20 February 2006

Elder Law

The Perfesser gave me an opening to vent some spleen on the legal profession. And this time, I'm agreeing with him (for different reasons than he gave).

The legal profession has quite a bit of disdain for anyone who had a life—let alone another profession—before law school, with the singular exception of accountants. Quickly: Name a holder of an endowed chair in law, other than in taxation, who practiced in another profession for at least five years before beginning law school. I have found a scattering of former computer programmers, but no former practicing physicians, or architects, or teachers. It's even hard to find leaders of any kind in the legal profession—academic or otherwise—who had chosen other careers prior to attending law school.1

One of the comments on the Perfesser's blawg is awfully revealing to me:

As a practicing lawyer, I'm not a big fan of this. It's hard enough in litigation to convince the judge of your argument. If you have to also convince a law clerk with substantial intellectual heft of their own, it's even more difficult. Do the law clerks always sit in on oral argument? I recently lost a case in part because the law clerk just didn't like what the law clearly said, and the judge relied too much on the clerk. Sure, the Supremes are different and the justices themselves are very well versed in the law and very self-confident, but still. Adding a law clerk with substantial standing on their own brings in another element to the judicial decision-making process over which the parties and their counsel have no control. I don't like it.

Exactly the opposite should be true of those who care about the profession and its continued function. Sure, it might be to the disadvantage of one's client. I'm not sure what was meant by "just didn't like what the law clearly said," since if the law was that clear there shouldn't have been any "convincing" involved. The comment reeks of the attitude that "all intelligent persons will always agree with the positions I advocate, and with my client's interests." Further, there is a rather unsavory undercurrent here: That only "pure" lawyers can ever properly interpret the law, and only "pure" lawyers should be expected to help shape decisions interpreting the law. Let's just say that I disagree with virtually every word in that comment, and the underlying attitude, and find the comment at best disingenuous.

I do think the particular individual chosen by Justice Alito does implicate the concerns expressed by Professor Rhodes; however, that's not because he's from another profession, or even because he's "older", but because of the particular position he held. On the other hand, one could have said much the same of Thurgood Marshall… because, prior to appointing to the bench, Justice Marshall had been Solicitor General. I think this particular match is an inappropriate one at this time, if only because I have a much stricter standard for conflicts of interest than the legal profession allows itself, and it is absolutely inevitable that Justice Alito will be forced to quickly decide matters directly related to Mr Ciongoli's former role (since they're already on the docket!).

  1. There are a few older professors who served during the Second Thirty Years' War; Maj John E. Cribbet comes to mind. That, however, is not what I would call voluntary service, even for those who were not designated draftees. I'm sure there are also a few Korean War and Vietnam War veterans in the same situation.