ROARR Philosophy

The following seven principles guide Reflections of a Rational Republican:

1. Data-Driven Decision-Making Produces Pragmatic Public Policy

One of the fundamental reasons our government is broken is that the political selection process favors ideological warriors over pragmatic problem solvers. For instance, each party’s primary process rewards candidates who toe the party line, and punishes those who sometimes favor practical solutions over partisan mandates.

Another major problem with our political system is that it is dominated by lawyers. According to Fox News, 203 of the 541 members of Congress are attorneys, and 218 have JD degrees. In other words, 40% of Congress has legal training, and 39% have practiced law at some point in their careers versus 0.3% in the overall U.S. population.

The problem with legal training is that it is focused on advocacy. Lawyers are imbued with a sense that they must provide their clients with the strongest possible defense. As such, they focus ruthlessly on the strengths of their clients’ cases, while downplaying the weaknesses. The American legal system is by nature highly adversarial. As a consequence, lawyers have a tendency to focus on winning their arguments rather than problem-solving.

In contrast, most first-time members of China’s political leadership were not lawyers, but engineers and administrators. In China’s 17th Politburo, 76% of members had experience as provincial leaders. Until several years ago, all nine members of the Politburo’s Standing Committee were engineers by training.

The contrast between the two countries today could not be clearer. The Chinese government has focused on problem-solving. After all, the pressure to create over 24 million jobs a year to stave off social instability is a very real motivator. The country’s economy continues to grow at well above 8% a year, and, as of October 29, 2011,  it has accumulated massive foreign exchange reserves of $3.2 trillion. In contrast, the United States continues to be mired in partisan political bickering that nearly triggered a default on its federal debt in August 2011. It is then no surprise that America’s economic growth is expected to remain below 2% for the foreseeable future.

The only way to reconcile political differences is to find common ground. The easiest way to do that is to use data to drive decision-making. I believe that people generally fall into four buckets. They are either liberal or conservative, and they favor either ideology or data in policy developement. I believe every sound government should have some ideologically driven leaders from both political parties to inspire us. That said, I believe the government that governs best is one populated predominantly by data-driven decision-makers. For these individuals, ideology is important, but data is supreme. The problem today is that America’s government is dominated by data-fudging ideologues who care more for party than for problem-solving.

Source: ©2011 Reflections of a Rational Republican

The figure above provides a useful framework to illustrate this problem, and is the primary reason I created this site. I call the funnel in the chart, the “Funnel of Futility.” The more ideological a decision-maker is, the wider the gap between him and his ideologically equivalent counterpart. As ideology becomes increasingly important in one’s decision-making process, the more futile working with an ideological opposite becomes. In contrast, as more data-intensive decision-makers interact, the partisan gap narrows, and government becomes more useful and efficient.

As such, the purpose of this site is to confront the facts, create a dialogue centered around data, and engage in problem-solving rather than political bickering.

2. Small, but Not Minimal, Government Is Best

Since 1901, federal government expenditures have grown exponentially. They have ballooned in recent years so much that one can no longer see pre-1940s values on the chart below. Furthermore, the chart also color-codes each year by the political party occupying the White House. It soon becomes abundantly clear that government has expanded regardless of the party controlling the executive branch.

Federal Government Expenditures (1901-2011E), Source: OMB

Of course, American real GDP growth and inflation accounted for most of this effect, so it is more instructive to couch the expansion of government in more relative terms. The chart below illustrates federal government expenditures as a share of U.S. GDP.

Federal Government Expenditures Share of GDP (1930-2011E), Source: OMB

From 1930 to 2011, federal government expenditures have averaged about 19% of U.S. GDP. However, if one excludes the last thirty years, that number declines to about 18%, on average. Additionally and despite popular opinion, there is little difference in this percentage between Republican and Democratic administrations. Under Republican presidents, federal government expenditures averaged about 19.0% of GDP, while under Democratic ones it averaged 19.1%. In terms of 2010 GDP, electing a Republican president might only save the country about $11.4 billion, which is roughly equivalent to cutting ethanol subsidies for about two years.

If one uses 19% (or 18%) of GDP as the “appropriate” size of government, it quickly becomes clear that the nation is currently on an unsustainable path. Massive deficit spending does indeed seem to work well for stimulating an economy – particularly military spending. Thus, it is no surprise that the top three years of federal government expenditures as a share of GDP were 1943, 1944, and 1945 when the nation was fully mobilized for World War II. However, the good thing about military spending is that when a crisis ends, there is little reason to continue to support a massive military-industrial complex indefinitely, and it gradually scales down over time. In fact, the DOD’s share of GDP has been in decline since the end of the Cold War and looks to decline even further over the next decade.

The problem with most other government spending, particularly entitlement spending, is that once government establishes an entitlement, it rarely goes away. The reason is due to a psychological human reaction known as the endowment effect. Once government endows people with an entitlement, people tend to perceive its loss as greater than acquiring another benefit of ostensibly equal value. Our representative system also tends to amplify this effect. Politicians who dare to speak of Social Security reform, for instance, tend not to get re-elected.

As a consequence, the federal government is projected to be 25.3% of GDP in 2011, one-third higher than the long-run historical average. 2011 and 2009 are the fourth and fifth highest years of federal spending as a share of U.S. GDP since 1930. Only this time, a World War is not driving these expenditures – rising entitlements for an aging population are.

Federal Employment Is Creeping Upward Again

Associated with rising federal government expenditures is the growing number of full-time federal executive branch employees. The absolute number of such employees reached its high in George Bush senior’s administration, but fell off rapidly during the Clinton years, due primarily to defense budget cuts following the Cold War. Under Clinton, 88% of the civilian executive branch jobs cut from 1993 to 2000 were from the Defense Department.

Net civilian executive branch jobs increased steadily under George W. Bush’s administration, driven primarily by the creation of the Department of Homeland Security. During that period, the Department accounted for 149% of these net new civilian positions.

During President Obama’s first three years in office, the president added nearly four times as many net federal executive branch jobs as President Bush did during his entire eight-year presidency. He also expanded the Defense Department by nearly eight times that of his predecessor. Additionally, he added roughly 15,000 net positions to HHS, Education and the Social Security Administration vs. approximately 3,000 net positions cut during the Bush presidency. The bottom line is that government is now expanding at an accelerating rate.

Federal Full-Time Civilian Employees (1981-2011E), Source: OMB

Government’s Leviathan at All Levels Is Bigger Than It Has Ever Been

But government spending does not end at the federal level. If one includes all government spending across federal, state, and local government, the expansion of government’s reach is even more alarming. Congress  routinely passes unfunded mandates that force state and local governments to pick up the tab. While this avoids additional federal expenditures,  the American taxpayers ultimately remain on the hook.

Federal, State, and Local Government Expenditures Share of GDP (1948-2011E), Source: OMB

The chart above shows the level of total government expenditure as a share of U.S. GDP. Since 1948, the two highest years on record were 2009 and 2010 at shares of 36.5% and 35.0%, respectively, versus an average of 29.4% over the period.

Leviathan Is Drunk

The continued expansion of government results in massive waste, fraud, and abuse. According to a 2010 GAO report, duplicative government programs waste billions of taxpayer dollars. For instance, there are fifty-six separate programs dealing with financial literacy; twenty programs dealing with homelessness, costing $2.9 billion in 2009; eighty-two teacher quality programs; eighteen domestic food assistance initiatives, costing $62.5 billion; fifteen agencies administering 30 food-related laws; and 2,100 government agency data centers, which if consolidated could save up to $200 billion over the next decade. The bottom line is that the government continues to spend like a drunken sailor. These programs should be low-hanging fruit. Why government hasn’t yet addressed them is a clear sign of its failure.

Starve the Beast, But Do Not Hack Off Its Limbs

This site does not advocate stripping government away completely. Private enterprise has little incentive to produce public goods like roads, clean air, and a national defense. As such, government has a useful role to play in these areas. Government also has a role in upholding the law and enforcing contracts. That said, this site believes government ought not use taxpayer money to provide private goods to people when the private sector can nearly always do a better job.

The bottom line is that Reflections of a Rational Republican believes that government has overshot its equilibrium position in the modern U.S. economy, and Americans ought to make every effort to rein it in. That said, this site does not advocate a wide-ranging dismantling of every government department. To be sure, waste exists; however, the scalpel is always preferable to the hack saw.

3. Equality of Opportunity Does Not Imply Equality of Outcomes

The single most important piece of my advice my father imparted was that life is not fair. We cannot control where or to whom we are born, nor the personal circumstances in which we are raised. In many cases, these circumstances may prove insurmountable despite someone’s best efforts and prevent that person from becoming as successful as he or she would have been under more advantageous circumstances.

This site whole-heartedly and enthusiastically supports institutions that promote and recruit people based on a purely meritocratic system. The more data that an institution uses to measure its people, the better.

Reflections of a Rational Republican also supports government efforts to level the playing field in business, government, and education through prohibiting discrimination based on race/ethnicity, gender, religion, sexual orientation, and veteran status. There are certain occasions when government needs to make exceptions. For instance, women can not serve in combat arms positions in the Army. This policy is a good one, not because women are not qualified to serve in these roles, but because mixing men and women in a combat situation is an unnecessary distraction that reduces unit cohesion and ultimately results in a less combat effective unit.

That said, Reflections of a Rational Republican vehemently opposes government favoritism towards certain groups based on immutable characteristics. Two wrongs do not make a right. Rewarding certain groups who have earned their status, such as veterans, is acceptable since that is based on a person’s actions rather than something that one is either born with or not.

Piercing the Veil of Ignorance

Liberal philosopher John Rawls proposed the concept of the “Veil of Ignorance,” which roughly states that most rational people would choose to live in a society that provides the greatest benefit to the least-advantaged, if they did not know their positions in society in advance. I disagree with this contention, because it assumes that everyone is risk averse. I would rather choose a society that advantages the hard-working and competent.

I also believe that government should have a role in providing a safety net for its people, but should not be tasked with providing able-bodied adults with a comfortable life supported by others’ hard work rather than their own.

Furthermore, I believe practices that deliberately favor people based purely on the circumstances of their birth are abhorrent and destructive. I find practices like nepotism revolting, and will oppose them whenever they rear their ugly heads. In the same vein, I find affirmative action policies to be outright examples of reverse racism that ultimately favor wealthy members of certain groups and most hurt poor whites and Asians.

Working Towards a Colorblind and Meritocratic Society

Government does not exist to redistribute wealth by providing handouts to certain individuals at the expense of hard-working families. Government does have a role in ensuring that all demographic groups have access to a level playing field. We must strive to provide people with the opportunity to stand or fall, win or lose, based solely on the value of their own merit.

4. Free Markets Are Preferable to Tightly Controlled Ones…

Markets can be scary and chaotic because it is difficult for any one player to predict the final outcome of millions of individual transactions. However, chaotic they may be, markets are the single most efficient mechanism for price discovery in modern societies. Tightly controlled markets tend to be far more inefficient than free ones, because controlling entities like governments have no more information about that market than most individual participants. In the case of individual corporate participants, governments likely have far less information.

When governments impose too many regulations or try to maintain tight control of different industries, prices rise, and competition and quality tend to weaken. A key example is the American utilities industry. While the industry is highly reliable, it hasn’t innovated all that much in years. Furthermore, it has failed to build more clean, efficient nuclear power plants for decades because of the overwhelming regulatory hurdles that stand in the way of progress.

You Get What You Pay For

One major theme of markets is that a buyer gets what he or she pays for. If a buyer is cheap, the quality of the good he or she purchases will be lower certeris paribus than a more expensive good. For instance, when the market for unskilled labor became too expensive in the United States because of Big Labor-induced market friction, corporations outsourced it to China and other emerging economies. Today, companies like Boeing are building manufacturing facilities in right-to-work states like South Carolina so they can remain globally competitive. When government imposes more rules and procedures, these regulations increase the cost of doing business. Rising regulatory costs, in turn, lead to higher prices.

Markets Will Form When an Unmet Demand Exists

A second major theme is that markets will tend to form when demand exceeds supply, particularly when governments try to ban or to maintain tight control over a particular good. For instance, when the United States government instituted prohibition, there was a proliferation of organized crime as the black market rose to satisfy unmet demand. When the Los Angeles Unified School District stopped serving junk food in lieu of more healthy options, the market for school lunches collapsed. Students stopped queuing for meals, principals reported “massive waste, with unopened milk cartons and uneaten entrees being thrown away,” students began bringing their own junk food to school, and some even opted out of lunch entirely “suffering from headaches, stomach pains and even anemia.” It is perhaps no surprise that students have developed a thriving “underground market for chips, candy, fast-food burgers and other taboo fare.”

The bottom line is that the market is not a force of good or evil. It is like water. It will always take the path of least resistance.

5. …But Government Has a Role in Mitigating Negative Externalities and Market Failures That Unencumbered Capitalism Can Generate

Those with the most extreme libertarian impulses might argue that an ideal government is one that only provides for the legal enforcement of contracts, and for a strong national defense. I will not make such a strong ideological claim here. In fact, complete and unencumbered laissez-faire capitalism can sometimes be very harmful if one fails to account for business’ negative externalities. An externality is defined as a cost or benefit derived involuntarily by a party as the result of a transaction between producers and consumers. Pollution is one example of a negative externality.

Reflections of a Rational Republican believes government has a role in establishing systems and regulations that curb negative externalities when business has little incentive to do so. Government also has a role in helping reduce the negative impacts when markets fail.

That said, government regulations should balance their costs against their projected benefits. Heavy-handed and unnecessary regulation is worse than useless — it can result in real damage to the economy and people’s lives. In fact, Reflections of a Rational Republican believes that in recent years, the pendulum has swung too far toward overbearing regulation. That said, this site does not forswear all regulations whatsoever, and acknowledges that regulations can sometimes be very useful policy tools to address negative externalities and instances of market failure. Here are some examples of regulations that have worked well or better than their designers anticipated.

Food Can Kill You (In Some Countries)

When Americans sit down for a meal in the United States, they rarely if ever have to question if the food they eat will kill them. If they have allergies to peanuts, for instance, they can simply look at a food package’s label and act accordingly. In some countries, it is not safe to eat anything someone sells. In fact, it was not safe in the United States a hundred years ago.

Source: FDA

A century ago, conditions in the American food and drug industries were unsafe. According to the FDA, use “of chemical preservatives and toxic colors was virtually uncontrolled”, sanitation was primitive as it became necessary to transport food to growing urban population centers, milk “was still unpasteurized,” and the farms did not test their cows for tuberculosis. Furthermore, medicines “containing such drugs as opium, morphine, heroin, and cocaine were sold without restriction,” and labels “did not list ingredients and warnings against misuse.”  The public was literally at the mercy of the snake oil salesman.

As such, the FDA is a good example of government protecting the lives of its citizens against the negative externalities that can result from unfettered free market capitalism.

Annihilating Acid Rain

People first observed the impact of acid rain “in the mid 19th century,” when some “noticed that forests located downwind of large industrial areas showed signs of deterioration.” English scientist Robert Angus Smith first coined the term “acid rain” in 1872 after he observed “that acidic precipitation could damage plants and materials.” Scientists did not consider acid rain a serious problem until the 1970s, when they “observed the increase in acidity of some lakes and streams.”

Acid rain is a broad term referring to precipitation containing higher than normal amounts of nitric and sulfuric acids. The precursors to acid rain are sulfur dioxide and nitrogen oxide emissions. Electric power generation that relies on burning fossil fuels like coal accounts for roughly two-thirds of sulfur dioxide and one-quarter of nitrogen oxides emitted in the United States. In other words, acid rain is largely a negative externality related to coal-fired power production.

Acid rain is a serious problem because it “causes acidification of lakes and streams and contributes to the damage of trees at high elevations.” Acid rain also “accelerates the decay of building materials and paints.” Sulfur dioxide and nitrogen oxide gases also “contribute to visibility degradation and harm public health.”

To curb the negative externalities of coal-fired electric power plants, Congress passed the Clean Air Act of 1990, which provided for a cap-and-trade program to limit sulfur dioxide and nitrogen oxide emissions.

By most accounts the program has been a resounding success. The EPA estimates that the benefits of its Acid Rain Program are ~$50 billion annually, “due to decreased mortality, hospital admissions, and emergency room visits.” The program has also succeeded in dramatically reducing sulfur dioxide and nitrous oxide emissions since 1989 as the maps below attest.

Source: EPA

TARP Intervention Necessary to Prevent Monumental Market Failure

“The strategy was a breathtaking intervention in the free market. It flew against all my instincts. But it was necessary to pull the country out of the panic. I decided that the only way to preserve the free market in the long run was to intervene in the short run.”

— President George W. Bush in Decision Points

Anyone who knows anything about the modern financial system knows that without faith, money would not work. The government can literally print as many dollars as it likes, but the moment that people believe the dollar is no longer worth the paper on which it is printed, it becomes worthless.

During panics, people and markets behave irrationally. In 2008, I worked at a Wall Street firm and lived through the irrationality. I watched the market value companies for less money than the cash those firms had in the bank.

It simply did not make sense. It was a panic.

By buying the big banks’ troubled assets, the government necessarily intervened in the market by putting a floor on market values. This action likely prevented a much more pronounced economic crisis. Without this intervention, the overall market could have collapsed. That said, it might not have. However, had you been President of the United States at that time, would you have taken that risk?

While the market is efficient most of the time, government has a role for softening the blows of more extreme market volatility, market failure, and the impact of business’ negative externalities.

6. Individual Rights Trump Communitarian Impulses

“Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. However anxiously we may wish that these complaints had no foundation, the evidence, of known facts will not permit us to deny that they are in some degree true. “

— James Madison in Federalist No. X

The challenges with which James Madison struggled in November 1787 are very similar to the travails Americans face today. In Federalist No. X he argued that the existence of factions was a necessity for the pursuit of liberty, and that there ought to be curbs on the tyranny of the majority. Reflections of a Rational Republican continues to endorse this notion of representative democracy that James Madison so eloquently enunciated over two hundred years ago. Put simply, representative government ought to ensure that the rights of the individual trump communitarian impulses, so long as those rights do not harm the rights of others.

Federalist Papers No. X, Source: Library of Congress

Madison’s words continue to ring true today in an America in which the political left increasingly demands that a small minority of the population pay an ever-increasing share of the tax burden. In fact, the top 10% of earners pay 45% of all taxes in the United States, a share larger than any other OECD country. The top 1% pay a full 40% of income taxes.

Nevertheless, Madison saw these conflicts in his own time as well:

“But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government.”

He argued for a republic precisely because the representative government it provided helped mitigate these conflicts and blunt the tyranny of the majority inherent in a pure democracy. In the end, he maintained:

“The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State.”

Reflections of a Rational Republican is committed to adhering to Madison’s principles. So long as an individual rights do not harm those of another, the government ought to defend these rights against communitarian impulses.

7. A Strong National Defense Is the Cornerstone of a Robust Republic

Free speech, property rights, and representative democracy are nothing without a strong national defense. Furthermore, it is critical that America’s military not only be able to defend the United States and its territories, but also that it be strong enough to guarantee access to critical geopolitical resources. America’s robust defense of free trade not only benefits its own national interests, but also promotes global stability and a rising middle class in countries like India and China.

Reflections of a Rational Republican supports a security policy based on the realist school of international relations — the same school that guided the actions of Reagan, Clinton, and George Bush, Sr. This view of international security policy posits that nations behave in a manner maximizing their vital national security interests. Any actions that do not further these interests are not worth pursuing.

Because Reflections of a Rational Republican subscribes to the realist school of international reflections it necessarily rejects both the isolationist wing of the Republican Party (e.g., Ron Paul and Pat Buchanan) and neoconservatives who believe America’s military should serve as an instrument of spreading democracy to undemocratic nations.

In summary, Reflections of a Rational Republican supports strong military power based on securing America’s vital interests around the world to ensure the smooth flow of international commerce, and to maintain access to critical commodities essential for ensuring American economic growth.

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33 Responses to ROARR Philosophy

  1. Ed Darrell says:

    The problem with legal training is that it is focused on advocacy. Lawyers are imbued with a sense that they must provide their clients with the strongest possible defense. As such, they focus ruthlessly on the strengths of their clients’ cases, while downplaying the weaknesses. The American legal system is by nature highly adversarial. As a consequence, lawyers have a tendency to focus on winning their arguments rather than problem-solving.

    You didn’t go to law school, did you.

    Legal training is focused on the law and solving problems in a legal structure, and studying the history of previous problem solving in the tough nexus between all other disciplines and public policy. Advocacy is one part of it — but a tiny minority of lawyers actually practice litigation.

    Are lawyers in Congress over-representative of litigators? I rather doubt it.

    But, why aren’t you specific? Which lawyers are you complaining about? Orrin Hatch was a litigator. Do you oppose his efforts to get an amendment to require a balanced budget? Or do you regard that as “problem solving?”

    One might as easily note that Congress is over-balanced toward Republicans. They are not problem solvers, but instead got elected by promising to throw spanners into the works. In this last Congress, that has been exactly the problem — a spanner in the works on almost every issue.

    It seems to me that the solution is quite clear: Stop sending Republicans to Congress.

    The logic of my argument is no worse than yours, certainly — and my facts are more clear.

    • “You didn’t go to law school, did you.”

      Last time I checked, lawyers are agents. Agents have clients. Agents represent their clients interests, be it via corporate law or any other form of law. Clients expect lawyers to represent them and advocate on their behalf. What lawyers do you know who don’t advocate on behalf of their clients? I’m guessing not many, since that is how they earn their living. It is why lawyers exist.

      I don’t need to go to law school to know that.

      “Legal training is focused on the law and solving problems in a legal structure, and studying the history of previous problem solving in the tough nexus between all other disciplines and public policy.”

      I agree, but you left out the fact that they apply all this wonderful legal training in fact patterns, and case precedent to advocate on behalf of their clients by constructing contracts that protect them. Advocacy is not limited to litigation. Again, I didn’t need to go to law school to know that.

      “But, why aren’t you specific?”

      I am not specific because I am discussing a general philosophy. Since Congress hasn’t worked well in quite some time (including the four years from 2006 – 2010, when Democrats controlled both chambers of Congress), the only common thread is that the majority of lawmakers are lawyers who are trained in the art of argumentation.

      “Which lawyers are you complaining about?”

      All of them – Republican and Democrat. They clearly aren’t problem-solvers, but rather advocates for their own particular political philosophies. When Democrats like Senator Reid declare, “The war is lost” when it wasn’t, he played the role of advocate for his party, but only hurt those who were risking their lives to turn Iraq around by providing a propoganda victory for the enemy.

      “One might as easily note that Congress is over-balanced toward Republicans.”

      Actually, it’s not. The House may be, but not the Senate. Furthermore, the House has only been over-balanced toward Republicans for less than a year.

      “The logic of my argument is no worse than yours, certainly”

      Actually, it is worse. Far worse considering that your opening line of “You didn’t go to law school, did you” is classic ad hominem.

  2. Ed Darrell says:

    “You didn’t go to law school, did you.”

    Last time I checked, lawyers are agents. Agents have clients. Agents represent their clients interests, be it via corporate law or any other form of law. Clients expect lawyers to represent them and advocate on their behalf.

    Again, as I noted before, you assume all lawyers litigate. Most lawyers don’t. Corporate lawyers, in particular — 30% to 40% of all practicing lawyers — often are not agents, no different from any other salaryman in that regard.

    Further, you assume that the justice system functions only with blind defense of a client, regardless the facts. In reality lawyers are bound by oath, ethical canons and the law to serve the courts and public interest, often at the expense of a client.

    I noted that you don’t appear to have much of a factual base on which your argument is based, at least not other than the general whine that “all lawyers are sharks.” Yeah, I’ve heard about all of the jokes. Jokes are not good foundations for solid argument about policy.

    What lawyers do you know who don’t advocate on behalf of their clients? I’m guessing not many, since that is how they earn their living. It is why lawyers exist.

    Due diligence lawyers, regulatory compliance lawyers, judges. Contract lawyers often work only to get an enforceable contract, assuming that a workable agreement is much better than one in which one’s client “wins” but the deal falls apart.

    I suggested that it appears you didn’t go to law school because it appears to me you are not familiar with what we use laws for in the U.S., nor the work of most lawyers.

    You’ve repeated your argument, but again, without recourse to examples, backing facts, or any other evidence. I find your case lacking.

    I don’t need to go to law school to know that.

    You don’t need to be a physicist to know the world is flat, either.

    “Legal training is focused on the law and solving problems in a legal structure, and studying the history of previous problem solving in the tough nexus between all other disciplines and public policy.”

    I agree, but you left out the fact that they apply all this wonderful legal training in fact patterns, and case precedent to advocate on behalf of their clients by constructing contracts that protect them. Advocacy is not limited to litigation. Again, I didn’t need to go to law school to know that.

    But the practice of contract law, in the crafting of good, workable agreements, is the opposite of how you portray lawyers acting. Contracts are, by law, agreements to get things done, not one-sided statements of grievances against the other party.

    “But, why aren’t you specific?”

    I am not specific because I am discussing a general philosophy. Since Congress hasn’t worked well in quite some time (including the four years from 2006 – 2010, when Democrats controlled both chambers of Congress), the only common thread is that the majority of lawmakers are lawyers who are trained in the art of argumentation.

    Congress hasn’t worked well since Mike Mansfield retired, and for much of the time before that. Congress worked horribly during the period 1900 through 1939. Congress was a mess from 1835 through 1876.

    During much of our history lawyers have played big roles in Congress, for the good. James Madison was a lawyer — the “Father of the Constitution.” Thomas Jefferson, the author of the Declaration of Independence, was a lawyer. Abraham Lincoln was a lawyer. Andrew Jackson, the perpetrator of the Trail of Tears and the guy who almost single-handedly killed the Bank of the U.S. and brought on the Panic of 1837, was not a lawyer, and acted contrary to the advice of lawyers.

    You offer not a single example showing lawyers are so bad as you claim, nor even that Congress is so bad as you claim.

    One need not be a lawyer to recognize shaggy thinking, unsupported arguments, and a case that is not accurate.

    “Which lawyers are you complaining about?”

    All of them – Republican and Democrat. They clearly aren’t problem-solvers, but rather advocates for their own particular political philosophies. When Democrats like Senator Reid declare, “The war is lost” when it wasn’t, he played the role of advocate for his party, but only hurt those who were risking their lives to turn Iraq around by providing a propoganda victory for the enemy.

    What war? What’s your case that it wasn’t lost? How do Reid’s views differ from physican Ron Paul, on that war? Where’s your case?

    “One might as easily note that Congress is over-balanced toward Republicans.”

    Actually, it’s not. The House may be, but not the Senate. Furthermore, the House has only been over-balanced toward Republicans for less than a year.

    Democrats have a slim margin in the Senate. Congress is overbalanced toward Republicans, conservatives, and even the minority Tea Party Radicals. Republicans have ruled Congress for most of the years since 1990. They’re probably the source of the problems you complain about.

    “The logic of my argument is no worse than yours, certainly”

    Actually, it is worse. Far worse considering that your opening line of “You didn’t go to law school, did you” is classic ad hominem.

    No, simply an observation to demonstrate that you don’t have a factual background on which your case is based. It’s a correct observation, too, it appears.

    So, since your argument is not grounded in understanding of the law, from the study of law, I wonder what it is grounded in?

    So far, your claims appear grounded in bias, dogged advocacy for your political position, for your “client” Imustberightorelse.

    We can make Congress work again, working against imbalances. I’ll wager I can select 50 Republicans, and replace them with litigators, and end up with a much better, and much better working, Congress.

    Hoagy Carmichael was a lawyer. That doesn’t make his music bad. Your overgeneralized ad hominem barks against lawyers are off the mark, factually wrong, and your case doesn’t make sense.

    Please refrain from accusing me of ad hominem fallacies when my argument is accurate, and your entire claim rests on a large, inaccurate ad hominem.

    Thank you.

    • “Again, as I noted before, you assume all lawyers litigate.”

      Actually, I don’t. You assumed that. Nowhere have I used the term “litigate” in anything I’ve written.

      “I noted that you don’t appear to have much of a factual base on which your argument is based, at least not other than the general whine that ‘all lawyers are sharks.'”

      If you cannnot accept the proposition that all lawyers have clients, there is no amount of fact-based evidence out there that will convince you otherwise. To require factual evidence for this is like require factual evidence that the sky is blue. Even your own argument is wrong:

      “Due diligence lawyers, regulatory compliance lawyers, judges. Contract lawyers often work only to get an enforceable contract, assuming that a workable agreement is much better than one in which one’s client “wins” but the deal falls apart.”

      Actually due diligence lawyers serve the corporations who’ve hired them – protecting them from potential future litigation. I know, they’ve worked for me. Regulatory compliance lawyers serve the government and seek to enforce rules on behalf of this very important client.

      “But the practice of contract law, in the crafting of good, workable agreements, is the opposite of how you portray lawyers acting. Contracts are, by law, agreements to get things done, not one-sided statements of grievances against the other party.”

      But if one side fails to argue adequently for their clients’ behalf, I guarantee you you will get a lopsided agreement favoring the other party.

      “One need not be a lawyer to recognize shaggy thinking, unsupported arguments, and a case that is not accurate.”

      Oh, really. What’s you’re case? For instance here are a number of the blanket assertions you’ve made here without any supporting evidence:

      “Democrats have a slim margin in the Senate. Congress is overbalanced toward Republicans, conservatives, and even the minority Tea Party Radicals. Republicans have ruled Congress for most of the years since 1990. They’re probably the source of the problems you complain about.”

      So, basically Democrats control the Senate, therefore it is “overbalanced” toward Republicans, et. al. Is that really your argument? Then you blithely suggest that “they’re probably the source of the problems you complain about” Really? How so?

      Here’s another one:

      “No, simply an observation to demonstrate that you don’t have a factual background on which your case is based. It’s a correct observation, too, it appears.”

      Really, how so? In every instance above, I was able to counter your baseless assertions. My only recourse based on your seemingly defensive tone, is that I should accept your arguments, which “don’t have a factual background on which your case is based” because you are, in fact, a lawyer. Since you never come right out and say it, I have to rely solely on the merit of your logic and argumentation, which frankly, is flawed, especially if it requires me to accept them purely on the basis of what degree you have (if you do).

      “What war? What’s your case that it wasn’t lost?”

      The Iraq War. It wasn’t lost because Saddam Hussein is no longer in power, and the country now has a Democratic government.

      “How do Reid’s views differ from physican Ron Paul, on that war? Where’s your case?”

      I’m not familiar with Ron Paul’s specific statements on the matter, but more generally I find him to be quite ignorant of international policy. If you would be kind enough to post which specific statements you are speaking of, I would be happy to comment. If you are trying to make the case that Democrats are the force of good in this world striving to defeat the evil Republicans, go ahead. I believe both sides are good, they just have dramatically different ways of looking at the world. I’m frankly tired of this partisan rancor.

      “During much of our history lawyers have played big roles in Congress, for the good. James Madison was a lawyer — the “Father of the Constitution.” Thomas Jefferson, the author of the Declaration of Independence, was a lawyer. Abraham Lincoln was a lawyer. Andrew Jackson, the perpetrator of the Trail of Tears and the guy who almost single-handedly killed the Bank of the U.S. and brought on the Panic of 1837, was not a lawyer, and acted contrary to the advice of lawyers.”

      I don’t deny that. I just find it odd that you have to cite US presidents in an argument about why lawyers have made it difficult for the US Congress to work well. Furthermore, your points that Congress has rarely ever worked only contribute to my argument.

      “So, since your argument is not grounded in understanding of the law, from the study of law, I wonder what it is grounded in?”

      Facts, statistics, American history, life experience. What are your arguments grounded in?

      Oh, I’m guessing it is because you are a lawyer. If so, don’t you think that might be a source of tremendous bias? Actually, I take that back. That argument would be ad hominem.

      “We can make Congress work again, working against imbalances. I’ll wager I can select 50 Republicans, and replace them with litigators, and end up with a much better, and much better working, Congress.”

      Again, to turn your argument back at you: “One need not be a lawyer to recognize shaggy thinking, unsupported arguments, and a case that is not accurate.”

      “Please refrain from accusing me of ad hominem fallacies when my argument is accurate, and your entire claim rests on a large, inaccurate ad hominem.”

      Sigh. Your entire argument rests on the fact that I am not a lawyer. If you don’t recognize that as ad hominem, there is frankly nothing I can do for you.

  3. Ed Darrell says:

    My argument is you don’t have a case. I’ve offered examples, you’ve offered none. I’ve challenged you to name the lawyers who are screwing up Congress, but you demur. I’ve challenged you to name the non-lawyers who work to make things better, but again you demur.

    Go ahead, make your case. I’ve pointed out several areas where what you assumed is not in evidence, and therefor your case is weak. But your ad hominem argument is not a case against lawyers, not a case against the lawyers in Congress, and not a case for Congressional reform in any fashion. It’s not a case at all. Your entire rant is a lawyer joke, lacking a punch line.

    • “My argument is you don’t have a case. I’ve offered examples, you’ve offered none. I’ve challenged you to name the lawyers who are screwing up Congress, but you demur. I’ve challenged you to name the non-lawyers who work to make things better, but again you demur.”

      Sigh. There are over six-hundred people in Congress (House + Senate) right now. What good will it be for me to individually name each and every lawyer? You are honestly starting to get into the weeds here. In a 600-plus person organization, the aggregate numbers matter more than any one, and I’ve presented those. To be frank, this is like talking to wall. You’ve ignored every point and counterpoint I’ve made, so it is useless continuing this argument. The more I point out flaws in your argumentation, the more meta your argument becomes. First your argument rested on an ad hominem assertion which was that I didn’t know what I was talking about since I don’t have any legal training. Now it is a declarative hand-waving statement that I simply don’t have a case and that you’ve offered examples. The second thrust of your argument was that I assumed all lawyers are litigators and since all lawyers are not litigators, my argument fell apart. Of course, at no point did I ever write lawyers were all litigators, which you’ve curiously ignored. So your defense is now to throw up your hands and refer to these “examples”, which I have painstakingly and thoroughly picked apart. But rather than counterargue why I should accept these examples as proof of your case, you simply say you’ve offered examples, therefore you must be right.

      This form of “I declare it, therefore it must be so” argument might work for people who kow-tow to you in whatever line of business you’re in, but it won’t work here. I’ve offered my “evidence” and “proof” in the original post. Feel free to focus on the facts as I presented them there. That said, I am no longer going to waste time trying to grab at whisps of air because I’m firmly convinced that you will refuse to accept any argument or any amount of evidence no matter how strong or persuasive.

      This is the point where I say we will have to agree to disagree, because we are frankly wasting each other’s time.

  4. Ed Darrell says:

    Actually due diligence lawyers serve the corporations who’ve hired them – protecting them from potential future litigation.

    Please explain: In their defense of the law and in their formal role of keeping legal agreements in compliance with the law, how does due diligence warrant your claim that the lawyers are over-active agent provocateurs for clients?

    Do you understand what due diligence is, say, in a real estate deal? In protecting corporations from future litigation — assuming a corporation is paying for the work — how is the lawyer working against any other party?

    • “Please explain: In their defense of the law and in their formal role of keeping legal agreements in compliance with the law, how does due diligence warrant your claim that the lawyers are over-active agent provocateurs for clients?”

      I never made the claim that they are “over-active agent provocateurs for clients?” You put words in my month. Take another look at the record, which is clearly documented in this comment stream.

      “Do you understand what due diligence is, say, in a real estate deal? In protecting corporations from future litigation — assuming a corporation is paying for the work — how is the lawyer working against any other party?”

      Yes, it is a key component of my line of work. It is the due diligence lawyer’s duty to uncover anything amiss with the asset the client intends to buy. Therefore, the lawyer does work to benefit that client, sometimes at the expense of the other party.

  5. Ed Darrell says:

    Oh, I’m guessing it is because you are a lawyer. If so, don’t you think that might be a source of tremendous bias? Actually, I take that back. That argument would be ad hominem.

    It would be a description of bias, but only ad hominem if, as you assume, it is somehow unseemly to be a lawyer.

    You assume two legs bad, four legs good.

    • “It would be a description of bias, but only ad hominem if, as you assume, it is somehow unseemly to be a lawyer.”

      No, it would be a description of bias if someone were arguing for his or her profession, in that they would have an interest in portraying that profession in a positive light. I could make the same argument for an investment banker, a police officer, a military officer, a teacher, or any other profession.

      To be blunt I never intended to demean lawyers in the first place. I only meant to describe that their way of work and training is focused on advocacy rather on problem solving as is an engineer’s way of work and training. That’s all. Yet, for some reason, you’ve taken what I’ve written as an affront on the legal profession.

  6. Ed Darrell says:

    538 members of Congress if we include the delegates from Guam, Puerto Rico and the District of Columbia as members.

    My complaint all along is that you don’t know what you’re talking about. Q.E.D.

    • That’s right.

      I double-counted the Senate. My comments should have said “500+” My apologies. You are right on this point of fact. However, changing the number has no bearing on the overall argument whatsoever.

      “My complaint all along is that you don’t know what you’re talking about. Q.E.D.”

      This addressed a subsequent comment unrelated to the original post. You still haven’t proven your argument at all.

      This is yet another fallacy that you can add to your incessant ad hominem. It is called a sweeping generalization. You argue that since I was wrong on one point of fact, I must be wrong on all others. Again, nice try.

    • Adam says:

      Regarding the saibatbcal, the west coast firm Munger Tolles & Olson has actually instituted a such a program, to be used for whatever a partner finds interesting and worthwhile.

  7. Ed Darrell says:

    Nor have you made a case that passes first face analysis. You claimed, without any reference to anything to suggest a factual basis, that law schools spend too much time teaching scorched-earth advocacy. I noted you’ve not looked at law school curricula, admittedly too snarky for you, by pointing out you didn’t look at law school curricula from the inside (you could have said, “No, but I looked at 43 catalogs of the top law schools and the bottom law schools favored by Republicans . . . — but of course, had you done that, you’d have informed yourself tha your argument was in error). Law schools spend blessed little time on advocacy, too little for those of us who think litigation is often a good idea and should be done well. And I called your bluff on Congress. Yeah, there are a lot of lawyers in Congress. Similarly, if you go to an NFL game, on the field you’ll find a lot of ex-college football players, and if you go to a hospital, you’ll find a lot of graduates of medical schools. Congress makes laws. Laws are what lawyers study, and part of the set of tools of what lawyers use, and what lawyers pledge to uphold in order to protect citizens’ rights. Congress should be overbalanced with lawyers — those are the guys who swear oaths to uphold and defend the rights of people using those laws. In contrast, engineers, for one example, do not swear an oath to uphold . . . anything. But just as it would be bizarre, and perhaps malpractice, to get lawyers to design houses and bridges, so it is no unusual that lawyers would be represented healthily among those who write the laws.

    I think you are irrational on both ends. Your premise, that lawyers learn too much advocacy, or too hard advocacy, simply doesn’t stand cursory analysis. Law school classes concentrate on non-advocacy law. Your claim that we might be better off with fewer lawyers in Congress also doesn’t make sense — lawyers are the people we would naturally go to, to make good laws. For over 200 years the system has worked pretty well for us, and so it has been true for a couple of millennia that we let experts in the law, make the laws. There is not an iota of evidence or argument that non-experts could do better.

    Now, I will grant you there are some dramatic examples of charlatans, incompetents and lunatics in the ranks of lawyers in Congress. Michelle Bachmann clearly would be a menace in any profession. Rick Santorum similarly is an embarrassment to lawyers, Pennsylvanians, reasoning people, and any other group he claims to be a member of. Eric Cantor seems unclear on the concept of a Member of Congress’s duty to his own district, let alone the rest of the oath and its implied duty to look out for the people of the nation, as well as his own investments. 45 of the 94 new members, the Tea Party class, are lawyers — nearly 48% (compared to 36% of the total House Membership).

    But I think that most lawyers in Congress are outstanding citizens in their own districts and people we should be proud to say have stepped up to do their duties as citizens of this nation. They do good work, and your general complaint does not obtain, if we look at the actual members, at the actual Members of Congress, and the actual actions of Congress.

    • Sigh. I cannot believe I continue to waste my time on this absurd argument thread. To sum up your argument for my readers:

      Argument 1
      No one can comment about the legal profession unless they have legal training. Since Sean has no legal training and hasn’t reviewed “43” law school curricula, his argument is wrong.

      Argument 2
      Advocacy = litigation. Since all lawyers are not litigators, they are not advocates. Therefore Sean’s contention that lawyers’ primary focus is on advocacy is false.

      Argument 3
      Since Sean used 600 to connote the notion of “a lot” when the more accurate number is 500, every argument on this thread must therefore be wrong and irrational. And he is “bluffing.”

      Argument 4
      Sean’s arguments only ring true if they apply to Republican lawyers.

      Argument 5
      Congress has been a smashing success because it has lawyers writing laws.

      Again and in summary, here are my counterpoints:

      Argument 1 is baseless ad hominem. Additionally, you have not provided any basis or evidence to support your contention that we should listen to you either. Are you a lawyer or not? If so, why does it matter? If not, why haven’t you thoroughly examined “43” different legal curricula to back up your case?

      Argument 2: Litigation is not the only area where lawyers are advocates. The vast majority of lawyers are advocates for their clients be it in patent law, divorce law, due diligence, regulatory law, etc. Lawyers in Congress are advocates for their political parties. Judges and mediators are likely the only areas of the legal profession in which lawyers do not explicitly advocate for one side or another.

      Argument 3 is an example of a sweeping generalization. By your logic, every argument the President of the United States makes is wrong and irrational because he was wrong once on his statement that he had visited 57 states with one left to go (see the video below).

      Argument 4 is just another example showing which political direction you are really coming from. To whit is your argument that 45 of the 94 new members http://blogs.wsj.com/washwire/2011/01/05/congresss-freshmen-41-lawyers-7-mbas/ , the Tea Party class, are lawyers — nearly 48% (compared to 36% of the total House Membership http://www.dailypaul.com/94514/list-of-lawyers-in-the-111th-congress).

      I would whole-heartedly agree with you here. It sure explains why these new House members have been focusing more on partisan bickering and “advocacy” than on problem-solving. Again, my logic doesn’t apply only to Democrats, but to Republicans as well. It seems you half agree with my proposition provided that it is selectively applied only to Republicans, of course.

      Argument 5 is uncompelling if you’ve ever actually read a law written by Congress. Since I used to cover clean energy companies as a stock analyst, I had to read and analyze draft legislation as part of my analysis for how green legislation would impact clean energy companies. I assure you, understanding or for that matter writing laws is nowhere near as complex as writing a software program or designing an integrated circuit (I’ve done both). A second reason argument 5 is uncompelling is that you contradicted yourself in an earlier argument. In an earlier comment you noted:

      “Congress hasn’t worked well since Mike Mansfield retired, and for much of the time before that. Congress worked horribly during the period 1900 through 1939. Congress was a mess from 1835 through 1876.”

      Then you backtracked and said:

      “For over 200 years the system has worked pretty well for us, and so it has been true for a couple of millennia that we let experts in the law, make the laws.”

      and

      “But I think that most lawyers in Congress are outstanding citizens in their own districts and people we should be proud to say have stepped up to do their duties as citizens of this nation. They do good work, and your general complaint does not obtain, if we look at the actual members, at the actual Members of Congress, and the actual actions of Congress.”

      Also, regarding a point of fact: 200 years is a couple of centuries not “millennia” as you noted. Had I made this mistake, you likely would have employed your Argument 3, which would sound like “Ed referred to 200 years as two millennia, therefore all his arguments on this thread must be wrong, irrational, and filled with lies.” Of course, I will be the better man and chalk this up to an honest mistake, which it obviously is. You simply meant to say that Congress has worked well for a very long time, much as I meant to say that their are a lot of people in the Congress.

      To sum up this comment, I quote you, “Nor have you made a case that passes first face analysis.” Exactly, you haven’t made your case if one boils your argument stream down to its essence.

      The bottom line is that we both have strong opinions based on experience about how the legal profession works in this country. Neither of us will convince the other side that their opinion is wrong. Instead, we will both waste a lot of psychic energy on arguing on a point, which is more a matter of opinion than anything else. You have rigidly defined advocacy as litigation, while I have broadly defined it as working on behalf of clients. If you can’t accept the latter proposition neither of us will ever agree.

      If you really enjoy pissing in the wind, I strongly suggest you do it elsewhere.

  8. Ed Darrell says:

    Why don’t you just publish my last response? You misstate my arguments, but then accuse me of misstating yours. Why not let your readers decide?

    • What last response? Every response you posted is up on the site. If it still does not appear here it is due to a technical glitch, not any effort on my part to censor your response. If you still do not see it on this site, can you please repost it? Thanks.

      “Why not let your readers decide?”

      I agree.

  9. Ed Darrell says:

    (My second to last post appears to have gone into the ozone. I’ll try to reconstruct.)

    You could simply admit error, learn, and move on. Stubbornness is a virtue, when you’re in the right.

    Argument 1
    No one can comment about the legal profession unless they have legal training. Since Sean has no legal training and hasn’t reviewed “43″ law school curricula, his argument is wrong.

    I’m not sure if you’re intentionally misstating the argument, or if I genuinely was that opaque.

    Anyone can comment about the legal profession any time they wish. You have a Constitutional right to be a fool. You are not obligated to be a fool under the Constitution, however. I wish you had not chosen this place to exercise your rights, instead of exercising some rationality.

    I simply noted that you have no factual basis for your claim: “The problem with legal training is that it is focused on advocacy.” Legal training is NOT focused on advocacy. Advocacy is one of those things journeymen lawyers are supposed to learn in practice, not in law school. I’ll wager that more than 50% of lawyers never get serious training in advocacy. Law school curricula spend very little time in it. Pick a good law school and look at the curriculum. Every student spends twice as much time studying contracts as is possible to spend studying advocacy. Then there is Constitutional law, property, wills and probate, criminal law (law of crimes, not law of advocacy), criminal procedure (history of writs more than advocacy), civil procedure, torts (what is a tort, not how to win a case). Most students can’t escape without taking corporations (almost the antithesis to advocacy, IMHO), tax, and commercial paper. Popular electives would include negotiation, mediation, conflicts of laws (not conflicts of parties), administrative law, international law, maritime law, environmental law, medical management, appellate law, intellectual property, labor law (which focuses on the hows and whys of collective bargaining, not on how to win at it) — all delivered with the idea that a good lawyer needs to understand the history and the facts before stepping into advocacy, that an litigation an attorney has a legal duty to understand all sides of a case, and to function to seek justice, not “wins” for a client.

    Your view of law school and what lawyers learn is not only wrong, it’s grotesquely misrepresentative of any rational educational process.

    It’s something I’ve looked at for years. Argumentation — advocacy — in courtrooms in America is notoriously bad (notorious among lawyers, reporters, and other observers). On the criminal side, most cases end with a negotiated plea. On the civil side, most cases between people get settled outside of a courtroom. Most of the litigation that proceeds with any profile is financed by corporations suing each other. Claiming that lawyers are unfit to be legislators by their “advocacy” is complete hooey, from the courtroom side. Claiming that lawyers are unfitted to serve by law school training is complete hooey from the law school side.

    You said:

    Argument 2
    Advocacy = litigation. Since all lawyers are not litigators, they are not advocates. Therefore Sean’s contention that lawyers’ primary focus is on advocacy is false.

    No, my argument is that your claim — completely unevidenced as you first presented it — is wrong. Lawyers are not trained as advocates. One example I offered was your assumption of error that lawyers function as litigators, as fierce advocates for clients. Simply not so in most cases. You’ve offered not a single example where that is the case. I noted most lawyers fade into non-litigative roles, and I challenged you to offer support for your claim — a challenge you’ve not met. When I offered counter-examples, you did make an attempt to claim that due diligence might be advocacy — but all I can gather is that you don’t understand the nature of due diligence, and you leap to a conclusion that whatever process due diligence goes to must be an advocate’s role — which again is generally wrong.

    Compliance with the law is more often a collaborative process, especially in commercial real estate. My client doesn’t wish to cheat the other party, but instead wishes to develop a piece of land, or sell the land to someone who will develop it, generally. The due diligence is not to cover up the dumped chemicals, nor to obfuscate the title problems from the survey that was incorrectly translated from Spanish varas into English leagues and finally English yards and feed, but instead to lay all of those problems bare and show how they have been resolved — or resolve them, in order to get the deal done.

    Intellectual property law is generally in learning how patents and copyrights work, and securing the necessary legal steps to secure the rights for the client. Oh, there may be litigation, and fierce advocates will play a role then — but the lawyers are first trained in the cooperative processes of making these things work, in the invention, the documentation of the uniqueness, the securing of the rights, and the licensing of those rights.

    I was correct that your view is not informed by your having been to law school, but now we see that it is also not informed by basic research into how law schools train lawyers, and how the law functions day to day.

    Argument 3
    Since Sean used 600 to connote the notion of “a lot” when the more accurate number is 500, every argument on this thread must therefore be wrong and irrational. And he is “bluffing.”

    I caught your error. You assume an argument I then do not make. I said you don’t know much about this topic. I concede you goofed on the number. That aside, you still don’t have correct information on much of anything else. You are not wrong because you misspoke. But your having admitted your error there, and correcting that one error, does not make you correct on any other point, let alone all of them.

    I did not say your error was anything more than an indication of your errors. It remains so. Not “therefore” wrong in all other claims, but “also” wrong on most other claims.

    Argument 4
    Sean’s arguments only ring true if they apply to Republican lawyers.

    I didn’t say that. There are some outstanding examples that might lead someone to that conclusion that were obviously not part of your calculation when you started out. But that’s not my claim.

    If you had an iota of evidence to back any of your claims, though, it’s mighty odd you don’t show it. I had no difficulty finding several examples that directly contradicted your claim that Democratic control of Congress is the issue. There are 538 members of Congress now, several thousands throughout our nation’s history, and you can’t find a single example to back your claims.

    Maybe your claims are in error.

    Argument 5
    Congress has been a smashing success because it has lawyers writing laws.

    I did not say Congress has been a smashing success. Our nation’s history is one of struggle to obtain the lofty goals set up by Jefferson and Adams and Madison — all three lawyers, by the way — and Congress has been both a facilitator of that process, and a block to it, depending on what the issue is, and what time in history you wish to examine.

    But I do point out that lawyers are experts in law, and making laws is the task of the legislature. For more than 2,000 years western cultures relied on lawyers to make laws. You claim lawyers should not do that, that they are somehow specially unfitted for the task (though your complaints, other than your imagined mistraining in advocacy, are unevidenced once again).

    Ask yourself this: If you need brain surgery, are you going to ask your auto mechanic to do the task, since brain surgeons over the last 4,000 years have managed to screw things up whenever brain surgery was screwed up? If we follow your reasoning on the legislature, you would ask your auto mechanic, or your hairdresser, or maybe the yard man — anyone but the experts.

    I don’t have to make the counterclaim that Congress works well, in order for it to be apparent your argument is lunacy.

    • “You have a Constitutional right to be a fool.”

      Frankly I’ve had enough of you baseless ad hominem. I’m tired of it. Please take your arguments elsewhere. I will be happy to allow you to piss in the wind, but I will no longer be wasting my time on responding to your comments. Thanks.

      Here is what the American Bar Association has to say on advocacy:

      Client-Lawyer Relationship
      Rule 1.2 Scope Of Representation And Allocation Of Authority Between Client And Lawyer
      (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

      (b) A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.

      (c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

      (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

      In essence most lawyers are advocates, litigation or otherwise.

  10. Ed Darrell says:

    In contrast, most first-time members of China’s political leadership were not lawyers, but engineers and administrators. In China’s 17th Politburo, 76% of members had experience as provincial leaders. Until several years ago, all nine members of the Politburo’s Standing Committee were engineers by training.

    Most of us don’t think that the example of leadership in Communist China, the nation that sacrificed millions of people in an abortive “cultural revolution, the nation that leads the world in incarcerations, the nation that leads the world in death penalty executions, the nation that looks good in freedom only in comparison to North Korea (did someone say “Tiananman Square?”) should be considered a paragon of leadership for the U.S. to follow.

    Especially, Republicans might have difficulty if your point is that we need to spend a lot more government money on infrastructure.

    Is that really your claim?

    • The cultural revolution happened in the 1960s. The relevant period to which I am referring is the last ten years in which China’s GDP growth has consistently surpassed that of the United States. My comments relate to the development of a rational economic policy, and have nothing to do with China’s heavy-handed social policies.

      My claim is that China’s economic prosperity has not been constrained by the useless partisan bickering in our system as typified by a Congress dominated by lawyers.

  11. Ed Darrell says:

    The cultural revolution happened in the 1960s.

    1966 to 1976, approximately.

    The relevant period to which I am referring is the last ten years in which China’s GDP growth has consistently surpassed that of the United States. My comments relate to the development of a rational economic policy, and have nothing to do with China’s heavy-handed social policies.

    While few would disagree that the current crew of leaders of China is somewhat more enlightened than Mao and those who immediately followed him, the fact remains that China remains a communist nation with a government that is no great respecter of human rights.

    My claim is that China’s economic prosperity has not been constrained by the useless partisan bickering in our system as typified by a Congress dominated by lawyers.

    You can’t know that. No one knows what sort of bickering goes on between China’s ruling engineers. However little bickering there is, there are still a half million people in political detention. Air pollution remains among the worst in the world — so bad it kills air quality as far east as Idaho. Economic development comes on the deaths of hundreds of coal miners, on pollution that cripples workers, and with political repression of entire peoples that should horrify you enough not to admire them. The trains don’t even run on time, and they run off the tracks too often. If you’re going to pick a totalitarian, human-rights abusing government to admire, there are probably better ones.

    Harry Truman observed that efficiency in government is highest in a dictatorship. You assume bickering in Congress is a bad idea. You assume our founders were wrong, and they did not design our republic to work exactly that way. Bad assumption.

    I’ll take a bickering Congress over China’s human rights record any day.

    Here is what the American Bar Association has to say on advocacy:

    Do you disagree with that part of the canon?

    While you’re at that site, read what the duties of a lawyer are, the purpose of lawyering, and the value of the law — which is all laid out long before that perfunctory statement on client relations. How could you miss it? The Model Code of Professional Responsibility:

    PREAMBLE

    The continued existence of a free and democratic society depends upon recognition of the concept that justice is based upon the rule of law grounded in respect for the dignity of the individual and his capacity through reason for enlightened self-government.2 Law so grounded makes justice possible, for only through such law does the dignity of the individual attain respect and protection. Without it, individual rights become subject to unrestrained power, respect for law is destroyed, and rational self-government is impossible.

    Lawyers, as guardians of the law, play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship with and function in our legal system.3 A consequent obligation of lawyers is to maintain the highest standards of ethical conduct.

    In fulfilling his professional responsibilities,a lawyer necessarily assumes various roles that require the performance of many difficult tasks. Not every situation which he may encounter can be foreseen,4 but fundamental ethical principles are always present to guide him. Within the framework of these principles, a lawyer must with courage and foresight be able and ready to shape the body of the law to the ever-changing relationships of society.5

    The Model Code of Professional Responsibility points the way to the aspiring and provides standards by which to judge the transgressor. Each lawyer must find within his own conscience the touchstone against which to test the extent to which his actions should rise above minimum standards. But in the last analysis it is the desire for the respect and confidence of the members of his profession and of the society which he serves that should provide to a lawyer the incentive for the highest possible degree of ethical conduct. The possible loss of that respect and confidence is the ultimate sanction. So long as its practitioners are guided by these principles, the law will continue to be a noble profession. This is its greatness and its strength, which permit of no compromise.

    From the very start, lawyers in the U.S. are held to rules that put the protection of our society above defense of a client, or any client relationship. No other profession is sworn to protect our nation first and foremost, with the exception of a soldier in the U.S. military.

    I find your characterization of lawyers inaccurate. Your view in the original post bears no relation to the ethical canons.

    See also Ethical Canon 7:

    EC 7-16

    The primary business of a legislative body is to enact laws rather than to adjudicate controversies, although on occasion the activities of a legislative body may take on the characteristics of an adversary proceeding, particularly in investigative and impeachment matters. The role of a lawyer supporting or opposing proposed legislation normally is quite different from his role in representing a person under investigation or on trial by a legislative body. When a lawyer appears in connection with proposed legislation, he seeks to affect the lawmaking process, but when he appears on behalf of a client in investigatory or impeachment proceedings, he is concerned with the protection of the rights of his client. In either event, he should identify himself and his client, if identity of his client is not privileged, and should comply with applicable laws and legislative rules.27

    Note that there is no advocacy relationship for a lawyer who is a member of the legislative body. By training and by ethical canons, lawyers in legislatures are different from the description you give. Again I wonder what you based that description on.

    Also, especially see Ethical Canon 8:

    CANON 8. A Lawyer Should Assist in Improving the Legal System

    ETHICAL CONSIDERATIONS
    EC 8-1

    Changes in human affairs and imperfections in human institutions make necessary constant efforts to maintain and improve our legal system.1 This system should function in a manner that commands public respect and fosters the use of legal remedies to achieve redress of grievances. By reason of education and experience, lawyers are especially qualified to recognize deficiencies in the legal system and to initiate corrective measures therein. Thus they should participate in proposing and supporting legislation and programs to improve the system,2 without regard to the general interests or desires of clients or former clients.3

    EC 8-2

    Rules of law are deficient if they are not just, understandable, and responsive to the needs of society. If a lawyer believes that the existence or absence of a rule of law, substantive or procedural, causes or contributes to an unjust result, he should endeavor by lawful means to obtain appropriate changes in the law. He should encourage the simplification of laws and the repeal or amendment of laws that are outmoded.4 Likewise, legal procedures should be improved whenever experience indicates a change is needed.

    Lawyers are ethically bound to work in the legislative process, where you wish they would get out.

    What should the lawyer do? Follow the 800+ – year traditions of English and American law, the imprecations of the founders, the Constitution, and the ethical canons of the profession and participate in making laws, or listen to Mr. Hazlett and butt out?

    Thank you, I think lawyers should take the ethical course.

    • Brian says:

      So the argument is that by acting ethically you aren’t an advocate? That is an extremely subjective stance to take considering an ethical position may necessarily be governed by the fact that the lawyer works for party X. You should have bolded this:

      “When a lawyer appears in connection with proposed legislation, he seeks to affect the lawmaking process, but when he appears on behalf of a client in investigatory or impeachment proceedings, he is concerned with the protection of the rights of his client.”

      The question is still out there: are the lawyers in Congress serving the “legislation” or serving the “client”? I understand Sean’s argument to be the latter. You may hold to the statement above as to how a lawyer “should” act from an ethical standpoint but that again begs the question: what Ethic? Furthermore we have to view the actions of the lawyers in Congress independent of this ethical mandate: are they honoring it? Simply claiming this is what the are supposed to do speaks nothing to what they are doing.

      Now you may counter with “then name the ones which aren’t following the ethic”, and that would be a fair counter. I don’t know because I’m not making the case. I’m simply arguing that the idealism of the craft does not equate to the implementation. Knowing more than an handful of lawyers in a variety of fields, having served as a representative during mediation and discussing case law it is more than obvious that the lawyer is not objective to the “legislation” as long as they represent X.

      Maybe it is too cynical to assert that everyone in Congress represents their party first…then I am too cynical. And I will surely admit that to hold an absolute position sets me up for failure. In reading the extended conversation I applaud each of you in your effort to stand firm to your position. I am, however, saddened that there was a need to attack the person, especially from one whose ultimate concern resides in education. From your first and second posts, Ed, it is obvious you have disdain for Republicans. Qualifying the Tea Party as “radical” and claiming that replacing only Republicans with lawyers could fix the problem. You are purposely argumentative as is obvious by not only your language but your assertion of being factually accurate while claiming your opponent can’t “know” certain things. To state “I’ve offered examples you’ve offered none” implies 1) you either didn’t read the responses, 2) you disagree with them (which is not an indication of any truth claim), 3) you don’t know what an “example” is, 4) you are committed to your position and not to understanding. Obviously you are a learned man in areas I can marvel at. I just wish you’d approached the discussion differently.

      • Ed Darrell says:

        The question is still out there: are the lawyers in Congress serving the “legislation” or serving the “client”?

        According to the oaths lawyers swear, they serve legislation in that hypothetical. It’s illegal, and contrary to the rules of every legislature I’ve ever worked with, for a lawyer/legislator to push his client’s interests as an advocate for the client, in legislative action. You may argue that the law is not enforced, but the burden of proof is not mine to show that the ethical rules require quite the opposite of what Sean argues, and in any case we know for certain that lawyers are not trained to act contrary to the ethical rules.

        From your first and second posts, Ed, it is obvious you have disdain for Republicans.

        My former bosses include Orrin Hatch, Bill Bennett and Lamar Alexander. I was a Reagan administration appointee. I’m merely stating the facts; if you find that disdainful, look at the actions of those who make it appear disdainful.

  12. Robert Simpson says:

    “That said, Reflections of a Rational Republican vehemently opposes government favoritism towards certain groups based on immutable characteristics.”

    I agree. We should outlaw heterosexual marriage.

  13. Eric Hielema says:

    Wow, what a thread. I have thoroughly enjoyed your tennis match (probably not as much as the both of you. Once my brain stops spinning in my skull I might be able to actually make sense of it. As a fellow engineer I agree that engineers are problem solvers. I think you should have posted a thesis that stated, “Engineers solve problems. Congress needs more engineers.”

    • Ed Darrell says:

      My father-in-law points out that engineers solve particular kinds of problems, and they are not problem solvers in legal issues — in fact, he says the scariest thing a lawyer can learn is that his client’s case turns on the testimony of an engineer.

      One might take some encouragement that three of the four men portrayed on Mt. Rushmore were surveyors, a vocation close to engineering perhaps. But three of them were lawyers, too. For legal problems, sometimes the best and most creative solutions come from lawyers — like the Declaration of Independence, the Constitution, the Emancipation Proclamation, and the Panama Canal. Oh, yeah, the engineers built the Panama Canal, after the lawyer Teddy Roosevelt hashed out the agreements on who would do the building, and when and where — creating a new nation as a by-product.

      Before a shovelful of soil can be legally turned, the lawyers have their say. That’s just the way of the universe.

  14. Eric Hielema says:

    Just like an attorney, must have the last word.. 🙂 Just kidding. Well put Ed.

  15. Richard Goldman says:

    Hi Sean –
    Recently came across this blog. A welcome departure from the rant.
    I’m curious — are there any overarching ROARR philosophies regarding the government’s appropriate role (if any) in education (primary, secondary & post-secondary) or in health care?

    • Thanks for stopping by, Rich.

      I think education powers should be delegated to the states. What works in one local may not work in another. Moreover, I think centralizing it simply serves to increase a bloated government bureaucracy.

      On healthcare, I think the government should set the rules to maximize market efficiency, but should limit itself in actually providing healthcare. Having spent five years in the military and using that parallel system convinced me that providing healthcare services is about the last thing the government does well. I avoid Veterans Administration hospitals like the plague.

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