Source: A Journey Toward Justice,” Stone Ridge Magazine (Winter 2021).

The unpaused version of Legal Evolution will be different. This post explains why.

Legal Evolution has been paused since January 2023. The most concise explanation for the pause is a rupture in my worldview, which I attempted to illustrate through my last post, “The Mindshare Matrix (349).” Without a solid foundation, writing seemed counterproductive.

During the past year, a friend commented that I was in a period of discernment. A short time later, a second friend made the same observation. Thus, I deferred to their wisdom and embraced the term. Nearly a year later, the purpose of this post is to share the solution to my own mindshare matrix, which includes some changes to Legal Evolution.

In preparing this re-entry post, I came across the above graphic, which is the discernment model of the Society of Sacred Heart. Its five component parts closely track my own journey. Thus, I am using it as a roadmap for this essay. Obviously, the Pause is complete. So, I’ll start with Reflect.


[click on to enlarge]

In my last post (349), I wrote that the mindshare matrix was “[t]he hardest puzzle I have ever tried to solve.” Yet, looking at the actual 2×2 matrix, some may wonder, “What makes this a puzzle?”

We (legal professionals) spend most of our mindshare on personal activities that build and fortify our work and life (the top row). Yet, part of our professional ideology is the maintenance and improvement of the justice system, legal education, and the rule of law because, among other things, “legal institutions and a constitutional democracy depend upon popular participation and support to maintain their authority.” ¶ 6, ABA Preamble. This is collective action work that requires the buy-in and support of a large proportion of the profession (the bottom row).

The puzzle is how to shift sufficient mindshare from the top row to the bottom row to ensure this important work gets done.

When I launched Legal Evolution in May 2017, I believed my highest, best use was to work with a community of my peers to accelerate the transition from a one-to-one consultative model to a mixture of one-to-many legal products and services—i.e., solving the problem of lagging legal productivity. See Post 001. However, after the January 6 Capital attack and the political turmoil and denialism that followed, the LE mission seemed, at a minimum, naive and incomplete. Thus, I started filling in the holes. See Posts 312, 319, 321, 349.

If we evaluate the legal profession based on mindshare, it’s obvious that we’ve been deferring maintenance on something critically important to broader society. Today, we witness the cost of this deferred maintenance: a large and resilient populist movement that appears willing to abrogate democratic rule in favor of an authoritarian strongman trying to outrun 91 counts of alleged state and federal crimes. See “November 2023 National Poll: Trump Maintains Lead Over Biden,” Emerson College Polling, Nov 22, 2023. These indictments are supported by reams of credible evidence, much of which occurred in plain sight and involved violating his sworn duties as president. As long as Donald Trump remains popular with a majority of Republican voters, other elected officials in his party (many of them lawyers) will not speak out against him. This is very far from the rule of law. That said, the legal profession’s underlying neglect has been wholly bi-partisan.

The endpoint of this reflection is a very difficult question: How should I respond?


There are two threads of discernment here, with the first being necessary for the second.

The first thread is to look for and develop reliable historical analogs. The second is to make sense of my immediate environment in a way that is consistent with the historical analogs and my own moral imperatives. If I skip the first thread of discernment, my decisions and actions become less accurate, possibly to the point of being counterproductive. A “learned profession” understands the risks of intellectual shortcuts. ¶ 6, ABA Preamble.

Thread 1: historical analogs

In hindsight, I began the first thread in the summer of 2022 through a series of three historically grounded essays. The following passage from the first essay (312) explains what I was doing and what I hoped to accomplish:

Five years ago, I started Legal Evolution as a vehicle for chronicling the emergence of a new and dynamic one-to-many legal sector.  See Post 001.  … Today, however, I humbly confess that all of this was premised on the unstated assumption of political stability and relative economic prosperity (the “unstated assumption“).

The purpose of this essay is to begin the process of unraveling this unstated assumption, as it needs to be replaced with something sturdy, informed, and realistic—in other words, something that can be fully squared with the present day. 

Below is a summary of the most important historical analogs I used to update my worldview. Skeptical readers are encouraged to evaluate the quality of my research by reading the full essays.

Analog A: Lawyers during the first Gilded Age. The leading Gilded Age lawyers became phenomenally wealthy by serving as counselors and advocates for the nation’s largest and most powerful industrial and financial titans. See Post 312. The most commercially successful of these lawyers—Paul Cravath & William Gurthie of the Cravath firm, Francis Stetson of the firm that would become Davis Polk, and William Nelson Cromwell of Sullivan & Cromwell—helped their clients see when greed and overreach would be counterproductive to their own self-interest. The task of breaking up the massive concentration of wealth and power fell to another group of white-shoe lawyers, who left private practice to serve in the DOJ—George Wickersham of Calawalder, Philander Knox of present-day Reed Smith, Thurman Arnold of Arnold & Porter, among others.

To the extent that some Gilded Age lawyers realized that concentrations of economic power were creating political instability, their efforts to unwind the danger were severely hindered by electoral politics and the reluctance of their own presidents to take on powerful business interests. See Post 312. Ultimately, the first Gilded Age collapsed under the weight of the Great Depression and the Second World War, not because of the foresight or intervention of lawyers.

Analog B: Populism of the first Gilded Age. There is widespread agreement among economists, historians, and political scientists that large and growing wealth inequality gives rise to populism and political instability. See Post 319 (collecting sources). The chart below, which originally appeared in Post 312, compares wealth inequality in the Gilded Age to the present:

Although the reset to the first Gilded Age was economically painful and prolonged, it was politically peaceful, at least in the US. In contrast, when faced with similar economic hardship, the electorate in Germany and Japan succumbed to fascism and dictatorship, which ultimately led to the Second World War.

One important difference between then and now is that during the first Gilded Age, the populist forces in the US were tilting left. Now, roughly a century later, they’re tilting right.

To illustrate this point, consider the 1912 presidential election. Regarding powerful business trusts, the most conservative position was President Taft’s continued aggressive enforcement of the Sherman Antitrust Act. Yet, it garnered fewer votes than Bull Moose nominee Teddy Roosevelt (23% to 27%), who advocated for a system of large state-controlled monopolies managed at the federal level. The winner was the middle choice, Woodrow Wilson, who channeled the anti-corporate bigness policies of his advisor, Louis Brandeis. See Post 312. Wilson’s antitrust enforcement, however, would soon be derailed by World War I. After the war, the public’s desire for normalcy enabled Harding, Coolidge, and Hoover to embrace a laissez-faire attitude toward business. When that ended in a stock market collapse and mass unemployment, President Franklin Roosevelt had a bipartisan mandate to regulate and tax the monied classes. See Post 312.

Witnessing wealth inequality that exceeds the first Gilded Age, Columbia law professor Tim Wu has made an impassioned plea for aggressive antitrust enforcement. In his book, The Curse of Business (2018), Wu writes, “If we learned one thing from the Gilded Age, it should have been this: The road to fascism and dictatorship is paved with failures of economic policy to serve the needs of the general public.” Id at 14. I don’t think even one in a hundred lawyers knows the perils of what we’ve helped create.

Analog C: The “end of history” era. With the collapse of the Soviet Union signaling the end of the Cold War, a consensus emerged among elites that there was no longer a viable alternative to Western liberalism. One of the best exemplars of this view is Francis Fukuyama’s influential essay, “The End of History,” 16 Nat’l Interest 3 (Summer 1989), and book, The End of History and the Last Man (1992).

At the beginning of this era, both Democrats and Republicans coalesced around pro-business policies, including opposition to the growth of the welfare state. For those of us in the professional class, the future seemed secure. Thus, we focused on buying houses, building wealth, educating our kids, and achieving work-life balance. Yet, as shown in the chart below (originally shown in Post 319), the tax policies of the end of history era were a sharp break from the past.

Nearly four decades into this experiment, the largest beneficiaries have accumulated vast amounts of economic and political power. Naturally, this power is used to lock in long-term advantage. Is it any wonder that a significant portion of the electorate warms to a candidate who says that the system is rigged? Cf Oscar Blanco, “Bernie Sanders and Donald Trump are speaking for the same voters — which should worry Joe Biden,” Wash Post, Apr 9, 2020; The Bernie voters who defected to Trump, explained by a political scientist,” Vox, Aug 24, 2017; James Surowiecki, “Economic Populism at the Primaries,” New Yorker, Feb 14, 2016 (discussing how Sanders and Trump use similar rhetoric to attack similar targets).

Analog D: Empirically based theories of national decline. The first thread ends by considering the possibility that the last several decades of our history, up to and including the present, fit empirically based patterns of social and national decline. Below are thumbnail sketches of three theories originally examined in Post 321. Although they come from different intellectual disciplines, they all land in the same place. 

i. Ray Dalio, Principles for Dealing with the Changing World Order: Why Nations Succeed and Fail (2021) assembles several centuries of historical data to illustrate that every world empire follows a common Rise-Top-Decline pattern. Dalio’s “Big Cycle” theory is broken into six stages. Most of us have lived through Stage 4 (“Excesses and widening of wealth and other gaps”). Now we are in Stage 5 (“Bad financial conditions and intense conflicts”), which will eventually give way to Stage 6 (“Civil wars and revolution”). Dalio, a hedge fund investor who is intimately familiar with how currency fluctuations affect asset prices and the cost of capital, places special emphasis on the advantages of being the world’s reserve currency, as this status enables us to finance a Stage 4 low tax/high consumption lifestyle. As the nation debases its currency (prints money) to repay debtors, creditors search out more reliable options. As the domestic economy stagnates, incumbent leadership takes the blame, stoking additional political turmoil and tension. See Post 321.

ii. Mancur Olsen, The Rise and Decline of Nations: Economic Growth, Stagflation, and Social Rigidities (1982), uses a large, multi-continent dataset to demonstrate that the longer a country enjoys a period of stability and prosperity, the more susceptible it becomes to group interests that seek private benefits at the expense of society’s overall collective welfare. According to Olsen, no group is willing to shrink the overall pie to the point where its proportionate slice declines in value. This disciplines the behavior of major political parties—because of their sheer size, they are forced to reap what they sow. Id at 42-51.  Small groups, in contrast, lack the capacity to extract significant benefits. Yet, with the passage of time, talented leaders find ingenious ways to overcome difficult collective action problems. The endpoint is a growing number of “distributional coalitions” that strangle government, rendering it unable to solve problems.  Id at 44-73. This describes the massive lobbying industry and persistent gridlock we observe in Washington. See Post 321.

iii. Joseph Tainter, The Collapse of Complex Societies (1988) is the leading text in the interdisciplinary field of societal collapse. It covers thousands of years of human civilization and draws upon numerous disciplines (archeology, economics, geography, geology, statistics, history, and law). Tainter’s core thesis, which he applies to dozens of historical contexts, is that every nation, state, or social order necessarily becomes more complex as it attempts to solve problems related to its security and prosperity.  Eventually, however, investments in greater complexity reach a point of diminishing returns, which creates social and political tensions, as the costs are high and the benefits are rarely evenly spread.  At some point, the return on each unit of complexity (another law, another agency) becomes negative, which creates political conditions that cause society to fragment into smaller (and simpler) organizing units. See Post 321.

* * *

The conclusion to thread 1 is that our current political turmoil flows from trends and dynamics set in motion several decades ago. I did not see and understand these larger forces because I was immersed in my own goals and agenda. Indeed, history’s rhyming and repeating nature may be explained by the tendency of most individuals in any society to focus on self. We seldom look up to observe the large patterns affecting all of us.

Thread 2: Reflecting upon thread 1, how should I respond?

Some readers may share my natural proclivity to problem-solve, even if the challenge is mind-numbingly complex and formidable. “Sleep on it,” I tell myself. Yet, a line should be drawn between hard problems that can be plausibly solved versus the forward momentum of the social, political, and economic systems that comprise and consume our daily lives. Regarding the latter, when the forward momentum reaches a certain velocity, the systems can no longer be stopped or slowed by appeals to reason and self-interest. Instead, the forward momentum needs to run its course.

Restated in terms of the mindshare matrix, the greater the deferred maintenance on legal infrastructure and the legal system (bottom row), the more expensive and speculative the collective action becomes. Thus, sensing impending danger, those of us working in the legal industry—consciously or unconsciously—redouble our focus on the top row of Work-Life in the hopes of accumulating enough wealth and resources to shield ourselves and our families from the fallout.

The following story illustrates these dynamics. I recently attended my first legaltech conference since the pandemic (and thus before January 6, 2021). By a wide margin, the most striking change was the significant presence of venture capitalists, private equity, and investment bankers. On one of the panels, an investment advisor acknowledged the regulatory uncertainty and longer time horizons attached to legal businesses. When asked why his clients (wealthy families and large institutional investors) remain interested, he replied, “It’s a trillion-dollar opportunity.” Like the overall legal services market, approximately 80% of the featured companies focused on the legal needs of law firms and corporate legal departments (organizational clients). Cf Post 285 (recent statistics on two hemispheres of practice). The remaining 20% had a plausible story about earning a venture capital return by tapping into an underserved portion of the PeopleLaw market.

The conference was a remarkable collection of financial capital and legal and technical talent. Nearly all the focus was on finding and building companies that can make money by solving legal problems, which is all work on the top row of the mindshare matrix. I understand the necessity of this. Building a legaltech company is extraordinarily difficult. In the long run, the opportunity set has to yield a return that supports a family, health insurance, college tuition, retirement, etc. Yet, despite our good fortune of having this opportunity set, we’ve made no provision for a conference where comparable talent comes together to obtain funding for legal infrastructure that would improve access and affordability for ordinary people and, as a second-order effect, strengthen public attitudes toward constitutional democracy and the rule of law.

This is a collective action problem that the legal profession, and now the larger legal industry, have failed to acknowledge, much less overcome. See Post 349 (discussing unique failure of legal profession to think or act collectively).

To be as clear as possible, when I ask the question, “How should I respond?,” the anticipated backdrop is a declining social order. I don’t see any other conclusion that is not grounded in wishful thinking. Regarding the specifics of how the declining social order plays out, this requires a second thread of discernment. To remind readers, the task of thread 2 is “to make sense of my immediate environment in a way that is consistent with the historical analogs and my own moral imperatives.”

A. Living in a period of decline

I have spent much of the last year trying to find or build a useful frame. Fortunately, I am not alone, as there are many living-in-a-period-of-decline narratives to sort through.

Ross Douthat

For example, in The Decadent Society: How We Became the Victims of Our Own Success (2020), New York Times columnist Ross Douthat argues America and the West have entered a period of slow-motion decay. The most striking feature, according to Douthat, is our loss of ambition to build and explore, instead contenting ourselves with safe variations of what’s already been done. Despite a culture that is becoming more repetitive (or “stuck”), Douthat believes that our material comforts are likely to persist for decades—what he terms “sustainable decadence.” This suggests that the underlying decline will not result in voter rebellion.

In the chapter titled “Waiting for the Barbarians,” Douthat argues that the populism that resulted in Brexit and Trump will soon fizzle out due to an incoherence of vision and incompetence of leadership. Douthat suggests that “our current spasm of populism” may be “just that, a spasm, afterward the establishment will return unchasten to power.” Decadent Society at 172-73. Although less than four years old, Douchat’s analysis is aging poorly.

Heather Cox Richardson

Another book grappling with the present day is Democracy Awakening: Notes of the State of America (2023) by Heather Cox Richardson, a well-known political historian who writes Letters from an American, a popular Substack newsletter (1.3 million subscribers) that uses history to probe and examine today’s political events. According to Richardson, the most radical principle in American history, set forth in our Declaration of Independence, is that “all men are created equal.” It is radical because despots and dictators consolidate power by using language and false historical narratives that declare one group better and more deserving than another. Although equality of all was not literally true when it was written, the most tumultuous moments of our history—the Civil War, women’s suffrage, the Great Depression, World War II, the civil rights movement—have moved us closer. See Democracy Awakening (foreword plus all the chapters in Part 3).

Cox Richardson’s undeniable goal is to use history to influence the present. On page one of her foreword, she writes that America is “on the brink of authoritarianism.” By the fourth paragraph, she tells us that Adopt Hitler’s consolidation of power began in 1932 with 36.8% of the vote, which he then used to broker a deal to become German Chancellor. Through his ruthless tactics, “absolute dictatorship came afterward.” Democracy Awakening at xiii (citing several scholarly books on topic).

Cox Richardson notes that scholars have long tried to understand why the United States, during the years leading up to World War II, avoided the authoritarian fate that enveloped other democracies. Per her book, the leading narrative that took hold was that Americans were too moderate to embrace political extremes and that we “liked life in the middle.” Cox Richardson responds:

It was a lovely thought, but it wasn’t true.

America took a different course in the 1930s, not because Americans were immune to authoritarianism, but because they rallied around the language of human self-determination embodied in the Declaration of Independence.

They chose to root the United States not in an imagined heroic past, but in the country’s real history: the constant struggle of all Americans, from all races, ethnicities, genders, and abilities, to make the belief that we are all created equal and that we have a right to have a say in our democracy come true. … Americans chose a free future by choosing a principled past. But they could have chosen differently. Id. at xvii.

A key thread in Democracy Awakening is that presidents like Lincoln, FDR, and Lyndon Johnson, through their words and actions, nudged us toward equality.

Regarding discernment, I would wager that Cox Richardson, as a human being and citizen, has been asking herself some variant of the question, “How should I respond?” Thus, when I force myself to read her book with an open mind (setting aside my bias for economics and class theory), my biggest takeaway is to appreciate the power of language and historical narrative in the hands of gifted political leaders. Further, Cox Richardson is doing her best to seed the field. I am grateful for this.

B. “Democracy on the ballot”

For those of us who believe that our political order could, in the very near term, descend into something truly destructive, irreversible, and violent, there is immense focus on the 2024 election. See, e.g., The Atlantic Jan/Feb 2024 (special issue). This is a stronger version of 2020 and 2022, when there was also a pervasive sense that democracy was hanging in the balance. Yet, as evidence of Donald Trump’s lawlessness grows, and his rhetoric becomes more extreme, his popular support remains strong.

This ought to provoke some soul-searching. How many consecutive elections can you win by claiming that democracy is on the ballot?

Many commentators and political advisors are struggling to understand why President Biden has such dismal polling data at a time when the U.S. economy appears remarkably strong. The chart below, which encompasses the entire end of history era, offers a fairly simple explanation.

Over the last 35 years, the average net worth of households in the bottom 50% has never exceeded $50,000 (measured in constant 2022 dollars). Yet, focusing just on the Biden portion of the graph, we can be certain that federal pandemic policies—massive fiscal stimulus plus the Federal Reserve’s printing of money—triggered significant inflation. Obviously, this angered voters. However, there is little public awareness that these policies increased the value of household assets, such as stocks and real estate. See, e.g., Sean Ross, “How Quantitative Easing (QE) Affects the Stock Market,” Investopedia, Aug 28, 2023.

As a result, during the 2019 to 2022 time period, the average net worth of the bottom half of households moved from $25,800 to $46,600—proportionally large but hardly enough to create a feeling of widespread security. In contrast, in the same three-year period, the 75-90th and top 10% brackets gained ~$290,000 and $1.2 million, respectively. Most troubling of all is that the average bottom quartile (0 to 25th percentile) remained negative. See Federal Reserve, Changes in U.S. Family Finances, 2019 to 2022 (Oct 2023) at 14 (-$15,700 in 2019 vs. -$5,300 in 2022). Half the nation is half the vote. Suffice it to say, I don’t think we understand the hill we’re trying to climb.

Recall that the purpose of this discernment is to direct my own work and mindshare, not to formulate a grand national strategy. See conclusion of thread 1. The above analysis, however, is highly relevant to the future of Legal Evolution, a topic I discuss below in the Decision section.

C. Patrick Deneen

Patrick Deneen

During my year of discernment, the most cogent analysis I’ve read on what we’re experiencing right now is the work of Notre Dame political scientist Patrick Deneen. Although I disagree with his prescriptive advice (it’s unrealistic) and tone (where he ascribes bad faith and bad motives to elites—which includes professors and all the students we teach—I see the complacency, inertia, and groupthink endemic to the human condition), his formulation of the modern political landscape explains where we are and where we’re likely headed. Further, Deneen’s account of American politics fully aligns with the historical analogs in thread 1.

Deneen is best known for his book Why Liberalism Failed (2018), which critiques liberalism, the political philosophy that promotes individual rights, civil liberties, democracy, and free enterprise. Cf Historical Analog C, supra (liberalism as the only political philosophy left standing at the end of history). According to Deneen, our contentious left-right debate is really about two different flavors of liberalism, one favoring market forces (classical liberals) and the other favoring an expansion of rights and entitlements guaranteed by the state (progressive liberals). Although these two types of liberalism nominally compete with each other, their cumulative effect is what we observe today: staggering wealth inequality, decline of traditional institutions, weak communities, political polarization, and growing loneliness, drug use, and suicide. For an introduction to Deneen and his ideas, see “Patrick Deneen says liberalism has failed. Is he right?,”Erza Klein Show (Vox), Oct. 1, 2018.

In his most recent book, Regime Change: Toward a Postliberal Future (2023), which is meant to be a prescriptive follow-up to Why Liberalism Failed, Deneen makes the deeper claim that the costs of liberalism are disproportionately borne by the working class, particularly those in rural communities (or flyover country) far removed from the urban enclaves of political, economic, and cultural elites. Deneen argues that “the dual embrace of economic and social ‘progress’ has generated a particularly virulent form of that ancient divide that pits ‘the few’ against ‘the many.'”Id at x. Steeped in his own discipline, Deneen notes that “authors as various as Aristotle, Cicero, Polybius, Aquinas, Machiavelli, and Alexis de Tocqueville” all concluded that the only way to reconcile this divide, and thus create the conditions necessary for peace and prosperity, is through a mixing of the two classes. Id.

Part I of Deneen’s book, titled “Our Cold Civil War,” updates the few versus many “ancient divide” with numerous additional layers and descriptors. Part II, titled “Common-Good Conservatism,” applies the framework to the present. To help me fully digest Deneen’s analysis, I constructed the below graphic:

The blue-red box at the top represents the two political classes that, until the 2016 election, competed for elected office. Although this frame is still used to discuss U.S. politics, particularly in mainstream media, it’s become outdated. As a result, both political classes struggle to find language and messaging that reliably resonates with majority of the electorate.

According to Deneen, a more accurate frame is an updated version of the ancient divide in which both political classes are part of the few/elites. Whether they supported Obama-Biden or Romney-Ryan in 2012—arguably the last full iteration of a fading order—they have the income, status, and mobility to live in vibrant urban and suburban corridors that comprise the nerve centers of government, finance, and tech. In contrast, the many (or demos) are much more anchored to place. When global competition and consolidation cause local businesses to shutter, their communities slide into economic irrelevance. Likewise, during the global pandemic, the laptop class’s comfort, safety, and convenience were made possible by a nearly invisible army of “essential workers.” Cf “Essential,” This American Life, Aug 13, 2021 (documenting lives of essential workers during the pandemic, including widespread feelings of frustration and resentment).

In reaction to rapid changes, Deneen argues that a surging working class has wrestled away the conservative label from classical liberals (now called RINOs and Never-Trumpers). According to Deneen, “ordinary people” are “the most instinctively conservative element in the social and political order. They seek stability, predictability, and order within the context of a system that is broadly fair—and, in particular, arrangements within which prospects of life success do not merely hinge on wealth, education, or status.” Regime Change at 93-94.

Further, Deneen believes that these preferences substantially transcend issues of race. Although progressive liberals have positioned themselves as champions of racial diversity, Deneen notes how they struggle to maintain support within “an increasingly multiracial, multiethnic working class,” Id at 10, a claim amply supported by recent polling data, see, e.g., Josh Kraushaar, “Biden loses ground with working-class Black, Latino voters,” Axios, Aug 6, 2023; Patrick Ruffini, “The Emerging Working-Class Republican Majority,” Politico, Nov 4, 2023.

Finally, the most important factor bringing us to the brink of a cold civil war is a separation of the few and the many, or the elites and the demos, that started off geographic but, over time, has become psychological in ways that are subtle yet deep.

The geographic is obvious—bright kids from small towns head off to college to earn credentials that open doors in much larger urban economies. Those of us working in universities celebrate this as a job well done, particularly when our grads are from underrepresented groups. Yet, when played out over several decades, a new managerial class emerges that, from far away, buys, sells, and operates businesses without any firsthand knowledge of how these decisions affect people rooted in “somewhere” communities. Part of the story, unfortunately, is an increase in “deaths of despair.” Regime Change at 18.

Arguably, the psychological separation is a second-order effect of geographic separation—out of sight, out of mind. Yet, Deneen argues persuasively that it also flows from the nature of our economy, in which we maximize income and status by pursuing narrow specialization—i.e., become experts. No one, however, is in charge of managing the costs and consequences of so many elites slavishly following their own self-interest. Cf mindshare matrix (top row). Remarkably, and unfortunately, the experts can’t even understand each other. See Regime Change at 86-90.

To make this point, Deneen quotes farmer and agrarian author Wendell Berry:

We seem to have been living for a long time on the assumption that we can safely deal with parts, leaving the whole to take care of itself. But now the news from everywhere is that we have to begin gathering up the scattered pieces, figuring out where they belong, and putting them back together. For the parts can be reconciled to one another only within the pattern of the whole thing to which they belong. The local businesspeople, farmers, foresters, conservationists, investors, bankers, and builders are not going to get along on the basis of economic determinism. The ground of their reconciliation will have to be larger than the ground of their divisions. It will have to promise life, satisfaction, and hope to them all.

Id at 120 (quoting Wendell Berry, “The Purpose of a Coherent Community,” in The Way of Ignorance and Other Essays (2005) at 77). This type of common sense eludes elites who have become geographically and psychologically separate from ordinary people.

Deneen argues that what we are experiencing in the United States is a nascent political movement that is arising from the discontents of a recalcitrant working class. “Arising outside of the official corridors of power, this largely unguided movement has been indifferent to the scornful disdain of both right and left liberals.” Regime Change at 150. In the process, the moment expanded the overall number of citizens willing to engage with presidential politics. Over the last eight years, Donald Trump has consolidated all of it within the Republican Party, albeit “without offering clarifying articulation of their grievances” or translating “their resentments into sustained policy.” Id. In the meantime, every other Republican politician, whether fearless or feckless, has become an also-ran.

For several years, I’ve struggled to understand Donald Trump’s iron grip on so many voters, which in turn gives him plenary control over an entire political party. Amidst growing evidence of lies, corruption, incompetence, and criminality—absolute disqualifiers for anyone else—his base level of support never wanes. Why?

With Deneen’s analysis, I finally found a credible answer: a huge proportion of the populace is disgusted with smug, out-of-touch political elites who are pulling levers of power in ways that disrupt and disrespect the lives of ordinary people. This is not entirely foreign ground to me. Before law school, I spent 13+ years as a landscaper, firefighter-paramedic, and union president. See Post 070 (recalling “days upon days, weeks upon weeks, months upon months interacting only with people without college degrees”). Yet, from far away—and law professor is pretty far—it’s hard to gauge disgust.

Although Deneen rarely mentions Trump by name, he makes clear that the leading Republican candidate is a “deeply flawed narcissist.” Regime Change at 150. But Deneen also concludes that an enormous portion of the managerial class, which includes virtually all professors, lawyers, and other professionals, are engaged in “a stupendous effort of self-deception about the nature of [our] own position.” Id at 40.

After a year of discernment, I think Deneen gets this right. However, without a very specific example highly attuned to the world of law, I risk leaving many readers either irritated or confused. So here it goes.

Benjamin Wittes and Charlie Sykes

Last month, I was listening to a Bulwark podcast on Donald Trump’s threats to weaponize the DOJ. See Charlie Sykes, “Flooding the Zone,” Bulwark Podcast, Nov 10, 2023. The guest for this particular episode was Benjamin Wittes, Senior Fellow of Governance Studies at the Brookings Institution and editor-in-chief of Lawfare. See Post 261 (discussing the influence of Lawfare). Before writing a series of books on national security and law, Wittes was also an editorial writer for the Washington Post, specializing in legal affairs.

When host Charlie Sykes asked Wittes about how much tyranny Trump could wield through a politicized DOJ, Wittes acknowledged that the DOJ can ruin the life of virtually anyone it puts in its crosshairs, as most people lack the resources to defend themselves. Yet, unlike other agencies, such as the NSA, there are very few institutional safeguards, such as statutes or oversight bodies, to guard against abuse. Instead, the most important protection is “an institutional culture at the Justice Department” that is traceable to things like the Levi Guidelines, which set in motion certain normative rules about contacts between the Justice Department and the White House. Yet, these norms “reside in the hearts of a lot of replaceable people. …. [T]hat is precisely the sort of thing a tyrant leader can change.” Flooding the Zone at 17:24.

Sykes replies, “That is not reassuring, Ben. That was not reassuring in any way.”

Wittes then suggests that a second Trump term would set off “a very significant exodus of career officials, which is …. [exactly] what Trump wants. … That’s the dilemma—he wants the deep state hollowed out.” Id at 19:22. Yet, in the process of explaining how this is likely to play out, Wittes reveals something about the current system that should give every lawyer pause:

[The loss of institutional culture at the DOJ] is not something will be visible to the public. Because … when career Assistant US Attorneys take jobs a Covington & Burling or Arnold & Porter, that’s the normal trajectory anyway. [With a new Trump administration,] five thousand of them will do it six months to six years earlier than they would have otherwise done it. … [They] tend to go into [these firms] anyway because as their kids get older, they have tuitions to pay and the salary differentials are immense[.] … [S]o you have a quicker exit and a replacement with much lower quality people. Id at 20:56.

Over the last thirty years or so, the DOJ—under both Democratic and Republican administrations—has been criticized for going soft on white-collar crime. The difficulty of obtaining convictions against executives with near endless corporate funds, and the political incentives on senior DOJ officials, has resulted in a system in which corporations in the DOJ’s crosshairs hire a white-shoe law firm to conduct an internal investigation that, in the worst-case scenario, results in a fine, admission of wrongdoing, and a press release that documents the current administration’s tough stance of corporate wrongdoing. Obviously, this means that very few executives ever go to jail.

So, why might the AUSAs—the folks we’re worried about losing—go along with this approach?

According to Pulitzer-Prize-winning journalist Jesse Eisinger, the “cooperation-for-leniency bargain” has created an unhealthy co-dependent relationship between Big Law and the DOJ. As the law firms have created large white-collar practices in response to lucrative investigative work, the DOJ has become “a way station, a post-(law) doctorate of study, a résumé builder for future partners of prestigious law firms.” Jesse Eisinger, The Chickenshit Club: Why the Justice Department Fails to Prosecute Executives (2017) at 192-93. Backed up by my numerous insider accounts, Eisinger argues that the cooperation-for-leniency bargain has also eroded prosecutorial skills, making it harder for the government to go after the worst bad actors if, someday, a new administration decides to change course.

Although I loathe the prospect of a weaponized DOJ, it is legitimate to ask whether the DOJ has already been substantially disarmed for the benefit of the managerial class—and their lawyers. Do you think ordinary people have taken note? Cf Jed Rakoff, Why the Innocent Plead Guilty and the Guilty Go Free (2021) at 85-113 (eminent federal judge explaining why we have “mass incarceration of millions, mostly of color, charged with street crime and like, [while] high-level business executives appear increasingly exempt from criminal prosecution, even when they commit very serious frauds”); Brandon L. Garrett, Too Big to Jail (2016) (offering a similar analysis). Does this rise to the level of stupendous self-deception? You be the judge.

* * *

I have enough information to bring thread 2 to a close.

According to Patrick Deneen, our building political tension gets resolved in one of three ways. I think there is more, but let’s start with his.

  1. “[M]ost likely” is the “domination of elites over the working classes, manipulated through complete control of the main institutions of society,” which includes “mainstream media, educational institutions, the bureaucracy, and social media corporations.” Regime Change at 159. I’m unsure how this works—an endless succession of “democracy on the ballot” wins? And how does conservative media get co-opted, particularly when their current business model is working so well? To the extent this option comes to pass, the elites (us) will need “stupendous self-deception” to construct a benign narrative. Regardless, I want no part of this outcome.
  2. “[L]ess likely” is a “decisive uprising from below, likely led by a demagogue, creating a dictatorship of the proletariat in ways that Marx did not anticipate or intend.” Id. It’s hard to read this sentence and not think Trump 2024. Many people in the managerial class say the 2024 election is the most important of our lifetime. But the day after a successful election, the vast majority will return to the top row of the mindshare matrix. I want Trump to lose the 2024 election and will give time and resources to the cause. Regardless, the root problem identified by Deneen requires massive focused attention. Thus, I need to stay in the bottom row.
  3. “[A] third option,” which Deneen says is least likely, is a “genuinely ‘mixed constitution'” that “align[s] the sympathies and interests of the powerful few to the needs and interests of the ordinary citizens” to achieve “a stable and balanced order.” Id at 159-60. Everything in Parts I and II of Regime Change is a set-up for the Part III prescriptive cure, which discusses the creation of a new elite and, drawing upon Machiavelli, some of the tools and tactics necessary for success. This third option truly is the least likely (bordering on impossible), as it requires, among other things, a breakup of capital that far exceeds the most ambitious agendas of the Progressive Era trustbusters. See id at 177-78. Although I won’t be joining Deneen on his journey, I wish him luck.

A likely fourth outcome is whatever lies beyond my own bounded rationality. I need to focus on what I can control and what makes sense no matter what the future holds.

Although Deneen did not radically alter my worldview, he mended a very large hole. For a truly insightful conversation between Patrick Deneen and Ezra Klein that was recorded while Deneen was writing Regime Change, see “What Does the ‘Post-Liberal Right’ Actually Want?,” Erza Klein Show (NYT), May 13, 2022. Undoubtedly, and for a long time, Deneen has also been asking himself some variant of the question, “How should I respond?”


At this point in my career, I am turning my professional focus to PeopleLaw. As I resume publication of Legal Evolution, this decision will be reflected in what I choose to write about, what I’m willing to take the time to edit, and the overall frequency of publication. Regarding this last point, I am committing to one feature essay on the first Sunday of each month (starting in February) with periodic publication of other things of interest.

After such a long period of discernment, the Decision section of this essay can be short. I want to cover two topics: first, a brief rationale for my decision to turn to PeopleLaw; and second, a brief comment on how generalizable my period of discernment is to LE readers and, relatedly, why I took the time to write it out.

Regarding the decision to focus on PeopleLaw, back in 2017, a quote from economist and law professor Gillian Hadfield really stuck in my mind: “[P]eople who feel as though the rules don’t care about them don’t care about the rules.” Gillian Hadfield, Rules for a Flat World at 79 (2017); Posts 037, 059, 106, 226, 285 (sharing quote). In the context of her book, Hadfield was making the point that functioning legal infrastructure is what enables people and communities to truly flourish; thus, we ought to build more of it, particularly in the developing world. There is no better example of Hadfield’s thesis than the early history of the United States. But alas, over multiple generations of lawyers, our legal infrastructure has fallen into appalling disrepair. This is the deferred maintenance discussed in the Reflection portion of this essay.

Since Post 001 of Legal Evolution, I have told readers that I am an applied researcher, which means periodically leaving the ivory tower to get dirt caked underneath my fingernails. Lawyer Metrics and the Institute for the Future of Law Practice are the best examples. In short, I know firsthand the difficulty of building things; the only good that comes from all those mistakes is some hard-won wisdom and intuition on what to do next time—if there is one. Without going into detail, over the past year, a series of unexpected meetings and conversations have convinced me that there is a tremendous opportunity to build a new type of legal infrastructure in the state of Indiana. Hopefully, this substance will bleed out over the next year or so. As I noted at the end of my discernment, it’s important to choose a path that makes sense no matter what the future holds. My decision fits this criterion.

Regarding the generalizability of my period of discernment, there are enormous limitations and caveats. Foremost, I am a tenured professor at an R1 university, so after teaching my classes, turning in my grades, and doing some committee work, I am free to allocate my time as I see fit. The only thing that hangs in the balance is next year’s raise. In short, I have zero barriers to following my own moral imperatives. As for the rest of the legal profession, it’s a much different story.

When I pull back to observe the larger forces driving the legal profession, the legal industry, and broader society, I see a massive collective action problem that I’ve tried to depict in the mindshare matrix. The larger and more complex our society, the harder it becomes to secure one’s long-term future, and likewise, the more urgent the need for legal infrastructure to serve the needs of ordinary people. As a society, we’ve fallen in love with the benefits and wealth created by scale. Yet, a large second-order effect is the increased difficulty of stopping the traffic so we can fix the bridge.

Everyone has to find their own solution to the mindshare matrix. Although my solution is not fully generalizable to you, I hope that sharing my journey might stimulate yours. I really do believe that we’re in this together.


A 7,500-word essay to clarify my thinking and my future work on PeopleLaw. wdh.