(Update: Thank you Instapundit)
David Brooks has a piece up today in the Times attracting much comment. I am no populist, except perhaps by David Frum’s unexacting standards, but let’s just say I think that Brooks somewhere along the way lost the marvelous tuning that made him the true heir of Veblen. I think it was the need at the Times to do politics rather than Bobo culture and “comic sociology.” As for me, well, how much of an elitist am I? An editor of the TLS once told me, “Ken, you have almost exquisite taste. It would be flawless, too, except for your fondness for the novels of AA Gill.”
Here is my response to David Brooks, en passant, taken with some editing from the conclusion of an essay of mine in the Columbia Law Review in 1996, reviewing books on lawyers, elites, and the therapeutic New Class.
A New Class of Lawyers: The Therapeutic as Rights Talk (96 Columbia Law Review 1092 (May 1996).) (SSRN link)
The old elites wanted to be the top of the communities in which they had grown up; whether to lead or dominate, to serve communities or exploit them, at least they understood themselves as having a place in them. The new elites, by contrast, want no connection; they understand that power is elsewhere, money is elsewhere, and mobility is everything; if indeed they have to live somewhere, it will be if at all possible in a wholly private, gated community. Yet simultaneously they want to dominate.
The New Class pushes its mobility to absolute limits, launching itself into what it imagines is a global society conducted in the jet stream, made weightless by the complete mobility of capital, but with devastating consequences for those left behind on the ground. For those who cannot fly, there is first, the administration of life by these same elites and their hirelings, the authoritarian, bureaucratic formations which, to be sure, express themselves alternately in soothingly therapeutic psycho-babble or communitarian slogans of the common good or assertions of new and endless rights and, second, economic insecurity in the midst of being urged to greater self-esteem …
In this unforgiving light, the unhappiness of lawyers looks rather less like professionals experiencing the loss of fulfillment that accompanies losing “ownership” of the social ends of the legal profession and rather more like the unhappiness of experts who, having established to their own satisfaction the certainty of ends not open for argument by non-experts, wonder why they are not also loved.
The issue of the New Class and its lawyers is authoritarianism. In an age when the therapeutic has appropriated rights talk, and with it lawyers, turning it and them into agents of New Class authoritarianism and social control, the real question that needs to be answered is why there exists the continued “hegemony within the public culture of an essentially indeterminate and at the same time absolutist discourse of rights.” It predominates because, far from being merely a language of individual liberty or even unbridled individual license (as, for example, the communitarians would have us believe) it is today a language of state authority, a language of therapeutic paternalism; those who actually dream of being “liberals” will not reclaim rights talk any time soon. Its appropriation is at the core of the process by which the state today controls, as the late Christopher Lasch wrote, “not merely [the individual's] . . . outer but his inner life as well; not merely the public realm but the darkest corners of private life, formerly inaccessible to political domination.”
Lawyers are deeply complicit in this colonization of the language of rights by the culture of therapy. They participate because it serves the agenda of a class that, unfamiliar with democracy except as an impediment to its social engineering, is incapable of any form of discourse that is not directed from the top to the bottom. Expertise, particularly in the social sciences, is a language of hierarchy and social control, and lawyers today, as a professional formation within the New Class, deploy the language of rights to the end of making the therapeutic coercive in the public sphere.
It is not a glorious profession because it is not a glorious class, and lawyers are right to be unhappy.
Mark N. says:
An intriguing thesis, that I can’t comfortably place on either the left or the right. Is our Kenneth Anderson a Marxist, with his attacks on the “globalized bourgeois class” and critique of a hierarchical organization of society directed towards the benefit of a small elite class that exploits the masses? ;-) With the theses on control via cultural hegemony, perhaps even a Gramscian Marxist!
On the other hand, technocratic elites have for the past century or so generally been associated with the left (with the exception of the business-executive variety of elite), so in end effect perhaps the critique comes from the right, even if the methodology is all Marxist/post-Marxist.
January 5, 2010, 7:34 pmlgm says:
One could write an essay about this run-on sentence.
Social scientists are not jetsetting elitists. They are professors, paid half what their business school colleagues make. Social science is hardly the route to world domination. Most don’t have lawyers. Maybe you’re thinking of the liberal elite lawyers working pro bono for the ACLU.
Kenneth Anderson tries to put himself among the intellectual elite by using their language. But it comes out as nonsensical as that of the worse leftist academics. Clue: if ya don’t want to sound like one of those elites, try listening to Sarah Palin. Otherwise, you just come off as conflicted.
January 5, 2010, 7:57 pmCrunchy Frog says:
Oh, but they so want to be that they can taste it.
January 5, 2010, 8:03 pmleo marvin says:
The second sentence is superfluous.
January 5, 2010, 8:13 pmKenneth Anderson says:
Leo Marvin: Superfluous? My Dear Sir! How else would I show just how much of an elitist I am, except by a fondness for AA Gill novels?
January 5, 2010, 8:18 pmleo marvin says:
Ken, as I said, I think you managed. :)
January 5, 2010, 8:21 pmArkady says:
“Ken, you have almost exquisite taste.”
Reminds of the line from one of Noel Coward’s plays:
Director to actress: “I deeply respect almost everything you’ve ever done.”
January 5, 2010, 8:23 pmcookiemonsta says:
Brooks didn’t coin the word “bobo.” Bobo is a religious group and using the term like Brooks does is offensive.
Nor did he coin the term “The New Class.” “The New Class” was a book written by Milovan Djilas, the famous Serbian Partisan rebel who fought Nazi occupation and eventually became Vice President.
I think you shouldn’t use these terms as Brooks defines them. They already mean things, completely different and unrelated things.
January 5, 2010, 8:44 pmjosh says:
lgm:
The following is not a run-on sentence:
“Expertise, particularly in the social sciences, is a language of hierarchy and social control, and lawyers today, as a professional formation within the New Class, deploy the language of rights to the end of making the therapeutic coercive in the public sphere.”
It is a properly punctuated compound sentence. The subject of the first clause is “expertise,” the verb, “to be”, etc. The subject of the second clause is “lawyers,” the verb is “deploy,” etc. The two clauses are joined by a comma, followed by “and.” Pretty standard compound sentence.
January 5, 2010, 9:15 pmA. Criminal says:
“One has to belong to the intelligentsia to believe things like that: no ordinary man could be such a fool.” — Eric Blair
January 5, 2010, 9:16 pmjosh says:
Otherwise, gotta side with Brooksie on this one. Plus, I’m not really sure how this has anything to do with Brooks’ column. Yes, it may be “elitist” to call tea baggers stupid, but his thesis doesn’t really have anything to do with rights. Is it really so elitist (“to lead or dominate, to serve communities or exploit them”? Really?) to say Michelle Bachman, Sarah Palin, death panels, innumerable violations of Godwin’s Law, Glenn Beck, etc. are stupid?
January 5, 2010, 9:21 pmjosh says:
One last note, funny how I doubt I’ll see this type of argument (to the extent I get it) applied to the likes of Jennifer Rubin at Coomentary (see http://www.commentarymagazine.com/viewarticle.cfm/why-jews-hate-palin-15323). Who knew all Jews think Palin is stupid too?
January 5, 2010, 9:27 pmyankee says:
This has got to be one of the most pretentious pieces of writing I’ve read in a long time. The idea seems to be that if you use big words in complex sentences structures you are automatically saying something profound. If you are actually making a substantive argument, I have no idea what it is, except that the conclusion involves some negative assessment of psychologists, lawyers, and social scientists.
But on what grounds and based on what evidence? Who knows?
January 5, 2010, 9:27 pmNorthern Dave says:
Well written, Ken.
Part of your uphill battle is that the new elite’s footsoldiers (Prof. of Sociology, Psych., etc., many lawyers, educators etc.) are generally unaware they aren’t liberals in the classical sense. They think they are the heirs of Wilson when they are the heirs of Marx and Rhodes (tyranny by any other name……). They are the faceless functionaries who made the USSR possible, always dreaming of climbing the Bureaucratic Stairway to Heaven…..
As one Prof. I recently heard put it with a sigh, “University grads today think they are educated when, in point of fact, they are indoctrinated.”………
“Liberal Fascism” by Jonah Goldberg is a good starting point for anyone curious as to the evolution of “liberalism” in America.
January 5, 2010, 9:34 pmjosh says:
Thank you to Northern Dave for being the first to compare those with whom he disagrees to Marx and “faceless functionaries who made the USSR possible.” We’re also Jewish, which means that, when we’re not trying to turn this country into a socialist dystopia, we’re controlling world finance! Yeah! That’s the ticket!
January 5, 2010, 9:40 pmcarr1on says:
What’s with all the linking to Instapundit lately? This site is really going down hill with all the political articles.
January 5, 2010, 9:44 pmMike McDougal says:
I dare you to try to write something worse than that excerpt.
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January 5, 2010, 10:25 pmBen says:
whats the matter with being a “jetsetting elitist?” Where do I sign up?
January 5, 2010, 10:30 pmd-berg says:
Clearly, there is a chasm between majority of population and the elites. On a number of issues (take e.g. death penalty and probably illegal immigration) elite has reached consensus and it is irreconcilable with majority’s preferences. The major economic trend of our times, outsourcing, makes rich richer but destroys livelihood of many working class people. Yet these issues are largely settled in the political sphere exactly because political elite has consensus.
Political class is getting increasingly corrupt at taxpayers’ expense – look no further then to explosion of budget earmarks. Yet nothing can be done about it in American political system as it currently stands.
And you wonder why this treatise has appeared?
January 5, 2010, 10:38 pmSW says:
Clearly?
January 5, 2010, 10:48 pmRicardo says:
Echoes of Marx indeed. Compare the above to this:
– Communist Manifesto
January 5, 2010, 11:07 pmTwirip says:
I think the concept, and even the phrase, is older than that.
Mikhail Bakunin, 1872
January 5, 2010, 11:13 pmTwirip says:
This sounds a lot like Edmund Burke.
January 5, 2010, 11:15 pmTwirip says:
Really? Everyone I disagree with is Jewish? I think that’s highly improbable.
Jews are over-represented in the New Class, but that does not mean the New Class is entirely or even largely Jewish.
January 5, 2010, 11:20 pmTwirip says:
No, not echoes of Marx. That passage from Bakunin above was aimed at Marxism.
January 5, 2010, 11:22 pmTwirip says:
No, it’s not “elitist” to “call tea baggers stupid”. It’s the mark of a particular sort of dimwitted juvenile.
Would you consider it “elitist” to call some group of people “cock suckers”?
January 5, 2010, 11:37 pmMark Field says:
Marx frequently sounded like a Romantic Conservative.
January 5, 2010, 11:45 pmRicardo says:
Twirip, you seem to be confusing yourself by posting so much at once. I was the one who said “Echoes of Marx indeed” and I followed it with an actual quote from Marx and Engels which you can easily locate for yourself within the first chapter of Communist Manifesto.
I was agreeing with the first commenter Mark N. who found a distinct Marxian tone in Prof. Anderson’s writing by alluding to class struggle and pointing out the rootless and self-interested nature of the bourgeoisie/New Class.
January 5, 2010, 11:45 pmcookiemonsta says:
Twirip,
My link mentioned that Bakunin’s use of the expression preceded Djilas’.
Djilas’ is one of the more interesting and relevant old-timey Communists. His writings contain a lot of historical accounts and practical advice. Unlike Mao or Bakunin, he didn’t harp on the ridiculous fantasy: all the power of the state must be concentrated in the proletariat, specifically the avant-garde of the proletariat (a small and select group of people who purport to represent the whole of the proletariat), which is a necessary condition for the eventual dissolution of the State. Djilas recognized, like all anti-Communists do today, that the Communist State never dissolves upon some magical event happening. It just gets bigger and no one relinquishes an ounce of power.
January 5, 2010, 11:58 pmthree chord sloth says:
Thanks for this essay, Kenneth. You, and a few of the commenters like d-berg and Northern Dave get it, The rest..? Not so much.
Folks, the issue isn’t left vs. right, it’s upscale vs. downscale… or, to put it even more bluntly, it’s elitist authoritarianism vs. small “d’ democracy. While everyone has been busy chanting “Hurray for our side” and pointing accusatory fingers at their enemies on the left or right, an ugly ant-ihuman mindset has engulfed pretty much the entire ruling political/economic class… I call them the Academic Authoritarians. And you were so busy with the day-to-day left vs. right scrimmages, you missed the quiet coup going on behind your back. Here’s the news flash: Both parties are anti-individual, anti freedom, and authoritarian. Rule-by-elites is inherently so. If you need to believe the other guys are worse, well, go ahead, you’re right, They are.
January 6, 2010, 12:11 amRicardo says:
Liberals think they are the heirs of the Klan apologist Woodrow Wilson?
Otherwise, I would say if someone wants to understand the evolution of liberal thought over the past 200 years, he would do much better for himself by actually reading the writings of those liberal thinkers over the past 200 years.
January 6, 2010, 12:15 amcookiemonsta says:
“You, and a few of the commenters like d-berg and Northern Dave get it, The rest..? Not so much.”
muahahah
psychology professions are the faceless footsoldier functionary heirs of Marx who made the USSR possible hahah so good
January 6, 2010, 12:30 amfred says:
You seem to have forgotten that maggots will eventually feed on your flesh too. Have a nice day.
January 6, 2010, 2:14 amTwirip says:
I seem to have confused you, perhaps.
And I was disagreeing with that. The New Class is not bourgeoisie.
January 6, 2010, 2:20 amTwirip says:
Mao and Bakunin were unalike. Bakunin was an anarchist, a proto-libertarian in many ways.
January 6, 2010, 2:25 amRicardo says:
Try reading again. It was an analogy which is what it means for one piece of writing to “echo” another. In SAT format, Marx:bourgeoisie :: Anderson:New Class. I found the style of writing and the critiques very similar. I never asserted equivalence.
January 6, 2010, 3:02 amlgm says:
The writing exudes self loathing. He claims to hate elitist writing while doing his darnedest to imitate it.
Then there’s the logical contradiction. If Bob makes it rich and believes in sharing, he is an elitist control freak. If Alice makes it rich and doesn’t share, she’s a libertarian hero.
January 6, 2010, 8:53 amTwirip says:
The multibillionaires who run the left don’t believe in sharing. They do believe in control though.
January 6, 2010, 9:02 amEzra says:
Ken, I’ve always liked your linking of the New Class critique to the therapeutic class because it anchors it in liberal authoritarianism. Lasch’s application of it appears more a conventional Marxist critique of the wealthy, and I personally think he missed the real point.
January 6, 2010, 9:22 amKenneth Anderson says:
Ezra: is it possible you are my old friend Ezra Field?? The great Ezra Field who first asked for this article at Columbia Law Review? I agree with you re Lasch – and it is true that I did a little re-casting of Lasch in that article.
lgm: Don’t worry, self-loathing has never been a problem of mine – excess of self-love, possibly :)
January 6, 2010, 9:38 amAultimer says:
It reads like the late Buckley, good and drunk, after an evening with too many west coasters. In any event, the real problem with the tea-partiers is that they think the benefits of the republic are obsolete (either out of techno-centrism or self-interest), and that
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January 6, 2010, 11:12 amjukeboxgrad says:
twirip:
Hearing someone claim that a passage from the Communist Manifesto “sounds a lot like Edmund Burke” is truly an unforgettable moment in VC history. Thank you for bringing it to us.
January 6, 2010, 11:38 amcookiemonsta says:
Jukeboxxx,
Hearing a right-winger on VC describe Bakunin as a “proto-libertarian” is just as a great. Bakunin was an anti-semite, a dialectical materialist, a Socialist. He wanted to abolish private property rights and inheritance (i.e. 100% estate tax. He believed in land redistribution to those who actually worked the land. He believed in equal public education for all – not homeschooling or private schooling. He believed not only in the eventual abolition of the State (which, as I said, all Communists do – but it’s a ridiculous fantasy), but also in the abolition of the Church and religious institutions.
January 6, 2010, 1:31 pmjukeboxgrad says:
Good point, I agree. It’s just that Marx and Engels are even more famous than Bakunin. In any case, rarely do we see so much spectacular ignorance packed into a few short posts. I can only say bravo.
January 6, 2010, 2:37 pmPerseus says:
I’d put it in the tradition of Alexis de Tocqueville. The intriguing question is why lawyers went from being a salutary conservative restraint on the rise of soft despotism (as Tocqueville hoped) to being part of the vanguard in creating it.
January 6, 2010, 3:47 pmleo marvin says:
Lawyers are by definition on all sides of every dispute with a legal component. There are many reasons lawyers are held in such low public esteem, some of which are valid, but having any more to do with creating despotism than resisting it isn’t one of them.
January 6, 2010, 4:29 pmNorthern Dave says:
Chuckle. Tell the Welsh that Edward the First’s lawyers and judges were just hanging around on both sides the issue.
The reason, LM, that they are in the vanguard is that they got rich over the last 100+ years doing the bidding of their elitist overlords (and helping Baron X take Count Y for everything he had). They now have a vested interest in maintaining and increasing that wealth.
Victims of their own Competence?
January 6, 2010, 4:52 pmNorthern Dave says:
Umm, where did I mention Jewish anywhere????
In point of fact (while apparently Jewish folks are well represented according to their numbers – who cares in a system where access is universal??) this is a ubiquitous problem in North America. Most of the functionaries in Russia were…hold on here, big revelation….ethnic Russians.
Besides, World Finance is really run by us Scots, but to see the numbers you’ll have to pay :-)
January 6, 2010, 4:58 pmleo marvin says:
Northern Dave, repeating populist stereotypes doesn’t make them more convincing, much less more accurate.
January 6, 2010, 5:45 pmTwirip says:
You might wish to read a little Burke before shooting your mouth off on topics you know nothing about.
Stick to arguing that “Bush Lied!”.
January 6, 2010, 6:14 pmTwirip says:
He was all thse things. But he was from a different school of socialism than the one which became dominant, that of Saint-Simon. There’s a lot in Bakunin for libertarians to appreciate. Anyone who says things like this will always be worth our time.
“In every State, the government is nothing but a permanent conspiracy on the part of the minority against the majority, which it enslaves and fleeces.”
It’s not the sort of sentiment which the modern left can live with though. It’s amusing to you and chuckles acting like Bakunin says anything to you.
January 6, 2010, 6:20 pmJohn Moore says:
In these writings, there is a lot of truth. The elites have led the country astray as their power (and egos) have grown. The tea party folks are a manifestation of a strong resentment of this.
Herman Kahn forecast the creation of a parasitic elite in 1979, and we are seeing it come true.
As just one example, the elite, being economically comfortable (if not wealthy), see little harm in environmental policies which present significant economic hardship to those in the middle classes. After all, a few tens of bucks of gasoline (or electricity) cost per week is nothing to most in the elite, but an economic problem to the middle glass, and as these burdens add up – still not a problem to the upper middle class elite – the lower classes suffer even more.
Modern liberalism has gone from being ‘about’ the little guy to being about the causes that harm the little guy but make the elites feel good.
See Google’s
January 6, 2010, 7:01 pmrip-offselection of Kahn here: http://books.google.com/books?id=qtMNAAAAQAAJ&pg=PA139&lpg=PA139&dq=New+Class+Herman+Kahn&source=bl&ots=e3QN_OY6xn&sig=fMlERv4PjgNq8jFGtONx98hjeKA&hl=en&ei=KbhDS9vNL5HUtgOcvZG7BA&sa=X&oi=book_result&ct=result&resnum=2&ved=0CA4Q6AEwAQ#v=onepage&q=New%20Class%20Herman%20Kahn&f=falseNorthern Dave says:
Which populist stereotype are you referring to?
Assuming it isn’t about Welsh people or Edward the First, you and I both know that there are classes (pun intended) of lawyers with many scraping by on flipping distressed housing and the completely different class which is the legal arm of the Powers that be. That second arm has been well renumerated over the last hundred years and I would argue has a very powerful vested interest in an increasingly elitist – even aristocratic – and centralized power structure, if for no other reason than transferral of the power and wealth to their Blood most effectively.
“Of all S&P 500 CEOs in 2008, 67% have earned some type of advanced degree, and of that percentage, 35% are JDs. ” – http://www.bitterlawyer.com/index.php/site/columns_detail_comment/ten_current_ceo_lawyers/?cat_id=13
January 6, 2010, 7:39 pmNorthern Dave says:
Re-reading this I realized it might be mis-understood so to clarify:
The “ubiquitous problem” is the elitist controlled army of zombie/indoctrinated functionaries.
As (outside of Israel) Jewish people are a small minority how on earth would you tie them into this discussion? Even if they’re 6% of the Conspiring Elite instead of the 3% of the population one might expect using overly simplistic statistics, the other 90+% of the Conspiring Elite are made up of the rest of us (Scots, Germans, English – note: I’m picking on groups I can claim I belong to – etc.)
Ergo Sum I demand my right to be considered a potentially threatening member of the Conspiring Elite as statistically I’m more likely to be one.
…
January 6, 2010, 7:51 pmNorthern Dave says:
PS – Unless you are concerned about Scots being labelled “Bankers” to which I’ll respond with the old Scots dictum: “England took over Scotland, and Scotland took over the Bank of England :-)”……….mind you, Gordon Brown shouldnae have sold the Plate when he did………….
January 6, 2010, 7:52 pmleo marvin says:
Northern Dave, you’re just telling scary lawyer stories and quoting stats that don’t mean what you imply they do. So 20% or so of S&P 500 CEO’s have a JD. About the same number have engineering degrees, and twice that many have MBA’s. But you don’t mention them, do you? No. Engineers and MBA’s aren’t populist scapegoats. Lawyers are.
More important, how representative are those 100 or so JD CEO’s of the legal profession as a whole? There are over a million practicing lawyers in the US, so those you single out as allegedly being in the vanguard of soft despotism make up about 1/10 of 1% of the entire profession. I think you’ll agree that’s a perfectly meaningless sample.
I realize demonizing lawyers makes good sport, and I wouldn’t even mind if it hadn’t been so ardently appropriated into right-wing populism. That adds injury to insult. So I’ll repeat, out of a million lawyers, you’ll find some in every group you hate and some in every group you love. Need I remind you which profession the libertarian bloggers here belong to?
January 6, 2010, 10:11 pmNorthern Dave says:
Leo, do you agree with this part of what Ken wrote or not?:
“Lawyers are deeply complicit in this colonization of the language of rights by the culture of therapy. They participate because it serves the agenda of a class that, unfamiliar with democracy except as an impediment to its social engineering, is incapable of any form of discourse that is not directed from the top to the bottom. Expertise, particularly in the social sciences, is a language of hierarchy and social control, and lawyers today, as a professional formation within the New Class, deploy the language of rights to the end of making the therapeutic coercive in the public sphere.”
January 6, 2010, 10:24 pmNorthern Dave says:
That’s because engineers and MBA’s are rugged individualists whereas lawyers are all involved in conspiracies!
Seriously, you had been arguing that lawyers, poor maligned things, were just a bunch of misunderstood country bumkins – like some vision of Jimmy Stewart from “Mr. Smith goes to Washington”. While that caricature might be acurate for some lawyers (though not any I know personally) it hardly captures the reality that there are indeed members of the legal profession wielding considerable power openly. I used the CEO example rather than attempting to list every University Senate member who holds a JD because it is easily checked and is germaine to my point that there are Elite Lawyers who wield real influence. Ken’s article is about the realities of how that influence is wielded.
I will re-iterate my previous statement in more colloquial terms. There are lawyers and there are lawyers. Most lawyers have limited impact on society as a whole and perform the useful tasks of making wills etc.
The elite of the legal profession tell the President of the US what he can and cannot do and are influential in the policy making procedures of most of American endeavours (if for no other reason than that, especially with the highly regulated sectors, significant knowledge of legal ramifications and possiblities require their input).
We are not talking of the first group.
The Volokh crew are refreshing breath of fresh air. They and those like them are also in the minority, though hopefully growing in influence :-)
January 6, 2010, 10:42 pmEzra says:
Ha. It’s not just possible, it could well be true. It took me a little while to unwind the Lasch re-casting. At first, I thought it was just that I’d become more conservative. But more importantly, I would love to get together next time I’m in D.C. We are long overdue to catch up. I sent you an e-mail to your wcl address.
January 6, 2010, 11:23 pmjukeboxgrad says:
twirip:
I’ve read a fair amount of Burke, and I’ve also read the Communist Manifesto. That’s why I fell off my seat when I heard you claim that a key passage from the Communist Manifesto “sounds a lot like Burke.” This is somewhat surprising, given that Burke is often described as “the father of modern conservatism.”
But I’m sure your remarkable and innovative claim stems from your mastery of the subject matter, and is not simply a sign of carelessness, incoherence, and ignorance. Therefore I hope you’ll explain the connection you see, since I don’t think there are too many other people who have seen it.
There’s no “arguing” required, because there are multiple examples that leave nothing to argue about. And speaking of bogus claims, you’re generating an impressive number yourself (example, example).
========================
dave:
If it were translated into English and if any evidence was presented that any portion of it was true I would consider agreeing with it.
January 6, 2010, 11:38 pmleo marvin says:
I can’t answer that without critiquing Ken’s “culture of therapy” thesis, which I won’t do here. The short answer is, yes, there are certainly lawyers complicit in stuff I hope we’d agree “complicity” is an appropriate term for*, but they’re a statistically meaningless portion of the legal profession, and even most of them aren’t operating as lawyers, but as principles.
Lawyers play an essential role in a pluralistic society like ours, since at this stage of human evolution it seems law is the only language that can mediate all the fractious interests. But the lawyer you see is just a mirror of the non-lawyer he represents. That doesn’t necessarily make him complicit in his client’s behavior, unless you think there’s a better alternative to a nation of laws with an adversarial legal system. Pending further evolution, I don’t.
Where did I do that?
The caricature is yours, not mine, but I think the problem is with your “not any [lawyers] I know personally.” If you’re not involved in a legal controversy, the lawyers most likely to come to your attention, friends and relatives excepted, are the tiny few who make it into the Times.
For what it’s worth, I was at one the top law schools 20+ years ago, and not one of the 300+ students in my class wields any of that power you talk about. Among my friends, I’m the only craven capitalist who went to work for a big corporate firm, and there isn’t a maitre d’, limo driver or public official who knows me by sight or name. The rest of my friends are prosecutors, public defenders, law professors, etc. Middle class all, like most lawyers.
I think it’s ironic that the vast majority of lawyers, i.e., the ones who work for a living, and are at effect of the tiny few with power as much as any other citizen is; they’re the ones you treat as an afterthought.
(*The names Yoo and Addington pop to mind as strong possiblities.)
January 7, 2010, 2:39 amNorthern Dave says:
I sense some sensitivity on Leo’s part with regard to the public image of lawyers. There are two separate issues. The first involves peoples’ experiences of corruption within the legal system directly which seems to be fairly widespread. I won’t deal with that because it is a self-evident issue.
The second is the current bugbear politically (and somewhat germaine to Ken’s issue)and that is that the Judiciary is activist. Remember that to laymen there is no difference between judges and lawyers. Judges are just lawyers with recourse-free powers over Joe Public’s life and are themselves generally unaccountable (of the three students I had years ago who expressed the desire to become judges, 2 out of 3 wanted the job simply because of its heightened immunity from prosecution).
So, the legal profession is seen as prostituting itself to the contrarian elite to circumvent the public will and subvert the democratic process.
I would say from her confirmation hearings the newest SCOTUS member gleefully agrees.
The public wants the legal profession to implement the law, not restructure it.
(A further sub-issue I hear raised is the limiting of information in cases to juries
– no one I know wants to sit on one as the lawyers systematically hide information from them: the one who boondoggles best wins, but Justice is ill served. This problem could be solved if it was illegal for any information the Jury wanted to be withheld and if the juries were allowed to directly ask questions. The practical implementation of law is seen as a game lawyers play that destroys lives for cash.)
Be interesting to see where the legal profession goes in a global online era…all disputes settled by Microsoft ?
I have met some who have wielded power. One fellow I liked just passed away. Eugene would have liked him, I think. He once successfully defended a man who shot two tresspassers (who were threatening to rape the man’s daughter) to death.
January 7, 2010, 6:43 pmNorthern Dave says:
As a final thought to make you feel better about perceptions of lawyers, Leo, remember women consistantly rate lawyers high on the list of prospective mates :-) (So it’s not a pariah class when push comes to shove :-) ).
Volokh is about groundbreaking legal issues formed by groups like the one recently added by Eugene about legal student cyber-stalking and the societal changes they bring and how those relate to libertarian values both theoretically and practically.
Ken’s article is about how lawyers at the policy development level (being a smarter bunch than most of the other Elitist functionaries) are aware of the implications of what they are involved in and some of them at least are not particularly happy about what they see as an evolvingly-less-subtle form of Neo-Fascism (see again Jonah Goldberg’s “Liberal Fascism”) and their complicity in it.
Others like Justice Sotamayor are, I am convinced, completely happy with their status as Overlords of the New Serfs and are going on their way rejoicing (at least for now, rosy dreams of an orderly earth where all the classes are happy with their lots………….)
January 7, 2010, 9:33 pmNorthern Dave says:
“That doesn’t necessarily make him complicit in his client’s behavior…”
I would respectfully disagree. It makes him the hired gun who took money to do the Rancher’s dirty deeds.
Concrete example: one of the companies I have worked for usually decides to simply bankrupt suppliers rather than pay them if the legal costs for simply not paying will be less. If you are the lawyer accomplishing this mandate you are as guilty as the CEO who made the decision. The company has only lost this game once that I know of and that was because the other company had more lawyers and deeper pockets.
I’m in favour of Courts – the alternative is violence between powerful opponents. I would just like to see fundamental justice returned to the focus of the Courts and the legal profession turned to it’s original task of assigning correct judgements against lawbreakers (including the defence’s task being to get the appropriate sentence declared – not to get their client off for crimes committed).
January 7, 2010, 9:50 pmClaim: “lawyers are right to be unhappy” says:
[...] They’re an expert but unloved New Class, contends Kenneth Anderson at Volokh. [...]
January 8, 2010, 12:08 amleo marvin says:
Northern Dave, my self-identity isn’t tied up in what I do for a living, so no, I’m not “sensitive” to the public image of lawyers. I told you what I object to, so thanks for fessing up to it. As you revealed, a certain faction of the ideological right sees lawyer bashing as a populist way to vent their frustration that conservative control over the judiciary hasn’t transformed our culture into the dystopian nightmare they hoped for.* Since they can no longer blame that on judges being too liberal, they argue that if conservative judges aren’t good enough, it must be because they’re defective conservatives. Some people won’t be happy until judicial checks on majoritarian overreach are replaced with the sort of unfettered democracy the founders saw for the threat it is to all out of favor minorities.
(* To be clear, I doubt the dystopian nature of their vision is typically as obvious to them as it is to others. I assume most are blinded by ideology, not cynical.)
January 8, 2010, 4:16 amNorthern Dave says:
I promised myself I’d let you have the last content as I think I’ve made my case as completely as necessary, so thank you for the discussion and the succinct, well-written summary!
January 8, 2010, 5:49 amleo marvin says:
Thanks, and see you on the next thread.
January 8, 2010, 2:41 pm