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Theory-Addled Lawyers

[Review of The Lost Lawyer: Failing Ideals of the Legal Profession by Anthony Kronman. Originally appeared in Across the Board, February 1994]

Writing in the Wall Street Journal last year, Harvard Law School professor Mary Ann Glendon observed that Lani Guinier’s failed nomination for U.S. assistant attorney general for civil rights should bring pause to an legal academic establishment that is "woefully out of touch with American culture and political life". Guinier's dense articles on voting rights law, which were to prove unacceptably extreme to even the most liberal Democratic senators, had passed almost without challenge in the "hothouse environment" of the law reviews, whose "relatively homogeneous political culture", Glendon wrote, displays "a growing disdain for the practical aspects of law, a zany passion for novelty, a confusion of advocacy with scholarship, and a mistrust of majoritarian institutions".

Though about a hundred times less outspoken than Glendon, Professor Anthony Kronman of Yale Law School shares much of her dismay at legal academia’s current “contempt for the claims of practical wisdom”, its valuing of brilliance over deliberativeness. Kronman’s The Lost Lawyer (Belknap/Harvard) takes on the issue in a somewhat tedious but undeniably thought-provoking manner.

Guinier is hardly an extreme example of the crisis about which Kronman writes: Compared with much current legal academic writing, actually, hers comes off looking rather mild. A Syracuse University Law School professor recently got a sober hearing for her proposal that companies sued by "less-empowered" individuals on tort claims should not only be required to prove affirmatively that they are innocent, but should have to fork over claimed damages at the start of the controversy and then sue to get their money back, a result the good professor derived from, no kidding, feminist theory. ("It's just so far from the way the legal system currently operates that I -- I just don't have a reaction to it," an evidently stunned practicing lawyer told a Journal reporter when asked to respond to this and similar theories.)

Should anyone care if the academic study of law goes the theory-addled way of so many humanities departments? Well, yes. When fields like art history or French literature succumb to intellectual faddism, the damage is limited: people by the million go on enjoying Rembrandt’s paintings and speaking French anyway. Legal theory gone wrong can land you in jail, take away your land, or drag you into a custody battle.

It can also, as Kronman observes, starve the minds of those who practice law for a living -- those who would like a professional ideal to live by, but no longer get useful guidance from the elite. Legal academia has grown dismissive of the profession's older ideals without offering a credible alternative in their place, he says.

What were those older ideals? The good lawyer, it was long thought, displayed what Kronman calls "practical wisdom", conceived of as a trait of character as much as an operational skill. It consisted of being "more calm or cautious than other people and better able to sympathize with a wide range of conflicting points of view", familiar with human nature through the "broad acquaintance with suffering and ambition on which sound judgment generally depends". Such qualities helped make lawyers natural leaders in politics and other settings; the "lawyer-statesman" could, in a sense, treat the nation as his client.

Part of the package was a distrust of abstract speculation and grand theory. Flannery O'Connor, asked for her literary theory, said she wrote the way Samuel Johnson's blind housekeeper poured the tea: she put her finger in the cup. So it was with the common lawyer, who was famous for proceeding case by case, proving no more than was needed to resolve the immediate controversy and hoping for solutions that were workable if not necessarily precise or consistent.

Kronman, generally critical of trends favoring academic legal thought over experience, is particularly severe on the displacement of law by "law and…". Learn a little economics (or sociology, or gender theory, or semiotics), it seems, and you can soon reduce the law of real property or criminal sentencing to a three-factor model, or a template of sexual oppression, or a word game. And since you are reinventing the world from scratch, "the vast storehouse of accumulated precedent, to the extent that it conflicts with the requirements of natural reason, is nonsense to be discarded with impunity" -- consigned to those melancholy shelves in the back of the law-library stacks marked "SUPERSEDED".

Speaking of oversimplication, however, one should note that there's a huge difference between law-and-economics (or law-and-other-things) done badly -- the kind being roasted here -- and done well. In the wrong hands, economics can indeed be a bluntly reductionist instrument, a way of abstracting away almost all the life in a legal situation. At other times it can be powerful in itself and obviously relevant to practicing lawyers: One thinks of, for example, George Priest and Benjamin Klein's finding that cases that go to trial (as opposed to settling out of court) are not a random selection of the cases that get filed but instead differ from the norm in systematic ways.

Nor, for that matter, are economists as a class deaf to the lawyerly virtues of case-by-case reasoning, historical narrative or persuasive rhetoric, as witness Austrian economist Friedrich Hayek's classic defense of the common-law method or the more recent writings of D. McCloskey, a University of Iowa economics professor.

More broadly, one wouldn't want practical wisdom to become a prerequisite for academic life. A university does well to shelter some thinkers whose heads are in the clouds; its inhabitants should not resemble the villagers in the 1912 E.F. Benson novel Mrs. Ames who had never seen an abstract idea wild, any more than they had seen a wild elephant, but only tamed and eating sweets, as at the zoo. Still, one can join Kronman in hoping that what he sees as the distinctive expertise of the practicing lawyer -- the "art of handling cases", seeing analogies and distinctions between them, imagining how future cases could arise -- will again begin to get a little respect in the legal academy, and not be dismissed, as it now often is, as unrigorous and anecdotal.

A curious aspect of this book is the clash between its substance and its predominant style. Kronman proclaims the need for particularity and concreteness, but he does so for most of the book's length in the dryest of academic manners, with a dire shortage of examples, cases and metaphors, not to mention humor. Happily, the Muse pops by for the last chapter, where Kronman rises to eloquence in a number of passages. That last section is the place to begin for all but the specialist reader interested in pursuing the thesis of this difficult book.