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
The View From LL2 
Rhetoric, logic, obfuscation, writing, and wading through abstract chains of ideas…
I don’t know; that sounds an awful lot to me like the checklist for a great software engineer. 😉
In that case, I clearly gave a misleading account! Perhaps I should’ve added in “enjoyment of wishywashy language that has no requirement for rigorous coherency.”
We call that ‘documentation’; the true masters are not those who can merely understand what is meant by what is written, but those who can compose it. 😉
The point is that, on a social scale, it is the case that bright people are fungible – I believe that those key talents that make for great lawyers could also lead to greatness in other professions. The differences between fields lie more in thought patterns taught and the body of knowledge than the fundamental abilties of the best people.
Another way of looking at it is to say that, to be great, one has to be able to look beyond the bounds of one’s profession and see the wider world. If you’re capable of achieving this with one profession, you are by definition capable of achieving it with at least one other.
With regards to the larger topic though – the question on hand boils down to: “Given the limited number of such bright people, what allocation will yield the greatest social good?” You’ve made the point that lawyers serve a necessary, even desirable, social function – absolutely true. However, I do think, though, that there is a point where overallocation of said bright people will yield diminishing returns – in fact, I’ll go so far to say that there’s a point where having additional bright people becoming lawyers does in fact actively detract from social well being. If 90% of bright people became lawyers, maybe we could reduce the inherent costs of human interaction – on the other hand, if a few more of those bright people became engineers, maybe there would be more net profit by simply increasing the social capital. You make the point that yes, bright lawyers do social good; and yes, this is absolutely true; but there does exist a point where it could become “too much of a good thing”.
So the real question becomes: “Are we at that point yet? Would our society be better off if we had more or fewer bright people becoming lawyers?” On this question, I honestly don’t think any of us is in a position to do more than make a guess. How do you define “better off”? How do you measure the net social gain of adding or removing bright people from one profession? Philosophers have been debating this for thousands of years, and while we have some vague consensus opinions, we certainly don’t have a standard of measure that’s fine-grained enough to be able to make such a determination.
Even if we had a good standard of measure, if we decide to change the policy today (assuming there existed some simple mechanism to implement such a change – ha ha), it will take anywhere between 25-80 years to effect a change in society – and given all the other knobs we’re constantly twiddling with, how would we distinguish the effect of that change from all the others? The long and the short of it is that, based on what we know today, we’re not really in a position to make any kind of judgement. IMHO, there is insufficient evidence to draw any kind of meaningful conclusion as to whether or not there’s even a problem to be addressed, let alone what could be done about it.
So yes, Justice Scalia is correct to look at a bright up-and-coming lawyer and think “that guy could’ve made a great engineer”. But to believe “we’d be better off with more bright new engineers than bright new lawyers” – that’s just guesswork at best, and wide open to debate on what the heck “better off” really means.
I came across a comment on this Volokh post that was relevant:
I recognize that the raw numbers don’t really clarify the question that much in the way you phrased it, since we can’t actually give a hard number on what the ideal ration of lawyers:engineers is, but it does suggest lawyers are not too overrepresented.
I’m inclined to agree with you. I’d also point out that on a broad scale, jobs follow the money; the usual market rules for supply and demand apply. If there were too many lawyers, or too many engineers, wages for those professions would fall, it wouldn’t be worth going quite so far in to debt to go to school, and more smart people would choose other occupations which involved less work to be able to afford their beer money. There are certainly other factors, but IMHO our society as a collective seems to be doing a reasonable job of working its way towards a balance of reasonable efficiency. (Nobody would like a perfectly efficient solution anyways – it’d be no fun.)
Except, of course, when the government decides to bail out industries that are “too big to fail” … but hey, what’s a little wasted money between friends?