Lawyers, heal yourselves!

My work at New Civil Liberties Alliance involves reining in the Administrative State. Every day brings new revelations of the vast sweep and deep tentacles of the modern Administrative State across every level of government.  Do you know that the federal government does not know how many administrative agencies it has? Really. It taxes and regulates us into stupefied submission, often retroactively enforcing unwritten “rules” that bureaucrats make up as they go along, and yet that same government cannot even account for its own size and the scope of its vast domain.  Like a modern Satan on the mountaintop, the government deigns us only a sweep of the hand to define the kingdom.    Can you imagine its response if you similarly broad-brushed your tax deductions or filed with any agency compliance that said you were unable to quantify something as important as the scope of your business, divisions or production?

This disturbing and asymmetrical state of affairs flows from an enduring, seemingly irrepressible tendency for human political nature to amass and abuse power, an impulse that bubbles up, whack-a-mole fashion despite the careful design by the Founders over two centuries ago, to prevent such authoritarian rule.

It’s an exciting time to be doing this work.  First legal scholars, then politicians, and now a new generation of Americans not inured to the mind-numbing tyranny of regulatory control, are getting woke—and taking a fresh look at state and federal constitutions. Courageous thinkers, individuals and entities are starting to enforce state and federal constitutional mandates for separation of powers, due process of law, and insisting on their civil liberties.  Much, much more remains to be done, but there is also much reason for hope. 

Unless you listen to the lawyers….

Counterintuitive Contrarianism

Even as advances are being made in reconsidering administrative power, delegation and deference doctrines, a drumbeat of gloom and pessimism permeates the media reporting, particularly in the specialized legal press.   No sooner does a positive case development or regulatory cutback occur than some “expert” in the field opines that nothing will change and that it will be business as usual in Washington (and in state and local swamps.)  Why is it that every time a constitutional parchment barrier is enforced, a chorus of law practitioners who are putatively on the side of the unconstitutionally overregulated targets chimes in to say the status quo is just fine and the “business” of regulation will not really change?

This intransigence is the great, dark, dirty, secret that explains a good deal about our march to serfdom. To understand this counterintuitive, counterproductive to say nothing of unethical, drumbeat, you need to know how the legal profession works.

Law Firm Economics

One of the challenges for young attorneys is to find a niche, a secure, recession-proof, field of law.  Lawyers at law firms, large and small, do not share turf willingly, so if you seek to concentrate in appeals, or litigation, or any traditional specialty, chances are some other lawyer is clinging to the field with all his or her might.   You are welcomed as a worker bee, but your chances of advancement to partner are historically, statistically and demonstrably very slim.

So, what’s a young lawyer to do?  Find a new and upcoming field of government regulation and specialize.  Young, talented lawyers seeking to build a career sensibly enough, often gravitate to some “new” field like environment, employment, new discrimination theories, or class action.  There they don’t risk extermination at the hands of their senior colleagues, and in fact offer a knowledge or skill set the aging Titans lack.  The established lawyers won’t feel muscled in upon and will pull in their sharp elbows for younger lawyers who make their name in novel, perhaps even legally dubious, areas of specialization.

Or, better yet, a young lawyer can seek a government job and thereby use public resources to create his or her own niche area of law—especially in expansion of regulatory power.  When you take this path, who are your real partners?  The government lawyers seeking to expand their control over the lives of Americans—and at the same time hand you a full-time job, whether in or out of the agency— prosecuting or later defending people caught up in this maze.

Am I describing all government lawyers?  Of course not.  Government lawyers play an important, crucial role in enforcing laws passed by Congress and state legislatures, and when they confine their work to that role—with vigilant attention to their ethical and practical duty to employ discretion, wisdom and judgment before ever wielding the power of the state—they serve in the finest traditions of the law.

But the profession should be candid that lawyers are attracted to government jobs because they offer training in a specialized area while enjoying a level of job security and more importantly, power and future employment unavailable in the private sector.  The state is a subsidized political plaintiff, driven by interest groups, ideology and its officers’ political and career ambitions.  Its arsenal of force—consent decrees, injunctions, civil investigative demands, industry bars, disgorgement, fines, civil forfeiture, debarments, license revocation and even criminal prosecution is unavailable to private litigants. After a few years in government, an attorney conditioned to use or abuse such powers can sell his or her government experience to land a job with a firm they might never have been hired at otherwise.  Worse yet, they can peddle such “expertise” and connections as a way to attract clients desperate for insider help to extricate themselves from the government web of power their own attorney helped to create.

My Own Lawyer Sold Me Out

Among the saddest refrains we hear when interviewing companies or individuals caught in the snares of the administrative state, is that they are strong-armed into submission by their own lawyers.  These stories run the spectrum from the predictable—a fast, cheap settlement is preferable to the steep and debilitating costs and demands of a full-blown defense—to disturbing tales of defense lawyers working in league with the regulators to create a body of law of regulation by enforcement or settlement that works as a full-employment act for the former government counsel turned-defense-counsel.   No wonder the drumbeat of pessimism and business-as-usual from those so deeply invested in the regulatory regime.

Economic studies show that the bar has a vested interest in the expansion of legal liability and regulation: “Litigation is profitable to lawyers … most especially to plaintiffs’ attorneys. Defense attorneys also benefit from an increased demand for their services when there is increased litigation.”[1]  Those economic studies both predict and prove that the law develops “to favor the interests of attorneys.”[2]

Nothing New Under the Sun

This is not new. Charles Dickens’ devastating take-down of the Charybdis of Chancery said it well over 160 years ago:

The one great principle of the English law is to make business for itself.  There is no other principle distinctly, certainly, and consistently maintained through all its narrow turnings. Viewed by this light it becomes a coherent scheme and not the monstrous maze the laity are apt to think it.  Let them but once clearly perceive that its grand principle is to make business for itself at their expense, and surely, they will cease to grumble. …

“Repeal this statute, my good sir?!”  Never, with my consent.  Alter this law, sir, and what will be the effect of your rash proceeding on a class of practitioners very worthily represented, allow me to say to you, by the opposite attorney in the case, Mr. Vholes?  Sir, that class of practitioners would be swept from the earth.  Now you cannot afford—I will say, the social system cannot afford—to lose an order of men like Mr. Vholes.  Diligent, persevering, steady, acute in business.  My dear sir, I understand your present feelings against the existing state of things, which I grant to be a little hard in your case; but I can never raise my voice for the demolition of a class of men like Mr. Vholes.”[3]

Candid recognition that the bar, its professional organizations, the legal academy, elements of the judiciary and the vast minions of the administrative state are steeped in professional self-interest is essential to recovering a government that makes its rules of law in legislatures alone, with the executive confined to enforcing those laws, and a judiciary sworn to decide those questions in an independent, impartial and unbiased fashion protecting American’s civil liberties and right to due process of law.

 Written by Peggy Little