Literature, lawyers and liberty
Remarks to the Chartered Institute of Arbitrators Australia Masterclass
I was thinking recently about the place of arbitration in literature, so I did some research. In fact, there is not a lot to draw from, in particular by comparison with what there is about the judicial system and judges.
There is of course the famous story of King Solomon from the Old Testament’s Book of Kings.[1] Two prostitutes who lived together each had a baby son. The one baby died. His mother claimed the other as her own and the women wrangled. They brought their dispute before King Solomon, each claiming the child as their own and the dead child as that of the other. Solomon called for a sword and ordered that the baby be cut in two, with a half given to each of the women.
[26] Then the woman whose son was living spoke to the king, for she yearned with compassion for her son; and she said, “O my lord, give her the living child, and by no means kill him!” But the other said, “Let him be neither mine nor yours, but divide him.”
[27] So the king answered and said, “Give the first woman the living child, and by no means kill him; she is his mother.”
[28] And all Israel heard of the judgment which the king had rendered; and they feared the king, for they saw that the wisdom of God was in him to administer justice.[2]
But on reflection that seemed to me to be more likely a case of the exercise of sovereign authority rather than the consensual authority enjoyed by an arbitrator, so I looked some more.
I came across a particular incident in the wonderful adventures of Don Quixote and his sidekick Sancho Panza.[3] They had been riding out from Barcelona when, on the fifth day, they came upon a crowd of people outside an inn enjoying themselves because it was a fiesta day. A farmer called out to them and asked that as people unknown to the parties they settle a dispute. It was explained that one of the villagers, a man weighing 20 stone, had challenged his neighbour, who weighed 9 stone, to a race over 100 yards each carrying equal weight. The large man insisted that the small man should carry iron weighing 11 stone so that they would each carry the same weight.
Don Quixote allowed Sancho Panza to decide the dispute, and the villagers waited “with mouths agape”. Sancho ruled that the large man should “trim, prune, lop, polish and smooth” 11 stone of his body away so that the two men would be able to race on equal terms.
‘By all that’s holy,’ said a farmer who heard Sancho’s verdict, ‘this gentleman has spoken like a saint and given judgment like a canon! But it’s certain that the fat man won’t part with an ounce of his flesh, let alone 11 stone of it.’
‘It will be best for them not to race at all,’ commented another, ‘and then the thin man won’t be ground into the dust by the iron nor will the fat man lose any flesh – so let’s spend half the wager on drink and take these gents to the tavern with the best wine.’
The farmers were amazed at having seen such a strange figure and sampled the shrewdness of his servant. One of them said: “If the servant’s that clever, what must the master be like! I bet if they go and study in Salamanca they’ll be high court judges in a brace of shakes.”
These stories got me thinking about the role of lawyers in the resolution of disputes, and I was reminded of the infamous words of Dick the Butcher to Jack Cade and his rebels in Shakespeare’s Henry VI, Part II: “The first thing we do, let’s kill all the lawyers.”[4]
Shakespeare’s populist antagonists sought to upend the institutional foundations of civil society, and they recognised the invaluable role of lawyers in defending those foundations. In Walters v National Association of Radiation Survivors,[5] Justice John Paul Stevens in his dissent referred to “the function of the independent lawyer as a guardian of our freedom.”[6] In doing so, his Honour footnoted the following:[7]
That function was, however, well understood by Jack Cade and his followers, characters who are often forgotten and whose famous line is often misunderstood. Dick’s statement (“The first thing we do, let’s kill all the lawyers”) was spoken by a rebel, not a friend of liberty. … As a careful reading of that text will reveal, Shakespeare insightfully realized that disposing of lawyers is a step in the direction of a totalitarian form of government.
No one appreciates that more than every aspirant, and actual, authoritarian. If we cast our attention across the Pacific, we see a concerted and wide-ranging campaign, if not literally to kill the lawyers, at least to bring the legal profession to heel.
It started almost as soon as the new administration was installed.
In February 2025, several attorneys from the Washington DC firm Covington & Burling had their security clearances revoked and the firm’s federal contracts were put under review. The offence: assisting special counsel Jack Smith, who oversaw investigations into the President’s involvement in January 6 and the handling of classified documents.[8]
In March, that was followed by an executive order against Perkins Coie to similar effect. The offence: the firm’s previous representation of Hillary Clinton during the 2016 campaign and its DEI initiatives.[9]
There has been a flurry of executive orders against other commercial law firms airing personal grievances held by the President. Typically, the firm and its attorneys have been involved in causes adverse to the President, including the various lawsuits, past and present, against him.
Some – Perkins Coie, WilmerHale, Jenner & Block and Susman Godfrey – have successfully obtained injunctive relief against the executive orders.[10] However, Paul Weiss entered into a deal with the administration to have the order against it rescinded. As part of the settlement, the firm agreed to commit US$40 million in pro bono services in support of causes approved by the administration, to end DEI policies, and to disavow a partner who worked on a criminal investigation into the President in New York.[11] A flavour of the approved pro bono causes is in executive order 14288, providing for the use of private-sector assistance in liability actions against law enforcement officers.
A large number of other major firms have pre-emptively entered into deals with the administration, likewise promising pro bono support and ending DEI initiatives, in order to forestall executive orders against them.[12] This pre-emptive compliance is an obvious dereliction of duty. I will return to this point.
Lest it be thought that the administration has only been looking outward, it has also been busy purging government lawyers. I will not go into the details. It suffices to record that hundreds if not thousands of government lawyers, including leading prosecutors, have been purged from their jobs for doing their jobs. Of course, the appointment of compliant, even sycophantic, lawyers is yet another chapter.
District Judge Beryl Howell in the US District Court for the District of Columbia earlier this year evidently had Shakespeare in mind when writing her opinion in Perkins Coie LLP v US Department of Justice.[13] Issuing a permanent injunction against the executive order against Perkins Coie, her Honour began with the following:[14]
No American President has ever before issued executive orders like the one at issue in this lawsuit targeting a prominent law firm with adverse actions to be executed by all Executive branch agencies but, in purpose and effect, this action draws from a playbook as old as Shakespeare, who penned the phrase: “The first thing we do, let’s kill all the lawyers.” … Eliminating lawyers as the guardians of the rule of law removes a major impediment to the path to more power. …
Following an historical excursus, Judge Howell concluded: “The instant case presents an unprecedented attack on these foundational principles … sending the clear message: lawyers must stick to the party line, or else.”[15]
The footnote to this passage is particularly damning.[16] It refers to the compliance of other targeted law firms in having agreed to terms with the White House. Yet such conciliation only serves to undermine a “fundamental premise of the rule of law”; that overreach by the State will be met with adversarial action by lawyers. As her Honour explains, “only when lawyers make the choice to challenge rather than back down when confronted with government action raising non-trivial constitutional issues can a case be brought to court for judicial review of the legal merits.”
This brings us back to the “political tragedy” of pre-emptive compliance. A failure to challenge is the danger that all lawyers in the profession must be vigilant against. It is what Yale historian Timothy Snyder derides as “anticipatory obedience”,[17] because:
Most of the power of authoritarianism is freely given. In times like these, individuals think ahead about what a more repressive government will want, and then offer themselves without being asked. A citizen who adapts in this way is teaching power what it can do.
The vigorous independence of the legal profession is fundamental to the rule of law and the defence of liberty; a cowed and subservient legal profession clears the path for authoritarian rule.
There are many strands to the independent legal profession’s contribution to the maintenance of the rule of law. Such a profession ensures that all individuals, including those challenging the state, can access legal advice and representation without interference or intimidation.
Lawyers are often the only safeguard between the power of the state and the rights of the individual. Without independence, lawyers cannot properly perform this role – particularly in politically sensitive or unpopular matters. Independence – both from government and from undue corporate or political influence – ensures lawyers can act with courage in representing clients, including those who are vulnerable, marginalised or in conflict with authority.
History shows that when legal professions are co-opted, regulated to the point of submission, or forced to align with government policy, the rule of law collapses into rule by law. A truly independent legal profession serves as a check on the erosion of democratic norms and arbitrary exercise of power.
It is also only a truly independent legal profession that can be the training ground for judges with the requisite independence of mind and fidelity to the abiding values underpinning the rule of law.
I am not speaking theoretically here. I grew up and studied in an authoritarian society where the legal profession failed in its duty; where it was cowed by the Apartheid establishment. As David Dyzenhaus has documented in his remarkable little book Judging the Judges, Judging Ourselves,[18] both branches of the profession failed quite dismally in standing up against immoral laws and patent injustice. But within the profession, and even on the bench, there were people of enormous courage and integrity who fought the good fight. Their example should serve as a shining light of inspiration, and courage, for lawyers practising in authoritarian times. Inspiration and courage also to resist pre-emptive compliance.
The anticipatory obedience of many exceedingly well-heeled and well-advised law firms in the US is alarming. This is especially perverse where their professional independence is not only under direct challenge, but the merits of any case opposing an adverse executive order would be strong. As the Editorial Board of The Washington Post put it: “If they wouldn’t fight for themselves, would they zealously advocate for their clients – especially if their clients’ interests were at odds with the administration’s?”[19]
If there is one takeaway from the situation unfolding in the US for us all, it is that the paramount duty of the lawyer is to act. It is only by acting that lawyers can ensure the rule of law and prevent the misuse of law. Were it not so, there would be little reason for Jack Cade and those of his ilk to kill all the lawyers first.
The responsibility lies with each of us. Arbitration lawyers no less than any others.
* Judge of the Federal Court of Australia. I acknowledge the assistance of my Associate, Seung Chan Rhee, in preparing these remarks. Errors and opinions are mine alone.
[1] 1 Kings 3: 16-28.
[2] 1 Kings 3: 26-28, New King James Version.
[3] Miquel de Cervantes Saavedra, The Ingenious Hidalgo Don Quixote de la Mancha (Penguin Classics, 2001), translated by John Rutherford, Part II Chapter LVXI.
[4] Act IV, Scene II, line 75.
[5] 473 US 305 (1985).
[6] At 371.
[7] At fn 24.
[8] White House, Memorandum, 25 February 2025 <https://www.whitehouse.gov/presidential-actions/2025/02/suspension-of-security-clearances-and-evaluation-of-government-contracts/>.
[9] White House, Memorandum, 6 March 2025 <https://www.whitehouse.gov/presidential-actions/2025/03/addressing-risks-from-perkins-coie-llp/>.
[10] Mike Scarcella, ‘Trump Administration Appeals Blocking of Executive Order against Law Firm Perkins Coie’, Reuters (online, 1 July 2025) <https://www.reuters.com/legal/government/trump-appeals-ruling-blocking-executive-order-against-law-firm-perkins-coie-2025-06-30/>.
[11] Justin Henry, ‘Trump Rescinds Paul Weiss Order as Firm Pledges $40 Million’, Bloomberg Tax (online, 21 March 2025) <https://news.bloombergtax.com/daily-tax-report-international/trump-rescinds-executive-order-that-targeted-paul-weiss-law-firm>.
[12] Matthew Goldstein, ‘Five More Big Law Firms Reach Deals with Trump’, The New York Times (online, 11 April 2025) <https://www.nytimes.com/2025/04/11/business/trump-law-firms-kirkland-ellis-latham-watkins.html?unlocked_article_code=1.-04.V0qN.L6cKsxzOIoNM&smid=nytcore-ios-share&referringSource=articleShare>.
[13] FSupp 3d (DC, 2 May 2025).
[14] At 1.
[15] At 2.
[16] At fn 3.
[17] Timothy Snyder, On Tyranny (Penguin, 2025) ch 1.
[18] David Dyzenhaus, Judging the Judges, Judging Ourselves: Truth, Reconciliation and the Apartheid Legal Order (Hart Publishing, 1998).
[19] ‘Law Firms Benefit from Fighting Trump Attacks. Those Who Caved Suffer’, The Washington Post (online, 14 June 2025) <https://www.washingtonpost.com/opinions/2025/06/14/law-firms-trump-appeal/>.
