Seth Stern is an editor at Bloomberg Law and a co-author of “Justice Brennan: Liberal Champion.”
Last summer, Harvard Law School required its incoming class to complete a new online course designed to introduce them to the legal system before they arrived on campus. The 10-hour “Zero-L” — a play on the term “1L,” used to describe first-year law students — demystified the Socratic method and explained how to read a court decision, a recognition that dunking new arrivals like chum isn’t the best idea after all.
Other law schools seeking a good overview could save themselves the trouble and just assign entering students the latest book from attorney turned venture capitalist Bruce Cannon Gibney. In his 2017 debut polemic, “A Generation of Sociopaths,” Gibney skewered baby boomers, and here he critiques everything — and I mean everything — wrong with the legal system, starting with how it educates new lawyers.
He spreads the blame around. Law professors, Congress and bureaucrats, prosecutors and police, and corporate law firms all come in for criticism. Notably absent from his long list of perps are trial lawyers, the preferred bugaboo of the right.
Gibney views the legal system’s failings through the center-left prism of someone who has spent most of his career in finance at a hedge fund and leading Silicon Valley venture capital firm. (Gibney described himself in his first book as a “free-market capitalist” who favors higher taxes and more regulation.)
He has nothing good to say, for example, about clauses in contracts and online user agreements that force consumers and workers to air disputes before private arbitrators rather than in courts. Companies prefer to dispose of claims via arbitration rather than more expensive and complex class-action lawsuits filed by large groups of employees or consumers. Left unmentioned is that companies Gibney invested in early, including PayPal (co-founded by his college roommate) and Lyft, have included such mandatory clauses in their user agreements or given short windows during which to opt out.
Gibney says he set out to write a plain-English “wide-angle critique” of the legal system. The result is ambitious in scope if not necessarily groundbreaking, particularly for anyone deeply immersed in the legal system.
It’s not exactly news that law schools produce too many graduates, clerks enjoy outsize influence in judges’ chambers, trials are rare, police have become too militaristic or television-style forensics are often unreliable.
As he proved in his anti-boomer screed, Gibney can certainly turn a phrase. He dismisses the Supreme Court’s building as a “temple to erratic historiography,” the bar exam as “an exercise in mindless brutality” and the work of legal academics as mostly “turgid, intellectually slack, or fatally out of touch.”
He includes enough interesting tidbits that even those with backgrounds in law and policy will probably learn at least something. Who knew that most new judges are required to attend less training than manicurists, who need 400 hours of experience before they can take their final licensing exams in California? Or that an Israeli study found that judges considering parole requests get less lenient as the day goes on but more generous again after a snack break?
If only every serious book about law was this enjoyable.
Gibney occasionally veers into tastelessness, comparing the Senate to “a sort of legislative gas chamber.” Overall, though, the book’s tone is less bombastic than his first.
Gibney comes off as a sharp-tongued idealist who believes we deserve better than we’re getting from the justice system. If there’s a unifying principle, it’s that the public’s low opinion of our legal system is due to the fact that its many parts aren’t living up to our justifiably high expectations.
He’s at his most engaging when he applies his business mind to the civil justice system. He questions the wisdom of the U.S. judiciary relying on generalist judges who may start the day with a murder case and end it with an intellectual-property dispute. He argues that the American legal system has too much faith “in the single, omni-competent and all-powerful judge” who can competently adjudicate any subject, no matter how complicated. He notes that judges in other countries are more likely to work their way up specialized career ladders and says businesses would consider the U.S. model that relies so heavily on generalists “lunacy.”
“No CEO would dare launch a new soda without soliciting input from six dozen specialists from the legal, marketing, R&D, finance, distribution, and sales departments,” Gibney writes.
Gibney points out that law firms are constrained from innovating or becoming markedly more efficient, in part because of legal ethics rules that bar non-lawyers from owning or drawing profits from law firms. The rules mean law firms can’t tap outside funding sources such as private equity that spur innovation in other industries. “The conventional law firm model is a financially unstable, resource-destroying mess” that “reduces the average corporate associate to a document butler.”
He’s less successful when examining Washington’s dysfunctional lawmaking process. He approaches the topic from the perspective of someone who has spent much of his career in Silicon Valley, where rationality or efficiency govern, at least until it’s time to value an IPO, and then anything seems possible.
His proposed structural solutions — like increasing the size of the House of Representatives so members aren’t spread so thin — are perfectly sensible. Lawmakers in an expanded House would have more time to draft bills or read more of them, at least in theory, Gibney writes. Such structural changes aren’t terribly realistic in an era of hyper-partisanship.
Nor are his proposals for fixing the legal system by making it “more accessible, and more accountable, to those it serves” any more satisfying. Gibney suggests jurors should exercise what he calls the “the right of ‘jury nullification’ ” and acquit defendants whom they think the criminal justice system has treated unjustly.
The idea of encouraging nullification should leave most people uneasy. As Gibney himself notes, history provides too many examples of nullification being used as a tool of injustice rather than good, as witnessed by Southern jurors who refused to convict whites accused of committing crimes against African Americans. He argues that “overcriminalization and overweening state power make nullification more likely to achieve justice” today, a rationale that’s hardly persuasive.
Gibney also proposes creating informal citizen review boards, which would be empowered to review proposed laws and judge their comprehensibility. Nannies and parents should understand laws regulating the hiring of nannies, and citizens as well as police officers should be able to fathom laws governing searches and seizures, he argues sensibly. It’s just hard to imagine legislators and lobbyists ceding power to citizen ombudsmen anytime soon.
Non-lawyers and many attorneys, too, will certainly have a better sense of what ails our justice system after reading this book, even if they’re no closer to fixing it.
By Bruce Cannon Gibney
504 pp. $29