Government Of The Lawyers, By The Lawyers, For The Lawyers

by Conor Friedersdorf

In years past, University of Tenessee law professor Glenn Reynolds believed that American entrepreneurs facing an excessively complex regulatory landscape had legislators to blame – that there were too many laws, not too many lawyers.

But now my University of Tennessee colleague Ben Barton is making me think again. He's got a new book out from Cambridge University Press, "The Lawyer-Judge Bias in the American Legal System," and his thesis is that lawyers are not only a symptom of overly complex laws, but also their cause.

In particular, he notes that in America, pretty much all judges (except for a few justices of the Peace and such) are lawyers. And, after examining the work of judges in a number of different areas, he concludes that judges systematically rule in ways that favor lawyers, and that make the legal system more complex. (And legislators, mostly lawyers themselves, aren't much better).

It's a thorny problem. Filling the judiciary with non-lawyers would likely politicize the system, or at minimum introduce a lot of unpredictability. As Steve puts it in comments at The Volokh Conspiracy:

In all my years of handling arbitrations, I have yet to find a single client who wants their commercial dispute decided by a non-lawyer. Yes, several of the major arbitration forums have non-lawyers on their roster of arbitrators, but that doesn’t imply thoughtful participants with bargaining power want to use them. When two sophisticated parties make a deal they virtually always want disputes to be resolved by either a court or a lawyer/arbitrator, because the rule of law has value to them.

But what about those of us who aren't "sophisticated parties" with "bargaining power"? The rule of law has value to us – but that value diminishes quickly when we can't understand what the hell is going on, and finding out costs us so much money that we forgo certain opportunities entirely because we're priced out by the necessary attorney fees. That a legal system meets every last need of the typical Skadden client doesn't make it ideal for the rest of a country's citizens. I haven't any idea what the solution is to this problem. But I think that Professors Reynolds and Barton are correct that it is a problem.