Monday, December 15, 2008


In mid-December, first-year law students scurry around town preparing for their exams. You have seen them. They have fresh faces and carry heavy books. There even seems to be an inconsistency between the books and the faces: The books are somber, hard-bound and gilded; the faces are sprightly, youthful and relatively carefree. That is not to say that these neophytes are not nervous. In fact, they are petrified. But this is their first encounter with academic worry, so their faces do not yet bear the marks of age. Day and night, they pore over their heavy books, reciting their formulas with nervous vigor. They do something akin to praying when they hope they can retain all their knowledge for the day when it counts.

I saw a law student yesterday buying coffee. She carried two massive contracts casebooks with gilded edges. She wore those fashionable almost-knee-high boots with fur trim that girls wear when it’s cold. I think they are called “Uggs,” but I could be wrong. I could tell she was nervous; she just wanted to get her large latte and start studying again. She did not want to let all the rules about offer, acceptance and consideration slip her mind, even for a minute. I did not have any pity for her, though. In truth, I made some assumptions when I saw her: That she was studying law so she could make lots of money; she was studying law because that’s what her parents do; she was studying to get great grades so she could get a good summer job next year. Most likely I was right on at least one.

Then I thought about myself. I used to have goals like she did. I just wanted a high-paying job so I could be financially comfortable. But the years changed me. Studying law actually drove me away from a legal career because I learned that law encompasses so much more than mere rules to be mastered for an exam. For me, law introduced a whole new dimension to problems in civilization that I had always sensed, but never fully grasped. Behind the rules and reasons lay value systems and power structures. Not every law student sees them, but I did. Slowly, I began to approach law with a very large grain of salt. No longer did I simply learn rules for the exam; I learned the rules in order to understand how they fit in to the power structures that dominate our society. Eventually, it all became clear: Law is the language of the powerful.

All this came to my mind as I watched this young woman order coffee. Did she know what she was getting into? Then I glanced at her book. I remembered the book. It was called “Contracts – Examples and Explanations.” Essentially, the book tried to “distill” important principles for students as they studied for their exams. It was akin to “Cliff’s Notes” for the legally-challenged. Aside from the content, however, I remember the publisher. In my time, a company called “Aspen Law & Business” published the book. Now some other company published it. I don’t remember the new name, but the words “Law & Business” still followed it.

That struck me. Law and business. What a juxtaposition. After all, I learned that law and business are irretrievably intertwined for the same reason that law protects the powerful. Powerful people do business. They need law to ensure that their business functions to its maximum potential. Powerful business interests need assurance that they will receive their goods on time. They need to know what will happen if someone fails to deliver. They need to know how they will be compensated if a deal collapses. Law provides favorable answers to all these commercial problems. Thus, law and business sustain and nurture one another. Without business, many legal rules would not exist. Modern business depends on courts to facilitate vigorous commercial activity, and commercial activity keeps power in place.

Did this first-year law student understand the connection? Law and business are virtually identical terms. But should they be? Does law have some function other than sustaining powerful commercial interests? What about fairness, justice and protection? True, there are legal doctrines that nod to these principles. But no law firms practice in those areas. Law firms want "business clients," not indigents who suffer regular injustice under the law. There is no money to be made in vindicating the rights of underprivileged people. Rather, most “legal business” involves manipulating legal rules to ensure that privileged people always win. So while the Constitution and the law may nod to higher principles in theory, very few people care about them in practice. Still, I had the fortune—or misfortune, depending on your economic perspective—to genuinely care about legal issues beyond those sustaining business. Those legal issues illuminate the entrenched value systems and power structures concealed within everyday disputes.

I do not fault anyone for studying law. I do not regret my legal education in the least, even though I abhor the legal “profession.” Studying law gave me intellectual discipline and analytical focus. Through dogged work, I learned how to pick apart arguments and penetrate to any author’s thematic core. With time, I learned that most “thematic cores” were not very complicated, because most legal questions involve property. Basic cynicism can predict both commercial and legal behavior. The inquiry is simply: “Who stands to gain?” Business is cynical because it revolves around profit and self-interest. And because law sustains business, law, too, thrives on cynical values.

My legal studies revealed all this to me. Yet there were times when I saw different values at work. I remember reading cases in which judges actually tried to do right rather than merely to apply business-sustaining doctrines. When courts actually refused to protect powerful interests, I began to think that there was more to law than rules. This did not happen often, but it happened enough to trigger my interest in ideas beyond unfair rules. Nonetheless, courts rarely break from their business-sustaining role. After all, courts have very little room to consider larger issues. They are by definition conservative and unimaginative institutions. Courts must decide cases according to precedents and statutes. But it is thrilling when courts reach beyond written rules to examine the larger--and often deeply problematic--social issues implicit in every legal rule. When courts see law as something larger than business, they reveal how unfair and unequal our society truly is.

Business thrives on inequality. There would be no incentive to “win at business” if everyone were entitled to the same success in life. Legal rules, therefore, encourage the “quest for inequality.” Those who are “better” or "richer" want to maintain their unequal positions, and they are the ones who craft the laws. They want to stay unequal. Business offers the path to achieving inequality. Law offers the means to defend it against encroachments. To put it simply, law provides rules for “the business game.” The best way to win a game is to write the rules. This is why law is business. And this is also why “law and business” will always be linked.

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