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Bodensteiner: Too many lawyers? The problem may be one of ‘allocation’

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ivan Bodensteiner DeanSince I am currently serving as the interim dean of the Valparaiso University Law School, you may discount everything I say about this topic because you assume law schools have a vested interest in arguing against the generally accepted wisdom that there are, in fact, too many lawyers in the United States. This generally accepted wisdom may be accurate, but I think we should at least test it a bit.

Whether there are too many lawyers in this country depends on what we expect from our system of “justice.” We recently completed a week of orientation for more than 200 students who began their first year of law school Aug. 19. As part of the orientation, we talked to them about what it means to be a lawyer, including the importance of representing individuals whose cause is not popular and representing individuals who lack the resources to pay for representation.

Let’s assume for the moment that the legal profession is serious about the lofty principles it promotes, such as “equal justice” and “justice for all,” then ask whether we have enough lawyers to achieve those goals. No doubt the recent dip in the economy has made it difficult for many lawyers to succeed financially. But, is that because we have too many lawyers? Or, is it because we tolerate a system of “justice” that requires people to pay to participate equally? Maybe we have the proper number of lawyers, or even too few, but we do not allocate them effectively.

As a general rule, in our society your resources determine your access to goods and services. Should that rule prevail when the “good” or “service” is access to justice? If not, then we as part of the key profession need to improve the system. Further, I believe we need to improve access to the profession itself because the system loses credibility when the key players do not reflect the demographics of society. Many have commented on the recently concluded Trayvon Martin trial. I have heard and read the comments of well-informed lawyers, black and white, suggesting that the jury verdict was proper in light of Florida law and the evidence presented at trial.

Of course, not all lawyers agree, but let’s assume for the moment that the assessment stated above is accurate – that is, a reasonable, unbiased jury could properly acquit the accused. Why, then, is the verdict so controversial, particularly among African-Americans? At least to some extent, I believe, the outrage and criticism can be traced to a general distrust of the criminal justice system, at least among those who are not adequately represented in the system. Perception is important, maybe even more important than reality. Would the perception be different if there had been several black jurors on the jury that acquitted the accused, or if there had been more black players in the system?

When I think about our criminal justice system, I am always reminded of Justice William Brennan’s dissenting opinion, joined by Justices Thurgood Marshall, Harry Blackmun and John Paul Stevens, in McCleskey v. Kemp, 481 U.S. 279 (1987), the case that rejected an equal protection challenge to a capital sentence in Georgia. In challenging the implementation of the death penalty in Georgia, McClesky relied on the “Baldus study” showing a racial disparity in the imposition of the death penalty in Georgia. Justice Brennan stated:

“At some point in this case, Warren McCleskey doubtless asked his lawyer whether a jury was likely to sentence him to die. A candid reply to this question would have been disturbing. First, counsel would have to tell McCleskey that few of the details of the crime or of McCleskey’s past criminal conduct were more important than the fact that his victim was white. Furthermore, counsel would feel bound to tell McCleskey that defendants charged with killing white victims in Georgia are 4.3 times as likely to be sentenced to death as defendants charged with killing blacks. . . . Finally, the assessment would not be complete without the information that cases involving black defendants and white victims are more likely to result in a death sentence than cases featuring any other racial combination of defendant and victim. The story could be told in a variety of ways, but McCleskey could not fail to grasp its essential narrative line: there was a significant chance that race would play a prominent role in determining if he lived or died.” (citations omitted)

The Urban Institute recently published the results of a study by John K. Roman titled “Race, Justifiable Homicide, and Stand Your Ground Laws: Analysis of FBI Supplementary Homicide Report Data.” It states that “the rate of justifiable homicides is almost six times higher in case[s] with attributes that match the Martin case. Racial disparities are much larger, as white-on-black homicides have justifiable findings 33 percentage points more often than black-on-white homicides. Stand your Ground laws appear to exacerbate those differences, as cases overall are significantly more likely to be ruled justified in SYG states than in non-SYG states . . . .” Roman indicates that the study has limitations, but these findings are disturbing.

The American Bar Association has noted that there are not enough racial minorities in the profession. Former Justice Randall Shepherd recognized that years ago when he started the Indiana Conference for Legal Education Opportunity program, commonly knows as ICLEO. We will increase the number of racial minorities in the profession only by increasing their enrollment in law schools. A reduction in enrollment in law schools because there are too many lawyers will tend to lock in, at least for a period of time, the disproportionately low number of racial minorities in the profession. As I welcomed our incoming class of students during orientation, I was particularly pleased by the fact that more than 45 percent of them were from a group referred to as “underrepresented minorities.”

The burden of eliminating racial disparities in our criminal justice system cannot be placed on black attorneys. It is our problem. But, racial equality may be given a higher priority when racial minorities are better represented in the legal profession. If we change the job description of the profession to include universal access to legal representation, we may conclude we do not have too many lawyers.•

__________

Ivan Bodensteiner, a nationally recognized authority on constitutional law and civil rights, is the interim dean at Valparaiso University Law School. He has served as interim dean since March 2013.

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  1. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  2. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

  3. Low energy. Next!

  4. Had William Pryor made such provocative statements as a candidate for the Indiana bar he could have been blackballed as I have documented elsewhere on this ezine. That would have solved this huuuge problem for the Left and abortion industry the good old boy (and even girl) Indiana way. Note that Diane Sykes could have made a huuge difference, but she chose to look away like most all jurists who should certainly recognize a blatantly unconstitutional system when filed on their docket. See footnotes 1 & 2 here: http://caselaw.findlaw.com/us-7th-circuit/1592921.html Sykes and Kanne could have applied a well established exception to Rooker Feldman, but instead seemingly decided that was not available to conservative whistleblowers, it would seem. Just a loss and two nice footnotes to numb the pain. A few short years later Sykes ruled the very opposite on the RF question, just as she had ruled the very opposite on RF a few short years before. Indy and the abortion industry wanted me on the ground ... they got it. Thank God Alabama is not so corrupted! MAGA!!!

  5. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. http://www.theindianalawyer.com/ogden-quitting-law-citing-high-disciplinary-fine/PARAMS/article/35323 THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

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