The First Thing We Do, Let’s Kill All the Lawyers

THE OPEN MIND
Host: Richard D. Heffner
Guest: John Sexton
Title: “The First Thing We Do, Let’s Kill All the Lawyers” … W. Shakespeare
Recorded: 11/18/98

I’m Richard Heffner, your host on The Open Mind. And today I’m going to press my guest particularly hard about something he wrote not so long ago namely: “In our society, lawyers are and must be the conscience of both the legal system and the client — for if they are not, no one will be”.

Yet in September 1998 David Margolick wrote in The New York Times about law graduates that “while the best and brightest have always marched off to Wall Street-style law firms, the firms themselves have changed, largely as a result of a vastly more competitive marketplace.

“Increasingly profit-oriented, less likely to have long-term counseling relations with loyal clients, less concerned with inculcating values into young associates, these firms seem to be producing lawyers who are more parochial, with dulled ethical and political instincts.”

So what then are we to make of what my guest, John Sexton, for a decade now the Dean of New York University’s ever more highly regarded School of Law insists, that Lawyers are and must be the conscience of both the legal system and the client”.

Trained as a historian, Dean Sexton has a doctorate in the history of American religion, is a Magna cum laude graduate of Harvard Law School, was Law Clerk to U.S. Court of Appeals Judges David Bazelon and Harold Leventhal, and then, at the Supreme Court of the United States to Chief Justice Warren E. Burger.

In short, John Sexton has been there, done that as far as the highest precincts of the law are concerned. And for a decade now has presided over what has undoubtedly become one of America’s finest law schools.

I wonder, then, how he argues his profession’s case, perhaps enabling us to put off Shakespeare’s injunction, “The first thing we do let’s kill all the lawyers”. How do you argue that, Dean Sexton?

SEXTON: Well, it’s a uniquely American argument to start. It’s something that de Tocqueville noticed about America. We decided that this would not be a society defined by religion, that we would instead define ourselves by a concept of being that was captured in law. And we created this profession called “the lawyer”. We do it very differently here in legal education, for example, from the rest of the world. Here legal education is three years and it’s graduate school. It’s when you’re, you’re more seasoned intellectually. And increasingly we, in legal education, are trying to make a connection between the concept of the lawyer that undergirds the American view of that profession and what we do in the classroom. And it was, of course, in that context that I made the remark that you quoted. Now, David Margolick is correct. There are vast changes going on. Certainly in the elite practice of law. And I would say even more broadly in the practice of law in America, and around the world. So, I’m not going to contest that. There are vast changes going on.

HEFFNER: The ones he describes?

SEXTON: I think in part the ones he describes, and many others. Now, my claim was that we in education, in particular, and we in this, what I’ll call, just to goad you a bit her, the sacred profession of law … just so you know I’m not going to back down from my position. So we in that profession, we have to think about what we’re doing. We who run schools have to think about what the Jesuits taught me to call “the Ratio Studiorum”, why is it we do what we do?”. Why do we require these courses, why do … why is it three years and not two and not four? Why do we offer this kind of offering or that kind of offering. And we have to connect it to the concept of what we’re trying to produce, which are people that go out into a role in society. That then leads to the reflection that you quoted, what ought that role to be? Now, now I worry about specialization as a compromise on that role. I worry about over-commercialization in law, as a compromise to that goal. But that doesn’t prevent me from saying “this is where we ought to be”, and “this is what the role of lawyers is”. This does not gainsay the fact that we are not there in all respects now. Probably never have been there in all respects although the gaps appear in different places over time. But let’s identify the target of what law and lawyers ought to be, and that’s what I do in that statement. What their role is in our society, no matter how well or badly we’re doing that role right now. And then let’s, as a profession, as educators, begin to order what we do to try to move towards that.

HEFFNER: Well, it interests me when you say the “sacred profession of the law”. And I think you rather thought that perhaps I was going to take exception to that notion. I don’t. In fact, this past week, as I do each year in my … one of my classes at Rutgers, I have my students read The Oxbow Incident. And there is that wonderful selection when Davies says to the group that just about ready to form a posse and go out and lynch a group of men, he talks about that being a sin against society, and your doctorate in the history of religion is so interesting to me because when I thought of that, I thought of this “Law is more than the words that put it on the books. Law is more than any decisions that maybe made from it. Law is more than the particular code of it stated at any one time or in any one place or nation. More than any man, lawyer or judge, sheriff or jailer who may represent it. True law, the code of justice, the essence of our sensations of right and wrong, is the conscience of society”. And it seems to me as I read what John Sexton has written that clearly that’s your approach. But I worry, as you worry, about the great gap between your approach and what it is we are doing to these young women and young men who being ground out of law school each year.

SEXTON: Well, there is certain data that we can observe which puts a point to what you say. The fact of the matter is that law schools today are attracting what I would say is a disproportionately high share of the very bright young men and women in our society. Even on my model, a disproportionately high share. I mean there are the scientists and mathematicians who are going to go do their thing, and now there are the computer folks that are going to go their thing and then there are people like my son, the actor, who are going to go and do … follow their muse. But, you know, the people that you and I identified with a liberal arts education, who used to choose among an array of things that included, you know, Ph.D.’s and so on, those folks more and more are going to law school now. So, as I say, that puts a point on it because if that talent pool’s coming in, then we as educators have to think about what we’re doing as we mold them to go out. And then the profession has to think about how it uses them. This then comes simultaneously at a moment where this … to continue using the phrase, “this sacred instrument … law” … is spreading to parts of the world that have never known it before. So both in public law and in private law, you know, two-thirds of the world are coming to understand the rule of law, that have never understood it before. You can speak now in China about certain relationships of the individual to the State … you know, as humanitarian law begins to spread, you know. And we speak to quote “human rights issues”, close quote … in China. You can also speak …I spent a day with the Supreme People’s Court with Jerome Cohen of our faculty, who is probably this country’s leading expert on China. And I listened as Jerry tried to persuade those folks that the simple notion of the enforceability of a judgment in a private lawsuit had to be recognized, otherwise investment would not flow in, food would not move into people’s mouths, economic development would not be possible. So the rule of law is spreading, it’s spreading exactly at the time when we here in America are beginning to become less chauvinistic about our rule of law. So all these points come together … the disproportionate share of intellectual talent that’s coming into law schools and into the legal profession, the increased potential impact, for good or evil … of law throughout the world, and the beginning of a period of reflection about the role of law here in the United States. In my simple little world … cause me to say, I want to devote my professional life to moving us a little bit closer to the ideal of the law, and away from whatever it is that causes Shakespeare to say … because he’s clearly not talking about the … he would not kill the lawyers that de Tocqueville saw as the keepers of the conscience of society. I mean Shakespeare was going after the lawyers who were abusing the law, who were retarding society, who were doing something different from the ideal. So we can accept Shakespeare as well. Okay? He being the negative side of it.

HEFFNER: Be very easy for he to find targets here in our time.

SEXTON: And, and very easy for him to shoot at those targets because that’s a, that would be a thing that would be applauded. And one would hope that he would be careful enough to discern between targets that have been painted in away that would make them seem like targets, and targets that really ought to be targets.

HEFFNER: Well, look … I was reading through some of your presidential messages as head of the Association of American Law Schools, and I was just fascinated by the one in November 1997, when you wrote a piece entitled, “We must protect the law and its role from the demagogues” and then quoted political researchers who are recommending to political candidates what fodder the lawyers are, it is … and this is a quotation from “The Language of The Twenty-First Century: A Guide to Candidates” …

SEXTON: Which is not something I wrote …

HEFFNER: No, no, no. It’s something you took out after … deplored … “It’s almost impossible to go too far when it comes to demonizing lawyers”. And when I offered the Shakespearean quote, I thought to myself, “don’t do that because you’re just participating in this God-awful business of understanding that lawyers are easy targets now. But hell, you’re making the lawyers into what they are today and will be tomorrow, and you do it, as you say, at a time when the American given for legal involvement is spreading throughout the world. What in the world are we going to be spreading?

SEXTON: Well, we have to be careful what we spread. That was my point about I know Shakespeare …

HEFFNER: I know …

SEXTON: … would differentiate targets. The demonizing of lawyers, the lawyer joke is pervasive. I was walking to the ferry at our summer home and there were three young people selling lemonade, the oldest was 12. And a woman walking in front of me said to the oldest of the three children, a young boy, “what are you going to do with the money?”. And he said, “I hope to go to law school”. And the woman said, “Don’t ever do that”. And I said, I said to the woman “Hold your tongue”. And I sat down and I had a book with me I was reading and I said to the three children, can you read to me. And it was clear to me that this young man, you know, had that spark in his eye, you know. And I said to him, “I’m going to send you something in the mail, give me your address, I’m going to send you an NYU Law School tee-shirt, as long as you wear it here by the ferry”.

HEFFNER: {Laughter]

SEXTON: And think and talk about what a lawyer can be. But you see, we have folks going out like this political advisor who was advising a whole set of candidates in that book, and it becomes quite shocking when you read it. And attacking quote “the tort lawyers”, close quote. And using examples, which are examples. Look, no one would think that someone should get four million dollars because a cup of coffee spills in their lap, or that there’s a chip in their car.

HEFFNER: Don’t say “no one”. No, no, no … you …

SEXTON: Maybe the lawyer who participated in a third of that recovery, and certainly the person that got it. But, I mean, when a student of dispute resolution, like I am, looks at that, you say, “that’s not a good thing”. Right, this is not a good thing. On the other hand, the American contingency concept. I mean there was a reason why the folks that had committed a wrong in the Bohpal incident wanted that resolved in India, where there was no contingency fee so effectively the people could not get, get a lawyer. And where the ceiling on damages on a human life was $50,000. And those are not things that we would want to bring into our system. So one has to be careful about balancing things. And then one has to be very careful about … I mean, we have for example, built into our legislation in laudable ways the notion of private Attorneys General. So, for example, just to take one case, there is an active Bar in the corporate area which acts as private Attorneys General with regard to Corporate Board behavior. Now I’ve been on Corporate Board, and I understand that in some cases those folks can come in and just put an unjustifiable price on the transaction. One Corporate Board I was on, we had brought the company through a difficult period, we had given a severance package to a CEO, who was leaving, it was a lavish, overwhelming severance pay … certainly not by some of the standards that you see. And one former Federal Judge, now in private practice filed a derivative law suit on behalf of his wife, and since I was the only Board Member who hadn’t been involved in setting the severance package, I had come on late … I went down to see this judge, and the judge looked at me in the eye and said, “$75,000″. He said, “I understand it’s a frivolous … $75,000 will settle the lawsuit”. Outrageous. Wrong. On the other hand, on the other hand, day in and day out, the better members of the private securities litigation were on the plaintiff’s side, hold corporate Directors accountable to the stockholders, to the public and so, in the best tradition of the lawyers conscience. So you have to be careful in its nuance and it’s complicated, and Shakespeare shouldn’t come out with a machine gun shooting.

HEFFNER: I’m never going to say to Shakespeare “don’t do this, or don’t do that”. But I’m going to ask you something about Harry T. Edwards comments, his article … “A New Vision for the Legal Profession”. Judge Edwards was Chief Judge of the United States Court of Appeals for the District of Columbia. And after praising, incidentally, NYU Law School as an indication of what could and should be the content …

SEXTON: This was a Dean’s dream to have the Chief Judge of the United States Court of Appeals get up in front of the American Law Institute in its Keynoter speech and say and say that. I have to say on NYU’s behalf.

HEFFNER: You don’t have to say it … I’ll say it.

SEXTON: [Laughter]

HEFFNER: It was a wonderful, wonderful, wonderful tribute to NYU Law School. He writes, and this is selected for raised letters, “When an associate is considered for partnership his or her billable hours and client-getting capacity should not be the only matters under consideration. The firms should also ask how much pro bono work has this associate done? When was the last speech she gave. How involved has he been with Bar activities, etc., etc.”. But you know, those of us on the outside, when we think of what problems we see in your profession, Dean, think a little bit more, not about has he done the good thing, or has she made a few speeches, talk about the whole concept of the adversarial system and what it seems in a dog-eat-dog, nature red and tooth and claw Darwinian way to have done to our society. Now, how do we respond to that? By saying to a would be partner, “make speeches, participate in pro bono work”, that doesn’t get to the heart of the matter.

SEXTON: Of course it doesn’t get to the heart of the matter. And I embrace not only what Chief Judge Edwards said, but also what you say. I mean … and he wasn’t saying that those are the only things that ought to be considered. And he’d be the first, and part of the reason he applauds our law school is because we’re, we’re committed in a way that is unusual to the notion of trying to think out what it is we’re doing in the three years we have this precious commodity of our students’ minds with us. And what we do in our research and linking that to a notion of the lawyer which would balance many, many things and would look at the adversary system, for example, and would say, “Let’s remember first and foremost our role as officers of the court and consciences of society”. And would look outside of the adversary system to all the things that lawyers do. I mean because most of what lawyers do is not inside the adversary system, of course.
HEFFNER: I don’t understand that … please.

SEXTON: Well most of what lawyers do is … I mean the lawyer first and foremost is a communicator that helps people understand and put in words perhaps for others to understand, perhaps in the context of a deal, perhaps in the context of something as simple as a Will. In innumerable context … what it is you, as the clients, mean and it’s of course in that context, you say what is it that you, as the clients mean, that I might cause you to see some of the implications of what it is you’re saying and/or contemplating doing that might call you to a higher plain.

HEFFNER: This is dispute resolution.

SEXTON: Well, this is outside of dispute resolution, even. This is corporate activity, ab initio, this is private activity at the beginning, you know, before a dispute’s even arisen. The best of all worlds never gets us to a dispute. And lawyers play a vital role of course in that context of institution building, communication, economy building, society building. All those things have nothing to do with the adversary system. And we have to remind our students, and our profession that it’s in those context often that the higher calling comes to be. When you’re in the pathological situation, where a dispute has occurred, you know, where things have broken down, you’re already in the minority of situation. You’re in a situation there, usually, where emotions are running high … you know where … and there the lawyer as communicator, as conscience, as officer of the court has a special role to play, too, that’s perhaps different in kind from … in the institution building and, and enterprise building context. But the theme of communications runs through and the theme of calling to a higher plain, and a higher level of awareness runs through it.

HEFFNER: Why then has the profession been doing such a poor job of indicating that to the public at large, which is the public … the element of our society that, that feeds on the Shakespearean approach?

SEXTON: Yeah. Well, I think part of it is that we’re, we’re at an institutional moment where, as a society, we permit ourselves no heroes. No institutions. I have a theory that all of this starts in 1958, when the Dodgers decided to move from Brooklyn.

HEFFNER: [Laughter]

SEXTON: [Laughter] I mean at that, at that point …

HEFFNER: When I gave up baseball.

SEXTON: Well …

HEFFNER: Because I was a Giant fan.

SEXTON: Well, I’m sorry I must leave this show immediately! [Laughter] But, in any case … the point that the theologian in me is trying to capture there is that the … that, that there was a kind of binding mythology that the Dodgers and the Giants provided to our communities at that moment in time. It’s captured in books like The Boys of Summer. And that … that we had moved from there to a place where we’re wondering whether Bernie Williams will go play for Arizona, shows how far we’ve come. And we’ve in the process gone through the institutions of … you and I didn’t believe Presidents could be assassinated. We had read about that in history books, or leaders could be assassinated. We’ve gone through Vietnam, we’ve gone through the separation of the Catholic hierarchy from its flock over issues like family planning. And our institutions, I mean we now intuitively devour our institutions. And one of those institutions is law and one of those institutions is lawyers. Now, that’s not to say that the American legal profession has not contributed greatly to this, this by excesses, by some of the trends that you quoted David Margolick as identifying. This is a highly nuanced problem that’s not going to be solved simply by a concept of legal education, or even a concept of legal education that tries to connect into powerful graduates of the school and speak to Bar Associations.

HEFFNER: Now … Judge …

SEXTON: We can begin there.

HEFFNER: … Judge Edwards singled NYU out. What … to what degree can we be hopeful that what it is you bring to NYU Law School is being brought to the training of lawyers, the education of lawyers around the country. You say at this point in time, and this point in the universe … the history of the universe, when American lawyers moving out … what indication is there that the right stuff is moving out. And we have one minute left.

SEXTON: Okay. Well, first I want to make it very clear, I don’t think even NYU is there yet. We’re, we’re moving there and I’m proud of where we are, and I’m proud of what our students and faculty are feeling. I think more and more there’s a conversation going on nationally among legal educators in places like NYU and other outstanding schools that are trying to address these questions will become models. There are transformative0 moments in education as in anything else. A transformative moment happened in law about a hundred years ago at Harvard Law School. It’s my feeling that what is happening now in American education, it’s my personal goal for our school that it be the place … that be, at least one of, I would say, the centers of that. But this conversation is going on throughout legal education and the profession. And I …

HEFFNER: What an interesting thing that you bring the history of religion and the law together. Clearly we’ve got to talk more. The program is over, but I hope you’ll come back and join me again for a further discussion.

SEXTON: Well, thank you, I’ve enjoyed this greatly.

HEFFNER: Thanks so much. And thanks, too, to you in the audience. I hope you join us again next time. If you would like a transcript of today’s program, please send four dollars in check or money order to: The Open Mind, P. O. Box 7977, F.D.R. Station, New York, New York 10150.

Meanwhile, as an old friend used to say, “Good night and good luck”.

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.