Scott Cummings has posted this draft on SSRN. Here is the abstract:

This Article examines the role of lawyers in democratic backsliding. To explain the relation of lawyers to backsliding, the Article presents a theory of professional fissuring, in which the forces driving inequality in the profession widen divisions among lawyers to the point where normative constraints holding lawyers back from the brink of egregious ethical violations atrophy—creating openings for legal attacks on democratic institutions and the rule of law. Using the 2020 Stop the Steal Campaign as a case study, the Article suggests how fissuring can create a systemic risk of backsliding, contributing to the mobilization of law against the rule of law itself—a phenomenon this Article calls anti-legal mobilization. By advancing a theory of fissuring, the Article creates a new framework for thinking about lawyers and legal process, breaking from the traditional focus on lawyers as guardians of democracy to show how they may also be agents of its demise. In so doing, the Article makes three central contributions. First, it theorizes a relationship between backsliding and lawyering: creating a conceptual framework with a set of hypotheses about what types of structural changes in legal practice, regulation, and education predict or enable backsliding. It thus imagines retrogression of legal norms and practices as “canaries in the coalmine” of democracy, altering us to structural weaknesses that can be exploited by forces determined to consolidate authoritarian power. Second, it adduces evidence from the American case to suggest how the features of backsliding in the legal profession have longer-standing roots: traceable to declining resources for access to justice, the politicization of public lawyering, and the reorientation of legal education around neoliberal market values. Third, the Article offers proposals to reform professional regulation and education to respond to the problem of backsliding, while considering theoretical implications of fissuring theory for the study of lawyers in autocratic legalism.