“The test of a first-rate intelligence is the ability to hold two opposed ideas in the mind at the same time, and still retain the ability to function.”
I’ve been thinking about the role lawyers must play in saving our Republic from a gang of bad actors who are systematically destroying our government for their own benefit. I’ve been thinking about what lawyers have done in the past, and what they must do in the future. In doing so, I’m failing F. Scott Fitzgerald’s test.
My premise is that one of the many reasons the current administration won the election was that many of our citizens are adamantly opposed to, or honestly frustrated with some of our Federal laws and regulations. This has been true throughout our history, starting with Shay’s Rebellion, and continuing right on through to the pro-life movement. And it needs to be said that there are other reasons they won the election, including the tone-deafness of the Democratic Party, families not being able to get ahead financially, an open border, resentment of elites, right-wing media lies, etc.
For the record, Shay’s Rebellion was a good thing that ultimately led to the Constitutional Convention of 1787. On the other hand, the Supreme Court’s Dobbs decision, the one that overturned Roe v. Wade, was a bad thing leading to draconian abortion laws. The observable fact is that Shay’s Rebellion and the Dobbs decision were a result of the citizenry reacting to laws they adamantly disliked; one was an armed insurrection, the other a well-organized, persistent legal action.
The first of the two conflicting thoughts is that lawyers got us into this mess because they write every law Congress passes and every regulation promulgated by a federal agency. And if they don’t write them, they clearly edit, rewrite, and lay hands on all the laws and regulations.
Is this an exercise in killing the messenger? Nope. Let me repeat a lawyer joke to make the point.
So a client asks a lawyer, “If I give you $1,000 will you answer two questions for me?” “Of course,” the lawyer says, “what’s your second question?”
Lawyers are about billable hours. The longer, more detailed, and opaque the verbiage, the more they get paid. The only people who can read and understand many of our laws and regulations are other lawyers. So the legal profession has created a perpetual cash machine for themselves by writing laws and regulations.
The second of the conflicting thoughts is that the rule of law stands between the citizenry and the malefactors. Lawyer are sworn to uphold the Constitution, and in doing so they also swear to uphold the rule of law. Lawyers and judges are our redoubt against an onslaught of executive orders, many that are questionable at best, but more likely will prove to be unconstitutional.
It will be through the courage and skill of lawyers that we not only have a defense against the craziness, and the beginnings of a sustained offensive from the citizenry that gives us strong Democratic majorities in both houses of Congress.
This is all well and good. But there is a problem here with the reputation of lawyers among the citizenry. And if you pardon another lawyer joke:
Question. What are 300 lawyers at the bottom of the ocean?
Answer. A good start.
A Gallup poll, taken between Dec. 2nd and 18th, 2024, asked respondents about the honesty and ethics of professions. The ratings were broken down into three categories, high/very high, average, and low/very low honesty and ethics.
One third of lawyers were rated low/very low for their honesty and ethics, 47% of lawyers were rated average, and only 17% of respondents gave lawyers a high/very high rating for honesty and ethics. This means that one third of all lawyers give the rest a bad name.
This joke may be a little extreme but it hints at how the citizenry thinks about lawyers:
Question. What do you call a lawyer with a 70 IQ?
Answer. Congressman.
It is interesting to note from the poll that two thirds of the members of Congress, many of whom are lawyers, were rated low/very low for their honesty and ethics. But then that’s a very low bar. Sorry.
In comparison, judges only had a 26% rating for low/very low honesty and ethics. On the other hand, judges had a 28% high/very high rating for honesty and ethics. Some cause for hope. They are the Constitutional deciders.
So now I’m back to Fitzgerald’s thought, and the dissonance created by two views of lawyers, one as the cause of our problems and two, as our line of defense against evil. Now add to this dissonance the marginal reputation of a third of our lawyers, and I’m confused.
But then we are seeing lawyers enter the fray, some resigning in protest to blatant political manipulation but more importantly, Federal judges and states’ attorney generals stepping up. There is hope for us, for lawyers, and in turn, the rule of law.
There is no hope for me to hold two opposed ideas in mind and still function.
END
I am alanstark1@substack.com
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Hi Alan. I'm lobbying for this piece to be an "audience participation" post. Here's my contribution: What’s the difference between a lawyer and a herd of buffalo? — The lawyer charges more.
Your breakdown on the two different, and opposed, functions of lawyers is very apt. Adding to the complexity is the structure of the legal profession itself. The complexification of law does not owe principally to the greed motivation of lawyers, though it does contribute. The principal reason, IMO, is the structure of legal thought and practice itself. The law is essentially-a fear-based enterprise. It favors risk avoidance and punishes error, whether intentional or merely negligent. Conversely, the common-law system of following precedent encourages layers of complexity. Those 20-page contracts? They are not only because lawyers get paid by the word. They are also because lawyers fear that if some clause isn't in there which creates a loophole that somebody can exploit (or because once, somewhere, there was a case where someone DID exploit that loophole) then the hole must be plugged. And the accumulation of plugs weighs the whole thing down until it sinks. People stop reading contracts, because what's the point? Thus is defeated the purpose of having a contract at all. Same with laws and regulations. There's an ecosystemic quality to legislation and regulation, whereby everything is interdependent, cross-referential, and ossified. To prune it away is an enormous and error-prone task, because if you cut something you may be affecting something else you never thought of. Not to mention that modern legislation involves passing bills that are 1000 pages long and nobody has even read, because they are handed out to the rank-and-file on two hours' notice. It used to be that laws were carefully honed in committee, then passed out to the house or senate, then the differences reconciled through joint committees, then re-passed. Now bills are lobbed like grenades.