Lawyer


[. . .] I graduated from [elite university] with a B.A. in [social science major] in 1994. I was on scholarship, so I managed to graduate with no debt. Not that these things matter 20 years after the fact, but I had a 3.6 GPA and a 178 LSAT. I worked for [politician] between college and law school. I graduated from [top ten law school] in 2000. My GPA was a 3.5, which was well above the mean but not good enough for law review. I clerked for a federal district court judge from 2000-2002, during which time my law school loans were in forbearance. My point is that, although my resume wasn’t printed with gold ink when I began my legal career, my credentials were good.

[. . .]

I was laid off in late 2010, and I have been out of work ever since. There were no accusations of misconduct, no complaints about my work. The law firm was downsizing, and that was that.

[. . .] Since I was laid off, I have floundered around, applying for jobs, representing a few clients as a solo practitioner (not that that has been lucrative – think very low five figures per year), and trying to figure out “What happens to all of the lawyers?” [. . .]

From www.insidethelawschoolscam.blogspot.com, February 26, 2013

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If you’ve been online at all within the past couple of years you are probably familiar with posts like the one above, from Professor Paul Campos’ Inside the Law School Scam blog.  The problem of lawyer and law graduate unemployment have been covered recently in the Wall Street Journal, The Huffington Post, US News and World Report and the New York Times, and the bloggers at Above The Law have been discussing it for years.  It’s a complicated issue having to do with, among other things, the cost of going to law school, the fact that student loans are not generally dischargeable in bankruptcy, and the ongoing effects of the Great Recession.

Now here come the books, although the doom and gloom is not limited to recent graduates’ prospects.  First to hit the shelves was Richard Susskind’s Tomorrow’s Lawyers: An Introduction to Your Future (Oxford Univ. 2013).  In fairness to Susskind, who is a British IT consultant, he wrote about many of these issues in his earlier book, The End of Lawyers: Rethinking the Nature of Legal Services (Oxford Univ. 2008).  The relative newcomer to this genre is Steven J. Harper, a former partner at Kirkland & Ellis and now author of The Lawyer Bubble: A Profession in Crisis (Basic Books 2013).  (Both men share, apparently, a fondness for subtitles.)

The Lawyer BubbleHarper’s book is more autopsy than prescription, so we begin with it.  The Lawyer Bubble limits itself to discussion of law schools and the largest law firms (so-called BigLaw), but what it has to say about the state of the profession is pretty scathing.  Harper points to Christopher Columbus Langdell, Harvard Law School dean and founder of the case method of law school instruction, as the “essential foundation” of the problem – and the problem is that there are too many lawyers.  He says that the case method permitted law schools to abandon the time-intensive lecture-and-internship model that held sway before 1890 and turn to “mass production of attorneys.”  In turn, law schools became profit centers for their universities, all the while having little incentive to turn away applicants because student loans became essentially non-dischargeable in bankruptcy in the 1970’s.

Both the American Bar Association and the US News & World Report law school rankings have a share in the blame, according to Harper.  The rankings have become hugely influential and law school deans, although initially reticent, have embraced them.  According to Phillip J. Closius, former dean of the University of Baltimore School of Law, “[m]illions of dollars [are] riding on students’ decisions about where to go to law school, and that creates real institutional pressures.”  Yet Harper argues that the rankings are deeply flawed.  He cites incredible examples, including one in which a dean circulated a law school ranking survey similar to the one used by US News, and respondents rated the law school at Penn State as a mid-level school despite the fact that Penn State at the time did not have a law school.  He describes efforts at the University of Illinois College of Law to bolster its incoming GPA and LSAT numbers, which count for twenty-five percent of a school’s rating, which resulted in the blatant falsification of the numbers.  (The employee responsible for submission of the information was blamed, and although the law school dean was absolved of wrongdoing, the ABA censured the school, imposed a $250,000 fine, and required that the school submit to compliance monitoring for two years.)

And then there is the employment data.  Before 2012, the ABA applied an extremely broad definition of “employed,” so that when law schools provided graduate employment data, they made no distinction between working in a law firm as an associate and working in a coffee shop.  Many schools reported employment figures as high as ninety-three percent even during the recession. Yet in 2012, according to Harper, only sixty-six percent of the class of 2011 worked in jobs requiring bar membership, and many of those were part-time or temporary positions such as clerkships.  Schools made a practice of offering paid temporary positions to graduates that conveniently started before and ended just after the window of time set for employment data gathering.  When, in 2012, the ABA began to require that schools disclose such arrangements, several low-ranked schools revealed that they employed more than fifteen percent of their own graduates.  All of these factors led to a flood of incoming law students and the creation of a “lawyer bubble” not unlike the real estate bubble of the mid-2000’s.

Harper heaps his wrath upon BigLaw firms as well, arguing that they have increasingly abandoned the traditional “true partnership” model for a pure business model that values profit over anything else.  When income determines all, he argues, individual lawyers adopt a “what’s in it for me?” attitude and move freely between law firms, taking their lucrative books of business with them.  In order to hold on to their most valuable business-getters, firms offer higher salaries (or, as in the case of Dewey & LeBoeuf, salary guarantees); to make the numbers work, they cut support staff and attorneys considered less valuable to the firm.  The result, Harper says, is that BigLaw firms have become oligarchies where a small number of attorneys achieve exceptionally high earnings and the lawyers who find themselves shut out become demoralized. Harper devotes more than a few paragraphs to lawyer suicides, such as the suicide of Mark Levy in 2009.  He also details several case studies, including Dewey & LeBoeuf as well as Finley Kumble, whose failure in the late 1980’s mirrored Dewey’s.

Harper advocates for several changes: abandonment of the billable hour and “eat what you kill” systems; implementation of true “partnership” schemes within law firms to encourage loyalty and real mentorship; and implementation of mandatory retirement policies so that younger attorneys have an opportunity to move up the ladder.  He also suggests that businesses such as Axiom and other out-sourcing vendors should encourage firms to streamline their processes and learn to better utilize technology.

Technology, and the way it will change the practice of law, is squarely within Richard Susskind’s bailiwick.  Tomorrow’s Lawyers is less an indictment of the way things have been done than a prediction of how they will be, and if Susskind is correct the future looks very different.  (However, it’s worth pointing out that Susskind is most familiar with the British legal system, and that system differs from the United States’ system in significant ways, including in permitting non-lawyer investment in law firms.)

book-tomorrows-lawyersLike Harper, Susskind argues that the billable hour has had its day and should be retired.  But this would only represent the first of a number of transformations he proposes.  More traditional “legal” work should be performed by non-lawyers, in much the same way that certified nurse practitioners have taken on many traditional physician functions.  Susskind would include within this category document review in litigation, due diligence work, basic contract drafting and basic legal research.  This is work that involves more “process than judgement” and should, in time, be further commoditized so that it is performed entirely by computers.  Another proposal would permit clients with similar interests to “collaborate,” and set up a shared fully-owned “law firm” to serve their mutual needs.  He uses banks as an example, and claims that they could own a shared “service centre” to undertake compliance activities at reduced costs.  (He does not address here, I note, any conflicts issues that might come up, although presumably those could be dealt with in the firm’s operating documents.)

Much attention is devoted to the idea of commoditizing legal services.  Susskind breaks down (or “decomposes”) litigation into specific tasks, such as document review; research; strategy; tactics; negotiation; and advocacy.  He claims that although strategy, tactics and advocacy, at the least, have traditionally been the province of lawyers, he is “increasingly hearing from General Counsel that alternative providers can now take on the remaining tasks at lower cost and to a higher quality than traditional law firms.”  In some cases this involves outsourcing work to a third-party.  In others, work may be subcontracted from one law firm to another.  Susskind raises the possibility that, in the future, many legal problems will be crowd-sourced before they are ever presented to a lawyer for consideration.

Most of Susskind’s predictions involve the elimination rather than the creation of legal jobs.  He closes the book, however, with several positions he believes will be created in the future: the “legal knowledge engineer,” who will program the software necessary to perform commoditized legal work; the “legal technologist,” who will “build the foundations upon which legal service is built and the channels through which non-lawyers can access the law,” and as for what that means, your guess is as good as mine; the “legal hybrid,” who will be both family lawyer and marriage counselor or commercial lawyer and strategy consultant; and the “legal project manager,” who will oversee a project once it has been “decomposed” and outsourced to ensure that its various components are completed on time and within certain quality parameters.  (There are more, but I am finding this exhausting.)  Susskind rather grudgingly concedes that there will be “Expert Trusted Advisers” and “Enhanced Practitioners” in the future, but there will not be many of them.  He closes with advice to young lawyers, or those considering law school, to follow the example of Wayne Gretzky and “[s]kate where the puck’s going, not where it’s been.”

The Great Recession forced a lot of previously employed journalists, graphic designers and word processors to start freelancing, and websites such as Freelancer.com and Elance.com have cropped up to help match service providers with service needers.

The past couple of years have been pretty tough for lawyers, too, and not just for recent graduates. The local legal paper always has one or two classifieds advertising the availability of an unnamed lawyer to perform legal research or brief drafting for other lawyers on an hourly basis.

You might not have realized, though, that legal services may also be bought and paid for via freelancing websites, and it doesn’t look like all of the advertisers are actually lawyers.

Purely by way of example, I decided to search at http://www.Freelancer.com. I selected “Business, Accounting, Human Resources & Legal” from the menu on the left of the page, then narrowed my choice to “Legal.” First up on the list of results was “acrossthenight,” who describes himself as “an attorney with a top-tier international law firm” in Sydney, Australia.

His hourly rate is on the high end for the results I received at $65.00 an hour. “Acrossthenight” provides services including e-commerce, software licenses and agreements, business sales, investment transactions and patent applications. I suppose this is fine so long as “acrossthenight”‘s firm knows he is providing these services, but I tend to suspect that either they don’t, or that “acrossthenight” is no longer employed with the firm and is trying to make ends meet in the interim. Either way, there may be ethical concerns; generally speaking, an attorney isn’t supposed to represent clients outside and separate from his firm without the firm’s knowledge and consent, and if he is not actually employed with a major firm his profile is materially misleading. Since “abovethenight” is in Australia that country’s ethical rules would apply, and I don’t pretend to know what they provide. But if they are similar to our ethical rules in the United States, I have some concerns.

More troubling, however, are the profiles that fall lower on the list of results. Profiles seem to be ranked based upon an algorithm determined from a freelancer’s skills, number of projects completed, and positive feedback. Towards the end of my results was this profile by “pcwriter:”

“Pcwriter” is a “former prison-trained law clerk subsequently employed as criminal law paralegal with track record of preparing & ghostwriting successful post-judgment and appellate documents.” However, the title of “pcwriter”‘s profile is “Legal Lawyer, Visa/Immigration Consultant; Property Law Lawyer.” In case you were wondering if “pcwriter” had obtained his law degree after prison, it doesn’t look like it: the only degree appearing in the Resume/Education section is an Associate’s Degree obtained in 2001.

I guess my point in writing this is not to call out anyone providing freelance legal services, but to question whether, in our rush to provide quick, unbundled, “virtual” legal services we’ve gone too far. “Pcwriter” only charges $35.00 an hour, compared to other freelancers charging closer to $100.00 an hour, and lawyers in private practice who charge between $100.00 and $ 1,000.00 an hour. Someone who needs a deed drafted, for example, or assistance with an immigration proceeding will be sorely tempted to choose the cheaper service. And maybe everything will work out fine. But I do wonder, if things don’t go well, what will happen, and not only to the unhappy client, but to the reputation of the bar in general. Is there a way to provide the responsiveness and economy typified by a freelancing arrangement without discarding the attorney-client relationship altogether?

We should work on that.

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Lawyers do a lot of research.

It might surprise you to learn that poets also do a lot of research.

We tend to assume that poetry springs from the mind of the writer like Athena from the mind of Zeus: fully formed.  But not so much.  Image

From Jeffrey Skinner’s “The 6.5 Practices of Moderately Successful Poets: A Self-Help Memoir” (Sarabande Books 2012), two quotes from writers who are more than moderately successful:

I need to ground my work in particulars.  In my case this usually means a material object such as a book, or a manuscript, most recently lace.  Often a historical moment, or a specific person.  Not a made-up character – I could never be a novelist – but I try to understand all aspects of the person I am writing about the way a playwright or an actor might.

– Susan Howe

I’m usually more comfortable dealing with atmospheres and sensations than irritably reaching after facts.  “American Myth” began, really, when I was a kid, dipping into books I didn’t understand on my parents’ bookshelves.

– Kathleen Ossip

Lawyers tend to be pretty good at the first sort of research because it is the sort of research that develops answers to specific questions.  A client wants to know whether he has a cause of action based on a discrete set of facts.  We plug the facts into the Westlaw search bar and come up with an answer.  This is deep research: time spent accumulating information responsive to a specific problem.  Like Susan Howe, we “ground” ourselves in the facts presented in a client’s matter.  What we learn might be helpful to us again at some point in the future, or it might not.

Kathleen Ossip, on the other hand, relies on what we might call wide research.  She doesn’t start out with a topic to write about necessarily; instead, having read widely she draws upon what she has accumulated and comes up with something interesting, a connecting line between two points that no one else has spotted before.  And she writes about that.

Now I am going to suggest something that the lawyer marketing gurus would probably consider heresy.  Which kind of research is more important to a lawyer’s success?  I say the second, and here’s why.

The fact is that anyone of moderate intelligence with access to Westlaw or Lexis or Google can answer a distinct legal question.  It may not be the most polished answer, and you won’t want to bet the company on it, but realistically as information has become readily available online it has become less and less necessary to pay a lawyer for access to the information.   We are no longer gatekeepers because the fences are down.

The value a lawyer brings to a particular transaction is no longer information but knowledge.  Knowledge is to information as a shopping cart is to the items on the shelves at the grocery store.  A person with knowledge understands which items are relevant and necessary, which are too costly or of too poor quality, and which should be purchased and stored for future use.

This is why I pointed out in an earlier post that Justice Scalia is wrong to critique the “Law and . . .” seminars offered by law schools.  Yes, it is important to understand legal subjects in depth.  It is equally important to bring the contexts of history, culture, psychology, politics, and economics to bear on legal issues.  No legal problem exists in a vacuum.  It is nonsensical to expect that its solution should.

My background is in literature and I continue to read a great deal.  I probably average two or three novels a month, sometimes more, sometimes less.  I am certain that my reading informs my work and my thinking.  Personally I believe literature is the best source for understanding all of those contexts I mentioned in the preceding paragraph.  You might not, and would prefer to read pure history.  Or maybe you are a film buff.  Do whatever just so long as you are acquiring breadth as well as depth.

The better able we are to think and reason and exercise discretion, the better prepared we are to practice law.  These are skills not taught in law school or any CLE and not available for purchase online.  They are acquired over a lifetime of learning and they are exquisitely valuable.

I am currently preparing to take the Virginia bar exam. Although many states allow lawyers admitted elsewhere to “waive in” without taking the bar exam or to take a shorter “attorney’s exam,” Virginia requires the exam unless you plan to move to the state to practice full time.

So almost sixteen years after I graduated from law school I’m studying criminal procedure again. It’s all very different this time around, now that I have a busy practice, three children, two dogs, and an old-ish house we bought six years ago because it was a deal and we could do the renovations ourselves.

One of the quirks associated with the Virginia process is that folks taking the exam must do so in full “business attire,” which according to the dress code helpfully posted to the examiners’ website means “suit or jacket and tie for males, and a suitable dress or suit (pantsuits are acceptable) for females.”

Let me first remark that in the year 2013, it is no longer necessary to specify that pantsuits are acceptable for women. Seriously, if you are living someplace where pantsuits are not acceptable for women, you are probably living someplace where elbows are also not acceptable for women.

But that isn’t really my point. What irritates me about this requirement is that it takes no account of the fact that this is an exam, not a court appearance; no judge, jury or representatives of the press will be there. The bar examination is essentially two nine-hour days spent sitting at a wobbly hotel table in a poorly-lit ballroom with three hundred people, some of whom are really nervous and prone to excessive wriggling and vomiting. No one should care what any of these poor souls look like, and no one needs to remind them how momentous the occasion is. They already know it’s a big deal because they’ve invested three years of their lives and $120,000+ of their money (in non-dischargeable student loan debt) getting to that ballroom. Did I mention the vomiting?

I don’t want to blow this all out of proportion. I won’t dwell on the fact that the dress code smells a little Southern good ol’ boy to me, although it does; I have additional thoughts on that possibility but I won’t elaborate further.

I do want to point out that, to my mind, what’s missing in this scenario is discretion.

There’s a lot of buzz on the web right now about making law schools more practical and economical. Some states are considering, and at least one has already decided, to allow students to take the exam during their third year so they can hit the ground running once they graduate. Some are calling for schools to eliminate the third year altogether. Many argue that law schools need to provide more real world legal and business skills. Thousands of law grads from the past few years are either unemployed or underemployed right now; certainly something needs to change, and these are good suggestions.

None of the suggestions, however, account for the way the practice of law itself seems to be changing. So-called lower end services such as will drafting are becoming more and more commoditized. Why pay a lawyer even $100 for a will if you can fill in the blanks on a site like LegalZoom for $50 (or whatever it costs; I haven’t checked and don’t really want to). “Virtual practice” and “unbundled services” are just other names for comoditization. They are ways to provide widgets at low cost to people who need widgets.

And when you hear business people complaining about lawyers or the corporate legal department, what are they complaining about? They complain that the lawyers are unnecessarily risk-averse, that they shut creativity down, that they don’t listen.

I have had the opportunity to work with some really fine lawyers. What impressed me about these lawyers was not that they could consistently bill twelve hours a day but that they knew what to say, how, when, and to whom. They exercised discretion and judgment in advising their clients, and the clients always appreciated it. They understood the global picture for the client, including the way that a particular problem fit into the client’s world, and they understood that the best means for solving the client’s problems weren’t always litigation even if litigation would be terribly lucrative for the firm.

A discrete person is capable of considering all of the relevant facts and, having considered them, making the best choice among various courses of action. A discrete person is trustworthy. Law schools cannot teach discretion. Experience teaches discretion. This is why I’m concerned that so many recent grads are being shuttled into solo practice. Practicing by oneself requires the highest kind of discretion because there are no built-in checks and balances. I’m just not convinced that a guy who was a frat boy just a couple of years ago is ready to assume that kind of responsibility.

Rigid rules, guidelines and dress codes only bolster the notion that law is a sort of computer code: enter the right characters in the right order and you’ll get yourself a verdict, or a contract, or a divorce. The Virginia bar dress code suggests to the people taking the exam that if they put on the suit, they’re lawyers. Because lawyers wear suits.

But the law is not a jacket; you don’t don it one day and take it off the next. Sometimes being a lawyer means wearing jeans and a t shirt while you dig through moldy documents in a warehouse somewhere, just as it means sometimes advising your client against a course of action because you know that ultimately it won’t be good for the client. Discretion.

I’ve never been a fan of conformity for conformity’s sake, and no doubt that sentiment is at the bottom of my thinking on this. Some will read this and think I’m being ridiculous. That’s okay.

I do think, though, that dress codes and the like are emblematic of a kind of legal culture that needs to fade away for the sake of the profession. We are entering an era in which the ability to discern will distinguish us from outsourcers and software. Merely dressing the part will not save us.

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Justice Antonin Scalia commented not too long ago that law students should take only “bread and butter” classes like constitutional or international law. He recommended that students avoid theoretical seminars like “Law and Women” or “Law and Poverty.” I think there are conclusions to be drawn from Scalia’s decision to deride those particular courses of study, but I digress. Jonathan Turley, an academic who unlike Scalia has real world experience practicing law, has a good response to Scalia here.

I write this simply to point out that Justice Scalia in fact approves of at least one such seminar: the Colloquium on Law and Religion at the Center for Law and Religion at St. John’s University School of Law. I find this interesting for two reasons, I guess. First, and with snarkiness fully intended, the students lucky enough to partake of Justice Scalia’s presence will no doubt be seeking post-grad employment elsewhere, as Scalia has never hired a clerk who graduated from St. John’s. Sorry, kids.

Second, and more importantly of course, is the incongruity in advising students to avoid courses like “Law and Poverty” while simultaneously (since the St. John’s class opened in April of 2012) participating in a “Law and Religion” class at a private, reasonably elite Roman Catholic law school. It would seem that, in this case at least, the justice’s actions speak louder than his words, an interesting conundrum for one who so famously advocates for the application of textual language to the exclusion of everything else.

I am almost speechless.  Not so speechless that I can’t put this post together, but really, really close to speechless.

Today at Above the Law, lawyer-turned-novelist Allison Leotta gives us an extended, apparently serious post comparing female lawyers to hookers.

No, I’m not kidding.

Ms. Leotta is supposedly a graduate of Harvard Law School and a former assistant United States attorney, in which capacity she supposedly prosecuted sex crimes.  I say supposedly because after reading this post I seriously question her professional credentials.

Oh, I get it, it’s supposed to be amusing, this comparison that gets off the ground by pointing out that the D.C. Madam was a law school dropout.  Lawyers already only care about the causes they’re paid to care about, according to Leotta.  Why not make the big money that comes with being an escort?

Several ridiculous paragraphs follow.  Escorts make more money but have to sleep with people they don’t care about.  Prostitution isn’t good for “gender balance” because there aren’t many jobs for men.  (What?)  Lawyers are less likely to go to jail for their work.  Then some sort of argument about how it’s difficult to enforce covenants not to compete in the sex trade.

This spectacularly tone-deaf piece of ridiculopathy concludes with advice to women who might actually be trying to decide which field to choose.  Yes, it does.  Leotta advises women to stick with law because it’s safer.  Safer!  That is why we should go on practicing, ladies!  Because even though prostitution is “tempting” (her words, not mine), law is safer!  Yay!

I don’t read pulp fiction trash like Leotta’s “book,” Discretion.  I imagine that it may be found on the shelf in the grocery store check-out line, next to the 2013 horoscope guide and the latest Gooseberry Patch cookbook.  I can only wish Leotta had taken the title of her book to heart before she undertook to post this morning.

There are many reasons women practice law.  But if being a lawyer made Leotta feel like a hooker, it’s probably best she has turned her talents to fiction.  I hope she keeps them there, because the rest of us have work to do.

It is not often, at least if you live outside of Wisconsin, that you get to see judges duking it out in a public forum. When it does happen, it’s usually pretty mundane by reality television standards: one judge calls out a logical fallacy in another judge’s published opinion or politely suggests that a case could have been decided on narrower grounds. Bystanders take note and study their salad plates until someone changes the subject.

So it is not too hyperbolic to say that the recently reported exchanges between Judge Richard A. Posner of the Court of Appeals for the Seventh Circuit and Justice Antonin Scalia of the Supreme Court are the judicial equivalent of a Monday Night RAW wrestling match complete with pre-ring trash talk. Only Vince McMahon is missing, and that may be because this match is too intense for him.

It began innocently enough when Judge Posner reviewed a book co-authored by Justice Scalia and his perpetual literary sidekick, Bryan Garner, “Reading Law: The Interpretation of Legal Texts.” It’s no secret that Judge Posner and Justice Scalia approach interpretation in different ways, with Judge Posner a well-known proponent of pragmatism and Justice Scalia an equally well-known originalist. Judge Posner’s critique of the book, in “The Incoherence of Antonin Scalia,” published in the August 24, 2012 edition of The New Republic, was, well, critical. He suggested that Justice Scalia violated his own principles of interpretation by relying on legislative history in the Heller v. District of Columbia opinion he authored, in which the Court struck down handgun legislation based on the Second Amendment. He wrote that arguments presented in the book were poorly researched and that anecdotes offered to prove a point often proved the contrary. Ultimately, Judge Posner’s primary critique lay with textual originalism itself, which he argued often leads to illogical results.

Does an ordinance that says that “no person may bring a vehicle into the park” apply to an ambulance that enters the park to save a person’s life? For Scalia and Garner, the answer is yes. After all, an ambulance is a vehicle—any dictionary will tell you that. If the authors of the ordinance wanted to make an exception for ambulances, they should have said so. And perverse results are a small price to pay for the objectivity that textual originalism offers (new dictionaries for new texts, old dictionaries for old ones). But Scalia and Garner later retreat in the ambulance case, and their retreat is consistent with a pattern of equivocation exhibited throughout their book.

There isn’t much here that hasn’t been said about textual originalism before, which is why the response from Justice Scalia is surprising. (Garner’s response, posted on his own blog and as comments on various online fora, is more or less what you’d expect, although he implied that Judge Posner might no longer be his friend.) Justice Scalia started off by calling the review a “hatchet job” in a speech to 500 book tour attendees. In a September 17, 2012 interview with Reuters, he called Judge Posner’s suggestion that Justice Scalia used legislative history in Heller “a lie.” In another interview he referred to The New Republic as a “glossy,” and said that while Judge Posner’s article might fly there, it would not persuade “a legal audience.” A former clerk of Justice Scalia’s called the Posner review “wildly incompetent.”

It’s worth reading all of this within some broader context. A couple of months before the review appeared, Judge Posner also criticized Justice Scalia’s dissent in Arizona v. United States. Asked about it on Fox News Sunday, Justice Scalia responded, “He’s a court of appeals judge, isn’t he? He doesn’t sit in judgment of my opinions as far as I’m concerned.”

I’m pretty sure Teresa said something just like this on Real Housewives of New Jersey.

Both of these jurists have written extensively for legal and non-legal audiences, and both of them advocate a particular approach to constitutional interpretation, so the passion is understandable. A recent book by Judge J. Harvie Wilkerson III of the Court of Appeals for the Fourth Circuit, however, takes issue with constitutional theory altogether.

In “Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Rights to Self-Governance” (Oxford Univ. Press 2012), Judge Wilkerson discusses the pragmatic and originalist approaches as well as the “living text” approach popularized by Justice William J. Brennan and the political process theory of John Hart Ely. Ultimately, though, Judge Wilkerson argues that no “cosmic” or all-encompassing theory of interpretation is satisfactory, and he suggests that judges simply adopt judicial restraint. He writes, at page 105:

When priests forsake their raiments, shall we listen to them then? When firemen leave behind their trucks and hoses, shall we listen to them then? When plumbers cease to talk of pipes and drains, shall we listen to them then? When judges lay aside the law for policy, shall we listen to them then?

Judge Wilkerson lauds Justices Holmes, Brandeis, Frankfurter and Powell, among others, who, he writes at page 110, “were able to express inclinations about how to decide cases without claiming to have uncovered the Constitution’s Rosetta Stone.” But while he concedes that activist decisions of the Warren Court such as Brown v. Board of Education and Gideon v. Wainwright were correctly decided, he argues at pages 110-111, without providing explanation or rationale, that all of the important civil rights cases have been decided and that there will be no further need for such activism in the future. Issues such as same-sex marriage or gun control are merely “frontiers of social policy” better left unexplored by the courts. It is difficult to square Judge Wilkerson’s unwillingness to “constitutionalize” same-sex marriage with his approval of Brown other than to presume that he finds one social policy worthy and the other not. But this seems to be exactly the sort of judicial policy determination that justifies restraint in the first place.

In arguing against theories altogether, “Cosmic Constitutional Theory” is unlikely to engender a Posner vs. Scalia-style smack-down. Thank goodness. It is worthwhile reading for those interested in a more thoughtful discussion of the issues.

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