Three weeks ago, when Justice O'Connor and I were at the Ninth Circuit Judicial Conference, a judge asked us whether we thought judges should participate in community affairs. Justice O'Connor and I agree about many things -- not everything -- and we certainly agreed about the answer to that one. Of course they should. Yet more important -- so should lawyers. After all, Roscoe Pound once defined our profession as a group of men and women "pursuing a learned art as a common calling in the spirit of public service."1 And many of us remember at least hearing about a professional golden age when the respected general practitioner or local judge would serve on a school board, sponsor a Scout Troop, or give a Fourth of July speech.
Yet as we spoke, we were both aware of modern pressures that make it difficult for any of us, whether judge or lawyer, to live up to that past ideal. For the judge those pressures may take the form of workload, keeping us at our desks, or internally generated concerns about conflicts of interest that may lead us to believe the safest way to avoid public criticism is through total isolation. But ethics rules, which must be followed, do not mandate total isolation. Indeed, just after the judicial conference, Justice O'Connor and I went on to visit several Indian reservations, where we saw tribal courts in action. On the Spokane Reservation we saw a drug court draw upon a host of community resources in order to prevent a teenager's recidivism. In the Navajo Nation we witnessed highly successful mediation techniques. We also began to understand the great benefits that a few additional resources might bring. During these visits, we shared views and experiences; -- which, we hope, will prove beneficial in the continuing effort to improve the quality of justice (and therefore the quality of life) on Indian reservations.
Lawyers face different, more immediate, more serious, pressures. Many of my practitioner friends talk about the "treadmill." How can a lawyer undertake pro bono work, engage in law reform efforts, even attend bar association meetings, if that lawyer must produce 2100 or more billable hours each year, say sixty-five or seventy hours in the office each week? That kind of number reflects a pace, which, according to one lawyer, is like "drinking water from a fire hose." The treadmill's pressure is partly financial, aggravated for younger lawyers by law school loans that may amount to $100,000 or more, which must be paid back from their earnings in practice. The pressure also reflects the increased complexity and specialization of law itself. When my father went to law school, he learned five basic subjects, property, torts, contracts, criminal law, and procedure. I studied, in addition, tax, and administrative law as well as a few other subjects, mostly growing out of new Deal regulation. But much of today's law is written in specialized agencies by specialized regulation writers to be understood and applied by other specialists. And understanding the narrow specialty, keeping up with changes, offering specialized advice, threatens to take up much, if not all, of a practicing attorney's time.
All of us want to resist these isolating pressures. Perhaps it will help if in the next few minutes I try to explain why, from my own perspective, it is so important that we do so. I shall describe three different "public service" roles that the lawyer traditionally has played and which still, taken together, make up that "spirit of public service" that must continue to characterize the American Bar.
I shall touch upon the first -- pro bono legal work -- only briefly, simply because it is so well known to you. The Supreme Court is itself a direct beneficiary of that work, for public interest organizations and law firms representing pro bono clients often file briefs. And they represent clients ranging from death row prisoners in habeas corpus cases to property owners in "Takings Clause" cases. The briefs are almost always helpful, whatever political or ideological view they represent.
But more broadly, pro bono work means that those who cannot afford legal representation to protect their legal rights will have it. The need is there. A 1994 ABA Report says that between 70% and 80% of those with low incomes who needed a lawyer in a civil case failed to find one.2 A more recent article says that the United States government spends about $2 per citizen on legal aid, compared to France, which spends $5, and Britain, which spends $15.3
And the critical importance of satisfying the resulting need was explained to me in a sentence two summers ago by a foreign judge. He told me that most villagers in his country had never seen a lawyer or a judge. He had persuaded a local bar group to lend him a small private plane; and he spent weekends flying to distant villages, mediating disputes, most of which he resolved rather quickly. Why? Because, he explained, by helping make the legal system work for everyone, he would help to build public confidence necessary to sustain the legal system itself. I must add, unfortunately, that it has proved difficult to maintain that legal system's guarantee of judicial independence, for the judge, after refusing to sign a loyalty oath to a new government, was forced from office. That fact, in my view, simply underlines the importance of the judge's explanation and of his commitment.
In fact, we help to build confidence in the legal system whenever we devote our time and talent to helping our communities, whether by serving on a school board, as a museum trustee, or directly by representing an indigent individual.
A second, less obvious but equally important, public service role is that of the lawyer as law reformer. Learned Hand pointed out many years ago that "it is the bar which makes the statutes."4 More than that, we all depend upon lawyers to help shape the law both through statutes and through judicial decisions. And lawyers are critical to the process of developing law where changes in technology, in business, in society itself demand it.
Our docket suggests that complex legal challenges driven by technological change will continue to confront us. In one case we considered a new technological device that police, while standing on a public sidewalk, could point at the side of a private house. The device measured the amount of heat emanating from the house wall, permitting the police to determine from the measurement whether an occupier was likely growing marijuana within. Was use of the new device, without a warrant, consistent with the Fourth Amendment's protection against unreasonable searches? Fully aware that the device might portend a host of new ways for those outside a home to learn what was occurring within, we held that the Fourth Amendment required a warrant.5
In another case, we had to interpret a provision of the copyright statute, written in the 1970's, as applied to the creation of computerized databases. Did newspapers and magazines have to find, and obtain permission from, authors who had written individual articles, when they sent their papers or magazines to a data base, such as Nexis, from which data base subscribers would likely retrieve individual articles? Here, the implications for the development of future information services, while potentially important, were not yet clear. The majority held that permission was required.6
In yet another case, we focused upon a cell-phone conversation that an unknown private individual had intercepted with a scanner and delivered to a radio station. A Congressional statute forbid the broadcast of that conversation -- though the radio station itself had not planned or participated in the intercept. We had to consider the scope of the station's First Amendment right to broadcast in light of the privacy interests that the statute sought to protect. Again, it was obvious that a broad holding could affect a wide range of legislative efforts to secure privacy -- under threat from ever advancing technologies. We held, narrowly in light of certain particular circumstances there present, that the radio station could broadcast the information.7
In each of these cases, we, who are not expert in thermal imaging devices or computerized data bases, needed to understand the relevant technologies, their state of development, where they might lead. We turned to the briefs for help. Those lawyers who best understood both the narrower legal specialty and the broader implications of the technology offered the most help.
Brief-writing in our Court, however, is not the most important way in which lawyers will change technologically-affected areas of the law. Courts, particularly the Supreme Court, typically enter the fray only after others, legislators and administrators, have considered the matter and written new statutes or regulations. And, aware that major changes are in progress, the courts often proceed slowly, allowing for "percolation," i.e. assuring adequate time for the implications of technological change to unfold and for the democratic policy-making process to react accordingly.
Nor do legislators or administrators create law in a vacuum. Law in the United States is not imposed from above as much as it bubbles up from below. Law is usually made in the context of a national conversation involving, for example, scientists, engineers, businesspeople, the media, as well as legislators, judges and many ordinary citizens whose lives the new technology will affect. It takes place through endless meetings, symposia and discussions, through journal articles and media reports, through legislative hearings, as well as court cases.
Lawyers lead that national discussion. They translate specialized knowledge into ordinary English, they help create consensus, define the issues, and explain those issues to others -- to judges, to legislators, to the public. They will do so with the technologies I have mentioned -- information data bases, communication technologies, scanners and the like. They will do so with other technologies, such as biogenetics and the genome. They will do so in other areas where the law is undergoing change, such as commercial law, where global economics is as important a factor as is technology.
That is the job of the lawyer as law reformer. That lawyer participates in this complex policy conversation, perhaps as a paid advisor, but more likely as an unpaid but willing participant at untold numbers of professional, community, and legislative meetings and proceedings. And the lawyer participant, like the brief writer, does so best when he or she is more than a narrow specialist. The lawyer will understand the specialty while remaining a generalist as well. He or she will understand and communicate the specialized technology's broader policy implications.
That is not an easy task. A judicial friend of mine used to quote the enigmatic phrase, "He who is 'nothing but' is 'not even.'" I think that phrase is asking us to be both specialist and generalist at the same time -- a tall order. But in today's world, that phrase defines the lawyer's essential lawmaking role.
The lawyer's third, and perhaps most important public service role is that of teacher -- a teacher of our most basic legal and constitutional values. Three cases will help illustrate the importance of that role to our Nation.
The first case brings us back to the Indian Nations. In 1832 the Cherokee Indian tribe lived on land guaranteed them by treaty. They found gold on that land. Georgia tried to seize the land. The Cherokees sued. And eventually the Supreme Court, in Worcester v. Georgia, held in favor of the Cherokees.8 Georgia then refused to obey the Court. President Andrew Jackson reportedly said, "John Marshall has made his decision; now let him enforce it."9 And Jackson sent troops to evict the Cherokees, who traveled the Trail of Tears to Oklahoma, thousands dying along the way.
The Court decided the second case, Cooper v. Aaron, more than a century later.10 Nine Justices signed an order making clear that the Southern States had to follow Brown v. Board of Education and desegregate their schools. This time the President, President Eisenhower, sent troops to enforce the Court's order, not to defy it. And the Governor of Arkansas backed down, opening the doors of the segregated white school to the black children who wished to enter.
You may take as my third case any of our Court's most controversial recent decisions, ranging from abortion, to religion, to Bush v. Gore. Those cases produced a vast amount of commentary -- positive and negative, including much that is heated. They produced considerable discussion about how we reach decisions in our controversial cases -- though I must add that the procedure is straight forward. We read the briefs. We question the lawyers. We confer informally and at conference -- and in a civil manner. (In the seven years I have been a member of the Court, I have never heard a voice raised in anger, or the use of any slighting remark, during any of the Court's discussion, no matter how contentious the case.) But these cases have produced less public comment about their most remarkable characteristic -- the fact that losers as well as winners will abide by the result, and so will the public.
That is the system that protects our Constitutional liberties. How did we get there -- from Point A, "John Marshall made his decision, now let him enforce it," to Point B, widespread acceptance of the final decision even where we whole-heartedly believe the decision is wrong? The answer lies in 200 years of a national history that has included a Civil War and many years of racial segregation. It lies as well in a legal profession that, over the years, has reached out to others, taught by example, instilled respect for the rule of law. As lawyers we fully understand that a system that protects our constitutional liberties must consist, not simply of fine words on paper, but also of habits, customs, expectations, settled modes of behavior engaged in by judges, by lawyers, by the general public. And the miracle of today's reality is driven home to me every day in my job where, from my seat at the far side of the bench, I see before us men and women of every race, every religion, every ethnic origin, representing groups of every conceivable point of view, who are before us because they will decide their differences through law, not on the streets with fists or rocks or guns.
The rule of law that this system reflects has served us well in protecting our liberty. It is a national treasure. But as John Marshall said, the "people made the Constitution and the people can unmake it."11 Its continued existence depends upon our willingness, and our ability, to transmit what we have learned to the next generations of Americans. We must explain to them how the system works and its importance. We must do it both by reaching out -- as in, say, the Boston program through which lawyers bring inner city children into courthouses to help learn how government works, and by example. Indeed, every action we take, in the courtroom, at the office, in the boardroom, or elsewhere in the community shows the next generation what, in fact, we in the legal community believe. We can demonstrate that we believe, in practice, in a justice system that is fair, that is civil, that seeks to resolve human problems according to the law's spirit, and that we do not believe in the contrary caricature of a legal system. That is the "public service" role of the lawyer as educator.
There is, of course, considerable skepticism about the Bar's continued willingness to engage in these three forms of "public service." Some point to negative signs. Two years ago, for example, it was reported that 50,000 lawyers working in the 100 biggest firms worked fewer pro bono hours than seven years before.12 One reads reports that some firms discourage associates from engaging in pro bono work by assigning them billable hours quotas that exclude pro bono. Some law schools report that the number of recent graduates entering either government or non government public interest work has declined dramatically - from about 12% in the 1970's to a miniscule 3.3% in 1998.13 Many ask, where are the lawyer-statesmen, the Lloyd Cutler's, the Bill Webster's, the Wild Bill Donovan's, who combine careers in practice with those in government? Others look at the percentage of high school students who have never heard of the three branches of government and find cause for dismay.
But for every negative sign there is a countervailing positive. There are firms in every legal community more heavily engaged than ever before in pro bono work, some offering awards to high "public interest" achievers. Others provide imaginative facilitative methods, such as the effort in the Eleventh Circuit to provide the elderly with "wills on wheels." Still others have been harnessing new technology to pro bono objectives by setting up, for example, pro bono web sites that match in-house corporate counsel with pro bono projects. The legal press has begun to report firms' comparative pro bono work and not just comparative salaries. Some law schools are now considering expansion of loan forgiveness programs beyond present minimums in order to encourage their students to enter government as well as non-government public interest work. Lawyers are involved in teaching, in law day programs, and in endeavors like the Boston program for inner city children that I've already mentioned. Indeed, educational programs involving bench and bar exist across the country.
And from a law reform perspective, what may be most important is, as former ABA President Bob Meserve told me years ago, that lawyers love meetings, particularly bar association meetings, such as those of the ABA with its 600,000 members and 800,000 committees. Those committee meetings are the "bubbling up" process at work. They are where law reform begins. And you are here to participate in their work.
Look at the Section Meeting brochures and you will see our profession, like others, reinventing itself, adapting to changing circumstance, looking for ways to bring more women and minorities into law firms as partners, developing professional lives that combine family, firm, and community, trying to assure that law as a profession continues to be associated with that "spirit of public service."
My own favorite spiritual quotation expresses that same sentiment, Rabbi Hillel's statement that "If I am not for myself, who will be for me? But if I am only for my self, what am I? And if not now, when?"14 I have always believed that those who have chosen law as a career, whatever their spiritual persuasion, share that feeling. Over the years I have seen lawyers and judges meet many challenging pressures. I am confident that we will overcome those that face us now.
After all, just look at the brochures: this ABA meeting is not just about networking, winning your case, managing your office. It is also about pro bono services, technology's impact, law reform and education. The message that this meeting sends is that standards matter, that law matters, that civic life matters, that participation matters. The Litigation Section says in a headline, "the pursuit of Justice," is "the reason we love" working in the law. It makes clear that that is why we are here.
1 Quoted in Hillman, Professionalism--A Plea for Action!, 69 MICH. BAR J. 894, 895 (1990).
2 See AMERICAN BAR ASSOCIATION CONSORTIUM ON LEGAL SERVICES AND THE PUBLIC, LEGAL NEEDS AND CIVIL JUSTICE: A SURVEY OF AMERICANS-MAJOR FINDINGS FROM THE COMPREHENSIVE LEGAL NEEDS STUDY 11-12 (1994).
3 D'Alemberte, Tributaries of Justice: The Search for Full Access, 25 FLA. STATE UNIV. L. REV. 631, 651 (1998).
4 Hand, To Yale Law School Graduates (1931), in THE SPIRIT OF LIBERTY 89 (Irving Dilliard, ed., 3d ed. 1960).
5 Kyllo v. United States, 533 U. S. ___ (2001).
6 New York Times Co., Inc. v. Tasini, 533 U. S. ___ (2001).
7 Bartnicki v. Vopper, 532 U. S. ___ (2000).
8 31 U. S. 515.
9 Loth, CHIEF JUSTICE JOHN MARSHALL AND THE GROWTH OF THE AMERICAN REPUBLIC 365 (1948).
10 358 U. S. 1 (1958).
11 Cohens v. Virginia, 19 U. S. 264, 389 (1821).
12 See Winter, Legal Firms Cutting Back On Free Services for Poor, N.Y. TIMES, Aug. 17, 2000, at C5 (quoting Esther F. Lardent, director of the Pro Bono Institute at the Georgetown Law Center, to the effect that firms now typically require between 2200 and 2300 billable hours).
13 Personal communication from Daniel Coquillette (J. Donald Monan University Professor, Boston College Law School; Visiting Professor of Law, Harvard Law School).
14 THE TALMUD, The Wisdom of the Fathers 1:14.