The Case For Change From Without

-- By WalkerNewell - 27 Feb 2009

Assume Things Are Really Changing

In The Folklore of Capitalism, Thurman Arnold claims that although “their utility to the public and their own members has disappeared”, organizations “still survive”. America’s devotional belief in capitalist structures, if anything, became much stronger after 1937, when Arnold published his book. Our corporations, our ideologies, and our people were tested and proven superior. We won a big war and then spent the next half-century consolidating our victory, while our fellow superpower served as a convenient reminder of the horrors that would inevitably result if our institutions failed. But now, mirroring the organizational failures of Arnold’s time, it appears that the utility of our most vaunted institutions has been exhausted. At the least, the system has been severely undermined by corruption.

Assume, arguendo, that a young lawyer in this climate has one of three choices. Depending on her goals and values, a new lawyer might find satisfaction in any one of the approaches. First, she could seek a practice area which is experiencing growth and capitalize on the turbulence. Bankruptcy law, for example, is doing well presently, and certain specializations of big firms likely will continue to be profitable. Second, she could become part of the inevitable efforts to prop up the failing structures, or to reform them. This might be achieved through a career in government, or corporate law. Finally, she could attempt to use the opportunities presented by turmoil to pursue change from without the system. The path to this end is less certain, and such a career might not be as "stable". However, as the remainder of this paper will show, the last approach allows a lawyer more freedom and less internal conflict.

“It’s not my system, I’m just trying to get by.”

This type of thinking seems to characterize the first option outlined – that is, to profit from the current realities of the system. If the novice lawyer sees herself as merely a plumber, plying her trade, then she should be comfortable with finding the area of law which is currently the most viable and establishing herself in that field. And if she is mostly concerned with herself and her family, then this career path may be the most fulfilling. However, if she has a significant interest in the world outside of a small community, her opportunity cost for pursuing such a career is great. Given the chance to be close to “the thing” which Robinson valued, she instead chooses in favor of security. Again, this is not necessarily a “bad” decision of itself, but it may be a dissatisfying choice for a lawyer with a broad conception of the world around her.

“The system worked better than the alternatives, and I don’t want to shake things up.”

It is indisputable that many people benefitted from the economic and political apparatus of 20th century America. Therefore, it is natural that some lawyers will dedicate their careers to the second option – attempting to prop up the system that allowed this country to prosper for so long. The problem with this approach is twofold. First, it is unclear whether the same philosophies and values that guided our society in the past are still viable. Rigidly holding onto the mythology of “small government”, for example, or “self-reliance” might impede America’s ability to change with changing times and an increasingly interdependent international system. Similarly, to hold onto the businessman as our hero today (which, Arnold notes, we have done for over a century) would be to turn a blind eye to reality.

Second, a belief in the relative supremacy of the existing order over all others fails to account for the many negative externalities that our way of life has imposed on the rest of the world, as well as our own citizens. Our foreign policy evidences a strict “us against them” mentality. For example, an aid package to Colombia that included the spraying of coca fields (thus providing a windfall to U.S. helicopter companies) was both wholly ineffective in stopping cocaine production and had disastrous effects on the poorest segments of Colombian society. NAFTA is another of many instances of our self-interest driven policy causing misery in another country.

Further, it cannot be denied that our system is often reactionary, and seeks to maintain existing power structures. As Woodrow Wilson once said, “The circumstances of privilege and private advantage have interlaced their subtle threads throughout almost every part of the framework of our present laws.” The examples of both systematic tendencies could go on ad nauseum. Suffice to say that it is hard to believe the present system cannot be improved, unless one believes that we have already reached the pinnacle of the imperfect science of governance. If our fledgling lawyer does believe this, she should by all means devote herself to the effort of making sure that things remain the way they are.

"I'm not satisfied."

But if she wants things to change, it is not necessary or even advisable that she attempt pursue change from within the government or corporate world. Arnold posits that organizations will hang on for a long time after they are obsolete. If this is the case, as it seems to be, then a newly minted lawyer will encounter great resistance to her attempts to change the elemental workings of these institutions. Similarly, she need not be worried that her efforts to undermine faltering structures might result in their destruction before substitutes can be found. Again, if she accepts Arnold’s proposition, then her efforts will not have immediate effect. Therefore, it might be more effective for her to work for an organization which is somewhat separate from the power complex, and seek change by proposing alternative institutions or ways to change existing institutions. The drama element of the con has been provided by the circumstances. Potentially, all that is needed is the right idea and the right pitch. Given the reactionary impulses which accompany the fall of institutions, someone with new concepts to sell might well be a true monopolist.

• This is all sort of interesting, Walker, but it's kind of like reading "imaginary world" science fiction. In your world, lawyers are narrowly specialized for a lifetime, the way doctors are on Earth. Just like an orthopedic surgeon is never going to become a neurologist, in your world people who do securities law are never going to become non-profits experts or anti-IP revolutionaries. So young lawyers make these big choices in your world, on the basis of complex strategic reasoning, and hope that they've correctly judged the uncertain future when they chose their specialty. Yours is the story of how lawyers in such a world might seek to effect change. (Thurman Arnold seems to exist on your world, too, but he is also strangely different and only in part recognizable.)

• As I say, this is all very interesting. But we live in the so-called real world, where for example my best lawyer in my anti-IP revolutionary organization, and also my non-profits expert, spent her first six years out of Columbia as a securities lawyer in New York and London. And I trained by getting a JD and PhD? so I could do eighteenth-century Anglo-American legal history. And my senior counseling associate, who hates litigating and tries to avoid it, was a Cravath litigator. The idea that people make life choices at 24 that they are permanently bound by is not what the US American society of continuous personal reinvention would be expected to think, and it doesn't. Our legal profession, like our marital culture and our literary sensibility and everything else about us "Americans" assumes flexibility and movement. If you recast this weird static analysis of life-choices as a dynamic structure of iterated reconsiderations, you will begin to get somewhere.