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

National Review, Nov 7, 1994 by Lino Graglia

HARVARD law professor Mary Ann Glendon's A Nation under Lawyers comes with a blurb from Cass Sunstein, one of the nation's most liberal law professors, praising its "moderation" and "compassion" and noting that Professor Glendon "defies categorization as a 'liberal' or 'conservative.'" This is not a good omen. As is usually the case with people who attract that description, she earns the accolade of "moderate" by, it turns out, pandering to liberal convention and mythology and hedging her conservative-sounding arguments almost to the point of retraction. She defies political categorization because she typically seeks to have things both ways.

The book's three main sections deal with practicing lawyers, judges, and law professors. Although Professor Glendon complains of the "bland platitudes spouted by most professional leaders today," her discussion of law practice, like most of the rest of the book, is little more than a collection of bland platitudes. She speaks, for example, of the need to "shore up the moral courage of individual practitioners," as if stating a useful prescription for action, and reminds us that it is "service to others that is the true distinguishing mark of our profession." Many lawyers, especially women, we learn, are unsatisfied with their choice of a career. But this was likely always so (except that until recently there were few women lawyers).

As much as Professor Glendon may deplore it, it will necessarily remain the fact that much in the practice of law does not sit well with ethical fastidiousness--fame and fortune do not lie in springing the innocent. Michael Jackson's lawyer was just doing his job when he recently told us that the payment of millions to Mr. Jackson's accuser in a case of alleged sexual molestation had no relation to the accuser's decision not to press charges. It seems entirely pointless to complain that "it has become acceptable for prominent lawyers to admit an interest in making money--a lot of money," and little short of silly to express dismay that many corporate lawyers "seem far more concerned to satisfy the company managers who hire and fire lawyers than to protect the interests of scattered shareholder-owners."

As an example of a lawyer who "represented ideals of advocacy" Professor Glendon selects, astoundingly, Thurgood Marshall--"a legal strategist," she quotes another admirer, "far-seeing to the point of genius." Marshall's "basic legal creed" was a color-blind Constitution, she reports, apparently unaware that he spent his time on the Supreme Court arguing for busing and racial preferences. It is doubtful that any lawyer's career depended more than Marshall's on the "manipulation and misstatement of facts and law" that Mary Ann Glendon deplores. In Brown, the cornerstone of his career, he notoriously manipulated and misstated both the meaning of the Fourteenth Amendment and the evidence about the effects of school segregation.

Turning to the judiciary, Professor Glendon is accurate and effective in describing the arrogance displayed by Justices Kennedy, O'Connor, and Souter in their joint opinion in Planned Parenthood v. Casey, the 1992 abortion decision. The opinion, she points out, announces the Court's "authority to 'speak before all others' for the 'constitutional ideals' of Americans. The people, for their part, were to be 'tested' by following the Court's articulation of their ideals," which "would likely strike the average layperson as more than a little presumptuous." She is mistaken, however, in thinking that the situation was very different in Brown, in which, she says, the justices "called the nation to take up the challeng of a color-blind Constitution." The difficulty with this is that there was no color-blind Constitution, since the Fourteenth Amendment was not intended to prohibit school segregation. If the basis of Brown really was "the equal protection language of the Fourteenth Amendment," as Professor Glendon argues, it is difficult to understand how the Court (in Bolling v. Sharpe) was able on the same day to prohibit segregation in the District of Columbia--to which, since it is not a state, the Fourteenth Amendment does not apply.

The problem, again, is that Professor Glendon cannot have it both ways. If we accept her argument that the Court was authorized to "exercise statesmanship" to deal with "pressing social problems" in Brown and the one-man, one-vote cases, we have no basis for charging the justices with abuse of office when they undertake to solve what they see as other pressing problems.

Finally, Professor Glendon criticizes the law schools for allegedly moving from the teaching of law to the teaching of social science. Not entirely consistently, however, she thinks that law schools should teach "long-range planning" and "creative problem-solving," hardly traditional law school subjects. She also believes we have recently "witnessed an extraordinary flowering of serious scholarship, with the most important advances attributable to collaborative interdisciplinary and empirical work"--which is to say, to social science. Her typically mushy suggested solution is that law schools make "students aware of the rich web of habits and understandings surrounding the stories of the extraordinarily diverse individuals who are part of the common-law tradition."