Be Nice to Losers

Fixing the Inside from the Outside: the Need for Creative Lawyering to do Justice to All By: Eric Soehnlein

In examining the ways legal thinking develops and the way that thinking interacts with social constructs, we have failed to appreciate the problems of transitional equity that inevitably flow from changing the law. Just as Holmes cautioned that judges too often failed to “weigh considerations of social advantage” in the way they reasoned, we must be careful we don’t gloss over issues of transitional equity that arise when we try to change the world. Those changes will affect people who (whether they chose to buy into it or did so unconsciously) ordered their lives around activities the law had previously encouraged. Unfortunately, bright line rules in legal thinking or complete reliance on the protections of the political process don’t guarantee people are treated justly when we try to make the world a better place for all (and inevitably make it a better place for most). As lawyers we need to be astute as to who wins and who loses, and when those people are treated unfairly, we have to think creatively to use the law for just outcomes rather than mere just processes.

Although much is made about the way judges reason to decisions, even the most “outcome oriented” approach to reasoning will not always insure justice for all. Take the implications of Felix Cohen’s approach to legal reasoning. Cohen asserts that when courts merely conduct strict, mechanical adherence to precedent it leads to disjoinder between legal rules and underlying social reality. Cohen advocates that judges rest their decisions on a “functional” method, crafting legal rules based on social and ethical values. Although Cohen is undoubtedly correct in asserting that law should correspond to social reality (e.g. what people really value), his account ignores that there might be a value in adhering to precedent for its own sake; namely that individuals within a system order their lives around legal rules that encourage certain actions and protect value. In short, (and Veblen’s discussion of what activities various classes choose to pursue is instructive here) legal rules have encouraged well meaning, hard working people to play our societal game by its rules to “win.” Though there is a natural rejoinder—namely that if something is “valuable” it will still be protected in accordance with the underlying social values of society (perhaps even becoming law through custom)— change that comes in accordance with Cohen’s approach leads to uncertain outcomes and perhaps it’s own evil. If a judge weighs all “social considerations” and rules according to a utilitarian maxim, some people’s rights or privileges have to be sacrificed for the good of others.

This problem is well illustrated by Kelo v. City of New London, 545 U.S. 469 (2005). There, following the state’s designation of the city of New London, Connecticut as a “distressed municipality,” the city proposed a large-scale plan to replace a faded residential neighborhood with office space for research and development, a conference hotel, new residences and a pedestrian "riverwalk" along that would neighbor a new development in the city by Pfizer. When fifteen of the homeowners in the affected community refused to sell their homes, the city condemned the properties, and the residents filed suit in state court for a violation of the Takings Clause. New London’s actions were ultimately upheld by both the Connecticut Supreme Court and the Supreme Court of the United States on the grounds that the taking was for the permissible “public use” of “economic development” (increasing jobs and tax revenue, as per Justice Stevens’ opinion)—this in spite of the fact that the property transfer ultimately resulted in private rather than public ownership.

The result in Kelo strikes at our most fundamental notions of fairness. People had purchased property—indeed, perhaps had been encouraged to purchase property through societal incentives—in expectation that they would have that property to live so long as they chose. Not only was this assumption ultimately erroneous, but their divestiture came about from a decree of elected members of local government, thus showing an inability of those individuals to protect their property through the political process. The natural rejoinder to this problem, namely some sort of “rights thinking” that would assert that some individual rights cannot be abrogated regardless of what is at stake for the rest of society, leads to an even worse result. There are obviously situations in which the rights of individuals must yield to the public good (e.g. harassing, threatening or otherwise harmful speech, pollution or abuse of property rights), and to argue that such rights are off limits absurd.

So what’s the solution? While Kelo demonstrates that neither political nor judicial constraints always result in fairness to all, matters of social advantage are perpetually weighed by judges and political branches. At the same time, we should remember what Arnold informs us of -- men are born into society and espouse its principles, even if the principles have little to do with corresponding action. Thus, assuming ethical conduct, someone who conformed to those rules, while not necessarily purely “innocent” of misconduct at all times, certainly deserves some protection when the system they bought into goes up in smoke. This is consistent with Arthur Leff, who asserts that when men are forced to leave a relationship they need a degree of “cooling out”—a weaning off, or way of saying goodbye (what firms are doing to deferred first year associates?).

The aforementioned tenets of judicial reasoning and political process have been designed (after hundreds of years of thought by smart people) to work toward justice, but they can’t guarantee it in all cases. Although academia often encourages law students to think about problems in terms of “process solutions,” it is necessary we don’t lose sight of the small margin of people who get squeezed when we try to make things better. Although we’re fortunate enough to have to think about the academic exercise that is “the law,” as lawyers we have to be willing to work toward just outcomes, not mere perfect processes. As jobs 160k jobs vanish and Biglaw fails, I urge you to remember that it was fixing these inequities that brought you (or at least that brought me) here.