The Aristocracy of Fairness: Law as the Necessary Science
August 21, 2008

I’m here to welcome you to a great law school. I’m also here to reflect on a few larger themes about what it means to be a lawyer.

This talk is usually titled “On Becoming a Lawyer,” and to me there are two key parts to that: inspiration and perspiration. You’re going to be making a huge investment of time and effort in becoming an attorney over the next three years. Why do it? That answer has to include some kind of inspiration—some reason law is a vocation for you, and not just another career. I’ll give you one abstract answer and several concrete ones. Let’s start with the concrete.

Just about every day this summer there has been a front page headline about lawlessness. Think about the housing and banking crisis. Earlier this decade, we were told that the normal regulations governing banks and mortgages weren’t needed anymore. “Innovators in the financial system” could “self-regulate,” we were told—they needed freedom from attorneys and their nitpicking rules. And they got it, leading to the worst foreclosure crisis since the Great Depression.

Another case of “self-regulation” run amok is food, drug, and product safety. Don’t worry, we were told, the market will punish any bad actors here. The head of the Consumer Product Safety Commission recently told Congress—“don’t give us any more funds or attorneys—businesses can assure safety on their own.” Well, somehow I think the 3000 people who annually lose fingers and thumbs to unsafe table saws—and the 60,000 injured annually--probably disagree with her on that one.

And who can keep track of all the scares we’ve been through the past few months—fake heparin in hospitals, dangerous toys menacing children, salmonella everywhere. It would be a full time job for even the most conscientious consumer to keep track of all the failures of what I like to call the “deregulatory delusion.”

Now what do all these things have in common? They all stem from a mindset that in the 21st century we are “beyond” law, that markets operating on their own can take care of everything. We are where we are today—a weakened, debtor nation, with a declining currency and ever more insecure citizenry—because in many areas we have stopped enforcing the structure of laws designed to make our lives fairer.

But as Franklin Roosevelt once said back in times that eerily parallel our own, “It is not in despair that I paint you [this] picture. I paint it in hope—because the Nation, seeing and understanding the injustice of it, proposes to paint it out.” And to extend that metaphor a bit, I hope to see many of you in this class lawyer it out. My inspiration as an attorney—and I hope yours too—is to maintain and restore the structure of fairness and opportunity that only law can make possible.

You’ll find many examples among your professors here. Linda Fisher and Baher Azmy have worked tirelessly in our clinics to bring some justice to people snared in the subprime mess. Our health law group tries to answer some of the toughest questions in law—its members have worked at the highest levels of state and international bodies to help rationalize a byzantine system. Professors Godsil and Maldonado have combined scholarship and advocacy for the disadvantaged in brilliant ways. And if you want to be sure people are treated fairly in the world of work, our employment law group is nationally recognized for doing just that. If you care about fairness, this is the place for you.

Please note well that I am not trying to tell anyone what clients you should or shouldn’t have. You may well feel that there are government agencies out there which are suffocating businesses. Helping those businesses negotiate the complex of legislative rules and interpretive rules and manuals and guidance letters---that whole iceberg of regulation that your average viewer of Boston Legal never gets a peek at—is often as worthy a task as conducting the investigations those laws authorize.

Of course, this dual nature of law—the two sides there are to every serious legal dispute—may make that advice seem relativistic. And as Socrates has said, the best physician is often the best poisoner. Nevertheless, if we do our jobs well here, you will find that what unites the two lawyers in any dispute is far deeper than what divides them.

The profession of law commits us to the resolution of disputes according to a system of public values. We have lots of other ways of resolving disputes. There’s force—let the strongest win. There’s the market—which often boils down to letting the person with the most money win. And finally there’s law—a system of rules that encodes the values we share. Law is a tradition of settling disputes without resorting to force or bribery. It should surprise no one that a law school is part of the Catholic mission of our university because law is and only should be a moral system for distributing the benefits and burdens of our collective life.

Of course, writers going back to Alexis deTocqueville have realized that this kind of responsibility can lead lawyers to have an inflated sense of their own value. As he noted in Democracy in America,

Some of the tastes and the habits of the aristocracy may . . . be discovered in the character of lawyers. They participate in the same instinctive love of order and formalities; and they entertain the same repugnance to the actions of the multitude, and the same secret contempt of the government of the people.

To explain this idea of “an aristocracy of lawyers,” Tocqueville goes on to say:

The special information that lawyers derive from their studies ensures them a separate rank in society, and they constitute a sort of privileged body in the scale of intellect. This notion of their superiority perpetually recurs to them in the practice of their profession: they are the masters of a science which is necessary, but which is not very generally known. . . .

He then goes on to describe a number of the great strengths and weaknesses of lawyers. The whole passage is illuminating.

So what does Tocqueville’s idea of lawyers as an aristocracy, and law as a “necessary science,” mean for us? We live in a leveling age, where the press is eager to cut down to size anyone who gets “too big for their britches” We are relentlessly told to “suspect elites.” But often the people behind that mantra are pretty elite themselves. So maybe we should start suspecting the elites who tell us to suspect elites.

In other words, the proper response to this ersatz egalitarianism is not to pretend that anyone is just as good as anyone else at resolving disputes, or just throwing open all decisions to force and markets. Rather, we strive to make ours an “aristocracy of fairness.” We are to be the umpires arguing about (and ultimately judging) the commerce and criminality that, respectively, enrich and threaten our world.

The paradox here is that fair play and equal opportunity depend on forms of privilege for lawyers—unique abilities to make demands, file lawsuits, learn the true story behind PR men’s obfuscation. The paradox is only resolved to the extent that we use those powers for good.

The most exciting part of your time here will be learning about how you can use to law to solve problems. You can be the person who keeps predatory lenders or eminent domain abusers from tossing longtime homeowners out of the community they love. You can help cut through the patent thickets that are now delaying cures for deadly diseases. You can help assure that needy people get the drugs and medical devices they need—either directly advocating for them, or for the companies that depend on Medicare and Medicaid. You can get innocent men out of prison, or put predators away for decades.

At this point, any of these futures are open to you. So as you dive into the books this year, doing the grueling reading and writing law demands, remember your inspiration for getting into this field. Keep it as concrete as possible. The more you care about particular outcomes, particular people, particular communities—the more your career in law will mean to you. Find some problem you want to solve with law, and don’t let go of it. That’s what being part of an aristocracy of fairness is all about.