes: their goal is to expand the discourse about law and, in doing so, to change it . In pure science, it is peers who evaluate whether an investigator deserves the success that confers symbolic capital , which can be translated into position, command over resources, and possibly recognition of future achievements.lawyers who may have initiated the process, much less academic lawyers who provided the requisite intellectual framework. Academic lawyers very occasionally validate the discovery of relevant facts by their peers; in the common law world the significant change is more likely to be a new conceptualization of the subject matter. If this is a new analysis of disputed legal provisions , then judges have ultimate authority to validate or reject it. If it falls outside that area or if professors have more authority than judges , there still may be no widely accepted criteria of validation. Neither judges, practicing lawyers, nor legal academics have the same relationship to legal knowledge that successful scientists have to scientific knowledge. Sometimes a novel treatment can be partially validated in a single case ; and there are accepted protocols for testing the success of others. The reputations of some physicians are based on their abilities to diagnose and treat individuals, which may correspond to the abilities of the trial lawyer. In some countries, the general public seems less aware of the reputations of individual lawyers than it used to be, although other lawyers still have strong opinions about their peers. High awards in personal injury cases or victories in well-publicized divorces attract new clients and may be associated with particular styles of advocacy. Even when lawyers develop an institutional innovation, such as the poison-pill defense to hostile corporate takeovers , there is no peer system for assessing its efficacy.In the long run, the structures and modes of validation have more influence on the social significance of different forms of professional knowledge than do their epistemological bases. The social context of legal knowledge might resemble that of science if those who created it also validated it; the German legal professoriate sometimes approaches this, as do academic international lawyers even in common law countries. However, the legal profession generally is an exception to Freidson s assertion that unlike the crafts, professionals have been able to control technological innovation by having their own teacher-researchers to produce and legitimize new knowledge.... Freidson recently has elaborated a recurrent theme in the ?sociology of the professions, which associates their work and success with the relationship between their distinctive knowledge and both their daily practice and their exercise of influence: it is necessary to understand how knowledge gets translated into action, which means understanding the human institutions that mediate between knowledge and power. Freidson is describing the institutionalization of formal knowledge in American society. Formalization is a process of theory formation or systematic reasoned explanation, the pervasive use of reason sustained, where possible, by measurement. Recent sociological writing on the professions strongly associates formal knowledge with the universities, where it is produced, taught, and validated; the prestige of higher learning is said to benefit professions. In doing so, we continue to follow the lead of Freidson, who summarizes the basic thesis of his recent book in this fashion: the actual substance of the knowledge that is ultimately involved in influencing human activities is different from the formal knowledge that is asserted by academics and other authorities....Although we agree with much that Freidson says about firsthand experience and situational judgment and about the influence of the power, interest, and knowledge of clients on the selection of professional knowledge, we want to make problematic whether formal and practical knowledge are linked by the processes of transformation and modification.We consider the use of knowledge in legal practice at two levels. This point is made most strongly by Bourdieu , who interprets the restriction of the judicial space to those who know how to function within it as a means of separating it from the rest of social life in order to imbue its decisions with an aura of neutrality. Lawyers gain entry by their ability to distance themselves from ordinary common sense and ideas of fairness; they learn special techniques of reasoning and a universalizing attitude . Dezalay suggests that the emphasis on these skills, which can be learned at home or through apprenticeship, favors those raised in legal families, whereas anyone can learn rationalized or codified legal knowledge. Writers as different as Cain and Simpson also have em- ?phasized that the coherence of legal practitioners owes more to convention than to knowledge of rules. In describing the shared understandings of common law judges before the emergence of formal rules of precedent, Simpson prefigures Bourdieu s remark that the predictability and calculability that Weber imputed to rational law doubtless arise more than anything else from the consistency and homogeneity of the legal habitus. At this more general level, what lawyers know is how to distance themselves from their clients and the world within which clients live, translating the latters wishes into legal, language while purging their claims of emotion and particularity . These skills should not be confused with the formal knowledge they acquire in universities, even if in some countries the very formality of that knowledge enlarges the necessary social distance between the courts and the disputes they adjudicate. In the remainder of this section we seek to specify the uses of knowledge in legal practice in order to determine whether it is a modified form of what is taught in universities, as Freidson suggests. We believe it is not that practice has its own demands, We draw exclusively on American, English, and French studies; in the spirit of the Working Group we seek to develop lines of inquiry that researchers can explore in other countries. Although there is some information about university teaching, we know little about the knowledge used in practice and even less about the relationship between the two. Finally, statements about the prestige or authority of a profession and its members and about the bases of that authority are inherently speculative. Any comments on formal legal knowledge run the risk of undue attention to the American experience; but since our purpose is to trace the application of knowledge in legal practice, much of the literature is irrelevant. An obvious starting point would seem to be Weber s analysis of German legal thought, but he says little or nothing about the extent to which practitioners used the rationalized system he describes. It would be fruitful to investigate the impact of academic scholarship on judicial decision-making, as in the English law of international trade or the widespread citation of law review articles by American judges. In these latter examples, however, academic lawyers were more likely to be analyzing particular issues than to be formalizing or rationalizing entire bodies of law, which is what interests Freidson. We prefer to approach the topic more generally. The process of rationalization affects the totality of outcomes of the legal system, whereas practitioners are concerned with the interests of their clients.sometimes even conflict. If formalization begins with the immediate concerns of practitioners, academics who participate in the process may dash with colleagues more removed from practice, especially in environments such as England, where academics only recently differentiated themselves from practitioners.Dezalay offers one view of the relations among practitioners, academics, and judges, which reveals how the process of formalization can shape the law without producing knowledge that is applied in practice. He sees academics and the higher judiciary engaged in a joint enterprise of purifying the law of social conflicts and ordinary language. By preserving their monopoly over legitimate interpretations, they can dismiss the unapproved innovations of practitioners as so many marks of incompetence and error . Even this account does not fully support the sociological model described above, however, for rationalization is a joint activity of judges and academics rather than the sole domain of the latter. It also contrasts markedly with those countries where the judiciary alone validates the law and purity is not a legal virtue. Dezalay believes that the creation of pure law as an autonomous sphere of knowledge enables the legal profession to distinguish its technical skills from those possessed by other functional specialists also engaged in symbolic mediation . In support of this position we invoke not just the historical reliance of lawyers on apprenticeship as a mode of training but also their contemporary concern with competence and skills what lawyers can do rather than what they know and with pedagogical practices that can instill those skills. Nor is know-how reducible to knowledge-in-action, the skills of a tightrope walker, which do not consist in rules or plans which we entertain in the mind prior to action . Each delimits an ensemble of knowledge and know-how and is associated with particular courts and tribunals as well as clients: habiletés, instances et dient les . These are not generalized skills but techniques developed and deployed in particular, recurrent contexts. Recent research on lawyers work in England and the United States ?coincides with the elaboration by Galanter and others of a framework for analyzing the civil litigation process. They describe a world in which participants have clearly defined goals for whose attainment they use, or threaten to use, legal provisions and procedures. Participants seek and obtain endowments not only from legal rules but also from ail the direct and indirect consequences of the legal system, including its institutional and processual characteristics. The effects are particularly diffuse in negotiations, where participants can compensate for weakness in one area by invoking strengths in another that may be legally unrelated. In the United States, for instance, defense counsel may seek to frustrate a criminal prosecution or obtain a reduced sentence by demanding or threatening the disclosure of information the government fears may be harmful to national security. The emergence of such strategies requires lawyers to mobilize a range of expertise that transcends the knowledge of legal rules and advocacy skills; a prosecutor may have to develop a new response to such threats. This research combines the methods of participant observation, interviews, and questionnaires . Mann characterizes the essence of the defense function in white-collar crime as information control and explores the numerous factors affecting the degree of control an attorney can exercise . He discusses the extent to which evidence is exposed for government use, ambiguities in the definition of crime, uncertainty in sentencing practices, the relevance of client resources, agency precharge review, investigatory procedures, and the prosecutorial standard for indictment.This enlarged picture of legal practice reveals numerous diverse opportunities for creating innovative forms of legal expertise, and lawyers have taken full advantage.S. If older lawyers continue to believe that general trial experience is more useful than prosecutorial experience, younger lawyers who present themselves as specialists are expressing a real professional identity, although such statements are also something of an advertising strategy . Mann s invocation of the market reinforces Dezalay s reference to la promotion d un produit juridique, plus performant, mieux adapté aux besoins d une client 1e potentielle .have been developed in tax and business law, where both the monetary amounts at stake and the client resources stimulate the imagination of jurists more effectively than they do in the fields of divorce or juvenile delinquency. The divergent views about the appropriate background for white-collar criminal defense lawyers conceal a number of debates about the value of different experiences and the benefits they confer. Those with experience as prosecutors emphasize the importance of knowing and being known by their former colleagues, although they are deliberately vague about the advantages that such knowledge confers.S. Those who assert the importance of general trial experience seek to project a very different image of both the work and the kind of person best qualified to perform it, which may correspond to an ideology of legal practice as well as to the material interests of those advancing this viewpoint. Because Mann starts from the assumption that those charged with white-collar crimes are guilty of something, he sees the goal of the defense attorney as using both rights and ambiguities to control the information available to the prosecution. The problem of expertise, therefore, is not simply whether it is being used effectively on behalf of the client but also whether its use is consistent with the broader social interests underlying the criminal law. Thus, when he speaks of the refined analytic skills an accountant brings to the review and presentation of financial records, this is simply another form of expertise needed by defense counsel . The purpose is to determine whether the client s records contain material that might arouse suspicion or demand explanation, thereby affecting the relationship between client, defense counsel, and prosecutor. Sometimes the lawyer s knowledge is unsurprising and uncontroversial for instance, that IRS review procedures exclude an agent who already has formed an opinion about the case . Similarly, lawyers develop skill in portraying their clients as innocent or at least in convincing prosecutors that they cannot prove the client is guilty . Most lawyers would see nothing wrong with a colleague s attempt to obtain an IRS report acknowledging that it was customary for members ?of a particular industry not to report certain transactions and acquiescing in this practice; and they would approve the lawyer s use of the report to argue against prosecution for such nonreporting. Knowledge that the IRS was unable to verify tax returns against bank records of interest paid also is clearly helpful to clients; but few Americans may believe that that law schools ought to teach such things. Lawyers employ even more questionable skills in seeking to neutralize, overlook, or suppress information from the client about past or, even worse, continuing criminality . It is difficult to construct an account of these various kinds of knowledge, mistake, or incompetence that omits all reference to the values underlying the legal system and lawyers. Knowing the content of particular statutes and decisions, for instance, is socially irrelevant- without knowing how to use them to formulate rules; and knowing those rules can only mean knowing how to apply them to particular facts and to plan actions on that basis. Germ s work on the settlement process in personal injury cases in England describes the imbalance between the parties to litigation. She shows how the inevitable and desirable flexibility within tort law can create ambiguities or uncertainties that will be exploited by the party with greater resources and smaller stakes. Some of the plaintiff s disadvantage can be offset if the plaintiff s lawyer prepares with sufficient thoroughness to make credible the threat to go to trial, in order to maximize the defendant s settlement offer. The principal division among plaintiff s personal injury lawyers in England, therefore, is between those with extensive trial experience, some of whom adopt uncooperative and aggressive attitudes, and inexperienced litigators, who associate settlement with maintaining a reasonable and cooperative relationship with insurance company representatives. Here, again, the knowledge and skills are specific to the divergent goals of plaintiffs and defendants. Although both need to know changes in court procedure and recent decisions and settlements , even this latter information is subject to construction. Insurance representatives try to get low awards reported and use their continuing relations with local solicitors to obtain access to such information; this behavior, in turn, becomes a useful piece of knowledge for those representing plaintiffs. Nevertheless, experience enhances the competence of litigators, encouraging them to reject inadequate settlement offers from insurance representatives, who readily identify ignorance and ?inexperience in an adversary . They also include the capacity to evaluate an adversary in face-to-face interaction in order to find out what the other side knows and to evaluate its bargaining position. Germ quotes one solicitor who prefers to take a reasonable attitude as saying that, above some threshhold, as long as the client is happy and is satisfied, then I think that probably is the correct measure of damages . However, if the situation has been explained to the client, then such an approach may simply reflect the client s aversion to risk or stress. Some may feel that the lawyer is obligated to take responsibility away from the client and encourage continued litigation, but such a decision may be inconsistent with the lawyer s own personality and may also constitute unwarranted paternalism toward the client. This brief discussion again suggests that skill and competence can be evaluated only in terms of the purpose of a lawyer s services. While Genn and Mann are describing negotiations in the shadow of indictment or adjudication , Flood observed commercial practice, where litigation is regarded as on another plane from negotiation. In one instance, legal advisers kept a low profile in order to preserve the informal relationship between their client and his employer; nevertheless, they drafted a letter for him, which was construed as a resignation, with fatal consequences for their client s continuing employment. Such mistakes indicate the complexity of the possibilities a lawyer must anticipate and may represent a mirror image of lawyerly skills. In another example the lawyer sought to obtain the best terms for a loan to his client by making a demand on the lender that could be relinquished in exchange for another, more important provision. Since this is a standard negotiating technique, we can see that some relevant skills are not peculiar to lawyers, even if lawyers employ them in situations where other forms of legal knowledge also are essential. Flood describes other skills in the realm of intraoffice behavior, which lead him to characterize lawyers work as not just the accomplishing of a set purpose for the client, but a political endeavor . Bosk emphasized the difference between public and private knowledge and urged us to consider what gets hidden. We might classify special techniques as private knowledge; the strategies for neutralizing inconvenient knowledge and for maintaining one s intraoffice position well illustrate the category of hidden knowledge.A next step in studies of formal and applied knowledge would be to develop analytic tools analogous to the notions of diagnosis and prescription in medicine. These are folk as well as analytic concepts, and the absence of obvious equivalents in law is itself a matter of interest. At the same time, we should be cautious about using a catalog of lawyers skills as a source of insight into the bases of their authority , since that authority depends on the degree to which others perceive and value these skills and the ways in which they are transmuted into reputation among colleagues or within the wider community. Just as the diffusion of knowledge among lawyers is a fruitful approach, so we urge research on the construction of lawyer reputations . CONCLUSION The research agenda proposed above is extremely ambitious. The questions are broad; they call for comparisons across occupations, national boundaries, and historical periods; the theoretical and conceptual frameworks require further elaboration; and there are serious methodological obstacles to studying lawyers at work. These are particularly timely because lawyers in many countries are encountering profound challenges to their professional hegemony from other occupations, the revolution in information technology, large multidisciplinary service firms, and foreign competitors. However, we believe that it is equally important to return to the questions that originally made the sociology of lawyers a central element of the sociology of law. If law is deeply implicated in politics , economics , society , and culture , then lawyers may play a central role in mediating this interaction. It is important to understand the different legal professions different societies produce and the ways those professions both sustain and change their societies. What, for instance, is the connection between the things a society values and where value is concentrated, on one hand, and the role of lawyers in acquiring and defending that value on the other hand?never is an adequate account of behavior, even that of legal officials. A vital inquiry thus becomes what lawyers actually do for their clients and employers , how this is shaped by lawyer-client and employment relationships, and what difference it makes that lawyers are doing these things. However, whereas philosophers typically address only a single element of professional thought processes the polished final product embodied in appellate judicial decisions or legislative codes sociologists must encompass the entire range of legal thought, the ways in which it is produced and validated, and relationships among the different forms as exhibited by law students, legal scholars and educators, private practitioners, laypersons, clients, and government officials , as well as judges and lawmakers. Sociologists also must examine the extent to which technical legal expertise confers moral and political authority, by contrasting it with other forms of knowledge scientific, medical, economic, and religious. By considering what distinguishes lawyers from other professionals rather than the traits that lawyers share with other workers, we will advance the broader ambitions of the sociology of law. NOTES An earlier version of this chapter was presented to the Working Group for Comparative Study of Legal Professions at the annual conference of the Law and Society Association in Vail, Colorado in June 1988. We are grateful for the comments of Terence Halliday, Yves Dezalay, Elizabeth Mertz, and Michael Powell and others who attended that panel.Dezalay offers a fuller expression of this view: ces nouveaux grands pr tres n échappent pas plus que leurs prédécesseurs aux régles du jeu de tout champ symbolique qui imposent aux producteurs quels qu ils soient pr tres, juristes, experts, savants de limiter leurs propres ambitions pour produire la croyance sans laquelle leur pouvoir s effondre, d autodiscipliner l exercice de la pouvoir pour le faire accepter comme 1égitime par ceux aux dépens de qui il s exerce .Both Church of England and American Catholic bishops recently have been criticized for expressing views on economic policy. ?after they gain legal acceptance. Powell , however, describes the speedy diffusion of knowledge about the poison pill device to inhibit hostile takeovers; in this case the field was specialized enough to have a press of its own, and the device needed to be publicized in order to be effective. ?plays a lesser role. See, however, the reference to Kovel accountants , who investigate on behalf of attorneys and whose work product was held privileged in U.S.2d 918 . Market control theories need to pay dose attention to the difference between particular identifiable products, such as the poison-pill defense whose diffusion is traced by Powell , and the generalized expertise of a defense attorney who may have to choose between strategies and techniques. 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