ABSTRACT
This chapter reviews two books that are foundational to the history of the legal profession in America. Both books paint a portrait of a profession complicit in injustice and inequality in America, a profession that hides behind its professed role to serve the public but in fact contributes to its basest instinct. Opting for a purportedly neutral role, the profession has served the wealthy and powerful. It has helped stifle critique and progressive change. Jerold Auerbach was responding in large part to J. Willard Hurst, so the review also touches on Hurst’s work on the legal profession. Richard Abel, trained as a sociologist, has written another seminal book on the history of the legal profession. Abel argues that the organized legal profession is motivated by the desire for market control. Abel offers perspective from three theoretical points of view: the structuralist functionalists who focus on social control, the Marxists who analyze the conflict between labor and capital, and the Weberians who view the professions as a way to gain a competitive advantage in the marketplace. Abel favors this last approach, examining how the organized bar repeatedly opts for self-protective positions that enhance its power and prestige. The review pays tribute to these two works that have offered critical perspective about the history and role of the American legal profession. It also puts these two works in their own context, arguing that they were a part of a larger intellectual rebellion against institutions and elites. It argues that while Abel and Auerbach’s analysis was critical and in many ways accurate, it was only part of the story. The review maps out a direction for future scholars of the profession, asking if and how the profession can be rehabilitated in light of Abel and Auerbach’s critique.
