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Reforming the Law

Tuesday, March 19, 2013

Is it possible for the legal profession to reform itself?

Once upon a time, the American legal profession reformed itself. No, that’s not the start of a lawyer joke. It actually happened. It was, to be sure, a long time ago.

In the years immediately after the Civil War, the United States, and especially New York City and state, reached a level of corruption that is hard to imagine today. The modest Tweed Courthouse just north of City Hall in New York, for instance, cost — as near as anyone can figure out — about $12 million to build. The British Houses of Parliament, built 20 years earlier, cover six acres and were designed to house the central political institution of the richest country on earth in unmatched splendor. They cost $10 million.

Things got so bad that in 1868 the New York state legislature actually passed a bill, duly signed into law by the governor, that had the effect of legalizing bribery. The law stated that no conviction on a charge of bribery could be had solely upon the testimony of one party to the bribe. In a pre-electronic age that meant that as long as public officials took bribes in private and in cash, they were safe from prosecution.

And take bribes they did. The English magazine Fraser’s reported that legislators “flocked to Albany likes beeves to a cattle-mart. All were for sale, and each brought a price proportioned to his weight.”

The American Bar Association has become a lobby that serves only the interests of lawyers and liberal causes.

The legal profession, as well, was deeply corrupt. “The Supreme Court [which is the lowest court in New York state’s topsy-turvy judicial nomenclature] is our Cloaca Maxima, with lawyers for its rats,” wrote George Templeton Strong — a lawyer himself — in his famous diary. “But my simile does that rodent an injustice, for the rat is a remarkably clean animal.”

Judges were no better. A bemused Fraser’s Magazine wrote in 1868 that “in New York there is a custom among litigants, as peculiar to that city, it is to be hoped, as it is supreme within it of retaining a judge as well as a lawyer.”

All this was deeply disturbing to the honest men of New York. Harper’s Magazine worried about the city’s future unless it cleaned things up. “If scenes of anarchy are to be avoided,” it wrote, “if New York is to retain its preeminence as the commercial metropolis of the country, if foreign capital is to be retained here, something must be done to prevent, in the future, the unseemly abuses of power into which certain of our state judges have been betrayed in the past.”

But corruption often breeds reform in a democracy. And the lawyers moved to reform the law. In 1870 several very distinguished lawyers formed the New York City Bar Association to police the profession and lobby for reform of the law itself, especially the granting of ex parte writs, where only one side is heard before the writ is issued. Former U.S. Attorney General William Maxwell Evarts, who would be the bar’s first president, lamented at the organizing meeting how bad things had gotten. He remembered a time when “for a lawyer to come out from the chambers of a judge with an ex parte writ that he could not defend before the public, would have occasioned the same sentiment towards him as if he came out with a stolen pocket book.”

Tort law has become one of the royal roads to great riches, while tort lawyers are among the primary fundraisers for Democratic candidates.

When the political climate shifted with the fall of the Tweed Ring in 1871 and probity suddenly and briefly swept through New York state’s government like measles through the third grade, the Bar Association moved to take advantage of the situation. In November of that year, it established a committee to investigate judicial misbehavior. Having accumulated masses of evidence, it petitioned the state senate to remove crooked judges and contributed $30,000 — no small sum in 1872 — to the costs.

Faced with impeachment, some judges resigned, including Albert Cardozo. His son, U.S. Supreme Court Justice Benjamin Cardozo, would devote his life to redeeming the family name in the law. Another, George G. Barnard, described by a contemporary as “a Tammany helot numbered among the Vanderbilt properties,” was removed. When he died a few years later, a little tin box was found among his effects, a classic staple of New York corruption. It contained nearly a million dollars worth of cash and securities.

Thanks to the Bar Association, New York state’s judiciary soon became among the most influential and admired in the country. The bar also moved to raise standards for admittance to the bar, and bar associations quickly spread across the country to police the profession.

Today, however, the law is once again in disrepute. The “American rule,” under which each side pays its own court costs regardless of outcome, is unique to the United States. It is an open and frequently accepted invitation to extortion, as successfully defending a suit is often far more expensive than settling it. It is little wonder that the number of American tort cases, taking population into account, far exceeds the number in any other common-law country.

Only in the United States do tort lawyers chase ambulances with TV ads. And tort law has become one of the royal roads to great riches, while tort lawyers are among the primary fundraisers for Democratic candidates. But it is not enough for some. In 2009, no fewer than three of the most prominent tort lawyers in the country — Dickie Scruggs, Bill Lerach, and Mel Weiss — were all in jail serving substantial sentences on charges regarding their professional conduct. One can only imagine what the mainstream media would have made of, say, three nationally famous Wall Street bankers in a similar situation.

In the years immediately after the Civil War, the United States reached a level of corruption that is hard to imagine today.

Political interest groups, such as environmentalists, have learned how to game the legal system, with the cooperation of judges, not to obtain justice but to delay or prevent actions they disapprove of but cannot prevent by ordinary political means.

It is axiomatic that organizations tend to evolve in ways that favor their elites. And the American Bar Association has become not an organization to police its members’ conduct and to see that the law serves justice, but a lobby that serves only the interests of lawyers and liberal causes.

Compare today’s Bar Association with the American Dental Association (ADA). In 1950, the ADA was faced with overwhelming scientific evidence that the addition of small amounts of the chemical fluoride to drinking water greatly reduced tooth decay. Filling cavities, of course, is a major part of a dentist’s practice.

But the ADA not only endorsed the fluoridation of municipal water supplies where natural fluoride levels were low, it worked hard to overcome political opposition to fluoridation. Today, the United States has one of the highest rates of fluoridation in the world, and the amount of tooth decay has been greatly reduced from its levels in the first half of the twentieth century.

Can you imagine the American Bar Association advocating for, say, reform of the American rule, which would be good for the country but contrary to the pecuniary interests of lawyers?

Now that’s a lawyer joke.

John Steele Gordon has written several books on business and financial history, the latest of which is the revised edition of Hamilton's Blessing: The Extraordinary Life and Times of Our National Debt.

FURTHER READING: Gordon also writes “Congratulations! You Have Arrived at the Greatest City on Earth,” “The Personal Income Tax at 100,” and “Voyager I at the Heliopause.” Roger Bate discusses “Combatting Corruption.” Mark J. Perry blogs about how “Law School Grads Face a Brutal Job Market.”


Image by Dianna Ingram / Bergman Group


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