Law in Contemporary Society

The Case For Change From Without

-- Originally By WalkerNewell - 27 Feb 2009 -- Revised by Justin Chung - 14 April 2009

Assume Things Are Really Changing

In The Folklore of Capitalism, Thurman Arnold claims that organizations survive even when “their utility to the public and their own members has disappeared”. America’s devotion to the capitalist economic structure appears to be an illustrative example. Since Arnlod published his work in 1937, our corporations, our ideologies, and our people have been tested and found themselves superior. We won a big war and then spent the next half-century consolidating our victory, while our fellow superpower served as a convenient reminder of the horrors that would inevitably resurface if our faith in our institutions faltered. The success of our past has allowed our trust in “capitalism” to thrive, even as it appears that the utility of our most vaunted institutions has been exhausted. At the least, the system seems undermined by corruption to the point that it is undeserving of our unwavering dedication to it.

Now, as that system seems on the verge of collapsing, assume that a young lawyer in this climate has three choices: exploit the system’s death, attempt to heal it, or seek opportunity beyond its traditional confines. Depending on her goals and values, a new lawyer may find satisfaction in any one of these approaches. First, she could seek a practice area which is experiencing growth despite the turbulence. Second, she could become part of the inevitable effort to reform the failing structures. Finally, she could attempt to use the opportunities presented by turmoil to pursue change from without the system. The path to this option is less certain and well defined than the other two, and such a career might not be as "stable". However, if we accept the proposition that the capitalist structure has outlived its usefulness, this lack of stability is more than compensated for by the opportunity to heavily influence the creation of new social structures.

“It’s not my system, I’m just trying to get by.”

This type of thinking characterizes the first option outlined – that is, to ignore the nascent problems. If the novice lawyer sees herself as merely a plumber, plying her trade, then she should be comfortable with finding an area of law which is currently the most viable and establishing herself in that field. And if she is mostly concerned with herself and her family, then this career path may be the most fulfilling. However, if she has a significant interest in the world outside of a small community, her opportunity cost for pursuing such a career is great. Given the chance to affect change on a grander scale, she instead chooses in favor of supposed security. This is not necessarily a “bad” decision in itself, but it may be dissatisfying for a lawyer with a broad conception of the world around her.

“The system worked better than the alternatives, and I don’t want to shake things up.”

It is indisputable that many people benefited from the economic and political apparatus of 20th century America. Therefore, it is natural that some lawyers will dedicate their careers to the second option – attempting to prop up the system that allowed this country to prosper for so long. There are several problems with this approach though. First, it is unlikely that the same philosophies and values that guided our society in the past are still viable. Rigidly holding onto the mythology of “small government”, for example, or “self-reliance” might impede America’s ability to change with the times and succeed in an increasingly interdependent international system.

It cannot be denied that our system is often reactionary and seeks to maintain existing power structures. As Woodrow Wilson once said, “The circumstances of privilege and private advantage have interlaced their subtle threads throughout almost every part of the framework of our present laws.”. Suffice it to say that it is hard to believe the present system cannot be improved - unless one believes that we have already reached the pinnacle of the imperfect science of governance This belief in the relative supremacy of the existing order fails to account for the negative externalities that our way of life has imposed on the rest of the world, as well as our own citizens. Our foreign policy evidences a strict “us against them” mentality. For example, an aid package to Colombia that included the spraying of coca fields (thus providing a windfall to U.S. helicopter companies) was both wholly ineffective in stopping cocaine production and had disastrous effects on the poorest segments of Colombian society. Even if restoring our system to its former glory was the best solution for American welfare, this prosperity has historically come at the expense of other nations.

"I'm not satisfied- my system would work better."

Aside from the current system’s merits, the previous approach also fails to take advantage of the opportunity presented. Arnold posits that organizations will persist long after they are obsolete. Security and history are attractive lures and their pull will likely occupy the majority of lives out there. This situation – a failing structure with numerous adherents – creates a need for new ideas while suppressing their production. Given the reactionary impulses which accompany the fall of institutions, someone with new concepts to sell might be a true monopolist. Additionally, when the majority eventually realizes the need for change, those who have placed themselves outside the existing power structure gain a boost in credibility by sheer virtue of their disassociation with the prior system. These factors suggest that operating as an “outsider” may be the best option in the coming years for those who wish to have the greatest social impact.

This is not to say that there is necessarily an altruistic moral imperative or responsibility inherent in choosing this admittedly vaguely defined path. A young lawyer’s relations and interests may very well be better served by either of the first two options. However, if broad social change and influence is part of the ultimate goal, the lawyer would probably be wise to examine alternative paths from the conventional/traditional ones.

  • This edit made the new draft less intellectually defensible than the first draft was. Now we are attending an even less meaningful contest against a straw man: there is no substantial body of opinion that "the capitalist structure has outlived its usefulness," and therefore no basis on which to conduct a thought process in which one side proposes to take a law firm job in "a practice area which is experiencing growth," and the other side "accepts the proposition."

  • Not surprisingly, the conclusion of an absurd conversation is an absurd conclusion. Of course, that conclusion also conveniently denies there is a problem, because the supposed collapse of capitalism is actually a realignment of how practices get paid, not primarily about what practice areas are growing. Of course the dreckmachers can do bankruptcy when there aren't any deals going on, but the problem isn't the cyclical problem that the deal market is shut. That was the gist of the problem after October '87, but this time it's the small part. What's important now is that the principle of the billable hour, that lawyers charge for time rather than for expertise and results, has ceased to be enforceable on clients who have learned to use information technology to regulate their purchase of all services, to eliminate wasteful incentive structures from the way they buy all of them, including legal services. The traditional leveraged law firm is not a sustainable competitor when it can now longer charge by the hour.

  • Using Thurman Arnold's Folklore of Capitalism to address a question like "Why will the organizations that have now-broken business models fail to change anyway, and continue marching straight off the cliff?" would be feasible: that's a question his thought-process was designed to cope with. Twisting it round to answer the question, "How should I build a materially-comfortable, meaningful, and socially positive practice for myself under current conditions?" will not work very well, as it doesn't work very well here. You want a less schematic and more personal way of thinking about how lawyers' lives are led. Perhaps, if you want to stick with Arnold, you should look at his memoirs, Fair Fights and Foul.


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r3 - 08 Jan 2010 - 22:32:44 - IanSullivan
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