How Lawyers Lose Their Way: A Profession Fails Its Creative Minds.

Vol. 15 No.5 (May 2005), pp.425-428

HOW LAWYERS LOSE THEIR WAY: A PROFESSION FAILS ITS CREATIVE MINDS, by Jean Stefancic and Richard Delgado. Durham: Duke University Press, 2005. 152pp. Cloth. $69.95. ISBN: 0-8223-3454-2. Paper. $19.95. ISBN: 0-8223-3563-8.

Reviewed by Patrick Schmidt, Department of Political Science, Southern Methodist University, Email: pdschmid@mail.smu.edu .

A standard formula when advocating change is to jump three hurdles: demonstrating a problem, isolating the cause, and offering a feasible solution. Mainstream accounts of the practice of law clear the first hurdle in Olympian fashion, only to pause ponderously at the second and usually struggle mightily with the third. Jean Stefancic and Richard Delgado attempt to break that mold with HOW LAWYERS LOSE THEIR WAY, a short and suggestive run at the problems faced by the legal profession. Is there a problem with the conditions of lawyering today? Most observers can be easily persuaded, and Stefancic and Delgado roll out myriad data about the dissatisfaction and unhappiness of lawyers. It is in the second step of identifying the cause that the authors make their biggest contribution, and even if you are persuaded by their diagnosis, you may be excused for feeling unsatisfied by their solution.

This is a book in two parts. Part I makes an original and engaging move, a dual biography about the interwoven lives of Archibald MacLeish (1892 – 1982) and Ezra Pound (1885 – 1972). MacLeish is a flawed protagonist in this tale, a Babbitt of an elite lawyer, desiring to break out of the patrician lawyer’s life by pursuing his love of poetry. His legal career (relieved ultimately by public service) trapped him in a formalist’s world, with its limited vision. His poetry also spoke with the stilted voice of the Victorians, but for him Pound was an heroic figure who broke boundaries and found freedom. For decades, Pound, the great and eccentric poet, was aware of, but broadly dismissive of, the admiring MacLeish. Unlike many elite lawyers, MacLeish actually acted on his Mittyesque dreams, leaving behind a Boston partnership to pursue the life of an exile in Paris in the 1920s. Though he and his wife returned to the United States, having failed to win complete acceptance in intellectual circles—a “bad bohemian,” he would later say of himself—Stefancic and Delgado portray his aesthetic sensibility as a smoldering fire, burning like the goodness in Darth Vader, that the dark side of formalism failed to stamp out.

The crucial engagement between Pound and MacLeish occurred in the mid-1950s. Pound’s anti-American activities in Italy during World War II resulted in charges of treason and commitment to an American asylum. After ten years’ custody, the story finds MacLeish mobilizing support for Pound, who was eventually released in 1958 to live out his life in Italy. Here is the biographical question most in need of an answer: why did MacLeish go to lengths to help this embattled, eccentric, even repellant man, [*426] admirable for his poetry but seemingly little else? The answer, say Stefancic and Delgado, lay in how Pound embodied that flame that MacLeish wished to nurture. Pound provided a model of critical engagement that a pre-Realism man like MacLeish struggled to emulate. By helping Pound, MacLeish found closure on his own contradictions as a poet trapped in a lawyer’s brain, a man whose noble and great ambitions had been snuffed out early in life by formalist legal training. Therein is the key to this book.

This is spare biography, told in fewer than thirty pages across two chapters, leaving many relevant questions about MacLeish’s psychology and motivations. The reader has to retrieve much of the biographic color and depth from the footnotes. What, then, is the role of this biographical turn? It is not biography for biography’s sake, to be sure. It is also clearly intended as more than an historical metaphor (though Stefancic and Delgado use it as metaphor, p.84), because the authors identify the era of MacLeish’s education and early career as a turning point for the legal profession as a whole. Using the device of formalism to explain MacLeish’s alienation from the law is plausible, though readers might wonder whether MacLeish is just Generation X ahead of his time, or whether alternative explanations might not better explain his psyche. Can we go even further, assuming the accuracy of the biographical account, to generalize from MacLeish’s experience a link between formalist legal education/thinking and the unhappy lives of lawyers?

That is the focus of Part II, which is their leap across the second hurdle. Stefancic and Delgado lay the blame for unhappy lawyers with formalism in law schools and legal practice. This argument complements and competes with recent works (e.g., Glendon 1994; Rhode 2000) that blame, variously, the loss of ethics, the pursuit of wealth and power, or the loss of respect for the rule of law. MacLeish suffered from excessive regimentation and specialization in his work, both of which have been magnified many times by both large and small law firms, added to which are increasing economic pressures such as billable hours. The result, they say, has been system-wide misery, such as high rates of alcoholism, drug abuse, burnout, and suicide. A five-page chapter suggests that formalism is behind similar levels of dissatisfaction among medical professionals as well. Stefancic and Delgado are wise to set the expectations low for this sketch of a theory, with the exculpatory caveat that “we paint here with a broad brush, seeking no perfect proof but rather a story or narrative that will resonate with the reader” (p.33). As someone who has spent time as a legal assistant and watched attorneys work, this account indeed resonates well, and it is a wonderfully global account of the modern condition of professional work, which numerous studies tend to support.

But even the choir likes to hear a persuasive sermon to support the admonitions, and this broad brush leaves much uncovered. The authors obviously recognize that the challenge is to connect the condition of formalism—defined simply as “a conception of legal reasoning that emphasizes internal rather than external factors in generating legal decisions” (p.34)—to the conditions of modern legal practice. In Chapter Seven’s conclusion to the book, [*427] MacLeish’s experience remains the best evidence to support that link, which is otherwise established by fiat, that “if you allow yourself to think of what you do in crabbed terms, you are apt to find yourself working in a crabbed workplace as well” (p.77). Having set out a broad range of problems, stretching even to the medical profession, it is hard to take on faith that formalism is the sole, primary, or necessary cause. Is specialization inherent to formalism or an independent condition of modern legal practice? Does the decline in pro bono legal work have more to do with the limitations of the formalist world-view or the nature of the marketplace? Perhaps some readers will lay the blame with an economic system far beyond the mere tool of formalism, one that commodifies values and increases the demands on employees, whether blue collar assembly-line laborers or “autonomous” professionals. (Stretching their vision beyond what most people will regard as formalism, the authors even throw in a few solutions to the monotony of factory work; see p.81).

Whatever your speculations, uncertainty about the global relationship of formalism to lawyers’ unhappiness undermines the possibility of clearing the third hurdle: proposing a solution. The first step for law schools, the authors argue, is to “cast aside” formalism and the Socratic method that prevents young lawyers from engaging the wider considerations inherent in legal situations. Then law practice must abandon “unnecessary formalism” (p.84). What does this mean? Literally and figuratively borrowing a page from MacLeish’s notebooks, “many lawyers might well be happier if their lives contained more poetry—if they could slow down and read, or even write, a poem sometimes,” Stefancic and Delgado write. Even more fundamentally, “thousands more would benefit if their lives contained more leisure, more contemplation, more time to think seriously about what they do, and even, enjoy it” (p.84)—which is to say, they ask for more balance, wrought by “anti-formalism and critical analysis” as a counterweight to formalism. Perhaps their difficulty reaching anything more concrete and specific than this stems from issues far more complex—economically and historically, as well as philosophically—than this morsel of a book allows. Most readers, like my students who are all too willing to pursue the promise of a legal career, will not be satisfied by a thin prescription amounting only to a combination of relaxation and introspection (or, Bobby McFerrin’s “Don’t Worry Be Happy” meets Zen and the Art of Lawyering).

More pragmatically, I would not be surprised to find this book in many undergraduate and law school courses. For a course on legal practice its value is easy. For an undergraduate judicial process course, it has the advantages of brevity, affordability, and a human interest. If you teach “black letter” formalism as a competing theory to behavioral and institutional models of judicial decision-making, and if you also include a unit on the legal profession in your course, this book neatly bridges those topics in intriguing ways. The problems of lawyers are laid out in depressing detail, and this critical perspective will generate much thought. Like Martha Derthick’s UP IN SMOKE (2005), a plausible-but-problematic argument can stimulate students’ [*428] analysis and discussion better than an authoritative and complete opus.

REFERENCES:

Derthick, Martha A. 2005. UP IN SMOKE: FROM LEGISLATION TO LITIGATION IN TOBACCO POLITICS (2^nd ed). Washington, D.C.: CQ Press.

Glendon, Mary Ann. 1994. A NATION UNDER LAWYERS: HOW THE CRISIS IN LEGAL EDUCATION IS TRANSFORMING AMERICAN SOCIETY. New York: Farrar, Straus and Giroux.

Rhode, Deborah. 2000. IN THE INTERESTS OF JUSTICE: REFORMING THE LEGAL PROFESSION. New York: Oxford University Press.

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