How does one become a lawyer-slash-author? Legal smarts would help. A famous name, handy. But a preoccupation with seemingly non-legal matters — morality, character, and above all the art of storytelling — this would seem un-do-without-able.
Ask Kermit Roosevelt, great-great grandson of Theodore, Yale law grad, former Supreme Court clerk to Justice Souter, assistant law prof at the University of Pennsylvania, and now a widely heralded novelist. He’s 34 years old.
Roosevelt’s office at Penn is overrun with paper. Like some out-of-control ivy, it has grown in mounds across the desk, the bookshelves, the chairs, and the floor. But the man is not like his office. He thinks and speaks with such precision that one begins to imagine that even the waves of paper threatening to swallow his office probably follow some elusive internal logic.
Listed recently in the Washington Post Book World’s “Washington is also reading . . .” section, Roosevelt’s book, In the Shadow of the Law, concerns the fate of the K Street law firm Morgan Siler, a practice that has lost its moral compass. Young associates, fresh out of law school, give their lives for thousands upon thousands of “billable hours.” Peter Morgan, the senior partner, obsesses over profit margins. A partner openly gloats about hiding incriminating papers in Canada to escape a discovery motion.
The plot revolves around two cases, a pro bono death penalty case in Virginia and a class action following a chemical plant explosion. The book teems with commentary on the institutionalization of the death penalty and the use of securitization to defend companies against tort liability. Professor Roosevelt plows with equal treatise-like seriousness into the complexities of the capital’s dating scene. But the book’s deepest concern is with the moral corrosion of the young lawyers who are the grunts of corporate practice.
But, says Roosevelt, his book is not meant to be a sweeping indictment of the modern corporate law firm. “A friend of mine sent me an email saying that the managing partner of Skadden had had a meeting with the summer associates,” Roosevelt recounts about Skadden Arps, one of the nation’s most powerful law firms, “and [he] said, among other things, that he disagreed with the view of law firms expressed in In the Shadow of the Law. Which I thought was a very flattering acknowledgment of the book, but taking it as more negative than it was meant to be.”
“I’m really not against big firms,” he says. “Big firms can actually be a force for good because they do have a lot of resources, and they can devote a lot of energy to a pro bono case.” Small firms and public interest groups have it a lot harder. “If a small firm is trying to do that, it’s a huge cost that’s going to have a really measurable impact.” The real question, then, is not the size of the firm, but how it conducts itself. “It’s not big firm versus public interest,” Roosevelt emphasizes.
Still, In the Shadow of the Law suggests that today’s cutthroat legal marketplace has made it all but impossible for corporate lawyers to be good. In the novel, Archie Morgan, the founder of Morgan Siler, once set sharp limits on cases the firm would undertake, avoiding the cowboy capitalism of mergers and acquisitions. His son Peter, the new managing partner, has no such inhibitions.
“The competitive market probably makes it harder. The client comes to you not necessarily saying, ‘What’s the best way to structure this deal’ or, you know, ‘What can you do for us?’” Instead, “the client is frequently saying, ‘Here’s something that we’ve cooked up. Is it okay?’” The problem arises when the client’s innovation is illegal. “If the firm says ‘No, it’s not, this is tax avoidance,’” the client moves on to another firm. This produces what Roosevelt calls a “race to the bottom, in terms of what the firms are willing to do for the clients.”
The original remedy for such a perversion of incentives, Roosevelt says, is broken. “The ABA [American Bar Association] self-regulation is supposed to handle that, I mean, you’re supposed to have ethical standards that tell you what you can and can’t do. And part of the story that the book is telling is the collapse of this ethical code.”
The disintegration of corporate ethics wouldn’t matter, however, if judges were capable of sorting out the bad arguments from the good ones. But, says Roosevelt, that’s often not the case. “I saw that you don’t always have judges who are that attentive, and you have clerks who rely on what the parties say, and sometimes people are deceptive, sometimes lawyers misstate the law, sometimes they misinterpret cases to make them come out the way they want.
“To an extent that I didn’t realize until I was litigating, actually, it’s possible to just out-lawyer people,” he says. “Sometimes [one side's lawyers] are just smarter, and the other side doesn’t know what to say, and they miss a winning argument. If you don’t have a good lawyer, you can get the wrong result a lot.”
Roosevelt’s example in In the Shadow of the Law is Walker Eliot, an exceptional third-year associate who happens, like Roosevelt, to be a graduate of Yale Law School and, like Roosevelt, a former Supreme Court clerk, who, again like Roosevelt, goes on to teach law. At one point, Walker drafts a brief that “manages to be right by being really really clever.” The court ultimately adopts Walker’s position, but “the subtleties get ironed out.” The result is a legal product that’s dead wrong. Walker reacts with horror and shame, thinking of the court’s decision as a “wound on the body of law, which once I swore to protect, this crack in the doctrinal edifice.”
Often the lawyers themselves are the fools, believing their own arguments, even the wrong ones. Roosevelt doesn’t exempt himself from this criticism. “I believed that our clients were always right, at the same time that I knew statistically this was improbable. In part, I was figuring out a way to win the case while still be making an argument that I believed was legally sound, rather than one that I thought was unsound. And I could do that most of the time. But it did make me wonder about the objectivity of my analysis, the fact that you’re starting out knowing what the answer is supposed to be and just trying to figure out how to get there.”
A similar realization propels the character Walker out of Morgan Siler and into the “pure” world of academia. Asked if this was how he himself ended up at Penn, Roosevelt hedges: “In a sense, yes . . . Of course in academia you’re much more engaged in a disinterested search for truth, and I like that.” But Roosevelt doesn’t think academia is entirely disinterested. “You don’t necessarily have a client, but maybe you have your particular political beliefs that are driving you to try to reach a certain conclusion. I try very hard to justify Roe v. Wade. Very difficult to do. But I wouldn’t be trying so hard if I weren’t ideologically pro-choice. It’s still difficult to try and be completely objective.”
When asked if he plans to stay at Penn, Roosevelt is evasive. He wouldn’t mind, he says, but he isn’t sure. He’ll be up for tenure in two years. At the age of thirty-four, it’s not hard to imagine all sorts of fascinating paths that he might pursue. We’ll have to wait and see.
Ethan Davis just graduated from Amherst College and is considering law school, even after reading In the Shadow of the Law.
Source: AFF Doublethink Online | James Velasquez
Source: AFF Doublethink Online | Joseph Hammond