A century and a half ago, Alexis de Tocqueville observed that a thriving lawyer class is central to a healthy democracy since, paradoxically, there can be no liberty without law. But what, asks Mary Ann Glendon, would a friendly observer like Tocqueville make of the nearly 800,000 practitioners, judges, and teachers that today make up the American legal profession?
In this wide-ranging look at the changing nature of the legal profession, Glendon chronicles what she regards as a deepening crisis of values within the legal system and a corresponding deterioration of the nation's public discourse. She surveys "the strange new currents" flowing through each of the three branches of the profession — the bar, the judiciary, and the legal academy — finding in each a weakening commitment to law as an essential public vocation.
Glendon first examines the world of practicing lawyers. From the 1920s to the 1960s, the profession was relatively stable, rooted in an ethic of objectivity and independence where lawyers valued above all else the virtues of quiet craftsmanship, impartial counsel, firm solidarity, and the ideals of right conduct. In the last three decades, however, the large law firms that set the tone of the profession have taken on a progressively sharper, more partisan, and competitive cast. Today, she argues, the scrupulous, objective, and public-spirited counselor of yesteryear has given way to the competitive, confrontational, media-savvy, and self-interested litigator, more concerned with short-term self-interest than professional ethics or the common law tradition.
The conventional explanation for this shift is that the legal profession has become overly commercialized in recent years. But Glendon takes a broader, more anthropological view. Adapting a theory first set forth by social observer Jane Jacobs, she maintains that an aggressive "raider" ethic has increasingly supplanted the once-dominant "trader" ethic among lawyers. This has been paralleled by a drive toward increased specialization, as to both clientele and subject matter, which has gradually separated the cultures of counselors and advocates, on the one hand, and the distinctions between elite and low-status lawyers on the other. Glendon believes that this "quiet revolution" has left lawyers bereft of a coherent professional culture. They wander "in an increasingly impersonal, bureaucratized legal world, where neither honesty-based nor loyalty- based systems seem to be operating very well.... Emancipated from the old ways, they soldier on, with few examples, sketchy guidance, and little reinforcement."
The second pillar of the profession, the judiciary, has witnessed a similar upheaval in recent years. Today's judges are saddled with a case-load so great that they cannot reasonably review the essential details of each case. Oftentimes, they manage only by deciding cases without written opinion, or by leaving opinion-writing to inexperienced clerks, or, as is the case in Federal Court, by resigning altogether. Glendon sees a corresponding redefinition of values on the bench. The age-old virtues of impartiality and constraint have given way to the "romantic" and undemocratic idea that a judge's subjective interpretations take precedence over legislative choices, individual responsibility, and established law.
The legal academy has also witnessed profound changes in recent decades, according to Glendon. Since 1970, law schools have become increasingly populated by students who have little respect for the law and its traditions. Faculties have accommodated them, in many instances, by lightening up on rigorous legal analysis and emphasizing instead overly academic socio-political doctrines. The focus on esoteric scholarship, much of which is directed at itself rather than the law, has introduced a moral relativism in America's legal culture which is gradually undermining the nation's political discourse.
The degradation of the legal profession is not without serious consequences for American public life, Glendon observes. Excessive reliance on law and the courts "has been a disaster for the political health of the country." Today's legislators bear a greater resemblance to contentious litigators than to the prudent and impartial advocates one used to associate with public service. At a deeper level, America's legal culture has undermined the notion that citizens can organize themselves, deliberate on issues of common concern, resolve disputes, and conduct politics among and between themselves. "Sadly," she writes, "court decisions have gone beyond addressing failures of politics to displacing politics altogether — and, often, to undermining the groups where political skills are acquired and nurtured."
Copyright 1995 by Scott London. All rights reserved.