Law and empathy

I have a piece in Time about Sonia Sotomayor’s recent comments regarding what a privilege it is to practice law, and how lawyers who are unhappy “need to go back to square one.”

A couple of additional thoughts:

(1) Sotomayor’s comments illustrate how thoroughly people get de-classed when they rise in the American social system. After all, it’s not as if Sotomayor’s remarks illustrate her lack of up to date knowledge regarding political corruption in Bhutan or something. She’s talking about her very own profession, and yet it seems clear she (like John Roberts) has managed to avoid finding out what’s actually going on in that profession.

This in turn suggests that the new federal law requiring all SCOTUS justices to attend both Princeton and Yale may not be encouraging the most important kinds of diversity.

(2) Few things are more annoying than high-status quasi-lawyers (as I point out in the piece judges and law professors don’t practice law) burbling on about how being a lawyer is a particularly public-regarding occupation. Sure, part of a lawyer’s job involves helping people. But:

(a) You can say this about any service profession, including the guy who brings you a cheeseburger with a side of fries.

(b) Another part of the job involves hurting people, which is a lot easier to forget if you don’t actually do the job, hence the blovations of judges and law profs.

64 comments on this post.
  1. rea:

    Law is an interesting intellectual discipline, and it would be tons of fun to be a Supreme Court justice. Making a living and supporting a large family in the lower ranks of the profession is rather less amusing.

  2. Hogan:

    “I want to go to law school.”

    “My God, why would you do that?”

    “I want to help people.”

    “So you were pre-med and you got a C in organic chemistry?”

    “D+. How did you know?”

    “Lucky guess.”

  3. Snarki, child of Loki:

    Another part of the job involves hurting people,

    Which is why lawyers are held in lower regard than doctors.

    For doctors to be in the same boat as lawyers, for every doctor that helps cure you of a disease, there would have to be another doctor trying to GIVE you that disease.

  4. Rarely Posts:

    What drives me most crazy is that huge numbers of law professors:

    (1) see themselves as public servants and
    (2) contend that they deserve massive compensation because they could make tons of money in the private sector as big firm lawyers.

    I generally agree that teaching can be a form of public service, but this is probably least compelling in the context of law professors at private schools (as opposed to, for example, first grade teachers at public schools). In law school, I encountered numerous law professors who described their decision to enter academia from Big Law as a public service choice. This is delusional. If you want to perform public service, go work for the public defender, or nonprofits, or the government.

    Most law professors could not hack it as partners at major law firms, and very few would be willing to put in the hours and effort necessary to try. They don’t want to do that work, and they would hate it. All of which is fine, but their compensation levels are clearly a result of an inefficient market distorted by huge, indirect government subsidies and the perverse “prestige” markets created by the U.S. News, etc.

  5. Emily:

    Another part of the job involves hurting people, which is a lot easier to forget if you don’t actually do the job, hence the blovations of judges and law profs

    Um, Judges hurt a LOT of people every day by doing their job. If anything, trial judges are the least distanced from the fact that doing their job hurts people. Maybe easier for appellate judges to insulate themselves from that, but they hurt a lot of people too.

  6. Marc:

    …or, perhaps, there is an actual public service role for lawyers that has value. “We’re graduating too many lawyers” is different from “the practice of law has no value”. She’s talking to lawyers with jobs, not people considering applying to law school.

    Here is the full quote:

    ““I think that being a lawyer is one of the best jobs in the whole wide world,” the justice says in the magazine’s question-and-answer style “O interview.”

    “Really?” Oprah asks.

    “You want to know why?” Sotomayor says, taking over the job of asking the questions. “Because every lawyer, no matter whom they represent, is trying to help someone, whether it’s a person, a corporation, a government entity, or a small or big business. To me, lawyering is the height of service—and being involved in this profession is a gift. Any lawyer who is unhappy should go back to square one and start again.”

    This comes across as petty sniping Paul. She’s not telling everyone and their mother to apply to law school. She’s saying she loves the work she’s doing, which is what I’d expect from a Supreme Court justice.

  7. c u n d gulag:

    I’m going to ask what’s probably a really stupid question, but there are a lot of smart people here, many with law degrees, so, here it is:
    There is no Constitutional requirement that I know of, that SC Justices have to have been judges before, or even lawyers for that matter, so, why not explore putting someone on the SC who doesn’t have a law degree, but is highly intelligent, and has common sense?

    Can anyone explain to me why that wouldn’t work?

    Outside of the fact that, “ZOMG! That’s NEVER been done before!”

  8. Hanspeter:

    anyone explain to me why that wouldn’t work?

    At least 40 senators wouldn’t be able wrap their head around it.

  9. Manta:

    “Sotomayor’s comments illustrate how thoroughly people get de-classed when they rise in the American social system.”

    What the heck does it mean? Sotomayor’s status is “rich and powerful”, and her remarks reflect her class quite well.

  10. daveNYC:

    “You want to know why?” Sotomayor says, taking over the job of asking the questions. “Because every lawyer, no matter whom they represent, is trying to help someone, whether it’s a person, a corporation, a government entity, or a small or big business. To me, lawyering is the height of service—and being involved in this profession is a gift. Any lawyer who is unhappy should go back to square one and start again.”

    Yes yes, the lawyers who represent the tobacco companies are just trying to help the corporation they represent. There’s no reason at all for them to feel uneasy with their job or whether they’re making the world a better place.

    I get that it’s an adersarial system and it takes two to tango, but to tell people who don’t like their job that they should ‘go back to square one’ (whatever that means) is crap. Especially coming from someone who has about the cushiest damn job in the entire legal profession.

  11. Manta:

    When a lawyer is arguing that torture is legal, who exactly is he/she trying to help?

  12. daveNYC:

    Until there is a Republican in office, then I look forward to Joe the Supreme Court Justice.

  13. Hanspeter:

    Near as I can tell from this CRS booklet and this FindLaw list, there have been no SC justices that either did not have a law degree, or did not ‘read law’ (basically an apprenticeship) back in the day when law schools weren’t prevalent.

    So yes, “ZOMG! That’s NEVER been done before!” is an appropriate answer.

  14. c u n d gulag:

    Yeah, and in the Senate, they’re almost ALL lawyers.
    Ok, I see the problem.

    Of course, the exception is Rand Paul, so there goes my argument about having non-lawyers on the SC, since he’s an example of why maybe non-lawyers shouldn’t even be allowed in the Congress – of course, he’s the opposite of being intelligent, and having common sense.

    He and the two doofuses from OK, form the Senate’s “Three Stooges.”
    And, from what I remember, Coburn’s not a lawyer either.

    So, neeeeeeeeeeeeeeever mind!

  15. sibusisodan:

    IANAL, but you’ve reminded me of Harriet Miers, so I’m replying to you…

    I think there are two (or more) senses of ‘work’ we need to parse here.

    1. Do there exist persons of sufficient sagacity, temperament, insert adjective here such that they could handle the task of weighing and judging the SCOTUS docket, irrespective of their formal qualifications in, or experience in the practice of, Law?

    Obviously, yes (Harriet Miers not, to my mind, one of this category).

    2. Would putting such a person in John Roberts seat have overall beneficial effects to the justice system as a whole?

    That’s arguable. They would not necessarily be beholden to the ‘law-school’ way of thinking, but that also means that they might not necessarily have trod the paths that law-school thinking has gone down – they would lack the experience of living in this environment and knowing the details of the law. So there would be a degree of ignorance of precedent that, to my mind, would tend to have a negative effect.

    But the obvious comeback to that is that some of the current warm bodies sitting in SCOTUS are more than happy to ignore precedent or issue unreasoning reasoning when it suits them, so what would the difference be.

    Fundamentally, what I’d say about it (as I would about most societal systems) is that it would be a more sustainable improvement to work towards generating better lawyers, than to promote a bunch of non-lawyers over them.

    In much the same way that electing a bunch of politically-inexperienced anti-politics know-nothings to high political office actually doesn’t benefit the political system as a whole.*

    *bonus marks if you can tell me whether I was referring to the Tea Party or the Lib Dems in this comment…

  16. Bartleby:

    I don’t read her as saying “she loves the work she’s doing.” I read her as saying that I should love the work I’m doing. She’s talking about “being a lawyer,” but she’s a judge, and judging sure isn’t lawyering.

  17. sibusisodan:

    Oh, so Torquemada doesn’t get representation now?

  18. Major Kong:

    I once worked in the IT department of a large corporate law firm.

    I’d say it was a mixed bunch. Some were very easy to work with and some were arrogant pricks.

    The higher up the food chain you went the nicer they seemed to be. It was the ones trying to claw their way up that were the worst.

  19. JustMe:

    In my experience, when someone who is otherwise upper middle class says, “I really hate my job and want to do/wish I had done something else,” they are lawyers.

  20. Hogan:

    I think the phrase they’re looking for is “social reproduction of the ruling class.”

  21. daveNYC:

    His laywer quit before the trial. The defendent wanted to testify and the laywer couldn’t Torquemada it.

  22. Superking:

    (b) Another part of the job involves hurting people, which is a lot easier to forget if you don’t actually do the job, hence the blovations of judges and law profs.

    This is the reason, more than anything else, that lawyers are despised by the public. Other professions are not subject to the conflict inherent I practicing law. When you hire a lawyer in many common cases, it is likely that there will be another lawyer opposing you an trying to hurt you or prevent your recovery. If you are terribly sick and need a doctor, no one will hire another doctor to make sure the illness runs its course. Surgeons do not have to fight other surgeons to cut out cancer.

  23. somethingblue:

    Because every lawyer, no matter whom they represent, is trying to help someone, whether it’s a person, a corporation, a government entity, or a small or big business.

    I know helping corporations always gives me a nice warm feeling in my tummy.

    (And I thought corporations were persons. Did they change it back when I wasn’t looking?)

  24. sibusisodan:

    A hit, a very palpable hit! [doffs cap]

  25. mds:

    Harumph.

  26. John:

    There is certainly no requirement that supreme court justices be judges, and in the past there have been many who have never been judges (there’s even one on the court right now in Elena Kagan). I think it would be a very good idea to end the Harvard/Yale Law–>Federal Clerking–>some high end lawyer job–>District Judgeship–>Appeals Court Judgeship–>Supreme Court track that seems in recent years to have become close to mandatory for all Supreme Court Justices. In particular, I think it would be a good idea to bring some politicians with experience in elected office (particularly the legislature) back onto the Supreme Court.

    It seems to me, though, that you want to have judges who are knowledgeable about the law. While there are almost certainly some non-lawyers who know enough about the law to be competent justices, I think that “has to be a lawyer” is a pretty good rule of thumb for judges. If you look at the low end judges (traffic court, etc.) who often aren’t lawyers, they’re generally the worst – issuing rulings with no basis in law, and so forth. Not that judges who are lawyers can’t do that, but I don’t think it’s unreasonable to demand a law degree.

    It is unreasonable to demand a Harvard or Yale Law degree, a clerkship for a Supreme Court Justice, and a circuit court judgeship for all prospective Supreme Court Justices.

  27. Bloix:

    “why not explore putting someone on the SC who doesn’t have a law degree, but is highly intelligent, and has common sense?”

    For one thing, because the great majority of what the Supreme Court involves the highly technical manipulation of statutes, rules and precedents.

    As anyone who has been to law school knows, the first semester is an anxious succession of sleepless nights as the students struggle to understand what the hell is going on in the cases they are reading. It’s like trying to climb a ladder where the first rung is just a few inches higher than you can jump.

    I assume that you consider yourself a person of “high intelligence and common sense.” Try reading the opinion at this link – it’s the most recent decision of the Supreme Court (January 22, 2013) and it’s a unanimous opinion, so it’s pretty simple. Do you understand it? Could you write it?

    http://www.supremecourt.gov/opinions/12pdf/11-1231_32q3.pdf

    Now here’s a recent opinion that was more difficult, and it has a dissent:

    http://www.supremecourt.gov/opinions/11pdf/11-246.pdf

    Do you understand the issue? Do you understand why Sotomayor disagrees with the other justices?

    You can look at other decisions here, and see whether you have a clue what these disputes are about and how they were resolved.

    http://www.supremecourt.gov/opinions/slipopinions.aspx?Term=11

  28. snurp:

    You went to Emory too, huh?

  29. Bloix:

    “When you hire a lawyer in many common cases, it is likely that there will be another lawyer opposing you an trying to hurt you or prevent your recovery.”

    The whole point of lawyers in civil disputes is that the law provides a way of resolving these disputes that doesn’t involve private armies shooting at each other. And “Disputes” is a word that includes things like dealing with losses that potentially can wreck someone’s life or destroy their business. If you don’t have lawyers to deal with this stuff, you get mafias. So we have legal rules that result in government-sponsored outcomes backed up by government-sponsored force. Lives do get wrecked and businesses do go bankrupt. But that’s better than having people murdering each other.

    It has nothing to do with “helping people” and it doesn’t have much to do with justice. It has to do with making complex systems run without resort to private violence.

  30. witless chum:

    “When they rise” is pointing out Sotomayor’s well-known life story. It just means you might expect her to remember that and speak more like a person who grew up working class, rather than just parroting (what Paul thinks is) reflective of her current class status. Or am I missing something?

  31. Linnaeus:

    Ah, the blue-flamers…

  32. Manta:

    “It just means you might expect her to remember that and speak more like a person who grew up working class,”

    Not at all: I would not expect such a thing: it’s quite common for a parvenu to despise his/her previous peers.
    And it shows that the much of the talk about “empathy” and “wise Latina” were bullshit: she is just another rich and powerful person.

  33. L2P:

    So true.

    Lawyers rarely get involved in “win-win” situations. It’s almost always a zero-sum game where somebody has to lose. Half the time it’s you, and that sucks. And since people don’t really like hearing “yeah, you have a sucky case and that’s why you lost,” they tend to hate on lawyers.

    Of course the excess billing, hyper aggression, and frivolous litigation don’t help.

  34. Hogan:

    it’s quite common for a parvenu to despise his/her previous peers.

    Which is why we have a word for it–”de-classed.”

  35. NonyNony:

    In our modern society, lawyers have essentially replaced mercenaries and bodyguards, because litigation has replaced assassinations and public assault.

    If the body you’re guarding happens to be a tyrant, nobody’s going to love you. And if the target you’re trying to hit happens to be well loved, nobody’s going to love you either.

    I can completely see why some folks in the law profession trying to make a living might just feel a bit down about the kinds of people they have to protect/hit as part of their jobs.

  36. shah8:

    I will never understand people who get Cs-Fs in Organic Chemistry. My Organic Chemistry class was pretty easy for me, and I thought Organic was kinda fun, in a puzzle-like way. Biochemistry was much harder for me, as it, like set theory, circuits, and other sumsuch, depended on my having a crystal clarity in my mind (I have a nasty ADDI, and any time I actually have to *think*, my mind gets all wuzzy and error-prone).

    Actually, I could say the same for Physical Chemistry, too! Though I couldn’t keep the class due to a conflict. Maybe I just like chemistry.

  37. UberMitch:

    It’s almost always a zero-sum game

    Really its almost always a negative sum game

  38. cpinva:

    not really.

    “I can completely see why some folks in the law profession trying to make a living might just feel a bit down about the kinds of people they have to protect/hit as part of their jobs.”

    no attorney is forced to take on a specific client. in fact, if they feel unable, for whatever reason, to zealously represent said client, they are required to decline. the usual reason, i’d guess, is probably some kind of conflict of interest, which can include being morally opposed to the client’s position/business/politics/whatever.

  39. Keaaukane:

    Christ, I would just like to see a few defense attorneys on the SC. You know, people who know how the police and the State can (or tend) to massage the “truth” to fit their agenda.

    It might make the 4th amendment relevant again.

  40. c u n d gulag:

    THIS!!!

  41. dave:

    This is true except that almost no attorney could remain in business for very long if he declined to take on any client whose position/business/politics/whatever was morally objectionable.

    Only the very upper echelon (and only of a select portion at that) of the profession has any freedom to choose clients based on moral grounds.

  42. Chatham:

    This reminds me of the legal mills I used to temp at where armies of lawyers would do temporary doc reviews until the contract expired, then they had to go find another temp doc review job. The big firms wouldn’t hire them because they hadn’t been in a top 3 (or top 10) law school. But they were happy to outsource the most tedious work to them. Sometimes there would be some kind of screwup, and an entire project would go under a couple days into it.

    If someone’s paying you to do something, then you’re helping someone. Doesn’t mean much more than that.

  43. Gareth Wilson:

    Right, I never could understand why Sotomayor being Latina was supposed to make her a better judge. Suppose her parents were actually Italian, and had pretended to be Puerto Rican to hide from the Mafia. Little Sonia is raised believing she’s Latina, but just before she’s confirmed, her political opponents find out she isn’t. If you actually believed a Latina judge was superior to a non-Latina, that information would make you less likely to support her. Which makes no sense.

  44. Warren Terra:

    I found Organic to be fairly fun, and P-chem to be excruciating. When I actually sat back and thought about the implications, P-chem was clearly extremely interesting and important, but based on my experience and on others’ tales I suspect P-chem is hard to teach well, or attracts as its aficionados people with character traits often inconsistent with good teaching – or that it’s used to weed out students who require good teaching.

  45. bianca steele:

    This was a interview piece in a women’s magazine? Do you believe every word in “Can This Marriage Be Saved?”, too?

  46. Warren Terra:

    You. Even if the outcome is acceptable to both parties, there will be the big lawyers bills. And of course, it’s harder to see the justification for the big bills after an amicable resolution than if they went to pay for a vicious war.

    I’m not saying lawyers are greedy, or that they don’t deserve to get paid. I’m just saying, very neutrally, that they’re expensive. Although some of the worst sorts seem to think they have to dramatize the situation and maximize the pain in order to show they’re earning those fees …

  47. CJColucci:

    A lot of non-lawyers would do fine with the Supreme Court’s constitutional law docket. I suspect that many accountants would do better than most lawyers with its tax docket. Non-lawyers in various businesses might do better than most lawyers in some part or other of the docket touching on their livelihoods.
    But a significant portion of the Court’s overall docket is just plain law law; stuff few informed laypersons have any views about, or any reason to think about. Questions involving evidence, or the law of civil or criminal procedure, for example, are not subjects on which wise, generally well-informed and well-meaning people can be expected to contribute to a solution when a tough issue comes up.

  48. Warren Terra:

    Er, “Yup”, not ” You”.

  49. Logistics:

    In practice, most disputes that become legal disputes are complex enough that you can see your side’s point. It’t not like human interactions lay out nicely in terms of good guys and bad guys.

  50. sibusisodan:

    Yeah – this. Non-lawyers aren’t prone to care about the law-ness of law (in the same way that most non-specialists aren’t interested in the inner workings of their non-specialism). But it’s vital for the whole justice system to function.

  51. john:

    “no attorney is forced to take on a specific client.”

    If you go work at a firm, then (until you become partner, assuming you do) you are forced to take on whatever client the partner brings in.

    If you jump to in-house, you are your client, you do its bidding.

    If you go solo, unless you are one of the very few at the very top, you take whatever walks in the door just to survive.

    There is very little chance that a lawyer will be in a position to turn down a client.

  52. john:

    “If someone’s paying you to do something, then you’re helping someone. Doesn’t mean much more than that.”

    This is an important point. Every job involves helping people, law isn’t in any way special on this point. But as Campos pointed out, not every job also involves hurting people, law is special on this point.

  53. Bloix:

    Actually, Sotomayor’s opinions tend to show more empathy with ordinary people than those of her colleagues. She’s been particularly solicitous of the rights of prisoners and the accused, which is pretty interesting for a forme prosecutor – unlike her colleagues, presumably, she knows about the abuses that take place first hand.

    The problem is that, as a judge, she’s completely out of touch with the current economic reality of legal practice. When she talks about the life of a lawyer, she’s talking about the realities twenty-five years ago.

    And there’s no reason she would be in touch with what’s going on today – appellate judges have very little contact with the world except as mediated through the lawyers that appear before them. And the lawyers she sees now are at the top of the profession. If something is not in a case before her, and it’s not in the New York Times, there’s no reason to think she knows about it.

  54. Keaaukane:

    Domo arigato

  55. Richard:

    Absolutely the case. If an associate has a moral object to representing one of the firm’s clients, the he or she better start looking for some other employer.

    The fact is that lawyers such as myself are hired guns. We can find the merit in whatever side we are on. And I don’t think that’s a bad thing.

  56. dre:

    But Paul has always hated Sotomayor. Didn’t he write the first salvo against her, which was then cited by all her right-wing detractors. Of course he’s not going to interpret her words in a charitable way, he’s inclined to interpret them in the worst possible way. Do you still think she’s unqualified for the Supreme Court, Paul?

  57. Lurker:

    I’m not a lawyer, not even an American, but I think I was able to follow the train of thought in both cases. The first was a pretty clear case where
    a) there is a long-lasting mistake in a regulatory formula to calculate compensation
    b) health care provider files a reimbursement claim ca. 15 years after the care, but quite soon after the mistake was found. Regulation allows claims only for 180 days.

    The question is essentially political: Can government be rebilled decades later on the grounds of mistakes? Here, the answer was negative: No, it can’t. The health care provider has the duty to make sure that it is reimbursed correctly.

    In the second case, the question was highly technical: Can a neighbour sue the federal government when the feds buy land for an Indian tribe to use as a casino? The technicality centers on the sovereign immunity waivers in Administrative Procedures Act and Quiet Title Act. The latter explicitly prohibits such suits. The majority held that the Administrative Procedures Act can be used, because the purpose of the suit is to prevent the building of a casino, not to seize the land.

    Sotomayor dissented. She claims that the appropriate vehicle for the grievance would be a suit seeking relief from environmental nuisance, because that would not extinguish the federal title to the land. This would retain a stronger federal control to the lands held in trust for Indians.

  58. JL:

    I failed organic chem in college (in fairness, at a university known for being generally academically brutal). It was the only class I outright failed. With a bunch of other classes to worry about, I didn’t have the leftover mental resources to hack the memorization. I ran into a similar problem the next semester with neuroanatomy but managed to pull my grade back up that time.

    Biochemistry was more like an interesting puzzle to me, and I passed it easily despite having failed the organic chem prerequisite. Digital circuits were fun, discrete math was fun. I never took a formal p-chem class but aspects of it have come up in other classes (like biophysics) and been fine.

  59. JL:

    She’s been a good justice. Like Bloix said, she’s been good on rights of the accused. And I see no evidence that she despises the working class. Being out of touch with the current economy for entering lawyers might be naive, but I’m not sure I’d call it classist.

  60. Aaron:

    I once had a chemistry professor explain to me his trick for success in an organic chemistry class: “Don’t try to understand it. Memorize the rules. You won’t have the context to understand it until after you take physical chemistry.” I shared that observation with a Ph.D. physicist who shared how much he hated organic chemistry for exactly that reason. It’s about as far as you get from Newtonian physics, where with some basic formulas, basic calculus, and some logic you can derive pretty much any other formula you require.

  61. Aaron:

    I had a few law professors who were more candid: They couldn’t hack it in a law firm and got out as quickly as they could. That was at University of Michigan Law School, so Prof. Campos may have encountered some of them “back in the day”.

    Candor aside, I can’t recall a one of ‘em who I thought was a good professor.

  62. Links 1/31/13 | Mike the Mad Biologist:

    [...] (but we need more job training programs. Or something) Ever seen a whale photobomb a juvenile gull? Law and empathy Sonia Sotomayor Debate: Should Unhappy Lawyers Blame Themselves? New Jersey Governor Vetoes Minimum [...]

  63. Aaron:

    Perhaps it’s more simple than that:

    Compare how law professors talk about judicial opinions in law review articles, and how judges talk about precedent in legal opinions, to how other scholars speak about judicial opinions – for example, how political scientists write about appellate courts. The legal profession tends to assert that the development of case law is a reasoned process, and that judges err in letting politics into their evaluation of the legal issues. Outside scholars tend to view the courts as a political institution making political decisions couched in the language of law and objectivity.

  64. Aaron:

    If you hand one copy of that case to Scott Lemiux and the other to a randomly selected lawyer…. I think you’ll get a better interpretation from Scott. I’ve seen lawyers quote headnotes as if they’re a substantive part of the case.

    “The Band intervened….” A court watcher’s dream if I ever did see one.

Leave a comment

You must be