The ‘Law’

In yet another plaintive reference to the “over-lawyered” troubles confronting law schools, law school graduates and the working bar, trench lawyer Scott Greenfield wonders about clients and how lawyers are getting paid, or not paid as the case may be, and whether law students can fill this strange gap where although we as a nation are extremely over-lawyered so many unfortunate people can’t get a lawyer.

The problems are so much deeper than we’d like to admit.

First off, “market” analysis.  There’s no market “demand” for criminal defense lawyer services?  No shit.  There’s plenty of demand for locking up criminals or executing them – the government fills that demand quite nicely, thank you very much – and no one wants to hear that maybe we shouldn’t be doing so much of that, and even in those cases where we should we too often get it wrong.

In other words, there’s no ‘market’ for things that the vast majority of people don’t want or are even hostile to.  This is self-evident.

So the first thing to do is to reject any kind of market analysis of the problem.  A pure market analysis arrives inevitably at the conclusion that criminal defense lawyering should be eradicated.  No one wants it.  No one important with money to spend, anyway.

Now, law students.  It wouldn’t be fair to say that they don’t know the ‘law’ better than people who aren’t studying it.  It’s a truism, in fact, that lawyers will never know more ‘law’ than they do when they are all prepped and cram-coursed for the bar exam – that is, when they are not yet lawyers but are bar exam ready.

The subsequent years of “practice” beat that out of you, of course.  You learn that the ‘law’ as it is or has been taught to you is effectively false.  The whole thing has been an elaborate charade.  Then you learn that to serve or help your clients in any way you have to adjust to this, try to understand what the system will give you and obtain that.  Every once in a while maybe you have to dig in your heels and fight to the bitter end and the ‘law’ then suddenly matters again.

But only to you.  Unless you get lucky and it winds up mattering to some judge.

So on the practical level there’s this:  of course law students and young unemployed lawyers are a vast, untapped resource.  And paired up with an experienced lawyer?  A match made in heaven.  Youthful idealism, ready knowledge and fresh synapses and zeal tempered by sober and seasoned judgment.  So obvious.

But then there is also this on the practical level:  as things stand there’s no money to make that happen.  The net result of pairing the two up is that the seasoned lawyer and the idealistic youngster can watch each other starve to death, figuratively speaking.

The ‘market’ has no solution to this problem.  It doesn’t want the product in the first place.  Like I said, it’s a match made in heaven, not on earth, and certainly not by the market.

I lean libertarian, I really do.  But all the libertarian ‘free market’ talk gets tedious.  The market is not God, it doesn’t determine right and wrong or good and evil.  In fact, without doing at least a half way decent job of sorting those things out beforehand, the ‘free market’ doesn’t really exist; you just have an ‘economy’ where the strong subjugate the weak, as they do in every other facet of social interaction where people do not recognize their obligation to observe at least minimal standards of morality.

There is no freedom without the law (thus perforce there is no ‘free market’), other than the freedom of the strong to exploit the weak.  Which isn’t really freedom.  The law stands outside of and above – transcends, since we’re getting all religious here – the market and bids the market to be just, to be something other than a jungle in a different context.

My God this is such an ancient and long settled insight.  I can’t believe I have to write this post, that it wouldn’t be seen as being too elementary for adults, much less adults who are lawyers.

By the way:  what is freedom?  To be what one is by one’s own act – that is freedom.

But I digress.

So here’s the solution to our little problem, the problem of the vast, untapped resource matched perfectly – as if God Himself ordained it – with the vast, unmet need:  the courts have to start doing their job, and so do lawyers.  Especially experienced lawyers.

But to do that they would have to appreciate the problem, first by putting in the right category.  This has nothing to do with the ‘market’.  This has to do with bringing the law to a market that has regressed to the primitive and the pagan and doesn’t want it.  Or doesn’t think it does.

And thus we come to the crux of the problem:  when the market objects that it’s doing just fine without the law and what business does the law have sticking its nose into the market, what shall the lawyer answer?  There is only one answer he can give:  that the market must, first and foremost, be lawful and just.  Otherwise there is no market.

But how does the lawyer argue that with a straight face when he maintains that there is no such thing as justice, that there is no such thing as truth, there is no such thing as virtue, or vice or right or wrong or good or evil – that guilt and innocence do not matter, or are only the eye of the beholder?

Talk about primitive and pagan.  Actually even the ancient Greeks, who were pagans after all, would be appalled.

The legal profession is its own worst enemy.  Until some very basic thinking is questioned and then resolved favorably, both it and the society it so terribly ill-serves will remain mired in serious problems, the solutions to which are ironically very simple.

But simple doesn’t make it easy, of course.


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