Tag Archives: lawyers

A Response To Scalia’s Blathering

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Although Susan has already covered Scalia’s recent ramblings, I was planning to do as well, so I’ll throw a few more thoughts in.  Much of what Susan said addresses how law rightfully attracts intelligent individuals.  She also takes a law and economics approach to explaining the social value that lawyering actually generates.  Although law and economics is nothing new on this blog, I think it’s also useful to return to first principles for a moment.  When returning to those principles, these types of comments from Scalia–a strong defender of personal freedom and respect for history–are even more incomprehensible.

When our nation was first created, we chose three essential principles to hold most dear: “life, liberty, and the pursuit of happiness.”  Our forefathers created this nation because we felt that the bonds of an oppressive government stood in opposition to the achievement of those fundamental goals.  Even though we may be free from the chains of the British crown, government and law are still potential tools of oppression.  Therefore, it becomes the duty of those involved in our legal system to ensure that those values are preserved.

“The public defender from Podunk” is one example of one of the last lines of defense against the destruction of liberty.  If that young woman “wasn’t really brilliant,” perhaps innocent men would be tried, jailed, and stamped with the badge of dishonor that a felony conviction is often taken to be.  That young woman might go out and “invent the automobile,” but our country may face a horrible tradeoff for those four wheels: we may have more of our citizens unjustly stripped of their three most important possessions: life, liberty, and happiness.  The criminal lawyer, therefore, is the protector of these personal rights from societal oppression.

I understand these arguments might seem most relevant in the criminal context, but I think civil lawyers do something terribly important as well.  If we go back even further to the First Continental Congress’ Declaration of Colonial Rights, we find a different description of our most cherished national belongings: “life, liberty, and property.”  The civil lawyer, therefore, guards against the unjust deprivation of the property that is rightfully his.  The civil lawyer, therefore, is the protector of these property rights from societal oppression.

For any devoted constitutionalist to disavow these cardinal values is deplorable.  For Scalia to use his position of power to espouse these views is just plain stupid.

-Michael

Update:  Now folks over at Volokh are talking about this, too.

Does Scalia believe the world would be better off if he were a mathematician instead?

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I do love Scalia, but his thoughts on the wasted talents of brilliant legal minds strike me as uncharacteristically short sighted.

“I used to have just the opposite reaction,” Scalia said, according to the Law Blog account. “I used to be disappointed that so many of the best minds in the country were being devoted to this enterprise.

“I mean there’d be a … public defender from Podunk, you know, and this woman is really brilliant, you know. Why isn’t she out inventing the automobile or, you know, doing something productive for this society?

“I mean lawyers, after all, don’t produce anything. They enable other people to produce and to go on with their lives efficiently and in an atmosphere of freedom. That’s important, but it doesn’t put food on the table, and there have to be other people who are doing that. And I worry that we are devoting too many of our very best minds to this enterprise.”

The first objection is the obvious — I remain extremely skeptical that “so many of the best minds in the country” are truly inefficiently allocated to the study of law. People who are involved in the legal field will, unquestionably, encounter many brilliant people who are also in the legal field — because that’s mostly who they meet. This doesn’t mean there are somehow more of them there. And even though lawyers are the most likely profession to become prominent via politics and to achieve elected office, well, I’m pretty sure Scalia isn’t accusing our politicians of being the best minds in the country.

Second, even if it were true, it’s not clear to me that it would be a waste, per se, to have your best minds working as lawyers. Inasmuch as “law” can be said to have a purpose, its purpose is to reduce society’s transaction costs. That may not in itself be producing new goods or products, but it is increasing societal wealth.

Lawyers aren’t parasites, they’re route finders; the legal profession provides a highly specialized service that directs you in how to go from legal condition A to legal condition B. Sure, you’d probably be able to figure it out for yourself, eventually — but it would take you eons longer than someone who’s already spent a big chunk of their life learning that sort of thing. So having brilliant people focused on figuring out the best ways to bring down the inherent costs of human interactions doesn’t strike me as a bad thing.

Third and finally, even if our best and brightest were overrepresented in the legal field, that doesn’t mean society would necessarily be better off if they were directed to a different field instead. Although there are plenty of exceptions, I’d say that, for the most part, the good lawyers I’ve met are good because their talents and interests make them uniquely situated for legal work. They are good at rhetoric, good at logic and obfuscation, good at writing, good at wading through abstract chains of ideas. If they couldn’t be lawyers, they might make for great English professors or diplomats, but I don’t exactly see them going out and inventing the automobile.

-Susan