Michael Uhlmann*

All is not well in the state of American lawyering. Hardly a month passes without a book, report, or major speech dissecting this or that organ of the legal profession as if it belonged to a decaying body. Today it might be the worship of the billable hour or the continuing crisis in the tort system; yesterday it may have been the ideologization of law schools or the unreadable banality of law reviews; tomorrow it will be (yet again) a disturbing analysis of overcrowded court dockets or more tales from the crypt of judicial excess. Any such list of woes would of course differ from critic to critic, but one thing seems certain: the good news would be hard to find

Whether this condition represents a passing bout of dyspepsia or something more permanently debilitating, we do not know. We do know that the American bar has suffered through periods of self-critical ferment in the past yet lived to tell the tale, most notably in the closing decades of the nineteenth century when many of the bar associations prominent today first came into existence. Then, the rallying cry was for higher professional standards. Today, the rallying cry is for...well what? More rigorous professional standards, surely, but is that what the fuss is all about?

Not if you ask Mary Ann Glendon, Professor of Law at Harvard and author of A Nation Under Lawyers, or Anthony Kronman, recently appointed Dean at the Yale Law School, and author of The Lost Lawyer. Each has written a formidable critique of the legal profession, covering everything from law school curricula to the private bar and the judiciary. Each comes to the task with distinctive complementary virtues: Glendon is a realist tempered by philosophical reflection, Kronman a philosopher tempered by practicality. Glendon, who practiced law for some years and knows her way around commercial subjects, has a lively, conversational style. She is perfectly comfortable with the world of ideas, but her feet remain at all times earthbound. Kronman, who trained in philosophy before taking up law, is more overtly abstract and scholarly. His first home is the world of ideas, but he is no stranger to the everyday life of lawyers.

Despite these differences in temperament and perspective, both authors come to a substantially similar (and substantially pessimistic) conclusion: the profession is now at sea without rudder or compass. Its myths have lost the capacity to nourish, its heroes are hard to find and rarely celebrated, its goals can no longer be easily stated. Its training schools seem to teach cynicism and self-interest more effectively than they do prudence or professionalism; its judges are increasingly mired in their own bureaucracies (Kronman) or prone to second-guess the political branches (Glendon); its private practitioners seem preoccupied with material rewards, celebrity, and the trappings of power. What is worse, neither Glendon nor Kronman thinks much of this will change anytime soon, nor does either have a handy kit bag of remedies.

Mary Ann Glendon's A Nation Under Lawyers: How the Crisis in the Legal Profession Is Transforming American Society is an eloquent and spirited tribute to the craftsmanship of the common-law tradition, a lament for its passing, and a plea for its restoration. Along the way, Professor Glendon writes love letters to Holmes and Cardozo and the Hands, and to the now all-but-forgotten Karl Llewellyn (whose virtues feature prominently in the Kronman book as well). She also proffers trenchant observations on tendentious academic scriveners, the inanity of much that is published in law reviews, the personal and constitutional vanity of overreaching judges, and the maniacal pursuit of the billable hour by modern-day lawyers. This is a tough-minded, practical, and comprehensive assessment of contemporary lawyering, written by one familiar with the foibles she surveys. In less competent hands, so broad an indictment might mark its author as a carping critic, but Glendon is anything but a scold. Her concern for the profession she entered a generation ago is apparent on every page. So is her love of craft--and her impatience with shoddy work, humbug, and vainglory.

Professor Glendon knows exactly what Burke meant when he said that the study of law broadens the mind by narrowing it. She also knows that law is a trade, albeit a trade affected with a public interest. Lawyers would be a lot happier (and society much better off), she implies, if they dropped some of their highfalutin pretensions--whether for moneymaking, fame, or power--and instead took greater pride in delivering useful services for their clients. As things stand today, Glendon suggests, lawyers tend to feel dissatisfied unless they're making a million bucks, acquiring reputation as courtroom killers, or reconstructing society to accord with some textbook formula. Too many movies taken too much to heart, perhaps. A more likely suspect, Glendon says, are the faculties of many law schools, which breed cynicism about the rule of law while denigrating the virtues of private practice.

Glendon's critique of the legal profession is in some respects a continuation of themes she broached in her widely praised 1991 book, Rights Talk: The Impoverishment of Political Discourse. There, she lamented our diminished sense of political community and the degeneration of constitutional debate into a feckless logomachy about whose rights trump whose. Although the narrow focus of her new book is what lawyers think about themselves and their chosen occupation, its broad theme is the self-denigration of the legal profession and what that means to a nation whose roots are uniquely intertwined with the rule of law. Appropriately enough, Professor Glendon begins with Tocqueville's praise of lawyers and lawyering in the early Republic. Lawyers were, he said, the closest thing to an aristocratic class that he had observed in America. They brought continuity and stability to a society whose tendencies were otherwise turbulent and centrifugal. Tocqueville was acutely aware--in ways that we are not--of the ancient skepticism concerning democracy. According to this view, democratic regimes were preoccupied with short-term, venal interests and inclined to volatility and envy. For these reasons, they tended to be weak and often short-lived: if they did not crumple from within, they were apt to be overrun from without. When the Framers undertook to create, in James Madison's words, "a republican remedy for the diseases most incident to republican government," they believed that the rule of law as solemnly embodied in the Constitution could overcome the ancient prejudice against the deficiencies of popular government. As Martin Diamond once put it, they believed that a properly constituted government could make democracy safe for the world.

This emphatic reliance on the rule of law in the American regime necessarily enhanced the social and political dignity of the lawyer, which is one reason why Tocqueville hoped that lawyers would act as ballast for the democratic ship of state. For the better part of our history, Glendon argues, the best lawyers were esteemed not merely because they were clever rhetoricians or wealthy pillars of the community, but because they exercised a conspicuously important public trust as steward of the rule of law. To be sure, not all lawyers thought or acted in such high-minded terms, but the ideal was proclaimed by school and bench and bar alike. There were scalawags aplenty, but they wouldn't have dreamed of defending their behavior in public, nor would their cunning have been acclaimed in the popular media. This older dispensation, however, appears to have gone the way of parchment and quill. The new order, says Glendon, is represented by a series of propositions utterly inconsistent with the earlier tradition (p. 6):

that we live under a rule of men, not law; that the Constitution is just an old text that means whatever the current crop of judges says it does; that all rules (including the rules of professional ethics) are infinitely manipulable; that law is a business like any other; and that business is just the unrestrained pursuit of self-interest.

The remarkable thing, says Glendon, is not that these opinions are new (they are not), but that they now have a sizable following and are openly advanced and defended by many leading lights of the law.

The world of private practice has absorbed the new doctrine all too well. Professor Glendon, who practiced in Chicago for some years before turning to teaching, has a good feel for life in the modern firm and how it has changed over the past generation. She eschews the overworked distinction between "trade" and "profession" which has dominated public discussion of late and relies instead on Jane Jacobs' distinction between "raider" ethics (which prize combative strength and cunning) and "trader" ethics (which prize conciliation and reasoned discourse). Acknowledging that the law has always had its share of both types, Glendon worries that the raider mentality now exercises a talismanic hold on today's practitioners. The result has been in many cases "a mutually destructive war of all against all" (p. 286). She notes the moral ambivalence that so often attends discussions of professional ethics today, throwing the lawyer back upon his own instinct, which in turn seldom moves beyond an unreflective calculation of his own self-interest. But where self-interest reigns supreme, in what is a lawyer to vest personal pride? Alas, it seems to be litigation, the pursuit of billable hours, and the celebration of politically fashionable causes. These goals have been achieved, she says, "at the expense of the useful services that have always given lawyers in the aggregate their best chance to achieve personal satisfaction while contributing to the well-being of their fellow citizens" (p. 108).

Professor Glendon next turns her attention to the judiciary, and in three short essays that make one yearn for more, she excoriates those latter-day solons whose personal vanity is exceeded only by their sense of constitutional plasticity: nary a social problem in sight, they presume, that can't be cured by a nattily inventive judicial decree. By way of contrast, Glendon offers the models of Holmes, Cardozo, and Learned Hand who, for all their genius, practiced a kind of professional humility that is in short supply among judges today. She has much to say about the presumption and immoderation of judicial excess today, and she says it with commendable brevity. Justices Kennedy and Brennan here meet a stiletto that is wielded with devastating effect.

Having analyzed the bench and the bar, Professor Glendon turns a gimlet eye upon the academy. Here she laments the declining prestige of the legal treatise (once the most honored product of faculties and the staple of law reviews) and the rise of "one-sided advocacy in the guise of scholarship" (p. 208). She traces the origins of this new "scholarship" to its relativist roots (p. 209).

Many legal academics still share with their colleagues in other disciplines the scholar's commitment to pursue knowledge wherever it leads and whatever its unpopularity. But for a growing coterie of professors in the human sciences, including law, that ideal is simply meaningless. In some quarters, notions of knowledge, objectivity, and truth have come under heavy attack. If truth is whatever you want it to be, or the will of the stronger, the distinction between scholarship and advocacy collapses. If all law is radically indeterminate, then all legal scholarship becomes a form of advocacy.

Over time, teaching based on such beliefs breeds cynicism about the rule of law and therefore indifference to its defense. It also tends to undermine that indispensable sense of craftsmanship which makes the pursuit of law both dignified and pleasurable. So long as such doctrines reign in our schools of law, Glendon argues, we cannot hope to cure the ills of the bar. In the end, what lawyers think about themselves and their profession turns out to be decisively important in determining what they do. And if they think the rule of law is but a fiction, ultimately indistinguishable from the caprice of men, their actions will follow suit. In a society uniquely dedicated to and dependent upon the rule of law, such a change is not only sad, it is dangerous.

Yale Dean Anthony Kronman would not disagree. His is not a happy tale, as the title of his book suggests: The Lost Lawyer; Failing Ideals of the Legal Profession. Kronman believes that the profession has lost any coherent understanding of what it once was or could be, other than a trade organized for profit. The profession, he says, "now stands in danger of losing its soul" (p. 1). For the better part of two centuries, he argues, that soul had been decisively formed by a particular set of aspirations and values. Chief among these was the belief (pp. 2-3)

that the outstanding lawyer--the one who serves as a model for the rest--is not simply an accomplished technician but a person of prudence or practical wisdom as well... .To those who shared this view it seemed obvious that a lawyer's life could be deeply fulfilling. For the character-virtue of practical wisdom is a central human excellence that has an intrinsic value of its own. So long as the cultivation and exercise of this virtue remained an important professional ideal, lawyers could therefore be confident that their work had intrinsic value too. But in the last generation this ideal has collapsed, and with it the professional self-confidence it once sustained.

The old dispensation expressed itself most emphatically, says Kronman, in the ideal of the "lawyer-statesman," the practitioner who was at once a skilled technician, a public-spirited citizen and, above all, a paragon of practical wisdom.

Kronman points out how modern philosophy has devastated the rationale underlying the lawyer-statesman ideal. The greater part of The Lost Lawyer is devoted to the reestablishment of that ideal on what Kronman considers to be philosophically defensible grounds. Readers will differ on whether he is successful, but it is remarkable that the dean of a major law school should be cognizant of such matters at all; it is even more remarkable that he tries to do something about it. The essence of his argument is that the good lawyer must, in some significant sense, also be a good man or woman. This understanding, Kronman says, was once widely accepted implicitly if not explicitly, but is now under attack almost everywhere.

Of the law schools, Kronman observes that they have long since abandoned the effort to inculcate practical wisdom in their students. If anything, faculties tend to be downright hostile to the idea, if they understand its importance at all. Kronman lays almost equal blame at the door of two seemingly disparate trends in modern law curricula: the law and economics movement and the critical legal studies movement. Despite their ideological differences, both schools share the belief that law is essentially a subsidiary or derivative form of knowledge. In order to give an adequate account of themselves, they refer to a higher, architectonic body of knowledge so as to explain and justify their existence. In the one case, that higher science or understanding will be found in economics; and in the other, in the gender, psychological, race, or class preferences that are said to constitute the "real" basis of law. Both schools are seen by Kronman as latter-day extensions of the effort, begun in the nineteenth century, to establish a foundation for law akin to that which underlay the natural sciences.

Here Kronman is at his best. His description of how the case method came to be the more or less exclusive model for law instruction is masterful, as is his discussion of the legal realists and their various progeny. The reader will not find anywhere a more lucid or fair-minded discussion of either topic or of how the modern law curriculum came to be what it is. Ultimately, Kronman traces the intellectual fashions of modern law back to a common ancestor, the seventeenth-century more geometrico of Thomas Hobbes and, in particular, his Dialogue between a Philosopher and a Student of the Common Laws of England. There Kronman finds the intellectual wellspring of the effort to replace the common-law method of reasoning (which relies inter alia on custom, instinct, precedent, and prudence) with a more "scientific" understanding. Kronman is precisely on target here. His discussion of the process by which Hobbes's argument later informs the jurisprudence of Bentham, Austin and, in turn, Langdell, the realists, and their latter day descendants is a rich and subtle argument that will repay close reading.

Like Glendon, Kronman is worried about the curious detachment of law schools from the everyday experience of practicing lawyers. The tension between theory and practice has always marked the boundary between school and what came after, but never has it been so sharp.

On the subject of private law practice, Kronman, like Glendon, focuses primarily on life in the large corporate firm. Both recognize the limitations presented by examining so small a group, but it is true that large firms exercise disproportionate influence both inside and outside the profession. It is also the case that much more is known about their mores than about the rest of the bar. In any event, Kronman's simple and compelling point is that even as the law schools have moved toward ever more obscurantist academic doctrinalism, so the large firms have undergone a structural revolution of their own. The result in both cases is the same: neither seems to have much room for the ideals represented by the lawyer-statesman. No one who has been at the bar for a dozen years or more could doubt this. A large firm lawyer up until 1980 or so would have had much in common with his predecessors of one, two, or perhaps even five decades ago. The changes would have been dramatic in many aspects of his practice, from billing arrangements to the status and role of associates, but an enduring substance beneath the change would have been recognizable across the decades.

The pace and character of change in recent years, however, have no analogue in this century. Among the innovations noted by Kronman as having great impact are the dramatic increase in firm size and in the number of multiple-office firms; the gradual disappearance of the generalist and his replacement by specialists of increasingly narrow perspective; a remarkable shift in the character of firm-client relationships (away from long-term and toward transactional engagements); and a generic weakening of the ties that once bound an attorney to his firm and the firm to him. Taken together, these and other changes over the past generation constitute a revolution in the world of private practice. Kronman's discussion of this sea change, although rhetorically judicious, paints an alarming picture of life in the large corporate firm. It not only casts doubt on the survivability of the lawyer-statesman ideal, but questions whether (if trends continue) large-firm practice will be distinguishable from a hundred other activities whose primary propose is to make money.

In the final section of its critique, The Lost Lawyers turns to the courts. The dramatic increase in caseload in recent years, Kronman says, has reoriented "the entire professional culture in which judges work," leading to a "depreciation of the lawyer-statesman ideal similar to the one that has taken place in ...teaching and practice" (p. 320). The consequence is not only a heavily bureaucratized judiciary, but judges who willy-nilly start to think in terms of efficiency rather than of wisdom. Kronman is no enemy of efficiency, to be sure, but he does worry that something vital to the rule of law dies when efficiency becomes the summum bonum. That vital something is what he calls "deliberative imagination" (p.325), the ability of the judge to entertain a point of view different from his own without actually embracing it. This virtue, which he earlier described as also the distinguishing feature of the prudent practitioner, constitutes the essential ingredient of good judging as well.

Kronman also laments the decline in collegiality among judges, especially at the appellate level, and the increasing tendency to file separate concurrences and dissents. He zeroes in on "the culture of the clerks," whom he rightly blames for "the increasing length of opinions, obsessive footnoting and heavy use of legal jargon," "the growing use of carefully structured multipart tests," and the "increasing reliance on the rhetoric of balancing" (p.348). All of these features, he argues, are the products of excessive zeal of timidity born of inexperience. Once upon a time, Kronman says, these understandable vices of youth could be monitored and corrected by gray-haired tutors. But we no longer have the assurance that the appropriate instruction will take place (p.352):

contemporary legal theory has a strong anti-prudentialist bias that has begun to seep into the classroom too. So long as law students continued to read cases written by older judges who understood the importance of prudence in their work, this bias was counterbalanced or offset. But that counterbalance no longer exists. Indeed, in the opinions they study today, law students are more likely to find the outlook of their teachers confirmed and strengthened rather than opposed.

These opinions, Kronman goes on to say, are characterized by the same analytical spirit that informs the work of many academic lawyers. It is a vicious cycle. "In this sense one might say that in America today the moral process of legal education -- of the old teaching the young -- has been interrupted, or more precisely, that it never even begins" (p. 352).

Despite his sharp and useful criticisms of the present-day judiciary, Kronman nevertheless shies away from the implications of his own argument. He seems oblivious, for example, to the possibility that judges gratuitously involve themselves in far more business than the judiciary can intelligently handle. For a work that is otherwise meticulous in its scrutiny of judicial shortcomings, Kronman's book is strangely silent on the growth of judicial power in our time and the ways in which that growth diminishes the idea of limited government and thereby the rule of law.

In broad theme, Glendon and Kronman weave a credible if depressing tale and for the most part sustain it with apt and thoughtful evidence. Given the comprehensive quality of their assessment, it is somewhat surprising that neither really addresses head-on the issue that is otherwise present (for the most part silently) on almost every page of both books. I refer to the deluge of law in the past thirty to fifty years. There is no better word to describe what has happened in every field of law, public and private, and at every level of government. We are positively drowning in the stuff, which is not quite the metaphor the poets have in mind when they sing praises to the rule of law.

Such are, it will be argued, the inevitable consequences of the modern administrative state. This is only partly true. Is it really necessary, for example, to produce (as OSHA apparently did) some twenty-odd pages of specifications defining the proper form of a ladder? In this (and one could adduce countless other examples), the modern state resembles nothing so much as the legendary regimes of the Medes and the Persians, known throughout antiquity as the model of tyrannical caprice. Any resemblance between these bureaucratic concoctions of the welfare state and the rule of law celebrated by Glendon and Kronman is at best coincidental. When they sing the praises of common-law reasoning (and they do so eloquently), they note its respect for precedent, its capacity to accommodate change, its civilizing effect upon those over whom the rules operate, its instructive discipline upon practitioners, and in general its appeal to the rational faculties.

Such virtues are not easily detected, however, in the commands of behemoth government, which even when it happens to be right cannot help behaving clumsily or arbitrarily. That, in turn, may explain in part why modern-day practitioners tend to be ignorant of or indifferent to those habits of mind and heart extolled by Glendon and Kronman. The flood of law also helps to explain the disappearance of the prudent generalist who is prized for judgment, and the rise of narrow specialist, who is prized for technique.

In short, the rediscovery of the deliberative qualities extolled by Glendon and Kronman may require that we first reduce the size of government.

One last word. As with any general treatment of so large a subject, one might take issue with the authors' handling of particular subthemes: Kronman, for example, is splendid in describing the bureaucratization of the courts, but oblivious to the dangers presented by judicial overreaching; Glendon is at times unrealistically wistful in her evocation of the virtues of law practice; both overstate the actual influence of the lawyer-statesmen in the past. But these and similar minor defects do not detract from the authors' larger and more important point, which is that the American bar today is almost entirely bereft of a sustaining credo through which it can understand and justify itself. On that score, Glendon and Kronman have delivered a valuable and long overdue message. Let us hope someone is listening.

*Michael Uhlmann is a Fellow at the Ethics and Public Policy Center. This article is reprinted from the 1995 volume of The Public Interest Law Review (National Legal Center for the Public Interest).