Whether it is truly a Chinese curse or just a poorly sourced
quote used by the late Robert F. Kennedy in his famous Day of
Affirmation Address in Cape Town, South Africa, in 1966, we
surely "live in interesting times."
Hearken back to the time when you were considering applying to
law school. What did the American legal system look like to you?
Were courts and judges models of stability, equipoise and
scholarship? Did you envision judicial office as the perfect
sinecure to end a financially rewarding professional career and to
ease into a secure, state-sponsored, lifelong retirement? What is
better than a state pension, right?
How did you imagine private practice? Did you expect to earn a
high income in a private law firm working on
challenging problems that warranted academic-like "sabbaticals"
every 10 years or so? Did you plan on paying your law school
tuition with the cash you earned through summer jobs, alone or in
combination with support from Mom and Dad? Did you envision owning
a home in a bucolic suburb populated by like-minded and comparably
educated, affluent white-collar workers? If you ever truly
comprehended "the rule of law" back then, did you consider it at
risk? Did you ever ask yourself what would happen if the rule of
law in this country simply failed?
Today's "law economy"
Let's call the collective sum of all public and private services
related to the reading, interpretation, guidance, application and
enforcement of statutory and common law the "law economy." There
are obvious public employee stakeholders in the law economy
(judges, prosecutors, court administrators, clerks and court
officers). And there are equally obvious private employee
stakeholders as well (lawyers, law firms, paralegals, investigators
and the like). It is easy, however, to view the law economy
myopically and to lose sight of the fact that the public at large
are stakeholders in it too (businesses and consumers, employers and
employees, purchasers and sellers, lenders and borrowers).
The foundation of the law economy in the Commonwealth of
Massachusetts is full, adequate public financial support for the
courts. But the truth of the matter is the public (through its
elected officials) do not properly support the courts. As a result,
the law economy is crumbling all about us. Courts are closing;
judges are retiring early; support staff are laid off or just not
Private practice is faring no better. Massachusetts is burdened
with nine law schools! That's right. Nine law schools continue to
pump out thousands of newly minted graduates every year, even
though almost none of them secure paying jobs. The era of large law
firms employing huge "classes" of new graduates every year is gone.
Indeed, large law firms are failing, proving that many are economic
houses of cards. We are witnessing the creation of a lost
generation of law school graduates who neither have jobs at
graduation nor any realistic hope of getting jobs. Without viable
options, many new lawyers "hang a shingle" and try to "make a go"
of private practice. No experience, no resources and no mentors
inexorably lead to bad lawyering and adverse consequences for
clients, courts and other practitioners.
Erosion of the rule of
When judges and lawyers speak to the harm that comes from the
decline in the law economy, they report about delays in securing
jury trials, the unavailability of transcripts, overworked court
staff and frazzled judges. Average citizens, who never see the
inside of a court, simply don't connect with these arguments. Civil
lawsuits (which, as talk show hosts tell them, are often
"frivolous") involve "others" -- not them. The timeliness of
criminal trials really doesn't matter so long as the criminals are
The most important point for all stakeholders to note as they
ponder the decline in the law economy is the erosion in the rule of
law; and with it, the decline in the quality of life in the
commonwealth. The employee who works hard for two straight weeks
expects her employer to deliver a paycheck and make good on
promises of health insurance and other benefits. The tenant who
pays her rent expects the building heat and electricity to work
when she turns on switches. The consumer who fills prescriptions at
CVS expects both pills inside the bottle when she opens it and that
the pills are actually medications. The depositor who placed funds
in her bank account expects the funds to be there when she needs
them. The bank that lends money to a borrower on a promissory note
expects the borrower to pay back the loan according to its terms.
The city resident who is stopped by a police officer does not
expect to pay a bribe in order to go on about her business.
We take the rule of law for granted. We never ask ourselves what
our individual lives would be like if the rule of law was ignored,
unenforced or nonexistent. Images from Syria, Libya and Somalia
show us the ugly face of lawlessness. Murder is common in Ciudad
Juarez, barely across the Texas border. Kidnappings for ransoms are
now said to be common in southern Arizona.
By underfunding the justice system, the public at large puts at
risk the way in which they live their lives, and with it, their
hopes and dreams for themselves and their children and
Goal #1 for our 101st year
The Massachusetts Bar Association has set as its primary project
for its 101st year of operation the education of the
public at-large on the grave consequences to the rule of law from
underfunding the justice system.
The law economy's impact on "gateway
Our political leaders like to boast about the relative state of
the greater Massachusetts' economy as better (or less bad) than the
economies of other states or the nation as a whole. For example,
our 7.5 percent unemployment rate is made out to be acceptable
because it is lower than the 9.5 percent national unemployment
The dirty secret about this state's economy is found in the
endemic and entrenched 15 to 20 percent unemployment rates in our
so-called gateway cities; viz.; Lawrence, Lowell and
Haverhill in the Merrimack Valley; Brockton, Fall River and New
Bedford on the Route 24/Southcoast corridor; Worcester in Central
Massachusetts; and Springfield, Holyoke and Chicopee in Pioneer
The bar has simply left to grand political thinkers the
responsibility for solving the problems that beset the gateway
cities. Yet, it is here, in these gateway cities, that the rule of
law is tested every day, whether it be by violent crime, or by
corruption or by unsafe living conditions. Closed courthouses,
unsafe courthouses and dysfunctional courthouses that serve gateway
cities breed contempt for the law and diminish our collective
safety and security statewide.
Goal #2 for our 101st year
The Massachusetts Bar Association has set as a second project
for the 2011-12 association year direct engagement in gateway
cities policy debates and incubation studies. We hope to partner
with other influential organizations, such as UMass Boston and
MassINC, as well as with our affiliated county and affinity bar
associations in developing solutions for gateway cities. Think
about it. Who is better prepared to craft sweeping changes to state
law than members of the Massachusetts Bar Association?
The law economy, law schools and lawyers
How is it possible that rational undergraduates choose to attend
law school, incurring debts of $150,000 to $200,000, when class
after class of graduates goes jobless in the field? Perhaps, it
grows out of false information published by some law schools. For
example, one third-tier law school apparently claimed that its
average graduate was employed in private law firms at an annual
salary of $160,000. Harvard Law School cannot make that claim.
Many individuals in this debt-ridden, lost generation of recent
law school graduates are turning to solo practice without either
prior experience or access to mentors. Practical problems ensue.
Clients are poorly served; incivility abounds; established
practitioners experience a decline in revenue coupled with an
increase in transactional expenses.
Something is clearly amiss with this aspect of the law economy,
and the Massachusetts Bar Association plans to evaluate and act on
it. At its first organizational meeting on Dec. 22, 1909, the MBA
adopted among its goals "to promote reform in the law" and "to
facilitate the administration of justice." In its November, 1929
Quarterly, the MBA's Committee on Legal Education
identified low educational requirements as a chief reason for the
deterioration of the bar and reported "the patent fact that it is
people in humble circumstances who suffer most from untrained
Goal #3 for our 101st year
The Massachusetts Bar Association has set as a third priority
for the 2011-12 association year evaluation of the ongoing
relevancy of law schools, the three-year law school model, the cost
of law schools and the information delivered to Massachusetts
residents considering application to law school. Necessarily, the
MBA will also look at mandatory CLE, particularly for newly
We live in interesting and difficult times. As leaders of our
profession, we can and should make a difference to our fellow
citizens. Now is