Sunday, February 21, 2010

Juricide: Businessmen Killing a Profession

Book Review: Douglas Litowitz, The Destruction of Young Lawyers: Beyond One L. Akron, Ohio: U of Akron P, 2006.

Read the comments to my blog and you’ll see that one commentator recommends this book by Dr. Douglas Litowitz. I bought it and, seven chapters and 144 pages later, I’m ready to discuss it in the form of a book review, even though I hope this is not too pretentious and following too closely my old profession of writing for newspapers.

As a lawyer, Litowitz is more discontented than disgruntled. Law was a lucrative career for him for five years of his life and, even though he suddenly quit his job in a huff at a large Chicago law firm to earn a PhD in philosophy, law appears to be the thing that most defines him as a thinker and, dare I say, even as a human being. He once taught at Ohio Northern University College of Law, but apparently not any more.

What then does his book, The Destruction of Young Lawyers, mean? Let’s be very careful here, splitting hairs if we have to: Litowitz’s point of view stems not from the dysfunction of trying to enter into the legal profession, although chapters two and three do touch upon law school and the bar exam, but the dystopia of what happens once you enter it. For those of us more concerned with getting through law school or getting a job, this book offers a sort of trickle-down theory, if not a vivid description of our own sour grapes.

As such, it’s also fair to first suspect a kiss-and-tell book. After all, what on earth is he complaining about if he made it through an elite law school and into a job in the legal profession? But as the story unfolds, we see someone trying to reach for more than what he has, realizing that once his goals have been achieved, they didn’t turn out to be what he wanted in the first place. Taken from this point of view, we might even see him as a 21st-century Henry David Thoreau, if not a much more articulate and voluminous version of Melville’s Bartleby, the Scrivener.

Granted, he is isolating himself from the impersonal professional environment he once belonged to and waxing philosophic about it. But to give Litowitz a fair shake, the reader needs to delve even deeper than this. There is a central, more timely issue to his thesis: the lawyer profession used to be noble, but now it has evolved into something sinister and immoral. To swallow this, we have to accept his own parody of Dickens: “It was the worst of times, it was the worst of times.”

He most admirably tries to put his finger on the problem by blaming money and the trend in America over the past few decades of putting wealth into the hands of only a few. Some of his statistics are very dramatic, pointing out that law firms of over 1,000 lawyers never even existed until only recently. The tricky tactic of law firms designating some lawyers as “associates” versus others as “junior partners” or something else, creates a money flow that goes only to the tippy top of an elaborate money pyramid. In light of our recent financial meltdown in America, this ought to be nothing new, but I suppose it unfortunately probably is.

Nonetheless, some of Litowitz’s examples do hit the mark. For example, his law firm defended an insurance company that insisted that a properly insured motorcycle victim couldn’t collect. The law firm was called upon to wholeheartedly and without reservation defend this insurance company’s despicably sneaky tactic of policy restructuring involving keeping clients informed of changes in their policies via junk mail with clauses embedded in it too tiny and verbose to notice.

Litowitz even supports these depictions by citing the very abstract legal theories by some influential scholars. He blames them for numbing the consciences of lawyers. For example, he reminds us of Duncan Kennedy, who has no qualms about dividing cases into categories of “cold” (i.e., a routine decision that states rules) and “hot” (i.e., a decision with a clear injustice that might distract law students from more important legal rules--like bait for a trap).

He even includes a penultimate chapter about the irony of technology: what is supposed to make life easier has made it far more complex. This seems like a bonus chapter that is slightly off topic, since technology certainly can’t really be part of a larger decay of the legal profession due to a lack of conscience. Then again, it shows that the decay does make lawyers unable to adapt to the new technology with common sense--instead of allowing computers to make brief-writing an easier task, lawyers simply use computers to over-edit.

As “morosely unhappy” as Litowitz depicts lawyers, I personally wanted him to go further. It’s interesting that he brings up the late Arthur Liman as his pick for a lawyer who led an ideal, productive career. He doesn’t mention that Liman was the lawyer who stared down Lt. Col. Oliver North in what turned out to be the most crucial legal moment of questioning in the Iran-Contra Affair--a moment that the far right in America would hold up as a shining example of the triumph of good (North) over evil (Liman, representing the liberal Senate). Please correct me if I’m wrong, but I believe the Rev. Jerry Falwell even sold video tapes of this exchange as an “inspirational” message to his followers.

Litowitz’s book came out before the financial meltdown of 2008 and before the reinvention of the American liberal movement that elected Barack Obama. It is not entirely in synch with these events, but does march tentatively to their rather slow but steady drum beat. (In contrast, I’m more the type that would rather hear the drum solo to “In-A-Gadda-Da-Vida” at this point in history.) I figure I’m about five years older than Litowitz, which gives me a slightly more mature outlook on the Reagan years, although it does leave me wondering how he can miss what I think is the biggest piece to his puzzle.

Litowitz even quotes Karl Marx extensively, as perhaps any good philosophy scholar should, but boy oh boy does that beg a big question here. He even mentions “socialism and libertarianism” at one point as extreme postures that law schools somehow filter out of their faculties’ political postures. I would take the biggest issue with Litowitz here, reminding him that there was a perceived victory in 1989 of America in the Cold War. America, with its pop culture quips and simplifications, went on to declare the victory of Capitalism over Communism--not just on some terrestrial battlefield, but in the universal battle of abstract ideas.

This version of events has declared Marx a quack once and for all, even though you’ll find Marx’s picture pinned up in classrooms throughout the vast expanse we call China. Come on. Isn’t it a bit too chic for Litowitz to now unapologetically turn to Marx? Maybe it is not.

An analysis of what has happened to our legal system, its decadence and even moral depravity, cannot be completely examined without linking it to the end of the Cold War and the subtle but distinct message that Capitalism is now the wave of the future. Perhaps Marx is Litowitz’s ultimately cryptic way of linking the decadence of the American legal system to the decadence of this Capitalism. But if so, he should never have mentioned Libertarianism as an extreme posture left out of law school--Libertarianism has been the formulaic voice of this new version of brutal Capitalism. Meanwhile, Socialism is still a bogeyman, not only in law school, but in just about every nook and cranny of the American media--currently trying to underscore a defeat of Obama’s health care reform movement.

Our legal system stems from English law, an often discombobulated collection of ritual, esoteric rules, and very flexible concepts and theories. Nonetheless, the English were also the first to implement laws for the poor and other victims of industrialization, long before Marx ever penned his Communist Manifesto. Somehow English law, even more than the Bible’s rigid laws and morality parables, has kept Western civilization from imploding upon itself. That’s what we should be learning in law school and implementing as lawyers.

Litowitz has stated a problem and briefly attempted to articulate a solution. He promised to do that at the beginning of The Destruction of Young Lawyers, and he delivers. What he doesn’t address and needs to address is the ongoing Reagan chimera. It was Reagan that swung the Supreme Court radically to the right in the late 1980s and turned the American legal system into the back-stabbing business that has become the prototype for all American businesses in this new “Capitalism.” He doesn't need to include Marx in his solution, but he does need to state the problem with a bigger scope and, yes, even a bigger urgency.

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