BY RAFFI MELKONIAN
Just this past week, lawyers at a large Manhattan law firm (acting pro bono) moved a step closer to forcing New York to spend roughly an additional $6 billion on New York City’s public schools. This wasn’t done through frantic lobbying efforts in the legislative assembly, or by having the citizens express their voice through a referendum. I suspect if the actual citizenry were asked, they would have told the City’s administrators to wring a little more from the $10,000 per student they’re already getting. Instead, the lawyers in question turned enthusiastically to the state constitution, and somehow persuaded the Court of Appeals that a perfectly simple provision mandating that the state couldn’t literally close the free public schools actually commanded substantive judicial review of the city’s education budget. The group behind the lawsuit, the Campaign for Fiscal Equity, proclaimed that the decision of the Special Masters appointed to set compensation was just the start of a statewide effort to increase spending. In other words, $6 billion might be just the delicious beginning.
Also this week, Dean Kagan took the opportunity presented by the Third Circuit’s decision against the Solomon Amendment to re-impose Harvard’s ban on military recruiting. I’ve argued before in these pages that the ban is a bad idea, even if you rightly believe that all our fellow citizens must have the liberty to sacrifice equally in the country’s armed services – I don’t think people need to hear my thoughts in full again. Unsurprised as I am that my puny efforts weren’t persuasive, though, I’ll just note the intermittent wave of bipartisan commentary that’s joined the debate. As the reliably liberal E.J. Dionne argued in the Washington Post this week, “Whatever the merits of the ruling, the idea of keeping recruiters away from elite universities is a large mistake – for the military, for our country and for liberalism itself. The growing separation between the military and many parts of our society, especially its most liberal and elite precincts, is a huge problem. Closing that divide should be one of liberalism’s highest priorities.”
Quite apart from the great political or social issues of the day, however, both these episodes are similar in that they demonstrate the underlying hint of hubris that peppers our entire profession – inherently, subtly, even in defiance of the best intentions. In a different context, I’ve always joked that the most remarkable thing about kings and conquerors is their ability to wake up in a forgotten hut one morning and decide that the world needed them to conquer it. Similarly, that’s what has astonished me about lawyers – the belief, for example, that we as lawyers should shove entire populations to and fro with our convictions about education spending, or that a smallish law school’s anger is relevant to a military engaged in a number of deadly struggles worldwide, or indeed that a hastily scrawled article in an academic newspaper ought to impinge at all on the ponderings of the great, are all examples of the same drive that convinced Napoleon that Moscow should be French. Maybe, in the end, this is the kind of hubris that has helped to keep lawyers relevant through time. But I wonder if all of us might be better off realizing that a lot of people are more important than lawyers in the national scheme, and most of them have a good deal more democratic legitimacy.
No, the path of the Humble Lawyer isn’t an easy one, I admit. We’d have to fade somewhat into the twilight, and off the television. But a more responsible profession would have substantially more support from the public in general. And given what our reputation is likely to be in New York after people’s taxes go up in response to the present litigation, I’m guessing that would be a good thing. Let’s just hope they forgive us in time.
Raffi Melkonian is a 3L.