A few days ago, Justice Antonin Scalia ruffled the feathers of the legal profession by suggesting that we are “wasting” too many of our “best minds” on law:
I mean lawyers, after all, don’t produce anything. They enable other people to produce and to go on with their lives efficiently and in an atmosphere of freedom. That’s important, but it doesn’t put food on the table and there have to be other people who are doing that. And I worry that we are devoting too many of our very best minds to this enterprise.
And they appear here in the Court, I mean, even the ones who will only argue here once and will never come again. I’m usually impressed with how good they are. Sometimes you get one who’s not so good. But, no, by and large I don’t have any complaint about the quality of counsel, except maybe we’re wasting some of our best minds.
Scalia’s concern is a slight variation on the usual complaint that there are too many lawyers. But are there? The claim that there are too many lawyers is in serious tension with the other standard indictment of the legal profession: that lawyers cost too much. If there really were too many lawyers, one would expect their salaries to be relatively low.
In my view, Scalia is half-right. We are indeed devoting more of our “best minds” to law than we ideally should; perhaps more of our merely average minds too. But the high salaries of lawyers suggest that there is a genuine demand out there for all that lawyering. Quite simply, we need a lot of lawyers because we have a lot of laws. In the criminal law field, the United States imprisons far more people than any other industrialized nation, in large part because we punish so many nonviolent offenders through our massive War on Drugs. The War on Drugs is, among other things, a full-employment program for criminal lawyers. In civil law, we have a massive tort law suit system and hundreds of state and federal regulatory agencies that issue mindbogglingly complex regulations that require interpretation by experts if you want to avoid costly liability. And of course we also have an extremely complex tax system that requires many people to hire tax lawyers if they want to keep the IRS off their backs.
As long as we have such a large and complex legal system with so many laws, we are likely to need a lot of lawyers too – including many of our “best minds.” To be sure, some of that complexity is the result of lobbying by lawyers themselves. The ABA and state bar organizations often oppose efforts to simplify the legal system or cut back on the size of government. But lobbying by lawyers is far from the main culprit responsible for our overgrown legal system. Many other interest groups are responsible too, as is the general public that supported many of the laws that created the need for large numbers of lawyers. The best way to safely reduce the number of lawyers is too cut back on the number of laws.