Saturday, November 08, 2003

Why We Do What We Do

I receive regular e-mails from a private mailing list run by an attorney in Los Angeles. (I won't identify the attorney because the list is, as I said, private.) The list generally focuses on issues in tax law of relevance to practitioners in partnership and real estate tax.

One of the frequent discussion topics is reform of the federal tax system. As part of that discussion, there is a thread that regularly appears, albeit in different guises. Specifically, comments by some of the participants indicate that they have a suspicion that what they do on a daily basis is of waste of their not insubstantial intellectual resources. Recently, I offered some observations on those comments.

I said that the thread and two other, seemingly unconnected developments, have only heightened the feeling that I think I share with others on the mailing list that what we do, day to day, is somewhat of a waste of our talents. (I noted that the talent, in my case, was rather moderate, but that is was rather significant for most other members of the group.)

The first "unrelated" development was the opinion in the Blakelee Realty case which I commented on here. That opinion upheld the publication requirement imposed on LLCs in that state.

Something has continued to bother me about the opinion which, as I said, in a narrow sense (i.e., courts should not step on leglislative perogatives), might be correct, but in a broad sense (can anybody really defend the underlying policy behind the requirement without a smirk) is totally unjustified. Yet, substantial intellectual capital was expended by the litigants and the court in determining the issue of whether or not the Emperor really had no clothes.

The second "unconnected event" was the appearance of a new organization called the Public Library of Science. This organization will publish on-line journals containing referred papers concerning various aspects of scientific research. Access to the journals will be free and open to the public. It is hoped that the effort will spawn a host of competing publications that will replace the subscription based system currently in place for the publication of scientific papers. The costs of those subscriptions significantly limits the access of researchers, particularly in poorer countries, to research material.

Now, as I said, these two events would seem to be totally unconnected. Yet, somehow they connected by being so different.

On the one hand, the Blaklee Realty case represented an expenditure of significant intellectual effort to determine whether the state could extract money from one group and give it, on the flimsiest of pretexts, to another. The intellectual capital expended, on all sides, including that of the members of the court, adds little to the sum of human knowledge and, except for the newspaper publishers and their families, happiness.

On the other, PLOS represents an expenditure of effort which will, over time, greatly increase the diffusion of real knowledge and, as a result, improve the human condition.

This brings me back to the tax code issue. I believe that taxes are necessary. Indeed, I would argue that a fair and equitable tax system contributes to the improvement of the human condition. And yet I still get the feeling that what we do on a daily basis is not all that socially beneficial.

Perhaps what I am missing is that, in a larger sense, lawyers, including tax lawyers, are really no different than plumbers. Plumbing is, after all, not a glamorous profession. However, indoor plumbing and modern waste management has contributed mightily to human health and, indeed, civilization. Our sanitation system would break down in no time if there were no plumbers.

Viewed in that light, maybe what we, as lawyers, are are the plumbers of the social contract, making certain that social order is maintained.

In any event, I invite comments.