From the SelectedWorks of Ray W Campbell
August 25, 2015
A Tale of Three “Professions”: Search Engine
Optimization, Lawyering & Law Teaching
Ray W Campbell
Available at: http://works.bepress.com/ray_campbell/5/
A Tale of Three “Professions”:
Search Engine Optimization,
Lawyering & Law Teaching
Ray Worthy Campbell*
INTRODUCTION
The question has been posed: is legal practice today a profession? This
leads, naturally enough, to another question: should society treat it as one?
Using the concept of ‘profession’ in different ways, some argue that one thing
modern legal practice needs is a good dose of ‘professionalism;’1 others argue
that, whatever once might have been true, treating law practice as a
‘profession’ is a rum game best abandoned.2
These questions matter. Much turns on whether and how the practice of
law remains a profession. Law enjoys special regulatory privileges and
market protections that make little sense if law has become just another form
of business – a specialized form of consulting, perhaps.3 At the same time,
societies depend on professions to perform important public functions, and if
a de-professionalized legal occupation either cannot or will not reliably
*
Associate Professor, Peking University School of Transnational Law.
See, e.g., Nicola A. Boothe-Perry, Standard Lawyer Behavior?: Professionalism as a
Standard for ABA Accreditation, 42 N.M. L. REV. 33 (2012).
2
T HOMAS D. MORGAN, T HE VANISHING AMERICAN LAWYER 20 (2010) (Hereinafter,
MORGAN, V ANISHING AMERICAN LAWYER ) (“[U]se of the idea of a ‘profession to
understand the world of lawyers obstructs clear thinking about what lawyers actually do and
how they are likely to have to respond to the world they face.”); Thomas D. Morgan, Calling
Law a "Profession" Only Confuses Thinking About the Challenges Lawyers Face, 9 U. S T.
T HOMAS L.J. 542 (2011); Thomas D. Morgan, Toward Abandoning Organized
Professionalism, 30 HOFSTRA L. REV. 947 (2002); Russell G. Pearce, The Professionalism
Paradigm Shift: Why Discarding Professional Ideology Will Improve the Conduct and
Reputation of the Bar, 70 N.Y.U. L. REV. 1229 (1995)
3
See Robert Eli Rosen, “We're All Consultants Now”: How Change in Client
Organizational Strategies Influences Change in the Organization of Corporate Legal
Services, 44 ARIZ. L. REV. 637, 640 (2002) (arguing that lawyers are increasingly are hired
as just one of many flavors of consultants used by corporations)
1
2
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perform those functions, new solutions must be sought.
These questions matter particularly now. An inability to access affordable
legal services has reached crisis proportions for individuals and small
organizations. At the same time, technology makes available for the first time
new kinds of legal services that are not as dependent on the service provider
having fully formed skills. While technology seems unlikely to replace
lawyers altogether, the prospect exists for technology – or less intensively
trained humans aided by technology – to address confined legal problems.
These innovations are sometimes blocked and sometimes limited by the
market protections given lawyers.
Sometimes perspective helps. This article attempts to provide a bit of
perspective by looking comparatively at three occupations which might lay
claim to the title of ‘professional.’ One is lawyering. Another, closely but not
altogether related, is the occupation of teaching law. Last is a new occupation,
wholly arisen within the past few decades, of consulting on optimizing
websites to obtain high search engine rankings (Search Engine Optimization
or SEO).
Each of these fields involves a high level of intellectual content, and each
resists rote solutions. Consumers of these services are handicapped in
assessing the quality of the services provided, but much can depend on
whether the job is well done. In each field, ethics matter. For those who
achieve success in the field, compensation can be very high. In each field,
successful practitioners might describe, without irony, their occupation as a
profession.
These fields are examined through a sympathetic model of professional
structure developed by sociologist Eliot Freidson. Unlike some, Freidson
accepts the possibility that professions are up to some good and involved in
important public functions that go well beyond gaining status, seeking
enhanced income, or protecting consumers from ineptitude. Freidson views
professions as a ‘third way’ to organize workplaces that serve public interests
and respond to defects in both market and bureaucratic control, but only when
the conditions precedent are met. This article uses Freidson’s model to
contrast three occupations, and in the process to ask whether modern law
practice constitutes the kind of positive profession deserving a market
‘shelter’ that he envisions.
The residual market protections given to lawyers are one reason to
determine whether they still constitute a profession – if they are not able to
deliver on the social bargain of protecting the justice system, there seems
little reason to protect them from the full onset of the market or to allow them
the privilege of self-regulation.4 Perhaps more importantly, the analysis raises
4
The issue of lawyer self-regulation has long been a subject of debate. See David B.
Wilkins, Who Should Regulate Lawyers?, 105 HARV. L. REV. 799 (1992); Fred C.
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the question of who, if anyone, is protecting the system of justice from naked
market and bureaucratic forces if lawyers have abdicated or been driven from
the role. In a world where law has been and can be used to oppress the
powerless, and where legal claims have become a tradable asset class, it is
not a trivial question.
I. A MODEL OF PROFESSIONS
The question of what distinguishes a profession from other occupations
has received substantial if not altogether consistent attention.5 In general,
there seems to be a sense that in some important ways professions differ from
other types of work, but not all analysts agree on what the telling differences
are. In most cases, scholars of professionalism have worked backwards,
looking at professions inductively and identifying important traits.
In looking at organized professions, we are not looking at
“professionalism” in the sense used by many commentators on the current
legal profession. Those advocating more “professionalism” often look to
issues such as civility and conscientiousness. Some commentators, looking
at young lawyers forming a “professional identity,” include how an
individual understands the role of law practice in society,6 but too often the
notion of professionalism seems to get bogged down at the level of dress and
conduct.
While such ‘professionalism’ has value, there is no serious claim that
such a thin understanding of what constitutes a profession justifies any
special regulatory or market privileges. Put differently, no one seems to claim
that lawyers should be able to regulate themselves and block competition so
long as they work hard for their clients, wear good suits and are civil to one
another.
The analysis here looks not at that kind of ‘professionalism,’ but more
structurally at the role an organized profession plays in society. A thicker
conception of what constitutes a profession does lead to an argument for
Zacharias, The Myth of Self-Regulation, 93 MINN. L. REV. 1147 (2009); James E. Moliterno,
The Trouble with Lawyer Regulation, 62 EMORY L.J. 885 (2013).
5
See, e.g., MAGALI S ARFATTI LARSON, T HE R ISE OF P ROFESSIONALISM :
MONOPOLIES OF COMPETENCE AND SHELTERED M ARKETS (2012); E LIOT FREIDSON ,
P ROFESSIONALISM : T HE T HIRD LOGIC (2001); ELLIOTT A. KRAUSE, DEATH OF THE
GUILDS: P ROFESSIONS , S TATES, AND T HE ADVANCE OF C APITALISM , 1930 TO THE
P RESENT (1996); ELIOT FREIDSON, P ROFESSIONALISM REBORN: T HEORY, PROPHECY,
AND P OLICY (1994); ANDREW ABBOT, T HE SYSTEM OF P ROFESSIONS : A N E SSAY ON THE
D IVISION OF EXPERT LABOR (1988); ELIOT FREIDSON, P ROFESSIONAL P OWERS: A STUDY
OF THE I NSTITUTIONALIZATION OF FORMAL K NOWLEDGE (1986).
6
Neil Hamilton, Assessing Professionalism: Measuring Progress in the Formation of
an Ethical Professional Identity, 5 U. ST. T HOMAS L.J. 470 (2008)
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special treatment. Professions, it is argued, involve such special work and
play such an important positive role in society that the profession itself should
control who can do the work, excluding others from the market and being
subject only to self-regulation.
Even here, there are differing viewpoints. In today’s credential driven
society, numerous occupations require formal credentials and licenses in
order to enter into the workforce.7 Many, especially economists, see in this
state granted cartels, or at best a bargain where the market is compromised in
return for protection against incompetent service – with the argument
generally being that in most cases the market on its could weed out the
incompetent in due time.8 This view, which sees professionals as operating
in and within markets and naturally seeking income maximization, generally
sees the public purpose served by licensure being at best consumer protection.
Traditional proponents for professions often viewed the role of
professions as being inherently different from the mere licensure model,
although professional licensing was involved. Within law, traditional
advocates for the professional model stressed two elements not present in the
typical licensure analysis – an assertion that unlike those in trade,
professionals were not interested in maximizing income. To be sure, this
model acknowledged that professionals sought a decent living, but dismissed
pursuit of excess income as unprofessional, and encouraged the sharing of
advances in craft throughout the profession in lieu of maximizing revenue
through trade secrets. Second, the traditional advocates asserted that
professions served an important public purpose well beyond consumer
protection. Dean Wigmore of Northwestern, for example, referred to lawyers
as a priesthood of the law,9 and Roscoe Pound called lawyers “a group . . .
pursuing a learned art as a common calling in the spirit of a public service.”10
An issue that arises with such a more robust conception – even if one
accepts the opening premise that a group might in a sustained way put service
ahead of self-interest – is being able to define when an occupation is
sufficiently ‘professional’ in this sense to deserve special treatment. Scholars
in many fields have recognized that there is something distinctive about both
7
Aaron Edlin & Rebecca Haw, Cartels by Another Name: Should Licensed Occupations
Face Antitrust Scrutiny?, 162 U. P A. L. REV. 1093, 1102 (2014) (More than 800
occupations and nearly 30 per cent of the US jobs require state granted licenses)
8
See, e.g., Milton Friedman, Capitalism and Freedom (2002); Aaron Edlin & Rebecca
Haw, Cartels by Another Name: Should Licensed Occupations Face Antitrust Scrutiny?, 162
U. P A. L. REV. 1093, 1102 (2014).
9
J OHN H. W IGMORE , INTRODUCTION TO ORRIN N. C ARTER , ETHICS OF THE LEGAL
P ROFESSION, AT XXI (1915) (“The law as a pursuit is not a trade. It is a profession. It ought
to signify for its followers a mental and moral setting apart from the multitude,--a priesthood
of Justice.”)
10
ROSCOE P OUND, T HE LAWYER FROM ANTIQUITY TO M ODERN T IMES 5 (1953)
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professional practice and the organization of professions, but have struggled
to define what makes a profession a profession, as well as disagreeing about
whether professional structures and protections add value not available in an
open market.11
One study of studies looked at the characteristics identified by prior
scholars. A list of these is suggestive of a general sense of what makes a
profession, but not altogether conclusive. Among the more frequently cited
traits:
1. A profession involves a skill based on theoretical knowledge. (12)
2. The skill requires extensive and intensive training and education.
(9)
3. The professional must demonstrate competence by passing a test.
(8)
4. The profession is organized and it is represented by associations of
distinctive character. (13)
5. Integrity is maintained by adherence to a code of conduct. (13)
6. Professional service is altruistic. (8)
7. The professional assumes responsibility for the affairs of others. (5)
8. Professional service is indispensable for the public good. (2)
9. Professionals are licensed, so their work is sanctioned by the
community. (2)
10. Professionals are independent practitioners, serving individual
clients. (2)
11. They have a fiduciary relationship toward their clients. (2)
12. They do their best to serve their clients impartially without regard
to any special relationship. (2)
13. They are compensated by fee or fixed charge. (2)12
Looking at such efforts fairly, it seems that there is some kind of “there
there,” but it also seems clear that drawing the contours based on historic
traits has not led to total agreement or analytical clarity. In part, no doubt, this
derives from the real examples all falling short of whatever Platonic ideal
might be constructed, with professional traits and identities differing from
culture to culture, country to country, and across time in the same country
and culture. In part, it surely reflects the difficulty in determining from
11
MAGALI S ARFATTI LARSON , T HE R ISE OF P ROFESSIONALISM : MONOPOLIES OF
COMPETENCE AND SHELTERED MARKETS (2012); ANDREW ABBOTT, T HE SYSTEM OF
P ROFESSIONS : AN ESSAY ON THE D IVISION OF EXPERT LABOR (1988)
12
J OHN KULTGEN, ETHICS AND P ROFESSIONALISM 60 (2011) (Citing to GEOFFREY
M ILLERSON, T HE QUALIFYING ASSOCIATIONS 5 (1964) (“The sources are Bowen, CarrSaunders and Wilson (The Professions), Christie, Cogan (“Toward a Definition of a
Profession”), Crew, Drinker, Flexner, Greenwood, Howitt, Kaye, Leigh, Lewis and Maude,
Marshall, Milne, Parsons (Essays in Sociological Theory), Ross , Simon, Tawney , Sidney
and Beatrice Webb, Whitehead, and Wickendon . These works are cited in the [Kultgen’s]
Bibliography.”) The numbers in parentheses reflect the number of studies that cited the trait.
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observation which traits are essential and which are incidental.
Another approach, perhaps inherently less charitable to professions,
tracks the process by which occupations lay claim to being a profession, with
the market protections that implies. As fields with specific technical expertise
emerge, the next step seems to be a campaign to lay claim to professional
status and privileges. This process generally includes consolidation of the
professional expertise required by the field, the development of formal
training programs and credentials, and, when it can be achieved, the
concession of specific market protections or advantages. Quite often, those
describing this process seem to view it as little more than a self-interested
quest for enhanced status and income.13
Yet another approach develops a functional model. Such an approach
starts with a theory of what function professions serve for their members and
for society, and from that develops a model of those traits essential to meet
those needs. Once such a theoretical model is developed, it can be tested by
comparing it to the traditional professions.
Sociologist Eliot Freidson, a leading scholar of professions, developed
such a model.14 As Freidson viewed professions, they provide an alternate,
`third` way to organize the workplace, distinct from work governed directly
by market forces on the one hand and between workplaces organized by
bureaucratic fiat (whether that of governments or corporations) on the other.
As viewed by Freidson, the professional model allows those performing the
work to organize the workspace themselves. Being in control of the
workplace allows professions to play a mediating role in society, between the
individuals and capital on one hand, and between individuals and government
on the other.
Freidson’s model starts from the belief that the alternative forms of
organizing a workplace – raw market capitalism and bureaucratic fiat – do
not work well in the kinds of contexts that give rise to professions. On the
one hand, the work done by professionals cannot easily be controlled by
bureaucratic fiat because it is too specialized and too dependent on discretion
based on subtle shifts in context. On the other hand, the market fails as a
control mechanism because there is a public interest involved in the work
done by those in the profession, and serving only the interest of a customer
can betray that public interest. In addition, neither the market nor bureaucratic
fiat lead to the conditions where experts engaged in a common enterprise
13
See, e.g., MAGALI S ARFATTI LARSON, T HE R ISE OF P ROFESSIONALISM :
MONOPOLIES OF C OMPETENCE AND SHELTERED M ARKETS xvii (2012)
(“Professionalization is thus an attempt to translate one order of scarce resources – special
knowledge and skills – into another – social and economic rewards.”)
14
ELIOT FREIDSON, P ROFESSIONALISM : T HE T HIRD LOGIC (2001) (HEREINAFTER ,
FREIDSON, P ROFESSIONALISM )
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advance the state of the art in the craft. In such contexts, control of the
workplace by a body of experts with a commitment to the public interest can
provide an alternative.
Unlike many contemporary observers of the professions – who often echo
George Bernard Shaw’s quip that all professions are conspiracies against the
laity15 or who view professions as anachronistic survivors of guilds –
Freidson takes a generally positive view of the potential of professions. Not
only does worker control of the workplace make sense when outsiders are ill
equipped to understand or control what happens in the workplace, but
empowered professional institutions can serve a mediating role in a society
in which both governments and capital hold increasing power. Organized
professions, dominated by neither capital nor governmental fiat, can stand in
defense of certain fundamental values.
Freidson’s model distinguishes between occupations that merely employ
specialized technical knowledge – an ever growing component of the modern
information economy – and occupations that are organized along a
distinctive, professional model. The growth of technical knowledge has
generated many new fields that rely on expertise but that do not correspond
to a professional model. Indeed, even as technical fields have multiplied some
of the traditional professions have found themselves under deprofessionalization pressures, in part because technicians of lesser stature can
substitute for some of the work once reserved to elite professionals.
Freidson’s positive vision of professional roles allows for a more
balanced critique than those models which simply view professions as
schemes to gain status or engage in rent seeking. Building a model which
from the inception allows for the possibility that professions serve a public
purpose allows a contextual and fact specific analysis. If one starts with the
proposition that all professions are only self-interested efforts to secure status
or economic protection, a conclusion that deregulation might well serve the
public interest can follow as an almost foregone conclusion. Starting from a
premise that, in certain circumstances, professional structures can play
important positive roles demands a more nuanced examination.
Freidson, of course, is not simply a rote cheer leader for
‘professionalism.’ His positive vision of professions depends upon
professions meeting certain structural criteria and being able to play certain
positive roles. His model lays out the elements he sees as necessary to the
kind of professional organization of the workplace he sees as valuable.
Freidson has identified five elements of a ideal type profession. They are:
1. “[S]pecialized work in the officially recognized economy that is
believed to be grounded in a body of theoretically based, discretionary
15
GEORGE B ERNARD SHAW, T HE DOCTOR ’S D ILEMMA 32 (1907 Brentano’s edition)
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knowledge and skill and that is accordingly given special status in the labor
force”;
2. “[E]xclusive jurisdiction in a particular division of labor created and
controlled by occupational negotiation”;
3. “[A] sheltered position in both external and internal labor markets that
is based on qualifying credentials created by the occupation”;
4. “[A] formal training program lying outside the labor market that
produces the qualifying credentials, which is controlled by the occupation
and associated with higher education; and
5. “[A]n ideology that asserts greater commitment to doing good work
than to economic gain and to the quality rather than the economic efficiency
of work. . . . The ideology claims both specialized knowledge that is
authoritative in a functional or cognitive sense and commitment to a
transcendent value that guides and adjudicates the way that knowledge is
employed.”16
Freidson recognizes that no real world occupation will map completely
to this ideal model. Even for those occupations that traditionally have been
considered professions across borders and across historical eras, the model
will fit more or less depending on places and times. That said, Freidson has
constructed a model that does fit the core elements of the traditional
professions, and helps explain why societies have been willing to allocate
special privileges to these occupational groups.
Freidson’s model also throws light on the pressures perceived to be
imposed on professions. Freidson’s model of the professions, in common
with many other conceptions of professions, envisions an implicit social
contract between members of the profession and society at large.17 Due in
part to the nature of the work, external regulation of the professions is
difficult, but the work to be performed is important on its own terms, and in
some cases the mediating power of a professional organization can be
important. Members of an organized profession implicitly bargain to provide
effective self-regulation in return for market and political protection. There
is, of course, no actual contract document, but under this theory there is a
kind of tit-for-tat. The privileges bestowed on professions depend on the
cooperation of other segments of society, which in turn means that
professions must persuade others in the political realm that they deserve
16
FREIDSON P ROFESSIONALISM 127.
Not all accept that the social contract argument ever had any application to American
lawyers. See, MORGAN, V ANISHING AMERICAN LAWYER 24 – 25 (Not only was the social
contract not a historical event, for American lawyers the circumstances never existed which
would have made it desirable.) For the purposes of our analysis, it is sufficient to consider,
if such a tacit agreement were deemed to exist, whether today’s lawyers could honor their
part of the bargain.
17
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special treatment, and continue to urge the argument to hold support when
the inevitable challenges to their privileged status arise.
Under Freidson’s model, the market and political ‘shelter’ provided
professions is structurally important. If individual members of the profession
find themselves subject to naked market pressures, they will find it
economically impractical to provide a mediating role against capital. At the
same time, if individual members of the profession find themselves subject
to tight governmental or bureaucratic control, they will find it difficult to
provide a mediating role against bureaucratic, political power. The organized
profession provides a safe space within which individual members can
realistically live up to the social contract without undertaking martyrdom of
one kind or another.
Friedson wholeheartedly defends monopolies in furtherance of
professional organization. In his view, critics who focus on market
protections for professions, without more, engage in a reductive analysis that
fails to examine whether the market protections serve a positive purpose. In
an ideal model profession, the economic protections serve a function that
allows the development of professional knowledge and coherent organization
of the workplace:
Thus, in attacking professionalism, critics use the word
monopoly stereotypically, the implication being that it
serves only one purpose dominated by only one overriding
motive. They ignore the fact that the institutions of
professionalism are grounded not only in an economy but
also in a social enterprise of learning, advancing, and
practicing a body of specialized knowledge and skill. The
institutions of professionalism organize and advance
disciplines by controlling training, certification, and practice
on the one hand, and by supporting and organizing the
creation and refinement of knowledge and skill on the other.
While those institutions do privilege the economic position
of professions, critics nearly always overlook the fact that
they also privilege the disciplinary coherence of professions
in an organized division of labor.18
Freidson’s model accepts that a “sheltered position” in the marketplace is
not an occasional byproduct of imposing rigorous credentials that protect
consumers from inadequate services. Rather, the sheltered position provided
by professional monopoly allows professionals to make a living without
18
FREIDSON P ROFESSIONALISM 198.
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being subject to pure market pressures, and allows space to develop the
professional state of the art as well as to attend to the public interest. In
Freidson’s view, monopoly that is used only to secure greater income is at
odds with the professional model, which uses monopoly to serve a public
purpose and advance the shared craft.
Freidson’s approach to monopoly cannot be readily reconciled with
modern antitrust doctrine, which views cartel behavior skeptically and
allows, at most, a limited set of justifications looking to the immediate
welfare of consumers. From the perspective of antitrust economics, concepts
such as protecting consumer welfare by excluding incompetent practitioners
are suspect but addressable; squishy concepts such as “the disciplinary
coherence of professions” or an overriding public interest supposedly served
by the professional model don’t readily map to an antitrust analysis. Taken
seriously, Freidson’s model would provide a rationale for arguing against
applying antitrust rules that assume markets should control professional
settings.
Freidson’s model also helps explain why it might matter to ask whether
an occupation fulfills the requirements of professional status. In Freidson’s
model, professions can play a positive, even vital, role in society, but only if
they can fulfill their part of the implicit social bargain. To stand against
capital and the powerful bureaucracy of the state, a profession needs to
operate from a protected base. The point of the protected base, however, is
not to privilege the members of the profession, but to help them fulfill an
overriding duty to society. Monopoly and market protections are not per se
problematic in Freidson’s19 model, but only if they are unnecessary or
abused.20
In a functioning profession, its practitioners do not simply respond to
market forces or yield to bureaucratic fiat. While engaged in service, the role
of the professional is not that of a servant, delivering as commanded. The
client’s wishes must be balanced against the public service served by the
profession. “The professional ideology of service goes beyond serving
others’ choices. Rather, it claims devotion to a transcendent value which
infuses its specialization with a larger and putatively higher goal which may
19
This sentiment is expressed in the oft-quoted statement attributed to eminent lawyer
Elihu Root: “About half the practice of a decent lawyer consists in telling would-be clients
that they are damned fools and should stop.” Of course, a professional exercises his
professional independence not always on behalf of the public interest, but often on behalf of
his client, given a superior understanding of the situation, which seems to be the actual
provenance of the Root quote. See Monroe Freedman, The Elihu Root Quotation, THE
LEGAL E THICS F ORUM , http://www.legalethicsforum.com/blog/2009/10/the-elihu-rootquotation.html. In either case, unlike a servant a professional is able to operate with some
independence from the client’s directions.
20
FREIDSON, P ROFESSIONALISM 206.
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reach beyond that of those they are supposed to serve.”21
There is, to some of us, something beautiful and alluring in the conception
of a profession as set forth by traditional exponents such as Pound and
Wigmore, and as articulated by Freidson. The notion of a higher purpose that
sets limits on self-interested behavior and provides a lodestar has an
irreducible appeal. What’s more, at least in some individual cases, there is
truth in the model of individuals pursuing the public purpose ahead of self
interest. As Freidson note, this vision of professional driven by public
concerns continues to have purchase in popular culture:
It is no accident that for well over a century in the iconography of
popular media it is professionals who are the “crusaders” seeking
Justice, Health, Truth, and Salvation. While it is common to see
physicians and lawyers, scientists and professors, and sometimes
journalists and politicians, in that principled role one does not see
bankers, stockbrokers, or business executives.22
Even given Freidson’s generous grant of authority to professional
occupations, if an occupation becomes unwilling or unable to perform
Freidson’s difficult, mediating role, there seems little point in giving that
occupation special protections or privileges. If the professional structure
becomes too weak, or the interest of professionals in honoring the bargain
diminished, the public cannot obtain their benefits. The residual privileges
and protections granted to the profession become mere rent seeking.
Freidson’s model helps us gauge whether an occupation retains enough
“professional” characteristics to justify privileged status. A fully formed
profession has enough control over its workspace to deliver on the bargain if
it so chooses. Protected from government and market control, professionals
can run their workspaces in ways that provide the public benefit. If they do
deliver that benefit, they can plausibly argue for the continuation of their
privileged status.
Freidson’s model thus lends itself to use by those concerned with the
regulatory structure of occupations such as law. It was developed as the
capstone work of one of the most distinguished scholars of professions. It
begins from a position that recognizes the validity of professional
organization, allowing positive as well as negative conclusions on whether a
profession deserves professional protection.
In a post-industrial information economy, occupations that depend on
advanced knowledge and intellectual skills are ever more common. Some of
these professions will, by nature of their complexity and higher than average
21
22
FREIDSON. P ROFESSIONALISM 122.
FREIDSON, P ROFESSIONALSM 221.
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levels of pay, command some level of social prestige. The question remains,
however, whether there is something distinct about those occupations that
merits a special regulatory approach, and Freidson’s model helps focus on
that.
This article will use Freidson's model in examining whether these three
occupations are, and could be, in control of their workplaces. If they control
their workplace, the analysis can then proceed to whether they have or could
deliver on the public bargain envisioned by Freidson or others. If not, the
final questions are whether any reason exists to give them partial protection
from the market, and whether anyone fulfills the public role that might
otherwise be served by a profession.
II. THREE OCCUPATIONS COMPARED
If there is one thing law professors know, it is that nothing helps explain
a concept better than comparing similar, but critically different, fact patterns.
This article attempts to put some meat on the bones of theoretical
professionalism by looking at three contemporary occupations. Each of these
occupations involves services with high intellectual content, each requires
discretionary judgment, each can provide above average remuneration, and
in each case the consumer may not be able to judge the quality of the service
provided. The three differ widely, however, in their professional status, and
a comparison of the similarities and differences helps show how intellectually
complex occupations and professions differ under Freidson’s model. The
three occupations are legal academics, practicing lawyers, and search engine
optimization (SEO) consultants.23
A. Legal Academy
Law schools at the moment are in more than the normal state of crisis.
Applications and enrollment have fallen dramatically in recent years, leading
to deep financial retrenchments.24 Critics inside and outside the academy
have questioned the utility of legal academic research25 and attack the job law
23
These three happen to be three professions I have been involved with at one stage or
another of my career, having been a big law partner, a CEO of internet companies reliant on
SEO, and a legal academic.
24
B ENJAMIN H. B ARTON, G LASS H ALF FULL: T HE DECLINE AND REBIRTH OF THE
LEGAL P ROFESSION 160-161 (2015); 16-161 (Applications to law school fell 32 percent
between 2004 and 2013, with double digit declines in 2011, 2012, and 2013) (Hereinafter,
B ARTON, H ALF F ULL). Applications have continued to fall since the publication of Barton’s
book, but at a reduced rate that leads some to conclude the bottom has been reached.
25
See, e.g., Harry T. Edwards, The Growing Disjunction Between Legal Education and
the Legal Profession, 91 MICH. L. REV. 34 (1992).
15-Dec-15
A Tale of Three Professions
13
schools do of preparing students to be lawyers.26 Still others have attacked
the ethics of the legal academy, with a widely spread theme that accuses law
schools of operating a scam designed to benefit faculty at the expense of
tuition paying students.27
That law schools are in crisis does not mean, however, that legal
academics do not at this moment in time still constitute a profession under
Freidson’s sense. However, the attacks on the academy provide a warning
that legal academics, if they still hold control of their workspace, could lose
that. The issue for legal academics is not whether they have current control
of their workspace but whether they can continue to persuade other elements
of society that their services are of value and that they are serving an ideology
rather than self interest.28
While the legal academy has roots stretching back to the emergence of
both the legal profession and universities in the late middle ages29, modern
law schools began to emerge when Christopher Columbus Langdell was
appointed dean at Harvard. Prior to that time – and for decades afterward –
26
See, e.g., Brent E. Newton, The Ninety-Five Theses: Systemic Reforms of American
Legal Education and Licensure, 64 S.C. L. REV. 55 (2012); Steven C. Bennett, When Will
Law School Change?, 89 NEB. L. REV. 87, 103–107 (2010); Michael Martinez, Legal
Education Reform: Adopting a Medical School Model, 38 J.L. & EDUC. 705, 705 (2009)
("Legal minds tend to agree that the current educational model used in American law schools
is inadequate. The current model, usually spread over three years of law school, focuses
almost purely on teaching legal theory in a classroom setting. It provides the practical
experience of having real clients to few, if any, students. The end product of this educational
model, in the opinion of many scholars, is a group of graduates who are ill-equipped to
practice as legal professionals."); Jason M. Dolin, Opportunity Lost: How Law School
Disappoints Law Students, the Public, and the Legal Profession, 44 CAL. W. L. REV. 219,
220 (2007) ("[L]aw schools have refused to teach new lawyers how to practice law.");
Rogelio Lasso, From the Paper Chase to the Digital Chase: Technology and the Challenge
of Teaching 21st Century Law Students, 43 SANTA C LARA L. REV, 1, 15 (2002) (“There is
almost universal agreement that law schools do not adequately prepare students for the
practice of law.”); Alex M. Johnson, Jr., Think Like a Lawyer, Work Like a Machine: The
Dissonance Between Law School and Law Practice, 64 S. C AL. L. REV. 1231, 1233 (1991)
(“Legal educators, with our increasing orientation away from law and the practice of law,
are failing to adequately prepare students to practice law”).
27
B ARTON, H ALF FULL AT 156-159. See also Lucille A. Jewell, You’re Doing It
Wrong: How The Anti-Law School Scam Blogging Movement Can Shape the Legal
Profession, 12 M INN. J.L. SCI. & T ECH. 239, 263-74 (2011); Daniel D. Barnhizer, Cultural
Narratives of the Legal Profession: Law School, Scamblogs, Hopelessness, and the Rule of
Law, 2012 MICH. S T L. REV. 663 (2012)
28
One critic of modern law schools finds the claim that law professors are engaged in
selfless public service ‘dubious,’ noting that the benefits of the job include high pay, flexible
hours and high levels of job security. B RIAN Z. T AMANAHA, F AILING LAW SCHOOLS 3031, 52-53 (2012).
29
J AMES A. B RUNDAGE , T HE MEDIEVAL ORIGINS OF THE LEGAL P ROFESSION :
C ANONISTS, C IVILIANS AND COURTS 219 (2008)
14
A Tale of Three Professions
15-Dec-15
the most common path for being trained as a lawyer was to apprentice with a
lawyer, ultimately standing an oral examination before a local judge. 30 This
educational process, directly controlled by lawyers, was replaced in the
following decades by Langdell’s law school model, usually situated within
host institutions of higher education, staffed by lawyer-scholars – not all with
experience in practice – who had received their disciplinary training in law
schools.
The law schools we know today are usually part and parcel of the modern
research university.31 The modern research university evolved in the latter
part of the 19th century, emerging from industrial era polytechnic schools, the
medieval universities, small American colleges, and new land grant schools
in the US, often drawing on the model of the German research universities
that had taken form slightly earlier. Not coincidentally, Dean Christopher
Columbus Langdell’s rebooting of Harvard Law School occurred at the same
time Harvard University President Charles Eliot was transforming a New
England college into a pre-eminent research university.
Law schools share many of the characteristics of other schools and
departments in their host institutions. As is true with other academic
departments, career success depends on published scholarship. Also
reflecting the larger university, academic pedigrees matter, with most
professors graduates of a short list of top schools.
At the same time, there are ways in which the legal academy charts a
different course. Until relatively recently, academic doctoral degrees (as
opposed to Juris Doctor degrees) were relatively rare in the legal academy,
and still are not formally required. Outside grants play a modest role in
funding research, with most salaries – and hence most research – funded by
student tuition dollars. At some schools, a self-consciousness infects
balancing practical training for occupational success (sometimes derided as
the ‘barbers’ college’ model) and pursuit of knowledge and intellectual ideas
for their own sake.32
At present, as noted above, the legal academy is under attack from many
directions. Applications and enrollment have fallen sharply, leading to steep
declines in revenues.33 The gap between the academy and the profession is
For one lawyer’s account of the process as it then existed, see Ray Worthy Campbell,
The Making of a Lawyer, 1878 Version, T HE FACULTY LOUNGE (May 22, 2015),
http://www.thefacultylounge.org/2015/05/the-making-of-a-lawyer-1878-version.html
31
See Ray Worthy Campbell, Law School Disruption, 26 GEO. J. LEGAL E THICS 341
(2013)
32
Roger C. Cramton, Beyond the Ordinary Religion, 37 J. LEGAL EDUC. 509, 510
(1987)("[A] university law school has a broader function than a cooking institute, a barber
college, or some other trade oriented technical school."
33
B ARTON, H ALF F ULL AT 160-161 (Applications to law school fell 32 percent between
2004 and 2013, with double digit declines in 2011, 2012, and 2013).
30
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A Tale of Three Professions
15
wider than ever, with lawyers and judges questioning both the utility of law
professor research and the effectiveness of law school training. Tuitions –
before case-by-case discounts – have generally reached all-time highs, while
employment outcomes at many schools are inadequate to justify the
investment of time and money.
Perhaps most challenging to the academy, elements of these criticisms
have coalesced into a narrative that is openly hostile to the academy and its
privileges. As the counter narrative goes, law faculty are not victims but
architects of the current dysfunction. Out of touch with the profession,
unconcerned about their students, the narrative goes, a selfish class of legal
academics enjoys high pay and light work, all paid for by snookering gullible
students into incurring huge and undischargeable debt. This narrative does
not have to be even partially true to present fundamental challenges, so long
as it is widely circulated and believed.34
Other challenges come from within the university structure. In recent
decades the administrative arms of universities have received increased
funding and aggregrated greater power. Academics find themselves
competing with deans and ‘deanlets’ both for resources and decision making
authority. In the university at large, a shift of teaching load to temporary and
non-tenure track faculty has diminished the role of traditional faculty.
With all that in mind, if we look at Freidson’s model of a profession, how
does the legal academy stack up? It turns out that law professors, more than
lawyers, have established secure professional status. At least for now, they
have firm control over their workspace. They seem likely to retain the power,
at least over the near term, to chart their own path out of the challenges now
confronting the academy. Over the longer term, much depends on their being
able to persuade others that they deserve continued monopoly protection.
1. Specialized work.
Teaching law and producing legal scholarship would seem to be
specialized work. Most law professors have been trained to be lawyers. Even
those who come from other fields must have an understanding of legal
processes and rules in order to function in a law school setting.
Beyond that, legal academic writing – upon which success depends given
that teaching law is viewed as a ‘writing job’35 – stands apart as a specialized
form of writing. Traditional academic legal writing requires grounding in
specialized legal doctrines, and even non-traditional academic legal writing
requires conformity to stylistic oddities not found even in other academic
34
See Daniel D. Barnhizer, Cultural Narratives of the Legal Profession: Law School,
Scamblogs, Hopelessness, and the Rule of Law, 2012 M ICH. ST L. REV. 663 (2012)
35
Brad Wendel, The Big Rock Candy Mountain: How To Get a Job in Law Teaching,
(unpublished,
unpaginated
manuscript,
available
at
http://ww3.lawschool.cornell.edu/faculty-pages/wendel/teaching.htm)
16
A Tale of Three Professions
15-Dec-15
writing.
In recent years, however, it can be asked whether this specialized work is
grounded in a common body of discretionary knowledge and skill. In part this
has to do with ever increasing legal specialization. Much as practicing
lawyers find themselves in specialty silos, researchers find themselves
mastering narrow fields in depth.
Since the 1970s, this has been joined by the inclusion of non-law
disciplines. A growing “law and” trend has brought scholars onto the faculty
who hold doctorates in other fields such as economics, sociology, philosophy
or history. Many, but not all, also hold law degrees, but adding other
disciplines has to some degree fractured the academic discourse. In terms of
research, law schools function as mini-universities.36
A sense of the lack of a common body of skill was demonstrated by an
incident in 2009. A leading scholar, who earned a Ph.D. in Philosophy along
with his law degree, and who holds appointments both in a top research
university’s School of Law and its Philosophy Department, wrote and
published an a legal journal an article that addressed issues related to religious
tolerance, a topic with obvious and significant legal applications. Another
well-regarded legal academic – holder of a law degree from a top three law
school, a veteran of a distinguished career in legal practice, but not the holder
of any Ph.D.s - wrote a law review article critiquing the work, and addressed
philosophical legal themes in the article. A comment apparently from the JDPh.D author of the original article took exception not just to the substance of
the critique but also to the source. In a comment to a blog post reporting on
the controversy, the question was posed, “Is it unethical or inappropriate for
law professors to write and circulate articles in areas or on topics in which
they lack any relevant disciplinary competence?”37
The blog comment may have been a throwaway remark, but it touched on
fundamental issues for the academy. Its application to Freidson’s analysis is
obvious: What common body of skill or knowledge unites law professors if
36
B RIAN Z. T AMANAHA, F AILING LAW SCHOOLS 57 (2012) ("Much of the research
produced by law professors is standard academic fare, indistinguishable from scholarship
one finds in political science, history, economics, and women’s studies departments, for
example, except that law professors focus on law-related matters. Contemporary law
faculties, especially at elite institutions, have become mini-universities, staffed by professors
with advance training in economics, history, political science, philosophy, sociology, or
psychology.”)
37
Alan Childress, Lipshaw Creates Firestorm By Talking About Religion and Brian
Leiter,
LEGAL
P ROFESSION
B LOG,
Wednesday,
September
30,
2009,
http://lawprofessors.typepad.com/legal_profession/2009/09/lipshaw-creates-firestorm-bytalking-about-religion-and-brian-leiter.html
15-Dec-15
A Tale of Three Professions
17
it is even arguably “unethical or inappropriate” for one to comment on
another’s work?
Implicit in the question is the assumption that even elite legal training
does not provide the kind of disciplinary competence needed to engage in an
exchange about the article. Without getting into the specific debate, as
modern legal scholarship has developed there will indeed be cases where
research rests on disciplinary competencies, beyond law, that are not shared
by other members of the faculty. If the legal academy has become so
fragmented that scholars within the legal academy lack the common
foundation necessary even to critique each other’s work without crossing
ethical boundaries, the question arises whether law faculty share a specialty
at all.
The shift is due in part to the increasingly multidisciplinary nature of law
faculty scholarship. So long as there have been legal academics, there have
been specialties within law, and an expert in, say, tort law, would not be
expected to be fully current with new developments in tax law. Faced with
new hire or tenure decisions, faculty have long deferred to judgments by
internal or external experts in the field. That said, in the Langdellian world of
legal doctrine, the tools brought to bear were largely consistent across
specialties – a torts scholar might not be up the curve on developments in
property law, but she would know how to attack the problem.
That changes when doctoral level expertise in other fields becomes the
tool of the trade. Almost all law faculty share expertise in doctrinal legal
analysis. The same cannot be said when the tools of research involve chi
squares and propensity matching, or doctoral level facility with difficult
philosophical doctrines. These various fields of expertise can shed much light
on legal issues, and contribute ways of looking at the law that practicing
lawyers cannot readily access on their own, but understanding whether they
are being used correctly is beyond the training traditionally given in law
schools.
Over time, if law schools drift further away from legal doctrine and
practice, and closer to being mini-research-universities with an interest in
law, the ability of law faculty to understand, much less monitor, each other
may decline. Over the long haul, this fragmentation into diverse fields
combined with an increased distance from the daily practice of law may
create structural issues as to the coherence of legal scholarship. For the
present, however, despite that, law faculties seem to function as if legal
research, however fragmented, remains a common field.
2. Exclusive jurisdiction/Monopoly Power.
One area where legal academics largely map to Freidson’s model of
professionalism is their near exclusive jurisdiction over their workspace. In
the United States, law schools are graduate professional schools, with a goal
18
A Tale of Three Professions
15-Dec-15
of most students being able to become practicing lawyers. Unlike law schools
in many other countries, pre-professional law studies are not an
undergraduate liberal arts option.
In the US system, admission to the bar ultimately lies under the control
of the states. Each state, acting through its judicial branch, decides what
credentials must be presented in order for an applicant to become a lawyer.
Universally, this requires passage of a bar exam and the related character
inquiry.
In 46 states, it also requires graduation from an ABA accredited law
school. Through a complicated arrangement, legal academics have exercised
effective – albeit not plenary – control over which schools can claim ABA
accreditation. The net is that legal academics have a monopoly over an
important product – a degree that allows the holder to take the bar
examination in any US jurisdiction.
The ABA also serves as the sole accrediting agency for law schools as
recognized by the US Department of Education. This in turn impacts whether
students can obtain federal student loans or other federal monetary aid. The
monopoly thus extends to financing the product, and as law school tuitions
rise access to loans matters.
Within the ABA, the accreditation function runs through the Section of
the Legal Education and Admissions to the Bar. Decisions are made by the
Section’s Council, currently a 21 member body of which no more than ten
can be current legal educators.
The limitation on faculty involvement resulted from a 1995 consent
decree resolution of a lawsuit brought by the Department of Justice’s antitrust
lawyers, which had charged that the accreditation function of the ABA had
been captured by legal educators to the detriment of the public interest.38
Under and in response to the consent decree some specific accreditation
requirements were dropped – for example, requirements on minimum faculty
salaries – and “no more than 50 percent” of the members of the Council could
be law school teachers or deans.
While the DOJ rolled back the professoriate’s plenary control over
accreditation of law schools, it did not eliminate the influence of law faculties
over the accreditation process. In practice, “no more than 50%” has meant
“as close as possible to 50%”, which has left the law faculties in an influential
position within the Council. Law schools do not receive or maintain ABA
accreditation without the approval of a Council dominated by law faculty;
without ABA accreditation law school graduates have a degree of diminished
value.39
38
United States v. American Bar Association, Civil Action No. 95-1211 (US Dist. Ct.,
June 27, 1995)
39
B ARTON, H ALF FULL at 137. (“In case you doubt the extraordinary advantage granted
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A Tale of Three Professions
19
The ABA accreditation requirements keep competition from those
outside the guild at bay. Students who want the right to take the bar in any
US state can only buy that degree from an accredited law school. Training
US lawyers as a career,40 with limited and lower status exceptions, requires
joining the faculty of an accredited law school.
How does one join the faculty of an accredited law school? Here, the
process again is dominated by members of the professorial guild. Under the
US model of faculty governance, faculty drive the hiring process, with
candidates being reviewed by faculty hiring committees, vetted by the full
faculty, and hired after a faculty vote. Administrators – themselves legal
academics – play a role, especially with regard to budget matters, but no
tenure track faculty get hired without faculty approval.
At present, and for the foreseeable future, law professors thus enjoy the
kind of sheltered position envisioned by Freidson. Regulatory barriers
prevent competitors outside the guild from offering a product of comparable
value. This sheltered position gives the legal academy a sheltered space
within which it can pursue what it view as the public interest, and to define
the terms on which it will deliver education services.
3. Qualifying Credentials.
No credential equivalent to passing a bar exam or obtaining a medical
degree controls entry to the academic profession. Instead, much as medieval
guilds controlled entry to the guild directly, admission to the field of law
teaching requires being hired by an existing law faculty.
No one degree is required in order to become a law professor. Despite
this, credentials matter mightily to entering the field, and are not less
important because they take the form of a la carte bundles.
Some kind of terminal degree will be an essential part of the bundle of
credentials. Most US law professors hold JD degrees, which at one time was
the de facto required degree. Never, however, was an unadorned JD
sufficient. In the classical model, an aspiring law professor needed to be a top
of the class graduate, usually from a top school.
An increasing number of newer professors also hold Ph.D. degrees in
fields considered relevant to legal studies such as economics, sociology,
history or philosophy. Such degrees are considered to provide evidence of
scholarly inclination, training and skills. Some law professors hold only
Ph.D. degrees.
Beyond the degree itself are a cluster of softer credentials – graduation
to ABA-accredited schools by states requiring ABA accreditation, consider this statistic:
seventy law schools went out of business between 1930 and 1950, and sixty-nine of them
were unaccredited.”)
40
Another option for those who want to teach law is teaching law in non-professional
programs such as business schools or undergraduate departments.
20
A Tale of Three Professions
15-Dec-15
from a top law US law school, for example, with a high percentage of law
professors coming from the top three law schools, and a high percentage of
the rest coming from the remainder of the top fifteen schools, with the
academic credential having a much later sell by date than in other fields.41
Clerkships make up another in the bundle of credentials. While clerking for
a Justice of the U.S. Supreme Court no longer holds quite the cachet it did a
generation earlier, many academics have held either Supreme Court or elite
lower court clerkships. Fellowships and visiting professorships, where
aspiring professors are groomed in temporary jobs on law faculties in return
for providing cost effective instruction, are increasingly important in the
bundle of credentials. In recent years, an essential credential seems to be a
track record of scholarly publications - not just scholarly potential, but
demonstrated scholarly achievement, has become the price of entry.
Not essential, and even harmful, especially at the more elite schools, is
substantial experience practicing law. Professors tend to have two or three
years of practice experience, and a significant career in private practice can
reduce a candidate’s attractiveness. Not a few prominent professors have no
experience practicing law at all. One study showed a negative correlation
between years in practice and being hired at top schools.42
From the point of view of Freidson's model, the most important point is
that the various elements of the bundle of credentials and the weight accorded
to the constituent parts are decided by members of the profession themselves.
That most legal academics hold law degrees provides a core credential. As
the bundle of additional credentials is weighed, the decision as to whether
practice experience - or academic doctorates, or clerkships, or prior
publications - is a valued credential will be made by the law faculties, and the
law faculties alone.
One clear trend is the differentiation between the credential set needed to
teach law school, and the credentials needed to practice law. In the era of
apprenticeship, they were the same. In the early days of the Langdellian
model of law school, legal academicians normally held the same credentials
as practicing lawyers – a bit more gilt plated, to be sure, but the same training
and degrees. Today, while far from complete, a divergence is underway, as
preparation for an academic career in law often requires degrees or training
in scholarship quite different from that needed to practice law. Given that the
traditional model of professional training envisions a tight link between the
Richard E. Redding, ‘‘Where Did You Go to Law School?’’ Gatekeeping for the
Professoriate and its Implications for Legal Education, 53 J. LEGAL EDUC. 594, 594 (2003)
(Empirical study showed that “where a faculty candidate went to law school may trump his
or her subsequent scholarly, professional, and teaching accomplishments, and that most law
teachers graduated from a handful of elite law schools”).
42
cite
41
15-Dec-15
A Tale of Three Professions
21
profession and the training necessary to join it, this divergence may in the
fullness of time have consequences.
4. Formal Training Program.
In this regard, the legal academy differs from Freidson’s model. At one
time, the formal training program was the same as for practicing lawyers –
that is to say, obtaining a JD. It continues to be true that most law professors
hold JD degrees, and in an important sense for most law professors a law
degree represents a key part of the training program.
As traditionally delivered, however, a JD degree provides ample training
in doctrinal analysis, and little training in the kind of extended scholarship
expected of professors.43 The tools of scholarship can be picked up on one’s
own, through working as a research assistant for an established professor,
through a legal graduate program such as an LL.M. or an S.J.D., through
doctoral level studies in another field, or through mentorship in a law school
fellowship. The skills beyond a JD that distinguish professors from practicing
lawyers, while real enough, are not transferred through any single, required,
formal program. The trend toward Ph.D./J.D. law professors and the trend
toward hiring from fellowships may each represent an evolution toward an
expectation that there has been some training in scholarship on top of a JD.
5. Ideology.
The universal tenure requirements for law school faculty provide an
insight to the guiding ideology of the legal academy– that is, to what it is that
legal academics think legal academics should be doing. Three elements are
taken into account – teaching, service to the community and university, and
scholarship. Of these three, even at lower ranked schools, scholarship usually
reigns supreme.
This is not to say that teaching and service are makeweights. Teaching
performances are reviewed and rated, and taken into account. Faculty serve,
grudgingly or enthusiastically, on school and university committees that often
take on necessary but unglamourous tasks. Depending on the culture and
needs of the school, these can be important elements of a tenure decision.
In line with the oft repeated observation that being a law professor is
primarily a “writing job,”44 a record of scholarship is the must have. A
professor who fails to present the required bundle of academic writing will
fail come tenure time, notwithstanding excellent service and excellent
43
At some of the most elite schools, there will be more attention paid to training students
in scholarship. Upper level seminars and foundational courses in analytical methods do help
interested students from these schools – from which most law professors are drawn – to move
into scholarship.
44
Brad Wendel, The Big Rock Candy Mountain: How To Get a Job in Law Teaching,
(unpublished,
unpaginated
manuscript,
available
at
http://ww3.lawschool.cornell.edu/faculty-pages/wendel/teaching.htm)
22
A Tale of Three Professions
15-Dec-15
teaching.45 From hiring, where published scholarship is a must have to get
the job, to promotion, to ranking of law schools, professors are differentiated
by the quality of their scholarship.46 The principal ideology of law faculty
seems to be expanding knowledge and understanding of how law functions
in our society.
Improving the quality of the practicing bar by educating lawyers as well
as possible could be asserted as an alternative ideology, but this cannot easily
be maintained against the hiring practices and reward structures of the
academic profession. Few law professors have much experience themselves
in legal practice. What’s more, professional rewards turn principally not on
teaching skills, but on scholarship. While many law professors take teaching
seriously and work hard to excel in the classroom, in terms of professional
structure it is hard to argue that it is teaching that provides the motivating
value of the profession
Good scholarship is not, of course, inimical to good teaching or high
levels of university service. Studies tend to show either a mild positive
correlation or no correlation between scholarly productivity and teaching;
none show a negative correlation.47
45
Marin Roger Scordato, The Dualist Model of Legal Teaching and Scholarship, 40
AM. U. L. REV. 367, 373-74 (1990) ("It is currently the common wisdom that tenure and
promotion are attainable at most law schools by faculty who have compiled a record of solid
published scholarship coupled with classroom teaching that does not provoke active
complaints from students. . . . In addition, faculty members generally understand that
significant increases in salary and opportunities to visit and to teach at other institutions are
more likely to result from the publication of a few more law review articles than from the
reworking and improvement of the courses they teach.")
46
Robert L. Bard, Legal Scholarship and the Professional Responsibility of Law
Professors, 16 CONN. L. REV. 731, 734 (1984) (Direct relationship between scholarship and
prestige)
47
DEBORAH L. RHODE, T HE T ROUBLE WITH LAWYERS 136 (2015) (Hereinafter,
RHODE, T ROUBLE ) (“Most research shows no correlation between law professors’ teaching
effectiveness and scholarly influence.”); Benjamin H. Barton, Is There a Correlation
Between Law Professor Publication Counts, Law Review Citation Counts, and Teaching
Evaluations? An Empirical Study, 5 J. EMP. LEGAL S TUD. 619 (2008) (Study across a group
of law schools at multiple levels finding no correlation). But see Tom Ginsburg and Thomas
J. Miles, The Teaching/Research Tradeoff in Law: Data from the Right Tail (2014), available
at SSRN-id2394114.pdf ("[F]or most faculty members at one elite law school, there is a
positive correlation between teaching and research prowess."). A caveat that is in order is
that the studies all look at tenure track faculty who were hired, in large part, based on their
potential for scholarship. Being less good at the main criterion for your job, when compared
to people hired using the same criteria, would not normally imply that you must be excellent
at some other aspect of the job. A more revealing comparison would be between teachers
hired largely for their practice and teaching skills – which might include adjunct faculty –
and those tenure track faculty hired for scholarship. So far as I know, none of the studies
attempting to correlate teaching and scholarship have include the non-scholar adjuncts in the
mix.
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23
The ideology of the legal academy matters because under Freidson’s
model it is not sufficient that those in the guild accept the ideology – it must
be successfully sold to outsiders so that the privileges and monopoly of the
guild can be maintained. As we will see with practicing lawyers, if outsiders
do not accept the claims of the profession to be different important aspects of
the profession’s protections can melt away.
At present, the value of legal scholarship is under attack from both within
and without the legal academy. Law professors have noted that, even in an
academic field that is notoriously footnote mad, around half of all legal
scholarship never gets cited by anyone.48 Others inside the academy have
questioned the cost.49 The sitting Chief Justice of the United States has
mocked the value of law review scholarship.50 If the mission of the profession
as a whole is served by scholarship, how is that mission served by producing
scholarship that no one cites? There are possible answers to that, but all
involve an awkward claim that much expensive work of no real value has to
be created to get to a smaller amount with real value.
Last but not perhaps not least is the question of how the scholarship itself
is supposed to provide value. Clearly, scholarship adds to the store of human
knowledge. But, for what purpose?51 Different academics might give
48
Thomas A. Smith, The Web of Law, 44 SAN D IEGO L. REV. 309, 336 (2007) (Forty
three percent of law review articles not cited even once); Deborah L. Rhode, Legal
Scholarship, 115 HARV. L. R EV. 1327, 1331 (2001) ("A survey undertaken for this Essay
found that, of all law review articles published during the 1980s and early 1990s, more than
half had never been cited."). See also R ICHARD A. P OSNER , OVERCOMING LAW 100 n.24
(1995).
49
A recent calculation estimated that the annual US cost of producing law review articles
is in the neighborhood of $240 million Jeffrey L. Harrison and Amy R. Mashburn, Citations,
Justifications, and the Troubled State of Legal Scholarship: An Empirical Study 11,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2569499. Another legal academic put
an estimated cost of $25,000 to $100,000 on each law review article. Paul Caron, Cost of a
Law Review Article: $100,000; Student Debt to Pay for it: Priceless, T AXP ROF B LOG,
Thursday, April 21, 2011, http://taxprof.typepad.com/taxprof_blog/2011/04/the-cost.html.
While the accuracy of these numbers can fairly be debated, it nonetheless seems clear that
taking into account professorial time and the maintenance of research resources, legal
scholarship is an expensive proposition.
50
See Chief Justice of the United States John G. Roberts, Jr., Interview at Fourth Circuit
Court of Appeals Annual Conference, available at www.c-span.org/video/?3002031/conversation-chief-justice-roberts at appro. 30:40 (June 25, 2011) (“Pick up a copy of any
law review that you see and the first article is likely to be, you know, the influence of
Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which
I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the
bar.”).
51
Deborah L. Rhode, Legal Scholarship, 115 HARV. L. REV. 1327, 1330 (2002)
("Rarely does anyone get much beyond ‘the discovery of truth and the promotion of
knowledge.’ As an abstract proposition, that goal is difficult to dispute, but it leaves all the
most important questions unanswered: Knowledge for what? For whom? To what end?")
24
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different answers, from promoting social justice to enhancing economic
efficiency to simply expanding the range of intellectual endeavor. The point
is, under Freidson’s model the ideology has to provide a unifying mission for
those in the profession, as well as a justification for those outside the
profession to continue to accept the profession’s sheltered status.
Over the longer run, the issue with law school ideology may be the
profession’s ability to persuade other actors that the value offered deserves
special market protections. The high regard given both higher education and
the traditional legal profession by the American public have created a bit of
a protected space for legal scholars, where the crisp articulation of a value
proposition has not been of pressing importance. That has led to important
market protections via the ABA accreditation process; students desiring a
degree that will allow them to take the bar exam in any US state must go to
an ABA law school that meets standards largely laid down by the academy
itself. That privileges the academy.
At one time, the benefits to the academy and the profession were linked.
As time has gone on, however, the link between the profession and the
schools that train its members have become attenuated. Legal educators find
themselves pursuing different interests, and subject to different incentives,
than practicing lawyers. The split is demonstrated not just by the pervasive
oversupply of law school graduates (from the perspective of practicing
lawyers) the legal academy has provided over several decades, but more
recent allegations that loose admission standards prompted by financial
exigency have led to lawyers becoming “dumber.”52 The lack of linkage has
the potential to threaten the support of judges and practicing lawyers for the
legal academy’s privileges.
The rise of counter narratives about the legal academy – that legal
scholarship is not useful to society or to law students (or at least not useful
enough to justify the investment) or even that legal scholars are scamming
and exploiting tuition paying students – also threatens, over the long run, the
durability of those privileges. In addition, as we shall see in the section
examining the practice of law, the reputational penumbra of the legal
profession may be worth quite a bit less than it used to be, and higher
education faces its own reputational and financial challenges, increasing the
need for a sharply drawn value statement. As critics inside and outside the
academy criticize whether legal academics are using their privileged position
to pursue a public purpose, naming and defending that purpose becomes
critical.
6. Conclusion.
In the short run, the academy’s control over the accreditation process
52
Are Lawyers Getting Dumber, B LOOMBERG B USINESSW EEK, August 24, 2015.
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25
seems more than sufficient to withstand today’s challenges – indeed, even in
the midst of the financial crisis following the 2008 market collapse, groups
within the academy were able to extend requirements beneficial to certain
subsets of legal educators.53 While the academy has downsized in the wake
of falling applications, the consequences so far seem to be limited, with the
most striking changes being the vastly increased difficulty of joining the
academic guild54 and the reduced requirements for law school admission at
the lower ranked schools, changes that seem to benefit the incumbents
perhaps more than society.
Over the longer term, Freidson reminds us, occupations hold professional
privileges and monopolies because other actors in society permit it to happen.
The question then becomes whether the academy can continue to persuade
other actors that it has been a responsible steward of the privileges granted to
it. So long as the main highway to practicing law runs through an accredited
law school, a legal academy will survive – perhaps smaller, perhaps engaged
in more than the usual self-examination, but still alive and still in control of
its workplace. However, the path of that highway depends on the good graces
of actors outside the legal academy – the practicing lawyers at the ABA, the
state supreme court judges who decide who can sit for their state’s bar, and
the government officials who decide who gets to accredit law schools. If
those actors decide that the public interest could be well served by another
model – say, online law schools not engaged in research but graduating
lawyers at a low cost – the continued existence of the legal academy as we
know it is far less certain.
In light of the longer term challenges, the legal academy might do well to
sharpen its understanding and, just as importantly, its proclamation of its
socially essential role. As we shall see, that work is difficult and socially
valuable does not lead inexorably to practitioner control of the workspace.
That only comes if other elements of society believe and sacrifice interests of
their own in light of the featured value proposition.
B. SEO
Unlike lawyering or the academy, search engine optimization can claim
no ancient roots. As an offspring of the commercial website internet, SEO
53
The ABA imposed a requirement that graduates of accredited law schools earn six
credit hours in ‘experiential’ courses, a requirement that was lobbied for and was seen as
beneficial
to
clinical
faculty.
http://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissi
ons_to_the_bar/governancedocuments/2015_standards_303_304_experiential_course_requ
irement_.authcheckdam.pdf;
http://taxprof.typepad.com/taxprof_blog/2013/12/abaconsiders.html
54
B ARTON, H ALF FULL at 164 (“New tenure track hiring is in free fall, shrinking more
than 50 percent between 2011 and 2014.”)
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dates back only to the mid-1990s. Since those recent beginnings, SEO has
become a central part of marketing, and a substantial business in its own
right.55
SEO consulting is a subset of marketing. Marketing is the craft of
bringing a brand or a product to the favorable attention of consumers. Within
the broader realm of marketing – which includes everything from roadside
signs to television ads to brand building retail store experiences – lies the
field of internet marketing, which involves marketing conducted via the
internet medium, including email, social media marketing, and branded sites.
Within internet marketing is search engine marketing, which includes
marketing conducted through search engines, and which includes paid
placements as well as ranking in unpaid, ‘organic’ search result. Search
Engine Optimization, or SEO, is the craft of helping sites and pages within
sites rank highly in those organic, unpaid results on valuable keywords.56
Internet marketing became possible in 1989 when Tim Berners Lee
invented the http protocol, and thereby the World Wide Web. The Internet,
in the sense of an interconnected network of networks, had existed prior to
that date, and even before Lee’s innovation there were tools to locate the
limited number of resources online.57 Berner Lee’s innovation nonetheless
marked a vast step forward that transformed the online experience, providing
an easily mastered way to call for and link to resources.
In 1992, there were only 130 websites. By 1996, the number had exploded
to an estimated 600,000.58 The number of users of the internet also exploded,
going from a handful of users to something approaching a mass market by
1996.
As web destinations multiplied, two things happened. First, users needed
a way to sort through the increasing number of websites in order to find their
way to the sites that met their needs. Second, operators of websites needed
ways to generate visibility so that users could find them.
At first, link directories such as Yahoo answered that need. Webmasters
55
Greg Lastowka, Google's Law, 73 B ROOK. L. REV. 1327, 1346 (2008) (Describing
the ‘profitable business’ of SEO and estimating it to be a $4.1 billion business as of 2008)
56
See generally, B RUCE CLAY & SUSAN ESPARZA. SEARCH ENGINE OPTIMIZATION
ALL- IN -O NE FOR DUMMIES (2012); ERIC ENGE, STEPHAN SPENCER , J ESSIE S TRICCHIOLA
& R AND F ISHKIN , T HE ART OF SEO (T HEORY IN P RACTICE ) (2012)
57
J OHN B ATTELLE , T HE SEARCH: HOW GOOGLE AND I TS R IVALS REWROTE THE
RULES OF B USINESS AND T RANSFORMED OUR CULTURE 39 - 42 (2005). (Hereinafter,
B ATTELLE, T HE SEARCH) Programs nicknamed Archie and Veronica could, via the FTP
protocol, search the titles of documents residing on machines attached to the network, but
could not search the text of the documents. The interface was also much more austere than
even the early search engines. As one old enough to have used the pre-WWW internet, I can
bear witness that the differences between what existed before the WWW and what soon came
to be are difficult to overstate.
58
B ATTELLE, T HE SEARCH 40.
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27
would seek to be included in link lists and directories. Users would browse
the link collections to find what they wanted.
Soon, however, directories proved unable to keep up with the growth of
users and sites. Part of it was the ever increasing scale of the internet, with
more sites added monthly then daily then hourly than had existed just a short
while before. The human editors of the directories proved unable to keep up
with the ever increasing scope of the web. Another part was the difficulty of
capturing all those sites in a hierarchical structure. It became ever more
difficult and ever less useful to try to place sites in an appropriate category.
The first internet search engines stepped forward to provide a better
solution.59 Search engines share three elements. Software ‘crawls’ or
‘spiders’ the internet, following links to identify as many sites as possible,
and analyzing the content on the pages. Second, the content of the pages that
have been located is indexed into a database. Last, some kind of interface
sorts the database based on the user’s search and makes the search results
accessible to the human user.60
By 1995 search engines had begun to appear that contained all of these
elements. Early search engines such as WebCrawler, AltaVista, Lycos, and
Excite were able to penetrate much deeper than directories into the internet,
and to bring back results not reflected or incorrectly categorized in the
directories.
The early search engines were limited by their technology, which looked
principally to the content of the pages they indexed. This led to problems of
unintentional exclusion from the results, as well as to vulnerability to being
manipulated. If the terms in the search did not appear on the page, they would
not appear in the index, and so the page would not be returned in any search
results for those terms. In the early days, this meant that misspellings, as well
as use of alternate terms (sneakers instead of tennis shoes, for example),
would make a page invisible to searchers looking for what the page
contained.
The other problem with on page analysis was ranking the sites that did
contain the sought after words. If, as was true in the earliest days, a site
jumped to the top of the search results simply by having the word appear the
most times on a page, sites that simply repeated the terms over and over could
gain precedence. To the extent the terms could be stuffed into areas of the
page invisible to humans – metatags, for example, or in type that was coded
to be the same color as the background – the words that generated the search
result might not even be visible to the human searcher.
Almost as soon as directories and search engines began to direct
59
For a discussion of the origins of internet search, see generally, B ATTELLE , T HE
SEARCH 39 – 63.
60
B ATTELLE, T HE SEARCH 20.
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meaningful traffic to sites, consultants arose to help web site owners take
advantage of them. These consultants would help get websites listed in the
directories61 as well as guiding them on how to structure their web pages so
as to rank well in the search engines. This was the beginning of the Search
Engine Optimization consulting industry.
From the beginning, SEO split into “White Hat” and “Black Hat” camps
– terms that mean more or less what one might guess.62 The “White Hat”
camp, in line with traditional marketing concepts, looked to the long time
building of a brand, and avoided techniques that were deceptive or could
reflect negatively on the brand. Members of the “Black Hat” camp advocated
using whatever means worked to gain a top ranking, even if those methods
were deceptive or misleading.63 Many of the “Black Hat” consultants worked
for or with businesses, such as porn sites or fly by night marketers, where
branding mattered less than capturing near term attention. Members of the
“White Hat” camp often saw members of the “Black Hat” consultants as
dodgy; members of the “Black Hat” camp often saw members of the “White
Hat” camp as stodgy.
The early search engines focused on the information contained on the web
site page, which made them relatively easy to game. As time went on,
operators of the search engines tweaked their algorithms so that simple
keyword packing no longer worked. Techniques that were recognized as
manipulative were penalized. If a word appeared more often than it should
based on natural language patterns, it was banished to the bottom of the
results.
The ongoing efforts of the search engines to resist manipulation increased
the demand for search engine optimization expertise. As more sites vied for
top ranking on commercially meaningful terms, failure to optimize for the
most recent search engine algorithms could lead to invisibility in the search
results. Even for sites that rank, a number one ranking can generate several
times as many click-throughs as a ranking lower on the first page of results.64
In a sense, search engine optimization helped create its own customer base as
manipulation and the search engine’s response to manipulation made more
Not as simple a task as it might appear – in the relevant time period, submitting a site
for inclusion was often ineffectual, while obtaining a link from a high traffic and respected
site would cause the indexers to include it.
62
See ERIC R AY, DEBORAH S. R AY & R ICHARD SELTZER , THE ALTAV ISTA SEARCH
REVOLUTION 140-141(2 D ED. 1998) (Discussing how a ‘sub-industry’ of index spamming
was distorting AltaVista search results; of 20,000 daily submissions for listing in AltaVista,
12,000 were for spam pages)
63
The parallel between lawyers espousing a sense of “professionalism” and those happy
to be “hired guns” should be obvious.
64
ERIC ENGE, S TEPHAN SPENCER , JESSIE S TRICCHIOLA & R AND F ISHKIN, T HE ART
OF SEO (T HEORY IN P RACTICE ) (2012) (K INDLE LOCATIONS 517-570)
61
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manipulation necessary. At the same time, the search engines in effect
became the regulators of search engine promotion, given their power to
banish sites that were caught engaging in over the top manipulation.
By the late 1990s, however, the early search engines were losing the battle
against those who would manipulate search results – and especially against
the black hats. To cite one clear example, by 1998 the majority of results
ranking high on a search for “cars” on Lycos were porn sites.65
This breakdown created an opening for a new search engine that had
grown out of a graduate research project at Stanford. Two graduate students
at Stanford looked beyond the web page itself to categorize and, more
importantly, rank the page. Sergey Brin and Larry Page looked to how many
pages linked to a page and to the anchor text for the link. The theory was that
each link constituted a kind of vote for the page, validating the usefulness and
appropriateness of the content. The term for the rank based on this inbound
link analysis was ‘Page Rank.’
The use of page rank made gaming Google harder than gaming other
search engines. No longer could an artfully designed page rise to the top of
the search results, based solely on what was on the page. The inclusion of
offsite factors required tools beyond what had worked in the past.
More complicated, however, does not mean impossible. As soon as
Google became an important source of traffic, efforts were made to drive sites
to the top of the Google results. Google, in turn, responded by tweaking its
algorithms. Google saw it as in its interest to promote to the top of the
rankings those sites that best met the needs of searchers, while SEOs tended
to see their interest in having their clients’ sites rank high on valuable search
terms.
A sort of arms race began,66 one that continues to the present day and is
likely to continue for the foreseeable future.67 SEO consultants would
respond to changes in the Google algorithm, adopting techniques to drive
65
B ATTELLE, T HE SEARCH 104.
Frank A. Pasquale, Rankings, Reductionism, and Responsibility, 54 Clev. St. L. Rev.
115, 130 (2006) Pasquale notes that such arms races often involve negative economic
externality.
67
While some claim we have reached the end of the era of SEO in light of the increasing
importance of social media and the refinement of the Google algorithm, Ken Krogue,
The Death Of SEO: The Rise Of
Social, PR, And Real Content,
FORBES.COM ,
http://www.forbes.com/sites/kenkrogue/2012/07/20/the-death-of-seo-the-rise-of-social-prand-real-content/print/, even Google has found it necessary to hire an SEO expert to help its
own web properties rank. Barry Schwartz, Google Is Hiring An SEO Manager To Improve
Its Rankings In Google, July 15, 2015 at 2:50 pm, SEARCHENGINE LAND.COM ,
http://searchengineland.com/google-is-hiring-an-seo-to-improve-their-ranking-in-google225320. There also remains the world beyond Google, with other search engines still holding
competitive market shares in foreign languages and in countries such as mainland China
where access to Google is sometimes blocked.
66
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their clients' sites to the top of the rankings for a valuable term. In turn, the
team formed to fight ‘web spam’ at Google tried to identify and defeat SEO
techniques that diminished the quality of results. If links in mattered, SEO
consultants delivered links. Reciprocal link exchanges formed to increase the
number of links in, even those these links did not represent the kind of sincere
'vote' for a site assumed in the early page rank analysis. When Google learned
to recognize and de-emphasize reciprocal links, networks were formed to
share links indirectly, and some webmasters found a new revenue stream in
selling outbound links. SEO consultants developed their own portfolios of
sites just to provide links. Google responded with tweaked algorithms.
Webmasters and SEO consultants remember major changes in the algorithms
– going by names such as Florida or Penguin - much as grizzled veterans
remember days on the battle field, with profitable websites turning
unprofitable overnight if they dropped in the search results. The head of the
Google web spam team developed rock star status in the web marketing
world.68
The field as it has developed usually looks to ranking well on competitive,
valuable terms. Some terms – say, “discount air fare” or “mesothelioma” –
get a commercially significant number of searches and have the potential to
generate significant revenue if the page is visited. To get visits via Google –
which for the 21st century has been the dominant source of web traffic for
North American and European site visitors – the page needs to rank highly –
the first ranked site gets far more traffic than the second, and so on, until those
on the second or third page see only a tiny fraction of the traffic seen by top
ranked sites. Getting a site to rank high on these free, “organic” search results
is the goal of SEO practice.
SEO can also be brought to bear to help a specific result rank poorly –
that is, to disappear and be forgotten in the flood of information. It may not
be possible, at least in much of the world, to force a site to remove a true but
unflattering story about an individual or a company.69 In some cases,
however, SEO experts can manage to make other results rank higher in all
likely searches for the offending page, effectively making it disappear from
discourse.
Google, and other search engines, also offer paid results, which on
Google appear in a distinct presentation either above or to the side of the
68
The leader of Google’s efforts to combat SEO spam, Matt Cutts, became a well known
figure in the field. Matt Cutts Gives Talk on White Hat SEO, SEOChat.com,
http://www.seochat.com/c/a/google-optimization-help/matt-cutts-gives-talk-on-white-hatseo/ ) ("Matt Cutts needs no introduction. He’s the closest thing the industry has to a rock
star.")
69
The European Union now recognizes a “right to be forgotten,” which can require
search engines to remove truthful web pages from their database.
http://ec.europa.eu/justice/data-protection/files/factsheets/factsheet_data_protection_en.pdf
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organic results. Google collects a fee for each click of these links, which on
competitive terms can cost anything from a few cents to hundreds of dollars.
The ranking of these paid listings is not based solely on how much is charged
per click, but on another proprietary algorithm that balances price, tracked
searcher behavior, and other factors. These paid results have led to a
complementary field of paid search engine management, where pricing and
tracking bids, writing the ad copy, and building the landing page for the click
are all the work of experts.
Results could be delivered by Black Hat or White Hat methods. A White
Hat SEO expert might encourage a client to write valuable copy that would
deserve links, and to organize the website in a search engine friendly way.
Appropriate, voluntarily given links from complementary sites might be
developed. These techniques are unlikely to damage the client’s brand if
revealed, and are unlikely to be penalized by Google as the algorithm evolves,
but might take time to yield results.
The techniques of Black Hat SEOs have changed more over time, but
sometimes involve deception and behavior that it is irritating to web searchers
and web site owners. It was Black Hat SEOs, for example, who pioneered the
kinds of bizarre, gibberishy pages that once appeared in search results, all
‘scraped’ from other pages, until Google figured out how to keep them out of
most results. If you’ve noticed bizarre comments with links to Viagra sites
posted on blogs that you read, that’s quite likely a Black Hat SEO at work.
The different approaches have led to efforts by White Hat SEOs to
differentiate themselves. In 2001, barely five years after the emergence of the
field, an SEO Code of Ethics was proposed.70 Some of the concerns addressed
by the Code also occur in codes of legal ethics – conflicts, client
confidentiality, honest dealing with clients and the public.71
One critical difference is that SEO codes of ethics are entirely voluntary
and not connected to any regulation of the profession. While SEO specialists
can face civil or even criminal liability for improper actions, no power exists
that can evict them from the occupation. Indeed, to the extent penalties are
imposed by the search engines to punish sites that have used forbidden
techniques, the burden falls on the SEO clients, not the consultant.
The SEO code of ethics also tends to be client facing, rather than public
facing. Rather than professing to respond to important public interests, the
provisions of the SEO code of ethics largely relate to fair treatment of clients.
In contrast to law and medicine, for example, there is not even an aspirational,
non-binding call for providing pro bono SEO service.
The work itself, done at any high level, is technical and demanding.
Search engine optimization requires a complex mix of skills. SEO expertise
70
71
http://www.bruceclay.com/blog/bruce-clay-lifetime-achievement-award/
http://www.bruceclay.com/web_ethics.htm
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begins with an understanding of the algorithms use to rank websites and to
penalize those they view as gaming or spamming the system. In most of the
western world, the algorithm that matters most by far is that of Google, but
other search engines can matter.72
Some of the issues addressed by a competent SEO will include where and
on what computers the website is hosted (there are bad server neighborhoods
on the internet, and if you host in a spammy neighborhood penalties can
attach); helping to define the marketing position of the site versus competitive
sites; developing lists of keywords, perhaps tens of thousands of keywords,
for which a high ranking would be valuable; designing the both the structure
of the website and the page by page design for maximum friendliness to
search engines (this can include paying attention to how well the search
engine spiders deal with web technologies such as Flash, Java, or streaming
audio and video); creating or guiding the creation of search engine friendly
content for the site; obtaining or preventing links from other websites; and
devising a system for tracking and analyzing the results of the strategies
applied. Pay per click results, such as are involved in obtaining traffic from
the paid results listed above or the side of the free Google results, involve
skills related to calculating bid prices, but also the design of ‘landing pages’
for those who respond to the ads, because high performing landing pages
cannot just improve average return per visitor but reduce the price Google
charges per visitor. Beyond search, a SEO consultant may become involved
in other aspects of online marketing such as social media marketing on sites
such as Facebook or Instagram.
Much of this work is assisted by software, which can help build lists of
keywords, find other sites that use those keywords and from which a link
might be helpful, or to track the impact of visits generated by specific
keywords. The work can be disaggregrated, with lower level consultants
tasked with securing links, building keyword lists or writing page copy. No
formal title or certification distinguishes the master practitioners, who will be
integrating SEO efforts into an overall marketing and business plan, with
limited role or apprentice workers.
By its nature, the SEO market is transnational. SEO shops from India or
72
In June 2015 US core market share for desktop search broke out with Google
generating 64..0% of searches, followed by Microsoft at 20.3 percent and Yahoo at 12.7
percent. No other search engine had more than two percent. comScore Releases June 2015
U.S.
Desktop
Search
Engine
Rankings,
COM SCORE ,COM.
http://www.comscore.com/Insights/Market-Rankings/comScore-Releases-June-2015-USDesktop-Search-Engine-Rankings. This understates Google’s dominance. Google’s market
share in both Europe and India exceeds ninety percent. None of these statistics account for
the mobile search market, where Google’s ownership of the Android operating system gives
it the default spot on the majority of mobile devices.
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33
Pakistan can, and do, market their services to customers in Europe or the
United States. SEO experts can work in-house as employees of companies
that operate websites, as solo practitioners, as employees of advertising or
marketing companies, as members of SEO consulting companies, or as
owners of their own websites dependent on SEO driven traffic.
Clients who are not themselves experts in search engine optimization will
find it hard to evaluate the quality of the services delivered at the time they
are delivered. Aside from the inherent complexity of the tasks, it can take
time for organic (that is, search results that are not paid for per click) search
strategies to produce results. Sites may not be spidered by the search engines
instantaneously, and strategies such as creating valuable content that will
generate authentic inbound links can take a long time to yield results. What’s
more, some strategies may appear to work very well at first, but generate
penalties later on if the search engine algorithms penalize the techniques for
being spammy.
As an occupation, SEO can demand as much intellectually as law practice
or law teaching, and doing it well or poorly can make or break a client’s
business. But where does SEO stand in terms of professional status? A view
through Freidson’s lens shows that SEO does not hold – and is unlikely to
hold – the kind of protected professional status held by the legal academy.
1. Specialized work.
Search engine optimization clearly represents specialized work in
Freidson's sense. As Freidson puts it, "certain work is so specialized as to be
inaccessible to those lacking the required training and experience, and the
belief that it cannot be standardized, rationalized, or as Abbott puts it,
'commodified.'"73 At any level beyond the entry level apprentice, SEO clearly
fits this model.
SEO begins with understanding how humans go about seeking
information. This includes how inchoate desires are turned into specific
search requests. It also requires understanding how information is scanned,
read and processed once presented. A competent SEO practitioner must have
a well-developed understanding of what terms searchers might use when
looking for the sites they represent, and how they process the results
presented.
The task then turns to understanding the search engines. As noted above,
SEO requires reverse engineering the ranking algorithms of Google and other
important search engines. These algorithms are not static, but change rapidly.
The search engines sometimes tell webmasters and SEO experts what
behavior they claim to favor,74 but the actual algorithms and the ranking
FREIDSON, P ROFESSIONALISM 18 – 35.
This was a task performed by Google anti-spam chief Matt Cutts, through industry
appearances and posted videos, among other methods.
73
74
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factors are closely guarded secrets. Assessing hundreds of rankings to back
out what Google seems to favor this month requires both expert knowledge
and ongoing, context sensitive evaluations.
The next step in the process - applying the reverse engineered model to
promoting a given site - similarly demands refined knowledge and sensitive
judgment. Winning the rankings battle for competitive terms will involve
applying the understanding of the ranking algorithm to factors as diverse as
server location, site architecture, page design, quality and quantity of inbound
links, all evaluated on an ongoing basis through sophisticated metrics.75
While settled understandings do exist that allow for best practices if not
outright standardization of some elements (sites should be designed in a way
that allows search engine spiders easy access to all pages for which rankings
are sought) others inherently demand subtle judgment, and judgments that
may need to be revisited over time (e.g., which links in are beneficial to a
site).
Further complications arise because what worked yesterday might not
work today, and what works today might not work next month. Indeed, once
standard practices that could be largely automated or delegated to amateurs –
such as seeking reciprocal links from other sites – now lead to penalties in
the ranking formula, or even being effectively banished from the results.
Putting together an SEO strategy requires a discretionary strategy that takes
into account not only what has worked in the past, but a sense of how search
engine algorithms might develop.
This sort of work fits, in many ways, the professional paradigm. At the
core of the work is a kind of technical knowledge that takes time and
intellectual ability to acquire. Beyond that, because the ranking competition
for each web site is different and because the rules of the ranking game
frequently change, doing the work at a competitive level requires the kind of
“reflection-in-action” that Donald Schon has described as characteristic of
professional work.76
Done properly, SEO is not work for amateurs if the goal is to rank high
on a competitive term,77 and if done improperly lasting harm can be done to
an online presence. In its overall intellectual complexity, it demands at least
75
For a presentation of some of the more important factors for SEO ranking, see The
Periodic
Table
Of
SEO
Success
Factors,
SEARCHENGINE LAND.COM ,
http://searchengineland.com/seotable
76
DONALD A. SCHON, T HE REFLECTIVE P RACTITIONER : HOW P ROFESSIONALS
T HINK IN ACTION 21-69 (1983).
77
Some SEOs prefer to sell their clients on ranking high on non-competitive terms –
often multiple word, long tail terms that receive many fewer searches. Ranking in the top ten
for “mesothelioma” is both difficult and lucrative; ranking in the top ten for “mesothelioma
lawyers in Minot North Dakota” is likely to be easier. In some business niches, ranking high
for a large number of lower traffic terms can be successful strategy.
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35
as much judgment and knowledge as most law practices. It also can be
extremely important to client interests – a website that ranks near the top for
a lucrative term will be highly visible and most likely profitable; a site that
fails to appear in the top 50 results for any important terms might as well not
exist for searchers. Put differently, SEO quality can make or break an online
site.
In the market, SEO consultancies are being driven toward broader
conceptions of knowledge discovery by changes in the internet – most
importantly, by the rise of social media, which has provided an alternate and
powerful path for directing people to information of value. One prominent
SEO firm rebranded in part to embrace this broader market.78 Perhaps the
next step, if the field continues to professionalize, will be to engage at a
deeper level with the science of information management, rather than solely
reacting to ranking algorithms created by others.
2. Exclusive jurisdiction/Monopoly Power.
SEO consultants enjoy no market protection. In the US, at least, anyone
who wishes to assert expertise can offer the service to anyone willing to pay
for it. The field, quite literally, is open to any high school kid sitting in his
underwear before a computer.
Professions always have to battle to obtain some degree of market
protection, but the task seems especially difficult for SEO consulting. The
inherently transnational nature of the internet makes national or regional
regulation difficult to implement. Beyond that, the diverse workspaces within
which SEO may be practiced – as an outside consultant, as an employee for
an marketing firm, as an employee or owner of a web site or web design
company – makes it difficult to assert exclusivity. There is no central figure,
such as a judge in a courtroom or a medical board of certification, which can
effectively block entry to the practice of SEO.
At the ‘professional’ end of the occupation – that is to say, at the end of
the occupation where those practicing it seek to avoid imposing costs on
consumers and seek to hew to a code of conduct – this creates issues of a type
anticipated by Freidson’s theory. The reputation of the field is affected by all
in it, and in the world of SEO that includes Black Hat SEOs inserting spam
links into blog comments or very marginal practitioners seeking to market
services of dubious value to unsophisticated customers.79 Those at the high
end have no way to block those with whom they have profound
disagreements from using the same occupational name.
78
A prominent SEO software firm formerly known as SEOMoz changed its brand to
Moz in part to reflect its changed focus toward broader marketing.. Rand Fishkin, Goodbye
SEOmoz. Hello Moz!, Moz.com, https://moz.com/blog/goodbye-seomoz-hello-moz
79
Danny Sullivan, Why People Hate SEO, SEARCHENGINE LAND.COM ,
January 8, 2013, http://marketingland.com/why-people-hate-seo-30201
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In light of Freidson’s functional theory of professions, being able to
obtain a monopoly lies at the core of professional structure. SEO has no
monopoly, and it is hard to see how it could ever achieve one.
3. Qualifying Credentials.
There are no credentials required to engage in the practice of SEO, and
efforts to create even voluntary credentials have not advanced very far.80 This
must be at least in part due to the rapidly changing nature of the expertise
involved – someone who qualified in, say, 2002, as an SEO expert would not
have the knowledge necessary to function successfully today. While other
fields, including law, require adaptation to change, the pace of change in the
internet sphere makes formulating the basic criteria for credentials difficult.
This lack of credentials plays a role in the field’s inability to block outside
competition. Even if the political will and a practical path could be found that
would allow protection of some kind of monopoly space, defining who fits
within that space now and in the future is difficult without credentials.
The lack of credentials also impacts the public. Absent credentials,
unsophisticated consumers are without signals as to which would-be
practitioners possess the level of skills, as recognized by their peers, that
would enable them to offer reliable services. More sophisticated consumers
can rely on brands and on signals such as being embraced by SEO community
sites such as SearchEngineLand.com or by major conferences; less
sophisticated consumers, unable to afford the premier consultancies, have
little way to know who possesses the basic competencies of SEO.
4. Formal Training Program.
At present, no industry driven formal training program is required. That
is not to say, however, that training is not widely available. A vast amount of
commentary, some reliable and current, some not, is offered online. As SEO
has become a big business, many of the larger organizations offer internal
training. Some universities include internet marketing as a course of study
within business programs.
Web sites also play a role. Large sites such as SearchEngineWatch.com
and SearchEngineLand.com, both founded by SEO pioneer Danny Sullivan,
provide frequently updated news and commentary. Such sites, along with
industry conferences, facilitate the formation of “communities of practice,”81
80
While SEMPO, the search engine marketing professionals trade organization, looked
into offering third party certification of SEO competency, Jessica Lee, The SEO Profession
Gets Serious: Third-Party Certification on the Horizon, 02/10/2011, B RUCEC LAY.COM ,
http://www.bruceclay.com/blog/sempo-seo-certification/ at present their website only lists
recommended training providers with no certification option. SEMPO Recommended
Training Provider, SEMPO. ORG, http://www.sempo.org/?page=rec_learning_tools
81
For a rich discussion of how communities of experts can help preserve knowledge and
build expertise, see E TIENNE W ENGER , R ICHARD MCDERMOTT, AND W ILLIAM M.
SNYDER , CULTIVATING C OMMUNITIES OF P RACTICE : A GUIDE TO M ANAGING
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where state of the art analysis and experiences can be shared.
In some senses, the training more resembles traditional guilds in that
practitioners, rather than academics, play a dominant role in disseminating
technical knowledge. The field has not yet evolved, however, to required
education outside the workplace. Unlike the guilds, however, there is no
requirement of proving mastery of the field of knowledge before opening for
business as a principal .
5. Ideology.
At present, nothing in the way of ideology exists to distinguish SEO from
other high intellectual content consulting professions. Reputable practitioners
clearly seek to deliver value to clients, but an overarching loyalty to a positive
public purpose does not seem to be widely expressed. Some – not all – do
embrace not causing harm, but without linking that a positive public purpose.
More than that, any ethics are voluntary - those seeking a professional
identity can embrace ethical guidelines, while those who prefer to view
themselves as simply serving the needs of clients can take on a hired gun
persona.
The white hat versus black hat divide allows for radically different
ideological approaches. The White Hats take an ethical, do no harm approach.
Black Hats, by way of contrast, seem to channel the mantra of the late
Oakland Raiders owner Al Davis – “Just win, baby.”
In general, the strongest claim to serve a higher good - not just not doing
evil, but delivering the most relevant possible results to searchers - is more
often made by Google. In the eyes of the search engines some SEO, at best,
shifts those results away from the ideal aimed at by the search engine
operators. SEO in general, and black hats in particular, can impose
externalities in society, elevating clients in the search ranks that may not be
the most relevant. Few would argue, for example, that any social goals were
served by having porn sites dominate the results for a search for automobiles
in the early search engines.
That said, many SEO consultants seek to act ‘professionally’ in much the
same sense that many lawyers seek to act ‘professionally.’ While they lack
the power to control the workplace in which SEO takes place and enjoy no
regulatory benefits, many White Hat SEOs seek to act in a way that embodies
the values of civility, integrity and awareness of the public interest that many
advocates of professionalism urge for lawyers. A White Hat SEO seeks high
ranking within certain rules, just as a lawyer seeks a good result for her client,
but within certain rules of engagement. Lawyers, for example, are expected
to be truthful with tribunals and to only advance arguments that have some
validity, duties that could be analogized to SEO.
KNOWLEDGE (2002).
38
A Tale of Three Professions
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The lack of a positive ideology for SEO – aside from serving clients well
and doing no harm – is interesting because there is a positive ideology to be
claimed. In an information age economy, the free flow of information
matters. If Dean Wigmore could assert that lawyers are the priesthood of
justice, it would seem that an SEO advocate could argue for SEO (or perhaps
the broader profession emerging from SEO that includes social media as well
as search engines) as being the priesthood of free and fair information flow.
Absent SEO, the sole arbiters of what websites can be found would be
Google and the other search engines. That gives vast, and unsupervised,
power to the search engines.82 While Google asserts a desire to not be evil,
the fact remains that by nature of the algorithmic choices it makes, it results
are bound to be biased – and undoubtedly biased in a way that makes
advertising on the site a winning proposition.83 Beyond that, Google is
intensively secretive in how it chooses to rank sites; there is very little
transparency in what makes sites winners or losers.84 While one can believe
Google designs its algorithms to make information as freely available as
possible, and that secrecy is a necessary cost of avoiding manipulation, the
proposition is unprovable.
In that context, SEO and its sister occupations have the option of claiming
the mission, the ideology, of protecting the free and unbiased flow of
information across the internet. If anyone deconstructs and publicizes how
Google and its peers choose to advantage or bury sites, it is the SEO field. If
any field stands prepared to correct unfairness in the discoverability of sites,
it is SEO. As the search marketing fields mature, it will be interesting to see
if they move beyond a narrow conception of helping clients win rankings
toward the kind of broader, public facing ideology that marks traditional
professions.
6. SEO Conclusion
From the perspective of the traditional professions, SEO presents an
interesting contrast. At an intellectual level, the high level work is as or more
complex as the work of most lawyers, and successful practitioners need to be
at least as smart.85 For workers at even a director level, the pay scale pushes
82
It has even been argued that the Google algorithm has the power to determine the
outcome of a US Presidential election by controlling in what order information reaches
voters. Robert Epstein, How Google Could Rig the 2016 Election, P OLITICO.COM , August
19, 2015, http://www.politico.com/magazine/story/2015/08/how-google-could-rig-the2016-election-121548.html
83
Greg Lastowka, Google’s Law, 73 B ROOK. L. REV. 1327, 1352-53 (2008) (Seeing
commercial and majoritarian bias in Google search results)
84
See generally, Frank Pasquale, T HE B LACK B OX SOCIETY : T HE SECRET
ALGORITHMS T HAT C ONTROL MONEY AND INFORMATION [chapter 3] (2015)
85
In my career, I’ve had occasion to attend on several different occasions conferences
of SEO experts, of law professors, and of practicing lawyers. My impression (anecdotal, not
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39
into six figures.86 The work has a public impact in an economy increasingly
driven by access to information.
In the sense in which being a professional means doing difficult,
technically intensive, client centered work for more than median
compensation, the higher levels of SEO certainly qualify as a profession. In
the sense in which being a professional means doing discretionary work
conscientiously, with an eye toward not causing harm, and with regard to the
values of civility, SEO certainly can claim many in the field who are that kind
of professional.
The split in the field between “White Hat” and “Black Hat” practitioners
also resembles a split in the legal profession between hired guns and those
asserting the values of “professionalism.” One part of the occupation defines
their mission in light of ethical precepts that should not be violated; the other
subscribes to an ideology of getting the best result for the client.
In Freidson’s sense, however, SEO falls short of professional status.
Those in the SEO field do not control their workspace, cannot exclude
miscreants and pretenders, and have not developed a mature, justifying
ideology. As an occupation, SEO practitioners must respond to the directives
of the market and employers.
For the purpose of our analysis, it is interesting how much SEO resembles
the modern practice of law. The work is comparably difficult and specialized,
and operates generally as a market driven consultancy. Lawyers, however,
have the ability to at least partially exclude others from their market, a power
that is not foreseeably within reach of the White Hat SEO element. The
question becomes whether something distinguishes lawyers today that
justifies their power to exclude competitors.
rigorous) is that the SEO mavens were at least the intellectual equals of the other two fields.
86
A somewhat unscientific indication of pay scales for younger but not entry level SEO
consultants employed in companies large enough to use the SEO Director title is provided
by PayScalecom. At Director level, SEO consultants tracked by Payscale earn $48,785 $140,670 with a median of $84, 700. Search Engine Optimization (SEO) Director Salary
(United
States),
Payscale.com.
The
http://www.payscale.com/research/US/Job=Search_Engine_Optimization_(SEO)_Director/
Salary. The median career duration for the 125 volunteers filling out the form data was less
than ten years, or roughly corresponding to senior associate levels in law firms. By way of
comparison, the PayScale.com data showed a median lawyer income of $76,970, lower than
SEO Directors, but their sample skewed toward lawyers with fewer years in practice, with a
median of four to five years in practice (the period when lawyers are most likely to use a site
like PayScale) and showed incomes trending up with years of experience.
http://www.payscale.com/research/US/Job=Attorney_%2f_Lawyer/Salary. The suggestion
of the PayScale data is the SEO can offer income opportunities equivalent to the median for
lawyers.
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C. Practicing Law
A cottage industry has arisen around analyzing the decline – if not yet the
fall – of modern American legal practice.87 A field that once provided the
definition of a profession has faced transformation, and faces more
challenges ahead.
Lawyers have been part of American culture almost from the time of the
first European settlers. While there have also been, almost from the
beginning, recurrent episodes during which the utility of lawyers has been
questioned, in general American lawyers have often enjoyed a privileged and
respected position. Alexis Tocqueville famously observed that in a country
without hereditary titles lawyers served as a kind of aristocracy.88
The structure of the modern bar took shape as the 19th century grew to a
close. The American Bar Association took form as a lobby and spokesperson
for the profession. The rise of modern format law schools and the parallel
spread of formal bar examinations gave entry into the profession a more
unified cast than the previous system of apprenticeships and examinations
before local judges. At around the same time, the first large corporation
focused firms arose in the large cities, a significant event even though those
first ‘large’ firms were small by today’s standards and even though most
lawyers remained in solo or very small practices focused on individuals.
By the mid 20th century the American practice of law reached a kind of
zenith.89 With the help of the American Association of Law Schools and the
87
DEBORAH L. RHODE, T HE TROUBLE WITH LAWYERS (2015); B ENJAMIN H.
B ARTON, G LASS H ALF FULL: T HE DECLINE AND REBIRTH OF THE LEGAL P ROFESSION
(2015); STEVEN J. HARPER , THE LAWYER B UBBLE (2013); SHELDON KRANZ, T HE LEGAL
P ROFESSION : W HAT IS W RONG AND HOW TO F IX IT (2013); MICHAEL H. T ROTTER,
DECLINING P ROSPECTS : HOW EXTRAORDINARY COMPETITION AND COMPENSATION ARE
CHANGING AMERICA'S M AJOR LAW F IRMS (2013); J AMES E. MOLITERNO, T HE
AMERICAN LEGAL P ROFESSION IN CRISIS : RESISTANCE AND RESPONSES TO CHANGE
(2012); R ICHARD SUSSKIND, T HE END OF LAWYERS (2010); T HOMAS MORGAN,
V ANISHING AMERICAN LAWYER ; DOUGLAS LITOWITZ, T HE DESTRUCTION OF YOUNG
LAWYERS: B EYOND ONE L (2006); DEBORAH L. RHODE, IN THE INTERESTS OF J USTICE:
REFORMING THE LEGAL P ROFESSION (2000); SOL M. LINOWITZ WITH M ARTIN M AYER ,
T HE B ETRAYED P ROFESSION : LAWYERING AT THE END OF THE T WENTIETH CENTURY
(1994); ANTHONY KRONMAN, T HE LOST LAWYER : FAILING IDEALS OF THE LEGAL
P ROFESSION (1993).
88
ALEXIS DE T OCQUEVILLE , DEMOCRACY IN America 252 (Harvey C. Mansfield &
Delba Winthrop trans. & eds., Univ. of Chi. Press 2000) (1835)
89
Michael S. Ariens, Legal Ethics in an Age of Anxiety, 40 ST. M ARY 'S L.J. 343, 421
(2008) ("The golden age for lawyers ran for about a quarter-century, roughly from shortly
after the end of World War II to the early 1970s. During this time, the demand for the work
lawyers performed outstripped supply. In the 1940s, the demand for legal services increased
86%, while supply increased 12%. In the 1950s, demand increased by 76% and supply by
35%. Lawyer income rose. Economist B. Peter Pashigian, while noting the limitations of
historical data, concluded that actual earnings of lawyers in the 1960s and early 1970s
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41
ABA, the rise of night law schools that might have changed the profile of the
profession had been contained. With sufficiently rare exceptions, entry to the
profession required a college degree, a law degree from an ABA approved
school with scholar faculty that still usually had friendly ties to practicing
lawyers, and passage of a bar exam administered and graded by committees
of the bar. Strong unauthorized practice of law provisions, whether by statute
or court rule, reserved the field of legal advice to lawyers. Border disputes
with potentially conflicting professions such as accounting were contained
via the use of carefully drafted documents that allocated types of work
between the fields, and which were available via the widely circulated
Martindale Hubbel legal directories.90 Competition was contained not just by
limiting law school places and controlling bar exam passage rates, but by
published rate schedules and bans on advertising that foreclosed naked price
competition. While antitrust laws nominally forbade price fixing and market
allocation, lawyers felt secure that they enjoyed a “professional” exception to
the antitrust laws. Lawyers had sufficient control over their workplace to
meet Freidson’s model.
In at least some areas, the idea of public service seems to have trumped
the notion of maximizing client welfare. In the tight knit group of lawyers
providing tax advice and opinions, the notion of public interest seems to have
served a constraining role. Tax positions that might seem reasonable and
supportable by statutory text were nonetheless measured against public
interest standards such as whether such positions would allow the state to
generate essential revenues.91
While lawyers of the era might have been less richly rewarded financially
than some of their successors, the ethos of the profession at that time has been
significantly exceeded his calculation for equilibrium earnings. There is some evidence that,
as earnings rose, the number of hours billed by lawyers declined during the 1960s through
the early 1970s.")
90
Deborah L. Rhode, Policing the Professional Monopoly: A Constitutional and
Empirical Analysis of Unauthorized Practice Prohibitions, 34 STAN. L. REV. 1, 9-10 (1981)
(Describing “Statements of Principles” market allocation agreements between bar
associations and other professional groups)
91
T ANINA ROSTAIN & M ILTON C. REGAN, J R., CONFIDENCE GAMES: LAWYERS,
ACCOUNTANTS, AND THE T AX SHELTER INDUSTRY (2014) (Kindle Locations 1306-1312)
(“Many influential members of the elite tax bar in the mid-twentieth century suggested that
the tax advisor’s distinctive role involved a dual responsibility to the client and to the tax
system as a whole. Prominent tax practitioner Seymour Mintz observed in 1963 that while a
sizable segment of the tax bar believed that the tax lawyer owed undivided loyalty to the
client, a ‘considerably larger group’ would say that there was something ‘special and
peculiar’ about tax practice. Similarly, Randolph Thrower, a private practitioner who served
as IRS Commissioner, emphasized that tax lawyers ‘are vested with a professional
responsibility to the public for both the law and its administration. One who recognizes no
such responsibility is not a professional.’”)
42
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described as “nobody starves.”92 The top incomes fell short of other fields,
but law school graduates were reasonably assured of a comfortable income.
At the same time, all was not perfect in paradise. The bar was remarkably
ingrown – the heightened educational requirements created class barriers, and
beyond that explicit hiring discrimination kept women, African Americans
and various ethnic minorities out of the elite practices. The bar of the 1950s
had little involvement protecting rights via the Civil Rights movement –
indeed, when one of Wall Street’s most distinguished firms appeared at the
Supreme Court in Brown v. Board of Education, it was to argue for the
continuation of segregation.
The bar also had not altogether succeeded in persuading non-lawyers – or
even its own members – that lawyers functioned as Wigmore’s priesthood of
justice. Lawyer jokes, for example, were merciless in depicting lawyers as
being engaged in the craven pursuit of money.93
In the ensuing years the protections enjoyed by the bar eroded. 94 From
the perspective of Freidson’s model, one profound change that precluded
lawyers from controlling aspects of their market was the erosion of antitrust
protection. In a series of cases, the Supreme Court found traditional practices
– practices consistent with Freidson’s model of occupational control of the
workplace – to be in violation of antitrust laws.95
The leading case was Goldfarb v. Virginia State Bar.96 In that case, an
‘advisory’ fee schedule for members of the Virginia State Bar set minimum
fees for handling a house closing at one percent of the price of the house.
When Lewis Goldfarb sought a lower fee, none of the dozens of lawyers he
contacted would offer a lower rate.
92
See, generally, MILTON C. REGAN, J R., EAT W HAT YOU K ILL: T HE FALL OF A
W ALL S TREET LAWYER 15 - 49 (2004) (Discussing the shift from a "nobody starves" model
of compensation in this era to one of "eat what you kill" in later years).
93
MARC G ALANTER , LOWERING THE B AR: LAWYER J OKES AND LEGAL CULTURE
(2005). One joke circulated in this era, for example, is the following: “The lawyer had
ordered a special suit made to order and when he went for the final fitting he was delighted
at the wonderful cut, the marvelous texture of the cloth, and the magnificent styling and lines
of the design. But when he went to put his money into the pockets, he found there weren't
any. ‘But why no pockets?’ he protested to the tailor. ‘It shouldn't make any difference,’ the
tailor answered. ‘Who ever heard of a lawyer with his hands in his own pockets?’” (Kindle
Locations 1065-1069)
94
Lawyers were not alone in this era in facing de-professionalization pressures. The
field of medicine also began a shift towards corporate and governmental control, with
insurance companies on the one hand and malpractice suits on the other confining the domain
of doctors. See generally, ELLIOTT A. KRAUSE, DEATH OF THE GUILDS: P ROFESSIONS ,
STATES, AND T HE ADVANCE OF C APITALISM , 1930 TO THE P RESENT (1996)
95
See generally, Thomas D. Morgan, The Impact of Antitrust Law on the Legal
Profession, 67 FORDHAM L. REV. 415 (1998).
96
Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975).
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A Tale of Three Professions
43
Goldfarb filed suit against both the state and county bar associations.
While the Fourth Circuit Court of Appeals found that there was a professional
exception to the antitrust laws,97 the Supreme Court disagreed.
Acknowledging the county bar association’s claim that “enhancing profit is
not the goal of professional activities; the goal is to provide services
necessary to the community,”98 the Court quickly found that irrelevant to the
case at hand. The court found that providing title search services was a
commercial service, and that private price fixing agreements fell squarely
within the Sherman Act. The Court left open an exception for state action,
recognizing that state regulation might at times conflict with market freedom.
Written in the post-Watergate era, when lawyers were part and parcel of
high crimes and misdemeanors, the Court’s opinion does not engage
seriously with the notion that lawyers represent a “priesthood of justice”
entitled to shelter from market forces. A Supreme Court that had more
personal familiarity with law practice than later courts seems not to have
found that congruent with their experience. Rather, absent state action,
lawyers were market participants subject to the laws governing other market
participants.99
In the wake of Goldfarb, other breaches were made into the walled garden
lawyers had enjoyed, some as the result of case outcomes, some as the result
of lawyers changing behavior as they recognized antitrust risk applied. The
market allocation agreements set with other occupations were, one by one,
withdrawn. Bans on lawyer advertising were found to be inconsistent with
the First Amendment.100 Psychologically, lawyers who had been told they
were market participants like any others, may have reconceived – or
continued reconceiving – what it meant to be a lawyer. By the time the
process was complete, any notion that lawyers were above or apart from the
market or external bureaucratic regulation was moot.101
Lawyers were not, however, entirely stripped of their market
protections. State unauthorized practice of law rules, set by courts or
legislatures, remained in place, despite growing academic criticism.102 The
97
Goldfarb v. Virginia State Bar, 497 F.2d 1, 4 (4th Cir. 1974), rev’d, 421 U.S. 773
(1975).
98
421 U.S. 786.
99
Whether the state action exception will prove as robust a barrier as it has in the past
is open to question following the Court’s decision in North Carolina State Board of Dental
Examiners v. FTC, 574 U. S. ____ (2015).
100
Bates v. State Bar, 433 U.S. 350 (1977).
101
Thomas D. Morgan, On the Declining Importance of Legal Institutions, 2012 M ICH.
ST. L. REV. 255, 263 ("The combination of First Amendment and Sherman Act attacks
made it inevitable that the idea that, as a profession, lawyers were self-regulating and thus
needed to look only inward was gone for good.")
102
Deborah L. Rhode, Policing the Professional Monopoly: A Constitutional and
44
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state action doctrine provided a shelter for economic activity that could be
tied to state regulation, muting the impact of antitrust applicability.103
The application of antitrust law had implications beyond the decided
cases. For example, to the extent lawyers wanted to wrest control over the
number of law graduates from the legal educators in order to limit
competition, the applicability of antitrust law clearly foreclosed that.
Limiting law student slots to prop up demand for existing lawyers – while
perfectly in accord with Freidson’s model – would seem to involve market
manipulation of the kind the antitrust laws forbid.
In any event, legal educators remained in control of legal education,
and law schools began to churn out vastly increased numbers of lawyers.
ABA accredited schools graduated 9,638 JDs in 1963-64, 22,342 in 1973,74,
40,214 in 1994-94, and a peak of 46,478 in 2012-13.104 The growth in law
graduates far outpaced any growth in demand for lawyers; while statisticians
can and do argue about how best to calculate the need for JD holders in the
economy no estimate shows demand at the level provided by law schools.105
Meanwhile, if contemporaneous participants are to be believed, there
was a change in the culture of law. Eminent practicing lawyers and academics
wrote elegies for the loss of the profession they had known, identifying an
increased focus on income as changing the very nature of practice.106 While
such complaints had been made before (perhaps with reason giving structural
changes in the bar at the time of the earlier complaints),107 the new complaints
correlated with the rise of a legal culture that largely ranked firms by profits
per partner.
By the early 20th century, the occupation presented a very different
profile than it had a half century before. Adjusted for inflation, the incomes
of solo and very small firm lawyers were undergoing a significant decline.108.
At the same time, incomes of top large firm lawyers had reached stratospheric
Empirical Analysis of Unauthorized Practice Prohibitions, 34 STAN. L. REV. 1 (1981);
Deborah L. Rhode, Professionalism in Perspective: Alternative Approaches to Nonlawyer
Practice, 22 N.Y.U. REV. L. & SOC. CHANGE 701 (1996); Gillian K. Hadfield, Legal
Barriers to Innovation: The Growing Economic Cost of Professional Control over Corporate
Legal Markets, 60 STAN. L. R EV. 1689 (2008)
103
Morgan, Antitrust at 441. (“If the move of lawyers toward ‘business’ is undesirable-not by any means a matter of consensus--the antitrust laws turn out to be neither the reason
nor a valid excuse.”)
104
B ARTON, H ALF FULL 122.
105
B ARTON, H ALF FULL at
106
Linowitz, Trotter, Harper. Kronman
107
See George F. Shelton, Law as a Business, 10 YALE L. J. 275, 275 (1900); Robert
Reat Platt, The Decadence of Law as a Profession and its Growth as a Business, 12 YALE
L. J. 441 (1903); George W. Bristol, The Passing of the Legal Profession, 22 YALE L. J.
590 (1912-13); J ULIUS HENRY COHEN, T HE LAW: B USINESS OR P ROFESSION? (1916)
108
B ARTON, H ALF FULL
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heights. Powerful in-house counsel were looking for new ways to cut costs,
and were able to move work to different kinds of service providers in search
of the most cost effective solutions.109 More and more lawyers worked in
large organizations of one kind or another, subject to control by their
superiors.
By the early twenty first century competition between lawyers had
become intense. At the high end, large firms were under pressure to keep
profits per partner at high levels – if compensation for top partners dipped,
they might decamp to another firm, which in the worst case scenario could –
and sometimes did – trigger a meltdown of the firm.110 At the small firm level,
relentless advertising and a surfeit of attorneys brought intense price
completion.
Even as there were ever more lawyers, access to legal services became
every more difficult for ordinary citizens.111 In an administrative state society
that is pervasively governed by laws and regulations, access to those who
could provide guidance was more and more dear. Even for those who are
guaranteed access to lawyers – indigent criminal defendants – imposition of
crushing workloads made it unclear that effective help was being
delivered.112
All this, and the prospect of equally radical changes in the legal
services field ahead, have led to the torrent of books and articles examining
the profession. A question explicitly stated by many, and implicitly by others,
is whether law remains a true profession. Are market protections justified?
We will look at law practice through the lens of Freidson’s model, comparing
it to the legal academy and SEO consulting, to get a better sense.
1. Specialized work.
Law practice is specialized work, but as the nature of law practice changes
in today’s globalized regulatory state, the nature of that specialized work has
undergone substantial change from the days of the common law lawyer.113
There was a time when most lawyers were generalists with at least some
connection to courtroom practice; today, most lawyers are specialists, with
many having only tangential connections to the world of the courts.
At a day-to-day level, partners in the same firm may not have the
specialized knowledge to cover for one another, while non-lawyers may have
109
See generally, Milton C. Regan, Jr. & Palmer T. Heenan, Supply Chains and Porous
Boundaries: The Disaggregation of Legal Services, 78 FORDHAM L. REV. 2137 (2010)
110
For the pressures facing large firms, see Larry E. Ribstein, The Death of Big Law,
2010 W IS. L. REV. 749 (2010).
111
RHODE, T ROUBLE ; B ARTON, HALF FULL
112
RHODE, T ROUBLE 30-59.
113
Ray Worthy Campbell, The End of Law Schools, __ M ISS. L. J. __ (forthcoming)
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that expertise. Providing tax advice is an occupation – one that can be
engaged in by lawyers and non-lawyers alike. Similarly, dispute resolution
as an occupation can involve lawyers, but it can also involve mediators,
professional negotiators and even vendors of software platforms. Advising
on corporate hiring and employee benefit plans can be the province of
lawyers, or it can be the province of consultants who specialize in that field.
Given the non-substitutability of one kind of lawyer for another, and the
non-lawyer alternatives for solving the same problem, is lawyering a
common kind of specialized work in Freidson’s sense? A generation or more
ago, John Heinz and Edward Laumann identified two hemispheres in the
practice of law in Chicago, with one set of lawyers, from one set of schools
and one set of backgrounds, serving corporate interests, and another set of
lawyers, from another group of schools and divergent backgrounds, serving
individuals and very small enterprises.114 As time has gone on, the two
hemispheres have grown more distinct, while within the hemispheres there
has been further division into specialties – specialties driven by narrow legal
expertise (e.g., international tax or family law), by particular kinds of
processes (e.g., take over battles or residential house sales), or by industry
expertise.115
In this world, the kind of specialized work done by lawyers provides less
cohesion, perhaps, than it did in an era when common law lawyers provided
similar kinds of more generalized legal expertise. Analyzing legal doctrine
remains relevant to most lawyers, but we no longer live in an era when
lawyers from diverse practices can meet in a common setting and share craft
knowledge. This does not seem to have penetrated the self-perception
lawyers have of themselves as belonging to a common profession, at least as
articulated by industry organizations, but as the atomization into blended
specialties involving a bit of law and a bit of industry or process expertise
continues, the sense of unity will be ever harder to maintain.
2. Exclusive jurisdiction/Monopoly Power.
Lawyers retain significant exclusive jurisdiction powers. Practice in most
courts remains the exclusive realm of licensed lawyers. Beyond that,
unauthorized practice of law rules prevent non-lawyers not only from holding
themselves out as lawyers, but also from giving personalized legal advice to
lay people.
At the same time, where corporate clients are concerned, the existence of
114
See JOHN P. HEINZ & EDWARD O. LAUMANN, CHICAGO LAWYERS: T HE SOCIAL
STRUCTURE OF THE B AR (1982); JOHN P. HEINZ, ROBERT L. NELSON, REBECCA L.
SANDEFUR, & EDWARD O. LAUMANN, URBAN LAWYERS: T HE NEW SOCIAL S TRUCTURE
OF THE B AR (2005)
115
Ray Worthy Campbell, The End of Law Schools: Legal Education in the Era of Legal
Service Businesses, __ M ISS. L. J. __ (forthcoming)
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the office of the general counsel has diminished the impact of the professional
monopoly on that side of the market, which happens to be the side of the
market where most of the dollars spent on legal services are spent. Lawyers
themselves, general counsels can source services from any vendor that helps
them do their job, and they have taken advantage of this to disaggregrate legal
work, shifting support work such as document review to outside vendors.116
General counsel can also turn to non-lawyer specialists such as tax
accountants or compliance experts to help them work through how best to
structure operations so as to avoid legal risk.
The impact of the monopoly is greatest on the side of the individual or
small business consumer, which in turn is the market most likely to find
access to legal advice inaccessible. While document assemblers such as
LegalZoom or RocketLaw can provide some services such as incorporation
or will drafting to such customers, the scope of what they offer – and hence
its utility to the consumer – has to be carefully limited so as not to cross over
into personalized legal advice.
What the monopoly still enjoyed does not do, either for large firm or small
firm lawyers, is to achieve its intended purpose under Freidson’s model –
reduce market pressures so that professionals enjoy a sheltered zone allowing
them to focus not on economic gain but on serving the public interest. Both
anecdotal stories and the falling incomes of small firm lawyers show them to
be engaged in a fierce battle for revenue compared to their forebears;
anecdotal evidence and ranking criteria such as the American Lawyer
rankings show big firms engaged in a contest where the winner is measured
by the highest profit per partner.
3. Qualifying Credentials.
The US stands apart from many other jurisdictions, where some period of
apprenticeship is required in order to enter the profession. Admission to
articles or apprenticeships has, in those jurisdictions, generally been more in
the direct control of the practicing bar.
In the United States, admissions standards are generally set by state
supreme courts, which in turn are generally made up of members of the bar.
There are two qualifying credentials usually but not quite universally required
to gain admission to a US bar. The first is a diploma from an ABA approved
law school. The second is passage of a bar exam.
In the past, possession of the first has tended to predict ultimate
possession of the second. Put differently, the first and most important gate
shut against those who would enter the profession was admission to an ABA
accredited law school. Those without the credentials or funds to get into an
accredited law school were absolutely barred in many states, and in a worse
116
See generally, Milton C. Regan, Jr. & Palmer T. Heenan, Supply Chains and Porous
Boundaries: The Disaggregation of Legal Services, 78 FORDHAM L. REV. 2137 (2010)
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position even in those states where the bar could be taken despite the absence
of an ABA certified degree. In the golden age of law, the relatively small
number of law school spots meant that the number of graduates were unlikely
to outpace demand.
Once possessed of an ABA accredited degree, the graduate can take the
bar in any US jurisdiction. States vary in their passage rate, and it has never
been the case that all graduates of ABA accredited schools pass, but in
practice the overwhelming majority do, with an overall estimated eventual
passage rate of 95 per cent.117 The high failure rate in some states – notably
California – is partially explained by the ability of graduates from
unaccredited schools to take the exam.
The administration and grading of the bar exam remains technically under
state supreme courts in most states, but with substantial input from a
nationalized bar examiner bureaucracy. As with discipline for practicing
lawyers, day-to-day operation of this professional barrier lies in control of the
bureaucracy, but in a way that involves active connections to the practicing
bar.118
The law degree credential has long passed from the control of the
practicing bar to the legal academics, who have incentives and interests quite
distinct from producing the optimum number of law graduates to meet public
needs. If acting as a guild, the incentives for lawyers would be to restrict the
number of law school slots to the level needed for the profession without
creating a surplus that would lead to the kind of competition antithetical to
Freidson’s model. Law school deans and faculty, and the universities that
host them, have quite different incentives – to maximize tuition revenue
through admitting more students, controlled not primarily by the market’s
ability to absorb graduates but by the school’s ability to keep credentials high
enough to maintain the desired ranking (which, for the lowest ranked schools,
may not be much of a limitation). Outside the law school itself, universities
often see benefits in the status of having professional schools on campus, as
well as the benefits of having professionals in the donor base.
In practice, since the mid-1980s the production of law graduates has far
outstripped the jobs available.119 A dramatic spike in law school attendance
in the 1970s (partly due to the entry of women in large numbers), followed
by more gradual but steady increases since, created an oversupply of licensed
lawyers. Significantly, small firm and solo practice lawyers – those least
insulated from generic competition – have seen a dramatic erosion in inflation
117
B ARTON, H ALF FULL 123.
For example, bar examiners, unlike law professors, generally need to be members of
a state bar.
119
B ARTON, H ALF FULL 121.
118
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adjusted income over the same time.120 Even though many law graduates
have been redirected to occupations other than practicing law, the oversupply
of law school graduates, driven by the profession’s inability to control the
credentialing educational program, may have resulted in reduced incomes.121
Law school applications – and hence admissions – have fallen in recent
years. The 2008 financial crisis had a knock on effect on legal employment,
which in turn eventually impacted law school admissions as a narrative of
debt-burdened but unemployed law graduates took hold. Some argue – and
others vehemently dispute – that graduate numbers and employment
opportunities will soon be in sync.
The most interesting development in recent years in terms of the
credentialing program, however, has occurred at the lowest ranked law
schools. Schools higher in the pecking order have reputations to protect, both
for the law school and for the overall university, and so have trimmed class
sizes, in some cases dramatically. While putting strong pressure on law
school budgets, this has enabled schools to retain rankings.
The lowest ranked schools faced different pressures and different
incentives. Even with reduced class sizes, school above them in the rankings
were taking students with credentials that once would have gained only
admission to the lowest ranked schools. At the same time, reputational
concerns were less intense – for a school already ranked in the bottom ten or
twenty, the drop to the very bottom may not loom so large.
These schools have in some cases chosen to maintain enrollment, while
sharply reducing the necessary credentials for entry. Grades and LSATs that
a decade ago would not have secured admission to any ABA accredited
school now secure enrollment – and perhaps even merit based financial aid.
When a dean candidate at one lower ranked school discussed, in a
presentation related to his candidacy, what impact these kinds of admission
policies would have on the likelihood that graduates could pass the bar
examination, he was quickly pulled off the stage and ushered from the
building.122
Pumping marginally credentialed candidates through law schools, which
in turn spend three years carefully coaching them to get past a bar exam,
seems very likely to impact the legal profession both economically and
reputationally. Despite that, in contravention to Freidson’s model, lawyers
have very little ability to control the quantity of ABA graduates pushed into
120
B ARTON, H ALF FULL 125
B ARTON, H ALF FULL
122
David Frakt, David Frakt on His Shorter Than Expected Presentation at Florida
Coastal School of Law, T HE FACULTY LOUNGE, August 18, 2014,
http://www.thefacultylounge.org/2014/08/david-frakt-on-his-shorter-than-expectedpresentation-at-florida-coastal-school-of-law.html
121
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the market.
Lawyers could lobby for higher failure rates on the bar exam to address
both the lower qualified graduates and the continuing oversupply, but this
seems unlikely to be effective. While bar examinations are conscientiously
designed and tracked, no written exam can fully measure the competency and
promise of a new lawyer. It’s not clear how effectively stricter exams would
screen those who needed to be screened. In addition, screening via a test when
someone who perhaps should not have gone to law school has invested
hundreds of thousands of dollars in a degree seems an inefficient, if not cruel,
way to gate admission to the bar. This, in turn, may impact much stomach bar
examiners have to go this route – especially as advocates from the legal
academy lobby, in line with their own self-interests, for lower standards. The
net is that the practicing bar has relatively little control over the entry of new
members of the profession, with control effectively having passed to the legal
academy, which at its lower end seems to be seeing less and less reason to
turn away applicants, however indifferently qualified, who can pay full
tuition.
4. Formal Training Program
In the US, lawyers go through the common formal training of law school.
As noted in the section on legal academia, the precise content of this training
program is not directly controlled by lawyers, but by legal academics. Bound
heavily by tradition, this training seeks to impart skills mainly related to
doctrinal analysis. In today’s world, law school is a necessary step for those
who would be lawyers. No one disputes that.
What is disputed is the degree to which law school actually prepares
students to practice law.123 The traditional emphasis on doctrinal parsing
neglects many of the skills necessary to actual practice as a lawyer – contracts
is taught as a matter of adjudicating contract issues, for example, rather than
as a matter of contract drafting.124 Also given short shrift are matters
important in actual practice such as working in teams.
Even the training in doctrinal parsing has more to do with method than
with substance. Given the proliferation of codes, cases and regulations, and
the intense specialization of today’s practice world, much of the law required
for certain specializations is barely, if at all, covered in the law school
curriculum. Practicing law thus finds itself in a curious position with regard
to the required formal training program – there is one common to all lawyers,
which certainly plays a role in building a common identity for those in the
123
David E. Van Zandt, Foundational Competencies, 61 RUTGERS L. REV. 1127, 1136
(2009) (“[N]o school has addressed the core competencies that it takes to be an effective
lawyer in a variety of organizations over a multi-job career.”).
124
See Edward Rubin, Why Law Schools Do Not Teach Contracts and What
Socioeconomics Can Do About It, 41 SAN D IEGO L. REV. 55, 59 (2004)
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field and providing core skills used by most lawyers, but with the sufficiency
of that training for the job of lawyering hotly debated.
5. Ideology.
Do practicing lawyers today follow an ideology of public service?
Certainly, some do. Extensive examples could be cited of individual lawyers
who have chosen paths that put service ahead of self-gain. That said, the
example does not prove the rule. Examples can also be cited of lawyers who
through their practice seek to model their religious beliefs, but their existence
does not make law practice an expression of any particular religious belief.
As Thomas Morgan has noted, there has always been a conflict baked in
to the notion of lawyers pursuing justice. Lawyers serve clients, and for a
given client the aim might be avoiding justice. In a competitive market – as
lawyers now face – few have the luxury of turning down clients who want
lawyers to use their skills, without fraud or deception, to help them get a
better result than justice might seem to require.
There are limits on lawyer conduct expressed in applicable codes of
ethics, but these codes stop well short of requiring a pursuit of justice. As is
true with SEO, the Code of Ethics governing lawyers turns out to be much
more client and lawyer oriented than public oriented, especially if one looks
to the provisions that can lead to discipline, setting aside the merely hortatory
public service language. The modern concept of lawyer independence might
seem elusive – how, after all, is it that an associate in a 2,000 lawyer firm is
sufficiently professionally ‘independent,’ as is an in-house counsel in a $50
billion corporation despite being subject to arbitrary dismissal, whereas an
attorney that seeks to represent the public from an accounting firm or the trust
department of a bank is not? As elusive as the concept may be, the ethical
sanctions attached to it are not. Similarly, real teeth attach to the provisions
that forbid aiding a non-attorney in the giving of legal advice to the public.
In contrast the provisions of the code speaking to the concept of public service
are hortatory, not mandatory - an attorney can refuse to do any pro bono or
to contribute to any legal aid funds and face no disciplinary sanctions. Put
differently, an attorney who takes time to train an employee of a non-profit
serving battered wives in how to properly file divorce petitions for the nonprofit’s clientele could face disbarment for aiding the unauthorized practice
of law; no penalties could attach to an attorney who sees it as not her problem
that battered wives cannot access desperately needed legal help.
Nor, contrary to Freidson’s model, do lawyers seem to have much ability
to pursue the public interest instead of the goals of their client. Like other
market driven consultants, lawyers are urged to identify principally with the
client and to serve client interests to the exclusion of other concerns, so long
as active dishonesty is not involved.
This client centered ideology seems to resemble SEO consultants more
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than it resembles the guild of academics. Rightly or wrongly, even White Hat
SEO consultants find themselves required to put client desires to rank well
ahead of helping to generate the best result for searchers. Rightly or wrongly,
legal academics still seem to see themselves engaged in giving law students
what law faculty believe they need, rather than what students might want –
courses delivered by professors with deep scholarly knowledge, for example,
or a full three year course of study rather than a more abbreviated course.
Lawyers are under ever increasing pressure to give clients what they want,
with the mandatory borders – consistent with other consultancies such as
SEO – set by concepts of fraud and fair dealing rather than adherence to an
overriding public interest.
Even if lawyers once did conform more closely to the ideal professional
model, there seems little reason to believe they can regain that status. The
imposition of antitrust regulation forecloses the creation of the kind of
economic shelter Freidson sees necessary to the profession. Beyond that,
lawyers have ceded training and certification to a legal academy that is less
and less connected to and concerned with the issues of the practicing bar. Last
but least, the culture of law as business has settled into the occupation in a
way that will be hard to dislodge.
6. Conclusion
Examined through Freidson’s model, aside from vestigial market
protections, lawyers are more professionals the way SEO specialists are
professionals than the way law professors are professionals. Like SEO
specialists, they perform difficult, sophisticated, discretionary work for
clients sometimes unable to assess the quality of their work, and like SEO
specialists many of them take pride in their craft and in generating excellent
results for their clients. Like “white hat” SEO specialists, many, almost
certainly most, are highly ethical in their day to day work, and view acting
ethically as part of the job.
Unlike legal academics, however, they do not control their own
workspace, and do not have the power to require clients to eat what they are
served. More than that, their role seems increasingly to be shaped by client
needs rather than an idea of public service.
The resemblance to SEO consultancies is noteworthy because SEO
specialists do not have, and cannot reasonably expect, to hold any market
protections of the kind enjoyed by lawyers. Like lawyers, they can choose to
do their job conscientiously and without involvement in any misleading
activities; unlike lawyers, they cannot reasonably expect to close the field.
Lawyers undoubtedly never quite mapped to the model of an ideal
profession, but what also seems undoubtedly true is that, despite the
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53
conservatism of practicing lawyers,125 today’s legal practitioners work in an
environment materially different from that faced by earlier generations. That
nostalgia for bygone Camelots is always with us does not mean that nothing
ever changes. Today’s lawyers seem more subject to immediate market
pressures, and driven by an ideology of client rather than public service. As
law morphs into a consultancy, that raises important questions about how law
should be regulated, and where society should look for protection of the
public interest.
III. WHY IT MATTERS
For some time, thoughtful commentators from both practice and the
academy have noted the change in legal practice.126 As illustrated by our
comparison of lawyers to SEO consultants and the profession of the legal
academy, lawyer today look more like client facing consultants rather than a
public service facing profession. Despite that, and despite increasing
alternatives to lawyers in the marketplace for some kinds of legal services,
little has changed in the way lawyers are regulated. The protections against
outsiders enjoyed in, say, 1985, are pretty much the same protections that
exist today. Even less has society engaged in a discussion of who – if anyone
– will serve the public purpose lawyers once claimed to serve.
A. If Lawyers Cannot Fulfill Their Public Purpose, Should They Enjoy
Regulatory and Market Privileges?
Lawyers today function as client oriented consultants, rather than as
servants of an abstract concept of justice. In firms large and small, they are
subject to the blunt competitive pressures of the market. Put differently, they
do not conform to the ideal professional model set forth by Freidson, a model
which in most respects conforms to the justifications for giving professionals
privileged status.
There can be no doubt that for some lawyers serving a public purpose
continues to provide motivation and definition, but as a profession the
available evidence indicates an occupation that puts client needs and personal
income first. The question arises whether lawyers should continue to enjoy
the significant market protections they enjoy.
The market protections enjoyed in the US appear to be somewhat broader
125
J AMES MOLITERNO, T HE AMERICAN LEGAL P ROFESSION IN CRISIS : RESISTANCE
RESPONSES TO C HANGE (K INDLE LOCATIONS 4236-4237) (2013)(“[T]he legal
profession is ponderous, backward looking and self-preservationist.”)
126
See eg MORGAN, V ANISHING AMERICAN LAWYER AT, RHODE, TROUBLE AT,
B ARTON, H ALF FULL AT .
AND
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in scope than is the case in other countries.127 In the United States, no one but
a licensed lawyer can give personalized legal advice to a consumer; in many
other countries, so long as no claim to lawyer status has been made, laymen
can give legal advice. The gap between US and other countries has been
broadened in some cases by legal reforms – the Legal Services Act in England
and Wales, for example, has allowed approved Alternate Service Providers
to enter the market place in competition with lawyers.
These protections carry a significant cost for society. One careful
estimate put the cost to society of the market protection lawyers enjoy at $64
billion for the year 2004.128 While the scope of the premium can be
questioned, it seems likely that the cost to society of foreclosing competition
is substantial.129
The cost may be even greater than it appears because it forecloses not just
services of the same kind offered by lawyers, but new kinds of services that
might arise to meet needs were it not for the legal barriers. 130 While form
vendors have made encroachments into legal services, their services have to
stop short of offering personalized legal advice – personalized advice that
might be well within the capability of their algorithms, and that would enable
consumers to receive a higher level service. For example, services can help a
consumer plug in blanks on a form, but asking the questions and giving the
advice that would direct the consumer toward the best form runs into
unauthorized practice of law provisions. This foreclosure of creativity also
carries cost.
Benjamin Barton argues that “Law may have changed less than any other
area of the economy between 1850 and today.”131 As Barton notes, law has
changed in tools (Victorian lawyers could not log on to online research
databases) and scope (firms with thousands of lawyers did not exist in those
days, nor did in house departments). But the kind of work – individual
lawyers sitting with clients and creating bespoke solutions – as it is practiced
by lawyers today would be familiar to lawyers of bygone eras.
It would overstate the case to say that lawyers – rather than legal services
127
Laurel S. Terry, Putting the Legal Profession's Monopoly on the Practice of Law in
a Global Context, 82 Fordham L. Rev. 2903, 2904 (2014) (US protections appear somewhat
broader but extent of scope in foreign jurisdictions is more complicated than the traditional
depiction of being limited to courtroom work.)
128
C LIFFORD W INSTON, ROBERT W. CRANDALL, & V IKRAM MAHESHRI, F IRST
T HINGS W E DO, LET’S DEREGULATE ALL THE LAWYERS 55 (2011).
129
B ARTON, H ALF FULL AT 265.
130
Campbell, Rethinking Regulation; Gillian K. Hadfield, Legal Barriers to
Innovation: The Growing Economic Cost of Professional Control Over Corporate Legal
Markets, 60 STAN. L. REV. 1689 (2008); Gillian K. Hadfield, Equipping the Garage Guys
in Law, 70 MD. L. REV. 484 (2011)
131
B ARTON, H ALF FULL at 2.
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– present a unique occupational exception. A Victorian tailor wandering into
a bespoke Savile Row tailor shop would understand the process, as would a
Victorian saddle maker looking into a custom saddle shop. A hostler
wandering through Central Park could critique the care of the carriage horses.
And so on.
What has changed in other fields has been how consumers go about
getting their needs met. In other fields, mass market, commoditized solutions
have been found that drive down cost and extend availability. Consumer
welfare has been improved by using LEDs instead of candles, automobiles
and subways instead of horse drawn transportation, and factory made fabrics
and clothing instead of hand woven, bespoke clothing. In law, the existence
of unauthorized practice of law provisions has locked non-lawyer consumers
into using only the traditional, bespoke model of legal services.132
The justification for such costs, under both Freidson’s model and
traditional justifications of professional status, is that professionals need a
sheltered space and a monopolized workspace so they can meet their duties
to the higher good – to be a priesthood of justice, as it were. Our analysis
shows, however, that lawyers no longer have a sufficiently protected space to
achieve that public purpose, if they ever did, and that to the extent they enjoy
shelter they seem to be using that for enhanced income rather than public
service. The remaining market protections cost society, but do not sufficiently
protect lawyers so that they can, as a broad profession, put public service first
with confidence that they will not be foregoing professional standing in so
doing.
It does not demean the many lawyers who embody ‘professionalism’ and
live by a sense of public purpose to observe that this is the state of today’s
profession, any more than it demeans White Hat SEOs who act
conscientiously and honestly to observe that their occupation also does not
hold the kind of professional status imagined by professional models.
Regulation of legal services should be tailored to the world as it is – not as it
once was, or as it once was imagined to be. In today’s world, lawyers respond
to either market or bureaucratic commands, and regulation should not assume
that the profession has the power to assert a goal of public service against
these forces. Regulation – while perhaps not devolving to full deregulation
or state control of lawyers133 – should accept that the beautiful professional
132
The regulation has different levels of impact on the corporate hemisphere than on the
individual hemisphere, as corporations avoid the bit of unauthorized practice provisions by
hiring services through the general counsel, a lawyer that provides the final services. See
generally, Ray Worthy Campbell, Rethinking Regulation and Innovation in the U.S. Legal
Services Market, 9 N.Y.U. J.L. & B US. 1 (2012).
133
An important public purpose is served by not having lawyers – who may need to
challenge the state – overly subject to state control. That said, there is no obvious reason why
allowing non-lawyer service providers into today’s market would lead to overbearing state
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model described by Pound and Wigmore, and articulated by Freidson, has
little bearing on today’s occupation, and should be designed to maximize
consumer welfare, taking into account new kinds of providers as well as
lawyers. At Thomas Morgan has argued, clinging to a notion of
professionalism that does not reflect reality simply gets in the way of adapting
to the world as it is.
There is, perhaps, scant chance of significant deregulation happening
anytime soon. The American Bar Assocation has proved itself to be a
powerful lobby on behalf of lawyer’s privileges,134 and it surely will be joined
by many legal educators, who have latched on to earnings premiums for law
graduates as a justification for high law school tuitions.135 In the long run,
guild protections tend to break down in the face of enabling technologies and
new business models,136 but the likelihood of it happening quickly in this
setting is low. Here’s the irony – if lawyers really were the priesthood of
justice, they would stay awake nights thinking of how to advance justice by
harnessing new technologies that allow new kinds of vendors to provide
access to legal services, and not stay awake night figuring out how to obstruct
and delay the provision of competing service providers.
Freidson, while recognizing that many different professions were under
pressure, did not forecast that professions would vanish or lose their market
protections.137 He saw some work sluiced off to more thinly trained
technicians, and saw professionals under pressure to become “especially
privileged technical workers”138 – that is, “[mere] . . . technical experts in the
control of lawyers.
134
RHODE, T ROUBLE W ITH LAWYERS 87; Benjamin Barton, In Defense of the Status
Quo: A Critique of the ABA’s Role in the Regulation of the American Legal Profession, 45
SUFFOLK U. L. REV. 1009, 1021– 1022 (2012); DEBORAH L. RHODE, IN THE INTERESTS
OF J USTICE : REFORMING THE AMERICAN LEGAL P ROFESSION 16 (2000).
135
Much of the discussion was sparked by an article that tracked the earnings of law
degree holders against a set of non-JD holders designed to be comparable in all relevant
respects other than holding a degree. The study found a substantial income boost for JD
holders, whether or not they worked as practicing lawyers. The findings of the article have
been robustly criticized and robustly defended. Michael Simkovic & Frank McIntyre, The
Economic Value of a Law Degree, 43 J. LEGAL S TUD. 249 (2014).
136
See CLAYTON M. CHRISTENSEN, JEROME H. GROSSMAN & JASON HWANG, T HE
INNOVATOR ’S P RESCRIPTION : A D ISRUPTIVE S OLUTION FOR HEALTH C ARE 103 (2009)
(“In nearly every instance of disruption we have studied, the survival instincts of the
disruptees—the prior industry leaders who are being disrupted—set in motion defensive
actions intended to slow the pace of disruption. In the end, however, the advantages that
disruptive competitors bring to customers in terms of quality, cost, convenience, and
accessibility become so apparent that the regulations are removed and the disruption
proceeds apace.”).
137
FREIDSON, P ROFESSIONALISM 209-13.
138
FREIDSON, P ROFESSIONALISM 209.
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service of the political and cultural economy.”139
In such a case, Freidson argues, professions will have retained some
economic protection but will have lost their ‘soul.’ As he puts it:
Their protective economic institutions will have survived, if
in somewhat attenuated form, but they will have lost what
has provided them with something more than technical
authority. Serving only immediate political, economic, and
popular interests cripples both the intellectual development
of disciplines and their distinctive moral position that
considers the use of their knowledge in light of values that
transcend time and place. Should that occur, the character of
their responsibility and their relationship to their societies
will have gone through a momentous change.140
If that happens – and Freidson’s predictions seem prescient -- it bears
thinking what that means for a society that acts as if professionals continue
to serve and protect a public purpose, rather than simply implementing client
goals.
B. Who Guards Justice?
Perhaps even more important that addressing the regulatory and
competitive issues relevant to lawyers goes to the role they once claimed as
their own – protecting the system of justice. If lawyers have devolved to the
level of price seeking market participants with neither the power nor the will
to serve a public purpose as part of belonging to the profession, a question
arises: who will fill that role?
In the world of legal academics, the public purpose – advancing thinking
into legal issues – belongs to the legal academy. Without the existence and
privileged position of the legal academy, there clearly would be less funding
for legal scholarship. Grant based funding, as is true in medicine and science,
often comes with conditions attached or from funders wishing to document a
point of view. A less complete control over the academy could lead to schools
where scholarship is devalued in favor of other goals.
In the world of SEO, the public purpose – the efficient flow of
information – is largely left to the market, with non-specific legal regulation
at the edges. Google and other search engines may need to worry about
antitrust challenges, for example, if they are seen to favor their own
proprietary products, but to a great extent a belief in a self-correcting
139
140
FREIDSON, P ROFESSIONALISM 212.
FREIDSON, P ROFESSIONALISM 213.
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marketplace controls.
Where justice is concerned, leaving things to the market is at best a
disquieting result. Legal services very often have external effects – a reported
decision binds succeeding litigants, a clever tax ruse diminishes public
revenues, a protective non-disclosure order limits the access of the public to
information that may be of public consequence. It would be reckless to
assume that a market riven with externalities would somehow map to the
public interest.
The issue is more pointed now that litigation has become an asset class.
Funders of litigation who enter the market in order to achieve an above
market return cannot be expected to be interested in the public interests of
justice, nor to hire lawyer consultants who substitute public service for their
goals in litigation.
Nor can we comfortably conclude that bureaucratic controls are
sufficient. Bureaucrats may impose unrealistic burdens or set unrealistic
expectations that favor statistics over realities. An example would be our
overburdened public defenders. Governments driven by budget concerns
sometimes load public defenders with case loads that cannot realistically be
reconciled with the level of service that ought to be provided.141
If lawyers are not able, or willing, to serve as guardians of justice, who
will? In health, institutions such as the Food and Drug Administration and
the National Institute of Health pursue broad public grants of authority on
behalf of health, a public purpose once supposedly served by the medical
profession. In law – aside from the courts, which see only a fraction of cases
through to conclusion and have little to no involvement with the vast
continent of legal services that do not lead to litigation – there are no
correlative institutions.
There are no quick answers here. Law differs from medicine, and
importing models that fit other settings seems unlikely to fit. That said, the
kinds of institutions that might look at legal services and ask whether needs
are being met are missing in the legal sector. Compared to the data that drives
major corporations, the data emerging from our litigation system is skimpy –
so skimpy it’s difficult to even draw firm conclusions about how and why
cases are terminated142 - and research into how law works on the ground also
See, e.g., Albert Samaha, Indefensible: The Story Of New Orleans’ Public Defenders,
posted
on
Aug.
13,
2015,
at
10:21
p.m.,
B UZZFEED,
http://www.buzzfeed.com/albertsamaha/indefensible-new-orleans-public-defenders-office
141
142
See generally, Theodore Eisenberg, The Need for a National Civil
Justice Survey of Incidence and Claiming Behavior, 37 FORDHAM URB. L.J.
17 (2010) (Arguing for better data on civil disputes); Theodore Eisenberg &
Charlotte Lanvers, What Is the Settlement Rate and Why Should We Care?, 6
J. EMPIRICAL LEGAL STUD. 111 (2009) (Discussing difficulties in
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A Tale of Three Professions
59
has been altogether too neglected.143
If lawyers are not paying attention to how the system of justice works for
all, however, someone needs to. The issue goes far beyond legal doctrine, and
to how legal compliance and understanding of legal duties works on the
ground. Critiques of the legal profession need to move beyond just the issue
of regulation of lawyers, and engage creatively with what kinds of institutions
could protect the concept of justice in today’s bureaucratic, market driven
world.
CONCLUSION
Our walk through Freidson’s model provides comparisons between three
occupations that are comparable in terms of intellectual demands and impact
on consumers. Of the three, only legal academics, sheltered by accreditation
requirements, seem to have the kind of control over their workspace
envisioned by Freidson’s model. The challenge ahead for the legal academy,
especially as it continues drift away from the day-to-day practice of law, will
be persuading the other stakeholders that its participants are serving a public
purpose that matters to the other constituencies.
As for law and SEO consultants, the question is this: how does law, which
enjoys important regulatory protections, differ from SEO, which does not?
The answer cannot be found in how lawyers perform in the market, because
practitioners from each field seek income from winning the competition in
the marketplace. In each field, individual practitioners display
‘professionalism’ and ethical behavior, but in neither field is active service to
a public goal – whether it be ‘justice’ or the fair flow of information –
required to participate.
The distinction lies in history. SEO consultants are new to the scene, and
have not wrested any shelter from the global marketplace they participate in.
Lawyers, coasting on centuries of being an archetypal profession, continue to
hold on to barriers to entry erected in generations past.
The barriers enjoyed by lawyers would not matter so much if it were just
a matter of limiting the market to those who are best at their traditional craft.
It matters more now because technology now offers the opportunity to bring
the kinds of efficiencies to legal practice that mechanization brought to other
trades, and the protections granted to lawyers stand athwart the possibility of
that progress.
In light of how lawyers function today, regulation of legal services needs
to be redesigned to serve the contemporary public interest. Lawyers will not
determining settlement rates and causes from current data)
143
See Deborah L. Rhode, Legal Scholarship, 115 HARV. L. R EV. 1327, 1340 (2002)
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go away – any more than bespoke tailors have gone away – but in light of the
access to legal services crisis room needs to be made for new methods of
delivering legal services. Just as importantly, deep and creative engagement
needs to begin about what honest brokers can fulfill the role of making sure
our system of justice functions fairly and equitably.