This essay was authored by Bruce P. Frohnen for Nomocracy in Politics. Professor Frohnen is a Nomocracy in Politics Contributor.
These are odd times for the law. At a time when law school enrollments are plummeting, employment figures are disastrous, and many law firms—and perhaps even some law schools—may close their doors, law students are being given ever-more choices of “laws” they can study. Sadly, this increased “diversity” is not aimed at helping lawyers help their clients. It will not make lawyers better able to guide people through the thicket of rules and regulations our country has developed over the last several generations. It will not make lawyers better able to help clients arrange their lives and defend their interests within the limits of law. Instead, these new kinds of “law” will cause yet more lawyers to confuse the job of a lawyer with the job of a legislator or social activist, encouraging them to use—and even twist—the law for their own ideological goals. As a result, fewer people will get the legal help they need, and the legal profession (and the law) will become ever more troublesome and less useful to ordinary people.
“Law” always has been a term that contains within itself a wide variety of substantive and procedural rules, concepts, and terminologies. We have criminal laws to prevent violations of public peace and order, contract law to govern agreements between persons and businesses, property law to govern potential conflicts developing from the use and exchange of land and other ownership interests, and so on. Lawyers work to master one or more area of law so that they will be able to serve their clients. But recent decades have seen a great deal of “creativity” in defining new areas of law based, not on long-held customary definitions or even on the subject matter of the law itself, but instead on the type of clients to be served—or rather the type of cause for which the lawyer wishes to advocate.
As the law (and especially the government) has become increasingly complex, lawyers have specialized more and more in areas that are relatively new. Health law and bankruptcy law, while they may have arisen from conditions we regret, nonetheless reflect the needs of persons in our increasingly bureaucratized society. But we have gone well beyond health or bankruptcy law. Today, law schools push an agenda based on their self-perception as rebels seeking justice for the oppressed. Poverty law, elder law, equality law, and even “green” (environmentalist) law have gained firm footholds in the legal academy. This is not a good thing—for clients or for the law itself. It both marks and encourages an attitude of “activism” that corrupts the law and all too often leaves clients out in the cold.
The natural response of many lawyers to such charges would be that it is wrong and even churlish to deny the importance of something like poverty law because so many poor people are without the representation they need in order to defend their rights and interests. And it is correct to say that too many poor people are without competent legal assistance in dealing with problems that affect them even more than others—from injuries caused by someone else’s negligence, to disputes with the government, to predatory landlords. But is this what the field of poverty law is all about? Hardly. Increasingly, the primary goal of lawyers practicing in advocacy areas like poverty or green law is to “change the system” rather than to help particular people who need concrete, legal help.
It is, of course, tempting when faced with a serious human problem to seek a grand, permanent solution that will keep tragedy out of all people’s lives. And many lawyers see themselves as the ones best trained to recognize the problem and prescribe (and sue for) the solution because of their legal training. After all, being a lawyer means being an advocate. People in trouble and people simply seeking to make clear where they stand in terms of a contract or inheritance reasonably expect that those they look to for advice and help will be their advocates. If I am arrested for murder, I do not want my lawyer to tell me “well, it looks like you did it, so tough luck.” And the same goes for the lawyer I hire to help me in a contract dispute. I rightly expect my lawyer to see things from my point of view and to use relevant laws and facts as best he can, within the law, to show that I, for example, acted in self-defense or should be excused for delivering the goods later than was agreed to in the contract because severe weather intervened. Where there is a genuine disagreement (Is it self-defense if the attacker was unarmed and I had a gun? Does a bad storm excuse late delivery, or does it have to be a hurricane?) my lawyer owes it to me to look for laws and facts tending to support my side of the argument—not to make them up, of course, but to look for them.
The problem occurs when the lawyer finds that there are no examples on his client’s side; that the law seems pretty clear, but he still wants to “win” for his client; and so he says “that law is unfair, and you, the judge, need to read it in a ‘creative’ way to make it fair.” Now, the proper response from the judge in such a case is to dismiss the argument and, if the conduct continues, to sanction the lawyer. Sadly, judges stopped doing that a long time ago, and in recent decades have begun looking for more ways to “do justice” than to uphold the law.
Enter the legal academic. For more than a century, an awful lot of academic lawyers have been trying to push the law in a direction they think is more just by training lawyers to think of themselves as “advocates,” not just for their clients but for “the poor” or “the elderly” or, more recently, “the Earth.” Again, lawyers are called on to serve their clients and to help those in need by giving of their time and expertise. The question is whether such services are, indeed, a service when they aim to change the structure of the law rather than to help people do well, and do right, within it.
This is not to say that laws never need changing, nor even that lawyers, acting as lawyers, never have a proper role to play in changing the law as it is written. A bad judicial decision can turn a good law bad simply by misinterpreting a key term like “self-defense.” But such corrections aim at maintaining continuity in the face of error and circumstance, not at circumventing the legislature, let alone the basic, constitutional understandings of the people.
Meanwhile, we are training lawyers to advocate for particular public policies, from “sustainable energy,” carbon emissions, and restrictions on land use, to government transfer payments, often at the expense of helping particular people stay out of trouble and secure the protections of specific, existing laws.
Despite the (often well-deserved) hostility toward lawyers, most Americans recognize the essential role law plays in helping us order our own lives. Settled rules allow us to plan for the future with the knowledge that our actions will be judged in a predictable manner. Our decisions will be upheld (or held wrongful) according to whether we “followed the rules” in selling our house, buying a business, or simply making a purchase at the store. Most of the time, we can control the terms of our agreements; what the law provides is a set of “default rules” and rules of interpretation aimed at preventing fraud and filling in gaps we inadvertently leave open. Justice, in such a system, is defined in a very practical way as vindicating the reasonable expectations of the parties. That is, the goal of the judge should be to find what a reasonable person would have done or understood, given the facts, circumstances, and general understandings of the community.
When lawyers put aside their role in helping people navigate the legal system in exchange for “rebelling” against that system and changing it in the name of some ideological goal, they too often leave their clients in the cold. As to the law itself, lawyers’ crusades serve primarily to make the law less clear—creating “new precedents” that confuse people and even punish people for what they thought was reasonable, just conduct. By creating these kinds of doubts, without even the clear statement provided by acts of the legislature, lawyers undermine the rule of law. They turn the law into something people cannot count on in planning their lives. In this way, the “advocate” who eschews service to his clients in favor of service to an ideological vision does real damage to peace, order, and the confidence in established rules the people need in order to go about their business, secure from violence and unwelcome surprises regarding the basic ground rules of public life.
 Those who would argue that activist lawyering is necessary to achieve social change are referred to Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring about Social Change (Chicago: University of Chicago Press, 2008), which uses empirical evidence as well as case studies to show that significant social changes on issues including race, abortion, and changes in criminal and environmental law, were bought about, not by court actions, but by legislation. Whether such legislation itself is pursued in a wise manner I leave for another discussion.