The practice of American law is old, fragile and will break

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In late July, thousands of aspiring attorneys sat for the 2022 bar exam to earn the privilege to practice law in California. But those lucky enough to pass the outdated exam will enter a profession that is in desperate need of reform.

Lawyers received a wake-up call this summer when the Supreme Court revealed the ossification of the entire profession. At a time when the law should be focused on the needs of our grandchildren and their offspring, the practice of law in America is much more like the practice of your grandfather and perhaps even his grandfather. dad. It’s old, brittle and doomed to break.

After reading Dobbs v. Jackson Women’s Health Organization, the landmark Supreme Court decision that struck down abortion protections granted by Roe v. Wade and later cases, it is hard not to think that the practice of law is inherently, intentionally, and necessarily backward looking. The majority opinion in Dobbs, written by Judge Samuel Alito, referred to “the story” 67 times.

Judge Alito’s reliance on irrelevant and, according to the American Historical Association, misinterpreted historical information is indicative of an entire profession that has left the path of modernity and focused on whatever is necessary to protect the individual and ideological interests of today’s lawyers.

The spread of originalism, a theory of constitutional interpretation that underpins the Dobbs decision, has provided lawyers and jurists with a means to undermine attempts to view the Constitution from a modern perspective. This theory and its variants insist on prioritizing the perspective of the framers of the Constitution and the American public in 1789. As a result, the Constitution became fettered in ways the Founding Fathers never intended. Thomas Jefferson, for example, wrote that “every generation” should have the “solemn opportunity” to update the constitution “every nineteen or twenty years”, thereby allowing it “to be passed on, with reparations periodical, from generation to generation, at the end of time.”

If the Supreme Court and lower courts continue to tie the Constitution to inaccurate and irrelevant history, they will deprive younger and future generations of the ability to make “periodic reparations.” Struggling with precedents steeped in anachronisms, future lawyers will never have the chance to adjust our democracy to existential crises.

Even if the Supreme Court were to turn around and adopt a theory of interpretation grounded in modern realities, the legal profession fails to train lawyers in the skills necessary to skillfully perform the aforementioned remedies.

State bar exams, like those in California, perpetuate what is, at best, a practice of hazing and, at worst and more likely, a means of keeping the number of attorneys down so that hourly rates remain students. The exam rewards those who have the privilege of spending weeks memorizing rules they are unlikely to ever use while practicing rather than prioritizing the ability to critically analyze, seek the law, and present convincing arguments. Unsurprisingly, this outdated practice results in the legal ranks being filled with those who tend to benefit from inequality — typically, white males.

The legal profession must shed its unhealthy connection with the past. Severing these ties means developing new theories of constitutional interpretation as well as ending outdated practices that deprive the state and the nation of the benefits of a more diverse and better trained body of lawyers.

Here are three quick steps to begin this process:

First, the American Bar Association should make state constitutional law a required law school course. Making necessary repairs to the federal Constitution is much more difficult than updating state constitutions. Yet most law schools do not require their students to study the ins and outs of the constitution of the state in which they are located. By training attorneys on how to make such remedies at the state level, federal progress will become more feasible.

Second, the California State Bar should immediately discontinue its outdated exam and further extend reciprocity to other states. As mentioned, the test does not show who is capable of a good lawyer, but rather who has the ability and financial resources to memorize the laws they can Google. The result is a legal bar that doesn’t come close to reflecting the diversity of the state’s population. The state is also denied the benefit of a more diverse legal profession by the state bar which refuses to recognize licenses obtained by attorneys from other states. Most states recognize licenses from other states, but California refuses.

Third, law schools should reduce their reliance on large law firms. Even at a school like UC Berkeley School of Law, my alma mater, which purports to focus on justice and social progress, a substantial fraction of students follow the school’s easy path straight to “big law.” They spend years working at corporate advocacy firms to pay off their law school loans. Schools like Berkeley have huge endowments they could use to drastically reduce law school tuition so students don’t feel like they have to lock themselves into the golden financial handcuffs of the big law.

The law is a sword that can open the way to a better future. Instead, that sword has been sheathed – lawyers are forced to abide by outdated precedents, pass outdated exams, and follow outdated career paths.

“History” should not define legal practice. California deserves a legal bar that is proactive, diverse, and capable of preserving what makes this state a special place to live.

Kevin Frazier is a recent graduate of UC Berkeley Law School. He will serve as court clerk for the U.S. District Court in Oregon and the Supreme Court in Montana.

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