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On Professional Prerogatives, 37 Stanford Law Review 459 (1985)


Derek Bok seems to have struck a nerve. The accusation that

lawyers are parasitic, concerned with issues of distribution rather

than production, resonates with the current national mood, with

its resurgent glorification of the entrepreneur and its abandonment

of the social programs of recent decades.

The accusation prompts Robert Kagan and Robert Rosen to

question whether an imaginary "Czar of Personnel" would be

justified in assigning our best and brightest young people to careers

in prestigious corporate law firms. They conclude that such

assignments would be mistaken, since large law firm practice is of

"declining social significance." Lawyers engaged in such firm

practice no longer "serve as molders of corporate and public policy,

but instead have retreated to a narrow and technical legal


Thus, whereas Bok complains that lawyers are not productive,

that they do not make "the pie grow larger" but only "decide

how to carve it up,"' Kagan and Rosen issue a different indictment,

that lawyers are failing to provide enough ethical and social

guidance to corporate entities. If Bok's accusation is imbued

with the diminished expectations and deflated realism of the

1980s, Kagan and Rosen's retains the high aspirations and moral

promise of the 1960s. They remind us that there is more to life

than efficiency.

Their article thus raises issues quite different than those implied

by Bok's dour accusation. To evaluate whether lawyers are

really pulling their social weight, we would have to engage in a

rather hard-nosed assessment of the value we place on our pres

ent legal system, with its emphasis on judicial dispute settlement,

its focus on legal entitlements and duties, and its utilization of

the adversary system. But Kagan and Rosen appear uninterested

in this kind of an evaluation. They care about whether lawyers

can make a better pie, not simply a bigger one. Their focus is

thus on the extent to which lawyers can and should transcend

their role as mere "expert suppliers of legal information and as

performers of complex and specifically legal tasks," and assume

instead the socially more important role of "independent counselors."

The question, however, is whether this is indeed a better

recipe for our social condition.

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