Home / General / Selling the idea that helping corporations pave Lake Tahoe for money is a noble enterprise

Selling the idea that helping corporations pave Lake Tahoe for money is a noble enterprise

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In grad school, I was fortunate enough to TA for the late Stu Scheingold’s class on Lawyers in American Politics, which essentially served as a warning to idealistic future law students about what law school would to their sense of ethics and justice. He always assigned Richard Kahlenberg’s Broken Contract — which at the time was out of print, but Kahlenberg gave him permission to just give students a photocopied version — rather than Scott Turow’s more celebrated (and also good in its own way) One L — because it was a very effective description of how an elite legal education did its best to turn you into someone like Neal Katyal:

American elites have a maddening tendency to justify their actions by either pretending power dynamicsdo notexist or obfuscating how they work in the real world. The idea that large corporations are actually victims in need of protection from mountains of frivolous lawsuits is indeed what Katyal seems to believe, and that argument has a receptive audience among Republican-appointed Supreme Court justices; but those of us without law degrees are not too “partisan” to understand what Katyal is doing, we just reject it.

“In general,” Goldstein concludes, “this seems like an example of the political left eating its own. Katyal is one of the most prominent progressive lawyers in the country over the past four years. He just happens to work for a corporate law firm, with its corporate clients.”

If you buy Goldstein’s logic, Katyal just “happens” to work for Hogan Lovells and just “happens” to have decided to take this case; it is then his professional responsibility to make its case to the best of his ability, even if doing so leads untrained observers, unfamiliar with the elegance of the practice of law, to assume that he doesn’t think people should have the right to sue corporations that they believe abetted their enslavement. A lot of things just “happened” on the way to that morally obscene oral argument.

Corporate lawyers frequently dissemble on this point, so I will be clear: Nothing in our “legal system” or Constitution says Nestle and Cargill deserve “the best advocacy” when it comes to civil claims. 

[…]

Instead of continuing to argue about these ideas in public, the American legal community largely decided to close ranks around a highly ideological understanding of professionalism and independence that happens to support the right of an elite attorney to make a fortune. Now any time someone—take, for example, Richard Kahlenberg, who went to Harvard Law and wrote a book about how that institution turns would-be idealists into corporate stooges in training—broaches concerns like Berle’s, they are met immediately with derisive sneers from law professors about not understanding the majesty of the legal profession.

People like those law professors and Neal Katyal illustrate something I wish more professional Democrats understood: The professional norms of the political class are not only not a substitute for actual values, they are, frequently, actively harmful to the project of liberalism these people claim to be advancing.

This belief that “everyone deserves competent representation” has spilled over into industries like public relations and lobbying, where it has even less of a basis in tradition or law. It is the official mantra of people who actually believe that they, themselves, deserve to receive money from ethically dubious entities in exchange for providing ethically dubious services—all without having to feel bad about it at any point or consider it in conflict with their ostensibly liberal worldviews.

The idea that taking large amounts of money from a corporation to persuade the Supreme Court to make it much harder for employees to protect their rights against powerful employers is actually a noble enterprise no different than representing an indigent criminal defendant is so silly that to state the argument is to refute it, and yet it’s widely believed among elite legal liberals because…do I have to come right flat out and tell you everything?

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