Law in Contemporary Society
Prompt: (1) In terms of effecting social change with words, what can lawyers accomplish that novelists or journalists cannot? (2) If lawyers possess a unique ability to effect social change, does it stem from their knowledge of, and proximity to, power structures?

Authors and journalists effected grand-scale change by laying the groundwork for many prominent social reforms and by successfully shaping American public opinion Examples: (a) Rachel Carson - environmentalism, (b) Upton Sinclair – federal regulation of food items, (c) Broadcast journalism and the Vietnam War

Authors and journalists seemingly possess greater power than lawyers to effect change; in Arnold's terms, they seem to be able to challenge, or even alter, the popular "myths" that lawyers have to operate within

Alternatively, this perception may have less to do with actual power than with the relative visibility of writer/journalist achievements vis-a-vis attorney achievements

-- MichaelHolloway - 10 Mar 2009

One reason lawyering might be more effective in enacting social change is its proximity to enforcement. Many journalists have facilitated change, but ultimate enforcement is difficult. While the lawyer has the potential to use the power of the state against the majority, the journalist might need to convince the majority that change is required. For instance, assuming Professor Roubini had solutions as well as predictions, a lawyer might have been able to enforce change against the majority that believed the economy was in fine shape. As it turned out, of course, his ideas in 2006 fell on mostly deaf ears and little was done.

The lawyer must, of course, also be persuasive. Also, the journalist can shed light on issues and help the lawyer's cause. But when push comes to shove, it appears that the lawyer can more readily utilize the power of the state.

-- KeithEdelman - 28 Mar 2009

Attorneys possess more legitimacy and lay prestige than journalists which makes audiences more receptive to their attempts at societal change

Tremendous temporal and monetary constraints, as well as consumer preferences, which prevent journalists from engaging in the comprehensive treatment afforded by attorneys and required for the rectification of the most pressing injustices.

In journalism, stories with the potential to be influential are buried in the back of newspapers or ignored when highlighted

Attorneys are provided with more tools and opportunities to, not merely identify a need for, but realize change

Examples: advocating for a client at the present, pursuing class actions, negotiating settlements, collecting evidence, carefully crafting appeals, applying past experiences to future analogous experiences.

-- UchechiAmadi


Eben mentioned an article in the NYT about medical students who did something very risky and courageous.

Medical students saw something that was not right and collectively advocated for change using words

Eben recognized the same potential in law students (e.g. changing the grading curve) but noted their inaction.

If law students are risk-averse, isn’t it reasonable to assume they would continue their risk-aversion after becoming lawyers?

-- AlfianKuchit - 13 Mar 2009

Lawyers are trained to understand the intricacies of society that most people do not care about

Generally, this arrangement relegates lawyers to a place outside the public eye which explains the broader influence of journalists

Fortunately, this arrangement creates a significant role for lawyers that could reflect positively on the profession: explaining the relationship of these intricacies to normal life in a way that clarifies complexities for laymen.

I'm drawing on the interview Jon Stewart had with Jim Cramer about the role CNBC could have had during the recent economic crisis. -- AaronShepard - 24 Mar 2009

In seeking to crystallize their differences, we must not over-simplify the careers in unhelpful ways

The law is compromised by its close proximity to authority and the conservative pressures emanating from it.

The law is the state speaking and legal battles are waged over the precise meanings of words whose content was largely determined by narrow interests (lobbyists etc…)

The law contains an essential paradox: on the one hand it possesses a coercive power to adjudicate the problems of a people, which gives it a capacity to effect change perhaps superior to journalism; on the other, the various limitations (e.g. standing, political question doctrine) and highly specific language of the law, itself shaped by the conservative energies we oppose, hinder its operation in ways from which journalism is immune.

Ultimately, effective advocacy has to move over multiple channels, and meditation on what law can or can’t do in relation to journalism risks othering one of the occupations and reducing our own abilities to think creatively and work towards change.

-- ScottThurman - 25 Mar 2009

The restrictions on the use of language lawyers face, including those which Scott identifies, are a primary source of the power and legitimacy attorneys wield. When lawyers speak, their legitimacy is based in the idea that they are constrained by the law to be precise, and to have some established principle, precedent, doctrine, (the state, as you rightly say) to back up their claims. That’s why anyone listens to lawyers (when and if they do) at all.

When attempting to effect social change, lawyers must be at their most creative. For example, innovatively using centuries-old legislation (the Alien Tort Claims Act of 1789) to litigate in U.S. court human rights abuses committed abroad.

If social change, as Scott says, “moves over multiple channels,” effective lawyering will require a nuanced understanding the potential and limitations of the power that lawyers wield. This understanding can help us work more effectively with other worthy occupations to advance our aims.

Example: the immediate result of Sinclair’s Jungle critique of the institutionalized exploitation of the working class was public outcry – the lasting result was the passage of the Meat Inspection and Pure Food and Drug Acts (1906);

-- LeslieHannay - 26 Mar 2009

Simple and concise language is often more effective than formalistic, overly-precise lawyerspeak. Context and intended audience is an important consideration in choosing the words that we use.

-- MolissaFarber - 26 Mar 2009; -- LeslieHannay - 29 Mar 2009

A minor point, returning to Michael's original comment raising the question of what distinguishes lawyers from novelists and journalists: I think when we say a lawyer is someone who makes things happen using words what we have to mean is that a lawyer is someone with a law license who makes things happen using words in some way connected to that license.

For example, if a person with a law license wrote a magazine feature article intending to change public views to be more in line with interests of a client seeking to change the law, would that be lawyering? Sure, I'd say--it's done to represent a client that one's law license allows one to have. If a public relations consultant did it, it wouldn't be lawyering, even though the article may be the same.

I don't think we have to be troubled by the fact that this doesn't make the category of concrete actions that constitute lawyering entirely disjoint from other categories of concrete actions. It's still useful to talk about how having a law license affects what change one can accomplish in what way with words (and this is for the most part what everyone's been talking about).

-- GregJohnson - 29 Mar 2009

I agree with your most recent post Greg. When we take into consideration the notion that lawyers use words to make things happen, these happenings are closely related to the law license. Meaning that a lawyer unlike a novelist, can use his law license in conjunction with his words to make things happen in a legal sense. As I understand lawyering, a law license opens up both a knowledge of the rules and procedures that govern our society and the ability to affect these rules and procedures through the legal system. A lawyer, who can predict the future, can use his words and foresight to shape aspects of this potential future.

-- WilliamKing - 30 Mar 2009

I want to frame what I took to be Professor Moglen's point about this thread: Lawyering is not a subset of language; instead, we can define lawyering as all attempts to use language to make change in society. From this perspective, a lawyer's job includes not only the conventional lawyer tasks of suing people and working out settlements but also the public relation agent's task of writing a press release - the issue at the heart of the law suit - that shapes how the winning side is seen in the public eye. This definition is particularly important because it is liberating.

One of the recurrent themes of the class seems to be that there isn’t a clear line between purely legal work and the world as it exists. Indeed, purely legal work is inadequate and inert; purely legal work results in the sort of transcendental nonsense Cohen wrote against. At the heart of law and the lifeless legal figurations we spend some time learning in class is “public policy” – an innocuous word that stands for how judges and parties think the world should operate.

Little law – the professional tasks we tackle as lawyers – and language-law – affecting change in society with words – both operate in the same medium: language. To separate the two is impossible. Thus the initial fascination with Joseph’s book: it contains something very close to the real language lawyers speak in. What is most obviously troubling about some of the characters we see depicted in Lawyerland (here I think of the lawyers at the end of “Something Split”) isn’t what they do for a living, of which we learn little, but how their own speech reveals who they are (abusive, callous, obsessed with money) and how we realize that must shape their professional lives, or, alternatively, how their professional lives have shaped who they are, i.e. how they speak.

Especially as our time-commitments to the profession of the law increase, it seems natural to want to transform life into the law and everything else. Thus, the characteristics of law lined in this thread: lawyering is what we do with law in connection to our licenses, lawyering is an activity that is more intimate with society’s intricacies, lawyering is more legitimate, more in the public eye. Some of these statements may be true of little-law. But these separations, I fear, only alienate us from our ultimate powers and responsibilities. Law becomes a very narrowly defined idea, and we begin to ignore multiple opportunities to define ourselves as verbal actors; we limit ourselves to the little law’s reduced vision of change ("splitting hairs"). Our capacity to affect the world through language should not be confined to what the profession of lawyering presents, popularizes, legitimizes.

-- ScottThurman - 31 Mar 2009

I agree, Scott, that narrowly defining "lawyering" will only hinder us and limit the tools that we think are appropriate. Like Eben and others have said, a good lawyer should know a little about everything, from body language to social psychology. Trying to constrain a lawyer's role into a descriptive box reminds me of one of our first realizations: things are not what they are called, but what they do.

Lawyers can and probably should use everything to help their client. Perhaps the focus should instead be on what lawyers do, i.e. what social changes we can achieve. -- KeithEdelman - 06 Apr 2009



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r17 - 07 Jan 2010 - 21:42:33 - IanSullivan
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