Jurisdictional Conflicts: A New Approach to the Development of the Legal Professions

Author:

Abbott Andrew

Abstract

This paper sketches a new theoretical approach to the study of professions and uses that approach to analyze differences that have emerged between the American and English legal professions since the late nineteenth century. Earlier studies have generally emphasized professional structure and organization while ignoring work and its control. I argue that control of work is central to professional development. Since work is central and since professions compete for it, interprofessional competition is the determining fact in the history of professions. This paper analyzes the work available to the legal profession, the numbers and types of legal personnel available to do that work, and the various competitors contesting it. Studying in detail complaints of unqualified practice in England (1870–1940) and two American states (1910–50), I locate the types of contested work and the competitors involved, using these to explain important aspects of the two legal prof essions today. Throughout, a variety of theoretical concepts are developed and applied to the particular case. One striking discovery is the contrast in competitors; American lawyers' chief competitors were corporations, while British lawyers' chief competitor was the state. I close by evaluating the strengths and weaknesses of the particular methodology here used—the study of conflicts—and suggest alternative methods using the same theoretical framework.

Publisher

Cambridge University Press (CUP)

Reference107 articles.

1. Friedman, supra note 33, at 555–56, suggests that collections had been an important area of work for nineteenth-century rural lawyers. The precarious quality of collection work in the twentieth century is shown by Carlin's data, supra note 13, at 118, showing how few lawyers specialized in it. It provided some work, but not enough to make a living.

2. 1933 NYCLA 262; 1936 ABCNY 249.

3. 1941 ABCNY 250.

4. 1921 NYCLA 174–75.

5. There were about 75,000 managing clerks in 1939, about 5 per solicitor. Abel-Smith & Stevens, supra note 21, at 3%. Johnstone & Hopson, supra note 21, at 401, put the figure at a much lower 30,000 as of the mid-sixties. The number of articled clerks was estimated at 5,000 by J. Addison in 1891 (1891 APMLS 154), giving an indication of the ratio (1 to 3) of clerks to solicitors. The present ratio is about 1 to 2. M. Zander, The State of Knowledge about the English Legal Profession 7 (Chichester, Sussex: Barry Rose, 1984). The Solicitors Act of 1843 £ 4 limited solicitors to 2 articled clerks each (see 1908 APMLS 238 on this issue). At least one contemporary saw professional overstock early in this century, J. W. Reid (in 1908 APMLS 236–41). Also, the professional imperialism noted below might indicate a sense of needing new work. There is some indication that the managing clerks were not docile underlings. When the state's invasion of legal jurisdictions began, at least some managing clerks deserted to the enemy (1892 APMLS 96).

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