by Clifford Winston, Robert W. Crandall, and Vikram Maheshri. Washington, D.C.: Brooking Institution Press, 2011. 110 pp. Paper $19.95/£13.99. ISBN: 9780815721901.Reviewed by James C. Foster, Political Science, Oregon State University-Cascades. Email: james.foster [at] osucascades.edu.
pp.118-124
This slim volume makes its appearance at least a century too late; likely later than that. The book visits, in econometric terms, one narrow and esoteric (not to say insignificant) aspect of a controversy as old as The Republic itself. That dispute is over “professionalization” among lawyers. The disagreement’s hoary longevity can be traced by a lineage of commentators on the legal “profession,” conveniently book-ended by Alexis de Tocqueville and Richard L. Abel, with lots of notable observers such as Julius Henry Cohen, Benjamin Twiss (Edward S. Corwin), Roscoe Pound, Clyde F. Jacobs, Robert G. McCloskey, Arnold Paul, Jerold S. Auerbach, Magali Sarfatti Larson, and Deborah L. Rhode (to specify a mere few) along the way. Criticizing the various deleterious consequences of lawyers “professionalizing” is a cottage industry that has spawned a vast literature. Permutations of the term itself –“profession,” “professionalizing,” “professionalization” – have been subjected to enduring and occasionally acrimonious debate (see Nelson, Trubek, and Solomon). The persistence and vigor of such debates evidences both lawyers’ pervasive influence over key aspects of public and private life in America, and Americans’ deeply ambivalent attitudes toward lawyers’ sway.
Because the book under review intervenes in an ongoing, multidimensional conversation of long standing duration, it is especially important to situate it within debates over professionalizing lawyers. Winston, Crandall, and Maheshri join a long procession of critics that snakes throughout American history. Arguing that legal professionalization is problematical is hardly novel. Neither is contending that American lawyers enjoy a monopoly. Lawyers constitute the vocation Americans love to hate – or at least suspect. Consequently, without perspective one cannot assess adequately either the authors’ critique or their policy recommendations. By way of preview, Winston’s, Crandall’s, and Maheshri’s three-fold critique is that “[1] entry barriers to the legal profession, [2] regulations on the type of legal services that firms and individuals can provide, and [3] government-induced demand for lawyers . . . raise the price of legal services” (p.5); their policy recommendation is “deregulating entry by individuals and firms into the legal profession” (p.5). (They get points for distilling their prescriptions into a most clever title.)
For purposes of contextualizing First Thing We Do, Let’s Deregulate All The Lawyers, it is useful to categorize salient (but by no means all) critiques apparent in the voluminous literature questioning [*119] professional organization among lawyers. One might say that the debate over legal professionalism exhibits three thematic “faces.” Baldly stated, these themes are: (a) lawyers exercise too much influence over public affairs; (b) lawyers display too few ethics in private practice; and (c) lawyers make too much money.
Another way to characterize these three aspects is that each, respectively, sounds alarms about: lawyers as civic Guardians; lawyers as hired guns; and lawyers as market oligarchs.
Still another way to classify these three criticisms is that each, respectively, holds: lawyers professionalize in order to guard their political prerogatives; lawyers professionalize in order to duck responsibility; and lawyers professionalize in order to keep their “earnings premiums” (pp.7-8).
Finally, invoking the term “monopoly,” critics argue that the organized bar monopolizes politics and governing in America; monopolizes policing its own ranks; and monopolizes access to legal services.
For critics, then, American lawyers professionalize in order to protect their privileged position in American society. As far as the organized bar’s detractors are concerned, lawyers’ “pious pronouncements . . . mask purposes of an altogether different kind” (Atkinson, p.264; compare Gillers; Mashburn; Nelson, Trubek, and Solomon).
Further situating Winston, Crandall, and Maheshri, one can divide these three thematic variations on legal professionalization, understood as shielding privilege, into three (very rough) periods: the “Age of Antipathy” – from the Colonial Period through 1870; the “Age of Consolidation” – from 1870 through 1980s; and an “Age of Resignation” – from 1980s to the present.
One danger of such a scheme is that it risks each period being perceived as an historical silo, isolated from what came before, unrelated to what comes after. Such is not the case. Each period bleeds into the other. The dialectic between these periods can be suggested by noting that the three, taken together, form a revealing narrative: aversion to “Government by Lawyers” (Croly, pp.131-137) gave rise to the bar association movement (1870-1920) which solidified government by lawyers, which eventually resulted in uneasy, reluctant acquiescence to government by lawyers. Neither consolidation, nor resignation – and certainly not antipathy –have vanished from the scene. These three concerns, leitmotifs if you will, have supplemented each other, rather than supplanting one another: Americans continue to dislike lawyers while American lawyers have further strengthened their hold on political preeminence and legal practice causing critics to reconcile themselves to skirmishing around the edges of lawyers’ hegemony.
Having set the scene, we come to Winston’s, Crandall’s, and Maheshri’s modest proposal; and I do not mean “modest” in the Swiftian sense. I mean modest, as in unsurprising. Their analysis and proposals come as little surprise for two interrelated reasons: first, because of enduring dissatisfactions with the legal profession and, second, [*120] continuing power of the organized bar. First Thing We Do, Let’s Deregulate All The Lawyers is fueled by discontent with lawyers as gatekeepers, discontent that is long-standing. The book also exists under the cloud of sober realization that lawyers are not about to relinquish their post standing “before the law” (Kafka).
Winston’s, Crandall’s, and Maheshri’s book does not concern itself with criticisms about the pervasively influential role lawyers play in American public life (Period One), nor with the ethics of legal practice (Period Two). Rather, these authors – regulatory economists all – argue that lawyer-monopolies take too great share of scarce resources. They make their case via seven pithy chapters.
Chapter One provides an introductory preview of their argument. American Bar Association (ABA)-imposed entry barriers, they contend, coupled with lawyers successfully lobbying lawyer-legislators to adopt regulations benefitting practitioners, have limited competition, yielding inefficient earnings premiums. In subsequent chapters, Winston, Crandall, and Maheshri “conduct a battery of tests to examine whether [their] estimates of earnings premiums can be explained by unobserved factors that reflect efficiencies . . .” (p.7).
Initially, though, Chapter Two scrutinizes “The Market for Lawyers.” Winston, Crandall, and Maheshri argue that restrictive law school admissions policies and licensing requirements limit the supply of lawyers, while regulations adopted by governing lawyers accelerates demand, with result that lawyers’ earnings are inflated. Theirs is a three-dimensional analysis. First, “both existing and new law schools have gradually enabled more students to enroll, but this growth has been far outpaced by the demand for law degrees from ABA-accredited institutions” (p.13). Second, “[e]ven as the supply of lawyers has been constrained by the ABA and state licensing laws the demand for lawyers in the public and private sector has experienced continual growth, thanks in part to government policies that require private firms to retain legal counsel or encourage them to engage in litigation” (p.14). They discuss five examples of such policies (pp.14-16): environmental standards, intellectual property disputes, class-action liability suits, state consumer protection laws, and judicial rulings sanctioning lawyers’ self-regulation. Third, and as the result of factors one and two, lawyers “real earnings have grown substantially over the sample period [1975-2004] . . . they grew much faster between 1975 and 1990 (6.6 percent annually) than between 1990 and 2004 (less than 2 percent annually). . . . By 2004 the United States was spending $170 billion on lawyers (in 2005 dollars), which represented nearly 1.5 percent of gross domestic product” (p.21). Big numbers – but what is the problem? The key to Winston’s, Crandall’s, and Maheshri’s critique is “inefficiency,” i.e., earnings premiums “that are unrelated to skills or other personal characteristics” (p.28).
Chapters Three and Four are the core of this book. The analysis discussed in each chapter mirrors the other in the sense that Chapter Three seeks to demonstrate that lawyers’ earning premiums cannot be explained by “unobserved job characteristics, abilities, [*121] or skills” (p.28), while analysis in Chapter Four shows that lawyers’ earning premiums can be explained by “evidence that [the authors] have . . . measured the effect of market inefficiencies” (p. 71). In other words, attorneys earn premiums not because of lawyers’ qualities qua lawyers (Chapter Three), but rather because of constrained supply and contrived demand (Chapter Four). As one might expect from Brookings-associated economists, the analysis supporting these conclusions is statistically-based and mathematically sophisticated. The authors are careful to employ multiple tests, and not to claim more than their data and their empirical analyses support. For instance, in Chapter Three they explain:
[I]n the absence of a single persuasive econometric approach applied to an empirical model, we conduct several piecemeal robustness tests, sometimes using alternative data sources to the [Current Population Survey], to test whether the occupational dummies are solely reflecting lawyers’ working conditions, areas of specialization, abilities, and returns to skills. None of these tests on their own is dispositive, but we believe that their repeated finding that lawyers’ earnings premiums cannot be explained by those factors provides compelling evidence that the premiums reflect inefficiencies in the market for lawyers—that is, restrictions on the supply of new entrants to the profession (p.29).And, in Chapter Four:
Federal nondefense government agency employment, the real annual costs of the tort system, and the annual number of patent awards are associated with increased lawyer’s earnings premiums, and the effects are statistically significant. . . . Thus we interpret our findings as evidence that lawyer’s earnings premiums relative to earnings in other occupations are not spurred by the general, overall growth of the economy but are in fact driven by specific changes in government policy (pp.63-64).Chapters Five, Six, and Seven are of apiece. Their common point of departure is the authors’ indictment of the organized bar, in Chapter Five, “Welfare Costs,” for imposing sizable monetary losses on American society. They do not mince words, fingering the legal profession for $10 billion in “Deadweight loss, Suboptimal Service, and Distorted Occupational Choices” (pp.74-75). Clifford Winston articulated the focal point of deregulation he and his co-authors advocate in Chapter Six, in a New York Times op-ed, titled, “Are Law School and Bar Exams Necessary?” Invoking Abraham Lincoln and Clarence Darrow, neither graduates of an ABA accredited law school, Winston concludes: “Eliminating entry barriers and allowing non-lawyers to perform legal services would, among other gains, ensure that such talents have a place within our legal system.” Greater competition is the touchstone of their deregulation proposals. In Chapter Seven, Winston, Crandall, and Maheshri point to state deregulation as “a possible path” (p.99) toward policy reform.
The margins of the last two chapters of my copy of this book are dotted with comments like “highly unlikely,” “fat [*122] chance,” and Catch-22.” More elegantly, perhaps, but no less pointedly, Winston, Crandall, and Maheshri themselves specify exactly why their proposals, although evidence-based and persuasively reasoned, are politically DOA: “[T]he very people who are publicly entrusted to craft and enforce legislation increasingly come from legal backgrounds. Thus, lawyers not only influence the institutions that affect their industry, they have increasingly become those institutions” (p.76, emphasis in original). It is simply improbable that our government by lawyers is going to deregulate lawyers’ monopoly.
Winston’s, Crandall’s, and Maheshri’s dilemma reminds me of two similar conundrums, one a mid-twentieth century constitutional dispute, another playing out in today’s headlines. Between 1946 (Colegrove v. Green) and 1970 (Hadley v. Junior College District), the U.S. Supreme Court grappled with aspects of reapportionment. As is well known, not the least knotty of these aspects was the Court’s jurisdiction over legislative apportionment (Baker v. Carr). The reason why the Court found itself confronting this “political thicket” was the predicament that the very legislators who benefitted from mal-apportionment were the self-same policy makers who would have to vote to remedy the situation. Not likely. The second predicament pertains to campaign finance. Here the situation is somewhat different. Rather than policy makers unwilling to surrender advantage resulting from mal-apportionment, elected officials are not willing to render themselves vulnerable by reforming the Hobbesian funding free-for-all existing in the wake of Citizens United. Fat chance. The term “unilateral disarmament” comes to mind.
At base, Winston’s, Crandall’s, and Maheshri’s dilemma – and the reason why their meritorious little study lamentably will collect dust, not support – is an outcome of the history of legal professionalization traced above. The circumstance that “lawyers not only influence the institutions that affect their industry, they have increasingly become those institutions” developed neither recently nor overnight. As historian John B. Dressler, Jr. wrote: “the study of attitudes toward law and judicial organization in the late eighteenth century demonstrates that later movements for legal reform in the Jacksonian era did not emerge suddenly on the American scene. A striking continuity of ideas existed between the eighteenth and early nineteenth centuries regarding the delays and incomprehensibility of the common law and the exploitative, aristocratic bent of the legal profession” (Dressler, p.300, emphasis added). The prevailing historical narrative remains: disliked lawyers coalesced to secure hegemony thereby marginalizing the organized bar’s critics. Unless, and until, the fundamental matter of lawyers’ dominion is addressed (again), critics will be consigned to proposing (relatively) marginal changes which will, likely as not, be shelved (see, in a related context, Dolbeare).
We’ve come a long, long way from Dick the butcher declaiming boldly in Henry VI, Part II—likely written in 1591/2, by the way—“The first thing we do, let’s kill all the lawyers!” (thereby removing a formidable group opposing the King’s ascendancy), to Winston’s, Crandall’s, [*123] and Maheshri’s unassuming work. The distance we have traveled is instructive. With regard to reining in lawyers’ reign, instead of game on, it’s game over.
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Abel, Richard L. 1981. “Why Does the ABA Promulgate Ethical Rules? Texas Law Review 59:639.
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Atkinson, Rob. 1995. “A Dissenter’s Commentary on the Professionalism Crusade.” Texas Law Review 74:259.
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Croly, Herbert. 1965 (1909). The Promise of American Life. Indianapolis, IN: Bobbs-Merrill.
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Winston, Clifford. 2011. “Are Law Schools and Bar Exams Necessary?” New York Times. http://www. nytimes.com/2011/10/25/opinion/are-law-schools-and-bar-exams-necessary.html?scp=1&sq=Cliford%20Winston&st=cse.
CASES CITED:Baker v. Carr, 369 U.S. 186 (1962).
Citizens United v. Federal Election Commission, 558 U.S. ____ (2010).
Colegrove v. Green, 328 U.S. 549 (1946).
Hadley v. Junior College District, 397 U.S. 50 (1970).
Copyright 2012 by the Author, James C. Foster.
