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Five Things
Following up on the [non]Billable Hour's Five by Five, second edition, Scheherazade asks: What are the five things you would change about the practice of law?
1. Close down Lexis and Westlaw and bring an immediate and permanent end to for-profit legal research. The law belongs to the people, not Westlaw. The services now provided by these companies should be done by public employees paid by tax dollars, then the cost of legal research and representation would drop for everyone. See also Carolyn Elefant's suggestion #1. Same idea, mine just goes further; instead of having one free Lexis/Westlaw account per library or school, every computer w/internet access should have free, unlimited access to the publicly-funded, non-profit replacement of Lexis and Westlaw. This new database should also be searchable by Google and any other search engine.
2. Dissolve the ABA's cartel-like stranglehold on law schools and legal education. This would involve eliminating current requirements in most states that you have three years of law school before you can even take the Bar. Perhaps we should eliminate the Bar exam, as well. See Scheherazade's suggestion #1 . But even if some sort of qualifying credential is required to practice law, it should not require any sort of formal training. If there's a Bar exam or something like it, and you can pass it without a day of formal education, you should be able to practice law.
3. Reduce firm salaries and billable hours requirements by half, across the board, while at the same time doubling salaries for public defenders, legal aid attorneys, non-profit attorneys and all other "public interest" practitioners. That wouldn't even the playing field, but it would go a long way. See also Scheherazade's suggestion #4.
4. Make lawyers accountable for the work they do. I really don't know how to do this, but perhaps a google-able database of lawyers and the cases they've worked on would go some way to making attorneys accountable for the work they've done to protect big tobacco, to help Enron rip off its shareholders and the American public, and convince the Bush administration that it doesn't have to follow the Geneva Convention.
5. Require law schools do more than pay lip service to public interest law. Again, I'm not sure how to do this, but law schools need not be factories for producing BigLaw drones. For a start, professors who make jokes to their classes about how rich attorneys can get by screwing their clients should be fired. Becoming a lawyer should not be about making money.
Combined, my suggestions should go a long way to taking the money incentive out of the practice of law. Making the best available legal research free to all will reduce the overall demand for attorneys—more people will be able to do their own research and represent themselves. Freeing law schools from the dictates of the ABA will allow new schools to spring up, and eliminating the law school requirement altogether will allow the number of lawyers to skyrocket. All that great competition (lawyers love competition, right?) will mean no one will get much money. And, since legal research will be free, lawyers will be able to charge much less there, as well. Reduced firm salaries will become a necessity; therefore, law students will be much less motivated to go to BigLaw anyway. Plus, since they won't be paying such high tuition (because there are more law schools and because some people won't go to school at all to become lawyers), students will graduate with much less (or no) debt, removing another reason many people now go to BigLaw. Finally, if lawyers are forced to make a public accounting of the work they do, we'll have fewer people writing terror memos and defending companies that destroy the environment and public health and all those other bad things. The world will be a better place, and all because of these five things.
What was it Aerosmith said? Was it, "dream on"?
Aside: The Five by Five idea is brilliant. A very valuable and innovative use of the blog form, IMHO. Thanks to the [non] Billable Hour for bringing it to us. One way I think the feature could be even better is if its main archive page featured a table of contents in outline form that listed the edition number and question, followed by a bulleted list of links directly to the responses of each of the five contributors to that edition. Just an idea.
Posted June 24, 2004 05:37 AM | law general
I have to disagree with you about eliminating the requirement of law school. Many people could probably take a Barbri course and pass the bar without going to law school, but I don't think that would mean that they could or would be good lawyers. I go to a school with a heavy emphasis on praxis, which is a world apart from the bar exam, but has prepared me well to represent clients pro hac vice (which Barbri or just passing the bar would not). I think that legal education should be changed to incorporate more clinical practice---serving indigent members of the communities the law schools are in---so that would-be lawyers really learn how to serve their clients well.
Posted by: ashley at June 24, 2004 08:14 PM
Sounds like all you really want to do is elininate greed. If we could only get lawyers to do everything for good, then the world would be a better place.
Of course, if we could make people act that way, no one would need a lawyer in the first place.
Posted by: learned foot at June 24, 2004 10:30 PM
Ashley: You may be right that some sort of training shoudl be required to become a lawyer, but the current three year requirement and many of the other ABA guidelines are not making better lawyers, they're making greedy lawyers.
And on that, learned foot is correct that I would like to eliminate greed. Since that's a bit ambitious, I'd start by eliminate structural incentives for greed, which is what I would hope to do with my legal reforms. Would people be so greedy if they weren't rewarded for such behavior? I don't think so; I think we learn to be greedy. My goal would be to stop teaching greed, and start teaching the obligations and rewards of public service instead.
Posted by: ambimb at June 25, 2004 04:55 AM
Good luck eliminating greed in the United States. Especially since our economy and culture are based on it.
But like Ashley, I think you can't do away with the Bar Exam. Especially if you're going to have lawyers mostly doing public interest work and defending the indigent or whatever, we owe it to our clients to be competent lawyers, and to make sure our colleagues can do their job. How about mandatory disbarment for falling asleep in court?
Posted by: monica at June 25, 2004 05:44 AM
Actually, I'm coming up with my own, similar list of five things. Unlike Ambimb's, they don't try to eliminate greed, or take such a heavy-handed form. But one thing I wonder about is why we live in such belief that the Bar Exam is such insurance of competent lawyers? Most law firms don't think much of the competency of 1st year associates, even after they've passed the Bar: they still need training.
What I wonder about, though, is whether we really need this 15th century-guild system we've constructed. There's not a world of difference between law and software programming in the salient characteristics: mission critical software puts millions of people's lifes in its hands every day, etc. etc. But we don't organize programmers as a 'profession,' and I feel that if we were building a legal system from scratch today, without our legal tradition, we'd probably not institute a guild.
Anyway, at least for once I'm with Ambimb: the Bar Exam is a restraint on trade, as is the Bar itself. Of course, I'd say the elimination of the Bar--a laissez-faire ideal--might do just as well as his heavy-handed methods, but that's that.
Posted by: A. Rickey at June 25, 2004 11:59 AM
so if the bar exam doesn't do it, what would ensure competency in the profession? the free market?
Posted by: monica at June 26, 2004 09:27 AM
I have to disagree with two (maybe even three) points.
1) Bar exam
Agree that the bar exam is pointless. But disagree that the requirement for legal training should be disbanded. The problems with the legal profession arise in part because of undertraining. Would you like to deregulate the medical profession... let anyone be a doctor? The quality of the legal profession needs to be protected... if anything the barriers to entry should be raised.
2) Personal responsibility
I think that you have the wrong conception of the lawyer's role. Except for legal academics, a lawyer is not paid to search for and advise on the 'objective' truth of any matter (that is, the "right" answer). Lawyers are hired guns. We act for clients, not for ourselves. We are ethically bound to pursue our clients best interests and advocate for them. I, (and I would imagine almost every lawyer) has written an opinion on a point of law that adopts a position that they disagree with. Now, I would not be prepared to put my name on advice that is intellectually dishonest or unethical, however - if a client has asked for us to put forward a position, and that claim, or that view can be legitimately made - then it is our job, and our ethical duty to do so. To hold lawyers accountable for that position is highly problematic.
3) Greed
Removing greed is admirable, but, to return to Adam Smith, capitalism relies on greed to function. It is the balancing of self interest that is supposed to lead to efficient outcomes (not sure if I buy this... but hey there you go).
Posted by: RL at June 28, 2004 08:16 PM
