Aaron Sibarium has written something of a magnum opus on a subject that’s been of grave concern to me for quite a while, whether young lawyers have forsaken their duty to represent people deemed deplorable in their eyes. Whenever I raise this problem, someone will reply that kids will be kids, and just wait until they get out in the real world. But as Aaron notes in the subtitle:
The kids didn’t grow out of it.
Rather than quote at painful length from Aaron’s post, go read it. Is he right? Is it too late to change the pathology of lawyers practicing in the Panopticon? Okay, one quote because it captures so much about the problem.
The adversarial legal system—in which both sides of a dispute are represented vigorously by attorneys with a vested interest in winning—is at the heart of the American constitutional order. Since time immemorial, law schools have tried to prepare their students to take part in that system.
Not so much anymore. Now, the politicization and tribalism of campus life have crowded out old-fashioned expectations about justice and neutrality. The imperatives of race, gender and identity are more important to more and more law students than due process, the presumption of innocence, and all the norms and values at the foundation of what we think of as the rule of law.
No, not all law students or baby lawyers, but to many, probably most, identity has overtaken principle as the foremost value of law. What does this mean for lawyers, for the law? Are we doomed? And if not, how do we get out from under this elevation of “moral imperatives” over due process and presumption of innocence? Can the lawyers who already adhere to this religion be converted, or are they lost to the law?
*Tuesday Talk rules apply.
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I’m not sure about the “vested interest in winning” part. There are a lot of cases that are damage control from day 1. The professional interest is really about trying to get the best result still possible for the client, within the constraints that apply to our professional conduct. It doesn’t require belief in the client’s deservingness or universal scheme of things. It never has.
If and to the extent we reach a point where defense lawyers won’t defend classes of defendants because it fails to satisfy their sense of aesthetics, the result will be that those defendants can’t be brought to trial and will have to be released. That is, assuming they are at least smart enough not to waive right to counsel. The wokey defenders who live in the Pure Land won’t have to sully themselves by working for objectionable defendants, but they may be handing those defendants a free pass as a result.
Dammit, Barleycorn. Stop using Bruce’s name to spew this nonsense.
The kids didn’t grow out of it.
And Aaron Sibarium didn’t grow out of the crap journalism he learned at the Yale Daily News. Unsurprisingly, he completely f’ed up the discussion of the case of Montez Terriel Lee, Jr. He has no experience with the sentencing guidelines and cherry-picked one sentence, out of context, in the AUSA’s sentencing memo in the case. He completely ignored the AUSA’s discussion of the sentencing guidelines and comparable cases. He displayed absolutely no awareness of the nuances of the case. And he quotes a former state prosecutor and now law prof, who similarly displays a complete lack of knowledge of the facts or nuances of the case. The idea that the AUSA in that case was woke is a joke.
He smears the judge, without ever quoting anything the judge had to say about the case, accusing the judge of a “willingness to tip scales.” If this is a magnum opus, it’s a sloppy one. There are good points that need to be made. But this falls far short of a “magnum opus.”
It’s entirely fair for you to challenge his discussion of Lee’s sentence, but it might have been more useful to explain why you think Aaron’s discussion was wrong rather than just saying so. On the other hand, that’s one piece of a long and comprehensive post. You also might want to consider what magnum opus means. One unexplained nitpic doesn’t prove what you apparently believe it does.
My generation hasn’t grown out of it, and I’d argue a major reason is that most people, whether highly educated or poorly educated (if anything, this problem is worse among the highly educated), are incapable of separating their personal selves from their professional, workplace selves, and have demanded changes to professions and workplaces over the past decade that allow them to “express their true selves”, “see themselves reflected at work”, and all the other cliches. By way of example, I recently read a highly educated PhD describe the idea of advocating an argument that you don’t personally believe in as “disturbingly psychopathic.”
Law especially requires that you put aside your own feelings, biases, personal beliefs, background, don and doff multiple hats, etc, and inculcating law students to long-established traditional norms and principles is the only way to get them to be proper lawyers: law schools lately have done a horrible job of that, for a confluence of financial and political reasons. But the blame can’t be placed entirely on the law schools, because there’s significant upstream problems, particularly at the universities where neutrality, respect, and classical liberalism was abandoned well before that happened at law schools.
As I am neither a lawyer nor do I play one on TV I have nothing to add to this discussion. It does, however, seem unfair that after ten years of training me to be a good SJ commenter I’m left with nothing to share on most days, except, perhaps, to wish you a good day.
Thank you, Jake. I hope you have a good day, too.
Has law been lost, or is it in the process of becoming lost? No. “Lost” implies something happening by accident. Law is being destroyed, and there is nothing accidental about it.