A Republic, If You Can Keep It

by Neil Gorsuch

  However that may be, isn’t there still a troubling irony lurking here? Without written laws, we lack fair notice of the rules we must obey. But with too many written laws, don’t we invite a new kind of fair notice problem? And what happens to individual freedom and equality—and to our very conception of law itself—when the criminal code comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?

  The sort of excesses of executive authority invited by too few written laws helped lead to the rebellion against King John and the sealing of the Magna Carta—one of the great advances in the rule of law. But history bears warnings that too much and too much inaccessible law can lead to executive excess as well. Caligula sought to protect his authority by publishing the law in a hand so small and posted so high no one could be sure what was and wasn’t forbidden. (No doubt, all the better to keep everyone on their toes. Sorry…) In Federalist No. 62, Madison warned that when laws become just a paper blizzard, citizens are left unable to know what the law is and cannot conform their conduct to it. It is an irony of the law that either too much or too little can impair liberty. Our aim here has to be for a golden mean. And it may be worth asking how far we might have strayed from it.

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  BEYOND THE LAW ITSELF, there are the ironies emanating from our law schools. A target-rich environment, you say? Well, let’s be kind and consider but one example.

  In our zeal for high standards, we have developed a dreary bill of particulars every law school must satisfy to win the American Bar Association’s accreditation. Law schools must employ a full-time librarian (dare not a part-timer). Their libraries must include microform printing equipment. They must provide extensive tenure guarantees. They invite trouble if their student-faculty ratio reaches 30:1, about the same ratio found in many public schools. Keep in mind, too, under ABA standards adjunct professors, many of whom have decades of practical experience in the law, count as only one-fifth of an instructor.

  Might it be worth pausing to ask whether commands like these contribute enough to learning to justify the barriers to entry—and the limits on access to justice—they impose? A legal education can cost students $200,000 today. That’s on top of an equally swollen sum for an undergraduate degree—yet another ABA requirement. In England, students are allowed to earn a law degree in three years as undergraduates or in one year of study after college, all of which must be followed by extensive on-the-job training. None of this is thought a threat to the rule of law there. One might wonder whether the sort of expensive and extensive homogeneity we demand is essential to the rule of law here.

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  SO FAR, WE’VE BRIEFLY visited ironies where the law aims at one virtue and risks a corresponding vice. But it seems to me that maybe the law’s most remarkable irony today comes from the opposite direction—a vice that hints at virtues in the rule of law.

  These days our culture buzzes with cynicism about the law. So many see law as the work of robed hacks and shiny-suited shills. Judges who rule by personal policy preferences. Lawyers who seek to razzle-dazzle them. On this view, the only rule of law is the will to power. Maybe in a dark moment you’ve fallen prey to doubts along these lines.

  But I wonder whether the law’s greatest irony might just be the hope obscured by the cynic’s shadow. I wonder whether cynicism about the law flourishes so freely only because—for all its blemishes—the rule of law in our society is so successful that sometimes it’s hard to see. I wonder if we’re like David Foster Wallace’s fish: surrounded by water, yet somehow unable to appreciate its existence.

  Now the cynicism surrounding law is easy enough to see. When Supreme Court justices try to defend law as a professional discipline, when they explain their jobs as interpreting legal texts, when they echo the traditional Federalist No. 78 conception of judging, they are mocked, often viciously. Leading media voices call them “deceiving.” Warn that behind their “benign beige facade[s]” lurk “crimson partisan[s].” Even law professors venture to the microphones to express “complete[] disgust[]” and accuse them of “perjur[y]” and “intellectual vacuity.” Actual quotes all.

  If this bleak picture I’ve sketched were an accurate one, if I believed judges and lawyers regularly acted as shills and hacks, I’d hang up the robe and hand in my license. But even accounting for my native optimism, I just don’t think that’s what a life in the law is about.

  As a working lawyer, I saw time and again that creativity, intelligence, and hard work applied to a legal problem could make a profound difference in a client’s life. I saw judges and juries that, while human and imperfect, strove to hear earnestly and decide impartially. I never felt my arguments to courts were political ones, but ones based on rules of procedure and evidence, precedent, and standard interpretive techniques. The prosaic but vital stuff of a life in the law.

  As a judge now, I see colleagues striving every day to enforce the Constitution, the statutes passed by Congress, the precedents that bind us, the contracts adopted by the parties. Sometimes with quiet misgivings about the wisdom of the regulation at issue. Sometimes with concern about their complicity in enforcing a doubtful statute. But enforcing the law all the same, believers that ours is an essentially just legal order.

  This is not to suggest that we lawyers and judges bear no blame for our age’s cynicism about the law. Take our self-adopted model rules of professional conduct. They explain that the duty of diligence we lawyers owe our clients doesn’t “require the use of offensive tactics or preclude…treating [people] with courtesy and respect.” Now, how’s that for a professional promise? A sort of ethical commandment that, as a lawyer, you should do unto others before they can do unto you. No doubt we have reason to look hard in the mirror when our profession’s reflected image in popular culture is no longer Atticus Finch but Saul Goodman.

  In defending law as a coherent discipline, I don’t mean to suggest that every hard legal question has a single right answer. That some Platonic form or Absolute Truth exists for every knotty statute or roiled regulation—if only you possess the superhuman power to discern it. I don’t know about you, but I haven’t met many judges who resemble Hercules. Well, maybe my old boss Byron White. But how many of us will lead the NFL in rushing? When a lawyer claims Absolute Metaphysical Certainty about the meaning of some chain of ungrammatical prepositional phrases tacked onto the end of a run-on sentence buried in some sprawling statutory subsection, I start worrying. For questions like these, my gospel is skepticism—though I try not to make a dogma out of it.

  But to admit that disagreements do and will always exist over hard and fine questions of law doesn’t mean those disagreements are the products of personal will or politics rather than the products of diligent and honest efforts by all involved to make sense of the legal materials at hand.

  The first case I wrote for the Tenth Circuit to reach the Supreme Court involved a close question of statutory interpretation, and the Court split 5 to 4. Justice Breyer wrote to affirm. He was joined by Justices Thomas, Ginsburg, Alito, and Sotomayor. Chief Justice Roberts dissented, with Justices Stevens, Scalia, and Kennedy. Now that’s a lineup the public doesn’t often hear about, but it’s the sort of thing that happens—quietly—day in and day out throughout our country.

  As you know but the legal cynic overlooks, the vast majority of disputes coming to our courts are ones in which all judges do agree on the outcome. The intense focus on the few cases where we disagree suffers from a serious selection effect problem. More than 90 percent of the decisions issued by my court are unanimous; that’s pretty typical of the federal appellate courts. Forty percent of the Supreme Court’s cases are unanimous, too, even though that court faces the toughest assignments and nine, not just three, judges have to vote in every dispute. In fact, the Supreme Court’s rate of dissent has been largely stable for the last seventy yea
rs—this despite the fact that back in 1945, eight of nine justices had been appointed by a single president and today’s sitting justices were appointed by five different presidents.

  Even in those few cases where we do disagree, the cynic also fails to appreciate the nature of our disagreements. We lawyers and judges may dispute which tools of legal analysis are most appropriate in ascertaining a statute’s meaning. We may disagree over the order of priority we should assign to these competing tools and their consonance with the Constitution. We may even disagree over the results our agreed tools yield in a particular case. These disagreements sometimes break along familiar lines, but sometimes not. Consider, for example, the debate between Justices Scalia and Ginsburg, on the one hand, and Justices Thomas and Breyer, on the other hand, over the role the rule of lenity should play in criminal cases, or similar disagreements between Justices Scalia and Thomas about the degree of deference due precedent. Debates like these are hugely consequential. But they are disputes of legal judgment, not disputes about politics or personal will.

  In the hardest cases, as well, many constraints narrow the realm of admissible dispute: closed factual records; an adversarial process where the parties usually determine the issues for the court’s decision; standards of review that command deference to finders of fact; the rules requiring appellate judges to operate on collegiate panels where we listen to and learn from one another; the discipline of writing reason-giving opinions; and the possibility of further review. To be sure, these constraints sometimes point in different directions. But that shouldn’t obscure how they serve to limit the latitude available to all judges, even the cynic’s imagined judge who would like nothing more than to impose his policy preferences on everyone else. And on top of all that, what today appears a hard case tomorrow becomes an easy one—an accretion to precedent and a new constraint on the range of legally available options in future cases.

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  NOW, MAYBE I EXAGGERATE the cynicism that seems to pervade today. Or maybe the cynicism I see is real but endemic to every place and time—and it seems something fresh only because this is our place and time. After all, lawyers and judges have never been much loved. Shakespeare wrote the history of King Henry VI in three parts. In all those three plays there is only a single joke. Jack Cade and his followers come to London intent on rebellion, and offer as their first rallying cry: “Let’s kill all the lawyers.” As, in fact, they pretty much did.

  But maybe, just maybe, cynicism about the rule of law—whatever the place and time—is its greatest irony. Maybe the cynicism is so apparent in our society only because the rule of law here—for all its problems—is so successful. After all, who can make so much fun of the law without being very sure the law makes it safe to do so? Don’t our friends, neighbors, and we ourselves expect and demand—not just hope for—justice based on the rule of law?

  Our country today shoulders an enormous burden as the most powerful nation on Earth and the most obvious example of a people struggling to govern itself under the rule of law. Our mistakes and missteps are heralded by those who do not wish us well, and noticed even by those who do. Neither should we try to shuffle our problems under the rug: We have too many to ignore. The fact is, the law can be a messy, human business, a disappointment to those seeking Truth in some Absolute sense and expecting more of the Divine or Heroic from those of us wearing the robes. And it is easy enough to spot examples where the law’s ironies are truly bitter.

  But it seems to me that we shouldn’t dwell so much on the bitter that we never savor the sweet. It is, after all, the law that permits us to resolve our disputes without resort to violence, to organize our affairs with some measure of confidence. It is through the careful application of the law’s existing premises that we are able to generate new solutions to changing social coordination problems as they emerge. And, when done well, the law permits us to achieve all of this in a deliberative and transparent way.

  Here, then, is the irony I’d like to leave you with. If sometimes the cynic in all of us fails to see our nation’s successes when it comes to the rule of law, maybe it’s because we are like David Foster Wallace’s fish that’s oblivious to the life-giving water in which it swims. Maybe we overlook our nation’s success in living under the rule of law only because, for all our faults, that success is so obvious it’s sometimes hard to see.

  ACCESS TO AFFORDABLE JUSTICE

  Legal services are so expensive today that the United States ranks near the bottom of developed nations when it comes to access to counsel in civil cases. The question is what to do about it. In this essay, written originally for an exchange between U.S. and U.K. judges, I sought to explore some possibilities.

  This paper explores three possible avenues for civil justice reform. All three lie within the power of the legal profession to effect. They include revisions to our ethical codes, civil justice rules, and legal education accreditation requirements—possibilities that in turn challenge each of the main elements of our profession: bar, bench, and academy. Each of these avenues of reform holds the promise of either reducing the cost or increasing the output of legal services—in that way making access to justice more affordable. And for that reason, you might think of them as (sort of) market-based solutions. Now, you might wonder why this paper doesn’t address some other possible paths for change—perhaps most obviously the possibility of increased public financing for legal aid. One reason is that, whatever challenges may be associated with asking a self-regulating profession to reconsider its self-imposed barriers to entry and output restrictions, entering that political and fiscal thicket appears likely to pose even more. Maybe more important, though, on the road to change it seems to me that before asking others for help we should ask whether and to what degree our own self-imposed rules increase the cost of legal services and decrease access to justice in unwarranted ways.

  THE REGULATION OF LAWYERS

  We lawyers enjoy a rare privilege. We are largely left to regulate our own market, often through rules of our own creation and sometimes through statutes effectively of our own hand too. Of course, and no matter the industry, even the most well-intentioned regulations can bear negative unintended consequences. Sometimes even the intended consequences of regulations can only be described as rent-seeking. And it seems hard to think our profession might be immune from these risks. Surely many of our self-imposed regulations represent well-intentioned efforts to prevent and police misconduct that risks harm to clients. But you might also wonder if a profession entrusted with the privilege of self-regulation is at least as susceptible as (or maybe even more susceptible than) other lines of commerce to regulations that impose too many social costs compared to their attendant benefits. Consider two examples.

  UNAUTHORIZED PRACTICE OF LAW. Marcus Arnold presented himself as a legal expert on AskMe.com, a website that allows anyone to volunteer answers to posted questions. Users of the site rate those who offer advice, and in time they came to rank Arnold as the third most helpful volunteer of legal answers out of about 150 self-identified legal experts. When Arnold later revealed that he was but a high school student, howls emerged from many quarters and his ranking dropped precipitously. Still, his answers apparently continued to satisfy the website’s users because soon enough he went on to attain the number one ranking for legal advice, ahead of scores of lawyers. Like a Rorschach test, both supporters and opponents of unauthorized practice of law regulations see in this case support for their positions.

  When approaching questions about the unauthorized practice of law, you might think a natural place to begin is to ask what exactly constitutes the practice of law. But that turns out to be a pretty vexing question. While the American Bar Association offers a set of model rules of professional conduct governing those who engage in the practice of law, it is surely a curiosity that those rules don’t attempt to define what constitutes the practice of law in the first place. After all,
it’s no easy thing to regulate an activity without first defining what that activity is.

  The fact is the job of defining what does and doesn’t constitute the practice of law has largely been left to state statutes. And history reveals that the definitions states have adopted, usually at the behest of local bar associations, are often breathtakingly broad and opaque—describing the practice of law as, and prohibiting nonlawyers from participating in, the “represent[ation]” of others, or (even more circularly) any “activity which has traditionally been performed exclusively by persons authorized to practice law.” More than a few thoughtful people have wondered if these sorts of sweeping and opaque restrictions may be subject to constitutional challenge on vagueness, First Amendment, or due process grounds.

  But however that may be, about one thing there can be little doubt. In recent years, lawyers have used these rules to combat competition from outsiders seeking to provide routine but arguably “legal” services at low or no cost to consumers. Indeed, by far and away most unauthorized practice of law complaints come from lawyers rather than clients and involve no specific claims of injury. Take recent cases involving Quicken Family Lawyer and LegalZoom. Those firms sell software with forms for wills, leases, premarital agreements, and dozens of other common situations. When Quicken entered the Texas market, an “unauthorized practice of law committee” appointed by the Texas Supreme Court quickly brought suit, a fight that eventually yielded a federal court decision holding that Quicken had violated state regulations (though, happily, a result the legislature later effectively undid). Similarly, when LegalZoom entered the market in North Carolina, the state bar declared its operations illegal, a declaration that eventually induced the company to settle and promise to revise some of its business practices.