We've tentatively defined lawyering as "making something change in society using words." I think about this a lot, both in and out of class. Obviously, there are many ways to make change in society using words; this is something not only good lawyers, but also good journalists and novelists do. For me, that raises the question: what can lawyers contribute to making social change that novelists and journalists can't? Does our usefulness lie in our knowledge of, and proximity to, structures of power?

I bring this up because the groundwork for many of the prominent social reforms of the last century seems to have been laid by other kinds of writers -- Rachel Carson and Upton Sinclair, for instance. In the realm of foreign policy, simply by showing people what was really going on, journalists helped turn American public opinion decisively against the Vietnam War. This seems to have impacted Vietnam policy, and foreign policy in general, far more effectively than lawyers ever could have.

Of course, these other kinds of writers write for a popular audience, while lawyers seem to write mainly for other lawyers, so it's understandable that their achievements are more visible to someone like me. Still, I wonder if this prominence corresponds with their greater real power to make change happen. In Arnold's terms, they seem to be able to challenge, or even alter, the popular "myths" that lawyers have to operate within. In any case, I want to know what we can accomplish that the novelists and journalists can't. What do you think?

-- MichaelHolloway - 10 Mar 2009

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I think what separates us from journalists is both our legitimacy and the ability to make our use of words only the first step of the process. I studied and worked in journalism as an undergraduate and now when lawyers ask why I decided to pursue a legal career, my answer is always the same; as a journalist, I researched the issue, interviewed the sources and crafted the story in a way that would prove most effective to my targeted audience. It was a fun and exciting way to convey a story, but the problem I always ran into was that I didn't want to stop. When addressing a difficult issue, I would write an in-depth piece and submit it under deadline, but there were always questions that remained unanswered, interviews that got cut and issues perhaps too controversial to be addressed. Because the time and monetary constraints on journalists are tremendous, all were left for someone else to take up. In some cases, this was other media and in others, it was the general public. Far too often though, stories having the potential to be influential were buried in the back of the newspaper or ignored even when highlighted. "If it bleeds, it leads," my editor would always say. As for the ongoing problems of covert discrimination, unfair housing policies... injustice in our society, no one cared; they didn't want to hear it from a journalist and most certainly didn't want it to crowd their sports sections.

The difference I see between the professions is that lawyers have far longer to go before stopping. If a lawyer researches an issue and "presents for publication" to a judge or jury, she is advocating for a client at the moment but also had the past opportunity to pursue a class action, negotiate settlement and collect evidence; similarly, she has the opportunity in the future to craft words carefully in an appeal or while advocating for someone in an analogous situation years down the road. As lawyers, I do think we get the layman prestige and the power. When you think about it, what could be more cool than spending your life taking the next step -- waving the red flag, screaming "hey, look what's going on" and actually having people turn around to listen?

- Uchechi

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[Note: The post above is not mine.]

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

I suppose the medical students saw something that was not quite right and felt the need to band together and advocate for change using words.

Eben then said that law students aren't doing anything that risky.

If law students are averse to risk, wouldn't it be reasonable to assume that they would continue to do so when they become lawyers?

-- AlfianKuchit - 13 Mar 2009

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The comparison between the roles of the lawyer and the journalist was fascinating to me. I think Uchechi touches on a key point, but I would go on to say that I think lawyers are trained to understand the intricacies of society that most people simply do not care about. In general, this relegates lawyers to a place outside the public eye, hence the broader influence that journalists have. However, when specific intricacies cross over into normal life, I think lawyers could have a significant role in explaining the situation to laymen. I think this would provide a more clear picture of the complexities with which we live.

If this came off a bit too obscure, I'm drawing on the interview Jon Stewart had with Jim Cramer about the role CNBC could have had during the recent economic crisis. I think lawyers would be perfect for such a role, and that this could also benefit the public perception of the profession.

-- AaronShepard - 24 Mar 2009

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I too am fascinated by the difference between lawyers and others who change the world through words. But in pursuit of crystallizing that difference, we may be over-simplifying these careers in unhelpful ways.

Mike, I think you're very close by saying that lawyers' relationships to "structures of power" define the occupation vis-a-vis writers, journalists, etc. But such a close relationship may not be advantageous. While all language is to some extent a product of the various machines of power, law seems to be to be trapped by its very proximity to authority. Law is the state speaking. Indeed, many legal battles are waged over what exactly a word or a phrase means; the battleground consists of a history of how that word has been formulated by various interests: lobbyists, legislatures, and advocates thinking only of their clients. The language of law is comprised and compromised by these pressures.

When we speak, as Alfian does, of lawyers being “risk averse,” I think we touch upon the essentially conservative nature of language-as-power. Here, then, is the essential paradox of the law – the law directly intersects with people, adjudicates their problems. This intimacy, this raw coercive power, gives law the immediacy and the urgency that Uchechi uses to differentiate law from journalism. But along the axis of pure creativity, law is much more restricted than journalism. Unlike investigative journalism, law is limited in what sort of problems it can handle, and as a threshold issue (i.e. the problems of standing and political question) the law is simply unable to deal with a lot. Yet law is even more restricted – our very ability to frame our clients’ arguments is limited by the parameters of a highly specific language that has been shaped and warped by generations of lawyers and legislators. At the heart of the language of law are the same energies – industry, the government, the ruling classes – that we are opposing. Simply said, lawyers are not as free to use language as others.

Ultimately, I think that 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

It’s an interesting point, Scott, that in using language, lawyers aren’t as free as others. I would point to this as the very source of the power that lawyers 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.

I am not clear on where the axis of pure creativity comes in – are we talking about addressing the ills of society? Lawyers, especially when attempting to shove the machinery of state an inch or two in the direction of positive change, must be at their most creative. One example that springs to mind is the somewhat recent, successful resurrection of the Alien Tort Claims Act of 1789 (one of our country’s oldest pieces of legislation) to prosecute, in the United States, citizens of other countries for human rights abuses against their own people.

The immediate result of Upton Sinclair’s novel was public outcry, but the important, lasting result was the passage of the Meat Inspection Act and the Pure Food and Drug Act of 1906 (passed by the government with the cooperation of industry, the ruling classes). What was opposed was a behavior: the institutionalized exploitation of the working class. The mechanism for change moved, as you say, “over multiple channels.” Would Sinclair’s contribution have been such a success without its legal consequences? It is important, I think, for us to understand the nature of this tool that we are learning to use, in its limitations as well as its potential, so that we can work effectively with those other worthy occupations to advance our aims.

-- LeslieHannay - 26 Mar 2009

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.

At the same time, Leslie, using simple and concise language is often considered to be mark of an effective attorney from a trial advocacy perspective. Attorneys in trial practice are usually instructed to abandon their formalistic, overly-precise lawyerspeak to better make things happen for their side. I'd imagine lawyers attempting to communicate with the general public would adopt a similar strategy.

-- MolissaFarber - 26 Mar 2009