Lawyers in Backsliding Democracy

112 Pages Posted: 10 Jan 2023 Last revised: 7 May 2024

See all articles by Scott L. Cummings

Scott L. Cummings

University of California, Los Angeles (UCLA) - School of Law

Date Written: January 10, 2023

Abstract

This Article explores the role of lawyers in democratic backsliding—the degradation of democratic institutions and practices using law rather than violence. The Article’s central aim is to set an agenda and outline an approach to studying the professional paradox at the center of backsliding: why and how lawyers attack the rule of law. It thus seeks to shift the scholarly lens from the conventional view of lawyers as defenders of democracy to investigate lawyers as authors of autocracy. Toward that end, the Article theorizes the legal profession as a site of backsliding, outlining a framework that positions lawyers in relation to distinct pathways of autocratization on the slow road of gradual democratic decline and the fast track of imminent democratic attack. On the slow road, the Article draws upon evidence of structural change in the American legal profession to suggest how the erosion of key democratic functions performed by lawyers increases backsliding risk by reducing trust in the legal system and commitment to the rule of law. On the fast track, using the 2020 Stop the Steal campaign as a case study, the Article shows how lawyers in moments of democratic crisis engage in legal mobilization to weaponize distrust, fusing legal and media tactics to legitimize false claims and justify invocation of extraordinary power. The Article concludes by calling for changes to U.S. professional regulation and education to strengthen democratic resilience, while mapping a research agenda for comparative study of antidemocratic lawyering in unsettled times.

Keywords: democratic design, fragmentation, concentrated power, effective government, ethics, access to justice, rule of law

Suggested Citation

Cummings, Scott L., Lawyers in Backsliding Democracy (January 10, 2023). 112 Calif. L. Rev. 513 (2024), UCLA School of Law, Public Law Research Paper No. 23-01, Available at SSRN: https://ssrn.com/abstract=4321943

Scott L. Cummings (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States

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