A ‘government not of men, but of laws’

John O. McGinnis

Paul Clement, the best Supreme Court advocate of his generation, won an epochal Second Amendment victory for his clients this past summer. The august law firm of Kirkland & Ellis, where he was a partner, rewarded him by offering the choice of dropping his clients or leaving the firm. And he left. His representation of an individual’s right to bear arms had likely offended the sensibilities of many of his partners and associates because they did not like this kind of liberty.
This defenestration is the analogue in the law firm world to what is happening at many elite college campuses: a pall of orthodoxy has descended that brooks little or no dissent. And just as orthodoxy on campus undermines the epistemically open function that universities perform in liberal societies, so do actions like that of Kirkland & Ellis undermine the function lawyers must perform to support the liberal order.
The notion that ours is a “government not of men, but of laws” is central to the classically liberal theory of politics. A government of men controls by discretion but a government of laws controls by rules which are transparent to the public and allow citizens to plan. But laws are often not entirely clear, so men and women legitimately dispute over their content. Thus, a central purpose of the legal system is to clarify the content of these rules through adversarial presentations that result in authoritative decisions by neutral tribunals.
This function of law has implications for the responsibilities of lawyers. In representing clients, they provide a service to society as a whole by making arguments that result in the clarification and application of the rules that govern us. Thus, even if they are representing someone open to moral criticism, like an alleged criminal or tortfeasor, they help the world by clarifying the law.
It is not a fair criticism, therefore, to complain about lawyers’ representation so long as they make arguments within the bounds of the law. Indeed, they may even disagree with the actions they defend. John Adams, an undoubted American patriot, famously defended British soldiers accused in the Boston Massacre. Nor should a lawyer abandon a client once representation is undertaken, as Kirkland tried to force Clement to do, because the client or the cause he espouses has become unpopular.
The Servant of the Damned by David Enrich is premised on a new illiberal order of law, where law firms should eschew bad corporations (“the damned”), even if these clients have plausible or even winning arguments on the merits. The book is a sustained attack on one law firm, Jones Day, but its broader message comports with what may be called “woke law.” Only those deemed virtuous enough or those with causes deemed virtuous by people like Enrich deserve excellent representation, except for alleged criminals, who must continue to have a constitutional right to counsel. And not surprisingly, the law firm attacked is one that has a critical mass of conservative lawyers (although, like almost all of its peers, most of its lawyers’ political contributions go to Democrats). Enrich’s normative thesis is linked to a more descriptive one: that law firms once operated with more virtue but now have become greedy mercenaries, ready to represent anyone with enough cash. Jones Day also exemplifies this transformation as it grew from a Cleveland firm to a global powerhouse.
Enrich is an indefatigable reporter of fact, and the one benefit of his book is that he provides enough facts to undermine both his normative and descriptive thesis if the proper context is added. For instance, while he condemns Jones Day for representing various modern corporations, like tobacco companies and polluters, he celebrates the older version of the firm for representing a steel company that in the 1950s defied President Truman’s order to seize its mills. What he leaves out is that this executive order was issued to end a labor dispute on terms favorable to labor unions and was necessary, according to Truman, to win the war in Korea. Under the standards that encourage lawyers to determine the virtue of their clients’ underlying cause, that representation could have easily been dismissed as advancing the interests of a greedy, unpatriotic company at the expense both of workers and the national war effort. With the hindsight of history, that perspective is wrong, because whatever one thought of the company and Truman’s policy, the Jones Day lawyers advanced a plausible separation of powers argument about the appropriately circumscribed role of the executive. The result of their efforts was the landmark decision in Youngstown Sheet and Tube Co. v. Sawyer, which held that the President can regulate our property only with authorization from Congress.
When in more recent times, lawyers at Jones Days represent tobacco companies pursuing claims that their advertising is protected as commercial speech, they are advancing our legal system no less than their predecessors. Their clients might be impugned, but their arguments help define the contours of an important First Amendment doctrine. Even when these lawyers show that the illness of a sympathetic plaintiff was caused not by smoking but by other poor health habits, lawyers are serving the legal system by forcing proof of causation—one of the key elements in a typical tort suit. Perhaps the Constitution should be am-ended or tort law revised, but in a government of laws, those rules must govern until changed according to the rules of the system.
Enrich does note that in two cases Jones Day lawyers were accused of ethical breaches which went beyond zealous representation of their clients. And here I have much sympathy with his concern as an abstract matter: both the judiciary and bar need to do a better job at enforcing ethical rules on attorneys, regardless of whom they represent. (For instance, the state auditor of California recently showed that the state bar failed to discipline even lawyers who repeatedly violated the rules of professional responsibility.) But Enrich overreaches in his certainty that the allegations against Jones Day lawyers show that it is a particularly bad firm. Indeed, there was never a final determination that any ethical breach occurred. In one case, the firm settled on terms that even Enrich recognizes were not unfavorable to Jones Day. Lawyers of all people recognize that settling litigation even when your side is right can be wise, because litigation is costly and uncertain. And in the other case, the appellate court reversed the sanction of the district court. Enrich says that the reversal was on a technicality, but the “technicality” went to the lower court’s failure to give the lawyer proper notice about the sanction. Again, Enrich has trouble recognizing that such enforcement of technicalities is one way that courts protect our liberties.
His descriptive thesis about why Jones Day and other firms have become businesses-like behemoths without as much regard for professional norms is not strong either. He credits Steven Brill’s claim that the publication of law firm revenues and profits in his magazine, The American L-awyer, was the reason that firms focused on the botto-m line and began to poach the stars at other firms.
But legal journalism was the result rather than the cause of the forces making law firms bigger, more competitive, and thus of more public interest. They became bigger because government became bigger, creating, ex ante, a need for more lawyers to comply with regulation and, ex post, a need for more lawyers to address the litigation generated by regulation. While Enrich seems to deplore the fact the law firms started to add lobbying to their arsenal of weapons, he quotes John McCain as denouncing of one Jones Day’s clients: “Such companies must be judged guilty until proven innocent.” With legislators like that, is it any wonder law firms felt the need to expand into lobbying to advance their core role of protecting their clients’ liberty and property from governmental overreach?
Law also became more competitive. To be fair, Enrich does note that the Supreme Court permitted legal advertising, but he does not make enough of the importance of that decision in leading to competition: a firm poaches famous lawyers in part because they advertise the power of the firm. And even more important than advertising has been the rise of powerful general counsel at corporations—again driven by the increased importance of regulation—who monitor and pit law firms against one another for the best delivery of legal services. Thus, as lawyers have bec-ome more important actors in a highly regulated society, the best naturally command ever higher compens-ation and competitive dem-and for their talents, and law firms need ever larger armies of foot soldiers to support them. There is no need to resort to explanatio-ns rooted in greed or innovative legal publications.
The objectivity in Enrich’s book is also marred by his patently left-wing politics. The damned are always corporations rather than regulators, even if regulators can themselves decrease economic growth and competition, harming millions of people. Moreover, one of the bases of his indictment of Jones Day is that more of their attorneys went to work for Donald Trump than from any other law firm. Enrich clearly dislikes Trump and his policies, but he never shows that the Jones Day lawyers acted unethically in their work for him as President. Some became judges as a result, but rewarding good lawyers in this way is something that happens in every administration. Some Jones Day lawyers became disgruntled with the firm’s representation of Trump, but given the intense feelings Trump elicited, that is not a surprise either.
Enrich’s disdain for the conservative side of the political spectrum manifests itself in some obvious mistakes. He says, for instance, that as a law professor, Antonin Scalia “helped establish the Federalist Society to put conservatives on the federal bench.” The Federalist Society was actually established by a handful of students in the early 1980s to inject some greater debate at monolithically left-wing law schools. The idea that a student organization even with the help of a law professor could influence the selection of federal judges would have been regarded as risible at the time. As the Federalist Society grew in the following decades to become a network of lawyers as well students, some of those lawyers themselves became influential in judicial selection, although the Society took no position on judges or on any other legal issue, unlike other legal organizations such as the ABA.
There is a widespread debate about whether we have hit “peak wokeism.” Whatever the answer in the wider world, Kirkland’s parting with Clement and the publication of Enrich’s book both suggest that the answer in the legal profession is no. And when lawyers are canceled for representing clients with plausible legal arguments, the results are worse than campus wokeism, because legal representation protects the rule of law and thus the liberty of us all.