The Lost Lawyer: Failing Ideals of the Legal Profession.

• Author: Alfieri, Anthony V.

INTRODUCTION

Anthony Kronman's(1) new book, The Lost Lawyer: Failing Ideals of the Legal Profession, is an eloquent and impassioned work of scholarship. It makes an important contribution to the growing body of literature devoted to the study of the legal profession.(2) Indeed, at first sight, it presents claims that carry significant empirical and normative appeal. Yet, this appeal quickly wanes, leaving troubling Aristotelian claims of elite lawyer tradition-bound wisdom in judgment.(3)

Kromnan accords tradition an authority that holds "inherent and direct" sway over the practice of law.(4) The attitude of traditionalism obliges lawyers to take up the "custodial" work of conserving past ideals in the manner of a "trusteeship."(5) At stake is the ideal of lawyer wisdom manifested in good judgment. The traditionalist understands this ideal -- and its preservation -- to be essential to professional "meaning and dignity."(6)

Kronman's traditionalist thesis is that the caliber of a lawyer's mind and the virtue of his character determine the quality of his deliberative judgment.(7) The higher the caliber of mind and the greater the virtue of character a lawyer possesses, the more outstanding his judgment. On its face, this proposition seems benign. It becomes pernicious, however, when applied to deify the mind and character of elite private lawyers. Kronman, in defending this proposition, appears to suggest that outstanding judgment is virtually the sole province of white, male, large-firm private lawyers. Furthermore, he intimates that these lawyers constitute a kind of natural aristocracy marked by a superior inheritance of intellectual discipline and moral virtue. This essay considers whether Kronman's defense of elite lawyer deliberative judgment condemns the worthiness of his project.

Kronman's project is redemptive; he seeks to turn back the "apocalyptic" forces of nihilism, commerce, and irresponsibility that have beset the legal profession for more than a century (p. 1). His strategy of deliverance rests upon the recovery of a nineteenth-century artifact: the ideal of the lawyer-statesman.(8) This ideal consists of four elements: practical wisdom, prudentialism, craft, and public service. Kronman intervewaves these elements throughout the seven chapters of The Lost Lawyer.(9) The chapters map both philosophical and sociological paths to the "gloomy conclusion" that the lawyer-statesman ideal is dead (p. 7). Unlike Kronman, I do not mourn the death of the lawyer-statesman. In law, artifactual death is liberating. It spurs new sociolegal configurations and meanings and, thereby, provides an opportunity to reconstruct both the form and the substance of our ideals. Thus, we should not mourn the death of the lawyer-statesman ideal; rather, we should contest its constitutive claims in order to reconstruct the meaning of professionalism.

This essay follows the structure of Kronman's main claims. Part I examines practical wisdom in the context of counseling, advocacy, and judging. Part II analyzes prudentialism in the setting of legal education and scholarship. Part III assesses craft and public service in the circumstances of large-firm corporate law practice.

1. PRACTICAL WISDOM

   Kronman begins The Lost Lawyer with prophetic "urgency" (p. 6). There is, he proclaims, a "crisis" afflicting the American legal profession (p. 1). It is an inward "crisis of morale," pride, and selfconfidence, a "collective identity crisis" so grave that it threatens the soul of the profession (pp. 2, 165, 354). He finds evidence of this "spiritual crisis" in the profession's intensifying "doubts about the capacity of a lawyer's life to offer fulfillment."(10) Kronman's threshold assumption is that the practice of law affords, or rather should afford, lawyers a source of "intrinsic" human fulfillment(11) and society a supply(12) of wise statesmen.(13) He laments the "demise" of the ideal of the lawyer-statesman realized in the character of "outstanding" lawyers such as Abraham Lincoln, Earl Warren, Robert Jackson, Anthony Kennedy, Sandra Day O'Connor, and David Souter.(14) For these lawyers, law is a noble, "craftlike" activity that infuses professional life with "personal meaning" (pp. 351-52). To Kronman, the "outstanding" quality of a lawyer's character gains expression not only in technical virtuosity, but also in the Aristotelian virtues of practical wisdom and prudence.(15) The character virtues of wisdom and prudence determine the "quality" of a lawyer's "judgment."(16) Good judgment reflects good character.

   Without the redemptive powers of character, Kronman declares, lawyers lose faith in the ideal of professional excellence. To restore faith in character and to regain a high standard of professional excellence,(17) he seeks to "rescue" the ideal of the lawyer-statesman from "collapse."(18) For Kronman, the lawyer-statesman represents a "classical figure" marked by "great" wisdom in counseling, "exceptional" powers of advocacy, and an abiding commitment to the public good (pp. 12-13). Kronman culls examples of this figure from the nineteenth-century careers of Daniel Webster, Rufus Choate, John Marshall, Fisher Ames, William Pinkney, and James Kent,(19) as well as from the twentieth-century careers of Dean Acheson, John McCloy, Adlai Stevenson, Cyrus Vance, Paul Warnke, and Carla Hills.(20) These lawyers exemplify the virtues of wisdom, excellence, and civic spirit, possessing a "special talent" of judgment and leadership that coincides with the public good (pp. 12, 14 49). Although this talent also extends to matters of "private" interest, the principal purpose of such "outstanding" lawyers is to "help" their clients "come to a better understanding of their own ambitions, interests, and ideals and to guide their choice among alternative goals" (p. 15).

   The "outstanding" qualities of Kronman's lawyer-statesmen stem from character. Good character, he contends, gives rise to an "excellence of judgment" beyond simple "intellectual skill" (p. 35). Judgment endows "some citizens" with "a superior ability to discern the public good" (p. 35). This superiority, a sign of "human excellence," holds "special meaning for lawyers as a group" (p. 109). Unlike other citizens, they appreciate the value of "connoisseurship."(21)

   Connoisseurs, Kronman explains, are persons "devoted" to the attainment of a certain "good" regardless of "form" (p. 139). This dispositional character, a quality expressed in "habitual feelings and desires," shapes professional judgment (p. 15). Good lawyers, Kronman asserts, are connoisseurs of the law; they care for "the good of the law itself" (p. 139). Civic-minded devotion to the law's "well-being" enables lawyers to excel in making accurate predictions of judicial outcomes (p. 139).

   Prediction requires foresight. Kronman posits foresight as a character trait of practical wisdom. He defines foresight as "the capacity to see ahead, to anticipate in imagination the consequences and actual experience of following each of the different pathways that one might choose" (p. 86). To be sure, connoisseurs practice more than foresight; they practice an art. The lawyer-statesman practices the art of statesmanship.

   On Kronman's account, the art of great statesmanship entails two qualities or traits: "love of the public good" and "wisdom in deliberating about it" (p. 54). He locates the "public virtue" of statesmanship in the community leader of "exceptional wisdom and skill" who serves "the good of the community" (pp. 53-54). The statesman's "special virtue" lies in his "extraordinary devotion" to the good of his community and in his "superior capacity for discerning" the nature of that good (p. 54). In essence, statesmanship symbolizes "a kind of skill or excellence at making judgments about the public good" (p. 87).

   Kronman discovers the statesman's "excellence" of public, deliberative judgment in "political debates" concerning community ideals, particularly the "best" means to achieve certain ends (pp. 54-55, 61). He views means-based disputes as a "problem of counting" that commands a "calculative" judgment.(22) Good judgment hinges on "the ability to calculate" the "right choice" of means in a situation of conflicting ends and incommensurable values (pp. 56, 58-61). The statesman's "excellence" of deliberative judgment is most vivid in cases in which community identity is in controversy.(23)

   The complexity of identity-based political judgments leads Kronman to explore the counterpart of statesmanship in the realm of personal deliberation.(24) Analogizing personal and political styles of deliberation, he detects a "structural resemblance" and "correspondence" in identity-defining choices about individual and community values (pp. 63, 65-66, 88-89). Kronman maintains that "life-defining choice" situations constitute an important class of value dilemmas involving deliberation about incomparable goods (p. 66). He assigns to the human imagination a crucial role in that deliberative inquiry, especially the imaginative ability "to anticipate the costs and benefits of each alternative" (p. 69).

   Imagination, Kronman reveals, permits other-directed sympathy (pp. 70-71). The imaginative "elaboration" or "mimicking" of another's value commitments(25) evokes an attitude of "suspended identification" that combines the dispositions of compassion and detachment in a posture "less disinterested" than observation "but more detached than love" (pp. 70-73). Compassion describes the dispositional power of "generating feelings" (p. 74). Detachment denotes the temperamental power of "moderating or confining feelings" (p. 74). Kronman classifies the affective habits of sympathy and detachment as "traits of character" (p. 76). Lawyers endowed with these traits enjoy "enlarged imaginative powers" and "wider access to the realm of surrogate experience" conducive to deliberative judgment.(26) In this sense, deliberation is "bifocal"...