Fall 2009-#2. Living without (Some) Lawyers.

Author:Reviewed by Frank Kochman, Esq.

Vermont Bar Journal


Fall 2009-#2.

Living without (Some) Lawyers

THE VERMONT BAR JOURNALVolume 35, No. 3Fall 2009Living without (Some) LawyersPhilip Howard's Vision of a Revamped American JusticeReviewed by Frank Kochman, Esq.This book is a lively, well-written polemic on behalf of executive authority, the wisdom of oligarchs, and the neutering of the jury system as a societal force. It would be more accurately titled Life Without Some Lawyers Who Annoy Me. As to certain kinds of lawyers, the author, a partner in the New York firm of Covington and Burling, does not, as they say, hold back: "Trial lawyers pretend thatthey're Robin Hood, with the modern twist that they keep much of the money for themselves. This modern approach to lawsuits is not about justice-it's about greed in the clothing of justice" (82).

Despite this no-nonsense treatment of trial lawyers, some lawyers fare well in Mr. Howard's estimation. In support of his thesis that law is best left in simple general terms to be administered in its particulars by persons of wise discretion, he says this:

Look at any successful government agency or program, and you will find officials who, with or without authorization, take personal initiative to meet the public goals. At the Securities and Exchange Commission, for example, every public offering of securities is reviewed by an SEC official, who gives comments to the issuer and then engages in a back-and-forth to work out differences in view. This process between lawyers generally results in sound disclosure (168-169).

Unless the catastrophic melt-down of most Americans' retirement accounts is a public goal, the invocation of the SEC as an example of a "successful government agency" is surprising. Nevertheless, the author's choice does help us understand where he draws the line between useful lawyers and those with whom the common sense society he champions can dispense. He also offers an interesting criterion for distinguishing respectable bar associations from the other kind. While acknowledging that the Supreme Court (unwisely, he thinks) has held that lawyer advertising is protected by the First Amendment, heasks: "... why[don't] respectable bar associations ... exclude ambulance chasers from membership? ... Any "profession" worthy of that appellation should enforce what it views as good professional values, irrespective of legality. Isn't that the role of ethics?" (140, emphasis added).

Caveats established, this book cannot quite be dismissed as the insurance defense brief or corporate public...

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