Law in Contemporary Society
-- TatsuyaSagawa - 20 Apr 2009


Originally by Will King


In the conclusion of Swindling and Selling, Arthur Leff maintains that "what lawyers do much of the time is try to consider alternative future social snapshots and then attempt to encourage or prevent their actualization by facilitating or retarding particular juman acts." Lawyering, according to him, involves considering both the underlying social phenomena of the world and anticipating the future. If his assertions are true, then there is a divide between what lawyers do (or are anticipated to do) in an actual society and what law studentslearn in law schools. The methodology of teaching law solely through reading judicial opinions does not effectively reach Leff's scope of lawyering. Learning not only by reading judicial opinions but also by obtaining various views as to economic and social science realms would allow law students to become more appropriate lawyers in a society.

How Do Lawyers Think?

According to Leff, for lawyers, transaction cost is found to be important information. Leff states that it is the "actual behavior of actual people in actual transactions that is of particular interest" for lawyers. It is essential for lawyers to examine the dormant social forces at issue between the parties. (Lawyers are required to be equipped with the knowledge of why person A committed act X and furthermore what influences acts Z and W had on A, prior to commencing of act X. By understanding the causes and effects that affect human action, lawyers will be a better counsel and advocate.)

It is Leff's belief that lawyers must focus their attention on actual social phenomena and closely examine human behavior. Implicit in this theory is the necessity for lawyers to relate to anyone seeking their advices. Lawyers examine their clients' problems, from the restraints and priviledges that the law and social dynamics have allowed. When lawyers pay close attention to the actual phenomenon taking place in their clients' world, he is able to understand the structures and processes that are at work. Consequently, lawyers use this information to advocate for their clients in the most efficient and logical manner.

What Do They Do?

Leff mantions that it is lawyers' duty to "consider alternative future social snapshots and then attempt to encourage or prevent their actualization by facilitating or retarding particular human actions." He substantially extends lawyering beyond that of a mere professionalism into the realm of social instrumentation. The lawyer, who can anticipate the future, can simultaneously use his knowledge of the law and of human interaction to help develop the future. Lawyers therefore, can influence their society in ways that other law-related people cannot. Although it is true that lawyers are not completely free from any kind of restraints; they may be constrained by alliance s and relationships, they have substantial power to choose the place to work and the subject to work for.

Assuming Leff's proposition that lawyers attempt to encourage or prevent the actualization of an anticipated future, there arises a question of why they act in this way. An optimist would say that lawyers analyze future social occurences because they desire to prepare for and remedy problems that may occur. On the other hand, a cynic would take a different view and say that the lawyer who can anticipate and influence the future has the power to benefit at the expense of others. No matter how one chooses to answer this question, it is the nature of lawyering and not the reason behind lawyering that Leff addresses. Lawyers, regardless of morality, use their knowledge of human interaction and social phenomenon to cause other humans to behave in a certain way.

Leff and the Law School Curriculum

If the ability to consider the social and human interactions is essential for lawyers,then there is a difference between what is learned in the law school classroom and what lawyers learn in the actual society after graduation from a law school in order to become aprropriate lawyers. The process of learning the law by solely reading judicial opinions does not offer law students the full scope of the "transaction cost" of each case. The claims brought and decisions given on a particular case are influenced by underlying social factors, many of which are not evident by simply knowing the holding. We would find much more significance in a law school curriculum where students learn how to analyze the social, economic and psychological influences that would shape and constrain a person's ability to have justice. Reading of judicial opinions is an important part of learning the procedure and vocabulary of lawyers, but these opinions would be more effective if sufficiently supplemented with social science.

If other disciplines are incorporated and into the law school curriculum, students will be better equipped to consider the "alternative future snapshots" that Leff reasons lawyers work to encourage or prevent. If a student focuses not only on the law but also on how the law influences human action, the student would acquire a more general knowledge of how the society works. Congressional intent on behalf of lawmakers is crucial into the formulation of statutes and laws. Congressmen are influenced by the social dynamics of the world where they exist. Law students, by studying these social dynamics, will be able to anticipate how and why law was formed. This allows students to begin to theorize how to use their knowledge to facilitate and enhance human action.


Andrew Leff's chracterization of the nature of lawyers insists that lawyers, in order to implement change, must have an immense awareness of the past and present. The knowledge which is essential to lawyers consists of more than knowing and learning the law itself. Consequently, a law school student should be exposed to more than judicial opinions. If the law school curriculum allows and facilitate students to take into account a variety of social science, they will develop an understanding of human interaction that will be crucial to their serving as advocate.


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r3 - 08 Jan 2010 - 22:28:29 - IanSullivan
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