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

• Author: Hazard, Jr., Geoffrey C.

In the title of her book, Professor Mary Ann Glendon(1) aptly appropriates a familiar self-congratulatory pronouncement: ours is a nation under law. In A Nation Under Lawyers Glendon presents us with a measured and thought-provoking assessment of the relationship between law, lawyers, and public policy in this country.

In its balance and sobriety, Glendon's analysis is in happy contrast with the tendentious denunciations and lamentations that have become standard fare in recent books about the legal profession.(2) Nevertheless, she ultimately portrays a profession in disarray, a disappointment and failure not only to the public but also to itself. Along the way she fashions pithy examples of our present condition, a number of which will be referred to below. In developing her thesis, Glendon departs from the critical technique commonly used when dealing with lawyers, which is to compare the deplorable present with an imagined past in which the profession was honorable, competent, diligent, public-spirited, and revered. One can find this imaginary version in writings as early as the fourteenth century in the Anglo-American tradition and in Cicero in the pre-Christian era.

Glendon does not romanticize the past. If there was some Golden Age of the profession -- some state of grace from which we have since fallen -- she does not attempt to identify it. This in itself makes the book a substantial contribution to the pursuit of a cleareyed and coherent interpretation of the functions of the legal profession in this country in an historical perspective.

Tocqueville first systematically noticed the salience of lawyers in the then-new American Republic.(3) He saw the salience of lawyers as an inherent characteristic of the democratic form of government, wherever democracy might emerge, rather than as a phenomenon local to the United States. Thus, he assumed that the legal profession would have a similar role in the emerging independent countries of Latin America, in the liberal movement in pre-Bismarckian Germany, and in Canada after its constitutional autonomy was established in 1867. It turns out that Tocqueville erred in this estimate. In no other political system based on personhood equality and suffrage, whether in Canada or Western Europe or elsewhere, does the legal profession play anywhere near as prominent a role in the affairs of government and business as it does here. Be that as it may, Tocqueville proved correct in his assessment of the significance of the legal profession in this country.

Ever since, it has been common ground to everyone observing the American scene that law and legal process are a fundamental element of our political system. The reasons, stated simply, are that (i) lawyers have a licensed privilege to participate in the judicial process and (ii) the judicial process comprises an important component of the political system in this country. It follows that a coherent interpretation of American politics requires a coherent interpretation of the role of the legal profession -- including not only lawyers but also judges.

The interconnection between the legal profession, the legal system, and the political order underlies the present book as well as Glendon's previous book, Rights Talk.(4) In that earlier work Glendon explored and deplored the fact that, in contemporary American political discourse, claims of social interest are characteristically translated into claims of legal right. These claims require a lawyer to make the translation from political to legal rhetoric -- into pleadings, proofs, legal contentions, constitutional arguments, and so forth. Their opponents then require an opposite number lawyer to present a countertranslation. Once the contentions have been advanced directly in court, a third lawyer, wearing a judicial robe, must settle upon an official translation. In an appeals court there are yet more lawyers wearing judicial robes. When the claimants advance their contentions in the legislature, still other lawyers -- legal staff -- draft the statutory language in anticipation of the arguments that will later arise in the courts, at which point lawyers for the disputing...