The Legal Profession and the Case for Fundamental Reform: Conclusions and Recommendations

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The preceding series of posts based on Trouble at the Bar have discussed policy-related issues, access to justice, ideology on the Supreme Court, and the efficacy of government microeconomic policy, which are central to the legal profession. I have not noted but acknowledge here the vital contributions that the legal profession makes to protecting individuals' rights and helping people get along with each other.

Ironically, the general recommendation that emerges from my previous posts is that the legal profession should get along with more people—that is, it should make a much greater effort to work with and embrace a broader set of colleagues with backgrounds in different disciplines and levels of training. Self-imposed entry barriers have caused the legal profession to run a closed shop that has limited the contributions it could make to the nation and its working conditions. All aspects of the profession would benefit if the profession supported deregulation and removed its straitjacket to engage freely with new and eager participants.

Providers of legal services would be much more heterogeneous and include highly specialized individuals with vocational and online training, an undergraduate law degree, a law degree from an accelerated or three-year law school program, and a degree from a well-designed multidisciplinary program in law and another discipline. Society would gain because the expanded workforce would cater to a much broader range of consumers who would be able to afford some form of legal representation that is of value. In addition, law firms are likely to benefit by hiring people with less extensive and less costly education to help provide certain services at lower cost and, in some cases, by attracting more effective managers from the business world.

Industry entities would expand as corporations provide legal, financial, accounting, and other services; foreign law firms provide services relevant to legal issues in the US and other countries; and hybrid firms provide legal services, economic analysis, lobbying, and the like. Still other entities would integrate legal services with a different array of services. Society would benefit from the expanded services and more intense competition; the legal industry would benefit from the opportunity to form new relationships that generate synergistic efficiencies and new services that have yet to be imagined; and employees would benefit because the influx of new service providers would cause the industry to reevaluate working conditions and adapt them to accommodate a more heterogenous workforce.

Legal education is likely to offer a much broader range of courses and programs to educate the more heterogeneous legal services industry. More interdisciplinary academic programs means that more faculty will need to be trained in both law and another discipline. Generally, law faculty would get more experience working with people trained in different disciplines and would appropriate the strengths of those disciplines to improve legal scholarship.

These changes will combine to help the legal profession have a more constructive influence on public policy. Greater exposure to other intellectual disciplines should encourage judges and justices to be much more receptive to forming and working with panels of independent experts to help improve their decisions and to be more aware of harmful ideological and political influences. The change in the competitive and educational environment should enable the government to attract stronger lawyers who are better trained to overcome status quo bias and be more interested in obtaining credible empirical evidence to guide policy assessments and to justify policy reforms.

Of course, the benefits that I envision from a fully deregulated legal services industry composed of more heterogeneous workers and firms and responsive to more heterogeneous consumers would not come without costs. State licensing requirements and ABA accreditation policies and regulations currently substitute government and association judgments for the judgments of individuals and firms. Aspiring legal service providers would have a broader choice of education and career choices; firms would have a broader choice of services to provide and markets to serve; and consumers would have broader choices of legal service providers to hire and information sources to consult.

Mistakes will be made. Some people who could not have practiced law because they could not obtain a license will turn out to be incompetent and provide poor service; some online and vocational courses will not help people provide useful services; some corporations and foreign firms will behave unethically; many traditional law firms may fail because they are unable to adjust to the new competitive environment; and some consumers will make poor choices of legal service providers to hire. These possible outcomes are familiar to an economist because all US industries that were deregulated experienced variants of them. However, the industries, consumers, and the nation overall are better for going through the difficult process, although I recognize that is no consolation for those who were adversely affected.

Deregulation naysayers are likely to dig in and assert that the legal industry is different from all other industries. That view is incorrect to the extent that participants in all industries respond to incentives, are more efficient and innovative when they face fewer constraints and more competition, and succeed when they adapt to changing technologies and respond to shocks. However, that view is correct to the extent that all industries eventually fail when they are mired in the status quo, because the legal industry has been mired in the status quo and appears to be successful.

Trouble at the Bar concludes that the legal industry's success is illusionary and that it could be enormously successful if it were deregulated by helping the nation to achieve greater fairness and efficiency far more than the economics profession could ever hope to do. Given that a lawyer coined the phrase Trillion Dollar Economists to characterize the social value of the economics profession's ideas that have shaped the world, imagine what the social value of the legal profession's contributions could turn out to be.

NEXT: Today in Supreme Court History: April 30, 1789

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  1. Sorry to Dr. Winston and to the libertarians. The lawyer profession is run like a criminal enterprise, and is a rent seeking bunko operation in utter failure. It fails in every self stated goal of every law subject. Its biggest and most unforgivable failure is in protecting the nation from 15 million common law crimes, and 100 million internet crimes a year. Naturally, minorities suffer most.

    Instead of deregulation, it must be crushed. The 25000 members of its hierarchy should be arrested, tried, and sent to prison. Start over. It is a real world practice, and its remedies should require proof of safety and effectiveness. Its unconstitutional supernatural doctrines must be eliminated, not slowly, but immediately. Do not wait 100 years for this failed hierarchy to pass away from natural causes. Get rid of them. They are criminals and traitors.

    1. One intermediate step would be to return to the plain English of the Eleventh Amendment. It prohibits suing other states, not one’s own state. These horrifying tortfeasors should be deterred. That would shrink government, as liability does to all defendant enterprises. Shrink government. Stop shrinking manufacturing.

    2. It’s like a cockatoo kept in a room with only conservative talk radio constantly played did a few lines of coke and then pecked this comment.

      1. Queenie, the lawyers know to what I am referring. Dr. Winston is not a lawyer, and things are 100 times worse than he thinks. Lawyers and judges understand, but do not know what to do. I do.

        I do appreciate your being the only one stupid enough to actually reply to me.

      2. Prof. Volokh: Please, remove this vicious, mean spirited, hurtful remark by Queenie. I feel intimidated, threatened, and traumatized by it.

        1. Queenie. You need to be cancelled, Hon.

        2. Of course, its a fairly skittish breed and all that coke surely exacerbates that.

          1. You need to be cancelled, Hon.

    3. “run like a criminal enterprise, and is a rent seeking bunko operation in utter failure.”
      Charity demands not insulting the author of such a stupid comment

  2. Endowed chair profs are unfortunately part of the hierarchy. They devastate the intelligence of thousands of bright, ethical students, and turn them into lawyer d-words.

  3. Interesting — this is the first of this series that I’ve read, so apologies if this has already been covered, but while I welcome the suggestion of actual scholarship in the legal academy, the analysis seems to miss one crucial point: What might such a change do to the law itself?

    Compare the system in early modern England, with the universities continuing the classical tradition, largely in Latin, while the “Third University” of the Inns created downtown temples to the law, largely taught in the vernacular. Classical knowledge flourished at the Elizabethan Inns among “Minerva’s Men”, but as a source of power and prestige exogenous to the artificial logic of the common law. Perhaps unless you put the ideological systems into formal relation, you degrade their ability to describe the world, and to accomplish the work for which they were created. (In a worst-case scenario, this proposal might represent the thin edge of the wedge for Sociology as an instrument of court justice.)

    That said, any change that shifted the focus of the law schools towards actual scholarship, as opposed to circulating outlines with various combinations of ideas upon which professors have smiled in the past would be a very welcome change. Take a look at the training exercises of the Inns sometime (the Selden Society has published many); there is such a thing as academic rigor in the legal academy — but, to put it bluntly, we haven’t got any.

    Mr. D.

  4. What, other than overweening arrogance, makes the members of the legal profession think that they should have any more influence over public policy than any other citizen. “The Law”, in and of itself, is not a moral construct, but an ethical one. Hence the legal systems of totalitarian states which support[ed] their systems through the most erudite and reasoned analyses.

    This may have been the reasoning of the Founding [Old White Men] Fathers, who understood the power of democracy and the necessity of the moral systems of religion.

    1. Government is now a wholly owned subsidiary of the lawyer profession. No matter the elected figurehead, lawyers make 99% of the policy decisions. Of course, the interests of the profession and of themselves come before all others. That is why government does nothing well. It does score a $trillion heist for the lawyer profession. Government does that very well.

    2. “not a moral construct, but an ethical one” imposed by the police power of the state

  5. the general recommendation that emerges from my previous posts is that the legal profession should get along with more people—that is, it should make a much greater effort to work with and embrace a broader set of colleagues with backgrounds in different disciplines and levels of training.

    OK.

    All aspects of the profession would benefit if the profession supported deregulation and removed its straitjacket to engage freely with new and eager participants.

    IMO, these posts have not made this case at all. They have mostly been recitations of libertarian ideology, without any real supporting evidence or real-world considerations.

  6. If the book had a co-author in his 20s of age, I wager that there would have been mention of opening the door to automated legal services. Automated with or without AI, no matter what the phrase AI means.

    Almost all other types of services will see competition from machines in the future. There’s no reason why legal should be an exception. (Even prostitutes face competition from sex robots. Arts, literature, filmmaking, and entertainment, are subject to automation. I think plumbers may be one of the last holdouts resisting automation, but not lawyers.)

    1. A judging algorithm should be written by and owned by the legislature. It would apply the laws uniformly. When it makes a mistake, the injured party should be able to sue for negligence. This should be true for falsely accused defendants and for victims of prematurely released criminals, or of criminals never prosecuted in discretion.

      1. “written by and owned by the legislature.”
        That would guarantee complete lack of utility

    2. “competition from machines in the future”

      Competition per se is doubtful.
      People come to the legal professions from many backgrounds. Some of those will introduce techniques of machine learning into their practice. Thus, AI will not be in competition but introduced as a practical tool that improves as the field of AI develops

      1. I agree that the best architects of automation are those who know how to do things the old way. But once the innovative guy implements the automated tools, he becomes more productive. That means fewer employees or partners in the future. In that sense, the machine competes with those future people.

        1. “In that sense, the machine competes with those future people.”
          I have not seen that in my field in which AI is being pursued in depth. In fact I see that creates more job opportunities

  7. Reform should extend beyond the legal profession to all the humanities and to a lesser extent the social sciences. To turn it back into a real discipline rather than a sjw indoctrination camp and postmodern wanksession.

    Ironically this will help everyone especially the students and teachers who will probably oppose it the most as the profession become useful again and a positive contributor society, increasing demand and jobs drastically over time.

    1. The Rule of Law is an essential utility product, like water and electricity. Turn it off, one spending all one’s time on physical survival. Once properly regulated by outsiders, the number of lawyers will be cut in half, their wages will quadruple. Their public esteem will rise 10 fold because they are valuable and productive. Meanwhile the economic growth rate will soar to its more natural 10%. Crime will disappear. Trust will reign between parties, which is very efficient. The first law schools to be closed by force should be the First Tier. They are treason indoctrination camps. Their alums have devastated our nation. They are going to make it unlivable soon.

  8. Mr. Behar–Consider re-channeling your time to write a book. It might need to be self-published, but could be quite entertaining.

    1. I think it’s called The King in Yellow.

      1. I very much enjoy that reference. Kudos.

  9. This is sadly more utopian fantasist bullshit. If some lawyers went to plumbing school… what a world we would live in!

    Let me tell you this. Nobody who went to trade school is going to law school. Not because it’s hard, but because if you’ve got a trade you probably make at least as much as most lawyers. Why on earth would you go to law school?

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