A Fragment on Legal Innovation

This lighthearted essay explains how the ideology of private commercial lawyers indirectly but profoundly shapes society. It is meant to counter a somewhat common view that commercial litigators acting in their capacity as commercial litigators have little impact in shaping public values and public policy.Legal innovations crafted by private lawyers in private litigation have proven an important aspect of American lawmaking throughout American history. The notion that lawyers only seek to zealously take advantage of legal loopholes and maximize client wealth misses something important about how American private lawyers conceive of themselves and their role in the legal system. Lawyers have long understood that they make private law into public policy through a process of definition and contestation that occurs within the courtroom and the boardroom — not merely through service in legislatures, professional societies, and regulatory agencies. That is, as long as there have been American lawyers, they have been developing legal strategies and legal tools that do more than serve immediate client interests but rather also serve deeper structural principles that improve society. This has important consequences for both legal education and the legal profession for it reveals that the ideology of commercial lawyers, separate and apart from movement lawyers and society proper, are a powerful generative force. The ideology of these private lawyers shapes public values in countless innovations promulgated collectively in court rooms and boardrooms, through decisions about how to argue individual claims, structure transactions, and pursue private litigation.