Outside the Beltway

Of the Lawyers, By the Lawyers, For the Lawyers

Dodd Harris · Monday, August 27, 2007 · 5 comments

Prof. Reynolds notes a Times Select piece that argues that “judges can be counted on to rule in favor of anything that protects and empowers lawyers.” This goes directly to a discussion I was having with a friend of mine the other day about what has long been my biggest beef with the Supreme Court.

Despite the fact that most lawyers are indeed honourable, it’s difficult, I think, for many to distinguish between “good for lawyers” and “good for society” (or even “good for clients as a class”). It’s a blindspot that is hardly unique to lawyers. Teachers, policemen, businessmen, and directors of non-profits, just to name a few off the top of my head, all doubtless see that which serves their interests as also being necessarily good for society generally, and their stakeholders particularly.

But that doesn’t make it so. And in this instance, what serves lawyers, the legal profession, and the power of the judicial system is most definitely not always what’s best for everyone affected. I’m speaking of the tendency of the Court to dilute, or even abandon outright, bright-line rules in favour of “balancing tests.” More and more every year, decision-making is being taken away from the people who must enforce the rules day in and day out and handed to judges acting in hindsight.

This is most obvious, I’d say, in criminal law but it pops up everywhere. The precise Constitutional status of Miranda is still debatable, but it does have the benefit of being a clear and simple rule that even Barney Fife could apply without having to second-guess himself. Likewise, Roe v. Wade, for all the controversy it created, set down clear and easily followed rules about the regulation of abortion. But where the former was recently given greater weight by the Court, the other has followed what has become the more common path and been replaced by a test that can only be decided by lawyers in black robes (I mean, of course, the “undue burden” test).

I can understand that Justices, reviewing the kinds of complicated issues that arise in the modern world, naturally shy away from hard-and-fast rulemaking. We all of us intuitively understand that the more complex the circumstances are, the more the particulars of those circumstances matter. Nevertheless, rules that are clear, simple, and easy to understood and enforce are beneficial, too. One need only spend a short while wading through the quagmire of rules and exceptions that make up judicial precedent on the warrant requirement for searches and seizures to realize that, where once their was clarity, it’s now a wonder that police and prosecutors ever get anything introduced into evidence (okay, yes, I exaggerate; but only a little).

As a lawyer, this tendency away from bright-line rules and toward complex, multifaceted tests most assuredly serves my pecuniary interests. But it doesn’t necessarily serve my clients, who must pay for answers heavy on qualifications and caveats – or, worse, to litigate a close question with no certainty that their decision-making, however reasonable it may have been at the time at the time, won’t be second-guessed by some guy in a robe. It could be that society as a whole benefits when each set of circumstances that generates a dispute is (presumably) carefully weighed by an impartial third party with the power of the State undergirding her judgment. But the hidden costs – in time, expense, and judicial resources – of tossing out bright-line rules in favour of “balancing tests” are impossible to calculate. My own sense is that they outweigh the benefits more often than not.