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Joseph A. Grundfest May 20, 2001 address Stanford Law School Friends tell me that it is impolite to turn one’s back to the audience. So, please forgive me because I am going to turn around to my distinguished faculty colleagues and ask a simple question. [Turns to face faculty] “My God, what have we done?” Our colleagues at other schools graduate doctors who heal the sick. They teach poets who soothe the soul. They train engineers who bridge the valleys. They study with philosophers who search for deeper truths. We breed lawyers! How can we live with ourselves? [Turns back to audience] The answer is clear. We have no conscience. Actually, there are many excellent answers to this question. But rather than apologize for the act of creating new lawyers, or try to rationalize the business that we are in, I am going to suggest a much bolder and more brash response to the challenge. Too many lawyers, you say? Feh, I say. I tell you that there aren’t nearly enough lawyers in the world today. I tell you we need more lawyers. We need more lawyers especially as we look to the future and consider the remarkable changes that are likely to evolve technologically and on an international basis. Even more than that, I suggest that there is reason to celebrate if the world experiences an explosion of lawyers. You’ll hear no apologies about the law school business from me today — although I’ll be happy to slam individual members of our profession. Yes, I know this idea runs against the tide. It certainly is more popular to complain that the United States is being ransacked by armies of heartless, scavenging, bloodsucking, merciless, money-grubbing, ambulance-chasing, mercenary shysters. Yes, I’ve also heard all the lawyer jokes. What do you call a hundred lawyers at the bottom of the ocean? A good start. What’s black and brown and looks good on a lawyer? A Doberman Pinscher. What’s the difference between a catfish and a lawyer? One is a bottom-feeding scavenger. The other is a fish. If a husband says something and his wife doesn’t hear him, is he still wrong? I know that last one wasn’t a lawyer joke, but I couldn’t help myself. No doubt, not all lawyers are created equal in this process. Some lawyers make the world a better place. Others, not so much. The real question that faces our graduates today is what kind of lawyers they want to become in a world that will need many more lawyers. This existential challenge can be illustrated with a brief reference to a body of modern literature that may be surprisingly familiar to many of you in this room. The 1950′s and ’60′s were the glory years of the comic book. We had our great heroes: Superman, Batman, and — my favorite — Wonder Woman. There was also a group of superheroes with less dramatic but nonetheless very effective gifts. There was Bouncing Boy. He inflated himself to the size of a 6-foot diameter medicine ball and pummeled his opponents into submission. There was Color Kid. He had the power to change the color of objects and people. His gift made him particularly popular among interior decorators. There was Night Girl. She had the power of super strength in darkness. No comment. Now what do these super heroes of yesteryear have to do with our graduates of today, aside from the fact that they wore capes and silly hats, and we are also wearing capes and silly hats? And how do these superheroes relate to the moral validation of our work as professors who, year in and year out, breed an ever-larger number of young attorneys? Simply put, each one of you graduates, by virtue of your skill and intellect, combined with your role as attorneys, will have your own set of superpowers. Sure, these superpowers are relatively minor compared with those of Superman or Wonder Woman, but they will be powers nonetheless. The question before us then is whether you will use those powers for good or for evil. Will you turn out to be like Subpoena Man? Able to turn any event into a lawsuit. Coffee too hot? This is a job for Subpoena Man! Or, will you be like Appealing Woman? She knows how to keep litigation going, and going, and going. To Appealing Woman, any lawsuit that settles before its bar mitzvah is a systems failure. And then, of course, our favorite local Silicon Valley superhero: IPO Kid. He can take any company public, anytime, any place. No revenue? No product? No problem. We all know of IPO Kid’s greatest exploit, Pets.com. That company went from formation, through IPO, and into bankruptcy in two and a half years. That’s less time than it’s taken all of you slackers to get through this law school. Think about it. So, that’s the question on the table: What will you do with your superpowers? Will you be like Subpoena Man or IPO Kid? Or is there something deeper at work in your soul? As you ponder that, ponder this, too: The Bureau of Census reports that 651,000 people make their living practicing law in the United States. That’s a lot of lawyers. That’s so many lawyers that you might be wondering whether I’ve lost touch with reality by suggesting that we need more lawyers. There are two reasons why 651,000 lawyers in the United States are too few as we look into the future and why, whatever the number of practitioners abroad, that number is also too small. The first reason is prosperity. With greater prosperity we find more lawyers. The second reason is freedom. With greater personal liberty we also find more lawyers. If you are against freedom and if you are opposed to prosperity then you should be against the explosion of lawyers. If you are in favor of freedom and think prosperity is a good idea, then you should be celebrating the explosion of lawyers. How’s that for stacking the deck? Now, I’m not claiming that lawyers cause prosperity and freedom — although I’d be happy to tell that story, too. I’m also not claiming that every lawyer who walks the planet is a blessing for our species. That would be a lie, and we all know that lawyers don’t lie. My claim is, instead, far more modest. To put it another way, Thomas Jefferson asserted that the price of freedom is eternal vigilance. I’m suggesting that the price of prosperity and freedom is more lawyers. It’s a price that I, for one, am willing to pay. Allow me to explain. Human prosperity will have very different roots in the 21st century than it had in the 20th. Not long ago, wealth existed primarily in physical form. People prospered by owning real estate, by building railroads, or by running steel mills. Today, prosperity depends far more on ideas than on things. Modern wealth exists in the form of the code that runs your computer, the molecule in the drug that extends your life expectancy, and in the music that you used to download for free from Napster. It is no secret that a rapidly increasing percentage of the world’s GNP is attributable to intellectual property and not to physical property. Now let’s compare the law’s role in a world where prosperity depends on the ownership of things with law’s role in a world where prosperity depends more on the ownership of ideas. It’s an entirely different kettle of fish, and lawyers are far more central to the operation of this new world than to the operation of the old. Here’s a very simple example: As a practical matter, you can’t get a patent today without the extensive involvement of lawyers. If a dispute over the validity of a patent arises it will again involve the intense participation of lawyers. Lawyers are thus woven into the fabric of the creation and protection of modern patent wealth in a way that has no meaningful parallel in the construction, say, of a steel mill or of a skyscraper. Moreover, as technology advances, new inventions will inevitably present new challenges to the notion of property rights. These challenges will require intense involvement by lawyers before the metes and bounds of the new technological process become clear and before that new technology can be commercialized. Examples of this process also abound. Consider the legal and business questions raised by the desire to patent DNA sequences, or to encrypt or decrypt movies. Entire industries will be born or die depending on the resolution these legal questions. Again, it is challenging to find any close parallels in a world where wealth was manifest in physical things rather than ideas. The bottom line is that a prosperity built on an economy of ideas is much more lawyer intensive than a prosperity of things. It takes far fewer lawyers to run a railroad than to run an equivalently sized biotech company or software shop. Therefore, as the world evolves toward an economy that depends increasingly on ideas, the world will also inexorably turn toward an economy that demands an increasing number of lawyers. Viewed from that perspective, a dramatic increase in the number of lawyers can indeed be cause for celebration because it is a side effect of greater prosperity. Freedom also demands more lawyers. The stunning collapse of a large number of totalitarian states is one of the remarkable blessings of the last decade. In a dictatorship, people have no rights. Because they have no rights, they don’t need lawyers to argue over the rights that they don’t have. In a democracy, people have rights. These rights come into conflict and create frictions. People then want lawyers to defend those rights, to define those rights, and to extend those rights. Indeed, the more rights we have, and the more rights we seek, the more we want and need lawyers. Sure, we can reduce the number of lawyers we demand by cutting back on our freedom to argue about our rights and wrongs, but is that a price you are willing to pay? Think about it this way. Before minorities had civil rights, we didn’t need civil rights lawyers. If we got rid of our securities laws, we wouldn’t need securities fraud litigators. Our civil rights and our rights to be free of fraud create a demand for lawyers to argue over those rights. Sure, there are many instances when the law is preposterously inefficient in creating and managing these rights and liberties. Sure, much can be done to streamline the administration of justice so that we suffer fewer frivolous lawsuits, and put up with fewer ridiculous regulations. But even if we make significant progress in streamlining the administration of these rights, we are still likely to see a proliferation of society’s demand for lawyers. The demand will increase because it is in the nature of our democracy to be perpetually inventing new rights, new liberties, and new obligations. Each of these newly invented rights, liberties, and obligations generates new conflicts and creates new demands for lawyers. So, even if we were to make substantial progress in cutting back on the frivolous and wasteful use of our legal system — a prospect about which I am not hopeful — we would still observe a significant increase in the demand for attorneys. Internationally, the argument is stronger still. Foreign nations are discovering new liberties every day. As those liberties are incorporated into the constitutions and statute books, these nations are also discovering the inevitable clashes over the interpretation and enforcement of these rights. They then turn to their lawyers. That’s a far happier result than turning to their guns or turning back the hands of time by eliminating the underlying rights to begin with. More freedom and more lawyers are thus part and parcel of the same bargain. So here, my graduating friends, is your opportunity. You stand on the edge of a potential decades-long explosion of prosperity and freedom that may well have no parallel in human history. You have a chance to be a player in that unfolding drama. The role you play will depend on many factors. Many of those factors will be out of your control. But one of those factors, perhaps the most important of those factors, will be exclusively in your control. I speak of your dreams. I speak of your desires. I speak of your fantasies. The Upanishads explain: You are what your deep driving desire is. As your desire is, so is your will. As your will is, so is your deed. As your deed is, so is your destiny. That’s the equation: Your desire forms your will, your will forms your deed, and your deed determines your destiny. Many of you will be privileged to have a great level of control over your lives and over your powers. Whether you use your powers for good or evil, or for meaning or nonsense, will depend largely on whether you want to use your powers for good or evil, or for meaning or nonsense. It will depend on the quality of your dreams, on the texture of your desires, and on the passion with which you pursue your fantasies. Take good care of your dreams, be mindful of your desires, and cultivate your fantasies because they can and will shape your destiny. You also won’t be able to blame anyone else for the sense of failure that you might one day feel because your dreams, your desires, and your fantasies weren’t everything they might have been. You are what your deep driving desire is. Today, we bestow upon you a modest set of superpowers. What you do with them is up to you, and up to your deep driving desire. I would like to end on one last note of very special thanks. About 20 years ago I sat in this audience. I, too, was a student waiting to graduate. I was taught by many of the same faculty on this podium today. I owe a great deal to my teachers, many of whom are now also my colleagues. I would not be here but for their wisdom and generosity. I am profoundly humbled by the honor you bestow upon me and by the debt I owe to my own teachers. I would be grateful in the extreme if you would help me repay a small portion of that obligation by joining me in a round of thanks and appreciation for our teachers, for my teachers, for all teachers, and for the wonderful gift of a connection through time. Thank you. Joseph A. Grundfest is the William A. Franke Professor of Law and Business at Stanford Law School, and former Commissioner of the United States Securities and Exchange Commission (1985-1990).

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