Larry Lessig's Commencement Address to the John Marshall Law School

Here. An excerpt:

"Many of my students feel this corruption every day of their working life. They came to law school to do justice. They left law school to work in Inc. law — “inc.” as in “incorporated” as in the law for corporations. No doubt that is an honorable and important part of our profession, but for many of them, this isn’t the law they imagined when they came to law school. They go through their whole career never meeting a client who is a real person, only clients who are representatives of the persons we call corporations. And while there are many who are convinced that corporations are persons, as I once saw on a sign at a protest, I’ll believe corporations are persons when Texas executes one.

My point is not to criticize “Inc. Law.” “Inc. Law” helps create wealth, it helps protect wealth. It gives great innovators a chance to bring their innovations to market.

Instead my point is to emphasize the importance of the other part of law. Not the “Inc.” part, but the people part. The person part. Or the real person part. The part that touches real people. With real problems.

The part that keeps a family in their home against an unjust demand for eviction. Or that enforces a simple contract with a bank, to supply the credit for a coffee shop. Or that protects a woman against her abusive husband. Or that forces an insurance company to pay on a claim they rightly owe. Or that defends a child in a foster home against the neglect of a distracted state.

This too is law. The law of Erin Brockovich, not the law of Cravath Swaine and Moore.

But here’s the thing about this law:

No one thinks it works well.

There are plenty of lawyers in “Inc. Law” who go home at the end of the day and feel that that system works. Their clients got the process they were due. Their arguments were heard. Their interests were fairly considered. If through litigation, litigation in a federal court: With great judges. Beautiful carpet. Clean bathrooms. If through a transaction, a deal cut in conference rooms at the Four Seasons. No doubt these lawyers work hard. Insanely hard. And the system rewards them with the sense that the system works.

Not so with the law of real people. There is no one in the criminal justice system who believes that system works well. There is no one in housing law who believes this is what law was meant to be. In contracts, you read about disputes involving tens, maybe a hundred dollars. The disputes of ordinary people. These disputes are not for the courts any more. Or if they are, they are for courts that are an embarrassment to the ideals of justice from our tradition.

The law of real people doesn’t work, even if the law of corporations does."

Comments

[Patrick S. O'Donnell]

Not surprisingly perhaps, this rings true to me. Speaking philosophically and theoretically and not about the various dimensions of engagement and praxis Lessig's address might entail or imply (e.g., as we see in the reasons for the emergence and continuing significance of the National Lawyers Guild), this reminds one of why Critical Legal Studies (and the earliest expression of 'legal realism' and even Marxist approaches to the law) remain relevant: perhaps it can be resurrected or reconstructed* so as to demonstrate its pressing relevance. And I say this despite the fact that I find the methods typically employed by CLS folks simplistic if not mistaken and some of their theoretical presuppositions and assumptions about law weak or wrong. We certainly need something beyond the neoliberal pieties and neoclassical economic commitments of the "law and economics" stuff and something deeper and wider than empirical legal studies, at least insofar as the latter involves a kind of naive scientism or an attempt to don the authoritative mitre of science in a manner that crowds out non-scientific approaches to the law.

* Without, for instance, the reflexive dismissal of natual law traditions that embody much of the moral substance that might reanimate the CLS tradition(s).

[George Conk]

When in 1969 I heard a stirring speech at a rally at Harvard for the Chicago 8 I followed the pied piper - Prof. Arthur Kinoy - to Rutgers-Newark. We called it Peoples Electric Law Schoo. It and it was suffused with the spirit of Lessig's talk in clinics and classrooms. (My essay on PELS will soon be in print.)
The explosion of the cost of legal education has been funded by the massive shift of the cost of higher education from taxes to government-guaranteed non-dischargeable debt. That cost is a major factor in the problems that Lessig identifies.
At Rutgers ( a state university) tuition was $1,000 when I graduted in 1974. Private Boston University was $2,500. My first job - as a business rep doing grievance arbitrations for Actors Equity - paid six times one year's tuition at a private law school - and thirteen times that of Rutgers.
In yesterday's Times Brian Tamanaha proposes two tiers of law schools - academic and practice-oriented. My inclination is to fight for better funding of public universities.

[Patrick S. O'Donnell]

George, I look forward to learning about the PELS, as I've been doing research for some time now about the New Left (and the Left more broadly), civil rights, Black Power, and countercultural movements, organizations, and institutions from this period (1960s-early 1970s), much of it under the rubric of what Wini Breines termed "prefigurative politics."

[Eulonda Skyles]

Nice blog, John!

[John Steele]

Hey, Eulonda! Hope you're enjoying DC.

[John Steele]

George, the commonly heard counter-argument to better funding for public universities is that the universities skim all the money off the top rather than spend it on students. There are some exceptions, of course.

[Rick Underwood]

I agree with some of the sentiment, but there are two sides to this coin. I have said, over and over again, that law professors and students spend too much time counting votes on the Supreme Court, rather than paying attention to our criminal courts, family law courts and such. If you want to call that People Law you can. But I am not for couching everything in the verbals of class struggle. Here in Kentucky, we have had a constant drum beat for more "Poverty Law" in the law school - it comes from newspaper columnists who have no clue. If we had meaningful economic development (if we were not owned by COAL), we might not have so much poverty. A better business environment (which assumes that we will have competent business lawyers), and not so much emphasis on "the draw," would be better.

Of course, there are those who would say that law professors are "on the draw."

Also, I agree with Conck that better funding for Public Universities makes more sense than creating tiers of schools. I am for more skills training too. But the core lawyer skills are absorbing facts and law, thinking, and expressing (speaking/writing). Knowing which form is needed in Coosawhatchie (pick your jurisdiction)is not true skills training.

[Rebelready]

“We, all of us, have a duty to fix this. To repair this. To make it better. We lawyers in particular have that duty. And we make it better by practicing it better. By practicing the law of real people, and through that practice, making that law better." You need retaliation protection. The corruption is out of control and good people close their eyes and turn their heads. The regular Joe is habitually subjected to perversion of law, illegitimate judgments and actual theft of property through a corrupt legal system. The Clerks in the US Courts are not Senate confirmed life long public servants yet they seem to run the game quite corruptly without fear of consequence; collusion with court staff including quid pro quo with "insider" attorneys who can do no wrong is common place. Rights are violated and citizens are actually abused in a process that they were set up to lose from the start--that would be the civil side. The criminal side is sham assisted counsel for the poor where once well off high profile criminal defendants who have depleted their resources are allowed to retain their ordinarily high priced attorneys at the public defender rate and tax payer expense. Competency is a joke where defendants go into the psychiatric system under the ruse of restoration under the care of alleged corrupt psychiatrist and with the help of Big Pharma these defendants are actually rendered incompetent or impaired where a guilty plea can be easily coerced. Forensic commitment or civil commitment follows and this is nothing less than kidnapping. Our justice system is a National Disgrace and any attorney who wants to scrap the surface of a very thick scab with a festering wound below is hero. Please engage your colleagues and the bar itself needs to go to the legislature and state, "We hate to admit this but we need law to ensure that no attorney even thinks about the abandonment of the principles that govern this profession; we need law for retaliation protection so honest attorneys can root out the less than stellar without fear of consequence." If our courts are not repaired our country will fail and our courts will never be repaired without action by a mass of honest attorneys. A clean court is like a self-cleaning oven; a self-cleaning oven melts grime. Corruption is grime and it has infiltrated the quality of life of the American people; the grime is taking over! Did you ever see the movie "The Blob"? Metaphorically speaking that huge giant amoeba-like alien that terrorized a small community is corruption and it is expanding in territory takeover.