Category Archives: Alternative Dispute Resolution

LEGAL EDUCATION

Published in Vital Speeches of the Day, April 1998

I. Introduction

It is a special pleasure to have been invited to speak to the Yale Club.  I never attended Yale, but it has important associations for me directly related to what I am going to talk about. I went to Law School here in San Francisco, at the University of California’s Hastings College of the Law.  The only law professor with whom I  established any real rapport as a student was a Yale graduate and former member of the Yale Law School faculty: Professor Roscoe T. Steffen, for whom I worked as a legal research assistant.  Prof. Steffen was born in Montana in 1890.  When he was a Yale Law School student, he attended  Constitutional Law classes given by William Howard Taft, between the time Taft was President and the time he was appointed Chief Justice of the U.S. Supreme Court.  It was as a result of a recommendation by Prof. Steffen to the Attorney General of the United States that I began my own legal career as an attorney in 1967 with the Antitrust Division of the U.S. Department of Justice in Washington, where Prof. Steffen had also served.

The second association with Yale that has personal significance is even more directly related to the subject of my remarks.  The present Dean of Yale Law School, Anthony T. Kronman, has written what I believe to be the best of many books that have been published during the past decade about the decline in standards of legal practice in America: The Lost Lawyer: Failing Ideals of the Legal Profession (Harvard University Press, 1993).  In my talks around the country to State Bar associations (and at  Annual Meetings of the American Bar Association) to discuss the critical need for change in American legal education and practice, I regularly cite Dean Kronman’s commentary on the progressive loss of what he calls the “lawyer-statesman ideal” as the model of legal practice.

It is therefore my impression, for these and other reasons, that the dominant Yale ethos –perhaps it is not even going too far to say its spiritual outlook-is much closer than that of other law schools –for example, Harvard’s– to what is needed to re-inspirit the American legal profession in needed directions.  What I mean by that I hope will become clear by the conclusion of this talk.

II. Prevalent Lawyer Practices

The assigned topic is “The Need for Change in American Law School Education.”  In addressing this topic, I do not wish merely to inform this audience.  I want, in addition, to alarm you.  For it is my opinion, after having studied the issue  intensively for some years now, that the present typical behavior of lawyers, if continued unchecked and untransformed, seriously jeopardizes the future health and security of our most important civic institutions, and imperils the ultimate object of our form of government which, as stated in the Preamble to our Constitution, is “to secure the Blessings of Liberty to ourselves and our posterity.”

In order to describe the specific needs for change in legal education, I will begin with some observations about the state of legal practice.

Lloyd’s of London has estimated that “lawsuits arising from the dreaded ‘millennium bug’ [the inability of computers to recognize dates beyond the year 1999] will top $1 trillion in the United States alone.”1  Leaders of the computer industry, however, take another view of things.  “’When I talk to people [about the millennium bug problem],’ Harris Miller, President of the Information Technology Association of America says, ‘unless there’s a lawyer in the room who’s trying to make some money out of it, nobody’s talking about legal liability.’  He says his Association is doing as much as it can to educate and raise people’s awareness of the problem. ‘We think that’s how you deal with this issue.  You get it solved rather than hypothesizing about liability issues’.”2

The difference between (1) a litigious and (2) a problem-solving approach to difficult situations is precisely the difference between what is now ailing the legal profession–with actually adverse, and potentially disastrous economic, social, and political consequences– and what needs to happen for the profession to correct itself.

One economist has loosely estimated that the cost to the public in unnecessary litigation is about $320 billion per year.3   And I have seen published estimates of the number of lawsuits filed each year in this country –of every kind– as high as eighty million.  These figures do not appear to me to be at all fantastic.  They are rendered credible by more well documented figures such as, for example, the figures of the Bureau of Justice Statistics of the U.S. Department of Justice in its analysis of case dispositions in its Special Report, Civil Jury Cases and Verdicts in Large Counties 1, July 1995. The Department’s Special Report analyzed case dispositions in 762,000 contract, tort, and real property cases filed in one year in the 75 largest U.S. Counties.  That’s more than three-quarters of a million cases, in the 75 largest counties, in just three areas of the law.  What is really interesting, however, about the Special Report, is what it indicates about the wastefulness of litigation in the United States.  For out of those 762,000 cases, only 1.5% were tried by a jury.  Voluntarily settled cases (61.7%), and cases that were either dismissed (10.8%) or resolved by summary judgment (3.7%) comprised more than three-quarters of all filed cases (76.2%).

At first glance, one might suppose that these figures describe a good situation.  After all, only 1.5% had to be tried.  But consider: what legal expenses were incurred before the case settled at the courthouse door?  They were enormous.  For the fact is that use by lawyers of the formal pre-trial procedures called “discovery” and “motion practice” constitute a typically and notoriously wasteful abuse of contemporary legal practice.4  Indeed, I doubt whether there is a single lawyer of sound mind in the United States who would not admit (off the record and over a drink, for example) that in the vast majority of cases –even relatively complex cases– if opposing counsel were able to deal with one another with consistent discreet candor, forthrightness, and reason, they could resolve their cases in one-tenth of the time it takes to resolve them through the formal adversary methods of legal practice.  And I will testify myself, after thirty years in government and private practice, that I have only very rarely encountered a case that couldn’t be so settled if clients were counseled properly by their lawyers, and lawyers were properly trained to approach situations of conflict with reason instead of testosterone, greed, or well-intentioned bad habits.

The truth of this assertion was illustrated –in fact, I would say it was demonstrated— for me, in my very first case in private practice.  In that case, in which I was plaintiff’s counsel –reluctantly bringing the matter to litigation because the defendant’s lawyer refused even to talk to us about the problem–  liability was fairly clear and the only real issue was damages.  I offered to provide the defendant’s lawyer voluntarily with a full statement of the legal theory of the case and documentation of my client’s damages.  The defendant’s lawyer was being paid by an insurance company.  He insisted upon taking depositions of both parties and conducting other formal discovery over a period of nearly two years before agreeing to a mediation, in which the case was settled in half a day —for more than five times the amount my client was willing to settle for if the case had been resolved immediately as we had proposed, without formal procedures.

When I went to defense counsel’s office to pick up the settlement check, I asked him why the case couldn’t have been settled through the methods we had originally proposed.  Justifying his insistence upon formal litigating procedures, he said “Well, that’s the way the system is supposed to work.  It just didn’t work well in this case.”  This point of view is, in my opinion –as it is in thousands upon thousands of cases like it that are litigated every month in this country — either nonsense –self-serving nonsense– or an admission of incompetence.  The file was probably just “not thick enough” for the insurance defense law firm to bring it to the insurance company adjuster until it had at least two (essentially unnecessary) depositions in it and reams of other (essentially unnecessary) discovery documents.

The costs of such unnecessary litigation add billions to the cost of living in the United States; billions to the costs of virtually every product and service offered.  Fear of medical malpractice claims, for example, has been estimated to add between 7 and 20% to our national medical bill through strictly unnecessary defensive medical practices and procedures most physicians would not otherwise prescribe.5

III. The  Constitutional & Political Problem Posed By Adversarial Legal Practice

It is not, however, the economic costs of grossly excessive use of  formal adversarial legal practices by lawyers that is the subject of my greatest concern.  Nor, as a lawyer, is it the fact that the more contact people have with lawyers, the less they like them.6  Nor is it even the fact that  lawyers themselves may now constitute the most depressed professional group in the country and are, in increasing proportions, dissatisfied with their choice of career.7  Rather, the greatest concern I have –which is a matter about which I believe we must all be or become concerned– is that most lawyers are no longer even aware of the fact that their most important function is to serve as the guardians of our Constitutional system in all that they do in both the public and private practice of law.8   And, moreover, that what is now a virtually universal ignorance or disregard of this fact may already be jeopardizing the maintenance and security of our most fundamental national purposes as articulated in the U.S. Constitution.

The authors of our Constitution comprised a constellation of thoughtful political architects probably without precedent in history.  When they enunciated the purposes of our Constitution in its Preamble, they did so very carefully, with strict regard to the order of priorities our republican system is supposed to serve.  That Preamble declares our national purposes to be as follows:

“We the people of the United States, [1] in order to form a more perfect Union, [2] establish Justice, [3] insure domestic Tranquility, [4] provide for the common defence, [5] promote the general welfare, and [6] secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this CONSTITUTION for the United States of America.”9

 

The first of our declared national purposes under our Constitution was “to form a more perfect union” out of the diversity of our people and the separate States.  We may now pride ourselves on the diversity of America.  But even at the end of the 18th century, the thirteen original States were also a “diverse” group.  Without the technology of modern communications and transportation, without the homogenization of culture now made so possible by electronic mass media and multi-national corporate enterprise, the people of 18th century Massachusetts and New York lived in a markedly different culture from the people of 18th Century Georgia and South Carolina.  The very first purpose of our Constitution was to bring together this diversity in a [1] “more perfect union,” since our Articles of Confederation had so conspicuously failed to achieve that.  This is a purpose that  remains as critical now as it was then.  The present diversity of the people of the United States, now still living together in relative harmony, is something of a political miracle.  But our “more perfect union” may now again be threatened by forces working to tear it apart, under the leadership of litigious lawyers serving an unnecessarily litigious public.10

Once the Constitution has formed a “more perfect union” among our people, its very first governmental objective is [2] to “establish Justice.”   That purpose, note, is not to “establish law;” for that is presumed. It is to establish Justice as the first object of our basic law.  And whatever theories of “justice” may contend with one another, its core meaning is to give to each his or her due, not to give to each only what superior power or wealth or aggressiveness may choose or refuse to give.

The second object of our government (assuming a United States) is [3]  “to ensure domestic Tranquility.”  That is, once the union is assured, and our basic legal institutions organized to establish justice, the aim of our government is to insure tranquility among our people so united.  This necessarily implies that use of the law as an instrument of discord, division, and battle, rather than as an instrument of peacemaking, where reason may find the means to make peace, is contrary to one of our Constitution’s prime purposes.  The lawyer as problem-solver, conciliator, and peacemaker is faithful to this purpose.  The lawyer as Rambo litigator with a private self-sworn oath “to take no prisoners” and assert a client’s rights to his or her last dime –even where peace may be purchased, with reason, much more economically– is an unfaithful enemy to this Constitutional object.

Given a well-united people, living under laws designed to establish justice, in  domestic tranquility among ourselves, the Constitution turns its attention to our [4] common defence and [5] general welfare. These five stated Constitutional objectives are the predicates for its highest political goal: [6] “to secure the Blessings of Liberty to ourselves and our Posterity.”

IV.  The Need For Change in Legal Education Toward A Problem-Solving, Peacemaking Model of Legal Practice

Before relating this summary of our fundamental Constitutional purposes to the problem of legal practice and legal education in America today, permit me to interject a relevant personal note.  Like tens of millions of other Americans, I am the grandchild and great-grandchild of immigrants.  I have visited the lands my forebears fled, escaping tyranny and persecution.  There is hardly a day that goes by that I do not thank them for giving me the privilege of having been born here.  My travels around the world have consistently confirmed me in my happiness at being an American who has, throughout his life, enjoyed “the Blessings of Liberty” which have been secured to me.  I am pleased and proud, not only to be an American, but to be a lawyer in a land where, as Lincoln put it “reverence for the law” is and should be “the political religion of the nation.”11   At this latter stage of my life, its sunshine comes most copiously upon me in the persons of my two grandchildren.  I hope that they will be able to enjoy, at least as much as I have, the “Blessings of Liberty” our Constitution is designed to secure for them.

But the recently emergent typical behavior of lawyers gives me cause for anxiety on their behalves.  Every American lawyer, when admitted to the bar to practice law, swears (or affirms) an oath to uphold the laws of his or her State and the U.S. Constitution.12   This oath has, for many –I fear, perhaps most– attorneys become a ritual whose meaning is ignored, disregarded, misunderstood, or forgotten.  The proof of this could, I think, be simply established by discovering the number of attorneys who will confess it to be their Constitutional duty, as officers of the courts, privileged to interpret, advocate, administer, and enforce the laws of the land, to help “establish Justice, insure domestic tranquility…and secure the Blessings of Liberty to ourselves and our Posterity;” and the number of attorneys who will confess that a failure to use, with persistence and determination “to the best of their knowledge and ability” all the problem-solving, peacemaking, and conciliatory skills they have to help achieve these objectives, is a violation of their Constitutional oaths and a profound infidelity to the spirit of their calling.

The epidemic failure of members of the American bar to hold these purposes firmly in the front of their minds in all that they do as lawyers, is a failure which threatens to undermine the maintenance and security of our Constitutional purposes.  In contrast to the frightening possibility of a post-civil society in America, we all must hope that the third century of our American republic will be likely to follow its first and second as world-historical miracles of stability, prosperity, and progress.  But our  hopes, I submit, will ripen into expectations only if enough members of the American legal profession come to recognize in time their critically catalytic role as the secular ministers of American democracy.  That is in fact the role to which lawyers have been appointed by the American public:

“American lawyers work in a society that has chosen to thoroughly legalize itself.  Alexis de Tocqueville noticed over a century ago Americans’ temperamental inclination to turn political, economic, and social problems into lawsuits. Thus the diversity and complexity of the lawyer’s work simply reflects American law as a political institution because of the kind of society twentieth-century Americans have constructed for themselves.”13

Ancient and modern history show that when conflict among sharply differing factions in democratic societies grows, and legal institutions become inadequate to resolve them harmoniously and peacefully, the result is either authoritarian government or mob rule.  Where violence in a society increases beyond a certain point, it is sad, but true, that most people will trade their liberties for greater security.  Tocqueville also recognized this, as well as the essential role a prudent legal profession must play in maintaining the liberties of a republic.  Speaking of lawyers (who were then exclusively men), Tocqueville wrote:

“I am not unacquainted with the defects inherent in the character of that body of men; but without this admixture of lawyer-like sobriety with the democratic principle, I question whether democratic institutions could long be maintained; and I cannot believe that a republic could long subsist if the influence of lawyers in public business did not increase in proportion to the power of the people.”

Tocqueville was not talking about Rambo litigators.  His words may be understood to suggest that American democracy may survive and prosper in the 21st century only if we lawyers learn to do more than ever before to help harmonize our miraculous American diversity.  This is a challenge for lawyers to think of themselves, and to act, as peacemakers first, peacemakers second, peacemakers third, and as warriors only in the very last resort –remembering, and taking very seriously, their Constitutional oaths.14   For if we lose our American Republic, it will not be conspicuously, in a tyranny of chains and dungeons.  It will be quietly, and gradually, out of a concern for our physical security precipitated by rising social discord and violence until, as Tocqueville puts it, our people become “timid and industrious sheep, of which the government is the shepherd.”

And this brings me to the main point of this talk: the inadequacies of contemporary legal education to help lawyers carry out their responsibilities as the guardians of our Constitution.

The dominant model of American legal education remains one in which students are taught how to argue aggressively, with no quarter given or taken, and how to fight an opposing viewpoint with uncompromising technical skill.  Fewer than 4% of American law schools require their students to take even one hour of training in negotiation as part of their learned skills.15    American law schools remain on the whole exactly the kinds of institutions you would create if you wanted to promote a kind of civil war instead of civil peace.  Law schools are not schools for resolving conflict harmoniously; they are schools to help promote profitable conflict.16

Given the increasing polarization of our marvelously diverse society, it should be considered a national scandal –if not a national disgrace– that law students are permitted to graduate from law school without being required to learn skills needed to help them resolve, rather than exacerbate, conflicts wherever possible; that they are not required to learn advanced techniques of successful problem-solving, peacemaking, win-win negotiation; and that they are, instead, encouraged to see themselves chiefly as aggressive warriors, rather than primarily as civic-minded peacemakers.

V. Conclusion

I will conclude this talk by addressing you directly, as alumni of Yale University; to plead for your active engagement in this cause, in every way you may be capable of participating in it: through the demands you make upon your own attorneys; through the support you may give to the efforts of Dean Kronman to help alert the American public further to the dangers inherent in permitting “the failing ideals of the legal profession” to fail utterly; and in every other way you can to help move legal education toward a peacemaking model in faithful adherence to the expressly stated purposes of our American Constitution and our republican form of government.  Let each of us do our duty to “secure the Blessings of Liberty to ourselves and our Posterity.”

 

(c) 1998 Harrison Sheppard

 

 

Decline of American Legal Practice

 

Wednesday, May 26, 2010 Talk: Economic Roundtable[1]


I’m going to summarize for you the most important things  I have learned about successful conflict resolution during more than 40 years of experience in both public and private legal practice, and contrast it with what has become typical American legal practice.

Winston Churchill called his history of World War I The World Crisis.  What a prophet he was.  World War I was indeed a “crisis;” a cross road in which the great powers of the world took a decisive wrong turn leading to a new European order.  A reading of Churchill’s account of the senseless slaughters of World War I combat is likely to strike contemporary readers as utterly incredible.  How could the leaders of what were supposedy the most civilized nations in the world  continue to consent, over a four year period, to sending hundreds of thousands of young men to their certain death or mutilation in battle after battle after battle?  It was war by attrition, as deadly for the supposed victors as for the vanquished.

The greatest troubles of world history as measured by death and destruction found their culmination in the 20th century with the deaths, mutilations, and displacements of hundreds of millions of people throughout the planet.  The saddest stories of world history are, in other words, the stories of attempted conflict resolution by war. As Albert Einstein observed,

“The unleashed power of the atom has changed everything but our modes of thinking and we thus drift toward unparalleled catastrophe.”[1]

President Obama’s recent declaration of a new strategic policy emphasizing promotion of  “the renewed engagement of our diplomats” (NYT, 5/23/10) is likewiae a nod in the direction of Einstein’s insight.  In terms of civil conflict, the typical practice of law today where even moderately high stakes are concerned, have become like the battles of WWI: senseless battles of attrition with no prisoners taken and common sense be damned.  We like- wise need instead a greater commitment in civil conflict to the renewed engagement of lawyers as peacemakers and  problem-solvers, as counselors at least as much as advocates.

I therefore come here this morning to speak to you of conflict resolution by means other than by war; and specifically, in more than just a metaphorical sense, by means other than the civil wars fought in adversarial litigation by lawyers.  It has often been observed that Americans are the most litigious people on the planet.   We are not only inclined to say “There ought to be a law…” but also that “There ought to be a lawsuit to solve my problem.”  In contrast to this American disposition, I am an advocate of  conflict resolution in civil matters by peacemaking, problem-solving methods, through negotiation rather than through a warmaking, adversarial model of legal practice.  Some trial lawyers might say that in choosing this path, I don’t have the “killer instinct.”  I confess to that.  That is because I very much prefer healing to killing and life to death.

What are “the most successful conflict resolutions?” The most successful conflict resolutions:

(1) Satisfy all parties to the conflict to the maximum extent possible.

(2)  Involve the least possible expense in time, money, life disruption, and emotional distress.

(3)  Are real and long–lasting.  And

(4) Are least likely to create potential causes of new conflicts.

Conflict resolution, like medical practice, is an art, not a science. I consider one of my prime credentials for expertise in conflict resolution the fact that I have been married to the same spouse for 47 years –three times.  (Our divorce was a failure so we had to remarry each other.)  And my wife gave me one of the most valuable insights I have ever had into conflict resolution; an insight more profound than most lawyers in the present typical mode of legal practice are inclined to achieve: the first thing you must do if you want to resolve a conflict is to listen. [Joy story]

 

Learning how to listen and hear what is being said by a party with whom one is in conflict is the first and most important key to successful resolution of the conflict.  I want to say more about that in this talk, but first let me summarize briefly  five other key principles to successful conflict resolution that I have gleaned from more than 40 years of legal practice, especially during the last 20 years in private practice and conflict resolution:

1.     COMMON GROUND: Conflict presents problems to be resolved by finding common ground for a mutually acceptable solution.

2.     KEEPING A HUMAN VIEW and avoiding role-playing.

3.     DETERMINE AND KEEP IN MIND WHAT REALLY MATTERS to the parties involved. Minimize essentially irrelevant detours. (Lawyers’ tendency to avoid emotional issues; divorce case settlement.)

4.     BE OPEN TO GETTING HELP. The problem giving rise to the conflict may be different than it first appears, and may require the expertise not of just a lawyer, but, for example,  of an accountant, or an electrician, or a plumber, or a psychologist.

5.     SEARCH FOR POETIC JUSTICE. The greatest negotiating skills are not merely technical; they proceed from the human skills of observation, perception, understanding, empathy, reason, and imagination and focus on the very particular circumstances of each matter involved.

Let me state an important  footnote to all this: the problem of dealing with fools and knaves. Fools require empathy; knaves requre sticks and carrots.

OBSTACLES to Listening and Hearing:

Barriers to Hearing What is Beng Said

1.             Partial deafness, or other hearing problems.*

2. Competing sounds, or conversation, or physical barriers to hearing another person clearly.

3. Tone, pitch, or volume of voice.

4. Different, unusual, or ambiguous use of language.

Barriers to Hearing & Listening

5. Distraction, interruption, or preoccupation.

6. Fatigue, boredom, disinterest, or other inability to concentrate. Barriers to Listening With Your Heart

7. Judgment, Prejudgment, and Misjudgment

8. Bias and Personal Prejudice

9. Differences of Perspective

10. Alienation

* Note: http://well.blogs.nytimes.com/2010/04/26/little-known-disorder-can-take-a-toll-on-learning/?th&emc=th (“Little known Disorder Can Take a Toll on Learning,” NYT, April 26, 2010)

In contrast to the peacemaking, problem-solving approach I have just summarized to conflict resolution, there is the approach emphasized in law school and typified by most American legal practice:  Seeing conflict as a matter to be resolved by reference primarily to legal rules with the prospect of litigation to “resolve” the conflict.  This is, in effect, what most of the typical law school curriculum teaches, how lawyers are mainly trained to think, and how most lawyers practice their profession. Most legal studies center on the failures of conflict resolution that have led to litigation. [2] Analogy to World War I trench warfare; DISCOVERY ABUSE; Victory by attrition.  Result: increased costs through defensive medicine  (Justin leg story).  Estimated between 8% and 24% increase in American legal costs.  “Lawyer,” “Attorney,”  “Counselor.”  Elihu Root.  90s books; settlement statistics (Loyola LRev)

CONCLUSION: Need for reform of legal education and practice to emphasize problem-solving and peacemakng instead of warmaking.  Negotiation a required bar course.  (Much more important than recovery caps.)  Lincoln:

“Discourage litigation. Persuade your neighbors to compromise whenever you can.  Point out to them how the nominal winner is often a real loser ––in fees, expense, and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man.”

 


[1] Conflict Resolution and What’s Right and Wrong With Lawyers: The Litigation Problem A talk on the core principles of conflict resolution and how typical contemporary legal education and practice, by unnecessarily turning problems into lawsuits, burdens the economy and promotes civil discord instead of community peacemaking.

[1] This stark truth was, no doubt, what John Paul II had in mind when he wrote that “War should belong to the tragic past, to history;  it should find no place on humanity’s agenda for the future.”

[2] American Principles & The Evolving Ethos of Aerican Legal Practce, 28 Loyola Unversity Chicago Law Jurnal 237, Winter 1996.

Returning to the Cave: The Loss of Classical Light in Modern American Teaching

Every State is a community of some kind,
and every community is established with a view to some good…
He who is unable to live in society, or who has no need
because he is sufficient for himself,
must be either a beast or a god….
The determination of what is just is the principle of order in political society.

Excerpts from Aristotle, Politics, Bk. I, Chaps. 1 and 2

 

I. Introduction

I begin my remarks by expressing my cordial thanks to the members of the Hellenic American Professional Society of Northern California for inviting me to speak at this Annual Commemoration of Greek Letters Day.  I consider it a privilege to be invited by you to address a subject which, though concerning education, is far from merely academic: the progressive decline, during the past half century or so, of classical teaching and learning in our public and private schools, colleges, and universities.  I look forward to the conversation among us, which I hope will follow my talk, concerning the theme of my remarks.

The title I have given to my remarks is “Returning to the Cave: The Loss of Classical Light in Modern American Teaching.”  The title refers to a celebrated image constructed by Plato in Book 7 of his dialogue, the Republic, written sometime between 386 and 367 B.C.  The Republic is generally considered to be Plato’s greatest work.  It is an inquiry into the nature of Justice, explored partly through the imaginary construction of an ideal state which, Plato makes clear, could never actually exist in this world.  It is, as Socrates tells us in the dialogue, only “a model laid up in heaven” illustrating philosophical judgments about the nature of the truly just human being and state.

The image of the cave in the Republic follows Plato’s description, in Book 6, of the relationship between different kinds of knowing to different aspects of being (or to what really is) in comparison to opinions about different kinds of appearances (that is, what only seems to be).  Plato’s analysis tells us, for example, that we can know with certainty the things that mathematics can teach us; but we can only have opinions –without such mathematical certainty– about the world of appearances, and images of visible objects.

After exploring these questions about the nature of knowledge and being,  appearance and opinion, Plato turns, in book 7, to an image of “human nature in its educated and uneducated state.”  Notice: Plato tells us in advance that he is about to give his audience –us–  an image of “human nature in the educated and uneducated state.”  It is for this purpose that he constructs the metaphor of the cave from which I take the title of my talk.  Let me quote the dialogue at this point, which describes the cave shown in the diagram I have handed out.  Socrates is speaking:

“Imagine men in a cavelike underground dwelling with a long entrance, as wide as the cave and open to the light.  The men have been chained foot and neck since childhood.  The chains keep them in place and prevent them from turning their heads, so that they can only see forward.  Light comes to them from a fire burning at a distance above and behind them.  Between the fire and the prisoners, higher than they, imagine a road with a low wall built alongside, like the screen set in front of puppeteers, over which they show their puppets…Then see people walking along the road carrying things on their heads, including figures of men and animals made of stone and wood and other materials.  These extend over the top of the wall…

“Do you think such prisoners would ever see anything of themselves or each other or the things carried by the other people except their shadows thrown by the fire on the facing wall of the cave?”

“How could they [Glaucon replies] if their heads were held still all their lives?”

“Now, if they could talk to each other, don’t you think they’d believe what they saw was reality?”

“Necessarily.”    —Republic, Book 7, 514-515b).

This image looks so much like people chained to chairs in front of their television sets, that I can’t resist remarking on that.  But Plato is concerned with something even more fundamental than such particular numbings of our wakefulness.  After giving the basic description of the cave I just quoted, Socrates goes on to describe what would happen if one of the men was freed from his chains, and turned around to see both the fire and the objects carried along the road.  He describes how the light of the fire would at first blind such a person, and how he might be confused when he first sees the real objects he had only seen before as shadows, while he was in chains.  Socrates then continues his description of the cave and its inhabitants.  He asks us to imagine someone who was dragged entirely out of the cave into the real light of the sun.  He asks us to consider how the sun’s brighter light would at first completely blind such a person, and how he might even be tempted to run back into the cave because the shadows seemed so much easier to see (at first) than what was outside the cave.  But then, again, Socrates asks us to consider what would happen if such a man stayed long enough out of the cave for his eyes to adjust to the sunlight.  Wouldn’t he be filled with wonder and delight at the clarity and beauty of what he saw, compared to the dim and shifting shadows that were all he was able to see before?  Finally, Socrates asks us also to imagine what would happen if the man came back to the cave and sat down in his old place.  “Wouldn’t darkness fill his eyes,” Socrates asks, “after suddenly coming in from the sun?

“And if again he had to ‘evaluate’ those shadows down there in competition with the perpetual prisoners, then in that short time of habituation in which his eyes were dimmed and unrecovered, he’d make a fool of himself, and they’d say he came back from above with ruined eyes and the trip wasn’t even worth the attempt.  And if they could get their hands on the one who was trying to release them and lead them upward, wouldn’t they kill him?”

“Most violently,” Glaucon replies.

Now anyone even a little familiar with the story of the life of Socrates is likely to recall, when hearing this description, what actually happened to Socrates himself because of his devotion to philosophy, and his constant questions about the nature of things other Athenians took for granted: the Athenians sentenced him to death.  (We might also be led to think of Jesus, whose early followers called him “the light of the world,” 5 Matthew 14; see also 8 John 12.)  And we can all understand the factual basis for the image: whether we go into the light from the dark, or the dark from the light, our eyes need some time to adjust to its surroundings.  It is a often a struggle to learn something new; and it is sometimes difficult to see things from the point of view of others who haven’t.

I have taken this time to recall to you Plato’s image of the cave in some detail, because considering it may suggest answers to the central questions raised by my subject:  First, why has classical teaching and learning declined so much in the last half of the twentieth century?  And, second, what have we lost and what further may we be in danger of losing by that decline?  To help get your attention to what I am about to say, let me give you my short answers to these questions:  First, what we have lost: We have lost an appreciation of the paramount importance of seeking to understand the nature of the human soul and spirit. And what are we in danger of losing?  We are in danger of losing the democratic civil liberties that are the greatest legacy of classical learning and teaching, and sinking voluntarily into a disguised, but nonetheless progressive and degrading, slavery to our economic, material existence. That is why I say that the topic of my remarks is far from merely an academic subject.

II.  The Decline

 

Before giving you the reasons for these sobering conclusions, let me define, or at least describe, what it is we are talking about.  When I was a high school student in Philadelphia in the 1950’s –nearly half a century ago– it was assumed that if you were headed for a college education, you would probably study Latin.  Fifty years before that, it would also have been assumed –among the very few then privileged to plan a college education– that they would probably also learn some ancient Greek.  Now, of course, the reverse assumptions are made.  I do not know the statistics, but we can take informal notice of the fact that the study of Latin and ancient Greek in our public and even private schools is now uncommon, even rare.  Likewise, in the 1950’s, a general liberal education was presumed to include at least two years of introduction to what has been called “the canon:” a study of the greatest works of Western literature, beginning with the ancient Greek philosophers, playwrights, and historians.  In fact, for most of nearly 2000 years, no person who sought to be educated would have failed, for example, to read either Euclid’s Elements of Geometry or Plutarch’s Lives of The Noble Grecians and Romans.  The twentieth century “canon” also embraced what Robert Hutchins called the writings of the “Great Conversation:” works which assumed some acquaintance with the great ancient writings and, philosophically, continued the inquiries the ancient Greeks had so notably begun.  When I speak of the abandonment of “the classics,” I therefore mean to include those works of the Renaissance, the Enlightenment, and of modern times that acknowledge the continued importance, in our search for human understanding, of considering what the ancients had to say.  Alfred North Whitehead, for example, a great twentieth century mathematician and natural scientist, famously observed that whenever he (Whitehead) approached a philosophic problem, “he met Plato coming back.”  He also said that “all of Western philosophy is a footnote to Plato.”

The gradual decline in classical teaching and learning that began after World I  — when extended formal education became more and more common– accelerated after World War II.  In the late 1950’s, after the Russians launched Sputnik, the first man-made satellite, the subordination of liberal learning to contemporary physical science gave a shock to the classics.  The flower power movement of the late 1960’s, launched nearly contemporaneously with the free speech movement at the University of California, began a radical questioning of the value of classical studies in higher education.  It instituted student demands for greater control over the curriculum which led, finally, to total rejection of the idea that to be educated meant, at least partly, to be educated in the classics.  The “canon” was condemned as the bastion of “dead white males,” unfairly depriving students, first, of familiarity with cultures other than that of Western civilization; and, second, of introduction to subjects perceived to be more immediately “relevant” to the ordinary anticipated challenges of everyday life.  By the early 1980’s, even Stanford University had abandoned the requirements of its traditional core curriculum, and faculties of colleges and universities throughout the United States trembled –and I mean literally trembled– at the increasing demands of students for more “relevant” and “politically correct” curricula of their own choosing.  The faculties trembled in their classical convictions, and then they fell, mostly in the name of greater democracy in education.  The result has been an increasing ignorance –I would say a generally abysmal ignorance– of the philosophical and spiritual roots of that democracy itself.  Nominally “well educated” young people are, typically, now almost entirely ignorant of the seminal teachings, both secular and religious, of Western culture.  The scope of such ignorance is often astounding.  It commonly includes ignorance, not only of the ancient, Renaissance, and Enlightenment legacies of philosophic thought and Judeo-Christian doxology, but even of the chief events of World War II.  In the broadest descriptive terms, this is the kind of educational loss we are talking about.

 

III. The Nature of The Loss

 

“And a good thing, too,” many will be apt to say.  In the following remarks, I will summarize, as forcefully as I can, the major arguments of those who are happy to see classical teaching and learning rejected as a standard for higher “liberal” education.

It is no accident, these opponents of classicism might confidently assert, that the decline in classical education started after World War I and rapidly accelerated not long after World War II.  Ten million people were killed in World War I; twenty million in World War II.  These atrocities of the first half of the twentieth century testify to the bankruptcy of the classical ideal of education and classical modes of thought in terms of advancing the human condition.  World War I was entered into by government leaders, and fought by a European officer corps, entirely educated in the classical tradition.  Both the Nazis and the Italian Fascists sought to imitate ancient pagan glories even in their architecture, as their World War II conquests progressively enslaved the democracies of Europe.  The Germans were, moreover, the greatest classical scholars of the nineteenth and twentieth centuries.  Nearly ten million Jews, Slavs, Gypsies, and other Non-Nordics were slaughtered in the name of a pagan ideal as interpreted by the Nazis.  Nor were these the only 20th century political catastrophes related to classicism.  Thirty million or more of the Soviet people were butchered by their own regime in the name of Marxist-Leninism and Soviet Communism.  Karl Marx was deeply educated in the classics; in fact, a great classicist.

In contrast, these opponents of classicism may go on to argue, look at what the 20th century has given us as a result of greater education in the sciences rather than wasting hours contemplating abstract speculations of classical philosophers and theologians: Epidemic disease has been conquered to a degree that would never have been imagined in the ancient world.  In developed countries, we have now arrived at a point where there is more than a fifty percent chance that a girl born today will live past 100.  Longevity has been greatly increased, and both the incidence and risks of serious illness and disease have been greatly reduced, in advanced societies.  Moreover, if economic prosperity is a human good, look at what has been happening here, and in Europe, and in Asia, since we generally got beyond the classics in Western education.  The developed nations of the world may, at this very moment, be enjoying the most prosperous times in world history.  Technological advancements have brought the peoples of the world closer than they have ever been, and one does not have to read Plato, or Aristotle, or Sophocles, or even Alfred North Whitehead, to operate a computer or start up a dot com bringing new economic efficiencies to the world.

Finally, these successful iconoclasts may argue, as to a more democratic rule in education: How can you possibly object to the principle that a student should be free to choose to study whatever the hell he or she wants to study, and not what someone else tells the student is best for him or her?  Isn’t that what democracy is all about?  It is my life, and I should be free to choose how I spend my own dollars and my own time in my own education.

I take the preceding and kindred arguments to be the chief justifications –historical, philosophic, moral, political, social, and academic– for minimizing, if not altogether eliminating, study of the classics from higher education in America.

How can these diatribes be answered?  Let me begin with the later arguments first, the ones about how well we have been doing materially without an emphasis on the classics as a necessary, or at least highly desirable, part of higher education.

It cannot reasonably be disputed that modern medicine and technology have generally advanced our physical and economic well-being.  Furthermore, although the ancient Greeks were among the first human beings we know of who inquired methodically into the nature of the material world, they have very little to teach us about the applied sciences.  Except, of course for their original foundations in observation, logic, and mathematics.  It is worth pointing out in this connection, for example, that Charles Darwin, commenting on how he arrived at his theory of evolution, said “Linneaus and Cuvier have been my two gods, though in different ways.  But they were mere school boys compared to old Aristotle.”  (Aristotle’s  biological and botanical classifications are, by the way, still used in those sciences.)

The valid claims for the gifts of modern science do not, however, dispose of the question at issue.  The question about the relative value to us as human beings of educationally devoting ourselves to applied science (that is, seeking to learn how to manipulate the material world to our benefit) as opposed to inquiring into the classical questions of moral philosophy (such as “What is our nature as human beings?” “Is there a human nature?” or “What is a good life?” or “What is justice?”) is not a 20th century question.  It is a question, in fact, that was first raised by Socrates in the fourth century B.C.; and it was his answer to this question that cost him his life. In Plato’s dialogue, the Apology, Socrates tells us that when he was a young man, he was intrigued by the inquiries of  natural philosophers such as Anaxagoras into the nature of the physical world.  (Anaxagoras is perhaps the first known person to identify the moon and other heavenly bodies as entities which were as material as the earth, and not composed of more ethereal substance.)  But Socrates concluded that inquiring into the nature of the material world was not as important to him as other inquiries.  He thought the most important thing he –or any other human being–  could come to know and understand was himself, as the Delphic Oracle told him he should try to know.  And so the Delphic admonition, KNOW THYSELF, became the wellspring of Western philosophy.

If we want to see what we have lost from our virtual abandonment of classical learning and teaching, we need to think about the choice that Socrates made.  His choice was one that involves reflections and decisions each one of us is still free to make.   It was a choice that proceeded from the opinion that an unexamined life is not as likely to lead to realization of the best in us as an examined life.  It is a choice that includes consideration of what critical thinking is; what the alternatives are for our human conduct; what these alternatives presuppose or imply; and how we can make the most practical, prudent judgments about the course of our lives in relation to particular situations.  So if we do not want to live mechanical lives  –lives shaped mostly, or even entirely, by things outside ourselves– but, rather, want to reflect upon who we are sufficiently to increase our chances of living with integrity to ourselves, then we must consider the wisdom of the choice Socrates made.  He chose to devote his life to inquiring into the nature of human being and our ethical and spiritual condition.  As I shall argue, abandonment of classical learning in its larger sense is, in essence, an abandonment of that Socratic inquiry.

Unlike the progressive findings of applied science, the most recent opinions about our ethical and spiritual condition are not necessarily the best or the most illuminating.  In this sphere of human concern, “newer” is not always “better.”  In certain respects, the ancients had a firmer and clearer grasp than most celebrated moderns do of the character of our human condition.  In this assertion,  I share Professor Bernard Williams’ opinion, expressed in his fine book, Shame and Necessity (University of California Press, 1993), that when we study the ancient Greeks, we are looking at ourselves.  “The Greek past,” Williams has written, “is specially the past of modernity…The modern world was a European creation presided over by the Greek past.  In some ways, the basic ethical ideas possessed by the Greeks were different from ours, and also in better condition” (emphasis added).  Or, as the poet Shelley wrote more enthusiastically: “We are all Greeks.  Our laws, our literature, our religion, our arts have their roots in Greece.”

Who can ever know who he or she is, if they do not inquire into how their past has shaped them, and what implicit choices they have made about the character of the lives they are living, not deliberately and consciously, but by influences that have shaped them?  None of the writings of Plato, Sophocles, St. Augustine, Rousseau, Hegel, or Freud (to take just a few examples related to the quest for self-knowledge) is now generally required undergraduate or university reading.  Such condoned ignorance about the most thoughtful inquiries into human nature compounds the difficulties for anyone wishing to follow the Delphic admonition to Know Thyself as the first principle of philosophy for mature intellectual souls.

And this brings me back to the first, and perhaps most chilling arguments against classical education: Its alleged identification with the tragedies of World War I, World War II, and 20th century totalitarianism.  The answer to those arguments is essentially this:  They are exactly wrong.  The twentieth century has provided perhaps the greatest examples in all recorded history of the tragic consequences of the abandonment of classical moral thought and, later, the influence of corrupted and misunderstood ideas upon human events; consequences that have rightly moved its surviving victims to say “We must never forget.”

The German Kaiser, intoxicated with his personal power as Emperor and arrogantly determined to expand it, had relieved from the helm of his government one of Europe’s most prudent statesmen, his Prime Minister Otto Von Bismarck.  It is now known that almost immediately after the order had gone out from the Kaiser to his general staff to commence the hostilities of World War I, the Kaiser, realizing the tragedy that was about to unfold, tried to stop it.  But it was too late.  The technology of the early 20th century military machine had been unleashed, and could not be stopped in time to undo it.  In response to the invasion of Belgium, the idealistic young men of England, following their patriotic ideals (and belief in a short war) enlisted in a war led by a general staff that stupidly refused to adjust its critical thinking to the technology of modern warfare, leading to the truly tragic slaughter of almost an entire generation of fine English youth.  One does not have to be a Platonic scholar to conclude that it was not anachronistic classicism that led to this slaughter; it was, rather, ignorance and disregard of the importance of the classical virtues of prudence, temperance, and even courage.

As to the Soviet regime, its chosen philosopher, Karl Marx, had abandoned classicism for a “dialectical materialism” he invented, a conceptual engine derived from Hegel’s logic but loosely founded on ideas of applied (sociological) “science.”  The Soviets prided themselves on the “scientific” nature of their regime –and its godlessness.  And though Nietzsche was an ideological foe of organized Christianity and more skeptical even than Socrates, he would have detested the Nazi version of the “superman” as a totally ignoble perversion of his vision of human being at its best.  The Nazi ideologues were, moreover, supported in their fanaticism by a philosopher –Heidigger– who specifically rejected the ancient classics (Socrates’ thinking in particular) as the source of what he called a “magnificent error.”

The tyrannical corruptors of twentieth century political life were partly motivated by a will to personal power, and partly by claims related to the achievement of human “freedom” as they claimed to envision it.  The idea of “freedom” is one of the paramount –perhaps the paramount– political idea of our world civilization.  The classical idea of freedom was grounded on an understanding of human nature and the duties of ethical behavior.  We must carefully consider what abandonment of attention to this idea of freedom may mean.  Is a healthy future even possible for any civilization in which the idea of “freedom” becomes progressively confused and identified, not with duty, rationality, and ethical behavior, but with greater and greater individual license, and absorption in the pursuit of narrow material self-interests?  Both Plato (in the Republic) and Alexis deTocqueville (in his prophetic work, Democracy in America) expounded the tendency of democratic peoples to turn liberty or freedom to license, and to forget the importance of duty and rational moral behavior as indispensable to the best and wisest possible realization of human being, whether in community or individually.  Where is there now, in our technological consumer society, anything with a power even remotely comparable to this tendency –the now socially approved tendency to look out only for ourselves– to help remind us of its possible consequences, and to help combat it?  It is classicism that reminds us, as the ancient Greeks thought and believed, that our human being is inseparable from our shared community with other human beings.  In Aristotle’s maxim: “Who would live alone…is either a beast or a god.”

In sum, among the things we have lost in our abandonment of classicism –and I won’t even mention in detail the aesthetic sublimity of its literature– is promotion of an understanding of what it means to live free in community with others, through the use of prudent reason as a guide and regulator of our self-interested passions; a deepened understanding of our ethical and spiritual condition, rather than an almost exclusive preoccupation with our economic and material habits and aspirations.  The  characteristic disdain of contemporary Western culture for the timeless teachings of classicism, is a potentially tragic misdirection; one that threatens to disenable us from achieving our fullest human potential as we swim more and more deeply into the materialistic consumer morass.  And this brings me to what I regard as the greatest potential future loss we may suffer as a result of the decline in classical teaching and education: the actual threatened loss of our democratic freedoms.

 

IV. What We Are in Danger of Losing

 

We are confronted, right now, here in the United States, with a potentially fatal Constitutional crisis of epochal proportions; one that is, however, virtually invisible to the vast majority of our people except in certain of its effects.  This crisis is directly related to the decline in respect for classical education as understood by the Founding Fathers of our democratic republic.  It revolves around the specific question: how should the United States Constitution be interpreted if those who interpret it are to carry out the original intent of its framers?

The characteristic twentieth century ethical and philosophic view is one that may be called “historicist relativism.”  It is cogently expressed in the view that “there are no absolutes;” that all opinions are no more than the expression of a set of biases local to a specific time and place (including, of course, the view that all opinions are just the expression of the biases of a specific time and place).  The dominant scholarly view of what law itself is, reflects this 20th century relativism.  It began its ascendancy in American legal thought with an opinion by Justice Oliver Wendell Holmes, Jr. in 1928.  In a case called Black and White Taxicab Co. vs. Brown & Yellow Taxicab Co. (276 U.S. 518, at 533-34, 1928), Justice Holmes rejected as a “fallacy and illusion” the idea that judges might be able to discern, through reason, enduring principles forming the substance of the common law.  Justice Holmes declared in that opinion:

“If there were such a transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute, the Courts of the United States might be right in using their independent judgment as to what it was.  But there is no such body of law.”

We need to consider this statement of Holmes’s in the light of Plato’s metaphor of the cave.  Viewed from the classical perspective, Justice Holmes was declaring in this opinion: “There is no fire; there is no sunlight.  There are only shadows.”  Holmes’s opinion was a seminal expression of a view of the law called “legal positivism” or “legal realism.”  It is a view holding that the law has absolutely no moral basis other than what a majority of people, or their representatives in a democratic republic, say the law is.  Under this opinion of what valid law is, if a law were duly enacted through established procedures –say by a Constitutional Amendment– declaring, for example, that the property of all people of Greek-American descent, or Jewish blood, or Islamic faith, was to be forfeited to the State, and that all such people were to be interned in concentration camps –or worse– there would be nothing inherently unjust about it, as much as you might personally dislike it!  For justice is defined totally, under this view, by what a majority of people say that it is.

This is not the view of the law taken in the 18th century by Thomas Jefferson; or in the 19th century by Abraham Lincoln; or even in the 20th century by advocates of conscience such as The Reverend Martin Luther King, Jr..  But it is the dominant view among legal theorists today; and not only academics, but the view of many of our most powerful judges.  The view of the foundations of law taken by Jefferson, and Lincoln, and King, was that expressed in our Declaration of Independence: that the “laws of Nature and of Nature’s God” endowed all men, who are “created equal,” with certain unalienable rights, and that among these are the rights to “Life, Liberty, and the Pursuit of Happiness.”  Lincoln’s view, in other words, was, like Jefferson’s, that the principles of the Declaration of Independence were intended by the Founders, following their Enlightenment beliefs, to be written into the U.S. Constitution.  Lincoln believed, in effect, in principles of natural right and natural law, generally in accord with the idea of law propounded by St. Thomas Aquinas, namely, that law, properly understood, had, by definition, to be

an ordinance of reason
for the common good

promulgated
by those who are at the head of a community.

This Thomistic definition of law has its roots, in turn, in the teachings of ancient moral and political philosophy; more specifically, in the writings of Aristotle.  It was on the basis of this view of the law that Martin Luther King, Jr. was able to say that his famous “I Have a Dream” speech at the Lincoln Memorial in 1963 was a call to the conscience of America to make good on its promises in the Declaration of Independence.  It is on the basis of this natural right view of the law, that we can say a law that is unjust cannot command our consciences, even though we believe in the principle of majority rule.  As Thomas Jefferson said in his First Inaugural Address:

“All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression.”  (emphasis added)

In contrast to the natural right view of the law held by our Founding Fathers, a number of the present Justices of the United States Supreme Court –including the Chief Justice, and perhaps even the present majority of Justices– have declared themselves to be legal positivists, opposed to the Lincolnian view of the Constitution and the principles of natural right and natural law referred to in our Declaration of Independence.

Let us consider for a moment, the likely potential practical consequences of this state of affairs.

We are an increasingly diverse society, enjoying the liberties of a democratic republic for a longer period than that enjoyed by any great power in world history.  We have entered into a period of moral relativism in which the dominant public ethos is one of fierce individualism and an almost obsessive consumerism.  The most powerful interpreters of our laws –and, indeed, the major portion of the legal profession as a whole– accepts no compelling moral basis for the nature of our law other than the principle of majority rule.  In fact, they are imprudently dogmatic in the view that there are no absolutes.  The classicist approach to matters of human being is, on the contrary,  not intrinsically dogmatic.  It is skeptical: it asks questions, and more questions, and more questions.  But it holds to the view that there is a human nature, and part of its nature is endowed with reason and right.  Is not abandonment of this view in our highly diverse society a recipe for increasing social discord among competing groups? Is not such rejection of all principles of conscientious reconciliation –other than the force of a majority– a guarantor of increasing discord in a highly individualistic, fragmented community?  And if such discord escalates to the point of regular, traumatic violence –as it nearly did in the decade of the nineties– isn’t it likely that the public at large –the majority– will be willing, increasingly, to narrow the scope of our civil liberties to obtain greater civil security against violence?

This is the ultimate future prospect we face from the progressive decline of respect for classical teaching and learning, and the timeless human search for enlightenment as to the nature of our human being.  It is an abandonment of what classical learning has to teach us in the false name of democracy, from a shadowy view of individual self-fulfillment, and from a short-sighted elevation of material well-being above concern with our full human character as material and spiritual beings.  It is an insistence that we return to the cave, and continue to stare at the wall, and deny the existence of a clearer light.  In this situation, I genuinely fear for my grandchildren’s future freedom.  What, I wonder, can we do about it?

 

(C) January 23, 2001 Harrison Sheppard

 

A Lawyer’s Life Can Be A Happy One

 

Published in the Hastings Weekly, February 2004.
University of California Law  School

 

When a felon’s not engaged in his employment
Or maturing his felonious little plans,

His capacity for innocent enjoyment

Is just as great as any honest man’s.

But take one consideration with another,

A lawyer’s lot is not a happy one.

–adapted from Gilbert & Sullivan.

So you want to be a lawyer?  Studies during the past 20 years have shown that lawyers are among the most depressed class of professionals in the United States.  Some have shown that they are the most depressed.  In urban areas, alcohol and drug abuse have been reported by State Bar Associations to be among the most common problems afflicting lawyers –especially trial lawyers.  The past often predicts the future.  It is therefore important for you to consider why you want to be a lawyer, and the kind of lawyer you are going to be –not technically, but humanly.

There are many reasons students decide to go to law school.  These include to make a good living –or even become “rich”– in an interesting profession; to develop one’s talents in a calling congenial to one’s personality; to pursue a law-related career ambition, such as politics or government; to follow a family tradition; and to help promote justice in a highly competitive society where injustice is not a rare thing.

I have heard lawyers say that they were making more money than they ever thought they would, but were also unhappier than they ever imagined they could be.  After nearly 40 years as a civil lawyer in both public and private practice, I have come to some firm conclusions about why so many lawyers are unhappy people.  I will share these conclusions with Hastings students in a talk and discussion at the Law School, sponsored by the Placement Office, on Wednesday, February 18.  One of my main conclusions is that many lawyers are unhappy precisely because the prevalent legal practice ethos has led many lawyers to lose sight of the real reasons they wanted to become lawyers in the first place.  They do this out of a perceived practical necessity. My own experience tells me, however, that no such necessity really exists, and that a lawyer’s life can be a happy one so long as his or her original motivating visions are not lost.  Practicing lawyers are likely to tell you that this is very difficult to do.  To the contrary, as my talk will explain, the real difficulties for lawyers arise when they accept this point of view.  For the longer term, and in the deepest sense, remaining true to one’s self is the easiest thing to do.

And when you do that, your lawyer’s life can be a happy one.

Harrison Sheppard (Hastings ’67), principal of Harrison Sheppard Law & Conflict Resolution and a frequently published essayist, is author of What’s Right with Lawyers/What’s Wrong with Lawyers. His column on Law & Justice appears regularly in San Francisco Attorney magazine, the quarterly journal of the Bar Association of San Francisco.  His website is voicesoflife.com.

(c) 2004, Harrison Sheppard

Reflections on the Purpose of Law

San Francisco Attorney magazine, Winter 2003

 

I have been practicing law for thirty-five years, and I remain proud to be a lawyer in the United States.

As I have written elsewhere[1], the American legal profession and its most accomplished members have been among the most civilizing and progressive forces in history. American lawyers, going back at least to Thomas Jefferson, have helped to provide others with a better life through their vigorous defense of individual human rights, their political acumen—more than two-thirds of our presidents during the first 150 years of our nation’s history were lawyers—and by the contributions lawyers have made to the world’s economic and social development.

It is great to be a member of a profession whose very existence is designed to elevate human conflict from the brutish to the civilized, as Aeschylus’s mythic trilogy, The Oresteja, depicts in its transformation of blood vendetta to the reasoned discipline and restraint of trial by jury. The exercise of reason in human affairs is the most reliable means for bringing of stability and justice out of the chaos of human competition and conflict. “The life of the law,” as John Locke wrote, “is reason.”

Understanding the essential purpose of the legal profession is gratifying. Even greater gratification may come from helping clients resolve their problems, not only through the occasional trial of a case but, more often, through humanistic counseling and skilled negotiation. I spent the first two-thirds of my legal career in the federal government, with the U.S. Department of Justice and the Federal Trade Commission. There are, of course, satisfactions a lawyer enjoys from the practice of public law. These are derived mainly from being a position to help implement beneficial public policy. The satisfactions of advancing a good government policy, however, are rather abstract; one rarely sees how government work actually affects individuals. They are, therefore, generally less than the satisfactions private practitioners can enjoy from seeing their work make concrete, positive differences in the lives of the men, women, and—at least in effect— children that come to them for help, as well as from contributions they make to the well-being of their business clients’ enterprises. These greater satisfactions are compounded for me as a solo practitioner and independent businessman with the luxury of choosing my clients and regulating my own calendar.

When you run your own business, there are also things that come with the territory that are not-so-great. There is constant worry about the bottom line, from which you are, of course, exempt if you are a salaried employee. There can be nerve-wracking uncertainties about the ultimate outcome of a case in which you have invested much thought and labor, because of difficult facts or conflicting rules of law, or the discretion vested in judges. There is the occasional deadbeat client, sometimes one for whom you have worked above and beyond the call of duty. And, of course, the lost case or the case that, for one reason or another, prudence requires you to settle on terms that seem to you unfair.

These are perils of practicing law, but they are not nearly as disappointing or frustrating as the commonly disappointing character of prevalent American legal practice itself, and the concomitant erosion of civility in relationships between opposing counsel.

The general character of American legal practice has changed much for the worse during the past thirty-five years. I believe this has been chiefly a result of three developments: (1) the great growth in large firm legal practice; (2) the U.S. Supreme Court’s decision in Bates v. State Bar of Arizona (removing restrictions on lawyer advertising); and (3) the degraded image of the legal profession due to the misbehavior of so many lawyers (including the U.S Attorney General in the Watergate scandal). These developments have caused the dominant ethos of American legal practice to become more that of business enterprise than of a learned, humanistic profession. A dozen or so books by distinguished attorneys and scholars published in the 1990s document and lament this trend.2 The pressing necessities of “the billable hour,” the loss of the mentoring system in law firms, and a common collective loss of memory of the true roots of the American legal profession in history—the common law and the Unites States Constitution—have led to a common ethos in legal practice encouraging the “gun-for¬hire,” “Ambulating,” and “take-no-prisoners” mentalities that have widely corrupted the professional behavior of lawyers. Experiencing this corruption can sometimes make the practice of law an unpleasant experience.

Lawyers who do not take their constitutional oaths as seriously as they should—that is, who do nor make the pursuit of justice a paramount concern in the exercise of their calling3—are also likely to ignore the spirit of reason and civility that defines the essential character of the law. Having to deal with such lawyers is the worst thing about being one. The uncivil lawyer is well-armed with self-serving, self-interested excuses for his or her behavior:

“I’m only doing what my client wants me to do,” or “I’d prefer to be civil, but I have to deal in kind with all those other uncivil lawyers to protect my clients’ interests.”

These excuses—half-truths at best—generally mask the abrogation of a lawyer’s professional responsibilities as counselor and peacemaker, and often amount, in my opinion, to chosen Incompetence. As Elihu Root, the great New York civil lawyer and Secretary of State under President Theodore Roosevelt, said, “About half the practice of any decent lawyer consists of telling would-be clients that they’re damned fools, and should stop.” In contrast to the ubiquity of these public excuses and rationalizations for uncivil behavior in legal practice, I have never met any lawyer—including self-professed “Rambos”— who does not admit, at least in private, that if he or she and opposing counsel had dealt with each other with discreet candor and civility, and counseled their clients skillfully and with reason, many of their most difficult cases could have been settled in a small fraction of the time it took to resolve them through the costly, stressful, and often unnecessary procedures of formal discovery and litigation.

The contradiction between this practically self-evident and almost universally understood truth and the typical behavior of practicing lawyers today is the least-great thing about being a lawyer. As an incorrigible optimist, however, I see some possible antidote to this situation in the growth of mediation and in the recognition of its economies by corporate America. Now, if our law schools could also evolve to address the critical need to educate students as better negotiators and problem-solvers and de-emphasize the lawyer’s role as warrior, I could more confidently predict that the next generation of lawyers would be less likely to complain about what is not-so-great about being a member of our profession. I would add, more than by the way, that, given America’s present place in the world, a return to great civility in the practice of our profession could make an important contribution to world peace.[4]

NOTES
1. “Cashing in On Conflict,” The Washington Post, June 5, 1996; “The Triumphs of Law and Lawyers in the United States,” The Hellenic Journal, June 16,1995.
2. See e.g., the citations in Sheppard, “American Principles & The Evolving Ethos of American Legal Practice,” 28 Loyola University Chicago Law Journal 237, 246, note 19 and passim, Winter 1996.
3.See, e.g., Sheppard, “Legal Education and the Future of the Republic,” a talk to the Yale Law Club of San Francisco, published in Vital Speeches of the Day, April 5, 1998.
4. See, e.g., Sheppard, “A Lawyer’s Christmas Message,” San Francisco Chronicle, December 25, 1997.