A political post. You have been warned.

A long history of corporate self-governance

We have a long history of self-governing social institutions. Churches govern themselves.¹Of course, I don’t just mean Christian churches. You get the idea. The professions govern themselves. Universities govern themselves. The press governs itself. There’s nothing in the Constitution that clearly requires this kind of corporate self-governance (except maybe for churches and the press, which have special constitutional status). Nor, I think, does a sound political philosophy require corporate self-governance in the specific ways we’ve practiced it. It’s just a consequence of our history, and, I would say, a consequence that has been immensely useful and good.

Self-governance is not always perfect, and sometimes the law has to step in when self-governing groups act contrary to the public interest. I could give some ancient examples, but I’ll stick with a modern example: I remember the fallout of the collapse of Enron when I was just starting as a lawyer. One of the problems that Enron brought to the fore was that the lawyers would assert that their duty to keep confidences prevented them from blowing the whistle on wrongdoing in public companies. For lawyers, the duty of confidentiality is among the most important rules of professional ethics, and so the organized bar generally opposed imposing a reporting requirement. But Congress decided that the public interest in investor protection meant that the profession’s ethical norms had to yield. So it passed the Sarbanes-Oxley Act, which among other things imposed an “up-the-chain” reporting requirement.

Universities had it coming

America is home to many of the world’s great universities. Some of them have large endowments, some don’t, but all benefit from a lot of support from the federal government in the form of research grants, financial assistance to students, exemption from much taxation, and so forth. This is not a post about what ails academia, so I am not going to defend this view, but in my opinion, universities, particularly humanities and some social science programs, have lost their way over the past few decades. A politically radicalized faculty has been churning out ideologically motivated and muddled scholarship that is not in the public’s interest. Seen from the outset, and in retrospect, it’s crazy that universities thought they could continue to do that forever without public push-back.

I don’t have a similar point to make about the legal profession, and I can only say that I hope that’s not because I have on blinders of self-interest. I mean, it would be fair to say, for example, that the rules of professional conduct are not set up to ensure that most Americans with common legal problems are able, in practice, to afford to be represented by a lawyer, and that’s a big problem. No doubt there is much to criticize about the profession and how it governs itself.

The cure is worse than the disease

When an institution that typically governs itself has gone astray, what’s the answer? It seems to me the answer is to do what must be done to solve the problem, but to meddle as little as possible and not to punish, to destroy the institution, or to destroy its self-governance. But that’s not the tack the Executive Branch is taking right now. The government seems to want to kill off American universities by drastic reduction in grants for funding and by trying to impose government control of curriculum. That is a disaster in the making for American society and our economy and place in the world. It is an epic own goal, shot by Philistines. It’s worse than the problem it sets out to solve, which is real.

The Executive Branch is taking a similar tack with law firms, punishing firms that have represented the President’s enemies. But in that case, it’s not just that the cure is worse than the disease. It’s that the law firms, and the legal profession, hadn’t done anything wrong in the first place and indeed, had upheld the values of the bar by representing their clients’ interests zealously. Yet the government is trying to bring the bar into line. And it’s had some success, notably with Paul Weiss, which faced an enormous amount of pressure and caved.²I wrote this before Skadden pre-caved. I don’t blame Paul Weiss alone. Apparently other firms were seeking to take advantage of the firm’s travails and poach clients. But institutions that want to preserve self-governance need to act with courage in the face of real risks.

Leave the Jews out of it

All of this is bad enough. But if undermining the social institutions of the Republic weren’t bad enough, the Administration is undermining the social institutions of the Republic in the name of the Jews. Please leave us out of it! I write this out of self-interest, as nothing good for America’s Jews can come from being associated with the President’s agenda, but also because it’s wrong to point to the Jews’ interests to justify policies that, I believe though cannot prove via surveys, etc., most Jews reject.

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  Of course, I don’t just mean Christian churches. You get the idea.
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  I wrote this before Skadden pre-caved.