June 2002  

by Jan Michels
WSBA Executive Director
janm@wsba.org

Since joining the WSBA, I have talked to many lawyers about their law practices. Though views vary, many practitioners experience tension, frustration and dissatisfaction with the practice of law. A book recently recommended to the Board of Governors by Governor Rob Boggs (4th District) of Yakima is Jurismania: The Madness of American Law by Paul F. Campos. The book is hopelessly overwritten and difficult reading, but offers some explanation about how growth in the body of law relates to some of the dissatisfaction. Campos discusses the tension between law and social order, the irrational aspects of the law, the sense of disingenuousness in using performance rather than reason, and the unpredictability of outcome that lessens personal and client satisfaction with the legal process. He suggests that clients will seek other means of resolving disputes.

There is huge and rapid proliferation of bureaucratic regulation that is impossible to keep up with, much less apply meaningfully. We seem to want enough law to make all consequences predictable. Instead, we've created a situation where all relevant regulation needs to be posted so violations are "informed," yet there is such proliferation of information that the average person becomes immune. Does failure to post rules of conduct create a "fair game" of all conduct? Does the lack of a prohibition equal a right? Campos argues that regulation texts read like a crazed amalgam of the rule against perpetuities and the Uniform Commercial Code. America's legislative attempt to resolve the tension between moral freedom and the consent to be governed (social compact) simply leads to more and more laws attempting to regulate social conduct.

In place of religious or spiritual commonality, we look to constitutionally established "rights" to guide the enforcement of conduct. But inherent conflicts in the U.S. Constitution between state and individual rights, freedom of information versus the right to be left alone, free speech versus public protection, and the individual right to choose versus public morality cause endless litigation. No one set of circumstances exactly fits another, and we seek more and more legal analysis in a vain attempt to discern what the Constitution says and means. Attempts to rationalize difficult questions of morality, Campos claims, are "madness." There will simply never be agreement on such things as individual freedoms and rights, faith-based definitions of "life," and social responsibility. What would seem the unproblematic act of buying groceries becomes laden with ethical and moral dilemmas about the treatment of animals, support for WTO, use of pesticides, and global stewardship. No amount of regulation or analysis can detail what is acceptable conduct in these circumstances.

Lawyers are trained rationalists, Socratic thinkers who deduce "right" from a set of principles. Yet, the truth is that there is not always a commonly held principle in the mix of religious, moral and cultural beliefs. What rational principles apply to divorce or who gets "prosecuted" for truancy? What principle helps us sort out the interests of a fetus in a drug-abusing mother? Rationalists obsessively create more and more law, hoping to get it right — to remove ambiguity and conflicts — and resorting to "just because." Campos uses the term "arational" as the midpoint between rational and irrational.

Many times rational thinking must be force-fit into legal arguments without real integrity or substance, and sometimes purely in hindsight. Searching for a rational argument based on precedent is incredibly expensive. Campos suggests that some attempts at rationality can be measured in inches of documentation and hours of research, and then asks how many inches of rationalization the average litigant can afford. How many inches will it take to reach the truth?

Additionally, the law is helpless to resolve existential or metaphysical questions. Many current legal issues, such as defining life, cannot be reasoned from legal principles or rational arguments.

Law has become incredibly complex and secular, and lawyers are forced to create a performance in the service of proving that constitutional, moral and social principles will yield the "right" answer. In the service of advocacy a lawyer is required ex post facto to contrive the set of principles that would have rationally lead to the conduct in question. Contradictions and tensions in the law, for example, led Bill Clinton to state that he could be telling the legal truth while clearly obscuring the authentic truth. This disingenuousness creates a sense of performance rather than a more satisfying sense of discerning the "truth." Contriving circumstances to fit the desired outcome is a required skill, better suited to legal analogy than to authenticity. There can be an extreme conflict in authenticity when a practitioner confronts the fact that equal justice and due process are rife with favor for the clever and wealthy. It can be hard to authentically represent the nobility of the rule of law in the face of this conflict.

Predictability is a strong manager of conduct, yet as we overregulate and complicate our laws, predictability becomes increasing elusive. If the law doesn't produce predictability, we tend to make more laws. Each new law reflects all the previous laws to date. There is an accounting principle called "a random walk" which is applied to predicting the stock market. A "random walk" is a statistical pattern in which previous iterations of a phenomenon have no predictive value of its future course. Campos argues that if current law always reflects all relevant information to date, it will always change, and predictability will become a "random walk." Property law is an example. It has become such a labyrinth that it defies any two persons to reach the same conclusion. Any one legal fact pattern can become so unique that it is an example of one and not predictive of other or future situations — a "random walk." When more and more regulation doesn't seem to increase predictability, the tension lawyers feel is exacerbated.

As the pyramids and burial rituals of the Egyptian Pharaohs in 26 century BC demonstrate their theological obsession, American law is approaching an obsession that craves meaning and predictability in an increasingly secular and chaotic world. Campos's premise is that we have become obsessed and maniacal about creating laws to address the irrational aspects of life's social and moral dilemmas. This is the legal anomaly that causes pain for lawyers.

"Legal speak" and the search for constitutional rationality has so permeated our culture that the only way out is a massive change in how we think about resolving conflicts. The standards become: "How much analysis and argument can my client afford?"; "What is the easiest way out?"; and "I just want my client to be able to get on with his life." Citizens will turn to actuarial tables, probability analysis, administrative law, and restorative methods of dispute resolution rather then the unpredictable, cognitively dissonant, irrational world of litigation. The dilemma between authentic, rational practice and affordable practicality will cause increasing discomfort for lawyers.

We can look at the "piece of work" that American law has become, and expose and accommodate its shadow side. Our mania for giving reasons, ascribing culpability, and searching for and following absolute precedent could be replaced by acknowledging and accepting some degree of arbitrariness, softer opinions in terms of precedent, and alternate dispute resolution. We could admit that, in some cases, there is no tree of knowledge, no moral truth. We will get on with helping our clients through their particular disputes without an overdeveloped call to the higher order or constitutional imperative, painstaking documentation of precedent, and/or inches of rationality the client cannot afford.

Perhaps Campos's concepts can help name and raise for discussion some sources of frustration within the practice. Perhaps we can develop different tools for some areas of practice.