An unstated assumption

-- By HenryRoss - 22 May 2015

A two-part question

In my personal introduction at the beginning of this semester, I wrote that I had come to law school to learn how to wield power. Over the course of the semester, we took up the functional aspects of that question. Making change in society without using force requires us to understand how organizations and the human beings within them—and the human beings within human beings—work. That understanding comes from science, history, psychology, and anthropology, not from some inexorable, universal legal logic. The next step is building a practice, which requires creating a network, obtaining the requisite skills, and replacing anxiety with determination. Lawrence Joseph’s lawyers, Joshua Horowitz, and Eben’s anecdotes, among other things, supplied some glimpses of the many forms that lawyering takes.

Despite persistent doubt as to our ability to acquire and use the tools of creative legal thinking and practice, neither Eben nor any of us seriously questioned the assumption that—once we had acquired them—we would use them to do good. I remain skeptical. To use a favorite law school word, this was the “normative” aspect of my question of how to wield power. In his response, Eben seemed to suggest that each of us, in our own Talmudic way, can derive answers to the question from our senses of justice, mercy, and humility. But doesn’t Micah 6:8 require that I have a God to begin with? Doesn’t this approach get me into what Holmes called the “danger” of adopting rules from “general axioms of conduct,” except that it is my own standards rather than rules of law that I am deriving? Perhaps not, if my sense of justice, unlike illusory axioms of conduct, is something fixed, reliable, and real. But what if it isn’t?

Justice vs. Intuition

In my first semester of law school, I was drawn to a number of traditional “policy arguments.” Holding contracts unconscionable drives businesses out of poor communities. Implied warranties of habitability increase the cost of housing. Rent control reduces the quality of housing. Outlawing recourse loans dries up credit for the poor. Providing broad tort liability against corporations simply shifts costs to consumers. As it turns out, of course, each of these theories is inadequate both by its own economic terms—housing supply, for example, is pretty inflexible, especially in the short term—and—more importantly—as a predictor of how people behave in the real world.

The error—the injustice—of my thinking was attributable not to any indifference to the condition of the poor, but to my engagement with the law at a level of abstraction high enough to turn good motives into tragic consequences. This problem manifests itself even in direct, provider-client relationships. One of the few randomized (and therefore gold-standard, from a statistical standpoint) assessments of legal aid provision found that assistance from the famous Harvard Legal Aid Bureau had no measurable beneficial impact on the outcomes of its clients as compared to an unassisted control group. Inadequate lawyering is one explanation. A better explanation, I think, is the HLAB’s incorrect intuition that talent, effort, and general good intentions would automatically lead to justice, or at least to as much justice as was hoped.

Justice vs. Circumstances

If the first reason for distrusting my sense of justice is the fear that it is too removed from reality, the second is the fear that it is too closely tied to my own reality. My upbringing and experience have magnified the visibility of certain problems while diminishing that of others. Should I be concerned that whatever services my practice offers will be distorted in proportion to my own distorted views and tiny areas of expertise? Of course, I can and must keep learning, but when will I have learned enough to know the difference between being biased and being right?

I’ve always told people that I want to be a judge, so when Eben asked us if we would be willing to take away someone’s freedom, I asked myself: how could I punish something I do not understand? It seems almost as absurd for a privileged New Englander to weigh in on the inner city drug trade, for example, as it was for a group of erudite jurists to punish cannibalism on a dinghy. Similarly, how could I be confident enough in my own view—a product of my own narrow experience—to let it override preferences and procedures that have been democratically established? Would I bend the rules for a sympathetic plaintiff? Would environmental causes get more justice in my court and those whom I determine, in Justice Kennedy-like fashion, to have “animus” against homosexuals get less? For how long could I pretend, as Judge Day does, that there is some clear distinction between my duty and my conscience?

Conclusion

Maybe we didn’t take up these questions because you can’t teach someone to want to act justly. (Is that the reason Eben knew he could sell us on Darwin and Freud, but not Marx?) Maybe the questions I pose have little value because our convictions are rarely as conflicted or misguided as I suggest. Maybe they were not relevant because those with widely divergent values slowly trickled out during the first two weeks. But my suspicion is that others are like me, and that the trepidation that many of us feel about starting our own practices isn’t the fear of pay cuts or prestige cuts, but rather the fear that after all of our efforts, “widows and orphans” won’t be any better off than if we had just gone to Cravath.

I’ll spend ten weeks this summer helping a judge ladle out large portions of what the victor will call justice. In the process, I hope to learn more about whether I love justice or hate injustice, or neither or both. But to do so, I may need to spend more time with the preliminary question I have asked here: do I know what justice is?

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