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. This is ridiculous. Most JDs not practicing law don't know squat to justify calling themselves a lawyer. Maybe they should try visiting the inside of a courtroom before they go around calling themselves lawyers. This kind of promotional BS just increases the volume of people with JDs that are underqualified thereby dragging all the rest of us down likewise.

  2. I think it is safe to say that those Hoosier's with the most confidence in the Indiana judicial system are those Hoosier's who have never had the displeasure of dealing with the Hoosier court system.

  3. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  4. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  5. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.