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| Thurgood Marshall, appointed by Kennedy to the United States Court of Appeals for the Second Circuit. (Photo credit: Wikipedia) |
Thurgood Marshall Law Review
Fall, 1996
*19 WHY THE NATION NEEDS MORE LAWYERS
James Ottavio Castagnera [FNa1]
Copyright (c) 1996 by the Thurgood Marshall Law Review; James Ottavio Castagnera
“The U.S, is loaded with lawyers.” That was the lead in a Business Week article earlier in this decade. [FN1] As proof the magazine presented seemingly compelling statistics. In 1992 the U.S. was cursed with 307.4 lawyers per 100,000 persons, while Japan was blessed with only 12.1 attorneys per 100,000 population. Britain and Germany claimed 102.7 and 82 lawyers in the same per capita ratio. [FN2] Since Germany and Japan rank among America's most successful and dangerous rivals, the clear implication was that something must be very wrong with this picture. The article, aimed primarily at touting alternative dispute resolution techniques as superior to litigation, went on to chronicle business persons' concerns with their legal fees and litigation exposure. This concern was characterized as stimulating nothing less than a revolution. “The legal revolt among corporations is only one facet in an unprecedented rethinking of the U.S. Justice system.” [FN3]
But, like calls for the American labor movement to abandon its confrontational ways and embrace employee participation programs, [FN4] the corporate and Congressional cant for less lawyers and litigation in emulation of a Nipponese model ignores in the first instance vast cultural gulfs. These gulfs make the Pacific Ocean seem but a stream separating the two societies. Despite the samurai image, revived in the militarism that helped precipitate World War II, the Japanese tradition of societal cohesion, homogeneity and aesthetic sensitivity has been traced still more deeply into that nation's history. [FN5] By contrast Europe *20 has historically been a contentious and bumptious society, [FN6] and even colonial America has been identified as highly litigious and lawyer dominated. [FN7]
In early America people sued each other over the ownership of a dead fox [FN8] and a beached whale. [FN9] Our state supreme courts have been required to contend with such trivial matters as a contract claim by a disappointed shopper for a $100 rabbit fur stole [FN10] and a surgery patient whose damaged hand had been made fully functional again, albeit with the onset of puberty the hand grew hair. [FN11] Such reported decisions are legion. Thus, to complain about the proliferation of lawyers and lawsuits in America at the millennium is merely to at last take note of a cultural characteristic of deep and abiding nature in our society.
Of course, to suggest that an evil should be tolerated, even embraced, simply because it is an evil we have long known, is an argument lacking in persuasive power for all but the most hidebound of its hearers. Something more is needed, I am quite sure, to bring the majority of readers along the path I propose to pursue in this piece of writing.
To begin, I ask my readers to recall a scene from the sixties film, “A Man For All Seasons,” in which Sir Thomas More inquires of his ultimately-unfaithful law clerk what will happen when all the laws are cut down in the name of expediency, like so many trees in a great forrest. Then, warns the lawyer-saint of England, the winds will howl across the barren plain. The work of Sir Isaac Newton “was the high noon of certainty,” [FN12] and More's winds began whistling shortly thereafter. With the sudden appearance of two scientific papers, penned by an obscure Swiss patent officer in 1905, “certainty exploded out of sight and reach.” [FN13] Thus,
[t]he grounds of certainty were quaking with seismic upheaval even before the First World War. It is tempting to see the terrible *21 catastrophe of 1914-18--cataclysmic, unpredicted, destructive of four empires and of a whole generation of Europe's elite--as a volcano which buried any lingering feelings of security under layers of lava. [FN14]
As those who experienced the world wars of the first half of this century age and pass from the scene, we Americans who have experienced only cold war and brush fires such as Vietnam can gain some sense of the qualitative, as well as quantitative, differences, by reading the unremitting, mind-numbing accounts of the carnage in the works of historians such as Martin Gilbert [FN15] and John Keegan. [FN16]
And but for the survivors of Hiroshima and Nagasaki, we can only imagine the horrors of nuclear holocaust. No matter… “[t]echnological change seems likely to take over from unaided human wickedness as the focus of fears of barbarism.” [FN17] From satellite-borne ‘kiddy porn’ to the Frankenstein monster of artificial intelligence, new technological threats join nuclear terrorism on our millennial horizon. [FN18] How are we to deal with them? Science itself seems entirely incapable of controlling its worst creations, as it persues ‘truth’ wherever it may lead. Pop culture has donned electronic garb, replacing substance with glitz. [FN19] Thus the most successful and popular films of recent years--for example the “Indiana Jones” and “Star Wars” trilogies and “Jurasic Park”--are propelled predominantly by rapid action and awesome special effects. [FN20] Cliches stand in for real values. Comic book characters careen through the story with minimal personal relationships.
Cultural relativism has formed a strong partnership with the electronic media to create an ‘almost-anything-goes' attitude toward the artifacts of pop cult. This relatavistic posture draws its inspiration from both the ‘hard’ and the social sciences. Albert Einstein, the greatest scientist of our century, opened it with two papers dealing with his theories of relativity. Mid-way through the century, Thomas Kuhn introduced the term “paradigm”--a common set of beliefs shared by *22 scientists upon which they predicate explanations of physical phenomena--in his argument that scientific ‘truth’ is a shifting concept, as for instance when Newton's earth-bound laws gave way to Einstein's relativistic theories of what goes on in deep space. [FN21] Also in this century, anthropologists and psychologists abandoned Darwinism in favor of the view that all cultures and customs have value, if only their utility to their respective societies might be discerned. [FN22]
Perhaps the marriage of ‘hard’ science relativism with social science relativism is best illustrated in the famous science fiction novel, Stranger in a Strange Land by Robert Heinlein. Published in 1961, the book depicts the adventures of a young man, raised improbably by Martians and returned to earth, where his views and powers combine to create a near-revolution. [FN23] Among the views held by this ‘Man from Mars' is the notion that a high honor is bestowed upon a friend whose body you consume following his death. In one hilarious but provocative scene, the famous lawyer-physician Jubal Harshaw, who has become the protagonist's protector early in the yarn, debates the merits if this Martian custom with his handyman and bodyguard, a stalwart conservative from America's heartland. The handiman, Duke, insists (ala Darwin, if you will, though he surely does not know of Darwin's work) that an aversion to canibalism is instinctual. Harshaw insists it is a cultural trait, his proof being that many cultures have an early history of engaging in canabalistic rituals. [FN24] Heinlein's college educated audience was predisposed, of course, to side with Harshaw.
The decline of religious belief paralleled and aggravated the slide toward relativism and away from anchored values. Thinkers such as Walter Lippmann vainly tried to substitute humanistic values for religious faith and the moral tenets that accompany it. [FN25]
The law, too, has experienced its spate of relativistic theories of jurisprudence. Theories of natural law and legal positivism have given way to so-called critical legal studies, which contend that law is what those in power say it is, burdened with all the political and ethical prejudices of the judges and legislators who render it. The various branches include critical race studies and critcal women's studies. [FN26]
*23 But pendalums have a way of swinging. As noted, in the film “A Man for All Seasons,” the lawyer-saint Thomas Moore asked his wayward student, who will later betray his mentor through perjured testimony, what will happen when we have cut down all the laws like so many trees… what then will prevent the winds from blowing across the land. The winds have blown very hard indeed across our land and they have started the pendalum moving back toward fixed values. The born-again-Christians best represent this phenomenon in the religious realm. In anthropology and psychology influential thinkers are turning back to evolution and genetics as immutable influences upon human nature. [FN27]
In law, too, significant efforts have been made to reverse the pendalum's swing. Most notably, Judge Richard Posner in a long succession of books and articles argued for the underlying rationality of the common law, developing a theory and starting a movement, both of which have become well-known by the label Law and Economics. [FN28]
In all of these diverse fields of inquiry the underlying tenet is that there exist objective, non-relative values and goals. Some such goals are ‘good’ and others ‘bad’, or at least desireable and undesireable. In a society where political correctness stands ever ready to condemn any criticism, no matter how constructively intended, as racism, sexism, or some other such forbidden “ism”, some courage is required to take such a stance. But some have been willing to do so.
The UCLA professor of anthropology and psychology, Robert Edgerton, has challenged quite explicitely the earlier paradigm, established by such giants of anthropology as Franz Boas of Columbia University, [FN29] that all cultural traits and customs are somehow adaptive and that the anthropologist's job is to penetrate the the puzzles presented by complex socio-cultural matrices and discern the positive purposes of seemingly negative behavior patterns. Edgerton scoured the literature for examples from around the world of maladaptive practices, which he argues ably ought to be branded candidly as such.
*24 For example, Edgerton points to the phenomenon that some societies have at times viewed morbid obesity to be beautiful. “[N]ot surpisingly, most politically powerful people tended to be grossly overweight. The Zulu King Cetshwayo's legs were so stout that he could not walk without chafing them painfully, and some Polynesian chiefs and their wives were too obese to walk at all.” [FN30] Even more dramatic is the tale of the Xhosa people, who in 1858 stopped tilling the their soil and killed all their cattle, because a prophet, Nongqawuse, predicted that such a cleansing was the necessary preface to the return of the ghost warriors of old, who would lead the people in expelling the white intruders. [FN31]
Edgerton concludes, “Traditional Darwinian theory has held that because of forces of natural selection, existing genetic variation must have a positiive function….” But, he continues, “Motoo Kimura's ‘neutral theory’ argues that much of the genetic variation in any species, including humans, is adaptively neutral. Under certain circumstances, such as mutation and genetic drift, these neutral genes can become either more adaptive or maladaptive.” [FN32] So too is this true of social and cultural traits, which may be neutral to begin, but which may become malaadaptive over time. [FN33]
Professor Emeritus Gertrude Himmelfarb of Brooklyn College and the City University of New York has argued with equal candor for the superiority of Victorian-era virtues over the relativistic values of the 20th century. [FN34]
But, though they are accomplished academicians, Himmelfarb and Edgerton are unlikely to turn the tide against relatavism, any more than the religious right is likely to command the allegance of a majority of Americans any time in the foreseeable future. This being so, this author contends that it falls to the lawyers and the law schools to carry the torch toward the millennium marking the end of the American century.
To understand why, let's return first to Heinlein's Stranger in a Strange Land. About a third of the way into Heinlein's sci-fi classic the lawyer-writer-doctor Jubal Harshaw discusses religion with Valentine Michael Smith, the young man born and raised on Mars. Harshaw is an avowed agnostic. He is slightly appalled that Smith has become enamoured to a TV evangelist. In his heart he wants to convince *25 the “Man from Mars” that religion is bunk. But he can't quite bring himself to do it.
“He had intended to take the usual agnostic approach… and found himself compulsively following his legal training, being an honest advocate in spite of himself, attempting to support a religious belief he did not hold but which was believed by most human beings. He found that, willy-nilly, he was attorney for the orthodoxies of his own race against--he wasn't sure what. An inhuman viewpoint.” [FN35]
As noted early in this article, historians have traced Americans' litigious nature deep into our past. Perhaps it is no accident that the passion for court room conflict comes down to us hand-in-hand with the marketplace of ideas. Perhaps litigation is the handmaiden of democracy. Perhaps in a society which is unlikely to embrace voluntarily any single philosophy or religion or political party, and which will not allow any of the foregoing to be imposed upon us, method must stand good for ideology. This, then, is this article's major proposition.
More specifically, the proposition is that the legal method is the framework which has, still does, and should support our socio-political system. Thus this author's contention that America must train more, not fewer, of its citizens in the profession, or more accurately the method, of law.
What then is the legal method?
Many complicated explanations and descriptions exist. [FN36] But to best understand the legal method we will do best to turn to those stalwart keepers of the flame: the legal research and writing professors who commonly labor in our law school vinyards for lesser pay and at lower status then the so-called “doctrinal” faculty who continue to belch forth periodically their law review articles which notoriously obfuscate the self-same method. This article shall look to two of the most popular authors to whom legal methods professors look when seeking to adopt their texts for teaching their courses at law schools across the country. My examination of these sources begins with one of the most straightforward and least complex of these standard textbooks. [FN37]
The author, like virtually every author of such texts, presents in only slightly-personalized form what virtually every law professor (and virtually every first year law student facing her first examinations) calls *26 IRAC. [FN38] IRAC is to legal analysis what “Force = Mass x Velocity” is to Newtonian physics. IRAC--Issue, Rule, Application, Conclusion--is the way law students answer exam questions and structure the discussion sections of their legal memoranda and briefs. Also it is how real, practicing attorneys visualize problems.
As an offensive weapon, as in a brief supporting a motion made to a judge, IRAC can be used to shade the truth in favor of the advocate's client. But in an interoffice legal memorandum, IRAC is a technique intended to get at the truth, or more precisely, to help the writer (lawyer A) and the recipient (lawyer B, who is usually the more senior of the two attorneys) to predict how a case can be argued in an adversarial yet reasonable manner, and how it most likley will come out in court eventually… or how an agency will respond to a client's application… or some similar result somewhere down the road of legal representation. Our first author gives this advice to students using her text:
“Because it will be used to determine what course to take in a legal dispute involving a client, your inter-office memo should be thorough and unbiased.” [FN39]
The strict restriction against bias is based upon the reality that the attorney who kids herself or her client has embarked down a slippery slope toward disaster. By contrast, “A brief is distinguishable from an inter-office memorandum, which objectively analyzes the law and facts. The purpose of [a] brief is to persuade the… court to rule in your favor.” [FN40] But not only the rules of ethics, but more importantly the litmus test of judicial skepticism demand an underlying logic and intellectual integrity support arguments (at least when made to the bench [FN41]). This approach--unvarying to my knowledge in American law--explains why Jubal Harshaw of Stranger in a Strange Land found himself “being an honest advocate in spite of himself.”
In a slightly more sophisticated legal methods text [FN42] Thomas Kuhn's classic term, “paradigm”, turns up. The author speaks of “A Paradigm for Structuring Proof.” [FN43] The paradigm turns out to be a more elaborate iteration of the old, familiar IRAC. The application (‘A’) *27 the author labels “rule proof.” By that he means, “proof of the rule through citation to authority, through explanation of how the authority stands for the rule, through anlyses of policy, and through counter-analyses…” [FN44]
This is the formula--the paradigm--we legal methods teachers drum into the heads of our first-year law students. We do not do this drumming because we believe our paradigms can convey Truth with a capital “T”. But we do believe-- and rightly, I think--that this paradigm forces the writer to express her opinion or position in an orderly, logical and defensible fashion. This is what senior partners in law firms and judges upon their benches demand. “[T]he skeptical, law-trained mind instinctively wants to know what principles of law require the [writer's] conclusion instead of others.” [FN45]
In our relativistic world, where sixty-second commercials and thirty-second sound bites overwhelm our senses, “the skeptical, lawyer-trained mind” is a human resource which, I submit, cannot be overproduced or in a state of surplus. The well -trained lawyer's way of thinking, indeed her habit of thinking, as represented in so simple but elegant a fashion as the IRAC paradigm, is a resource that all sufficiently-bright students can use to their, and their society's, great benefit.
Some three decades ago the Canadian professor and theorist of mass communications, Marshall McLuhan, predicted that “in the electric age, the very instantaneous nature of co-existence among our technological instruments has created a crisis quite new in human history.” [FN46] The crisis is clear enough to those who currently decry the decline of literacy or the relativistic nature of our social values. [FN47]
The legal method with its paradigm cannot, and would not wish to, impose a set of values or ‘Truths' upon our society. But what it can do is force society's citizens to think about values and ‘Truths' in an organized way which puts proponents' views to its test. The scientific method seeks to do that, and has succeeded to a great extent in the hard sciences, Kuhn's views not withstanding. But as Edgerton and other convincingly suggest, it has hardly succeeded in the social sciences. Only the legal method has any hope of imposing such rigor upon the socio-cultural realm in America. And that is why this author argues that America needs more lawyers.
*28 If I am right, then our law schools are overlooking a splendid opportunity to defend against the declining enrollments which they are expeiencing at the present time. And the bar is foregoing a fine argument with which to combat the negative publicity directed at the profession in recent years. Never before in the history of civilized societies has the lawyer's mind and method--the attorney's habit of thinking--been needed so badly as in America today. The J.D. and all that it implies are invaluable tools to the business executive, the politician and public servant, the military man, and the professional communicator.
To turn Will Shakespeare on his ear, I say, “First thing we do, let's train more lawyers!”
[FNa1]. Associate Provost, Rider University, J.D., Case Western Reserve Law School, Ph.D.,Case Western Reserve University.
[FN1]. Jane Birnbaum, “Guilty! Too Many Lawyers and Too Much Litigation. Here's a Better Way,” Business Week, Apr. 13, 1992, at 60.
[FN2]. Id. at 61.
[FN3]. Id. at 60.
[FN4]. James O. Castagnera, “To Confront or Cooperate? The Lesson of Anthracite Coal,” 41 Lab. Law J. 158 (1990); Owen E. Herrnstadt, “Why Some Unions Hesitate to Participate in Labor-Management Cooperation Programs,” 8 Lab. Law J. 71 (1992).
[FN5]. See, e.g., Felipe Fernandez-Armesto, Millennium: A History of the Last Thousand Years 33 (Scribner, 1995)(“The beauty and sensibility cultivated in [11h century Japanese] poems… was the object of every form of public display. Only in an archery contest do [Japanese nobility of the period] approach the practical world of values of their European counterparts and contemporaries; their usual competitions are in painting, dancing, and mixing perfumes and incense.”)
[FN6]. Id. (“In Christendom [in the 11th century], aristocratic thuggery had to be restrained or at least channelled by the church. Noble hoodlums would be at best slowly and fitfully civilized over a long period by a cult of chivalry which always remained as much training in arms as education in values of gentility.”)
[FN7]. See Ted Morgan, Wilderness at Dawn: The Settling of the American Continent 186 (1993)(“When the frontier became hinterland [and] there was no common enemy, [Americans] started taking one another to court over trifles.”)
[FN8]. Pierson v. Post, 3 Cai. R. 175, 2 Am Dec. 264 (N.Y. 1805).
[FN9]. Ghen v. Rich, 8 F. 159 (D. Mass. 1881).
[FN10]. Lefkowitz v. Greater Minneapolis Surplus Store, Inc., 251 Minn. 188, 86 N.W.2d 689 (1957).
[FN11]. Hawkins v. McGee, 84 N.H. 114, 146 A. 641 (1929).
[FN12]. Fernandez-Armesto, supra, at 464.
[FN13]. Id. at 465.
[FN14]. Id.
[FN15]. Martin Gilbert, The First World War: A Complete History (Henry Holt and Co., Inc. 1994).
[FN16]. John Keegan, The Face of Battle, Chapter 16 (“The Somme: July 1st, 1916”)(Viking Press 1976).
[FN17]. Fernandez-Armesto, supra, at 517.
[FN18]. Id.
[FN19]. See, generally, Allen Bloom, The Closing of the American Mind (1987).
[FN20]. Ray Bradbury, the famous science fiction writer whose classic Martian Chronicles has been reproduced on CD ROM, recently chastised film, TV and CD ROM producers for emphasizing special effects over human emotions intheir work. Jeffrey A. Trachtenberg, “Martians Land on CD-ROM!” Wall Street Journal, November 22, 1995, at A25.
[FN21]. Thomas Kuhn, The Structure of Scientific Revolutions (1962).
[FN22]. See, e.g, Margaret Mead, Coming of Age in Samoa (1928); an able exigesis on the “paradigm shift” (to use Thomas Kuhn's term) from Darwinian inevitability to cultural relativism in anthropology and psychology is contained in Carl N. Degler, In Search of Human Nature: The Decline and Revival of Darwinism in American Social Thought (Oxford 1991).
[FN23]. Robert A. Heinlein, Stranger in a Strange Land (1961, Ace Science Fiction ed. 1987).
[FN24]. Id. at 125-27.
[FN25]. See Walter Lippmann, A Preface to Morals (1929).
[FN26]. Robert J. Borghese, “An Introductory Note on Jurisprudence,” in Wharton Reprographics Legal Studies 101 Bulkpack 7 (1994).
[FN27]. See, e.g., Degler, supra.; Robert B. Edgerton, Sick Societies: Challenging the Myth of Primitive Harmony (The Free Press 1992); David P. Barish, The Hare and the Tortoise: Culture, Biology and Human Nature Viking Penguin 1986); Gertrude Himmelfarb, The DeMorilization of Society: From Victorian Virtues to Modern Values (Alfred A. Knopf 1995); Robert Wright, The Moral Animal: Why We Are the Way We Are: The New Science of Evolutionary Psychology (Pantheon Books 1994).
[FN28]. Borghese, supra, at 8-9.
[FN29]. See Walter Goldschmidt, ed., The Anthropology of Franz Boas (Howard Chandler 1959); Marshall Hyatt, “Franz Boas and the Struggle for Black Equality; The Dynamics of Ethnicity,” Perspectives in American History 295 (1985).
[FN30]. Edgerton, supra, at 120.
[FN31]. Id. at 175-77.
[FN32]. Id. at 205, citing Motoo Kimura, The Neutral Theory of Molecular Evolution (Cambridge University Press 1983).
[FN33]. Id.
[FN34]. Himmelfarb, supra.
[FN35]. Heinlein, supra, at 140.
[FN36]. See, e.g., Benjamin Nathan Cardozo, The Nature of the Judicial Process (Yale University press 1921); Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev.457 (1897).
[FN37]. Gertrude Block, Effective Legal Writing (Foundation Press 1992).
[FN38]. Id. at 148 and 244.
[FN39]. Id. at 146.
[FN40]. Id. at 169.
[FN41]. Attorneys and commentators will debate for a long time, for instance, whether Attorney Johnny Cochran's playing the “the race card” to the O.J. Simpson jury was outside the bounds just described above. But jury practice is a matter beyond the bounds of the present article.
[FN42]. Richard K. Neumann, Jr., Legal Reasoning and Legal Writing:Structure, Strategy and Style,(Little, Brown and Co. 2d ed. 1994).
[FN43]. Id. at 83.
[FN44]. Id. at 84.
[FN45]. Id.
[FN46]. Marshall McLuhan, The Gutenberg Galaxy: The Making of Typographic Man 14 (Signet Books, 1959).
[FN47]. See, generally, Himmelfarb, supra.
22 THUMARLR 19
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