Fixing the Inside from the Outside: the Need for Creative Lawyering to do Justice to All

• This draft is not an improvement, I think, but rather an amplification of the problems in the first draft. The first draft had three central problems with its argument: (1) the "innocence" of "losers" cannot be assumed in demanding Pareto-superior social policy; (2) the people who "play by the rules" are playing by rules that specifically say that the rules can be changed anytime; and (3) given (1) and (2), there's no moral entitlement in the established distribution of powers, rights and assets to oppose to the moral entitlement of those who have not enough. The present revision doesn't address any of those points successfully. Without any difficulty I could ind you a score of cases from half a thousand years ago stating flatly, as an uncontested proposition, that no one has a property right in a rule of law, meaning that no one has a vested interest in the rules. That's been the rule so long that only a law student could claim not to know it, and everyone who plays by the rules is aware that the rules can be changed. But you not only ignore this point, you build your whole draft around treating the rules as property, so you can complain about a Takings Clause case. Of course, to say that the "problem is well illustrated by _Kelo_" is true only if the problem you are talking about has a property right in it, which it doesn't.

• And then, unfortunately, you misstate what's going on in Kelo. You lament that peoples' expectations of lifelong possession are defeated. But that's true in every exercise of eminent domain, and if we adopted that point of view, the takings clause would prohibit all takings, not require compensation. That's of course not the law. What's at stake in Kelo is whether the reason for the exercise of eminent domain, namely to increase development and enlarge the tax base, is sufficient justification to force the current holders to sell in return for full current market value. The issue is not whether New London can condemn the property for public use—everyone except you, Ayn Rand and the younger, less sensible version of Richard Epstein thinks that question was settled even before the Takings Clause was written. The issue presented in Kelo is whether "public use" includes forcing a sale at full market price to a private profit-making real estate developer to do something with the land that will enrich the public by paying more taxes. Oddly, you would find that no one believes the State is prohibited from forcing a sale to a private non-profit organization that will to a lesser extent enrich the public by paying fewer taxes. Columbia University, for example, can use eminent domain to acquire land on which to build in West Central Harlem, forcing sales at current market prices to the University (which stupidly paid current market prices when those prices were much higher than they are now), and no one would expect the Supreme Court to be at all concerned. So your analogy, which was a poor one in the first place because it ignored the central analytical issue you needed to face, wouldn't bear the weight intended because you got the case wrong.

• Evidently, the right way forward is to leave this cul de sac behind, and to return to the central problem you were trying to deal with. The intuition that social change has a moral obligation of solicitude for the deserving rich is strong in you, as it is in some people. You do not find, as others do, something self-evidently appalling about advocating on behalf of those who find it easy to live comfortably from day to day doing nothing about the vast majority of humanity that has nothing. Well and good. Now you wish to bring that same sensibility to your study of law, and your particular effort at present is to explain why people should be more moderate in their efforts to change social life and the distribution of rights, powers, and assets because too serious an effort would result in "punishing" those who have a settled expectation of continuing benefits from existing rules. I've explained why the theory that the propertied have property in the rules is untenable—it's descriptively false and normatively trivial. You need to use a different argument to sustain the proposition.

Fixing the Inside from the Outside: the Need for Creative Lawyering to do Justice to All By: Eric Soehnlein

In examining the ways legal thinking develops and the way that thinking interacts with social constructs, we have failed to appreciate the problems of transitional equity that inevitably flow from changing the law. Just as Holmes cautioned that judges too often failed to “weigh considerations of social advantage” in the way they reasoned, we must be careful we don’t gloss over issues of transitional equity that arise when we try to change the world. Those changes will affect people who (whether they chose to buy into it or did so unconsciously) ordered their lives around activities the law had previously encouraged. Unfortunately, bright line rules in legal thinking or complete reliance on the protections of the political process don’t guarantee people are treated justly when we try to make the world a better place for all (and inevitably make it a better place for most). As lawyers we need to be astute as to who wins and who loses, and when those people are treated unfairly, we have to think creatively to use the law for just outcomes rather than mere just processes.

Although much is made about the way judges reason to decisions, even the most “outcome oriented” approach to reasoning will not always insure justice for all. Take the implications of Felix Cohen’s approach to legal reasoning. Cohen asserts that when courts merely conduct strict, mechanical adherence to precedent it leads to disjoinder between legal rules and underlying social reality. Cohen advocates that judges rest their decisions on a “functional” method, crafting legal rules based on social and ethical values. Although Cohen is undoubtedly correct in asserting that law should correspond to social reality (e.g. what people really value), his account ignores that there might be a value in adhering to precedent for its own sake; namely that individuals within a system order their lives around legal rules that encourage certain actions and protect value. In short, (and Veblen’s discussion of what activities various classes choose to pursue is instructive here) legal rules have encouraged well meaning, hard working people to play our societal game by its rules to “win.” Though there is a natural rejoinder—namely that if something is “valuable” it will still be protected in accordance with the underlying social values of society (perhaps even becoming law through custom)— change that comes in accordance with Cohen’s approach leads to uncertain outcomes and perhaps it’s own evil. If a judge weighs all “social considerations” and rules according to a utilitarian maxim, some people’s rights or privileges have to be sacrificed for the good of others.

This problem is well illustrated by Kelo v. City of New London, 545 U.S. 469 (2005). There, following the state’s designation of the city of New London, Connecticut as a “distressed municipality,” the city proposed a large-scale plan to replace a faded residential neighborhood with office space for research and development, a conference hotel, new residences and a pedestrian "riverwalk" along that would neighbor a new development in the city by Pfizer. When fifteen of the homeowners in the affected community refused to sell their homes, the city condemned the properties, and the residents filed suit in state court for a violation of the Takings Clause. New London’s actions were ultimately upheld by both the Connecticut Supreme Court and the Supreme Court of the United States on the grounds that the taking was for the permissible “public use” of “economic development” (increasing jobs and tax revenue, as per Justice Stevens’ opinion)—this in spite of the fact that the property transfer ultimately resulted in private rather than public ownership.

The result in Kelo strikes at our most fundamental notions of fairness. People had purchased property—indeed, perhaps had been encouraged to purchase property through societal incentives—in expectation that they would have that property to live so long as they chose. Not only was this assumption ultimately erroneous, but their divestiture came about from a decree of elected members of local government, thus showing an inability of those individuals to protect their property through the political process. The natural rejoinder to this problem, namely some sort of “rights thinking” that would assert that some individual rights cannot be abrogated regardless of what is at stake for the rest of society, leads to an even worse result. There are obviously situations in which the rights of individuals must yield to the public good (e.g. harassing, threatening or otherwise harmful speech, pollution or abuse of property rights), and to argue that such rights are off limits absurd.

So what’s the solution? While Kelo demonstrates that neither political nor judicial constraints always result in fairness to all, matters of social advantage are perpetually weighed by judges and political branches. At the same time, we should remember what Arnold informs us of -- men are born into society and espouse its principles, even if the principles have little to do with corresponding action. Thus, assuming ethical conduct, someone who conformed to those rules, while not necessarily purely “innocent” of misconduct at all times, certainly deserves some protection when the system they bought into goes up in smoke. This is consistent with Arthur Leff, who asserts that when men are forced to leave a relationship they need a degree of “cooling out”—a weaning off, or way of saying goodbye (what firms are doing to deferred first year associates?).

The aforementioned tenets of judicial reasoning and political process have been designed (after hundreds of years of thought by smart people) to work toward justice, but they can’t guarantee it in all cases. Although academia often encourages law students to think about problems in terms of “process solutions,” it is necessary we don’t lose sight of the small margin of people who get squeezed when we try to make things better. Although we’re fortunate enough to have to think about the academic exercise that is “the law,” as lawyers we have to be willing to work toward just outcomes, not mere perfect processes. As jobs 160k jobs vanish and Biglaw fails, I urge you to remember that it was fixing these inequities that brought you (or at least that brought me) here.

• Oddly enough, the losers you are concerned about being nice to are all used-to-be winners, and you haven't explained why we should be nicer to them than they were to the losers over whom they triumphed in the past.

• You treat the losers as innocents: the essence of your case about our tenderness for them hinges not on their being losers, but on their being innocent, as though the history of politics was the history of protecting innocence. What if the losers are not innocent? What if they have shown no moderation in their treatment of those whose losses were their now stored-up gains?

• If the illustrations you choose are really the right ones, we are concerned that owners of state-protected interests (property, quasi-property, etc.) will not be sufficiently awake to the threat or sufficiently powerful to protect their own interests, and you are advocating that "we"—who are presumably the thinking men—should therefore be more respectful of their property rights lest their own efforts be too few to prevent injustice. Some analysis of the circumstances under which this phenomenon might be expected to occur would be helpful.

• In short, it seems to me that you are presenting an argument for conservatism that depends primarily on stimulating tenderness towards those who have been practicing the rule of the few over the many. This hegemonic sentimentality feels very Viennese to me. But this is not the late Habsburg monarchy. Here when we give more than a trillion dollars to capitalists in order to take the smart out of their skinned knees, we at least reserve the right to look longingly at the lampposts by the way.

• So what in the end is the point of the exercise? You have said, I think that doing justice requires hearing and understanding, thus sympathizing with, all sides. You have said that too exclusive a focus on the view of the victors makes bad social policy regardless of the justice of the victors' claim. These are truisms, and at any rate cliches. What more, in the end, net of the political preference for existing order, is the idea we can as readers sink our teeth into? Strengthen that, and you strengthen the essay. Oh, and please remember to leave blank lines between paragraphs. You make your text unreadable otherwise.

Be Nice to Losers

-- By EricSoehnlein - 27 Feb 2009

One of this course’s goals is to facilitate creative thinking about the law (the “activity of making things change with words”). However, in examining the ways legal thinking develops and the way that thinking interacts with social constructs, we have failed to appreciate the problems of transitional equity that inevitably flow from changing the law (or using the law to change society, or changing the law to mirror society). Just as Holmes cautioned that judges too often failed to “weigh considerations of social advantage” in the way they reasoned to legal rules, we must be careful that we don’t gloss over issues of transitional equity that arise when we, as lawyers, try to change the world. Those changes will affect the lives of people who (whether they chose to buy into it or did so unconsciously) ordered their lives around activities the law had previously encouraged. Take for instance the implications of Felix Cohen’s approach to legal reasoning. Cohen asserts that when courts merely do what they’ve always done (strict, mechanical adherence to precedent) it leads to disjoinder between legal rules and underlying social reality. Instead Cohen advocates that judges rest their decisions on a “functional” method, crafting legal rules based on social and ethical values. Although Cohen is undoubtedly correct in asserting that law should correspond to social reality (e.g. what people really value), his account ignores the fact that there might be a value in adhering to precedent for its own sake; namely that individuals within the system order their lives around legal rules that give and protect value. Such rules have encouraged men to cultivate meaningful trade names, or have encouraged men to establish corporations in a certain way. In short, legal rules have encouraged well meaning, hard working people to play our societal game by its rules to “win.” Though there is a natural rejoinder—namely that if something is “valuable” it will still be protected in accordance with the underlying social values of society (perhaps even becoming law through industry custom)— change that comes in accordance with Cohen’s approach inevitably undermines certainty, and change that comes from court decisions in accordance with shifting “societal values” will inevitably result in there being some “winners” and some “losers.” How we treat the losers matters. This issue is illustrated in starker terms in Thurmond Arnold’s account of “the Spirit of 1937.” There, Arnold tells of a group of “bankers, businessmen, lawyers, and professors” who in the spring of 1936 were resistant to the idea of the Interstate Commerce Commission setting rates for the bankrupt New York, New Haven and Hartford Railroad. Arnold attributes their distrust to “pure idealism” stemming from what these men saw as a “violation of the great principle that government should not interfere with business” as it had been conditioned into those men through the social institutions of American capitalism. Arnold is dismissive of the businessmen’s arguments that the “investors would be hurt” since “the investors already had suffered.” He further argues that government intervention in that instance would have raised the social benefit for all involved. Even accepting Arnold’s assertion that none of the men opposing government intervention owned stock in the railroad, and ignoring that the businessmen had a legitimate reason to be skeptical of what would be the result of government intervention (Cardozo’s fact skepticism informs us here), Arnold’s analysis fails to appreciate what these men had at stake. Having grown up in a society that taught men to seek success in old style American business, these men had not only conformed, but had excelled, pouring their wit and their labor into the activities society had encouraged. For them the specter of government intervention in private business was more than a “violation of a principle;” it was tantamount to changing the rules of the game halfway through, potentially decreasing the control over industry they had earned and presenting great uncertainty at what could come next. In an act of government they saw a threat to their livelihoods – not merely a violation of a “principle.” The fact that change creates winners and losers is not an argument against change. Undoubtedly society needs to adjust to crisis, changes in preferences, or in the world. But we must be cognizant that the transitions on our horizons inevitably will leave us with some “losers,” who lost through no fault of their own. For instance, when the government invests in Citigroup, there’s a potential that current shareholders will see their ownership interest diluted; when we advocate a lessening of intellectual property protection, we are taking legal rights and security away from someone who worked hard to develop something that, at one time, society thought was worth protecting; when we change the way grading is done at this law school we could be punishing someone who deserved a better grade their 1L year. Of course, recognizing that there’s a problem is only half the endeavor. Finding ways to deal with justice in the transition is the bigger issue – far larger than this paper. Nevertheless, our readings do give us some foundation of what must inform our treatment of losers. First, Arnold informs us that the appearance of choice in social institutions is a nullity. Men are born into them and espouse the principles, even if the principles have little to do with corresponding action. Thus, it’s inappropriate to punish someone for having conformed or even excelled in conforming to those rules (assuming ethical conformity). Second, we know from Arthur Leff that when men are forced to leave a social structure (con or not) that they need a degree of “cooling out”—a weaning off, or way of saying goodbye. Although these principles are broad, they do point to an important conclusion. When we want to change the world, we better understand who wins and who loses, and once we’ve done that we had better nice to those losers who played the old game fairly. It wasn’t their fault they played the game well, and without due concern, we might treat them unjustly.

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