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"Do Judges Systematically Favor the Interests of the Legal Profession?"

Benjamin Barton of the University of Tennessee Law School has an interesting paper on SSRN:

This Article answers this question with the following jurisprudential hypothesis. Many legal outcomes can be explained, and future cases predicted, by asking a very simple question: is there a plausible result in this case that will significantly affect the interests of the legal profession (positively or negatively)? If so, the case will always be decided in the way that offers the best result for the legal profession.

The article presents theoretical support from the new institutionalism, cognitive psychology and economic theory. The Article then gathers and analyzes supporting cases from areas as diverse as constitutional law, torts, professional responsibility, employment law, evidence, and criminal procedure.

The questions considered include: why are lawyers the only American profession to be truly and completely self-regulated? Why is it that the attorney-client privilege is the oldest and most jealously protected professional privilege? Why is it that the Supreme Court has repeatedly struck down bans on commercial speech, except for bans on in-person lawyer solicitations and some types of lawyer advertising? Why is it that the Miranda right to consult with an attorney is more protected than the right to remain silent? Why is legal malpractice so much harder to prove than medical malpractice? The Article finishes with some of the ramifications of the lawyer-judge hypothesis, including brief consideration of whether our judiciary should be staffed by lawyer-judges at all.

I've previously noted the difference between the treatment of legal malpractice and medical malpractice in arguing that the substantive scope of medical malpractice liability should be narrowed, and I'll certainly be citing this paper when I expand those posts into a full-length article. But Barton, I think, misses an obvious repercussion of his hypothesis: it would provide an additional explanation for the relative hostility of the judiciary (and legal academy!) to legislative liability reform efforts. It is not entirely clear to me that non-lawyer-judges are the solution, however.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.