Where have all the Lawyers Gone?

The Vision of Myres McDougal Is Needed Now More Than Ever

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Posted in 2016

Years ago, J. P. Coleman addressed a group of lawyers in the old Heidelberg Hotel in Jackson. The state’s former Governor, Chief Judge of the U. S. Court of Appeals for the Fifth Circuit, larger-than-life political force, and much more, made sure the assembled attorneys did not leave unchallenged.

The context that day was the fact that fewer and fewer lawyers were offering to serve in the legislature. Or offering for any elective office, or in serious public service at all. No signs that the trends were about to abate.

But Judge Coleman was cutting a wider swath. His focus was to remind us of the lawyers who, over the generations and through history, had been exemplars of responsible citizenship, humanity, civic virtue and teaching one’s community by leading.

Sometimes lawyers have had to grab their towns by the scruff of the neck and just lead!

I do not recall specific names mentioned. I well recall this former district attorney, circuit judge, attorney general and legislator reminding us of the critical importance of each state and county and community having the good fortune to number among its citizen-lawyers, men like Fred Smith of Ripley, Sherwood Wise of Jackson, and Roy D. Campbell, Jr., of Greenville, men like Atticus Finch, or Gavin Stevens of so many Faulkner novels.

Of course, today the problem is far worse, its obstacles more formidable. Billable hours. Overhead. Student loans to be repaid. Not so civil competition for blue chip clients. Tort reform has cut the income for trial lawyers and defense counsel.

And the excuses we will muster for not taking political hot potato cases! Getting and spending we lay waste our powers.1

But there is more. Few today think as Blackstone, when he taught that ‘tis better that ten guilty criminals go free than that one innocent man suffers.2 In an era of documented false confessions and DNA exonerations,3 legislators and judges move heaven and earth to thwart a meaningful role for the Great Writ. We the People seem to agree.

The head of human dignity is on the block, the axe in the hands of nationalistic, narcissistic bullies.

A Very Special Lawyer Is Born and Bred

In late November of 1906 a boy was born in the rural Burton community up in northeast Mississippi. His father was a country doctor. Legend has it the father was a political force, that he hoped his son would become a U. S. Senator.

The boy grew into a teenager who would come to praise his Latin teacher in Booneville High School. In 1922, this young man enrolled at Ole Miss. He played football a couple of years.

In his senior year, he edited The Mississippian, the college newspaper. He was president of a rather large Greek Club in days when such extra-curricular activities had nothing to do with fraternities and sororities.

Fast forward a few more years, and having become a Rhodes Scholar, he had earned close to half a dozen academic degrees, several related to the law.

In 1935, Myres Smith McDougal established a career collaboration with a savvy and insightful political scientist, Harold D. Lasswell. They joined the faculty at Yale Law School. Then the War Came.

As early as 1943, McDougal and Lasswell began talking to the whole wide world about good citizenship. And the human dignity of all of mankind. They changed the way law students were taught, to be good citizens as well as good lawyers.4

Half a Century Later

Back at Ole Miss in his 90th year, Mac was lauded for his lifetime of service. One-time Colorado football star Byron (Whizzer) White, a former McDougal student at Yale, spoke of his mentor. White quoted fellow acolyte, Richard Falk, who had moved on to Princeton and made a name in academia. For beginners,

McDougal and Lasswell conceive[d] of legal education less in terms of vocational training and more as a means of producing enlightened citizens capable of understanding the issues of the day as a struggle to realize the values of human dignity. 5 Thus, they s[ought] through their jurisprudence a dynamic of political engagement needed to achieve and sustain a free society.

Justice White told of becoming aware of Prof. McDougal’s “call to arms for lawyers” made back in 1943, and, referring to the above, added, “Professor Falk had it right.” 6

Together these admiring former students left no doubt where lawyer McDougal had “gone,” and how he had changed the way the world’s lawyers should live and lead and practice citizenship.

I don’t recall the date of Judge Coleman’s call to arms for Mississippi lawyers, but I well recall its substance. And its more local kinship to the gospel that country-Mississippi-born-and-bred Myres McDougal spread across the seven seas for almost seventy years.

Understand that the case may be well made that McDougal was the greatest scholar the state of Mississippi ever produced. Without doubt, he was the most prolific.

Richard Falk said it would take an Olympic weight lifter to carry the published corpus of McDougal and Lasswell. 7 The content of that corpus is still found in another article they published fifty years ago.8

A quarter of a century before that, this native son of rural Burton, somewhere east of Booneville in Prentiss County, set the cornerstone of his teachings:

One fact of global significance is the universalization of the demand of peoples and individuals everywhere for a respected place in the world. More comprehensively phrased, the “former colonial peoples” of every continent and archipelago are demanding social orders more in harmony with the dignity of man than have been characteristic of many past societies. Individuality is growing as the individual human being becomes more aware of his own ego, and of the fact that by asserting himself he can often rise to positions in society which were entirely out of the question in traditional forms of civilization or in so many kinds of folk culture. 9

In typical lawyer style, of course, McDougal never used one word when two or three would do just as well (he was often charged with using five of six instead of one). The only clarification and update needed for the quoted passage above is that Mac meant every human home, from the tiny towns of Mississippi, to his country, to the world and to the extra-terrestrial.10

His teachings may be more relevant and needed today than at any time since World War II.

Myres McDougal and his constant colleague challenged lawyers to make of the Cold War world a planet where human dignity was the foremost — and a realistic — goal and experience for every man and woman who drew breath.

New and different challenges face us today. But how new and different? How much more are lawyers needed as sage public servants, and as good citizens? [Tripp: Please this as a featured quote.]

A few illustrations — mine not Mac’s — still they give you the sense.

You Can’t Have It Both Ways

Roe v. Wade 11 and progeny present today’s lawyers a complex challenge. Freedom to worship as one pleases is a respected value in McDougal’s and Lasswell’s concept of human dignity. It was one of the famous Four Freedoms of Franklin Delano Roosevelt that Mac knew so well.

Yet, as free as men and women ought to be, to practice their sincerely held religious beliefs, no person should of right be able to call upon the state to compel others to observe those same beliefs. The Establishment Clause!

Many believe fervently that a sacred soul is infused into a human being at the moment of conception. Persons are free to practice such beliefs in their own lives. If a woman so believing wishes to carry to term the child of an unwanted pregnancy, and give birth, that is her prerogative. Human dignity demands no less.

Many others do not believe there is any such soul, either as a matter of biology, sincerely held religious belief, as a matter of secular humanism or morality, or any other perspective.

People of fundamentally different views must get along, with mutual respect.

Limiting our view to the United States, “person” within the Fifth and Fourteenth Amendments includes many babies who have not been born. There was a time when the law had worked out a practical approach to just who was a “person.”

Prior to the point of viability, a fetus was not a person in the eyes of the law. 12 Past the point of viability, he or she was a person within the constitution, albeit advances in medical and obstetrical science suggest the point of viability may be earlier than once thought.

This is not the time or place for full scrutiny of Roe v. Wade 13 under the McDougal-Lasswell human dignity imperative. One point is clear.

No, You Really Cannot Have It Both Ways

If — as some believe — the state may force a woman to carry her unwanted pregnancy to term and give birth, it follows as the night the day that this same state is obliged to provide generously the human, financial and other social services reasonably needed by both the mother and child until the child reaches the age of majority. A public order of human dignity requires no less.

Of course, the state may in part discharge its public order obligation by requiring the father to provide child support. But the human dignity imperative commands that the state bear the risk of default. If the father fails in such support, the state’s support obligations stand, though the father remains subject to reasonable and legally enforceable support remedies.

The mother, too, may be expected to provide support at a reasonable and practicable level, particularly after the child reaches school age. Again, the mother’s failure does not discharge the state’s support imperative.

To be sure, many taxpayers may not like such support obligations incumbent on the state. Fine, but their personal preference comes at a civic price. Taxes are the price we pay for civilization. Would be tax avoiders must stop trying to inhibit a woman’s right to make the terrible choice whether to terminate her pregnancy.

“No society can continue without its members being required to give up some of what they deem their personal rights and liberties.” 14 A wise insight of a little remembered Mississippi jurist of a century ago.

A public order of human dignity commands all of this. No, you simply cannot have it both ways. Ask any Myres McDougal-trained lawyer-citizen.

Complexity is Everywhere

It is easy to say the right to vote is an essential element of human dignity — “the political precondition to human hope,” 15 to plagiarize myself. Think hard through the photo ID stratagems enacted shamelessly by some to dampen down the minority vote.

Fifty years ago in the South, enormous obstacles faced African Americans who dared to try registering and voting. Idealistic civil rights workers came from next door and all over to help Southern states with “our problem.”

So many overcame that the South was changed.

Today a photo ID is an essential element of social existence in America. Not just as a ticket to voting, but to cash a check, gain access to decent healthcare, board a common carrier for almost anywhere, and dozens more.

Well-intentioned lawyers and others have mounted court challenges to voter ID laws. But stop and think. No one is done a favor by receiving a signal that it’s okay not to have a photo ID. Again, “[n]o society can continue without its members being required to give up some of what they deem their personal rights and liberties.” 16

We need to send a different signal. Having a photo ID enhances our public order of human dignity, even if it involves a bit of trouble for less sophisticated persons to get one.

The obstacles to registering and voting today are not one-tenth as great today, as in the Civil Rights Era. Policy-oriented lawyers are charged to show the way, and overcome the excuses and reluctance of the many who just don’t have time to get involved. Getting and spending we lay waste our powers.17

The quality of life of each person is enhanced by as many as possible having photo IDs.18 A greater public order of human dignity is the prize. Caring lawyers should lead the way.

Human Dignity in Immigration Practice

Recent American immigration policy and practice are an easier exemplar. Assume for the moment that compliance with — and enforcement of — clearly-worded and constitutionally- defensible law is a given.

No practice smashes human dignity like stripping children from the arms of their mothers without an absolutely fool-proof system of knowing — in a moment — the exact whereabouts of each mother’s child, coupled with the ability to reunite the two promptly should some government agency — such as a federal court — order that done.

More generally, is it not self-evident why so many from “south of the border,” and from points southerly of Mexico’s border as well, want to come to the United States?

For more than two centuries, the United States has preached — bragged — to the world that there are freedoms to be found here — freedoms and opportunities that enhance and enrich human dignity — beyond those available anywhere else on this planet.

Past that, we were the saviors of the free world in two horrific World Wars. Americans put their lives on the line — and many lost their lives — to secure the blessings of liberty for all mankind as far as reasonably practicable, that human dignity might flourish around the globe.

Can there be any doubt that the United States as a matter of fundamental public policy, if not inalienable right, should support a world public order of human dignity? And that its lawyers should lead the way?

And so, why are we surprised that so many want to come here? That so many will expose themselves to — will endure — the full wrath that the U. S. Immigration and Naturalization Service might inflict upon them? And still they come.

And why — this is the one that hurts — do so many U. S. citizens attribute such sinister motives to others not lucky enough to have been born here, and who will do almost anything, endure almost any hardship or danger, just for a ghost of a chance at the life of freedom and human dignity offered only in the United States of America?

“Give me your tired, your poor, your huddled masses”

Before the World Wars, America became great in the eyes of mankind for its open arms. Our Statue of Liberty has long called to all. It still contains Emma Lazarus’ words attributed to Lady Liberty, speaking hopefully to countries around the world,

Give me your tired, your poor, your huddled masses yearning to breathe free, the wretched refuse of your teeming shore, Send these, the homeless, tempest-tossed to me, I lift my lamp beside the golden door.

How many thousands of times each day do people in the United States say the Pledge of Allegiance with its ringing conclusion “… and liberty and justice for all!” How many millions elsewhere know that we say these words? And think we mean what we say?

All lawyers know that in dozens, if not hundreds, of contexts each day, persons and entities are held responsible for the reasonably foreseeable consequences of their words and actions.19 In this regard, should not the Republic for which our flag stands set the example for all to follow?

Lawyer Citizen McDougal’s Commitment to Human Dignity for All Mankind

A half century ago, Myres McDougal and his colleague challenged us all with their proclamation to the world:

Hence we commit ourselves, and commend to all who will cooperate, the clarification and implementation of a jurisprudence oriented toward the dignity of man. We postulate human dignity as a goal; and we respect the freedom of those who accept this goal to choose whatever theological or metaphysical grounds enable them to associate themselves with this overriding objective. 20

There are still lawyers in this country who do not flinch from that moment when he or she may stand — alone and defiant — between one less fortunate and the gates of hell. We still have lawyers who stand up to the narcissistic bullies of today, those once known simply as “ugly Americans.”

To be sure, many of us nearing the end of our careers — in our less charitable moments — cherish the memories of bullies slain in courtrooms past, and in other civic venues as well. Most of us, at one time or another, accept that we are less than likely to inherit the earth.

What is important is that we still have great-souled lawyers who understand that the most powerful force that can be brought to bear is a courageous humility, lawyers who understand the spirit of liberty as Judge Learned Hand taught in one of our darkest hours, “that the spirit of liberty is not too sure that it is right.” 21 Lawyers who stand nonetheless, and are counted.

We once had a great teacher who came from the proverbial Podunk, Mississippi, and who gave so much of his three-quarters-of-a-century career that lawyers might have acquired the wisdom and courage to realize and defend the values of human dignity, that their practice might enhance that “dynamic of political engagement needed to achieve and sustain a free society.”

That the people of our communities and of our planet may have fewer occasions to wonder, where have all the lawyers gone?

  1. Wordsworth, William, The World is Too Much With Us (circa 1802).
  2. Sir William Blackstone, 2 Bl. Comm. c. 27, marg. P. 358, ad finem. (1765), quoted in Coffin v. United States, 156 U.S. 432, 456 (1895).
  3. See my “A Life Sentence Served by an Innocent Man,” www.caba.ms/newsletters/2011-jun.pdf (June 2011), page 8.
  4. McDougal and Lasswell, Legal Education and Public Policy; Professional Training in the Public Interest, 52 Yale L.J. 203 (1943).
  5. Prof. Michael Reisman, acolyte and heir apparent, spoke of McDougal’s quest for a public order of human dignity in remarks made at the University of Mississippi School of Law in March of 1996. See Reisman, Myres S. McDougal: Architect of a Jurisprudence for a Free Society, 66 Miss. L.J. 15, 22 (1986).
  6. Byron S. White, Tribute to Myres S. McDougal, 66 Miss. L.J. 1, 3 (1996).
  7. Their magnum opus, Jurisprudence for a Free Society; Studies in Law, Science and Policy (1992), well exceeded 1500 pages in length and filled two weighty volumes.
  8. McDougal & Lasswell, Jurisprudence in Policy-Oriented Perspective, 19 U. of Fla. L. Rev. 486 (1966–67); see particularly pages 499–501.
  9. Id. at 490.
  10. Few know of McDougal’s role in establishing the Space Law Program at his alma mater, the University of Mississippi School of Law. See also Law and Public Order in Space (1963) (w/H. Lasswell and I. Vlasic). Remember, Sputnik first soared in 1957.
  11. Roe v. Wade, 410 U. S. 113 (1973).
  12. See line of cases from Rainey v. Horn, 72 So. 2d 434 (Miss. 1954) through In Re Estate of Davis, 706 So. 2d 244 (Miss. 1998). Then see the problematic separate opinions in 66 Federal Credit Union v. Tucker, 853 So. 2d 104 (Miss. 2003).
  13. Roe v. Wade, 410 U.S. 113 (1973).
  14. J. J. Newman Lbr. Co. v. State, 59 So. 923, 925–26 (Miss. 1912).
  15. Wilbourn v. Hobson, 608 So. 2d 1187, 1196 (Miss. 1992) (concurring opinion).
  16. J. J. Newman Lbr. Co. v. State, 59 So. 923, 925–26 (Miss. 1912).
  17. Wordsworth, William, The World is Too Much With Us (circa 1802).
  18. I have discussed this issue more fully in my article, Variations on a Theme by Posner; Facing the Factual Component of the Reliability Imperative in the Process of Adjudication, 84 Miss. L.J. 471, 625–29 (2015).
  19. See, e.g., Glover v. Jackson State University, 968 So. 2d 1267, 1277, 1278, 1280 (¶¶34, 36, 48) (Miss. 2007); Tail v. State, 669 So. 2d 85 (Miss. 1996); Gebben v. State, 108 So. 3d 956 (Miss. Ct. App. 2012).
  20. Id. at 500.
  21. Hand, Learned, “The Spirit of Liberty Speech,” I am an American Day, May 21, 1944 (Central Park, New York City, NY).