Provoking Introspection: A Reply to Galanter & Palay, Hull, Kelly, Lesnick, McLaughlin, Pepper, and Traynor
I have benefitted enormously from reading the Responses, and I am grateful to all of the commentators for entering into this conversation with me. There is much in each of the seven Responses to which I would like to reply-sometimes to agree, sometimes to disagree, sometimes to elaborate, sometimes just to express puzzlement. Unfortunately, though, my time and space are extremely limited. Given those limitations, I will first reply generally to Marc Galanter and Thomas Palay, Michael Kelly, Howard Lesnick, Stephen Pepper, and Michael Traynor, all of whom seem to be at least somewhat sympathetic to the underlying theme of my Article. I will then reply to Mary McLaughlin, the only commentator who is broadly unsympathetic to my underlying theme and who disagrees with me on a wide range of issues. Finally, I will reply to Kathleen Hull, who strongly disputes the evidence upon which I have relied in arguing that lawyers are unhappy.
Much traditional scholarship on legal ethics aims to inform rather than to inspire. Typically, it dissects a problem of professional responsibility-broad or narrow-and then proposes a solution of some kind. If the book or article is successful, it may result in the legal profession being regulated differently, but it is unlikely to inspire any attorney to behave differently.
I respect this scholarship. Protecting vulnerable clients from unscrupulous lawyers by improving regulation is unquestionably a worthy goal. But it is not the goal of my Article. In my view, whether law is practiced ethically depends not primarily on how well lawyers are regulated, but on the millions of actions taken by lawyers that fall far below the radar of the profession's regulators. This conduct can- not be changed by tinkering with rules, but only by influencing the moral compass or professional self-conception that guides individual attorneys. In writing my Article, I have tried to inspire at least a few lawyers-particularly those who are at the outset of their careers-to ask hard questions of themselves: Why do I want to be a lawyer? What do I want to spend the next forty years doing? What will "success" mean for me? What will be the costs of such "success"--not only for me, but for those I care about? When my days draw to a close, and I look back on my life, what will I see?
As Lesnick has captured so beautifully, lawyers, like all human beings, are extraordinarily reluctant to engage in this type of introspection.' There is much that "render[s] such a self-examination problematic." Most fundamentally, to confront these questions is to confront the question, "Who am I?'--a question aptly characterized by Kelly as "large, ancient, profound, and unnerving." To confront these questions is to stare, uncomfortably, into what Lesnick calls "the existential abyss."
I knew that if my Article was to have any chance of pushing law students and lawyers toward this type of introspection I would have to engage both their intellects and their emotions. Much of my Article consists of a description of empirical evidence about the legal profession, and I have tried, in those sections, to be thorough and fair so as to make a compelling empirical case that something is amiss. Assessing what is amiss-and why it is amiss-and what can be done to fix it-are necessarily more speculative endeavors, as I conceded. I have tried, in the normative parts of my Article, not only to convince the reader of the merit of my viewpoint, but to provoke in the reader a reaction. Without such a reaction, there is little chance the reader will undertake the introspection I hope to inspire.