Announcing the TOTM Symposium on Unlocking the Law: Deregulating the Legal Profession

Josh Wright —  21 August 2011

Robert Crandall and Clifford Winston’s op-ed in today’s Wall Street Journal makes the case for deregulating the practice of law:

Entry deregulation would also expand individuals’ options for preparing for a career in legal services, including attending vocational and online schools and taking apprenticeships without acquiring formal legal education. Established law schools would face pressure to reduce tuition and shorten the time to obtain a degree, which would substantially reduce the debt incurred by those who choose to go to those schools.

Supporters of occupational licensing to restrict the number of lawyers in the U.S. are wrong to assert that deregulation would unleash a wave of unscrupulous or incompetent new entrants into the profession. Large companies seeking advice in complex financial deals would still look to established lawyers, most of whom would probably be trained at traditional law schools but may work for a corporation instead of a law firm.

Others, seeking simpler legal services such as a simple divorce or will, would have an expanded choice of legal-service providers, which they would choose only after consulting the Internet or some other modern channel of information about a provider’s track record. Just as the medical field has created physician assistants to deal with less serious cases, the legal profession can delegate simple tasks.

Licensing and regulation of lawyers, long questioned by scholars, is emerging as an important public issue.  Legal costs are rising for individuals and firms with increases in litigation and regulation.  These costs tax business growth and entrepreneurship and impede ordinary Americans’ access to the civil justice system.  Meanwhile, the development of new business structures and technologies and significant regulatory moves toward opening up competition for legal services in the UK and elsewhere are forcing policymakers to address lawyer licensing and regulation.   A new book on deregulating the legal profession by Crandall, Winston and Vikram Maheshri should also help to focus scholarly and public attention on this issue.

Truth on the Market is planning an online symposium that will take place over two days, SEPTEMBER 19 and 20, covering these issues, and building upon our successful “Free to Choose?” symposium last fall on behavioral law and economics.   The “Unlocking the Law” symposium is designed to start an intellectual dialogue on this topic, bringing together legal scholars and economists with a variety of views and perspectives on the law and economics of the legal profession, regulation, antitrust.

Some questions the Symposium will consider are:

  • Should lawyer licensing be abolished?
  • What alternative regulatory approaches or structures should be considered?
  • What would a deregulated market for legal services look like?
  • Does lawyer regulation raise issues different from those of licensing and regulating other professions?
  • Does delegating to lawyers the power to restrict the right to practice law violate the antitrust laws?
  • What are the First Amendment implications of regulating what non-lawyers can say about the law?
  • To what extent can national or global competition alone break down barriers to law practice even without deregulation?
  • What are the implications of deregulation of the profession for law schools?

A great group of participants with a variety of perspectives on these issues will join the regular TOTM bloggers to discuss these issues.  Confirmed so far are:

  • Hans Bader
  • James Cooper
  • Robert Crandall
  • Nuno Garoupa
  • Bill Henderson
  • Dan Katz
  • Bruce Kobayashi
  • George Leef
  • Jon Macey
  • Tom Morgan
  • Richard Painter
  • Eric Rasmusen
  • Eric Talley

It should be fun.  We hope you’ll join the discussion in the comments.

32 responses to Announcing the TOTM Symposium on Unlocking the Law: Deregulating the Legal Profession

  1. 

    As regards the foreclosure scam I am unable to determine in what way the existence of the multitudes of Lawyers we already have, would have prevented idiots from being suckers. Indeed it seems what you actually mean in your argument is that the proliferation of lawyers has led to idiocy on the part of the public, since the idiocy curve, and the lawyer increase curve have tracked each other. Perhaps you mean to imply that we could assign each citizen’s rights over by power of attorney to a lawyer, lest the public do something stupid. Like sit their child on the back of a bear at Yellowstone for a photo op.

  2. 

    I think to ensure a well rounded discussion you should also have actual practicing lawyers who have seen the downside of deregulation in the law and in our practices. Frankly, I don’t fear competition from non-lawyers at all – in my energy regulatory practice, clients can be represented by non-lawyers at FERC and often use “regulatory experts” (basically engineers who are familiar with legal issues) to aid with the permitting process. In spite of these trends, I’m busier than ever.
    However – I also do pro bono and see first hand the casualty of no lawyers. Is your program going to address those “debt settlement” companies – non-lawyers – where people pay upwards of $2500 a month to have their debts “negotiated.” The company then tells these people not to show up in court, they receive judgments against them and the debt settlement company often doesn’t even pay them down.
    Will your program address the “foreclosure save your home non-lawyer schemes” where people would pay $5000 to a company with a bunch of forms to delay the process and then lose their homes anyway?
    Will you present empirical evidence of how deregulation and lower costs will expand access to law?

  3. 
    a. beatrice travis 27 August 2011 at 10:29 am

    Ayy. The poor judges. Aren’t we also known as “counselors”? What a load the courts would have if everyone could, I don’t even know what term to insert here – play lawyer, and we weren’t around to be buffers, wiser heads, counselors.

    I was sworn in just before the market for newly minted attorneys bottomed, so, I’m not rolling in the bucks. I’m certainly not shoving my way through a crowd of potential clients on my way to the public library, where I soak up free Wi-Fi because an office isn’t in the budget.

    Hoping, someday, to make as much money practicing law as I did working retail. Unless my law school education becomes obsolete first.

  4. 

    I’m interested in discussing access issues in context of criminal and civil forfeiture proceedings.

  5. 

    For a different point of point on “deregulating the legal profession”, see http://www.elawyeringredux.com. The economists think the practice of law is just another service business that should be subject to market forces. Very flawed thinking. The economics profession has been terrible at prediction and made its contribution to messing up the US economy. Maybe the “economics profession: should be deregulated also?

    • 

      Economics is entirely unregulated. Anyone can call himself an economist, and anyone can submit papers to the scholarly journals.

  6. 

    I’ll start paying attention the moment one of you actually and officially propose what you’re going to discuss at this symposium to a dean or to a board of trustees. Until you put your career on the line, this is just a bunch of conjectural bullshit. Do you law & econ profs believe your bullshit or not?

  7. 

    Deregulation should include permission to read the law oneself and sit for the bar exam. That would open up the process alot without creating a knowledge problem. The law is complicated, but can be learned without going to law school.

    • 

      LHF

      Do me a favor–markup the current A201, to be most favorable for a general contractor over an owner (Do the same for a subcontractor)

      If you “read law” for 20 years, you couldn’t do such.

      Mere law school graduates who just passed a bar exam could not do such.

      The “experts” who write this blog, who know nothing about the practice of law, couldn’t do such.

      But I could do that in 45 minutes.

      The “Law” ain’t in the books and its not in the license. All the license does is let one start learning to be a lawyer. The purpose of licensing is not to assure quality of legal services. The purpose is to weedout people who should never be a lawyer.

      • 

        I like that example. But it goes to make the point that lawyers are becoming obsolete. You, the commenter, could write one web application that answers your questions, and then anyone could check off which answer he wanted the form to do, and the application would put together a nice PDF for for him.

  8. 
    Unregulated Guest (UG) 22 August 2011 at 6:06 pm

    While we’re at it, let’s deregulate: chiropractors, pharmacists, opticians, physical therapists, massage therapists, psychologists, social workers, engineers, accountants, architects, surveyors, banks, mortgage brokers, mobile home sellers/manufacturers, drug companies, vitamin makers, common carriers, natural resources exploration and development, land use, commercial pilots, truck drivers, limousine drivers, paraprofessionals of all kinds (there are bound to be more that other people here can think of)

    • 
      Velville in Atlanta 26 August 2011 at 8:33 am

      And while we are at it, we would also deregulate all types of medical practitioners, plumbers and electricians, teachers (that may not be a bad idea, after all), and then we should do away with every stripe of personal liability and professional liability when errors are made.

      As a judge generally tells some one acting pro se, “You will be treated as if you know the law and know the rules.”

      Unless, of course, you are a public school administrator or instructor in Atlanta, at which time you make up the rules and collect bonuses for not being caught. Or you are appointed to the President’s Cabinet after never having worked outside of government or made a payroll or budgeted operating expenses for which you would be responsible had you miscalculated.

      Ook!!!

  9. 

    I am a retired lawyer. My will was prepared by a lawyer with that specialty. I ain’t dum enuf to do it meself.

  10. 

    If one were to deregulate the legal profession (even mostly–say some regulation for criminal defense lawyers and perhaps some services to the poor), would that simply shift the quality control aspect to malpractice insurers?

    In other words, instead of having New York administer a bar exam, various insurance companies would administer a bar-exam equivalent in an effort to determine the risk that you will incur insurable losses.

  11. 

    I agree with one proviso.

    “Deregulate” medicine as well. Doctors make it ridiculously difficult to enter the medical profession. More difficult than lawyers make it to enter the legal profession.

  12. 

    Deregulation is appealing, would be sounder economically but includes risk for the poor and poorly-informed. “Street Dentists of India” shows a curb-side dentist in India doing extractions, adding teeth and proud of his low-cost, free-market approach. http://www.youtube.com/watch?v=3ol-RyYnTD4 (3 min.) There’s a downside to manage.

  13. 

    I like what Anthony wrote, and would like to add that the need for plain language in the law is more important than in papers. Laws should be written in the language of the governed, and juries should ignore any law they don’t understand (I don’t mean to suggest that judges currently ignore laws they don’t understand, but I won’t hold it against you if you draw that conclusion).

  14. 

    Abe Lincoln, Clarence Darrow — didn’t they just “read” law?

  15. 

    I guess it works for cut & paste legal services but for anything complex I don’t think it will work very well. Knowledge of the law is only the entry ticket into the profession; mid- and senior grade lawyers are assumed to know the law pretty well already but are primairly paid for their judgment and predictive abilities, and until you figure out how to automate judges, that will be important. Do-it-yourself criminal and civil litigation may be pretty interesting under a no-barriers-to-entry approach given what is usually at stake, but hey, who cares. Caveat emptor, right?

  16. 

    Arizona did that a couple of decades ago. The legislature was investigating favoritism in state bar disciplinary proceedings, the bar refused to honor their subpoena, the Supreme Court upheld it, and the legislature showed its displeasure by letting the ban on practicing without a license expire. Non-attorneys still can’t do courtroom work, because court rules require bar membership. But there are “document preparers” who draft pleadings, wills, etc.. One problem is that there’s no training for a document preparer, so many of them are less than competent. I once sat waiting while a judge tried to hand-correct one of their form divorce decrees, and finally gave up…. it had things like terminating the other spouse’s parental rights, which can’t be done in a divorce proceeding (or, for that matter, in Superior Court). What’d be needed would be sufficient training to recognize what can go wrong; knowing how to create paperwork is the simple part.

  17. 

    Coming soon to the medical profession also. As technology improves you don’t need a doctor for access to everything medical. A good case in point is the device that now reads your eye and tells you what your visual correction prescription should be. Furthermore we need to revive the plain language movement for legal papers, that would eliminate the need to have a “wizard” read your legal papers that are written in the arcane language of “the law”. The legal profession fought this tooth and nail some years ago, but it needs to make a comeback. Monopolists never take kindly to the loss of their monopoly, but the greater world usually benefits from the increased access.

  18. 

    I find this abjectly terrifying.

    Just part of the general process of the blind leading the deaf in a society where the intelligentsia has been obliterated.

    • 

      I’ve found legal representation abjectly terrifying. How would you like to have your first attorney die without any insurance, care or concern for her clients thousands of dollars entrusted to her practice. Then the second attorney didn’t die, she just acted dead and took thousands from many until finally being suspended from the practice of law. Then the husbands attorneys, husband and wife, friends for thirty some years, opportunistically commited fraud …and artfully stoled what the first two attorney’s didn’t grab first. I’m now in an appeal Pro Se to recover the loss of everything, thanks to a bunch of unethical hacks. And to Joe Blow (5), it’s not cut and paste, I’ve invested hundreds of hours learning on my own and in legal continueing education classes in an effort to secure justice without traumatizing myself anymore with so called professionals. But as you say, hey, who cares. Caveat emptor, right???

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