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12/10/2012

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Is this one of the reasons America is so litigious? If so, those costs should also be factored in.

Neilehat

The question ought to be, "When does Business, competition and the desire to succeed in a highly competitive environment trump the Code of Professional Ethics"? Does the "Arthur Anderson" fiasco ring a bell?

Christopher Graves

I agree with the following characterizations described by Judge Posner: "The result, in combination with requiring postgraduate education and qualifying exams for entry into the profession and subjecting members of it to professional discipline, is to attract a type of person quite different from the entrepreneurial type—the latter a type exemplified by such extraordinarily successful college drop-outs as Bill Gates, Steve Jobs, and Mark Zuckerberg. The professional model attracts a more studious, intellectual, risk-averse type of person."

The first point of agreement is on Judge Posner's acknowledgement of different innate temperaments, which is frequently overlooked in these sorts of discussions. The second is the social need for the people Judge Posner observes to be drawn to the professional model in order to curb the excesses of those drawn to the business class. And this bring us to the third point of possible agreement, and that is there are natural classes of people with the attendant need for a society to be properly ordered in terms of classes.

I am afraid that many conservatives and libertarians are all too willing to overplay the hand of the business class at the expense of those who are more reflective and discerning. Those on the left are even more prone to mistakes in the social ordering process by overlooking the contribution those in the business class make to producing the economic surpluses that make civilization possible. The left's penchant for equality of result makes for a general lack of appreciation of natural classes of people.

But I strongly disagree that those without official medical training cannot actively participate in their medical care or the care of a loved one. All too often, doctors and nurses, and even nurse's aides, believe that they have some sort of official dispensation to neglect the insights or even questions of the patient or the patient's family in setting out treatment. This tendency leads to incredible arrogance not only in medical treatment that can and does turn out to be wrong, but extends to doctors and nurses making "official" pronouncements on issues outside their area of expertise, e.g, forcibly presenting their own views on end of life issues as if the humanitarian or hedonistic views were the only games in town philosophically or theologically. Most of these professionals have little or no training in philosophy and merely repeat the line drummed into them from mainstream bio-ethics without serious thought behind their dogmatic assertions.

During the past year, I have witnessed my mother suffer horrendous mistakes at the hands of doctors leaving her in a debilitated condition. After the first of these mistakes, I have questioned doctors on the wisdom of their course of treatment. Every time that I have done so after the first major mistake, I have turned out to have been right. I can reason as well, or better, than they can using inductive reasoning and the scientific method. Before my mother' fall last year, doctors whom we had an on-going relationship with listened to my questions and observations especially after they saw my concerns or suggestions play out as I had predicted. But doctors and nurses whom we float among in the callously impersonal care of hospitals and nursing facilities do not have the contact with us much less the on-going relationship with us to heed my concerns until another set of mistakes occurs. Some then take what I say more seriously, but then we are on to another facility before long. Others have become very hostile and have created unbelievable problems for us leading me to have to hire a lawyer to protect my relationship with my mother. They believe that they know better and have more concern for my mother's welfare than I do. This level of arrogance is remarkable (hidden pun here).

It is imperative that medical personnel recognize the autonomy of the individual and the person's ability to make decisions about their care ( or a family member assisting in these decisions) as they offer information on issues that do require specialized knowledge.

Neilehat

Chris, As Client and Customer one always has the right to turn their back on and ignore any and all professional advice. In Medicine one has a similiar right. A case in point is the Christian Scientists versus Medical science. How many have died needlessly at the hands of Theological Medicine? As an adjunct to the Client-Customer privelege there is always the option of getting "Second or Third Opinions".

Eric Rasmusen

I wonder if the causality goes not from risk-trimming to studiousness but more the reverse. Exogenously, law and medicine (like the traditional Greek-reading clergy) are scholarly, unlike, say, business. Scholarly people dislike risk. Thus, they created rules which limited upside and downside potential. Perhaps that was even efficient.

Law and medicine are still low-risk, aren't they, for high-end talent? Being a big-time partner is risky, but isn't being an in-house lawyer less risky than being a middle manager? Or, you can work for the government at a comfortable salary, one better than a humanities professor's. This is even more true for doctors. There isn't really much downside risk, and you have to go out of your way to be a stand-out specialist or a hospital manager.

Terry Bennett

Chris, I'm really sorry to hear about your mother. The club she has joined is regrettably far less exclusive than we would all hope.

I have a large scar across my face. It was put there 20 years ago by a black man with a knife - to be more precise, a scalpel: he was a board-certified plastic surgeon out of Johns Hopkins. I had had stiches in my wrist as a child, which have never healed. Knowing my own physiology better than anyone else ever will, I felt stitches on my face were a bad idea, but I accepted the doctor's assurances. He was 100% wrong, and it ruined my movie career.

I became a lawyer out of self-defense. As a businessman, every path of endeavor I ever followed eventually led to a lawyer, and I got tired of it so I got my own license. As an older law student, I was peripherally intrigued by the sociological aspect of the experience, and over the course of my three years I interviewed virtually all of my schoolmates regarding their aspirations. To a person, they all admirably expected that on top of making a very good living they would also be able to contribute positively to the world in one way or another. The only exceptions were the children of lawyers, who exuded a sense of entitlement as they entered the family business.

My idea of a lawyer was the guy down the street with the shingle outside his office, where you went for wills and deeds and traffic tickets. I had no idea there were thousand-lawyer multinational firms willing to pay a first-year lawyer $160k. The book Shark Tank is a good recapitulation of the beginning of the end of the law "profession". It recounts the vision of Steve Kumble, embodied in the slogan, "When we are the biggest, our clients will assume we are the best", which eventually collapsed under its own weight.

As a lawyer, I get to meet people on the worst days of their lives, and I am gratified by the many ways I can, armed with my license, ameliorate their problems. Still, a doctor has patients' lives in his or her hands, all day every day. The gravity of that responsibility has to mean something. If you are a corporate lawyer, your client is at worst facing dissolution, hardly the sobering reality of human death facing a doctor. It's easy enough to acclimate to the import of the work and just go for the money. Few doctors have that luxury, and I believe this supports Judge Posner's contention that medicine still carries the noblesse oblige that makes a job a profession.

I think the notion of the lawyer as an officer of the court is anachronistic and unrealistic. No man can serve two masters, and lawyers serve their clients, period. Courts should drop the pretense that the lawyer is anything but a representative for the client. We should still be licensed for purposes of judicial economy, but we should have no special standing before the court. Nobody is buying it anyway.

Sherlock Holmes

Judge Posner

1. Glad to see you speaking a writing on a number of topics, albeit too late.

2. Would suggest you look for papers by Mark Suchman, sociologist, on the law business.

Mark Suchman
208 Maxcy Hall
401-863-2535 phone
401-863-3213 fax
Mark_Suchman@brown.edu

Ph.D. Stanford University
JD Yale Law School

Brown University Research Profile Page

Curriculum Vitae

Areas of Interest:
Sociology of Organizations; Sociology of Law; Economic Sociology; Innovation and Entrepreneurship; Professions; Healthcare

Professor Suchman comes to Brown from the University of Wisconsin-Madison, where he was Professor of Sociology and Law. He is currently writing a book on the role of law firms in Silicon Valley, and he is midway through a multi-year project on the organizational, professional, and legal challenges surrounding new information technologies in health care. He has also written on organizational legitimacy, on inter-organizational disputing practices, on the "internalization" of law within corporate bureaucracies, and on social science approaches to the study of contract

Your POV is entirely wrong about the large law firm. Get in touch with Suchman and ask him to get your the paper he gave in Chicago many years ago

And, law and medicine have nothing in common

The demand for health care rises, the more the patient knows about health care

The demand for legal services declines, the more law the client knows

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