Trouble at the Bar
2021-07-11 · Guest: Clifford Winston (Senior Fellow at the Brookings Institution) · 52:18
Occupational licensing and deregulation in the legal profession
Bob Zadek interviews Clifford Winston, a senior fellow at the Brookings Institution, about his book Trouble at the Bar. They discuss the adverse effects of occupational licensing in the legal profession, the American Bar Association’s monopoly on legal education, and how deregulation could improve access to justice and the quality of judicial decision-making.
Topics: Occupational licensing, American Bar Association (ABA), legal deregulation, judicial ideology, microeconomics, access to justice, legal education reform, Richard Posner
Speakers:
- Bob Zadek: Host
- Clifford Winston: Senior Fellow at the Brookings Institution
Introduction to the Legal Profession’s Problems [00:00]
Bob Zadek: Good morning, everyone. Welcome to the Bob Zadek Show, the longest-running live libertarian talk radio show in all of radio. Thank you so much for listening this Sunday morning. We are this morning, and always, the show of ideas, never once the show of attitude.
This morning, we will do a deep dive into what’s wrong with the profession of law. How’s that to get your attention? Now, all of you are sort of virtually raising your hands and saying, “I know, I know, I know. Here’s my list of what’s wrong with the profession of law.” Well, I have been a practicing lawyer for 54 years, and I find some things wrong with the practice of law. But as a way to spend 54 years, I can think of no better way to have occupied my space on earth.
But there is a lot to discuss about the practice of law. More importantly, as you will learn, it’s not just the issue of how is the practice of law carried on and regulated in this country, because that would seem to just affect lawyers. And that would hardly be worthy of my asking for an hour of your time this morning. But it’s a deeper issue because, as you will learn this morning, the maladministration of the profession of law—not in the actual day-to-day practice things that lawyers do, but in the regulation, in the organization of the practice of law—it has a profound effect upon every single American all of the time. Not only that, it affects Americans indirectly because it actually affects the proper functioning of our government. So this is not a narrow issue involving just lawyers, and everybody else can sort of tune out, but rather this affects all of us, as you will learn this morning.
With that introduction, I’m delighted to welcome to my show this morning Clifford Winston. Cliff is a senior fellow at the Brookings Institution’s Economic Studies program. He is an applied microeconomist, and my regular listeners know how much I love learning from economists who are gracious enough to be guests on my show. Cliff has recently written a book that caught my attention, entitled, frighteningly enough, Trouble at the Bar, where Cliff does a deep dive into how the maladministration of the regulation of the practice of law profoundly and quite negatively, as you will learn, affects our everyday life simply as Americans. Cliff, welcome to the show this morning.
Clifford Winston: Thank you for having me and thank you for covering this topic.
Microeconomics and the Legal Market [02:12]
Bob Zadek: Now, Cliff, you’re a microeconomist. Tell us in a few words how the profession, the approach of microeconomics, differs—how the work you do would differ from a macroeconomist—so they can follow your profound interest in this subject and in related topics.
Clifford Winston: So, microeconomists tend to focus on specific markets and industries, whereas macroeconomists—I’m sure when you have them on, they’ll talk about the macroeconomy, the overall economy, GDP growth, unemployment, inflation—whereas, as I said, microeconomists will look at specific markets and industries and the policy issues that relate to those entities, if you will, whereas macroeconomists will largely focus on federal government policy.
Bob Zadek: You have written—this is the second book you have written, I think, at least two, about the profession of law. How did you, as a microeconomist, how did you happen to stumble upon or, maybe more directly, put the profession of law into your crosshairs? What brought the profession of law to your attention, and what was there about that profession that led you to write not one but two books on this subject as a microeconomist?
Clifford Winston: So, I began my career as an economist actually studying transportation industries, which were an exciting industry to study at the time that I was doing it in the 1970s because they were undergoing the transition to deregulation. They’d been regulated for many years, and there were lots of concerns about their performance, and it was widely believed that deregulation would improve performance. And so this was a time when economists—and as I said, I was among them—that were studying the effects of deregulation, looking at airlines, railroads, trucking industry, and so on and so forth.
And so I launched a research program on those industries at deregulation. And one of the things also I was learning is that initial perspectives on what were going to happen really weren’t quite right, and you had to take a long-run view. So I sort of went through all of that in those industries, and then I turned to sort of other areas. And a quite natural one to me was the legal profession, or generally industries that were subject to entry barriers in the form of what we call occupational licensing. And so I thought, okay, this would be an industry again that’s subject to a form of regulation, in this case entry barriers, and so I proceeded to study it.
The Regulatory Scheme of the ABA [03:33]
Bob Zadek: Now, just to help the—let me just set the stage for the regulation of the practice of law so that the audience will know what is the world you directed your attention to. Lawyers in all 50 states cannot—are prohibited from practicing the occupation, the profession of law, unless they are licensed. As my regular listeners know, I consider the whole word “license” to be a despicable word. I hate to even use it. The fact that two adults need permission from the government in order for one adult, not being coerced or threatened or defrauded—one informed adult making a decision to hire another adult to do an activity which is otherwise lawful—the fact that those two adults cannot transact business together without permission of the government, that’s what a license is, that I find abhorrent.
But here we are. So lawyers have to be licensed. But not only that. In order to be licensed in most states, lawyers have to attend an accredited law school. You can’t just go to any law school. Now, states vary, but in general, that’s the practice. And law schools can only be accredited if they are awarded the Good Housekeeping seal of approval by one or the other of a regulatory or quasi-regulatory agency such as the American Bar Association. So now we have, once again, lawyers not only have to get a license, but they have to go to an American Bar Association—who the heck picked them?—an American Bar Association-approved activity, and then law school. And then lawyers, their activities are regulated by some regulatory agency. So if lawyers do things that the regulatory agency finds to be improper or unethical or whatever the standard is, lawyers can lose their license and they no longer can practice law. And so that’s the scheme in which Cliff now directed his attention and has written at least two books and, I’m sure, a bunch of papers on the subject as well.
Now, Cliff, while that is sort of limits those who can be lawyers, so if I stop there, that means, well, certain people who otherwise might want to be lawyers and might think they’re competent to do so, but the government says, “We don’t think you’re competent and you’re not allowed to do it.” So the licensing regime would seem to adversely affect only those people who want to be lawyers but who the government prohibits from doing so. And while, sure, that’s too bad for those people, but the adverse effects are narrow. But you wouldn’t have written your books if it was only because you felt it too bad that certain people couldn’t be lawyers. But your problem with that regime is that has a far more profound effect upon all of the non-lawyers and people who don’t want to be lawyers. So what is the broader adverse effect that drew your attention? What is the broader adverse effect caused by that licensing regime?
The Myth of Quality Control through Licensing [05:01]
Clifford Winston: Okay, well, let’s take it a little slower from the top because you’re actually weaving in sort of an important theme about regulations that exist, not just the legal profession, but really for all industries. And that’s the, at least on the surface, well-intentioned aims of the regulators. So in the case of the legal profession, all of this which you described—the licensing and the bar exams and going to the accredited law school—had the good intention of making sure there were quality lawyers. And the reason why people involved in licensing felt that this was important is because laypeople such as myself would not be able to distinguish a good lawyer from a bad lawyer. There wouldn’t be a requisite information, or they themselves just weren’t smart enough to figure it out, or lawyers would be able to deceive them about what they could do for them, so on and so forth. So the feeling was, look, if we only let high-quality people in, then this will solve that information problem.
So that really is what sets the stage of the bigger question then: what are we trying to accomplish? See, too often we get in policy debates—we ought to do this, we ought to do that—without stepping back and asking the fundamental question: what are we trying to do? Right? So the answer to this question, as is often the answer to almost any policy question, is we’re trying to maximize the benefits or net benefits to American society that the legal profession is providing. And that’s what we’re really trying to do, and presumably then we have policies that attempt to do that. And as indicated, a concern was that to maximize benefits, we had to make sure we had quality lawyers.
Okay, but as we’ll get into in more detail, we’ll find out a couple of things. One, that these entry barriers, licensing requirements of going to law school, did very little in terms of improving the quality of legal services, and they had considerable costs. So this is now a prelim to getting to your question. So the initial costs, and the ones that we see in other industries where we have entry barriers, is raising the price of the service, right? You cannot get everybody in who wants to compete, and in particular, I’ll argue that you can’t even get the lowest-cost innovative suppliers in. So prices for legal services are high. It’s also the case that then quantity or access to legal services is much lower. Despite the view that people think there are too many lawyers, the truth is there are not enough lawyers.
And then finally, which is really the important part of extending this analysis, is that in the process of having these entry barriers, we’ve siloed lawyers. That lawyers are isolated. They go through a particular training and exposure among other lawyers, but they don’t engage, in my view, sufficiently with other disciplines, certainly economics, but other disciplines as well. And this really affects them in their positions in making policy, both in courts and in general in government. So it’s really this last issue—legal profession’s engagement with other disciplines and the efficacy of their policymaking—which I think is an unappreciated byproduct of the entry barriers and restrictions on practicing law.
Access to Justice and the High Cost of Law [06:39]
Bob Zadek: So all of this entire structure, as you pointed out, because your first point was to help consumers make intelligent purchasing decisions about purchasing legal services. Well, that, of course, if it ever was true, that need is infinitely less true today than any other time in economic history because in the old days, all one had to go on was reputation. You didn’t—and reputation was very local. It was reputation in the village, in the community. So that was some guidance, but not much. But today, where information about the quality of anybody you’re going to hire or anything you’re going to buy is almost infinite with the internet and with access to so many platforms, anybody can learn all you need to know about any good or service on the planet. You can get information, and you simply have to make the right decision. So if there ever was a need—
Clifford Winston: It’s instantaneous. It happens immediately, right? You have a bad meal and everybody in the world knows about it at a restaurant.
Bob Zadek: While you’re eating it, you’re texting. Of course. As you chew, as you chew, you’re texting. Of course. So therefore, if—and by the way, you mentioned good intentions. Everybody has their private beef about bad government policy, the inefficiency of government and the like. Every single policy that people complain about the most is born of good intentions. Let’s just stipulate. That’s almost no reason to support a policy, is that people mean well. Confiscating money to give it to somebody who needs it more is a good-intended policy, perhaps, but it’s wrong on so many bases. Okay, so we have—
Clifford Winston: Well, let’s be careful here, though. I just want to be careful on this one point here. I would say ostensibly good intentions. There was never any evidence when the process began of licensing lawyers that there were problems of information that people could not distinguish good lawyers from bad lawyers. There’s not a shred of evidence of that. And there’s a debate as to why lawyers were licensed, but certainly one of them was to quote-unquote “keep people, certain people out” of the legal profession, or arguably at least make it harder to get in to increase wages of lawyers. So I think it’s not only the good intentions, but what probably is often worse is that it’s the ostensible good intentions when in fact they have no good intentions at all. It’s just outright rent-seeking or even discrimination that’s really driving a lot of these policies.
Bob Zadek: And it also, in law, in medicine, and in I’m sure other professions, it creates somewhat of a mystique that don’t dare go near, don’t try to acquire information on your own or from somebody else. It’s just too complicated, and you have to use a lawyer who is cloaked in this mysterious wealth of information that non-lawyers couldn’t possibly have, and therefore you better stay away, and therefore their stature in the community is enhanced by creating that mentality by the buying public.
Clifford Winston: Not only that, so you get the wrong idea. You’re lulled into a false sense of security. That is, you hear of people who have graduated from this law school and they passed the first time in their bar exam, and you interpret that as imprimatur of quality. And you can be lulled into thinking, “Oh, this guy’s going to be good.” And obviously, the proof is in the pudding. What do we really know about this lawyer’s performance?
Bob Zadek: And of course, I’m now going to give a consumer advisory. The state of California has told the entire country that I am competent to defend you in a death penalty appeal. According to the state of California, I’m your guy. Let me tell you, do not hire me to do that. Not only have I not been in a courtroom, I don’t even have a suit. So therefore—but the state of California says, “Go ahead, hire Bob. He’ll keep you out of the—whatever they use to execute people these days. He’ll keep you alive. Trust him. He’s a licensed lawyer.” Utterly absurd.
Okay, now, so the question is, that commentary we have just had, you and I, Cliff, relates to every licensed profession, from barber to surgeon. But you have chosen to write about—you picked lawyers not at random and not because of any other reason. You had felt the adverse effects on the public through the maladministration of the occupation of law has a more profound and deeper effect. So tell us the headlines—we’ll do a deep dive—but tell us why you have chosen to write about law and not, for example, about medicine or engineering or electricians.
Clifford Winston: Okay, well, I would say three things. First, access to legal services. It is amazing how few people realize that lawyers only serve a tiny share of the population. Most people just cannot afford a lawyer. It’s too expensive, and they don’t even know how to get a lawyer, and so on and so forth. And these are people in situations where you don’t need somebody who went to Harvard Law School to get help. You could get some simple advice, even guidance how to use LegalZoom, all sorts of things where you could actually help somebody, and people just don’t. I report evidence in my book about estimates of how much of the public really does not have access to legal services, the 80-plus percent, and then evidence pointing out that in that case, people then defend themselves, and of course they lose much more often than people who do have legal representation. You have discussions of people who are facing immigration issues. Again, when they have to defend themselves, they lose it at a much, much higher rate than when they’re able to get some lawyer to help them. So that’s the first one, which is really important. I mean, at a time when we are really concerned, increasingly concerned in public discussions about inequality and helping out with the lower part of the income distribution, one would think access to legal services would really be a crucial issue up at the top to help people out, because legal issues are often an important source of their problems. And so this is a problem, that is the access to legal services.
The second one, which we’ll get into, really is the performance of courts, in particular ideology on the Supreme Court. How serious a problem is that? How could opening up the legal profession to have greater interaction with professionals and experts in other disciplines help reduce that problem and lead to more effective decisions and more socially helpful decisions?
And finally, just public policy in general. I mean, you mentioned concerns that everyone has about public policy. The real challenge is why this persists. This is not new. For decades, people are saying, “Oh, government policy this, government policy that.” Yet it goes on. We rarely see fundamental improvements in government policy. Why is that? What are the roles of the legal profession in contributing both to the inefficacy of public policy and the persistence of poor public policies? So those are the three headlines that are related to the research that I’m doing.
Judicial Ideology and Business Cases [10:19]
Bob Zadek: Now, let’s pick one—let’s go in order. They’re all wonderful topics, almost deserving of a show all unto each one. But let’s unpack it because it’s such an interesting conversation. At least when I reviewed your book and learned your points, I was really intrigued and I found myself doing a deep dive thinking through the issues. So let’s talk about the first point you made, which is you observe that you felt the court was far too—and I don’t mean to restate it in a way other than you have said it, I’ll try—the court was too ideological in making its decisions and it didn’t focus on the effects on everyday people, it didn’t pay attention to economic consequences, it kind of made decisions without regard to the overall positive or negative effect of its decisions. Is that a fair summary of that point?
Clifford Winston: Well, I think we can just distill it into a point that Judge Richard Posner has made, is that judges in general are ideological because they can’t be anything else. That is, they really don’t approach law from any sort of common foundation for really making decisions. And so ultimately, they’ll go on intuition, their own reflections on various topics, and then they’ll rationalize and just say, “Okay, I can find some legal argument to justify this and say, here’s what I think.”
But what is troubling about ideology, especially these days, it now is lining up in political ways. And we are really seeing the major concern that judges—if not justices—are politicians in fine robes. And they’re just basically reflecting the views of the president that appoints them. That’s the concern. And the question is, one, first, what was the evidence on that? And two, what possibly could we do to change that trend?
Bob Zadek: Now, ideology is a tricky word, and your book was an economic study, not a philosophical study. So it wasn’t necessary to do a deepish dive into ideology. And what I couldn’t understand and found myself wondering about is whether a judge that—they’re generally called conservative. I hate the phrase. I don’t think that’s appropriate. But because the audience will think that way, I’m going to use that as well. A conservative or perhaps originalist—not that the two are equal, but similar—an originalist judge says you interpret that individuals possess certain rights that government cannot infringe upon. And those rights may impair government taking action. And more progressive judges and politicians believe that those rights tend to interfere with the administration of government. Woodrow Wilson probably started the modern way of thinking, Teddy Roosevelt slightly before him. And those people believe that a government of experts knows best, and if rights are trampled upon just a wee bit, well, it’s for a common good. Now, I couldn’t understand from your writing whether a judge who is strongly protective of individual rights—free speech, freedom of assembly, due process—whether that’s being ideological or whether that’s the very job of a judge. So I couldn’t understand when mere adherence to the law is just that and when it becomes ideological as you use it.
Clifford Winston: Right. So to avoid that problem, what I wanted to focus on, which was quantitative, is to look at business cases where to me a reasonable interpretation of ideology is that you will have what we call conservative judges, justices siding with business as part of Republican Party’s general support of business, and liberal justices generally opposing business in cases before the court. So even though I agree that things could get muddy, you study business cases, those are going to be much cleaner. And there is reason to see that there’s going to be a split, at least in theory.
And then what I did in the book was actually test. If you look at business cases over time in both the Rehnquist courts and the Roberts courts, are we seeing, controlling for all other factors—okay, once we do that, do we see the conservative justices lining up and having a greater likelihood of a vote in a case in favor of business and the liberal justices, again all else constant, lining up voting against business? When we do that, what do we see? And sure enough, yes, there was this very sharp difference between these justices on the business cases. But not only that, the split has grown over time. That although the split existed in the Rehnquist court, it’s got even larger in the Roberts court. And so that obviously is my concern, that clearly these what we call ideology or preference variables for these justices are very important and they’ve gotten even more important over time.
And we see this obviously in other ways. This is not a study that I did, but I report one that somebody else did. They looked at sentencing, and they found that sentencing for blacks who were convicted of crimes, again holding all other influences constant, Republican-appointed judges gave out much longer sentences than Democrat-appointed judges. All right, these are concerns that there’s something else, a preference, an ideology—I’ll interchange those words, that may be better—are coming into decision-making. And that’s then when I said, okay—
Bob Zadek: So you aren’t—when you pick sentencing, a good example, although it’s not a business issue, but you don’t reach a conclusion that the Republicans are wrong in long sentences or that democratically appointed justices are wrong in overly short sentences. You just observe the dynamic because you studied the effects and you tried to isolate the causes, and you have concluded as an economist that putting aside who’s right and who’s wrong, the fact is that one can predict result based upon ideology, and that in and of itself is wrong. And you’re not taking a position—clearly, it’s not a legal book.
Clifford Winston: Yes, that’s a very important point. Yes, it is certainly another step to say, okay, yes, these preferences and ideologies are at work. What then are the implications? And that’s much harder. And I make it clear in the book that there’s not yet evidence to say, for example, in these business cases that this is really hurting industry or helping industry. But it’s hard to believe if this is what’s driving an awful lot of decision-making that that’s a good thing, especially then when you start layering that on top of other hard evidence we do have about the inefficacy of public policy in antitrust, in regulation, and so on and so forth. And so I think that’s right, the qualification that you say, yes, just because someone is making decisions based on ideology or their own personal preferences doesn’t necessarily mean that the policies and decisions are harmful. But on the other hand, you do not think this is the way we actually get at good results. And then when you layer that on top of the evidence that we do have that there’s so many inefficiencies of public policies, it is something that I think is concerning and worthy of—and let me might as well get to the punchline—my recommendation is that courts now start working with expert panels.
The Need for Pragmatic Policy Analysis in Courts [12:31]
Clifford Winston: That, contrary to the beliefs of lawyers, law is just simply not sufficient. It is not rich enough, it is not developed enough to really guide society alone on public policies. There are other disciplines that are equally as important and really need to be integrated much more often, much more often than is the case now to help out with law.
Bob Zadek: I’m so glad you just said that. I was trying to figure out how to segue into that—what you call the punchline—which is the need for pragmatists, for experts in underlying policy to help courts decide. And you mentioned earlier in our discussion this morning, you made reference to Judge Posner, who has written extensively about law and economics. He’s quite a brilliant jurist and written a great number of books, and you cite him in the book. And you cite Posner as saying he wished that judges had more pragmatic policy-based—I’m quoting from the book—pragmatic policy-based decisions and that lawyers with that education can help the court.
Judges as Super-Legislators? [14:30]
Bob Zadek: And what I thought about is I worried—and this and I think I’d like to close the discussion of the courts on this, but I really would like your comment—I worried that in asking that judges have a more pragmatic approach, I read “pragmatic” as being non-legal. And then I jumped to, Cliff, and this is my point: aren’t you asking judges to be legislators? It’s the legislature’s job to have hearings and do deep dives and to make policy decisions, and the court doesn’t rule on “is legislation good,” it only rules on “is it constitutional.” And aren’t you, in expanding the mission statement of the courts, to be a super-legislature?
Clifford Winston: Right. Okay, so let me introduce two very important concepts which really separate economists from, again, the legal profession and lawyers and this notion of really what we’re getting at in terms of making pragmatic decisions. And that is the words “prospective” and “retrospective” assessments of the impact or effect of your decisions. That is, economists look at any policy decision as something—if you’re going to recommend that you do something, or you’re going to find for a particular plaintiff or defendant on a particular issue in a way, it is important and desirable to perform prospective assessments. That is, what do you think the effect of this decision, policy, etc., will be when you actually subject it to an empirical analysis? And then retrospective assessments, that after you’ve done it, you look back and you say, what are the effects of these decisions?
All right, and that is essential to economic analysis in actually shaping policy and providing guidance. And that is something lawyers—they’re not trained to do it. I don’t even think they really understand what I’m getting at. You just learn the law, you apply it. But you’re pointing out to me there’s an assumption made, or there may be an assumption made, that ideology is bad. But there’s also then an assumption made that law is good, and that when you quote-unquote “follow the law,” as you say, you’ve made a good decision. You’re not then looking forward and saying, “Hey, I did a prospective assessment and look, this is how things are going to turn out empirically and they’re going to be good.” Or you’re not saying, “Hey, if you subject this to a retrospective assessment, then you’re going to find, yes, this was the right thing.” Far from it. You’re just saying the law is good, I’m wiping my hands, this policy analysis is not for us.
But wait a minute. Everything you’re doing is policy analysis. Just because you don’t subject it to a retrospective or a prospective analysis doesn’t mean that I can’t do it. And in the process of doing it, I’m going to reveal that these are poor policies. And I think that is really what we’re getting at, is to use the tools of policy analysis and the advances, the incredible advances in data collection, in computer power, in statistical techniques to inform your decision and be able to then defend them when you start bringing in a broader set of issues that really will be brought in if you’re ever conducting a retrospective and prospective analysis.
And let me just close with one very, very short but undoubtedly explosive point. We’re looking forward to the Supreme Court making a decision about an abortion case coming up. Lawyers will look at this and say, “We just want to follow the law.” Economists are going to look at this and they’re going to say, “Why don’t you ask what we know about the effect of abortion on education completion of mothers, unemployment, family formation, crime, you name it.” Right? And that is the big difference. Those issues matter. But these are not things that for the most part are really part of decision-making in the legal profession.
Bob Zadek: And that’s your closing as we—I want to go on to ask you in a second about how regulation or deregulation would improve what you see to be a problem in the administration of justice. But just to respond, because I can’t, Cliff, it’s just a case of self-control. I can’t bite my tongue. And I would say, no, I’m jumping up and down. No. It is not the court’s job to consider none of that. That’s for the legislature. The court simply decides whether individuals have a constitutional right to have an abortion, whether that is a right protected by the Constitution—the word does not appear—and it is a court’s job to figure out by application simply by reading the Constitution and its precedents—I know you hate precedents, we’ll get to that in a second—but it’s the court’s job just to figure that out. The legislature’s job is to see where abortion fits into the needs of society and the will of their electorate. That’s how I would sort of divide the tasks.
Clifford Winston: Right. And I always find that you cannot be serious that all the issues that I’ve mentioned are not going to enter into the mind of a jurist and that if they want—
Bob Zadek: Of course they will. They’re human beings. They’re not artificial intelligence.
Clifford Winston: And if they want to decide on other grounds, they will find the law to justify deciding it on those grounds without ever even mentioning them and just saying, “I’m following the law.” And that’s one of the great things that Posner would say. Posner would say, “The way I often decide cases is I figure out the economics. I figure out what is really the best economic argument to make and justification for deciding the case. I then go back and say, ‘Okay, how do I interpret the law just to justify my economic argument?’ And I can do it.” That is the problem. You cannot distinguish a dividing line between the judicial system, the legislative system, and think that one side doesn’t step over into the other side. They do, and they do it all the time.
Proposed Reforms: Deregulation and Education [18:56]
Bob Zadek: Now, how does—we’ve had a—I’ve loved this discussion. I just want to continue it, but I’m not going to because there’s so much else to cover. But bring us back to the book. Having made the observation that you are troubled by the decision-making process in the courts—it’s the process you’re concerned about, and of course judges are human, we’ll stipulate as to that. So how would—because you devote, as I was hoping you would, you devote the last chapter to policy reforms to improve the legal profession and benefit the nation. That’s the title of the last chapter. So focusing only on the operation of the court system in general, the Supreme Court in particular, how would your policy solutions make the problem or cause the problem to diminish?
Clifford Winston: Okay, so the general theme, and then I’ll go into the details, is that I really want the legal profession and lawyers to be less siloed. I really do want them to integrate much more with people in other professions, and I want this opportunity to start at the beginning of their education. So what I call for is deregulation, complete deregulation of the legal profession at all levels. So this begins with education, right? The American Bar Association is free to exist. I would also hope that other bar associations develop and they compete with the American Bar Association. Lawyers are free to join any and every one they want or no one they want.
But there is absolutely no requirement of any sort of legal education, no control whatsoever. The market is going to determine that. Meaning then there can be undergraduate programs in law. So you’re in college, you’re majoring in political science, you could say, “Hey, I think I’m also going to major, a joint major in law,” or economics or so on and so forth, and you can start getting exposure to law as an undergraduate. Let’s face it, the material isn’t that hard. This is not physics. This is not advanced math. I don’t think there’s any real intellectual reason why you cannot start offering undergraduate programs in law, which we obviously do see abroad where they do have such programs.
So we start with that. Then we say, look, we will not have any requirements on practice. You can go to an online law school, you can go to a vocational law school, you can get your undergraduate degree, you can go your three-year law school, so on and so forth. You can take bar exams, again they’re allowed, but they’re not required. Again, we will let the market determine who is to become a lawyer. All right, so that’s really the start then of the competition part of it, which I will get back to the judges, but let me at least get to the first point on access to justice. We’re going to have just a much broader, heterogeneous group of people practicing law, and the prices are going to reflect that and the access to service is going to reflect that.
Now, in terms of improving public policy, what I envision and I’m sure would develop is much more specialized programs offered by law schools and universities in general, anticipating that people now are going to track themselves or have specializations where they’ll offer joint degrees in law, economics, social sciences, so on and so forth for people who are looking to go into government policy work. And so that will explicitly be a program, not something that the ABA is going to turn down, not something that the ABA is going to say, “No, you need three years of study of law.” It’ll be a mix of all those courses and really will be focused much more vigorously on the concerns I’ve raised about understanding prospective and retrospective assessments of policy.
Okay, so this is the start of it. You can imagine then there’ll be programs for people who want to do science and law, and engineering and law. And just to preview, as we look ahead about the importance of artificial intelligence and big data, you’ll see people who actually then look to enroll in programs that make use of artificial intelligence and big data in legal practice and specialize in that and then become part of law firms. So it’s this just much broader, heterogeneous education, heterogeneous participants that I think is going to be very helpful to the legal profession in thinking more broadly about policy issues.
And then when they’re in their particular positions as judge, justices, for whatever, I would hope then they’d be much more open to what I call expert panels. That is, saying, “Look, let us engage with specialists in certain areas.” As we now know, there are many things that interact with law, and it’d be good to talk with certain people about these things. To a certain extent, we have that now with virtual communications between justices and people on the outside. This would make it more transparent and hopefully more rigorous. And then I also believe that much more exposure to these other disciplines, other professions, and thinking about it more as policy analysis will translate into the policymaking community when people are really in the legislative position and they learn once and for all, “Look, this is really how we need to think about this and what we really know about the effects of public policies, which really are laws.” So that’s my vision: opening things up, more heterogeneous participants, more heterogeneous forms of education, and hopefully then making lawyers less siloed and I think then more effective in their contributions to America.
Bob Zadek: If you could hear a smile, you would have heard a big broad grin on my face as you’re speaking, because you are even more right on than you appreciate, in my opinion. And here’s why I’m saying that. I’ve been a lawyer for a long time. I have discovered, just as you have mentioned, that the law part of my profession—I represent businesses—the law part of my profession is kind of easy to get. You practice law for a bunch of years, if you work at it, you’ll get the law early in your career. You will understand the law. You will incrementally get smarter every day if you’re diligent, but you will understand the law. Well, the rest of your life you spend learning everything else to make your services valuable to your client. If I were just a lawyer, I could be replaced in a heartbeat, probably by somebody who charges $15 an hour less and probably for the same quality of work. But it’s the other stuff, the very stuff that you are seeking to have lawyers be free to learn, encouraged to learn. It’s the other stuff that really makes the profession add value. So you and I—I come to it from a business standpoint, you from a broader policy standpoint—we find we reach exactly the same point: that just the law is insufficient really to be a valuable addition to society. It’s an important first step.
Clifford Winston: I think that’s right. That’s critical. It is just not enough. And that’s not an insult. I mean, if you understand policy analysis, you realize how complicated it is. This is not taking anything away from the law. It’s saying, “Look, it just needs to be enriched and you need to work with just a broader set of people.” And also, I don’t think that people appreciate how young economics is. We—I mentioned empirical analysis, I mentioned these kinds of empirical studies—we have barely been doing them for very long. We’re only getting better at them. If you look back in the 1960s, there was hardly any of this kind of stuff. People weren’t doing empirical assessments of this law, that law, so on and so forth. It really took off more in the ’70s and then—so we’ve been doing it maybe for about 50 years, which is a very young policy science, if you will.
Bob Zadek: This is Bob Zadek. I’ve been speaking with Cliff Winston. Cliff has written Trouble at the Bar, a fascinating study of inviting the deregulation of the profession of law and many other professions to follow. And Cliff explains in his book how deregulation of the profession of law is essential for the proper administration of governmental policy, for courts to reach their right decision. Please read Cliff’s book and follow his writings. If you’ve enjoyed this show, please indicate on the podcast any suggestions you might have to make our show better and rate us if you see fit to do so. Thank you so much to Cliff and to my audience for spending this Sunday morning with us. Have a good rest of the Sunday.