Leff, Lawyering and Law School

In the conclusion of Swindling and Selling, Arthur Leff offers his opinion about how lawyers think and what lawyers do. According to Leff, lawyers anticipate and influence the future by engaging in an analysis of social phenomena. If Leff’s assertions are true, it seems that the average law school curriculum does not effectively teach lawyering. The methodology of teaching the law solely through judicial opinions lacks a fundamental focus on the underlying social factors involved in human interaction. One way to remedy this divide is to incorporate social science into the legal curriculum.

According to Leff, lawyers find value in the “transaction cost” of a particular case. Leff defines “transaction cost” as the actual behavior of actual people in actual transactions. Unlike economists, who theorize in absolutes, it is essential for lawyers to examine the social forces at work between the engaged parties to a dispute. Lawyers not only need to be equipped with the knowledge of why person A committed act X, but also how factors Z and W influenced A’s actions. By analyzing the causes and effects that create particular human action, lawyers are better positioned to counsel their clients.

Implicit in Leff’s theory is the necessity for lawyers to understand what social dynamics have influenced their client’s mobility. In any given situation, an individual is both restrained and privileged by their social status. When a lawyer pays close attention to the actual phenomena taking place in his client’s world, he is able to understand the structures and processes that are at work. Consequently, a lawyer uses this information to advocate for his client in the most efficient and logical manner.

Leff asserts that a lawyer’s job is to “consider alternative future social snapshots and then attempt to encourage or prevent their actualization by facilitating or retarding particular human action.” Lawyering is therefore a form of social instrumentation. The lawyer who, can anticipate the future, can simultaneously use his knowledge to help shape the future. In this regard, lawyers influence society in ways the legislature cannot. Unlike politicians who are always susceptible to influence and pressure from constituents, lawyers have the opportunity to think and act freely. Lawyers can choose where and for whom they work. Lawyers therefore have the ability to choose what problems they seek to solve.

Assuming that lawyering involves the encouragement or prevention of an anticipated future, it is still unclear why Leff believes lawyers act in this way. Whereas, optimists argue that lawyers anticipate the future out of a desire to remedy rising problems, cynics argue that lawyers desire only to use their knowledge to gain benefits at the expense of others. Nevertheless, Leff ignores passing a moral judgment on lawyering and instead seeks to only characterize its nature. Lawyers, regardless of morality, use their knowledge of human interaction and social phenomena to cause other humans to act in a certain way.

It is essential for lawyers to characterize their clients though an analysis of social phenomena. Accompanying an examination of various social conditions is an ability to navigate and advocate. Nevertheless, the current model followed by the majority of law schools seems to lacks this methodology. The process of learning the law by solely reading judicial opinions does not offer students the full scope of the “transaction cost” of each case. Leff illustrates how underlying social factors can influence the outcome of a case; yet these factors are often given little attention in the law school classroom. Universities should make a conscious effort to supplement judicial opinions, with a study of the social, economic and psychological influences that shape and constrain a person’s ability to acquire justice.

By incorporating other disciplines into the law school curriculum, students will be better equipped to consider the “alternative future snapshots” that lawyers use to encourage or prevent future action. If a student focuses not only on the law, but also on how the law influences human behavior, the student acquires a more general knowledge of how the world works. Congressional intent on behalf of lawmakers is crucial into the formulation of statutes and laws. These Congressmen are influenced by the social dynamics of the world in which they exist. Law students, by studying these factors, will be able to anticipate how and why a law was formed. This allows the student to begin to theorize how to use his knowledge to facilitate future action.

Arthur Leff’s characterization of the nature of lawyering perpetuates the notion that lawyers, in order to implement change, must have an immense awareness of the past and present. The knowledge that is essential to lawyers, consist of more than simply learning the law. Subsequently, law school students should be exposed to more than judicial opinions. If the law school curriculum also consists of social science, law school students will develop an understanding of human interaction. They can then use this information to serve as better advocates for their future clients.