I delivered the following remarks at Yale Law School on the occasion of my 35th class reunion. I found the school to be in robust health under the leadership of a great new(ish) dean, Heather Gerken. I wish I could say the same about the state of our republic.
Good morning. This may be the earliest hour I have ever been in this classroom during my three years at Yale Law School. Harkening back to my law school form, I have also chosen to ignore the instruction I was given to focus my talk on a topic relevant to my area of expertise.
You see I did not go to Harvard Law School – and therefore I have no area of expertise.
Instead I plan to talk today about a mystery that has confounded me since my arrival on campus an incredible 35 years ago:
Namely, why do people despise lawyers in general, but often admire their own counsel? And while one can hate lawyers but still respect the rule of law, I will go on to offer some thoughts on why it has never been more urgent that we act as a nation of laws, not of men.
At best, lawyers are ridiculed for being small-minded, risk-averse and pedantic scriveners. At worst, we are deceitful ambulance chasers seeking high fees, who prey upon our fellow citizens during their weakest moments.
This is not at all how I see my Yale classmates or even lawyers in general. Of course, I see the occasional moral failure (Rudy Giuliani comes easily to mind these days), but I mostly see decent human beings who were once inspired by a sense of fairness and justice, who believe in high-minded concepts like the rule of law, the dignity of hard work and the belief that we are better off solving our differences via fact-based debate following an agreed set of rules, rather than through physical violence.
There are many obvious reasons why society does not often recognize these finer qualites. Some stem directly from our representation of unpopular defendants and the vigor of such defense that can sometimes verge on the abuse of process; others are driven by a focus on minutiae and a tendency to follow form over substance; and, finally there is the fee system that rewards hours worked rather than, sometimes, value added.
A classic example is divorce proceedings. It is not at all uncommon for an aggrieved spouse to declare that he hates the other’s lawyer for stoking the flames of marital discord, but ignore or even praise the similar action by his own counsel. How to explain this inconsistency?
One reason I believe is that lawyers are truly able to argue either side of a case and are adept at making their opponent look not only incorrect but also morally wrong.
However, I believe there is another deeper or more subtle reason why Americans don’t like lawyers: We ask the question best left unsaid — What could go wrong? What could possibly go wrong ? — And thereby we lay bare fuzzy thinking, half-baked business plans and conduct one might prefer not to appear on the front page of the New York Times.
Let me give you an example. Two big-picture, public company CEOs are meeting to agree upon an important merger. They agree on a price per share at which Company A will purchase all the shares of Company B. Delighted, the CEO of Company A returns to headquarters to brief his sycophantic senior team, when the General Counsel pipes up: “What happens if Company B’s stock falls by 20%, shouldn’t we have a formula price adjustment or at least a collar below which we can walk away?” When Company A and Company B lawyers meet to flesh out the details of the merger, unsurprisingly, the deal craters. The big picture CEOs are furious and tell all their golf buddies that everything was going swimmingly until those damn lawyers got involved.
Now this is clearly an intentionally exaggerated example, and there are many shrewd and detail-oriented CEOs; however, this perception of the lawyer-as-naysayer or asker of uncomfortable questions is common and not limited to corporate law.
This in turn reminds me of an episode from my Yale years. Many years ago I sat in a classroom down the hall listening attentively to Guido Calabresi teach his then current book, Tragic Choices. I recently re-read the book (yes, I did read it the first time as well), and I can say that it remains highly relevant and readable. Most of the book is dedicated to the economics of social choice – for example, why we as a society opt to spend tens of thousands of dollars and scramble coast guard helicopters to save a lone offshore canoer in trouble, but we do not allocate the same dollars to build railroad grade crossings that we know (at least statistically) could save more lives per dollar spent. Guido’s answer is, in part, that there are choices that we avoid making simply to reaffrim our own humanity and avoid laying bare the implicit decisions that we would prefer not to confront.
As practicing lawyers, whether in litigation, doing deals or counseling clients, we do not have the luxury to avoid asking tough questions and I believe lawyers should be more explicit in acknowledging and celebrating this function.
This is not to say that lawyers should abandon the many roles we undertake for the public good, such as judging, teaching, representing pro bono clients and the like, but we should not be embarrassed about our role of asking the tough questions and testing propositions in detail.
These last three trying years of the Trump presidency have caused me to ask many tough questions concerning the fundamental soundness of our constituional democracy, and, in particular, the actual effectiveness of our system of checks and balances and separation of powers. Many features I believed (even after a pretty decent legal education!) were elements of positive law, have turned out just to be behavioral norms or ineffective levers of social suasion.
For example, that a presidential canditdate should release his or her tax returns and divest of conflicting business interests. The ongoing daily assault on truly American values from this defective President has only strengthened my belief in the fundamental decency of those who believe in and champion the rule of law; those who believe in telling the truth and arguing on the basis of facts and not deceptions and lies.
And again there are Yale Law School ties to these noble sentiments.
During my student years here, the Federalist Society was created, and it will come as no surprise to those of you who know me that their politics were and remain substantially to the right of mine. However, it gives me great pleasure to see a Federalist and fellow Yalie, George Conway, attack this criminal president and defective human being on nearly a real-time basis on Twitter.
I have never before been such an overtly political person. I was proud to be counted among the millions of Americans who elected the intellectually-gifted and morally-upright Barack Obama to two terms, but I was not embarrassed to call George Herbert Walker Bush my president. I am socially liberal and economically conservative, and would vote for the seemingly unelectable Mike Bloomberg over most of those in the current polarized field if I could.
But what we are living through now goes well beyond personal politics. Our great nation of laws has been taken over by a corrupt and criminal con man who leads a daily assault on our institutions of government, the free press and the very truth itself.
George Conway is hardly a flaming socialist seeking to ban all hunting rifles and abolish Christmas. There is probably not much we would agree on other than impeaching this President and the other’s right to advocate his position freely.
This month another arch conservative graduate of this august law school, John Bolton, has also joined the Dump Trump bandwagon. And when Bolton, Conway and I see things the same way, there must be a national interest above politics.
And herein also must lie our road back to a well-functioning democracy in which we can have heated policy debates within the framework of a respect for the institutions of government, respect for the rule of law and a respect for the truth.
These are principles of good government and good citizenship that I found 35 years ago in my professors and classmates here at Yale, and they remain ever so relevant today.