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Wednesday, May 26, 2010 Talk: Economic Roundtable
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.”
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
* 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.  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.”
 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.
 American Principles & The Evolving Ethos of Aerican Legal Practce, 28 Loyola Unversity Chicago Law Jurnal 237, Winter 1996.
[Published in edited version in The Envisioned Life: Essays in Honor Of Eva Brann, Paul Dry Books, Philadelphia, 2007]
by Harrison Sheppard
For St. John’s College, Santa Fe, New Mexico
November 5, 2004
Dedicated to the Memory of Jacob Klein
ALEXIS DE TOCQUEVILLE, who wrote Democracy in America during the second quarter of the 19th century, believed that American lawyers of his time were “the most powerful existing security” against the potential excesses of democracy. By “excesses of democracy,” Tocqueville meant a tendency toward either a kind of anarchy or “mob rule,” or an oppressive tyranny of the majority leading to despotism. In the course of this lecture, we will examine the reasons for Tocqueville’s beliefs. We will then consider the significance of Tocqueville’s views as they relate to the prevailing character of American lawyers today. The real subject of this lecture, therefore, is the likely future of the United States of America as it may be affected by the habits and practices of 21st century American lawyers.
Members of the legal profession in good standing are designated by three different titles signifying their diverse functions. The first and most common title is “lawyer,” which, etymologically parsed, signifies “one who speaks the law.”
The second common title is “attorney,” which means “one who stands in the place of (or represents) another.” (It is because of this meaning of the word “attorney” that one may be an “attorney in fact” as well as an “attorney at law.”)
The third title is “counsel” or “counselor,” signifying “one who gives advice.” Such advice need not be limited to advising a client about what the law says. As a Rule of Professional Conduct published by the American Bar Association stated, “In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation,” ABA Model Rules of Professional Conduct, Rule 2.1, “ADVISOR.”
Significant discourse about “lawyers” in America should include, and may perhaps best begin with, a clear understanding of the nature of the “law” that American lawyers are supposed to speak. In this country, the U.S. Constitution and federal laws “enacted in pursuance thereof” are declared to be “the supreme Law of the land” (U.S. Constitution, Article 6), indicating that American lawyers should at least partly be governed in what they say about the law by their understanding of the provisions of the U.S. Constitution and its guiding purposes. We should, however, consider the most fundamental definition of “law” in a reasoned discussion of the kind of law American lawyers are supposed to speak. For this purpose, I choose to refer to the seminal definition of “law” given by St. Thomas Aquinas in his Treatise on Law in the Summa Theologica, namely, that
Law is an ordinance of reason, for the common good, promulgated by those who have the care of the community; Thomas Aquinas, Treatise on Law, Question 90, Of the Essence of Law.”
I suggest that this definition states a proper understanding of authoritative American law as the authors of our Constitution would have understood it. It is a definition that accords with John Locke’s view, reflected also in the writings of Blackstone (with which most of the Founders were familiar), that “the life of the law is reason.” A political “ordinance” that fails to conform substantially to the Thomistic definition of law is something other than “law” properly understood; it is, rather, usually a mere edict, like a royal decree in antiquity, pronounced by those who have the power to enforce their will in a given polity, without necessarily possessing the authority of either reason or care for the common good.
It is with these premises that I introduce my discussion of what Alexis de Tocqueville had to say in the second quarter of the 19th century about American lawyers in his enduring and often prophetic work, Democracy in America.
I. Classical Criticisms of Lawyers
Tocqueville’s consideration of the part American lawyers play, or should play, in the American polity is, for the most part, highly complimentary, even flattering. This may come as something of a surprise to those familiar with the critical literature, both ancient and modern, condemning the character of the typical lawyer and the way he works. Consider the following complaints about lawyers found in great secular and religious literature, ancient and modern:1
We can go back at least as far as the Bible to find admonitions against “going to law” against your neighbor.2 The Gospel According to St. Luke, however, includes the following direct condemnation of lawyers (Luke 11:46):
Woe unto you also, ye lawyers! For ye load men with burdens grievous to be borne and ye yourselves touch not the burdens with one of your fingers.
In Plato’s time, there were no lawyers, as we know them. But what Plato has to say about the closest ancient Athenian equivalent to a lawyer –what Plato calls “the man of the law courts” in the Theatetus (at 172-73)– resembles what may be said about lawyers to this day:
But…the man of law courts is always in a hurry when he is talking….[He is] keen and high-strung, skilled in flattering [his] master and working his way into favor; [causing[ his soul to be small and warped. His early servitude prevents him from making a free, straight growth; it forces him into doing crooked things by imposing dangers and alarms upon a soul that is still tender. He cannot meet these by just and honest practice, and so resorts to lies and to a policy of repaying one wrong with another; thus he is constantly bent and distorted, and in the end he grows up into manhood with a mind that has no health in it, having now become –in his own eyes—a man of ability and wisdom. There is your practical man, Theodorus.
Jonathan Swift skewers lawyers at length with an hilarious combination of fact and satire (Gulliver’s Travels, 265-266, Alfred A. Knopf pub., 1991):
I said there was a society of men among us, bred up from their youth in the art of proving by words multiplied for the purpose, that white is black and black is white, according as they are paid. To this society the rest of the people are slaves.
For example, if my neighbor hath a mind to my cow, he hireth a lawyer to prove that he ought to have my cow from me. I must then hire another to defend my right; it being against all rules of Law that any man should be allowed to speak for himself. Now in this case, I who am the true owner, lie under two great disadvantages. First, my Lawyer being practiced almost from his cradle in defending falsehood, is quite out of his element when he would be an advocate for justice, which as an office unnatural, he always attempts with great awkwardness, if not with ill-will. The second disadvantage is, that my lawyer must proceed with great caution: Or else he will be reprimanded by the judges and abhorred by his brethren, as one who would lessen the practice of law….
It is a maxim among these lawyers, that whatever hath been done before, may legally be done again: and therefore they take special care to record all the decisions formerly made against common justice, and the general reason of mankind. These, under the name of precedents, they produce as authorities to justify the most iniquitous opinions; and the Judges never fail of directing accordingly.
In pleading, they studiously avoid entering into the merits of the cause; but are loud, violent, and tedious in dwelling upon all circumstances which are not to the purpose…
It is likewise to be observed, that this society hath a peculiar cant and jargon of their own, that no other mortal can understand, and wherein all their laws are written, which they take special care to multiply, whereby they have wholly confounded the very essence of truth and falsehood, of right and wrong; so that it will take thirty years to decide whether the field, left me by my ancestors for six generations, belongs to me, or to a stranger three hundred miles off.
To these may be added indictments of the practices of lawyers by Shakespeare (in Hamlet3 as well as in Henry the VI Part 2),4 Dickens5 (who clerked for a time in an English Inn of Court), Adam Smith,6 and by many scholars,7 wits,8 and muckrakers9 in the 20th century.
How may we summarize these classical and contemporary condemnations of the practices of lawyers? This way, I think: Lawyers tend to be greedy sophists, devoted far more to the technicalities of the causes they advocate and the fees they are paid for their efforts, than to substantial justice. Their characteristic method is eristic and sophistical argumentation hostile to discourses of reason that seek the justice of a case. They are habitually wily in their practices and, at best, amoral. They acquire habits of mind that positively lead them to dishonesty and, consequently, to the promotion of injustice. By adhering to their sophistic arts instead of moral considerations, lawyers “touch not with even one of their fingers,” the real burdens borne by the clients whose best interests they are supposed to serve.
This widespread characterization of lawyers does not, however, express the dominant view of lawyers Tocqueville appears to take.
II. Tocqueville’s Fears About The Future of Democracy
Here is Tocqueville’s seminal statement about lawyers in Democracy in America:
I am not ignorant of the defects inherent in the character of this 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 hope to exist at the present time, if the influence of lawyers in public business did not increase in proportion to the power of the people (Democracy in America, Everyman’s Library [hereafter “Everyman”], Alfred Knopf, NY, 1994, Chapter XVI, Vol. I, “Causes Which Mitigate The Tyranny of the Majority in the United States,” p. 276, emphasis added).
To understand the meaning of this apparent heterodoxy, we have to understand, first, what Tocqueville feared about the possible future of democracy in America as it might prefigure ever-more pervasive democracy in the world; and, second, what he meant by “lawyer-like sobriety” in the context of the sentences I have just quoted.
In the Introduction to the first volume of Democracy in America, after surveying the history of Western civilization, Tocqueville concluded that the steady development of democracy –-by which he meant “a general equality of [social] condition among the people”— was an “irresistible revolution” and a “providential fact.”10 He eloquently summarized the reasons for this trend as follows (Everyman, Vol. I, p. 5):
From the time when the exercise of the intellect became a source of strength and of wealth, we see that every addition to science, every fresh truth, and every new idea became a germ of power placed within the reach of the people. Poetry, eloquence, and memory, the graces of the mind, the fire of imagination, depth of thought, and all the gifts which Heaven scatters at a venture, turned to the advantage of democracy; and even when they were in the possession of its adversaries, they still served its cause by throwing into bold relief the natural greatness of man. Its conquests spread, therefore, with those of civilization and knowledge, and literature became an arsenal open to all, where the poor and the weak daily resorted for arms. In running over the pages of our history, we shall scarcely find a single great event of the last 700 years that has not promoted equality of condition.
Tocqueville was a 19th century French aristocrat who confessed some sadness at the passing of the old order. An evidently pious, if not conventionally religious, Catholic who declared “I believe, but I do not practice,”11 he sought to find and accept reasons to rejoice in what he characterized as the will of a just God. The whole of Democracy in America was written, he said, “under the influence of a kind of religious awe…of that irresistible revolution which has advanced for centuries in spite of every obstacle…” (Everyman, Vol. I, p. 6). As a political scientist, he undertook by coming to America, where democracy as he understood it was most fully developed, to study and to understand it, and then consider how its inevitable human imperfections could best be mitigated. He is explicit about this:
I confess that, in America, I saw more than America; I sought there the image of democracy itself, with its inclinations, its character, its prejudices, and its passions, in order to learn what we have to fear or to hope from its progress (Everyman, Introduction, Vol. I, p. 6).12
Like many, if not, indeed, nearly all, of the Founders of the American Republic, Tocqueville feared what common people –the demos– might do with their power in democratic society. He feared –one might even say correctly he predicted— that the democratic outlook would lead to the following political developments:
First, a highly centralized government tending toward a diminished concern for individual rights; second, an enormous expansion of governmental power in regulation of private enterprise and in providing for the public welfare; third, a consequent need for the development of countervailing aggregations of private power to prevent the government from becoming too oppressive; fourth, an increasing tendency toward political apathy, following an almost complete absorption in private business and affairs on the part of people generally; fifth, a reluctance of the people to withdraw their confidence in the government “in the midst even of its excesses and errors;” and, sixth and lastly, agreeing with Thomas Jefferson (who Tocqueville regarded as “the most powerful advocate democracy has ever had”), a greatly expanded power in the Presidency “at a distant period.”
Tocqueville’s fears about the future of democracy may be seen as focusing upon two main concerns: the possible development of a welfare state, which he eloquently condemns as a “despotic” polity promoting material well-being at the price of spiritual impoverishment,13 and the exercise of a “tyranny of the majority” oppressively disregarding the rights of minorities and of individuals.14 (These at least echo, as you will recognize, the prognosis for failed democracy in Plato’s analysis of polities in the Republic.15) Tocqueville’s fears were, however, overridden by his faith that the flourishing of democracy was the result of “Divine Providence.” He declares in his Introduction that, though he is “ignorant” of God’s designs, he “shall not cease to believe in them because [he] cannot fathom them, and [he] had rather mistrust [his] own capacity than [God’s] justice. “
Throughout Democracy in America, Tocqueville therefore looks for elements at work in American society that may operate to prevent the degeneration of democracy into anarchy, or into a benevolent but wholly materialistic despotism, or into a complete tyranny of the majority. He finds five American institutions that give him such hope, in most of which lawyers may play a substantial part. These are:
1. Private Voluntary Associations
2. A Free Press
3. Trial By Jury
4. The American Legal Profession Itself
5. The “Spirit of Religion”
Let us briefly consider each of these in turn, maintaining our focus upon what Tocqueville has to say about the American legal profession.
III. Tocquevillian Safeguards Against Democratic Anarchy, Despotism, and
The Tyranny of the Majority
1. Private Voluntary Associations. At the beginning of the 19th century, Tocqueville could accurately say that the United States was “the only country on the face of the earth where the citizens enjoy unlimited freedom of association for political purposes” (Everyman, Vol. II, Chapter VII, p. 115). Tocqueville begins a Chapter in Volume I titled “Political Associations in the United States” (Everyman, Chapter XII, p. 191) with this observation:
In no country in the world has the principle of association been more successfully used or applied to a greater multitude of objects than in America….In the United States associations are established to promote the public safety, commerce, industry, morality, and religion….
At the present time the liberty of association has become a necessary guarantee against the tyranny of the majority. In the United States, as soon as a party has become dominant, all public authority passes into its hands… There are [therefore] no countries in which associations are more needed to prevent the despotism of faction or the arbitrary power of a prince than those which are democratically constituted (Everyman, Vol. I, Chapter 12, pp. 191-185).
Tocqueville considers private voluntary associations, and private associations with a public purpose, as constituting “a separate nation in the midst of the nation, a government within the government.” He views their continued existence as indispensable to the preservation of minority liberties by exercising collective, vocal power outside of government. We should judge for ourselves the extent to which private voluntary associations continue to function as safeguards against either oppressive government or the tyranny of the majority in the United States; but we need also to consider the extent to which they may presently operate to entrench, rather than disperse, centralized power in the use made of them, for example, in political campaign financing. Might Tocqueville have had too narrow a view of the potential effects of private voluntary associations in America for good and ill? The growing public apathy about politics Tocqueville feared as a likely development in American society seems to have been realized. May that not operate to diminish the extent to which the most effective voluntary associations today are, on the whole, more likely to be associated with, rather than distant from, the axes of established political power, thus diminishing their Tocquevillian function as countervailing forces against the power of government?
2. A Free Press. In Tocqueville’s day, a “free press” meant mainly the liberty of newspapers to publish independent opinions. Tocqueville was restrained in his appreciation of liberty of the press. “I confess,” he wrote:
that I do not entertain that firm and complete attachment to the liberty of the press which is wont to be excited by things that are supremely good in their very nature. I approve of it from a consideration more of the evils it prevents than of the advantages it ensures (Everyman, Vol. I, Chapter XI, “Liberty of the Press in the United States,” at p. 181).
This restraint was no doubt born in part from his awareness of how irresponsible and misleading the American press could be — perhaps even more in his day than in ours. It was also partly the result of an observation he makes in the very first sentence of his chapter on liberty of the press (Everyman, ibid.):
The influence of liberty of the press does not affect political opinions alone, but extends to all the opinions of men and modifies customs as well as laws.
In his admiration of a free press for “the evils it prevents,” Tocqueville associates a free press closely with the salutary power of voluntary associations. Given the likely geographic dispersion of the membership of voluntary associations large enough to exercise significant power, he argues that
There is a necessary connection between public associations and newspapers: newspapers make associations, and associations make newspapers,…Thus it is in America that we find at the same time the greatest number of associations and of newspapers (Everyman, Vol. II, Chapter VI, p. 112).
We need not dwell on the importance of a free press for preservation of political liberty, its special power to help promote the security of minorities and the rights of individuals by providing the public with the information it needs, and to which it is entitled, if it is to be able to assess the actions of its government. It is, I think, enough to note that the First Amendment to the U.S. Constitution, which is, accordingly, the first of its “Bill of Rights,” is the Amendment that says in relevant part:
Congress shall make no law…abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances (emphasis added).
We do need to ask, however, how the provisions of the First Amendment have been interpreted and both restricted and expanded over the past 215 years; by whom it is authoritatively interpreted (lawyers and judges, of course); how the addition of radio, television, and the internet as means of communication subject to First Amendment protection have changed what we understand by a “free press;” whether, or to what extent, these modern media effectively enhance, or compromise, or even distort, the political functions of a free press as envisioned by the Founders. Consider, for example, Tocqueville’s concern about the effects of a free press on social custom when, as at present, they include the cultural effects of television. 16
In the 1930’s, public hearings were held to consider federal issuance of radio licenses. David Sarnoff, President of RCA, testified that it was “inconceivable” that the public airways would be used for commercial purposes. One is tempted to ask whether the “public airways” are, in effect, now being used for any other purpose, even in the context of considering network television news broadcasts. In considering America’s free press as a safeguard to liberty and check on governmental power, we should also ask these questions: Has the substantial decrease in the number of newspapers in the United States since Tocqueville’s day –during the past half century especially– coupled with the increasing concentration of major mass media generally, operated to reduce the availability to Americans of the range of readily available, politically significant information? Has private censorship of the “public” airways significantly reduced the extent to which the American press represents and advocates minority political opinion? Does the public continue to have sufficient access to the information it needs to judge the extent to which our government, in Lincoln’s formulation, remains a “government of the people, by the people, and for the people?”
3. Trial By Jury. Speaking of the centuries long establishment, in English law, of the institution of trial by jury, Tocqueville says,:
A judicial institution which thus obtains the suffrages of a great people for so long a series of ages, which is zealously reproduced at every stage of civilization, in all the climates of the earth, and under every form of human government, cannot be contrary to the spirit of justice (Everyman, Vol. I, Chapter XVI, “Causes Which Mitigate the Tyranny of the Majority in the United States,” p. 281).
Tocqueville has a very high opinion of the effects of trial by jury –in both civil and criminal cases– on the people of a democracy. He considers the institution as important an incident of the sovereignty of the people as the right to vote. Trial by jury decisively affirms the sovereignty of the people in their most important encounters with governmental power.17 Jury service is, moreover, in Tocqueville’s view, an institution that educates and elevates people to exercise their democratic powers with greater prudence and regard for justice by imbuing
all classes with a respect for the thing judged and with the notion of right…It teaches men to practice equity; every man learns to judge his neighbor as he would himself be judged. And this is especially true of the jury in civil causes; for while the number of persons who have reason to apprehend a criminal prosecution is small, everyone is liable to have a lawsuit (Everyman, Vol. I, p. 284).
The process of selecting a jury in both civil and criminal cases in the United States is generally in the hands of the judge and the attorneys on each side of a case. In high profile criminal cases, and in civil cases where a great deal of money is involved, this has become a sophisticated art. The recent Hollywood movie, Runaway Jury, may portray an exaggerated picture of this process, but it is suggestive of the extraordinary lengths to which contemporary American lawyers may go in their efforts to ensure that the “right” jury is selected for their respective purposes. This brings us to the heart of our subject: Tocqueville’s view of the part American lawyers may play in avoiding the excesses of democracy and mitigating the tyranny of the majority. Recall Tocqueville’s expressed opinion that without “lawyer-like sobriety” as a factor in American society, he could not imagine that American republican institutions would continue to exist.
4. The American Legal Profession Itself. It would be difficult to overestimate the im- portance that Tocqueville attached to the conduct of members of the legal profession as the guardians of freedom in American democratic society. “If I were asked where I place the American aristocracy,” he reports, “I should reply without hesitation that it is not among the rich [who the people are apt to mistrust and] who are united by no common tie, but that it occupies the judicial bench and the bar” (Everyman, Vol. I, p. 278). The first sentence of his address to this subject, in the chapter titled “Causes Which Mitigate the Tyranny of the Majority in the United States,” reads as follows:
In visiting the Americans and studying their laws, we perceive that the authority they have entrusted to members of the legal profession, and the influence that these individuals exercise in the government, are the most powerful existing security against the excesses of democracy (Everyman, Vol. I, p. 272, emphasis added).
The reason Tocqueville has come to this conclusion is one that should resonate with special significance to the members of this, the St. John’s College community of learning. Here is the reason Tocqueville gives to explain why he views lawyers as “the most powerful existing security against the excesses of democracy:”
Men who have made a special study of the laws derive from this occupation certain habits of order, a taste for formalities, and a kind of instinctive regard for the regular connection of ideas, which naturally render them very hostile to the revolutionary spirit and the unreflecting passions of the multitude (Ibid., p. 273, emphasis added).
Tocqueville is explicit in his association of American lawyers with the old aristocracy. “Some of the tastes and the habits of the aristocracy,” he says, “may be discovered in the characters of lawyers” (ibid.). For example, “the habit of directing to their purpose the blind passions of parties in litigation inspires [American lawyers] with a certain contempt for the judgment of the multitude….They participate in the same instinctive love of order and formalities; and they entertain the same repugnance to the actions of the multitude…” (Ibid., pp. 273-74). Tocqueville does not, however, assert that
all the members of the legal profession are at all times the friends of order and the opponents of innovation, but that most of them are usually so. In a community in which lawyers are allowed to occupy without opposition that high station which naturally belongs to them, their general spirit will be eminently conservative and anti-democratic (Ibid. at p. 274, emphasis added).
“Most of them,” he asserts with confidence, “are usually so.” “Lawyers,” he goes on to say, “are attached to public order beyond every other consideration, and the best security of public order is authority” (Ibid., at p. 275). Tocqueville goes so far as to say that lawyers generally value legality even above freedom, and fear tyranny less than disorder; that they are even willing to accept limitations upon individual freedom so long as they are properly authorized by the duly constituted legislature. He accurately observes
The government of democracy is favorable to the political power of lawyers; for when the wealthy, the noble, and the prince are excluded from the government, the lawyers take possession of it in their own right…since they are the only men of information and sagacity…who can be the object of popular choice (p. 275).
Six of the first ten U.S. Presidents were lawyers, including three of the six Presidents preceding the date Democracy in America was written. In fact, until 1952, about two-thirds of our American Presidents were either lawyers or had some formal legal training. Why would American lawyers command such a position in democratic society at least until the middle of the 20th century? Tocqueville tells us why. Lawyers, he says,
like the government of democracy without participating in its propensities and weaknesses; whence they derive a twofold authority from it and over it. The people in democratic states do not mistrust the members of the legal profession, because it is known that they are interested to serve the popular cause; and the people listen to them without irritation, because they do not attribute to them any sinister design…Lawyers belong to the people by birth and interest, and to the aristocracy by habit and taste; they may be looked upon as the connecting link between the two great classes of society (Ibid., at pp. 275-76, emphases added).
The conservative, aristocratic tendencies of the habits of English and American lawyers as Tocqueville perceived them is fortified by Anglo-American reliance upon legal precedent, which is not as binding on their French equivalents. In marked contrast to Jonathan Swift’s condemnation of the use of precedent “to justify the most iniquitous opinions,” Tocqueville approves of habitual reliance upon precedent as a brake on democratic excess. The deference an American lawyer pays to the opinions of his forefathers, Tocqueville points out, “necessarily give him more timid habits and more conservative inclinations…than [a lawyer] in France” (Ibid., at p. 277). Here, then, is Tocqueville’s summary of the reasons he has concluded that American lawyers “as a body, form the most powerful, if not the only, counterpoise to the democratic element:”
When the American people are intoxicated by passion or carried away by the impetuosity of their ideas, they are checked and stopped by the almost invisible influence of their legal counselors. They secretly oppose their aristocratic propensities to the nation’s democratic instincts, their superstitious attachment to what is old to its love of novelty, their narrow views to its immense designs, and their habitual procrastination to its ardent impatience (Ibid., at p. 278, emphasis added).
We need to consider how Tocqueville’s assessment of the character of the typical American lawyer of the 1820’s relates to what we may observe about the character of contemporary American lawyers. Before doing so, however, we will briefly consider what Tocqueville has to say about the “spirit of religion” as the fifth check upon the excesses of democracy.
5. The Spirit of Religion. Tocqueville feared that the tendency toward materialism he found in the democratic spirit might lead to a despotic welfare state. (In this he might be regarded as foreseeing the possibility of a Soviet style regime.) He also observed among Americans a spirit of individualism of a kind he thought most congenial to despotism.
No vice of the human heart is so acceptable to [despotism] as selfishness; a despot easily forgives his subjects for not loving him, provided they do not love one another.…Despotism, then, which is at all times dangerous, is more particularly to be feared in democratic ages. (Everyman, Vol. II, Chapter IV, p. 102).
In contrast to this tendency, Tocqueville congratulates Americans for the way that their free political institutions combat “the tendency of equality to keep men asunder” (Ibid., at p. 103). But it is materialism that Tocqueville fears and hates most. It is his view that democracy in America will succeed in avoiding the worst of its excesses only so long as the “spirit of religion” remains widely diffused. In his summary formulation, Tocqueville states his opinion that “liberty cannot be established without morality, nor morality without faith” (Everyman, Vol. I, “Author’s Introduction,” p. 12). The faith of which he is speaking, however, is not one of adherence to any particular religious dogma. It is the spirit of religion, a capacity for faith in the value of higher things, in which Tocqueville places his hopes, for the following reason:
It must be acknowledged that equality, which brings great benefits into the world, nevertheless suggests to men some very dangerous propensities. It tends to isolate them from one another, to concentrate every man’s attention upon himself; and it lays open the soul to an inordinate love of material gratification.
The greatest advantage of religion is to inspire diametrically contrary principles. There is no religion that does not place the object of man’s desires above and beyond the treasures of earth and that does not naturally raise his soul to regions far above those of the senses. Nor is there any which does not impose on man some duties toward his kind and thus draw him at times from the contemplation of himself (Ibid., at p. 22).
American civil law, like religion, is also concerned with one person’s duty to another; and lawyers, like clergymen interpreting their bibles, are, or should be, deeply devoted to interpretations of what may be called “civil scripture,” and their “regular connections of ideas.” Abraham Lincoln implicitly noted this parallel in his Address to the Young Men’s Lyceum of Springfield, Illinois in 1838 with the following words:
Let reverence for the laws…become the political religion of the nation; and let the old and the young, the rich and the poor, the grave and the gay, of all sexes and tongues, and colors and conditions, sacrifice unceasingly upon its altars.
While ever a state of feeling such as this, shall universally, or even very generally prevail throughout the nation, vain will be every effort, and fruitless every attempt, to subvert our national freedom.
In Tocqueville’s day, lawyers could rightly be termed “the secular ministers of American democracy,” especially in their function as counselors of restraint and respect for the spirit of the law. This may be the chief reason Tocqueville so much admired the American legal profession as he perceived it.
IV. A Comparison of 21st Century American Lawyers As a Body With American Lawyers Praised by Tocqueville
How relevant are Tocqueville’s observations about the redemptive character of American lawyers to the American legal profession today? I am unhappy to say that, while they may remain highly relevant to consideration of what we may need to preserve our civil liberties, they are no longer accurate characterizations of the American legal profession –except perhaps for Tocqueville’s observation about a tendency toward procrastination. The degeneration of the American legal profession from the model Tocqueville had in mind has a long history, beginning as early as the post-Civil War period.18 Since the 1960’s, however, the character of the American legal profession as Tocqueville admired it has not been just further eroded; it has virtually disappeared. Signaling this catastrophic loss, a number of books were published in the 1990’s by authoritative authors with titles and subtitles such as these:19 The Lost Lawyer: Failing Ideals of the Legal Profession; The Betrayed Profession: Lawyering at the End of the Twentieth Century; The Death of Common Sense: How Law is Suffocating America; A Nation Under Lawyers: How the Crisis in the Legal Profession is Transforming American Society. The authors of these books include a Yale Law School Dean, a distinguished member of the Harvard Law School faculty, and a former Chairman of Xerox Corporation who was also Ambassador to the Organization of American States.
Lawyers are no longer generally educated, trained, or employed to cultivate a love for “for the regular connection of ideas.” Though each of them swears an oath upon admission to the bar to uphold the Constitution and laws of the United States (and their respective States), they are not likely to take those oaths very seriously. Very few American lawyers today are likely to be able to quote the words, or even summarize the sense, of the Preamble to the U.S. Constitution in substantial part –which would probably not have been the case in Tocqueville’s day. Lawyers are no longer generally inclined to fulfill their function as Tocquevillian counselors, skilled in checking their clients’ passions or the impetuosity of their ideas –where money is to be made by indulging their passions and impetuosity. The practice of law in America has become much more of a business –with the applause of some American economists– than one of the three traditional “learned professions” that distinguished the practice of law from a merely commercial enterprise. The present dominant ethos of American legal practice is the will to win at any cost that the client can afford, including the cost of truth. As William Braithwaite of St. John’s Annapolis campus has written, that is Why Lawyers Lie: they no longer generally care about the truth in what they do as lawyers (Braithwaite, Why Lawyers Lie, in THE GREAT IDEAS TODAY 231, Mortimer J. Adler ed., 1994).
There are many reasons for these sad developments. Some of them may be manifestations of the very character of American democratic culture and materialism as Tocqueville himself perceived and feared them. There have, however, been a number of specific institutional developments during the past quarter century or so that have clearly contributed significantly to the present situation. Chief among these, in my judgment, are, first, the U.S. Supreme Court’s authorization (on First Amendment grounds!) of commercial advertising by lawyers in Bates vs. State Bar of Arizona, 433 U.S. 350 (1977), which had been generally prohibited by State Bar ethical rules of practice before 1977; second, the spectacle of Watergate, in which the Attorney General of the United States and the Counsel to the President were successfully prosecuted for violations of law demonstrating their contempt, while in office, for faithful execution of the laws of the United States and fidelity to their Constitutional oaths; and third, the proliferation of large and very large law firms (a rarity before the 1970’s). This development has been especially pernicious. The growth of large law firms in the U.S. has had the effect of both eliminating the ethical mentoring of young lawyers, and creating virtually irresistible pressures for the generation of “billable hours” as a higher priority than pursuit of prudent measures designed to resolve disputes efficiently (let alone achieve justice).
Fourth and finally, though a passion for justice, equity, and right may yet animate most students entering law school, such aspirations are virtually mocked by typical law school training as naïve and simplistic, and are then usually entirely crushed as law graduates quickly learn that the will to win at any cost –while billing the maximum amount of hours possible– is now the dominant ethos of typical legal practice in America. The need for radical change in legal education has become increasingly apparent since it was urged as a necessity early in the 20th century; a necessity which I have been personally advocating in my own writings for the past decade.20
What might Tocqueville say about all this? I will offer my opinion, but this is a question that may be worth exploring in our discussion after the lecture.
I seriously doubt that Tocqueville would find that “lawyer-like sobriety,” in the sense in which he intended that phrase, now typifies American lawyers, either in how they practice and “speak the law,” or in the way most Americans perceive them. The great founding organs of the American polity —The Declaration of Independence and the Constitution— were intended to harmonize a diverse people through the music of their law of reason. Tocqueville considered American lawyers, the chief exponents of that law, to be essential harmonizers, a “connecting link between” different factions of American society. They have now, however, generally become agents of its division as they cash in on its conflicts.21 Nor can we say that most people today “do not mistrust members of the legal profession,” or “do not attribute to them any sinister designs.”22 In short, the essential attributes of American lawyers Tocqueville thought made them the “most powerful security against the excesses of democracy,” do not appear to be operating in the United States today.
Tocqueville was not alone in fearing that democracy in America might end in some form of despotism. Benjamin Franklin in fact predicted that would be its outcome. At the conclusion of the constitutional convention, he had this to say:
I agree to this Constitution with all its faults, if they are such…[T]here is no Form of government but what may be a blessing to the people if well administered; and I believe farther that this is likely to be well administered for a Course of Years and can only end in Despotism as other Forms have done before it, when the People shall become so corrupted as to need Despotic Government, being incapable of any other. (As quoted by Gore Vidal, Inventing a Nation, Yale U. Press, 2003, at pp. 30-31, punctuation and emphasis in original).
But I do not wish to end this lecture without some notes of hope –for this audience in particular.
V. Conclusion: The Need For Renewal
On December 27, 1938, Walter Lippman, one of the most distinguished journalists of the 20th century, who was one of President Woodrow Wilson’s most trusted young advisors at the Versailles Peace conference, published a column in The New York Herald Tribune titled “The St. John’s Program.” In that column, Lippman compared the institutions of the American polity to “a great and noble pipe organ” capable of producing the most beautiful music by those who knew how to play it. He told a story of how this pipe organ had been carefully constructed by its owner; how, as the organ was passed to the maker’s son and grandson, it fell into disrepair, so much so that, in the course of time, no one could even find the parts needed to repair it. Lippman then made the point of his tale explicit:
This sad tale will serve, I think, as a parable of the history of the free peoples during the past three or four generations. For they have inherited great and noble institutions from their forefathers. But because they have not inherited the knowledge which enabled their forefathers to make these institutions, they do not really know how to preserve them, repair them, and improve them.
“Men are ceasing to be free,” Lippman continued, “because they are no longer being educated in the arts of free men,” the classical liberal arts. Lippman saw in the St. John’s program, the possibility of a “seedbed of an American renaissance” of understanding the design, purpose, and rationale of the American republic.
The principal Founders of our American polity –Washington, Adams, Jefferson, Madison, Hamilton, Franklin, and Gouvernor Morris — all regarded the democratic republic they had created as a great “experiment.”23 In his Gettysburg Address, Lincoln reasserted this view by stating that we are a nation “dedicated to the proposition that all men are created equal,” and that the Civil War was testing whether a government “of the people, by the people, and for the people” could “long endure.” The experiment has so far endured for more than 200 years; but it may yet fail. It is more likely to fail if its chief safeguards wither away, and are not renewed. One of the authors read at St. John’s College anticipated Walter Lippman’s prescription for American renewal by over 400 years. That author is Machiavelli, a passionate republican who, in his Discourse on the First Ten Books of Livy, written in 1521, had this to say about the renewal of republics:
There is nothing more true than that all the things of this world have a limit to their existence; but those only run the entire course ordained for them by Heaven that do not allow their body to become disorganized. But keep it unchanged in the manner ordained…And as I speak here of bodies such as republics, I say that those changes are beneficial that bring them back to their original principles And it is a truth clearer than light that, without such renovation, these bodies cannot continue to exist; and the means of renewing them is to bring them back to their original principles (Discourses on Livy, Book III, Chapter 1, 1521).
Machiavelli’s reference to Heaven may remind us of Tocqueville’s belief in the providential future of democracy, and the “spirit of religion” he thought indispensable to the preservation of American liberties. The kind of faith of which Tocqueville was writing was demonstrated by a young law school graduate during a period when “loyalty oaths” and confessions of political affiliations were requirements for admission to some State bars. In 1950, George Anastaplo graduated at the top of his class at the University of Chicago Law School. In his examination for admission to the Illinois State Bar by a “Committee on Character and Fitness,” he refused to answer a question about his political beliefs, relying upon his faith in the political principles enunciated in the Declaration of Independence and his First Amendment rights under the U.S. Constitution. The young Anastaplo personally argued his case before the U.S. Supreme Court when his admission to the Illinois Bar was denied because of this refusal. He lost his case in a 5-4
decision against him (366 U.S. 82, 1961).24 In a truly eloquent dissent to the majority opinion on that occasion by Justice Hugo Lafayette Black, Justice Black said that Anastaplo’s main fault, if any, was that he had taken too much responsibility upon himself to protect the integrity of the bar and the duty of American lawyers to uphold the U.S. Constitution. Justice Black implicitly applauded Anastaplo’s courage in the concluding, resonant words of his dissent, words which he asked be read at his own funeral as his political testament: “We must not be afraid to be free.” Though not a practicing lawyer, George Anastaplo demonstrated not only his courage, but also his understanding of the first virtue –Justice— and the final good –Liberty— referred to in the Preamble to the U.S. Constitution. In doing this, Anastaplo also exhibited the redemptive character of the American lawyer as Tocqueville understood it. Anastaplo does not stand entirely alone as a living example of what I have called the “redemptive character” of American lawyers. Even today, some –even if relatively few— lawyers may be found in America whose practices have such redemptive qualities. I have described these qualities in greater detail in a booklet titled What’s Right with Lawyers/What’s Wrong with Lawyers.25 “What’s right” with lawyers in America today has much in common with what Tocqueville said was right about them.
In large part, Tocqueville was led to admire the American lawyers of his day because of their characteristic admiration of the classical virtues and aspiration toward them through their education and intellectual habits. Study of the classical virtues of courage, prudence, justice, and temperance –virtues that sustain and enable one another– is, in effect, part of the St. John’s College curriculum. In light of the liberal education you have freely chosen, and are now privileged to enjoy, there may rest upon you some special duties: the duty to help keep the American experiment alive; the duty to use the power of your acquired understanding of its original principles and design to help restore them, whether you become a doctor, or a manufacturer, or a computer technologist; but especially if you choose to become an American lawyer. I therefore conclude my lecture to you, the students and future alumni of St. John’s College, by repeating Justice Black’s admonition: “You must not be afraid to be free.”
(C) September 17, 2004. Harrison Sheppard
1 These are collected in Sheppard, “American Principles & The Evolving Ethos of American Legal Practice,” 28 Loyola University Chicago Law Journal 237 (Winter 1996) [hereafter “Loyola”] at pp. 246-249, notes 20-28.
2 See, for example, Jesus’s admonition in Matthew 5:25: “Agree with thine adversary quickly, while thou art in the way with him, lest at any time the adversary deliver thee to the judge, and the judge deliver thee to the officer, and thou be cast into prison.” See also St. Paul’s admonition in I Corinthians 6:1-7: “Dare any of you, having a matter against one another, go to law before the unjust, and not before the saints?….Now therefore there is utterly a fault among you, because ye go to law with one another…”
3 “Why, might that not be the skull of a lawyer? Where be his quiddities now, his quillets, his cases, his tenures, and his tricks? Why does he suffer this rude knave to knock him about the sconce with a dirty shovel, and will not tell him of his action of battery? Hum! This fellow might be in’s time a great buyer of land, with his statutes, his recognizances, his fines, his double vouchers, his recoveries, to have his fine pate full of fine dirt? Will his vouchers vouch him no more of his purchases, and double ones too, than the length and breadth of a pair of indentures? The very conveyances of his lands will hardly lie in this box; and must the inheritor himself have no more, ha?” (Hamlet, Act 5, sc. 1, lines 98-112).
4 “The first thing we do, let’s kill all the lawyers” Henry VI, Pt. 2, Act 4, sc. 2, line 86 (The Yale Shakespeare ed., 1923). This often miscited lawyer-bashing quote, uttered by “Dick the Butcher” in the context of a revolt against the power and luxury of the English upper classes, does not necessarily reflect Shakespeare’s own attitude toward lawyers. For a detailed examination of the significance of this most commonly quoted lawyer-bashing line, including its possible implications in understanding Shakespeare’s own view of lawyers, see Kornstein, Kill All the Lawyers: Shakespeare’s Legal Appeal (Princeton University Press, 1994).
5 “In such an afternoon, some score of members of the High Court of Chancery bar ought to be…mistily engaged in one of ten thousand stages of an endless cause, tripping one another up on slippery precedents, groping knee-deep on technicalities…and making pretence of equity with serious faces, as players might. On such an afternoon, the various solicitors in the cause…ought to be…ranged in a line…between the registrar’s red table and the silk gowns, with bills, cross-bills, answers, rejoinders, injunctions, affidavits, issues, references to…master’s reports, mountains of costly nonsense, piled before them…This is the Court of Chancery…which gives to monied might, the means abundantly of wearying out the right; which so exhausts finances, patience, courage, hope; so overthrows the brain and breaks the heart; that there is not an honorable man among its practitioners who would not give –who does not often give—the warning: ‘Suffer any wrong that can be done you, rather than come here!’” (Bleak House 2, Gordon N. Ray ed., The Riverside Press, 1987).
6 “Justice however, never was in reality administered gratis in any country. Lawyers and attorneys, at least, must always be paid by the parties; and if they were not, they would perform their duty still worse than they actually perform it. The fees annually paid to lawyers and attorneys amount, in every court, to a much greater sum than the salaries of the judges” (Wealth of Nations, bk. V, ch. 1, pt. II, at 677, The Modern Library ed., Random House, 1937).
7 E.g., Roscoe Pound: “The sporting theory of justice [is] so rooted in the profession in America that most of us [mistakenly] take it for a fundamental legal tenet [even though] the idea that procedure must of necessity be wholly contentious disfigures our judicial administration at every point” (Pound, The Causes of Popular Dissatisfaction With the Administration of Justice, 29 A.B.A. Rep. Pt 1, 395, 1936, reprinted in Landmarks of Law 180, 186-87, Ray D. Henson ed., 1960).
8 E.g., H.L. Mencken: “A lawyer is someone who protects us against robbers by taking away the temptation” (Mencken, Sententiae, 1916, quoted in Jonathan Green, The Cynic’s Lexicon 14-38, 1984).
9 E.g., “Lawyers are competitors…they tend to look at what they do as a sport. The way law is practiced today is to get away with what you can” (Nader & Smith, No Contest: Corporate Lawyers And The Perversion of Justice in America, 1996, p. 16).
10 Everyman, Vol. I, p. 6.
11 See Doris S. Goldstein, Trial of Faith: Religion and Politics in Tocqueville’s Thought, Elsevier Scientific Publishing company, New York, 1975; and John Lukacs, “The Last Days of Alexis De Tocqueville,” The Catholic Historical Review, Vol. L., No. 2, July 1964, explaining Tocqueville’s refusal to take communion on his deathbed and the significance of Tocqueville’s declaration of faith without practice.
12 For a highly informative discussion of Tocqueville’s political – as opposed to merely philo- sophical– purposes in writing Democracy in America, see Marvin Zetterbaum, Tocqueville and the Problem of Democracy, Stanford U. Press, 1967 (Stanford, CA).
13 See Everyman, Vol. II, Chapter 6, “What Sort of Despotism Democratic Nations Have to Fear,” p. 316 et seq.
14 See esp. Everyman, Vol. I, Chapter 15, “Unlimited Power of the Majority in the United States and its Consequences.”
15 Plato’s Republic, Bk. 8, 555 et seq., esp. 561-564.
16 For an instructive discussion of the deleterious effects of mass media, and television in particular, on American political life, see Anastaplo, The American Moralist: On Law, Ethics and Government, Ohio U. Press, 1992 (Athens, Ohio) in the section titled “The Use and Abuse of the First Amendment,” esp. Chapter 17 at pp. 261-273, which includes the following observations at p. 261: “The modern mass media tend more toward centralization of power, while the old fashioned press tended to be more localizing in its efforts and effects….[With the nationalization of mass media] is there a tendency toward homogeneity of tastes and opinions as well as a general lowering of effective moral, political, and intellectual standards?…[With modern industrialization and] its marvels-laden technology…one is forced into a passive role: not the role of the alert observer, but that of the pampered slave.”
17 For a discussion of the relationship between trial by jury and the “Blessings of Liberty” under the U.S. Constitution, see Anastaplo, The Constitutionalist Notes on the First Amendment, Southern Methodist U. Press, 1971 (Dallas, Texas), Chapter VIII, “The Blessings of Liberty.”
18 See, e.g., John Dos Passos, The American Lawyer, Fred B. Rothman & Co., Littleton, Colorado, 1996, at pp. 12-13: “I am drawing a line between the period before and after the Civil War, and I put the old generation of American lawyers on the farther side, and the new ones on this side of the line….The fundamental difference between the old and new regime of lawyers is this: the great aim of the old lawyers was to master the elements of law; they depended upon an eloquent presentation of their causes; the judges had the time, and it was their pleasure, to listen to the advocates; ‘commercialism’ did not exist; there were less legal tricks or technical legerdemain to resort to, because the dire plague of codification had not yet spread itself over the profession, and destroyed its science, as it existed under common law, where, while form was strictly observed, the substance or merits of a controversy, were principally sought for. The lawyers of today are case and code lawyers. The search for principle is subordinate to an investigation for precedent. The right or justice, or the merits of controversies, disappear under a mass of irreconcilable decisions and forms. It requires a different kind of intellectual development to be a lawyer than it did in the days long gone by” (emphases in original). Dos Passos’ first prescription for reform of the American legal profession is to correct “deficiencies, imperfections, and looseness in the preliminary, elementary, and legal education of law students” (Ibid., at p. 165). It is this lecturers’ first prescription as well; see Sheppard, “Legal Education and the Future of the Republic,” a talk to the San Francisco Yale Club, published in Vital Speeches of the Day, April 15, 1998.
19 A more complete list, fully cited, may be found in Loyola, at p. 246, note 19.
20 See note 18 above.
21 See Sheppard, “Cashing in on Conflict,” The Washington Post, June 6, 1996, p. A23; David Luban, “The Noblesse Oblige Tradition in the Practice of Law,” 41 Vanderbilt Law Review 717 (1988) at p. 724: “The common good will be realized in a society such as the United States, by blunting or mitigating conflict, especially class conflict; Brandeis espoused this theme as did de Tocqueville.” Luban also points out that the reconciliation of conflicting interests “is one of the most ancient conceptions of the function of law, appearing originally in The Laws of Plato…Because factionalism and class war will inevitably destroy a city unless it is governed by the rule of law, not of men, the lawmakers must attempt to reconcile the conflicting elements of society” (Ibid., at note 31).
22 To the contrary, American Bar Association polls and surveys of the last decade show that “the more contact people have with lawyers, the less favorably they look upon the legal profession;” see the sources cited in Loyola , note 48 at p. 261.
23 See Loyola, note 38 at p. 253, quoting, inter alia, Washington’s statement in his first inaugural address that the “preservation of the sacred fire of liberty, and the destiny of the republican model of government are justly considered as deeply, and perhaps as finally staked, on the experiment entrusted to the hands of the American people” (only the last emphasis is added).
24 The Anastaplo decision may have been effectively overruled in later cases; see, e.g., Konigsberg v. State Bar, 366 U.S. 36 (1961). One consequence of Anastaplo’s denial of admission to the Illinois State Bar is that Prof. Anastaplo (now at the Loyola University of Chicago Law School) has produced as prolific a body of writings on the American Constitution as any contemporary American; his bibliography occupies more than 80 printed pages in the two volume tribute to him titled Law and Philosophy: The Practice of Theory, Essays in Honor of George Anastaplo, edited by John A. Murley, Robert L. Stone, and William T. Braithwaite, Ohio U. Press, Athens, Ohio (1992). These notably include The Constitutionalist: Notes on the First Amendment, Southern Methodist U. Press, Dallas TX (1971); The Constitution of 1787: A Commentary, The Johns Hopkins U. Press, Baltimore, MD (1989); The Amendments to the Constitution: A Commentary, The Johns Hopkins U. Press, Baltimore, MD (1995); and Abraham Lincoln: A Constitutional Biography, Rowman & Littlefield, Lanham MD ( (1999). The Lincoln book includes a chapter on Tocqueville’s Democracy in America. It is reviewed by the author of this lecture in an essay closely related to its subject in Sheppard, “American Law & the Past, Present, & Future of the American Regime,” 28 Interpretation No. 1, pp. 89-106, NY (Fall 2000).
25 What’s Right with Lawyers/What’s Wrong with Lawyers (2003), available at some college, univer-rsity, and law school bookstores and through the internet at http://whatsrightwithlawyers.com.
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, 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.
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.