Walter Bennett, The University of Chicago Press, 2001, 234p.
Reviewed by Melvin F. Wright, Jr.
Walter Bennett has a tremendous depth of experience in the legal arena. He began his career as a lawyer in the early 1970s and later served as a judge and taught in law school. Along the way, Bennett has noticed an increasing disorder within the legal profession, for which he has searched for an explanation. His timely observations should help all of us in our professional journeys.
Despite his success as a lawyer and judge, Bennett tells us he felt something was missing from his professional development. He realized what it was when his students at the University of North Carolina began sharing oral histories of more senior lawyers. In The Lawyer's Myth
, Bennett examines the current condition of the legal profession, tells us what he and his students learned, and offers what he believes to be the proper path toward reviving the ideals of professionalism and justice.
Much has been written in the last few years about the decline in civility and collegiality among the members of the Bar and the malaise affecting the legal profession. Bennett uses examples from mythology, literature, history, philosophy, sociology, and psychology to explain the state of the legal community today. He equates the Arthurian myth of Parcival's search for the Holy Grail to that of a young lawyer in search of self and the reconstitution of community within the law.
Bennett begins the story of his legal career in a first year torts class in 1969 at the University of Virginia School of Law. He describes his law professor as a short man who moved back and forth in front of the class like a leopard stalking a herd of zebras. As the professor presented questions to the class using the Socratic method, Bennett and his classmates were quite apprehensive. The 1882 case of Beatty v. Central Iowa Railway
, presenting the elements of negligence and reasonable care, was the subject of discussion. Bennett describes the murder of moral purpose in this manner:
"Finally, at a point well into the third class period when I was bound limb-for-limb in the dialectical tangle and feeling the hot breath of the leopard, one of my more vocal classmates (he actually volunteered answers-or, attempted answers) lunged for daylight. His attempted breakout came in his response to the last in a series of increasingly pointed questions from our professor about how reasoned analysis of the case could have led to the result my classmate had just proposed. At last cornered and growing desperate, my classmate blurted out: 'Because it seems to be the best way to achieve justice.' The professor, who was pacing by this time, whirled in his tracks, thrust both hands in the air and shouted in a voice louder than any I had ever heard indoors, 'Don't speak to me of justice! I do not wish to hear about justice. I wish to hear about the rule of law.'
"This was the early 1970s. Many of us had come to law school to pursue various social agendas, some well defined, some quite indefinite. But all of those agendas contained at their heart some notion of justice. There was dead silence in the classroom after the professor shouted those words. For me, and I suspect for many of my classmates, an internal shift began to occur. I imagine it was like the shifts that begin in Marine recruits on the bus to Paris Island when the drill sergeant first begins to scream at them. The ideas and values I had accumulated in no particular order during my first twenty-four years seemed to be under attack. I had assumed, as had the student who uttered the fatal words on justice, that justice was the whole point of law and the reason I was in law school. But no-not only was it not the point, it was not even in the equation. I had entered a system where such concepts were apparently viewed as worthless or worse, a hindrance to my success in the system."
The lessons of law school took hold. Bennett recalls a time in 1985 when he encountered an ethical dilemma in one of his cases. As he searched the Rules of Professional Conduct, he found that his goal was to ascertain whether there was at least a plausible argument that the Rules in question did not apply. He was delighted that his ability to think like a lawyer had allowed him to slide deftly around the potential ethical roadblock.
Later reflecting upon this image of himself, Bennett states that "[t]here were no moral questions beyond the plausible bounds of the Rules of Professional Conduct. There were no higher principles to consult or personal standards to bring into play. There was no conscience." He was not comfortable with this way of thinking and expected more of himself and his profession. He began to routinely anguish over the lack of emphasis on moral commitment and the blatant indifference toward justice. All that seemed to matter was the ability to find the core issues in a case and think like a lawyer.
Bennett places great emphasis on the loss of professional mythology. The narratives of the past, with both positive and negative images that lead to greater understanding, are, he says, disappearing. He concedes that many of the stories have lost their power for valid reasons, that they were the products of times whose values were antithetical to the social change that the profession has more recently embraced. He calls for new stories that will evolve into the myths of our profession.
Bennett also analyzes and evaluates other problems, such as the law's transition from a profession to a business, the adoption of a win-at-all-costs attitude, the increased emphasis placed on the billable hour over the quality of life, an over-emphasis on masculine and feminine strengths and stereotypes, and the loss of faith and community. In spite of all this, he believes the profession can and should be saved.
First, the profession must go about "reaffirming its values and reconnecting those values to a higher purpose of service to the greater society." Acknowledging the difficulty in creating functionality in an ever-expanding community, Bennett urges the profession to think about "what size and make-up of groups and subgroups best promote communities of moral discernment." He challenges not only the practicing bar, but also the law schools. He does not use his reflections upon his legal education as a basis for condemning the teaching of rigorous legal analysis but rather suggests that other skills be taught in addition, while "making all of it morally relevant."
Bennett's writing is scholarly, insightful and eloquent. After bringing the reader face to face with the realities of practicing law today within a very complex society, he gives us hope and direction in how to rekindle the campfire and stoke the fires of justice and professionalism. This is an exceptional book and should be read by everyone who cares about the legal profession.