So argued the eminent Fourth Circuit Judge J. Harvie Wilkinson, III, in Of Guns, Abortions, and the Unraveling Rule of Law, recently published in the Virginia Law Review. In Unraveling Judicial Restraint: Guns, Abortion, and the Faux Conservatism of J. Harvie Wilkinson, III, Nelson Lund and I disagree, arguing that none of Judge Wilkinson’s comparisons to Roe are accurate, and that Heller is no more of an “activist” decision than any other decision protecting an enumerated right. The final version of our article, forthcoming in the University of Virignia Journal of Law and Politics, is now available on SSRN. […]
Tag Archives | Scalia
A few days ago, Justice Antonin Scalia ruffled the feathers of the legal profession by suggesting that we are “wasting” too many of our “best minds” on law:
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.
And they appear here in the Court, I mean, even the ones who will only argue here once and will never come again. I’m usually impressed with how good they are. Sometimes you get one who’s not so good. But, no, by and large I don’t have any complaint about the quality of counsel, except maybe we’re wasting some of our best minds.
Scalia’s concern is a slight variation on the usual complaint that there are too many lawyers. But are there? The claim that there are too many lawyers is in serious tension with the other standard indictment of the legal profession: that lawyers cost too much. If there really were too many lawyers, one would expect their salaries to be relatively low.
In my view, Scalia is half-right. We are indeed devoting more of our “best minds” to law than we ideally should; perhaps more of our merely average minds too. But the high salaries of lawyers suggest that there is a genuine demand out there for all that lawyering. Quite simply, we need a lot of lawyers because we have a lot of laws. In the criminal law field, the United States imprisons far more people than any other industrialized nation, in […]