I recently read a book entitled "The Myth of Moral Justice" by Thane Rosenbaum, a novelist and law professor. The book, or more specifically one chapter of it, was recommended to me by my friend Jeremy, who is singlehandedly responsible for the fact that my blog's hit meter has more than doubled in less than a week.

Rosenbaum's thesis is that the modern American legal system is a load of hooey that doesn't achieve what a legal system should achieve because it ignores the moral element of lawsuits. He argues that by focusing on physical harm, monetary damages, evidentiary rules, and the like, we are not giving important attention to the spiritual and psychological harms that people suffer, the fact that just getting an apology or telling your story can make you feel better, and the importance of really finding out the truth.

The problem with the book is that he never addresses the obvious crushing problems that would come up in a system like the one he advocates. For example, he thinks witnesses--particularly criminal victims and civil plaintiffs--should be allowed to just sit there in the witness box and talk about what happened to them, saying anything they want for however long they want, until they feel better. And he wants every case to go to trial--no one is emotionally satisfied by a settlement. The justice system is already so overtaxed, most lawsuits take years to complete. If we let everyone spew off at the mouth endlessly, that would multiply the time it takes to hear a case by five-, ten, or maybe even a hundred-fold. Figuring in the fact that only about 1 percent of cases currently go to trial, we'd need to expand the number of trials exponentially, too. We would need to employ a few hundred times as many judges, train a few hundred times as many lawyers, build a few hundred times as many courthouses, and dramatically increase taxes on the people to pay for it all. Somehow, that doesn't strike me as a good idea.

In order to protect people from spiritual and psychological harm, Rosenbaum would extend the "fighting words doctrine," which provides an exception to free speech if your speech is likely to incite immediate physical violence, to also disallow any speech that could harm someone emotionally. His principle examples are a call for a ban on non-violent Neo-Nazi demonstrations and flag-burning, but how do you draw the line between that and just coming up to someone and saying, "You suck and I hate you," or worse, "I think your ideas and values are ludicrously wrong"? Does he really want to live in a society where the government can punish us if we insult or offend people? How would that be enforced? What is the point of having freedom of speech at all if the only protected speech is the nice stuff that no one will object to?

The most laughable aspect of the book is how he always backs up his points with citations to movies or novels or plays. "This character murdered his wife," he says, "but the legal system won't allow certain evidence because it's unfairly prejudicial, so he's able to get off scot-free! We shouldn't have this kind of legal system!" The problem with this is that in a movie, we know before the trial that the character is guilty. In a real trial, we don't. In fact, he's presumed to be innocent. Things can look very clear and easy when you've got an omniscient narrator handing you all the facts, but to a real-life judge in a real-life courtroom, he's got to rely on evidentiary rules to ensure a fair trial.

The one chapter specifically recommended to me comes off better. It's about the disappointment and emotional emptiness lawyers and law students feel. Rosenbaum attributes this disenchantment within the profession to the fact that we lawyers know--at least subconsciously--that we really aren't helping anyone on a moral level. Doctors actually do make their patients better, but lawyers often destroy the souls of their clients while they're trying to help them. I think he's got a good point, but I think it also depends on what kind of lawyer you are. If you're a corporate lawyer, as I will be next year, your clients don't have souls to crush in the first place. But more importantly, I think it is possible to be a moral, helpful counselor even in our current amoral judicial system. That's what I'm going to try to be. And if I find I can't, then I'll just quit and go open a restaurant or something.