Lawyers at war.

• Author: Jacobs, Dennis

This lecture is named for Barbara Olson. She was a commentator who spoke to us about compelling matters with directness, candor, and wit. So it weighs on me to do justice to this occasion.

My subject is lawyers at war--more particularly, the professional elite and the bar associations that are at war ... with the military of our own country.

I am not the first to notice that, among educated classes and cadres in this country, there is a prevailing hostility to all institutions that are organized on military lines or that assimilate military values, and a suspicion of the people in these institutions and professions: the police and FBI, of course--but even the Boy Scouts.

This is nothing new. I am not parting the curtain. It is part of a wider current of fashion. To borrow a phrase: whenever many Americans consider the military, the worst thing they can bring themselves to imagine is the only truth they know.

Elsewhere, in other fields and professions, it may just be a matter of fashion, snobbery, and ingratitude. But we need to take this phenomenon seriously in our sphere, because of our power, our influence over the Constitution, our weight in policy, and the roles we have been given, and have taken, in American life. With us, there are consequences and features beyond the cultural divide; it becomes a great and consequential problem. What we hold in trust should cause us to examine ourselves by fair standards, even if we are not flattered by what we find; yet, so far as I can see, the disjunction between the military and the bench and bar is unremarked on within our profession.

I start with the safe premise that anti-military animus is pervasive in the elite legal communities of the American coasts and our myriad institutions: the bar associations, the large firms and their pro bono projects, the law schools and all their works, the courts, the judges, jurisprudence itself: what can be called (collectively) Big Law.

I will talk about how this came about, and then I will make several points about it. Most simply, this is unbecoming for the legal profession and betrays ingratitude; it distorts our law; and it is downright dangerous because, ironically, it weakens rather than tightens civilian control of the military.

The isolation of the military can be explained in part by the existence for decades of this country's All-Volunteer Force. Among baby boomers in the upper reaches of the legal profession, service in the military has been rare; it is rarer still among their children. (1) Those in the military, especially the enlisted ranks, are just assumed to be mentally limited or (at best) luckless refugees from unemployment in economically distressed and backward areas of the country.

They are not like us. There is a well-grounded impression that the demographics and characteristics of people in the military differ from the make-up of people who form the legal elite. Secretary of Defense Robert Gates observed at Duke University that the "propensity to serve is most pronounced in the South and the Mountain West, and in rural areas and small towns nationwide," while "the percentage of the force from the Northeast, the West Coast, and major cities continues to decline." (2) Thus the military is composed of southern and mountain types, or Gulf dwellers, while we are uni-coastal or bicoastal; many of them are rural, while we are urbanites (albeit with country houses). The military maintains secrecy, while we profess an interest in openness and disclosure (chiefly excepting the attorney-client privilege, and our work product). Then there's the money. And the military does not have our share of women, sociologists, gays, Volvo drivers, English majors (like me), persons with handicaps, the elderly (me again), and so on. And to be clear, I am an example of the uni-coastal urban legal elite: the little island I live on is Manhattan; I drive a European car; I did not serve in the military. So I am not engaged here in special pleading.

Given our differences, our encounters would be limited in any event. But in the elite institutions of the bar and legal education, people in the military are actually sequestered, or excluded altogether. There seems to be no effort in the law schools to correct this exclusion. To the contrary, the separation is policed. Law schools welcome to their faculties: philosophers, sociologists, ethicists, scientists, political scientists--even criminals. (3) But there are few with military experience on the (self-selecting) law faculties. This absence is most remarkable among the considerable faculty teaching the law of war, international law, human rights law, and treaty law. I asked a member of a distinguished law faculty how many of his colleagues had served in the military; after some thought, he said "one"--adding after a moment that the service was in the Israeli army.

The banishment of ROTC from campuses has a counterpart in the longstanding ban on military recruiting in the law schools. Today, there is a competing moral imperative: the need for federal funding prevents the actual exclusion of military recruiters. But I am told that in hiring season some law schools circulate a cautionary memo warning students away from military recruiters, and some schools take other measures, with the result that military recruiters sit all the day through without a visitor to their desk--in effect and design, sent to Coventry. And although...