Addressing the Justice Gap
August 26, 2011 8:09 AM Subscribe
What could possibly go wrong?
seriously, what could possibly go right?
posted by Halloween Jack at 8:16 AM on August 26, 2011 [2 favorites]
seriously, what could possibly go right?
posted by Halloween Jack at 8:16 AM on August 26, 2011 [2 favorites]
IAYL!
posted by weapons-grade pandemonium at 8:18 AM on August 26, 2011 [37 favorites]
posted by weapons-grade pandemonium at 8:18 AM on August 26, 2011 [37 favorites]
Why stop there? Why do we need liscenced doctors? Or plumbers? Or pilots? Regulations are socialism dammit, if a fella says he can perform open heart surgery or fly a plane or defend a murder charge, well the market will sort out if he's telling the truth or not.
posted by T.D. Strange at 8:19 AM on August 26, 2011 [25 favorites]
posted by T.D. Strange at 8:19 AM on August 26, 2011 [25 favorites]
I predict a 4200% increase in usage of the Chewbacca defense.
posted by Foci for Analysis at 8:19 AM on August 26, 2011 [9 favorites]
posted by Foci for Analysis at 8:19 AM on August 26, 2011 [9 favorites]
Several commentators
Cato Institute and Openmarket.org are the two commentators listed in the WSJ article.
posted by Mister Fabulous at 8:19 AM on August 26, 2011 [3 favorites]
Cato Institute and Openmarket.org are the two commentators listed in the WSJ article.
posted by Mister Fabulous at 8:19 AM on August 26, 2011 [3 favorites]
I'm generally for this, under two conditions. First, everyone who practices law should be required to carry malpractice insurance. This will probably tend to be more expensive for people without formal legal education, but that can be mitigated somewhat by only taking low-risk cases (e.g. uncontested divorces). This has two benefits: clients can expect compensation for malpractice, and incompetent people will be deterred from taking on high-risk cases.
Second, anyone who practices law should be subject to the existing disciplinary process and legal ethics rules. So for example if someone defrauded a client they could be barred from practicing law in the future.
seriously, what could possibly go right?
There are places where the choice of legal representation (including representation by non-professionals) is a legal right held by the represented individual. Basel, Switzerland, for example. See ยงยง 2-3 of the Basel Advokaturgesetz [pdf, German]. Note that the Basel law requires non-professional legal representatives to abide by the ethical rules, and courts are empowered to deny someone the ability to represent another because of bad character or incompetence.
posted by jedicus at 8:24 AM on August 26, 2011 [12 favorites]
Second, anyone who practices law should be subject to the existing disciplinary process and legal ethics rules. So for example if someone defrauded a client they could be barred from practicing law in the future.
seriously, what could possibly go right?
There are places where the choice of legal representation (including representation by non-professionals) is a legal right held by the represented individual. Basel, Switzerland, for example. See ยงยง 2-3 of the Basel Advokaturgesetz [pdf, German]. Note that the Basel law requires non-professional legal representatives to abide by the ethical rules, and courts are empowered to deny someone the ability to represent another because of bad character or incompetence.
posted by jedicus at 8:24 AM on August 26, 2011 [12 favorites]
Deregulation of complex industries that effect the lives of sophisticated and unsophisticated individuals alike is a great idea that worked incredibly well in the financial sector so why shouldn't we extend it to -- wait, what?
(P.S. The answer to lack of legal access for the poor is MORE regulation, not LESS regulation. Idiots.)
posted by The Bellman at 8:24 AM on August 26, 2011 [5 favorites]
(P.S. The answer to lack of legal access for the poor is MORE regulation, not LESS regulation. Idiots.)
posted by The Bellman at 8:24 AM on August 26, 2011 [5 favorites]
Are you shitting me? Was this deliberately posted an hour after I handed in an essay on exactly this? I could have mined the comments in leiu of having a researched response.
posted by Trivia Newton John at 8:25 AM on August 26, 2011 [11 favorites]
posted by Trivia Newton John at 8:25 AM on August 26, 2011 [11 favorites]
if there is really any intrinsic benefit for lawyers to graduate from law school, then they won't seriously be threatened by amateur practitioners
i was hoping i would be in-b4-feedbackloop though :P
who am i kidding, feedbackloop is the only necc. post - (@dunkadunc)
posted by flyinghamster at 8:25 AM on August 26, 2011 [1 favorite]
i was hoping i would be in-b4-feedbackloop though :P
who am i kidding, feedbackloop is the only necc. post - (@dunkadunc)
posted by flyinghamster at 8:25 AM on August 26, 2011 [1 favorite]
A society whose laws have reached a level of complexity such that the average individual cannot reasonably be expected to know and understand all that apply to them has begun the long, slow slide into tyranny.
posted by Ryvar at 8:27 AM on August 26, 2011 [6 favorites]
posted by Ryvar at 8:27 AM on August 26, 2011 [6 favorites]
Or, you know, it's a large and complex society so it needs a large and complex set of laws.
posted by Aizkolari at 8:30 AM on August 26, 2011 [22 favorites]
posted by Aizkolari at 8:30 AM on August 26, 2011 [22 favorites]
The NYTimes article has the solution right in the article- increase the funding to Legal Services. That they turn away 50% of people who show up is horrible. I don't blame those who work for Legal Services (the horror stories I've heard from people who did are harrowing) but instead the assholes who keep defunding an organization that helps poor people have their day in court. But then again, the right has always been for restricting the power of people to get money when they've been injured or, for lack of any other appropriate term, fucked over. (I could write a long rant about tort "reform" here, but I don't want to fill up pages.)
On the other hand, perhaps allowing people to become lawyers simply by passing the bar exam might not be the worst idea. They have to prove they know their material, and then they can actually help people. The debts people have coming out of law school are ridiculous.
posted by Hactar at 8:30 AM on August 26, 2011 [3 favorites]
On the other hand, perhaps allowing people to become lawyers simply by passing the bar exam might not be the worst idea. They have to prove they know their material, and then they can actually help people. The debts people have coming out of law school are ridiculous.
posted by Hactar at 8:30 AM on August 26, 2011 [3 favorites]
So for example if someone defrauded a client they could be barred from practicing law in the future.
Just how would you bar someone in that system, though? You'd take away their..... um, what?
posted by Brockles at 8:31 AM on August 26, 2011 [2 favorites]
Just how would you bar someone in that system, though? You'd take away their..... um, what?
posted by Brockles at 8:31 AM on August 26, 2011 [2 favorites]
Regulations are socialism dammit, if a fella says he can perform open heart surgery or fly a plane or defend a murder charge, well the market will sort out if he's telling the truth or not.
Doctors and lawyers can't really be compared in this regard. Legal screwups tend to happen in slow motion, with significant oversight (e.g. judges can tell when someone is incompetent), and with many opportunities for correction (e.g. new trials, appeals) before any money changes hands or legal rights are decided. If someone makes a mistake on the operating table, that's that.
But what's more, the regulation of the medical profession actually tends to lead to more or less competent professionals (e.g. 4 years of school instead of 3, relevant hands-on training, typically at least a year or more of post-graduate training, the board certification system). The legal profession's regulations primarily act as barriers to entry while doing a questionable job of weeding out incompetent or unethical lawyers.
One alternative way to improve access to legal services for the poor would simply be to subsidize the heck out of legal services. That would require neither regulation nor de-regulation, but it's also politically impractical, unfortunately.
posted by jedicus at 8:32 AM on August 26, 2011 [6 favorites]
Doctors and lawyers can't really be compared in this regard. Legal screwups tend to happen in slow motion, with significant oversight (e.g. judges can tell when someone is incompetent), and with many opportunities for correction (e.g. new trials, appeals) before any money changes hands or legal rights are decided. If someone makes a mistake on the operating table, that's that.
But what's more, the regulation of the medical profession actually tends to lead to more or less competent professionals (e.g. 4 years of school instead of 3, relevant hands-on training, typically at least a year or more of post-graduate training, the board certification system). The legal profession's regulations primarily act as barriers to entry while doing a questionable job of weeding out incompetent or unethical lawyers.
One alternative way to improve access to legal services for the poor would simply be to subsidize the heck out of legal services. That would require neither regulation nor de-regulation, but it's also politically impractical, unfortunately.
posted by jedicus at 8:32 AM on August 26, 2011 [6 favorites]
Jedicus nails it. The reason to require lawyer licensing is to protect clients from incompetent or dishonest lawyers. And the way to do that is to have regulations that focus on protecting clients. The bar exam is a very indirect way of ensuring that lawyers know what they're doing. Instead, we'd be better off having a system that really did hold lawyers accountable when they take clients' money and screw up their cases.
Brockles: think blacklist, not whitelist.
posted by grimmelm at 8:32 AM on August 26, 2011 [1 favorite]
Brockles: think blacklist, not whitelist.
posted by grimmelm at 8:32 AM on August 26, 2011 [1 favorite]
Ten years after the deregulation of the legal profession I'm envisioning specialized vocational legal high schools in every state where teenagers with lawyerly proclivities can get the jump on their careers. Also, there will be a television show called Legal High that'll be a combination of Law & Order and Saved By The Bell, plus frequent drug references.
posted by XMLicious at 8:32 AM on August 26, 2011 [10 favorites]
posted by XMLicious at 8:32 AM on August 26, 2011 [10 favorites]
I don't think that first article is advocating the deregulation of the practice of law; from a quick skim, it sounds like it's advocating more regulation, including required reporting of pro bono work lawyers do. But I could've read it wrong.
Anyway, just off the top of my head, I don't think deregulation is the answer to the problems they're talking about; I'm thinking there should be incentives, instead, for lawyers (especially the many unemployed or underemployed lawyers the first article mentions) to go into practices that are accessible to/affordable by low-income individuals. This is something that could be addressed by nonprofits, social agencies, etc.
I'm all for better/more affordable access to lawyers, but it seems to me that deregulating who can practice law could lead to more backups in the legal system, which in itself won't help low-income people who need to have their cases seen and addressed in a timely manner.
The third article's points are kind of all over the place, though; some of the actual arguments put forth are pretty cogent, but some of the "evidence" cited is a little absurd.
From that article: "every other U.S. industry that has been deregulated, from trucking to telephones, has lowered prices for consumers without sacrificing quality."
This claim sounds dubious to me... First off, what sort of telephones? Because there's no way the exorbitant rates wireless/cellphone companies are charging are "lowered prices." And didn't I just see an article a few days back by a trucker's dispatcher about a trucker who was so pressed for time that he couldn't even stop driving to mourn his sister's death? Yeah.
Yes, law-school tuition (and much other college tuition) is exorbitant, too, but that's not a reason to deregulate the industry. It's a reason to change regulations re: education.
Also, from the third article: "To stimulate the economy, and make it cheaper to obtain justice, Congress should require the abolition of local federal court rules that differ from one trial court to another, and one appeals court to another, making a uniform set of rules for each for civil trial and appeal by supplementing the existing Federal Rules of Civil Procedure and Appellate Procedure."
Is this not a call to increase regulations? Albeit not necessarily a call to increase active regulation, but still...
But this makes sense: "the current requirement that lawyers attend law school is unjustified because there are far more efficient, effective, and cheaper ways to learn the law than attending law school."
That seems like one nice thing about the days of Abe Lincoln, that you could do your own studying to become a lawyer.
posted by limeonaire at 8:33 AM on August 26, 2011 [1 favorite]
Anyway, just off the top of my head, I don't think deregulation is the answer to the problems they're talking about; I'm thinking there should be incentives, instead, for lawyers (especially the many unemployed or underemployed lawyers the first article mentions) to go into practices that are accessible to/affordable by low-income individuals. This is something that could be addressed by nonprofits, social agencies, etc.
I'm all for better/more affordable access to lawyers, but it seems to me that deregulating who can practice law could lead to more backups in the legal system, which in itself won't help low-income people who need to have their cases seen and addressed in a timely manner.
The third article's points are kind of all over the place, though; some of the actual arguments put forth are pretty cogent, but some of the "evidence" cited is a little absurd.
From that article: "every other U.S. industry that has been deregulated, from trucking to telephones, has lowered prices for consumers without sacrificing quality."
This claim sounds dubious to me... First off, what sort of telephones? Because there's no way the exorbitant rates wireless/cellphone companies are charging are "lowered prices." And didn't I just see an article a few days back by a trucker's dispatcher about a trucker who was so pressed for time that he couldn't even stop driving to mourn his sister's death? Yeah.
Yes, law-school tuition (and much other college tuition) is exorbitant, too, but that's not a reason to deregulate the industry. It's a reason to change regulations re: education.
Also, from the third article: "To stimulate the economy, and make it cheaper to obtain justice, Congress should require the abolition of local federal court rules that differ from one trial court to another, and one appeals court to another, making a uniform set of rules for each for civil trial and appeal by supplementing the existing Federal Rules of Civil Procedure and Appellate Procedure."
Is this not a call to increase regulations? Albeit not necessarily a call to increase active regulation, but still...
But this makes sense: "the current requirement that lawyers attend law school is unjustified because there are far more efficient, effective, and cheaper ways to learn the law than attending law school."
That seems like one nice thing about the days of Abe Lincoln, that you could do your own studying to become a lawyer.
posted by limeonaire at 8:33 AM on August 26, 2011 [1 favorite]
Frito: Yah I know this place pretty good, I went to law school here.
Pvt. Joe Bowers: In Costco?
Frito: Yah I couldn't believe it myself, luckily my dad was an alumnus and pulled some strings.
posted by Xoebe at 8:34 AM on August 26, 2011 [10 favorites]
Pvt. Joe Bowers: In Costco?
Frito: Yah I couldn't believe it myself, luckily my dad was an alumnus and pulled some strings.
posted by Xoebe at 8:34 AM on August 26, 2011 [10 favorites]
One alternative way to improve access to legal services for the poor would simply be to subsidize the heck out of legal services. That would require neither regulation nor de-regulation, but it's also politically impractical, unfortunately.
Shoulda previewed; jedicus has it.
posted by limeonaire at 8:34 AM on August 26, 2011
Shoulda previewed; jedicus has it.
posted by limeonaire at 8:34 AM on August 26, 2011
Just how would you bar someone in that system, though? You'd take away their..... um, what?
A simple registration system would probably suffice, more akin to getting a driver's license than a law license. But prior registration isn't strictly necessary in order to 'disbar' someone. To pick a random example: in many states convicted felons lose their right to vote, and that works even if they have not registered to vote in the past.
posted by jedicus at 8:34 AM on August 26, 2011
A simple registration system would probably suffice, more akin to getting a driver's license than a law license. But prior registration isn't strictly necessary in order to 'disbar' someone. To pick a random example: in many states convicted felons lose their right to vote, and that works even if they have not registered to vote in the past.
posted by jedicus at 8:34 AM on August 26, 2011
How about we go the other way? Instead of deregulation, we socialize the whole works? Canada has single-payer health care, why can't we adopt that same model for legal care? Everyone has access to trained professionals, the trained professionals get their bills paid, the courts unclog since no-one has to represent themselves anymore...
And by and large, can't paralegals do those simple legal matters already? Isn't that what paralegals were meant to do in the first place?
posted by Capt. Renault at 8:34 AM on August 26, 2011
And by and large, can't paralegals do those simple legal matters already? Isn't that what paralegals were meant to do in the first place?
posted by Capt. Renault at 8:34 AM on August 26, 2011
I think a better solution would be to require every lawyer to work their first year or two in a public interest capacity.
The lawyer would get training and could enter the private marketplace with actual experience, and not just class experience. The poor and the public would get a steady stream of attorneys.
This would be like the apprenticeship (I can't remember what it's called) for solicitors in the UK.
Deregulating is dumb.
posted by Admiral Haddock at 8:36 AM on August 26, 2011 [4 favorites]
The lawyer would get training and could enter the private marketplace with actual experience, and not just class experience. The poor and the public would get a steady stream of attorneys.
This would be like the apprenticeship (I can't remember what it's called) for solicitors in the UK.
Deregulating is dumb.
posted by Admiral Haddock at 8:36 AM on August 26, 2011 [4 favorites]
I'd be less worried about wildly incompetent lawyers than the lawyer equivalent of those check cashing operations, where untrained slimeballs scam the poor and those otherwise unable to tell the difference between good and bad lawyers.
As any comment section on the Internet proves, sometimes barriers to entry are a good thing for everyone.
posted by Copronymus at 8:39 AM on August 26, 2011 [1 favorite]
As any comment section on the Internet proves, sometimes barriers to entry are a good thing for everyone.
posted by Copronymus at 8:39 AM on August 26, 2011 [1 favorite]
what could possibly go right?
It's cheaper to practice, so the cost of legal proceedings falls. This increases legal access for everyone belwo the upper class. It's similar to allowing self-representation in many small claims courts.
I'm not convinced it would actuially have these effects (particularly if there was an insurance requirement), but that's the theory as I read it.
posted by bonehead at 8:41 AM on August 26, 2011
It's cheaper to practice, so the cost of legal proceedings falls. This increases legal access for everyone belwo the upper class. It's similar to allowing self-representation in many small claims courts.
I'm not convinced it would actuially have these effects (particularly if there was an insurance requirement), but that's the theory as I read it.
posted by bonehead at 8:41 AM on August 26, 2011
seriously, what could possibly go right?
Paralegals could provide basic legal services at much lower cost, making basic legal representation, contract evaluation or notary services available to more people, particularly those at the lower end of the economic spectrum.
The reason to require lawyer licensing is to protect clients from incompetent or dishonest lawyers.
Does it succeed in doing that, though? I ask this sincerely, because I don't know, but if licensing fails to do that effectively while driving up the cost of participation in the legal process for everyone else, then it's certainly worth reconsidering.
posted by mhoye at 8:42 AM on August 26, 2011 [3 favorites]
Paralegals could provide basic legal services at much lower cost, making basic legal representation, contract evaluation or notary services available to more people, particularly those at the lower end of the economic spectrum.
The reason to require lawyer licensing is to protect clients from incompetent or dishonest lawyers.
Does it succeed in doing that, though? I ask this sincerely, because I don't know, but if licensing fails to do that effectively while driving up the cost of participation in the legal process for everyone else, then it's certainly worth reconsidering.
posted by mhoye at 8:42 AM on August 26, 2011 [3 favorites]
If one can represent themselves it makes sense that they could pick anyone else to do so too.
posted by zephyr_words at 8:43 AM on August 26, 2011 [1 favorite]
posted by zephyr_words at 8:43 AM on August 26, 2011 [1 favorite]
The father of a friend of mine is an accountant in Germany. Apparently, for certain limited legal matters the father is allowed to represent clients in court.
Don't know much more about it than that.
posted by etherist at 8:44 AM on August 26, 2011
Don't know much more about it than that.
posted by etherist at 8:44 AM on August 26, 2011
Instead, we'd be better off having a system that really did hold lawyers accountable when they take clients' money and screw up their cases.
Indeed. The current disciplinary system is too lax.
Instead of deregulation, we socialize the whole works? Canada has single-payer health care, why can't we adopt that same model for legal care?
Maybe. But legal services can often be performed remotely (at least with transactional work and even some parts of litigation). So a big loophole there is having a high-powered firm in, say, the UK do work that is transmitted to the client in the US. There goes the level playing field.
The poor and the public would get a steady stream of attorneys.
A steady stream of inexperienced attorneys many of whom are counting the days until they can go make the big bucks. I'm not sure that would work very well. Far better to give more money to legal aid and the like.
posted by jedicus at 8:44 AM on August 26, 2011
Indeed. The current disciplinary system is too lax.
Instead of deregulation, we socialize the whole works? Canada has single-payer health care, why can't we adopt that same model for legal care?
Maybe. But legal services can often be performed remotely (at least with transactional work and even some parts of litigation). So a big loophole there is having a high-powered firm in, say, the UK do work that is transmitted to the client in the US. There goes the level playing field.
The poor and the public would get a steady stream of attorneys.
A steady stream of inexperienced attorneys many of whom are counting the days until they can go make the big bucks. I'm not sure that would work very well. Far better to give more money to legal aid and the like.
posted by jedicus at 8:44 AM on August 26, 2011
I'd be less worried about wildly incompetent lawyers than the lawyer equivalent of those check cashing operations, where untrained slimeballs scam the poor and those otherwise unable to tell the difference between good and bad lawyers.
There's a direct parallel to this in Canada's immigration system, where someone going up before a refugee or immigration board can be represented by an "immigration consultant". Anyone can call himself an immigration consultant, and no education or training is required for it. So while there are plenty of fine, legit consultants -- and a lot of lawyers among them -- there are also a fair number of scammers preying on the very, very weak, with severe consequences. Don't even have to be scammers, even, can simply be opportunists.
posted by Capt. Renault at 8:46 AM on August 26, 2011
There's a direct parallel to this in Canada's immigration system, where someone going up before a refugee or immigration board can be represented by an "immigration consultant". Anyone can call himself an immigration consultant, and no education or training is required for it. So while there are plenty of fine, legit consultants -- and a lot of lawyers among them -- there are also a fair number of scammers preying on the very, very weak, with severe consequences. Don't even have to be scammers, even, can simply be opportunists.
posted by Capt. Renault at 8:46 AM on August 26, 2011
Paralegals could provide basic legal services
That's a great point. It would probably lead to a barrister---solicitor split. why go to an expensive generalist who specializes in going before the court when all you need to do is get a will changed or property law dealt with? If it comes to a full on dispute, yiou can hire a barrister, but 99% of the cases that don't can be done by someone with less training and overhead.
posted by bonehead at 8:46 AM on August 26, 2011 [2 favorites]
That's a great point. It would probably lead to a barrister---solicitor split. why go to an expensive generalist who specializes in going before the court when all you need to do is get a will changed or property law dealt with? If it comes to a full on dispute, yiou can hire a barrister, but 99% of the cases that don't can be done by someone with less training and overhead.
posted by bonehead at 8:46 AM on August 26, 2011 [2 favorites]
Does it succeed in [protecting clients from incompetent or dishonest lawyers], though?
Dishonesty? Probably. Most states require extensive background checks. As a licensed lawyer, I have an FBI file, expect no anonymity in my business dealings (or online interactions for that matter), and have Texas criminal statutes aimed squarely at keeping me in line.
posted by GPF at 8:49 AM on August 26, 2011
Dishonesty? Probably. Most states require extensive background checks. As a licensed lawyer, I have an FBI file, expect no anonymity in my business dealings (or online interactions for that matter), and have Texas criminal statutes aimed squarely at keeping me in line.
posted by GPF at 8:49 AM on August 26, 2011
He who represents himself in court has a fool for a client. Let your best friend, Booger, do it. He totally owes you.
posted by It's Raining Florence Henderson at 8:49 AM on August 26, 2011 [4 favorites]
posted by It's Raining Florence Henderson at 8:49 AM on August 26, 2011 [4 favorites]
Paralegals could provide basic legal services at much lower cost, making basic legal representation, contract evaluation or notary services available to more people, particularly those at the lower end of the economic spectrum.
This is something I've thought about as well. It's akin to having a nurse practitioner as your primary care person - they are trained and competent in all the relatively low-level stuff, with enough training to know when your problem is not low-level and requires an MD, but who can give you a physical, a vaccination, stitches, etc.
posted by rtha at 8:53 AM on August 26, 2011 [1 favorite]
This is something I've thought about as well. It's akin to having a nurse practitioner as your primary care person - they are trained and competent in all the relatively low-level stuff, with enough training to know when your problem is not low-level and requires an MD, but who can give you a physical, a vaccination, stitches, etc.
posted by rtha at 8:53 AM on August 26, 2011 [1 favorite]
Regulations are socialism dammit, if a fella says he can perform open heart surgery or fly a plane or defend a murder charge, well the market will sort out if he's telling the truth or not.
That actually wouldn't be a crazy thing to say about legal practice. (That is, your point would make at least as much sense if you weren't being ironic.) Do you think people shouldn't be allowed to represent themselves pro se? We allow them to do this knowing they're very unlikely to succeed. They'll probably do themselves more harm than good. But it's their right to do that if they want to save the money or if they simply have confidence in themselves. If they want better representation, they can look for someone with better credentials than themselves, but they shouldn't be forced to.
Doesn't the deregulation side have a pretty good point that the elitism of saying you have to have graduated from an accredited law school yields relatively little good compared with the bad of limiting the supply of lawyers? (By the way, it's against my personal interest to say this; I graduated from an elite law school.) I'm surprised to see Metafilter suddenly become so defensive of the elitist status quo.
posted by John Cohen at 8:55 AM on August 26, 2011
That actually wouldn't be a crazy thing to say about legal practice. (That is, your point would make at least as much sense if you weren't being ironic.) Do you think people shouldn't be allowed to represent themselves pro se? We allow them to do this knowing they're very unlikely to succeed. They'll probably do themselves more harm than good. But it's their right to do that if they want to save the money or if they simply have confidence in themselves. If they want better representation, they can look for someone with better credentials than themselves, but they shouldn't be forced to.
Doesn't the deregulation side have a pretty good point that the elitism of saying you have to have graduated from an accredited law school yields relatively little good compared with the bad of limiting the supply of lawyers? (By the way, it's against my personal interest to say this; I graduated from an elite law school.) I'm surprised to see Metafilter suddenly become so defensive of the elitist status quo.
posted by John Cohen at 8:55 AM on August 26, 2011
What we REALLY need to do is to deregulate the Supreme Court. I'm sick and tired of a tiny elite of nine interpreting the Constitution, declaring the common law and hearing appeals. I think I should be able to rule various things unconstitutional and have people call me "Your Honour". And maybe you assholes should "all rise" when I fucking walk in the room. Oh, you want to object? You want to object to that shit? I will OVERRULE your ass. See me in my chambers, counsel. Yeah - my CHAMBERS, you jerkoff. Sure, it looks like a disused public toilet but it is now my fucking CHAMBERS. And this garbage bag is my judicial mother-fucking GOWN. So bang on THAT gavel.
posted by the quidnunc kid at 8:55 AM on August 26, 2011 [9 favorites]
posted by the quidnunc kid at 8:55 AM on August 26, 2011 [9 favorites]
The poor and the public would get a steady stream of attorneys.
A steady stream of inexperienced attorneys many of whom are counting the days until they can go make the big bucks.
As we've seen in the current economy, few actually go on to make the big bucks (which I know you know). If the system were set up like NALP or whatever it is and firms were forbidden from hiring people in their service year (as they are prohibited from hiring 1Ls until December or whatever), there would be an incentive to do well. Plus, of course, people gotta eat.
It could be a pretty strong negative if one were fired from one's service job (just as being fired or no offered from one's 2L job is pretty bad now).
I think the incentives would be aligned. Plus, who would not want to go into private practice with a persuasive set of court opinions showing you saved 30 families from eviction, or got a kid compensation for medical malpractice. "Oh, what did you do, Applicant X" "Jack shit, man, I'm just waiting to get myself paid by Cravath!"
posted by Admiral Haddock at 8:55 AM on August 26, 2011
A steady stream of inexperienced attorneys many of whom are counting the days until they can go make the big bucks.
As we've seen in the current economy, few actually go on to make the big bucks (which I know you know). If the system were set up like NALP or whatever it is and firms were forbidden from hiring people in their service year (as they are prohibited from hiring 1Ls until December or whatever), there would be an incentive to do well. Plus, of course, people gotta eat.
It could be a pretty strong negative if one were fired from one's service job (just as being fired or no offered from one's 2L job is pretty bad now).
I think the incentives would be aligned. Plus, who would not want to go into private practice with a persuasive set of court opinions showing you saved 30 families from eviction, or got a kid compensation for medical malpractice. "Oh, what did you do, Applicant X" "Jack shit, man, I'm just waiting to get myself paid by Cravath!"
posted by Admiral Haddock at 8:55 AM on August 26, 2011
I should also stress that all of the first, second, and many of the third years I work with are inexperienced, and are being paid, whatever the going rate is--$170,000 per year, and are billed out to clients at maybe $350-400 an hour (or whatever). Bless their hearts, they don't know jack shit. Meanwhile, the ones who took a public service year (i.e., whose start date was delayed against their will) actually have some legal brains--they're much better than those who worked for a professor or got an LLM or something.
posted by Admiral Haddock at 9:02 AM on August 26, 2011
posted by Admiral Haddock at 9:02 AM on August 26, 2011
Does it succeed in doing that, though?
Way back in 1995 the total awards for compensatory and punitive damages in legal malpractice cases was about $5.4 billion per year. I'm sure it is much higher now. So, no, I don't think it really succeeds in doing that.
Paralegals could provide...notary services
You don't need to be a paralegal or an attorney to be a notary.
As we've seen in the current economy, few actually go on to make the big bucks (which I know you know)
As best I can estimate, perhaps 15% of law grads make six figures right out of school. That's relatively few but in absolute terms it's quite a lot. I'm not saying your idea doesn't have merit, but I think it would be both simpler and more politically palatable to increase the subsidies for legal aid. As much as people dislike subsidizing the poor, the legal profession's backlash against a year or two of mandatory pro bono work would be even greater.
Meanwhile, the ones who took a public service year (i.e., whose start date was delayed against their will) actually have some legal brains
One wonders why the big firms don't just require their first years to spend a while doing pro bono, then. Low malpractice risk, good PR, and you can pay them less. But what they aren't doing is making money for the partners. And that's a big reason mandatory pro bono won't ever happen.
posted by jedicus at 9:05 AM on August 26, 2011
Way back in 1995 the total awards for compensatory and punitive damages in legal malpractice cases was about $5.4 billion per year. I'm sure it is much higher now. So, no, I don't think it really succeeds in doing that.
Paralegals could provide...notary services
You don't need to be a paralegal or an attorney to be a notary.
As we've seen in the current economy, few actually go on to make the big bucks (which I know you know)
As best I can estimate, perhaps 15% of law grads make six figures right out of school. That's relatively few but in absolute terms it's quite a lot. I'm not saying your idea doesn't have merit, but I think it would be both simpler and more politically palatable to increase the subsidies for legal aid. As much as people dislike subsidizing the poor, the legal profession's backlash against a year or two of mandatory pro bono work would be even greater.
Meanwhile, the ones who took a public service year (i.e., whose start date was delayed against their will) actually have some legal brains
One wonders why the big firms don't just require their first years to spend a while doing pro bono, then. Low malpractice risk, good PR, and you can pay them less. But what they aren't doing is making money for the partners. And that's a big reason mandatory pro bono won't ever happen.
posted by jedicus at 9:05 AM on August 26, 2011
MetaFilter: Sure, it looks like a disused public toilet but it is now my fucking CHAMBERS.
posted by griphus at 9:09 AM on August 26, 2011 [2 favorites]
posted by griphus at 9:09 AM on August 26, 2011 [2 favorites]
Deregulating the legal profession strikes me as similar to eliminating the minimum wage. In both cases, you would make more of the commodity (jobs, lawyers) available to low-income people. But in both cases, the quality of the commodity that would become available to low-income people ($3/hour jobs, bottom-of-the-barrel lawyers) likely would not be acceptable.
posted by brain_drain at 9:14 AM on August 26, 2011
posted by brain_drain at 9:14 AM on August 26, 2011
I had an early morning meeting with a NYC Dept. of buildings inspector, that also needed to include a registered Department of Buildings expediter. I asked the expediter what the licensing requirements are for that position, and they are few. Four hours of standing in lines later, and I should be receiving my NYC DOB expediter photo ID and PIN # in about two weeks.
posted by StickyCarpet at 9:15 AM on August 26, 2011
posted by StickyCarpet at 9:15 AM on August 26, 2011
Hahahaha... oh, they're serious.
Lawyers are expensive because law school is expensive. If you want more representation for low-income clients, then (1) Increase funding to legal aid, (2) Burst the law school tuition bubble (and/or allow apprenticeships again), (3) Write a kickass document-review algorithm...
posted by Grimp0teuthis at 9:18 AM on August 26, 2011
Lawyers are expensive because law school is expensive. If you want more representation for low-income clients, then (1) Increase funding to legal aid, (2) Burst the law school tuition bubble (and/or allow apprenticeships again), (3) Write a kickass document-review algorithm...
posted by Grimp0teuthis at 9:18 AM on August 26, 2011
One wonders why the big firms don't just require their first years to spend a while doing pro bono, then. Low malpractice risk, good PR, and you can pay them less. But what they aren't doing is making money for the partners. And that's a big reason mandatory pro bono won't ever happen.
I think a large proportion of junior associates' time is written off. Clients often explicitly refuse to pay for any first or second years. They still bill the time to the firm, but the firm does not bill it to the client. The all in cost on a $170,000 first year (including employer's portion of the employment tax, and health insurance, malpractice insurance, physical plant etc.) is well over the base salary. I expect that it is not as uneconomic to farm them out as you might think.
posted by Admiral Haddock at 9:19 AM on August 26, 2011
I think a large proportion of junior associates' time is written off. Clients often explicitly refuse to pay for any first or second years. They still bill the time to the firm, but the firm does not bill it to the client. The all in cost on a $170,000 first year (including employer's portion of the employment tax, and health insurance, malpractice insurance, physical plant etc.) is well over the base salary. I expect that it is not as uneconomic to farm them out as you might think.
posted by Admiral Haddock at 9:19 AM on August 26, 2011
Thats it, i'm outsourcing my difficult process serving cases to Jimmy the Crowbar.
posted by clavdivs at 9:19 AM on August 26, 2011 [1 favorite]
posted by clavdivs at 9:19 AM on August 26, 2011 [1 favorite]
Deregulating the legal profession strikes me as similar to eliminating the minimum wage. In both cases, you would make more of the commodity (jobs, lawyers) available to low-income people.
Aren't minimum wage jobs already low income? By their very definition?
posted by Stagger Lee at 9:20 AM on August 26, 2011
Plus, who would not want to go into private practice with a persuasive set of court opinions showing you saved 30 families from eviction, or got a kid compensation for medical malpractice. "Oh, what did you do, Applicant X" "Jack shit, man, I'm just waiting to get myself paid by Cravath!"
As someone who's had the dubious pleasure of looking at dozens of resumes for associates coming into a top-tier law firm over the past couple of years, they've already been doing this to an extent. Almost all of them have some sort of public interest work to fill out their resumes, because that looks a lot better than a list of hobbies like horseback riding and wine tasting. Whatever incentives you give to the sort of pathologically ambitious people that want to join giant law firms, they'll fulfill them and more.
posted by Copronymus at 9:22 AM on August 26, 2011
As someone who's had the dubious pleasure of looking at dozens of resumes for associates coming into a top-tier law firm over the past couple of years, they've already been doing this to an extent. Almost all of them have some sort of public interest work to fill out their resumes, because that looks a lot better than a list of hobbies like horseback riding and wine tasting. Whatever incentives you give to the sort of pathologically ambitious people that want to join giant law firms, they'll fulfill them and more.
posted by Copronymus at 9:22 AM on August 26, 2011
"the deregulation of the practice of law."
Yes, because that worked SO WELL for the banking industry.
posted by Old'n'Busted at 9:23 AM on August 26, 2011
Yes, because that worked SO WELL for the banking industry.
posted by Old'n'Busted at 9:23 AM on August 26, 2011
So, as an alternative, what would happen if law was structured as a 4-year undergraduate degree (straight out of high shool) with a practicum period and bar exam at the end, similar to the way the P. Eng. system works? What if these degrees were offered at every single state university and could graduate several hundred per year?
Put it another way, why does law need to be a postgraduate degree? Why not do it at public universities for $10,000/yr, like an engineering or architecture degree?
posted by bonehead at 9:23 AM on August 26, 2011 [1 favorite]
Put it another way, why does law need to be a postgraduate degree? Why not do it at public universities for $10,000/yr, like an engineering or architecture degree?
posted by bonehead at 9:23 AM on August 26, 2011 [1 favorite]
But what would egalitarian lawyering do to the state of the lawyer joke industry? Won't somebody think of the armchair comedians?!!
posted by It's Raining Florence Henderson at 9:25 AM on August 26, 2011 [1 favorite]
posted by It's Raining Florence Henderson at 9:25 AM on August 26, 2011 [1 favorite]
there's a flip side to this problem that no one's considered - legitimacy
if poor people can't access the legal system and get their side of the story heard, how many of them are going to regard the court's actions and decisions as legitimate? they will do everything they can to evade and subvert what the legal system has decided for them - and once in awhile, they may choose to fight back
it's already started, hasn't it?
isn't that the real choice we have? - open up the system so all can find a voice - or watch the system start to fail from the lack of cooperation from those it affects
posted by pyramid termite at 9:27 AM on August 26, 2011 [3 favorites]
if poor people can't access the legal system and get their side of the story heard, how many of them are going to regard the court's actions and decisions as legitimate? they will do everything they can to evade and subvert what the legal system has decided for them - and once in awhile, they may choose to fight back
it's already started, hasn't it?
isn't that the real choice we have? - open up the system so all can find a voice - or watch the system start to fail from the lack of cooperation from those it affects
posted by pyramid termite at 9:27 AM on August 26, 2011 [3 favorites]
As someone who's had the dubious pleasure of looking at dozens of resumes for associates coming into a top-tier law firm over the past couple of years, they've already been doing this to an extent.
I know--I see the same. Myself, I worked in housing court, and helped advise inmates on pro se hearings in prison. Both were interesting, but not exactly results oriented. Housing court moves slowly; I don't think I saw a case to completion. Of course, I spoke passionately about it for my interviews at white shoe firms. And when I got my own white shoes, I never did that again (though I do still do low-impact pro bono). The leather on the white shoes is really very delicate, and they're ever so hard to clean.
My point (and it doesn't sound like you disagree) is that if you tell these achievers to go help the underserved, a good portion of them are going to help the crap out of them because they're gunners. It doesn't really matter if they care about service for service's sake, they'll do great work because they want to out service the other guy. Others won't strive so hard, but will at least get the experience, which will help them either get a job or be a solo. A bottom tier will muster out and will not be hired into the private bar.
posted by Admiral Haddock at 9:30 AM on August 26, 2011
I know--I see the same. Myself, I worked in housing court, and helped advise inmates on pro se hearings in prison. Both were interesting, but not exactly results oriented. Housing court moves slowly; I don't think I saw a case to completion. Of course, I spoke passionately about it for my interviews at white shoe firms. And when I got my own white shoes, I never did that again (though I do still do low-impact pro bono). The leather on the white shoes is really very delicate, and they're ever so hard to clean.
My point (and it doesn't sound like you disagree) is that if you tell these achievers to go help the underserved, a good portion of them are going to help the crap out of them because they're gunners. It doesn't really matter if they care about service for service's sake, they'll do great work because they want to out service the other guy. Others won't strive so hard, but will at least get the experience, which will help them either get a job or be a solo. A bottom tier will muster out and will not be hired into the private bar.
posted by Admiral Haddock at 9:30 AM on August 26, 2011
Several states currently allow people to sit bar exams without having gone to an accredited law school.
And there have been no resulting problems at all.
posted by TheWhiteSkull at 9:34 AM on August 26, 2011 [1 favorite]
And there have been no resulting problems at all.
posted by TheWhiteSkull at 9:34 AM on August 26, 2011 [1 favorite]
Re bonehead: that's not so far from how we train lawyers in England. ('England' not 'the UK' because Scotland has a separate legal system and trains lawyers in a slightly different way.)
An English law student will either do a three-year LLB law degree as a dedicated subject, or if already a graduate will do the one-year Graduate Diploma in Law conversion course. He or she will then spend another year doing either the Legal Practice Course (if intending to become a solicitor) or the Bar Professional Training Course (if intending to become a barrister.)
The aspiring lawyer then has to do a practical training phase before being qualified to practise. For solicitors, that will be a two-year training contract in a law firm; for barristers, a one-year pupillage in a set of barristers' chambers.
posted by Major Clanger at 9:35 AM on August 26, 2011
An English law student will either do a three-year LLB law degree as a dedicated subject, or if already a graduate will do the one-year Graduate Diploma in Law conversion course. He or she will then spend another year doing either the Legal Practice Course (if intending to become a solicitor) or the Bar Professional Training Course (if intending to become a barrister.)
The aspiring lawyer then has to do a practical training phase before being qualified to practise. For solicitors, that will be a two-year training contract in a law firm; for barristers, a one-year pupillage in a set of barristers' chambers.
posted by Major Clanger at 9:35 AM on August 26, 2011
Or, you know, it's a large and complex society so it needs a large and complex set of laws.
Bullshit. It might be a highly specialized society in which different specialties have laws specific to them, but the general day-to-day laws affecting people outside domain-specific behavior need to be few enough in number and clear enough in intent that anybody with an IQ over 85 can have a clear understanding of whether they are doing the right or wrong thing.
This includes civil matters where there are many things a reasonable person might say or do that can spell certain doom in a lawsuit later on.
Basically: all people have a right to an understanding of whether they are on the right side of the law, period. This is absolutely not the case in America today and it's given rise to a broken and frequently disingenuous law enforcement culture.
posted by Ryvar at 9:35 AM on August 26, 2011 [1 favorite]
Bullshit. It might be a highly specialized society in which different specialties have laws specific to them, but the general day-to-day laws affecting people outside domain-specific behavior need to be few enough in number and clear enough in intent that anybody with an IQ over 85 can have a clear understanding of whether they are doing the right or wrong thing.
This includes civil matters where there are many things a reasonable person might say or do that can spell certain doom in a lawsuit later on.
Basically: all people have a right to an understanding of whether they are on the right side of the law, period. This is absolutely not the case in America today and it's given rise to a broken and frequently disingenuous law enforcement culture.
posted by Ryvar at 9:35 AM on August 26, 2011 [1 favorite]
Becoming a lawyer typically requires 7 years of schooling and hundreds of thousands of dollars of debt. The ABA essentially acts as a cartel, artificially restricting who can become lawyers to keep salaries high.
This is a status quo worth defending?
Deregulation does not equal no regulation. It is eminently reasonable to relax these restrictions so that those who can prove they know the law can practice it without requiring them to jump through unnecessary and artificial hoops.
posted by christonabike at 9:36 AM on August 26, 2011 [2 favorites]
This is a status quo worth defending?
Deregulation does not equal no regulation. It is eminently reasonable to relax these restrictions so that those who can prove they know the law can practice it without requiring them to jump through unnecessary and artificial hoops.
posted by christonabike at 9:36 AM on August 26, 2011 [2 favorites]
An added benefit would be exit opportunities for associates. I've spent my entire career in biglaw, and I don't know what I'd do if I left; I am a commercial lawyer working on exceedingly large and complex transactions (my job is the stapling). I have no idea what a pleading looks like, how to write one, where to file it, how to take a deposition, how to write a will, how to do 99% of the stuff most people think a lawyer does. I'd have to ask someone how to get something notarized. Literally no idea.
If I spent a few years roaming the courthouse with underserved clients, I think I'd be a better lawyer overall, and I'd know how to do some basic "actual lawyering" if I ever left biglaw.
I think that would be a boon to many--I think every senior associate I know has expressed fervent interest in doing something else, but has no idea what else to do.
posted by Admiral Haddock at 9:37 AM on August 26, 2011 [2 favorites]
If I spent a few years roaming the courthouse with underserved clients, I think I'd be a better lawyer overall, and I'd know how to do some basic "actual lawyering" if I ever left biglaw.
I think that would be a boon to many--I think every senior associate I know has expressed fervent interest in doing something else, but has no idea what else to do.
posted by Admiral Haddock at 9:37 AM on August 26, 2011 [2 favorites]
allowing people to become lawyers simply by passing the bar exam might not be the worst idea.
California already does this, and it's the only state that does as far as I know. Turns out that if you haven't gone to law school, passing the bar exam is really, really hard. California's passage rate is fairly tough to begin with, but the pass rate for people that didn't attend an ABA-accredited law school is just under 30%, less than half that of people who attended an ABA law school. The pass rate for repeat takers, already lower to begin with, is under 10% for people who didn't go to an ABA law school. In other words, if you want to be admitted to the bar in California, you'd damned well better to law school if you want more than a 1/3 shot at passing the bar.
So just opening up the bar exam to all takers won't increase the supply of attorneys all that much. Calls to "deregulate" basically mean eliminating the bar exam, period. And say what you like about its substantive content, the bar exam is pretty good at testing how well you rapidly absorb and retain a basically arbitrary set of information and how well you can take that retained information and use it in basically arbitrary analysis under time pressure over two or three days. Or, basically, how well you'd do in court, because that's basically what going to trial is.
posted by valkyryn at 9:39 AM on August 26, 2011 [1 favorite]
California already does this, and it's the only state that does as far as I know. Turns out that if you haven't gone to law school, passing the bar exam is really, really hard. California's passage rate is fairly tough to begin with, but the pass rate for people that didn't attend an ABA-accredited law school is just under 30%, less than half that of people who attended an ABA law school. The pass rate for repeat takers, already lower to begin with, is under 10% for people who didn't go to an ABA law school. In other words, if you want to be admitted to the bar in California, you'd damned well better to law school if you want more than a 1/3 shot at passing the bar.
So just opening up the bar exam to all takers won't increase the supply of attorneys all that much. Calls to "deregulate" basically mean eliminating the bar exam, period. And say what you like about its substantive content, the bar exam is pretty good at testing how well you rapidly absorb and retain a basically arbitrary set of information and how well you can take that retained information and use it in basically arbitrary analysis under time pressure over two or three days. Or, basically, how well you'd do in court, because that's basically what going to trial is.
posted by valkyryn at 9:39 AM on August 26, 2011 [1 favorite]
California already does this, and it's the only state that does as far as I know.
You can take the bar if you go to a state approved (but not ABA approved) law school which is the statistic you're comparing.
There is only one way to take the bar exam without attending any law school in California and you need to work under a judge or an experienced lawyer for a very extended period of time.
You can't just rock up and go "oh I know the law" and take the bar exam like you imply.
posted by Talez at 9:44 AM on August 26, 2011
You can take the bar if you go to a state approved (but not ABA approved) law school which is the statistic you're comparing.
There is only one way to take the bar exam without attending any law school in California and you need to work under a judge or an experienced lawyer for a very extended period of time.
You can't just rock up and go "oh I know the law" and take the bar exam like you imply.
posted by Talez at 9:44 AM on August 26, 2011
the general day-to-day laws affecting people outside domain-specific behavior need to be few enough in number and clear enough in intent that anybody with an IQ over 85 can have a clear understanding of whether they are doing the right or wrong thing.
You're confusing two different things. The criminal law is, by and large, pretty clear. Actually, it being clear is a constitutional requirement: if a judge finds that a particular defendant was not sufficiently on notice that his conduct was illegal, he cannot be convicted for breaking the law at issue. Notice is an essential part of due process.
But the civil law? First of all, civil law generally isn't interested in the "right" or "wrong" thing, so the kind of understanding you're talking about doesn't really apply there. Second, contract law is actually surprisingly simple. Lemme break it down for you. First, a contract is a meeting of the minds about the exchange of legal promises for a legal purpose. Second, the terms of a contract will generally be enforced unless they are illegal or ambiguous. That's basically it. The rest is just gravy. What's complicated isn't the law, but contracts themselves, which are not law. The reason contracts are complicated is because they are intended to remove as much ambiguity from the relationship as is humanly possible. This means including tons of terms that will never actually be used in 99% of cases but wind up being absolutely critical in that other 1%.
For example, the lease for my apartment says that I'm not allowed to give music lessons in it. Most people don't do that, and I don't really play any instruments, so I don't care. But if the guy downstairs decides he's going to offer tuba lessons for whatever reason, the landlord now has the ability to prohibit that to keep the other tenants happy. Absent that provision, everyone else basically has to deal with it, which makes for unhappy neighbors, which makes for an unhappy landlord. Because the landlord wants to be happy and wants to keep his tenants happy, most of the time, he includes all sorts of provisions like that one, and the result is a seven page lease.
Complicated? Yes. But nothing that an average person who bothered to sit down and read the damn lease couldn't understand. And that's the thing, really. Legal documents like contracts look really intimidating. But the vast majority of the time, a person with a high school education can understand them if they'd just take the time to do it.
posted by valkyryn at 9:48 AM on August 26, 2011 [3 favorites]
You're confusing two different things. The criminal law is, by and large, pretty clear. Actually, it being clear is a constitutional requirement: if a judge finds that a particular defendant was not sufficiently on notice that his conduct was illegal, he cannot be convicted for breaking the law at issue. Notice is an essential part of due process.
But the civil law? First of all, civil law generally isn't interested in the "right" or "wrong" thing, so the kind of understanding you're talking about doesn't really apply there. Second, contract law is actually surprisingly simple. Lemme break it down for you. First, a contract is a meeting of the minds about the exchange of legal promises for a legal purpose. Second, the terms of a contract will generally be enforced unless they are illegal or ambiguous. That's basically it. The rest is just gravy. What's complicated isn't the law, but contracts themselves, which are not law. The reason contracts are complicated is because they are intended to remove as much ambiguity from the relationship as is humanly possible. This means including tons of terms that will never actually be used in 99% of cases but wind up being absolutely critical in that other 1%.
For example, the lease for my apartment says that I'm not allowed to give music lessons in it. Most people don't do that, and I don't really play any instruments, so I don't care. But if the guy downstairs decides he's going to offer tuba lessons for whatever reason, the landlord now has the ability to prohibit that to keep the other tenants happy. Absent that provision, everyone else basically has to deal with it, which makes for unhappy neighbors, which makes for an unhappy landlord. Because the landlord wants to be happy and wants to keep his tenants happy, most of the time, he includes all sorts of provisions like that one, and the result is a seven page lease.
Complicated? Yes. But nothing that an average person who bothered to sit down and read the damn lease couldn't understand. And that's the thing, really. Legal documents like contracts look really intimidating. But the vast majority of the time, a person with a high school education can understand them if they'd just take the time to do it.
posted by valkyryn at 9:48 AM on August 26, 2011 [3 favorites]
If you can't just rock up and go "oh I know the law," then I say there is no law! Rock up and law! Rock up and law! ROCK UP AND LAW!!!
posted by It's Raining Florence Henderson at 9:49 AM on August 26, 2011 [2 favorites]
posted by It's Raining Florence Henderson at 9:49 AM on August 26, 2011 [2 favorites]
You can take the bar if you go to a state approved (but not ABA approved) law school which is the statistic you're comparing.
Actually, I averaged out all the non-ABA law school grads, foreign attorneys, and non-law grads to get that 30% figure. The accredited but non-ABA California schools have a pass rate of about 40%, while people who took the non-law school route only have a 27% pass rate.
You can't just rock up and go "oh I know the law" and take the bar exam like you imply.
Maybe, but that doesn't hurt my argument. Even people who have gone to a non-ABA law school or worked with judges/lawyers for a while tend to fail the bar exam in large numbers. People taking it cold wouldn't likely do better.
posted by valkyryn at 9:51 AM on August 26, 2011
Actually, I averaged out all the non-ABA law school grads, foreign attorneys, and non-law grads to get that 30% figure. The accredited but non-ABA California schools have a pass rate of about 40%, while people who took the non-law school route only have a 27% pass rate.
You can't just rock up and go "oh I know the law" and take the bar exam like you imply.
Maybe, but that doesn't hurt my argument. Even people who have gone to a non-ABA law school or worked with judges/lawyers for a while tend to fail the bar exam in large numbers. People taking it cold wouldn't likely do better.
posted by valkyryn at 9:51 AM on August 26, 2011
or worked with judges/lawyers for a while tend to fail the bar exam in large numbers
Except 50% passed their repeat from your link.
If you can't just rock up and go "oh I know the law," then I say there is no law! Rock up and law! Rock up and law! ROCK UP AND LAW!!!
I should explain...
Rock up : to turn up, to arrive - "we rocked up at their house at 8pm"
posted by Talez at 9:54 AM on August 26, 2011
Except 50% passed their repeat from your link.
If you can't just rock up and go "oh I know the law," then I say there is no law! Rock up and law! Rock up and law! ROCK UP AND LAW!!!
I should explain...
Rock up : to turn up, to arrive - "we rocked up at their house at 8pm"
posted by Talez at 9:54 AM on August 26, 2011
Put it another way, why does law need to be a postgraduate degree? Why not do it at public universities for $10,000/yr, like an engineering or architecture degree?
I would fully support that. That's how most of the rest of the world does it, and their lawyers are perfectly competent. The US system (i.e. law as a postgraduate degree) is an aberration.
posted by jedicus at 9:56 AM on August 26, 2011
I would fully support that. That's how most of the rest of the world does it, and their lawyers are perfectly competent. The US system (i.e. law as a postgraduate degree) is an aberration.
posted by jedicus at 9:56 AM on August 26, 2011
You can read law here in Virginia, too. It's exceedingly rare, but people do it.
My first reaction to this is that deregulation is the exact wrong direction to go. Regulations, by and large, didn't rise out of nothing - they are responses to problems in the previous less-regulated environment. And, the history of deregulation in my lifetime is chock full of failures for the average citizen.
The thing that kills me is it's always the free-market types who propose these solutions ("the market is more effective at sorting it out"), but, in the case of doctors and lawyers and CEOs, they nevernevernever address the market forces that restrict supply and drive costs up for everybody. Convenient, ain't it?
posted by Benny Andajetz at 9:56 AM on August 26, 2011
My first reaction to this is that deregulation is the exact wrong direction to go. Regulations, by and large, didn't rise out of nothing - they are responses to problems in the previous less-regulated environment. And, the history of deregulation in my lifetime is chock full of failures for the average citizen.
The thing that kills me is it's always the free-market types who propose these solutions ("the market is more effective at sorting it out"), but, in the case of doctors and lawyers and CEOs, they nevernevernever address the market forces that restrict supply and drive costs up for everybody. Convenient, ain't it?
posted by Benny Andajetz at 9:56 AM on August 26, 2011
The US system (i.e. law as a postgraduate degree) is an aberration.
Aberration is the legal term for balls.
The vast majority of the time, a person with a high school education can be convinced that they understand a contract if they take the time to do it. But the vast majority of the time, they're wrong.
I agree wholeheartedly, and would further suggest that most people who have not only a HS diploma, BA and JD do not read contracts, laws and regulations properly until they have worked as a lawyer for several years.
posted by Admiral Haddock at 9:59 AM on August 26, 2011 [1 favorite]
Aberration is the legal term for balls.
The vast majority of the time, a person with a high school education can be convinced that they understand a contract if they take the time to do it. But the vast majority of the time, they're wrong.
I agree wholeheartedly, and would further suggest that most people who have not only a HS diploma, BA and JD do not read contracts, laws and regulations properly until they have worked as a lawyer for several years.
posted by Admiral Haddock at 9:59 AM on August 26, 2011 [1 favorite]
I totally understood you, Talez. It's an awesome turn of phrase. "Rock up and law" is even better. Every issue is best understood once it has been verbed and slapped on a t-shirt.
posted by It's Raining Florence Henderson at 10:01 AM on August 26, 2011
posted by It's Raining Florence Henderson at 10:01 AM on August 26, 2011
It's Thunderdome time!
posted by blue_beetle at 10:04 AM on August 26, 2011
posted by blue_beetle at 10:04 AM on August 26, 2011
Two men enter, twenty lawyers leave.
posted by It's Raining Florence Henderson at 10:07 AM on August 26, 2011
posted by It's Raining Florence Henderson at 10:07 AM on August 26, 2011
The thing that kills me is it's always the free-market types who propose these solutions ("the market is more effective at sorting it out"), but, in the case of doctors and lawyers and CEOs, they nevernevernever address the market forces that restrict supply and drive costs up for everybody. Convenient, ain't it?
I think my own comment record here will show that I'm generally pro-economic regulation, and I'm also in favor of addressing "the market forces that restrict supply and drive costs up for everybody" (e.g. the high cost of law school). I don't think of myself as a "free-market" type, but rather someone in favor of empirically proven solutions. Sometimes markets work, sometimes they don't.
Empirically, the current approach does not work well: the poor and even middle class have limited access to legal services, law school costs a fortune, and yet we still have a lot of crappy lawyers and a lot of people who wish they hadn't spent so much on law school. So I'm open to considering other approaches, especially ones that have been tried elsewhere and seem to work okay.
Further: the current law school and bar system is a restriction on supply that drives up costs. One can argue that it's worth it because it ultimately saves money by producing higher quality results, but that's a proposition that I am not convinced of.
posted by jedicus at 10:09 AM on August 26, 2011 [2 favorites]
I think my own comment record here will show that I'm generally pro-economic regulation, and I'm also in favor of addressing "the market forces that restrict supply and drive costs up for everybody" (e.g. the high cost of law school). I don't think of myself as a "free-market" type, but rather someone in favor of empirically proven solutions. Sometimes markets work, sometimes they don't.
Empirically, the current approach does not work well: the poor and even middle class have limited access to legal services, law school costs a fortune, and yet we still have a lot of crappy lawyers and a lot of people who wish they hadn't spent so much on law school. So I'm open to considering other approaches, especially ones that have been tried elsewhere and seem to work okay.
Further: the current law school and bar system is a restriction on supply that drives up costs. One can argue that it's worth it because it ultimately saves money by producing higher quality results, but that's a proposition that I am not convinced of.
posted by jedicus at 10:09 AM on August 26, 2011 [2 favorites]
Well, why shouldn't I be allowed to apprentice to a lawyer and "read the law" like Lincoln did and then take the bar exam? Or study on my own or with an open source law school?
I really hate the idea that in order to be a lawyer, one must go at least $100k in debt. It is a shame that only the rich or the people who accept a long period of debt can be one in most states.
I mean, shouldn't law be democratized? Shouldn't it be accessible?
posted by inturnaround at 10:10 AM on August 26, 2011 [1 favorite]
I really hate the idea that in order to be a lawyer, one must go at least $100k in debt. It is a shame that only the rich or the people who accept a long period of debt can be one in most states.
I mean, shouldn't law be democratized? Shouldn't it be accessible?
posted by inturnaround at 10:10 AM on August 26, 2011 [1 favorite]
The vast majority of the time, a person with a high school education can be convinced that they understand a contract if they take the time to do it. But the vast majority of the time, they're wrong.
But a huge amount of debt shouldn't be a requirement to practice and neither should anything else. If you can pass the bar exam, you should be allowed to practice. If the bar exam isn't sufficient to prove you know enough, then the bar exam isn't effective in the first place.
posted by inturnaround at 10:14 AM on August 26, 2011 [1 favorite]
But a huge amount of debt shouldn't be a requirement to practice and neither should anything else. If you can pass the bar exam, you should be allowed to practice. If the bar exam isn't sufficient to prove you know enough, then the bar exam isn't effective in the first place.
posted by inturnaround at 10:14 AM on August 26, 2011 [1 favorite]
jedicus:
I think we're on the same page. I also think that supply-limiting is a much bigger problem in medicine than in law, but that's another argument.
Citizens have a need for, and a right to, capable legal representation. A deregulation-based method is, guaranteed, not gonna work. We have too many examples of why to have to get into details. Market incentives could be explored - like, maybe a year of pro bono or community work after graduation gets you a tuition reimbursement of some sort. But, if the carrot doesn't work ...
posted by Benny Andajetz at 10:26 AM on August 26, 2011
I think we're on the same page. I also think that supply-limiting is a much bigger problem in medicine than in law, but that's another argument.
Citizens have a need for, and a right to, capable legal representation. A deregulation-based method is, guaranteed, not gonna work. We have too many examples of why to have to get into details. Market incentives could be explored - like, maybe a year of pro bono or community work after graduation gets you a tuition reimbursement of some sort. But, if the carrot doesn't work ...
posted by Benny Andajetz at 10:26 AM on August 26, 2011
I can say without any doubt that the bar exam is not even remotely sufficient to prove that someone knows enough to competently or ethically practice law.
So why make passing the bar a sufficient condition for practicing law, per your comment?
posted by jedicus at 10:31 AM on August 26, 2011 [1 favorite]
So why make passing the bar a sufficient condition for practicing law, per your comment?
posted by jedicus at 10:31 AM on August 26, 2011 [1 favorite]
Yeah, what's the best way to ascertain the fitness of people to practice law?
posted by inturnaround at 10:33 AM on August 26, 2011
posted by inturnaround at 10:33 AM on August 26, 2011
The current system is incredibly problematic for many of the reasons that have been mentioned. But I am highly skeptical of this solution, which seems simplistic and superficial to me. I think in all honesty, you make legal services cheaper by making the law simpler, which usually means removing exceptions that have been added to more justly handle weird situations. The benefit is that it's simpler; the problem is that different cases are treated the same way. Dislike of that outcome is exactly how the law got complicated in the first place. We add special provisions for special situations, and before you know it, only a lot of training and experience allows you to recognize situations where those exceptions apply.
It's a very real problem. Trust me. I'm a former attorney and I'll be paying off law school for the rest of my professional life. (It's expensive not only because of tuition, remember, but because it takes you entirely or partially out of the labor force for three or more years as the system currently works.) But despite having absolutely no dog in this fight anymore and completely agreeing with some of the criticisms, this solution doesn't seem to me like it would work very well.
posted by Linda_Holmes at 10:33 AM on August 26, 2011
It's a very real problem. Trust me. I'm a former attorney and I'll be paying off law school for the rest of my professional life. (It's expensive not only because of tuition, remember, but because it takes you entirely or partially out of the labor force for three or more years as the system currently works.) But despite having absolutely no dog in this fight anymore and completely agreeing with some of the criticisms, this solution doesn't seem to me like it would work very well.
posted by Linda_Holmes at 10:33 AM on August 26, 2011
The market for legal services is composed of many potential customers who can not afford to pay wages which keep trained professionals working. Thus we see high attrition rates in the first few years after a lawyer graduates and enters practice. Furthermore those in need of legal services are forced to fend for themselves without any professional advice. Society at large seems unwilling to use progressive taxation to enable those without means to gain legal services (except the bare minimum support for a defendant with a public defender). Thus we should consider if the regulator barriers to entry into the profession are really providing the maximal value for all participants. Would you be better off receiving council from a person with a shorter professional training cycle (than the current 7 years); than you are today where you get virtually no legal services at all.
Finally would deregulation actually achieve the affect. Since one could see a situation where the market fundamentals are such that no professional can sustain themselves even without the burden of student loans. The journeyman plumber or electrician who calls on my house still needs to make 100/hour.
posted by humanfont at 10:39 AM on August 26, 2011
Finally would deregulation actually achieve the affect. Since one could see a situation where the market fundamentals are such that no professional can sustain themselves even without the burden of student loans. The journeyman plumber or electrician who calls on my house still needs to make 100/hour.
posted by humanfont at 10:39 AM on August 26, 2011
jedicus: "Legal screwups tend to happen in slow motion, with significant oversight (e.g. judges can tell when someone is incompetent)...
The legal profession's regulations primarily act as barriers to entry while doing a questionable job of weeding out incompetent or unethical lawyers.
...
One alternative way to improve access to legal services for the poor would simply be to subsidize the heck out of legal services. That would require neither regulation nor de-regulation, but it's also politically impractical, unfortunately."
1) Umm, I don't see why point 2 precludes point 1. That is, if "judges can determine when someone is incompetent" that means they can already do that now, right? So you make a claim that they do a "questionable job" (which is probably true - but not everyone can be the cream of the crop -- I've heard horrible stories about public defenders falling asleep on the job). But then why NOT have at least a little filtering go on before hand. IANAL, but let's face it, to be a lawyer requires at least a minimal knowledge of the law at hand. We do grant people the right to represent themselves already, no? (I mean, given certain circumstances, I know some people don't have that right).
2) I think your last point there is the key. That's precisely why they aren't calling for funding, but using the lack of funding to create a shittier system for the poor while using capitalist rhetoric of "deregulation". As if I'd expect any less from CATO.
posted by symbioid at 10:42 AM on August 26, 2011
The legal profession's regulations primarily act as barriers to entry while doing a questionable job of weeding out incompetent or unethical lawyers.
...
One alternative way to improve access to legal services for the poor would simply be to subsidize the heck out of legal services. That would require neither regulation nor de-regulation, but it's also politically impractical, unfortunately."
1) Umm, I don't see why point 2 precludes point 1. That is, if "judges can determine when someone is incompetent" that means they can already do that now, right? So you make a claim that they do a "questionable job" (which is probably true - but not everyone can be the cream of the crop -- I've heard horrible stories about public defenders falling asleep on the job). But then why NOT have at least a little filtering go on before hand. IANAL, but let's face it, to be a lawyer requires at least a minimal knowledge of the law at hand. We do grant people the right to represent themselves already, no? (I mean, given certain circumstances, I know some people don't have that right).
2) I think your last point there is the key. That's precisely why they aren't calling for funding, but using the lack of funding to create a shittier system for the poor while using capitalist rhetoric of "deregulation". As if I'd expect any less from CATO.
posted by symbioid at 10:42 AM on August 26, 2011
If we combined this with the widespread practice of jury nullification (where the jury tries both the case at hand, AND the law being applied), and put all of the court decisions up on a public domain database, we could get something far closer to actual Justice out of the laws of this country.
In general I'm in favor of it. I'd keep the parts about ethics. I'm not so sure about the need to have malpractice insurance... especially if someone were to only take on jobs in a niche which kept them from frequent time in the courtroom. If appropriate disclosures are made, and re-stated in public at the start of proceedings, and the client is competent and willing to continue, they should be allowed to use whoever they choose.
We've swung way too far towards the worry about the letter of the law, and too far away from the intent (aka Justice for All). It's time to swing things back a bit.
posted by MikeWarot at 10:44 AM on August 26, 2011 [1 favorite]
In general I'm in favor of it. I'd keep the parts about ethics. I'm not so sure about the need to have malpractice insurance... especially if someone were to only take on jobs in a niche which kept them from frequent time in the courtroom. If appropriate disclosures are made, and re-stated in public at the start of proceedings, and the client is competent and willing to continue, they should be allowed to use whoever they choose.
We've swung way too far towards the worry about the letter of the law, and too far away from the intent (aka Justice for All). It's time to swing things back a bit.
posted by MikeWarot at 10:44 AM on August 26, 2011 [1 favorite]
That is, if "judges can determine when someone is incompetent" that means they can already do that now, right? So you make a claim that they do a "questionable job"... But then why NOT have at least a little filtering go on before hand
Because the filtering costs more than it saves in reduced legal errors. Or at least that's the theory. Luckily, it's one that can be tested empirically, and it can be done on a state-by-state basis.
This is a good opportunity for a state to be a 'laboratory of democracy' and try it out for a few years. Oregon might be a good choice, since it (alone among the states, absurdly enough) already requires attorneys to carry malpractice insurance.
posted by jedicus at 10:51 AM on August 26, 2011
Because the filtering costs more than it saves in reduced legal errors. Or at least that's the theory. Luckily, it's one that can be tested empirically, and it can be done on a state-by-state basis.
This is a good opportunity for a state to be a 'laboratory of democracy' and try it out for a few years. Oregon might be a good choice, since it (alone among the states, absurdly enough) already requires attorneys to carry malpractice insurance.
posted by jedicus at 10:51 AM on August 26, 2011
I sure as hell don't need a regulated lawyer for a divorce.
posted by Ardiril at 10:58 AM on August 26, 2011
posted by Ardiril at 10:58 AM on August 26, 2011
I don't know. It just seems to me to be wrong to create a priestly class of people that it's impossible to join without a cover fee.
I don't see how a college degree would be needed. I mean, why can't we open source law school, too? Why does the bar association have a virtual lock on the profession in most states? It seems you need more education to be a lawyer than to be a judge which seems counter-intuitive.
posted by inturnaround at 11:03 AM on August 26, 2011
I don't see how a college degree would be needed. I mean, why can't we open source law school, too? Why does the bar association have a virtual lock on the profession in most states? It seems you need more education to be a lawyer than to be a judge which seems counter-intuitive.
posted by inturnaround at 11:03 AM on August 26, 2011
"customers who can not afford to pay ...Society at large seems unwilling to use progressive taxation..."
There's really no reason to pick on this issue vs any other, but the elephant in the room of tax share solutions is that there actually is a finite amount of leveragable wealth (regardless of whether it's used directly or distributively). Whether it's transit or food or health service or legal service, there may be a non-BS argument that we can no longer afford all the nice things we want.
posted by Reasonably Everything Happens at 11:09 AM on August 26, 2011 [1 favorite]
There's really no reason to pick on this issue vs any other, but the elephant in the room of tax share solutions is that there actually is a finite amount of leveragable wealth (regardless of whether it's used directly or distributively). Whether it's transit or food or health service or legal service, there may be a non-BS argument that we can no longer afford all the nice things we want.
posted by Reasonably Everything Happens at 11:09 AM on August 26, 2011 [1 favorite]
As an experienced commercial litigator who has been involved in cases where millions of dollars were spent on disputes about the legal significance and meaning of written contracts, I strongly disagree with your assertion.
A contract dealing with a multi-million dollar commercial dispute isn't generally something that a private individual is going to find themselves party to all that often. Your clients aren't private individuals, they're corporations.
I see what a lot of the other lawyers on here are saying, but I'm going to reaffirm my theory that for the kinds of documents that normal people deal with on a regular basis, the barrier to understanding has more to do with their literacy than the document.
posted by valkyryn at 11:11 AM on August 26, 2011
A contract dealing with a multi-million dollar commercial dispute isn't generally something that a private individual is going to find themselves party to all that often. Your clients aren't private individuals, they're corporations.
I see what a lot of the other lawyers on here are saying, but I'm going to reaffirm my theory that for the kinds of documents that normal people deal with on a regular basis, the barrier to understanding has more to do with their literacy than the document.
posted by valkyryn at 11:11 AM on August 26, 2011
Just because we do something to show that people are qualified doesn't mean that we couldn't do it differently. In a deregulated or differently regulated system people might pick bad representation, but they do that already. The majority of terrible-lawyering nightmare stories I've heard aren't that the attorney was incompetent or ignorant but that they didn't pay attention to the case. Reducing waste in the accreditation process should help that rather than hurt it.
posted by a robot made out of meat at 11:17 AM on August 26, 2011
posted by a robot made out of meat at 11:17 AM on August 26, 2011
Deregulating the legal profession strikes me as similar to eliminating the minimum wage. In both cases, you would make more of the commodity (jobs, lawyers) available to low-income people. But in both cases, the quality of the commodity that would become available to low-income people ($3/hour jobs, bottom-of-the-barrel lawyers) likely would not be acceptable.
Acceptable to whom? Who are you, or anyone else for that matter, to decide what is and is not acceptable for two strangers proposing a voluntary agreement between the two of them.
-----
One alternative way to improve access to legal services for the poor would simply be to subsidize the heck out of legal services.
This might improve access but it would also create incentives for more legal actions and for more attorneys. That's hardly a benefit. Deregulating the legal profession (removing their job protection) would avoid those side effects.
-----
The thing that kills me is it's always the free-market types who propose these solutions ("the market is more effective at sorting it out"), but, in the case of doctors and lawyers and CEOs, they nevernevernever address the market forces that restrict supply and drive costs up for everybody. Convenient, ain't it?
What?
Free market types never address the market forces restricting the supply of professionals?
Seriously?
posted by BigSky at 11:21 AM on August 26, 2011
Acceptable to whom? Who are you, or anyone else for that matter, to decide what is and is not acceptable for two strangers proposing a voluntary agreement between the two of them.
-----
One alternative way to improve access to legal services for the poor would simply be to subsidize the heck out of legal services.
This might improve access but it would also create incentives for more legal actions and for more attorneys. That's hardly a benefit. Deregulating the legal profession (removing their job protection) would avoid those side effects.
-----
The thing that kills me is it's always the free-market types who propose these solutions ("the market is more effective at sorting it out"), but, in the case of doctors and lawyers and CEOs, they nevernevernever address the market forces that restrict supply and drive costs up for everybody. Convenient, ain't it?
What?
Free market types never address the market forces restricting the supply of professionals?
Seriously?
posted by BigSky at 11:21 AM on August 26, 2011
inturnaround: "Well, why shouldn't I be allowed to apprentice to a lawyer and "read the law" like Lincoln did and then take the bar exam? Or study on my own or with an open source law school?"
Part of the training is learning to "think like a lawyer." In other words, learning to be a lawyer isn't just reading and memorizing rules, it's about learning how to identify legal issues, then apply the applicable rules governing the issue to the facts of the case. This is what the first year of law school is all about: changing the way you think. After you've learned that part, then it's more about the book learnin.'
In my experience, I started working as a law clerk before my 2L year, and I felt like the practical experience was a much better teacher than the coursework. I do think there is a very important role for coursework and policy study. However, I think most people would be surprised about how little most of law school prepares you for actual practice. I still get embarassed thinking about my first solo hearing in which introducing evidence was a foreign concept for me. Sure, I'd learned all the rules of hearsay in law school, but did they teach me how to mark, identify, lay a foundation for and authenticate evidence? Nope. You learn pretty quickly on the job, though: I suspect for most young attorneys, it's pretty much a fake it 'til you make it type of situation.
posted by Dr. Zira at 11:26 AM on August 26, 2011
Part of the training is learning to "think like a lawyer." In other words, learning to be a lawyer isn't just reading and memorizing rules, it's about learning how to identify legal issues, then apply the applicable rules governing the issue to the facts of the case. This is what the first year of law school is all about: changing the way you think. After you've learned that part, then it's more about the book learnin.'
In my experience, I started working as a law clerk before my 2L year, and I felt like the practical experience was a much better teacher than the coursework. I do think there is a very important role for coursework and policy study. However, I think most people would be surprised about how little most of law school prepares you for actual practice. I still get embarassed thinking about my first solo hearing in which introducing evidence was a foreign concept for me. Sure, I'd learned all the rules of hearsay in law school, but did they teach me how to mark, identify, lay a foundation for and authenticate evidence? Nope. You learn pretty quickly on the job, though: I suspect for most young attorneys, it's pretty much a fake it 'til you make it type of situation.
posted by Dr. Zira at 11:26 AM on August 26, 2011
I sure as hell don't need a regulated lawyer for a divorce.
And I'm sure your ex-spouse's expensive, highly trained lawyer hopes you don't get one.
posted by It's Raining Florence Henderson at 11:34 AM on August 26, 2011
And I'm sure your ex-spouse's expensive, highly trained lawyer hopes you don't get one.
posted by It's Raining Florence Henderson at 11:34 AM on August 26, 2011
Ridiculous. Barriers to entry for legal practice are incredibly low. Anyone smart and careful enough to be a competent lawyer can sleepwalk through law school and pass the Bar on the first or second try, the government lending them the money to do so regardless of credit rating. They can hang out a shingle anywhere they want (and in most states, that can be their living room). The start-up costs of a law practice are close to zero, and you can charge virtually whatever rate, on whatever fee structure or contingency, you want. You can take anyone who wants you as a client, and there's no court that can refuse you entry, and no counterparty or adversary of your client who can refuse to deal with you (as long as your client wants you).
Moreover, no industry in the US has ever been deregulated in the sense people are talking about here. The "deregulation" (for example, or the trucking or airlines or utilities) that occurred meant that the government no longer set the prices. The industries remain subject to regulation in their manner of operation that are breathtakingly broad, and in most cases getting broader every day. (Ask anyone who runs a trucking company.) The government continues to impose, directly or indirectly, barriers to entry and competition which are high and getting higher. These are barriers on companies and individuals. It's harder, not easier, to become and remain a licensed commercial trucker, a jet pilot, a journeyman utility lineman, or securities broker.
Most of what we think of as the ravages of "deregulation" are in fact a manifestation of the fact that capitalism abhors a vacuum, and in a free society the government doesn't usually get to operate by prior restraint. Profit-seekers innovate, and over time those innovations come to the attention of the government, which then reacts by regulation, mellowly if the innovations add social value, harshly (if often stupidly) when those innovations appear to be net negative from a social perspective.
posted by MattD at 11:37 AM on August 26, 2011 [1 favorite]
Moreover, no industry in the US has ever been deregulated in the sense people are talking about here. The "deregulation" (for example, or the trucking or airlines or utilities) that occurred meant that the government no longer set the prices. The industries remain subject to regulation in their manner of operation that are breathtakingly broad, and in most cases getting broader every day. (Ask anyone who runs a trucking company.) The government continues to impose, directly or indirectly, barriers to entry and competition which are high and getting higher. These are barriers on companies and individuals. It's harder, not easier, to become and remain a licensed commercial trucker, a jet pilot, a journeyman utility lineman, or securities broker.
Most of what we think of as the ravages of "deregulation" are in fact a manifestation of the fact that capitalism abhors a vacuum, and in a free society the government doesn't usually get to operate by prior restraint. Profit-seekers innovate, and over time those innovations come to the attention of the government, which then reacts by regulation, mellowly if the innovations add social value, harshly (if often stupidly) when those innovations appear to be net negative from a social perspective.
posted by MattD at 11:37 AM on August 26, 2011 [1 favorite]
Ridiculous. Barriers to entry for legal practice are incredibly low. Anyone smart and careful enough to be a competent lawyer can sleepwalk through law school and pass the Bar on the first or second try, the government lending them the money to do so regardless of credit rating.
That's a insane idea. Why is law school so expensive? Because it's a damned monopoly in order to be a lawyer. Law school's more theory than practice, unlike the end of medical school which involves hands-on training.
And I'd arguge your point that barriers to the legal practice are incredibly low. In order to get into law school, I first need a 4 year Bachelor's degree. So that's tens of thousands of dollars in debt already. Then I need to take the LSAT in most circumstances in order to apply to get into school. Then I get in hopefully, then I have to pay through the nose in order to do it, to have access to the people's law and its practice.
And how is not considering ones credit rating a positive? You mean sinking someone further into debt than they already are is a *good* thing?
It just seems unfair that I am not allowed to show my merit without first paying for the privilege. There *must* be a cheaper, more democratic way to be allowed into the clerical class of law.
posted by inturnaround at 12:00 PM on August 26, 2011
That's a insane idea. Why is law school so expensive? Because it's a damned monopoly in order to be a lawyer. Law school's more theory than practice, unlike the end of medical school which involves hands-on training.
And I'd arguge your point that barriers to the legal practice are incredibly low. In order to get into law school, I first need a 4 year Bachelor's degree. So that's tens of thousands of dollars in debt already. Then I need to take the LSAT in most circumstances in order to apply to get into school. Then I get in hopefully, then I have to pay through the nose in order to do it, to have access to the people's law and its practice.
And how is not considering ones credit rating a positive? You mean sinking someone further into debt than they already are is a *good* thing?
It just seems unfair that I am not allowed to show my merit without first paying for the privilege. There *must* be a cheaper, more democratic way to be allowed into the clerical class of law.
posted by inturnaround at 12:00 PM on August 26, 2011
valkyryn: "I see what a lot of the other lawyers on here are saying, but I'm going to reaffirm my theory that for the kinds of documents that normal people deal with on a regular basis, the barrier to understanding has more to do with their literacy than the document."
I think the main obstacle for the lay person is separating the legal jargon from the empty "legalese." Sure, a highly literate lay person can sit down with a contract and wade through all the "pursuant to" and "hereinafter" and old timey old school words that have fallen out of favor, replaced by plain language drafting nowadays. But the problem for the lay person is that some of those words - like "consideration" look like one word to a layperson but have a completely different specific meaning to us.
As an exercise, I just pulled up the Amazon Conditions of Use, which seems fairly accessible to a lay person as it seems to me to be relatively light on the legalese. I would be curious as to how a nonlawyer reading that would advise me if I were a potential client and asked "I bought this lawnmower on Amazon and while I was mowing my lawn, it fell apart and the cutting blade flew into my face and lost an eye. Can I sue Amazon, and if so, can I win?"
posted by Dr. Zira at 12:01 PM on August 26, 2011
I think the main obstacle for the lay person is separating the legal jargon from the empty "legalese." Sure, a highly literate lay person can sit down with a contract and wade through all the "pursuant to" and "hereinafter" and old timey old school words that have fallen out of favor, replaced by plain language drafting nowadays. But the problem for the lay person is that some of those words - like "consideration" look like one word to a layperson but have a completely different specific meaning to us.
As an exercise, I just pulled up the Amazon Conditions of Use, which seems fairly accessible to a lay person as it seems to me to be relatively light on the legalese. I would be curious as to how a nonlawyer reading that would advise me if I were a potential client and asked "I bought this lawnmower on Amazon and while I was mowing my lawn, it fell apart and the cutting blade flew into my face and lost an eye. Can I sue Amazon, and if so, can I win?"
posted by Dr. Zira at 12:01 PM on August 26, 2011
I remember reading the following in William Tecumseh Sherman's memoirs:
Hugh and T. E., Jr., offered me an equal copartnership in their law-firm.posted by Flunkie at 12:04 PM on August 26, 2011 [1 favorite]
(...)
I concluded to accept the proposition of Mr. Ewing, and accordingly the firm of Sherman & Ewing was duly announced, and our services to the public offered as attorneys-at-law.
(...)
Although in the course of my military reading I had studied a few of the ordinary law-books, such as Blackstone, Kent, Starkie, etc., I did not presume to be a lawyer; but our agreement was that Thomas Ewing, Jr., a good and thorough lawyer, should manage all business in the courts, while I gave attention to collections, agencies for houses and lands, and such business as my experience in banking had qualified me for. Yet, as my name was embraced in a law-firm, it seemed to me proper to take out a license. Accordingly, one day when United States Judge Lecompte was in our office, I mentioned the matter to him; he told me to go down to the clerk of his court, and he would give me the license. I inquired what examination I would have to submit to, and he replied, "None at all;" he would admit me on the ground of general intelligence.
You learn pretty quickly on the job, though: I suspect for most young attorneys, it's pretty much a fake it 'til you make it type of situation.
Then apprenticeships. I've no problem with that. Get on with the OJT.
posted by inturnaround at 12:04 PM on August 26, 2011
Then apprenticeships. I've no problem with that. Get on with the OJT.
posted by inturnaround at 12:04 PM on August 26, 2011
Up until about 20 years ago, you could read law and be accepted into the Montana Bar, if you could pass the exam. Pat Brown, former CA gov and father of Jerry, didn't go to college, but did go to law school after he'd been out of high school for a few years.
I work with contracts and licenses for documentaries and such, and the lawyer I work with most often tells me I know contract law better than any of his new associates, because I do it all the time, and they don't get as much exposure. On the plus side, I make more money than they do.
posted by Ideefixe at 12:06 PM on August 26, 2011
I work with contracts and licenses for documentaries and such, and the lawyer I work with most often tells me I know contract law better than any of his new associates, because I do it all the time, and they don't get as much exposure. On the plus side, I make more money than they do.
posted by Ideefixe at 12:06 PM on August 26, 2011
I'm not a lawyer, but I'm pretty sure the constitution requires us to do this.
posted by furiousxgeorge at 12:59 PM on August 26, 2011
posted by furiousxgeorge at 12:59 PM on August 26, 2011
I'm not a lawyer
You are now!
posted by It's Raining Florence Henderson at 1:03 PM on August 26, 2011
You are now!
posted by It's Raining Florence Henderson at 1:03 PM on August 26, 2011
The declaration of independence granted me that right, no one can take it away!
posted by furiousxgeorge at 1:17 PM on August 26, 2011
posted by furiousxgeorge at 1:17 PM on August 26, 2011
Admiral Haddock: This would be like the apprenticeship (I can't remember what it's called) for solicitors in the UK.
Trainees in England don't have to do public service; they have to spend two years working with a firm before they're qualified. They move around from department to department (I think there's a requirement for them to do a 'seat' in litigation, and maybe some other practice areas too).
On the complexity issue, seems to me that the complexity is not necessarily that words are incomprehensible or difficult, but that the exact interpretation of those words is open for debate, and that's where lawyers are needed.
For example, I recently did some case law research for a lawyer doing pro bono work for some of the London riot accused. They were facing eviction on the grounds that they'd committed crimes in the neighbourhood of their houses. The (alleged) crimes were several miles from their homes. Is that 'in the neighbourhood'? We all know what the words mean, but how should they be applied, in this case? Another big one is the contractual requirement to use 'reasonable endeavours' in a certain situation (vs 'all reasonable endeavours' or 'best endeavours' etc). What, exactly does that mean in a specific situation? Courts have held that those phrases have different degrees of meaning. We all understand the words, but a good lawyer will understand the exact differences.
posted by Infinite Jest at 1:31 PM on August 26, 2011
Trainees in England don't have to do public service; they have to spend two years working with a firm before they're qualified. They move around from department to department (I think there's a requirement for them to do a 'seat' in litigation, and maybe some other practice areas too).
On the complexity issue, seems to me that the complexity is not necessarily that words are incomprehensible or difficult, but that the exact interpretation of those words is open for debate, and that's where lawyers are needed.
For example, I recently did some case law research for a lawyer doing pro bono work for some of the London riot accused. They were facing eviction on the grounds that they'd committed crimes in the neighbourhood of their houses. The (alleged) crimes were several miles from their homes. Is that 'in the neighbourhood'? We all know what the words mean, but how should they be applied, in this case? Another big one is the contractual requirement to use 'reasonable endeavours' in a certain situation (vs 'all reasonable endeavours' or 'best endeavours' etc). What, exactly does that mean in a specific situation? Courts have held that those phrases have different degrees of meaning. We all understand the words, but a good lawyer will understand the exact differences.
posted by Infinite Jest at 1:31 PM on August 26, 2011
While we're at it, why do we need medical school accreditation or medical schools either? Why not just let the licensing boards be the final arbiters of who is or isn't qualified to be a doctor and cut out the middle men there, too?
Or is law somehow less difficult a subject, or less a matter of life or death?
posted by saulgoodman at 1:43 PM on August 26, 2011
Or is law somehow less difficult a subject, or less a matter of life or death?
posted by saulgoodman at 1:43 PM on August 26, 2011
but that the exact interpretation of those words is open for debate, and that's where lawyers are needed.
Why? Their interpretations of those words don't always agree either. Even among judges these interpretive questions are never so cut-and-dried as all that, and even judges scuffle over the interpretation of law.
posted by saulgoodman at 1:47 PM on August 26, 2011
Why? Their interpretations of those words don't always agree either. Even among judges these interpretive questions are never so cut-and-dried as all that, and even judges scuffle over the interpretation of law.
posted by saulgoodman at 1:47 PM on August 26, 2011
Admiral Haddock: This would be like the apprenticeship (I can't remember what it's called) for solicitors in the UK.
Trainees in England don't have to do public service; they have to spend two years working with a firm
Yes, that's what I'm talking about. What are they called? Just trainee solicitors?
posted by Admiral Haddock at 2:24 PM on August 26, 2011
Trainees in England don't have to do public service; they have to spend two years working with a firm
Yes, that's what I'm talking about. What are they called? Just trainee solicitors?
posted by Admiral Haddock at 2:24 PM on August 26, 2011
In order to be a good non-law-school lawyer, you'll need that 4 year Bachelor's degree, too. Or are you arguing that there's any significant number of people who, with no formal education beyond high school, should be allowed to practice law?
I'd imagine that there wouldn't be a significant number of people who would want to do this as it would still take a lot of work..
I'm not saying these people should be untrained. I'm just saying there's more than one way to do things.
And frankly, my ability to do well in a foreign language or calculus or organic chemistry isn't really the issue. If something interests me, I want to learn all about it.
posted by inturnaround at 2:35 PM on August 26, 2011
I'd imagine that there wouldn't be a significant number of people who would want to do this as it would still take a lot of work..
I'm not saying these people should be untrained. I'm just saying there's more than one way to do things.
And frankly, my ability to do well in a foreign language or calculus or organic chemistry isn't really the issue. If something interests me, I want to learn all about it.
posted by inturnaround at 2:35 PM on August 26, 2011
What would be the incentive for those good-yet-uncredentialed lawyers to contribute good lawyering to clients who cannot pay? For the most part, market forces will incentivize good lawyers - regardless of their debt load - to make more money and provide better for themselves and their families.
But I suppose high-paying firms and clients wouldn't want to hire most of those non-schooled lawyers. So some or most of them would be forced to work for lower pay. And if that's the case (i.e. if this new class of non-educated lawyers cannot find jobs that pay well), why would any significant number of them decide to be lawyers in the first place? People who are a) really super smart and b) really super motivated to do public interest legal work already study hard, get scholarships, go to law school, graduate without any debt, and become lawyers. And even some of them change their mind during law school when they figure out that, with top grades from a top school, they can make an impressive starting salary at a big firm.
You're taking the extreme case and claiming it holds for the entire class. The group of would be good-yet-uncredentialed lawyers are not all "People who are a) really super smart and b) really super motivated to do public interest legal work already study hard, get scholarships, go to law school, graduate without any debt, and become lawyers." There is undoubtedly a group of law students who are motivated to do public interest law, would make good competent lawyers, and who also did not make the cut for scholarships. It just doesn't seem plausible that this group would be negligible in comparison to the size of full ride scholarship earners headed for a career in public interest law.
If the cost of legal education dropped dramatically there is every reason to expect a greater proportion of graduating attorneys to be satisfied with lower paying positions, including public interest law. The same holds if the cost in time was less. And since a number of attorneys are declaring that they gained little in professional skills from law school, there is little reason to believe that only the "super smart" would make for good uncredentialed attorneys. It's not like they would all be coming to it blind. Many would be paralegals or legal secretaries who never had the time or money to go to law school and perhaps never finished college.
Even though I think it more likely to go up, perhaps the ratio of lawyers practicing public interest law would remain the same. Still the absolute number would certainly increase.
As I said above, if you've got what it takes to competently practice law without any education, you've got what it takes to earn a scholarship.
Even if I did agree with this, which I don't, so what? Perhaps the vast majority are all capable of earning a scholarship at college and law school. Why should they be compelled to take that path?
posted by BigSky at 2:45 PM on August 26, 2011
But I suppose high-paying firms and clients wouldn't want to hire most of those non-schooled lawyers. So some or most of them would be forced to work for lower pay. And if that's the case (i.e. if this new class of non-educated lawyers cannot find jobs that pay well), why would any significant number of them decide to be lawyers in the first place? People who are a) really super smart and b) really super motivated to do public interest legal work already study hard, get scholarships, go to law school, graduate without any debt, and become lawyers. And even some of them change their mind during law school when they figure out that, with top grades from a top school, they can make an impressive starting salary at a big firm.
You're taking the extreme case and claiming it holds for the entire class. The group of would be good-yet-uncredentialed lawyers are not all "People who are a) really super smart and b) really super motivated to do public interest legal work already study hard, get scholarships, go to law school, graduate without any debt, and become lawyers." There is undoubtedly a group of law students who are motivated to do public interest law, would make good competent lawyers, and who also did not make the cut for scholarships. It just doesn't seem plausible that this group would be negligible in comparison to the size of full ride scholarship earners headed for a career in public interest law.
If the cost of legal education dropped dramatically there is every reason to expect a greater proportion of graduating attorneys to be satisfied with lower paying positions, including public interest law. The same holds if the cost in time was less. And since a number of attorneys are declaring that they gained little in professional skills from law school, there is little reason to believe that only the "super smart" would make for good uncredentialed attorneys. It's not like they would all be coming to it blind. Many would be paralegals or legal secretaries who never had the time or money to go to law school and perhaps never finished college.
Even though I think it more likely to go up, perhaps the ratio of lawyers practicing public interest law would remain the same. Still the absolute number would certainly increase.
As I said above, if you've got what it takes to competently practice law without any education, you've got what it takes to earn a scholarship.
Even if I did agree with this, which I don't, so what? Perhaps the vast majority are all capable of earning a scholarship at college and law school. Why should they be compelled to take that path?
posted by BigSky at 2:45 PM on August 26, 2011
Yes, that's what I'm talking about. What are they called? Just trainee solicitors?
Yes, or trainee lawyers, or just trainees.
posted by Infinite Jest at 2:47 PM on August 26, 2011
Yes, or trainee lawyers, or just trainees.
posted by Infinite Jest at 2:47 PM on August 26, 2011
Do trainees typically get a seat at the firm where they did their trainee time? Or might they move about?
posted by Admiral Haddock at 2:49 PM on August 26, 2011
posted by Admiral Haddock at 2:49 PM on August 26, 2011
I would be curious as to how a nonlawyer reading that would advise me if I were a potential client and asked "I bought this lawnmower on Amazon and while I was mowing my lawn, it fell apart and the cutting blade flew into my face and lost an eye. Can I sue Amazon, and if so, can I win?
I'll take a stab at it as a non-lawyer. A Limitation of Liability clause doesn't give Amazon complete indemnity from claims, and if they were knowingly or negligently selling/distributing dangerous products then you could sue them, however it's probably better to go after the manufacturer of the lawnmower rather than Amazon in this case.
How'd I do, Doc?
posted by Hoopo at 3:15 PM on August 26, 2011
I'll take a stab at it as a non-lawyer. A Limitation of Liability clause doesn't give Amazon complete indemnity from claims, and if they were knowingly or negligently selling/distributing dangerous products then you could sue them, however it's probably better to go after the manufacturer of the lawnmower rather than Amazon in this case.
How'd I do, Doc?
posted by Hoopo at 3:15 PM on August 26, 2011
and it's a good point that I agree with too, because I don't know whether I have any idea of how I'm doing either. I was just playing along to see if I'm on the right track.
posted by Hoopo at 3:25 PM on August 26, 2011
posted by Hoopo at 3:25 PM on August 26, 2011
Do trainees typically get a seat at the firm where they did their trainee time? Or might they move about?
Typically, yeah. Retention rates are around 80% or higher. Even the really really low rates are around 60% - see news articles here.
posted by Infinite Jest at 3:31 PM on August 26, 2011
Typically, yeah. Retention rates are around 80% or higher. Even the really really low rates are around 60% - see news articles here.
posted by Infinite Jest at 3:31 PM on August 26, 2011
I agree with the argument in one scenario: If you're the 100% owner of a close corporation, you should have the right to represent your company, whether or not you're admitted to the bar and whether or not you have a law degree. You have the right to represent yourself whether or not you have a bar admission, but since corporations are legally separate entities, you can't represent your company, even if you own all of it, run all of it, and for all practical purposes, are the company.
This has led to a few cases where I saw owners of small companies get put in some very unfair situations. In one case, a small company and its owner were the defendants in a very questionable lawsuit in federal court. The business had fallen on hard times for largely unrelated reasons, so neither the company nor the guy had money to hire a lawyer. I saw the guy appear at a hearing on behalf of himself, and he tried to appear on behalf of the corporation that he had a 100% stake in, but no dice. The corporation needed representation to file an Answer to the Complaint and avoid a default judgment, but the guy couldn't represent the corporation because you're only allowed to represent yourself as a non-attorney. So the plaintiff moved to default the corporation.
I found that to be tremendously unfair. It would be one thing if the company had multiple shareholders whose investments would be at risk, should those in control of the company decide to roll the dice on representing the corporation themselves as non-lawyers to save money. But the only thing at stake here was this guy's business, which he completely owned, and I saw no reason to inflexibly prevent him from representing what for all purposes was just his corporate alter ego.
But yeah, aside from that, this is a terrible idea. I mean, terrible relatively speaking-- we already repealed Glass-Steagall and unraveled the threads that held the financial sector together in myriad other ways, producing the economic instability that defines the modern age. I doubt this example of deregulation would be much worse than that. Who knows, maybe this time the invisible hand and market economics would fix everything, just like those other times they were supposed to and didn't. I mean, look at it this way: that prediction has to be right once, eventually, right?
posted by Law Talkin' Guy at 3:37 PM on August 26, 2011
This has led to a few cases where I saw owners of small companies get put in some very unfair situations. In one case, a small company and its owner were the defendants in a very questionable lawsuit in federal court. The business had fallen on hard times for largely unrelated reasons, so neither the company nor the guy had money to hire a lawyer. I saw the guy appear at a hearing on behalf of himself, and he tried to appear on behalf of the corporation that he had a 100% stake in, but no dice. The corporation needed representation to file an Answer to the Complaint and avoid a default judgment, but the guy couldn't represent the corporation because you're only allowed to represent yourself as a non-attorney. So the plaintiff moved to default the corporation.
I found that to be tremendously unfair. It would be one thing if the company had multiple shareholders whose investments would be at risk, should those in control of the company decide to roll the dice on representing the corporation themselves as non-lawyers to save money. But the only thing at stake here was this guy's business, which he completely owned, and I saw no reason to inflexibly prevent him from representing what for all purposes was just his corporate alter ego.
But yeah, aside from that, this is a terrible idea. I mean, terrible relatively speaking-- we already repealed Glass-Steagall and unraveled the threads that held the financial sector together in myriad other ways, producing the economic instability that defines the modern age. I doubt this example of deregulation would be much worse than that. Who knows, maybe this time the invisible hand and market economics would fix everything, just like those other times they were supposed to and didn't. I mean, look at it this way: that prediction has to be right once, eventually, right?
posted by Law Talkin' Guy at 3:37 PM on August 26, 2011
The current system is pretty terrible. Lots of people without any trained legal representation left to fend for themselves against armies of highly trained specialists.
I go hack to the plumber or electrician analogy. Even if you replace lawschool with an apprenticeship, I don't think those in need of legal representation will get access to lawyers. The hourly rate isnt going to be there. What's the hourly rate going to be and how many hours are going to be required. What can these clients afford per case? I just don't think the math will add up. If it did there would be a lot more profound sticking with law.
posted by humanfont at 4:46 PM on August 26, 2011
I go hack to the plumber or electrician analogy. Even if you replace lawschool with an apprenticeship, I don't think those in need of legal representation will get access to lawyers. The hourly rate isnt going to be there. What's the hourly rate going to be and how many hours are going to be required. What can these clients afford per case? I just don't think the math will add up. If it did there would be a lot more profound sticking with law.
posted by humanfont at 4:46 PM on August 26, 2011
Poor people always get screwed. They don't have money to pay for representation period. They live paycheck to paycheck. Trust me, law schools are already graduating more lawyers than there is demand for, so the lack of lawyers is not the problem.
posted by banished at 6:47 PM on August 26, 2011
posted by banished at 6:47 PM on August 26, 2011
Hoopo: "
How'd I do, Doc?"
E for Effort. I would worry that nonlawyers would look at the "DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY" section and immediately interpret that as some sort of waiver of claims, and think they were out of luck. But what I think is interesting is that you zoned in on that particular section, ignoring the other sections of the conditions that might screw over your client way more than this section. My point here, is that most legal documents aren't really difficult to read and understand for literate nonlawyers. As you've demonstrated, a nonlawyer can get a basic sense of the parties' obligations and rights just from reading the plain language of the document. Even if you came across terms of art like "implied warranties of merchantability" you could Google up the term and figure it out.
However, not everything you need to know to assess your hypothetical client's hypothetical legal rights is written on that document; your client needs a trained professional to help you see what you, the nonlawyer, are missing. The licensing/regulation isn't the problem - it's essential, and doing away with it is going to do more harm than good. To understand and fully appreciate why, and what you buy when you hire an attorney with a diploma and a license, it might be helpful to understand a bit more about what a lawyer actually does, because this is not the stuff they usually show on TeeVee courtrooms.
Upthread, I wrote about how the thrust of the 1L year is learning to think like a lawyer and spot issues and apply the analysis to the facts of the case. You basically learn to set up a framework of analysis and work through it. So let's work through the hypothetical from a lawyer's point of view using the Amazon Conditions as our hypothetical contract governing our hypothetical client's hypothetical purchase. Plus, to reinforce that this is a hypothetical, let's change the name of the hypothetical retailer to "Bamazon." so nobody who runs across this in a Google search a few months later confuses this hypo with any sort of allegation that a major online retailer is really selling crazy awful lawnmowers.
First off, who do we sue? You did a good job of identifying possible defendants, and right off the back, you recognize you've got a product liability claim and suggest to your client that you go after the manufacturer. But in product liability cases, you can have joint and several liability among not only the manufacturer, but the retailer, the distributor, and the supplier of the parts that went into making the product. You've got a claim based upon what you think is a defectively manufactured product, but who made the damned thing? The retailer is the easiest def to put on the hook, as is the name of the people who made the lawnmower, but you won't necessarily know the other possible defs. Fortunately, you can put the pressure on Bamazon and whomever the company is whose name is on the mower, and in order to defend themselves, they'll point the figure at the supplier and any other possibly culpable defendants, who you can later join up in your suit after you ascertain their identities. But let's focus on Bamazon for the time being, because they have the most direct relationship with your hypothetical client.
Before you even get to the substantive issues of whether or not Bamazon would be liable in that situation, you have to look at your procedural issues: even if you believe your client has a potential claim, could they open up the courthouse door? And if they can open up the courthouse door, which courthouse do you pick? Federal? State? Tribal court? In what state? And once you get into the courthouse, which law does that court apply? So right off the bat, you've got to rely on your civil procedure training to be able to understand and apply rules regarding subject matter jurisdiction and personal jurisdiction.
LET'S GO FORUM SHOPPING: In the Bamazon "Conditions of Use" it states you can't sue them, you have to go to arbitration. And not only do you have to go to arbitration, you have to go to binding arbitration, which means if you filed suit, Bamazon would come in and file a motion to dismiss, arguing that by using the site, you agreed to resolve your dispute through arbitration, which means that instead of a judicial proceeding in open court, you've basically agreed to have your dispute adjudicated by one or more individuals pursuant to the rules of the arbitration association chosen in the Conditions.* These individuals are appointed from rosters which include some former judges, but mostly just private practice attorneys who want in on the gravy train of earning several hundred dollars an hour to arbitrate on the side. The parties will nominate the arbitrators and/or attempt to agree on one. Maybe Bamazon has some neutrals on that roster that they'll try to have appointed because they know these neutrals' work and know they can expect quality work, (with the added bonus that by throwing these arbitrators the work, the arbitrators may be a little more inclined to find in their favor, especially if the claimant doesn't look closely at the disclosures and object to any arbitrators who may have arbitrated an Bamazon claim before). Assuming your client is able to press the claim and win, you'd then seek enforcement of the award in court under the Federal Arbitration Act; if you lose, you could seek to collaterally challenge the award in a judicial forum, but the standard of review will be really high and it will be extremely difficult to get an award overturned.
Let's take a break from the procedural issues for a sec because we still need to figure out what our claims are so we can do some forum shopping and choice of law analysis. Your client lost an eye, so we've got a tort, looks like a product liability claim, so GOOD NEWS! Could be strict liability in some circumstances which would be easier to prove up than a negligence action, but you'll probably want to throw in all your theories of liability to cover your bases and sort it out later in discovery (OH WAIT, we're in arbitration, so there's limited discovery. But since we obviously need lots of discovery, maybe there's an advantage to naming a manufacturer so you can make an end run around Bamazon's Conditions and using that Def to open the courthouse door (assuming the court has personal jurisdiction over the defendant, but not going into that analysis here) on the tort claim and use a theory of pendent/supplemental jurisdiction to get the court to hear the whole case or controversy, which may get you an end run around Bamazon's arbitration clause. If there was some assembly required to put together the lawnmower, maybe you've got a failure to warn claim, so there's a third cause of action. But since this involved the purchase of a product, you've not only got a tort claim, but a possible breach of contract claim as well: after all, Bamazon sold you a lawnmower that was a piece of shit and hurt your client, and although your client is most upset about the loss of bodily organ, she's also out several hundred dollars and has nothing with which to mow her lawn. I'm a bit rusty on the torts, so there could be more claims here, but hopefully by now, you've got the idea of the types of potential claims and accompanying issues we need to be looking for.
Whew! I'm getting tired, there are a lot of issues here! But here's another important issue that you've got to get sorted out before you even think about drafting your complaint: Choice of law.
Back to the claims as to Bamazon: The Conditions choose Washington law to interpret the contract. But what choice of law governs the tort claims? Different jurisdictions may provide different bodies of product liability law that may be more or less favorable to your client. So here you have a Choice of Law issue. Do you apply the law of the place where the purchase was made? If so, since this was an internet purchase, was the purchase made in the client's state of purchase or in Washington, where Bamazon is located? Do you apply the law of the place where the injury occurred? An attorney practicing in one jurisdiction can often encounter situations requiring an attorney to apply and analyze another jurisdiction's laws.
Okay, what about damages? What kind of damages can you get for your client if she wins? Starting with the tort claims, you've got some obvious quantifiables for the medical bills; obviously, there are also some non-quantifiable damages for some pain and suffering (OW MY EYE!!!! GUSH GUSH SPURT SPURT), loss of employment, loss of consortium, plus, the fact that your client can't drive safely due to no more distance perception or enjoy 3D movies anymore, and geez, we could go on and on here. Then there are the contract damages; she's out several hundred dollars for a mower, so there are expectation damages...Maybe she demanded a refund and Bamazon refused, so maybe some unjust enrichment theory; maybe some injunctive relief if Bamazon's still selling a dangerous lawnmower and your client wants to save others from losing their eyes beyond just a harshly worded zero starred review of said lawnmower.
We haven't even gotten to some of the other issues, like whether or not these Conditions are even an enforceable contract governing the dispute, or maybe there's a class action suit here, if this is a widely-sold product. But by now it's taken you a couple of hours or more to analyze the Bamazon Conditions of Use and figure out how you want to advise your client, and this is just a quick and dirty analysis - there are a lot of complicated issues here, and I'd want to be very careful about working through them, and doing some research and consult with colleagues to confirm whether or not my analysis is on the right track or maybe needs adjusting and then strategize accordingly.
Now here's the question: How much of what I just wrote above did I know from the plain text of the contract? Of that stuff, how much was stuff I learned from being trained as a lawyer versus stuff I would have known as a layperson and could have filed pro se? I'll be generous and claim that I'm as smart as you and would have not been fooled by that disclaimer (in reality, my pre-law self would not have been that smart), so let's be generous and say about 5%. I'm not a torts lawyer: everything I wrote about torts I learned during two semesters of torts in my 1L year, a couple of months studying for the bar, and from Googling "product liability" and stuff about damages to refresh my memory. Contracts came from a couple of semesters during 1L, studying for the bar and from experience. The CivPro stuff, which I think is the most useful and practical stuff for practice, came from two semesters of 1L CivPro + semesters of federal courts/choice of law/complex litigation courses that I took as electives because I had an amazing CivPro prof who taught me how to think like a lawyer and in doing so, inspired my appreciation for the art of being a proceduralist. The arbitration stuff: all practice experience.
So, sorry that was a pretty long post, and there are even more issues I could have discussed and analyzed, but I hope that gave you at least some sense of what lawyers learn to do, because what I wrote above is similar to what an answer would look like on a law school essay exam and a bar essay exam. Because this is the work demanded from a profession that regulates itself and establishes a threshold of minimum competence, everything I wrote above I can directly attribute to the training required by my jurisdiction's bar association, which allowed me to earn more experience, and more knowledge, and with that a corresponding amount of improved competence in the practice. I could have written none of that before I went to law school and studied and obtained my license to practice. I don't think I'm a particularly exceptionally brilliant person, and I think any one of you could do the same thing and with training required by your own bar associations.
As mentioned by others, the training is damned expensive and sort of inaccessible for some for whatever reason; resources, elitism, etc. So, what if we made an awesome top shelf law school education more accessible...accessible to anyone who wants it, without having to go into huge debt and break down the stupid ranking system so everyone gets a "Yale" quality training and we put out more lawyers, thereby increasing supply of lawyers and lowering costs. That gets you your credentials, but with hundreds of different state, federal, and tribal jurisdictions in this country, it's impossible for a law school to educate its students about the substantive law in every jurisdiction. They can, however, teach us how to figure out the differences in substantive law jurisdiction by jurisdiction, but you still need some way to identify which of our army of newly trained lawyers in the masses have a competent understanding of the unique body of law in any particular jurisdiction? That's where federal, state, and tribal bar association licenses come in, because without licensing, how do you determine whether or not someone has the requisite training in any one particular jurisdiction? You are still going to need some level of regulation to protect individual clients by guaranteeing that the person with the Esq. after their name has a basic level of training/competence to help the clients.
*I am obviously skeptical of arbitration. There are plusses and minuses, but I don't think it's the right solution for every dispute across the board. Having been through the arbitration process, I can tell you that while the idea of arbitration is that it's supposed to be more efficient than litigation, sometimes, the looser rules of procedure actually result in more problems that counter intuitively prolong the litigation. I once spent four weeks in a war just choosing the arbitrators, because each side kept disqualifying the other side's appointments on the basis of bias (our contract provided that the parties could either agree on one arbitrator, and if they couldn't, each side would nominate and arbitrator and those two would pick a third, which IIRC is the default AAA rule).
posted by Dr. Zira at 8:36 PM on August 26, 2011 [3 favorites]
How'd I do, Doc?"
E for Effort. I would worry that nonlawyers would look at the "DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY" section and immediately interpret that as some sort of waiver of claims, and think they were out of luck. But what I think is interesting is that you zoned in on that particular section, ignoring the other sections of the conditions that might screw over your client way more than this section. My point here, is that most legal documents aren't really difficult to read and understand for literate nonlawyers. As you've demonstrated, a nonlawyer can get a basic sense of the parties' obligations and rights just from reading the plain language of the document. Even if you came across terms of art like "implied warranties of merchantability" you could Google up the term and figure it out.
However, not everything you need to know to assess your hypothetical client's hypothetical legal rights is written on that document; your client needs a trained professional to help you see what you, the nonlawyer, are missing. The licensing/regulation isn't the problem - it's essential, and doing away with it is going to do more harm than good. To understand and fully appreciate why, and what you buy when you hire an attorney with a diploma and a license, it might be helpful to understand a bit more about what a lawyer actually does, because this is not the stuff they usually show on TeeVee courtrooms.
Upthread, I wrote about how the thrust of the 1L year is learning to think like a lawyer and spot issues and apply the analysis to the facts of the case. You basically learn to set up a framework of analysis and work through it. So let's work through the hypothetical from a lawyer's point of view using the Amazon Conditions as our hypothetical contract governing our hypothetical client's hypothetical purchase. Plus, to reinforce that this is a hypothetical, let's change the name of the hypothetical retailer to "Bamazon." so nobody who runs across this in a Google search a few months later confuses this hypo with any sort of allegation that a major online retailer is really selling crazy awful lawnmowers.
First off, who do we sue? You did a good job of identifying possible defendants, and right off the back, you recognize you've got a product liability claim and suggest to your client that you go after the manufacturer. But in product liability cases, you can have joint and several liability among not only the manufacturer, but the retailer, the distributor, and the supplier of the parts that went into making the product. You've got a claim based upon what you think is a defectively manufactured product, but who made the damned thing? The retailer is the easiest def to put on the hook, as is the name of the people who made the lawnmower, but you won't necessarily know the other possible defs. Fortunately, you can put the pressure on Bamazon and whomever the company is whose name is on the mower, and in order to defend themselves, they'll point the figure at the supplier and any other possibly culpable defendants, who you can later join up in your suit after you ascertain their identities. But let's focus on Bamazon for the time being, because they have the most direct relationship with your hypothetical client.
Before you even get to the substantive issues of whether or not Bamazon would be liable in that situation, you have to look at your procedural issues: even if you believe your client has a potential claim, could they open up the courthouse door? And if they can open up the courthouse door, which courthouse do you pick? Federal? State? Tribal court? In what state? And once you get into the courthouse, which law does that court apply? So right off the bat, you've got to rely on your civil procedure training to be able to understand and apply rules regarding subject matter jurisdiction and personal jurisdiction.
LET'S GO FORUM SHOPPING: In the Bamazon "Conditions of Use" it states you can't sue them, you have to go to arbitration. And not only do you have to go to arbitration, you have to go to binding arbitration, which means if you filed suit, Bamazon would come in and file a motion to dismiss, arguing that by using the site, you agreed to resolve your dispute through arbitration, which means that instead of a judicial proceeding in open court, you've basically agreed to have your dispute adjudicated by one or more individuals pursuant to the rules of the arbitration association chosen in the Conditions.* These individuals are appointed from rosters which include some former judges, but mostly just private practice attorneys who want in on the gravy train of earning several hundred dollars an hour to arbitrate on the side. The parties will nominate the arbitrators and/or attempt to agree on one. Maybe Bamazon has some neutrals on that roster that they'll try to have appointed because they know these neutrals' work and know they can expect quality work, (with the added bonus that by throwing these arbitrators the work, the arbitrators may be a little more inclined to find in their favor, especially if the claimant doesn't look closely at the disclosures and object to any arbitrators who may have arbitrated an Bamazon claim before). Assuming your client is able to press the claim and win, you'd then seek enforcement of the award in court under the Federal Arbitration Act; if you lose, you could seek to collaterally challenge the award in a judicial forum, but the standard of review will be really high and it will be extremely difficult to get an award overturned.
Let's take a break from the procedural issues for a sec because we still need to figure out what our claims are so we can do some forum shopping and choice of law analysis. Your client lost an eye, so we've got a tort, looks like a product liability claim, so GOOD NEWS! Could be strict liability in some circumstances which would be easier to prove up than a negligence action, but you'll probably want to throw in all your theories of liability to cover your bases and sort it out later in discovery (OH WAIT, we're in arbitration, so there's limited discovery. But since we obviously need lots of discovery, maybe there's an advantage to naming a manufacturer so you can make an end run around Bamazon's Conditions and using that Def to open the courthouse door (assuming the court has personal jurisdiction over the defendant, but not going into that analysis here) on the tort claim and use a theory of pendent/supplemental jurisdiction to get the court to hear the whole case or controversy, which may get you an end run around Bamazon's arbitration clause. If there was some assembly required to put together the lawnmower, maybe you've got a failure to warn claim, so there's a third cause of action. But since this involved the purchase of a product, you've not only got a tort claim, but a possible breach of contract claim as well: after all, Bamazon sold you a lawnmower that was a piece of shit and hurt your client, and although your client is most upset about the loss of bodily organ, she's also out several hundred dollars and has nothing with which to mow her lawn. I'm a bit rusty on the torts, so there could be more claims here, but hopefully by now, you've got the idea of the types of potential claims and accompanying issues we need to be looking for.
Whew! I'm getting tired, there are a lot of issues here! But here's another important issue that you've got to get sorted out before you even think about drafting your complaint: Choice of law.
Back to the claims as to Bamazon: The Conditions choose Washington law to interpret the contract. But what choice of law governs the tort claims? Different jurisdictions may provide different bodies of product liability law that may be more or less favorable to your client. So here you have a Choice of Law issue. Do you apply the law of the place where the purchase was made? If so, since this was an internet purchase, was the purchase made in the client's state of purchase or in Washington, where Bamazon is located? Do you apply the law of the place where the injury occurred? An attorney practicing in one jurisdiction can often encounter situations requiring an attorney to apply and analyze another jurisdiction's laws.
Okay, what about damages? What kind of damages can you get for your client if she wins? Starting with the tort claims, you've got some obvious quantifiables for the medical bills; obviously, there are also some non-quantifiable damages for some pain and suffering (OW MY EYE!!!! GUSH GUSH SPURT SPURT), loss of employment, loss of consortium, plus, the fact that your client can't drive safely due to no more distance perception or enjoy 3D movies anymore, and geez, we could go on and on here. Then there are the contract damages; she's out several hundred dollars for a mower, so there are expectation damages...Maybe she demanded a refund and Bamazon refused, so maybe some unjust enrichment theory; maybe some injunctive relief if Bamazon's still selling a dangerous lawnmower and your client wants to save others from losing their eyes beyond just a harshly worded zero starred review of said lawnmower.
We haven't even gotten to some of the other issues, like whether or not these Conditions are even an enforceable contract governing the dispute, or maybe there's a class action suit here, if this is a widely-sold product. But by now it's taken you a couple of hours or more to analyze the Bamazon Conditions of Use and figure out how you want to advise your client, and this is just a quick and dirty analysis - there are a lot of complicated issues here, and I'd want to be very careful about working through them, and doing some research and consult with colleagues to confirm whether or not my analysis is on the right track or maybe needs adjusting and then strategize accordingly.
Now here's the question: How much of what I just wrote above did I know from the plain text of the contract? Of that stuff, how much was stuff I learned from being trained as a lawyer versus stuff I would have known as a layperson and could have filed pro se? I'll be generous and claim that I'm as smart as you and would have not been fooled by that disclaimer (in reality, my pre-law self would not have been that smart), so let's be generous and say about 5%. I'm not a torts lawyer: everything I wrote about torts I learned during two semesters of torts in my 1L year, a couple of months studying for the bar, and from Googling "product liability" and stuff about damages to refresh my memory. Contracts came from a couple of semesters during 1L, studying for the bar and from experience. The CivPro stuff, which I think is the most useful and practical stuff for practice, came from two semesters of 1L CivPro + semesters of federal courts/choice of law/complex litigation courses that I took as electives because I had an amazing CivPro prof who taught me how to think like a lawyer and in doing so, inspired my appreciation for the art of being a proceduralist. The arbitration stuff: all practice experience.
So, sorry that was a pretty long post, and there are even more issues I could have discussed and analyzed, but I hope that gave you at least some sense of what lawyers learn to do, because what I wrote above is similar to what an answer would look like on a law school essay exam and a bar essay exam. Because this is the work demanded from a profession that regulates itself and establishes a threshold of minimum competence, everything I wrote above I can directly attribute to the training required by my jurisdiction's bar association, which allowed me to earn more experience, and more knowledge, and with that a corresponding amount of improved competence in the practice. I could have written none of that before I went to law school and studied and obtained my license to practice. I don't think I'm a particularly exceptionally brilliant person, and I think any one of you could do the same thing and with training required by your own bar associations.
As mentioned by others, the training is damned expensive and sort of inaccessible for some for whatever reason; resources, elitism, etc. So, what if we made an awesome top shelf law school education more accessible...accessible to anyone who wants it, without having to go into huge debt and break down the stupid ranking system so everyone gets a "Yale" quality training and we put out more lawyers, thereby increasing supply of lawyers and lowering costs. That gets you your credentials, but with hundreds of different state, federal, and tribal jurisdictions in this country, it's impossible for a law school to educate its students about the substantive law in every jurisdiction. They can, however, teach us how to figure out the differences in substantive law jurisdiction by jurisdiction, but you still need some way to identify which of our army of newly trained lawyers in the masses have a competent understanding of the unique body of law in any particular jurisdiction? That's where federal, state, and tribal bar association licenses come in, because without licensing, how do you determine whether or not someone has the requisite training in any one particular jurisdiction? You are still going to need some level of regulation to protect individual clients by guaranteeing that the person with the Esq. after their name has a basic level of training/competence to help the clients.
*I am obviously skeptical of arbitration. There are plusses and minuses, but I don't think it's the right solution for every dispute across the board. Having been through the arbitration process, I can tell you that while the idea of arbitration is that it's supposed to be more efficient than litigation, sometimes, the looser rules of procedure actually result in more problems that counter intuitively prolong the litigation. I once spent four weeks in a war just choosing the arbitrators, because each side kept disqualifying the other side's appointments on the basis of bias (our contract provided that the parties could either agree on one arbitrator, and if they couldn't, each side would nominate and arbitrator and those two would pick a third, which IIRC is the default AAA rule).
posted by Dr. Zira at 8:36 PM on August 26, 2011 [3 favorites]
This is about as fun as "What if all this money were real?" while playing Monopoly. It's not, and it's not ever going to be, so the whole thing is kind of pointless to discuss. Oblig.
posted by Civil_Disobedient at 1:18 AM on August 27, 2011
posted by Civil_Disobedient at 1:18 AM on August 27, 2011
I sure as hell don't need a regulated lawyer for a divorce.
You absolutely don't.
Unless there's a dispute with your ex-spouse over the kids or money. In that case, I'd get the lawyer.
posted by PeterMcDermott at 1:31 AM on August 27, 2011
You absolutely don't.
Unless there's a dispute with your ex-spouse over the kids or money. In that case, I'd get the lawyer.
posted by PeterMcDermott at 1:31 AM on August 27, 2011
Yeah when it comes to procedure Im stumped and need a pro. But why are you going after Bamazon and not Lawnmower Co again?
posted by Hoopo at 1:57 AM on August 27, 2011
posted by Hoopo at 1:57 AM on August 27, 2011
Poor people always get screwed. They don't have money to pay for representation period. They live paycheck to paycheck. Trust me, law schools are already graduating more lawyers than there is demand for, so the lack of lawyers is not the problem.
The price of lawyers still is.
posted by inturnaround at 8:16 AM on August 27, 2011
The price of lawyers still is.
posted by inturnaround at 8:16 AM on August 27, 2011
Hoopo: "Yeah when it comes to procedure Im stumped and need a pro. But why are you going after Bamazon and not Lawnmower Co again?"
You'd probably want to go after both and any other defs in the chain of manufacturer/supply/distribution. I was just focusing on Bamazon for the purposes of the hypothetical because there you've also got contract claims to look at.
posted by Dr. Zira at 8:29 AM on August 27, 2011
You'd probably want to go after both and any other defs in the chain of manufacturer/supply/distribution. I was just focusing on Bamazon for the purposes of the hypothetical because there you've also got contract claims to look at.
posted by Dr. Zira at 8:29 AM on August 27, 2011
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posted by dunkadunc at 8:15 AM on August 26, 2011 [4 favorites]