The best thing about the Miers discussion is it allows me to run forth about one of my favorite subjects, “The Law”. Having been a law student and a lawyer, it gives me a chance to feel as if I have something to contribute.
You can tell my premise from the header. Believe me, I am not taking a position and spinning many plausible arguments in support of it, or playing “devil’s advocate.” For dozens of years I have thought that being a lawyer or judge ain’t rocket science or even brain surgery. Let me tell you why.
Law is not an academic discipline. If we define academic as the cultural accumulation of knowledge, we can see that law fails on many grounds. The study of law is not a study leading to an accumulation of knowledge; law is arbitrary, social and imposed. When Congress enacts a law, or a court expresses a rule of common law, it is silly to talk of accumulating knowledge of it. If the law is expressed well, the reader understands it. If it is expressed sloppily, the reader cannot figure out how to follow it. The proper analogy is the instruction manual to an electronic device. We don’t seek to accumulate knowledge about the device; we seek to figure out what the manual writer was expressing.
Within weeks of entering law school I had an upperclassman teaching briefing and appellate advocacy. I had hardly any instruction other than a few rambling lectures from the upperclassman to this point. One thing he said stuck with me and rung of truth. “Practicing law is simply reading carefully.” I was able to analyze an (uncomplicated) legal problem, write a serviceable brief, and make an oral argument within days. Looking back now after years of additional legal education and years of practice, I would not write the brief any different.
Any honest lawyer will tell you that the first year of law school is all that matters. There you learn legal reasoning, honed by the Socratic method, and the basic common law. Years two and three are marking time. They serve mostly as a barrier to the profession, making it more costly to enter so enhancing the earnings of those in it. After the first year you have the basics of common law, contracts, property, jurisdiction, evidence, criminal law and procedure, as well as legal research and writing. Imagine a second or third year legal course on some statutory law, say the securities laws. A statute is a bunch of orders and procedures. You can read the cases interpreting the statue (binding) and the analysis or commentary (non-binding) but, come on, it is like a graduate course on the repair manual of a washing machine. Someone had the power to require certain things and had other people write it down, and if you cannot figure it out… It is not an academic subject. Today, lots of later year law courses are “law and economics” or “law and dance”; you can imagine my opinion of how that enhances legal scholarship.
Harvard was founded in 1636. It added a law school in 1817, one hundred and eighty one years later. Harvard has been around without a law school (181 years) almost as long as it has been around with a law school (some 190 years). Harvard would add a shoe shine school if they could get away with it and it would enhance student enrollment and public funding. The 181 years of Harvard without a law school was not an accident, nor is the lack of a Nobel Prize in law. Law is not an academic subject.
One can earn an advanced legal degree in Federal income taxation. Imagine if that knowledge were lost to the human race. “Lost to posperity is the exact income level of the phase out of the pernsonal exemption.” Law is intellectually about on par with acounting.
Now let us proceed to our brilliant Constitution. I have great respect for the United States Constitution. However, you must admit much of it is simple proscription (the President must be 35 years old), nothing other than what some people believe is desirable, clearly expressed. Other parts are raw compromise. The Senate and House is not some sort of genius governance construct deducted from prime principles. Sparsely populated states wanted state representation in the federal scheme. More populated states wanted population representation. The compromise was inelegant and unprincipled, simple splitting of the issue – two houses. I think the constitution is so great because of the starting point of the Framers: Rationalism, the Enlightenment, Individualism; given those premises they could hardly create anything less than the Constitution, not due to super brainpower by any person. The smartest guy in
Nile Egypt would come up with wholly different institutions and procedures.
Why do we hold lawyers in such high regard? I read in the Wall Street Journal that some law firms are outsourcing legal work to India because they have an Anglican common law education and India lawyers are much less expensive because lawyers there have a lower social position than in the US. Lawyers have a lower earning power and social position in Japan, India and many other countries. My pet theory is this: prestige and social position to a great extent follows earning power. Before electricity, entertainers were not rich and were viewed with social disapproval. Who has not heard of the actors not welcome boarding house? However, with the introduction of the movie, TV, radio, and recorded performance, performers were able to glean huge sums of money. A performance became like a product which would be manufactured or stamped out by a factory in the millions, causing a great accumulation of wealth in the actor. I remember when the world press realized that the Beatles were not only changing music but were getting rich and buying Rolls in funny paint.
Today some lawyers rank among the wealthiest of citizens. Like entertainers, their social standing has risen with their money and political power.
However, highly paid and credentialed lawyers do not necessarily make for the best legal product. If you were charged with a crime and the punishment might be death would you want the Harvard educated or the charismatic? If your parent died after taking a prescription drug would you want the academic or the proven trial lawyer?