University of Southern California Gould School of Law
In the aftermath of Kaye, Scholer, Fierman, Hays & Handler's settlement with the government,1 two versions of the story have emerged. The most popular version features the government actors as villains-villains with new and lethal weapons at their disposal, willing to enforce law that has leapt full grown from their heads like Zeus' child, law of which the rest of the civilized world was unaware. The counterstory, less often told but not without adherents, casts the lawyers of Kaye, Scholer as the villains: unscrupulous and greedy lawyers ready to break any rule, defile any process, twist any truth on behalf of their even more unscrupulous and greedy client.
I find neither story terribly satisfying and will offer a third. My story highlights the roles played by two institutions, the organized bar and the courts, which are merely bit players in the stories told by others. In the two standard stories, the bar shows up, if at all, as either a Greek chorus lamenting the government's brutish tactics or an unknown force offstage that may or may not be as bad as the crooked Kaye, Scholer lawyers.4 The audience is left to wonder. The courts appear only in a dream sequence sometimes included in the government-as-villain tale. In the dream, Kaye, Scholer fights back, and the judges, like white knights in shining armor, step in to help defeat the evil empire and preserve liberty.
My story asks you to see Rosencrantz and Guildenstern as central characters, not because it might be amusing to do so, but because they have earned that distinction. The bar and the courts deserve more blame than they have thus far received.
Susan P. Koniak,
When Courts Refuse to Frame the Law and Others Frame It to Their Will
Southern California Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/2130