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Publication Date

2017

Abstract

Amidst widespread calls of crisis in the American legal
profession, scholars, commentators and bar leaders are
proposing that we rely on market logic to address the
problems and challenges of contemporary lawyering.
Proposed reforms seek to unbundle, commoditize, and
automate as many legal services as possible; to allow non-
lawyers to capitalize law firms and litigation; and to
permit services providers with limited or no legal training
to perform a wide range of legal tasks. In much the same
way that policymakers in the 1980s and 1990s came to
accept market-based deregulatory reforms to industries
across the country, today's ethics committees and law

firms are reconstructing lawyering as a commodity
exchange, disciplined primarily by the market.
This Article examines and critiques this growing trend.
It argues that the market vision of lawyering ignores and
undermines important democratic roles that lawyers play
in enabling and empowering citizens to participate in the
legal system. Individually and collectively, lawyers guide
clients through the legal system as trusted advisors and
advocates; they empower clients against powerful
adversaries or state over-reaching; they challenge and
constrain client demands that contravene the law; and
they involve clients in the creation of law on the books and
in action. Lawyers perform this work by employing
rational dynamics that market exchange fails to account
for, such as trust, loyalty, judgment, empowerment, and
service. These dynamics are undermined or eliminated
when we ground professional regulation in a conception of
lawyering as an arms'length exchange of services for a fee.
Drawing on nineteenth century social thought that
accompanied the rise of the modern professions, this
Article advocates a different approach to reform. The
professions were initially embraced as institutions that
could intermediate between the state, society, and the
economy, without being captured by the market. Building
on this vision, modern reforms should seek to harness and
constrain market forces in productive ways, rather than
allowing market forces to dictate the profession's future in
deleterious ways. Properly reconstructed, the legal
profession can and should facilitate and mediate
relationships pursuant to law rather than wealth or
power.

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