Tuesday, December 18, 2012

Lawyers as Shills

I've been practicing law for quite some time now.  I've always been in private practice, generally in firms of 10 or so attorneys, sometimes a bit more, sometimes a bit less.  For a relatively short time, 3-4 years, I worked in a larger firm, with more than 100 attorneys.  I've been around, have seen a great deal; have seen the practice of law alter rather dramatically for various reasons, sometimes for the good and sometimes for the bad.  One of the ways in which I think it's changed for the bad is the emphasis increasingly being made on the lawyer functioning not as a lawyer, but as a shill.

A shill is a promoter, a booster, someone skilled in the art of the sales pitch.  The term can be used derisively and can have somewhat sleazy connotations, but I'm not necessarily saying that a lawyer today is called upon to act as a con man or a carnival barker.  However, especially in the case of large law firms, lawyers are being valued more and more for their ability to market not merely themselves and their firms, but their clients as well.  They are valued less and less for their skill in the practice of law.  They are encouraged to act as shills more than they act as lawyers; not so much practice law as sell, sell and sell.

To a certain extent, of course, this has always been the case.  Rainmakers (as they are called) have always been esteemed because of the clients they attract.  And of course advertisement of legal services, once restricted, is commonplace.  Some of the advertising has been and is less than dignified.

But now large firms are not just trying to attract clients.  They also seek to promote their clients to state governments and the federal government; they lobby, sometimes registering themselves as lobbyists, sometimes not.  They seek to promote clients as businesses in the global market.  They pursue the political aims of their clients and sometimes political parties (Reince Priebus, Chair of the Republican National Committee, practiced in a large firm which regularly represents Republican candidates and elected officials).  They network, identify and target key players, push agendas. 

For me, this is not practicing law.  I find myself wondering why lawyers are doing such things, when it seems anyone with marketing skills would do (likely for much less in the way of remuneration).  I also find myself wondering what effect this has or will have on the quality of legal practitioners.  If the most glamorous, high-paying jobs for attorneys are as shills (not to mention the easiest jobs when it comes to the knowledge of the law and representing clients before courts and agencies) what motivation is there to be a "real lawyer"?

The law has been used as a stepping stone into politics for a long time.  I question whether lawyers make good elected officials.  Lawyers are trained to represent a single client, told to avoid conflicts of interest.  A lawyer representing a number of people with conflicting interests is, I think, ill-equipped to do so.  Lawyers obviously have a place in government, there being so many laws to interpret, apply and draft, but I question whether they should have the place they hold in politics.

Sadly, lawyers already have a poor reputation.  I suspect it will get worse, though, the more they act as and are perceived as nothing more than wheeler dealers.  But it may be that I'm just an old fashioned sort, and am of a dying breed.  No doubt there will always be a need for skilled legal practitioners, but I fear their ranks will grow thinner and thinner.  Perhaps the future will see The Triumph of the Shill.

Monday, December 10, 2012

Something Regarding Free Will

I've been reading a little book, or essay, on free will by Sam Harris (it's about 70 pages).  I haven't read much on the issue, I must confess.  But if this work by Harris is representative of the debate, it doesn't seem like much of a debate.  Alas, this seems to be my reaction to much of what passes for philosophy; that's to say, of course, much of what I read which purports to be philosophical.  It may be I don't read enough, especially regarding the "question" of "problem" of free will.  It may also be that I'm simply stupid.

Regardless, I'm perplexed because a great deal of what he has to say in support of his claim that free will is an illusion seems to me to be relatively uncontroversial.  I think of myself as being a proponent of free will, so I find it difficult to believe that anyone who is supportive of it would be strongly opposed to some of Harris' position.  However, it's evident he believes there to be some significant opposition to his claim.

If I understand him correctly, he notes that we are all influenced by our genes, our hormones, our neurons, our environment, our upbringing, and various other factors regarding which we have no control, and which are not caused by any deliberate action on our part.  He feels that these factors so influence our thoughts, feelings, desires, and conduct that there is clearly no such thing as free will.  We can't really know why we think and feel and act as we do, and we don't really decide what we do, freely, because all these things are the result of such factors.  We may, if asked why we make a certain decision, be able to come up with a rational explanation which seems to be based on our voluntary thought process; but that explanation is not valid.  It, no doubt, is also the result of the many factors over which we have no control.

It happens that I have trouble thinking of anyone who would maintain that our genes, hormones, neurons, environment, upbringing etc. do not influence our decisions.  It may be that there are such folk, just as there are those who think that the earth was created in 6 days about 6,000 years ago.  However, I don't see such folk as serious contributors to the free will debate which apparently is ongoing.

I can conceive of debate over the extent to which such factors influence our decisions, but I find it difficult to accept the idea that a proponent of free will would or must maintain that they have no influence whatsoever.

Oddly, Harris seems to acknowledge that we can, sometimes, come to a conclusion or decision all by ourselves, as it were, with a minimum of influence by these factors, and in that sense have a certain degree of control over what we do.  The examples he uses in this regard make sense to me as well, and lead me to wonder just why he feels free will is an illusion.  I wonder whether he feels that "free will" means the ability to make decisions without being influenced by the factors I allude to; in other words, I wonder whether he thinks there are proponents of what I'll call here "absolute free will" and seeks to persuade us there is no such thing.  Unsurprisingly, because I think that there are few such proponents, I wonder whether he's beating the proverbial straw man.

For me, it's quite possible to believe in free will yet acknowledge that much of what we do is influenced by our genes, etc.  That's merely to say I don't believe in "absolute free will."  What we desire and want to do are naturally influenced by our environment and our nature, as we are organisms having a certain constitution living in a particular environment.  If we weren't so influenced, we wouldn't exist.  Yet we make decisions which cannot be attributed solely to influenced desires and needs.  We can choose different ways to satisfy them, for example, and determine what ways are more effective.

Harris uses as an example the fact that after many years, he decided to return to the study of and training in martial arts which he had engaged in when young.  He claims that while he can think of several good reasons supporting why he returned to marital arts, but he can't really know why he did so, rendering his return to them something different from a voluntary decision.

I fenced when young, stopped fencing for many years, returned to it for about 5 years, and have stopped fencing once more.  I stopped fencing because the club at which I fenced is open only certain evening during the week and on the weekend, and my schedule and the schedules of those who pariticipate in determining my schedule prevent me from fencing.  I suppose I could fence, but would have to skip meals, reduce sleep, and am not inclined to do so.

Am I coming up with reasons a posteriori?  Was I somehow compelled to stop fencing by forces beyond my control?  To a certain extent, yes; as my schedule changed for reasons which it is not important to address.  And, my genes and whatever may lead me to not want to go without meals or sleep.  But is this what is meant when we say that "free will" was not involved in my decision to stop fencing?  If so, it's difficult for me to believe that the free will debate has any significance.

Harris maintains we can dispense with the illusion of free will and still maintain that people are responsible for their actions, morality, and the legal system.  I find this unsurprising, though, because a belief is "absolute free will" is not required to maintain that people have at least a certain degree of responsiblity

Clarence Darrow was a lawyer who regularly argued that his clients, at least, were not really responsible for the crimes they were said to commit.  I doubt, though, that he thought he never voluntarily made a decision in his life.

As with most other things, I think that a determination whether or not a decision is "freely" made must take into consideration the circumstances and the decision-maker.  The extent to which a decision is free will vary.  I doubt most of us ever feel we're absolutely free, or that we're absolutely "unfree" and think that is a reasonable conclusion to make.









Wednesday, November 28, 2012

Regarding Quietism

I refer to Quietism in philosophy, not religion, and by Quietism in philosophy I refer to that view of certain philosophers that traditional issues of philosophy cannot or should not be the subject of debate or dispute, because they result from confusion due to imprecise or improper use of language, false assumptions, bad analogies, needless quests for absolute certainty.  Wittgenstein, I suppose, was a great proponent of Quietism.  J. L. Austin and Gilbert Ryle also come to mind.  I think certain pragmatists were, as well.

It is a view I find seductive, or at least persuasive.  Philosophers have been debating issues related to reality, knowledge, the good, the beautiful and propounding great systems regarding them for centuries, and it seems all for nought, and nothing is resolved; the same questions are still asked, and debated, and other, different, systems are propounded in what seems an endless profusion.  Quietist (if there is such a word) philosophers have in many cases successfully (I think) demonstrated that much of this disputation and much of this grand systematizing is the result of confusion and imprecision in the use of language, or have otherwise pointed out that such questions as are being asked should not be asked, or are not really questions to begin with, and such problems as are being addressed by philosophers are not really problems.

I also question whether these traditional philosophical questions are worthy of further consideration.  But then I find myself asking what would happen if they are no longer addressed by philosophers.  If there is no philosophical pursuit of such questions (pursuit by philosophers, I mean) would this not leave the field open to those who are not philosophers?  Philosophers at least endeavor to employ reason, and a method of analysis, to questions.  Regardless of their success in answering them, should we not encourage the use of reason in the effort to answer the "great questions" rather than see them made the exclusive domain and concern of the mystical...the irrational?

Would that be the result of philosophy's abandonment of these issues, though?  To the extent that people look to philosophers for anything these days when it comes to such questions, it seems they look to dead philosophers.  This makes a kind of sense.  It doesn't seem very likely that philosophers will come to conclusions regarding such questions that have not already been arrived at by the philosophers of the past (except, perhaps, the conclusions arrived at by the Quietists, and even those are of the past).  Those who are mystics and are inclined to look to the irrational for answers to such questions probably will not even think to consider the work of living philosophers.

So, I don't think we need worry that most people will embrace the irrational in addressing the great, traditional philosophical questions, because of the efforts of the Quietists.  But what of those who are not "most people"?  What of philosophers themselves, or that amorphous class of people we call "intellectuals"?

There, I fear, the damage has already been done, in the sense that some philosophers, and many intellectuals, apparently have come to distrust and denigrate reason, and propound the irrational (e.g., postmodernists).  This started, I think, in the late 19th century and extended into the 20th century and this anti-reason tendency carries on today, though it may be suffering a setback.  Suggestively, this tendency is more or less contemporaneous with Quietism. 

For good or ill, philosophers and intellectuals have a certain degree of influence.  And by questioning reasoning, or science, as some of them have done, they make it difficult to combat those who make contend that answers may be given to questions and problems may be solved in a manner contrary to reason and science.  To what end do we claim that certain religious views, or certain customs or beliefs, are unreasonable, or make no sense, if we insist and are on record saying there is no way of establishing, really, that is the case?

This is something that causes a legitimate concern.  I'm not sure this is something which has resulted from Quietism, though.  There is nothing in Quietism which encourages the denigration of reason as far as I can see.  Reason is above all a method.  Quietists may well contend that reason is not or should not be applied to the "great questions" because doing so is fruitless, but it doesn't follow from this that it is not usefully and beneficially applied to other questions and other problems.

Quietism doesn't require the abandonment of reason, then.  It suggests only that it is misapplied in certain cases.

Thursday, November 15, 2012

The Art Which Teaches Us How to Live

Montaigne asked an interesting question:  "Since philosophy is the art which teaches us how to live, and since children need to learn it as much as we do at other ages, why do we not instruct them in it?"

Whether philosophy is any longer the art Montaigne thought it to be is debatable.  It appears that for many it is not, though I don't delight in making that statement.  I'm not entirely certain what it is, but whatever it may now be the thought of it being taught to children is absurd.  It is not so much that it would be beyond their comprehension; it is that even if they could comprehend it, they would find it useless in teaching them how to live, and education would seem to have a good deal with teaching how to live.  I would maintain that how to live remains for children and adults a question of vital (ignoring for the moment that word's derivation) importance. 

I think it's fair to say that philosophy was thought to teach us how to live for a very long time, from the time of Socrates to the time of Montaigne and perhaps even beyond that.  How to live seems no longer to be its concern, though.  It seems to have detached itself from considerations of conduct.  It is concerned with other things, things which because they are unrelated to how to live render it less vital almost by definition.

Now this line of thought presumes that "live" has a certain meaning to which the adverb "how" properly applies. When we ask "How?" in relation to "live" (which is not merely a state) we are asking in what manner, in what way?  If we inquire into in what manner or in what way we are to live, we are inquiring in to how to conduct ourselves, i.e. how to act of not act.  How to act or whether not to act is a consideration which relates to certain circumstances.  It would not be a consideration where there are no circumstances.  How to act or whether to act is a consideration we encounter all the time, while alive, because by living we interact necessarily with others and the rest of the world and that interaction requires judgment and action. 

But if how to act or whether to act are not the concern of philosophy, what is its concern?  If it asks "how?" of anything it would seem to be addressing something which has occurred or is occurring, even if what is being inquired relates to a condition (e.g. "how do you feel?").  Why would it ask "how", though, in a manner which does not relate to what transpires while we are living?  I don't think it can.  So, if it does not address "how" just what does it address?  Not "when", it seems.

"What", perhaps?  What is thought, what is reality, what is the mind, what is a person, what are words, what do we mean by "what"?  If that's the case, though, why does it ask "what"?  What is the purpose of "What?"  Is there no purpose, is this idle curiosity in the purest sense, the pursuit of knowledge with no end in view?

I don't think so.  No matter how one may try to detach philosophy from what we do by living, it can't be done.  This is because any question or issue we address is, obviously, one we raise due to the fact that we are living; it issues from that fact that we live, from what we do as living organisms.  It is indeed one of the things we do as living organisms.

If philosophy cannot be detached from our lives as living organisms, though, may it not be applied in our lives, as it was in the past?  In fact, must it not be so applied?  If it must be so applied, do not considerations regarding what it would be most beneficial to apply it to necessarily arise?  And should we not debate those considerations, and act upon the outcome of the debate?

Perhaps it is possible philosophy may, once more, become the art which teaches us how to live.

Wednesday, November 7, 2012

Settling in the Mould of our Vulgarity

Our long national nightmare of an election (apologies to Gerald Ford for this phrase; apologies to Robinson Jeffers for the title to this post) is over at last, and the result is:  there is no result.  Nothing has happened.  The president is the same, the Senate is the same, the House is the same, and, alas, we are the same.  We have the dubious assurance that not only has nothing happened, but nothing will happen, either, as it seems those who govern us will largely remain those who govern us, and nothing is to be expected from them.  And as we remain governed by them, nothing may be expected from us. 

Perhaps, in this case, nothing is better than something.  One of the reasons our mildly interesting but not very inspiring president was the victor may well be the fact that the unfortunate Mr. Romney, who seems a pragmatist in the common sense of that word, was required to bleat comforting words to the increasingly isolated but disturbingly predominate, zealous, and backward members of the Republican party in order to gain his nomination.  He was then required to tolerate, if not actively support, certain of them who ran for office and took it upon themselves to make indefensible and in some senses bizarre comments while doing so.  He evidently felt it necessary to appear to be one of these anachronisms, until the final days of the race.

I like to think that if he had been elected, Romney would have managed at least to disregard the Floyd Turbos of his party.  But anyone with a minimal grasp of reality must understand that such folk are increasingly becoming an (increasingly disgruntled) minority in the politics of the United States, and indeed the politics of the world in general.  Social conservatism (as opposed to political conservatism) which demands the cooperation of the government in stopping change and social freedom is no longer viable, and should not be.  The simple ignorance which is the basis for much of this is bound to dissipate.  Too much information is available and accessible.  Too much is changing and will change.  One can no longer stand athwart history and yell "Stop!" in this respect, at least (apologies to William F. Buckley, Jr.)

It must also be acknowledged that there has been a certain hysteria involved in much of the criticism of our continuing president.  It has been hyperbolic, exclamatory and even weird.  He's a socialist, a traitor, a foreigner, a Muslim.  There is little or nothing to back up such claims.  My memory doesn't go back to the days of McCarthy; perhaps similar frenzy was the rule back then as well.  But rhetoric of this kind is born of ignorance, hatred and fear of that which is different, and these emotions are not conducive to thought.  They are, rather, conducive to efforts to repress.

Indeed, there is some indication that individual freedom from traditionalistic restraints gained ground in this election cycle; witness votes in favor of allowing gays to marry and legalizing marijuana.  But other restraints remain, and the danger arising from the seemingly irrepressible urge of some to use government to save us from ourselves becomes more potent.  Also, we're increasingly in thrall to the very wealthy and therefore very powerful, and this is the case because both Democrats and Republicans are nearly their feudal vassals.  The Obama campaign is said to have received more money than the Romney campaign, and its doubtful that most of this came from the poor and disadvantaged.  There are exceedingly rich people who are ideological Democrats, but just as interested in protecting and increasing their money and their ability to influence life because they have money as are ideological Republicans.

The fact that these two parties are essentially thralls to a small segment of the population and are interested in remaining so bound makes it difficult for third parties to exist and function in American politics, and this is one of the great defects of our system.  It may be the case that Democrats are generally more sympathetic to the idea of change, but their idea of change is too often change through the imposition of government controls and restrictions.  The Republicans maintain they seek limited government, but the limitations they seek to impose are too often limitations which have as their purpose benefiting only a few who are already benefited.

Thus far, it seems that most of us are content to let this continue.  There will be no significant change until this changes.