Public Service by Public Servants

William and Mary Law Review, 2009

Fordham Law Review, 1991

for affording me the opportunity to speak on the juxtaposition of public policymaking and the public interest. These engagements and the ensuing responses helped me refine my thinking on these topics. I also wish to thank my colleagues Ron Collins and Peter Kahn for criticism and comments, and the students in my Law and Public Policy class, particularly Susan Engelman and Michele Reifsnyder Danilowicz, for their research and their opinions. Of course, all the mistakes are mine.

2014

Legal Ethics, 2003

2012

Notre Dame Law Review, 2002

European Public Law

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Bepress Legal Series, 2006

1996

Perhaps if more of us were devoted country music fans we would understand better. All those bad things that happen when you least expect them. Then-to make it right-we could play the song backwards, thereby regaining car, dog, job, and lost true love.' A cloud of melancholy has descended upon the legal profession. Lawyers say they are not having much fun any more. This is in stark contrast to what they remember or have heard about the lives led by lawyers merely a few years ago. Judges complain about being unappreciated but also targeted for unfair media scrutiny; because of the multitude of constraints and efficiency pressures now imposed on them, many judges report that their work has begun to resemble that of low-level bureaucrats, except that a judge cannot hide. These complaints, and a floodtide of others, arise from the lives of many lawyers, judges, and even jurors. By now, it is a clich6 to note that lawyers seem to be miserable. Increased competition, diminished civility, rampant bureaucratization, overspecialization, and grievous overwork combine to form a familiar, unpalatable portrait. In the eyes of the public, the legal profession is in great disrepute; lawyer jokes proliferate like poison ivy. To add injury to insult, leading lights within the Bar and in legal academia now have joined the chorus. We have a plethora of articles and books that bemoan the failed ideals of lost lawyers and the undue influence that lawyers purportedly have throughout the United States. Moreover, study after study tells us of the growing malaise-not to say panic-that seems to flood over more and more lawyers, no matter how apparently successful they may be. So there are, to be sure, numerous "objective" explanations for the misery so widely felt and so frequently described among contemporary lawyers and judges. But there are other, more subtle issues at stake as well. Lawyers surely cannot be isolated from the society surrounding us, and much of the angst deeply felt by lawyers reflects some of our deepest societal problems today. Nevertheless, widespread lawyer misery also reflects subtle but powerful shortcomings in understanding some of the essentials of the lawyer's art and craft. We are awash in grief over the passing of a golden age of lawyer-statesmen with practical judgment. We hear repeated regret about the demise of old-fashioned common law lawyers, experts in understanding context and gradually trying to adjust to change. 2 Taken together with countless speeches, bar journal articles, and flourishing new national media that now focus on lawyers, these books tend to exaggerate the influence of lawyers, while downplaying the obverse impact that societal changes have had on the practice of law. Moreover, mournful celebrations of a lost golden age-an abstract time that never really existed-help produce what David Wilkins aptly has called "a debilitating nostalgia that is likely to reinforce, rather than to counteract, the cynicism and abdication of moral responsibility by contemporary practitioners." 3 Also lost in all the surveys and studies of malaise is the considerable progress made over the past three decades on several crucial fronts. The poor and oppressed, for example, now have much better access to the legal system, though much of this progress currently is at grave risk. The legal community also has much greater concern about, and has achieved much greater success in allowing diversity in our jury rooms, the bar, and the bench. Our present success, though still limited, tends to help us forget, for example, that the ABA did not admit African-Americans until the 1960s and that women, with a tiny set of noteworthy exceptions, were basically not seen or heard within mainstream legal institutions until the late 1960s.

2009