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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. Ah ha, so the architect of the ISC Commission to advance racial preferences and gender warfare, a commission that has no place at the inn for any suffering religious discrimination, see details http://www.theindianalawyer.com/nominees-selected-for-us-attorney-in-indiana/PARAMS/article/44263 ..... this grand architect of that institutionalized 14th amendment violation just cannot bring himself to utter the word religious discrimination, now can he: "Shepard noted two questions rise immediately from the decision. The first is how will trial courts handle allegations of racism during jury deliberations? The second is does this exception apply only to race? Shepard believes the exception to Rule 606 could also be applied to sexual orientation and gender." Thus barks the Shepard: "Race, gender, sexual orientation". But not religion, oh no, not that. YET CONSIDER ... http://www.pewforum.org/topics/restrictions-on-religion/ Of course the old dog's inability to see this post modern phenomena, but to instead myopically focus on the sexual orientation issues, again betrays one of his pet protects, see here http://www.in.gov/judiciary/admin/files/fair-pubs-summit-agenda.pdf Does such preference also reveal the mind of an anti-religious bigot? There can be no doubt that those on the front lines of the orientation battle often believe religion their enemy. That certainly could explain why the ISC kicked me in the face and down the proverbial crevice when I documented religious discrimination in its antechambers in 2009 .... years before the current turnover began that ended with a whole new court (hallelujah!) in 2017. Details on the kick to my face here http://www.wnd.com/2011/08/329933/ Friends and countrymen, harbor no doubt about it .... anti-religious bias is strong with this old dog, it is. One can only wonder what Hoosier WW2 hero and great jurist Justice Alfred Pivarnik would have made of all of this? Take this comment home for us, Gary Welsh (RIP): http://advanceindiana.blogspot.com/2005/05/sex-lies-and-supreme-court-justices.html

  2. my sister hit a horse that ran in the highway the horse belonged to an amish man she is now in a nurseing home for life. The family the horse belonged to has paid some but more needs to be paid she also has kids still at home...can we sue in the state f Indiana

  3. Or does the study merely wish they fade away? “It just hasn’t risen substantially in decades,” Joan Williams, director of the Center for WorkLife Law at the University of California Hastings College of the Law told Law360. “What we should be looking for is progress, and that’s not what we’re seeing.” PROGRESS = less white males in leadership. Thus the heading and honest questions here ....

  4. One need not wonder why we are importing sex slaves into North America. Perhaps these hapless victims of human trafficking were being imported for a book of play with the Royal Order of Jesters? https://medium.com/@HeapingHelping/who-are-the-royal-order-of-jesters-55ffe6f6acea Indianapolis hosts these major pervs in a big way .... https://www.facebook.com/pages/The-Royal-Order-of-Jesters-National-Office/163360597025389 I wonder what affect they exert on Hoosier politics? And its judiciary? A very interesting program on their history and preferences here: https://www.youtube.com/watch?v=VtgBdUtw26c

  5. Joseph Buser, Montgomery County Chief Prosecutor, has been involved in both representing the State of Indiana as Prosecutor while filing as Representing Attorney on behalf of himself and the State of Indiana in Civil Proceedings for seized cash and merchandise using a Verified Complaint For Forfeiture of Motor Vehicle, Us Currency And Reimbursement Of Costs, as is evident in Montgomery County Circuit Court Case Number 54C01-1401-MI-000018, CCS below, seen before Judge Harry Siamas, and filed on 01/13/2014. Sheriff Mark Castille is also named. All three defendants named by summons have prior convictions under Mr. Buser, which as the Indiana Supreme Court, in the opinion of The Matter of Mark R. McKinney, No. 18S00-0905-DI-220, stated that McKinney created a conflict of interest by simultaneously prosecuting drug offender cases while pocketing assets seized from defendants in those cases. All moneys that come from forfeitures MUST go to the COMMON SCHOOL FUND.

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