Lawyers and the Vietnam War Draft
Note: Every time I raise this hypothesis in conversation, someone does a double-take or at least finds it interesting. On this first Friday in April, I hope you will, too! (This is not an April Fool’s essay, just a quirky exploration of data to see what stories it does—and doesn’t—tell).
Hypothesis: U.S. society became more litigious because of the Vietnam War draft.
It sounds implausible at first glance, even laughable. But let’s start at the beginning. In the mid- to late 1960s, as the Vietnam War escalated, many undergraduates didn’t love the idea of fighting in Vietnam, risking their lives and futures for nebulous-at-best reasons. The draft came for them anyway.
A table produced by the US Selective Service System shows that peak years for the draft during the Vietnam War were 1965-1970.
Draftees responded in various ways. Some outspoken students burned their draft cards and protested the war. Others resisted in quieter ways that leveraged the system. In the 1960s, enrolling in college or graduate school was a draft-deferral strategy used in practice, as a University of California Berkeley paper from 2002 found.1 For some students who were already in college, the question became how to stay in college and outlast the war.
What do humanities majors study in graduate school if they hadn’t otherwise planned to attend and suddenly change their minds in their junior or senior year? One common path might be to pursue a law degree, which has no set prerequisites in terms of undergraduate major.
For those who understood the system and could afford graduate school, it probably sounded like a pretty good strategy: wait out the war and walk into a lucrative career afterward. (And yes, a greater percentage of men who didn’t attend college may have gone to Vietnam than would have in the absence of college as a get-out-of-draft option. So, this strategy may have exacerbated class divisions in US society.)
But what does the data say?
Data shows that’s what students did. In 1963, as graphs on the Law School Transparency site show, first-year law school enrollment in the US stood at about 20,000 students. It rose to about 24,000 in 1965 and then jumped precipitously to about 37,000 between 1969 and 1971.
Similarly, another Law School Transparency graph shows that total law school enrollment rose from about 48,000 in 1963 to about 60,000 in 1967, then leapt to about 90,000 between 1969 and 1971. Some of the increase may be attributable to Baby Boomers’ greater numbers, but demographics seem unlikely to be the sole driver of such a steep jump in graduate enrollment.
Most of these law-school students were male, as William C. Kidder wrote in Harvard BlackLetter Law Journal2: 96% in 1965 and 90% in 1970. (Women entered the legal profession in greater numbers later, according to Kidder, totaling about 36% of “first-year students at ABA law schools” by 1980 and 49% by 2000.)
A look at the total number of active lawyers (post-graduation) also bears out a Vietnam-era jump. This American Bar Association table3 shows that the number of "resident active attorneys" increased about 1% a year from 1961 through 1965, about 1.7% a year from 1966 through 1970, then suddenly rose by 4.9% in 1971, 4.5% in 1972, 2.1% in 1973, and about 5% in each of the next three years, as the students who had pursued Vietnam-era undergraduate and subsequent law degrees finally started practicing law.
Second-order effects kick in
So, as the Vietnam War simmered down, there were lots of newly minted lawyers entering the profession. Whether they took jobs at large or small law firms, became corporate counsels, or hung out their own shingles, they needed work to make a living.
And what do lawyers do? They file lawsuits, negotiate contract disputes, and draft legal documents.
Data on the number of lawsuits filed per year in the U.S. in the 1960s, 1970s, and 1980s is surprisingly hard to find. I did find a good source of data for the period 1990-2005 from the U.S. Courts website, and we can match this data against the number of active lawyers during that period as tracked by the American Bar Association.
From 1990 to 2005:
The number of “resident active attorneys” increased from 755,694 to 1,104,766 (a 46% increase).
The number of appeals filed in the U.S. Courts of Appeals (excluding the Federal Circuit) increased from 40,893 to 68,473 (a 67% increase)—but the number of appeals filed in the Federal Circuit only increased from 1466 to 1555 (a 6% increase).
The number of civil cases filed in U.S. District Courts increased from 217,013 to 253,273 (a 17% increase).
The number of criminal cases filed in U.S. District Courts increased from 48,035 to 69,575 (a 45% increase).
The number of bankruptcy code petitions filed in U.S. Bankruptcy Courts increased from 749,981 to 1,782,643 (a 138% increase).
This data provides only a limited view (there are also county- and state-level courts, and many legal actions such as cease-and-desist letters never result in filed lawsuits), but it shows that legal actions are increasing over time, although at an uneven pace from year to year, with some intermittent declines.
To sum this up in the simplest possible terms: lawyers file legal actions. The more lawyers there are, the more legal actions will likely be filed.
This is unsurprising. What’s counterintuitive—and illustrates the power of second- and third-order effects—is how a seemingly unrelated event like the Vietnam War draft seems to have affected the U.S. legal profession over several decades (the professional lifetimes of those extra lawyers).
Now for more counterintuitiveness
Let’s not take this line of reasoning too far, though. Yes, the US has the most lawyers per capita worldwide: 1 lawyer for every 248 US residents, according to the World Population Review website.
But conventional wisdom holds that the US is also an especially litigious society. While the U.S. does, in absolute terms, have the most lawsuits filed per year, the U.S. is reportedly not the world’s most litigious society in terms of lawsuits per capita: it is number five on an oft-cited list from insurance company Clements Worldwide (though the number of US lawyers provided on that list is from the ABA’s 2006 data, so other data also may not be current). Numbers 1 through 4 on that list are Germany, Sweden, Israel, and Austria.
A 2010 paper by professors at Harvard Law School and Indiana University4 also attempts to pin down some numbers on litigiousness of the U.S. compared with Canada, Japan, France, the UK, and Australia.
The takeaway is to be careful about drawing conclusions: one finding doesn’t necessarily lead to another. Actions and reactions can be counterintuitive and cascade in unexpected ways through history, as we see when exploring possible effects of the Vietnam War draft on law-school enrollment. Perfect foresight doesn’t exist—but when modeling for the future, it’s usually worth asking, “How might people try to get around this law/regulation/requirement, and what might the effects of their maneuvering be over time?”
Card, David, and Thomas Lemieux. “Did Draft Avoidance Raise College Attendance During the Vietnam War?” Center for Labor Economics, University of California Berkeley, Working Paper No. 46, February 2002.
Kidder, William C. “The Struggle for Access from Sweatt to Grutter: a History of African American, Latino, and American Indian Law School Admissions, 1950-2000.” Harvard BlackLetter Law Journal 1-41, Spring 2003. Full paper link: https://harvardblackletter.org/wp-content/uploads/sites/8/2016/10/19-JREJ-1.pdf
“ABA National Lawyer Population Survey: Historical Trend in Total National Lawyer Population 1878-2018.”
Ramseyer, J. Mark, and Eric B. Rasmusen. “Comparative Litigation Rates.” The Harvard John M. Olin Discussion Paper Series, Discussion Paper No. 681, November 2010.
Kind of a fun thread of statistics and causality. I would bite if someone brought this up in conversation. Maybe Russia is gonna have a lot of lawyers graduating soon :)