It is no surprise that the professoriat and legal editorialists have reacted so violently to the attorney general's recent attack on a judiciary adrift on a trackless sea of its own political activism. Nor is it a surprise that the "public interest" bar should resent the administration's taming of the partisan political ventures of the Legal Services Corporation. In each case the administration's thrust would close off an avenue to power enjoyed by a self-righteous elite, an elite which proclaims the inevitability of judicial partisanship and the virtues of judicial creativity when cheering on its troops, but piously wraps itself in the neutral mantel of the law and Constitution when opposed ideologs respond.
Ours is a lawyer-ridden society. Our population "enjoys" one lawyer for fewer than each 600 persons; the Japanese have one for each 12,000. The chief justice recently complained about the preposterous quantity of litigation in our society. Study after study has shown that the amount of surgery in developed nations is a function not of the health needs of the population but of the number of surgeons. The same is very likely to be true of lawsuits. The superfluity of lawyers has a far more malignant effect: for each lawyer involved in litigation there is a multiple engaged in drafting, counseling, negotiating, applying, interpreting, lobbying, regulating, overseeing, reviewing . . .
My radical colleagues at the Harvard Law School bemoan the wickedness of so many of our brightest graduates enlisting in the service of corporations by joining large law firms. There is wickedness indeed, but it is not that of injustice, but that of waste. The greatest number of these talented young men and women will never once foreclose on a widow or defend the manufacturer of lethal toys. Rather they will spend thousands of well-paid hours drafting, redrafting, and proofreading to perfection documents to be forwarded to other lawyers representing other corporate clients. No society on earth relies as much as we do on lawyers in every piece of significant business. In no other country do businessmen hold their lawyers in such high esteem or pay them such large fees.
I hope that the Reagan administration's attack on the judiciary and on public interest law is part of its attack on excess bureaucracy and regulation. For the bureaucratic regulatory mentality in government agencies is only the public face of what is a far larger private bureaucracy: the legal profession. Ask the businessman--he is as frustrated and hamstrung by his own lawyers and those of his partners and competitors as he is by government officials. This is, of course, quite natural since these government officials are themselves so often lawyers, who have far more in common with their colleagues in private practice than with the persons they regulate. And here is where the Legal Services Corporation and "public interest," poverty law firms come in. These institutions represent the lawyers' reflex to cure social problems--poverty, pollution, neglect of children--by throwing not money but lawyers at them.
I do not doubt that there must be lawyers and lawsuits, particularly in a vigorous, individualistic democracy--but so many of them? Why, for instance, should banks and insurance companies not be allowed to sell will-writing services as an adjunct to their trust activities? They could use the same word-processing programs law firms use, but probably for a far smaller fee, since they would be competing for business as executors and trustees. Why should real estate brokers not draft purchase and sale agreements? Is it really necessary for the parties to domestic disputes routinely to spend thousands of dollars each for his and her lawyers? Indeed, do even merging corporations require the hordes of jurists--senior and junior partners, senior and junior associates, summer clerks and paralegals--arrayed on either side?
The lawyers' answer is familiar and predictable: without lawyers mistakes will be made, problems overlooked, occasions for conflict engendered; the crafty will take advantage of the gullible. Doubtless all this will come to pass. But can we be so sure that it would not anyway? Surely, the search for certainty, security, is a will-o'-the-wisp; the scrupulous closing of loopholes by one side merely incites the opposing side to redoubled ingenuity in opening them up. That careful draftsmanship can foreclose disputes is something only someone ignorant of human nature and ingenuity could maintain. Disappointment, passion and greed are what make for disputes.
The lawyer, like the bureaucrat, stands between an individual and direct responsibility for that individual's choices and actions. Indeed the lawyer is just a privately employed bureaucrat, an employment often made necessary by the activity of other lawyers--public and private. The cost to society in time wasted, productivity forgone, initiative dampened is enormous. To end this waste I do not propose the remedy offered by one of Jack Cade's rebels in Shakespeare's Henry VI, part 2: "Let's kill all the lawyers . . ." But we can make a start by curbing the arrogance of judges, damping down the bureaucracy, minimizing regulation, refusing to subsidize with public monies legal obstructionism in the name of social justice. The organized bar perceives this as a vital threat. Rightly so.