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'LAWYERS AS THE ENEMY OF TRUTH - JOHN O McGINNIS - PROFESSOR IN CONSTITUTIONAL LAW - NORTHWESTERN UNIVERSITY - JAN 2003'


11th September 2001
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John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His book Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the coauthor with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

 

McGinnis, John O., Harvard Journal of Law & Public Policy - Jan 2003

 

LAWYERS AS THE ENEMY OF TRUTH


In these brief remarks, I will focus on a single aspect of the relationship between lawyers and truth. I will discuss why the issue of truth in the legal system reveals a fundamental tension between lawyers and the public. The public benefits from truth-eliciting rules in the legal system, but lawyers can benefit from truth-obscuring rules. Truth-eliciting rules are an important part of the rule of law, because they assure that courts base legal decisions on relevant factual states of the world. Unfortunately, lawyers often have an interest in truth-obscuring rules because legal complexity and uncertainty can be a source of business. Hence, we face a sad paradox: the class that should be the great guardian of truth in law may instead have the greatest interest in subverting it.


As a matter of intellectual history, it is not surprising that the search for truth is an important part of the rule of law. We inherited both the modern concept of the rule of law and the empirical sciences from the Enlightenment, and both are similarly rooted in an ideal of objectivity. The rule of law requires that society be governed by abstract legal rules whose application is objective, in the sense that it does not vary with the status or rank of the parties to a particular dispute. The scientific idea of empirical truth is also objective in that the real world is the same for everyone regardless of personal perspective or social status. The alliance of these concepts seems clear from recent postmodernist attacks on objectivity in both law and science.


Moreover, in the Anglo-American tradition similar modes of competition have been used to facilitate the search for truth in both science and law. Scientists seek the truth in a decentralized process of peer review, in which rival colleagues test and critique each other's results. It is only when a consensus emerges from the competing perspectives that we accept a given finding as true. Similarly, we have rejected an inquisitorial system of legal fact finding in favor of an adversarial system largely because we fear the power of the centralized state to skew the truth. Institutionalized conflict among self-interested individuals underlies the validity of classic defenses of the adversarial system: "[cross-examination is the] greatest legal engine ever invented for the discovery of truth." (1) Our adversarial system is thus better than the alternatives because it decentralizes accountability for truth seeking. Each litigant has an incentive to ferret out the facts, no matter how uncomfortable those facts may make the government or society at large.


Arbiters of truth, whether legal or scientific, need to be insulated from direct government control. In the West scientists are rarely simply government functionaries, but instead enjoy genuine independence through employment at a network of universities and non-profit institutions. Scientists are more likely to assess the world accurately because a centralized authority does not directly govern their pursuits. Similarly, we have separated the judiciary from the rest of the government and provided federal judges with life tenure to increase the likelihood that legal rules will be correctly applied without fear of political retaliation.


The beneficial results of the Enlightenment have been as great in law as in science. The rule of law, including truth eliciting rules, is one of the greatest goods a society can enjoy. Coherence, clarity and stability are the hallmarks of the rule of law. Indeed, by reducing the number of uncertainties in our dealings with one another, the rule of law generates wealth more pervasively than any single scientific invention in human history. Truth-eliciting rules similarly facilitate wealth creation by helping courts reach factually accurate decisions, thus increasing both the predictability and effectiveness of law.


Unfortunately, one of the greatest obstacles to maintaining the rule of law, including truth-eliciting rules, is the profound interest that lawyers have in subverting it.
 

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