Assigned Roles, “Making A Living” And Lawyer Blinders

As a result of the division of labor, among other things, we all have parts to play in the economy.  We’re responsible for some few things.  Certainly not everything.  Not even everything pertaining to some small component of everything.  If we work on an assembly line we might only be called upon to put a few bolts in an exhaust manifold, a tiny component of a car, which is itself a tiny component of the larger transportation industry, which itself is just one component, albeit a major one, of the developed economy that despite its problems we are still lucky to be a part of.  Even if that means we are a bit less self reliant, manly and ruggedly individual than we used to be.

Nevertheless, it would be fair to say that economically the more a person is responsible for, the more important he or she is seen as being, and the more that person is paid.  Leaving aside for a moment how responsible these people in fact are, this is nevertheless the idea.  The CEO of General Motors is highly compensated compared to the line worker because he is responsible for the whole company, not just a few bolts in a few manifolds.

Of course this is all economics.  Economics is an important subject.  But in civilized countries it has never been thought to be the alpha and omega of guiding or evaluating conduct in society.  I’ve dealt with this elsewhere:  on an economics basis alone you cannot quarrel with Al Capone or other criminals.  If advancing yourself unjustly at the expense of others is seen as par for the course, society will come unglued.

Standing above purely economic concerns stand the professions, probably still the most prominent among which are medicine and law.  I say “purely”.  Because nothing of any significance can be done without financial wherewithal, and that includes medicine and the law, but the professions are not solely about economic concerns.  There is bodily health and healing.  And there is justice.  And these are more like preconditions to having a functioning economy of human beings in the first place, sort of like Kant’s idea that space and time are not really “things” themselves, but rather a priori preconditions for perceiving things in the first place.

But there’s this danger that the members of the professions themselves can forget all that.  If they ever knew it, that is, so few of them having read Kant and all.

From an economics perspective the practice of law is not intelligible.  There are very important things to be done that do not pay; there are relatively unimportant things that do.  Historically – but not now – we often paid lawyers handsomely and gratefully when the occasion presented itself, at least in part because of the former.

But of course maybe it all is economics after all, because implicit in that particular trade-off was a social bargain imposed upon the lawyer:  when the very important but non-paying thing that has to be done comes up, the handsomely paid lawyer had better well do it.  And truth be told many small practices – at least the ones I am familiar with – observe all of this, albeit somewhat haphazardly and informally.  They operate as wealth redistribution agencies with regard to legal services, using the well-paying clients to keep afloat and using any leftover time for needy clients and needful work that doesn’t pay.

Now admittedly this discussion is all a bit academic in real life, because the legal profession as a whole is so corrupted and moribund.  But academic discussions are not entirely without value if they tell you why something is awry, because maybe then you can know what to do about it.  If you can do anything, that is.

If anything can be done, might be a better way of putting it.

In any case, now that we’ve reached the question of knowing what to do, let’s look at this, via Scott Greenfield:

Consider this: Nearly half of those who graduated from law school in 2011 did not quickly find full-time, long-term work as lawyers.

The quoted dean has, to put it mildly, a talent for understatement.  And of course Greenfield is all over it in response:

Quickly? How about not at all. Not long-term. Not short-term. Not slowly. As for the ones who did, how about at salaries that can’t carry the debt-load while feeding themselves, no less their families, or terminal positions that run dry when the case is over, or dead-end positions that will never provide a future?

And of course this is the economic aspect of the problem, to which both the dean and Greenfield are acutely attuned.

But this is a profession, remember?  So when the dean, steeped in academic pettifoggery and tin-eared as he is, points out something else:

Yet the need for legal representation has never been greater. In New Jersey, where I teach law, 99 percent of the 172,000 defendants in landlord-tenant disputes last year lacked legal counsel.

…he’s onto something, isn’t he?  It may seem absurdly focused on system wide professional concerns rather than economic ones, with the “trench lawyer” firmly mired in the latter while the academic remains mired in the former, but the end result is just two lost souls talking past each other.

There is a lot of work that lawyers should be doing.  And it is true that at present it doesn’t pay, so it doesn’t get done.  That doesn’t mean that it will always be that way.

These people need legal help, for example.  Can’t see any money in it for the lawyers, though.  Not in the short term anyway.  But there could be, later on.  It really depends on what judges do.  And a lot of things are like that.

If judges started doing their jobs, which is applying the rules of law even-handedly instead of toadying for the rich and powerful to whom they owe their positions, legal work for the poor would wind up being effective, rewarding and remunerative.  And then there are a lot of lawyers to do the work.

But truth be told, and unfortunately, this idea turns the system on its head.  Independent lawyers, being important components of the system at least inasmuch as the system requires them for credibility, could do that if they tried, but they don’t want to.  They’re concerned with making a living for themselves.  As much as they resent the pecking order that is the real law operating in practice – the government wins, the bank wins, the insurance company wins, the big firm wins – they accept their assigned role and fight those they think are beneath them for the crumbs falling off the table of the higher ups.  It makes them fundamentally no different from those higher ups:  they’re players in the same system, just bit players instead of heavy hitters.

Meanwhile the system to which they all belong is collapsing.  It no longer performs even the most rudimentary function of distinguishing between guilt and innocence, its very raison d’etre.  Yet like some warped petty bureaucracy, this catastrophic flaw is seen as just one among many:

Like the statistics for rape, the statistics for drug offenders are suspect. Ask an AUSA and almost every co-conspirator is a major player. Ask a defendant and they’re just a cog in the wheel. But like those whose concerns are limited to the wrongfully convicted innocent, suggesting the guilty can rot in hell, the Times plays up the low-level offenders angle, even as Judge Gleeson knows better.

So, Judge Gleeson and Scott Greenfield know better.  The wrongfully convicted innocent are one problem with the system, the over long sentences of the guilty are another.  It’s just all one big system making its occasional mistakes and we all play our parts, and as the wizened veterans of the trenches our job is to “fight”:

In the meantime, however, we have judges like John Gleeson, and we do better by continuing to fight, to argue, to persuade, others to appreciate and follow his lead. As long as defendants are prosecuted, we don’t have the luxury of feeling defeated and giving up.

Of course it’s just a coincidence that the “system” we preserve by “fighting” inside of it provides our living.  Or at least for some of us it does.

So let’s get this straight:  you have a branch of the government one of whose primary tasks is to identify and exonerate innocent accused persons that renounces that obligation at the highest levels, suggesting that that task can be punted back to the executive branch because of its power to “pardon”. (See part IV of that brief.  Why does that even have to be argued?)  And besides that, and worse, refuses in practice to apply the rules of law even-handedly across the board while of course claiming the opposite, blatantly favoring certain kinds of litigants such as the government, banks, and insurance companies over everyone else.

And the solution to all this is….”legal practitioners“?

The alternatives to “pie in the sky” solutions can’t entirely consist of fiddling while Rome burns.  A lot of lawyers should take off the blinders.


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Filed under financial crisis, Judicial lying/cheating, Striking lawyers, wrongful convictions

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