Taking the Stand

by Alan Dershowitz

  The democratization of the written word raised the specter of democratic challenge and change, hence the need, as Hobbes put it, for the Leviathan to have the power to decide what the people would be allowed and not allowed to read. All governments, even our own, seek to control what the public can see and hear, but our First Amendment places considerable barriers in the way of government censorship. So does quickly changing technology that makes it considerably harder to censor.

  The further democratization of the written and spoken word, by means of the Internet and other ever-changing technologies, has produced contemporary demands to control what is read and heard. The United Nations has been debating a universal speech code that would protect sensitive religious and ethnic groups from being offended. Some demands for selective control over the dissemination of information—for example, the need to prevent the outing of spies, the disclosure of military plans and weapons development, or other legitimate state, business, or personal secrets—are reasonable, if often overstated. Others—such as protecting religious sensibilities from being offended—are entirely unreasonable, though aggressively sought by some from the United Nations and other international bodies. The tension between full freedom of expression and the desire of establishments to control expression will continue on the battlefields of both technology and law. In the end, technology will prevail over law.

  THE FUTURE OF CONFLICT RESOLUTION

  The conflicts between religious dogma and reason will sharpen as traditional societies challenge modernity with new weapons, particularly terrorism. This will bring about a weakening of the distinction between combatants and civilians during asymmetrical warfare, in which combatants use civilians as both shields and swords. It will also make it more difficult to arrive at any consensus regarding grievances and resolutions of conflict, as demands and agreements that seem rational to one side seem entirely irrational to the other. The “age of reason” is being challenged by both religious dogma from the hard right and ideological dogma from the hard left.

  THE FUTURE OF PRIVACY

  Personal privacy will diminish as a value. The pervasiveness of social media, especially among the young, is a harbinger of changing values: Community is regarded as more important than privacy among many. Some young celebrities have even allowed themselves to be videotaped engaging in the most private of sexual activities and then have these videotapes posted on the Internet for all to see. Even for those who crave more privacy, technology is making it more difficult to achieve. The omnipresent street camera, the GPS on cell phones, the depositing of samples in DNA banks, are on the tip of a very deep, and largely invisible, iceberg of intrusion, both by governments and industry. The law will respond to this new reality by reducing the “expectation of privacy” that is the hallmark of our Fourth Amendment.

  THE FUTURE OF THE LEGAL PROFESSION

  The legal profession has suffered a diminution in moral authority and status over the past several decades. Law used to be regarded as a “learned profession.” Today it is rightly seen as a bottom-line business that generates enormous earnings for successful law firms and for some personal injury lawyers who advertise widely. This diminution, though understandable, is not entirely justified. In fact, the practice of law has improved by almost every relevant measure since I began to practice it. Law firms are much fairer in their hiring and promotion policies. They service the poor better—though not nearly well enough. There is less corruption in the practice of law—from outright bribery of judges to the “old boys network”—than there used to be. There is greater transparency and accountability throughout the legal profession, though still more is needed. All in all, the legal profession is in better shape today than it was fifty years ago, and most trends are in the right direction.

  Why then has there been a diminution in the moral authority and status of lawyers? The answer is simple: money. Lawyers—at least those at the top of their profession—not only make more money than ever before but their earnings are now a matter of public record, published by media such as the American Lawyer and on blogs. When I began to practice, a lawyer’s earnings were like his sex life—never to be discussed. Today both are discussed, even bragged about.

  Law firms openly compete with one another for business and for “rainmakers.” They merge with other firms at the suggestion of investment bankers and business advisors. They file for bankruptcy to achieve tactical and strategic advantages.34

  They look like, behave like, and do business like other commercial ventures that sell soap, furniture, and underwear.

  Their main function, like that of hedge fund managers, is to help make the superwealthy even wealthier and to pay less taxes; to circumvent environmental, health, and welfare regulations; and to increase the bottom line.

  It should not be surprising therefore that the public views lawyers in much the same way they view other businesses. The difference is that many lawyers really do good: They represent the poor without fee; they challenge the government to comply with the Constitution; they help to preserve and expand liberty; they labor for the underprivileged in the trenches and “emergency wards” of our broken legal system.

  The law, as an institution, has had a decidedly mixed history over the past half century; although its virtues have been greater than its vices, its vices have been more visible. Hence, the increasingly negative public trust in lawyers and in the law.

  The leaders of the legal profession understand that the practice of law must change if the profession is to maintain its comparatively high status among other professions and among the legal professions of other countries. I predict therefore that we will see dramatic changes in the practice of law over the next half century. Many lawyers will be replaced by less expensive paraprofessionals, research specialists, computers, and forms. Arbitration and other alternative mechanisms for dispute resolution will replace expensive and time-consuming trials. Law will become more streamlined, efficient, and accessible. Most lawyers will make less money than they now do.

  THE FUTURE OF LEGAL EDUCATION

  If the practice of law is to change over the next half century, as it must, will law schools be equipped to prepare their students for their new careers? Not unless law schools better adapt to the emerging realities of legal practice. Many of today’s law schools are teaching their students to be yesterday’s lawyers, instead of tomorrow’s. They are using pedagogic methods developed in the mid-nineteenth century to teach students who will be practicing in the mid-twenty-first century.

  Criminal Law, for example, is taught largely through the vehicle of analyzing appellate cases decided years ago or studying the Model Penal Code, drafted near the beginning of my career by academics with little practical experience. Courses based on these anachronistic materials do not prepare students to confront the realities of current practice, in which trials are rare and bargaining is the central role of the lawyer, whether prosecutor or defense attorney. The few trials that do take place tend not to revolve around what is commonly taught in class—elements of traditional crimes, such as homicide and theft; theories of causation; common law defenses like duress, self-defense, and insanity—but rather on cutting-edge issues, such as computer fraud, insider trading, RICO, esoteric conspiracies, and novel defenses. Many current crimes involve transnational or multistate components, since so many of today’s criminal activities cross federal and state lines. Evidence is presented by experts in DNA analysis, blood splatter, and other modern forensic and scientific developments. Prosecutors conduct searches of computers, servers, clouds, satellite and drone images, medical and credit card records—in addition to the conventional searches of homes, offices, and pockets. Sentencing is based on sophisticated guideline calculations, rather than on the whims of judges.

  To prepare a student effectively to represent clients in the future will require professors with real-world and real-time experience. But the trend is away from hiring such professors—at least at the most elite law schools, where PhDs in phi
losophy, economics, and history are preferred over practical work experience. A balance must be struck between the theoretical and practical in both the hiring and the teaching processes.

  Moreover, law schools and law firms must learn what some consumers already know: that many of the routine tasks that lawyers are paid exorbitant legal fees to perform—such as drafting simple wills, contracts, divorce papers, and tax forms, or conducting elementary research—can be done more expeditiously and inexpensively by paralegals, outsourced research firms, computers, and standardized forms.35 This has resulted in the loss of many legal jobs (along with jobs in other “knowledge-based professions”) that can be done at lower cost over the Internet and by paraprofessionals. Law has become far too expensive and inaccessible for the average person, and even for many businesses. Moreover, the cost of attending law school has skyrocketed—it is more than twenty-five times higher today (about $50,000 a year for Harvard and Yale) than it was when I was a student (about $1,500 a year).36 At the same time that the cost has gone up, the benefits have gone down, as more and more law graduates are not getting the jobs they want or any jobs at all. Law schools and law firms must figure out ways to contain the cost of attending law school as well as the costs of obtaining legal advice.

  In light of these trends, it should come as no surprise that applications to law school are drastically down over the past several years. (According to the New York Times, there were 100,000 applicants in 2004 and 54,000 for the 2013 class, with only about 38,000 expected to matriculate.)37 Many college graduates do not regard the six-figure expense of a law school education and degree as a worthwhile investment. They are pursuing other options, particularly in the business world. As the dean of one law school put it: “Students are doing the math.… Most law schools are too expensive, the debt coming out is too high and the prospect of attaining a six-figure-income job is limited.”38

  Years ago I proposed a change in the structure of law school education whereby the academic portion would be completed in two years, and the third year would be focused specifically on the student’s career choice. For those who want to become professors, the third year would consist of a mini-PhD program, with an emphasis on research, writing, and teaching; for those interested in government work, a supervised internship with a local, state, federal, or international organization; for those interested in practice, clinical training in the relevant areas of specialization. During this year away from conventional teaching, the students would remain connected to their teachers through interactive electronic communication. At the end of the third year, everyone would return to the classroom for a monthlong series of lectures and seminars designed to bring together the academic lessons of the first two years and the practical experiences of the third year.

  Variations of this “two-year-plus” law degree are now being considered by some law schools and legal educators.39 The law school of tomorrow will have to be a different place than the law school of yesterday and today if legal education is to prepare the next generation of lawyers for a quickly changing profession and world.

  Education in general will change, as most learning will be done outside the formal classroom, on computers, at home, in the workplace, and while commuting. Admissions criteria will also change, with less emphasis on race and gender, and more on class.

  MY FUTURE

  Of course, the only future about which we can be absolutely certain is our death. We cannot even be sure how, or even if, we will be remembered after we shuffle off our mortal coil. As Erich Segal once put it, “Fear of death is universal. But what lies beneath that fear is the terror of insignificance. Of not being remembered, not counting.”40 May I add: No one should live life so as to assure a positive obituary, any more than a writer should write plays or books to garner positive reviews. But it blinks reality to deny that public figures think about their obituaries as they approach the final years of life: They worry that they will be remembered for insignificant matters, or not remembered for significant ones.

  When I helped win the Claus von Bülow, O. J. Simpson, and other high-profile cases, I thought that my celebrity clients would be the focus of my obituary. Now I think it will also be my defense of Israel. Since I’m never satisfied unless I get the last word, I penned the following letter to the editor to be sent following my death:

  Dear Editor:

  I don’t want you to think that I don’t appreciate some of the kind words written about me in your obituary, but I had a policy throughout my life of setting the record straight with regard to things written about me, and I see no reason to allow my untimely death to change that. Your understandable emphasis on my high-profile cases distorts my record by downplaying the numerous pro bono cases I handled on behalf of obscure and indigent clients. I made it a policy throughout my life to devote at least half of my professional time to nonpaying cases and causes.

  One such cause was the defense of Israel against unfair attacks. But I was not an uncritical advocate for the nation-state of the Jewish people. To the contrary, I was critical when criticism was warranted, as with regard to Israel’s settlement policy. I supported Israel not despite my liberalism, but because of it—and because I have always defended just causes against unjust attacks.

  I tried to live my life based on principles and consistency. This was not always understood by those who disagreed with where my principles sometimes took me and whom they led me to represent. That is why I have made it a policy to correct the record. I admit that I have always tried to get the last word. Hence this posthumous letter to the editor, which I promise is my last word.

  Alan Dershowitz

  From I don’t know where

  I hope this posthumous letter to the editor isn’t published for a while, but I suspect it will be relevant whenever my obituary appears. That’s OK—as long as I get to take the stand one last time in my own defense.

  ACKNOWLEDGMENTS

  When a witness takes the stand, he needs to be prepared by a team of lawyers, paralegals, and assistants. The same is true of an autobiographer. In undertaking this endeavor, I have been greatly assisted by Aaron Voloj Dessauer, a brilliant young lawyer who helped me with the research and the source notes. Others helped as well, including Mitch Webber, Aaron Rabinowitz, and the staff at the Brooklyn College Archives, who made my life easier by having catalogued all of my papers very thoroughly.

  My assistant, Sarah Neely, performed so many invaluable roles from typing the manuscript, arranging the credits for the photographs, conducting Google searches, managing my schedule, and dealing with the thousands of people who call and write me.

  Several relatives and friends read portions of the manuscript and gave me useful suggestions. These included my wife, Carolyn Cohen, my children Elon, Jamin, and Ella, my brother, Nathan, and my friends Michael Miller, Rollie Savage, Alex MacDonald, Tom Ashe, Ken Sweder, Merle Berger, and Nick Stevens.

  Finally, my appreciation goes to all those, too numerous to mention, who helped me do the things that are the subject of this memoir.

  NOTES

  Introduction

  1 Alexis de Tocqueville, Democracy in America 357 (1862) (“Scarcely any political question arises in the United States which is not resolved, sooner or later, into a judicial question”).

  2 Frank Lloyd Wright said he had to “choose between honest arrogance and hypocritical humility.” He chose the former. Meryle Secrest, Frank Lloyd Wright: A Biography 159 (1998). Lord Chesterfield perceptively quipped that “modesty is the only sure bait when you angle for praise.” The Beauties of Chesterfield (Alfred Howard, ed.) 249 (1828).

  3 Reversal of Fortune, Warner Bros. (1990).

  4 The “Johnson brothers” of the film were a play on the “Tison brothers” in real life. See infra in Chapter 14.

  5 Alan M. Dershowitz, The Best Defense (1983).

  6 Alan M. Dershowitz, Reversal of Fortune (1985).

  7 Alan M. Dershowitz, Reasonable Doubts (1997).

  8 Alan M. Dershowitz,
Chutzpah (1991).

  9 Some overlap is, of course, inevitable. I discussed some of my most significant earlier cases, though in different contexts, in previous books.

  10 Rene Descartes, Principles of Philosophy (1644), part 1, art. 7. Half a millennium earlier, Augustine expressed a similar view, focusing on “doubt.” Augustine, City of God (Penguin Classics) 460 (2003).

  11 The ability to think is inborn—a biological and genetic endowment. The content of one’s thinking—the nature and quality of our ideas—is more nurture than nature. Without human experiences there could be no well-formed ideology, merely simple inborn reflexes based on instinct and genetics. There is no gene, or combination of genes, that ordains the content of our views regarding politics, law, morality, or religion. Biology gives us the mechanisms with which to organize our experiences into coherent theories of life, but without these experiences—which begin in the womb and may actually alter the physical structures of our brain over time—all we would have would be the mechanics of thought and the potential for formulating complex ideas and ideologies.