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Speaker: Robert Gordon, Chancellor Kent Professor of Law and Legal History, Yale University
Robert Gordon, Chancellor Kent Professor of Law and Legal Studies at Yale, spoke on the role of lawyers in producing the rule of law both abroad and in the United States. Lawyers, he said, feel that they are necessary for the rule of law. A free practicing bar is thought to be necessary for liberty, justice, and the protection of rights, and they see the role of lawyers as being significant in establishing a functioning judiciary and creating and upholding constitutional procedures to protect individual rights in countries which have struggled to achieve democracy. Thus, they have been committed to exporting an idealized model of western judicial systems.
Gordon argued that although there have been some successes, in particular in countries of the former Soviet Union, for the most part such attempts have produced little change. Before such institutions can flourish, a pre-existing cultural disposition is needed. Where such a tradition is absent, the attempt to establish functioning judges, effective enforcement officials, and successful legal practice fails. This presents a problem: imposing alien practices may not work, but attempting to have a country adopt western practices and mores through the medium of existing local institutions may result in the newer practices being taken over by these same local traditions and a failure to introduce new standards.
This failure gives cause for reflection. What exactly are we trying to export? How much truth is there in the idealized model we try to institute? Are our own judges independent and above pressure? Are our U.S. attorneys above pressure as well? It may be that the idealized "rule of law" picture is not instantiated even in the United States. While it is true that many key figures in politics and praiseworthy public causes have been trained as lawyers, this is not reflected in the everyday ethics or orientation of the profession.
The privatized legal system in the US, Gordon argued, is failing to support the rule of law here at home. In the US, more than seventy percent of lawyers are in private practice. In private practice, American lawyers form long term relationships with stable business clients. This is unlike the tradition in Great Britain and France, in which regulations mitigate against exclusive and long-term lawyer-client relationships. American lawyers are expected to put the client first in all but the direst circumstances. Rather than supporting the rule of law, this ideal of advocacy has led lawyers to go so far as to advise that clients break the law and pay resulting fines when that is profitable. Generally, they earn money for advising their clients how to get around regulations, even where that does not involve straightforwardly violating them. Some claim that such "zealous advocacy" assures a just outcome, but that can be guaranteed only if there is already a satisfactory set of procedural rules in place. In fact, while lawyers may justify their adherence to the interests of their clientele by acting as if the rules within which they maneuver are exogenous givens, within whose constraints they do their best, they agitate in multiple venues to create institutional rules which will work to their clients' advantage. They are not, then, just playing the hand that is dealt them; rather, they are helping to stack the deck. Can one at least argue that they are protecting the liberty of individuals against an overbearing state? Generally, such a claim would be false. The most likely area to see such protection is that of criminal defense, where an active role for lawyers may be found in preventing railroading of clients, acting as a check on police and prosecutors, and moderating sentencing. However, private criminal defense is affordable by very few people. Most must rely on publicly provided defense, paid only by stingy state subsidies.
This is a bad state of affairs. Sometimes we need defense against laws, but some laws are good, and privatized lawyers don't differentiate. Rather than seeking to build neutral laws, they want preferential treatment for their clients. We cannot produce the rule of law in such a way, since the rule of law requires widespread voluntary compliance and commitment to the impartial rule of law. The adversary system works only if someone is minding the store. We need civic virtue rather than economically self-interested behavior.
Gordon ended by asking how we might develop such civic virtue. Historically, lawyers in the US have a rich tradition of civic activism. In part, this stems from their having had a public-minded clientele, who saw something worthwhile in the support of fair public institutions. When clients had a sense of public responsibility, lawyers were able to act in the interests of their clients without doing that in a way which was harmful to the underlying framework of law. Such lawyers were willing to sacrifice money for a cause. We need now to rebuild the "mandarinate" to recreate a tradition of civic professionalism and to do this from institutions within the profession itself. We need a professional ideology about social responsibility. So far, we value this more as an export commodity than as a domestic product. Political elites and powerful economic clientele must support this effort.