What’s So Special About Being A Lawyer?

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I don’t know whether you, dear polymaths, oriented as you are to high science, will even read any farther than my title. Yet will I opine about my profession.
“My profession”…”our profession”….to me they are thrilling words, even now after a few decades of a deliberate campaign to de-mystify all professions and knock them off their pedestal. It’s a fait accompli with medicine, beginning with then First Lady Hilary Clinton’s listening tour in which she uncovered a “Doctors’ Plot” i.e., attempt to make a living.

It’s Judge Jackson’s conformation hearings, coupled with the screaming Yale law students, that made me think about what is happening to law.

To the students: “Grow up”, indeed. Before we even GET to what IS special about being a lawyer, I can tell you it is NOT the ability and temerity to yell out ones’s own opinions. Any bozo can do that.

This morning I heard an item about Jackson’s conformation hearing, that in a brief when she was defending the Gitmo detainees, she wrote, or implied, that Bush and Rumsfeld were “war criminals”.

So now we’re getting down to what, in my humble opinion, IS special about being a lawyer.
It’s hard to believe we have to go way back to the foundations of our implementation of justice as an adversarial system, and everybody has the right to representation. Maybe these students at America’s most selective law school don’t believe in that, it’s passé, they’d rather have a system of “direct justice” where we go right to “the people” to try accused persons and determine their fate. ( cue “The Every”, and also, there was a Star Trek episode about that.). But if that transpires, it’s difficult to imagine what these students think their own rôle will be.

So ok here it is: you, counsel, get a total loser of a case, a stinker of a client. And you get to work, you take hold, you burrow into the case law. And you write, write, rewrite.
You dig out any kernels of merit , you shine up,and brandish any rusty old penknife in your client’s possession.
Your job, your skill, is to advocate, and despite your own initial impression, damned if you can’t DO that, after all!
THAT is SO effing “special”. It’s easy to be passionate and articulate (and loud) about your OWN beliefs, any jerk can do that. But to competently and even passionately—and needless to say honestly*— represent someone else’s position—THAT’s why that someone needs a lawyer.

(*I hope I don’t have to explain that no, “zealous advocacy” doesn’t include lying. Until Kevin Clinesmith, lawyers were always taught, and we knew in the core of our being, that lying to the tribunal (especially under oath, CTFO!) was the Very. Worst. Thing we could do—but evidently now, it’s just a peccadillo as long as you’re baby-faced and your wife is pregnant. Awww…)

Don’t get me wrong, I wish Judge Jackson were not going to be confirmed (which she will be.). I can comprehend her alleged “softness” toward porn consumers, but I can’t believe any intelligent (American) person takes CRT seriously, and that’s a sine qua non for me. But I can comprehend analogizing the Gitmo situation to various deplorable practices of other nations when she was advocating for prisoners. A brief is a brief, it’s a tool, not an academic exercise like a law review article.

It is better to be feared than loved, said Machiavelli. Doctors were belovéd, widely and unconditionally before Being pulled from their pedestal-+ and lawyers were reviled but feared. Maybe that fear can still help my profession retain its status. But NOT if its new postulants despise and refuse to learn the unique and essential skills of advocacy even when it does violence to their “feelings”.

“…The weak lay hand on what the strong have done
Till that be tumbled which was lifted high-
And discord follow upon unison,
And all things at one common level lie”…

—Yeats, from “These Are the Clouds”

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I recently read an enlightening essay by John Hasnas of Georgetown University. Originally published as a law review article, it is collected in Michael Malice’s The Anarchist Handbook. The abstract from another book in which it is collected is:

Commitment to the rule of law is one of the core values of a liberal legal system. This chapter begins with what is intended as an entertaining reprise of the main jurisprudential arguments designed to show that there is no such thing as a government of laws and not people and that the belief that there is constitutes a myth that serves to maintain the public’s support for society’s power structure. The chapter concludes by suggesting that the preservation of a truly free society requires liberating the law from state control to allow for the development of a market for law.

Hasnas argues that the concept of rule of law presumes that the law consists of a body of determinate rules which can be applied semi-mechanically to yield predictable outcomes. But this assumes the law is something like the axioms of a formal system, which it is not. In fact, the law is neither consistent nor complete, and any outcome based upon it will involve human judgement and weighing circumstances not specified in the statute or precedent. Further,

The current state-supplied legal system is adversarial in nature, putting the plaintiff or prosecution against the defendant in a winner-take-all, loser-get-nothing contest. The reason for this arrangement has absolutely nothing to do with the procedure’s effectiveness in settling disputes and everything to so with the medieval English kings’ desire to centralize power.

⋮

Our current system of adversarial presentation to a third-party decisionmaker is an outgrowth of these early “public choice” considerations, not its ability to successfully provide mututally satisfactory resolutions to interpersonal disputes.

In imagining how a free market in dispute resolution might work, he suggests:

An individual might settle his or her disputes with neighbors according to voluntarily adopted homeowner rules and procedures, with co-workers according to the rules and procedures described in a collective bargaining agreement, with members of his or her religious congregation according to scriptural law and tribunal, with other drivers according to the processes agreed to in his or her automobile insurance contract, and with total strangers by selecting a dispute resolution company from the yellow pages of the phone book.

Here is ten minute interview with Prof. Hasnas in which describes his views.

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I don’t see anything profound about this. Laws are expressed in language, and language always depends for its meaning on the person who reads or hears it. And, Hasnas is saying the same thing I did: when you dig in, you can find some precedent for almost any proposition. That’s the skill we learn, the burrowing, the art of distinguishing.
And it isn’t always true that the law is infinitely malleable. In Pa, f’rinstance, a document cannot be probated as a will unless it is signed by the testator at the end thereof. Period. No matter how clear the testator’ intent to adopt the document as his will, no matter how emotionally wrenching the result. I just had such a case, so my research is fresh.
Also ,maybe lay people believe case outcomes are predetermined by the language, the “black letter” of statutes, but lawyers don’t share that confidence. Hence such maxims as “Hard cases make bad law.”
Idk, I just don’t buy his initial premise: that everybody —except him!—is so naive and self-deluded about the “rule of law” .
Also I hafta laugh at his mentioning homeowners associations (especially!) and collective bargaining as models for “win-win”, less adversarial, outcomes.

My fave of my own legal journalism articles is called (by the editor; I wanted to title it “Because I said so!” ) “Precedent in the Age of the Informtion Banquet”. It’s about the “silo” of precedent, hierarchical in each jurisdiction, and how the now complete democratization of accessibility to case law from all jurisdictions is and will be affecting that. If anybody’d like to read it, email me.

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Oh and just PS: anybody is free, right now, to mutually agree with his adversary that any individual they both accept will arbitrate their dispute. And they will then both be bound by that 3rd party’s decision, no matter how, well , arbitrary. So why don’t people do that more often?

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Attempting an answer your post’s title question invites book-length answer. I am not qualified to do that. I think what time has shown, though, is that - as small rivulets of water eventually give us the Grand Canyon - american (sic) - style lawyering has resulted in a species of citizen with the power over time to erode the naturally-just and decent goals set forth in our former Constitutional republic. John Adams once famously said,

“Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other”.

I interpret that as saying that acceptance of the textual Constitutional framework specifically required lawyers (whose knowledge of the pulleys and levers of law gave them additional power, a ‘mechanical advantage’ , so to speak, over meaning and evolution of the law) to exercise self-restraint in service of honoring the basics of governance. Doing so virtuously ought to have required them to restrain themselves from undoing Constitutional order (so well interpreted by the Founders’ writings - the ‘legislative history of the Constitution’ as it were). IMHO, that ‘mechanical advantage’ - like most all longstanding American institutions - was corrupted by the practitioners, bent on exercising power and undoing the Constitutional order - in this case, lawyers. Lawyers, after all, command the heights of virtually every modern institution. This corruption has proceeded to such an extent, that it has become exquisitely, painfully clear that we no longer live under the rule of law. While it may have once been historically accurate, ‘the consent of the governed’ is no longer even a memory to any now living.

Ever so gradually, especially in the progressive era, lawyers became the group most responsible for the deconstruction - brick by brick - of the foundation of the Constitutional system. As a profession, they abandoned what was once thought of as civic virtue, morality or a shared system of belief (“religio”, the root of “religion”) in the most fundamental underpinnings of our system. The ethos of most all lawyers’ associations (with a few notable exceptions like The Federalist Society - frequently attacked by the MSM and on social media- make their non-Constitutional goals shamelessly explicit: diversity, inclusion, equity; DIE - i.e., what they proudly caused the Constitution to do.

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CW!!!
Ok I agree with Adams’ famous statement ( though I think he had a particular religion and a particular moral code in mind, but I’m down with those too. )

You’re saying, I think, that the system has been corrupted by corruptible people, mos’ly lawyers. And Hasnas says the processes and outcomes of the system aren’t controlled by the text of the laws, but by control of the decision makers (also lawyers.)
Me, well, you might say I’m polishing silver in a burning house, or you might say, pace Voltaire, that I’m merely a rodent on a great ship, over the destination and fate of which I am ignorant and powerless.
But still, the silver is real! And I’m ON that ship, so I might as well learn its layout, make the most of any tools I find until it docks, or sinks. You and Prof Hasnas are taking a loftier, more distant view of “the system” than the point of view from which I was writing. You’re peering from a lighthouse, I’m scurrying around on deck. Both perspectives are worth comprehending and not mutually exclusive.

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We can probably all agree that the noble idea of “The Rule of Law” under which we are all treated equally has been flushed down the toilet. Comparison of the treatment of BLM looters & vandals with citizens petitioning the government for a redress of grievances in Jan 2021 demonstrates that clearly.

After the Collapse, perhaps we should think about making extensive use of Artificial Intelligence in a true Justice system. This would require Law to be completely clear & unambiguous, where any contradiction between laws would cause a logical error. (In my fantasy, any such contradiction would also cause the politicians who voted for a law which was inconsistent with any prior law to be publicly whipped and deprived of their citizenship). Precedent would count for nothing in this system.

We could then imagine a rapid three-step Justice process:
The first stage would be non-adversarial – because why should a person’s guilt or innocence hang on the issue of how good a lawyer he can afford? First stage would simply be to establish all the facts, with no legal games about excluding this or that piece of evidence.
Second stage would be to input the facts to the AutoJudge, which would cite the relevant law and determine guilt or innocence (without any possibility of partisanship or corruption).
Third stage (in the case where the AI renders a Guilty verdict) would involve a jury – randomly selected by machine from the voters list – to determine what kind of punishment or reformatory effort should be applied in this particular case.

Obviously, there would be many fewer lawyers in this post-Collapse world.

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Oh GAVIN! havent you heard about the draconian (mot juste!) law of the Medes and the Persians, which, once it is written down, cannot be changed? And haven’t you seen those movies where the robots always, logically, conclude that humans must be eliminated? CTFO, AI judges can’t be the answer!

Anyway you wanna talk about human judges overcoming their prejudices to folllow The Law? I give you the 9th Circuit ruling that Stormy Daniels has to pay Trump’s legal fees incurred in defending her meritless defamation action against him.

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The broader issue, Ms. H., is that the legal system has grown so many barnacles that it is now (a) unjust, (b) dysfunctional, and (c) unaffordable to our economy. In fact, the legal system is a major contributing cause to the coming inevitable Collapse.

I know there are many fine honorable people working as lawyers who are trying to do their best within the current rotten system – and sometimes succeeding. Just as there were many fine people in the Communist systems who tried to make things work, even though they too were fighting a losing battle.

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Well, that’s it. I wasn’t writing about the “broader issue”, as i said in reply to CW.
The ol’cliché, which you used to hear lawyers repeat all the time, was:”Sure our legal system isn’t perfect, but…I can’t think of a better one.”
I don’t know. I think if you said that nowadays, you’d get a wild-eyed “ANY system would be better!!!”
In my experience, how people feel about “our legal system” is usually determined by whether or not it worked to their advantage in a particular case. A verdict which makes the plaintiffs “lose all faith in the jury system” is also necessarily one which converts the defendants in that case to wholehearted devotés of that system.

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This prerequisite for an automated justice system is, I believe, completely impossible. If law is to be comprehensible, it must be expressed in human language that binds it to real-world objects, actions, and events. But human language is, itself, ambiguous, inconsistent, and endlessly mutable.

Consider this passage, which I recall coming across somewhere or other: “Congress shall make no law … abridging the freedom of speech”. Well,

  • What is “speech”? Does it include the written word? Recordings of speech? Speech broadcast over the airwaves? Acts such as burning a flag? Money given to politicians to elect them to speak on one’s behalf?
  • “no law”? Is there no limit on inciting panic (falsely shouting “Fire!” in a crowded venue), or advocating criminal behaviour, or publishing military secrets and thereby delivering them to the enemy?
  • “Congress*? Does this restrict executive agencies funded by Congress? Does it constrain private companies funded by Congressional appropriations? Does it affect transmission of speech over radio frequencies regulated by an act of Congress?

…and so on, and so on. And this is just one short extract of a single document which is supposed to be fundamental. Now imagine the entire U.S. Code, not to mention the Code of Federal Regulations, which stood at around 180,000 pages as of 2019.

Now, set aside ambiguities and contradictions in language, and assume that Stephen Wolfram or somebody could invent a new formal language in which the laws could be written that would avoid the ambiguity of natural language. (I don’t think this is possible, but assume it anyway.) Now you’d be faced with the problem of proving that the body of law was itself consistent. This ranges from absurdly difficult to absolutely impossible. Consider, one of the simplest and cleanly defined set of axioms in mathematics, Zermelo–Fraenkel set theory, which has (in one commonly-used formulation) just nine axioms, all of which can be expressed with no language ambiguity whatsoever, yet cannot be proved consistent within the system defined by the axioms, and has not been proved to be consistent by any other means. Most mathematicians assume it is consistent but, as Wikipedia says, “Nevertheless, it is deemed unlikely that ZFC harbors an unsuspected contradiction; it is widely believed that if ZFC were inconsistent, that fact would have been uncovered by now.” In other words, nobody knows for sure. Trying to do that with something millions of times more complicated is simply hopeless.

Now, assume that somehow we have created an unambiguous and consistent encoding of the laws, and move on the to second step in automated justice: “input the facts to the AutoJudge, which would cite the relevant law and determine guilt or innocence (without any possibility of partisanship or corruption)”. But how does this AutoJudge artificial intelligence connect the facts of the case (presumably submitted as text, images of evidence, etc.) to the encoded law?

Back in one of the earlier false dawns of artificial intelligence (1980s), “expert systems” and “logic programming” were all the rage. The idea was to define a set of rules which could be applied by an “inference engine” to solve complex problems. These were found to be extremely limited in what they could accomplish, as it proved impossible to encode the judgement employed by human experts into formal rules which could be interpreted by an algorithm.

In the present era, “machine learning” is all the rage, in which artificial neural networks are trained on a large set of stimuli (“training data”) with feedback scoring the output against the desired result, adjusting weights in the network to respond correctly to novel input. These techniques have proved highly effective in applications such as speech and image recognition, language translation, game playing, and mining of large data sets. Interestingly, machine learning resembles the precedent-based common law in some ways: it is trained on a wide variety of examples and then presented with a novel specific case and asked to classify it based upon its training set.

One characteristic of machine learning systems which may disqualify them from use in legal applications is that they lack “explainabililty”. You put in the input, out comes the output, but the system provides no information about why it classified the input as it did. If you look inside, you see only a table of hundreds of millions to billions of numbers representing “weights”, none of which contributes in any obvious way to the output. If the system makes an obvious error, there is no way to know which weight or weights need to be changed to correct it—all you can do is add training information which you hope will teach it to perform better with similar cases.

No matter how well the AutoJudge performed, and even if by some objective measure it was found to decide more accurately than humans on a large set of test cases with known outcomes, it could not explain why it decided as it did. Would people (in particular, the losers it decided against) accept that? How could you appeal a decision whose rationale was not and could not be explained?

There is research underway on “explainable artificial intelligence” which seeks to create artificial intelligence systems that can explain how they arrived at their output, but as yet it is not clear if these systems will work or be as effective as present machine learning techniques.

I continue to believe that the main problem with law is the anachronistic and unnecessary assumption that it must be a monopoly service provided by a coercive state. As long as it remains that, it will work and adapt better to changing circumstances no better than any other monopoly product or service. Does anybody believe that we would have personal picturephones with almost free global calling if telecommunications and research into communication technologies had remained a government monopoly as is did for so long in so many countries (and was close to that in the U.S. under the embrace of Mother Bell)? Would we have personal computers in the hands of everybody if a Federal Computing Commission had been established in the 1940s to “promote standards” in this emerging technology and license its development and adoption to avoid disruption of existing industries and employment?

After we’re done disrupting the Government Education monopoly, next in the crosshairs should be Government Law. If this seems impossible, see worked examples in David Friedman’s The Machinery of Freedom and Morris and Linda Tannehill’s The Market for Liberty.

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When a lawyer performs like John Adams defending redcoats, we ought to be exceedingly proud of our system of justice.

In the U.S. Lawyers are our last defense against tyranny. GOD BLESS LAWYERS (with exceptions of course)!

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You make a strong case, Mr. W. You could have been a lawyer! :grinning:

But I suspect that the Law needs to be uprooted first. Otherwise attempts to uproot the Government Education (semi-)monopoly will run afoul of … the Law.

To expand a little on your example – does “freedom of speech” include the written word? In my fantasy world, the first time that question came up, the AutoJudge would dismiss the case since there was “no controlling legal authority” (to quote one of the brightest minds of our times). The AutoJudge would also refer the issue to the elected Legislature, which could choose to amend the law to make it clear that the written word was (or was not) included in “freedom of speech”. No more would we tolerate human judges making up “law” based only on their personal opinions – see Roe vs Wade.

A reasonable person would point out – But under that kind of system, the time demands on the Legislature would put a practical limit on the number of laws in existence, and that limit would be quite small. Exactly! Major benefit!!

As for multiple non-monopoly Legal Systems … I don’t see how it would work. All law is ultimately based on violence, and we agree to give the State a monopoly on the use of violence. If we were to have competing sources of potentially-different laws, we would have something very similar to gang warfare. Not that that would necessarily be worse than what we have now, unfortunately.

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I regret that I have but one :heart: to give to this comment!

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This is discussed in detail in chapter 9 of The Market for Liberty, which I mentioned in the original comment (link is to a free PDF copy of the book). The “gang warfare” objection is based upon two assumptions: first, that private defence companies would find it profitable to use coercion to expand their business and, second, that the outcome would be worse than the present situation of having a monopoly government which wields coercion and has granted itself and its minions immunity for its action and from liability or other consequences from failure to defend citizens from outlaws.

In a free market for protection, the private companies would have no sovereign immunity and the companies and their employees would be liable for their acts. A company known to illegitimately employ coercion would rapidly lose its liability insurance coverage and ability to indemnify its employees. “In a laissez-faire society, a defense company which committed aggression, unless it acted speedily to rectify the injustices, would be left with no customers, associates, or employees except for undesirables.” Customers would be loath to do business with a company known for advancing itself through coercion, just as legitimate business people avoid borrowing money from the Mafia.

Most of the misbehaviour associated with government law and law enforcement stems from its being a monopoly which is not only permitted to use force but immunised against consequences for doing so. A private market in which there are multiple private security firms, none of which have any rights and immunities beyond those of the citizens who hire them, would have fewer incentives to employ coercion as part of their competitive strategy.

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Maybe I am missing the point – but those private defense companies would have to be implementing some agreed system of “Laws”, which brings us back to exactly where we are today.

How would we determine what the “Laws” we were bound by should be? If each company could determine its own laws which it will enforce (with the threat of violence as required), then how would we reconcile differences between companies? Short of shoot-outs? If the companies are merely implementing the same State laws, then the only difference would be the badges worn by the enforcers.

If we say those private defense companies have no sovereign immunity, how would an aggrieved party seek justice over a complaint against one of those companies? The implication is that the private defense companies would themselves have to be subject to the threat of greater violence from … the State.

The real problem lies in the “Law” – including the laws that immunize government officials from their misdeeds. In theory, we could change the “Law” to make government officials bear personal consequences for their actions. That would be a better course than privatizing competing police forces.

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Due diligence at last ???
See link

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First, computers/AI are all man made. So who is putting the foundational programing into the damned thing? If it were me, y’all might be very pleased with the legal system that results. However, now that we all know that the institutions have been marched through do y’all really want to leave to the “experts” the design of an automated judicial system? Faith in technology is part of the cause of the collapse. In fact it is how they intend to control us.

Second, the system isn’t broken. The people in it are. People suck and humanity is damned lucky it wasn’t me on that Cross.

As to Hyp’s piece, I love being a lawyer. I love knowing that I passed two Bars the first time taking them. I love knowing that I joined a profession that includes Jefferson, Upshur, Calhoun, and a relative, SCOTUS Associate Justice James C. McReynolds. I love knowing that I can go into Court and mop the floor with some stale, Harvard, or Stanford twit. I love being able to help people, restrain government, and make lots of money. I love the logical thinking of being a lawyer—the good ones think logically. I love knowing that someday it could be me on the bench and then I can get to work fixing this destroyed, dilapidated system.

In the realm of the law, I love the drudgery of research, the sting of battle, and the thrill of victory. I love it. God I do love it so.

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This is the one I wanted:

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I am so glad you posted. I was missing your insights.

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