One of the presidential candidates has stated critically of the other's tax policy that "...he wants to be the redistributionist-in-chief" and "spread the wealth", while the speaking candidate, in contrast, would rather "create more wealth" presumably for the benefit of all. So, I asked myself, "Are these mutually exclusive alternatives"? Can't we do both? Then it dawned on me. This is exactly the dichotomy that has poisoned the law and the legal profession.
Bear with me on a short note of history.
1. A Page of History -- In the tumultuous period following the Revolution, the law was one of the few refuges of stability. As the lawyer/priest of the law and guardian of stability for the community, lawyers were expected to promote social order rather than the base motives of their clients. The most important assignment of that community was to protect the local citizen's interests in private property. This mission meant that the colonist lawyers had to resist the redistributive passion of the majority. The community's paranoia was that if the majority were not controlled, they would sweep away the nation's whole social and economic foundation. Elizabeth Mensch, The History of Mainstream Legal Thought, pg 25. It was the lawyer's noble, even sacred task to protect property interests from redistribution whatever the personal cost.
2. Spread the Wealth -- A noted legal scholar, Morton J. Horwitz, has observed that there have been few constitutional revolutions in America. One was during the New Deal when there was a fundamental shift in the constitutional relationship of the states to the federal government as well as of government to the economy. Professor Horwitz opined that this period of our history reflected a "....constitutional legitimation of an interventionist and redistributionist federal government..." which also represented the successful culmination of a generation of intellectual struggle against the legal foundations of the old order. It meant a paradigm shift in the law.
Our legal profession is divided into the haves and the have-nots. The haves' law practices are located downtown in magnificent hi-rises and they meet at award banquets they give to themselves.
The have-nots struggle in small law offices in the 'burbs, eking out a surprisingly small income while providing legal advise to those that search for crumbs. They serve in local bar associations without recognition nor do they get a dinner.
The haves occupy the local district attorney office or the attorney general's office with government benefits. The have-nots work for the legal (court appointed) defenders office at half the salary of a DA and legal defenders provide legal advise to those that search for crumbs.
The haves people august positions at the State and National Bar Associations that arrange the award banquets mentioned above. The have-not's rewards are providing pro bono (for the general good) legal help to their local community because they want to. The haves list their names in the pro bono awards publications because they can.
The haves do not answer questions of how we can improve our legal profession because they already have theirs. Adam Smith put it this way: "(This is)... the vile maxim of the masters of mankind: ... All for ourselves, and nothing for other people."
Now, if I can just find that redistributive chief of the legal profession to see if I can arrange a bit of wealth spreading.
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