Total Justice

2. The Law: Creatues from Inner Space

THE LAW: CREATURES FROM INNER SPACE IN A CHEAP HORROR MOVIE that was popular a while back, the world was invaded by some sort of living goo from outer space that spread relentlessly, gobbling up absolutely everything in its path. Some of the cries of alarm about the American legal system picture law as a phenomenon very much like this blob from outer space, growing relentlessly and swallowing up billions of dollars and whole social institutions as it spreads. Everybody, it is said, is suing everybody else. There is a serious "litigation explosion." The machinery of law is breaking down. There is a "crisis" on our hands. What the crisis consists of, and why it is a crisis, is never made entirely clear; but that there is a crisis-of legitimacy, and in the operating system-is a point on which scholars tend to agree, right, left, and center. The point also has international backing. In fact, European intellectuals are among the main purveyors of the "crisis" idea, the notion that Western governments and their legal systems face a dreadful turning point. They have packaged various versions of the problem under a 6 THE LAW: CREATURES FROM INNER SPACE 7 number of names, including the "legitimation crisis," a dreadful state of affairs that seriously threatens "system integration.'" Whatever system integration may mean, it is clearly bad medicine to threaten it. There are also complaints that the modern state has become "ungovernable "; that the problems of contemporary life have outstripped the capacity of governmental organs to control them, or to solve the problems . 2 Complaints are also heard in Europe about the "flood of norms," which match the complaints in this country about the "law explosion. ,,3 On what are these fearful images based, and should they be taken seriously? The problem of the general system crisis-the crisis, if any, of integration and social stability that endangers the Western world-is beyond the scope of this book. It is mentioned here only because it is related, conceptually and psychologically, to the notion of a crisis in the legal system; this is in turn rclated to the idea of a law explosion, that is, an elephantiasis of the legal system, which struggles to do work it is not equipped to do. Is there a law explosion? If there is, what has caused it, and is it harmful to our social health? If there is not, or if the explosion is not the same as pictured, then what is giving off the false impressions? Where there is smoke, there is usually fire. Criticism of the American legal system tends to focus on three types of excess. There are too many lawyers, too much law, and too much litigation. Each of these charges will be examined in turn. I will then go on to an alternative view of the modern legal system, described in historical and social terms. Too Many Lawyers On this point everyone seems to agree: the sheer size of the profession has gotten out of hand. This sentiment is to be expected from the man and woman on the street; but it is also heard in high places. The president of Harvard University, Derek Bok, a lawyer himself (and former dean of the Harvard Law School), made a major speech in April 1983, in which he proceeded, methodically and deliberately, to bite the hand that once fed him. He talked about the sins of the 8 TOTAL JUSTICE American legal system as a whole ("among the most expensive and least efficient in the world"); but he also complained bitterly about the legal profession. Too many "able" college graduates were going to law school. This meant a "massive diversion of exceptional talent" into "pursuits" that were, frankly, parasitic. Lawyers and lawsuits produce nothing; not nuts and bolts, not bread or sausages, not works ofart, not "culture or the enhancement of the human spirit." The lawyers instead strew the scene with social wreckage: conflict, complexity, and confusion. No question: the legal profession is very big and getting bigger, and the pace of growth is getting faster and faster. In the spring of 1984, something on the order of 650,000 men and women were practicing law in this country. This means there was about 1 lawyer for every 350 people living in the United States. But a bloated legal profession is an old fact of life in the United States...