The Social Decline of Lawyers?

I previously posted about the rise of computation and its implications for legal practice, as machines replace some of the functions of lawyers. I recently wrote an essay that focused more on the displacement’s implication for the status of lawyers in politics and in society. As De Tocqueville saw almost two hundred years ago, lawyers were the aristocrats of America’s democratic society. The rule of law, not men, made them paradoxically the key men in the early Republic. But their position is now threatened by the rise of engineers and tech entrepreneurs.

This development may have good effects for society. As I observed:

In the twentieth century, lawyers continued to wield power, but the direction of their influence in economic affairs changed. Since the birth of the modern regulatory state and social democracy, lawyers have had incentives to increase and revise legislative mandates; they became the technocrats of regulation and redistribution. The more a nation intervenes in the free market, the more in compliance costs and transfer payments that lawyers can expect to receive. As a result, lawyers don’t tend to be strong proponents of economic liberty or even of a stable rule of law. Their interest frequently lies in legal complexity and the uncertainty it brings.

The decline of lawyers may therefore prove a boon to the rule of law and to market norms. Computational innovators benefit from capitalism’s process of creative destruction; their new applications transform industry after industry. Their success lies with a stable rule of law and relatively light regulation. True, once successful, innovators become incumbents and may seek to use government to hamstring new entrants. But the dynamism of technological acceleration will make it difficult even for big government to hold back waves of new “disruptions.”

In any event, I think we are seeing a change in the social power of various groups in modernity brought on by the relentless rise in computational power:

Edmund Burke famously mourned the replacement of the Age of Chivalry by “that of sophisters, calculators, and economists.” For Burke, the first category would probably include many of today’s lawyers. So long as there is law, however, we will need lawyers to offer interpretations of difficult texts and to smooth legal difficulties in the most important transactions. And so long as we have our Constitution, lawyers will have an essential role in the nation’s governance. Nonetheless, in the Age of Computation, the calculators are gaining on the lawyers—at work and in politics.

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His recent book, Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the co-author with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

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Comments

  1. johnt says

    A somewhat happy thought, but then as has been repeated thousands of times, power abhors a vacuum. We now find ourselves in an ever expanding environment of administrative law, aka, the bureaucratic regulatory State. Couple that with an Administration that believes in ukase from on high and the prospects of restraint are not at all promising.
    Big government has it’s own agenda, it’s acolytes never rest, their beady minds always ferret out the nooks and crannies of opportunistic Statism, their lusts never satisfied.

  2. R Richard Schweitzer says

    Missing from the considerations of Professor McGinnis’s observations here, and in much of law faculty writing, is consideration of the changes in the American legal system as changes have occurred in the social order.

    Over something more than the past 500 years, a (if not-the) predominant function “our” legal systems has been the identification, delineation, reconciliation (including enforcement) of obligations recognized and accepted within the social orders extant over those periods of time.

    That general statement must also take into account the “drift” away from that predominant function, including a shifting predominance of functions which has occurred in our own immediate society over the past century and certainly accelerated since my late (age 28) entry to the bar in 1952.

    Plausible arguments can be made that the American legal system today is no longer predominantly a system for the determination of obligations (as had been the its long historical development); but now is rather predominantly regarded as a facility for the attainment of commercial, economic, social, ideological and political objectives. The great bulk of adjudications in the judicial portion of the system are concerned with Rules of Policy (Legislation, Regulations, Ordinances, etc. and the procedures for their implementations). Similarly, civil litigation is now principally concerned with the uses of Rules of Policy. The legal system has become a another “means” for the attainment of “ends.”

    Those changes in the American legal system have created both needs and opportunities for a class of “operators” or “technicians” with aptitudes, attitudes and motivations to use the facility as a means for the ends sought by those who engage their services.

    As the system has changed and drifted from its concentration upon obligations and their roles in the relationships within the social order, those who are recruited into the purposes of the changed system will not conform to the characteristics of those who served in the preceding systems.

    One cannot fairly deal with observations of the social and other roles of those serving the needs and demands of a legal system without considering the functions of that legal system which change in accordance with the trend of the current social order.

  3. gabe says

    Richard:

    Once again, you do justice to the argument.

    Prof McGinnis:

    Despair not for the soon to be unemployed lawyers. all one need do is turn on your TV and one can tell that there are innumerable opportunities awaiting these clever characters if only they, too, can sue Big Pharma over their latest product. Oh, there is much to be gained from such an endeavor – the possibilities for endless employment are truly vast, sir, truly!!!

    take care
    gabe

  4. David Upham says

    Burke had something else relevant to say about lawyers–and their disproportionate and bad influence on the National Assembly. If he’s correct, the bad news is where the lawyers’ decline in prestige lags behind the decline in their power. Lawyers are much less respected but retain great power.

    ” Judge, Sir, of my surprise, when I found that a very great proportion of the assembly (a majority, I believe, of the members who attended) was composed of practitioners in the law. It was composed, not of distinguished magistrates, who had given pledges to their country of their science, prudence, and integrity; not of leading advocates, the glory of the bar; not of renowned professors in univerSitieS-but for the far greater part, as it must in such a number, of the inferior, unlearned, mechanical, merely instrumental members of the profession. There were distinguished exceptions, but the general composition was of obscure provincial advocates, of stewards of petty local jurisdictions, country attorneys, notaries, and the whole train of the ministers of municipal litigation, the fomenters and conductors of the petty war of village vexation. From the moment I read the list, I saw distinctly, and very nearly as it has happened, all that was to follow.

    The degree of estimation in which any profession is held becomes the standard of the estimation in which the professors hold themselves. Whatever the personal merits of many individual lawyers might have been, and in many it was undoubtedly very considerable, in that military kingdom no part of the profession had been much regarded, except the highest of all, who often united to their professional offices great family splendour, and were invested with great power and authority. These certainly were highly respected, and even with no small degree of awe. The next rank was not much esteemed; the mechanical part was in a very low degree of repute.

    Whenever the supreme authority is vested in a body so composed, it must evidently produce the consequences of supreme authority placed in the hands of men not taught habitually to respect themselves; who had no previous fortune in character at stake; who could not be expected to bear with moderation, or to conduct with discretion, a power, which they themselves, more than any others, must be surprised to find in their hands. Who could flatter himself that these men, suddenly, and, as it were, by enchantment, snatched from the humblest rank of subordination, would not be intoxicated with their unprepared greatness? Who could conceive that men, who are habitually meddling, daring, subtle, active, of litigious dispositions and unquiet minds would easily fall back into their old condition of obscure contention, and laborious, low, and unprofitable chicane? Who could doubt but that, at any expense to the state, of which they understood nothing, they must pursue their private interests which they understood but too well? It was not an event depending on chance, or contingency. It was inevitable; it was necessary; it was planted in the nature of things.”

      • gabe says

        On a more serious note:

        I think Prof. McGinnis overstates the potential difficulty faced by our next “crop” of lawyers. There will always be work for them as the lower level bureaucrats that populate the various Federal, State and local agencies that direct the economy / lives of our fellow citizens.
        In some ways, the level of work performed / scholarship required within these agencies is not dissimilar to that required of the majority of lawyers at a large law firm. A significant portion of the work is, after all, clerical in nature requiring no great understanding of legal theory or philosophy. One need not even go down to the firms’ law library – it is almost all online.
        If, however, McGinnis is correct in asserting that the role of the administrative agencies will decline significantly some loss of opportunity for lawyers may result. I do not see this absent a fundamental shift in American political culture. Even then, there will always be work for lawyers as we do like to go after each other for some of the silliest things, now don’t we?
        Then again, as David points out via Burke, these characters will always find a home in the various Legislatures of the country.

  5. EJW says

    To:
    R Richard Schweitzer in re: “Plausible arguments can be made that the American legal system today is no longer predominantly a system for the determination of obligations (as had been . . . its long historical development); but now is rather predominantly regarded as a facility for the attainment of commercial, economic, social, ideological and political objectives.”, and John O. McGinnis in re: “Since the birth of the modern regulatory state and social democracy, lawyers have had incentives to increase and revise legislative mandates; they became the technocrats of regulation and redistribution.”

    As a paralegal in a Public Defender Office, it seems, at least here and, yes, the Prosecutors’ Office the law may still be practiced, as you have said Mr. Schweitzer, as “a system for the determination of obligations”; societal obligations, “moral compacts”, versus the law of contracts, though they are not entirely separate. Personally, I find myself privileged and quite rewarded working in just such an environment.

    However, I do not wear blinders. It’s clear the criminal justice system, with it’s own myriad of, and under the mire of its laws, is no less flawed than and becoming as expansive as, the civil and administrative legal systems. The bottom feeders to the most noblest in this field, so to speak,”coexist” with each other as with the civil and administrative sides. The thing is, both in congress and in state legislatures the majority of representatives are themselves lawyers or have law school degrees.

    So Prof. McGinnis, as to your “birth of the modern regulatory state and social democracy”, and Richard Schweitzer, Esq., your ” American legal system . . . now is rather predominantly regarded as a facility for the attainment of commercial, economic, social, ideological and political objectives”, I believe the two concepts are related. Lawyers, essentially, birthed the system(s) and continue to perpetuate it, whatever their motives.

    It seems to me the source of where the law, civil and criminal, has fundamentally gone astray – presuming this is what underlies your arguments, is society itself; its ever growing rejection of civility, the natural law and faithfulness to God.

    Please also know, I generally accept what both of you have said as being thoughtful and thought provoking. I am not particularly challenging either of your arguments or attempting to persuade you of mine.

    • R Richard Schweitzer says

      To EJW:

      First, my appreciation, which we all should share, for the work you are doing within the legal system that we have. The work you do is crucial to what justice the system is able to produce.
      Others who graze here are familiar with my conclusion: Justice is the performance of obligations. You are very much on point in noting that criminal law, in its proper context, is concerned with obligations (which include restraints on conduct).

      As a follower of the work of the late William J. Stuntz, until his untimely death in 2011, I am keenly aware of the points you make concerning the system and criminal law. For others, there is his “The Collapse of American Criminal Justice” (Harvard – 2011). You will also find in Stuntz’ range of writings the very same concerns with those religious aspects you note.

      Second, you are absolutely correct in your perception of the linkage in my observations to Professor McGinnis’s, both of which touch upon changes in our social order. Your identification of social democracy is on point.

      In the same vein in which liberalism has been reinterpreted, we are now seeing a similar inversion of “Socialism” into “Social Democracy.” So how can we identify the ideological proposition of “Social Democracy?”

      Critical examination of that proposition will reveal that it requires that the Democratic process be conducted for objective purposes; principally social or economic objectives, or some manner of attaining the social through the economic, or the economic through the social, or even some combination of both. The essential point being that the Democratic process shall be conducted for predetermined objectives.

      In both the textbook stages, and the political installations, of Socialism, governments (states), however established and maintained, are to be operated for social and economic objectives.

      Thus, we have the definitive link between “Socialism” and “Social Democracy.”

      The impacts on individual liberty and on the relationships within a social order from attempts to structure that social order by predetermined objectives have been well delineated.

      Social Democracy perverts the Democratic process; and, like Socialism, will not work.

      The trend toward acceptance of “Social Democracy” as noted by Professor McGinnis is indicative of changes in our social order.

      However, and here we may differ, it is my view that the changes in the legal system (Criminal Justice is now the criminal process system), that I noted, have been produced as a result of the changes in the social order, which in turn reflect changes in our culture, which is derived from individual motivations. As you have noted, previous principles, ideals and moral sensibilities no longer prevail, at least with their earlier effects. Those changes in the overall social order rather than in the motivations of individuals in the role of lawyers are what have brought us to these present conditions.

      • gabe says

        Richard:

        On a separate note:
        Don’t know if you were a “D-Day-er” but thanks for your service.
        take care
        gabe

      • EJW says

        May I address you as Attorney Schweitzer (I presume retired) or even (in some sense or some actual past/present capacity) Professor,

        I’m a (rather old at 55) babe in the woods compared to men of the law such as yourself, John O. McGinnis or William J. Stuntz. (I recall my Chief P.D. mentioning the latter’s name as well! Now I’ll have to look into his works.) I had a relatively long career as a draftsman and, should I dare disclose, an artist. So, my baptism into the law began with classes beginning June 2009. (Unfortunately or fortunately, not my only encounter with the “legal system”; 37 years ago, and which I now recognize as, by the grace of God, the “metaphysics” to my being here today.)

        I’m grateful for your reply, and not the complimentary part of it only. The broader content of it, once again, is clear, concise and agreeable to me. As to your closing paragraph, I’m glad to say I do not really “differ” with your conclusion. I have questions though regarding your thought that “[the] changes in the overall social order rather than in the motivations of individuals in the role of lawyers are what have brought us to these present conditions.” Do not the motivations of men fundamentally alter the social order? That is, haven’t certain (be it enlightened or misguided) lawyers, teachers, politicians, community and religious leaders largely been the drivers of the social order or disorder? If not men and women, what would you say directs or drives “the overall” social order?

        As a Catholic I would suggest a “moment” outside of present mankind, and then, from that particular time forward – man’s original fall from grace. Further outside of man’s fall, the fall of certain (perhaps a multitude of) angels from heaven. That of course, is a subject for another discussion.

        • R Richard Schweitzer says

          EJW

          From attempts to learn the role of obligations (and how they are individually formed) in mankind, and the role they have in the development of accepted morality in human interactions, it appears that individual motivations within human groupings create “cultures;” groupings of cultures combine to form social orders; a civilization is comprised of a spectrum (or portions of a spectrum) of social orders.

          It is fairly obvious that humans are subject to external and internal motivations. The latter, and their variations, are the most difficult to comprehend (for which religious faith provides the best perceptions for many).

          In examining the rise, decline, and resurgences of Western Civilization
          over roughly the past 5 or 6 centuries, we can observe the development and changes in culture indicative of human motivations.

          Scholars, like Jacques Barzun (“From Dawn to Decadence – HarperCollins 2000) have noted the motivation of “emancipation,” which seems to include a drive to attain amelioration from the burdens of obligations (including, responsibilities, duties, and commitments among others). It seems likely that the Moral Sense is derived from the recognition and acceptance of obligations. Seeking their mitigation or amelioration from the “burdens” or constraints they impose would diminish the Moral Sense.

          That is probably where we are today in Western Civilization, and in a wide range of relationships in our own social order.

  6. gabe says

    EJW:

    Nice thoughtful piece!
    “It seems to me the source of where the law, civil and criminal, has fundamentally gone astray – presuming this is what underlies your arguments, is society itself; its ever growing rejection of civility, the natural law and faithfulness to God. ”

    Perhaps, we can say that what has happened is that we have lost “the grace of living.”

    • EJW says

      Yes indeed Gabe, “the grace of living”! More so though I would suggest we, that is a great majority of our compatriots, are or are on the verge of no longer “living with grace.”

    • EJW says

      R Richard Schweitzer

      “Scholars, like Jacques Barzun (“From Dawn to Decadence – HarperCollins 2000) have noted the motivation of “emancipation,” which seems to include a drive to attain amelioration from the burdens of obligations (including, responsibilities, duties, and commitments among others).”

      Intriguing. The above reflection reminds me of R.R. Reno’s recent essay in First Things, Empire of Desire. There he explores Norman O. Brown’s thoughts/theories on man’s innate tendency toward antinomianism. Brown, someone who heralded the idea, and if I read R.R. correctly, is a kind of founder of, if it can be called as much, the “movement.”

    • R Richard Schweitzer says

      “Politicians” or any other class comprising legislators do not make “laws;” they make Rules of Policy, which are attempts to define and delineate a desired social order and the relationships within it.

      The contesting objectives of the individuals and groups making up the social order (as it exists, not necessarily as desired) present potential conflicts, frictions, difficulties in cooperation whose mitigations make ambiguity a characteristic of most attempts at Rules of Policy.

      Upon closer examination, we will probably find that the actual practice of individuals dealing with those ambiguities is not found in the service of “lawyers,” but simply in ignoring the features of the ambiguities detrimental to their own objectives.

      ” T’is more honored in the breach, than in the observance.”

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