Neal Katyal and the Depravity of Big Law

The United States has a political class that mistakes its professional norms for ethics. Mainstream political journalists mindlessly grant anonymity to professional liars. Elected officials put collegiality and institutional procedure over the needs and interests of their constituents. And as for lawyers, they have refined this tendency into what amounts to a religion of self-justification.

The Sixth Amendment to the Constitution establishes that every American has the right to “the Assistance of Counsel” if they are prosecuted for a crime. This was a pointed rejection of English common law, which barred felony defendants from hiring counsel to represent them. Over time, the Assistance of Counsel clause came to mean that everyone prosecuted for a crime had the right to competent and effective representation, even if they could not afford it. From that right, the American legal community developed a core tenet: Everyone deserves representation.

But once the American legal community invented corporate law and the large firm, it continued developing that tenet until it became so divorced from notions of liberty or equality under the law that it now works as a kind of force field preventing lawyers from facing any social or professional repercussions for their actions on behalf of their clients. Everyone has a right to counsel, and every lawyer has a right to earn a buck.

It is that mutated creed that explains why Neal Katyal went to the Supreme Court last Tuesday to argue that children enslaved to work on cocoa plantations should not be allowed to sue the corporations that abetted their enslavement.

Katyal is among the most prominent and decorated attorneys in the country. He is a Democrat who has been in and out of government since Bill Clinton’s second term. He returned to his private firm, Hogan Lovells, after serving as acting solicitor general for Barack Obama’s Justice Department. He is omnipresent on television and newspaper op-ed pages as a voice of “The Resistance” to Donald Trump. He is about as close as you could come to the embodiment of Big Law’s connection to the institutional Democratic Party.

And last week he argued that because the corporation that supplied Zyklon B to the Nazis for use in their extermination camps was not indicted at Nuremberg, Nestle and Cargill should not be held liable for their use of child slave labor. In his argument before the court, Katyal espoused a view of corporate immunity so expansive that even the conservative judges seemed skeptical. If you took him at his word, he was effectively asking the Supreme Court to make it impossible for any foreigner to sue any company for any harm done to them, up to and including kidnapping and enslavement.

An argument that repulsive coming from such a high-profile attorney—someone who could very likely serve in the incoming Biden administration or end up a judge—naturally caught the attention of left-of-center critics of corporate power. Most of them were not very impressed with the argument and expressed some less-than-flattering opinions about the person making it.

As always, public criticism of a successful attorney led inevitably to the creation and publication of a new version of the inexhaustible opinion piece classic: It is simply unfair to criticize a lawyer for making any argument on behalf of any client.

This time around, it came from Tom Goldstein, writing at SCOTUSblog. Liberals, according to Goldstein, were sadly mistaken, and perhaps even a little hypocritical, when they attacked Katyal for ably representing his clients (the large corporations that profited from child slavery).

“I start from the idea that our legal system is premised on clients having the best advocacy, so that courts will make the best decisions,” Goldstein wrote. And then, not realizing he was undermining his own argument, he added: “That is a proposition that the American left, which prides itself on standing up for the powerless, including criminal defendants, treasures.”

In other words: Ah, so you believe in standing up for the powerless, yet you criticize an attorney for collecting checks from a large corporation that is currently being sued by formerly enslaved children?

American elites have a maddening tendency to justify their actions by either pretending power dynamics do not exist or obfuscating how they work in the real world. The idea that large corporations are actually victims in need of protection from mountains of frivolous lawsuits is indeed what Katyal seems to believe, and that argument has a receptive audience among Republican-appointed Supreme Court justices; but those of us without law degrees are not too “partisan” to understand what Katyal is doing, we just reject it.

“In general,” Goldstein concludes, “this seems like an example of the political left eating its own. Katyal is one of the most prominent progressive lawyers in the country over the past four years. He just happens to work for a corporate law firm, with its corporate clients.”

If you buy Goldstein’s logic, Katyal just “happens” to work for Hogan Lovells and just “happens” to have decided to take this case; it is then his professional responsibility to make its case to the best of his ability, even if doing so leads untrained observers, unfamiliar with the elegance of the practice of law, to assume that he doesn’t think people should have the right to sue corporations that they believe abetted their enslavement. A lot of things just “happened” on the way to that morally obscene oral argument.

Corporate lawyers frequently dissemble on this point, so I will be clear: Nothing in our “legal system” or Constitution says Nestle and Cargill deserve “the best advocacy” when it comes to civil claims. But the question of whether they “deserve” it in some ethical sense is completely moot: They will always receive it, because they can afford it. Once you establish that simple fact, it’s clear that the attorneys representing these corporations are not acting out of some high-minded commitment to a central constitutional principle; they are simply representing Nestle for a lot of money. They have chosen to go into corporate law and, as Katyal consistently has throughout his career, make arguments that favor large corporations at the expense of everyone else.

The point is not that Katyal should be disbarred or something for representing a client. The point is that the cases Katyal chooses to take, the arguments he chooses to make, even the firm he chooses to work for, all speak to his values. He cannot separate his politics, whatever he thinks they are, and whatever he wants everyone else to think they are, from his decision to defend Nestle against the threat of potential lawsuits from enslaved children. That is a statement about how one believes the world should be organized and on whose behalf the legal system should operate.

To defend an accused murderer or rapist in a criminal trial is a straightforward endorsement of the idea of the presumption of innocence, not an endorsement of murder or rape. That’s the act enshrined in our Bill of Rights. To make a career out of defending and expanding corporate power at the expense of employee and consumer power, on the other hand, is simply to endorse those things.

Even the lawyers who founded this country would’ve taken issue with the idea that Katyal can be meaningfully independent of his client’s interests. In a 1995 history of legal specialization, Michael S. Ariens described what he considered “a transformation in lawyers’ understanding of the reasons justifying their position in society.” In the nineteenth century, lawyers justified their stature by distinguishing the profession of law from a mere trade. One pillar of professionalism was treating the practice of law as a science and not a mere skill. The other was “independence.”

“Independence,” Ariens wrote, “was tied to the notion of the lawyer as ‘officer of the court.’ As an officer of the court, a lawyer was under a duty to serve the interests of justice, not just the interests of the client. Even though the client paid for the lawyer’s service, the lawyer was a professional, whose main purpose was ‘[p]ursuit of the learned art in the spirit of a public service.’ Because the making of money was merely an incidental purpose of the legal profession, the lawyer’s duty to the cause of justice should not and could not be purchased by the client.” That said: “Once elite legal practice shifted from advocacy to office practice, however, the concept of the lawyer as an ‘officer of the court’ was stripped of its original meaning.”

That shift led almost immediately to the kinds of justifications of corporate work we still hear from lawyers today. John W. Davis—a Wilsonian Democrat and fantastically successful corporate attorney, whose firm survives today as Davis Polk & Wardwell—ran for president in 1920 and 1924. Even then, his large corporate clients were considered a political liability. And he wrote a defense of his practice that was published, among other places, in the Virginia Law Register. For such an early document, it’s a master class in the art of blurring the distinction between court advocacy and simply working on behalf of corporate interests.

Since the law, however, is a profession and not a trade, I conceive it to be the duty of the lawyer, just as it is the duty of the priest or the surgeon, to serve those who call upon him unless, indeed, there is some insuperable obstacle in the way.

No one in all this list of clients has ever controlled, or fancied that he could control, my personal or my political conscience. I am vain enough to imagine that no one ever will.

The only limitation upon a right-thinking lawyer’s independence is in the duty which he owes to his clients, once selected, to serve them without the slightest thought of the effect such a service may have upon his own personal popularity or political fortunes. Any lawyer who surrenders this independence or shades this duty by trimming his professional course to fit the gusts of popular opinion, in my judgment, not only dishonors himself but disparages and degrades the great profession to which he should be proud to belong.

Davis argues that he doesn’t let political considerations dissuade him from performing his work disinterestedly—just as a surgeon or a priest would say that politics never gets in the way of their work or who they choose to help. What Davis conveniently elides is that he was himself expressing his political opinions through his legal practice. Davis would become an ardent anti–New Dealer, and he used his firm, over the course of his long and distinguished career, to fight government regulation on behalf of his corporate clients. (He’d end his career defending school segregation before the Supreme Court.) His legal practice reflected his politics; it was never independent of them.

In that era, lawyers were regularly worrying and arguing about independence from corporate clients. Ariens quotes Adolf A. Berle, a longtime corporate attorney and member of Franklin Roosevelt’s Brains Trust, bemoaning, in 1933,  how the transformation of the American economy had transformed the legal profession: Berle believed that it had turned the lawyer from an advocate for individual rights into “a virtual annex to some group of financial promoters, manipulators or industrialists.” Berle accused corporate attorneys not of disinterestedly practicing advocacy for clients but instead actively participating in “the creation of a legal framework for the economic system, built largely around the modern corporation.” He considered this development both bad and a conscious decision.

Instead of continuing to argue about these ideas in public, the American legal community largely decided to close ranks around a highly ideological understanding of professionalism and independence that happens to support the right of an elite attorney to make a fortune. Now any time someone—take, for example, Richard Kahlenberg, who went to Harvard Law and wrote a book about how that institution turns would-be idealists into corporate stooges in training—broaches concerns like Berle’s, they are met immediately with derisive sneers from law professors about not understanding the majesty of the legal profession.

People like those law professors and Neal Katyal illustrate something I wish more professional Democrats understood: The professional norms of the political class are not only not a substitute for actual values, they are, frequently, actively harmful to the project of liberalism these people claim to be advancing.

This belief that “everyone deserves competent representation” has spilled over into industries like public relations and lobbying, where it has even less of a basis in tradition or law. It is the official mantra of people who actually believe that they, themselves, deserve to receive money from ethically dubious entities in exchange for providing ethically dubious services—all without having to feel bad about it at any point or consider it in conflict with their ostensibly liberal worldviews.

Neal Katyal’s professional project—one that I believe to be sincerely ideological and not simply mercenary—has been to protect corporations from the consequences of harming consumers and workers. Liberals should find that horrifying. If you want to make a fairer society or more equitable economy, Katyal is not your ally, no matter how many good deeds he has done. The professional norms that allow people like Katyal to get a pass on their lucrative private sector work are not actually essential components of our political system; they exist because no one in revolving-door Washington wants to feel bad about how they pay the bills.