Some Realism About Bar Associations
23 Pages Posted: 18 Jun 2008
What are bar associations' responsibilities for law reform? Under what conditions do bar association committees act in the public interest? Do lawyers even believe in the 'public' interest as something that can be collectively defined?
The lawyer-statesman is a powerful icon among American lawyers. Yet many observers are skeptical that lawyers, individually or collectively, can set aside their clients' interests, political leanings, and other biases to serve as purely public-interested members of the 'governing class.' The empirical literature on bar associations likewise invites a certain amount of cynicism - or at least pessimism - about the possibility of public-interested law reform. Research shows that representative bar groups tend to be politically ineffective due to internal division. Most examples of effective bar influence involve elite, ideologically homogenous groups. Recent research on the effects of group deliberation on decision making also suggests some reason to be skeptical about the benefits of democratic deliberation for public policy outcomes.
This Article considers the implications of this research for the role and design of bar law reform committees. First, it argues that bar groups should be more explicit about the goals of law reform and the limits of legal expertise regarding contested political values. This does not mean that bar associations should avoid political engagement altogether, as some have suggested. Instead, bar associations should strive to set a public example of productive political debate by gearing their efforts toward research, fact finding, and the clear articulation of issues, rather than focusing primarily or exclusively on policy outcomes. The bar should also promote the associative and expressive benefits of civic debate. To the extent that law reform efforts raise divisive value questions, the bar should shift its attention from outcome to process, association, and expression.
The Article also proposes that, in designing committees, bar leaders should be attentive to research on bar associations and the dynamics of group deliberation and should strive to contribute to this research by testing proposed innovations - for example, the use of a facilitator. Such self-study would have immense value for the profession, both academically and practically, and would further contribute to the design of deliberative institutions. Systematic self-study would also go a long way toward grounding discussions of lawyer 'professionalism' and providing practical strategies for improvement.
Keywords: bar association, law reform, empirical research, deliberative democracy, group polarization
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