Pluralistic: 15 Oct 2022 How lawyers became sadists

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A thuggish, bewigged, ogrish cigar-chomping lawyer, standing at a control box whose lever is a stylized dollar-sign; he is holding aloft a cloth-capped, dirty-faced, sorrowing child laborer. Behind them are shelves of ragged law-books.

How lawyers became sadists (permalink)

There is plentiful evidence that we are, as a species, prone to empathy and kindness. That isn't to say that we're always mindful of the ways our actions harm others, but for most of us, acts of overt cruelty require a special effort, at least at first. Greed and hatred have to be nurtured and trained.

Even in war, violence doesn't come naturally. The majority of US riflemen in WWII did not fire their weapons, refusing to shoot at the enemy. Many fired over the enemy's head, unwilling to become a killer. In contemporary military training, enormous effort is devoted to overcoming the "Marshall Effect":

Likewise for greed. Stockbrokers are meant to be true believers in the idea that "greed is good," adherents to a mystical belief that the net outcome of universal selfishness is universal prosperity. But as Yochai Benkler points out, if you go to a Wall Street playground, you'll find greed-is-good stockbrokers chastising their toddlers: "Timmy! Share!"

No one – not even a Wall Street finance ghoul – wants to raise a kid who elevates selfishness to a virtue. For one thing, living with that kid would be awful.

The greed-is-good ideology comes out of a school of right-wing economics whose central tenet is "incentives matter." Forget the high-minded rhetoric about public duty, empathy or morals – the only way to reliably motivate people is by paying them to act the way you want them to, and to take away their money when they stop.

Hence the drive to "teacher accountability" where teachers are paid based on the test scores of their students, or the drive to pay doctors based on the health outcomes of their patients. These efforts inevitably come to ruin, because "every measurement becomes a target," and teachers and doctors under these conditions figure out how to make scores go up without improving either learning or health.

What that happens, the "incentives matter" crowd – incredibly – declares victory. "See?" they say. "Incentives matter. We told teachers that they had to make test scores go up and they did! Teachers were never concerned with learning – they were motivated by those sweet teacher paychecks, and we've just proved it!"

This gotcha game is meant to prove that "ethics" never existed, and indeed, can't exist. Teachers and doctors are just wet, inefficient versions of those "reward-hacking" AI systems, like the autonomous Roomba that is programmed to avoid front collisions and then batters itself to pieces reversing into furniture (rear collisions are fine):

But just as it takes an effort of will to kill a stranger, it takes an act of will to convince yourself that you are never motivated by duty, or pride, or shame. The incentives-matter story about this is that you are merely incentivized not to look like a colossal asshole in front of people who might hire you or have sex with you or loan you money.

I think that's bullshit, but whatever, let's say it's true. If the reason that people don't act like a colossal asshole is that they want something out of people who'd get pissed off at them if they do, then for so long as we all agree that being a selfish, bullying asshole is bad, people will have the incentive not to be selfish, bullying assholes.

That's where greed-is-good enters the picture. If you tell people that greed is good – that they shouldn't socially sanction greedy people because they're just acting according to their nature – then you create the situation where greed becomes the norm.

Maybe that explains what's happened to the law. In his new book "Servants of the Damned: Giant Law Firms, Donald Trump, and the Corruption of Justice," David Enrich tracks the rise of Jones Day, the global Big Law firm that became an arm of the Trump presidency:

In an interview with Corporate Crime Reporter, Enrich describes the transformation of law from a "profession" to an "industry." Lawyers were once inculcated with a sense of duty to their profession, enjoined from bringing the law into disrepute.

This wasn't universally effective, and of course, many entered the law to get rich, but for a sizable portion of lawyers, much of the time, their actions were dictated by this sense of professional ethics. Today, law firms are businesses first, and the biggest firms are very, very big.

With that transformation comes a shift in ethics: where once the profession maintained a norm of the pursuit of "truth and honesty and fairness," today, "it’s about winning" – not just because winning is satisfying, but because it is profitable.

With the rise of and ethic of profits above all else, some of the law's core ethical tenets have been turned on their heads. Take the idea that "everyone deserves legal representation," a credo of defense lawyers everywhere. Mix that noble idea with greed-is-good, and "everyone deserves representation" becomes a rationalization for helping tobacco companies overturn local anti-smoking ordinances.

Enrich: "Do you need to try to intimidate witnesses or plaintiffs on behalf of RJR or a gun company or Abbott Labs? I don’t think you do. And do you need it to help Purdue Pharma protect and enforce its patents on Oxycontin?"

Jones Day does defend the tobacco industry, and gets paid handsomely for it. Jones Day partners told Enrich, "The moral judgments I leave to God" and "At the end of the day, law firms are profit-maximizing institutions." There's an interesting leap between those two statements! The first gestures at the ethic of universal representation, but the second jettisons the pretense of all moral duty save the duty to greed.

Enrich is at pains to prove that he's not looking at the past through rose-tinted glasses. Law firms really did use to act differently – including Jones Day. In the 1940s, Jones Day was retained by East Ohio Gas to manage liability after a Cleveland gas explosion that resulted in massive death, injury and property damage.

Then, Jones Day "advise[d] the company to lay down its arms and accept what might seem like defeat for the sake of fairness and justice and to protect the client’s ability to continue operating with a decent reputation in a community that has just been ravaged by a tragedy."

That wasn't because the company had no alternatives. Jones Day explained to its client that it could very well deflect blame to the gas tank manufacturers or Cleveland's sewer company, whose pipelines fed its tanks. But, Jones Day counseled, even though they could win a short term gain by doing this, they shouldn't. For the sake of decency, they should help the people whom they'd harmed.

Flash forward to the present day. Jones Day is counsel to Abbott Labs, whose powdered baby formula has been long understood to harbor bacteria that can sicken or kill infants, because of lapses in sterile procedure in the formula's manufacture. Jones Day has represented Abbott Labs in multiple cases brought by parents looking for compensation to help them cope with the medical expenses from their babies' terrible illnesses, brought on by Abbott Labs's mistakes.

Jones Day has defeated every one of those parents in every jury trial – it has swept the board. It did so by going hard: a judge found their tactics to be "abusive and over the line." Now, the tainted baby formula problem is a national scandal, and rather than paying a few million to compensate families, Abbott Labs faces a massive crisis. The "fight, fight, fight" strategy was good for Jones Day, but bad for its client.

Jones Day is not happy about this book. As Enrich told On The Media, the firm hired its own outside counsel and barraged Enrich's publisher with threatening letters (to their credit, they published anyway).

In a WSJ editorial entitled "First, Smear All the Lawyers: David Enrich casts my firm in a false light and argues some clients don’t deserve representation," Jones Day partner Kevyn Orr grossly mischaracterizes Enrich's arguments:

(Enrich told Corporate Crime Reporter that he's sent the WSJ a 600-word rebuttal but doesn't know if they'll publish it.)

I've written before about the law's "toxic strain of competitive sadism…an ethic of victory through someone else's humiliating defeat."

In his discussion with CCR, Enrich is at pains to explain that while his book is about Jones Day (because so much of its activity entered the public's eye due to their connection to the Trump regime), the criticisms apply to all the Big Law firms: "I could have written this book about Kirkland & Ellis, or Sullivan & Cromwell, or Paul Weiss or Gibson Dunn."

Enrich is no stranger to the banality of corporate evil, nor to its far-reaching implications. His 2017 book on the Libor scandal, "The Spider Web," is a gripping, novelistic account of how a handful of mediocre, wealthy sociopaths ran a scam that hurt billions of people all over the Earth:

(Image: Woody Hibbard, CC BY 2.0, modified)

Hey look at this (permalink)

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Colophon (permalink)

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"When life gives you SARS, you make sarsaparilla" -Joey "Accordion Guy" DeVilla