Tuesday, February 25, 2014

Martial Lawyers

Contemporary American lawyers have an awkward relationship with war and physical violence. While some metaphorically consider (and even advertise) themselves as "fighters" for their clients, many prefer to depict themselves publicly as peacemakers, proponents of the rule of law over force. Few civilian lawyers these days have had any contact with the military or combat; there are, of course, numerous lawyers in the armed forces, but their role is limited to providing legal advice to battlefield commanders and framing legal policy within the military. Except in absolute extremis, it's not contemplated that they would ever take up arms themselves.

While we might take some comfort in this modern semi-pacifistic reality, the historical fact remains that since the days of colonization, lawyers in American society have been primary wagers of war. In his classic Yale Law Journal essay "Violence and the Word" published almost thirty years ago, Robert Cover wrote that "legal interpretation takes place in a field of pain and death". He was referring primarily to sentencing and punishment, but it turns out that, to paraphrase Shakespeare in The Tempest, he spoke "truer than he purposed". Considered as a professional group apart from career soldiers, lawyers over the last four hundred years of American history have been singularly prominent as military officers, militia leaders, revolutionaries, filibusterers (in the original sense of the term as private violent land-grabbers), paramilitary intelligence agents and civilian war managers (commanders-in-chief and cabinet officials responsible for the military). This is not just another way of saying that lawyers in American history have done much more than simply practice law. Rather it is to suggest that both lawyering and war-waging have been fundamental and mutually reinforcing aspects of the American experience. In no other common law jurisdiction - perhaps in no other jurisdiction, period - has the linkage between lawyering and war-waging been so massive and so clear. Yet we have missed it.

The former Inns of Court students who led the first successful colonizing expeditions to Virginia were soldiers. In the mid-to-late eighteenth century, colonial lawyers like the future Loyalist Fyler Dibblee led local militia units in New England, not so much because they were natural warriors but because militia office reflected and helped to secure public status, constituted public service in a society still under external threat, and potentially opened the door to political office. Lawyers fought on both sides of the Revolutionary War for both principle and professional profit. Tories demonstrated their commitment to king and country while defending their established legal careers; ambitious but in some instances financially frustrated Patriot lawyers backed their bravado with bullets, eventually reaping the rewards not only of independence but of increased business in a field with far fewer lawyer-competitors. In the Jacksonian era, itinerant American lawyers turned to war-waging when they thought it offered them some measure of economic security. Not by accident, six(!) lawyers ended up at the Alamo in 1836. A few years later, a lawyer turned Commander of the Army, General Winfield Scott, led volunteer brigades to Mexico that included even more lawyers looking for adventure, status, and, if they were lucky, land. William Walker, a failed New Orleans lawyer, was so successful as a freelance filibusterer that he actually took over Nicaragua by force, briefly becoming its president in 1856. In his instance as perhaps in others, oratorical skills that once had been useful in court proved useful in leading men to war and conquest. The Civil War was literally a lawyers' battle over the constitutional future of the country. Of the 585 senior officers of the Confederate States Army, 304 were practicing lawyers. On the Union side, lawyers held 51 of the 126 top generalships. Lawyers meanwhile dominated the civilian leadership of both war efforts. In Richmond, Jefferson Davis was the exception that proved the rule; he was not a lawyer, but of course Abraham Lincoln was.

As the post-Civil War American military moved towards professionalization (partly encouraged by another lawyer, this time William Tecumseh Sherman), the role of American lawyers in the ranks began to diminish. Corporate lawyering gradually provided compensation levels and imposed work demands that made military service intuitively less attractive to rising young attorneys. Lawyers nonetheless found something of an institutional military home and a continuing opportunity for militarized public service in the part-time National Guard, where more than a few chose to take a stand for domestic order (and, not incidentally, capital) in the face of labor unrest and what they viewed as the looming specter of anarchy. One anxious lawyer-Guardsman, New York attorney and Civil War veteran General George Wingate, proposed rifle drilling for schoolboys and helped establish an organization to accomplish this; today we know it as the NRA. Lawyers were still involved as combatants in the brief Spanish-American War. In 1899, President William McKinley summoned Elihu Root, probably the most famous corporation lawyer of his day, to take over the War Department and help run the new overseas territories (especially the Philippines) that the US had seized from Spain. Stirred up by lawyer Woodrow Wilson's patriotic calls to arms, many lawyers (especially graduates of elite American universities in the northeast) joined up for World War I to "make the world safe for democracy", as well as for some of their actual or potential corporate clients (Southern lawyers with a different client base and perhaps a better historical memory of war were notably more reticent). Some doughboy lawyers had already participated in private "businessmen's camps" for future army officers organized by (wait for it...) rising young corporate attorneys like Grenville Clark, who led the so-called Plattsburg Movement for preparedness.

After 1917, however, it became painfully clear that lawyers were slipping into a subordinate military position. Technology and changes in military tactics were overtaking them. Urbanization had increasingly removed them from personal familiarity with firearms and a certain rural comfort with raw physicality. New demilitarized types of public service, such as legal aid, proved increasingly appealing to young lawyers trying to carve a future path for themselves as politicians or community leaders. Women joining the legal profession in slowly rising numbers were, to say the least, unenthusiastic about combat. In France lawyers were unfortunately distinguished by their association with military disaster (the two senior officers of the so-called "Lost Battalion" that survived being cut off in the Argonne Forest in 1918 were both Harvard-educated lawyers). Meanwhile, more lawyers found themselves drawn into non-combatant positions in the military as full-time legal advisers; the size of the JAG corps mushroomed in World War I, a fact that helped to bring lawyer casualty rates radically down from Civil War levels. The rise of the JAGs and the decline of lawyers in battlefield command mirrored and to some extent tracked the proverbial shift of lawyers from "courtroom to boardroom". At bottom, perhaps paper-pushing transactional lawyers made uninspiring war leaders. Many lawyers were drawn into military service again in World War II, but once more they took second place in battle to military professionals. By this point the partnership structures of large corporate firms were increasingly unforgiving of extended absences, so lawyers in those firms were less inclined to enlist voluntarily; when they did, they had limited opportunities for promotion. One institution they did dominate, however, was foreign intelligence, with Wall St. lawyer "Wild Bill" Donovan and his legal colleagues leading the OSS, which in the Cold War became the CIA.

I could extend this analysis, but I think the point has been made. If we are really to grapple with the history of American lawyering we must consider the profession's lengthy record of war-waging. War is part of the American tradition, and war is fundamentally part of our professional tradition. We have conducted it and led it; we have managed it and benefited from it. It would not be absurd to argue that lawyering has defined the very American way of war, legalizing it in ways unprecedented (no pun intended) in other cultures. In turn, regular war-waging has arguably affected and even defined American lawyers' own sense of professional self as patriots, leaders and public servants, to the extent that (awkward as it may be to even suggest this) our professional dedication to those roles may have suffered when we moved off the battlefield. War-waging has also surely changed us as individuals. Many scholars are very familiar with the impact of the Civil War on a famous American Supreme Court justice, the thrice-wounded Oliver Wendell Holmes. His experience of war undermined his idealism in a way that ultimately made legal realism possible. Now take Holmes' experience and multiply it thousands of times over hundreds of years. How has going to war, leading war, witnessing war, fighting war, winning war, or losing war affected American lawyers' minds, lives, attitudes and career paths? How, for example, did their experience in war-waging shape the first generation of post-Revolutionary lawyers as they built a new nation and a new legal system? How did it shape the minds and decisions of Southern lawyers after the horrors and devastation of the Civil War? How did it affect the thinking and policy preferences of northeastern lawyers who witnessed the mechanized carnage of World War I in Europe? I have no immediate answer to these questions pending further research, but I think we need to ask them and investigate them.

At the end of the day it will not do for us to avert our professional eyes from war. It will not do for us to comfort ourselves with a sanitized contemporary "JAG model" of military lawyering that allows us to hold our personal responsibility for extreme violence at arm's length in the name of some self-serving collective dedication to the peaceful "rule of law". It is far too late for that. By the verdict of history, we are martial lawyers.

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