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.
Russ says:
You only glossed over the real problem — the reason we need so many lawyers is that the laws are far too complex. A lot of people nowadays would be shocked to learn they are likely a criminal based on some of the absurd complexities.
And whether it’s the fault of the lawyers or not isn’t the point. It’s psychotic that a lawmaker doesn’t have time to read a bill they are expected to vote into law or understand the intricacies of the language. These are the folks who MAKE the laws, and allowing any interest group write these, when they obviously have their own interests in mind and not that of the general populace, is insane.
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October 6, 2009, 10:12 pmpireader says:
Professor Somin — “Quite simply, we need a lot of lawyers because we have a lot of laws”
We also have a lot of private sector policies, regulations, directives, contracts, franchises, etc. Running a complex, technology-based society requires a lot of words and numbers.
Do you have any evidence that government generates more than its share of the paper stream?
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October 6, 2009, 10:16 pmMark S says:
I wouldn’t have thought that price was terribly revealing in this case: because in many situations, involvement with the law is more like death and taxes.
The truth is that one can find oneself needing legal advice without willing or desiring legal advice, and find oneself unable to extricate from a situation where legal advice is necessary. The power of the law and the Judge to compel involvement drives a demand for lawyers, in very large part. In this part of my analysis, the complexity of the law allows more to be ensnared in legal process, but the price relationship is not sensitive to quantity of lawyers, necessarily. (But see below, where I speculate further.)
After that compulsory involvement, comes a risk/reward threat model. Pro se litigants are often harmed by both the very nature of the law, and the very nature of being pro se. (It is at this point that the complexity of the law becomes an asset to lawyers, and the simple measurement of outcomes drives the litigant into a lesser level of price sensitivity.
Thermydynamics-like: can’t win, can’t break even, can’t quit playing.
It seems to me that lawyers are not necessarily passive in the flight to litigation. I’m sure all of us have seen (at least occasionally) that some lawyers troll for litigants. Surely the phrase “ambulance chaser” came about for a reason — even if it does not represent the majority of the profession. It does not take too many excess lawyers generating additional litigation, to support an entirely greater ecology of lawyers than would otherwise be necessary.
(I’m leaving Judges out of this: except to note that while they are not active in the creation of new cases, they can be beneficiaries of them. And most Judges are lawyers as well.)
Alas for me: I am not a lawyer, nor a professional philosopher of the law. I fail to imagine ways to “improve” this situation that don’t also harm a person with a legitimate civil tort. Perhaps there is one.
In the mean time, as long as Justice is compulsory, and the process of the pursuit of Justice is compulsory, “too many lawyers” can just as easily drive MORE litigation and higher prices, as they can drive lower prices. That this might still be the best of all possible worlds, is not inspiring.
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October 6, 2009, 10:27 pmwhiskey says:
Prof. Somin: Your argument is sure to be of comfort to all the soon-to-be-unemployed law students.
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October 6, 2009, 10:29 pmIlya Somin says:
Do you have any evidence that government generates more than its share of the paper stream?
It’s certainly responsible for virtually all of that share of the “paper stream” that requires lawyers to handle. After all, lawyers are — virtually by definition — specialists in interpreting laws, which of course are issued by government.
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October 6, 2009, 10:34 pmIlya Somin says:
Prof. Somin: Your argument is sure to be of comfort to all the soon-to-be-unemployed law students.
Of course, lawyers, like people in virtually any profession, are more likely to be unemployed during a recession than at other times. Still, lawyers on average earn a far higher salary than people in most other professions, which suggests a high demand for their services.
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October 6, 2009, 10:35 pmReader says:
In other words we don’t have too many lawyers; we have too many congressmen.
;-)
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October 6, 2009, 10:36 pmIlya Somin says:
The truth is that one can find oneself needing legal advice without willing or desiring legal advice, and find oneself unable to extricate from a situation where legal advice is necessary. The power of the law and the Judge to compel involvement drives a demand for lawyers, in very large part. In this part of my analysis, the complexity of the law allows more to be ensnared in legal process, but the price relationship is not sensitive to quantity of lawyers, necessarily.
Even if people would not want to be in a situation where they need a lawyer, that doesn’t mean that the price is insensitive to quantity of supply. Lawyers can still compete with each other for the business of those who need lawyers even if those people would rather not have that need. Many people would prefer not to need food or water. But competition among food suppliers still drives prices down.
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October 6, 2009, 10:37 pmMark N. says:
Yeah, I read Scalia as making a point somewhat more like this one. Not that everything should stay the same except that fewer smart people should go into law, but more of a general musing that something must be wrong if the system is set up such that the law field has a need for so many smart people. Law is essentially the overhead of running a civilized society; a bedrock of modern society to be sure, but like all overhead, you don’t want it to be too high either. It’s like a charity that spends 40% of its budget on administration and accounting; nobody argues they shouldn’t do any of that, just that maybe 40% is too high.
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October 6, 2009, 10:43 pmtrotsky says:
The great money in law these days seems to be not in criminal law, but in M&A, transactions, business law. In that field, is the proliferation of legal advisers due to the law itself, or due to the intense competition among rival firms to exploit any edge they can find in the law?
Also, I couldn’t help but note in reading T.R. Reid’s excellent new book comparing health systems internationally that in no other country are medical malpractice claims nearly so prevalent. Do we simply have a more litigious tort system? Again, is that the laws or the way they are used?
And do we have more lawyers, per capita, than any other advanced country?
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October 7, 2009, 1:56 amJ. Aldridge says:
The problem is, it is more rewarding to petition a court through lawyers than it is your own elected agent. IOW, the legal system has taken on its own responsibilities of governing in the country.
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October 7, 2009, 2:01 amPatHMV says:
Just to provide a little data, in 2006, there were about 761,000 lawyers, according to the Bureau of Labor Statistics (and a grand total of 1,000,000 in the “Legal Services Occupation, which includes paralegals and the like). By contrast, there are about 2,500,000 folks employed in the Architecture and Engineering category. There are about 1,300,000 in Life, Physical, and Social Science occupations. There are 7,000,000 in Healthcare Practitioner and Technical Occupations. There are 6,150,000 folks in Management Occupations, and 6,100,000 in Business and Financial Operations. Another 3,300,000 work in Computer and Mathematical Science.
In short, what’s the problem again? I fear I must disagree with Justice Scalia on this one.
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October 7, 2009, 2:04 amAvatar says:
One points out that the high price of lawyers might have something to do with the legal monopoly lawyers have on the practice of law; the only people who are allowed to represent other people in court are lawyers, licensed by an organization of lawyers, which requires in virtually all cases that one attend an extremely expensive law school, the accreditation thereof in the hands of another organization of lawyers.
In short, there’s no community college law degree; you can’t spend a couple of years in an inexpensive post-graduate program and hang out your shingle taking care of wills and nothing but wills (even though you certainly can learn everything you could ever possibly want to know about the creation of wills, trusts, etc. in less time than that, nor do you need world-caliber legal minds to walk you through the relevant regulations.)
Even if you’re in the right, and happen to be talented enough that you don’t actually need a lawyer, you probably need one anyway. Courts do business at their own pace and are quite happy to set arbitrary deadlines that you are forced to comply with or forfeit, if not the case, at least your chances of winning the case. Few judges are going to be willing to be told “I have no intention of retaining a lawyer, but I have more important things to do than talk to you, so we need to reschedule.” So you need to have someone else represent you, while you get on with the actual business that you do for a living; by law, that person has to be a lawyer, since a non-lawyer can’t represent you.
On top of that, there’s the many things that people are forced to do because they’re worried that they might get sued. Sometimes this is good — “I need to fix this fixture, because if it falls and hits somebody, they’ll sue me for a lot of money.” Sometimes it’s not so good — “I think I have this diagnosis down, but there’s an outside chance I’m wrong, and if I don’t order this expensive test, I might get sued for malpractice, so I’m going to order the test even though it’s very likely worthless.” Sometimes it’s actively bad — “This is the only minority at our company, and he’s terrible at his job, but we can’t fire him, because if he brought a discrimination suit it could ruin the whole company...”
These are the baseline problems. The problems created by over-complicated regulatory schemes and overzealous prosecution of pot smokers are all on top of that.
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October 7, 2009, 2:06 amMichael Haas says:
You could take this comment of Scalia’s to be humble. After all, he might be saying that he really hasn’t produced for society. He can also be saying that you don’t need to analyze the case too well for him; he’ll do the lifting. But that would be generous, and this is a blog comment, no? I think of a Frances Haas who wanted to be a lawyer and whose father would ‘disown her if she became a lawyer.’ She wanted to be a part of the formal structure of society, to be able to use its rules and not just be subject to the perspective of others. She saw the law as a way to establish the locus of control of her life within herself. To be “productive” you need such a locus of control. So maybe the lawyer from Podunk experiences control of her life, like Scalia his, in trying to create a proper structure of society. So, really, Antonin, she is not an ‘n+1′ lawyer where ‘n’ is the proper number.
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October 7, 2009, 2:10 amOrin Kerr says:
Ilya writes: ““Quite simply, we need a lot of lawyers because we have a lot of laws”
I don’t see how the number of laws is relevant. In the criminal law area, for example, there are several dozen federal criminal laws that have been passed but are never charged. The total number of lawyers that are needed to deal with those uncharged laws is pretty small, if not zero. Lawyers are needed when people are actually charged with violations: Indeed, every criminal defendant who may face jail time has a constitutional right to a lawyer. But in the criminal law area, the overall demand for lawyers is defined more by the number of charges rather than the number of laws on the books.
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October 7, 2009, 2:11 amHadur says:
You do realize that lots of firms have cut associate salaries, right? And that lawyer compensation is bimodal so the “average attorney” doesn’t really exist.
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October 7, 2009, 2:12 ammanbeer says:
Maybe less lawyers are needed in the legislative or executive branches or at least better quality lawyers.
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October 7, 2009, 2:37 amMark S says:
Professor, thanks for your reply (below):
These are not necessarily equivalent comparisons. There are plenty of local barriers in the practice of law. Food is fungible if transported (and the cost of transport is low in comparison — at least these days). Bar associations are the first step in effective local monopolies. Furthermore, cases are not moveable, and individual courts therefore cannot be substituted.
A lawyer who KNOWS the local court and the local judge, or upon whom the judge can shine with special favor, can detract from price sensitivity. In the calculus of risk management of an individual, the damage a judge can do drives prices in favor of the lawyers who practice in that court, and know that judge.
If you are not a lawyer, who do you select, and why? There is often high uniformity of prices — have you considered analyzing within-specialty-and-locality prices for individual lawyers? Neither have I: but my anecdotal experience in the situations where I was unwillingly involved in litigation showed me that price variability was not much of a factor, and the range of effective pricing was unreasonably small.
I cannot pretend that there isn’t some degree of price flexibility, and I am not going to say there isn’t any. But the truth is, I think, that given effective local and compulsory court-monopolies, price is simply not the best or most effective measure. The pool of useful advocates you can hire, for any litigation, is an effective monopoly if you want success.
(I’ve ignored the entire question of the practice of law as a preventative in order to avoid litigation — in that I suspect there is wider price variability. But that would speak to my point that it is the system of justice itself that controls most of prices, and that makes prices relatively uniform.)
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October 7, 2009, 3:14 amMark S says:
I should have added above, that I think the question you ask is an excellent one, and intellectually intriguing. Your initial attempt at analyzing it is also revealing.
But like most things, I think that it is far more complex than is visible at first blush.
Restating myself in very brief, a lawyer is not a lawyer is not a lawyer. Because they, and their local knowledge and professional expertise, are not all fungible, as a bottle of water or a piece of poultry might be.
Each unique case (which one cannot always avoid) brings one to a very small and locally controlled effective pool of professionals, which increases their ability to price non-competitively. Which I contend they likely (or seem to) do.
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October 7, 2009, 3:19 amJack says:
pireader says:
> ...any evidence that government generates
> more than its share of the paper stream?
Surely the totality of the paper which govt generates and that which it causes to be generated, is largely superfluous to any reasonable quality of life. We are binding ourselves with paper chains as weighty as any of iron.
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October 7, 2009, 3:51 amSkyler says:
The old joke is that if you have one lawyer in town, he would be poor. Two lawyers in the same town, and both would be rich.
The cost of lawyers is not based strictly on supply and demand. Instead, it is based on how much money or assets need to be protected and how much money can be taken from others.
Just as there aren’t too many laws or there aren’t too many lawyers, the real problem is simply that government is too powerful.
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October 7, 2009, 4:07 amRicardo says:
Lobbyists aren’t exactly crying poverty.
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October 7, 2009, 4:21 amMCM says:
Ilya... wow. I guess you don’t think transactional work “requires lawyers to handle”? Government isn’t responsible for the complexity of contracts between sophisticated private entities that are themselves the size of governments.
I’m sure this means that the number of laws recently decreased dramatically, right Ilya?
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October 7, 2009, 6:41 amJohn says:
I didn’t see Scalia’s comment so much as a complaint that we had to many lawyers, but rather as a complaint that we NEED to many lawyers. Which really doesn’t contradict your arguement that the law is too complex.
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October 7, 2009, 7:57 amThe Volokh Conspiracy » Blog Archive » Too Many Lawyers or Too … | Dui Attorney says:
[...] Complete News | Best Dui Attorney [...]
N says:
I agree with this comment, but I take it a bit further — in such a litigious society, are people generating this demand, or does the high number of lawyers lead to a law-suit happy public? I guess I agree with John’s comment. If people didn’t turn to courts so readily for dispute resolution, the perhaps undue demand for lawyers would surely decrease.
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October 7, 2009, 9:03 amModa says:
Actually, one study of litigation rates in different countries indicated that courts are like highways — people pretty much fill them up to capacity regardless of size, and expanding access to courts essentially expands use of courts. If you want to cut back on lawsuits (and lawyers), cut back on courts.
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October 7, 2009, 9:15 amdrunkdriver says:
We are indeed devoting more of our “best minds” to law than we ideally should; perhaps more of our merely average minds too.
Citation needed.
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October 7, 2009, 9:25 amDaily Pundit » I Choose Both says:
[...] Are there too many lawyers? [...]
David M. Nieporent says:
That assumes its conclusion: that we need the government to “run society.”
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October 7, 2009, 9:39 amDavid M. Nieporent says:
It partially is. How much of that complexity is needed to deal with the regulatory state, rather than any true business purpose?
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October 7, 2009, 9:46 amCvMe says:
Orin is correct: The number of laws bears little relation to the number of lawyers. Consider, for example, that the common law of torts, which is not a written law at all, is responsible for all of the slip-and-fall, auto accident, asbestos, and med-mal cases, employing multitudes of lawyers.
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October 7, 2009, 10:02 amProf. S. says:
Only if their services were fungible. They clearly are not. Receiving a high return because of the quality of your services and receiving a high return because of the lack of quantity of your service are two very different things.
For a lot of “commodity” law, lawyers are cheap. Don’t believe me? Go find out how much it costs to have a lawyer help you through a simple divorce or consumer bankruptcy. This despite the fact that those lawyers still have student loans and 7 years of education to make up.
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October 7, 2009, 10:05 amMS says:
The basic problem is the nature of the adversarial system. Whether I am a party to a lawsuit or to a contract negotiation, my interest is not in having a “good” lawyer in an objective sense, but rather in having a lawyer better than my opponent’s. That is, it’s an arms race. Therefore, clients must compete for the smartest lawyers, even though they are thoroughly indifferent to, say, the quality of the lawyer’s argument or his ability to write effectively. This arms race drives up the price of legal services, attracting more of the best minds to the legal field.
I believe it was the economist Robert Frank in his “The Winner-Take-All Society” who used this argument to suggest, only half jokingly, that we could limit entry to the legal profession to those with an IQ below 100, and thereby conserve a valuable economic resource without much effect on legal outcomes. Sounds like a good idea to me.
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October 7, 2009, 10:07 amSara says:
Hmm. Would commercial life be better without the UCC?
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October 7, 2009, 10:15 amfishbane says:
Only if their services were fungible. They clearly are not. Receiving a high return because of the quality of your services and receiving a high return because of the lack of quantity of your service are two very different things.
Additionally, to again take Ilya’s comparison, if you buy wormy lettuce, you avoid the producer and probably tell friends about it. Comparing the quality of lawyers is difficult. Many cases have unique points, and there is no way to know effectiveness until a result is reached. I have no proof, but think that this is worse in law than in other highly skilled professions with one-chance performance characteristics — it is likely generally easier to compare doctors than lawyers, because despite variations, the human body is more invariant than the domain of potential reasoning, strategy and historic accident variation in law.
One can and does compare lawyer quality, largely by looking at reputation, but reputation is nowhere near a perfect indicator of domain expertise or skill. It is closer to being one for communicating the quality of a lawyer’s contacts, but still imperfect.
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October 7, 2009, 10:29 amShelbyC says:
Well, much of this is just quibbling with how we quanitfy “laws” I’m assuming Ilya isn’t refering to, say, just the number for statutes, but the number of activites that are subject to regulation, the complexity of regulation, etc.
It’s also worth mentioning that lawyer’s value comes as an aspect of the state’s power to incarcerate people and transfer property from one party to another, and the demand for that power is, of course, infinite.
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October 7, 2009, 10:37 amDYSPEPSIA GENERATION » Blog Archive » Too Many Lawyers or Too Many Laws? says:
[...] Read it. 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. [...]
Ruralcounsel says:
“Civilized” society requires more lawyers, whereas uncivilized society requires more soldiers, assassins, bodyguards, and skill with weapons.
Either can be used proactively (transactional or deterrence) or retrospectively (litigation or enforcement).
Could people be doing something more productive with their time and brains? Sure, but that isn’t how the human species behaves.
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October 7, 2009, 10:46 amAnonymous Coward says:
I think I have to agree with Skyler here.
More lawyers is a result of more government power and a society that is run by lawyers.
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October 7, 2009, 10:56 amyankee says:
A lot of it. For example, mergers and securities offerings are made vastly more complex by the need to comply with antitrust and securities laws.
Indeed. And in most circumstances there is an opportunity to shop around. If you are arrested, you have basically no ability to shop around, but rewriting your will or getting a divorce is rarely so urgent that you can’t spend a few days investigating different lawyers. You need a lawyer quickly if you are personally served with a complaint and have ten days to respond, but most defendants are sophisticated business entities that are already familiar with the legal market. So you would expect the legal market to be quite competitive.
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October 7, 2009, 10:59 amMark S says:
@Prof S, some of your greater point is quite valid — worth discussing, although I think it helps me clarify mine, rather than refute all of it.
Some of your point (For a lot of “commodity” law, lawyers are cheap. Don’t believe me? Go find out how much it costs to have a lawyer help you through a simple divorce or consumer bankruptcy.) well, I think is dead wrong.
I don’t believe you: I’ve had the first (divorce), and managed to avoid the second (bankruptcy). In my metro area (Greater Boston), quality representation was quoted to me at a rate of about 400–500 an hour almost uniformly. I could get lower rates only for the deeply inexperienced (whose abilities were harder to determine) or for folks that commuted from out of the courts jurisdiction and didn’t know the players. I alone do not constitute a statistical universe, of course. But the survey work I did on prices makes a good pocket universe. :-)
You are correct that some forms of “commodity lawyer” work can be very cheap in hourly rate. Once I had a “friend of a friend” perform a closing. It was quite inexpensive. The tort his incompetence created wasn’t quite so cheap... but last time I purchased real estate quality representation was still reasonably priced. My father’s estate was inexpensively prepared by his choice — the resulting mess has cost dozen of times what he paid, to clean up the mess.
The strength of my point was based upon civil cases, and to a lesser extent probate cases. And I think that remains true. Prices are high when you are “gang-impressed” into a particular court (or choose to enter one) and that is largely because the pool of attorneys you can select who are competent is an effective monopoly. But you are right that basic contract review, estate planning and real estate closings are relatively inexpensive. (Although the per-hour effective rate still places the practitioners in what is often a fairly high income bracket.)
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October 7, 2009, 11:28 amPersonFromPorlock says:
A simple way to find out if we have too many laws would be to determine the last year that life in America was Hell on Earth and revert to the laws and legal precedents of a year later (or, arbitrarily, of 1950). I suspect that a great deal of what was set aside would not be revived in the face of experience.
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October 7, 2009, 11:29 amgeokstr says:
I’ll bet a high percentage of the top lobbyists are also themselves lawyers.
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October 7, 2009, 11:29 amSuperSkeptic says:
A nice non-delegation decison would fix that problem, but wait, there’s efficiency arguments to the contrary — oh, well!
I would say so, but thank goodness we have the UCC to codify reasonableness for us.
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October 7, 2009, 11:32 amcjwynes says:
Reports from those in the legal job market say YES, there ARE too many lawyers. There are folks with law degrees from what we would have thought were decent schools who are nevertheless forced to slave away in some dank basement doc-review mill like a third-world textile worker in order to pay off their outlandish student loans. Thank god that’s not me.... at least not yet. The ABA and the state bar examiners have been failing us, by accrediting too many law schools and then allowing too high a bar passage rate. Also, the only answer to rising tuition costs that ever gets any traction continues to be the ready availability of larger and larger student loans, which never puts any price pressure on law schools to find ways to reduce tuition.
Unfortunately, from the POV of the law professors, this is all well and good for the moment. It increases the number of teaching jobs and allows salaries and budgets to stay high. Eventually word of the legal job market’s reality may filter down to undergrads and we may see law school enrollment finally start plummetting. But maybe not. Law schools are full of people who spent their whole life being the “smartest kid in the room”, and no 1L ever thinks HE is the one who’s gonna be relegated to some doc-review basement someday.
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October 7, 2009, 11:32 amIchthyophagous says:
Many laws, regulations, and contracts are poorly written, leading to conflicts in their execution. If they were written in a more detailed and precise fashion, a lot of the motivation for lawsuits would go away. What I am saying in effect amounts to this: if everyone thought like a lawyer, there would be much less need for lawyers.
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October 7, 2009, 11:32 amA Response To Scalia’s Blathering « The View From LL2 says:
[...] Now folks over at Volokh are talking about this, [...]
Mike Patton says:
Frankly, I think we are wasting too many of our brilliant minds on investment banking. If they had been engaged in actually producing something for the last thirty years, rather than cobbling increasingly Byzantine financial instruments, America might have a future.
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October 7, 2009, 11:52 amJerry Mimsy says:
IOW, acting like the stereotypical lawyer trying to muddy the water around the discussion?
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October 7, 2009, 12:03 pmShelbyC says:
I remember years ago reading a story (if I could find it I’d link to it) about an old lawyer from Hartford, CT, who had a client back in the ‘20s or ’30’s that owned a jewlrey story. His client came to see him and told him he’d been missing a diamond bracelet for awhile, and he’d recently seen a customer at a party wearing that bracelet (he was sure it was the same one, and she hadn’t bought it). The lawyer’s advice: “Send her a bill. See if she pays it.” The lady paid the bill, and the lawyer didn’t charge the client anything.
He contrasted that to what he felt would happen nowadays if a client walked into a law firm with the same problem: The focus would be on generating billable hours, and a few associates would be put to work researching conversion, etc.
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October 7, 2009, 12:17 pmAbdul Abulbul Amir says:
Only if you assume a more or less fixed amount of work. In the real world we see constant advertisement by lawyers to sue for your benefit. Every such suit employes at least one other lawyer in defense. The bottom line is that to some extent more lawyers make more work for lawyers.
BTW, the last stats I saw (sorry no link) indicated that there more applications to law school than med school.
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October 7, 2009, 12:40 pmJon Roland says:
For better or for worse, we’ve created a world in which everyone needs legal training to survive or avoid being effectively enslaved by those who have such training. We might consider a requirement that everyone receive at least the equivalent of two years of law school while still in high school, in order to graduate.
Then we could carry the process to the next obvious step: Have everyone engaged in an ongoing lawsuit with everyone else in the world from birth, with only the issues in each case changing from day to day. That would eliminate the cost of filing fees for new cases.
Thus do we rush toward the singularity.
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October 7, 2009, 12:45 pmohwilleke says:
While the “too many laws” theory is plausible, the elaborations of that theory made in this post don’t explain the evidence very well.
Criminal law is hardly a boom industry in the law. About 5–7% of lawyers have predominantly criminal practices. Most are public employees — prosecutors and public defenders. They handle about 80% of jury trials and about 30% of all bench trials, at any average cost per felony prosecuted of something on the order of $200-$600. Public defenders are the least well paid lawyers in the system and have larger caseloads than prosecutors who are paid a little better but usually less than lawyers with active civil practices. Well over two-thirds of civil litigation cases are handled by collections lawyers and foreclosure specialists who make up something on the order of 2% of the bar. These lawyers are also not particular well paid as private practice lawyers go. These firms are not the ones that are paying $145,000 a year starting salaries to associates withh no experience.
Civil tort cases are a small and relatively stable part of the docket, and litigators other than criminal lawyers and collection lawyers who bring personal injury litigation, defend these cases and engage in commercial litigation make up perhaps another 10% of the bar. Most divorces have at least one pro se party, a large share have no lawyers involved at all. There are about five times as many trials in small claims court, without any lawyers, as are handled by the 10% or so of the bar that handles the big dollar civil litigation cases that law schools focus on teaching.
Roughly 70–80% of lawyers have non-litigation practices.
About a quarter of new lawyers start out in big firms at high salaries, most handling large dollar deals (with due diligence in corporate, franchise and municipal finance deals making up much of the work), tax planning and regulatory compliance, although the vast majority walk out or are pushed out the door before making partner and seek greener pastures elsewhere. A fair number also work for big accounting firms. These are the firms that are paying the big bucks to lawyers and their compensation rates track the pay that the investment bankers and senior big business executives for whom they work are making.
But, this is a recent phenomena. There were almost no big firms in 1950 (despite the fact that big businesses have played a prominent role in the American economy since the mid-19th century), and the share of lawyers starting out in this kind of practice more than doubled in the last decade. The laws these lawyers are complying with may be onerous for the big businesses that hire them, but the ones that are paying so many lawyer’s pay checks aren’t particularly new. The growth has more to do with the increasing importance of lawyer-intensive non-bank financing of business in this country than it does with changes in the laws themselves.
Also, FWIW, Justice Scalia need not worry about an excess supply of judges. No developed country in the world has such a small judiciary relative to its population, its economy or it volume of litigation. The U.S. is ridiculously parsimonious in the judicial resources it devotes to the average case.
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October 7, 2009, 12:45 pmtraveler496 says:
Is our system (cultural context, whatever) so different that there’s nothing we can learn from others in this regard? One would almost think so from looking at the discussion threads on this topic.
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October 7, 2009, 12:46 pmGrst says:
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If law were strictly a market phenomenon that would be true, but it’s not. Lawyers create work for themselves by electing other lawyers who write unnecessary laws in an unnecessarily complicated manner so that other lawyers can sit around making it less complicated for other lawyers to implement and for yet more lawyers to turn around and challenge.
That’s why there are too many lawyers, and why prices of lawyers don’t capture the problem.
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October 7, 2009, 1:00 pmBrian Garst says:
If law were strictly a market phenomenon that would be true, but it’s not. Lawyers create work for themselves by electing other lawyers who write unnecessary laws in an unnecessarily complicated manner so that other lawyers can sit around making it less complicated for other lawyers to implement and for yet more lawyers to turn around and challenge.
That’s why there are too many lawyers, and why prices of lawyers don’t capture the problem.
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October 7, 2009, 1:02 pmohwilleke says:
Agreed for the most part. True two party contracts (e.g. promissory notes, sales of goods) are very short. Almost all long contracts are either expressly multi-party, or are implicitly managing third party interests (e.g. tax, creditors, secondary market investors).
I don’t agree that there is no business purpose for this approach. Due diligence exists to cause investors to price stock appropriately, and in multi-billion dollar companies even modest variations in these pricing decisions are important. The somewhat complicated way that the U.S. economy separates financing decisions from underlying transactions in most cases, and the detail of U.S. contracts, reduces the percentage of litigations that are seriously contested and the scope of that litigation. On a cost-benefit basis, environmental regulations tend to be planned to have a benefit ex ante, and turn out to have a much bigger benefit, ex post facto. Similarly, it is hard to sit here today and argue that FDIC capital regulation, while requiring significant compliance costs, wasn’t worth it.
The two big things we don’t do, but could to reduce legal costs are (1) have more laws that spell out default rules that match what the market would do by contract anyway so that they don’t have to be spelled out in detail in every single deal, and (2) devote more resources to the judiciary (and arrange the process so that it is more predictable and doesn’t defer so many disputes of fact to a final trial) so that big cases can have more supervision, have narrower scopes sooner and lower litigation costs while addressing the merits; this would allow parties to be more comfortable with allowing unlikely possibible problems to be resolved on the back end when they actually arise rather than on the front end despite the fact that they usually won’t come up.
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October 7, 2009, 1:15 pmJWB says:
To expand on a point made by Prof. Kerr, the problem with the “War on Drugs” isn’t necessarily too many laws, unless “too many” means >0 for the subject matter. For the federal system, last fiscal year’s stats from the Sentencing Commission indicate that more than 95% of all drug offenders (who are about a third of the total federal criminal docket) were sentenced for just 4 or 5 drugs: heroin, marijuana, methamphetamine, and crack/powder cocaine (which are treated as 2 different things for statistical purposes). I’m sure there are dozens if not hundreds of other drugs which it is a federal felony to deal with, but even drugs with perfectly good brand name recognition like LSD, angel dust, and Ecstasy are still buried in the numerically trivial “other” category. Repealing all those other drug laws would thus have no substantial effect on the prison population, unless of course users substituted away from the still-illegal Big Four.
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October 7, 2009, 1:31 pmJon Roland says:
Perhaps the problem is too many lawyers in legislatures.
We might also benefit from selecting judges from among legal historians than from among legal advocates.
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October 7, 2009, 1:42 pmBored Lawyer says:
This is half right and half wrong. There are many legal tasks which are routine and which someone who has taken a two year course could handle. Apart from wills, simple real-estate closings come to mind.
But the problem is that some clients may have a deeper, more complex problem that someone with such a limited education would not be able to spot, let alone handle. You would be taking a risk in not using a lawyer because if you have some unusual issue your position could be jeopardized.
Maybe the legal profession should take a page from the medical profession, specifically physician’s assistants. They are trained to deal with routine matters while referring more difficult cases to an MD. Maybe there could be a “Lawyers’ Assistant” who could do most (or even all) of the routine work in drafting a will or doing a closing, but also trained to spot the situations where a lawyer’s advise is needed.
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October 7, 2009, 1:50 pmInstapundit » Blog Archive » ILYA SOMIN: Too Many Lawyers, or Too Many Laws?… says:
[...] ILYA SOMIN: Too Many Lawyers, or Too Many Laws? [...]
Ed Nutter says:
Too Many Lawyers, or Too Many Laws?
Yes.
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October 7, 2009, 1:59 pmwhichcamefirst? says:
Too many chickens or too many eggs?
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October 7, 2009, 2:03 pmohwilleke says:
I strongly agree, although I’m not sure that wills are a very good example. The best areas of law to create independent specialties in are those with (1) high low end demand that isn’t being met (e.g. indicated by high pro se rates), (2) little interdependence with other areas of law, and (3) well defined, compact cores of legal doctrine.
Some of the areas that seem particularly ripe for independent professions by these criteria include criminal law, immigration law, and child custody law (which might appropriately be seperated institutionally from the property issues as it is in the New York State court system, where the general jurisdiction trial court handles divorces, but non-marital custody fights and post-decree matters are handled in Family Court). These are areas where personal status and liberty are at stake (even though many cases don’t involve affluent people), were a small number of statutes govern, where traditional civil procedure has little or no relevance, and where attorney compensation rates are not particularly high.
In contrast, areas like bankruptcy, tax and wills are all “holistic” disciplines that require an underlying solid conceptual understanding of the nature of property and contract rights, assets and liabilities, and customary transactional arrangements. As a result, these are areas where having paralegals supervised by attorneys with wider knowledge and issue spotting capacity may be the best model.
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October 7, 2009, 2:06 pmNeo says:
Then we have books like Three Felonies a Day, that say that the average person is probably guilty of unwittingly committing three felonies each and every day.
Even if the author is off by a few orders of magnitude, that is still too high for a civil society.
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October 7, 2009, 2:07 pmRich says:
I agree with Ed Nutter but without the or :)
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October 7, 2009, 2:08 pmShelbyC says:
Well, my grandpa never went to law school, but was a judge. Maybe we should let people take the risk of using a lawyer with a different form of learning about the law.
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October 7, 2009, 2:09 pmJim O'Sullivan says:
Are lawyers’ average salaries really that high? I mean, compared to what? To other jobs that require three years of expensive education beyond the bachelor’s degree?
I would be willing to guess that a majority of lawyers who live in my neck of the woods do not take home significantly more than the average of our fair county’s police officers (a job that requires just an A.A. degree, has a boffo pension,and there’s little crime to combat) Or even many, if not most, teachers(just a B.A, all those days off, a pension so good that lawyers around here have been busted for wrongfully signing up for it). Of course, those lawyers who make more can make a lot more, but I’m talking median, not mean. So for now at least, I don’t buy the premise. What exactly are the figures?
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October 7, 2009, 2:14 pmMikeMangum says:
As a non lawyer, I’m glad to see such a clear statement that the main purpose of the ABA and the state bar associations is to ensure high quality legal representation to the public. I always thought that the sole reason for existence of these organizations was to reduce competition amongst lawyers at the expense of the public. I’m glad that’s not the case.
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October 7, 2009, 2:55 pmdrunkdriver says:
Well, my grandpa never went to law school, but was a judge. Maybe we should let people take the risk of using a lawyer with a different form of learning about the law.
and Justice Jackson never went to law school, but was and has remained, one of the most respected of the justices of his era. Still, today it’s a different time. I don’t mind the requirement of law school graduation in order to practice, though like most of us I think law school’s about a year too long.
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October 7, 2009, 3:06 pmModa says:
While I might agree with Orin, that’s a pretty boneheaded way of defending his position.
The relevant measurement is the amount of CASE LAW in torts. Which is massive.
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October 7, 2009, 3:08 pmjcm says:
In DE Soto´s book: Why capitalism succeeds in the west..h e quotes a paper by Shalfer, the Harvard law professor, on the subject. They say that the number of lawyer is correlated with low growth. Because it s means that resources are being wasted disentangling regulations. But Joel Best shoed that the correlation is false since Japan has more or less the same proportion of lawyers than the USA. Of course; De Soto, Scheiffler and Olson didnt realized that the USA growth is higher than almost every OCDE country including Japan.
The Journal of Legal Studies in 1993 , more or less , published and study on litigation rates. England rate was the same of California , and both were 25 folds the rate of Montana
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October 7, 2009, 3:17 pmLarry J says:
Just to provide a little data, in 2006, there were about 761,000 lawyers, according to the Bureau of Labor Statistics (and a grand total of 1,000,000 in the “Legal Services Occupation, which includes paralegals and the like). By contrast, there are about 2,500,000 folks employed in the Architecture and Engineering category. There are about 1,300,000 in Life, Physical, and Social Science occupations. There are 7,000,000 in Healthcare Practitioner and Technical Occupations. There are 6,150,000 folks in Management Occupations, and 6,100,000 in Business and Financial Operations. Another 3,300,000 work in Computer and Mathematical Science.
In short, what’s the problem again? I fear I must disagree with Justice Scalia on this one.
The US population is roughly 305 million. Take away the children, the retired, and others who don’t work and you have a workforce of perhaps 150 million. Do we really need 1 out of every 200 workers in America to be a lawyer? Most lawyers produce nothing of value and many of them actually stiffle innovation and production.
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October 7, 2009, 3:27 pmRonnie Schreiber says:
Remember, more than a third of the current US Congress are lawyers. Lawyers don’t just administer the law, they write the laws too, more often than not with a built in advantage to their own profession. Hence no tort reform in Washington.
Lawyers are the only profession that regulates itself. In Michigan, the state Board of Medicine has 19 members, a simple majority of which, 10, are doctors. The Attorney Grievance Commission and its Attorney Discipline Panel both have a supermajority of lawyers, 6 of 9.
Justice Scalia isn’t the only legal expert to opine on the legal profession’s general failure to create wealth.
Judge Laurence Silberman of the D.C. Court of Appeals:
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October 7, 2009, 3:36 pmWilly T says:
As a “recovering former attorney” (that’s my self-imposed title after “escaping” the legal profession over 5 years ago), i see the lawyers vs. laws comparison as a chicken or the egg proposition. More of one begets more of the other. I do like the comment that we “have too many Congressmen” though — many of whom are. . . lawyers.
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October 7, 2009, 3:41 pmSome Thoughts on Scalia’s Comment and the Supply of Lawyers « Ducks and Economics says:
[...] 7, 2009 in Economics, law | Tags: legal services, markets, Scalia, Volokh Conspiracy Ilya Somin over at the Volokh Conspiracy discusses Justice Scalia’s comments that many of our best and [...]
Jeff says:
The price of licensed legal services is determine by consumer demand and government controlled supply. Licensure decreases supply and increases prices. The market for legal services is not free.
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October 7, 2009, 3:55 pmShelbyC says:
Well, I’m sure there are lots of opinions about how long law school should be, whether it should be an undergrad major, a community colledge degree, trade school, etc. Let’s throw them all in the ring and let the clients choose.
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October 7, 2009, 4:04 pmBill Harshaw says:
Skimming through the comments, I don’t see anyone relating the number of lawyers to the weakness of the government because of federalism. See Understanding America, edited by James Q. Wilson and Peter H. Schuck
Essentially you have 50+ cartels controlling the supply of practicing lawyers. If you had one legal system, there’d be much more room for competition, both among lawyers and with such things as software packages.
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October 7, 2009, 4:10 pmFat Man says:
I vote for c). All of the above.
Too many laws, too many lawyers, too many congresscritters, too many judges, too many cops, too much messing around in other peoples lives.
Mind your own business, and remember, if you are unhappy, it is your life, the government won’t make you happy.
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October 7, 2009, 4:20 pmClaude Hopper says:
I ran into a convenient law recently. I am the executor of my parents estate. It was big enough to trigger estate tax. But my parents met a certain criteria obviously created by the legal-political complex. My mother died less than 9 months after my father. The law allowed me to declaim a portion of the estate (mostly timber land) that would have gone entirely to my mother. I could do the after my mother had died; that is without knowing her wishes. I chose to split into two estates, one for my father and the other for my mother. The probate for each estate was handled separately. The estate values were then under the Federal trigger (there was a small state inheritance tax on both estates). The Fed got stiffed, but the probate lawyer doubled his fee by handling 2 estates. The heirs received more as well.
A Charles Dickens character said “The law is a ass”. We know what that makes lawmakers.
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October 7, 2009, 4:38 pmwjr says:
Just a thought. It seems to me that the legal profession is, essentially, a profession of hindsight. The court and, therefore, lawyers, deal with precedent to define a future.
There is an impact on all of us that goes past “legal” things. It means that many of our politicians are retroductive. This is akin to looking out the rear window and trying to drive the car.
Perhaps the first thing that we do “come the revolution” is to bar lawyers from holding office.
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October 7, 2009, 5:41 pmCrackmonkeyjr says:
I’m agree, it was great being black in the south, or a woman in 1950. No need for any of those silly “anti-lynching” laws.
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October 7, 2009, 6:05 pmRich Vail says:
Scalia is right, there are too many lawyers, too many laws and we as a country are strangling under the resulting regulatory burden.
Bill Shakespeare was right in Henry II,
“First we kill all the lawyers...”
Seriously though, common sense is something often bereft in WashDC as well as the various state capitals. Try reading the constitution some time...they didn’t need gobs of regulatory language to make a point. Compare our constitution to that of the proposed EU constitution...point proven
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October 7, 2009, 6:11 pmPersonFromPorlock says:
Crackmonkeyjr:
Wrong quote. To your major point:
Keep in mind the “Hell on Earth” standard. Also, I’m sure those civil rights laws which are still pertinent would be re-passed by acclamation first thing.
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October 7, 2009, 7:19 pmMike McDougal says:
Myth — at least as applied to highways.
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October 8, 2009, 2:19 amOctober 8 roundup says:
[...] Many Lawyers or Too Many Laws?” [Somin, Volokh, on Scalia; [...]
Melvin H. says:
“War on drugs” = “full employment bill for lawyers”?
Nope. Try “CPSIA”, “Title IX”, “zero-tolerance laws in schools”, “drunk driving”, and “Americans with Disabilities Act”, as well as anything related to the EPA, EEOC, and Christmas/Christian symbols.
Now THERE is a whole lot of full employment acts for lawyers!
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October 8, 2009, 10:16 amMelvin H. says:
...Add in: “zero-tolerance laws in schools”, “sexual harrassment laws”, “drunk driving”, and “global warming” to the above post.
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October 8, 2009, 10:22 amJohn says:
It is not only the number of laws but the impossibility of compliance. We legalize non harmful behavior with swat teams: http://www.heritage.org/research/legalissues/lm0044.cfm And civil suits are an extortion racket in many cases.
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October 8, 2009, 2:59 pmtz says:
When a local paralegal, or someone else familiar with the locality and quite competent to fill out the very short wills or no-fault divorce or other papers offers to do so for a fee, they are sued for “practicing law without a license”. That license, certification, whatever is a barrier to entry creating a trade union monopoly. Monopolies collect monopoly rent. Many things might be handled on a common pleas basis, but the problem is not either-or — lawyers cause the legislature to REQUIRE lawyers to do many things, and to require certification of some sort, and to make the laws numerous and complex.
The point about the war on drugs and torts is correct, but consider the current health-care debate — if I could choose a much lower cost that would have a much higher threshold for malpractice, and thus cheaper, I am not free to choose it.
Or consider the parallel case of medicine. Especially with the internet, Physician’s assistants, Registered Nurses, Pharmacists, and Paramedics could treat 90% of the “sniffle” category and refer the outliers to physicians, but aren’t allowed to because the AMA imposes a similar set of barriers to entry. If I have the 156th ear infection and need amoxicillin yet again, there is no mechanism to short circuit the cursory examination of an MD (who isn’t likely to catch anything and might be sued because of the kabuki) which I will be charged for simply to get an identical Rx with identical instructions as the 155th incident. Do I need an MD? No. Does the medical-industrial-legal complex require I go to one? Yes.
Surgeons and Criminal lawyers are needed, but if the law is an ass, holes will appear in proportion.
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October 8, 2009, 8:42 pmlawyers says:
The US population is roughly 305 million. Take away the children, the retired, and others who don’t work and you have a workforce of perhaps 150 million. Do we really need 1 out of every 200 workers in America to be a lawyer? Most lawyers produce nothing of value and many of them actually stiffle innovation and production.
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October 9, 2009, 12:26 amJon Roland says:
What we really need is to have everyone trained in the law, so that most could handle situations that don’t require a specialized professional.
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October 9, 2009, 3:08 pm46ghost says:
Vast majority of congress and the house are lawyers.
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November 16, 2009, 10:00 am46ghost says:
Vast majority of congress and the house are lawyers.
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November 16, 2009, 10:00 am