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lawyers who defend the state against society

A little while back, I got into a discussion with a student about the role of lawyers in society. As usual, I explained my position that lawyers mostly work at facilitating transactions and wealth transfers (e.g., settlements and damages). While there is value in rule enforcement and reducting transaction costs, they don’t increase the size of the pie.

I also opined that lawyers don’t drive social change. It’s misleading to think that desegregation ended because of a lawsuit. Rather the lawsuit is about institutionalizing policies that are made possible by shifting public opinion. My student then pointed out an interesting thing: one thing that lawyers do is defend the state against society. In other words, when public opinion changes and people litigate, the lawyers often act as “institutional workers” to help the state maintain its legitimacy through the courts.

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Written by fabiorojas

May 1, 2014 at 12:07 am

11 Responses

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  1. It’s hard to generalize and say that lawyers do one thing, because on every issue there are lawyers on both sides. So there are also lawyers who are trying to defeat the lawyers who are helping the state. I agree that they facilitate transactions and wealth transfers, though.

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    Chris M

    May 1, 2014 at 1:03 am

  2. I’m not sure I understand what is supposed to happen in the counter-factual without lawyers serving that role.

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    Wonks Anonymous

    May 1, 2014 at 3:32 pm

  3. A large number of lawyers is a sign of societal dysfunction, since it indicates that norm-driven coordination is no longer possible.

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    Johannes Polemicus

    May 1, 2014 at 8:03 pm

  4. This approach leaves out the most basic econ soc view (e.g. Dobbin 1994, Fligstein 1990, Roy 1997) that law and legal interpretation thereof constitutes most economic activities in capitalist societies.

    In regulated industries, for example, lawyers continue to play a tremendous role in setting the bounds of competition. Lawsuits initially, not legislation, liberalized the telecommunications field here in the United States (Hush-a-phone in the 1950s, the various MCI cases of the 1970s, and of course US v. ATT in 1982).

    Lawyers were also progenitors (almost by accident) of the modern corporate form. 19th century railroad lawyers and lawsuits, for example, created many of the core distinctions (for-profit vs. non-profit) and institutions (corporate personhood) underlying contemporary firms that we now take for granted.

    Pretty big social changes by most accounts…

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    dr

    May 2, 2014 at 12:25 am

  5. But in all of those cases, there were also lawyers on the other side. Does it make sense then to say that lawyers did this?

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    Chris M

    May 2, 2014 at 12:34 am

  6. just because you have lawyers representing the state on one side does not deny the arguments and interpretations on the other side. ultimately, someone has to win and at least in terms of corporate law, this adversarial process has proved a fruitful arena for articulating and pushing through new institutional innovations.

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    dr

    May 2, 2014 at 2:54 pm

  7. OK, but then you’re talking about the effects of legal processes, not lawyers as a cohesive group.

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    Chris M

    May 2, 2014 at 4:39 pm

  8. these ideas have to come from somewhere, be formatted to fit existing legal precedents, and of course verbally argued, but i guess it’s possible to imagine the legal process minus the people who do this work, their social context, and the development of contemporary legal thought.

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    dr

    May 2, 2014 at 4:45 pm

  9. I guess my beef is with the question: What role do lawyers play in society? That’s different from a question like “What roles do parents play in families” because there’s a reasonable degree of consistency in what parents do. When you have lawyers arguing with other lawyers, it’s hard to say there’s any consistency in the role of lawyers in society, so the question (if phrased that way) would permit you to find answers, but the opposite of those answers would also be true.

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    Chris M

    May 3, 2014 at 9:15 pm

  10. I think the discussion in the comments misinterprets the student’s point that lawyers defend the state. My read is that this comment is not referring to the government’s attorneys (of course there are lawyers on both sides of any legal dispute). Instead, it refers to the idea that lawyers defend the legitimacy of law and thus the legitimacy of the state. They defend the state by enabling social change (and the expression of grievances against the state) through the state’s mechanisms. Lawyers on both sides are part of this system.

    Fabio, is this what your student meant?

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    Allison

    May 6, 2014 at 7:46 pm

  11. Allison: That is correct. LBGT rights was the specific example. From 1995-2005, public opinion changed and now anti-gay law was illegitimate, so lawyers had to reinterpret the law and defend via state mechanisms.

    Like

    fabiorojas

    May 6, 2014 at 7:48 pm


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