Meaning in the Law: Can we discuss? : LUSENET : Lessig's Contracts : One Thread

A bunch of us went to lunch with Professor Lessig today. A topic came up at lunch with has inspired this email.

Professor Lessig recounted to us two differing views of law. Mr. Lessig has an uncle who is a lawyer in a small firm in his hometown. His uncle is sort of like a general practictioner and has done a variety of things in the law. His uncle lives his life in the law knowing that the practice of law is about persuasion by reason rather than force.

Mr. Lessig then contrasted this view of practing law with how law is practiced in many large, corporate firms. In those firms, law is used like a big stick to wallop your opponent. You inundate your opponent with reams of paper and motions.

Mr. Lessig does not agree with the "corporate" view of law and exhorted us to never stop questioning what is right in the law. Mr. Lessig explained that one of the reasons he is attracted to the law is that it is the only field that constantly has to justify itself. Afterward, we all discussed whether people do find meaningful careers in the law.

So I am writing this email as an open invitation for anyone interested in joining me in creating some kind of electronic forum (e.g. bulletin board) where we can discuss meaning and the law. Listening to Professor Lessig and talking with people afterward made me realize that this discussion is NOT being held and I don't understand why not.

The law is powerful. It touches people's lives. As someone told me today, when you're a lawyer, you play with someone else's chips. We should be discussing and thinking about what kind of lawyers we want to be.

I'd like to also invite Professor Lessig to moderate this discussion, maybe throw out interesting questions for us to discuss, if he is so interested.

I know this was lengthy. Thanks for sticking with it if you read all the way to the end. I hope to hear from you.

Ayn Ducao

-- Anonymous, November 03, 1998



I think it's vital that we--law students everywhere--have this discussion. One of the associated dichotomies with which I am currently wrestling is that of scale: should one aim big and try to effect structural change, or aim small and do the right thing, purely, on a micro level? To use a concrete example, should we be hacking weeds in Roxbury or lobbying for urban renewal legislation?

Or should we be making obscene amounts of money, and then supporting people who are really good at doing either of the two options listed above?


-- Anonymous, November 05, 1998

We should do everything we can

I agree with that popular environmental slogan, "Think global. Act local." Not everyone will have the resources, time or interest to lobby for urban renewal legislation. It's just as valid a contribution to spend an afternoon hacking weeds in Roxbury.

However, I do believe that as law students, especially here at Harvard, we have skills and resources that make us especially suited to changing the world. For one thing, we learn (we hope) to argue effectively. This is a very powerful tool.

I don't think, nor expect or want, everyone will go into a public interest job. But it is false to think that you can do good in the world merely by working in the public sector. There's so much you can do in the private sector, beyond donating scads and scads of money. You can do pro bono work. You can get active in your own community. You can just generally work to make sure that you live an ethical life.

I'm sorry if this sounds preachy but I feel very strongly about this subject.

-- Anonymous, November 06, 1998

A question I have that's related to this whole topic is how much reason can ultimately justify law. For example, I frequently find myself in two kinds of situations: 1) I believe in something that I can't necessarily objectively justify, and 2) I can't find fault with someone's reasoning but somehow can't agree with what they conclude either. (In fact, what happens even more frequently is that I kind of agree with both sides of the issue and just stands around dithering b/c I can't make up my mind--b/c the "costs and benefits" of both positions are so different they seem like they can't be objectively compared.) So: should a lawyer do what s/he believes in even if s/he can't "justify" it? Should the lawyer only do things that s/he thinks is right? If the answer is yes to either of these questions, how can we justify imposing what _we_ belive to be right on our _clients_?

-- Anonymous, November 05, 1998

Conflict between what's good for the client and what's right

Tawen asks how can we justify imposing what we believe is right on our client. I see a problem if what we believe is right is in conflict with what would promote our client's self-interest.

For instance, say we represent a nuclear power plant. This power plant has been dumping nuclear waste in a particular spot in Nevada which, we shall assume, is perfectly legal. However, the power plant's scientists know and have informed upper management that it's reaching toxic levels which would be harmful to the surrounding communities. The power plant is not under any obligation to disclose this information to the public or the government. Cleaning up this site would be incredibly costly to the power plant.

What would our obligation be in this circumstance? Do we promote what's right or do what's in our client's best interest?

I think that one way out of this dilemma is realize that their are costs to the power plant by not cleaning up the site and benefits to the power plant by cleaning up the site. For one thing, people are eventually going to realize that the site is toxic (especially when people start getting sick). And it's probably likely that the public will learn that the power plant knew the site was toxic and did nothing. The power plant would suffer a loss to its reputation and would now have to face a hostile community.

By cleaning up the site, the power plant could increase its reputation and gain the trust and cooperation of the public. The power plant could also know that it has "done the right thing" which I believe also brings psychic rewards.

-- Anonymous, November 06, 1998

I'm sorry, but "psychic rewards" doesn't solve the power plant's lawyer's dilemma. The world is filled th large corps like the power plant which dump toxic materials wherever they can, then, 15 years later, when the parents of kids with leukemia sue, hire a battalion of Harvard trained lawyers to beat the families into the ground.

There's no way around the conflict. Your clients may not be the people you'd like them to be, and every lawyer has to think about what work they are willing to do.

-- Anonymous, November 06, 1998

I would like to respond to Christian's response. First I'd like to ask anyone who wants to respond what they would do if they were the power plant's lawyer. I'm genuinely curious.

I agree with Christian's point about considering what kind of work you want to do as a lawyer and perhaps not being able to change your client. Maybe if you are an associate at a huge law firm representing the power plant, you probably wouldn't have much influence over the ultimate decision made by the power plant. I think at that point you would have to look yourself in the mirror and decide what you are going to be able to live with.

But I think that it is possible for large corporations and law firms to act ethically and responsibly. I think that it is in the best interest of corporations and firms to act responsibly. The bottom line is not the only cost to be considered. There are human costs as well.

-- Anonymous, November 06, 1998

How about in a case where you personally really can see the merits of both sides of the issue though? (I guess I kind of feel that the power plant is without doubt the bad guy in the previous scenerio....)

For example, what about logging and the spotted owl? (Logging will destroy the habitat of the spotted owl, leading to extinction. But if regulation to protect the owl is enacted, loggers will lose their jobs.) What if you have been the lawyer for the union of loggers for a long time because you believe in helping the loggers fight for their rights, but you are also a sincere environmentalist?

Also, is it ethical to give one (valid) reason for your action to the court when you know the "real" reason is something else? For example, in the LRA stuff we just did: if the hospital's lawyer know that the "real" reason they want to get at Maria's social worker records is to find out whether Keith's abuse had led to the problems with her pregnancy, a reason which by itself does not justify disclosure of records, is it ethical for them to tell the court that they want the records because they think Maria is lying about her emotional distress?

-- Anonymous, November 07, 1998

adversarial system

I think that it is important to keep in mind the basic structure and purpose of our legal system. As Tawen pointed out, most issues have two sides to them. I may find one side more personally compelling than the other, but most likely there will be people that find the other side more compelling for different reasons. Our legal system is based on the idea that individuals have a right to representation in court. THere should lawyers on each side of the issue, doing everything they can to promote their client's interests even if one can be conceived as "morally wrong" while the other is "good"

When choosing what kind of law we want to practice we have to be aware of the ethical limits we ourselves may have in representing certain clients. The mere fact that we don't support a certain client's purpose or interests cannot preclude them from representation. It is our job to advise the client's about the law; if you want to include ethical/moral advising in that you can. However, you cannot expect your personal opinion to sway a large corporation's interests. If they fail to agree with your moral stance, then you must represent their intersts. If you can't do this then you shouldn' be practicing the type of law that would involve situations like this. Our system would not be fair if there was not someone to support both the loggers and the environmentalists. SImilarly, there has to be someone to represent the nuclear plant. I may not personally want to practice the type of law where this situation would occur, but some lawyers will have to do so.

-- Anonymous, November 07, 1998

As to the scenario where you agree with both sides of the issue- the spotted owl and the logging jobs- that is really where I see most conflicts in the law. If most cases were as clear cut as the power plant w/toxic chemicals, there would be little need for people trained like we are. Most of the cases (it seems to me)- take place in the grey areas. That's why it is so important that we have well trained lawyers participating in an adversarial system. when a client comes to you- you might sympathesize with her case- and also with the case of her opponant. once she hires you and you begin to do your research and prepare your case, i'd think that your opinion might become less open-minded- it always seems that the more involved you become with something the stronger your approval of it becomes. But that doesn't mean that the opponant's case is any less sympathetic in hte big picture. Most times, the case comes down to a compromise- that's what the negotiation and settlement phase is all about. So there's rarely a truely bad guy- even the evil hospital that killed the baby was made up of normal humans that simply made mistakes. So- in sum- if it were always good guys vs bad- the law would be a much less important profession! -Merry

-- Anonymous, November 07, 1998

If I worked for the power plant, I'd quit.

-- Anonymous, November 07, 1998

I think lawyers should be like Abraham Lincoln. They should work in firms ranging in size from one to two. They should do all kinds of cases, sometimes working for the railroads, sometimes working for someone abused by the railroads. They should not be payed all THAT much (because they're not worth all THAT much), they should know a lot of their clients personally and help them stay out of court when it's a waste of their time, energy, and emotional energy, they should be advisers of use to the community, they should be public-minded, wear stovepipe hats, and share their beds with four other lawyers at a time. Off the soapbox. I don't know if you can do this kind of law anymore. And I have no idea if I would be any good at it!

-- Anonymous, November 07, 1998


Bless you for invoking the name of Abraham Lincoln. The greatest American who ever lived had quite a lot to say about lawyering, and I haven't found any of it with which I disagree. Beyond that, I think you're definitely right that a lawyer should be as much a navigator as an advocate; that is, he or she should count it a primary responsibility to assist their clients in finding an ethical and expiditious path through the law.

I'm all for the stovepipes, although we might want to rethink the four lawyers-to-a-bed idea...


-- Anonymous, November 09, 1998

Meaning & Publicity

A couple of things:

First, just to play devil's advocate, I would ask on what grounds we can reasonably make the claim that lawyers are not worth all THAT much. Lawyers are presumably paid what the market fairly allows (there are, after all, a LOT of lawyers out there in cutthroat competition with one another); and despite my qualms, I'm not sure there are any other standards likely to generate as much agreement as FMV.

I often encounter this dilemma when arguing about the skyrocketing salaries of pro athletes. I mean, if Barry Bonds or Michael Jordan generate so much revenue that their employers can afford to pay them multi-million dollar sums, on what bases can I object such that others are likely to appreciate my claims? And why, for that matter, do we slam lawyers and pro athletes but not, say, movie stars for such excess?

Second, I find it unfortunate that this dialogue is taking place in the relative privacy of our contracts bulletin board instead of in some more public forum. I was down in New Haven last weekend, and was reminded of a wonderful institution they have at the law school there called the Free Speech Wall. On the Wall, people post and reply to messages about all manner of topics ranging from the lack of minority clerks on the Supreme Court to issues of professional responsibilty much like those we are talking about here. It occurs to me that HLS could really use such thing if only to provide a public forum for important coversations such as this one. What think you?



-- Anonymous, November 12, 1998


Warning: the following message is, in hindsight, fairly incoherent--and I'm too lazy to tighten it up. It also involves electrocution, and is not for the faint of heart.


Fair Market Value. Hmpf. While I'm as economically-minded as the next guy (provided that the next guy doesn't happen to be Professor Lessig), I'm leery of using FMV as an all-purpose yardstick.

The question "how valuable are lawyers?" is not one that is meant in this context to be answered economically, I think. Clearly, in our system (which I do support), lawyers, phone repair personnel, and the like will all be paid whatever the market will bear. But that's different, I insist, from what they're WORTH. With lawyers in particular, there's the old story that if a town has one lawyer, he'll starve. But if it has two, both will be rich. Arguably, no value has been created by adding a lawyer; indeed, value may be lost as litigation skyrockets and everybody starts walking on eggshells. So the market and value, in its normative sense, diverge.

Never having been any good at sports, I also harbor great enmity against athlete's salaries. Sure, Michael Jordan's contributed something like a billion dollars to Chicago's economy. But in the process, he's reinforced a destructive racial stereotype in the minds of young African-Americans. I've done a fair bit of tutoring in public schools, and I always find myself running up against the unrealistic expectations of kids who are neglecting their studies because math isn't important in the NBA.

The point of all that was to illustrate that professional athletes aren't really all that valuable, normatively. They provide an economic boost, but they don't really contribute much to society. And then there are those Mike Tyson types who detract from society. On the other hand are the poorly paid teachers who generally make a positive contribution. But how are we to measure this?

My solution: the balloon test. Put the two people you're evaluating in a hot-air balloon. Let it drift over some high-voltage power lines. As the balloon starts to sink toward the lines, it will become clear that one person will have to jump out so that the balloon will stay up--otherwise both'll fry. The person who you'd have jump out onto the power lines is the less valuable to society, and the one that would be saved by this sacrifice is the more valuable.

Now do that for every pair of people on Earth, and eventually you're left with the one person who's most valuable! Macabre, yes. But effective...


-- Anonymous, November 12, 1998

Of Course this discussion should be on a grander scale

Andy, I completely agree that this discussion should be occuring on a larger scale and should not be limited to just our contracts class. If you want to do something about making it happen on a grander scale, then I will help you.

But at the very least, the conversation is happening.

I'd like to ask a new question. Personally, I have never been interested in firm work. I'm interested in going to work for the government.

But I think that it must be possible to do public good while working in the private sector, even at a firm. I sense this sort of separation at the law school between the firm path and the public interest path. I get the feeling that most people see the two as mutually exclusive.

But I don't think they need be. I was wondering if people are interested in working for a firm for reasons other than the salary. I was also wondering if other people believe that they can do public good while working for a private firm.

-- Anonymous, November 12, 1998

Where I said "energy" I meant to say "money." It was a typo.

-- Anonymous, November 08, 1998

The problem with Fair Market Value is that "Titanic" sucks. So does "Pleasantville." Markets produce a lot of stuff - which is great because without stuff we wouldn't have clothes and food (both subgroups of stuff). Bad taste isn't a cardinal sin either (indeed I have bad taste in spades. I prefer Macaroni and Cheese to caviar, which I've never had, and I prefer Teeny Drinks to white wine, which I think I've had). If I were in advertising I might be paid to tell people that what's popular is good, but since I'm not in advertising and I don't get paid squat for posting messages, I hope you won't require me to say I approve of things because other people do. It might be true that incentives are about as good as they can be in the legal world (permit me to doubt). Perhaps lawyers are efficiently distributed on the basis of talent and experience to the people who need them the most (permit me to doubt). Even if these assumptions were true it would still not mean that the individual lawyer in such a system is under any obligation to take the money. Equating FMV with Justice (if I have to capitalize the former I'll capitalize the latter) implies not just that we should have incentives in place that produce efficient outcomes but that those incentives are fair because of the efficient outcomes. This would mean that it's not right to be altruistic. If you deserve that money you deserve it. A more realistic approach is to say that we have to reward lawyers in this way in order to get them to do what's good for society (note the aforementioned doubts), but that these incentives in no way preclude or make foolish the altruistic behavior of lawyers who do the good work and refuse to collect for it or give most of it to charity or friends or family in need. Don't we all bear the responsibility of carving out a life that is decent irrespective of what is condoned by others? As Camus says: "Don't ask when Judgment Day is. It is every day." (Or something to that effect.) I wouldn't presume to say what kind of law everybody should go into. But it isn't arrogant to question the choices that others might make or say it's wise for me to make. But I doubt that it's all working out so hunky dory in the first place. This is sort of a tangent: I'm not Buddhist, but does anyone ever wonder if an ethical system founded in stoking appetites of all kinds - for consumption, for accumulation, for adversarial agression - might not be the best possible system in the world? I know this opens me up to a lot of attacks. If I'm in trouble with the law I want someone fighting for me hard. But it sometimes seems like we're being asked (as lawyers in training) to learn how to act like very articulate rotten children. I'm not sure if there is any other way to do things. If the framers thought fair market value embodied justice maybe they would have assigned lawyers on the basis of wealth from the beginning. Stimers for President.

-- Anonymous, November 15, 1998

Ethics & Stuff

Good points, Eric (Although I'm not even close to 35!). Interesting to think about the conflicts and confluences between our ethical system and our appetites. I maintain that they're separate--that our ethical system does not promote consumption, accumulation, and adversarial agression, but that the two standards interact with each other.

At the risk of calling down the wrath of the righteous inclusionist, I'll focus briefly on CHRISTIAN ETHICS (pretend there's an echo on those last two words, for the full effect). Jesus taught, and much of America believes (on one level or another) that consumption, accumulation, and adversarial aggression are negative. He was always talking about giving all that you have to the poor, agreeing with thine adversary while you are in the way with him, etc. To the extent that we as people, or as a nation, try to reconcile those ethics to our appetites, we create a conflict.

Naturally, by the time our ethics are translated through the day-to-day pragmatics of attracting a mate and raising a family, the appetites tend to start looking a bit better.

Speaking of appetites, it's dinner time.


(By the way, those messages with the subject line "Stimers" didn't happen because I have an inflated view of the value of my contributions here--I just put stuff in the wrong boxes when I was filling out the forms. Sad, huh?)

-- Anonymous, November 18, 1998

Sorry for the poor spacing in that last message. I tried to indent instead of separate each paragraph by a line. If your eyes started to bleed, I hope you stopped reading.

-- Anonymous, November 15, 1998

You reminded me of something I heard David McCullough say about why he was glad to have written a book about Harry Truman. He said Truman's life is a reminder of what's good about America. I'm not religious, but there is definitely a strong, non-consumption oriented ethic that once (and may still) be dominant among regular people. Tony Sabia's heroism might be another good example of the fundamental strength and goodness that's inside most citizens. Truman said he wanted to have a job that paid just well enough that if he lost it he wouldn't be in financial disaster, and he thought anything more than that would be corrupting. It may not be right to say that anything more would be corrupting, but the moral impulse of the sentiment is very compelling to me and Truman's entire life, like that of Lincoln, seems an instruction in some of the things that are wholesome.

-- Anonymous, November 19, 1998

Lessons from Mr. Truman


Mr. Truman is someone from whom we all can learn a great deal. A citizen soldier, a citizen statesman, a man of the people in the most valued sense of the term. The last president not to hold a college degree, he never amassed any significant wealth, never aspired to fame, never lost the perspective of the common American. Though he often inspired little confidence and much opposition, and though some of his policies may have been objectively questionable, he is nevertheless one of America's heroes--and one of the key forces that brought the nation to its current position in the world.

I spent some time at Independence, Missouri last year, where I visited the Truman Library. One of the most remarkable aspects of his career is the end--he left Washington amid no fanfare, having sought none. When he arrived in Independence with his wife, however, thousands of townspeople waited to greet him--spontaneously. He spent the rest of his life working on his library--not out of a sense of personal importance, but so young people would have a resource for their civic education.

President Truman owed his early positions as a judge and a US Senator to the Missouri political machine run by Tom Pendergast. The corrupt regime that engineered his Senate victory stained him for the rest of his tenure. He worked hard to overcome his guilt by association, scrupulously avoiding even the appearance of impropriety. As head of the Truman Committee, which investigated graft and corruption in the defense industry during World War II, he had almost daily opportunities to wink at fraud in exchange for kickbacks that would have ensured his financial independence. Never did he allow this to happen; instead, he saved the government vast sums of money, recognizing that it translated into soldiers' lives.

The honesty and conviction that earned him the slogan "give 'em hell, Harry!" resonated with a populace the press predicted would relieve him of the presidency. His tireless efforts to reach out to the public were motivated not by his own personal desire to stay in office, but by his conviction that the other party would not act in the voters' best interest.

Like Mr. Lincoln, Mr. Truman understood the importance of forgiveness. The Marshall Plan, which allowed Europe to rebuild itself, went a long way toward mending the scars of World War II. At the same time, and again like Mr. Lincoln, he understood the necessity of resisting attacks on freedom. The Berlin Airlift and the decision to commit ground troops to Korea were two of the most difficult decisions he ever made, and one of them ended up failing. But they were both necessary.

The burdens of leadership are often almost too great to bear. Once, during the Korean conflict, a Washington Post music critic gave Mr. Truman's daughter--a singer--a terrible review. In a moment of pure paternal indignation, the president responded with a vitriolic blast that included physical threats. The ill-considered letter was promptly published. Shortly thereafter, Mr. Truman received a package containing a Purple Heart with a note saying, effectively, "Since you seem to be more concerned with your daughter's singing than our son's life, we hereby enclose the medal that represents that life. Perhaps you would like to put it in your trophy case." Mr. Truman never mentioned that note, but he kept it in his desk for the rest of his presidency.

Harry Truman was a regular guy who was thrust into the nation's highest office first by a political machine, then by the death of our longest-serving president. That he rose to the challenges with which he was presented, without losing his essential, honorable "common-ness," is a testament both to him and, by implication, to each of us.


-- Anonymous, November 20, 1998

All good points!

Just one small historical correction: When Truman left Washington there was a crowd of thousands at the train platform to cheer him a fond farewell. While other were celebrating Ike's inaugural, individual citizens, who had always been fond of Truman as a person if not as a President, telephoned one another to say how sad it would be if no one was there to see Harry and Bess (his wife) off. So without any orchestration, a huge crowd assembled to express its affection. Truman said: "I can't adequately express my appreciation for what you are doing. I'll never forget it if I live to be a hundred . . . And that's just what I intend to do!" (He lived to be 88 - from 1884-1972. )

-- Anonymous, November 20, 1998

Of course, you're quite correct

Thank you, Eric, for your correction. My own copies of McCullough's Truman are both in Spokane! The point stands, as you would agree, that popular celebration was spontaneous and unexpected by Mr. Truman.


-- Anonymous, November 20, 1998

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