Waking Up In Legal Hell

-- First paper, Final Draft for Law in Contemporary Society By MilesGreene - 25 Feb 2018

Introduction

Felix S. Cohen begins "Transcendental Nonsense and the Functional Approach" by retelling the tongue-in-cheek fable of a heaven reserved for legal theorists, originally dreamed up by the German jurist Rudolf von Jhering. In this nirvana, the legal terms that we as first-year law students spent a year arguing about, from "good faith" to "minimum contacts," appear in their purest forms, empirically reduced to perfect definitions instead of dissent-inducing terms of art. For a first-year law student, this heaven is nothing short of divine. Imagine spending a few hours bouncing around the fluffy clouds, shaking hands with the friendly ghost of Oliver Wendell Holmes Jr., and adding some clarifying insights about the Rule Against Perpetuities to your Property outline. You might even be able to cancel your Quimbee membership. Humorously, in the original piece, for the narrator to stay in this special heaven for legal theorists, he must pass an exam. If he fails, he will be expelled to the heaven for "ordinary lawyers." One obstacle within the exam is climbing the "greased pole of difficult legal problems." Imagine this test is failed, or during your time as an attorney on Earth, you earn a place not in Legal Heaven, but in Legal Hell. How would this underworld be organized? Channeling the spirit of Von Jhering's dream, we can imagine Von Jhering's nightmare: Dante's Legal Inferno.

The Circles of Legal Hell

The First Circle: Lawyer Limbo

The vast majority of CLS students will wake up in this relatively cozy level of Legal Hell. This circle is reserved for all of the lawyers who came to law school with the passion to advance a social justice initiative, like fighting for the environment, but who ended up representing BP. These lawyers decided LRAP was too risky and their debt was too disquieting. They started by justifying their decision by promising only to trade about five years of their careers to pay off loans, but five years turned into 40. Their thirst to do well by doing good was quenched instead by doing well by their wallet. We were never able to figure out how much was "enough" and were overcome by addictions to the psychoactive substances of our choice. We may have sought redemption throughout our careers by billing hours to firm-approved pro bono clients, but we blissfully ignored our original purposes.

This slice of Legal Hell takes the form of an immaculately vacuumed office space in a Manhattan Biglaw firm. The views are breathtaking, but you never get the chance to step outside. On your desk are photographs of your smiling family, but you haven't seen your children or spouse in what feels like an eternity. Here, the residents have access to a limitless supply of K-Cup pods, gourmet doughnuts on birthdays, informative CLE seminars, and even get to enjoy business-casual-Fridays. The firm will cover your dinner when you stay past 8PM and will provide a standing desk to relieve that chronic back pain from sitting all day. Unfortunately, the annual billable minimum is 8,000 hours, leaving about 120 minutes per night to scarf down a meal and sleep at your desk. The partnership prospects and exit opportunities seem increasingly opaque, but at least it's a Vault top 50 ranked firm.

The Next Circle: Anger

A career as a lawyer is inherently adversarial. In 'Robinson's Metamorphosis,' we met the AUSA for SDNY. This federal prosecutor catches a young man burglarizing his home, and only holds back from shooting him due to the potentially bad optics for his career. He smashes the intruder's head against the wall, ripping out clumps of hair in the process, but ultimately decides he wants to kill him through the criminal justice system. The most fitting formulation for this ring of hell can be directly borrowed from Robinson's own imagination: the metamorphosis. In a glorification of restorative justice, lawyers here, like the aforementioned AUSA, wake up as the people they put behind bars. Attorneys would find themselves on death row in Alabama for a crime they swear they did not commit, or in San Quinten serving a mandatory minimum sentence for violating a three-strike law. Some might call this cruel and unusual punishment, but regrettably for the lawyers that call this circle home, the Bill of Rights has no power.

The Final Circle: Treachery

The deepest circle of Legal Hell is reserved for those that used their legal minds and careers to advance values that go against the public interest. Those that fight commonsense reform and progress. Residing here would be the attorneys that fought tooth and nail for "separate but equal" in Plessy, for continued school segregation in Brown, and for the internment of Japanese Americans in Korematsu. This circle is home to politicians who were converted into puppets for entrenched private interests like the NRA and the attorneys who helped draft Non-Disclosure Agreements to silence victims of sexual harassment. Attorneys like Michael Cohen, John Bolton, and Rudy Giuliani live here. They have assumed positions of power and prominence over this society, reducing the nation's faith in democracy and advancing their agenda with vitriolic fear tactics. Their hawkish worldview extinguishes treaties, pulls out of climate deals, defunds diplomatic efforts, escalates wars, and promotes hatred within our national discourse.

What would it be like to live in this place? Tragically, the answer may be that we know all too well. We may already be living in this hell. Like Dante, we have found ourselves "within a forest dark, for the straightforward pathway had been lost." But it is essential to remember that although the sign at the entrance of hell may ask all who enter to abandon all hope, the solution begins by recognizing that this reality is changeable and a way out is possible. We can emerge from this chapter of our history, as Dante emerges in the Divine Comedy, to "rebehold the stars." By descending into this hell and witnessing its evil, we have the potential to reignite and reawaken our Earthly fight for good.

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