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Leff, Lawyering and Law School

-- By WilliamKing - 27 Feb 2009

Intro

In his conclusion of Swindling and Selling, Arthur Leff asserts that “what lawyers do much of the time is try to consider alternative future social snapshots and then attempt to encourage or prevent their actualization by facilitating or retarding particular human acts.”. In his view, being an effective advocate involves considering the underlying social phenomena of the world while simultaneously anticipating their future development and acting to either expedite or impede this development. If Leff were to observe a modern law school, he would probably sense a disconnect between what (in his opinion) a good lawyer should do and what law school students are learning to do. The methodology of teaching the law solely through the reading of judicial opinions does not reach Leff’s scope of lawyering. Perhaps introducing economic and social science ideas more prominently in the law school curriculum could make it more useful in shaping us into the sort of advocates that Leff finds effective.

How Do Lawyers Think?

According to Leff, unlike economists who ignore the microreality of transaction costs lawyers find the nature of how transactions are carried out to be vitally important. Leff states that it is the “actual behavior of actual people in actual transactions that is of particular interest” for lawyers. He believes that a lawyer must focus his attention on actually social phenomenon and closely examine human behavior. Implicit in this theory is the necessity for a lawyer to relate to anyone seeking his guidance and to be able to understand the underlying social conditions that impact the interests of his clients.

What Do Lawyers Do?

Leff states that it is a lawyer’s job to “consider alternative future social snapshots and then attempt to encourage or prevent their actualization by facilitating or retarding particular human action.” He extends lawyering beyond mere professionalism into the realm of social instrumentation. The lawyer, who can anticipate the future, can simultaneously use his knowledge of the law and of social interaction to help shape it. Lawyers can therefore influence their society in ways that others can not. Unlike, for example, a politician who is at all times susceptible to influence and pressure from constituents, a lawyer has the opportunity to think and act freely. Of course, Lawyers are constrained by alliances and relationships. Yet, lawyers have the power (though at times limited) to choose where and for whom they work. Assuming Leff’s proposition that lawyers attempt to encourage or prevent the developments leading to an anticipated future, it is worth considering what the implications of lawyering truly are. On the one hand, an optimist would say that lawyers analyze future social occurrences because they desire to prepare for and remedy problems that may occur. On the other hand, a cynic would take a different approach and say that the lawyer who can anticipate and influence the future has the power to benefit at the expense of others; since those with whom the lawyer interact will often have an inferior ability to perceive future outcomes, there is ample opportunity for exploitation. However, it is the nature of lawyering and not the implications of its nature that Leff addresses. Lawyers, regardless of morality, use their knowledge of human interaction and social phenomenon to cause other humans to act in a certain way.

Leff and the Law School Curriculum

Reading cases and being probed through the Socratic method does little to teach us how humans in the real world interact with one another, and does nothing to teach us how to successfully interact with clients. If law schools want us to be more successful as professionals whose job it is to become a master of “actual behavior of actual people in actual transactions,” perhaps a more helpful environment for law students would be one in which we are encouraged to study human social interaction, a study that would help sharpen a future lawyer's ability to perceive the underlying social phenomena that it will eventually be his job to help reshape. Furthermore, the process of learning the law solely by reading judicial opinions does not offer students the a sense of the full scope of the nature of the transactions behind each case. The claims brought on and decisions given in a particular case are influenced by underlying social factors, many of which can not be understood simply through mastery of the facts of the case or the holding of the court. A more effective law school curriculum is one that teaches its students how to analyze the social, economic and psychological influences that shape and constrains our conception of justice. The reading of judicial opinions is an important part of teaching students about the procedure and vocabulary of lawyers, but by incorporating other disciplines into the law school curriculum, students will be better equipped to consider the “alternative future snapshots” that Leff reasons lawyers work to encourage or prevent. If a student focuses not only on the law, but also on how the law influences human action, the student acquires a more general knowledge of how the world works. When Congress legislates, they are guided by whatever social dynamics are most dominant at the time. Law students, by studying these social dynamics, will be able to anticipate how and why a law was formed, and will subsequently be able to understand how to use their knowledge to facilitate promoting their clients' interests.

Conclusion

Arthur Leff’s characterization of the nature of lawyers asserts that lawyers, in order to implement change, must have an immense awareness of the past and present. The knowledge that is essential to a lawyer consists of more than knowing and learning the law. Consequently, a law school student should be exposed to more than judicial opinions. If the law school curriculum also consists of social science and places a greater emphasis on non-adversarial social relations, the law school student will develop an understanding of human interaction that will be crucial to his serving as an advocate.

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