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.)
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?
"- 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? ;-)
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.)
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.
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.
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.
Some sort of constitutional amendment barring discrimination...
Since when is amending the constitution the coolest thing since Hanna Montana? Yes, "Congress Shall make no law discriminating on the basis of being a member of an organization or having attended a university", that sounds like a grand idea :)
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:
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:
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.
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?
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/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.)