The Real Maverick

Ralph Nader talks tough in UB Law appearance

Ralph Nader's reputation preceded him, and the crowd started lining up early for the political activist's Nov. 14 appearance at UB Law School, where he was invited as the guest of the Student Bar Association.

They were not disappointed. Nader – a Harvard-trained attorney – entertained and challenged especially the law students in his audience with frank words about legal education, the legal profession and lawyers' responsibility to work for the public good.

True to form, he used his bully pulpit to encourage students to find a way to make a difference in the world, not just serve the economic interests of those in power. Practicing law, he said, is a profession, not a trade, and "a profession has an obligation to prevent that which it is skillfully trained to deal with. A true professional tries to put herself or himself out of business. You are going to be going into a profession that has a monopoly, and there is a moral imperative accorded to that."

It comes down to that elusive quality – justice, Nader said, drawing a distinction between the roles of attorney and lawyer. "An attorney gives full, zealous representation for his client. A lawyer is also an attorney who looks out for the overall quality of administration of justice," he said. "Unfortunately, most lawyers spend the majority of their time as attorneys, not lawyers."

And yet, he said, of the approximately 800,000 people who hold a license to practice law in the United States, only about 1,000 are public-interest attorneys outside of Legal Aid bureaus. "The deployment of people who are licensed to practice law is overwhelmingly in private practice and government service," Nader said. "What is the demand for justice in this country, and to what extent are lawyers representing those who are in a position to have to demand justice because they are being ripped off so badly or being subject to the corrosive effects of power or simply being mistreated by other people?"

He encouraged the lawyers-to-be in the audience to resist the well-worn path into private practice, on ethical grounds. "Large law firms are the principal architects of strategies used by corporations to exploit people," Nader said. "The problem is that you are going into a profession that trivializes your talents and pays you handsomely for it. …You begin developing retainer astigmatism. You justify anything the client wants you to do because you do not want to lose the client."

But new lawyers have a choice, he said: "It is during the first five or 10 years after law school when you will make your mark, when you are going to develop new trajectories to the extent of whether your practice connects with justice."

Nader also touched on some axioms of the legal profession that he said work against justice for the average citizen. For one, he assailed the way the judicial system treats corporations as persons with rights.

"You have heard it said that a lawyer has a duty to represent every client zealously. I disagree," Nader said. "I think corporations should never have been represented the same as people, constitutionally, statutorily or in terms of your code of ethics. If we do not subordinate the corporate entity to the sovereignty of the people, we simply cannot have equal justice under the law." He cited a movement in California to force publicly regulated utility companies to include with their bills a notice that citizens could contribute money to utility watchdog groups – an idea struck down by the U.S. Supreme Court, which ruled that utilities, as corporate "persons," have the right to maintain silence in their own self-interest.

Nader also cited the emerging fields of biotechnology and nanotechnology. "These are very dramatic changes of our environment," he said. "One is changing the nature of nature, in terms of crops, in terms of drugs, in terms of human beings. And the other deals with particles so tiny that you cannot see them. We are told what the benefits are by the corporations, but we are not told what the risks are. The government does not regulate them." Lawyers, he said, have a responsibility to "synthesize materials from engineering and science into public policy" for the public good.

He also was not shy about taking the legal education system to task. "Law schools are empirically starved. They are not catching up with the reality of what is going on," he told the students. "You are being empirically starved. Does that bother you? It should, because it will shape your future career.

"There is a 14th century Chinese proverb, from the Ming Dynasty: 'To know and not to do is not to know.' That proverb applies to 95 percent of the law professors in the United States. They know but they do not do. … We need their testimony, we need their critique, we need their expertise. No, they go back to their class and they teach a shrinking tort law."

Among the other topics Nader tackled in a wide-ranging conversation that included a lively question-and-answer session:

• "Chronic institutional illegality by the federal government." "It is an irony of our Constitution that there is virtually no penalty for violating the Constitution by an official," he said, attacking the current presidential administration for a "criminal war of aggression in Iraq," the use of torture, the arrests of "thousands of Americans without charges and without habeas corpus writs," "snooping on millions of Americans without judicial approval," and liberal use of presidential signing statements that give the president the option of whether or not to enforce a law. "It is important to ask, who enforces the provisions of the Constitution?" Nader said. "Again and again, citizens trying to invoke provisions of the Constitution are not allowed to state their case. If citizens cannot enforce the Constitution, and Congress has only impeachment authority, who is left? Presumably the attorney general has standing to sue. That is not likely to be a source of prosecution. You do not usually prosecute your boss."
• The federal rescue plan for the U.S. banking system. "It is anarchical," Nader said. "It was issued by fiat, with no public hearings, just senators interviewing the secretary of the treasury."

• The difficulty of entering public-service work when a new lawyer is saddled with school-loan debt. Nader encouraged the establishment of loan-forgiveness programs, saying the nation must "fight underinvestment in public interest law. This is not a fringe dimension of our profession." Corporate law firms, he said, "ought to kick in money to support the other dimension of the legal profession."

• The controversy over his statement about President-elect Barack Obama, in which Nader said, "He is our first African-American president; or he will be. And we wish him well. But his choice, basically, is whether he is going to be Uncle Sam for the people of this country, or Uncle Tom for the giant corporations who are running America into the ground." Responding to a student's challenge over his phraseology, Nader said rhetorical flourishes are the only way to get the attention of a media-saturated generation.