Lawyers call it the race to the courthouse.
A government agency releases a new set of regulations and, at the instant of release, teams of lawyers, clerks and secretaries -- using hand signals and walkie-talkies -- relay the message to a nearby public telephone. There, another member of the team files a perfunctory appeal to the regulation.
The point of all this fury is to get a favorable forum. When multiple appeals are filed to government regulation, the court where the first appeal is lodged usually assumes jurisdiction over all appeals. And courts, like baseball players, have batting averages. Environmentalists may believe that the D.C. Circuit (in Washington) will treat their complaints most sympathetically, while industry groups often prefer other circuits -- say, Louisiana for oil producers.
All this is as arbitrary and silly as it seems. With two or three teams speeding to different courts, the race may be over in seconds. Years may then elapse as different courts, pestered by rival lawyers, debate who won the race. eBut, absurd as it may be, racing stands as an apt symbol of the state of the legal profession today.
What has happened in the last decade goes well beyond the law itself. The almost insatiable demand for legal services, coupled with high earnings for attorneys, is draining a disproportionate share of the nation's brightest, most energetic and ambitious young people into a profession that is largely passive and unproductive.
In the 1970s, the number of practicing attorneys increased, according to the Census Bureau, more than 80 percent to 499,000. With a working population of about 100 million, that means that about one of every 200 workers is an attorney. In 1940, it is roughly one in 300 -- a ratio that prevailed for the next three decades. Even the recent increase understates growth, because "paralegals" (in effect, the lawyer's batboy) have mushroomed into a separate occupation.
Americans apparently require more attorneys than any other major country. Japan and Britain have populations and work forces about one-half and one-quarter that of the United States. At our rate, they would have 250,000 lawyers. In fact, Japan has 15,000 and Britain (where there are reports of a surplus) has about 50,000.
Aside from doctors -- where the issue is unclear -- lawyers are probably better paid than any profession in the United States. No one knows the average earnings of attorneys. The American Bar Association surveyed its members in 1979 and found an average of $36,000, but, given the recent influx of young attorneys, this may provide a misleading picture. A survey of 470 large and medium-size firms by the consulting company of Altman and Weil found the average partner earned $83,000 and the top quarter more than $100,000 each.
Given the normal mechanics of supply and demand, you might expect that such a large increase in the supply of attorneys would lead to a glut and exert strong downward pressure on legal fees. But, though there are occasional signs of distress, the picture is mostly one of prosperity. American lawyers seem to have developed an innate ability to generate demands for their own services.
The immediate sources of this boom are close at hand: the explosion of federal regulations and the never-ending expansion of old legal doctrines into new territories. From medical malpractice to prisoner's rights, the legal profession is now treading heavily where it once ventured only lightly or not at all.
But the ultimate sources lie deeper, well beyond the level of mere ambulance-chasing, though there is some of that. Americans (possibly alone among the world's inhabitants) seem to harbor the idea that if there is a problem, then there is -- or ought to be -- a law, regulation or legal doctrine to solve it. This conviction seems born of an optimistic belief in an ultimate standard of fairness, of finding clear lines between right and wrong.
Once you have accepted this idea, you have unleashed a process that, in the end, becomes suffocating and self-defeating. The "law" becomes ensnarled in its own procedures and contradictions, evolving increasingly as a reality unto itself and divorced from the everyday realities that it is intended to address. i"Racing" represents an extreme illustration of this legal narcissism, and if it is someday remedied by a new rule or procedure -- as it surely will be -- it inevitably will have worthy and wasteful successors.
Because no society has an unlimited supply of talented people, this is a serious matter. Just how serious is impossibel to say, but the surge in the number of lawyers has clearly coincided with the slump in the nation's productivity.
Since 1970 there has been an 83 percent increase in the number of attorneys, a 15 percent increase in the number of engineers, a 25 percent increase in the number of laborers and a 13 percent increase in productivity. However in the 10 years previous to 1970 there was a 25 percent increase in lawyers, a 40 percent increase in laborers, but a 32 percent hike in productivity. The figures for the 1950s decade also show the same trend.
No one (certainly not a lawyer) could claim anything as sweeping as cause and effect, but the raw numbers give cause for reflection. And there are real-life parallels, cases that have become hopeless and embarrassing testimony to the legal profession's capacity for regenerating monumental waste.
Perhaps the best example is U.S. vs. IBM, an antitrust case begun in 1969. Eleven years later, the trial isn't finished; unless it's dropped, the case may last another five or 10 years. In discovery procedures, IBM has produced in this case and related private antitrust cases no longer than 66 million pieces of paper. The 3,000 depositions in the cases cover 6,000 days (16 years) and run to more than 600,000 pages.
Meanwhile, the computer market continues to grow at a furious pace, with new companies -- here and abroad -- entering all the time.
The tragedy of all this is not simply the huge diversion of psychic energy and corporate time but the effect on attorneys themselves.
Any profession has its share of bums and slackers, but one general criticism that can't be made of lawyers -- especially young ones -- is that they don't work hard. On the tortous path from associate (which means you get a salary) to partner (which means you share in the profits), many virtually chain themselves to their work.
But it is, by and large, unfulfilling work. The creative juices are strongest in most people when they are young, when they don't have the experience to know what can't be done, when their imaginations are brightest, when their physical strength is at is peak.
The legal profession ignores and abuses life's cycle, and the young lawyer is usually employed in what most charitably can be called glorified clerking: researching precedents, writing first drafts for briefs, settling minor tax and contractual problems. The lure lies in the work than in the ultimte promise of security and affluence.
Perhaps this sequence is as it ought to be in legal profession, where experience is as much valued as imagination. But the problem is that there are simply too many lawyers. They channel their creative impulses into widening their own authority by devising new doctrines of law and regulations. In this, governement and private attorneys differ not a wit.
Any working society needs law and custom to resolve conflicts and hold things together. Being an amalgamation of so many nationalities and cultures, America may rely on law more than most. And the law, changing to reflect the changing demands of society, has generally performed this role well. But when the legal system develops runaway tendencies, as it has today, it becomes a parasite on society and, more important, throws the law itself into direpute.