The Neroization of the American lawyer

When did we lawyers become Nero? Years from now, if there is a "years from now," anthropologists may attempt to identify the precise point on the timeline when it occurred, but whether or not they will be able to do so will be unimportant. The point is not, and will not be, when it happened but rather the fact that it happened.

Harbor no doubt. It has happened. Today, we lawyers are Nero.

Somewhere around 1594, William Shakespeare's Dick the Butcher first uttered the stratagem, "First thing we do, is kill all the lawyers." This widely misunderstood phrase was not an indictment of lawyers, but was rather a recognition that lawyers were the stalwart protectors of the law and society and that to overthrow the concept of English justice (that became the base for American justice), lawyers had to go.

Almost four hundred years later, in 1988, William Eskridge Jr. published a paper in the Yale Law School Faculty Scholarship Series entitled "Overruling Statutory Precedents." In that paper Eskridge cited a Texas Law Review article for the proposition that U.S. law provides that prior practice and precedent should be adhered to "unless clearly convinced that the rule was originally erroneous or is no longer sound because of changed conditions."

Well, Mr. Dick the Butcher, as Mr. Eskridge would admonish, your missive no longer need be followed. Conditions have changed. Today, there is no need to kill the lawyers. We are not protectors of a rule of law. We are not defenders of the great American Experiment. We do not step up to educate, protect or preserve. Our profession has evolved into a business that notches victories and pursues profits, willing to play the system even as it melts away around us. We are silent collaborators, coopted by a silent pestilence that has destroyed America without the masses knowing it, and without those of us who see it caring enough to change it or to rally the masses to stop the slide.

I am not a liberal. I am not a conservative. Like most actual Americans, I am some strange intermingling of beliefs and positions. I hope I am a thinker. I suggest that each of us try to be one at least for an hour or two every so often. We MUST work on our laws and the manner in which they are enforced. More importantly, however, we must once again step to the forefront to protect American ideals, and to use every tool of argument and persuasion to change the way we each, ourselves, act and think, and to then spread the resurrected view to our fellow men and women.

We MUST stop fiddling while America burns. Today America is not in the final stages of its existence because of foreign interference. Our nation is the site of embers because we Americans do not take the time to learn what the slogans we each spout actually mean. We do not pause to consider whether the positions we cling to and pass along as a rallying cry in a "politics as sport," "my team is always right," "it must be wrong because it was the 'other side's' idea" mentality are actually good for us or further our own self-interest. It is not worth our time. It is not worth the effort.

Today, there is no problem with the Russians infusing massive monies into our economy to buy political ads on social media. The problem is the failure of our laws and media to force people to identify the source of the ads or postings we read, and the fact that we have become an American populace that accepts what those ads say without thinking, without analysis, and without taking any time to decide whether we SHOULD agree with what they say.

For example, why have the citizens of the smaller states of our nation signed petitions compelling their state to subvert the Electoral College? Do they, or you, know whether that makes sense? When you say, "Well, the electoral college is a bad thing," ask yourself if you know what it is, why it was implemented, and whether you know, regardless of the political winds that caused its birth, the role it plays to protect the fabric of our nation. When you say the president did not win the "national popular vote" ask yourself if there is such a thing as a national popular vote for president. Do American citizens elect our president, or do the citizens of each state direct their state how to choose when the states elect the president? Should New Hampshire have a voice in who is president, or should it be controlled by California, Texas, New York, and Florida? Would those four states elect a president who would care about Missouri? Or Kansas? Or Georgia? Or Michigan? If you are pro states-rights, can you be against the Electoral College and in favor of a "national popular vote" for president?

As lawyers, shouldn't we know these things? Shouldn't we be teaching others?

When you say that people should be fired for kneeling during our national anthem, because it disrespects those who fight for our freedom, ask yourself if the right to kneel isn't one of those most important freedoms those people have fought and died for? Isn't the right to criticize government and act for change one of the things that sets America apart? Is it in your best interest to curtail the right to speak or protest? If you call yourself a liberal, is it truly your belief that ultra-right conservative speakers should be silenced and banned from college campuses? If you want to silence speech that you disagree with, are you liberal? If you call yourself a conservative, is it truly your belief that gun use should not be restricted? If you are pro family, are you not pro-security for those you love?

Don't argue the examples. They are simply examples. The issue is not voting, states' rights or kneeling. It is the abdication of the role of the lawyer as the protector of our way of life. America is not being overthrown by bombs and rebellion. This is no Handmaiden's Tale. The reality is that our unthinking, unanalyzed divisiveness is leading to a condition in which soon perhaps as soon as 16 to 20 years from now the American people and their representatives will elect and legislate the American way out of existence -- unless somebody wakes us up.

The first step, in resurrecting the now-damaged America that is clinging to life support, is for the legal profession to once again be an example and force for thought, reason, and the advancement of bedrock American principles. To do that, we must each stop passing along rhetoric without analysis, and must actively educate friends, family and strangers to take the time to think, analyze, and, believe it or not, to pursue self-interest. Yes, self-interest. Not perceived self-interest. Not "what my favorite actor tells me" self-interest. Not what my favorite blogger or TV network tells me self-interest, and definitely not what the latest tweet or post says. True self-interest, as determined by the asking of questions, and taking the time to understand the impact of the choices that are made, and the laws that are withdrawn, as well as those that are enacted. Americans must return to actually taking the time to learn what is in their actual best interest when voting, or when acting as advocate, lawmaker or judge, and lawyers must lead by example. We have the tools to stop, study and learn before we post, comment, retweet, vote or act. We must remember them. We must use them.

I implore all lawyers, and in fact all readers of these words regardless of profession, to actually take the time to learn what you are passing on actually means and to identify what is in your actual self-interest before spouting platitudes or the catch phrase of any political party, television network, or blogger.

In the final analysis, this article is not a call for self-sacrifice. It is not a plea for anyone to do anything for his or her neighbor. It is a simple request for everyone to take the time and to ask the questions necessary to learn what is actually in your own self-interest, and to act in furtherance of it, not against it unknowingly.

Most importantly, however, this is a plea for those schooled in the law, and especially the judges, and lawmakers of our land, to dig deep into buried memories, or to research our history if you are too young to remember. It is a call to put down our fiddles and pick up the mantle, to save our country before it is voted out of existence through unknowing, soundbite-based voting by people who act against their own futures, and doom their children to a life they never saw coming.

Ask yourself, would it be such a bad thing if those who would seek to undermine the future would once again perceive "the lawyers" as their primary obstacle?

Under Analysis is a nationally syndicated column of the Levison Group. Charles Kramer is a principal of the St. Louis, Missouri law firm Riezman Berger PC. Comments or criticisms about this column may be sent to the Levison Group c/o this newspaper or to the Levison Group at comments@levisongroup.com.

© 2018 Under Analysis L.L.C.

Published: Fri, Jun 15, 2018

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