I'm not really trying to argue in favor of seminar room nihilism. I think I boxed myself into an absurd position above just trying to set up the idea I took from Andrew's original post. (1-4 above were just restatements of what I took from that post, and aren't really meant to be doing any work here.)

Maybe what I'm getting at will make more sense if I bring the discussion down to Earth and give some examples. One constructive response to the anxiety I'm describing would be to represent clients whom our society places at a systematic disadvantage -- for instance, through indigent criminal defense work. Similarly, I'm not particularly worried about harms arising from civil rights work, or plaintiff-side class action work, or from any of the examples Prof. Moglen mentioned above. I think I'm really just saying that if we want to make sure we're really doing justice, we should always side with the underdog. (I suppose that might be obvious.)

So what am I suggesting we ought to worry about, even if we side with underdogs? I'm not totally sure myself, but I think it has something to do with how legal doctrines can take on a life of their own, and get applied by courts in both just and unjust ways. For instance, in my Con Law class we've been talking about substantive due process, which is now understood as the basis for a constitutional right to privacy; if we're concerned with protecting civil liberties, we'll likely argue our cases on the basis of doctrines connected to substantive due process. But substantive due process arose in Lochner and subsequent cases as a justification for preventing states from passing hour and wage laws for workers' benefit. Of course, Lochner is supposedly discredited now, but it's not clear to me that the doctrine of substantive due process couldn't be used for similarly obscene ends in the future. The same could hold true for many legal doctrines.

-- MichaelHolloway - 15 Feb 2009