Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.


Larry Ribstein: “If we had a free market in legal education, the problem of over-priced law review articles and overpaid law professors would vanish.”

August 19th, 2011

Speaking the truth on the legal profession and law schools.

This brings us to the most important problem, which LawProf himself noted without elaboration:  regulation of the legal profession constrains meaningful reform of legal education.  Among other things, mandatory accreditation imposes high costs on law schools and requires three strenuous years of education for everybody who wants to “practice law,” which embraces a bewildering variety of jobs.  Those whose interests lie anywhere in this amorphous category must buy this education and only this education or submit themselves to their next best opportunity set, which in the current economy is not too attractive.  Compare, for example, business schools, which are not subject to rigid legally-imposed accreditation requirements and offer students a variety of models from which they can choose. . . . In the absence of a reliable Platonic metric we let the market tell us.  If the demand for the current style of law school persisted in a deregulated market, so would $100,000 law review articles.

Ribstein on the Unauthorized Practice of Law and the First Amendment

July 19th, 2011

Larry Ribstein links to a new article considering whether the First Amendment can protect Legal Zoom (which has been subject to charges of unauthorized practice of law in Missouri and Alabama of late). Here is the abstract of Does LegalZoom Have First Amendment Rights? Some Thoughts About Freedom of Speech and the Unauthorized Practice of Law.

The article first sketches some potential problems with the reflexive assumption that LegalZoom and its fellow travelers are engaged in the unauthorized practice of law. Even assuming that the practice of preparing routine legal documents for consumers runs afoul of many unauthorized practice statutes, however, there remains an open question of whether these statutes may themselves interfere with First Amendment guarantees. In particular, to the extent that these statutes broadly sweep vast amounts of law-related speech within their scope, they may infringe on free speech rights. The article sets forth some of the possible First Amendment arguments available to document preparers, without extensive elaboration, to call attention to the possibility that they may be raised in defense to an unauthorized practice prosecution. It concludes with a caution about aggressive pursuit of these online document preparers without careful consideration of the possible risks involved. A successful First Amendment challenge to an unauthorized practice statute could have repercussions far beyond the world of LegalZoom.

Larry plucks a great quote about how the bar’s aggressive stance against the competition may backfire, noting “In other words, by arguing that any individualized advice about the law by a non-lawyer is illegal, the bar has exposed all of this regulation to the risk of invalidation.”

The legal profession has deliberately left itself free to define a host of activities as “unauthorized practice” on an as-needed basis. This flexibility may have served the bar’s regulatory needs in the past, but it could prove fatal to enforcing unauthorized practice laws in the face of a serious First Amendment challenge. The broad and standardless definition of “practice of law” could then collide with the requirement of specificity and narrow tailoring that underlies many aspects of relevant First Amendment doctrine. Whether or not these First Amendment arguments may succeed ultimately in the courts is less important than the fact that they have a sufficient basis to complicate any action for unauthorized practice.

Larry notes, this type of suit may be ripe:

The political and market pressure to deregulate and thereby lower the costs of legal services may make this regulation a particularly inviting target for First Amendment claims.  In contrast with Citizens United, a case on the constitutionality of unauthorized practice could be portrayed not as big corporations against the little guy, but as the little guy against a powerful entrenched interest group of greedy lawyers.  This could make the claim a useful lever to bring down large chunks of regulation of truthful commercial speech.

I think I have already fashioned my first major law suit for some point in the future–a declaratory action challenging statutes criminalizing the unauthorized practice of law under a number of grounds–void for vagueness, due process (procedural and substantive), the First Amendment, and, of course, the Privileges or Immunities Clause. Perhaps some online tool that provides what may be deemed a legal service staffed by non-lawyers–such as offering predictions how courts will resolve a case–would make for a great Plaintiff. Part of the plan.

Kobayashi and Ribstein on Private Lawmaking

July 18th, 2011

More cutting-edge scholarship from Kobayashi and Ribstein on the future of the legal profession. Here is the abstract for  Law As A Byproduct: Theories Of Private Law Production:

Public lawmakers lack incentives to engage in a socially optimal amount of legal innovation. Private lawmaking is a potential solution to this problem. However, private lawmaking faces a dilemma: In order to be effective privately produced laws need to be publicly enacted, but under current law enactment eliminates the intellectual property rights that are essential to motivate private lawmakers. Because of this dilemma, much private lawmaking is done as a byproduct of other activities. The mixed incentives entailed in this “byproduct” approach make it a second-best response to the problems of public lawmaking. Potential solutions involve finding a better balance between public access and private rights.

The paper treats the creation of law as a form of intellectual property.  The central problem the paper identifies is the weakness of intellectual property protection of law.  This forces private lawmaking into the second-best world of “byproduct” lawmaking, where private lawmaking is essentially a form of lobbying.  This particularly includes the practicing bar’s significant role in lawmaking, and uniform laws.  The paper draws illustrations of byproduct laws from the development of the limited liability company, including the “L3C” spinoff.  We conclude with suggestions of how to fix intellectual property law to bring private lawmaking closer to a first-best world.

Ribstein on Law Firms & Outside Capital, and Death of Big Law

May 19th, 2011

Larry Ribstein links to a WSJ piece about Jacoby & Meyers challenging state laws that prohibit non-lawyers from owning stakes in a law firm. Ribstein alludes to several arguments he made in his article, the Death of Big Law with respect to ownership of firms.

The real problem is with lawyer licensing, which is what gives professional rules like the ban on outside capital their bite.  An antitrust challenge might eventually work, but I doubt it. More potent in the long run is the combination of consumers rising up en masse against the high price of legal services and upstarts like J & M seeking to make money by challenging the satus quo.  As I say inDeath of Big Law (footnote omitted):

“Ethical rules are unstable to the extent that they pit the legal profession’s collective interest against individual lawyers’ self-interest. Those who incur the highest costs from these rules will take the lead in changing them. Change is particularly likely to come from smaller firms operating on the edges of conventional professional norms that seek to offer lower-cost services without costly large-firm baggage.”

In any event, the end game here isn’t J & M.  As discussed in the Death of Big Law (footnote omitted)

“Law may be just one of several lines of products or services sold directly to consumers. For example, chains like Wal-Mart or Tesco can sell wills and other legal advice along with tax services and eyeglasses. An established retailer can leverage its brand by extending the firm’s scope to embrace a different type of service. * ** Mass retailers can compete with small independent law offices because they have more established reputations and can cross-sell legal and other types of services.”

I also note:

“Instead of having to trust a worker cooperative with a tenuous future or a sole practitioner recommended by a relative or a subway advertisement, clients could rely on a large retailer’s reputation for service that supports all of its profit-making activities, including law practice.”

I chat more with Ribstein about his article, the Death of Big Law in this JoshCast.

JoshCast: Interview with Professor Larry Ribstein about the Future of Legal Education and the Future of the Legal Profession

May 16th, 2011

Last week I chatted at length with Professor Larry Ribstein, the Mildred Van Voorhis Jones Chair at the University of Illinois College of Law. Larry is the author of numerous articles on corporate law, constitutional law, and, most interestingly to me, the future of legal education and the legal profession. In this JoshCast, we discuss three of Larry’s most recent works:

If you have any interest in how the legal profession will evolve in the future, and how legal education must change to match that evolution, Professor Ribstein is a leader in the field. In this JoshCast I attempt to probe his thinking, ask some questions, and try to figure out where we are going in the future. Enjoy.