At Law and Liberty John O. McGinnis explains the developments in the practice of law that have transformed the role of lawyers in the United States from defenders and preservers of traditional wisdom to agents provocateurs with the objective of changing our political and social order to be more to their liking:
But with the rise of the administrative state in the Progressive Era and the New Deal, the government became an important source of work for lawyers. The more the state expanded, the more opportunities for business for lawyers. It was but a short step for lawyers to recognize that their bread was buttered more from government than from private ordering. Of course, today private ordering is pervasively regulated by government and that is all the better for lawyers. They constitute a transaction cost, and have an interest in increasing that cost.
Even without the progressive change in the nature of government, changes within jurisprudence made lawyers more friendly to innovation. At the time of the Founding, common law itself was a conserving institution. Lawyers thought they were discovering the law, aided by the epistemic help provided by precedent. But the nature of the common law changed by the early 20th century. It became a more active policy calculus where courts could change the law if they thought the innovation could result in better rules.
That revision in jurisprudence permitted lawyers to try to shape the law themselves by their own litigation decisions. Not surprisingly, some scholars have found that lawyers shaped the law to be better for lawyers. The law expanded in scope even as it became less clear, requiring more litigation to settle matters.
Note that such a role for lawyers is an artifact of a common law system, something that only a handful of Anglophone countries have, and, I would argue, a violation of the basic structure of our system. In France and Germany lawyers are not agents of change.
It does cast some light on the bitter controversies over new members of the Supreme Court. When you can achieve your political or social will not by convincing people but by getting someone with the correct views grants a lifetime appointment to the Supreme Court the energy formerly devoted to election is much efficiently deployed in battles over Supreme Court appointments.
The financialization of the economy has been observed, with some truth, to be behind our perverse modern economy but the vastly increased litigization of our society surely plays a role in the malign trajectory of that society. Not coincidentally, both benefit the wealthy.
A lot of this was just filling the vacuum left by Congress not doing its job properly. Now the courts are just reflecting our partisan divides, and sometimes amplifying them. I think we should just acknowledge that judges and lawyers are just as partisan as everyone else and that their decisions are just as influenced by politicians in the other 2 branches. Sure, on the 90% of court decisions that arent especially political they decide based upon the law, but not on the other 10%. Doing away with lifetime appointments would help. Also, you shouldn’t be married to a politician or a political activist if you are a judge.
Steve
A common law system cannot work under present conditions. The problems are more basic than you suggest.