
Do Judges Systematically Favor the Interests of the Legal Profession? - soundsop
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=976478
======
grellas
Modern law has many failings but biases among judges favoring lawyers does not
rank high on the list.

Here are some truly important things that favor the legal profession at the
possible expense of others and these generally have nothing to do with judges:

1\. Lawyers operate in the equivalent of a closed guild system that restricts
the availability of legal services to the public and that causes fees to be
artificially inflated. Lawyers need to be licensed in any given state in order
to practice law and, even if licensed in one state, cannot practice in any
other state unless licensed there as well. Lawyers also were historically
subject to significant restrictions on being able to advertise and promote
their services and many restrictions persist to this day. These licensing
requirements and advertising restrictions are _not_ established by judges but
by legislators who take it upon themselves to define standards for the
practice of law in the name of protecting clients.

2\. Expansionist view of law as an instrument of social change have
transformed the legal profession from a modest service business into a mega-
industry over the past five or six decades. When I started practicing law in
the late 1970s, I would marvel at how, e.g., _all_ reported federal cases
spanning a couple of hundred years took up x shelf space through 1960 while
those for 1960 and on took 10x (and were growing exponentially). The San
Francisco firm I started with had been formed in the 1880s and, even up to the
early 1960s, had no more than 25 lawyers in it at any given time - today, it
has over 1,000 lawyers. What has brought on such changes? Vast new federal
statutes that defined whole new categories of liabilities, highly liberalized
pleading and discovery rules that let pretty much any case get to trial at
enormous expense to those being sued, radical new types of cases such as class
actions that promoted mega-litigation - all these and more have brought about
an exponential growth rate in the legal field, and none of these has to do
with judicial bias favoring lawyers.

3\. The "American rule" specifying that each party normally must bear his own
attorneys' fees (as opposed to the "English rule" specifying that the loser
pays the winning side's fees) enables litigants to freely file crap-shoot
cases at little risk to themselves in hopes of extorting nuisance settlements
or worse from those being sued.

4\. Lawyer in-breeding creates mutual back-scratching. Big Law consists of
mega-firms of all types, those that promote big litigation and those who
defend against such litigation. Yet, all are united in promoting political and
legislative changes that enable such litigation to continue to expand. Here is
where the vested interests lie and, in this sense, judges can occasionally
sympathize in being part of the club (in this sense the study conducted in
this piece rings partially true).

Since law does not lend itself to skilled handling by those untrained in its
technical aspects, it is unrealistic to expect that citizen judges will
provide the answer to curbing the exponential growth in the legal profession
and in the scale of fees charged. If reform is to be sought, the answers must
mostly lie elsewhere.

~~~
lionhearted
Grellas, you're one of my favorite commentors here and always insightful.

I'm with you on your points - do you have any ideas for reform? I'm
particularly against mandatory licensing requirements as they tend to be sold
as a shield to protect consumers, but are frequently used as a weapon to drive
prices up and deter otherwise qualified competition entering the field.

How could we do away with in the States? Some sort of constitutional amendment
barring discrimination on the basis of being a member of an organization or
having attended a university? Restrict licensing requirements to being
competent with a very flexible way of proving that?

I spend a bit of time thinking about this, and I'm curious if you have any
thoughts on the way forward.

~~~
grellas
Easing licensing restrictions, or eliminating them, would certainly open up
the field in our information age for large companies to offer services more
easily to broader numbers of people at lower prices.

For example, many on this forum have undoubtedly used online incorporation
services to some advantage. But such services truly are limited in what they
can do precisely because they would otherwise come under fire for illegal
"practice of law." Thus, such outfits cannot in any way perform legal services
but can only facilitate the filing process and provide customers with canned
kits that consist solely of standard paperwork suitable for the generalized
case on and not for any specific situation. This makes such services helpful
for the right cases but highly limited. And the same applies to any other area
(contracts, trusts, etc.) where entrepreneurs try to set up enterprises whose
aim is to provide easy-to-use, low-cost legal services for specific areas.

The trade-off here is that loosening restrictions would of course make it
easier for unscrupulous or incompetent types to prey upon unsuspecting clients
- this problem is what gives impetus to the current system.

I personally think that we should strike the balance in favor of easing the
restrictions and trusting in clients to make good judgments about whom to hire
for what purpose. But I am a working lawyer in the trenches and have not given
much thought to the particular form such easing might take. An abolition of
all licensing would certainly make it all more "free market" and lead to a
significant lowering of prices but I can just imagine the collective gasp that
would arise from all sorts of quarters were such a proposal to be floated
seriously. So, I think we are stuck with the current system, with all its
limitations, for some time to come.

------
tokenadult
As a lawyer who studied the public choice theory

<http://en.wikipedia.org/wiki/Public_choice_theory>

perspective on legislation when I was in law school, I recommend that everyone
interested in public policy take a look at this article.

After edit: the other member of my household who is a HN participant and I
were just discussing the submitted article. That reminded me to mention here
that although many states require judges to be "learned in the law" (which in
practice is interpreted as "admitted to the bar," which in turn means in most
places to be someone who has passed a bar examination, which is only open to
someone who has completed an accredited law degree), there is no such
requirement for the United States Supreme Court. In principle, the Chief
Justice of the United States could be a nonlawyer. A President would have to
dare to appoint such a person, and the Senate would have to vote to confirm
the appointment, but if nine suitable nonlawyers came forward to accept the
appointment and were confirmed, the Supreme Court could consist entirely of
nonlawyers. (If that happened, they might rely heavily on the help of their
law clerks, but they might make some rather different decisions from any
previous Court.)

------
mnemonicsloth
Is this surprising?

A Judge can't preside over suits against a company he's invested in. That's
because we don't think anyone can render impartial answers to questions that
affect them personally. But the average judge must have more invested in the
legal profession than anywhere else.

Interesting follow-up questions:

\- What goes on in a judge's mind when she rules on a question like this? Is
she cynical about it? Does she just not think about it? Or does she
rationalize with happytalk like "sacred ancient rights and traditions"? If she
does rationalize, does that mean all such arguments are cynical at root, or
are some power plays more cynical than others?

\- What's kept this idea out of the journals until now?

\- Does it bother you as much that doctors probably get better health care
than the rest of us? That the children of teachers tend to get better grades?
That airline pilots fly for free?

~~~
rbanffy
"- Does it bother you as much that doctors probably get better health care
than the rest of us? That the children of teachers tend to get better grades?
That airline pilots fly for free?"

Does it bother them we know how to use our computers computers while many of
them lost their work because they pressed Control-A instead of Control-S? ;-)

------
btilly
They may, but not everything is biased for lawyers.

For instance did you know that it is legal to discriminate against lawyers in
housing? And not only is that discrimination legal, but it is actually common?
You see lawyers tend to know what parts of the rental agreement are actually
null and void, and can make themselves a PITA about it.

(I actually don't know how broadly this is the case. But I know it was the
case in NYC several years ago. Based on the explanation I got from a friend
who is a lawyer, I suspect that it is more generally true.)

------
lionhearted
There's some serious problems with American law. My father is a lawyer, I
almost became a lawyer, I've taken a fair number of law classes, spent time
with lawyers going over business law, and done some casual legal/historical
research. I've read a lot of the famous decisions and critiques of them in my
spare time for the hell of it, and I'm reasonably well versed in American law
for a non-JD-carrying person.

The United States is (mostly) under a system called common law. Long story
really short, common law has the advantage of making the law evolve more
gradually and less abruptly than the main alternative (civil law) because
judges create new law through their decisions and writing opinions.

Common law was a pretty good system at one point. Then this happened:

[http://en.wikipedia.org/wiki/Legal_realism#Essential_beliefs...](http://en.wikipedia.org/wiki/Legal_realism#Essential_beliefs_of_legal_realism)

Legal realism is, in my opinion, one of the largest disasters to hit the
United States. Take this, for instance:

"Stated differently, legal realists advance two general claims: 1) Law is
indeterminate and judges, accordingly, must and do often draw on extralegal
considerations to resolve the disputes before them. 2) The best answer to the
question "What is (the) law?" is "Whatever judges or other relevant officials
do"."

Legal realism did two things. The first was that it re-acknowledged that well
known and previously fought against notion that judges were influenced by
extralegal (outside of the law) considerations. This has been known forever,
and has traditionally been battled against - we're all human, but we can
aspire to higher and more pure forms of reason and justice, but okay, legal
realism acknowledged again that it happened.

Second, it specifically blessed that behavior, and encouraged judges to take
it.

Which has predictably been a disaster.

Certain domains of American law, especially family law, are so arbitrarily and
capriciously enforced, that there is effectively no law there. Just a set of
extremely loose guidelines, and then it's up to the judge's emotions and
feelings on the situation. The actual letter of the law routinely gets thrown
out, and the spirit of the law is very much an arbitrarily determined thing.
I've both participated and sat in on courtrooms where a judge basically
outright says, "Yeah, that's the law, but sod that, it's not right so I'm
doing something different." (This is possible when the law mandates something
that would be "unconscionable", which has become an ever lower threshold to
reach)

I think common law is too far broken in the States to survive, and personally
believe we need to move to a drastically simplified civil law code:

<http://en.wikipedia.org/wiki/Civil_law_(legal_system)>

The code should specify very specific remedies for situations, so parties know
very predictably what's going to happen when entering into a dispute. That's
how legal systems are supposed to work in theory, anyways. This is unlikely to
happen without some form of dramatic change, but I think the stability of the
United States depends on it. Judges and lawyers answer only to each other, and
treat each very well, and the system is rather an unpredictable mess in many
areas right now.

~~~
djcapelis
The problem is the legislature has a really nasty habit of passing bad public
policy. I frankly wouldn't trust them to come up with a good civil system. I'm
not comfortable with our system relying on what judges had for breakfast, but
I'm less comfortable with a system relying on what legislators do to appease
populism over sound policy.

I suppose the best way to find out whether you're right, might be to look and
see if Louisiana is doing better off with their legal system than some of the
other states?

~~~
lionhearted
Agree with you that the legislature is in bad shape too. As for Louisiana,
there's probably better examples. I'm thinking something similar to the
transition to the Napoleanic Codes in Europe as a realistic best case
scenario:

<http://en.wikipedia.org/wiki/Napoleonic_code>

