Army officer Al Lorentz’s first of four main reasons for “why we can’t win” in Iraq is that there was “a refusal [by Americans] to deal in reality.” Lorentz was speaking of the effects of political repression saying “we are in a guerilla war, but because of politics, we… must label the increasingly effective guerilla forces arrayed against us as ‘terrorists, criminals, and dead-enders.’” (Lorenz, Al “Why We Can’t Win” Lew Rockwell September 20: 2004 lewrockwell.com/orig5/lorentz1.html (February, 22 2009).) Americans’ repression also affects us economically. In Frank Rich’s New York Times’ Article “What We Don’t Know Will Hurt Us” he argues that even though “the cruel ambush of 9/11 supposedly slapp[ed] us into reality…one of our most persistent cultural tics of the early 21st century is Americans’ reluctance to absorb…bad news” and that this “denial won’t fix the economy any more than it won the war in Iraq.” (New York Times Vol. CLVIII..NO 54,594 (February 22, 2009)). What, then, is repression? and how does it affect other areas of American policy, specifically our legal system?”

Repression has many meanings, but the particular repression I wish to discuss is that popularized by Sigmund Freud and defined by the Oxford English Dictionary as: “the action, process, or result of suppressing into the unconsciousness or keeping out of the conscious mind unacceptable memories or desires.” ("repression, n.2" The Oxford English Dictionary. 2nd ed Volume XIII Clarendon Press (1989)). I do not argue that we are repressing sexual desire or unwanted memories, rather I argue that we repress our unconscious recognition of the truth. Having been away from the United States for over 2 years, I began to interpret American society from another culture rather than observe it from within. (Geertz, Clifford. The Interpretation of Cultures. New York: Basic Books, Inc., Publishers 1973). From this perspective, I saw that generally, as Americans, we are afraid of dealing with what things truly are. We fear this not only in politics and economics but in all aspects of our lives: in love, in friendship, in sex, in daily interaction, in our social hierarchy, and even in the sector of America where they say the Truth is found; our legal system.

There are three important ways in which the American legal system is affected by our repression. Firstly, we fail to see that judges decide cases based on nonsense and “magic” because we wish to believe there is logic behind the results. Secondly, many lawyers do not want to face the difficult reality of many people’s situations and therefore a large class of people is left without proper representation. And thirdly, many lawyers repress recognition of their role in the capitalist system around them and therefore don’t notice where their skills could be put to better use.

Oliver Wendell Holmes defines law in “The Path of Law” as “what the courts will do in fact” (P.3) and suggests that what the courts will do, depends on various factors such as unconscious judgments, tradition, and other human limitations. Similarly, Felix S. Cohen argues in “Transcendental Nonsense and the Functional Approach,” that we are taught in law school that “transcendental nonsense” and magic words are the actual “logic” of the court. Jerome Frank argues that we believe this because we are uncomfortable with uncertainty and therefore prefer magic (“Modern Legal Magic” Courts on Trial Princeton University Press, 1973.) This repression however, makes us unable to predict “what the courts will do in fact,” and in turn makes us less likely to succeed for our clients.

Acknowledging the truth would mean we would have to face the dire situation that many people needing legal representation are facing, and therefore we repress recognition of them. C. Oliver Robinson is an exception to the rule. He boasts being able to chose his own clients, and he choses to defend people in grave legal situations that others ignore. In Lawyerland: Robinson’s Metamorphasis it seems as if Robinson recognizes the unfortunate effects of denying this class of people legal representation when he fantasizes about a situation in which lawyers are forced to face its effects. After mentioning that the number of prisoners is much higher than lawyers in the country he suggests that “lawyer becom[ing] prisoner, prisoner [becoming] lawyer… [is] no more than a form of exacting justice.” However, because lawyers do NOT have to be the “prisoner” or recognize what the “prisoner” faces, a large number of people do not have proper legal representation.

Simmilarlly, because “men become bound by loyalties and enthusiasms to existing organizations [and] if they are successful in…these organizations, they come to regard them as the ultimate in spiritual and moral perfection” lawyers tend to repress where their skills could best be put to use. (Arnold, Thurman. The Folklore of Capitalism Beard Books (1937)). Many lawyers are content working to continue the organizations of wealth that have developed here, and are, as Professor Moglen states, “pawning their law degrees.” Two main results have come from this: new organizations and ways of practicing law have not been developed, and many lawyers are unhappy in their jobs. As the world changes we need to progress in the types of legal representation we offer. If we face the truth of what we want instead of simply following the beaten path ahead of us, we can build new organizations, become more satisfied, and in turn improve our legal system.

Culture, like law, is constantly metamorphosing. We therefore can make a positive change on our legal system by changing our cultural tendency to repress. If we don’t we will be stuck in a system in which we are unable to recognize how judges make their decisions or predict how a judge will decide, huge numbers of people will be without proper legal representation, and we all will be working for a system that doesn’t progress and at the same time makes us unhappy. Progression can happen. It must start with recognition.