In a commencement address at Atlanta's John Marshall Law School, the author posed this challenge: Fix the broken legal system and serve everyday citizens.Reuters
I am a professor of law at Harvard. I run the university's Edmond J. Safra Center for Ethics. At that Center for Ethics, we study corruption. Not Rod Blagojevich, or Randy Duke Cunningham corruption -- not "criminals violating the law" sort of corruption. Instead, corruption as in improper influence.
Think about a doctor taking money from a drug company, and then sitting on a panel that reviews that company's drugs: Not illegal -- if disclosed, not unethical -- but nonetheless, an influence that causes many to wonder whether it was truth or money that led the doctor to approve the drugs.
Or think about an academic taking money from a telecom company, and then giving testimony before Congress that just so happens to serve the interest of that telecom. Nothing illegal about taking that money -- if disclosed, nothing unethical -- but nonetheless, an influence that causes many to wonder whether it was truth, or money, that led the academic to speak in favor of that company.
Or think about just about every member of the United States Congress taking money from the interests they regulate -- Wall Street banks, coal companies, insurance companies, big pharma -- and then regulating in a way that makes life great for them, while making life for the rest of us not quite as great. Nothing illegal about taking that money -- if disclosed, nothing unethical -- but nonetheless, an influence that causes many to wonder whether it is truth and justice that leads Congress to care about them. Or whether it is just the money.
The system has convinced most of us that the law is for the rich, except that part of the law that involves the prisons.
I tell you this about me because I want to establish my own expertise about corruption, so that I have the authority to say this: My being here today, as your graduation speaker, is totally corrupt. There are plenty of brilliant and successful souls who would have loved the honor of addressing this graduating class of lawyers. But I'm here because I begged. And I begged because my nephew is one among you. And the love and pride that I feel for him led me to do something that I have literally never done before: ask to speak someplace. And that, in turn, led your law school to do something no law school has ever done before: granted me an honorary degree and allowed me to speak to a graduating class.
This is all deeply corrupt; I am expert and I can prove it. It wasn't reason that led me here; it was love. And while that's perhaps a more pedestrian, forgivable sort of corruption, the question it now begs is whether I can dig myself out of this deep and corrupt hole, to make something useful, maybe even virtuous, from this corruption.
Many of my students feel corruption every day of their working lives. They came to law school to do justice. They left law school to work in Inc. Law -- "Inc." as in law for corporations. No doubt, that is an honorable and important part of our profession, but for many of them, this isn't the law they imagined when they came to law school. They go through their whole careers never meeting a client who is a real person, only representatives of the "persons" we call corporations. And while there are many who are convinced that corporations are persons, as I once saw on a sign at a protest, I'll believe that corporations are persons when Texas executes one.
My point is not to criticize Inc. Law. It helps create wealth; it helps protect wealth. It gives great innovators a chance to bring their innovations to market.
Instead my point is to emphasize the importance of the other part of law. Not the "Inc." part, but the part that touches real people with real problems. It's the part that keeps a family in their home against an unjust demand for eviction. Or enforces a simple contract with a bank, to supply the credit for a coffee shop. Or protects a woman against her abusive husband. Or forces an insurance company to pay on a claim it rightly owes. Or defends a child in a foster home against the neglect of a distracted state.
This, too, is law -- the law of Erin Brockovich, not the law of Cravath Swaine & Moore.
But here's the thing about this law: No one thinks it works well.
There are plenty of lawyers in "Inc. Law" who go home at the end of the day and feel that that system works. Their clients got the process they were due. Their arguments were heard. Their interests were fairly considered. If through litigation, the litigation took place in a federal court with great judges, beautiful carpets, and clean bathrooms. If through a transaction, the deal was cut in a conference room at the Four Seasons. No doubt, these lawyers work hard. And the system rewards them with the confidence that the system works.
Not so with the law of real people. There is no one in the criminal justice system who believes that system works well. There is no one in housing law who believes it is what law was meant to be. In contracts, you read about disputes involving tens of dollars, maybe a hundred -- the disputes of ordinary people. These disputes are not for the courts anymore. Or if they are, they are for courts that are an embarrassment to the ideals of justice. The law of real people doesn't work, even if the law of corporations does.
Now if I were to don my reformer's cap and turn to the question that I spend most of my time now addressing -- the corruption of our democracy by the corrupting influence of money -- I'd say, who could be surprised by this? In a world where 0.26 percent of Americans give more than $200 during a congressional election, 0.05 percent max out, and 0.01 percent give more than $10,000, a mere 0.0000063 percent -- 196 Americans -- have given more than 80 percent of the superPAC money spent so far in this election. Who could be surprised that it is the law for the rich that works and the law for the rest of America that doesn't?
We lawyers are responsible for this corruption. And we lawyers will only earn back the respect of the people when we show the people that the law serves the people well. That it serves them quickly. That it serves them efficiently. That it serves them justly.