A Nation Under Lawyers: How the Crisis in the Legal Profession Is Transforming American Society.

• Author: Wick, William A.

Essay review by William A. Wick, White & Raub, Indianapolis.

Despite enormous advances in science and medicine, the 20th century, brutalized by two world wars, the Holocaust, the Korean War, the body-count war in Vietnam, state-sponsored terrorism, drug violence and "ethnic cleansing," will surely go down in history as one that saw the tides of civilization recede, when tested by man's inhumanity to man. Small wonder then that the legal profession has not been immune to the general decline of religious convictions, moral standards and civility in American society.

The subtitle of Harvard Law Professor Mary Ann Glendon's penetrating critique of bench, bar and the law academy might well have been transposed to read: "How the Crisis in American Society is Transforming the Legal Profession." Yet the author is far too fair-minded and objective to blame the ills of her profession on society in general. Her message is that we did it to ourselves, and in ourselves we must find the solutions.

A Nation under Lawyers is more thoughtful than condemnatory in spirit. The author treads the peaks and valleys of the legal landscape with a light and graceful step, pausing to examine the areas of erosion and environmental damage with regret but without rancor, and her conclusions are refreshingly free of the intellectual arrogance that sometimes afflicts the teaching profession.

As Glendon's book compares past titans of the law with their modern counterparts, it seems that the quality of the law has declined inversely to the growth of the egos of the profession's most publicized members. We read of judges who assume the right to recreate the Constitution in their personal images; of Rambo-type litigators who seem to be chiefly bent on self-aggrandizement; and of law professors, notably the "Crits," who would "deconstruct" long-standing common law traditions as mere devices for perpetuating the dominance of the "Ups" over the "Downs."

"A government of laws and not of men"

This from the Massachusetts Constitution of 1780 was the stated goal of the separation of executive, legislative and judicial powers. It remained the unspoken objective of a similar separation of powers in Sections I of Articles I, II and III of the U.S. Constitution. As Chief Justice Marshall stated in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803): "The government of the United States has been emphatically termed a government of laws and not of men," a thought echoed by Justice Scalia in Morrison v. Olson, 487 U.S. 654, 697 (1988).

By contrast, Glendon points out that in recent times the concept of a "government under laws" has been dismissed as a "meaningless slogan" by legal academics from Cambridge to Palo Alto. As to the Supreme Court's view on the rule of law, she cites Planned Parenthood v. Casey, 505 U.S. 833 (1992), in which the majority opinion saw fit to lecture the American people on their duty to show "respect for the rule of law" by recognizing the Court as "invested with authority to decide their constitutional cases and speak before all others for their constitutional ideals." To which Justice Scalia responded in withering dissent: "The Imperial Judiciary lives,"(1)

Shifting the focus next to the many hundreds of thousands of practitioners who grace the law profession, Glendon describes how the traditional allegiance of lawyers to the rule of law has given way to self-serving portrayals of lawyers as vindicators of an ever-expanding array of claims and rights," lawyers who see nothing arms in advertisements like this: WE ARE PLEASED TO ANNOUNCE THAT WE OBTAINED FOR OUR CLIENT THE LARGEST EVER VERDICT FOR AN ARM AMPUTATION--$7.8 MILLION.

At a law school graduation ceremony almost 60 years ago, the law was described as a "system of wise restraints that make men free," in which graduating students were pronounced ready to participate and help shape.1 When our legal system is thus viewed, the transformation from a "government under laws" to a "government under lawyers" cannot be seen as a felicitous development. Those who talk incessantly of rights would do well to remember that the best safeguard of those rights is our "system of wise restraints" and not black-robed judicial pontiffs, Galahads of the plaintiffs' bar, or legal academics casting pearls from their lecterns.1

"Weighed in the balance and found wanting"

A member of the class of 1961 at the University of Chicago Law School, Mary Ann Glendon came under the spell of Professor Karl Llewellyn, a caricature of the typical law professor of his day, with rumpled tweed jacket, florid complexion and ferocious eyebrows. Llewellyn was at once a passionate devotee of the common law and a colorful showman. On one occasion, assuming a voice that sounded like the crack of doom, Llewellyn warned his class of the "handwriting on the wall" in the Book of Daniel: "Mene, Mene, Tekel, Upharsin," meaning, "You have been weighed in the balance and found wanting." As his audience listened in rapt silence, he then posed the question: "When you die (as you will, you know) will you have left the law better or worse than you found it?"

In a serious vein, Llewellyn exacted from each member of the class a solemn oath to strive in professional practice:

To work always with care, with a whole heart and with good faith;

To weigh my conflicting loyalties . . . with an eye to the good, less of myself than of justice;

To be at all times, even at personal sacrifice, a champion of due process, in court or out, and for all, whether the powerful . . . the helpless, the hated or the oppressed.

By contrast with these high standards, Glendon deplores the attempt in the current Rules of Professional Conduct to reduce professional ideals to a list of "do's" and "don'ts."

On the final day of his course, Elements of the Law, Llewellyn invited his class to join him in singing a ballad he had written, in part as follows:

Come gather and sing to the Common Law, Whose leaf and seed we are, Whether we live by the waggling jaw Or counsel afar from the Bar. . . .

Rowdy dowdee doodle-e-o in the Common Law tradition.

When just being a good lawyer was enough

Imbued with the ambition and idealism of a newly minted lawyer of her time, Mary Ann Glendon chose to enter big-firm law practice in Chicago with the predecessor of the firm now known as Mayer, Brown & Platt. The early 1960s were the waning days of the "golden age" of large-firm law practice, when senior partners took a patriarchal view of their young associates. Partners assumed responsibility for training the young lawyers in their firms and associates could reasonably anticipate that quality work would lead in due course to partnership.

It was widely considered "not nice to fire a lawyer." During the Depression of the 1930s, the lead partner in Boston's Ropes, Gray, Boyden & Perkins is reputed to have decreed, "No young man is to be let go," and to that end the senior partners waived their own compensation pending economic recovery. In the cases of substandard associates, the tendency was to play along with them until arrangements could be made for their departure with dignity. Glendon tells of a young associate in her firm who suffered from the strange malady that manifests itself in periodic outbursts of obscenity. This associate was given back-room research work for a couple of years until hopes of a cure faded and another position could be found for him.

Partnership was regarded in those days as a permanent arrangement--like a stable marriage. Partners tended to advance by seniority on the theory that the productivity of the "rainmakers" would be counterbalanced by the expert practitioners who handled the bulk of,the office work.

Client relationships, particularly between the big firms and their largely corporate clientele, tended to be stable and secure, and law firm income was reasonably predictable as a consequence. Trusted counsel maintained a substantial degree of professional independence. In a speech to the American Bar Association in the 1980s, Archibald Cox hearkened back to a time when counsel dared advise a client: "Yes, the law lets you do that, but don't. It's a rotten thing to do."(4)

Revenge of the "jealous mistress"

In a bygone day, when--perish the thought!--the law was a male-dominated profession and Glendon was one of only four women in her graduating class at...