Law for the Lawyers' Sake

Thanks to an Adam Liptak piece in The New York Times (behind the Times Select barricade; registration required)), I learned abut a remarkable speech by Dennis Jacobs, a federal appellate judge. The whole speech is online at the Fordham Law Review (pdf). Here is the gist of it:

If you arrived in an appellate court as counsel for a medical-malpractice plaintiff, and the three individuals on the bench were wearing white coats instead of black robes and had stethoscopes around their necks, I think your heart would sink. I could tell you that the three doctors deciding your case have taken an oath to be impartial as between patients and the medical profession and that they are conscientious, decent individuals who take seriously the obligation to be neutral. You would not be reassured: You would understand that there is (at least) an internalized bias that the doctors would not acknowledge because they would not notice it. A similar dread would come over the defendant’s lawyer if the three judges each had a limb suspended in traction.

In our courts, judges are lawyers. They are all lawyers. Most of us have never been, nor want to be, anything else. We are proud of being lawyers. For many of us (like myself), lawyering is our only talent (assuming we have any talent at all), and it is the source of as much esteem as we enjoy. Our calling says a lot about how our minds work, what we respect, and whom we trust.

I am not—I repeat, I am not—speaking about a bias based upon politics or agenda, economic class, ethnicity, or para-ethnicity. When I refer to the secret life of judges, I am speaking of an inner turn of mind that favors, empowers, and enables our profession and our brothers and sisters at the bar. It is secret, because it is unobserved and therefore unrestrained—by the judges themselves or by the legal community that so closely surrounds and nurtures us. It is an ambient bias.

The result is the incremental preference for the lawyered solution, the fee-paid intervention or pro bono project, the lawyer-driven procedure, the appellate dispensation—and the confidence and faith that these things produce the best results. It is an insidious bias, because it is hard to make out, in the vast maze of judicial work and outcomes, the statutes, doctrines, and precedents that are woven together like an elaborate oriental rug in which the underlying image of the dragon emerges only after you stare for a while. I discern in this jumble a bias in favor of the bar and lawyers: what they do; how they do it; and how they prosper in goods and influence.

Lawyers, in other words, make laws for the benefit of lawyers. The judge doesn't say so, but the same reasoning would apply to Congress, which is now well over half attorneys, even though there is no justification in any theory of representative democracy for it to be this way. The law is increasingly a tool to ensnare the rest of us in the lawyers' web, to make us dependent on legislators and litigators. Despite the framers' bequest of separation of powers, federalism and constitutionally guaranteed liberty, lawyers in particular and lawmakers in general are now, pound for pound, the single most powerful pressure group in America. But then some of us already knew that.