Why the Privatization of the Legal Profession Enhances White Supremacy
In 2010, the American Bar Association’s “Lawyer Demographics” reported that 88% of lawyers in the United States were white, 5% were black, 4% were Latino, 3% Asian, and less than 1% Native American[1]. Law school data based on race doesn’t differ much from the lawyer demographics for the graduating class of individuals obtaining their Juris Doctorates in the last few years. In 2013, 25% of Juris Doctorates awarded were to “minorities” or non-white law students[2]. The recent data shows that roughly 32% of law degrees awarded by ABA-accredited schools in 2016 were to “minorities[3].” This suggests that within a period of 7 years, perhaps the “Lawyer Demographics” of lawyers from 2010 to entry-level lawyers practicing in 2017 will have decreased by 20% with regards to the profession being overwhelmingly dominated by white lawyers. Even if the data suggests more people of color entering the legal profession, the profession is by and large dominated by white lawyers. This piece looks at why that is and why there is such a race disparity in the legal profession. My principal argument is that the legal profession and the law as a tool for knowing one’s rights is inaccessible to the majority of Americans in the United States — especially marginalized groups who arguably need the protection, or rather, the dismantling of the law the most.
First and foremost, the legal profession and the law are financially inaccessible to the majority of Americans. I’ve accrued roughly $100,000 of debt from three years of law school. People without additional income or major student debt cannot afford to enter the profession. The average law student graduates with roughly $140,616 in debt — and that’s for the law degree alone, not taking into account any undergraduate debt the student may have incurred in the past or future debt the student will incur paying for the Bar Exam costs[4]. Even if a law student enters law school with an initial intent to work for a low-income legal services organizations or to make real change within grass-root organizations in communities, the study of law is such a financial burden that the majority of students are coerced into working in the private sector or government simply to pay their $100,000+ loans off. The data from the 2014 and 2015 J.D. Graduate Classes only demonstrates this. Only 4.7% of the students entered the public interest field post-graduation in 2015, a 0.3% decrease from the mere 5% who entered the public interest sector after graduation in 2014[5].
A lot of the problem, I believe, is with the privatization of the law as both a profession and a practice. Aside from pro se litigants, the law prohibits unauthorized practice of law. In fact, sharing legal advice with any other non-lawyer unless they are a pro se litigant is prohibited and punishable as an offense. In order to become a lawyer, the individual must pay for an exam, pay law schools fees to apply, then become, as aforementioned, $140,616 on average in debt. In law school, the student will learn how to work within an oppressive system and be graded on his or her responses that accurately state the laws at play in this oppressed institution. The law, the student will find, is based on stare decisis, or past decisions that are binding, whether or not they are rooted in oppressive ideologies. Few classes will teach the student to creatively argue a new point — instead, most will require him or her to memorize the current and past law as a requisite for passing the course. Then, as the majority of lawyers do, the then lawyer will go into private practice and profit off of their legal knowledge (which ideally should be accessible to everyone) because they need to pay off debts and need to make money — just continuing the cycle.
The privatization continues in the actual practice of law. To just access a majority of the past and present law, a lawyer usually must buy a legal research platform, like Westlaw to do his or her research. For a law firm with three members, Westlaw access costs $290.00 monthly for a 12-month contract with the service (a sum total of $3,480 annually); the price to simply view a single case without a contract is $25.00 using this service[6]. The price increases based on the number of people in the firm, whether the use of the tool is for corporate purposes, and any other special arrangements the lawyer makes. The high costs of legal research services further exemplifies how the privatization of legal knowledge hinders non-lawyers within the United States from knowing their rights and researching the law on their own.
During my first year of law school, I remember sitting in one of my law courses thinking about how ironic it was that I was paying thousands of dollars to learn a new language that essentially just helps others navigate life — a life they should be able to navigate themselves. I remember sitting in constitutional law, criminal procedure, torts, and the other required courses tested vehemently on the bar exam, thinking, why doesn’t everyone know their rights? Why do people have to go to law school to learn that law enforcement can’t search your house without a warrant? Why is it that I am just now learning the complexities associated with substantive or procedural due process — a right I have as a person living in the territory of the United States? Lawyers represent people in court and in transactions for things people should be able to do themselves. Lawyers defend individuals from going to jail, from paying huge fines, from governmental agents, whether they be federal, state, or local, violating their basic rights — but shouldn’t people be able to do this themselves?
Lawyers are constantly upheld by the media as this elite class of individuals, highly paid, and respected. The media portrays them so, and so do the American people, deferring to their legal judgment and upholding the profession as something children aspire to be in elementary school. In fact, there is a sort-of secret, or not so secret, society in American politics that requires politicians to first graduate from a top-tier law school prior to running for a political office. Many former Presidents have been law school graduates, and many politicians come from a background holding a law degree. It’s difficult to enter these governmental positions without a law degree, not to mention, a law degree from a “top tier” law school, falling in the “top quintile.” However, law as an institution in the United States was created by white, privileged men for white, privileged men. The legal institution’s privatization, like the privatization of many U.S. institutions is done so in the name of profit, which in turn hinders marginalized groups from accessing the very resources they need to advance in American society. If a majority white population holds the knowledge of the law, thus privatizing it and charging high fees inaccessible to low-income individuals, society as a whole is not benefitted and justice is not achieved, even if this is what the law purports to uphold. Wealthier people don’t go to jail because they have access to the law’s privatization. Wealthier people are typically white. According to the Prison Policy Institute, 450 per every 100,000 white person in the United States is incarcerated, compared to 2,306 black people per 100,000 person and 831 per 100,000 Latino person[7]. There is a profound racial inequity in the criminal justice system, and I believe it’s directly related with the privatization of the legal practice to benefit primarily white, privileged people.
Individuals residing in this country should be able to access laws without having to pay absurd costs each time they do so. Individuals residing in this country should not be coerced by the privatized institution to hire an attorney for absurd hourly fees to look up research they ideally should be able to access as a resident of the U.S. Most importantly, individuals in this country should not be further marginalized by society through an institution — the legal institution — that is the supposed tool to protecting them from incarceration, further oppression.
The Fifth and Fourteenth Amendments of the U.S. Constitution guarantee due process. No person “shall be deprived of life, liberty, property without due process of the law,” the due process clause states. This clause extends to both citizens and non-citizens in the United States. Yet, the privatization of the law presents an access issue that further oppresses people of color in the United States from adequately obtaining due process of the law. Why should individuals in this country have to pay half their income to another individual (that, as the statistics show above, is likely to be white) to defend their life, liberty, or property?
Perhaps I’m just a jaded graduating law student, but the system either needs to be dismantled or reformed. It’s oppressive and based on antiquated ideals on what American society should like — white. Under this Administration, lawyers can do good in pushing back — but it’s increasingly difficult to fight the good fight within the privatized nature of the system.
[1] Available at: https://www.americanbar.org/content/dam/aba/administrative/market_research/lawyer-demographics-tables-2015.authcheckdam.pdf.
[2] Available at: http://www.americanbar.org/groups/legal_education/resources/statistics.html
[3] Available at: http://www.americanbar.org/groups/legal_education/resources/statistics.html
[4] Available at: http://abovethelaw.com/2015/08/how-are-lawyers-managing-their-law-school-debt-most-will-never-be-able-to-pay-it-off/
[5] Available at: http://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/reports/2015_law_graduate_employment_data.authcheckdam.pdf
[6] Available at: https://static.legalsolutions.thomsonreuters.com/static/pdf/commercial_plans_pricing.pdf and http://legalsolutions.thomsonreuters.com/law-products/Westlaw/Essentials-Plus-mdash-Washington-Westlaw-PROtrade/p/100020804.
[7] Available at: https://www.prisonpolicy.org/reports/rates.html
