You have certainly heard many lawyer jokes, some of which are pretty funny. But have you ever thought of them as data for a scientific study?
Marc Galanter did. He’s a Wisconsin law professor and giant in our DR field.
In a recent post in this Stone Soup mini-course, I summarized some cool qualitative studies. This post highlights another one which features an unusual source of qualitative data.
While most qualitative empirical data uses methods such as semi-structured interviews and focus groups, some involves analysis of “artifacts.” Usually, the artifacts in legal studies are documents such as contracts or court opinions. Galanter’s use of lawyer jokes illustrates that you can use all sorts of things to study and make plausible inferences. As with all social science, you shouldn’t rely on any single method or study. You should relate results to other sources of information and use your judgment about the persuasiveness of the conclusions as compared with other possible explanations.
I wrote the following summary of Galanter’s book, Lowering the Bar: Lawyer Jokes and Legal Culture, in An Appreciation of Marc Galanter’s Scholarship. Refer to the article for the footnotes, which are not included here.
Galanter’s recent book, Lowering the Bar: Lawyer Jokes and Legal Culture, is the culmination of much of his work on American law. Although he virtually never collects his own empirical data, he is an avid analyst of others’ data. Lowering the Bar is something of an exception as he provides what is almost certainly the most comprehensive analysis of the “corpus” of lawyer jokes, which he collected from all around the world and by going back through historical sources.
At first thought, one might assume that there would be little value in analyzing lawyer jokes. Galanter easily demolishes that assumption, showing that “[j]okes provide a rough gauge of common attributions of traits to various social groups and perceptions of the stature of various sorts of behavior.”
He has been working on this project since the early 1990s and has published at least a dozen articles using lawyer jokes as data. Although Galanter uses jokes and cartoons as his primary sources in Lowering the Bar, they are “juxtaposed with other outcroppings of legal culture–public opinion as expressed in surveys; the discourse about law among political, media, and business elites; and the portrayal of law and lawyers in the media.”
He sorts the jokes into nine major categories, which “can be organized into two waves[:] an enduring core of topics and themes that have been well established for several centuries and a set of new thematic areas that have flourished since 1980.”
The enduring themes are that (1) lawyers are corrupters of discourse, who “lie incorrigibly,” (2) lawyers are greedy economic predators who do not produce anything of value but rather live off of productive members of society, (3) lawyers are allies of the devil, (4) lawyers are “aggressive, competitive hired guns, incurably contentious, unprincipled mercenaries who foment strife and conflict by encouraging individual self-serving and self-assertion rather than cooperative problem solving,” and (5) lawyers are “enemies of justice [who] are indifferent to justice and willingly lend their talents to frustrate it.”
The jokes of recent vintage portray (1) lawyers as opportunistic betrayers of the trust–not only of opponents, but also clients, partners, friends, and family, (2) lawyers as morally deficient, lacking normal human feelings and decency, (3) lawyers as objects of scorn, despised because of shared social contempt for them rather than for their deeds or character, and (4) celebration of the death or absence of lawyers, who constitute a social affliction.
Galanter uses the jokes and other data to illustrate his thesis that in recent decades, social and business elites have cultivated a “jaundiced view” of the legal system:
Our civil justice system was widely condemned as pathological and destructive, producing untold harm. A series of factoids or macro-anecdotes about litigation became the received wisdom: America is the most litigious society in the course of all human history; Americans sue at the drop of a hat; the courts are brimming over with frivolous lawsuits; resort to courts is a first rather than a last resort; runaway juries make capricious awards to undeserving claimants; immense punitive damage awards are routine; litigation is undermining our ability to compete economically. Although a litigious populace and activist judges were also blamed, lawyers, as the promoters, beneficiaries, and protectors of this pathological system, held pride of place among the culprits responsible.
In the concluding chapter of Lowering the Bar, Galanter considers whether his findings were unique to the United States and, after reviewing lawyer jokes and consulting with scholars and practitioners in Great Britain, Australia, India, the Netherlands, Germany, and Denmark, he finds that the legal culture and attitudes about lawyers are quite different in those countries.
In the United States, “[p]atterns of joking appear to track changes in the ubiquity and invasiveness of lawyers and law rather than a worsening of lawyer behavior . . . . In conjunction with growing resistance to regulation, taxes, and ‘big government’ starting in the late 1970s, many recoiled against what they viewed as the excessive reach and cost of law.”
Collectively, the lawyer jokes capture a deep American ambivalence about the law and lawyers. Galanter concludes:
Through this decentralized, endlessly receptive, and very expensive system, we attempt to pursue our multiple and colliding individual and social visions of substantive justice. We want our legal institutions to yield both comprehensive policy embodying shared public values and facilities for the relentless pursuit of individual interests. But we are suspicious of the concentrated authority required to provide the latter routinely to ordinary citizens. We prefer fragmented government and reactive legal institutions with limited resources, so that in large measure both the making of public policy and the vindication of individual claims are delegated to the parties themselves, who are left to fend according to their own resources. But lawyers, each attached to her own client, cannot fulfill the fatally divided promise of substantive justice.
The lawyer joke corpus is a form in which strands of popular and elite resistance to the law come together. Both are anxious whether the society and world we live in are just. We each know that in this or that familiar corner of things, wrongdoers prosper and there is lots of undeserved and avoidable suffering. We would like to think that nevertheless somehow it all adds up, that each gets his deserts, that there is a cosmic balance in which virtue is rewarded and evil punished. But there is a nagging feeling that the wicked flourish.
