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We’re All Lawyers Now


Several months ago, in a process hastened by spending Coachella with endless models and free champagne, I experienced a small nervous breakdown.

I had burned out on punditry before, of course, but this was different. In years past, when I did a lot more “hits” on video and television, I had even battled the sensation that I my “job” was to represent ideologically guilty clients and get them off the hook in the court of public opinion. Sure, the jury would never really believe my clients were “innocent.” But with the right maneuvers of verbiage and argumentation, they might concede that guilt could not be proven beyond a reasonable doubt—not here, not this time.

These brief bouts of advocacy analysis rarely lasted longer than eight minutes, yet they made for exhausting work. There was no sense of concrete achievement or closure. Yet the answer to my problems was as simple to see as to act on. Step away from the camera? Done.

This time was different. Although I had thrown my energy into punditry that felt as far removed from ideological lawyering as possible—at least, under the circumstances—the tenor of the times had shifted even more strongly against me. That’s how it felt, anyway. With every year passing, online news and analysis grew more and more like a lawsuit of all against all. The Internet was merely amplifying what was already afoot offline, whether in “the public square” or in people’s aggrieved interior.

I hope I do not have to haul myself into hot-take court to make these feelings resonate at a reliably gut level.

Bureaucracy Isn’t Everything

What we’ve (hopefully) seen happening goes far beyond the typical criticism of our legalistic society. Niall Ferguson, who does not get everything right, perfectly captured the standard critique by distinguishing the rule of law and the rule of lawyers. “Who benefits from the growth of complex and cumbersome regulation? The answer is: lawyers, not forgetting lobbyists and compliance departments,” he cautioned. “For complexity is not the friend of the little man. It is the friend of the deep pocket. It is the friend of cronyism.”

How do you analyze the triumph of the litigious without slipping, yourself, into intellectual lawyering?

Doubtless, our litigiousness derives in part from a top-down extension of the logic of bureaucracy into the pettiest details of everyday life. For a Marxist, the case could be made that capitalism has so successfully stripped life of resources that lawyering is one of the few ways left to be a profit parasite. For a biblical believer, a sense of helplessness before the ruthless machinations of worldly power could be to blame. The interpretations—and takes—are endless.

Unfortunately, that’s part of the problem. How do you analyze the triumph of the litigious without slipping, yourself, into intellectual lawyering? Without spinning, posturing, and performing the right combination of outrage, expertise, and affinity? Without presenting your case in the “best” light—not the most authoritative, but the most powerful—and presenting your “enemy’s” case in the “worst”?

No One Else to Blame

Welcome to earth, some say. Lawyers are just professionals at what we all must do, every day. There is no superhuman way to get people to agree with or like you. Arguments must be presented. Facts must be portrayed, one way or another. Curb your idealism. Accept your fate—no different, no better, and no more privileged in this regard than anyone else’s.

It is not a problem with government or with policy, with technocrats or elites. It’s a problem with us.

Yet, somehow, little joy emanates from those of us who embrace our alleged fate to adopt the style and substance of lawyers. At best there is only a kind of controlled and figurative bloodlust, a video-game sense that even though the manufactured ordeal never ends, it’s a new game every time you notch a fleeting win over the other team.

This is a much different situation than the one Niall Fergusons so artfully decry. Conservatives often wind up lamenting the aggregation of life into one giant wormball of policymaking. It’s one thing for life to be “politicized,” they sense. That may be a pain in the ass, but so is life; it’s when everything is “policymade” that freedom is squeezed away and life becomes unbearable.

From that standpoint, the triumph of the litigious seems like just another symptom of the triumph of the regulatory state. But as I returned from Coachella to assume the position of punditry, I felt suddenly certain that our litigiousness was a much bigger and different beast. At root, this is not a top-down problem. It is not a problem with government or with policy, with technocrats or elites. It’s a problem with us.

We Fight Because We Want to Belong

Understanding why has to be a non-ideological exercise, so let me quote Freddie DeBoer, the stubbornly contrarian leftist who recently shuttered his blog after spending about as long in the opinion-mongering business as I have.

Without the grace of God to ameliorate this horrible truth, we fall back on the favor of the team.

“Many self-identified left-of-center types will only accept criticism from people who they see as being on their team,” he has noted, “but they define their team as those who don’t engage in criticism. No one who criticizes can be a member of the group, and no one who’s not a member of the group will be listened to.”

Ultimately, our litigious struggle for power is not about who wins the right to make policy. It’s about joining a team to protect ourselves from losing our sense of identity. So long as we’re on a team, let policy do its worst. Rather than looking firstly on our ideological clients as guilty parties we get paid to protect, we look on ourselves as fundamentally guilty—guilty of our own insignificance, of our own interchangeability, of our trivial irrelevance before the monumental indifference of the universe.

Without the grace of God to ameliorate this horrible truth, we fall back on the favor of the team. Not even team mercy is absolution enough, for with mercy comes judgment as well as forgiveness, and this is more than our fragile constructed self can withstand.

The mercilessness of our public performance as pseudo-lawyers comes from our weakness. Not only do we feel we need teams to survive. We have good reason to feel that way. Teams really are increasingly important today, much as money is increasingly important. Even the most carefully nurtured insights must hop up and down for attention in the “market” for picking teams, and suitability for team membership is not at all driven by how carefully, quietly, and slowly one nurtures one’s insights.

We Want Membership, Not Friendship

In no way has our collective and individual identity crisis made us more attorney-like than in our readiness to abandon friendship. We much prefer the ersatz friendship that is membership. Simply to entertain the possibility of friendship requires a kind of courage running in short supply.

It’s so tempting to find a blissful escape from the collapse of friendship and the unsustainable triumph of membership.

The realm of friendship is a realm of forbearance and spontaneity. There, authority is more relevant to who we are as humans than power—the authority of people to speak to one another as equals in a way that no team, however powerful, gets to decide or define.

What sort of person can shoulder that kind of authority? Not a pseudo-attorney. Caught in our society’s adversarial spiral, so many of us lack the courage to become authoritatively friendly that the litigious sensibility prevails. In a world where friendly authority is absent, it really is true that the most we can do is become virtuosos at using language to force others to capitulate to the demands of our team.

That’s why it’s so tempting to find a blissful escape from the collapse of friendship and the unsustainable triumph of membership. Poolside with the models and the champagne, the relief was palpable. Experience had become as glossy and flat as a fold-out magazine ad.

Twelve hours later, feet dangling in another pool, I studied Katy Perry’s entourage as a model sat down beside me with a gigantic teddy bear.

“What’s it all about,” I mused.

She squeezed the bear. “Money,” she sighed. “Money, money, money.” But she left a kiss on my cheek before she wandered off.

Can’t Buy Me Love

A realization formed. Beneath the quote-unquote glamour, all around me, were creative intentions set and executed upon. That took a kind of courage, too. Hours, weeks, years spent in solitude, risking, no team, no friends to do the work for you, to make yourself willing to do the work. And for what? “Art?”

The authority of creativity was found in the way it can prepare us to be friendly.

Rather than in art for art’s sake, I realized, the authority of creativity was found in the way it can prepare us to be friendly. Fully experienced, the artist’s way is a radical alternative to the way of membership. For us, creative devotion has a richness and pull sufficient to counter the black-hole force of litigious virtuosity. Rather than orienting us fearfully around our weakness, it orients us fruitfully around our vulnerability.

In contrast to the artist’s way, the pseudo-attorney’s way comprehends no distinction between weakness and vulnerability. There is no capacity for love, because there is no risk of love.

That doesn’t mean the novel or the screenplay I’m rewriting are guaranteed to be great or to make me a bunch of awesome new friends. Quite the opposite, in fact. But it does mean I’ve regained my nerve.