Of the Lawyers, By the Lawyers, For the Lawyers

Prof. Reynolds notes a Times Select piece that argues that “judges can be counted on to rule in favor of anything that protects and empowers lawyers.” This goes directly to a discussion I was having with a friend of mine the other day about what has long been my biggest beef with the Supreme Court.

Despite the fact that most lawyers are indeed honourable, it’s difficult, I think, for many to distinguish between “good for lawyers” and “good for society” (or even “good for clients as a class”). It’s a blindspot that is hardly unique to lawyers. Teachers, policemen, businessmen, and directors of non-profits, just to name a few off the top of my head, all doubtless see that which serves their interests as also being necessarily good for society generally, and their stakeholders particularly.

But that doesn’t make it so. And in this instance, what serves lawyers, the legal profession, and the power of the judicial system is most definitely not always what’s best for everyone affected. I’m speaking of the tendency of the Court to dilute, or even abandon outright, bright-line rules in favour of “balancing tests.” More and more every year, decision-making is being taken away from the people who must enforce the rules day in and day out and handed to judges acting in hindsight.

This is most obvious, I’d say, in criminal law but it pops up everywhere. The precise Constitutional status of Miranda is still debatable, but it does have the benefit of being a clear and simple rule that even Barney Fife could apply without having to second-guess himself. Likewise, Roe v. Wade, for all the controversy it created, set down clear and easily followed rules about the regulation of abortion. But where the former was recently given greater weight by the Court, the other has followed what has become the more common path and been replaced by a test that can only be decided by lawyers in black robes (I mean, of course, the “undue burden” test).

I can understand that Justices, reviewing the kinds of complicated issues that arise in the modern world, naturally shy away from hard-and-fast rulemaking. We all of us intuitively understand that the more complex the circumstances are, the more the particulars of those circumstances matter. Nevertheless, rules that are clear, simple, and easy to understood and enforce are beneficial, too. One need only spend a short while wading through the quagmire of rules and exceptions that make up judicial precedent on the warrant requirement for searches and seizures to realize that, where once their was clarity, it’s now a wonder that police and prosecutors ever get anything introduced into evidence (okay, yes, I exaggerate; but only a little).

As a lawyer, this tendency away from bright-line rules and toward complex, multifaceted tests most assuredly serves my pecuniary interests. But it doesn’t necessarily serve my clients, who must pay for answers heavy on qualifications and caveats – or, worse, to litigate a close question with no certainty that their decision-making, however reasonable it may have been at the time at the time, won’t be second-guessed by some guy in a robe. It could be that society as a whole benefits when each set of circumstances that generates a dispute is (presumably) carefully weighed by an impartial third party with the power of the State undergirding her judgment. But the hidden costs – in time, expense, and judicial resources – of tossing out bright-line rules in favour of “balancing tests” are impossible to calculate. My own sense is that they outweigh the benefits more often than not.

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Dodd Harris
About Dodd Harris
Dodd, who used to run a blog named ipse dixit, is an attorney, a veteran of the United States Navy, and a fairly good poker player. He contributed over 650 pieces to OTB between May 2007 and September 2013. Follow him on Twitter @Amuk3.


  1. Christopher says:

    “Despite the fact that most lawyers are indeed honourable”

    Just because YOU said it doesn’t make it so!

  2. MikeT says:

    The public would indeed benefit from simpler laws, one which are based on common definition of words and things like that. Anyone with a common understanding of the American English vernacular should be able to understand the vast majority of the laws of the state. The job of the lawyer should be to help them pick apart the nuances of **their case** to fit it into the clear lines of the law.

    Lawyers love complexity, which is one reason I laugh when people talk about the legal profession as though it were as naturally complex and equal to the technical professions. Complexity is the bane of consistency. Ask any engineer who has had to make a sophisticated and flexible product how important simplicity is, and you’ll find out that a simple design is at the heart of most good designs. The legal approach seems to be the exact opposite.

  3. Dodd says:

    “Despite the fact that most lawyers are indeed honourable”

    Just because YOU said it doesn’t make it so!

    Yes, yes. Very droll.

  4. Steve says:

    This was a great article. It is too bad it won’t get any further then a discussion. I don’t see judges giving up their perceived right to rule in a case so that it goes the direction they personally desire.

    I was wondering if you could comment on the other two branches having checks and balances on the judiciary branch. Why can’t the executive and legislative branches tell the judges to rule in a manor as you describe as the simplest and most straight forward. Why does only the judiciary branch get to tell the other two they are wrong and to change the way they are doing something? (e.g. MA supreme court telling the legislature to write the law so that same sex marriages were part of the MA constitution)

  5. Dodd says:

    Thank you for the kind words.

    As for your questions, the pat answer is that the Legislative and Executive Branches have their checks and balances on the Judiciary by design: The Executive nominates judges and the Senate confirms them (in some states, like mine, judges are elected, providing a direct form of checks and balances). Further, they have other options, as well. When the Hawaii SupCt ruled that the state’s Constitution required gay marriage, the legislature put a Constitutional amendment on the ballot. Massachusetts could have followed a similar process. And, of course, the Legislature can impeach judges for misconduct.

    Whether these various checks and balances are sufficiently equivalent or have become unbalanced is, I suspect, a matter of perspective.