Clifford Winston (Brookings) Guest-Blogging on "Trouble at the Bar: An Economics Perspective on the Legal Profession and the Case for Fundamental Reform"

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I'm delighted to report that Clifford Winston, from the Brookings Institution, will be guest-blogging this week about Trouble at the Bar: An Economics Perspective on the Legal Profession and the Case for Fundamental Reform, which he cowrote with David Burk and Jia Yan. Here's the publisher's summary:

Deregulating the legal profession will benefit society by improving access to legal services and the efficacy of public policies.

Lawyers dominate a judicial system that has come under fire for limiting access to its services to primarily the most affluent members of society. Lawyers also have a pervasive influence throughout other parts of government. This is the first book offering a critical comprehensive overview of the legal profession's role in failing to serve the majority of the public and in contributing to the formation of inefficient public policies that reduce public welfare.

In Trouble at the Bar, the authors use an economic approach to provide empirical support for legal reformers who are concerned about their own profession. The authors highlight the adverse effects of the legal profession's self-regulation, which raises the cost of legal education, decreases the supply of lawyers, and limits the public's access to justice to the point where, in general, only certified lawyers can execute even simple contracts. At the same time, barriers to entry that limit competition create a closed environment that inhibits valid approaches to analyzing and solving legal problems that are at the heart of effective public policy.

Deregulating the legal profession, the authors argue, would allow more people to provide a variety of legal services without jeopardizing their quality, reduce the cost of those services, spur competition and innovation in the private sector, and increase the quality of lawyers who pursue careers in the public sector. Legal practitioners would enjoy more fulfilling careers, and society in general and its most vulnerable members in particular would benefit greatly.

And the blurbs:

"Trouble at the Bar is an extraordinary book. It surveys and analyzes—with great conceptual and empirical sophistication—the organization of the entire U.S. legal system and the legal professionals who staff it, from the dreams of students choosing to attend lower-rated law schools to lawyers working in the office of the Solicitor General to the lawyers on the Supreme Court itself. Every person in America should understand at some level the operation of the legal profession. Trouble at the Bar provides the basis for that understanding."—George L. Priest, Edward J. Phelps Professor of Law and Economics, Yale Law School

"Trouble at the Bar takes an empirically based hard look at the state of the legal profession in the United States. It examines the barriers in place for regulating entry through law schools and restrictions placed on purveyors of legal services. It makes a compelling case for deregulating many aspects of the profession and opening it up to fresh approaches. It is a serious book about a serious problem and warrants a close read."—Jame J. Heckman, Henry Schultz Distinguished Service Professor in Economics, University of Chicago; research fellow, American Bar Foundation

I much look forward to the posts.

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  1. Like a fish swimming in the ocean, the lawyer has no awareness of the land nor of the air. The lawyer profession is in utter failure. Every self stated goal of every legal subject is in utter failure. It is a practice in the real world, with physical remedies, mostly punishment of the body. Yet, it has fundamental supernatural doctrines, and is totally atavistic. The most unforgivable failure is the out of control crime rate, falling very heavily on minorities. That fundamental function of government would be like having the electricity on for a hour a day, at unpredictable times, with surges shorting out appliances and starting fires, and costing $10000 a month. Not acceptable by any conception.

    1. The Unifying Field Theory of Lawyer Anomaly and Failure is the Rent Seeking Theory. Look at any social pathology. Look at any disparity in social pathology. It has lawyer rent seeking as a major factor. If this book even mentions it, I will be very impressed.

      The profession has be crushed, and its entire hierarchy must be removed. It has to be restarted from scratch, as an entirely empirical practice.

    2. If the word “economic” is said, I am buying the book. Every year the lawyer breathes, it destroys $2 million in economic value.

  2. Pro se criminal defendants outperformed defense lawyers in jury verdicts. Lawyers take our money and provide nothing of value in return. That is the Rent Seeking Theory.

    1. So we don’t need Gideon after all.

      1. Gideon was found with 100’s of quarters in his pockets after a cigarette machine was smashed. He was calling for a cab from the location at 5:30 AM.

        After he was certed, 2000 vicious criminals were released, but not him. He stayed in stir for months. He declined the ACLU douche bag for a topnotch local defense shark who got him off at the second trial. Result? He beat his lady and died of alcoholism. His first pro se trial was correct. His second verdict with a slick lawyer was false, and catastrophic to his welfare.

        If you are ever in the Philly area, we can go to Constitution Hall and gaze upon the religious relic of the handwritten notebook paper on which he wrote his petition. It is enshrined behind glass, and lit with a glowing light. This was a great landmark case in the annals of lawyer rent seeking. It generated thousands of worthless lawyer jobs. The defendants that followed did not get topnotch defense sharks. They got dipshits hand carrying plea offers, that could be replaced by email, today.

        1. Gideon went to the 8th grade. His cert petition was well crafted. It even had hand written boxed case headings at the top. It was persuasive to the scumbags on the Supreme Court ready to pounce on a bad opportunity to employ more lawyers. Ironic. The highly effective petition was written without assistance, but resulted in mandatory assistance. Do you know why that happened? Because the very stupidest of the stupidest people sit on the Supreme Court.

      2. As the advisor to a student group, I got dragged into court as a moral support person — and was not impressed with the public defenders that I saw.

        I’d say that I could have done a better job drunk than any of them did sober, except there is one whom I don’t think I ever saw sober…

        1. Judges can look out for the procedural due process rights of pro se defendants.

          1. Judges are not supposed to be advocates.

    2. I cannot imagine you have anything close to a reputable source for this contention.

  3. IJ, the Institute For Justice, has been pretty active in opposing professional licensing at the state level. Maybe they could cooperate with these authors.

  4. I’m not convinced blowing up all legal regulation would change the prices charged all that much. It’s expensive to hire a smart, conscientious, knowledgeable person to work for you, regardless of whether they’re coding, crunching numbers, or writing a brief.

    1. Eliminating the rule that law firms must be owned by lawyers would itself do a lot because it would open up a lot of other service delivery models.

      Furthermore, I could name a couple dozen smart, conscientious and knowledgeable people who didn’t go into law because of the opportunity costs — instead going into other fields ranging from the US Army to accounting, education to journalism.

      Competition would definitely change the prices — the ABA sought to restrict it a century ago and they were successful.

      And I hate to tell you this, but there are a LOT of lazy, stupid, and totally incompetent lawyers out there…

    2. Idk it would probably help at least a bit. At the very least, to be blunt, not everyone who does every aspect of the legal profession has to be smart enough to get through law school. Dumb people can sort through papers.

      And its not like there aren’t stupid lawyers already … I don’t know if law school is all that great a signifier to begin with. And the whole reason license laws are bad from an economic perspective is not that the tests don’t work, its that even if they do, you end up forcing good quality on stuff where there is no comparative advantage for good quality work.

      There is of course a lot of room to simplify procedure, which seems beneficial.

      1. For my own part, I’d like to see “billable hours” treated as the fraud it is.

  5. The part I most want to see is where the authors argue that an “economics perspective” is the most sensible way to approach this question.

  6. Contract law replaced hostage taking to make people keep promises they no longer wanted to. Under a $million contract, the $50000 legal fees is not worth it. Compare it to the eBay system. If the highest big on a CD is 1 cent, the promise to send it gets kept. The ratings will affect future prices as people adjust for your risk of not keeping the promise. If you do that 3 times, you may get kept out of the $40 billion eBay market. That is effective contract law.

    1. First book being summarized here that I bought. Will try to keep up with the postings.

  7. A large portion of what is wrong with the law is that a man of average intelligence can’t begin to understand it after reading a fairly plain statute or regulation. It takes at least someone with paralegal experience to be able to dissect the “true” meaning of anything legal. And that is dangerous….

    1. This is a rent seeking trick taught by the French, under Edward I, Longshanks in Braveheart. It forces you to hire a lawyer. Remember how they were fluent in French, including William Wallace. The King and his legal system was French.

      1. Any lawyer utterance with a reading level above the 6th grade is void. It fails to give notice, a Fifth Amendment procedural due process right. It applies outside the criminal law.

        1. What is it that you do for a living. Asking for a friend who’d like to make sweeping generalized remarks about it that will make you foam a the mouth at the combination of ignorance an inanity. He promises to throw in some inappropriate historical allusions to add gravitas.

  8. All we need to do is convince the legal profession to let go of its monopoly. And not the legal profession as a whole, the very core of the profession with the most invested in the status quo: judges. I don’t know what the majority rule is, but there are states where a law deregulating the legal profession would be effectively nullified by the courts based on separation of powers.

    How deregulated are we talking about? There is some value in not having tax protester wannabe lawyers roaming free, and more generally there is value in protecting the public from lawyers who have trouble distinguishing what they think the law should be from what judges are going to say it is. When you advise your client to do something that is going to get an instant sanction you are not serving him well. I think this could be solved with more aggressive sanctions for frivolous arguments and malpractice.

  9. Over 50% of law school graduates never get a job as an attorney. There is not an under-supply of lawyers, there is a massive over-supply. Many of those who do work as attorneys try the solo or self-employment route offering their services to the market with varied success.

    The last act of the baby boomers as they leave the profession will likely be to open up law firm equity ownership to non-lawyers. Presumably this will allow one last, huge immediate cash grab, just the kind of thing the generation as a whole generally doesn’t pass up. But it will be done “for the children” and for equity and such.

    It’s hard to imagine “deregulation” of lawyers referring to anything substantial other than this one rule. The regulation of lawyers doesn’t amount to much.

    1. “Over 50% of law school graduates never get a job as an attorney. There is not an under-supply of lawyers, there is a massive over-supply. Many of those who do work as attorneys try the solo or self-employment route offering their services to the market with varied success.”

      This is why I don’t think that throwing open law firm ownership to non-lawyers would be a bad thing — it would enable something similar to the pharmacies which we now have in WalMart and most larger grocery stores.

      Now some of these law school graduates don’t (and likely can’t) pass the bar — I personally know a few such persons working in academia. But of those who did, the one thing that prevents these young lawyers from practicing is capital. Start up capital and pay the bills capital and the rest.

      I once had a pharmacist tell me how much he PREFERRED TO work for WalMart than run his own pharmacy — he knows that he will get a lunch each day and when it will be, and *anything* that happens (outside of dispensing drugs) isn’t his problem.

      This said, do not underestimate the number of bright young people who do NOT go to law school for financial reasons…

    2. It doesn’t help that around 50% of seats in law school go to people who by merit alone would never be able to get admitted (and never should be admitted) absent affirmative discrimination.

      1. Many years ago I studied law school admissions policies, especially affirmative action, and the results. After a great deal of number crunching, I found that, within the margin of statistical error, 50% of those admitted end up in the bottom half of their classes.

    3. “Over 50% of law school graduates never get a job as an attorney.”

      There is a reason for that.

      In law school one of my friends told me, “If you’re from a comfortable background, law school is where you go if you have no talent and no ambition.” It’s a kind of undeclared master’s degree. I went to law school 10 years after I got my B.A. and was surprised to find that the great majority of law students go straight through. For them, the J.D. diploma is simply the last in a long line of childhood trophies. When they finally get out of school, though, they’ve finally decided “what to do when I grow up” and it’s not law.

      1. That was my experience as well, to be frank. It’s a dumping ground for poli-sci and english majors confronting their own lack of utility.

        1. Yes. It explains why so many lawyers are mediocre in intelligence and ability — they’re children of privilege who never “caught fire”.

          It’s interesting that some law schools advise undergrads to major in humanities or poli-sci. Getting a B.S. degree for a licensed profession — i.e., actually learning how to do something — seems to get in the way.

          1. If you have a real skill, they can’t usually sell you on spending the money. I “knew” i wanted to be a lawyer, but I got a BS in something useful in case expectation and reality didn’t mingle. As a result im far less trapped. I don’t have to continue doing something I’m not good at because I have no alternatives.

  10. “what they think the law should be from what judges are going to say it is”

    There’s a larger issue there — it’s the legislature, and not judges, who is supposed to say what the law is. I can think of a half dozen specific examples of where the law explicitly says “X” and the judges refuse to acknowledge the fact that it does — they just ignore it.

    While I’m not a fan of Rachael “Decline to Prosecute” Rollins, and I think her actions here *were* outrageous, but do you remember when she had to go to the SJC to drop charges against the thugs who disrupted the Straight Pride Parade?

    There’s a *lot*of that and I think we need to reign in the judges.

    1. There’s a larger issue there — it’s the legislature, and not judges, who is supposed to say what the law is.

      John Marshall: “It is emphatically the province and duty of the judicial department to say what the law is.”

      Dr. Ed: “Nuh-uh.”

  11. There are many options in between the current regime ans full deregulation.

    Like medicine, law could develop ancilliary professions analogous to nursing, physician’s assistant, nurse practitioner, etc. with significantly lower but not non-existent licenture hurdles, and allow them to do a significant amount but not all of what is currently the exclusive domain of lawyer.

    Perhaps formally licensed paralegals could do wills, contracts, demand letters, mediation, and other matters. Perhaps paralegals or an intermediate paralegal-practitioner profession could argue cases in small claims court, traffic courts, and perhaps other kinds of courts as well, leaving full-bore lawyers as the only ones allowed to do things like argue cases in major trial and appelate courts.

    1. As a litigator, I can tell you that litigation is honestly the easiest thing we do. It is sort of ironic in that everyone thinks that’s the skill. Most experienced cops can be litigators. It really boils down to how well you ask questions and know the rules. The real art is in understanding the underlying principles. The most danger to the public occurs before the person in the public does something that will get them into court.

      1. I agree.

        My advice to a new lawyer wishing to do trial work is to be careful not to excel at anything. If you’re good at writing and research, you get sidetracked into motion/appellate practice. If you’re good at reading complicated contracts, you get sidetracked into transactional/coverage work. If you’re good at organization, you get sidetracked into trial prep (it’s more important to have a good job done in prep than at actual trial). Only the lawyers who are not needed elsewhere get to proceed to trial work.

        1. True in a big firm. Less in government but I agree. show real aptitude for writing and you’re going to be giving legal advice before the real blow up and not after. That’s where the real value is.

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