Lawyers and Legal Consciousness: Law Talk in the Divorce Lawyer's Office

Abstract

Two very different pictures of mass legal consciousness 1 have wide currency in contemporary legal scholarship.The first is one of public cynicism, of instrumentalism without conviction, of citizens both litigious and, at the same time, alienated from the legal system. 2 This image of mass legal consciousness informs many accounts of the so-called "litigation explosion" ' and suggests that legal institutions are no longer accorded sufficient legitimacy and respect.It is deployed to identify and respond to the alleged erosion of public confidence in legal institutions.The second view of mass legal consciousness presents a picture of a loyal and trusting public, deeply attached to law and legal institutions, taken in by law's manners, myths, and legitimating narratives.This portrait is rooted in the Tocquevillian assertion that Americans understand their social relationships and their social problems through the lenses of law: To resolve "their daily controversies," they "borrow . . . the ideas and even the language peculiar to judicial proceedings." 4Tocqueville believed that the pervasiveness of the language of law in the activities of everyday life reflected and reinforced widespread allegiance to legal insti-