Mary Ann Glendon, Learned Hand Professor of Law at Harvard University, has taken stock of the legal profession and found it wanting. A NATION UNDER LAWYERS is a rich and lively account of how the American legal profession changed in the past three decades; tumbling from its Golden Age of public-mindedness, lawyerly craft and self-restraint, into a new-age chaos of "judicial Caesars, courtroom Rambos, and classroom Rimbauds" (290). The rejection of traditional values by the legal profession should concern us all, Glendon warns, because lawyers and judges are the ballast in American democracy and the crisis in the legal profession is subtly transforming society and our civic culture for the worse.
One of the strengths of Glendon's book is that she treats the practicing bar, the bench, and the legal academy as part of an integrated professional world rather than as separate communities. In part I, Glendon examines the malaise that afflicts the bar. Since the 1960s, she argues, it has degenerated into a group of disgruntled and self-interested profiteers. Along the way, firm loyalty dissipated, lawyers became less satisfied with nonmaterial rewards, and ethics suffered in the face of marketplace pressures and a "raider" ethic that glorifies litigation over resolving disputes. The causes of these shifts are complex but Glendon points to two major culprits: the sheer growth in the number of lawyers eroded the ideals of independent professionalism while increasing client bargaining power; and democratization of the bar led to the demise of the consensual "old world and old WASP values" that formerly sustained norms of ethical behavior. Glendon's account of the cultural transformation in the bar draws liberally from other studies and uses wry anecdotes. Simon Rifkin's recollection of law firm practice before the 1960s, for instance, when billing consisted of asking "What have we accomplished for the client?" is marvelously contrasted with the "billable hour" ethos permeating today's firms. The pressure to bill as much as 2,200 hours a year (7 hours a day, 6 days a week) can drive even the best lawyers to pad bills or engage in equally questionable activities such as when one attorney billed a client 27 hours in a single day (having worked around the clock in New York he boarded a plane for the West coast and logged an additional three hours) (30-31). Laments about the state of the practicing bar are nothing new but Glendon offers a measured and sober account. She does not gloss over the problems of the "old bar." After recounting her own experience in the early 1960s of being told by a partner of a large law firm that she would not be hired "because 'I couldn't bring a girl in to meet Tom Watson [of IBM] any more than I could bring a Jew'", Glendon writes that the "Golden Age was a time of shameless exclusionary practices" (28). Nor does Glendon's criticism of creeping commercialization come at the expense of an idealized view of past practices: "if one's benchmark for corporate firms is the palmy days at the turn of the century when lawyers were using every tactic in the book [and many that were not] to help clients bust unions, consolidate monopolies, drive competitors out of business, and obtain favorable treatment from judges and legislators, then it would be hard to demonstrate a marked ethical decline" (57).
In the next two parts of the volume Glendon turns to examine changes to the bench and the legal academy. Here too there is little new in Glendon's complaints, although they are more provocative than her views about the bar. As for the bench, it is increasingly slipshod in its work product and arrogant in its use of power. Great judges of the previous generation -- Benjamin Cardozo, Learned Hand, Felix Frankfurter -- were admired most for their impartiality, attention to legal craft, and modesty or respect for the constitutional structures of democracy. By contrast, today's celebrated jurists -- Earl Warren, Thurgood Marshall, William Brennan -- feel unconstrained by the law and are admired for their compassion and willingness to use their power to right perceived social wrongs. In short, she suggests, we have given up the ideal of impartial judges committed to the rule of law in exchange for the ideal of "romantic" judging.
The turning point in judicial culture came with the Warren Court's decision in BROWN V. BOARD OF EDUCATION. Glendon offers a reluctant defense of BROWN and the reapportionment cases as "heroic" decisions "that made up in statesmanship what they lacked in legal authority," but nevertheless argues that even heroes overreach themselves. Rather than a justified exception to the rule of law, BROWN became the model for a new style of judging in which judges ignored the law and the will of the elected branches and simply imposed their own policy choices on the rest of society. The result, Glendon argues, has been disastrous both for the bench and for democracy. Having forgotten their place in the constitutional order, judges ventured deeper into the "political thicket" of trying to solve social problems, a task for which the judicial process is ultimately ill-suited. Flooded by law suits and confronted with unmanageable dockets, courts became bureaucratized and judicial craftsmanship deteriorated. Meanwhile, top-down imposition of judicial policy atrophies the political process and robs society of innovation and affective citizenship benefits that come from grass-roots policymaking. The legal academy both suffered from, and contributed to, the romantic ideal of judging and the commercialization of the bar. Although there was always a gap between the academy and practitioner community, commercialization widened this into a gulf. Today's professors are openly disdainful of the practitioner's world for which they train students. Meanwhile the need to justify romantic judging and the preoccupation with abstruse questions raised by turn of the century legal realism further detached the academy from the concerns of practitioners and led it down the primrose path of theory. Gone are the days when the superstars of the academy wrote practical legal treatises or contented themselves with midlevel theorizing that combined theory with serious attention to constitutional structures and common law tradition. Glendon's favorite professor, Karl Lewellyn, was a realist who debunked Langdellian formalism, but he was also a practical legal reformer for the American Law Institute. He understood and appreciated the rich common law tradition (so much so that he apparently burst out in song about the common law in front of his classes).
By contrast, Glendon charges, today's academy is led by a group of "iconoclasts with shallow roots in legal traditions and poor grounding in normal legal science" (288). Law professors have become dilettantes in economics, sociology, political science and literary theory, professing everything but law (278). Particularly disturbing is the growing influence of advocacy movements such as law and economics, critical legal studies, race theory or feminist jurisprudence. Glendon singles out CLS for her harshest criticism (no doubt because of the bitter faculty battles she witnessed at Harvard), calling Roberto Unger and Duncan Kennedy the John Lennon and Mick Jagger of the legal avantgardism (210-211). Immersed in "advocacy scholarship," disdainful of the practitioners world, uninterested in constitutional structure and the common law tradition, the new academics have created "law schools without law" (222).
In the final part of the volume, Glendon argues for a "realistic appraisal" of what a democracy should and should not expect of law and lawyers. With every passing day, she argues, "the limits of law loom larger" (275). Those who pedaled the idea that law could solve all social problems have thus "set the stage for disappointment, disillusion, and disrespect" for the law itself (275). Despite her sweeping indictment, the book ends on an optimistic note. There are signs of counter reformation. A new generation of "postideological" students is entering law schools and "nonconformist" law professors who still preach the "hard practices of a demanding discipline" are enjoying new popularity (289). There are also signs that the "extended orgy" of professional and judicial hubris is winding down. Supreme Court decisions are becoming less sensational, judges are becoming more modest and less inclined to allow ideology to subvert the integrity of law, and the boom years of the megafirms and litigation mania have run their course.
As with any work that is ambitious in scope but accessible in style, there is much to quibble with in Glendon's book. Serious scholars will be troubled by the reliance on anecdotal evidence to make sweeping indictments. Her attack on the legal academy, for instance, names few names and provides little systematic evidence for her assertions about trends in legal education and scholarship. There are also places where her arguments are inconsistent or even contradictory; as when she praises judicial creativity on pages 130-137 but then disapproves of it later on pages 161-162. But these are mostly minor inconsistencies. More substantively, one could argue with her portrait of the practicing bar. There are many studies that show lawyers are just as satisfied with their work as other professionals; and the degree to which the bar has experienced an ethical decline, as she notes, depends on one's benchmark. Still, few would argue that lawyers in the 1990s do not face a world that is less certain and ethically more muddled than the one confronting lawyers a generation earlier, and Glendon brilliantly captures these changes.
Less convincing however are her arguments about the bench and the academy. Her charges here are more sweeping but less explicit than those leveled against the bar (for instance, with the exception of Kennedy and Unger, few other "new age" academics receive attention and their work is not discussed in any length). Moreover, some of her examples are stretched past credibility in order to make their point: Brennan, for example, is cast as arrogant and unprincipled (161-162), while White is praised as an "able and conscientious" jurist with "vision" (171). Indeed, at times her analysis flirts with the very style of "advocacy scholarship" she deplores, selectively deploying evidence to support her views. Indeed, some will find Glendon's world view, where traditionalists are under siege and progressives dominate the profession, rings hollow at a time when Anthony Kronman (one of Glendon's heroes) heads the nation's leading law school (Yale), the federalist society is the most active student group on most campuses, Justice Scalia is regularly regarded as the leading intellect on the Court, and the strongest defender of judicial restraint, William Rehnquist, has been the Chief Justice for more than a decade.
Indeed, whether one agrees with Glendon's assessment of the state of the legal profession probably depends on how one views larger cultural trends set into motion during the 1960s. Many would be less sanguine than Glendon about the desirability of a Court full of Byron Whites rather than William Brennans, or the value of returning to a legal academy that ignores important theoretical questions about law's relationship to entrenched power.
Even if we accept Glendon's view of a profession in decline, we might disagree with her arguments regarding its relationship to culture and American democracy. It may be that the legal profession has simply mirrored, rather than caused, changes in the later. For instance, there is no small amount of evidence that the growing involvement of courts in many areas of public life came not out of judicial arrogance but because the democratic branches pressed them to address lingering social problems (like segregation) that could not be confronted legislatively. Courts have also been forced into an onerous and often unwanted watchdog role over the burgeoning administrative state. To leave readers with the impression that the growing involvement of courts in social policymaking is the result of less modest judges greatly oversimplifies the complex relationship between courts, the elected branches, and the complexity of social regulatory problems in the late twentieth century. Although Glendon admits that the legal profession does not exist in a vacuum, she does little to explain how developments in other political and social institutions may have caused the changes in the legal profession, which she deplores. This last complaint probably falls into the category of wishing Glendon had written a different book. But, at a time when presidential candidates and members of Congress have made "liberal judges" the scapegoat for many social ills, it is a point that needs to be made. One in Professor Glendon's position must know that her arguments will be seized upon by those with a less genuine concern about the health of the legal profession.
Despite these criticisms, Glendon has provided a thoughtful and provocative analysis of the legal profession as it enters the twenty-first century. Together with her earlier book, RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE (1991), where she describes the political consequences of contemporary legal liberalism and its hyper-individualism, she has provided perhaps the most comprehensive look at the relationship between law, culture and American democracy since Tocqueville. Her analyses make up in breadth and force of argument what they perhaps lack in rigor and complexity. They are a must read for serious students of American law and politics.
