Activism, Administrative State, Bill of Rights, Homelessness, John O. McGinnis, Legal Formalism, Legal Realism, Leviathan, Living Constitution, Mark Pulliam, Martin v. Boise, Ninth Circuit Court, Originalism, Pro Bono Litigation, Supreme Court, Trial Lawyers, West Virginia v. EPA
It goes without saying that the legal profession played a huge role in the development and growth of the administrative state. I reviewed some history about that growth in my last post, which dealt primarily with the Supreme Court’s recent ruling in West Virginia v. EPA. It’s certainly clear that courtrooms have served as venues for many of the steps in creating the federal Leviathan we know too well today. So has a large representation of attorneys in Congress. Environmental law? Tax law? Antitrust? Labor law? Civil Rights? Bank regulation? The examples and sub-examples are numerous, and while all might have laudable dimensions, there is no question that all present lucrative opportunities for attorneys… and for manipulative abuses. The burgeoning domain of administrative law enforced and adjudicated by federal agencies was itself a by-product of growth in the array of economic and social regulation, and it too was abetted by the legal profession. Moreover, it’s not inaccurate to say that the active rent-seeking efforts of private special interests, which undergird the “demand” for public intervention and regulation, are likely as not to have been spearheaded by corporate legal departments.
Ex post losses of various kinds are effective drivers of public intervention. Obviously, trial attorneys seek redress against various harms to clients who come their way, and they manage to stretch monetary damages to absurd levels. Public intervention, however, often takes the form of ex ante risk avoidance, and attorneys frequently take lead roles in agitating for ever-greater precautions against risk. A key characteristic of these measures is that they tend to be zero- and even negative-sum in nature. That is, in this kind of world, it is not atypical for one person’s gain to be less than another’s loss. This dynamic creates a formidable obstacle to economic growth.
Country Club Subversives
John O. McGinnis puts all this into a tidy nutshell in “Lawyers for Radical Change”:
“Since the birth of the modern regulatory state, lawyers are no longer primarily the allies of commercial classes, as they were in the early republic, but instead the technocrats and enablers of regulation and redistribution. The more the nation intervenes in economic affairs to regulate and redistribute, the greater slice of compliance costs and transfer payments lawyers can expect to receive. Thus, they cannot be counted on as supporters of property rights or even of a stable rule of law. Their interest lies frequently in dynamic forms of legal transformation and the uncertainty they bring. Far from supporting a sound, established social order, they are likely to seek to undermine it.”
McGinnis highlights the legal profession’s remarkable transition from once-active guardians of personal liberty, property rights, and the rule of law to active agitators for a nation grounded in non-productive rent seeking. The populist penchant for “do-something-ism” in response to every perceived risk, injustice, or grievance plays right into their skill set. And there are vast opportunities for attorneys in regulatory and fiscal matters. Compliance and legal work-arounds are enormously profitable to attorneys, to say nothing of the many forms of litigation. In all cases, one might say, “follow the fees”.
This is not exclusively a pecuniary matter, however. It’s also one of raw political ambition and status. A spectacular and perverse phenomenon has been the legal profession’s agitation for dismantling the rule of law, denying certain rights enumerated in the Constitution (e.g., free speech, gun rights) and insisting upon the enforcement of imagined rights through novel interpretations of the Bill of Rights and its amendments (e.g, guaranteed income, “equity”), even so-called rights and demands involving demonstrable harm to others (reparations, no bail laws, abortion).
Here’s McGinnis on the legal profession’s nearly complete sellout of the original text of the Constitution:
“Under living constitutionalism, lawyers and judges are not simply servants of the law but potentially tribunes of the people, because they can choose to create new rights and discard others. In a legal world without the formal anchoring in text and precedents that characterized the lawyer’s craft of the past, innovation and, indeed, radicalism are prized as sources of power.”
There are other dimensions to the aberrant drift in the interests of the mainstream legal profession. Over 20 years ago, Mark Pulliam discussed some of these issues in “The Lawyer’s War on Law”. In that article, he decried so-called “legal realism”, which elevates prevailing attitudes about social policy and justice over legal formalism and originalism. This philosophy is used to justify what amounts to predation among trial lawyers seeking to smear the defense, especially those who suffer from unpopularity among current elites or the media. Gone is the idea of fighting for what is right under the law; instead the goal is to “win at all costs”. Here is Pulliam on this phenomenon:
“… lawsuits succeed without credible proof of injury or causation–‘junk science’ experts, paid by the hour, provide whatever pretext a jury requires–because of a combination of judge-made liability rules that tilt the playing field in favor of plaintiffs’ gripes, trial judges determined to redistribute wealth, and the brute force of endless dishonest lawsuits that seek unlimited, bankruptcy-threatening damages. Many businesses, having lost faith in courts’ ability or willingness to make rational rulings, routinely pay the equivalent of ransom just to escape the system. Most ominously, the trial lawyers have recently joined forces with state and local governments to loot unpopular industries for political purposes. Litigation is no longer just a way to bilk opponents; it is a political weapon.”
The legal realist school of thought is used as a ready excuse for nearly any form of judicial activism, including nullification of controlling statutes in election procedures, allowing lawyers and judges to run elections.
Pro Bono Subversion
More recently, Pulliam provided another example of a perverse activity sponsored by the legal profession, and in particular large law firms. In “Lawyers Cause Homelessness”, he discusses pro bono litigation and its paradoxical harms. Of course, pro bono work sounds so very good and generous. And, in fact, it can be very nice, as when attorneys offer free legal advice to those who cannot otherwise afford it. However, it is not uncommon to see these efforts used in the service of political activism. Pulliam contends that prestigious law firms use pro bono litigation as an inducement to attract young associates, fresh out of law school and full of the social justice blather taught there. How exciting to be offered a position at an elite firm with the opportunity to work on activist causes!
The case used by Pulliam to illustrate this dynamic is Martin v. Boise, decided by the Ninth Circuit Court in 2018, which he describes thusly:
“Martin v. Boise … declared unconstitutional—as ‘cruel and unusual punishment,’ of all things—any city ordinances that prohibit homeless people from sleeping or camping overnight on public property (such as parks, sidewalks, and, in California, beaches) unless the jurisdiction provides enough shelter beds to house every single ‘person experiencing homelessness,’ a burden no city will ever be able to meet. …
With a wave of the activist wand, the Ninth Circuit relieved vagrants of any responsibility to provide their own shelter. Society has this duty, and it must accept the consequences of its failure to provide cradle-to-grave care, no matter how improvident the lifestyle decisions of individual actors. In one fell swoop, in the absence of any relevant Supreme Court precedent, three unelected judges on the Ninth Circuit rendered more than 1,600 municipalities within the court’s jurisdiction powerless to curb urban homeless encampments.”
According to Pulliam, the Washington DC law firm Latham and Watkins dedicated more than 7,000 hours of attorney time to the case:
“Latham … publicly bragged about its ‘major Ninth Circuit victory’ and was honored for it by the Legal Services Corporation’s Board of Directors with a Pro Bono Service Award.”
This is a stark illustration of the depths of activism to which the legal profession has descended. And the case is hardly unique, as Pulliam goes on to illustrate. Despite the literal meaning of the term pro bono, this kind of activity is anything but for “the public good”.
Who really benefits from the kind of legalistic mayhem we see today? The written words of the Constitution are now said to mean things that are often diametrically opposed to the framers’ intent. The federal government absorbs ever greater shares of the nation’s resources. Private parties use federal power to petition for rents that could never have been gained in private markets. Laws are made by federal agencies who, in turn, internally adjudicate disputes between those very agencies and private parties. Litigation runs rampant in search of deep pockets. And elite law firms are somehow deemed praiseworthy for working to undermine safety, cleanliness, property rights, and the enumerated rights guaranteed under the Constitution.
Who benefits? Perhaps most of all it is the attorneys! The more chaotic, the better! Then again, if you’re at risk of legal trouble, you better damn well consult an attorney. We can’t seem to live without lawyers, but sadly, we can’t live free with them.