Should Lawyers Need Law Licenses?

Lawyer Requirements.jpgThere’s a new book being published by the Brookings Institution think tank that is attracting a lot of attention in the blogosphere (see here, here and here). The book, authored by Clifford Winston, Robert Crandall and Vikram Maheresi is entitled “First Thing We Do, Let’s Deregulate All The Lawyers” and its premise is simple: you shouldn’t have to go to law school, pass the bar exam or obtain a law license in order to be a lawyer. Winston, Crandall and Maheresi argue that the requirements that lawyers spend three years in law school and pass the bar exam in order to obtain a law license are merely anticompetitive measures that drive up the costs of lawyers’ services and insure that some poor people who need lawyers cannot get them.
It may make me a bit of a pariah as a lawyer, but I wholeheartedly agree.
Lawyers are rarely called upon to make a defense of the regulation of their profession, but when they do, they usually insist that the law school-and-bar exam educational complex is necessary to protect people from bad legal representation. The thinking goes that, if not for regulations mandating that lawyers attend law school and sit for a bar exam, the market would be flooded with all sorts of shysters. Regulation of lawyers is necessary to protect consumers from their own ignorance.
This is a patently bad argument. The same argument used to be trotted out by members of medieval guilds. Under the guild system, in order to sell candles you had to be a member of the chandler’s guild. In order to sell shoes, you had to be a member of the shoemaker guild, and so forth for dozens of occupations. The guilds used to insist that such restrictions on competition were necessary to insure that consumers got a product that worked. Otherwise, the thinking went, the marketplace would be flooded with candles that didn’t burn and shoddy shoes. But, eventually, these craft guilds were abolished and consumers weren’t injured. The candles continued to burn just as well and, in fact, they got cheaper. Consumers benefited.
Today of course, if I want to open a factory and manufacture candles or light bulbs, there are no regulations that I have certain training or experience. The market will sort it out.
The same result would no doubt obtain if law licensure requirements were abolished.
Yes, legal services are different from consumer goods like eyeglasses and light bulbs. A consumer who buys a pair of eyeglasses or a light bulb knows, after purchasing, if he has gotten a quality piece of merchandise. That doesn’t necessarily apply to the consumption of legal services: a lawyer knows a great deal more about the quality of his goods than the client.
But, in a de-regulated legal profession, lawyers would find a way to signal their quality. Just as Nike brand sneakers signal a particular level of quality, a Nike-branded law firm would signal a particular grade of legal representation. Moreover, third-party vendors and consumer media outlets would also provide quality assurance.
If any lawyer truly believes that the public would be harmed by incompetent legal representation in the absence of some regime of professional licensure, ask him who he thinks could do more harm to his law firm — a first-year law associate or the firm’s IT professional? The answer of course is the IT guy: with a few keystrokes, he could delete the firm’s entire file system. A first-year lawyer at the firm could never do so much damage. And the firm’s IT guy does not need to possess any credentials to hold himself out as an “IT guy.” Nevertheless, I have yet to hear of a law firm imploding due to incompetent IT personnel.
The fallback argument for many defenders of legal regulation is not that people need protection from low quality lawyers but that our system of justice requires men and women of high character to be lawyers. Any knave can be a fishmonger, the thinking goes, but lawyers occupy a position of special public trust. We at least need some barriers to entry to insure the practice of law does not devolve into a free-for-all with lawyers of bad character suborning perjury, comingling client funds with their own, and engaging in all manner of other malfeasance.
Of course, politicians occupy positions of public trust equal to or greater than the special position occupied by the average lawyers. And we don’t require politicians to pass some test before they assume office. Instead we have ethical rules that apply to their conduct once they assume office. And the same sort of regime could preserve the public trust placed in lawyers: you don’t have to pass a bar exam or a character and fitness test to get in, but once you’re in, you better play by the rules or you’ll face expulsion.
Whether lawyers like it or not, sooner or later the legal profession is going to have its entry requirements abolished. Top lawyers are now seeing their hourly rates climb to $1,000 an hour. The legal fees in the GM bankruptcy might top $1 billion. That’s real money, even at the Fortune 500 level. And when corporations feel oppressed by legal fees, they will lobby for stripping away the anticompetitive restrictions that drive up their legal bills. For lawyers contemplating what a deregulated profession will look like, it’s not a question of if, but when.

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The Casey Anthony Closing Arguments And “Temporal Variance”

Casey Anthony.jpgThis past week, over at Volokh Conspiracy, law professor Mitch Berman has been blogging about “temporal variance” in the enforcement of rules by referees and judges. The idea of “temporal variance” is well known to any sports fan, even if Berman’s phraseology is not. The idea is that, by unwritten consensus, different sets of rules are enforced at different times of contests — whether they be legal, athletic or some other kind.
Toward the end of a game, or in playoff competition, referees enforce a different set of rules than normally applies. They tend to “let the players play” and to avoid calling ticky-tack penalties.
Abiding by these unwritten rules is a part of sportsmanship and good conduct. It violates the unwritten rules of the game, whether it’s hockey or soccer, for players to flop and seek to have the referees intervene to influence the outcome of the match.
In reading through some of Berman’s blog posts on “temporal variance,” one recent, very prominent example of the “let the players play” norm being violated sprang to mind: Jose Baez’s closing argument in the Casey Anthony trial. I watched hardly any of the trial but I caught a chunk of Baez’s closing argument and, as a lawyer, took offense at the gratuitous objections made by the prosecution. The prosecution’s offense — their numerous objections, which interrupted the rhythm of Baez’s closing — was an example of temporal variance in action.
Normally in a trial, when the opposing side tries to do elicit some evidence that you think shouldn’t be allowed, you rise to your feet and announce, “Objection!” The judge/referee will then either sustain the objection or overrule you.
But in closing arguments, by unwritten rule, you don’t do that. If the other side says something you find objectionable, you wait until she finishes her closing argument, approach the bench at sidebar and ask for a limiting instruction to the jury or for your objection to be noted for the record. It’s considered truly bad form to interrupt the rhythm of someone’s closing argument to lodge an objection in open court.
Closing arguments in a trial are the ultimate playoff moment, the time of “let the players play.” There’s no rule of evidence that says a different standard applies during closing arguments, but one does.
Watching Baez’s closing argument in the Casey Anthony case, I became infuriated at the prosecution’s incessant objections on the most minor points. It truly seemed to me that the prosecution were exhibiting poor legal conduct, something analogous to the kind of poor sportsmanship implicit in a player flopping on the ground and looking for a call. But even worse, because a contest where someone’s life is at stake calls for a much higher standard of conduct than the norm.
And it seemed to me that Judge Belvin Perry did a poor of refereeing the closing. Instead of rebuking the prosecution for their petty objections, Perry carefully considered each one of the prosecution’s objections before deciding whether to sustain or overrule it. (Perhaps this is the byproduct of Florida’s elected judiciary; if we chose our referees by popular vote too, they might be wondering how their calls would be reviewed come election time).
Given the fact that prosecutors Jeff Ashton and Linda Drane Burdick seemed to give so little honor to the unwritten rules of the legal contest, it came as little surprise to learn this week that the prosecution may also have violated a legal rule graven in stone: the constitutional rule of Due Process that the prosecution turn over to the defense all exculpatory evidence in its possession. According to reports, software designer John Bradley alerted prosecutors that a key piece of evidence in the Anthony trial — the number of times that Anthony supposedly googled “chloroform” — was mistaken. There was a flaw in his software that made it seem like Anthony googled “chloroform” 84 times when in fact it had only been googled once. Yet the prosecution did not disclose Bradley’s admission of error to the defense and argued to the jury that Anthony searched “chloroform” 84 separate times.
The rules of the game might vary with time, but it seems like one’s character and sportsmanship are constants.
PS — For any lawyer who agrees that judges ought to employ some form of “temporal variance” consider the following question: it’s the middle of trial and the plaintiff has a great case on liability — unfortunately plaintiff’s only viable claims are outside the scope of the complaint. Should a judge allow an amendment freely in the middle of trial? Or should the judge deny any motion to amend the complaint?
It might seem that allowing the amendment would most embody the “let the players play” ethos: it would allow the contest to be determined by a good old-fashioned slugfest in front of the jury. On the other hand, in this type of situation, it’s hard to think of a call that would more clearly involve the judge placing his or her thumb on the scales to influence the outcome.

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“Hot Coffee,” Jamie Leigh Jones And Why Mandatory Pre-Dispute Arbitration Is Still A Bad Idea For Consumers And Employees

Hot Coffee.jpgSeveral weeks ago, I blogged about “Hot Coffee,” a new documentary airing on HBO, that exposes the radical ways in which tort reform advocates are taking Americans’ rights hostage, much to the obliviousness of the typical American. “Hot Coffee” focuses on four legal obstacles that tort reform has placed in the way of ordinary people.
One of those roadblocks is mandatory pre-dispute arbitration. The term is a mouthful but “Hot Coffee” powerfully explains this kind of arbitration through the story of Jamie Leigh Jones. Jones was an employee of Halliburton subsidiary Kellogg, Brown & Root (KBR), working in Iraq. She sued Halliburton/KBR for a brutal rape and false imprisonment that, she said, took place at the hands of her coworkers.
But Halliburton/KBR wouldn’t let Jones get her day in court. As soon as she filed in court, Halliburton asked that her case be forced out of the court system into arbitration. When Jones had signed on with Halliburton, she signed a lot of paperwork, including an agreement stating that, if she ever sued Halliburton, Halliburton had a right to force the case into arbitration.
Halliburton managed to keep Jones in arbitration until Sen. Al Franken got a law passed that prohibited defense contractors from enforcing such arbitration agreements. Jones finally got her day in court and last week she lost, a Texas jury finding against her. Now, a number of commentators in the legal blogosphere are using Jones’ loss to undermine “Hot Coffee’s” critique of arbitration.
Despite the Jones verdict, however, mandatory pre-dispute arbitration agreements remain a bad idea. They cost consumers billions. They encourage dishonest and sharp practices by business. They are profoundly un-American.
First off, I should probably be clear about what I mean by “mandatory pre-dispute arbitration.” I’m referring to a private system for dispute resolution. There are no jurors, there are no jury trials in arbitration. Either a single arbitrator or a panel of arbitrators hears your case and decides it. Either one or both of the parties to arbitration pays the arbitrator a fee to hear the case, fees that vastly exceed what it costs to file a case in court.
Who are these arbitrators? They may or may not be lawyers. There really are no legal requirements for who can be an arbitrator.
If the lack of credentialing requirements makes you worried if you’ll get a fair hearing in arbitration, you should also be worried because there’s no right of appeal. If you lose in our civil justice system, you can appeal to a higher court. But if you lose in arbitration, there is no authority higher than your arbitrator.
It used to be the case that if an arbitrator came up with a completely off-the-wall ruling, you could appeal to a court under a “manifest disregard of the law” standard. If you could show that the arbitrator’s ruling was in manifest disregard of the law, you could get a court, a real court with judges and jurors, to overturn the arbitrator’s decision. But the US Supreme Court, in the 2008 decision of Hall Street Associates, LLC v. Mattel, Inc., took away this grounds for appeal. You can no longer appeal an arbitrator’s decision to a Court — even when you can show that the arbitrator manifestly disregarded the law (in other words, completely ignored the law) in reaching his or her decision.
Of course, even if the “manifest disregard of the law” standard were still around, it would be an uphill climb to prove that your arbitrator disregarded the law because arbitrators very rarely write any written opinions explaining their decisions. If an arbitrator does not write an opinion explaining her decision, it is very hard to prove that the arbitrator made a legal error.
The widespread acceptance of tribunals that do not write down or explain their opinions represents a pretty radical break with the Anglo-American tradition of jurisprudence. America, like England (and a lot of former English colonies), has a “common law” system of justice. The common law tradition can be contrasted with the “civil code” system of justice that exists in continental Europe and virtually everyplace else.
In both traditions, a legislature, or some other authority, may promulgate a code of laws that people must follow. But legal codes usually speak in sweeping generalities; there are always ambiguities and questions of how to apply the codes in particular cases. This work of applying the verbiage of legal codes to the facts of particular disputes is the province of judges (and, well, arbitrators).
In the civil system, followed in continental Europe, judges make their decisions and those decisions apply in the case before them and for the case before them only. The judge’s decision has no weight of precedent; there is no requirement that the judge’s decision be followed in other cases. By way of contrast, in the common law tradition, judge’s decisions form precedents. These precedents must be followed in later cases.
The net result of the common law tradition is that America and other common law countries have a much richer body of law than countries who follow the civil code system. In the common law system, there is a lot more guidance out there on what is legal and what is not. There is also a lot more debate on what legal rules are good ones and what ones are bad.
The body of precedent that develops in a common law country helps people avoid litigation, by allowing them to know what they can do and what they cannot. The body of precedent in a common law country represents what economists call a “public good.”
But increasingly, due to the ubiquity of arbitration, we are moving toward becoming a civil code country. Congress will pass a law and relatively few of the cases will make it into the courts because of mandatory pre-dispute arbitration agreements. This was happening, for instance, with the Sarbanes-Oxley whistleblower law that Congress passed in the wake of the Enron collapse; many whistleblowers were getting pushed into arbitration under employment agreements that they signed, the same way that Jamie Leigh Jones was. This pattern stifles the doctrinal development of the law. Fortunately, last summer the Dodd-Frank financial reform law invalidated arbitration agreements that require the arbitration of whistleblower claims.
But arbitration remains ubiquitous in other areas – such as contract disputes with your phone company or bank. Walling these areas of life off from the courts means that the law will become ossified. A century from now, we’ll still be following the same law in that field of human life that we are today because the number of legal precedents issued by courts will either completely stop or slow to a trickle. That may not sound like much but go take a look at the contract law of the nineteenth century and decide whether you’d want that law followed today.
Arbitration also affects your pocketbook. It’s a virtual certainty that you have entered into a number of mandatory pre-dispute arbitration agreements. Your contracts with your cell phone company, your credit card company (although credit car companies are moving away from arbitration in some cases) and your mortgage lender likely contain arbitration clauses.
So if you discover that, say, AT&T is ripping you off by adding bogus extra charges to your bill, in complete violation of your contract, you can’t head into court to sue AT&T. You have to head to arbitration.
If the bogus charges that AT&T levies against you are part of a scam that rips off other AT&T cell customers, you might think, “No problem, I’ll head to arbitration and I’ll have my lawyer file a class action arbitration against AT&T. That will teach them. AT&T will have to end this fraudulent policy and refund us all the overcharges.”
If we were living in the halcyon days of 2010, such a tack might have worked. But, if you’re an AT&T customer, your contract with AT&T contains a clause that forbids you from bringing a class action in arbitration. And in April 2011, in the case of AT&T Mobility v. Concepcion, the US Supreme Court upheld the anti-class action provision in AT&T’s cell phone contracts.
So, now, if AT&T does something to rip you off on your cell phone bill, you have to go it alone in arbitration. But if AT&T only rips you off for $30 or so what lawyer is going to want to take your case? $30 won’t pay your lawyer. The only way a lawyer would take on your case is if she could aggregate all the $30 overcharges into a class action. That would mean real money that would make the issue worth fighting over and that would force AT&T to play by the rules.
Justice Breyer pointed out this obvious truth in his dissent in AT&T Mobility, where he wrote: “What rational lawyer would have signed on to represent the Concepcions in litigation for the possibility of fees stemming from a $30.22 claim? The realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30.”
So mandatory pre-dispute arbitration means that your cell phone carrier can get away with completely fraudulent charges against you and you have absolutely zero remedy because, if the fraud is small enough, you won’t be able to attract a lawyer to take on your case.
Is it any surprise therefore that, according to this recent study by the Commerce Department, Americans are overcharged on their phone bills by $2 billion a year in “mystery fees”?
Mandatory pre-dispute arbitration. So far as consumers and employees are concerned, it’s still a bad idea.

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My Own Review Of “Poisoned: The True Story Of The Deadly E. Coli Outbreak That Changed The Way Americans Eat”

Poisoned II.jpgSo, following up on my blog post of a couple weeks ago, I finally got a chance to read “Poisoned: The True Story Of The E. Coli Outbreak That Changed The Way Americans Eat” by Jeff Benedict. “Poisoned” tells the story of Bill Marler’s lawsuits against Jack-in-the-Box for the 1993 E. Coli O157:H7 outbreaks at its restaurants.
I was excited to read the book because, based on the review that I read in The New York Times, I expected the story to be a real-life David v. Goliath legal thriller in the mold of Jonathan Harr’s “A Civil Action” (the book about the legendary Woburn, MA toxic tort case that was made into a motion picture starring John Travolta).
Sadly, “Poisoned” is not much of a legal thriller. Nor does it really touch upon much of the technology/science behind food safety and the way that Marler’s litigation changed food safety protocols. I was hoping the book would deliver on one of those fronts – either as a legal thriller or, as its subtitle suggests, a story about the technical side of food safety.

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When Doctors Follow Evidence-Based Guidelines Only 54 Percent Of The Time, You Get A Lot Of Unnecessary Surgeries

Flip-a-coin.jpgIn 2003, Dr. Elizabeth McGlynn and her coauthors published a blockbuster study in The New England Journal of Medicine showing that American doctors follow evidence-based guidelines only 54 percent of the time, meaning that when you receive medical treatment there’s a 50/50 chance that the treatment you’re receiving has no scientific validity to it.
The tendency within American medicine to recommend surgeries and other procedures that are not backed by evidence-based practices leads to a lot of unnecessary incisions and health care costs. Nearly two months ago, I blogged about how a large number of stent surgeries are performed in circumstances outside of those recommended by the guidelines.
Now comes new research, published in the Journal of the American Medical Association, showing that twelve percent of balloon angioplasties are performed on patients under circumstances where evidence-based guidelines do not recommend it. In some hospitals, as many as twenty percent of the balloon angioplasties that were performed were outside of the guidelines.

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Link Roundup

  • An entire issue of the Spine Journal is devoted to conflicts of interest in Medtronic-funded studies; furor may force Medtronic to sell off its spinal device business.
  • Professor Bernabe on why we don’t need the learned intermediary doctrine. More Bernabe here, on the absurdity of statutes of repose in medical malpractice cases.

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Replacing Intersections With Roundabouts Reduces Accidents Forty Percent

roundabout.jpgFor years, traffic safety experts have been big boosters of the idea of replacing intersections with roundabouts (or as we call them here in Massachusetts “rotaries”). Now, as the BBC reports, the idea is finally catching on in America.
For those of us whose first thought of a roundabout is Chevy Chase exclaiming, “Look kids, Parliament! Big Ben! Look kids, it’s Parliament again! Big Ben!” the idea that a roundabout could be safer than an intersection with traffic signals is a bit counterintuitive. For a lot of American drivers, the roundabout is odd and intimidating; the four-way intersection is familiar and comfortable.
But the statistics don’t lie. According to the Insurance Institute for Highway Safety, if you replace a four-way intersection with a roundabout, you’ll see a forty percent reduction in accidents and a ninety percent reduction in fatal accidents.
That’s why 3,000 intersections have been replaced with roundabouts in the last decade.
I love it when there’s a simple way to save lives.

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It Is A Level Regulatory Playing Field

football_field-963.jpgAs The Pop Tort blog reminds us, the US Chamber of Commerce is once again banging the drum of how overregulation and American litigiousness are supposedly hurting businesses’ competitiveness. It’s a familiar refrain.
We’ve heard it before from businesses large and small: if only the lawyers would get off our backs, we’d be world class competitors!
Granted we’ve seen an explosion in government regulation in the past century or so. And Americans, much as they despise lawyers as a class, are not lawsuit averse.
But what is missing from the tort reformers’ arguments are any explanation of how America’s legal landscape hurts the competitiveness of American businesses. It’s a level regulatory playing field. The same regulations that apply to American businesses apply to Chinese businesses or German businesses doing business in the United States.
It’s no more legal for a Chinese manufacturer to sell toys with lead paint than it is for an American toy company to do so. The cost of such a regulation affects Chinese manufacturers the same way it affects American manufacturers. It’s a level regulatory playing field.
As Toyota can tell you, as it fends off dozens of Sudden Uncontrolled Acceleration (“SUA”) lawsuits for defects in its cars, American law applies to other foreign corporations too. It’s a level regulatory playing field, which is something the tort reformers would like you to forget as they throw a pity party for American businessmen.
Granted, Chinese companies might not have to contend with some of the OSHA and EPA regulations that American companies do. But Americans also enjoy a greater quality-of-life because of those laws and regulations.
And the level of American regulation pales in comparison to some very competitive countries. You don’t hear Mercedes-Benz complaining, “We can’t compete; we have to give health care and paid vacation to our workers!”
The next time you hear some tort reformer bemoaning the effect that our legal system has on the competitiveness of American companies, remember this: Tort reform is just the excuse of failing and struggling businesses.

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Tort Reform And Health Care Cost Control

Via Andrew Sullivan, a very interesting pie chart:
pie chart.jpg
It’s from research by economist Aaron Caroll, showing that states that have enacted caps on damages in medical malpractice cases haven’t reaped savings.
This shouldn’t come as any surprise given that all of the costs associated with medical malpractice – from medical bills for the injured to lawyer fees – only add up to 0.5% of our health care spending.
Cutting down on payouts in medical malpractice cases won’t bring down our health care costs. They’ll only guarantee that the taxpayer foots the bill for the injuries, rather than the medical malpractice insurer.

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Forty Years And Medicine Still Has Not Changed

fatigue.jpgToday’s Los Angeles Times carries an op-ed co-authored by Dr. Lucian Leape of Harvard’s School of Public Health on the topic of resident fatigue.
July marks the month that young doctors begin their residencies at teaching hospitals across the country.
This month also marks the fortieth anniversary of a landmark article published in The New England Journal of Medicine that showed for the first time how much fatigue affects a doctor’s performance. The landmark article showed that sleep-deprived residents made twice as many errors reading electrocardiograms as well-rested residents.
Yet despite being aware, for nearly half a century now, that sleep-deprived residents were endangering patients, the medical community has done very little to remedy the problem.
In recent years, first-year residents have had their shifts capped at sixteen hours – a step in accordance with sleep science. But hospitals can force second- and third-year residents to work shifts of up to twenty-eight hours with little or no sleep.
Such policies are contrary to sleep science research, which demonstrates that human performance falls off a cliff after about sixteen hours of wakefulness.
Teaching hospitals, however, continue to have residents work long hours because the low-salaried residents are lucrative cash cows for the hospitals.
For more on this issue, check out last July’s blog post on the “July Effect.”

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