The problem with lawyer-driven society in a nutshell

This post on Boing-Boing includes the following quote that summarizes the pathological extreme of lawyer-driven society, a pathological extreme that we see too often in our current society:

The reason given was that the potential liabilities involved haven’t been settled by a definitive SCOTUS ruling. Which is absolutely true, of course. Just as it is true that the risk of exploring the pyramids hasn’t been conclusively settled until we’ve proven that we won’t be attacked there by golden unicorns.

In my (admittedly limited) observations, corporate lawyers (which, I believe, represent the vast majority of legal work out there— far more than Perry Mason style courtroom lawyering) exist to do two things.

The first thing they do is try to write contracts and other similar things that grab absolutely as much control for their employer as possible. When dealing with other corporations, they have to battle other lawyers, but when dealing with individuals who can’t afford their own phalanx of lawyers, they usually write egregious things like “Terms of Service” on software and severance agreements that include terms nobody who believes in the principles of the United States should agree to, but that we all agree to as a matter of course all the time just because it’s become standard operating procedure.

The second, less sinister but just as harmful, thing that they do is sit around and play paranoid. They think of where their company might get into legal trouble, where there might be liabilities, and then they advise their company on policies that will hopefully avert any such potential liabilities. Here, they’re doing their job; they’re telling companies what could go wrong. The problem is, just as with our reaction to fears of terrorism, in our society we tend to hear about these things going wrong, and squeeze off all sorts of expression and creativity out of paranoia. Or, if sometimes those things do really go wrong, seemingly undermining my calling them “paranoia”, they don’t really evaluate the cost of the downsides of policies that stop that thing from going wrong again.

Yeah, lots of the things lots of us do, and lots of the things it would be really neat for companies to do, could potentially expose them to all sorts of liabilities. And, yeah, it’s useful to have lawyers around to tell them what the laws really are (since, alas, we live in a society where it takes years of training to understand the laws) and where things might go wrong. But then, sometimes, you have to be willing to take risks. Sometimes, you have to say, yeah, there’s no case law that says we’ll be safe if we do that, but let’s try it anyway because the potential benefits could be great.

Too often, though, we don’t do that.

Kind of odd for me as a not-risk-taker to be saying this, but I’ve seen this happen enough times that it just makes me sad that we’ve taken what should be a service— the advice of lawyers about the state of the law— and have turned it into a gigantic ballast that prevents us from flying.