Thursday, July 22, 2021

What The Fuck Is Wrong With Lawyers?

No matter what the subject, the alleged experts will inevitably pull rank: doctors, academics, armed forces officers, counterterrorism workers, campaign workers, journalists, historians, social workers, cops, businessmen, scientists, immigration and customs workers, community organizers and union organizers,... it's the ultimate white collar conversational hazard. They will inevitably spout jargon incomprehensible to all but them, they will inevitably say 'Don't tell me the reality I live every day." they will inevitably say 'You don't know what you're talking about, I do." I know this because I've obviously done it too, with much less professional certification than most of the people I'm talking about. I'm not proud of it, but I'm at least aware of the problem and I do what I can to remedy it, and I don't think they are.

But, and I write this with all the love in the world to my many many lawyer friends, lawyers take this conversational marauding to an exponential level. If there's any angle of the subject that can be put through some kind of legal rubric, often a rubric designed to be as incomprehensible as possible, you can be sure lawyers will do it. It's not because of any inherent character defect - it's because that's literally what lawyers are trained for. They're trained for verbal combat, they're trained to sound authoritative, they're trained to find miniscule obscurities to gain an advantage. And if they can find ways to make themselves seem like authorities over the rest of us, they will take it.

The problem with this, and it amazes me that lawyers seem particularly unaware of the problem, is that persuasion depends upon being able to couch difficult concepts in terms the layperson can understand - and not only understand, but be sympathetic to. Friends are friends, and will give each other the benefit of the doubt, but persuasion is done as much with the heart and the gut as the brain, and if conversational partners feel they're being condescended to, they will persist in their logical fallacies precisely because they don't want to admit the other party is correct.
The ultimate problems are articulated by the two masters of clear English far better than I could.
First, George Orwell: "...the English language. It becomes ugly and inaccurate because our thoughts are foolish, but the slovenliness of our language makes it easier for us to have foolish thoughts."
Secondly, Lincoln: "You may say to him,—"I see no probability";.... but he will say to you, "Be silent: I see it, if you don't."
Any process of cultish jargon inevitably leads to an avalanche of unsound thoughts. The 'experts' are stuck in worlds of thought comprehensible only to them, and the concepts on which their expertise is laid divorces itself other people's lived experience. Meanwhile, the laypeople have less ability to understand concepts which can improve their lives, and the experts no longer have theories which can be proven in reality, because they've stopped listening to their subjects.
And if those last few sentences are incomprehensible, well, lawyers aren't doing any better than me...
Opacity is what the law is and must be. The entire way our lives are structured exists at the rule of tiny legal nuances between how one defines words like 'wrong', 'incorrect', 'false', and 'unsound'. The problem is not law, the problem is lawyers, and the problem is that for my entire lifetime, everybody's seen the problem but lawyers.
Law school, by all accounts, is hell - at least the first year... Just like med school, you memorize all the thousands of terms, or you fail. There aren't many legal jobs that aren't high pressure, so if you can't handle the pressure of law school, why endure the pressure of a fifty year career? Therefore lawyers are, by process of elimination, a very self-confident lot who endure much and come out the other way thriving. Humility is virtually coded out of the profession, and along the way, they assimilate a belief inherent in many professions, that their knowledge is for a privileged few intelligent and strong enough to understand it. The only problem with that is that lawyers are supposed to be the people who explain and advocate for these concepts to us in plain English, and they so rarely try to do that.
Academics and doctors are just the same way, but the particular danger of lawyers is that they occupy a nebulous middle position between the necessity of doctors and the uselessness of academics.
The necessity of doctors is absolute. If there's no doctor, the patient dies, if the doctor is insufficiently prepared, the patient dies. Academics are answerable to no one. If a humanities professor is wrong, literally no one cares, least of all themselves (except for the 1 in 100,000 academics whose ideas kill millions...).
Lawyers, on the other hand, matter very much, but their long-term effect is never apparent at the time, and that results in the formation of very dangerous ideas that metastasize very quickly before anyone can study the practical application.
Obviously, this would be the place to lambast originalism, but 95% of the people reading this probably know that originalism would be the dumbest piece of philosophy on the planet if a hundred million people didn't believe it. So let's move on...
No, the 'original' problem is not originalism, the original problem is the marriage of law to philosophy and the divorce of law from practical application. Every 'court watcher' and reader ('watcher'...) of Jeffrey Toobin knows about William Brennan's maxim that the only law that matters in the Supreme Court is 'the law of 5.' What Justices from Earl Warren to Harry Billings Brown understood is that the reason for the ruling itself does not matter, so long as the ruling is the majority.
In a world where the legal interpretation is used for any reason but a brass tax practical one, the most simple-minded legal philosophy will inevitably win out, precisely because it's the easiest philosophy to explain, and therefore will attract the most adherents and be used as a political tool to inflame a mob. The law does not exist in a celestial realm of pure form, it is a moral war on the ground on which every case is a battle in which you'r thinking not only of what's right and why it's right, but if the ruling of this case will achieve or set back the long-term impact you desire. I'm sure many lawyers reading this would argue "so much of the law has nothing to do with politics. It's just grunt work, most of which has no political implication at all." Bullshit. While you're arguing the case at hand, conservatives are enlisting thousands of legal soldiers from every law school to take dictation for exactly the results they desire in fields that you would think should have absolutely nothing to do with politics. You'd think that of all people, lawyers would understand this, but they don't.
Unlike legislative negotiations, the law, certainly the law in America, is a game of miles not inches. It's a zero-sum in which you bet everything on every throw and continually advocate the most extreme position. Why? Because such is the design of the American political system. The American judiciary was designed to be a system of monarchs, and in the rule of fiat, there is only absolutes. Want the ideal Supreme Court Justice? His name is Bernie Sanders. The perfect justice is not anyone who is celebrated for carefully argued legal interpretations, it's someone who hammers home extreme positions in language the most simple-minded, explanation-retardant layperson can understand.
The legal justification for a ruling literally does not matter so long as the desired outcome is obtained. The law is not an ideal, it is not an end in itself. The law is purposive, the law is practical, the law is exactly as activist and legislative as conservatives pretend to excoriate liberal judges for being. Every conservative operative who pretends otherwise knows that simple fact, and argues that morality should not be legislated in the worst possible faith. They understand better than we do: we literally have laws to legislate morality, and if your 'side' does not impose its morality on unwilling people, the other side eventually will.
Every judge, from the chief justice down to traffic court, is on the bench to be absolutely nothing more than an expedient political arm. So long as Supreme Court justices are lifetime monarchs of the American judicial system, judges are not referees, judges are not philosophers, they are lawyers advocating for a position as much as any lawyer in their courtroom - and judges on higher courts are a combination of generals and bureaucrats in a total cold war, their positions are purely strategic and functionary - literally appointed to benches to do nothing more than enforce the moral will of their legislative allies.
There is a second problem: lawyers make it so. The problem is not just that judges and legal professors fancy themselves philosophers, it's that lawyers treat these would be philosophers like rock stars and not political subordinates. The rock star treatment clearly goes to the heads of legal celebrities. It made Ruth Bader Ginsburg into a rockstar as big as Paul McCartney, and she never would have become one without everybody getting the green light to make her so from their close lawyer frend. As a result, she never retired. Who could resist that level of acclaim? She always said it's because her replacement would be insufficiently liberal, but she had her chance with the 2009-2010 congress, and she didn't even retire then. Maybe she was waiting for a still more liberal congress, but if she was, she must have been politically blind. Anybody in 2009 could have seen that no liberal wave was coming to save us from Mitch McConnell. Was she really that politically blind? Perhaps.... and that blindness is exactly what comes from divorcing law from politics. And meanwhile the tally of liberals vs. conservatives on the Supreme Court became 6-3.
And now Stephen Breyer seems to refuse retirement. Why? Well,... why would he? Supreme Court Justices are literally on the court because a lot of people think their judgement is better than other people's, and if so many others believe their judgement is that good, why would any justice of that much experience risk an inferior replacement? Breyer's at the top of his profession, and no lawyer rises to the top of their profession by humility. The whole reason the world has lawyers is to persist in arguing justifications which some people find specious, and lifetime appointments literally breed specious reasoning into their occupants. Anyone with a lifetime appointment to power of life and death over others no longer understands the world the way we do, and they have a license to adopt whatever pet concerns attract their attention regardless of what's most needed by the rest of us.
By contemporary standards Breyer is quite moderate, and he probably believes he'd be replaced by a left extremist who will take the Court down yet another path he doesn't want to see. Surely, I'd imagine he reasons, this is a phase and he may be able to wait this out.
Meanwhile, Mississippi's issued yet another challenge to Roe v. Wade today... and the clock continues to tick for yet another midterm election that will probably win Republicans back the Senate...
This is the result of making lawyers believe that the law applies more to politics than politics applies to the law. The culture of 'lawing' has given us this Supreme Court mess. Lawyers are the only people who can argue us out of it, but it's entirely against their self-interests to do so, and lawyers are not known for refusing self-advancement...

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