Is That Legal?

To do this, I bought a bunch of legal thrillers to read so that I could learn more about the genre. At about the same time, my mother gave me a book called The Writer’s Journey. That book is based on the work of Joseph Campbell, and it’s about the use of mythic structure in storytelling. And I thought, well, I’ll make Mom happy too, and I’ll use a mythic structure for my legal thriller. I’ll have a reluctant hero who is summoned away from the ordinary world and called on to do great things, and there will be archetypal figures who help or hinder him—an old wise man, a shapeshifting trickster, a dark shadow.

So I did that. I created the characters, and I gave them a plot, and that produced my first draft. The first draft was basically a generic legal thriller. It told the story of Mark Clayton, a young associate in the D.C. law firm of Morgan Siler, and how he and a couple of other associates at the firm dealt with two cases: a mass tort suit against a chemical company, and the pro bono representation of an inmate on Virginia’s death row. It tried to give a number of different perspectives on the legal system, so the point of view moved among associates and partners, and judges, nonlawyers, and prosecuting attorneys. And I chose those two cases because I thought it would also provide an interesting contrast—the way that the firm deals with a big corporation and an impoverished individual, the different sorts of resources they have in the legal system, and how the system works or doesn’t work for them.

So the underlying organizational principle of the first draft was supposed to be this archetypal mythic structure. Of course, that structure has been used by other people, perhaps most notably George Lucas, so one amusing consequence is that you can more or less map the characters from In the Shadow of the Law onto the characters of Star Wars. Mark, the hero, is of course Luke Skywalker. I tried to tinker with the conventions a little bit here in that Mark does not end up having the mysterious powers of a Jedi Knight. He’s an ordinary person—as one reviewer commented, he’s not even a particularly brilliant lawyer. The brilliant associate, the one who does have the power to make the law do his bidding, is named Walker Eliot—the name Walker is a Star Wars joke—and he in the end turns out not to be an especially admirable character. And my point there was that it’s not necessarily the brilliant lawyers who serve justice; doing good as a lawyer depends not on how smart you are but on how much you care about justice. For the rest of the characters, the correspondence is closer. Peter Morgan, the managing partner of the firm, is the Emperor, who turns the firm into a soulless profit-fixated place and tempts the other characters towards the dark side. Harold Fineman, a very talented lawyer who has sacrificed his life to the firm is Darth Vader—he’s given in to the dark side, though towards the end he tries to recover his lost humanity. Wallace Finn, an old partner who runs the pro bono program is either Yoda or Obi-Wan Kenobi—a sage with hidden powers of his own.

So that was my first draft: Star Wars in a law firm. My agent managed to sell that draft, and I sat down with Jonathan Galassi, my editor at Farrar Straus, to talk about how to go about revising it. The first thing he said to me was “Make it twice as long.” And he explained a little bit more, but not that much—so he was a little bit like Yoda himself. But what he did was to point me to some of the themes and characters that he thought were interesting and could be expanded. The ideas he suggested, I like to think, were implicit in the first draft; I put them there subconsciously because they were things that were on my mind. But he focused my conscious attention on them, and I started working to develop them more.

By this point I had started teaching at Penn, and I also started thinking about what I wanted to tell my students about the world of law-firm practice that most of them were going to enter, and in which many of them would spend their lives. I teach constitutional law, and I try to teach it in a way that makes the students see the Constitution not as an immutable document handed down from on high but something that each generation struggles over, something that is or should be theirs, and in whose meaning they have a say. I think this is more valuable than just teaching them a set of rules about how cases are decided. But that doesn’t give me much of an opportunity to say anything about legal ethics, or how to survive as a person while working as a lawyer. And this was something that I saw my friends in law firms struggling with, so I wanted to say something about that struggle, too.

This came out in a couple of ways. The first is that I spent a lot of time working on developing the older characters and going into the history of the firm. I started with Peter Morgan’s father, Archibald Morgan, and I tried to show something of his view of the law, how that translated into the firm that he founded, and how Peter Morgan changed things. This basic story is something that lawyers and law school deans have been commenting on for a while. In one sense, it’s a transformation of the lawyer’s role. In the early twentieth century, and running up through the sixties and seventies, the ideal lawyer was considered to be a sort of counselor or statesman, someone who helped clients not just by giving them solutions to technical legal problems but also by giving them a broader range of advice—helping clients to see what was best for them, and doing so from a perspective that took broader considerations like justice and social welfare into account. This ideal fades in the eighties and nineties, and the paradigm of the lawyer becomes more the hired gun, someone the client calls in to solve a particular problem, who solves that problem in clever and creative ways, but does not think about how that solution relates to social justice.

In tandem with this change in the idea of the lawyer there’s a change in the nature of legal practice. Firms get bigger, for one thing. They also start having a very high ratio of associates to partners. That is, law firm associates used to be considered something like apprentices. The ratio of associates to partners was one to one, or even lower. It was expected that associates would eventually become partners. And the interaction between partners and associates was an educational process during which the associates learned the judgment necessary to be a lawyer-statesman. In the eighties and nineties, as the firms get bigger, you start getting a much higher associate to partner ratio. Now there are three or four associates for every partner. The higher ratio means a number of things. First, partners make more money. Firms sell associate work by the hour, and partners share the profits that associates bring to the firm—unlike the associates, who are paid fixed salaries, with bonuses that depend on how many hours they bill. So more associates means more money for the partners. It also means that not all the associates can make partner. Most of them will only stay three or four years. Given that, there’s less incentive to invest the partners’ time in training associates, much less trying to turn them into lawyer-statesmen. So the nature of the associate’s job changes, too. Instead of being an apprentice, tagging along with the partners and learning from them, associates become something much more like assembly-line workers.

This set of changes is interesting as an economic study. But it’s also interesting because of what it does to the practice of law in particular. The basic change in the nature of legal practice is what you could call the industrialization of law. There’s a real parallel to the industrial revolution. In pre-industrial society, you have an artisanal mode of production, where craftsmen make entire products. And of course they have control over the choices that go into the making of the product, and they have a set of skills and a degree of self-sufficiency because they can make the entire thing on their own. Industrialization changes that: suddenly you have assembly-line workers who don’t have unique skills. And they aren’t making an entire product; they’re doing something like making a door handle over and over and over again. What they’re making is valueless in itself. They have no choice in how they do it, or control over what it is.

This is a big shift in the world of manufacture, and it has some consequences. One of the main ones is that workers become more interchangeable, and they lose some of their bargaining power. Another, though, is a sense of alienation, and it’s the legal counterpart to that that provides the environment within which my book takes place. So in the past you had smaller firms, where individual lawyers handled entire cases. And now you have much larger firms, with associates who don’t handle a whole case but just do one particular task over and over again. And they have no opportunity to exercise control or make choices—in particular, they have no opportunity to exercise moral judgment. So what are the consequences of this shift in a justice-seeking profession? That’s the basic question that the book is trying to explore.

And when I was doing these revisions, I started trying to impose other structures on the book. The first was a set of parallels to Wagner’s Ring cycle. I can’t actually remember how this idea first came to me. I think what happened was that I was writing about Harold Fineman. Harold, I’ve mentioned already, is the Darth Vader character—a lawyer who’s given in to the dark side and renounced his humanity, renounced his independent moral judgment and become merely a servant of the firm. His professional identity has become his only identity. And as I was working on this character, I tried to develop the personal identity that he’d given up. Because I wanted something significant for him to abandon, I gave him a deeply religious background. He grew up in an Orthodox Jewish family in Borough Park Brooklyn. But he renounces this because he wants to create his own identity, and he ends up being sucked into the firm, which becomes his identity—the professional identity of the job becomes a sort of armor for him, an armor that he can’t live without. And there again you might see a similarity to Darth Vader. But one of the things that Harold finds he can do now that he couldn’t do before is listen to Wagner, which his parents wouldn’t have approved. So I have him listening to that, and understanding his life a little bit in terms of the plot of the Ring cycle, and I started doing some background reading on The Ring and I found that it fit my plot and themes pretty well.

Basically what I was working from here was a book by George Bernard Shaw called The Perfect Wagnerite. Shaw sees the Ring as about the struggle for authority between the higher law, represented by the gods of Valhalla, and the capitalists, represented by the greedy dwarf Alberic. And I thought that this fit very well with what I was describing as a struggle for the soul of the legal profession, between two ideas of what lawyers should be. These two ideas, I’ve said, are that of the lawyer-statesman, on the one hand, who measures success by his ability to guide clients to just and desirable solutions, and the lawyer-mercenary, on the other, who measures success simply by the amount of money he makes. Archibald Morgan, the founder of the firm, is a lawyer-statesman, and Peter Morgan, his son and the managing partner during my novel, is a lawyer-mercenary. In the Ring, Wotan’s plan to save Valhalla—to preserve the authority of law—depends on the free choice of mortals. In the book, these mortals are the associates, and the key question is whether they will choose the lawyer-statesman model or the lawyer-mercenary one.

A slightly different way of putting this, without the baggage of the Ring, is that associates face a difficult task in managing the tension between their professional identity and their personal identity. In particular, they face the problem of what to do when their profession seems to demand things that are in tension with what they think as individuals is morally right. And what I was trying to suggest was that the practice of law must be informed by moral judgment. If a lawyer gives up his or her independent moral agency, if he lets the job become her entire identity, then he dies as a person.

I found that my initial idea of giving different perspectives on the legal system also allowed me to explore this idea. So the different perspectives on the legal system turned out also to be different perspectives on the duties of lawyers. Walker Eliot views the purity and coherence of law as an end in itself, who sees his primary duty as an obligation to the law as an abstraction. Peter Morgan and Harold Fineman see the law instrumentally, as a means to serve their clients’ interests, and think of their duties in terms of zealous advocacy. And there’s also a character, Ryan Grady, who really doesn’t care about the law at all, or the clients, and is just putting in time at the firm because it’s a high-paying and relatively prestigious job, whose duty is only to himself.

Some of these perspectives are better than others. I was trying to suggest, generally speaking, that it’s important to understand that there’s a moral dimension to legal practice, that neither an abstract devotion to the law, nor a particularized devotion to clients, is complete. But none of the perspectives is complete by itself, and another theme of the book is that it’s important to be able to understand different perspectives and to be able to change your own. So the hero Mark Clayton is more or less dragooned into working on the pro bono death penalty case by another associate. But as the case progresses is he starts understanding his duty in different terms. First he’s thinking of himself as an employee of the firm, required to work on this case as part of his duty to his employer. Then he starts thinking of the case as imposing an obligation on him to try to make sure that the justice system is functioning properly. And last he comes to understand his duty as a more personal one, a duty to his client. In the end, whether the characters meet a happy or a sad fate depends basically on whether they have the ability to evolve like this, to see things in different terms.

Along with these different perspectives come different notions of reality, of what’s real or important. One of the things that law does, one of the things law students have difficulty adjusting to, is that it separates things we might intuitively believe should not be distinct. It separates legal guilt from factual guilt. It separates legal correctness from moral correctness. I talk about these separations, and then I try to give them more concrete forms. So persistently through the book there are contrasts between some thing and its legal representation. There is, for instance, the outside world, in which one runs errands and goes to the gym. But the managing partner of my fictional firm has realized that it’s inefficient to allow associates out into this world, because it distracts them from billing hours. So the firm creates a counterpart world within itself: it has a gym, it has people to do your shopping for you, to walk your dog and so on. Those are the legal shadows of the outside world, the reflections of reality. And the ultimate separation, the ultimate twinning, is the separation between the lawyer and the self—the creation of a professional role that is not you, but comes to have a life of its own, that comes to be as important as the authentic self.

This is a bad thing, of course. Harold Fineman is a character whose authentic self is overcome and swallowed up by his professional identity. He realizes this eventually, but he realizes it too late, and needless to say he comes to a bad end. So what I was trying to do with this theme of competing realities, of replication and separation, was to suggest that it’s important for lawyers to lead their professional lives in a way that doesn’t force them to see the professional identity as a separate self. They need to be able to invest their professional roles with the crucial attributes of their person. And one of those crucial attributes, perhaps the most important one, is independent moral judgment. It does not work, I suggest, for a lawyer to let the job tell him what is right and wrong, or to suppose that he can have a professional identity that follows a moral code that is not really his own. Law does separate legal guilt from factual guilt and so on; it separates the legally correct outcome from the morally correct one. But to say these things are separate does not mean that they are unrelated. The legal and the moral world pass information back and forth like the particles of quantum physics: what happens in one world changes the other. What a lawyer does as a professional affects her as a person.

Many of the separations I’ve been talking about are like the distinction between form and substance. Law recognizes this distinction, and sometimes it looks through form to underlying substance, or sometimes it invokes equity to overcome form. But one of the compelling illustrations of the form/substance distinction is a financing technique called securitization. I thought securitization was so fascinating that I made it one of the governing metaphors of the book. I also made it a crucial aspect of one of the plots. That’s perhaps an indication that I wasn’t actually being all that self-critical in terms of thinking of what people would actually want to read about, because in fact not so many members of the general public think securitization is interesting. This is probably the most technical legal material in the book, but the basic point isn't all that complicated.

You could say that the basic idea behind securitization is contracting around bankruptcy. The point is to separate the risks associated with a particular asset from the risks associated with its owner. So consider a pool of self-liquidating assets such as mortgage loans. These will provide a fairly regular stream of payments. Those payments could be used to service a debt, and the assets themselves could be used as collateral. So the corporation that holds those mortgage loans could borrow money based on the loans. Two things will determine the terms on which credit will be extended. First, the lender will evaluate the risks associated with the mortgage loans. But there’s another risk—there’s the risk that the parent company will go bankrupt. If that happens, even a secured creditor is likely not to get a full recovery, and will in any event likely to have to wait and endure the inefficiencies of bankruptcy. So the terms of the loan will be less favorable than they would be if the lender did not have to worry about the risk of bankruptcy.

And that’s where securitization comes in. It eliminates that risk. What the borrower does is to transfer the assets to a special-purpose vehicle. The SPV now gets the loan, and transfers it to the borrower as payment for the assets. Then it services the debt itself using the payment stream from the assets. Because the assets are now owned by the SPV rather than the borrower, the borrower’s creditors will not have a claim against them if the borrower goes into bankruptcy. And therefore the lender does not have to worry about the bankruptcy risk.

Now, you can probably see why this structure appealed to me given what I’ve said about the concerns of the book. It is a triumph of form over substance. It divides the borrower from itself by means of law. It creates a shadow self. And it does so in order to avoid risk, in order to prevent the assertion of certain claims. It mirrors, I suggest, what happens to lawyers when they suppose that they can abdicate their own moral judgment, that they can create a professional identity distinct from the actual self, and unencumbered by any claims that morality may make on the actual person.

But isn’t everyone better off? If you’re dealing with the borrower, you should know that it’s securitized its assets. You know that certain assets won’t be available to satisfy claims you might have and you bargain accordingly. So who is harmed by this? The answer in the securitization context is involuntary creditors. People who haven’t negotiated their claims against the borrower. Tort plaintiffs, for instance. And the role that securitization plays in the plot is that it’s being used to shield the chemical company from tort liability.

In the world of legal practice, of course, there’s a parallel. The separation of the professional identity from the actual self allows clients access to legal services without worrying about the risk of moral judgment on the part of the lawyer. The people who are harmed are those who have claims that this suspended moral judgment might satisfy. They’re the ones who suffer in a moral bankruptcy.

There’s a particular danger of this in large firms, because those firms offer such a complete substitute identity. And the identity they give the associates, the work they give them, is not something that requires or even allows moral judgment. Associates might find it very easy to suspend their moral judgment because not only do they have the professional role of lawyer available, they have an identity as an associate for that firm, and they can easily suppose that their duty is simply to perform the tasks that partners assign, letting the partners worry about the moral issues.

But this is not meant, and the book is not meant, as a condemnation of big firms generally. There are better and worse firms, just as there are better and worse lawyers. It’s meant as a warning, or an invitation to think about this possibility. We should be worried about the involuntary creditors of the legal system. In the book I suggest that criminal defendants are these involuntary creditors, because they’re the paradigm example of people caught up in the system against their will. And I suggest that pro bono practice is a way to undo some of the harmful effects. And that idea is what connects the plot line about the tort suit to the one about the death row inmate.

But the point can be broader. Very few people, if any, fully negotiate the terms on which they’re going to interact with the legal system. Everyone involved, really, is in that way an involuntary creditor. Everyone has a claim to justice, to law practiced in a morally reflective manner. This is not just something for lawyers to think about; it’s something that society should pay attention to. It is, I want to say, what we owe ourselves.