Reawakening the Law

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The legal system is designed not to prevent injustice, but to cure it after the fact, or restore what is referred to in lawyering terminology as “the status quo ex ante.” This design dates back millennia and reflects Biblical values of an “Eye for an Eye” or “Tit for Tat” and the notion that in order to deter wrongdoing we must punish it or provide restitution. However, research from victims’ rights advocates shows that violence only begets more violence, leading to repeated cycles of injustice. While legal scholars have sought to remedy these cycles through pointing to structural and doctrinal problems with the courts, lawyers, the federal government, private business, and capitalism itself, none of their proposed solutions offers a means to break the cycle and to prevent injustices rather than “remedying” them after the fact. This Article calls for the emergence of a new form of lawyering designed not to “cure” injustice but to prevent it. To do so, we must reawaken the law to strategies based on win-win, or nonzero- sum, solutions and new forms of cooperation. While there is a robust literature on cooperation, the missing insight is that what is in the best interest of the individual and of society are aligned in the long run and in the proper environment. But recent pioneering work in computer science, evolutionary biology, and economics shows that pure cooperation can and does exist in theory and in nature. Cooperation also exists all around us among the pandemic and protests in communities aimed at promoting the wellbeing of their members—communities that are self- aware and self-conscious and focus on acknowledging the fundamental interconnectedness of their members. This Article examines the features for flourishing these communities share and provides an artist’s sketch to transform law schools into incubators for social change. It calls on our legal educators to see the deep harmony, beauty, and joy amidst the chaos and to draw on it to create a new scholarship and activism that will one day pave the way for a new legal system based not on punishment and restitution, but on nonzero-sum or win-win solutions.