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Professor Gillian Hadfield has a lengthy post about the future of the legal profession, and specifically how non-lawyers should be able to compete in this market.

It’s not that lawyers aren’t smart or committed enough to produce good quality legal services. The problem with the way in which U.S. markets for legal inputs are structured is that they are entirely closed off to the potential quality-improving and cost-reducing innovations that might be produced by people who are not already heavily invested in our existing ways of handling legal problems. Those existing approaches are the problem: too costly, too poorly informed about rapidly changing business and regulatory realities in a global economy, too risk averse, too slow and cumbersome.

So why not let people other than JD-trained, bar-examined lawyers and organizations that aren’t 100 percent lawyer-owned and -financed compete to supply advice about managing legal and regulatory risks, complete required document filings, design documents and organizational policies, negotiate contracts and manage legal disputes? Certainly, there are some things for which only the most experienced and conventionally trained lawyer will do. But there is also a huge landscape of legal work that could be better done by differently trained lawyers, lawyers trained out-of-state, lawyers working in partnerships with nonlawyers, and companies that are owned, managed and financed by business-minded folks, rather than (or in addition to) legally minded folks.

Interestingly, most legal work is done for businesses, and has nothing to do with traditional legal tasks we study in law school, and are more broadly viewed as economic advice:

For reasons that are central to my point — that law is too important to leave to lawyers — we have very little hard data about what lawyers actually do because lawyers don’t like to collect data. But based on my own research, I estimate the share of legal work geared to achieving economic objectives is on the order of 60 to 70 percent. Depending on how you count, it may be more: In one of the few studies of the distribution of legal work (this one conducted in Chicago in 1995), researchers found that only 16 percent of legal effort was devoted to representing individuals in civil rights, criminal defense, divorce, family or personal injury matters. Only 8 percent of all lawyers work in government and 1 percent in legal aid or public defender offices. Most legal work is performed for businesses and organizations. Among large law firms, which scoop up the top law school graduates, the percentage of corporate clients is pretty close to 100.

Instead of thinking of work for lawyers, Hadfield views them as “legal inputs” that need not be provided by those with a JD and who passed a bar:

The potential for corporate provision of legal inputs on a national or international scale opens up many possibilities for creating legal services that match the needs of the global economy. Expanded scale, together with the more robust financing that corporations attract, could spur the development of large-scale data analysis that could be incorporated into business decision-making in any number of areas, including: how to respond to liability or regulatory risks; how much effort to put into negotiating contractual detail; and how to assess the risks of a target company in an acquisition or a new financial vehicle.

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Once you start to think about legal inputs in the economic sphere as essentially economic inputs, you get to an idea we adopt in most other economic markets: Don’t regulate who can provide goods and services without good reason to think that the regulated market will do better than the unregulated market. And there is no good economic rationale for lawyers to have exclusive rights to supply and control all legal inputs. If the idea of allowing people and organizations other than lawyers and law firms to supply legal inputs sounds pie-in-the-sky, consider what is happening in the U.K. right now.

This breakdown is already happening in the U.K., and the US is falling behind the curve.

But the U.K. went further still, striking down restrictions on the organizational form and financing of legal entities. So now it is entirely possible for nonlawyers to partner with lawyers, or to form entities financed by either private equity or publicly held shares, or to delegate management of the organization providing the services to nonlawyers.

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But the U.S. cannot dangle the prospect of access to the New York or Silicon Valley legal markets to induce reciprocal access to India. Indeed, the U.K. is several steps ahead strategically on this count, precisely because it has made legal policy an element of national economic policy. In the U.S., policy is not merely vested in lawyers; it is vested in the lawyers and supreme courts of the 50 individual states, acting independently. There is no national policy role in legal markets in the U.S. With one of the most expensive legal systems on Earth, the U.S. is putting itself even further behind the global competitive curve by letting lawyers, and only lawyers, call the shots.

Here is an example of how a legal service provider could work:

What if private companies were allowed to compete to provide the rules and procedures governing business negotiation? Maybe Private Contracting Inc. would come up with a good package: For a price, PCI will provide a set of rules and adjudicators to decide when and if a contract comes into existence. Its rules, the company advertises, are simple and clear, and adjudication costs never exceed a set price. Perhaps Modern Contracting Services offers a different package. It reaches an agreement with the negotiators up front to have all communications stored in MCS databases, where MCS’s patented algorithms — constantly updated based on large-scale data analysis — search for indications that particular commitment thresholds have been crossed, generating specific obligations for one or both parties. New Age Contractors might provide ongoing counseling and mediation services to help negotiators recognize when their level of commitment is growing out of step with the written agreements they have reached. And so on.

So if these arrangements are so profitable, why don’t we have them? The bar cartel and its prohibition on the unauthorized practice of law.

Almost any alternative system — particularly in a nascent new industry of private legal production — would have to incorporate elements of existing legal systems. A company that reviews communications, predicts liability based on large-scale data analysis and adapts contractual instruments or informs the parties accordingly is probably engaged in what bar associations would deem “the practice of law.” A mediation system that monitors commitments and formal agreements to give advice about legal mismatches almost definitely is. Even an entity that offers a set of clear alternative rules for contracting may well find itself skating close to the edge with bar associations if it is offering this to the public and not just its own members.

An unfortunate byproduct of this cartel is a lack of intellectual diversity–all lawyers tend to think alike, and work with other similarly-trained lawyers. Non-lawyers could bring in new and novel ideas to diversify the practice.

Almost all lawyers work in environments in which their co-workers are also lawyers — meaning there is little opportunity to learn how other types of specialists see and solve problems. But diversity in problem-solving approaches is an essential feature of any robust system of innovation. So one reason lawyers don’t invent better systems is that they all think more or less alike. (It is generally with some pride that law schools talk about teaching novitiates how to “think like a lawyer.”) And if they do anything that involves the practice of law, lawyers cannot partner with nonlawyers who bring the diversity in problem-solving that they need to be truly creative.

An important takeaway-

Indeed, Mark Chandler’s insight is dead-on. Law is too important to leave to lawyers because legal policy is in many respects economic policy. Although lawyers are good at lots of things, they aren’t particularly good at economic policy. If they were, after all, we’d be happy to have lawyers and courts set wages and prices in the same way we now let them control the legal infrastructure and markets that constrain — and in some cases even kill — our most promising and innovative businesses.

Professor Bainbridge (who gets a HT here) comments:

Great idea. Anybody who even halfheartedly believes in markets ought to think that a freer market for legal services, in which non-lawyers can compete, will result in more innovation, lower prices, and more widely available services. Indeed, as Hadfield details, the UK is doing okay with a much more competitive legal market than we have in the USA.

Stay tuned.

What good is omniviellance if you can’t photograph Google!

From City Room:

I spied the car two years ago on West 15th Street and asked the driver for a ride-along. He declined. I wound up writing an article about the car’s task of photographing New York City.

As I was driving Wednesday morning I saw the Google car again, heading east on East 68th Street. It passed my car and I quickly snapped a blurry picture, and the driver — looked like a guy in his 40s — saw me driving after him to try to take another. It was tougher than you’d think.

I could swear the driver was trying to lose me. First, he stopped dead in a flowing traffic lane on Lexington and waited for a few moments. I stopped too, but was in no position to photograph him.

Then he zipped down Lexington and the chase was on!

 

When 20 judges on the Bankruptcy Court of the Central District of California found Section 3 of DOMA unconstitutional, I queried:

Will DOJ appeal this? Not quite sure how this fits in with the Attorney General’s decision to enforce DOMA but not defend it (or however he phrased it!).

Looks like the U.S. Trustee (under the authority of the Attorney General and the DOJ) is appealing this ruling.

David Cohen has a great post at Faculty Lounge summarizing the appeal, and its ostensible  inconsistency with the Attorney General’s letter about DOMA.

Stay tuned.

One of the hallmarks of the Rehnquist Court was the so-called “New Federalism.” In cases like New York v. United States, Printz v. United States, United States v. Lopez, and United States v. Morrison, the Supreme Court identified new limits on the power of the federal government. The driving aim of “New Federalism” on the Rehnquist Court was to shift the balance of power towards the states and away from the federal government. In many respects, this “New Federalism” movement ground to halt in Gonzales v. Raich when the Court–including Justices Scalia and Kennedy–indicated that it was not willing to continue pushing the envelope in reducing the power of the Federal Government.

The Roberts Court has taken a different approach to Federalism–call it Federalism 2.0. This federalism focuses on protecting certain structural features of our constitutional system, not to benefit states’ rights qua states’ rights, but rather to protect individual liberty as an end unto itself. In Bond v. United States, Justice Kennedy identified the two purposes of separation of powers (this passage was repeated by Chief Justice Roberts in Stern v. Marshall).

“Separation-of­ powers principles are intended, in part, [1] to protect each branch of government from incursion by the others. Yet the dynamic between and among the branches is not the only object of the Constitution’s concern. [2] The structural principles secured by the separation of powers protect the individual as well.”

The former rationale is the reason behind “New Federalism.” The latter rationale is the reason behind Federalism 2.0.

In the words of Justice Kennedy in Bond v. United States–a unanimous case I discussed at some length here–federalism does not merely set the boundaries “between different institutions of government for their own integrity. ‘State sovereignty is not just an end in itself: ‘Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.’”

Here, we see that the focus is not simply on states’ rights, or sovereignty–really the bailiwick of the Rehnquist Court’s New Federalism–but the conception of enforcing structural limitations as a means to protect individual liberty. In Free Enterprise Fund v. Public Company Accounting Oversight Board, Chief Justice Roberts, citing Bowsher v. Synar, noted that “[t]he Framers recognized that, in the long term, structural protections against abuse of power were critical to preserving liberty.” Liberty of the individual–not just the rights of the state.

Further, Federalism 2.0 does not merely delineate between the state and federal governments–it also creates an important distinction between the three branches of our tripartite system. In Stern v. Marshall, Chief Justice Roberts made clear that judges with lifetime tenure and guaranteed salaries–and not Article I judges–are the sole arbiters responsible for protecting individual rights. Citing Bond, the Chief noted, “Article III protects liberty not only through its role in implementing the separation of powers, but also by specifying the defining characteristics of Article III judges.” “Article III imposes some basic limitations that the other branches may not transgress.” And it is the role of Article III judges to enforce these limitations.

So what is the takeaway from this nascent Federalism 2.0? I think challenges to certain federal laws may have more success if the argument is framed in terms of federalism as protective of individual liberty, as opposed to merely challenging federal action as outside the bound of enumerated powers. As we saw in Comstock v. United States, an opinion joined by the Chief, and joined in judgment by Justices Alito and Kennedy, the Court is remiss to adopt a narrowed cabined view of the Necessary and Proper Clause, as well as the Commerce Clause.

While the relationship between liberty and enumerated powers is tight, focusing solely on enumerated powers or the necessary and proper clause is so 1995. This new Court requires a new argument–look to the liberty interests, as a corollary of federalism. “When government acts in excess of its lawfulpowers, that liberty is at stake.” Bond v. United States.

Think about reframing the argument in Raich. Why did the Court reach the conclusion it did? Because of the importance of the national federal interest in policing narcotics. Very little attention was paid to the tragic health and liberty interests of Angel Raich. The word “liberty” or “freedom” shockingly appears nowhere in either the majority, concurring, or dissenting opinions. For Angel, medicinal marijuana was her only refuge from intolerable pain, and represented a key element of her personal autonomy and human dignity. If the Court construed federalism here as a means to protect Angel’s individual liberty, rather than as a reflection on enumerated powers, perhaps the vote may have been different. Particularly for Justice Kennedy.

Additionally, this Roberts Court framework puts (perhaps intentionally) the liberal justices in a somewhat awkward position. They are generally in favor of construing federal powers broadly, but are also keen on protecting individual liberty interests (with the usual exception of Justice Breyer). Phrased in this manner, we have a convergence of federalist concerns and liberal concerns that could yield an interesting evolution in constitutional jurisprudence.

Going forward, if the argument is presented in terms of an “individual [who] has a direct interest in objecting to laws that upset the constitutional balance between the National Government and the States” and “can assert injury from governmental action taken in excess of the authority that federalism defines,” Bond v. United States, I think challengers may have more success.

Stay tuned for more on Federalism 2.0.

Cross-Posted at ConcurringOpinions.com

A piece by David Fontana in The New Republic argues that Sotomayor has become the face of the Supreme Court’s legal wing. How you ask? Well not through advancing any theories on the Court.

Legal theories may or may not matter in convincing the public to agree with certain jurisprudential views. Regardless, it is worth noting that Sotomayor has not yet articulated a new theory of her own. Instead, her contribution in this realm—and it could be a substantial one—might end up being persuading the public to adopt a familiar view of the law that prioritizes how the legal system affects regular people.

What about Justice Breyer, whom I dubbed the new leader of the liberal wing of the Court following McDonald?

. Justice Stephen Breyer has been the leading spokesperson for liberal constitutionalism of late; he has written two important books articulating his jurisprudence and has appeared in the popular media and in debates with Scalia defending his theories. But Breyer has tended to engage in more academic and technical discussions. His most noted public appearances are often at law schools, universities, or think tanks.

The rest of the piece discusses speeches that Sotomayor has given at–like Breyer–law schools, explaining her views of the law.

It is still early in her tenure, but these are all good reasons for liberal constitutionalists to feel encouraged by Sotomayor. The substance of what she says and stands for might be familiar, but her style in communicating that substance seem to be making it newly appealing. This bodes well for the liberal wing of the Court, which has been waiting years for an effective voice to promote its views to the general public. Here’s hoping it has finally found a voice with staying power.

Earlier this year I urged caution about proclaiming Sotomayor as the new liberal scion. I still urge caution. If anything, she has exhibited some conservatism, and at best left of center, moderation. She has joined the law & order bloc, along with Roberts, Kennedy, Breyer, and Alito, voting to uphold invasive police practices. She was the only liberal justice to join the majority opinion in Sorrell v. IMS Health, over Justice Breyer’s vociferous Lochner dissent. Along with Justice Kagan, she joined the majority opinion in Davis v. United States, adopting a cramped view of the exclusionary rule, over a dissent from Justices Ginsburg and Breyer.

This piece reeks of wishful thinking for Sotomayor to rise to the occasion, and (in my mind proper) dissatisfaction with Justice Breyer as a leader of the ideological wing (I am co-authoring an Op-Ed on just that point).

Let’s revisit this issue again next term, as I’m sure we will.

More from my frequent co-author Corey Carpenter, who recently launched his own blog.